Fear of liability is widely cited as a reason why the US has been hesitant to support the creation of a new international fund for climate victims. Some experts, though, believe that the concern is unfounded.
Signing on to a United Nations agreement that establishes a fund to compensate for “loss and damage” caused by climate change would not open the floodgates of lawsuits over past greenhouse gas emissions.
The 2015 Paris Agreement gave developing countries a foothold for loss and damage, but the US delegation insisted on addendum language prohibiting its inclusion from being used as the foundation for future lawsuits.
The text, known as Decision 52, was included in a side agreement at the Paris conference. The clause on loss and damage in the Paris Agreement does not involve or provide a basis for any liability or compensation.
US officials rebuffed the call for a new dedicated fund for loss and damage during last weekend’s international climate conference in Glasgow, Scotland. As a result, an agreement was reached to map a future course on loss and damage through discussions, which developing countries and their supporters criticized as an unnecessary delay.
At the close of the Glasgow meeting, US climate envoy John Kerry stressed that uncertainties regarding the extent of a loss and damage fund remained. He also mentioned that there are ways to distribute climate aid through existing channels.
The question of how a United Nations agreement could cause fresh legal headaches for the US as the world’s largest historic greenhouse gas emitter is complex. Loss and damage issues appear to point to emissions from countries that have contributed the most to climate change in the last two centuries, particularly the United States.
When the United Nations’ climate authority starts paying loss and damage, help given by developed countries to poor countries whose economies have been harmed by emissions that they are mostly responsible for could be seen as a duty rather than a gift. Liability issues, on the other hand, would be decided by national courts.
Parties would need to adopt language that assigned rich countries responsible for climate change and pledged to reimburse developing countries for damages in order for the Paris Agreement to serve as a foundation for greater liability for climate-related damages. That effect would not be achieved by just establishing a fund and donating to it.