Exploring Legal Avenues to Address the Plight of Climate Victims
M. HAFIJUL ISLAM KHAN suggests avenues for legal redress against the effects of climate change.
Photo: ANISUR RAHMAN
In the last month, over 100 fishers were feared missing as 10 fishing trawlers did not return to the coast, while 7,000 trawlers were kept near the coast for safety. This was because of the rough weather influenced by a depression in the Bay of Bengal.
Unfortunately, fishers go missing quite regularly due to frequent depressions in the Bay of Bengal. Moreover, because of increased storms due to climate change, coastal fishers cannot go fishing for many days, hence they lose their traditional livelihoods.
Dr Ahsan Uddin Ahmed, an eminent climate scientist, states in one of his research studies that the increasing Sea Surface Temperature (SST) fulfils one of the major preconditions for the formation of an increasing number of depressions and low- pressure systems in the Bay of Bengal. He found that the increased frequency of rough sea conditions caused by depressions is actually a consequence of climatic change. The fourth assessment report of the Inter-governmental Panel on Climate Change (IPCC) also supports Dr Ahmed's arguments that climate change is now evident from observations of increases in global average air and ocean temperatures.
Therefore, scientific evidence suggests that increased SST as a result of climate change has caused loss of lives and livelihoods of coastal fishers of Bangladesh. The law has failed to protect the very fundamental right to life and livelihood of this community. Past and current global emissions of greenhouse gases (GHG) originated in developed countries, but least developed countries like Bangladesh feel the impact of climate change disproportionately more. Against this backdrop, the Campaign for Sustainable Rural Livelihoods (CSRL), an alliance of local and national organisations, has appealed to the government of Bangladesh to start legal proceedings, in the context of climate justice, against industrialised countries for the losses caused in the recent storm. Even though this appeal might seem quite cynical, it has a strong basis.
Reducing atmospheric pollution is a state responsibility under international law, which solicits for countries to be accountable for activities in their territory and to be duty-bound to prevent, reduce and control the risk of environmental harm to other states. The global community, as the co-trustee of the atmosphere, is responsible for preventing atmospheric pollution, while national governments are responsible primarily as the trustees. However, in terms of historical and current pollution and proportional contribution to climate change, industrialised countries must take the entire responsibility. That's what climate justice speaks for.
The notion of climate justice put forward a challenge for the global legal community to protect the rights violated by atmospheric pollution. In response to the question of what, how and where an appropriate legal remedy can be sought by the climate vulnerable community, this article will explore the legal avenues with due scientific references. To lodge a legal claim to an appropriate dispute settlement forum, it intends to investigate the facts of climate change, centred on coastal fishers of Bangladesh, and to provide required analysis on substantive and procedural mechanisms to ascertain a credible legal option.
Context of climate justice
There is now no serious scientific dispute about the basic cause and consequence of climate change. The very nature of climate change exacerbates the inequities in terms of contribution to the causes and sufferings from the consequences. Climate change impact and vulnerability, particularly current extreme weather events, bring up the serious legal question of liability for the damage caused, based on proportional contribution to climate change.
Causal liability shifts the burden to the industrialised countries to take entire responsibility for mitigation, adaptation and the consequences of the measures to respond to climate change. In terms of mitigation, rigorous emission limits should be set by the developed countries to avoid dangerous climate change. From the adaptation perspective, the developed countries should take responsibility to react to consequences and prevent further deterioration. Technological and financial resources should be provided, based on proportional contribution to climate change and respective capacity of the states.
On the other hand, least developed countries, which are the most vulnerable, should utilise the support available through ensuring good governance to protect their own citizens. Climate change is an issue that is inherently global in nature, and the dynamics of the climate system are globally integrated. Therefore, an international and integrated climate governance regime is needed to ensure coordinated efforts and global cooperation.
Climate governance regime
Climate change appeared as a distinct issue in the international legal regime in 1992, when the global community negotiated a United Nations Framework Convention on Climate Change (UNFCCC). UNFCCC was supplemented by the Kyoto Protocol in 1997. These two international treaties have been elaborated through decisions adopted by the Conference of the Parties (COP), the highest decision-making body of UNFCCC, on the basis of developments in science and politics. Eventually, the Parties of the Convention adopted the Bali Action Plan in 2007 to launch a comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012 in order to reach an agreement. As such, an Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) was established under the Convention to work on the said plan and to adopt a decision in Copenhagen 2009. On the other hand, the Ad Hoc Working Group on Further Commitments from Annex I Parties under the Kyoto Protocol (AWG-KP) was formed in 2005 to work to set targets for Annex I Parties for the next commitment period in Copenhagen 2009.
