Let’s rewind a bit. In a loss and damage special edition of ECO last June, we supported LDC’s calls for compensation language in the text. However, in a laudable response to concerns expressed by the US and other developed countries about this language—and in a powerful display of unity—the G77 agreed to remove this language from the text.
That really should have been the end of the story. Rather than seeing it as the constructive bridging proposal that it was, the EU stonewalled; others stayed silent, while the US, having wanted to exclude the text entirely, is now pushing for specific language in the text to exclude compensation and liability.
Are there legal reasons to do this? ECO says no. The lack of reference to compensation in both the bridging proposal and compilation text means, well, no reference to compensation. The language, with its talk of exploration and approaches, is far from anything that could be relied on to establish liability on a legal basis.
So let’s be very clear—the rationale for this language is rooted in politics, not law. And it seems that other developed countries, like the EU and Australia, are standing silently behind it.
ECO’s message to these countries is clear: if you want to avoid liability for loss and damage, agree on strong mitigation, finance and tech transfer targets, so that your impact on the rest of the world is reduced. You must also support adaptation and loss and damage. You can show your goodwill by being constructive and engaging with what is on the table. Recognising responsibilities, including moral ones, is not a sign of weakness but a sign of true strength.