Small island states are threatening legal action against larger, richer countries that default on their obligations under the Paris Agreement to deliver funds that will allow them to adapt to the effects of climate change and compensate for resulting loss and damage.

The action is expected to be brought by the just-formed Commission of Small Island Developing States on Climate Change and International Law.

Speaking Monday at a COP26 press conference in Glasgow, Scotland, to make the announcement, Gaston Browne and Kausea Natano, the respective prime ministers of founding member countries Antigua & Barbuda in the Caribbean and Tuvalu in the South Pacific, respectively, said the move is meant to disincentivise the burning of fossil fuels and is not meant as an act of aggression.

According to Browne, Small Island Developing States (SIDS) have been pushing to include the issue of loss and damage at various COPS, and it would appear that even at this COP the issue would not be seriously addressed.

“[But] we believe that this is a very important issue for small island states, and we are pursuing [it] legally on the basis that he who damages must provide restitution. In other words, the polluter must pay,” Browne said.

“This initiative is not intended to be an act of aggression. In fact, it is complementary to all the various efforts that we are utilising to address the issue of climate change. We have just brought in a legal component, which will help to address the issue of the abuse of fossil fuel energy,” he added.

Browne is the chair of the Alliance of Small Island States, the negotiating bloc of small island and low-lying coastal developing states, including Jamaica, in climate change and sustainable development negotiations and processes.

He described “the excess use” of fossil fuel energy is a tort on all of humanity, especially small island states that have disproportionately suffered the consequences of climate change.

Membership in the commission is open to all small island states.

The specifics of its workings are yet to be detailed, but it says requesting an advisory opinion from the International Tribunal for the Law of the Sea and petitioning the International Court of Justice (ICJ) are among the mechanisms it intends to pursue.

International lawyer and member of the Permanent Court of Arbitration at The Hague Professor Payam Akhavan has been named chair of its legal team.

For Prime Minister Natano, the commission is a welcome development as 40 per cent of the Tuvaluan capital alone goes underwater during high tide.

“That is a very strong reason why Tuvalu wants to use this commission to push forward a request to the International Tribunal for the Law of the Sea and also the ICJ,” Natano said.

“We are one of the countries in the Pacific region that is very much impacted by climate change and the support that we have provided to this commission is in our interest. We strongly support the establishment of this commission as an avenue for us to move forward our claims about the destruction of families and the change to our island countries,” Natano added.

“What we learn in the first year of public international law course,” said Professor Akhavan, “is that states should not do harm to others, and we are no longer in the stage where there’s a shred of doubt as to the consequence of continuing business as usual with vague commitments and empty promises.”

“[So] I think it’s very commendable that these two leaders are now inviting all small island states to join forces to mobilise the power and legitimacy of international law and courts and other institutions to change the conversation,” he said.

Director general of the Commonwealth Foundation and fellow international lawyer Dr Anne T Gallagher AO, who attended the press conference, hailed the commission as a “wonderful, welcome and overdue development” since “the existing rules of international law have not been utilised to their full extent to hold countries to account for actions that they know are causing damage and continue to cause damage”.

The SIDS Commission was launched on Sunday, the first day of the Glasgow climate conference referred to as COP26. The talks are being held at the Scottish Event Campus and are scheduled to run until November 12.