Climate change is a common concern for humankind. The physical changes in the climate system have devastating impacts on human and natural ecosystems—for example, loss of ecosystems, forced human mobility and displacement, etc. While everyone is impacted to some extent, those living in the Least Developed Countries (LDCs) or Small Island Developing States (SIDS) are facing the negative impacts of climate change disproportionately.
Finance is crucial in addressing climate-induced risks in vulnerable developing countries. Loss and Damage (L&D) arising from the negative impacts of climate change has been one of the most contentious concepts of international climate change negotiations in comparison to other two pillars of climate action, mitigation and adaptation. More than thirty years of COP negotiations on L&D have, somehow, undermined genuine claims from developing countries for climate reparations. Even so, however, the embedded ambiguity in those negotiations keeps the door open for climate reparation discourse at future COPs.
L&D incorporates adverse residual risks associated with the negative impacts of climate change which are beyond adaptation efforts. Surprisingly, neither the United Nations Framework Convention on Climate Change (UNFCCC) nor the Paris Agreement define L&D. The concept was first specifically mentioned at the 13th Conference of the Parties (COP) to the UNFCCC in 2007 and has been developed since then through COP negotiations. It was institutionalised in 2013 through the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (WIM), which kept L&D under the purview of adaptation. In 2022, the Intergovernmental Panel on Climate Change (IPCC) defined L&D as harm/ risks either observed or projected as well as economic and non-economic, arising from the negative impacts of climate change. It includes extreme weather events and slow onset events.
This blog post explores the history of discussions of climate reparations at the COPs. As I explain, claims for climate reparations have been considered since the very first COP negotiations. In 1991, the idea was introduced by Vanuatu, one of the SIDS, with a proposal for an International Climate Fund and a separate International Insurance Pool to address the negative impacts of climate change. The proposal faced significant opposition from developed countries and thus did not move forward. But the concept of insurance was revived at COP7 in 2001. COP13 in 2007 adopted the Bali Action Plan and solicited opinions from Parties regarding the newly established Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA). In response, Micronesia, Tuvalu, and others submitted detailed proposals for climate change compensation mechanisms. COP15 failed to reach any decision regarding those proposals. But at COP19 in 2013, the WIM was established — a significant institutional development on L&D. Building on this, the Paris Agreement, adopted at COP21, recognises in Article 8 the importance of addressing and minimising the risks of the L&D. It acknowledges L&D as a standalone pillar of climate action. Notably, however, Paragraph 51 of Decision1/CP.21explicitly excluded liability for climate-induced L&D.
A review of the wording used by Parties at COPs reveals two distinct framings of L&D in climate negotiations – a) a risk framing that calls for a risk management strategy out of international solidarity; and b) a harm framing that claims compensation or liability as a key component of L&D mechanism. This post argues that such bifurcation in L&D negotiations limits the development and progress of the Loss and Damage Fund (LDF). According to Kraal et. al., the current formation of the LDF is more like a risk management strategy, rather than a reparative tool. It, somehow, ignores the historical aspect of this concept and instead broadly focuses on the post-harm mechanism and economic aspects of it.
But, as this post explains, Paragraph 51 of Decision1/CP.21 does not negate the scope of climate reparation, completely. There are still possibilities for climate reparation discourse within the climate change negotiations, for example, by examining the legal ramifications of COP decisions or the decision-making process of the Paris Agreement or by interpreting the Paris Agreement in the light of the Vienna Convention on the Law of the Treaties (VCLT).
Firstly, while Paragraph 51 of Decision1/CP.21 excludes liability or compensation claims, the Paris Agreement does not include any such exclusion in the treaty text. Scholars have denied the legality of such COP decisions in the absence of any ‘hook’ in the parent treaty, e.g. the UNFCCC prohibiting compensation claims. COP decisions are not norm-creating international law. Rather such decisions are flexible and subject to change with the best available scientific data or change of situation at subsequent COPs.
