This post was originally published by Lawfare.
Climate-driven geophysical shifts are driving geopolitical shifts that are putting increasing pressure on international law and global governance. The recent landmark decision to establish an international “loss and damage” fund offers a glimpse into the challenges and opportunities presented by these ongoing disruptions.
Although there is no specific definition of “loss and damage” in international law, scholars and advocates generally define “loss” as that which is irreparable—“the complete disappearance of something,” such as lives, culture, and heritage. “Damage” refers to harms that can be repaired, such as bridges and buildings. Both result from failures to adequately mitigate and adapt to climate threats.
The loss and damage fund was created at the 27th Conference of the Parties (COP 27) hosted by the United Nations Framework Convention on Climate Change (UNFCCC), which met in November. The parties deferred decisions on the details of the “operationalization” of the fund, however, until next year’s COP 28. As a result, the fund’s creation is just the beginning of a long overdue reckoning with critical questions about who is responsible for paying for climate harms. This year’s devastating heat waves, droughts, and floods in Pakistan, India, and multiple countries throughout Africa demonstrate yet again that these harms are borne disproportionately by nations of the Global South, which have contributed the least to the climate problem. Had an effective loss and damage fund been in place and operational, these countries would have received critical resources necessary to save lives.
An overview of international climate law and the larger geopolitical dynamics surrounding collective climate action helps put the creation of this fund in context and conveys just how significant its creation is. That, in turn, provides insight into the ways in which this opportunity could be used to move climate justice efforts forward, through the use of climate science to support greater public scrutiny of the foreign policies of wealthy high-emitting nations and the application of laws outside of the UNFCCC regime.