A HUNGRY TIDE

THE LEGAL RESPONSE TO CLIMATE CHANGE

ADAPTATION AND REPARATION

Krishnendu Mukherjee1
May 2008

“Beauty’s nothing but the start of terror we can hardly bear, and we adore it because of the serene
scorn it could kill us with”2.

1
Currently on sabbatical from Doughty Street Chambers (t.mukherjee@doughtystreet.co.uk). Nothing in this paper
can be copied or reproduced without the author’s permission.
2
Amitav Ghosh, A Hungry Tide, Houghton Miffin, London, 2005
1

The photograph is a recent picture of young children in the Bangladeshi Sundarbans. They will join the growing group of
environmental refugees unless the international community acts speedily to provide adequate funds for adaptation and compensation
for residual damage, and States implement laws and mechanisms to prevent damage and provide reparation.
“The field of law has, in many ways, been the poor relation in the world-wide effort to deliver
a cleaner, healthier and ultimately fairer world…”3.

1. Introduction

There has already been a copious amount of research, discussion and writing on the issue of
climate change; its causes; impacts; mitigation and adaptation needs that are sufficient to form a
specialised library. Indeed, just the Intergovernmental Panel on Climate Change (IPCC) Fourth
Assessment Report itself, generally acknowledged as the ultimate and irrefutable source of
scientific information and impact projections, has over 2500 authors and runs to some 2,871
pages4. There has further been huge media coverage on the issue, fuelled by global popular
interest, especially over the international community‟s attempts to “Save the Planet”, or at least
human life on it, through multilateral discussions at Bali involving over 10,000 participants5.
Climate change concerns have spawned a large number of organisations and programmes to
ostensibly campaign, or devise initiatives, to combat its effects. In short, the issue has surfaced as
one of the most important, not only of our time, but that of future generations, plunging millions
globally into environmental activism.

India has certainly not been immune from this activity. By virtue of her position as a rapidly
developing nation whose greenhouse gas emissions (GHG) are set to double to 3000 million
tonnes of carbon-dioxide by 20206, and through the high-profile leadership of Indian Dr RK
Pachauri, Chairman of the IPCC, recent years have seen a lot of both national and international
interest7. However, notwithstanding this global interest and activity, what exactly is being done
at the ground-level to prepare countries, in particular developing countries, for adaptation to the
impacts of climate change that is contemplated in the international instruments and will
undoubtedly occur? What are the exact legal obligations to do so? How are those obligations
being practically operationalised?

3
Klaus Topfer, Executive Director of the United Nations Environment Programme, on the adoption of the Judges‟
Johannesburg Principles on the Role of Law and Sustainable Development, August 2002.
4
Inter Governmental Panel on Climate Change (IPCC), Fourth Assessment Report (AR4), Cambridge, November
2007.
5
CoP 13, United Nations Conference on Climate Change, Bali, December 2007.
6
From 2000 figures see Subodh Sharma, Sumana Bhattercharya, and Amit Garg, Greenhouse gas emissions for
India: A Perspective, Current Science, vol 90, no 3, 10th February 2006.
7
A recent visit to Delhi includes, Tony Blair, former Prime Minister of the United Kingdom, on “Breaking the
Climate Deadlock”.
2
Climate change presents one of the most apparent legal rights issues, that those who are least
responsible for causing the environmental problem will face the most severe damage to their
environment. This is of course all the more serious in a country, such as India, where the
majority of the population is dependent on their environment for their livelihood and sustenance.
Climate change therefore creates not only scientific and moral issues around causes and impacts,
but also complicated questions vis-a-vis legal obligations to prevent direct damage and
reparations for residual damage which have, at least in the Indian context, not been fully
considered.

Lawyers and legal practitioners should first and foremost aim to provide direct legal information
to people so they can know their rights and obligations in the particular social, economic and
environmental milieu. The paper intends to look at a real situation, the first example of
environmental refugees as a result of climate change. It will set out the background to the case,
the cost to the victims, the state response and finally the legal obligations of the state and the
international community and how they are being performed. It is hoped that this will illustrate,
through a real situation of climate change damage, how much is being done and more
importantly, how much needs to be done, for the legal system to deliver justice to those who are
being and will be affected by climate change.

