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Vulnerable Nations Could Take Industrialised Countries To Court, Say Lawyers

By Marianne de Nazareth

05 October, 2010

The first time I was exposed to Climate Change deliberations and negotiations was as a media fellow of the UNFCCC (United Nations Framework Convention on Climate Change ) at COP 14(Conference of the Parties) in Poznan, Poland, in 2008. To me, a journalist committed to sensitize my readers about the crisis of Climate Change and how it is in our hands to stem the tide, these negotiations flummoxed me. I could not understand how countries could sit together for hours and days ‘deliberating’ on the steps they planned to take in 2025 and 2050 when the steps that were imperative were now, This moment, immediate!

Then came chaotic COP 15 in Copenhagen and my heart sang as I left India for Copenhagen because I knew that Barack Obama, the new president of the richest economy in the world was coming to COP 15 and he would make things work. Till Copenhagen, the US refused to even acknowledge the crisis of Climate Change. Obama’s famous tag line that filled the hearts and minds of the world was “We can make a change!” so he would definitely go beyond the rhetoric I thought, at least for the sake of our environment and the world.

Instead COP15 was a screaming dissenting mass of humanity from all parts of the globe. There were apparently 45,000 accredited participants but only 12,000 could get in per day and on some days we stood outside in the freezing cold of Copenhagen in December, trying to get a chance to get in from 7am in the morning. Inside was no better with screaming NGO’s and countries walking out of negotiations on a whim. Countries like the Solomon Islands and Bangladesh revealed shockingly frightening stats where they could wake up to no country, being swallowed up by rising seas. The youth of those countries sat up on podiums, with heart rending witness accounts, trying to crack the hard exteriors of negotiators to wake up to the crisis. It was an appalling situation and my sympathies were totally with Yvo de Boer (the man is an impeccable gentleman) and the rest of the UNFCCC who were desperately trying to bash some semblance of an agreement out. Finally the world’s headlines screamed that COP15 had been a ‘failure’ but personally, I think Climate Change became headline making news rather than being relegated to the inner pages of the paper because of COP15.The common man who was unaware of the situation, sat up and began to take notice. To me – that was success.

COP 16 is around the corner and is planned to be held in Cancun, Mexico. Will there or won’t there be an agreement is anyone’s guess. Christiana Figueres has been appointed the new Executive Secretary and hopefully she is able to bring some sense into the proceedings. Again everything is in flux – no one can predict the outcome and most feel it’s going to be another Copenhagen. Just a huge waste of time, effort and money.

However now before the December meeting there is some interesting news put out by the Foundation for International Environmental Law and Development (FIELD) which makes heart- warming news if it can be slammed into place. Vulnerable nations could hasten international action on climate change by taking industrialised countries to court, say lawyers. Climate-vulnerable developing nations could use international law to break the current deadlock in the intergovernmental negotiations on climate change by taking industrialised nations to court, says a paper published on 4th Octoberby the Foundation for International Environmental Law and Development (FIELD).

The publication comes out as government officials from around the world gather in Tianjin, China for three days of negotiations under the United Nations Framework Convention on Climate Change (UNFCCC).

“A large part of the relevant legal literature suggests that the main polluting nations can be held responsible under international law for the harmful effects of their greenhouse-gas emissions,” says the paper’s author, lawyer Christoph Schwarte.

“As a result affected countries may have a substantive right to demand the cessation of a certain amount of emissions. In selected cases they also have the procedural means to pursue an inter-state litigation in an international judicial forum such as the International Court of Justice in The Hague.”

Reading Schwarte’s paper one can see his case for a possible legal argument to float this lawsuit and he explains the potential impacts of bringing a case like this before an international court or tribunal. While there are various substantive and procedural legal hurdles, under certain circumstances litigation under public international law would be possible and could become a bargaining platform in the negotiations.

“Today, a credible case for inter-state litigation on climate change can be made,” says Schwarte. “Developing country governments are understandably reluctant to challenge any of the big donor nations in an international court or tribunal. But this may change once the impacts of climate change become even more visible and an adequate agreement remains wanting.”

FIELD analyzed the current legal discourse and has summarized its findings in a longer working paper, which it has made available online as an open wiki document to allow legal academics and practitioners to comment on, criticise or strengthen the arguments.

“While international judicial organs are unlikely to issue hard hitting judgments, climate change litigation may help to create the political pressure and third-party guidance required to re-invigorate the international negotiations, within or outside the UNFCCC,” says Schwarte.

He too states that at the current rate of progress, a new legal framework and ambitious emission reductions look unlikely in the near-term. As a result billions of extra tons of carbon dioxide and other greenhouse gases will be released into the atmosphere, and many scientists warn that this means global temperatures could rise by 4 degrees Celsius by the end of the century.

Joy Hyvarinen, Director of FIELD says ‘Progress in the international climate change negotiations is nowhere near enough to reduce greenhouse gas emissions to a safe level. Something new is needed to push the negotiations forward. Perhaps an international court case could help bring new momentum to the negotiations.’ But it will have to be a fast track court case, or it will turn into another pointless exercise in this seemingly inconclusive debate on Climate Change.

( The writer is a media fellow with UNFCCC, UNEP and the Robert Bosch Stiftung and teaches PG Journalism in St. Joseph’s College & COMMITS, Bangalore)