Byron Blake | Hurricane Melissa: To sue or not to sue, that is the question

On October 28, 2025, Hurricane Melissa clobbered Jamaica with an uppercut, the ferocity of which has never been measured before. It was as straight as it was clean. There was no doubt about the source of the power. It was the 1.4 degrees Celsius higher than the pre-industrial level in the temperature of the Caribbean Sea at the time.

The cost of the damage is still being assessed. The figure of US$12.2 billion is a grave underestimate, and rebuilding to avoid being knocked cold by another such punch would significantly increase these costs. Whatever the final tally, the question facing Jamaica and Jamaicans is: Who will bear that cost? Jamaica, and indeed the world, knows who is responsible for the calamity. But will the known culprits who have vowed to continue, if not intensify their reckless behaviour, be made to pay?

The leader of the parliamentary opposition, as part of his budget presentation to Parliament spent much time arguing that Jamaica has a strong case and should pursue legal redress at the international level. He argued that the major emitters of greenhouse gases that warm the atmosphere should be made to pay. They will not pay voluntarily. The opposition leader proposed that Jamaica pursue legal action.

This position was buttressed by the fact that (i) the polluters were parties to the international agreement of more than 30 years to act to keep global temperature increases below 1.5 degrees Celsius, (ii) the International Court of Justice (ICJ) had issued a unanimous advisory opinion that, among other things, “States can be held liable for damages caused by climate change”. The “Court” in which Jamaica should pursue its interest was left for careful study and advice.

The Prime Minister, in his budget presentation, avoided the issue of who should pay for the horrendous damage inflicted by the Category 5 Hurricane Melissa. He highlighted two matters that are suggestive. First, he referenced, with a high degree of pride, the US $US$6.7 billion over three years unsolicited package offered to Jamaica within days of the hurricane and with based on the most preliminary assessment, by the International Monetary Fund (IMF), the World Bank, the Inter-American Development Bank (IDB), the Caribbean Development Bank (CDB), and the Development Bank of Latin America and the Caribbean (CAF). He gave no information on the terms or nature of the package.

Second, the Prime Minister posited a model of redevelopment for the major devastated areas that involves relocation and the development of new businesses and activities. Using Black River as a model, the area is presented as a tabula rasa, one on which any foreign architect or planner can dream. It reminds one of Brasilia, the capital of Brazil. That city, designed by architect Oscar Niemeyer and developed with Lucio Costa and Joaquim Cardosa on land commandeered by the Government in a vast uninhabited area of the country. The challenge for the Prime Minister’s dream plan is that much of the land in Black River, and its environs is privately owned. Again, the Prime Minister gave no details of how these developments would be funded.

It is fair to assume, given these statements, that any new development will be funded by Jamaica, either through borrowings, taxes, lands, foreign private investors, or individual Jamaican savings, including pension funds or other instruments. More painfully, property and other losses will be borne by the property owners, except for any portion covered and accepted by insurance.

The Gleaner, in its March 25 editorial supported a proposal advanced by the President of the Caribbean Court of Justice (CCJ) for a “corporate-financed climate injuries compensation fund that is underpinned by an international agreement”. It took the view that this proposal “would lessen the need for states – except in special and extreme circumstances – to engage in complex, potentially politically fraught direct court battles, which the Jamaican Government might prefer to avoid, rather than follow Opposition Leader Mark Golding’s advice of going to court to seek compensation for the devastation wrought (US$12.2 billion in damage and loss) by Hurricane Melissa last October.” We are sorry to say there is no easy way out. Hurricane Melissa is a special and extreme circumstance.

The editorial fails to recognise that Justice Anderson’s proposal implies negotiating with the same Governments to create the “accessible compensatory mechanism” and that it is the same big corporations that determine what their governments agree to in an international agreement. Further, it does not appreciate the time involved in negotiating an international agreement. In addition, it seems to be unaware that there are 3 negotiated and agreed funds, namely (a) the Mitigation Fund, (b) the Adaptation Fund, and (c) the Loss and Damage Fund, which would avoid legal actions. The major polluters have not provided the funding. Lastly, it does not recognise that it was small Vanuatu that took the issue to the ICJ. Others, including Jamaica, joined by making submissions. Other States will join an action by Jamaica.

Finally, the editorial and the Government are missing the most fundamental point raised by the Opposition, namely, what are the potential consequences of Jamaica not pursuing its legal right?

The most obvious is that Jamaica and Jamaicans will bear the full cost, less any voluntary external public or private donations, of the devastating Melissa, with the resultant loss of thousands of Jamaican businesses, increased national and personal debt, and migration.

Second is the precedent, which will not only affect Jamaica but all SIDS, in future catastrophic climate events, especially where the causation is not as obvious.

Third, the encouragement of reckless policies by the greedy rich in the certain knowledge that there will be no financial consequences for their selfish behaviour.

We remind those who seek the easy way out that the 1.5 degrees Celsius ceiling has been breached, and the United Nations has recently reported that the last 11 years have been the hottest on record.

Ambassador Byron Blake is former deputy permanent representative of Jamaica to the United Nations and former assistant secretary general of CARICOM. Send feedback to columns@gleanerjm.com