2. The Case

The Indian Sundarbans covers a region of 9630 square kms in the coastal region of the Bay of
Bengal. Out of the 9630 sq. km., 4264 sq. km. of Wetland / Mangrove constitutes reserve forests,
which in turn comprises of 2195 sq. km. of Wetland – Mangroves and 2069 sq. km. of tidal river.
This means that the reclaimed area of some 5,366 sq. km. (Figure 1) is used for human
settlements in 19 blocks (13 in South 24 Paraganas & 6 in the North 24 Paraganas)8.

It is globally recognised as an area of almost unique ecological and conservation importance9. It

is both the world‟s largest estuarine forest and mangrove forest containing fifty of the sixty

8
Sugata Hazra, Tuhin Ghosh, Rajashree DasGupta and Gautam Sen, Sea Level and associated changes in the
Sundarbans, Science and Culture (ISSN 0036-8156), Vol 68, no 9-12, 2002, p 309-321
9
The world‟s largest inter-tidal area and largest estuarine delta. It contains the largest species of mangrove, the
largest species of estuarine crocodiles and the largest number of Royal Bengal Tigers. It was declared a World
Heritage Site in 1985 and a Biosphere reserve in 1989
3
mangrove species native to India which host its terrestrial, inter-tidal and aquatic environs. The
hundreds of estuarine rivers, channels, creeks, swamps and backwaters make the Sundarbans
particularly noted for its rich biodiversity. The area not only hosts around two hundred and fifty
Royal Bengal Tigers, but also a number of other endangered species including the Olive Ridley
Turtle which makes an annual appearance, the plumbeous dolphin, Irrawadey dolphin and the
black finless porpoise. There are also estuarine crocodiles, rhesus monkeys, and chital and
barking deer. It is recorded that the area has two hundred and fifty species of fish 10, fifteen
prawn species, sixty-seven species of crabs11 and twenty-three species of other mollusks12. There
are more than 300 bird species (including 100 migratory birds) including herons, cormorants,
egrets, kingfishers, storks and darters, more than 100 types of neries (plankton-feeding worms)
that serve as food for fish and birds and a huge abundance of coastal flora. This includes orchids,
ferns, micro fungi and lichens.

The population of the Indian Sundarbans is around 4.1 million people13. It remains, despite
considerable infrastructure development, one of the least developed areas of West Bengal. The
area is rural and 89 percent of the population is dependent upon agriculture on reclaimed land
that produces a single paddy crop. Around 50 percent of the agricultural labourers are landless
and that figure is rising. Fisheries also produce a major source of employment and income for the
population, with nearly 42% of the population mostly schedule castes or tribes engaged in the
industry. However, the fish stock is declining, for instance in the catch of Hilsa which has been
reducing in the last four decades14. A small percentage of the population is engaged in fuel-wood
cutting and honey collection. Consequently, the vast majority of inhabitants are dependent on the
land and water for their livelihood15.

The population has also been rising rapidly, with a rise of a little over 160 percent just after
independence. It is estimated that by 2020 the population of the Sundarbans will grow to at least
4.6 million or more. Such a rapid increase in population has had, and will continue to have, an
adverse effect on the local environment. There have been changes in land use, such as

10
These include the blind gobid fish, a variety of eel, hilsa, pangasius, and several species of sharks and eels.
11
These include the sand coloured Dotilla, Dotilosis, Sesarma (tree crabs), Nereita and Neritina.
12
UNDP 2002 and 1986 Recommendations for World Heritage Site
13
2001 Census.
14
See Hazra et al, figure 13.
15
See Hazra et al ibid.
4
conversion of mangroves to agriculture and aquaculture, caused by urbanisation, conversion for
quick economic return or the exploitation of natural resources. It is predicted that mangrove
forest cover will diminish further with its effect on existing freshwater fish species that may
become extinct if appropriate adaptation measures are not made16.

