Bangladesh & A Synopsis of the International Legal Process to Climate Change

- Barrister Susmita Rahman

climate-change102

Published On - July 3, 2014 [Vol. 1, Jul - Dec, 2014]

“Climate is what we expect, weather is what we get”-Mark Twain, the American writer.

Global warming is one of the most unrelenting threat and concern of the world today, and the essence of International law and institutions. Climate change is occurred in two ways – one is by nature and the other is man-made. Man-made global warming is happening as human produce greenhouse gases (GHG) by burning coal, oil, and natural gas to generate energy for power, heat, industry, and transportation. To reduce GHG emissions it is indispensable to switch from fossil-fuel-based power to alternative sources of energy, such as nuclear, solar, and wind, and to achieve greater energy efficiency by developing new technologies.

The impediment with the international legal process in the perspective of climate change is surrounded by the difficulty of assessing and responding to the global environmental risks, determining the degree of scientific certainty needed in assessing the probability that global warming is in fact happening and pinpointing and evaluating the expected impacts of global warming. One more obstacle is the difficulty of defining and determining concepts of liability, responsibility and illegality for ensuring adequate remedy for the assessable harmful impacts of global warming.

The more action is delayed the more the levels of greenhouse gases will go uncontrolled, exposing the earth to greater levels of radiation. Hence, the more developed states or countries will have to eliminate its wasteful lifestyles to reduce greenhouse gases to ensure sustainable development and the developing countries will have to avoid adopting wasteful lifestyles to promote a sustainable environmental development for a greener world. Among the developing countries the low-lying coastal countries have special reason to be concerned about to use the international legal process to protect their interests against global warming. As a consequence of global warming some of the low-lying countries will lose significant territory while others could literally disappear under the rising sea-level.

The low-lying developing countries have at least two separate inter-related opportunities to use the international legal process in order to protect their territory and population from sea-level rise and to ensure their full and equitable participation in the global warming debate: 1) judicial process by way of a contentious action in the International Court of Justice for an opinion from the Court on the governing principles in international law against the states responsible for and other consequences of global warming; 2) To draft an international convention on global warming as an alternative model to use in the negotiations with the international community.

Bangladesh is the most vulnerable country which scientists agree is likely to suffer dire consequences of climate change as a low-lying country. The slight changes of global temperatures can lead Bangladesh to face widespread disasters in the form of rising sea levels, extreme weather events like cyclones – “Sidor” of 2007 and “Ayla” of 2009, famines, water shortages and other secondary effects. We need to change our action right now to address climate change politically, economically, especially legally to achieve a carbon neutral country and world.

Workshop Report of the Inter-Governmental Panel on the science of Climate Change (IPCC) held in Washington D.C. specifies that due to melting of glacier water sea-level will rise 25 to 40 centimeters by 2050 (perhaps as much as 2 meters by 2100) and a one-meter rise in sea-level would destroy a large portion of Bangladesh. The report also says that a two-meter rise would inundate its capital, Dhaka, as well as Shanghai and Lagos-the largest cities of China and Nigeria-and 20% of the populated area and farmland of Egypt. In 2007 the IPCC estimated that greenhouse gas emissions would need to be cut by at least 80% by 2050 to avoid the worst impacts of climate change.

The Kyoto Protocol on climate change is an international agreement linked to the United Nations Framework Convention on Climate Change (UNFCCC), asked its signatory countries to commit to the target to limit global warming to 2 degree Celsius. Although some of the countries like Malaysia, UK committed to reducing their greenhouse gas (GHG) emissions in line with this target, most of the countries had missed their targets by 2012 and this is the pitfall of the protocol. The Protocol places a heavier burden on the developed nations under the principle of “common but differentiated responsibilities” recognizing that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity.

