Editorial | Backing Justice Anderson’s idea

Jamaica would perhaps be reluctant – especially on its own – to bring a legal case against powerful countries whose greenhouse gases contributed to its recent climate-related crises.

However, the island has good reasons to find itself at the forefront of a campaign promoting Justice Winston Anderson’s proposal for a corporate-financed climate injuries compensation fund that is underpinned by an international agreement.

For Justice Anderson’s idea is not only credible, but, as with all achievements on climate justice, forward movement will come only with sustained, and sometimes risky, political action, as has been shown with the gains made within the framework of Barbados’ Bridgetown Initiative, of which Jamaica has been a beneficiary.

Justice Anderson, a Jamaican, is president of the Caribbean Court of Justice (CCJ), which, in its original jurisdiction, interprets the treaty upon which the Caribbean Community (CARICOM) sits. The CCJ is also the final court in civil and criminal matters for some CARICOM members.

At a conference this month at the Cave Hill, Barbados campus of The University of the West Indies (UWI), Caribbean government officials, jurists, academic, and climate activists explored last July’s advisory opinion by the International Court of Justice (ICJ), which held that states were obliged to protect the climate system and that failure to take action on this account could amount to “wrongful acts” for which they could be held liable. It was in that context that Justice Anderson, delivering the feature address, repeated a proposal he first floated in Brazil earlier in the year: a corporate-funded facility to compensate countries for disasters related to global warming and climate change.

An International Climate Injuries Compensation (ICIC) Fund, Justice Anderson argued, would:

• Circumvent difficulties associated with assigning liability to major corporations or significant greenhouse gas emitters;

• Offer a viable alternative to protracted and complex litigation; and

• Respond to the recognition that corporations should bear a proportionate share of costs associated with climate-induced harm.

The fund would be tied to an international convention into which corporations in contracting states would make annual contributions based on a percentage of their greenhouse emissions. These corporate emissions, and the amount payable, would be monitored by the contracting states where the companies exist.

“The ICIC Fund would be entirely consistent with the ‘Polluter Pays’ principle and with the customary law responsibility of states, to ensure that economic activities in their countries do not cause environmental harm or damage in other countries,” Justice Anderson said.

The idea, in its fuller context, in this newspaper’s view, would not be outside the principle established by the World Court – and increasingly by domestic and regional courts.

But an accessible compensatory mechanism governed by a global pact would lessen the need for states – except in special and extreme circumstances – to engage in complex, potentially politically fraught direct court battles, which the Jamaican Government might prefer to avoid, rather than follow Opposition Leader Mark Golding’s advice of going to court to seek compensation for the devastation wrought (US$12.2 billion in damage and loss) by Hurricane Melissa last October.

Moreover, Justice Anderson’s proposed fund has something of a precedent. It adopts, builds on, and strengthens some of the elements of the International Maritime Organisation’s International Oil Pollution Compensation (IOPC) Funds, which provide for the oil industry and tanker owners (or their insurance companies) to pay for spills that affect countries. Unfortunately, several important states and oil companies remain outside the IOPC Funds agreement, creating critical gaps in the arrangement.

At the same time, the ICIC Fund – should it be achieved – would supplement and, in some respects, advance on the UN’s existing loss and damage fund, from which Jamaica is expected to receive around US$20 million to help finance its post-hurricane recovery.

After years of developing countries’ advocacy (in which Barbados has been at the forefront), the US$822 million so far pledged to that fund is a trickle, compared to what is required to compensate countries for losses from climate-related incidents. The ICIC’s mandatory mechanism would create greater certainty of flows and possibly reduce squabbles between developed and developing countries over contributions to the current compensation regime.

Jamaica has other reasons to be part of this advocacy. While progress is often slow, frustrating, and risks placing advocates on the wrong side of powerful forces, little usually happens without the effort. Persistence brings gains.

For example, Barbados’ political and diplomatic advocacy around the unfairness of the global finance architecture, and the impact of the climate crisis and COVID-19 pandemic on poor countries, helped to supercharge the IMF’s Resilience and Sustainability Trust, which reallocates Special Drawing Rights unused by rich countries to poor ones. Jamaica was an early beneficiary of that, allowing the country to access US$764 million for climate mitigation, disaster-financing policy, and decarbonisation projects. The Bridgetown Initiative, building on previous campaigns – notwithstanding the actions of the United States under Donald Trump – is forcing rich nations to consider reviewing global climate-financing and related architecture.

Jamaica does not need to reinvent the wheel. It must add its voice forcefully to Justice Anderson’s idea.