For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).
Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.” In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions. “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.
This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage
- The Fight for Parity
Prior to the Paris Agreement, the governing international climate agreements prioritized mitigation over adaptation and loss and damage. Adaptation was only a minor component of the United Nations Framework Convention on Climate Change (“UNFCCC”), which in Article 2 identified the Convention’s primary objective as “stabilizing greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.” Although the UNFCCC’s priority was mitigation, it acknowledged adaptation as a commitment in Article 4. The Kyoto Protocol continued to prioritize mitigation by establishing greenhouse gas emissions-reduction targets for developed countries.
In the five years leading up to COP21, developing countries prioritized achieving parity between adaptation and mitigation. The path to parity began in 2010 at COP16 in Cancun, Mexico when the Parties established the Cancun Adaptation Framework and the Adaptation Committee. Notably, in the Cancun Adaptation Framework the Parties agreed, “adaptation must be addressed with the same priority as mitigation.” The Parties advanced the Adaptation Framework at COP17 in Durban, South Africa in the decision by reaffirming the Adaptation Committee as “the overall advisory body to the Conference of the Parties on adaptation to the adverse effects of climate change.” Building on the creation of the Cancun Framework, Parties solidified the placement of loss and damage at COP19 by creating the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts (“WIM”) to serve as a loss and damage mechanism.
Parity culminated at COP20 in two ways: 1) with negotiations over the required elements for Parties to include in their intended nationally determined contributions (“INDCs”), which were to be submitted prior to COP21; and 2) in the focus of the new agreement. Predictably, developed countries maintained that the INDCs should focus solely on mitigation. Developing countries disagreed, and advocated to include adaptation, too. Ultimately, developing countries prevailed, as evidenced by the COP20 decision text, which “[i]nvites all Parties to consider communicating their undertakings in adaptation planning or consider including an adaptation component in their intended nationally determined contributions.” Parties also agreed that the new legal instrument to be developed at COP21 would address adaptation and mitigation “in a balanced manner.”
Negotiations on loss and damage yielded little resolution at COP20. The decision’s introduction “welcome[d] the progress made” toward implementing the WIM, but Parties did not reach a consensus on how or even whether loss and damage should appear in the Paris Agreement. The “Elements For a Draft Negotiating Text” in the draft decision’s Annex listed multiple options for the manners in which loss and damage may or may not be included in the Paris Agreement.
- Paris Agreement
At COP21, the Parties furthered parity by adopting the Paris Agreement, which treats mitigation, adaptation, and loss and damage more equally than ever before. Structurally, the Paris Agreement employs a combined top-down and bottom-up procedural approach, which inherently favors adaptation and loss and damage activities.
The Paris Agreement effectuates a country-driven process to achieve its goals. Adaptation by its very nature relies on country-driven processes. Because climate change affects individual countries in vastly different ways, appropriate adaptation actions differ among countries and consist of a broad array of specific actions.
Unlike the prior international climate treaties, the Paris Agreement’s process-focused articles on adaptation and loss and damage use differentiation to guide planning and policy implementation. Countries have differing vulnerabilities and abilities to respond to climate change. With differing dispositions toward climate change, it would be impractical to establish a global, quantitative adaptation or loss and damage goal. It would be equally impractical to delineate a uniform set of adaptation or loss and damage commitments. Relying on a bottom-up approach to address the location-specific areas of adaptation and loss and damage is most appropriate. Yet, this approach relies on a collective goal of support for these individual actions, which incorporates the top-down aspect of the combined approach.
This article looks beyond mitigation commitments and examines how the Paris Agreement’s adaptation and loss and damage provisions rely on differentiation to enable combined top-down and bottom-up approaches to Article 2’s global cooperation goals set by the UNFCCC and the COP. It describes the fundamental aspects of the Paris Agreement and the accompanying COP21 decision’s treatment of adaptation and loss and damage that allows parties to work toward a qualitative goal based on Parties’ unique vulnerabilities and abilities to respond to the impacts of climate change impacts.
Adaptation in the Paris Agreement
The Paris Agreement includes action on adaptation among the three goals that serve the Agreement’s purpose of “strengthen[ing] the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty.” Later in the Agreement, Article 7 operationalizes this goal by specifically addressing the adaptive efforts Parties should make. With fourteen paragraphs, the adaptation article is the third-largest provision in the Paris Agreement—behind only mitigation, at thirty, and transparency, at fifteen.