Therefore, in accordance with the mandates of these dual track negotiations, expected outcomes of the Copenhagen deal were amendment or amendments of the Convention and the Protocol, or a new Protocol to adopt new policy direction in the climate regime. Instead of any agreed outcomes from dual track negotiations COP 15 mandates completion of their work by COP 16, to be held in Mexico City this month. Failure of the Copenhagen climate conference and the Copenhagen Accord, an unconventional upshot of the said conference, raises serious concerns over ongoing negotiations. Moreover, the China UNFCCC pre-session ended on October 9, with huge frustration at the lack of progress, and particularly the threats by rich countries of abandoning their existing legal commitments under the Kyoto Protocol.
The United States, one of the largest global polluters, prefers new flexible instruments instead of ratifying and advancing the second commitment period of the Kyoto Protocol. Moreover, some of the signatory countries to the Protocol are reluctant to meet their reduction commitments. The existing international legal regime, in the context of the autonomy of nations and jurisdictional limitations, cannot compel sovereign states to reduce carbon emissions. Therefore, political wisdom and voluntary compliance mechanism of international law make it risky to rely on ongoing climate negotiations to adopt a legally binding agreement. Consequently, the global legal community, instead of exclusive reliance on the political branches, is exploring legal avenues to seek relief from the judicial organs.
Background of climate litigation
In response to demands for broad, system-changing solutions to the climate crisis, the law is invoking different legal theories. Advocacy groups, public authorities, communities and individuals are coming up before the judiciary to seek compensation from and punishment for those thought to be contributing to climate change. Judicial decisions also have begun to come up through different judicial forums as a means of compelling decision makers to address the issues for future action and to make liable for harm caused to the climatic system. These legal actions related to climate change are known as climate litigation.
Litigation can be pursued in different national and international forums with macro and micro level claims. Global and regional treaties and customary international law provide the framework for taking legal actions at international level. At national level, many avenues are being explored, through both public and private legal actions. A common challenge for all forms of legal actions is establishing the legal causation. Moreover, the requirement for bringing possible actions is quite complicated, and is, to some extent, a significant limitation in pursuing legal proceedings
Another main challenge for climate litigation is to sort out the potential parties. Climate affected people, or any person aggrieved, is the plaintiff of a climate litigation, who seeks compensation for harm caused by global warming and also asks to prevent further global warming through reducing GHG emissions. The defendants in climate litigations are those who are thought to be responsible for global warming. As the impact of climate change is global, there are potential plaintiffs and defendants in all countries. So, identification of potential plaintiffs, defendants, relevant laws and forums is the primary step in pursuing climate litigation in the context of climate vulnerability.
Climate victims: Sources for litigation
Some studies suggest that Bangladesh is one of the countries most vulnerable to climate change due to its geographic location, flat and low-lying topography, and population density. Reliance of many livelihoods on climate, including agriculture and fisheries, makes the poor people of Bangladesh more vulnerable. The projected adverse effects of climate change, such as sea level rise, saline water intrusion, higher temperatures, enhanced monsoon precipitation and an increase in cyclone intensity will aggravate the existing stresses. Some climate change impact in Bangladesh is already scientifically evident. The victims of such impact qualify as plaintiffs in climate litigation.
The coastal fishers of Bangladesh, who are losing their lives and livelihoods due to rough sea events caused by increasing SST, can be considered claimants for legal protection. In order to raise a claim, however, the first and foremost prerequisite is to assess the scientific evidence. The IPCC assessment reports and further development of scientific analysis may eventually help to determine the extent to which SST increased due to climatic change. Then again, the link between increased SST and harm to life and livelihood of the fisher folk needs to be scientifically proved.
