Between negotiations and litigation: Vanuatu’s perspective on loss and damage from climate change

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 actionincluding cases against foreign states or fossil fuel companiescould bolster the position of climate-vulnerable states in multilateral negotiations on loss and damage finance.

A TWAIL Perspective on Loss and Damage from Climate Change: Reflections from Indira Gandhi's Speech at Stockholm

“…In this regard, Article 9 of the Agreement prescribes a duty for developed countries to provide financial resources to assist developing countries; however, only for adaptation and mitigation efforts. 71 Furthermore, paragraph 52 of the decision accompanying the Paris Agreement states that "Article 8 of the Agreement does not involve or provide a basis for any liability and compensation", 72 undermining the efforts to integrate an equitable framework in the UNFCCC to compensate the disproportionate impacts of climate change in the Global South.…”

The domestic politics of climate change in the Pacific Islands

“…Pacific Islander voices are prominent on the international stage in climate change discussions calling for climate justice: the need for dominant economies to reduce carbon emissions, and protect the futures of the people who have contributed the least to the problem (Carter, 2021). Pacific Island nations have led the way in pursuing mechanisms for compensation for loss and damage as a consequence of climate change, both through UN negotiations and investigating possibilities under international law (Wewerinke‐Singh and Hinge Salili, 2020). This climate activism is by design outward‐focused, directed towards an international audience.…”

Climate Change Litigation

“…From the 2019 data set, these developments in the international climate regime appear to have given rise to a strengthening scholarly interest in legal remedies for climate-related impacts and loss and damage (Barnes 2019, Doelle & Seck 2020, Frohlich et al 2019, Pekkarinen et al 2019, Stocks 2019, Ternes 2019, Wewerinke-Singh 2019, Wewerinke-Singh & Salili 2019. In particular, the exclusion of "liability and compensation" from the ambit of the loss and damage provision in the Paris Agreement (Dec. 1/CP.21, para.…”