Next week’s seventh meeting of the board of the Fund for Responding to Loss and Damage (FRLD) in Manila presents a critical moment for a course correction.
The fund’s establishment in 2022 was hailed by climate justice advocates. However, three years later, its operations and future are hampered by insufficient attention to human rights and the communities most impacted, as well as a severe lack of resources. Currently, less than 0,1% of the estimated funding needs are in the FRLD’s bank account.
Key items on the Manila meeting’s agenda, including the fund’s start-up phase and its long-awaited resource mobilization strategy, could change this. It’s also the first meeting since the International Court of Justice (ICJ)’s historic advisory opinion on the legal obligations of states in respect of climate change.
This authoritative legal opinion clarifies states’ loss and damage obligations and has significant implications for ensuring that the fund will effectively deliver resources at scale directly to communities on the frontlines of the climate crisis, in line with their right to remedy.
A long-awaited clarification
The advisory opinion comes with unparalleled legitimacy: all countries agreed through a consensus resolution by the UN General Assembly to ask the ICJ for guidance on their international legal obligations in the context of climate change.
Decades of foot-dragging and deliberate blockage under the climate regime have led to rapidly escalating climate harm. It’s therefore no surprise that the most climate-vulnerable countries, like small island developing states and their communities, led the charge on taking climate change up to the world’s highest court.
The importance of this ruling – an authoritative interpretation of binding international law – cannot be understated, particularly for loss and damage.
Legal obligation to remedy climate harm
The court strongly affirmed that climate harm – also known as loss and damage – is a reality that requires dedicated responses and finance as a matter of obligations, including within the climate regime. This is especially true for those most responsible for causing the crisis, in line with long-established principles of equity and Common But Differentiated Responsibilities.
The ICJ also affirmed loud and clear that human rights law is critical to interpreting and addressing loss and damage: not only is the climate crisis harming a wide range of fundamental human rights, but rights-based principles and standards are also fundamental to loss and damage responses.
Additionally, by looking at international law holistically, the court endorsed what grassroots movements have long known: frontline communities and countries have a right to full reparation.
The court confirmed the basic principle of international law that those who breach their legal obligations, including under the climate treaties, have a duty to repair the harm they cause. In explicitly recognizing legal consequences for “peoples and individuals”, the ICJ reaffirmed communities as direct rights-holders for such reparations.
How the fund should respond to ICJ decision
As board members consider the fund’s future, they must ensure that loss and damage responses are fully consistent with international law. This will be essential to overcoming longstanding impasses and to building an institution that is founded on justice.
First and foremost, states have a duty to provide resources at the scale of loss and damage needs, based on their Common But Differentiated Responsibilities. This has important implications for the upcoming resource mobilization strategy for the FRLD, both in terms of the scale that it needs to aim for – as needs are in the hundreds of billions – and how to reach it.
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The board must move beyond voluntary contributions and periodic pledging conferences to clarifying differentiated obligations, with concrete pathways to make polluters pay and hold big polluters accountable.
Second, all those harmed by the climate crisis have a right to remedy – not charitable assistance. This has critical implications for decisions on access to the fund.
Bureaucratic rules and the limitations imposed by the World Bank as the FRLD’s trustee cannot stand in the way of all climate-vulnerable developing countries having direct access to the fund. Moreover, as the ICJ affirmed, the legal consequences of states’ wrongful acts extend to peoples and individuals, making direct community access a matter of right rather than discretion.
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Third, international human rights law must guide loss and damage responses as a legal requirement, not as best practice. The fund’s start-up phase and long-term operations should recognize that losses and damages are, first and foremost, human rights violations and adjust accordingly.
Loss and damage needs assessments must explicitly include human rights criteria and non-economic loss and damage. The fund must urgently develop policies and do-no-harm frameworks that ensure inclusive, participatory, and accountable operations that protect ecosystems and human rights, including Indigenous Peoples’ rights.
‘There is no going back’
The momentum for climate justice needs to continue after the fund’s board meeting. At COP30 in Belém, Brazil, states are expected to finally deliver action consistent with their legal obligations on mitigation, adaptation and loss and damage.
Beyond COP30, the Pacific island nation of Vanuatu has announced its push for a new UN General Assembly resolution to endorse and operationalize the ICJ’s advisory opinion.
All states have agreed that guidance from the ICJ on legal climate obligations was necessary. Now, they must deliver urgent, tangible solutions for the communities most affected by the climate crisis. The legal landscape has shifted – there is no going back to a world where climate accountability can be evaded.
Liane Schalatek is associate director of the Heinrich-Böll-Stiftung in Washington DC. Lien Vandamme is a senior campaigner at the Center for International Environmental Law (CIEL). Monica Iyer is an assistant professor at the Georgia State University College of Law. Rajib Ghosal is an international consultant working on climate justice and development. Teo Ormond-Skeaping is a coordinator of advocacy and outreach at the Loss and Damage Collaboration. Isatis M. Cintron is a climate justice postdoctoral researcher and director of the ACE Observatory.