A research study, commissioned by CSRL and conducted by Dr Ahsan Uddin Ahmed, titled "Livelihood of Coastal Fishermen in Peril: In Search of Early Evidence of Climate Change Induced Adverse Impacts" provides the scientific evidence for the competency of coastal fishers. Dr Ahmed argued in his study that increasing SST fulfils one of the major preconditions of the formation of an increased number of depressions and low-pressure systems in the Bay of Bengal. Since the SST of the Bay of Bengal has been unusually high, one finds scientific link between rising SST with increasing episodes of rough sea conditions, the latter having serious livelihood implications on poor fishers of Bangladesh. With increasing SST, they can hardly survive one unusual year. How can they sustain their livelihood for generations to come?
Dr Ahsan further showed with data from 2007 that 12 out of 22 incidents of formation of low-pressure and depressions in the Bay of Bengal occurred during July and mid-November, the peak of the fishing season along the Southeastern coastal region. The apparent high energy in the sea affected the entire coastal zone by bringing in unusually high tides (much higher than average high tide) and frequent occurrence of rough sea conditions. The latter effect was so pronounced that the Port Authority issued a total of 89 signals throughout the year, of which 12 signals were issued during July and mid-November, which were higher than "potentially dangerous" signal number 3 or above.
A media report published last month shows that 10 cyclones and 50 incidents of formation of low-pressure and depressions in the Bay of Bengal occurred during the last two and a half years, as a result of which about 30 million people were affected. The report and the aforementioned scientific arguments provide the clear causal link between increased SST and global warming, which causes harm to life and livelihood of millions of coastal people. Therefore, this community qualifies scientifically as a plaintiff of climate litigation.
Causal responsibility and defendants
In the context of climate science, relative contributions of different states to climate change can be estimated based on the cumulative contribution and, as such, each state should be liable proportionally. It is pertinent to mention that the majority of GHG are generated by private entities. However, under international law, a state is responsible and accountable for the activities within its territory. Historical and current global emissions of GHG originated in industrialised countries, so they should be liable for the harm caused to the climate affected people of Bangladesh.
As such, Bangladesh, on behalf of its climate-affected people, can take the issue to international judicial forums on the basis of Public International law. At the same time, affected fishers can ask the government of Bangladesh to protect their fundamental rights of life and livelihood, which are guaranteed through the Constitution. However, it requires further analysis of the current legal course to ascertain a credible legal option outlining the substantive and procedural means.
Substantive and procedural means
Public international law, which is sourced primarily from treaties and customary law, is the means of bringing a dispute before a judicial forum at the international level. Treaties are obligatory only for the parties, and are based on the clauses agreed, while customary international law is derived from the consistent practices of states along with opinion juris. On the other hand, domestic law provides a well-defined body of law that governs the particular issues. However, relevant specific provisions of international and national law must be scrutinised for bringing the case to the right forum.
International climate litigation
Treaties relevant exclusively to climate-affected people are UNFCCC and its Kyoto Protocol. Article 2 of UNFCCC requires the parties to secure the stabilisation of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Moreover, Article 4(2) compels developed state parties to take measures related to mitigation and adaptation. State liability and attributed wrong can be identified under UNFCCC, however, it requires an appropriate forum to lodge the claim.
The compliance mechanism of UNFCCC suggests a consultative process. The Kyoto Protocol entails reporting, monitoring and compliance within its own mechanism, and any binding requirements demand amendment to its provisions. As such, UNFCCC and Kyoto Protocol prefer self-governing dispute settlement mechanisms and bar the member states from seeking legal remedy outside the convention process. So, even in terms of climate change, contentious state liability and attributed wrongful act are present in the UNFCCC regime. However, it does not seem to be the right place for the climate- affected people to register their claims.
Customary international law
A widely recognised principle of customary international law is the No-harm Rule, which obliges a state to prevent damage and to minimise the risk of damage to other states. This principle was applied first in the Trail Smelter Arbitration (United States vs Canada). The fact of the case was that a Canadian smelter's sulphur-dioxide emissions had caused air pollution damages across the border in the US. The arbitral tribunal decided that the government of Canada had to pay the United States compensation for the damage that the smelter had caused along the Columbia River valley in the US.
