Polluters must pay up

Convention on Climate Change and its offspring the Kyoto Protocol, which have so far failed, options are scarce.
The failure by the developed countries to deliver on commitments for carbon emissions reductions timely is the green light that Africa requires to claim compensation for catastrophes caused by climate change.
As a matter of fact, developed countries have a legal obligation to pay reparations to African nations for climate change damage, as current global talks to limit emissions growth are too slow, and have failed to deliver the desired outcomes. 
Analysts say African nations should play an influential role in shaping how international law on reparations for climate change develops.
What options are available?
The Foundation for International Environmental Law and Development (Field) argues in a report released last week that climate change damage is sustainable development damage and needs to be addressed by international institutions concerned with sustainable development, beyond the UNFCCC and the Kyoto Protocol.
Field believes that the negotiations about the UN’s development agenda beyond 2015 and proposed new global sustainable development goals should prioritise climate change and poor and vulnerable countries.
“The post-2015 UN sustainable development negotiations and related negotiations may offer an alternative or complementary route for countries damaged by climate change to obtain assistance and to seek reparations,” stated the report titled “Loss and Damage Caused by Climate Change: Legal Strategies for Vulnerable Countries”.
Field is an international organisation that advocates laws and policies that support and promote prudent environmental governance practices. The report says state responsibility for a wrongful act gives rise to an obligation to make reparation.
It says restitution is the most important element of reparation and involves returning the situation to its original state, as far as possible and provided it is not burdensome.
“However, in relation to climate change damage, restitution may not be a realistic option,” Field explained.
In that case, however, “reparation is to take the form of restitution, compensation and satisfaction, singly or in combination”, according to the 2001 International Law Commission’s draft articles on Responsibility of States for Internationally Wrongful Acts.
“Compensation is to include any assessable damage while satisfaction may involve acknowledgment of breach or an apology. The draft makes it clear that a state responsible for a wrongful act has an obligation to make full reparation. The responsible state also has an obligation to cease the act if it is continuing and to offer guarantees of non-repetition,” the report said.
Damaged countries have another option in international litigation. In this context the “no harm rule” is often referred to.
Field said it is a well established rule of customary international law reflected in, for example, the 1972 Stockholm Declaration, whose Principle 21 refers to the responsibility of states.
That is “ . . . to ensure that activities with their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction”.
However, “international litigation related to climate change damage is more complex than just victim states claiming against states that are major emitters of greenhouse gases. One constraint on international legal claims by states may be the risk and increasing likelihood of legal action within states or across jurisdictions involving claims against businesses or governments.
“Successful international precedents could make it easier for claimants to succeed at the national level.”
There has been growing appetite on the prospects and possibility of successful international claims for climate change injuries. Even the UN’s Conference of the Parties sixteenth meeting at Cancun, Mexico, in 2010 acknowledged this by establishing a work programme on approaches to address loss and damage associated with climate change impacts in vulnerable developing countries. The work programme includes important elements such as reference to a possible international mechanism to address loss and damage.
However, Field does not trust the UNFCCC negotiations on loss and damage to produce meaningful results. The report cites constraints including concerns by developed countries about references to liability or compensation and the Convention negotiating dynamics in general, which have not been conducive to progress for some time.
Why compensate Africa?
Historically, developed nations are responsible for all the warming that the world is experiencing today fuelled by the industrial revolution, which polluted at will with little or no restraint at all. 
Currently, greenhouse gases production, the main catalyst for global warming and climate change, show no sign of weakening. Carbon emissions have actually grown unsustainably since global promises of action to reduce them 15 years ago at Kyoto and since birth of the UNFCCC in 1992.
Statistics from the International Energy Agency show that production of dangerous greenhouse gases rose 6 percent in 2010 with some 30 billion tonnes of carbons dumped into the atmosphere that year. Since 1991 emissions are up 49 percent. The US and China produce more than 50 percent of all world greenhouse gases, ably aided by the European Union, Canada and Japan.
Less than 5 percent of emissions emanate from Africa. Yet, the continent has suffered the effects of climate change more than any other have.
Last year thousands of people died of famine in the Horn of Africa while 12 million more faced starvation.
At least 10 million people are currently facing hunger in the Sahel region following a devastating drought.
More families today are in need of food and clean safe drinking water in Africa, where droughts and floods have become extreme, severe and frequent.
In Zimbabwe temperatures have risen 0,7 degrees Celsius in the past century while precipitation has declined by up to 15 percent depending on province. Future projections on the impacts of climate change in the country remain gloomy. But despite a growing body of evidence highlighting the damage that climate change and global warming have caused on the continent, global action to limit this damage through multilateral negotiations have been far from convincing.
The incremental nature of the talks, notably the COP meetings, have failed to measure up neither with the level of urgent action that Africa desires nor with what the science dictates.
Scientists believe world temperatures will warm by up to 6 degrees Celsius by 2100 if emissions growth continue on the current path, and that is unsustainable.
A warming of 2 degrees Celsius or below is deemed manageable. It is becoming increasingly evident with each passing year global environmental targets will be missed, as politics and economic development hold sway.
God is faithful.
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