Climate change and damages reaching billions - is there a court on the horizon that will judge the polluters of the environment?

The summary of the lecture by Dr. Or Karsin from the Institute for Policy, Political Economy and Society Research, the Open University will present the topic at the Open University's research day which will be held tomorrow - 24/9/2012 at the OP campus in Ra'anana

for the Research Day and Scientists' Night events at the Open University

The effects of the climate warming phenomenon
Climate change is unfolding before our eyes and those who follow the media pay attention to the morning news about these and other climatic disasters occurring around the world. The American Climate Information Center operating under the National Oceanic and Atmospheric Administration (NOAA) monitors unusual weather events in the world and gathers the information on these events every month. The site lists dozens of unusual events that occurred in the month of July alone. These include:

Fires
• Record fires that raged in northeastern Spain that caused the death of 4 and the injury of 47. Huge fires also raged in southwestern Spain that forced the evacuation of thousands of people from their homes and hundreds of thousands remained in their homes and consumed over 240 thousand dunams. And according to the reports, these fires marked the worst fire year in the last decade.
• Other serious fires occurred in Southern Europe, in Portugal, Greece where there were 80 fires, in Croatia and Macedonia and Siberia where about 250 thousand dunams also burned.
• In Oregon in the USA, unimaginable areas of 2.9 were burned. million dunams, which severely damaged the cattle breeding industry in this country.

Flooding
• Severe flooding hit the state of Assam in India, where monsoon rainfall amounts were reported to be the highest in 30 years. The humanitarian impacts were severe, over 114 people were killed, millions of people were made homeless and tens of thousands of people were left without access to safe drinking water.
• In China, an unusually intense rain event for about 16 hours caused severe flooding in Beijing, which is considered the worst in six decades. At least 77 were killed and 770 thousand people were evacuated from their homes and about 500 flights were canceled.
• Thunderstorms and strong rains in northern China which caused heavy rainfall and lasted for 24 hours causing extensive flooding. which ended with at least 88 dead, 134 injured and 63 thousand people left homeless and about 300 thousand dunams of agricultural land destroyed.
• A tropical cyclone that began its journey east of the Philippines, caused massive flooding in the Philippines that caused 39 deaths and at least 230 thousand people who were evacuated from their homes, and the collapse of infrastructure (water and electricity) for over 2 million people.

melting glaciers
• The rate of melting of the glaciers in Greenland is much higher than in the past and at least in the last three decades. The melting rate increased from 40% to 97% of Greenland's surface in a few days. Ice cores show that large-scale melting occurs every 150 years. An event of similar magnitude last took place in 1889.

spread of diseases
• Due to the invention of many stagnant waters as a result of the floods that hit the Philippines accompanied by heavy heat loads, the spread of mosquitoes carrying the virus that causes dengue fever was observed causing 23 deaths between January and July 2012, which is an increase of 11% compared to the previous year.

Repeated and broken records in temperature
• The reporting of these events is accompanied by the reporting of records being broken in terms of global temperature:
o In July of this year, +0.62 °C were measured above the average for the month of July in relation to the multi-year average measured from 1880 which stands at 15.8 °C. Which made last July the fourth warmest July since measurements of the average temperature on land and sea began.

Summary of damages
The list goes on and in fact every month we see that climatic records are broken and extensive damages are caused:
• Health damage and psychological damage as a result of a direct heat barrier as well as the spread of disease carriers due to the increase in temperature
• Damages to private property and public infrastructure - these occur mainly as a result of flooding events which sometimes cause mudslides, strong windstorms and fires.
• Ecological and agricultural damages - due to changing environmental conditions, a decrease or increase in the amount of rainfall causing droughts or floods, the warming of the sea causing, for example, severe damage to coral reefs, the melting of glaciers causing damage to the arctic environment.