Secondly, some scholars further consider that Paragraph 51 of Decision 1/CP.21 is non-applicable to the Paris Agreement as it was not adopted by a COP serving as the Meeting of the Parties to the Agreement (CMA). The decision-making process of the COP serving as the CMA is detailed in Article 16(2) of the Paris Agreement, which says that “Parties to the Convention that are not Parties to this Agreement may participate as observers in the proceedings of any session,” but “decisions under this Agreement shall be taken only by those that are Parties to this Agreement.” Paragraph 51 was part of Decision1/ CP.21, which adopted the Paris Agreement, and was not endorsed by any subsequent COP serving as the CMA.
Thirdly, one of the preambular paragraphs of the Paris Agreement notes “the importance for some of the concept of ‘climate justice’, when taking action to address climate change.” Article 8 of the Paris Agreement establishes L&D as one of the pillars of climate action. In this regard, action to address climate change includes L&D, along with mitigation and adaptation. This post stresses on this approach of the COP negotiators e.g. noting the importance for some of the concept of climate justice while adopting the text. It indicates the acceptance of the critical link between climate justice and effective response towards the negative impacts of climate change. ‘Climate justice’ calls for an inquiry into the root causes of climate change. It brings back the notion of ‘historical emissions of GHGs by developed countries. In this regard, Article 31(1) of the VCLT, 1969 is pertinent. It states that multilateral treaties “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their the context and in light of its object and purpose.” The preamble and the Annexes of a treaty do have significance in identifying the context for the purpose of a treaty interpretation, as per Article 31(2) of the VCLT, 1969. The Paris Agreement in its Preambular paragraphs and article 2(2) mention equity and common but differentiated responsibilities and respective capabilities (CBDR/RC) as guiding principles for its implementation. The word ‘equity’ itself asks for just, impartial, and fair treatment of different countries in distributing the burden and benefits arising from the negative impacts of climate change. Most significantly, Paragraph 51 does not attract any of the above-mentioned provisions of the Paris Agreement, except Article 8. Therefore, the implications of such provisions e.g. the preambular paragraphs and article 2(2) are equally applicable in setting the scene/ anchoring a normative basis for climate reparation discourse at future COPs.
Fourthly, on perusing the history of COP negotiations, it seems that Paragraph 51 of Decision1/CP.21 is a reflection of the States’ subjective understanding and, somehow, politically driven legal consensus based on their own interests. The reason for considering it as politically driven legal consensus is the countries’ strategic move, which shaped the development of COP negotiations and overall, the climate change regime, e.g. the negotiations for long-term climate finance at COP15 or the new collective quantified goals (NCQG) at COP29.
With the advancement of science, especially the Intergovernmental Panel on Climate Change’s 6th Assessment Report, the devastating impacts of climate change and its associated risks are well-known. The notion of climate-induced harm, and the need for finance to redress those, is embedded in the Preamble of the Paris Agreement. Therefore, this blog post suggests that Parties’ strategic move at future COPs should be objective while addressing climate-induced L&D.
Lastly, Paragraph 51 cannot nullify the implications of state responsibility for internationally wrongful acts or no-harm principle under customary international law in conceptualising claims for climate reparations. The advisory proceedings before the International Court of Justice (ICJ) on obligations of states in respect of climate change counted with the participation of 96 states and 11 international organisations and on 23rd July 2025, the Court delivered its advisory opinion. The ICJ reinforces the states’ binding obligations to prevent significant environmental harm and protect the climate system for present and future generations. In 2024, the International Tribunal for the Law of the Sea (ITLOS) also delivered its advisory opinion on climate change and international law. That opinion covers several important issues, for example, anthropogenic GHGs emissions as a form of pollution of the marine environment, state obligations to prevent, reduce and control that pollution, and the role of the Paris Agreement and the best available science. These observations of the Advisory Opinion have global implications in developing the growing consensus on state obligations regarding climate-induced risks. Furthermore, the German Regional Higher Court, while dismissing the lawsuit for low probability of harm to sustain a claim, sets significant precedent regarding corporate responsibility for climate-induced harm, in the LLIUYA v. RWE case.
Overall, it is clear that the embedded ambiguity in the international climate change negotiations regarding L&D keeps enough space for climate reparation discourse both at future COPs and beyond it through international or regional courts and tribunals. Let us see what holds in the future of global climate policy in terms of reparative claims.