Have you ever wondered why it is that nobody is going to jail for causing climate change?
You or I can fined $375 for “aggravated littering” (such as dropping a cigarette but near a petrol station), but you can get away with sea level rise, drought, bushfires and global havoc without so much as losing a demerit point on your driver’s licence.
Australians have felt this frustration, as we watched our legal system powerless to stop the expansion of Japan’s so-called “scientific” whaling programme. It is not as if there is no precedent for punishing big polluters. Early this year BP was forced to pay almost US$180 million for pollution violations at its Texas City Refinery. Exxon was forced to cough up US$1 billion over the 1989 Valdez oil spill.
Australia’s coal industry has had to concede that coal causes climate change and that climate change causes economic damage. I predict that it will not be much longer before it is in the dock for crimes against our collective climate.
The coal kings will initially refuse to be dragged into court at all. They will mount the ‘blame game’ defence; we all use fossil fuels, so we are all responsible and if we are all responsible, then nobody is guilty.
The industry will give itself a positive character reference, by referring to the billions of dollars they promise to invest in so-called “clean coal”.
But if indications in the UK are anything to go by, these rhetorical strategies will only last for a few short years. Last month Stephen Hockman QC, former Chairman of the Bar Association, held the first public meeting of a new campaign, The Coalition for an International Court for the Environment.
Hockman makes the case that the international community has the duty to prosecute crimes that damage the environment, just as it prosecutes acts of war and ethnic cleansing.
The best known precedent of international legal action are the war crimes trials held after World War Two, in Nuremberg and Tokyo.
The Nuremberg and Tokyo trials found military leaders from Germany and Japan guilty of crimes, even though they were technically innocent within the laws of both those countries at the time they were committed.
This is the power of an international court, it is able to take a properly global, humanistic perspective.
According to Hockman’s Coalition, the ICE requires far-reaching powers. For example, in order to be unhampered by national political interests, it would needs its own independent staff, who would be able to initiate investigations.
According to the initial proposal documents for an ICE, the Court would be able to take action in respect of damage, even if occurring in a non-signatory nation.
To understand the implications of these two powers – independence and extra-territoriality - imagine a hypothetical “Tuvalu Trial”.
It is 2012. The international community is not resigned to waiting around, as the saying goes, until the seas rise and the shooting starts.
Australia’s Labor Government ratifies the ICE along with most countries in the world. China does not ratify the ICE.
An Australian coal company, “Convenient Coal” continues supply coal to China, safe in the assumption that it has a social licence to do so.
Meanwhile, the ICE Prosecutor decides enough is enough and brings Convenient Coal to court, over the damage that rising sea levels will do to Tuvalu.
The Australian Coal Association and Resources Minister Martin Ferguson mount a spirited defence along with Convenient Coal. They resort to a variant of the “Dealer’s Defence”; that the act of causing climate chaos is committed by the Chinese, who burn the coal, not the Australian who sell it to them.
The ICE hears the case but finds that since Friendly Coal is based in Australia, which is a party to the Court, it can be the subject of action in respect of acts in China that cause damage in Tuvalu. Friendly Coal sees where this is heading and settles out of court for $50 billion dollars.
Cynics will of course say that this scenario is purely speculative. They can point out that the nations of the world have still not agreed to an effective treaty to stop climate change, so an international climate court is a fantasy.
I believe that climate change has installed a new dynamic into world history and the past is little predictor of even the short term future. Recall that Sir Nicholas Stern turned the economic argument about climate change around almost overnight. Likewise Al Gore’s documentary An Inconvenient Truth generated a tipping point in public awareness.
When the international community agrees to act quickly, it does. In 1995, lawyers created an organization to campaign for the formation of the International Criminal Court (ICC). It was only 3 years later, in July 1998, that nations gathered in Rome to adopt the law forming the Court itself.
Just recently I have heard the issue being discussed by leading legal academics and environmental philanthropists, so there are some influential Australian supporters for an ICE.
The Australian Coal Association might want to buy some Cruel Sea and listen to the lyrics, “Better get a lawyer son, Better get a real good one”?
Dan Cass is a consultant to green businesses in Australia and the USA
PS to catch up with the pace of the climate debate, join in great discussions and adventurous thinking about environmental solutions at Worldchanging.org. The human rights trial against Shell in the USA is covered best at shellguilty.com/. Soon there will be a proper website about the ICE campaign at environmentcourt.com/.
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