Interpreting the UNFCCC’s provisions on ‘mitigation’ and ‘adaptation’ in light of the Paris Agreement’s provision on ‘loss and damage’

Abstract

This article examines how the introduction of a specific provision on loss and damage (L&D) in the Paris Agreement affects the construction of provisions on ‘mitigation’ and ‘adaptation’ as established within the treaty framework of the United Nations Framework Convention on Climate Change (UNFCCC). It shows that the establishment of L&D at treaty level has created a legal basis for finding ‘responsibility’ for adverse consequences that can be attributed to the failure to fulfil UNFCCC obligations as laid down in the provisions on mitigation and adaptation. This, it argues, strengthens the legal basis for pursuing remedies aimed at reparation for these consequences, such as the establishment of climate change funds and of insurance solutions. Moreover, it demonstrates that prior to establishing L&D at treaty level, L&D issues and measures (such as the Warsaw International Mechanism) were treated in legal terms within the framework of adaptation. However, with the adoption of the Paris Agreement, L&D has been given its own legal basis and therefore L&D issues and measures must henceforth be treated within this new framework. Key policy insights The provisions on mitigation and adaptation in the UNFCCC may be re-interpreted in light of Article 8 of the Paris Agreement so as to instil a legal responsibility in the UNFCCC provisions on mitigation and adaptation. The limits of ‘adaptation’ must be re-defined in light of the adoption of the Paris Agreement and the introduction of L&D as a third pillar of international climate change law.