Bringing consumptive zone to book for global warming

By Frank Richardson

JAKARTA (JP): One family community in a village with a population of 3,155 was successfully sued recently for producing an inordinate amount of pollution. The family community consisted of just 126 people (4 percent of the village's population); but scientific data revealed that one fifth of all the pollution emanating from the village came from the area occupied by these few people.

Because the pollution brought severe welfare problems to the other inhabitants of the village and the offenders had refused to mend their ways, punitive damages were awarded against the family community. Cases against other polluting communities in the village are now being considered.

Now, multiply these fictional population numbers by 2 million and substitute "global village" for village and "the United States" for "family community" and you will arrive at a situation approaching reality, except that no remedy is currently available to the victims, most of whom reside in the Third World.

The United States, of course, is only part of the problem, for other major polluters per head include Canada, Australia and the European Union. The West has coined its own rather euphemistic term for polluting nations, namely "developed countries". Ironically, the main victims of this pollution are also the very people who produce the least pollution per head and they, to use Western condescending parlance, live in "the developing world".

At this point it might be useful to call a spade a spade. Instead of the flattering term "developed world", let us use the more descriptively accurate "Consumptive Zone". For what is currently termed "the Third World" perhaps "Depletion Zone" would be more appropriate.

Despite protestations from some American scientists, many reputable scientists confirm that there is a direct link between greenhouse gas emissions and global warming. Depletion Zone countries have met with catastrophe after catastrophe because of climatic change. Droughts, floods, cyclones, hurricanes and sea- level rises have cost Depletion Zone countries billions of U.S. dollars - money they can ill afford. Thousands of people have died and millions are starving or have been displaced by the freak climatic conditions. Despite this, people in the Consumptive Zone have preferred to adopt conscience-salving measures which do no more than nibble at the problem; but have done little, despite the good intentions on the part of some, to change their lifestyles.

It is estimated that the Consumptive Zone produces some 80 per cent of the world's greenhouse gases. This is an entirely intolerable and unacceptable level of pollution that is only likely to abate if the perpetrators become subject to legal constraints and awards against them for damages. Conscience pricking and good intentions have, to date, failed and time is running out.

In common law (the prevailing legal system in many of these Consumptive Zone countries) the Rylands vs Fletcher Rule exists to deal with such situations that occur domestically. This rule was formulated in 1866 and states that if a party "for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, (he) must keep it at his peril and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape".

Liability under this rule is very strict and does not require negligence, a duty of care or a wrongful intention. There must, however, be a non-natural use of the land and an escape of things likely to do mischief. In at least two court cases both gas and polluting sewage were deemed to come under the rule.

The collection and combustion of carbon based fuels and factory-production of greenhouse gases clearly, cannot be deemed natural. When greenhouse gases are emitted into the world's atmosphere they are undeniably escaping. They are likely to do (and have done) a great deal of mischief when they are emitted in relatively very large quantities per capita and despite knowledge of the possible consequences.

The Rylands vs Fletcher Rule needs to ripen into a rule of international law; but may, in any case, provide a basis for Depletion Zone countries to sue Consumptive Zone countries in the latter's own municipal courts.

A word of warning! The consent of a plaintiff may be used as a defense. Depletion Zone countries may, by selling carbon based fuels to the Consumptive Zone, be deemed to consent to the resulting greenhouse gases. However, it has been shown in law that this defense cannot be used if the use is extraordinary.

Surely, the production of 80 percent of the world's greenhouse gases by the Consumptive Zone must, by any standards, be considered to be extraordinary. This rule may, therefore, help to ensure legal restraint eventually takes the place of a voluntary restraint that is obviously not working.

The writer is a lawyer and an observer of environmental issues.