ABSTRACT
Finally, inclusion of the agenda of ‘loss and damage’ adds a new dimension to adaptation policy. I argue that several factors explain this inclusion: a) increased frequency and magnitude of climate disasters in recent years, that exceeded even the IPCC AR4 predictions, and the human contribution to this is increasingly being confirmed by the latest assessments; b) utter lack of progress in mitigation regime; c) yawning gap in delivery of pledged finance for adaptation, d) avoiding the liability and compensation schemes that the issue of loss and damage has the potential to germinate, and finally e) understanding by the developing countries of the difficulty of proving specific causation (as of now) to specific climate change impacts. It is to be noticed that some developments have been taking place during the last few years beyond the UNFCCC process. When the legislative and executive branches fail to agree to some meaningful mitigation regime, the other branch of the government, the courts – come to adjudicate in establishing liability and building ‘case law’. Court-based settlements in the climate change arena are beginning to witness some success at national level. Litigation lawyers tend to agree that human rights violation from climate change may have more salience now in courts than harms caused by States, because of its complexity of proving the cause–effect relationship. This development may sensitize governments and corporations to settle the scores through negotiations, which could be certain, better for country and company images and cheaper than court-based settlements that usually entail more costly verdicts and never-ending uncertainty on their outcomes. So how to address this residual damage beyond adaptation through appropriate mechanisms is the new challenge before the negotiators. This chapter concludes that a negotiated agreement through the UNFCCC process in terms of codifying the global responsibility for adaptation is a better option for both developed and developing countries for strengthening global cooperation than litigation.