The no-harm principle employed in Trail Smelter Arbitration, was subsequently confirmed by different decisions of international courts and tribunals. Advisory opinion of the International Court of Justice (ICJ) in the Legality of the Threat or Use of Nuclear Weapons (1996), stated that "the existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment." The "no harm" rule was re-stated and accepted by both parties (Hungary and Slovakia) in the Gabcikovo case, 1997 decided by ICJ.
It has also been incorporated in international law and policy documents. Principle 21 of the Stockholm Declaration provides that "states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction." This principle is also included in Article 3 of the 1992 Biodiversity Convention, the 1985 Vienna Convention for the Protection of the Ozone Layer (Preamble, 2nd paragraph), and the UN General Assembly, Resolution 2996 (XXVII), 15 December 1972. It has also been reiterated in the preamble to the UNFCCC (Preamble, 9th paragraph).
Photo: ANISUR RAHMAN
Atmospheric pollution clearly falls within the purview of the no-harm rule of international law. However, international law will not support a conclusion that a state emitting GHGs, and thus contributing to global climate change, should be held responsible for damage occurring per se simply because it has emitted such gases. A state's behaviour must be found contrary to a specific standard of care. Once this duty of care is defined, if a state fails to take proportionate measures to minimise the risk of foreseeable damage, the no-harm rule is breached.
No-harm principle and state responsibility
A state's failure to comply with the no-harm rule is an internationally wrongful act that gives rise to an obligation to take responsibility. A state's breach of obligations not to cause damage, to prevent harm, or to minimise the risk of harm occurring, would constitute an internationally wrongful act, which entails the international responsibility of that state. The problem with damage from climate change is that it is diffuse and hard to trace back to any particular state's actions. The general rule under international law, however, appears to be that states that are jointly responsible for a wrongful act are jointly and separately liable. There exist relatively clear estimates of different countries' relative contributions to the tonnes of GHG emitted globally. It has, therefore, been suggested that, because of the cumulative causation of climate change, each actor should only be held responsible for its share of the overall wrong.
Bangladesh, in the context of sufferings of coastal fisher folk, can convincingly establish substantive arguments under public international law that one or more states are responsible for wrongful acts based on causation and liability. While the substantive law may provide a clear basis for the claim of coastal fishers' community of Bangladesh, there are often no procedural means to pursue it further and enforce compliance under public international law. There is no governing authority that automatically addresses the legality of an act or situation at the international level. This reflects the fundamental principle of international relations that states are sovereign and free to choose the methods of resolving their disputes. In practice, political pressure and diplomatic negotiations remain the primary tools in the international arena to influence state conduct.
International Court of Justice and other forums
The ICJ is the principal judicial forum of the UN, and the only international court with universal jurisdiction. It can settle disputes brought by the UN member states regarding an alleged breach of an international obligation if the states concerned have accepted its jurisdiction. The role of ICJ is to settle the legal disputes submitted to it by states and to give advisory opinions on legal questions referred by authorised UN organs. Non-state actors can neither be complainant nor defendant. However, states may take up the case of an individual before the ICJ. In 1993, the ICJ appointed a Chamber for environmental matters, which can appoint assessors and scientific experts to assist with scientific questions related to the environment.
In the context of UNFCCC and Kyoto Protocol, which prefer self-governing dispute settlement mechanisms, it can be established that prior negotiations have been unsuccessful in the absence of an Annex on UNFCCC arbitration if there is no other method to settle the dispute. So, Bangladesh may think of bringing the issue on behalf of its climate-affected people before ICJ, and also explore the other dispute settlement mechanisms to ascertain the relationship between the claimant and the respondent, and their respective legal commitments. Some other forums are Permanent Court of Arbitration (PCA), World Trade Organization (WTO) Dispute Settlement Body, and the UN Convention on the Law of the Sea (UNCLOS).
Climate litigation in the domestic court
Climate litigations based on different cause of actions are filed in different countries, and are mostly based on environmental statutes. In US and Australia, cases are brought in the climate change context, seeking judicial review of government actions in relation to GHG. In US, litigations have been filed under tort actions, Clean Air Act (Massachusetts v. EPA), Endangered Species Act, and so on. In Argentina, a case filed in 2003 against the government revealed the failure of the government to make the infrastructure changes needed to protect flood-affected people.
