Climate-Change Related "Non-economic Loss and Damage" and the Limits of Law

This article examines the concept of “loss and damage” in a world where climate impacts are being experienced over multiple years increasingly at the community level and, as in the case of Mozambique’s lengthy recovery from Cyclone Idai, at a national level. As climate impacts increase in prevalence, policymakers are focusing greater attention on how to address the destruction and depletion from “natural” events, where the severity and frequency of these events have been exacerbated by human-fueled climate change. There is a growing recognition that these types of ongoing climate-related “problems of loss cannot be analytically or ethically assigned to the future.” Something needs to be done now-but the question is what can the legal system do to address loss and damage that cannot be valued financially? The first part of this article examines the growing international consensus about how States understand their obligations to address climate change related “loss and damage.” The second part of this Article will question whether the current conversation around “loss and damage” is a poor substitute for addressing non-economic losses where compensation is an inadequate proxy.

The third part of this Article examines how the international community proposes addressing non-compensable losses and describes how legal system attempt to institute remedies for otherwise non-compensable losses. The final part of this Article departs from a legalistic approach to loss and damage to focus instead on the role of “social grief” to address non-compensable losses and potentially avoid future losses.