How will our oceans and land look in 2024?

A. Introduction

The mitigation targets for individual countries is set by such individual countries in their nationally determined contributions. This means that, every country has the liberty to implement the mitigation measures. For instance, from legal perspective, country A can devise the mitigation measures, i.e., measures that help in reduction of carbon dioxide and other green house gases from the atmosphere with local effect specific to that country, in sync with common but differentiated responsibilities and its own capability and priority. 

Article 4(6) of the Paris Agreement states that, the least developed countries and small island developing states are not obligated to devise a strategy to control their emissions. However, they could follow these steps for organizing their strategies for effective adaptation to climate change:

1. Firstly, they will have to prepare a strategy reflecting their plan of action to be more climate resilient;
2. Secondly, they will have to communicate these strategies with the Conference of Parties and follow the procedure as laid down in the UNFCCC, for a proper feedback from other countries.
3. Thirdly, they could customize such strategies, plans and actions that reflect their special circumstances.

Fundamentally, compliance with the Paris Agreement only kicks in when a country has signed and ratified the agreement. This action would bind a country to the legal obligations that are mandated under the Paris Agreement. From an enforcement perspective, the obligations under the Paris Agreement can be translated in legislative reforms at the domestic level and strengthen the constitutional rights that provide fundamental right of clean environment to citizens of a country. This would have to be balanced with the economic development of a country without compromising on elements like clean water, clean air and rich biodiversity areas.

The pro of this approach is the flexibility that each country gets to prioritize or not to prioritize environmental concerns, because of their common but differentiated responsibility. The con of this approach is the argument given by developing countries that, they cannot proceed with their efforts on sustainable development if they do not get funding from the developed countries. In the long term, this shift in responsibility and pacifying attitude would harm the climate system of the earth, which is common heritage of humanity as a whole, not attached to specific countries as such.

B. Let us learn with examples!

The phenomenon of "land"

The phenomenon of climate change is global in nature. This means that, if there is a blast in a chemical factory in Canada and this blast results in the mixing of pesticides in water bodies in Canada, these pesticides can also reach Australia as a result of the flow of water from one end of the earth to another. The phenomenon of climate change has also resulted in change in air patterns thereby impacting the monsoon in India. Last year, there was a significant delay in the monsoon season because of climate change. Lack of rain during the correct season leads to draughts and affects the farms and growth of crops. This not only affects the livelihood of farmers who do not have access to modern technologies as such, but also affects the food security, or the comfort of nation that is dependent on normal food supply. In the past, the phenomenon of climate change has affected the psyche of farmers who have committed suicide out of helplessness.

Paris Agreement does not deal with this issue as such because it is mostly driven by bottom up approach, whereas this issue is more related to top-down approach.

The current EU climate and agriculture policies do not deal with these issues as such. The ETS Directive is a market driven instrument that gives the opportunities to companies, which have the resources, to trade under maximum cap that is decided by the EU. The LULUCF Regulations in a way address the emissions from land use and forestry. However, none of these instruments are comparable to the system in Australia which actively promotes the protection of food security resulting from climate change by sewing a farmer friendly institutional mechanism. For instance, Australian legal framework has the unique characteristic of providing a support structure to farmers, wherein they are advised by professionals on how they should farm using smart technologies without hampering their source of income.

In my opinion, the current policies in regard to addressing this specific issue is not harmonized across different countries, and is thus fragmented, from a global perspective. The existing policies are not sufficient because there is information symmetry. This means that, farmers, who are the custodians of ensuring food security of a country, are not understood and are always ignored in a policy impact assessment study. The farmers are unaware of the existence of a notion called as “legal protection and associated legal certainty” because of the existence of middlemen who are not transparent and rather exploit these farmers taking advantage of their power. In the times to come, from a policy perspective, there is a need to devise different strategies for incentivizing farmers in developing country and a developed country. There is a requirement of devising more allowance and subsidy schemes for farmers that encourages them to use technology so that, hurdles in raw material procurement can be addressed. From a legislative framework perspective, there is a need for promoting farmer education that is centered around teaching them what is the difference between a “good quality” and a “bad quality” food product. Legal professionals in India can follow the innovative approach that is taken by an organization in Netherlands, that aims to add co-plaintiffs by signing a petition online in their demand to remove Shell’s establishment from Netherlands. 

The phenomenon of "ocean"

In simple terms ocean fertilization means fertilizing, or enriching the quality of the sea bed, so that the underwater ecosystem can thrive. 

The rules that have been agreed upon under international law governing ocean fertilization mainly relate to the responsibility of an individual state to protect the marine life within 9 nautical miles from its coastline. The area beyond 9 nautical miles is called as international water whose protection is the common responsibility of all the countries together. From a legal perspective, this directly connects with precautionary principle and polluter pay principle to establish causal link that is important to establish liability.

As per David Freestone and Rosemary Rayfuse, who authored article on “Ocean Iron Fertilization and International Law” in 2008, there are international law issues that arise from ocean fertilization activities. The authors argue that, there is a difference between legal considerations that arise from introducing fertilizing agents into the ocean from manipulating the ocean environment “through mechanical or other means such as ocean pumps”. The legal rules concern the regulation of this afore-stated activity, under the “international law of the sea” and other treaties that mandate a prior environmental impact assessment. From a climate change perspective, this would also require close scrutinization of double counting strategies that are deployed by establishments in the name of conducting research or experimenting a new concept or a theory.