These paragraphs focus on the need to approach adaptation collectively, even though specific adaptation needs vary from country to country. Where the Agreement is less detailed, COP21 decision paragraphs 41–46 provide greater specificity. But language confined to the decision does not carry the same legal force as the binding Agreement. Language in the decision influences the manner in which Parties can interpret the Agreement and also provides guidance for carrying out the Agreement’s objectives. Yet, because of its non-binding nature, language in the decision will likely require more negotiation at future negotiation sessions.
- Global Goal & Challenge
Article 7 of the Paris Agreement begins broadly by framing the overarching “global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change.” The goal ultimately lies in promoting “sustainable development and ensuring an adequate adaptation response” in light of the temperature goal listed in Article 2 of the Agreement. The adequacy of a country’s adaptation response will vary according its vulnerabilities to climate change and its respective ability to adapt to those vulnerabilities.
Article 7 “recognize[s] that adaptation is a global challenge faced by all with local, subnational, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems.” Importantly, the provision recognizes the needs for global cooperation even though adaptation is highly location-specific.
The principal of common but differentiated responsibilities and respective capabilities, although not named explicitly, is relevant to this provision. Common but differentiated responsibilities and respective capabilities is an important international environmental law principal dating back to the 1992 Earth Summit that expresses “the need to evaluate responsibility for the remediation or mitigation of environmental degradation based on both historical contribution to a given environmental problem and present capabilities.” It was a fundamental component of the UNFCCC and the Kyoto Protocol. Developing countries advocated retaining this historical concept in the Paris Agreement, but were opposed by developed countries (historically the largest greenhouse gas emitters). Although common but differentiated responsibilities and respective capabilities is not expressly articulated in Article 7, the Paris Agreement does name it as a guiding principal in both the introduction and Article 2, which identifies the Paris Agreement’s overarching purpose and goals.
- International and National Cooperation
The Paris Agreement requires national cooperation from the Parties via national adaptation activities. Under Article 7.9, parties “shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions.” Such planning and implementation processes include actions related to adaptation actions, national adaptation plans, nationally determined prioritized actions, sustainability, and resilience building. Allowing parties to establish their own adaptation actions in whatever way they deem appropriate allows differentiation to guide the national adaptation planning and implementation process.
Tracking the Parties’ national adaptation activities may prove difficult, however, due to non-binding reporting measures. Under the Paris Agreement, Parties “should” submit adaptation communications to a public registry. The aspirational “should” does not require, but merely requests that Parties “submit and update periodically an adaptation communication.” Thus, it is unclear whether this attempt at transparency will become widespread among the Parties. Although almost all parties submitted intended nationally determined contributions prior to COP21, they did not report on adaptation in a consistent manner. Most developing countries included robust adaptation sections that detailed their needs and intended actions; however, most developed countries provided no adaptation information. Depending on Parties’ compliance and thoroughness with this request, adaptation communications could become a major topic of discussion at future COP events.
Article 7 designates help to developing countries in reaching their adaptation goals and requirements. Developing country parties are to receive “continuous and enhanced international support” for implementing adaptation plans, adaptation communications, and other measures. Importantly, the Article does not indicate from whom or from where the support will come. But when read with Article 9 on finance, it is clear that developed countries will be the source of support. Pursuant to Article 9.1, “[d]eveloped country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation.”
Planning and reviewing these national adaptation efforts will depend on each Party’s specific adaptation needs and ability to respond. Thus, differentiation is an important component of national activities.
- Adaptation Needs and Mitigation Co-benefits
Article 7.4 explains the co-benefits of adaptation and mitigation and stresses the importance of climate change adaptation, and in doing so further solidifies parity between adaptation and mitigation. The article states, “the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts.” Article 7 also refers to the financial aspects of adaptation. Specifically, that “greater adaptation needs can involve greater adaptation costs.”
Significantly, Article 7 elevates mitigation and adaptation actions to the purview of all Parties to the Paris Agreement. Although mitigation reduces future climate risks, and adaptation addresses current climate change impacts, it is possible to create synergies between the two and “implement[t] climate policy options in a more cost-effective way.” Article 7 can communicate to developed countries that increasing mitigation efforts can reduce the need and cost for future adaptation actions. To developing countries, the provision can acknowledge that implementing adequate adaptation measures can simultaneously affect mitigation.