The costs of climate damage
As the effects of climate damage continue to expand, it becomes clear that the costs caused by these damages are increasing - but how to estimate them?
The damage estimate depends on several components:
1. What is the degree of restraint that will be achieved in the rise in global temperature? As global warming increases and gets out of control, the damages will be high to the naked eye and very difficult to estimate. Most of the studies trying to estimate the climate damage assume a fixation of the carbon loads in the atmosphere to 450 parts per million by the year 2020 - which is expected to lead to an increase of up to 2 °C by the year 2100. Most scientists agree that this is a realistic goal that will indeed cause damage but not a complete change of all systems the existence However, even here there are scientists who disagree on this goal and believe that even an increase of 2 °C is too high to ensure the existence of human systems as they are today.
2. What is the target year - to which year do we attribute the changes.
3. And most importantly - what adaptation actions and climate change assessments will humans take in order to reduce the residual damage? Today, it is clear that beyond the reduction of greenhouse gases as a means of changing the expected path of warming, it is very important to evaluate measures that have the power to minimize the effects of warming and the expected damages. These steps are called "adaptation" in French. Some assessment measures may only require better planning that does not involve significant direct expenditure (eg building climate-adapted and insulated houses, or moving buildings away from flood zones). Other measures may require significant budgetary investments such as adapting infrastructure, setting up alert systems for unusual weather events or water desalination, sewage treatment and setting up irrigation systems in agriculture.

Due to these three variables there is great uncertainty in the estimates and also high variability. One of the first estimates included in a 2006 report by Lord Stern (who was the World Bank's Chief Scientist) who acted as Her Majesty's Government's adviser on climate economics.
• The findings of the report:
o In the event that the temperature increase until the end of the century will be limited to + 2 °C, the cost of damages is estimated to be between 1-0.5% of the gross global product, ie between $750 billion and $325 billion per year. This is only due to damage from extreme weather events.
o However, in the case of a warming of + 5-6 °C by the end of the century, these damages can reach up to 10% or more of the global product - that is, at least $7.5 trillion and the share of the developing countries in these damages will be greater than the share of the developed countries.

Who suffers from climate change?
There is a consensus among scientists that the developing countries and their inhabitants are expected to suffer from climate change significantly compared to developed countries. There are several reasons for this:
• The physical vulnerability - developing countries are located in areas (in the south and center of the earth) where the climatic changes and especially the rise in temperatures will bring particularly devastating effects
• Economic vulnerability - the economies of most developing countries rely on natural products as well as agriculture. This serves as a source of livelihood and nourishment for the residents. Agriculture is a very vulnerable industry to climate change.
• Lack of preparedness and limited ability to adapt - the ability of weak populations to adapt and prepare for climate change is limited due to a wide variety of factors including: economic ability, food security, access to communication, education and more.

The responsibility of the developed countries for climate damage
• The developed world, which numbers less than 20% of the world's population, is responsible for about 75% of the historical climate change emissions and damages (since the industrial revolution).
o The USA, which has 4.47% of the world's population, is responsible according to experts' estimates for a little over 20% of the climate change damages that have occurred due to the emission of greenhouse gases since 1900. This number drops by only 1990 percent if its responsibility is counted only from XNUMX onwards.
o The average American emits 12 times the average Chinese or 36 times the average Indian.
o Even the Europeans who are in a slightly better situation contribute to global warming significantly more than the residents of the developing countries. Admittedly, a European only emits about 87% of his American counterpart, i.e. 13% less, but 10 times more than the average Chinese and 32 times more than the average Indian.

Features of the emissions distribution map:
• Researchers agree that the historical emissions distribution map is extremely unequal between the countries (much like capital) and that in fact the contribution of the developed countries to greenhouse gas emissions is decisive.
• At the same time, this picture is slowly changing due to the strengthening of transition economies such as China and India. However, one should not be confused by the high overall contribution of these countries because their contribution per capita is, as mentioned, very far from the contribution of the Western countries.
• Greenhouse gas emissions have largely enabled the development of Western economies and their strengthening. The energetic development pattern of the Western economies comes at the expense of the future development possibilities of the developing economies and will cause damages to these economies.
• Starting in the early 90s at least emissions were carried out knowing the risks involved. In 1992, the UNFCCC was signed by all developed countries. The convention recognizes the negative effects of greenhouse gas emissions and establishes a general framework for policies that will reduce emissions. The convention also establishes the duty of the developed countries to assist the developing countries most vulnerable to climate change to take the necessary assessment steps.

Ways of imposing responsibility on the developed countries for the climate damages in the developing countries
• If the developed countries are responsible for most of the damages caused to the developing countries, then the result is that they must be held liable for payment both for the climate change assessment actions aimed at reducing damages and for the residual damage that will occur even when adaptation actions and various assessments take place.
• There can be different ways to exercise this responsibility:
o Completely voluntary unilateral ways - for example funding transferred through the foreign aid budgets of various countries.
o By agreement - through the agreement of developed countries to provide financing through international funds, for example. This way was adopted in the climate convention and there are several problems with it related to compliance and implementation of the agreements by the developed countries.

