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 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.