An introductory decision paragraph highlights the “benefits of ambitious and early action, including major reductions in the cost of future mitigation and adaptation efforts.” Significantly, paragraph 52 of the decision states that developing countries’ financial support, which historically has been intended primarily for mitigation, should be allocated to “enhance the implementation of their policies, strategies, regulations and action plans and their climate change actions with respect to both mitigation and adaptation.” Unfortunately this financial instruction does not have the same binding effect as it would in the Agreement. Although developing countries secured language correlating adaptation and mitigation efforts in the Agreement, developed countries managed to incorporate the terms pertaining to finance, which ultimately enables these efforts, into the softer-law decision. Because of the non-binding placement of the language and the historical controversy surrounding allocation of funds, this financial-allocation language may be the subject of future negotiations.
The Adaptation Committee’s membership structure allows developing countries to be a driving force in adaptation governance. At COP17, the Parties decided that the Adaptation Committee will have sixteen members: two from each of the United Nations regional groups, one from a small island developing State (“SIDS”), one from a least developed country (“LDC”) Party, two from the Convention’s designated Annex I Parties (developed countries), and two from non-Annex I countries. Thus, with a majority of seats, developing countries, particularly SIDS and LDCs, can wield significant influence in developing adaptation planning processes and policy recommendations for consideration by the COPs. For example, the Paris Agreement requires developing country Parties’ adaptation efforts to be recognized according to modalities “to be adopted” later. COP 21 decision paragraph 41 delegates authority to the Adaptation Committee to develop these modalities.
The decision also delegates authority to the Adaptation Committee and other sub-bodies to work on adaptation finance matters, a priority area for developing countries. United Nations agencies and other financial institutions should communicate “climate-proofing and climate resilience measures” related to development assistance and climate finance programs. The Adaptation Committee, the Least Developed Countries Expert Group, and other relevant institutions should recommend means of mobilizing adaptation support to developing countries and review “the adequacy and effectiveness” of adaptation support at the first meeting of Paris Agreement parties. The decision also requests the Green Climate Fund, which pledged to support mitigation and adaptation equally, to expedite developing country support to assist their formulation and implementation of national adaptation plans.
Yet, because these governance aspects pertaining to the Adaptation Committee appear in the decision, they are subject to change in the future. For this reason, it is likely adaptation governance, particularly of financial matters, will be a significant topic of negotiation at future COPs.
Loss and Damage in the Paris Agreement
The Paris Agreement is the first international agreement to explicitly address loss and damage, which the UNFCCC Parties have historically treated as a component of adaptation. Adaptation and loss and damage function in tandem but are two distinct concepts. The World Resources Institute explains that loss and damage arises from the “reality that there are some climate change impacts that cannot be adapted to—impacts that are so severe that they leave in their wake permanent or significantly damaging effects.” Climate-related impacts associated with loss and damage include slow-onset events like ocean acidification, desertification, and sea level rise and also sudden extreme weather events like intense cyclones and flooding. These devastating impacts cause many types of losses, including those of lives, infrastructure, assets, ecosystems, and communities.
Loss and damage in the Paris Agreement was one of the most controversial topics at COP21. Developed and developing countries debated whether to place loss and damage in the decision or the Agreement and whether to organize it as a component of adaptation or as a distinct, free-standing article. Faced disproportionately with losses of this kind, LDC parties and SIDS prioritized securing a place for loss and damage in the Paris Agreement, where its provisions would carry the full force of law. Concerned with being held liable for the costs associated with loss and damage in financially strained developing countries, developed countries strove to preclude loss and damage from appearing in the Agreement. They preferred loss and damage to appear exclusively in the decision, where its text would be nonbinding and more of a political statement.
- Distinct Article
Not only does loss and damage have its own article in the Paris Agreement, it has one of average length. With five paragraphs, article 8 on loss and damage is an average-sized article in the Paris Agreement. These five paragraphs, along with decision paragraphs 47–51, focus mainly on acknowledging the importance of “minimizing and addressing loss and damage associated with the adverse effects of climate change” and establishing the preexisting Warsaw International Mechanism as the official international governance mechanism under the Paris Agreement. Article 8 states that Parties “should” act cooperatively to address and minimize loss and damage associated with climate change. It provides examples of “areas of cooperation and facilitation to enhance understanding, action, and support” with respect to loss and damage. These examples include “early warning systems; emergency preparedness; slow onset events” and also “comprehensive risk assessment and management; risk insurance facilities . . . and resilience of communities, livelihoods and ecosystems.”
