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UK: Climate Victims Could Take U.S. to Court

by Andrew SimmsInternational Herald Tribune
August 7th, 2001

LONDON -- As the rich world keeps falling out over how to deal with global warming, exasperated poor countries may come to the conclusion that when all else fails, it's time go to court.

Poor countries suffer most from the increasingly unpredictable and extreme weather delivered by global warming, and the measures contained in the weakened Kyoto Protocol will offer little relief. As the climate keeps getting worse, what should they do?

One of the most basic principles in law is that if someone does you harm, two things should happen. First the aggressor should stop what he is doing, and second he should provide compensation for the harm he has caused.

Apply this principle to the turbulent theater of international relations in the era of climate change and a startling picture emerges.

The financial services initiative of the UN Environment Program estimates that the extra economic costs of disasters attributable to global warming are running at more than $300 billion annually. The best guess of development groups is that climate change could cost developing countries up to $9.3 trillion over the next 20 years, many times anticipated aid flows.

The insurance industry is facing the challenge of measuring the future cost of global warming. A former director of the insurance giant CGNU plotted a graph to see where climate change might bankrupt the global economy. He was quoted in the magazine Environmental Finance as saying that we have less than a lifetime left, just over half a century.

But it could be even worse than that. Paul Freeman, an economist, is quoted in the recent World Disasters Report 2001 as suggesting that the indirect and secondary impacts of disasters "may be twice the size of the direct losses." This is largely because many costs go uncounted in poor countries, where people cannot afford insurance - and how do you price the loss of skills, lives and confidence that follows disaster?

The prospects for poor countries look so bleak that we could be experiencing the end of development. Their terms of trade keep getting worse. Their share of aid nearly halved during the 1990s. The trickle of foreign direct investment they receive remains focused on natural resource exploitation. Getting the resources to tackle climate change seems impossible.

But there is an action of last resort. A group of threatened small island states, or a country like Bangladesh, could test the emerging international legal architecture with a novel nation-to-nation tort-like action. Greenhouse gas emissions in the United States are already top of the league, especially on a per capita basis, and keep rising. Perhaps it is time to take the United States to court.

This could happen in a number of ways. But, even if existing legal machinery proved ineffective, we could create a new international legal forum.

In a paper commissioned by the New Economics Foundation from Andrew Strauss, an American professor of international law, several possible avenues are highlighted that could test the water for genuine legal action.

The United Nations General Assembly could request an advisory opinion from the International Court of Justice. Countries committed to realistic action on cutting emissions might view the U.S. cheap energy policy as an insidious subsidy and implement anti-subsidy duties. The United States' legal remedy would then be to seek resolution of the dispute at the World Trade Organization, where multilateral attempts to use trade measures for environmental issues are viewed more positively than purely unilateral action.

There are also useful precedents. A now classic case that arose over fumes from a Canadian smelter plant polluting Washington state led, through arbitration, to the principle that states had a duty to protect other states, and that no state had the right to act in a way that might cause injury by fumes to another. U.S. greenhouse gas emissions will come under increasing scrutiny as a consequence of the UN International Law Commission's draft declaration on state responsibility.

The United States is the most obvious candidate, but all industrialized countries whose emissions are, per person, above a sustainable threshold should be looking over their shoulders.

They have developed on the back of our declining fossil fuel inheritance, just as climate change is destroying the chances of many poor countries. No international process is offering the developing world compensation commensurate with the scale of the problem.

The next message that Group of Eight heads of state receive from their poorer cousins may not be an invitation to a reception, or a plea for more aid. It may be much more abrupt: "We'll see you in court over global warming."

The writer, head of the global economy program at the New Economics Foundation, contributed this comment to the International Herald Tribune.

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