The developed countries are the enormous emitters of GHG, but least developed countries like Bangladesh feel the impact of climate change proportionately more than any other developed country. Scientific research shows that the adverse climate has caused loss of lives and livelihoods of coastal people of Bangladesh but the law has failed to protect the climate affected people. However, the Campaign for Sustainable Rural Livelihoods (CSRL) has appealed to the government of Bangladesh to start legal proceedings against industrialized countries for the losses caused in the recent storm.

The entire responsibility is attributable to the industrialized and developed countries in terms of pollution and proportional impact to climate change. The International law emphasizes on the national liability and accountability for territorial activities by controlling the risk of atmospheric harm to other countries to control climate change impacts. To get an appropriate legal remedy the climate susceptible community has to file a legal claim to an appropriate dispute settlement forum to determine a credible legal option.

Climate change is a global issue and as such an international and an united climate control system is needed to ensure global support. Climate change raises serious legal question of liability and accountability for the loss and damage caused in proportion to the role of each industrialized country of the world. Industrialized and developed countries should take the responsibility of mitigating and adapting a system to climate change, setting strict limits of GHG emission upon their shoulders and provide compensation in proportion to their contribution to climate change to the least developed country like Bangladesh. Moreover, Bangladesh and all other least developed countries should also have strong governmental support to protect own citizens from climate effect.

Still, some of the signatory countries to the Protocol are reluctant to meet their reduction commitments. The existing international legal system cannot compel sovereign states to reduce carbon emissions because of the independence of nations and jurisdictional limitations. Moreover, UNFCCC and Kyoto Protocol prefer self-governing dispute settlement mechanisms and bar the member states from seeking legal remedy outside the convention process. The international laws make it burdensome to adopt a legally binding agreement depending on the aforesaid Conventions and accordingly, instead of relying on the political climate agreements the climate vulnerable developing countries have to explore the possibilities of seeking legal redress.

The treaties and customary international law provide the framework for taking legal actions at international level based on legal causation. Besides, the requirement for bringing possible climate actions is quite complicated as it is difficult to sort out the potential parties. The defendants in climate litigations are those who are assumed to be accountable for global warming. So, identification of potential plaintiffs, defendants, relevant laws and forums is the primary step in pursuing climate litigation in the context of climate vulnerability. Approximately thirty million people are affected due to frequency of cyclones, formation of low-pressure and depression in the Bay of Bengal during the last two and a half years for global warming and such incidents qualifies Bangladesh scientifically as a plaintiff of climate litigation.

A broadly known principle of customary international law is the “No-harm Rule” obliging a state to prevent damage and to minimize the risk of damage to other states caused by GHG. Principle 13 of the Rio Declaration, 1992 specifically states that, “States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further the international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.”

Nonetheless, the efforts to cut emissions must be global as fifteen to twenty countries are responsible for roughly 75 percent of Global emissions, but no one country accounts for more than about 26 percent. Without international cooperation and coordination climate change mitigation is impossible. Efforts to adapt to climate change must also be global as its impacts will be felt around the world. The problem with damage from climate change is that it is hard to trace back to any particular county’s actions. As the estimate of different countries’ comparative contributions to the emissions of GHG is clear, it has cumulative causation of climate change and each contributor country should only be held responsible for its share of the overall wrong.

Bangladesh, in the context of sufferings of coastal people and other climate change can convincingly establish substantive arguments under public international law that one or more states are responsible for wrongful acts based on causation and liability and may think of bringing the issue on behalf of its climate-affected people before the International Court of Justice. In addition to this, climate affected people of Bangladesh may also explore other dispute settlement mechanisms. Moreover, the right to environment is now well-recognized in our legal system since the court expanded the meaning of fundamental right to life to safe environment as found in the case of M. Farooque vs. Bangladesh, 1996, 48 DLR.

Mitigation and adaptation methods have been agreed on under the United Nations Framework Convention on Climate Change (UNFCCC) process to deal with climate change but due to the inadequate efforts of the convention the adverse impacts of climate change are causing harm to the lives and livelihoods of millions of people all over the world and inflicting significant economic losses. As such, Parties of the Convention decided at the eighteenth Conference of the Parties (COP) to establish international mechanism to address loss and damage associated with the impacts of climate change in November of 2013 at COP 19.

