340 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 35:331 obligation of states with respect to climate change.53 Labeled by one lawyer as a “diplomatic feat of Herculean proportions,” the General Assembly’s vote showcased small island nations’ critical role in demanding climate action from much wealthier and more powerful nations. It also reveals the employment of innovative legal strategies to highlight the plight of developing nations and small island nations. To be sure, it is too early to predict what the ICJ opinion will say and it remains to be seen how influential this opinion will be on the Framework Convention, Security Council, and domestic climate law. Still, the General Assembly’s request for an advisory opinion makes it likely that a leading international tribunal will make a legal determination on loss and damage and related climate justice issues. B. LOSS AND DAMAGE: PROMISING BEGINNINGS MARRED BY FAILED PROMISES Our current pathway favors incremental adaptation and mitigation progress, an approach that will not suffice to save small island nations. As climate science has drawn closer linkages between GHG emissions and the impacts of climate change, climate negotiations have gone beyond mitigation and adaptation to address a third pillar: loss and damage. Loss and damage can be loosely defined as the adverse impacts of climate change that occur despite efforts to mitigate and adapt to climate change.54 “Loss” encompasses the irrevocable loss of human lives, culture, and biodiversity. This can include both an economic and noneconomic component, such as the loss of cultural heritage. “Damage” refers to negative climate impacts where repair or restoration is still possible.55 Loss and damage begins where the limits to adaptation end. Adaptation is constrained by technological and resource limitations.56 A new, legally-binding loss and damage regime would address harms that occur despite best efforts to reduce GHG emissions and adapt to climate change’s effects. As Professor Maxine Burkett explains: [C]ivil-engineering plans typical of adaptation projects funded by the undercapitalized Adaptation and Green Climate Funds will not suffice. At some point, the sea walls of the Maldives and Tuvalu will fail so consistently and 53. G.A. Res 12,497 U.N. GAOR, 77th Sess. (Mar. 29, 2023) (“Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change”). 54. Thomas et al., Climate Change and Small Island Developing States, 45 ANN. REV. ENV’T. RES. 1, 16 (2020) (stating “climate-induced migration can be viewed as a response to loss and damage that would be incurred after limits to adaptation have been surpassed”). 55. Maxine Burkett, Loss and Damage, 4 CLIMATE LAW 119, 120–21 (2014). Despite these definitions, there is still considerable disagreement on what loss and damage means when funding is operationalized. For a related solution to this problem, see Rosemary Lyster, A Fossil Fuel-Funded Climate Disaster Response Fund under the Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, 4 TRANSNAT’L ENV’T LAW 125 (2015). See also RESEARCH HANDBOOK ON CLIMATE CHANGE LAW AND LOSS AND DAMAGE (Meinhard Doelle & Sara L. Seck eds., 2021). 56. Maxine Burkett, supra note 55, at 122-23. Electronic copy available at: https://ssrn.com/abstract=4223806