• Both of these methods are flawed in terms of:
o Credibility - countries do not always keep what they promised
o Certainty - in the voluntary method it is not at all clear what the obligation is
o The availability of resources - resources do not always arrive on time
o The topics that are included in the order of priorities for funding - since the developed countries control the sources of funding, they are also the ones that largely determine the areas or topics to which the funding will be transferred, and these are not necessarily the same or support the priorities of developing countries. Also, the funding as it is provided today does not respond to a disaster or climatic emergency but rather to long-term planning processes, so that if a country has suffered damage that requires immediate attention and establishing a funding source, it usually has no one to turn to.
• For all of these reasons, a third possibility of legal responsibility is important as a means of dealing with the need to provide developing countries with compensation for residual climate damage and the means to carry out required assessment operations.

What are the difficulties in the way of imposing legal liability on the developed countries
• There are a number of significant difficulties in the way of the possibility of imposing legal liability on the developed countries for the climate change damages occurring in the developing countries.
These difficulties can be divided into two main types: substantive - legal difficulties and institutional - political difficulties
• From a legal point of view - in order to prove liability according to the principles of common law, the injured party is required to prove a number of elements. The three main ones are:
1. Who is the harmer - since the problem of warming is caused by the emissions of many countries and factors, only their accumulation together causes damage, it is not at all clear who is the harmful factor responsible for the warming phenomenon. Is it a country or countries? Or maybe in different industries - such as the energy or automobile or aviation industry? And of course there is the question of how responsibility should be divided between these factors.
2. Causal connection between the harmful act and the damage - abnormal weather events that cause damage may occur even in a reality where there is no climate change and it is not easy to attribute a specific and one-off climatic event to climate change, which is a long-term phenomenon. There is a great deal of uncertainty on this subject, which could undermine a legal argument for liability.
3. Awareness of the possibility of the existence of the damage - usually the tortfeasor is required to compensate the injured party for a harmful act only if he was aware that his act might cause the damage. According to this line, it is possible to claim that the responsibility of the developed countries applies at the earliest only to emissions from the early 90s when the climate treaty was signed. On the other hand, in recent years, in the internal environmental law of Western countries, there is a tendency to waive the requirement of knowledge and require compensation even if the harmer was not aware of the possible damages - based on the legal principle of absolute liability.
• From an institutional and political point of view - there are difficult doubts regarding the forum in which claims of this type can or can even be submitted. Different forums impose different limitations on the identity of the claimant (whether the affected individuals or the state) and the identity of the defendants (whether the state or some private entity). Forums such as the International Court of Justice in The Hague that allow a claim by one country against another are somewhat controlled by political considerations, while a claim in the domestic courts of a particular country can be problematic for foreigners seeking to file the claim.

We will examine one of the possibilities of the lawsuit at the international level
The International Court of Justice
• The International Court of Justice (known in English as the International Court of Justice) is actually a permanent court - the central judicial branch of the United Nations which was established in 1945 through the Charter of the United Nations.
• The International Court of Justice in The Hague only allows lawsuits between countries or the provision of legal documents to UN institutions. The tribunal has strict rules of authority that allow it to discuss claims only if it has been given authority by the parties (from the principle of preserving the sovereignty of the states). The court's jurisdiction can apply in one of the following three cases:
o Both disputing parties adopted the section in the court's constitution that gives the court the authority it must in their case - most of the big polluters, including the USA, did not adopt this section or rejected it over the years.
o Both parties come to an agreement with the court that will serve as an arbitrator in the dispute between them - the chance that significant polluters will agree to this is small.
o There is another treaty signed by the parties (multilateral or bilateral treaty) which confers jurisdiction on the International Court of Justice. The issues covered by the convention can be interpreted as related to greenhouse gas emissions. The difficulty is to prove that causing climate damage constitutes a violation of obligations contained in another treaty, even if the treaty is general and deals with issues such as "friendship, trade, etc."
o To date, no liability claim for climate damage has been submitted to the International Court of Justice and it is possible that neither will be submitted in the coming years. The history of the tribunal's decisions in environmental disputes between countries indicates an extremely conservative policy that attaches great weight to even the slightest uncertainty in scientific evidence. This is even in cases that were much simpler to prove. An example of this can be found in the last environmental case in which the court ruled in 2010. It was a dispute between Argentina and Uruguay regarding Argentina's claim regarding the pollution of the Uruguay River by paper processing plants on the Argentine side that were established in violation of a treaty between the parties. Both sides brought a lot of scientific evidence to support their arguments, and there was a lot of evidence of the deterioration of the river's water. The court chose to rule on the basis of the scientific information without appointing an expert on its behalf and chose to interpret the fact that there were conflicting opinions regarding the quality of the water as evidence that it was not harmed to the extent that it constituted a violation of the treaty for its preservation signed between the parties. The court preferred to submit the clauses of the treaty that obliged the parties to cooperate in maintaining and monitoring the state of the river, and gave them special importance and weight.

