Just days before Category 5 Cyclone Pam slammed into the island nation of Vanuatu, Margaretha Wewerinke landed at the University of South Pacific to take up her post as a law professor specializing in human-rights approaches to climate change.
The cyclone last March levelled thousands of homes and destroyed virtually the entire food crop of the subsistence farmers. With an average income of less than $3,500 (U.S.), Vanuatu was hard-pressed to address the devastation caused last spring by Pam and it was forced to rely heavily on foreign aid.
People across the Pacific who are watching their nations being battered by storms and swallowed by the sea are building the case for tobacco-style lawsuits that would hold developed countries and their fossil-fuel companies legally liable for damages caused by global warming.
As a member of Vanuatu's delegation to the Paris climate summit and an environmental lawyer, Dutch-born Ms. Wewerinke is a standard-bearer for that movement.
Negotiators from the developing world – especially small island states – are battling to include pledges of financial support for "loss and damage" in whatever agreement is concluded at the end of this week. With Canadian backing, the United States is adamant that any such reference explicitly exclude legalistic principles of "liability and compensation" which would preclude one state suing another.
But activists are now pursuing other legal avenues to seek compensation for damages related to climate change. They argue the refusal of countries and companies to dramatically reduce their carbon emissions – when there is clear evidence of resulting loss of life and property – is a violation of human rights.
In the Philippines, the country's Commission on Human Rights has agreed to investigate a complaint launched on behalf of victims of Typhoon Haiyan – which in 2013 killed 6,000 people and caused $13-billion in damages. The complaint seeks redress against the "carbon majors" – the world's largest coal and oil companies, including Exxon Mobil Corp., Saudi Aramco, Royal Dutch Shell PLC and Coal India Ltd.
At the news conference in Paris, Ms. Wewerinke said representatives from Pacific island nations are considering launching their own action. She worked with West Coast Environmental Law, a Vancouver-based non-governmental organization, to produce a model "climate compensation act" which could be adopted by countries to facilitate lawsuits.
The lawyers acknowledge they face an uphill battle, but they point to successful suits against tobacco companies a generation ago as precedent.
"The barriers to suing fossil-fuel polluters are not legal, they are political," Andrew Gage, senior counsel at West Coast Law, said in Paris. "Either through their own laws or through adopting laws like the Climate Compensation Act, countries can make it clear fossil-fuel polluters are legally responsible for the harm they cause."
The disagreement over "loss and damage" in the negotiations is just one illustration of the fundamental fault line that has to be bridged in the next two days if there is to be a binding, ambitious and verifiable agreement, as Canada's Environment Minister Catherine McKenna has urged.
Developing countries – including large emerging economies such as China and India – insist they should have less onerous obligations than rich countries, and they are demanding the developed world assume the lion's share of responsibility for the looming climate crisis.
French Foreign Minister Laurent Fabius released a draft text on Wednesday that highlighted the challenge, though it has been pared down to 29 pages from 43 last Friday, with 75 per cent of the disagreements eliminated. He said negotiators had considerable work ahead of them to close the remaining gap by the weekend.
U.S. Secretary of State John Kerry urged his colleagues to conclude an ambitious deal.
"Unless the global community takes bold steps to transition away from a high-carbon economy, we are facing unthinkable harm to our habitat, our infrastructure, our food production, our water supply and potentially to life itself," he said in a speech.
Despite Mr. Kerry's rhetorical push, some environmentalists accused the American side of advocating a deal that falls short of what is required to avert the disaster for those most vulnerable.
For leaders from Pacific island and Caribbean countries, the Paris accord represents their best hope to ward off what they characterize as an existential threat.
The draft agreement represents "a very good inroad into a very, very dark jungle," said Prime Minister Enele Sopoaga of the Pacific island nation of Tuvalu. But even a solid agreement won't prevent further damage to his island nation, where 45 per cent of the population of 10,000 was displaced by Cyclone Pam.
He said climate change is a human-rights issue for his people.
"We need to assure security and protection of the people of Tuvalu; that's all that we're asking," Mr. Sopoaga said Wednesday.