氣候損害的概念研究

The Concept of Damage in Climate Change Law

氣候變化所致損害即氣候損害只有描述性或框架性定義，尚無規範化的法律定義。發達成員和發展中成員對該概念的界定方向迥異。歷經多輪《聯合國氣候變化框架公約》談判，最終在華沙機制中奠定了以發達成員立場為主的氣候損害概念走向：將氣候損害納入風險防控的適應性管理之中，而不涉及任何小島嶼國家和發展中成員期望的責任和賠償。由於氣候歸因科學的快速發展，氣候損害的概念逐漸獲得倫理正當性。氣候訴訟在規範意義上運用氣候損害概念，具有明確的責任指向，最終形成了氣候損害概念的二元格局：在國際氣候法律談判中納入風險防控，而在氣候訴訟中追究賠償責任。目前，氣候訴訟主要是依據國內法提起的對溫室氣體排放大企業的侵權之訴，實則國際氣候損害訴訟因國際環境法中的國家自然資源主權平等和不傷害原則仍具有很大潛力。我國需要積極參與氣候損害概念的建構過程，以便提高在氣候全球治理規則形成中的地位，捍衛氣候主權和利益。

Damage in climate change law, i. e. climate damage, has only a descriptive or framework definition, and no normative legal definition yet. Developed and developing members have defined this concept in very different directions. The concept went through several rounds of negotiations among the parties to the United Nations Framework Convention on Climate Change (UNFCCC), and finally the Warsaw mechanism laid down a conceptual direction dominated by the position of developed members. climate damage is included in the adaptive management of risk prevention and control, without any liability and compensation expected by small island states and developing members. Due to the rapid development of climate attribution science, the concept of climate damage gradually gained ethical legitimacy. Climate litigation applied the concept of climate damage in a normative sense with a clear point of responsibility. This has resulted in a dichotomous pattern in which the concept of climate damage is incorporated into risk prevention and control in international climate law negotiations and liability is pursued in climate litigation. At present, climate litigation is mainly based on domestic law against large greenhouse gas emitting enterprises, but international climate damage litigation still has great potential due to the principle of sovereign equality and non-injury of national natural resources in international environmental law. China needs to actively participate in the process of constructing the concept of climate damage in order to improve its position in the formation of the rules of climate global governance and to defend climate sovereignty and interests.