The Permafrost Gap in the UNFCCC and Paris Agreement: Toward a New International Instrument and the Foundations of Permafrost Law

This working paper presents the first structured analysis in international environmental law doctrine of the normative gap relating to permafrost degradation within the UNFCCC and Paris Agreement framework. Permafrost covers approximately 14 million km² of land, stores an estimated 1,300–1,700 Gt of organic carbon — approximately twice the current atmospheric stock (Hugelius et al., 2014; Schuur et al., 2022; Permafrost Carbon Network, 2023) — and is degrading at an accelerating rate. Despite satisfying the legal definition of 'adverse effects of climate change' under Article 1(1) UNFCCC, no operative provision of the Convention or the Paris Agreement establishes obligations specific to the cryosphere. The paper identifies five dimensions of this gap — from Article 4(1)(d) UNFCCC to the NDC system — and argues for the optimal format of a new instrument: a Protocol to the UNFCCC on the Protection of Permafrost and Management of Degradation Risks, structured on the model of the BBNJ Agreement (2023) as a lex specialis for a diffuse global commons. The Protocol incorporates a monitoring mechanism through GTN-P, a failure to adapt liability standard (de lege ferenda), an Arctic Adaptation Fund, and protection of indigenous peoples' rights. The paper demonstrates how the proposed Protocol would operationalise the due diligence standard established by the ICJ Advisory Opinion of 23 July 2025 in respect of slow-onset cryospheric events. The paper thus lays the groundwork for an emerging field of specialised legal regulation — permafrost law — as a distinct branch of international environmental law.