Developing countries bid for climate change litigation

Scientists and academics in South Asia are calling on environmental groups to campaign for international laws which would enable developing countries and their citizens to claim compensation for damages caused by global warming.

They also demand tough enforcement of compliance rules in the Kyoto Protocol which would punish Canada and other rich countries for failure to achieve their binding targets for emissions reductions.

The conference organized by the Centre for Science and Environment was held in New Delhi earlier this month. It assembled leading environmental lawyers to discuss “Compliance and Liability in Climate Change.”

The participants were tasked with addressing tough questions. What will happen to its citizens if Solomon Islands sink in the seas in next 20 years? Who will pay for their migration?

A more immediate scenario was posed by Hafijul Islam Khan of the Bangladesh Environmental Lawyers Association. Exceptional storms in the Bay of Bengal lead to regular loss of life and livelihoods amongst local fishing communities. Scientists in Bangladesh have demonstrated how the rising sea temperature that provokes low pressure weather systems is caused by global warming.

Groups acting on behalf of the fishing communities have called on the Bangladesh government to initiate proceedings through established channels of international law. The conference debated what these channels might be and which countries might be deemed liable for damages.

The catalyst for the Delhi event is to be found in the small print of the outcome of last December’s UN climate conference. One clause in the Cancun agreements refers to the “loss and damage associated with the adverse effects of climate change, including impacts related to extreme weather events.”

This is an unprecedented acknowledgment by international negotiators of a causal relationship between climate-related losses and global warming. The Delhi participants were eager that this momentum should be sustained at the next major UN climate conference in Durban later this year.

They seek clarification of how damages can be ascribed to climate change and how responsibility for compensation should be shared amongst the industrialized countries with historical responsibility for harmful emissions. Tough compliance and liability mechanisms could then feature in any global climate change agreement.

Aware that the chances of a reaching such an agreement this year are viewed as poor, speakers at the Centre for Science and Environment event were not putting all their compensation eggs in the Durban basket. “Lawyers across the world must start using instruments already available to hold countries and governments liable,” said Joyeeta Gupta, professor of climate change law and policy at the Vrije Universiteit, Amsterdam.

There was particular interest in the “do no harm” principle which protects sovereign states from harmful environmental activities of their neighbors. This has been an established component of international environmental agreements since the Rio Earth Summit in 1992.

Other speakers were less sanguine about the prospects of proving the link between climate change and economic losses to the satisfaction of a court. For rich countries already constrained by a culture of litigation, this could be a step too far.

Many felt that the insurance principle could achieve a similar result, provided that costs were met by the historic emitter countries. For example, the $15 billion estimated cost of the 2010 Pakistan floods might have benefited from global climate risk insurance, rather than grudging humanitarian aid or protracted claims for damages.

Canada will be keeping a particularly close eye on this legal branch of climate activism. Its government signed up to the Kyoto Protocol, a legally binding treaty under which Canada committed to reduce its 1990 level of greenhouse gas emissions by 6% by 2012.

The country has not only failed to comply with its obligation but has in recent years blatantly abandoned the attempt. As a result, its emissions have risen by 30% over this first commitment period.

The Kyoto Protocol contains sanctions for non-compliance. Excess emissions must be rolled over into the second commitment period due to commence in 2012. Options for imposing even tougher future targets for offenders also exist within the treaty.

The prospect of these punitive measures largely explains why Canada and other offending countries want to dump the Kyoto Protocol in 2012 and start a new international climate change regime.

“This is why it was important to build up pressure on the negotiations to have a second commitment period,” said Lavanya Rajamani, professor at New Delhiā€™s Centre for Policy Research and adviser to the UN team in Cancun.

Allowing an amnesty to offenders such as Canada would undermine attempts to bind into law the latest round of pledges for emissions reductions.

The conference was very strong on legal analysis but less convincing on how to embed the conclusions into popular environmental campaigns. Sunita Narain, Director of the Centre for Science and Environment, stressed how important it was to ensure that “a fresh movement is launched so that we do not end with a bad deal at Durban or later.”

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this article was first published in the OneWorld section of Yahoo World News

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