New Policy Brief: What the ICJ Opinion Means for Loss and Damage Finance

African Futures Lab and La Ruta del Clima (external link)’s new policy brief, produced with the support of Heinrich-Böll Stiftung (external link), examines what recent climate advisory opinions mean for the future of loss and damage finance. Its core argument is that loss and damage finance is a matter of legal obligation. The brief shows that it should be understood as part of the states’ existing obligations under international law, rather than as an issue left to political goodwill or solidarity and voluntary contributions.

At the center of the brief is the Fund for Responding to Loss and Damage. The analysis asks whether the Fund’s current structure, level of capitalization, access modalities, and safeguard systems are capable of meeting the legal standards now clarified by the International Court of Justice, the Inter-American Court of Human Rights, and the International Tribunal for the Law of the Sea. 

Climate harm is intensifying while the financial response remains far behind the scale of need. The brief shows that the Fund was established to channel support to countries facing climate-related harm, yet concerns remain about its scale, accessibility, operational model, and long-term adequacy. It also notes that by early February 2026, only a portion of pledged funding had been converted into signed contribution agreements, and an even smaller portion had actually been received.

The significance of this gap extends beyond politics and speaks directly to the law. The brief shows that the recent advisory opinions clarify states’ duties to cooperate in good faith, act with heightened due diligence in the face of foreseeable harm, and protect the rights of affected populations. In that context, underfunding, delayed operationalization, weak safeguards, and restrictive access pathways emerge as legally consequential shortcomings that can point to broader failures by states and institutions to uphold existing international obligations.

With the petition for a climate advisory opinion from the African Court of Human and Peoples’ Rights in full swing, the insights from this policy brief can also help strengthen the arguments of the Court in favor of finding a duty of African States to hold major polluters – states and corporate – to account for the climate crisis and climate harms on the continent.

For African Futures Lab, this matters beyond climate finance alone. It speaks to a wider political pattern in which powerful actors frame structural harm as negotiable, charitable, or too complex for accountability. We push back against that logic. We insist that climate injustice, and the financing needed to respond to it, must be understood through the language of accountability and reparations. 

The brief makes a clear legal and institutional intervention.

First, it shows that loss and damage finance flows from duties of cooperation and prevention, and from the obligation to provide reparation when harm occurs. The result is a much firmer legal basis for finance that is adequate, predictable, and commensurate with the scale of climate harm – breaking with the longstanding narrative of discretionary climate finance based on solidarity or aid.

Second, the brief shows that the standard of due diligence has become more demanding. States are expected to act in light of scientific certainty, foreseeable risk, and the recognized vulnerability of affected populations. That has direct implications for how climate finance is designed and delivered. A fund that is too slow, too limited, too bureaucratic, or too poorly resourced may undermine states’ ability to comply with the standard now articulated by the courts.

Third, the brief argues that climate finance must operate within a rights-based framework. Safeguards, access to information, participation, transparency, accountability, and grievance mechanisms form part of the legal infrastructure through which compliance is assessed. The brief therefore evaluates the Fund both by what it promises to disburse and by whether its operational model enables people and communities facing harm to access support in a timely, fair, and rights-respecting way.

The brief also gives sustained attention to gender. It argues that loss and damage carries gendered effects, and that formally neutral funding structures often miss differentiated harm and leave barriers to access intact. A gender-responsive approach therefore carries legal and material weight within any serious response to climate harm. 

The brief is practical as well as legal. It calls on governments to treat loss and damage finance as a legal obligation and to move beyond ad hoc, voluntary pledges toward funding that is predictable, adequate, and aligned with both responsibility and capacity. It calls on the Board of the Fund for Responding to Loss and Damage to accelerate long-term resource mobilization, strengthen safeguards, enable rapid and anticipatory finance, and create clearer access pathways for affected communities.

It also underlines the role of civil society and affected communities in documenting harm, exposing barriers, and monitoring whether institutions are delivering what international law requires. The brief further makes clear that, alongside climate institutions, international law continues to provide additional pathways through which affected communities and advocates can pursue accountability and remedy.