Saturday, November 28, 2009

Can We expect Climate Justice in Copenhagen?

Hemantha Withanage
Executive Director/ Senior Environmental Scientist
Centre for Environmental Justice

Climate change is very high in the global political agenda at the moment. 15th Conference of Parties to the Kyoto Protocol will begin on December 7th, 2009 in Copenhagen. COP 15 will be a very crucial event in the history of human race. However, we cannot have much hope since the developed countries so far very hesitant to accept their historical responsibility to the climate change and enter to a genuine deal.

It’s not a fiction. Intolerable heat, unpredictable high intensity rains and floods, cyclones, increased beach erosion are some symptoms of changing climate. Perhaps, Sri Lanka has a little understanding about the climate change. However, neighboring Maldives, Bangladesh or pacific islands such as Tuvalu, Kiribati already feel the rising sea level. Cyclone Nargis killed over 100,000 Burmese and affected more than 2.5 million people in 2007. Floods and cyclone Sidr in Bangladesh killed over 3000 people and affected over 900,000 families in year 2007. Floods in Sri Lanka in 2008 affected over 200,000 people and killed few. During the drought of 1999-2001 in Afghanistan FAO suggest that about half of the population was directly or indirectly affected by drought. About 3 to 4 million people were severely affected and another 8 to 12 million were under the threat of famine and stranded. There are similar stories across South Asia, Philippines, United States and across the globe.

Science is clear. Although there is a dispute about the temperature rise, Intergovernmental Panel on Climate Change(IPCC) report published in 2004 shows that rising temperature has a direct relationship with the increase of Green House Gases such as CO2, Methane, NO2, CFC and even water vapor. Methane emits from the nature as well as animal husbandry. One of the most famous climate thought appeared in the UN COP 15 thoughts are “Meatless Mondays Keep the Warming Away” and “Be a Vegan-Save our Beautiful World”. It is true that meat industry needs lost of energy and release methane. But CO2 which is result of burning “fossil Fuel” is a major reason to trap heat within the atmosphere which results global warming.

It is estimated that the temperature rise will be 2 – 5 degrees Centigrade at the end of the century. Some believe of a more severe temperature increase and 40 cm sea level rise by 2080. Some assessments state that the rise of average temperature by 4-5 degrees Centigrade will raise the sea level by 3-5 meters which leads to break up of ice caps in Greenland and Antarctica. Greenpeace says the breakdown of the West Antarctic Ice Sheet (WAIS) alone contains enough ice to increase the sea level by 5 meters and if all ice sheets in Greenland and Antarctica melt entirely, the sea level will rise by 70 meters. Although the countries except the United States signed the Kyoto protocol, which agreed to reduce 5.2% of CO2 emissions of the 1990 levels, none of the countries have fulfilled this obligation yet.

It is expected that he Obama administration will unveil the target for reducing carbon dioxide emissions at next month's climate conference in Copenhagen. The United States has been under great pressure from the international community to present its target at the summit, because it is the only industrialized country that still hasn't revealed a plan to reduce emissions. United States present its domestic targets in August 2009 which is 14 percent from 2005 levels by 2020 and 83 percent by 2050.This is only less than 4% by 1990 levels which is far less than what other countries have been pushing. Meanwhile, total emission cuts so far agreed by the entire Annex I countries excluding US are only 14 percent to 17 percent from 1990 targets. However the US and other annex I countries argue that China, India and Brazil need to bring its CO2 level down too. Although US is responsible for the highest historical carbon emission, China’s per capita CO2 level is number one at the moment.

This is a very clear politics of the developed countries in this very divisive issue, the climate catastrophe. According to the climate scientists at least 40% of the 1990 levels of emission cuts should be done by 2020. This level is necessary if we are to maintain the 2 degree centigrade temperature rise and keep the CO2 level at 350 ppm. Any further increase of the CO2 level in the atmosphere will severely affect the sea level rise and other climate disasters.

Where this politics will lead us? It is estimated that over 200 million people become climate refugees at the end of the century due to impacts of climate change. In a conservative estimate, it is calculated that the inaction of cutting emission drastically by developed countries would cost the climate impacts around 40-70 billion annually. I believe the question is not where to find this money. During the US recession the United States bailout package for its corporations was over 3 trillions. The total fund requirement to reduce CO2 level is 250 billion only.

The more important issue for the people in the developing world is how the climate debate will affect our genuine development. The reason I use the term genuine development is only because I see that the current development in Sri Lanka is not correct and not sustainable. The Electricity Generation plan recently unveiled by the Ceylon Electricity board has over 3200 MW coal power plants which will be totally based on imported Coal from Cheaper sources. This cheaper coal has more than 1 percent sulphur and more ash content. These coal power plants will emit CO2 1.9 Metric Tonnes per capita which almost same as the sustainable level of CO2 emission by 6.5 billion people living in the world today.

