A manmade disaster

Published : 27 Oct 2010, 01:35 PM
Updated : 27 Oct 2010, 01:35 PM

"I wish I had died in the sea" — with deep, raw anguish, Nantu Majhi (45) reveals his feelings after returning to Bangladesh from Orissa jail after 9 months. Nantu is a fisherman in the East Charakgachia village of the Dhalua union in Barguna Sadar Upazila. On the morning of 14th September 2005, Nantu Majhi and his 12 companions started out on a fishing trip. The sky was clear. But when the night came, a storm engulfed them. Their trawler sank on the morning of the 15th. For three days, they struggled to stay alive, floating on the open sea on buoys and other floating instruments, until the Orissa coastguard rescued them.
When he returned home, Nantu found everything had changed. Not only were they crippled by the huge debt on the sunken trawler, but fraudulent agencies had also taken money from his family on false promises that they'd free Nantu from jail. As there was no one else who could earn in the family, Nantu's wife had had to find a way to support herself, as well as her three sons and one daughter. She was forced to beg. The children were forced to leave school. Seeing the effect his absence had had on his family, Nantu decided to abandon the life of fishing that had supported him for 30 years: "In earlier times, big storms would every 5 or 10 years, but now there are 2/3 big storms every year." Nantu now works as a labourer, because "I don't want to be sunk again by attempting to earn more money."
Nantu's story is no unique one. Due to increasing number of big storms that Nantu described of, hundreds of fishermen have either lost their boats and been burdened with huge debts, or lost their lives out in the sea. Many, like Nantu, have been jailed for floating into foreign territory. Because of these rough seas, their catches are greatly reduced, they are forced to stay at home and lose money more often, and a safe return from trip is becoming less certain. The fact that these big storms occur mostly during peak fishing season only exacerbates the problem.
In his recent research study on the livelihoods of coastal fishermen in Bangladesh, the climate scientist Dr Ahsan Uddin Ahmed cites the rising sea surface temperature in the Bay of Bengal, a consequence of global warming, as the key factor behind the increase in the sea's volatility. The Inter-Government Panel on Climate Change (IPCC) supports and validates his research.
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These fishermen who have been forced to abandon their livelihood are terrified of what the future holds for them; they have never known anything other than fishing. Their families have been in this trade for generations. How are they going to sustain themselves and their families for years to come? Who will take responsibility of this destruction of their livelihood? This is no natural disaster; climate change is a manmade phenomena.
The question is ambiguous. Who should pay? One possibility is the Bangladesh government. But compared to the developed countries, Bangladesh's contribution to carbon emissions that have warmed the earth is negligible. This is why the Campaign for Sustainable Rural Livelihoods (CSRL), an alliance of 200 national level civil society and grassroots level organisations has proposed to work through the International Court of Justice [ICJ] to file suit against the developed countries that are responsible for the vast majority of carbon emissions that have caused sea surface temperature to warm up. The fact remains however that due to the autonomy of these nations and lack of any world 'super-jurisdiction,' there is no way of directly forcing developed countries to reduce their carbon emissions. The bottom line for international law is unfortunately voluntary compliance and exclusive reliance on international treaties, and efforts to achieve global carbon reduction are in peril.
On the other hand, on the domestic level and through this on the international level, one could hope for serious legislation on climate change. This article will explain the legal strategy called Atmospheric Trust Litigation (ATL), designed to prove means by which courts can hold their government accountable for reducing carbon emissions. It will also try to explore how Bangladesh can implement this strategy effectively.
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The ATL principle draws upon the ancient public trust doctrine, an ancient yet enduring legal principle, which in many ways underlies modern statutory law. At the heart of public trust doctrine is the idea that every sovereign government holds vital natural resources in 'trust' for the public. It is the most fundamental law in safeguarding nature from the ventures of the state. It has already been used many times in legal systems worldwide; the Philippines recognised it in its landmark case Oposa vs. Factoran, India in its M.C Mehta vs. Kamal Nath case, Canada in the British Columbia (2004) case, and the United States in several cases. South Africa has constitutional provisions that codify the trust precept.
The supreme court of India summarises the public trust doctrine in M.C Mehta vs. Kamal Nath 1997 case — "The state is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large are beneficiary of the seashore, air, forests, etc. The state as a trustee is under a legal duty to protect these natural resources."
ATL proposes that as the atmosphere is a vital natural resource, it comes under the public trust law, and the state is therefore obliged to protect it as a trustee of the public. As such, it is a legally viable that could force governments to reduce carbon emissions within their borders. The ATL approach is consistent with and gives meaning to the principles declared by the UNFCCC in 1992 by 192 nations, representing 'near universal' international membership. Although ATL bears the risks of any untested strategy, it is perhaps the only macro approach that can empower courts to force emission reductions, and have substantial international impact.
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Now let's explore whether it is plausible to try this doctrine in Bangladesh, with the support of the constitution and different statutes. In fact, Part II of the constitution deals with the fundamental principles of state policy as Article 8, the title article to Part II, states "the principles of absolute trust and faith in … democracy and socialism … together with the principles derived from them as set out in this part, shall constitute the fundamental principles of state policy." The public trust doctrine is boldly present in this article. The state, in a democracy, is a representative of the people, and as such is responsible to honour their "absolute trust and faith". Article 13 states that state ownership is "ownership by the state on behalf of the people." Article 21 states that "it is the duty of every citizen … to protect public property." We can infer from these two articles, in conjunction with Article 8, that it is the responsibility of the state, through its position as owners "on behalf of the people," to protect all public resources as common property, including the atmosphere, under the public trust doctrine.
Several acts give further evidence to this responsibility on behalf of the government to protect our atmosphere under the public trust doctrine — that the government holds vital natural resources in 'trust' for the public. For example, consider the State Acquisition and Tenancy Act 1950 (SAT Act). Under the Act, the Zamindari system (Zamindar's were wealthy landlords employed to collect tax under the both the Mughal and British empires) was abolished and under the state a common tenancy was created where a rational amount of rent would be paid to the government. Therefore, the government became the common owner of land, people became its tenant, and there where no intermediates. The government was trusted to protect this land. Other environmental decrees such as the 1927 Forest Act and the 1973 Bangladesh Wild Life (Preservation) Order further demonstrate the government's responsibility to protect Bangladesh's natural resources, as trustees of the Bangladeshi people.
However, we must not forget the most important part of Bangladesh's Constitution to this situation — Right to Life, one of the fundamental rights. Those like Nantu have lost their right to life, directly as a result of global warming. The government needs to do their utmost to protect all affected by climate change. Atmospheric Trust Litigation is a strong proposal, validated by our constitution, and one that the Bangladeshi government cannot ignore. That is why the Campaign for Sustainable Rural Livelihoods is organising a shadow climate tribunal on November 8 to raise awareness about climate litigation, and give our government the tools to take ATL to the global stage, to show the developing countries that they are obliged, by their own laws, to reduce their carbon emissions.
Sharaban Tahura Zaman is a law student, University of Dhaka, IRP (DU) of Bangladesh Youth Environment Initiative and member of International Youth Climate Forum, South Asian Youth Society