However, according to a number of legal experts including Mary Christina Wood, Professor, Oregon School of Law, US, the most promising course of action for fighting climate change through litigation is using the Public Trust Doctrine. Doctrine of public trust is a common law principle originally developed in the Roman Empire. It means that rivers, seashores, forests and the atmosphere, are held by the government in trusteeship for the free and unhindered use of the general public. As trustee, the government must protect the natural assets for the beneficiaries of the trust, who are the present and future generations of citizens. There is no question that treating the atmosphere as a public trust is consistent with the central purpose of the trust doctrine. Therefore, the fiduciary obligation of the government as trustee is to protect atmosphere for its own citizens and, at the same time, all other nations have the same duties based on co-tenancy relationship to one another.
The concept of stewardship or trusteeship is well established, and could be an useful avenue to protect natural resources and public land. In one case in India (M.C. Mehta v Kamal Nath, 1997), the court applied the notion of public trust in protecting and preserving the natural resources. Moreover, one of the strongest judicial iterations of the public trust came from the Philippines Supreme Court in a case brought on behalf of children [Opasa v. Factoran (Sup. Ct. Phil. 1993)]. The legal system of Bangladesh is based on English common law and, therefore, public trust doctrine would be part of its jurisprudence. So, if the atmosphere is considered a natural resource, the Bangladesh government could be defendant against the claim of coastal fisher folk under public trust doctrine.
Guided by the constitutional provision of ownership in Bangladesh, and subject to the other statutory legal provisions, land can be owned by private individuals, by the government and by cooperatives. Article 13[a] of the Fundamental State Policy (part II) states: "State ownership is ownership by the state on behalf of the people through the creation of an efficient and dynamic nationalised public sector embracing the key sectors of the economy." This provision may be interpreted to compel the government of Bangladesh to protect natural resources as common property under the concept of public trust doctrine.
Moreover, the State Acquisition and Tenancy Act (SAT), 1950 basically terminated individual tenancies over certain lands and limited private tenancies to identified lands (.e,g. khas land, waste land, non-agricultural land, cultivable waste land, forest land and wetlands, orchards, tea gardens, haats and bazaars). The SAT Act not only recognised the titles of various raiyats but also declared land or building in a haat or bazaar, and "any land actually in use for ferry," as non-retainable properties. On these properties, community usufructuary rights were preserved against individual titles in the name of "public ownership." Therefore, the principle of "common property" appears to be accepted in the SAT Act, and is also found in sectoral laws including fishery, forestry, and energy.
Moreover, the right to environment is now well-recognised in our legal system since the apex court expanded the meaning of fundamental right to life to safe environment [M. Farooque vs. Bangladesh, 1996, 48 DLR (HC)]. Moreover, air is included in the definition of environment provided in Environment Conservation Act, 1995. But right to livelihood was not included in extending the right to life to right to environment. An Indian court included the right to livelihood within the auspices of environmental right. Therefore, there is scope for judicial activism to include right to livelihood as part of fundamental rights in our constitutional realm.
Therefore, taking into account the scope and challenges of the existing legal provisions in Bangladesh, one pro-active legal activist can bring a case for affected fisher folk of the coastal region of Bangladesh against the Bangladesh government under writ jurisdiction before the High Court Division of the Supreme Court of Bangladesh to protect their life and livelihood.
The right to redress
The above analysis illustrates that climate-affected coastal fisher folk of Bangladesh may argue a violation of their substantive rights under both international and domestic law. There are also procedural avenues to assert these rights, depending on the relationship between the claimant and respondent and their respective legal commitments. Judicial proceedings may result not only in legal mandates but can also bring a spillover effect in international agreements and national legislative procedures.
However, comprehensive groundwork is needed to pursue the case of climate- affected people of Bangladesh. It can be mentioned here that CSRL is organising a climate tribunal on November 8, with a view to establishing the evidence-based climate reality and to explore the legal avenues of filing a real case. CSRL is working with a group of climate scientists, legal experts and climate campaigners to organise this tribunal, which might be a worthy initiative to support and to provide necessary guidance to the government to work further to protect millions of climate-affected people of Bangladesh. The climate tribunal, definitely a substantial non-governmental initiative, strongly recommended that the government should take immediate initiatives to form a commission with scientific and legal experts to advance the case.
M. Hafijul Islam Khan is an environmental lawyer.