The easy argument of the Coal power agents today is that Sri Lanka’s per capita CO2 emission is only 600 Kg and we have ample space to increase the Co2 emission. But we have increased 230 percent since the Kyoto protocol signed. Burning coal which is imported from other countries cannot be justified as sustainable. On the other hand the problem today is the wrong development paradigm of the industrialized countries. Copying the same would be a complete disaster for us.

We have the right for development as same as like any other nation. As part of the environmental justice the developing nations now fight for climate justice. The developed countries owe ecological debt for the developing countries for overconsumption of our atmosphere, environmental space and natural resources. It is clear that their development has deprived us from development. Climate debt is owed for the historical overproduction of GHG emissions by developed countries that saturated the atmosphere – considered to be a ‘global common’ – thereby reducing the environmental/survival space available for developing countries. The climate debt is also owed for the impacts of climate change that is suffered in past and present in developing countries, and for future generations.

Sri Lankans position in the climate debate is also requesting the ecological debt that developed countries owe us. Sri Lanka Government has signed to the Bolivian proposal to request ecological debt. As we believe, ecological debt asserts that wealthy nations have generated a huge debt through centuries of exploitation of the natural resources of poorer nations. The ecological debt, including the climate debt must be paid not only in terms of financial means. This has to include the unconditional cancellation of all the unfair debts that the impoverished countries have – generated through the implementation of colonial and neoliberal policies. Liberalization practices imposed through the international financial institutions causes the degradation of environment; local social and economic system thus exacerbates vulnerability to climate change. Liberalization creates unequal access to natural goods which reducing opportunities for the poor to build resilience to climate change.

Being part of the G77 cluster, Sri Lanka also strongly support the request from Annex I countries to cut emissions, mitigate the damages, assist adaptations, request climate finance through a United Nations manage funds and transfer technologies to combat climate change. The African nations and the small islands states have almost similar approach. Yet the negotiation is not easy.

Any solution to climate change should be people centered. The government can do very little either to reduce everyone’s carbon footprint, to reduce industrial emissions or adapt to the climate disasters. The climate negotiations need to bring the opinion of the public, small enterprises or academics to the big picture. However, Sri Lankan climate bureaucrats have a phobia to meet the civil society and dialogues on public expectations and opinions. I have attended many civil society initiatives on climate change. Unfortunately, I failed to meet the national delegation in those local meetings.

Internationally, many developing governments are in corporation with the civil society thoughts. Many government delegations have included civil society representatives in the delegation too. There is nothing to lose in this case since we all in the southern believe that our final goal is climate justice. Climate justice can only achieve by developed nations taking responsibility for historical emissions and pay their climate debt. We must have climate bailout.

In a worst case there would be no deal in Copenhagen. Annex I countries are trying to kill Kyoto Protocol and they will likely to discuss the shared long-term vision only. There is a great debate on climate financing. Developed countries are planning to distribute climate finance through the climate criminals such as ADB and World Bank who has increased more than 100 percent its funds to the coal based power generations in the recent years. Much opposed carbon trading due to the failures in the recent past may still continue since that is the only way for the business corporation s to make money. Reducing Emission from Deforestation and Forest Degradation in developing countries (REDD), much opposed carbon Offset mechanism supported by the UN will continue since that is the only money available for development countries.

The per capita emission is US 19.5, Canada 18.8, Australia 20 and United Arab Emirates 35 and China is only 4.58 by 2006 in Metric tonnes. The total emission china leads with 21.5% and United States 20.2% and European Union 13.8%. Except the United States, all other countries have committed some emission cuts even though it is very small with total 14 percent to 17 percent.

There is a very little chance that Annex I countries agree some emission cuts close to 20 percent by 1990 levels. There will be no deal without US committing to reduce its emissions. US domestic emission cut is 17% by 2020 from 2005 levels which is only 4% reduction by 1990 levels. Also there will be no deal without China, India and Brazil take actions to cut domestic emissions. China offered 40%-50% reduction by 2020 from 2005 levels. Any deal to reduce less than 40 percent by 1990 levels by all Annex I countries will not give hopes to developed countries. Yet, there is no walk out.

Environmental Law Education

Hemantha withanage

People are bound to hundreds of laws, norms and policies which they are not seen or aware. Their behavior, livelihood and use of natural resources are controlled by those unknown laws. According to a well excepted legal maxim, the Court always considers that all people are aware of the laws. Unawareness is not an excuse before the law. But do all and every persons aware of the laws?

