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
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
- 100 Climate Justice Initiative