The Development of a Quasi-Loss and Damage Compensatory System for Developing Countries through Climate Litigation

The Paris Agreement of COP21 distinctly recognises the issue of climate change loss and damage with Article 8 in the main text and Paragraph 51 in its decision text. The Parties at COP22 in Marrakesh 2016 approved a strategic workstream for the Warsaw International Mechanism for Loss and Damage’s Executive Committee to guide the implementation of the Mechanism’s function of enhancing action and support (including finance, technology and capacity-building) to address loss and damage, with the next progress review in 2019. International negotiations on loss and damage did not see considerable progress at COP23 in Bonn. Financial interests still took priority at COP24 to halt accounting mechanisms. COP25 also failed with a lack of consensus amongst post-2020 tasks such as art 6. With reference to some evolving legal principles in other related fields of international law and civil environment cases in Germany, United States, India and China, this paper will examine possible options to prove causal links between the economic activities of developed countries and loss and damage associated with the impact of climate change for developing countries against the backdrop of the Sendai Framework. An alternative standard of proof for climate change loss and damage-related litigations would culminate into a quasi-loss-and-damage compensatory response for countries more vulnerable to the impact of climate change. It could support the implementation and amplify the effectiveness of the Sendai Framework for Disaster Risk Reduction.