3. Island Loss

Another Sundarbans phenomenon has also been given some recent attention by the international
media. On the 24th April 2006, The Independent (London) reported the first inhabited island to
disappear because of climate change. Lohachara Island, in the Indian Sundarbans, once home to
10,000 people, disappeared completely off the map due to severe coastal erosion caused by rising
sea levels17. The neighbouring uninhabited island of Suparibhanga (Bedford) also disappeared
during the same period totaling a combined land loss of 6212 square kilometers. Two thirds of
another island, Ghoramora Island, has also eroded forcing the inhabitants to move to the largest
island in the western Sundarbans, Sagar Island which is famous as a place of pilgrimage and
which hosts the Gangasagar Mela every January. It is stated that 1200 families, or over 10,000
people, have been displaced due to this island loss in the Indian Sundarbans over the past four
decades. There is estimated to be over 7000 environmental refugees from Lohachara Island alone
living of Sagar Island18. Those displaced to Sagar have been accommodated in seven colonies
scattered around the island19.

Island loss is an increasing concern both in the Sundarbans and globally. Of the 100 islands still
existing in the Sundarbans, many face serious risk of disappearing in the next few decades. The
main island in the Indian Sundarbans, Sagar Island, home to those refugees who have been
displaced by island loss, has lost 30 square kms in the last thirty years. The populations of the
villages of Khasimara, Baisnabpara, Khasimara Char and Baghpara have all been displaced and
have had to move further inland to survive.

16
Species such as Hertiera, Nypa and Zylocorpus, see Hazra et al. ibid.
17
http://climaction.blogspot.com/2006/12/global-warming-claims-first-
inhabited.htmlhttp://climaction.blogspot.com/2006/12/global-warming-claims-first-inhabited.html, also Hazra et al.
ibid.
18
See climaction.blogspot.com
19
Namely Gangasagar Colony, Jimbantala Colony (there are three), Bankimnagar Colony, Mahendragang Colony
Hiradenpur Colony and Ramghar Colony.
5
It has been estimated that the island will lose a further fifteen percent by 2020 if the loss
continues at the same rate. It is feared that this would render another 30,000 people homeless.
The island of Namkhana will produce 15,000 by this time. Other islands that are considered to be
at risk of disappearance include Ghoramara, Dublat G.P. of Sagar Island, G-Plot, Lothian,
Dhanchi, Bulcheri, Bhangaduani, Jambudwip and Mousuni. Taking the Sundarbans as a whole,
including the eastern Bangladesh side where island loss is more prevalent, it is estimated that
100,000 people could be rendered homeless by 202020.

Globally, this issue is also increasingly being recognised. Two uninhabited islands, Tebua
Tarawa and Abanuea, in the Pacific Atoll nation of Kiribati, were covered in 1999 by sea, which
was publicly attributed to global warming21. The populations of Vanuatu in the Pacific have been
evacuated as a precaution, but island loss threatens small islands from Marshall Island in the
United States to the Maldives, and has recently been recognised by the UN as a violation of
human rights22.

Island loss is not the only problem facing small islands. The Sundarbans islands have also been
prone to increased coastal flooding, failure of the erosion protection schemes and more severe
cyclones. This has had a further impact on coastal erosion, destruction of life and property and
the long-term security of the islands‟ inhabitants.

Of course general discussion about global environmental problems often masks the individual
human costs that such problems cause. The Sundarbans phenomenon is no exception, and it is
provides an illustration of how physical impacts of this nature affect the most impoverished and
most vulnerable of our planet the worst. In a recent visit to Sagar Island23 the following cases
were obtained through interviews, which highlight the economic loss and continued plight of the
first environmental refugees of climate change.

20
See Hazra et al, ibid.
21
Chang M: Exclusive Economic Zones, Department of Geography, Butte College (California) at
http://www.geography.about.com/library/misc/uceez.htm).
22
http://www.abc.net.au/news/stories/2008/03/29/2202652.htm?section=justin
23
March 2008. During the visit a number of officials were spoken to including, the Member of the Legislative
Assembly, the District magistrate in charge of the Sundarbans and the pradhan of the panchayat of Sagar Island
6
 a) Sheikh Samsul was a resident of Lorachara Island. His family had 12-13 bighas24 of
fertile land on which he grew rice, watermelons and vegetable. Their income was
supplemented through fishing. His family had a comfortable existence. The family lost
their land around 25 years ago and moved to Gangasagar Colony on Sagar Island. Sheikh
Samsul‟s families were given two bighas of reclaimed land by the local panchayat. His
family, consisting of three sons and a daughter, survive on the vegetables grown on this
land and prawns which they catch.