Environment is one of the most discussed subjects in the recent times which need citizens’ attention. Land, Water, Air are basic components that are essential for human beings and nature. Sustainable development needs a balance between the modern development and natural environment. Role of Environmental Law requires here to balance these two conflicting concepts. Yet, environmental law awareness is not equally exist and maintained in any society throughout the world. More educated people have a better understanding of the laws that govern their day today life. Meanwhile, marginalized communities who also don’t have adequate basic education suffer from lack of awareness. It is impossible to achieve Environmental justice and environmental governance unless the marginalized communities are equally making aware of their rights and those legislations, policies and norms that their lives are bound.

Sri Lankan law is mainly governed by the common law system. However Statutes and other written laws have been introduced to the law stream even under the civil law system. Accordingly, there are a number of new laws such as EIA Regulations, Industry Specific Standards and Regulations, Vehicle Emission Standards, and Noise Standards have been enacted in the environment sector. On top of these there are new Carbon Funds, Adaptation Funds and Conservation Levy, Genetically Modified Food labeling, which are not clear to common persons. Lack of awareness of the new laws and the important provisions of regulations is a major bottleneck for achieving benefits of these laws.

Sri Lanka does not exercise many access to information laws. This is a major shortcoming for achieving better governance. Other than in the Environmental Impacts Regulations, no other law provides mandatory public participation in decision making process in environmental field. The marginalized communities are unable to bring the environmental as well as fundamental rights violations to the courts due to lack of awareness and inadequate legal aid when they suffer from denial of access to information and participation.

Among the Universal principles of the Rule of Law, it is well accepted that the government and its officials and agents are accountable under the law, and the laws should clear, published, stable and fair, and protect fundamental rights, including the security of persons and property. However, in my experience most people including the government officers and law enforcers do not aware the laws adequately and accurately. The reasons may include lack of interest, legal education, technical language, and negative attitudes as well. It should be mentioned that the half knowledge of responsible government officers leads for many harmful and tragic ends too.

In a country like Sri Lanka, majority people still live in rural areas struggling with their livelihood. It is unfair to think that those people are adequately aware of the laws that brought by the legislature time to time, mostly to protect the rights and interests of the urban population. As an example most protected area laws have brought forward in order to protect the interests of the majority, but not even with the participation or consultation of the local communities who are the experts of the experience obtained by the nature .

However, the Rule of law does not work or make a mean if the people are ignorant and unaware of the laws.

Legal Aid and legal Education programmes initiated by Center for Environmental Justice with the support of World Justice project is targeting common citizens, CBO leaders and the local level government officers to enhance the citizens’ awareness on the rights and the available tools and mechanisms to achieve justice and Enhance legal education among the marginalized groups to ensure that they understand the rule of law and the role of judiciary and the legislature. This approach also provides free legal aid for the marginalized communities who cannot afford expensive legal expertise.

The legal education programs were held in eighteen places within a year. We have selected community leaders, civil society organizations, and the groups that are negatively affected (both environmentally and socially) from resources extraction, development projects or other ill environmental decision making. The workshops are organized in such a way to meet both legal & environmental education and identifying issues that need legal support or other assistance to follow the due legal and administrative processes. The persons, who have been encouraged to approach the court of law, were given free legal aid.

Unlike the other laws, Environmental law cannot be practiced unless the parties or legal practitioners have some basic understanding of the science of the law. Except public nuisance procedure all other legal instruments need scientific explanations to prove the impacts on the burden of balance of probability. Unlike decade back, Science plays a major role even in public nuisance cases. It is notable that, if the judiciary too has a better understanding of law and the doctrine of governance of the nature as well, no doubt the privileges entrusted by the law will be enjoyed by whole society. We have designed the legal education programs to overcome this problem to a large extent.

Most people in the Northern and Eastern provinces of Sri Lanka have not had the opportunity to exercise many of the new laws due to war circumstances. Even the lawyers in those areas had no adequate awareness on the laws and experience of practicing. We hope to educate both lawyers and general public on what are the new laws in those areas which can be used for the protection of environmental rights and achieve environmental justice for all.

Yet, there is a question to answer. Does the Court of Law is predictable? Many participant say no. Long delaying of cases reduces the trust of approaching the courts. Unclear court procedures let the people move from one Court to another. Some people concerns of the independency of the Court of Law.

It is agreed that the laws and norms, the institutions and the process should respects to the basic better governance characteristics which are transparency, participation, Rule of Law/ Predictability and Accountability. The experience in the recent past shows we have yet to achieve better governance.