Liability, compliance must be mainstreamed in climate movements

Civil society needs to forge partnerships with lawyers, scientists and take legal recourse to enforce accountability

New Delhi, March 3: Next two years will be critical for the civil society and NGOs working in the field of climate change to ensure that the negotiations yield meaningful compliance and liability mechanisms.

Experts, while discussing the issues at a seminar organized by Centre of Science and Environment (CSE) at the India Habitat Centre on March 1, contended that the campaign and advocacy must throw up legal challenges to non-compliant states and force them to compensate for the losses caused because of climate change related damages. Only this could influence the international community to incorporate legally binding targets and instruments to compensate loss and damages.

“We must get out of the pessimism over climate negotiations at Cancun and work towards ensuring accountability at least in assuming the liability and having a just compliance regime,” said Sunita Narain, director, CSE.

The Kyoto Protocol will not lapse immediately in 2012; some activities will continue during the grace or true-up period including compliance assessment, expert review process and obligations under article 10. “This is why it was important to build up pressure on the negotiations to have a second commitment period, said Lavanya Rajamani, professor, Centre for Policy Research, New Delhi.

Similarly, the concept of loss and damage, introduced in the Cancun Adaptation text must be expanded. “Lawyers across the world must start using instruments already available to hold countries and governments liable,” said Joyeeta Gupta, Professor of climate change law and policy at the Vrije Universiteit, Amsterdam.

To facilitate host of action and sustain the campaign, a network between environment lawyers, scientists and NGOs must be developed across South Asia. “We have already started work towards that direction and in the process of exploring options about how first we hold our own states accountable to the climate induced damages that people suffer,” said Hafijul Islaam Khan, Environmental Lawyer, Bangladesh Environmental Lawyers Association.

The punitive measures in KP were exercised with Greece, Croatia and Bulgaria when they failed to comply with the KP regulations. But at Cancun no legally binding target was laid out, which would make it impossible to hold countries accountable for their non-compliance. “Greece eventually met these stipulations and the trade ban was lifted. The current pledge and review regime however has no targets so there would be no consequences to non-compliance. We need a new instrument; a penalty rate must be incorporated into Quantified Emission Limitation and Reduction Obligations (QUELROs). But since current targets are optional of which the documents does not even exist, it looks improbable to yield any legal compliance mechanism,” Rajamani added.

Having mere protocols either towards compensation or towards loss and damage would be futile if countries do not ratify them which has been the experience so far, pointed out Luther Rangreji, Senior Legal Officer, Legal and Treaties Division, Ministry of External Affairs. “International law commissions, international law cannot be applied to climate change since that deals with secondary sets of obligations, there have been very few treaties with a liability clause. A protocol is a watered down approach and it is a defeat of the entire process,” he said.

Legislative measures and compelling action with appropriate and effective mechanisms to redress losses were needed for enforcing liability, claimed MK Ramesh, Professor of Law, National Law School of India University, Bangalore. He presented a number of cases where domestic litigations have been used successfully, such as Greenpeace shutting a coal-power plant down in the UK for employing seemingly illegal processes. “There are many different routes to legally seek compensation for climate change related damages or non-reduction of GHG emissions. In India such routes could be PIL, citizens’ suit or Public Nuisance Action which have not been tried yet,” he said. 

In principle climate change can be seen as an encroachment of the global commons. “Environmental degradation of "commons" has earlier been stopped by courts and these precedents could perhaps be used in Climate Change action,” he added.

Gupta claimed that lawyers not only needed to consult each other on various possibilities to sue state or a groups of states globally using provisions of international law, they must also understand through consultation with scientists how the links with science of climate change and damages be established beyond reasonable doubts. “Options must be explored at all levels now and understanding international processes are critical here,” she said.

The paradigm shift in climate change negotiations have necessitated shifting the focus on compliance and liability since much of the earlier premise of climate politics has changed, claimed Narain. “It is important to ensure that there is concerted effort from the civil society on these issues and a fresh movement is launched so that we do not end with a bad deal at Durban or later,” she said.