Many policymakers in Bangladesh believe that it is necessary to specifically address loss and damage resulting from climate change, which cannot be avoided through mitigation and adaptation. Bangladesh is often perceived as the most vulnerable victim of climate change as it has not contributed significantly to anthropogenic greenhouse gas emissions in the past and still is one of the lowest emitter in the world. Therefore, vulnerable countries like Bangladesh need to develop national policies and legal frameworks to deal with loss and damage without waiting for agreed outcomes on loss and damage from the UNFCCC process. Since the developed countries are failing to meet their legal obligation to prevent dangerous climate change due to the weakness of the Kyoto Protocol, it will not be long before the developing countries decide to invoke the disputes procedure of allowing the parties to go to the International Court of Justice as laid out in article 14 of the UNFCCC. Although in the U.S.A. some private claims are lodged in the climate change Courts but the Courts have dismissed their actions on the grounds that climate change is a political rather than a legal issue. British Barrister Richard Lord of Brick Court Chambers in London, editor of Climate Change Liability, believes that litigation against the polluter countries are more likely to succeed in the future if the political negotiations continue to fail in mitigating climate impacts over the world.

Yale law professor Douglas Kysar’s view is that the issue of climate change is a matter of law and justice, rather than merely politics. He urges that the rule of law should be introduced into the climate issue and lacking the rule of law on climate change is the vital reason why the treaty negotiations are cycling through the same set of arguments for the last 20 years,”. He says, “we don’t have a clear baseline understanding of state responsibility.” The new notion of “loss and damage” adopted in Qatar signifies that there has been a potential breach of the UNFCCC agreement and such breach can only strengthen the demand for the responsibilities of the countries to be defined in legal terms.

A special report on climate change broadcasted in CNN by Ed Markey, John Gummer and Cedric Frolick on 27th February 2014, shows that the world is facing more intense droughts to stronger storms and rising seas and the laws on climate change are not yet enough to limit global average temperature rise to 2 degrees Celsius and the level scientists urge not to breach if we are to avoid the worst risks of climate change.

It is quite impressing that since 1997 as shown in the report, almost 500 climate-related laws have been passed in 66 countries covering around 88% of global greenhouse gases released by human activities and this progress is being led by the big emerging and developing countries, such as China and Mexico, that together will represent 9 billion people on Earth in 2050 (these are the key findings of the 4th edition of the Globe Climate Legislation Study released on Thursday 27 February, 2014, the only compilation of climate legislative action created by legislators from around the world, and the most comprehensive audit yet of the extent and breadth of the emerging legislative response to climate change.)

The next climate negotiations will be held in Paris in 2015 and its legislation is creating a strong foundation on which a post-2020 global agreement can be built. The implementation of the Paris agreement comprising of a credible set of policies and measures will only be effective through national laws, overseen by well-informed legislators from all sides of the political spectrum. At this Paris agreement the legislators will be at the center of international negotiations and policy processes on climate change issues and the full range of sustainable development issues. To ensure better implementation of the Paris agreement the governments of all country over the world must immediately prioritize the implementation of national legislation from now on.

In 2008 UK strengthened the Climate Change Act. In 2009, South Korean members passed “Green Growth” legislation. Costa Rica in 2014 and members in China, Colombia, Democratic Republic of Congo, Nigeria and Peru are expecting to pass a comprehensive climate change law. In collaboration with the World Bank and the United Nations, GLOBE (Climate Legislation Study) is launching the “Partnership for Climate Legislation” to promote the advance of climate-related laws. That is why GLOBE is equipping legislators to be as effective as possible in holding their own governments accountable if climate law is infringed. Success in Paris to create a complete climate agreement inclusive of legal enforcement of right will determine the fate of our planet.

About The Writer

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Barrister Susmita Rahman

Advocate, Supreme Court of Bangladesh

supti2001@yahoo.com

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