Global warming, cyclones and International Environmental Law

A recent study conducted by the Department of Geography and Environmental Studies, University of Chittagong, shows that the frequency of cyclones have increased by four-folds in the Bay of Bengal, in the last 60 years. According to the statistics, since 1971 till date, around 33 cyclones have hit the coastal areas of Bangladesh and from 1797 to 2020, in the last 223 years, a total of 78 cyclones have hit the coastal areas. Apparently, till 1960, there were only 30 cyclones whereas from 1960 to 2020, only in last 40 years there were 48 cyclones. In the last one year, three cyclones, Foni, Bulbul and Amphan have hit the coastal areas. The research suggests that the onus for the increase in more powerful and regular cyclones is owed to the hike in temperatures. Currently, the temperature above the Bay of Bengal is 31 degrees, whereas in 2007 it was 28.7 degrees; thus, the increase in temperature has been 2.7 degrees.

With the prevalence of natural calamities caused due to global warming, environmentalists have emphasised on adhering to the Paris Agreement, as both developed and developing countries alike are required to limit their emissions. Its central aim is to strengthen the global response to the threat of climate change by curbing temperature rise below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further 1.5 degrees Celsius. The Agreement requires all parties to put forward their efforts through nationally determined contributions (NDCs). This includes requirements that all parties report regularly on their emissions and on their implementation efforts.

On this occasion, Bangladesh has received much appreciation as it has been one of the earliest countries to prepare and submit the NDC to UNFCC, in 2015. Bangladesh committed to reduce its Green House Gas emissions by 5% below 'business-as-usual' level by 2030 using only domestic resources and this reduction level may be extended up to 15% if sufficient external fund is received. Prime Minister Sheikh Hasina has been announced as one of the winners of the United Nations Champions of the Earth award in recognition of her country's initiatives to address climate change. Bangladesh is also the first country to set up its own Climate Change Trust Fund. In addition, the Bangladesh Constitution was amended in 2011 to include a constitutional directive to the State to protect the environment and natural resources for current and future generations. However, it is also criticised that the emissions reduction target of 5% looks very insignificant compared to the 30-35% reduction plan taken by India. Many other developing nations have also set greater reduction targets than Bangladesh.

Whilst the Paris Agreement does not legally bind its parties in terms of submitting their NDC, the parties are, however, legally bound to have their progress tracked by technical experts to assess achievement toward the NDC. Nevertheless, the inactiveness of several developed nations is still evident. As of February 2020, the only significant emitters which are not parties are Iran and Turkey. In 2017, President Donald Trump announced that the US would withdraw from the Agreement and subsequently initiated the formal withdrawal process.

It is important to comprehend, the reasons behind reluctance among states, in abiding by the agreement and taking pro-active actions to prevent the disastrous environmental consequences. The primary sources of international law are international agreements, custom and general principles of law. In case no explicit agreement exists, one must look to customary rules and general principles of international law. Nevertheless, it is both difficult to obtain a consensus concerning customary norms and also when accused of violating a customary norm, a state may claim that no such norm exists or that it never accepted the norm and therefore is not bound by it. Furthermore, states often defend their sovereignty because they consider their physical integrity and continued political identity as important elements in their foreign policies. The option to withdraw undermines the purpose of any agreement.

The predominant sources of the law governing creation of international agreements are the 1969 Vienna Convention on the Law of Treaties and the Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations 1986. However, the Vienna Conventions do not stipulate any particular ratification process nor do they require any action to comply with the agreement during the ratification process. Thus, the delay in ratification of a treaty in the case of environmental agreements may render the agreement useless if the underlying environmental situation worsens or becomes irreversible.

One of the major hurdles in implementing treaty law to environmental problems is its limited utility until a large number of states ratify the treaty; further, they lack enforcement mechanisms that encourage compliance with the treaty. Hence, in the absence of cooperation and enforcement, the environment will continue to degenerate.

THE WRITERS ARE CAMBRIDGE UNIVERSITY GRADUATE SPECIALISED IN INTERNATIONAL LAW AND BARRISTER OF THE HON'BLE SOCIETY OF LINCOLN'S INN RESPECTIVELY.