b) Abhimuna Ghory was a resident of Ghoramora Island for two generations. Her family
owned 17 bighas of land on which they grew rice and dhal and supplemented their
income through fishing. On arrival on Sagar Island, his family was given 1 bigha and 15
cotta of land in Gangasagar Colony, which was of inferior quality to that which they had
in Ghoramora.

c) Sheikh K Abdul Motaleb was a resident of Lorachara Island. His family owned 60 bighas
of land on which they grew vegetables and fruits. When they were displaced in 1983 they
were given 2 bighas of land in Gangasagar Island. Sheikh Motaleb earns Rs2500 per
month as an official in the youth hostel and whatever is earned from the land.

It is important to note that these examples are purely illustrative and do not represent the sum of
the losses of those displaced through island loss. However it is clear from the above, that those
affected have at least sustained severe economic loss, which has put them and their families
economically and therefore socially back many generations. So is this simply a case of bad
karma, or does the law have relevance to this situation?

24
In West Bengal 3 bighas:1 acre.
7
4. The Rise of Global Warming

The fact that the earth is warming due to human activity is today one of the most topical and
concerning environmental issues, but it has only been generally appreciated over the last few
decades. The possibility of man-made interference with the climate system was suggested as far
back as 1827 by Fourier and then by the scientist Svente Arrhenius 25 and gained renewed global
interest in the 1950‟s. However, it is only since the late 80‟s 26 and in particular since the IPCC
published its First Assessment Report (AR1) in 1990, that scientists have begun to understand
more about how the climate works and started predicting the changes and impacts on the earth‟s
environment. Consequently, there remains a substantial degree of ignorance, and not a little
sceptism, about the physical impacts, which have been attributed or are being attributed to
climate change.

In the Sundarbans situation, there has been a long history of both island land loss due to erosion
and indeed land formation or accretion caused through the depositing of silt by the rivers. Of
course, the fact that this phenomenon has been occurring as far back as records were made, does
not negate the fact that, from our current knowledge and understanding climate change could at
least now be a contributory factor.

A Jadavpur University study27 on the Indian Sundarbans, conducted over a 14-year period till
1998, made the following scientific findings on the region:

a) The sea-level rise (SLR) had an average increase of around 3.14mm/year.

b) The surface air-temperature rise has a correlation with the rise in sea level.

c) Rate of coastal erosion and land loss has a correlation with sea level rise.

25
See for example Arrhenius, on the influence on the carbonic acid in the air upon the temperature on the ground,
Philosophical Magazine 41 (1896) in Roda Verheyen, Climate Change Damage and International Law, Prevention
Duties and State Responsibility, Martinus Nijhoff Publishers Amsterdam (2005).
26
See The Brundtland Report of 1987.
27
See Hazra et al,. ibid
8
The report from the study, which looked at coastal erosion on a number of different islands,
concluded:

“From the present analysis it is apparent that sea level rise has a dominant influence (my
emphasis) on coastal erosion. But it is also worth noting that at some places sea level rise has a
strong influence on the processes leading to accretion and vice versa”28.

In other words, sea level rise has contributed and contributes to island loss.

5. The Correlation between Sea-Level Rise and Global Warming

Research has certainly shown a correlation between global average temperature rise and seal
level rise since the late 19th century. The IPCC Second Assessment Report published in 1995, in
particular, links the rise in global mean temperature with sea-level rise, and predicts that the
impacts of climate change could include inter alia coastal erosion, increased frequency and
severity of extreme events, especially in the developing countries. Further, there has been
enormous progress in the field of regional detection and attribution and scientists are more
certain of the causations and predictions both on a global and regional level. The Fourth
Assessment Report (Working Group one) published in 2007 finds the following29:

a) Oceans have absorbed nearly 80% of the heat added to the climate system and caused
sea-water to expand, resulting in sea-level rise

b) Anthropogenic temperature rise and associated sea-level rise will continue owing to time-
scales associated with climate processes even if greenhouse gas emissions were stablised.