A major area of contention between developed and developing country Parties was whether and how to address liability and compensation for loss and damage. Liability and compensation language appeared first in the Agreement, but developed countries succeeded at pressuring the Parties to move this language to the decision. With decision paragraph 51, Parties agreed that Article 8 “does not involve or prove a basis for any liability or compensation.” The United States predicated its cooperation with other key aspects of the overall Agreement on the inclusion of this provision. This provision was a victory for developed countries concerned with being held liable for their heavy past and current greenhouse gas emissions. Developing countries were relieved to prevent its inclusion in the Agreement. Technically, though highly unlikely, a subsequent COP decision could modify this paragraph.
Article 8 differs from the adaptation and mitigation articles in that neither it nor its related decisions even hint at financing. How the Parties will pay for damages resulting from extreme weather or slow onset events remains unclear. The manner in which Parties will finance loss and damage planning measures also remains unclear. While the creation of a distinct article on loss and damage in the Paris Agreement concludes the debate on its proper placement, gaps in its treatment will spur future debate on adaptation-financing measures.
- Governance Mechanism
The COP21 decision paragraphs cement the WIM’s governance role by requesting it carry out specific governance actions. The Executive Committee should: establish comprehensive risk management strategies; create a task force for displacement issues related to the adverse impacts of climate change; and prepare annual reports. Including language related to displacement was a pillar of developing countries’ loss and damage negotiation demands. Ideally for developing countries, however, the issue of displacement and migration would have been incorporated into the WIM’s major action areas listed in Article 8.4 of the agreement.
Through dedicated efforts and compromise, both developed and developing countries succeeded at certain aspects of the loss and damage negotiations. Developing countries achieved a freestanding loss and damage article in the Paris Agreement that instilled the WIM as a permanent governing institution to promote best methods of approaching loss and damage. Developed countries, spearheaded by the United States, managed to achieve zero-liability language in the decision.
The Parties will evaluate the WIM’s efforts at COP22 in Morocco. There, the Parties will likely engage in negotiations and discussions concerning loss and damage financing, the WIM’s governance, and displaced populations.
The Paris Agreement’s treatment of adaptation and loss and damage reflect the Parties’ willingness to allow differentiation to guide national policy planning and implementation and also to grant adaptation greater parity with mitigation. Unlike mitigation, which can reach quantitative greenhouse gas emissions goals, adaptation and loss and damage require location-based and process-focused goals. The Paris Agreement’s procedural method of relying on differentiation to enable a combined top-down and bottom-up approach caters to the unique location-specific nature of adaptation and loss and damage.
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 United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc No. 102-38, 1771 U.N.T.S. 107 [hereinafter UNFCCC].
 Id. at art. 4.1(e).
 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (1998).
 Chronology-Adaptation Committee, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/7518.php (last visited Apr. 10, 2016).
 U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Sixteenth Session, held in Cancun from 29 November to 10 December 2010, ¶ 2(b), U.N. Doc. FCCC/CP/2010/7/Add.1 (Mar. 15, 2011).
 Id. ¶ 92.
 Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2015).
 Lima Call for Climate Action Puts World on Track to Paris 2015, U.N. Framework Convention on Climate Change (Dec. 14, 2014), http://newsroom.unfccc.int/lima/lima-call-for-climate-action-puts-world-on-track-to-paris-2015/; At COP17, the Parties established the Ad Hoc Working Group on a Durban Platform for Enhanced Action and mandated that it develop “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties” by 2015. U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Seventeenth Session, Held in Durban from 28 November to 11 December 2011, 2, U.N. Doc. FCC/CP/2011/9/Add.1, ¶ 2, Decision 1/CP.17 (Mar. 15, 2012).
 Outcomes of the U.N. Climate Change Conference in Lima, Ctr. for Climate & Energy Sols., http://www.c2es.org/international/negotiations/cop-20-lima/summary (last visited Apr. 12, 2016). They also advocated including finance, technology, and capacity building as fundamental INDC elements. Id.
 U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twentieth Session, Held in Lima from 1 to 14 December 2014, ¶ 12, U.N. Doc. FCCC/CP/2014/10/Add.1 (Feb. 2, 2015).
 Id. ¶ 2.
 Id. at 2.
 Id. at 6.
 Paris Agreement, art. 2.1, Dec. 15, 2015, http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf. The Parties adopted the Paris Agreement on December 12, 2015, but it has not yet been ratified or entered into force. The signing period will open April 22, 2016 and it will enter into force once 55 countries accounting for at least 55% of global emissions deposit their ratification instruments. Historic Paris Agreement on Climate Change: 195 Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius, U.N. Framework Convention on Climate Change, http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/ (last visited Apr. 15, 2016).