Regional human rights tribunals
• There are two regional courts for human rights, the European Court of Human Rights and the American Court of Human Rights (Inter-American Commission on Human Rights).
• The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights are two mechanisms established on the basis of the Inter-American Convention on Human Rights. So far, the Inter-American Commission is the only international legal body that has heard a petition concerning climate change damages.
• This petition was submitted in 2007 by the Arctic Council, a non-governmental body, which sought to sue the US government for its failure to take measures to reduce greenhouse gas emissions.
• The uniqueness of the regional courts compared to international law is the ability of private individuals to submit petitions if they have proven that all other avenues in their country have been exhausted.
• While the Inter-American Court is a body with judicial authority and can impose reparations, it cannot exercise its authority except by granting authority by the member states of the treaty. For this reason, the USA did not ratify the treaty and in fact refuses to recognize the authority of the court, therefore for the time being it cannot be sued within this framework.
• The Inter-American Commission is a body that can produce recommendations and opinions that are apparently not binding, but have weight in the international arena. This body is also the body through which one must pass before a petition can be heard before the court of law. Therefore, the decisions of this body have at least declarative importance. Although the committee decided to postpone the formal hearing on the petition, it summoned the petitioning bodies to a principled hearing on the connection between climate warming and human rights. In this discussion, questions were asked about the same problematic issues that were discussed above, where the question of the causal relationship between the actions of the USA and the violation of the human rights of the Inuit people to life and dignity was at the center of the discussion.

The climate treaty's dispute settlement mechanism
• At least theoretically, the climate treaty itself provides an institution for discussing disputes between the parties to the treaty. The treaty states that the parties may settle disputes between them voluntarily, while applying to the International Court of Justice or to agreed arbitration.
• If these measures fail, a party to the conflict can request the convening of the Conciliation Commission, which transfer of the conflict does not require the consent of the other party.
• The Reconciliation Commission may issue an advisory opinion, a sort of general arbitration award to recommend compensation which the parties must consider in good faith.
• The mechanism established is not a judicial mechanism, but a kind of mediation mechanism that does not bind the parties. It seems according to the section that the parties are even allowed not to comply with the Commission's decisions, but like other decisions of non-binding bodies in the international arena, this can have political consequences.
• Despite the possible potential inherent in this body, it has not yet begun to operate, and no party to the treaty has yet requested its convening (even though threats of this type were heard, for example, when the island nation located in the center of the Pacific Ocean Tuvalu announced that it intends to sue the USA at the International Court of Justice). In fact, to date, the parties to the convention have not concluded and formulated the internal procedures that are supposed to guide the work of the commission when it is established, and this may constitute a barrier on the way to its establishment.

In conclusion
The existing legal mechanisms in the international legal arena have not yet matured enough to deal with the damages of climate change. However, the Climate Convention is increasingly focusing on the issues of climate change assessments and new multilateral international funds are being established to help developing countries carry out adaptation actions. In fact, the countries of the global climate are undergoing a transformation where, alongside the historical emphasis on reducing emissions (mitigation), the emphasis is taking place on climate change assessments, damage prevention and dealing with risks. As these trends strengthen and even as the damages themselves increase, there is a chance that the international mechanisms will find a solution and encourage compensation for those countries that are already suffering from irreversible damages. In fact, this may even be in the interest of the developed countries if the alternative is the absorption of waves of refugees fleeing their flood- and trouble-stricken countries.