2023]
SPECTER OF STATELESSNESS
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completely that communities and countries will need compensation for rehabilitation from losses incurred.57
Indeed, the traditional climate adaptation tools—to include the Green Climate
Fund and Adaptation Fund—lack both the mandate and resources to operationalize a loss and damage regime.58
Moreover, international adaptation financing continues to fall short. Wealthier,
“Global North” nations once promised to fund $100 billion/year in adaptation
funding to developing nations in the Global South.59 By one estimate, just $79.8
billion has been provided to date, much of it in the form of loans.60 The Glasgow
Climate Pact laments this shortfall, “not[ing] with deep regret that the goal of
developed country Parties to mobilize jointly USD 100 billion per year by 2020 . . .
has not yet been met.”61 In response, island nations have seized on the gap between
easy-to-make pledges and follow-on action.
In the face of funding shortfalls and adaptation challenges, island nations have
sought a permanent loss and damage mechanism, consistently bringing their
concerns to the Framework Convention COPs.62 In a promising sign, the 2015
Paris Climate Agreement identified possible areas for cooperation on loss and
damage.63 This includes emergency preparedness, slow onset events, and community resilience. It states:
Parties recognize the importance of averting, minimizing and addressing loss
and damage associated with the adverse effects of climate change, including
extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.64
While adaptation funding has faltered, small island nations have pressed
wealthier nations to fund a “loss and damage” facility that will compensate developing nations for harm suffered.65 The loss and damage dream has run headfirst
into political realities: wealthier nations are reluctant to admit past wrongdoing
and fund anything that may be perceived as climate reparations.66 Further, wealthy nations are reluctant to establish a precedent for accepting liability for past
57. Id.
58. Jessica Omkuti et al., The green climate fund and its shortcomings in local delivery of adaptation
finance, 22 CLIMATE POLICY 1225 (2022), available at https://perma.cc/WSR3-W3PH.
59. Nevitt, supra note 34.
60. Salzman, supra note 33, at 5.
61. Glasgow Climate Pact art. 26 (Nov. 13, 2021).
62. U.N. Office of the High Representative for the Least Developed Countries, Landlocked
Developing Countries, and Small Island Developing States (UN-OHRLLS), Loss and Damage a Major
Demand for Island Nations at COP26, (Nov. 4, 2021), https://perma.cc/M8VJ-LML8.
63. Paris Agreement to the United Nations Framework Convention on Climate Change art. 8(1), Dec.
12, 2015, T.I.A.S. No. 16–1104.
64. Id.
65. See, e.g., Nevitt, supra note 34.
66. For an outstanding discussion of climate reparations, see Maxine Burkett, Climate Reparations,
10 MELB. J. OF INT’L L. 509–542 (2009).
Electronic copy available at: https://ssrn.com/abstract=4223806