Climate Change Loss and Damage Response as a Peremptory Norm of General International Law

By Michai Robertson (LLM in Environmental Law and Policy, UCL Faculty of Laws) 

‘Loss and damage’ refers to the residual harm associated with the adverse effects of anthropogenic climate change – those than cannot (or will not) be mitigated or adapted to. The global response to loss and damage has formed part of international policy discussions for years. However, it was only with the adoption of the UNFCCC’s 2015 Paris Agreement, that this concept was codified in international law and gained recognition as an independent ‘third pillar’ of response within the international climate change regime, alongside mitigation and adaptation.

Given the devastating impact climate change currently has on humans and the ecosystem, responding to loss and damage should arguably be a fundamental legal responsibility for the international community. This paper investigates whether a peremptory loss and damage response norm exists in international law. Peremptory norms (or ‘jus cogens’) are considered superior norms of international law that are so fundamental that they cannot be derogated from.

The paper builds upon recent work by the International Law Commission (‘ILC’) which has sought to clarify the legal nature and definition of peremptory norms as well as the criteria for their identification. After outlining a definition of loss and damage in international law as well as the scope and form a loss and damage response norm could take, the paper evaluates whether this norm can fulfil the identification criteria proposed by the ILC.

It concludes that a major obstacle to establishing a peremptory loss and damage response norm is the criterion which establishes the ambiguous requirement that ‘a very large majority’ of states accepts and recognises both the norm and its peremptory character. Going forward, more clarity is needed on how this criterion can be established in practice. There is also an urgent need for international adjudication to clarify the loss and damage response and state responsibility in this regard.

To access the full Working Paper: Climate Change Loss and Damage Response as a Peremptory Norm of General International Law (PDF)