Bringing consumptive zone to book for global warming

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.