Abstract
ABSTRACT This contribution explores how climate-vulnerable states can effectively use the law to force action in order to address loss and damage from climate change, taking the Pacific Island state of Vanuatu as an example. Vanuatu made headlines when its Minister of Foreign Affairs, International Cooperation and External Trade, the Hon. Ralph Regenvanu, announced his government’s intention to explore legal action as a tool to address climate loss and damage suffered in Vanuatu. Our contribution places this announcement in the context of Vanuatu’s own experience with climate loss and damage, and the state’s ongoing efforts to secure compensation for loss and damage through the multilateral climate change regime. We then discuss the possibilities for legal action to seek redress for climate loss and damage, focusing on two types of action highlighted in Minister Regenvanu’s statement: action against states under international law, and action against fossil fuel companies under domestic law. After concluding that the issue of compensation for climate loss and damage is best addressed at the multilateral level, we offer proposals on how the two processes of litigation and negotiation could interact with each other and inspire more far-reaching action to address loss and damage from climate change. Key policy insights The review of the Warsaw International Mechanism for Loss and Damage offers an opportunity to start putting in place a facility for loss and damage finance under the auspices of the United Nations Framework Convention on Climate Change (UNFCCC). A climate damages tax (CDT) on fossil fuel companies seems a particularly promising option for mobilizing loss and damage finance. Such a CDT could be one revenue stream for a relevant loss and damage facility. Legal action – including cases against foreign states or fossil fuel companies – could bolster the position of climate-vulnerable states in multilateral negotiations on loss and damage finance.
Highlights
This contribution explores how climate-vulnerable states such as the Pacific Island state of Vanuatu can effectively use the law to forge action to address loss and damage
The US had wanted to exclude liability and compensation from the scope of the international climate change regime altogether (Calliari, 2018; Pekkarinen et al, 2019). Text reflecting this desire appeared in a ‘Draft Paris Outcome’ prepared by the French COP Presidency towards the end of the negotiations in Paris, which suggested a treaty provision on loss and damage of which the third and final paragraph would have read as follows: Parties shall enhance action and support, on a cooperative and facilitative basis, for addressing loss and damage associated with the adverse effects of climate change, and in a manner that does not involve or provide a basis for liability or compensation nor prejudice existing rights under international law. (UNFCCC, 2015b)
This paper is to identify the sources of financial support for addressing loss and damage as well as the modalities for accessing such support (UNFCCC, 2018b)
Summary
. Legal action – including cases against foreign states or fossil fuel companies – could bolster the position of climate-vulnerable states in multilateral negotiations on loss and damage finance. We refer to Vanuatu as a useful illustrative case that has lessons for other climate-vulnerable states seeking to catalyze meaningful global action on loss and damage, including compensation.
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