 Chukwumerije Okereke et al., Options for Adaptation and Loss and Damage in a 2015 Climate Agreement 6 (unpublished) (Nov. 2014) (on file with the World Res. Inst.), http://act2015.org/ACT_2015_Options_for_Adaptation_and_Loss_&_Damage.pdf (last visited Apr. 12, 2016).
 Paris Agreement, supra note 17, at art. 7.1.
 Id. at art. 7.2.
 Vito De Lucia, The Encyclopedia of the Earth, Common But Differentiated Responsibility (July 27, 2007, 11:01 AM), http://www.eoearth.org/view/article/151320/.
 Paris Agreement, supra note 17, at art. 7.6.
 Id. at 7.8.
 Id. at art. 7.9.
 Id. at art. 7.12.
 Id. at art. 7.11.
 Kathleen Mogelgaard & Heather McGray, With New Climate Plans, Adaptation Is No Longer an Overlooked Issue, World Res. Inst. (Nov. 24, 2015), http://www.wri.org/blog/2015/11/new-climate-plans-adaptation-no-longer-overlooked-issue.
 Paris Agreement, supra note 17, at art. 7.13.
 Id. at 9.1.
 Id. at art. 7.4.
 Synergies Between Adaptation and Mitigation, weAdapt, https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation (last visited Apr. 12, 2016).
 The Mitigation of Climate Change in Agriculture (MICA) Global Program, weAdapt (Dec. 14, 2012, 2:29 PM), https://www.weadapt.org/knowledge-base/synergies-between-adaptation-and-mitigation/mitigation-of-climate-change-in-agriculture-micca. Studies confirm that co-benefits of adaptation and mitigation exist “in the areas of low carbon development, climate-smart agriculture, water-energy-land nexus, bioenergy, [and] blue carbon.” Id.
 U.N. Framework Convention on Climate Change, Report of the Conference of the Parties on Its Twenty-First Session, Held in Paris from 30 November to 13 December 2015 2, U.N. Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016) [hereinafter COP21 decision].
 Id. at 8.
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 Members of the Adaptation Committee, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6944.php (last visited Apr. 12, 2016).
 Paris Agreement, supra note 17, at art 7.3.
 COP 21 decision, supra note 37, at ¶ 43.
 Id. ¶ 45.
 Id. ¶ 46.
 Kathleen Mogelgaard & Heather McGray, When Adaptation Is Not Enough: Paris Agreement Recognizes “Loss and Damage”, World Res. Inst. (Dec. 24, 2015), http://www.wri.org/blog/2015/12/when-adaptation-not-enough-paris-agreement-recognizes-“loss-and-damage”.
 Jorge Vinuales, The Paris Climate Agreement: An Initial Examination (Part II of III), Eur. Journal of Int’l Law Blog (Feb. 8, 2016), http://www.ejiltalk.org/the-paris-climate-agreement-an-initial-examination-part-ii-of-iii/.
 Mogelgaard, supra note 46.
 Article 8 receives a comparable amount of treatment as Article 10 on technology development and transfer and Art. 11 on capacity building.
 Paris Agreement, supra note 17, at art. 8.1.
 Id. at art. 8.3.
 Id. at 8.4.
 Id. at art. 8.4.
 Ben Adler, Why the Words “Loss and Damage” Are Causing Such a Fuss at the Paris Climate Talks, Vox Energy & Env’t, http://www.vox.com/2015/12/9/9871800/paris-cop21-climate-loss-damage (last updated on Dec. 9, 2015, 9:00 AM).
 COP21 decision, supra note 37, at ¶ 51.
 Paris Agreement, supra note 17, at art. 8.2.
 Chronology – Loss and Damage, U.N. Framework Convention on Climate Change, http://unfccc.int/adaptation/workstreams/loss_and_damage/items/7545.php (last visited Apr. 12, 2016).
 Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, U.N. Framework Convention on Climate Change http://unfccc.int/adaptation/workstreams/loss_and_damage/items/8134.php (last visited Apr. 12, 2016).
 Paris Agreement, supra note 17, at art. 8.2.
 COP21 decision, supra note 37, at ¶¶ 48–50.
 Saleemul Huq & Roger-Mark De Souza, Not Fully Lost and Damaged: How Loss and Damage Fared in the Paris Agreement, Wilson Ct.r (Dec. 22, 2015), https://www.wilsoncenter.org/article/not-fully-lost-and-damaged-how-loss-and-damage-fared-the-paris-agreement.