The scientific evidence certainly tends to indicate that the rise in the earth‟s mean temperature
and regional temperature rises, like those studied in the Sundarbans, are contributing to the rise
in sea-levels, which in turn contribute, to island loss. Although of course the IPCC‟s findings are
only those of one group of scientists and there will no-doubt be contrary scientific views, it is
28
See Hazra et al, section on “Correlation Study Between Sea-Level Rise and Coastal Erosion”
29
See http://www.ipcc.ch/pdf/assessment-report/ar4/wg1/ar4-wg1-spm.pdf
9
likely that the IPCC‟s findings would be given very high evidential value. This is because the
IPCC is an impartial body set up by UN institutions; it looks at scientific studies including those
that doubt climate change and its impacts and does not commission its own research. Thus as
Roda Verheyen, states30:

“… even if a small minority of so-called „climate change sceptics‟ can still voice its own
doubtful scientific opinions in the media, it would be difficult indeed in a court of law to rebut
conclusions made by the IPCC with single pieces of science originating (from) one of these
sceptics”.

6. The Current State Response

So what has been the Governmental response to the Sundarbans phenomenon so far? This is
important not only in relation to people in the Sundarbans, but is also indicative of India‟s
readiness to adapt to climate change impacts generally. Even in relation to sea-level rise, it is
understood that increased coastal erosion and the consequent displacement of people is being
seen in a number of Indian states, including Orissa and Tamil Nadu. However, the future
predictions of impacts of climate change in India, as one of the top-30 countries affected31,
include32:

Acute water shortage and thermal stress could cause a decline in agricultural yields,
in particular rice and wheat, on which 65 percent of India‟s agriculture is dependent.

Rise in temperatures may increase productivity of tropical forests with a decrease in

the productivity of deciduous forests, including hardwoods such as teak.

Agriculture in coastal areas will be most susceptible to increased sea levels through
the effects of flooding and salinisation. Coastal infrastructure, tourism and oil
exploration are at risk. There is also an increased risk of cyclones such as that which
occurred in Orissa in 1999 killing 10000.

30
Verheyen, pp 20, ibid
31
Sir Nicholas Stern, Economics of Climate Change, October 2006
32
http://www.moef.gov.in/cc/index.htm
10
These effects will clearly cause further human displacement, economic loss and social
retardation as people leave the land that is unable to sustain them, or through natural disaster.

Notwithstanding the already substantial displacement of people in the Sundarbans, there appears
to be little in the way of any planned programme of action to avoid future island loss. Hazra et
al33 even report that a 3520km earthen embankment made in the earlier part of the 20th Century
to protect agricultural land from saline flooding has fallen into disrepair, causing a breach of the
embankment during cyclones and monsoons. This has caused 950 million Rupees worth of
damage to crop and forest property, affecting 0.4 million people and displacing 600 families over
the past two decades.

Furthermore, in relation to rehabilitation and compensation, I was told on Sagar Island, that the
displaced have been accommodated, on a “first come, first served” basis through the local
panchayat (village council), with the earlier displaced persons getting more of the diminishing
amount of land that is available. The West Bengal State Government has distributed reclaimed
land under its power in the West Bengal Land Reforms Act 1956, which is an Act for reforming
the land tenure laws in West Bengal. There is however no specific law or policy to rehabilitate
or to compensate those displaced by the island loss. Whilst there is on-going research in relation
to adaptation to climate change in India, including research into island loss in the Sundarbans 34,
and the Government is spending money on adaptation programmes35, it is unclear what legal
measures are being contemplated in order to integrate climate change impacts into existing
damage prevention, disaster management and compensation provisions. For instance, there is no
mention of climate change impacts specifically on the National Disaster Management Authority
website36, nor any specific reference to the Sundarbans phenomenon, or other climate change
impacts on the West Bengal website on disaster management37. No official, either in West
Bengal or in the Ministry of Environment was aware of any law or policy that was being

33
See Hazra et al ibid.
34
See India‟s National Communication to the UNFCC at http://www.natcomindia.org/
35
See for instance http://envfor.nic.in/divisions/ccd/Addressing_CC_09-10-07.pdf
36
http://ndma.gov.in/wps/portal/NDMAPortal
37
http://www.wbgov.com/e-gov/English/Departments/DepartmentFrameNew.asp?DpId=215
11
contemplated to deal with direct damage prevention or compensation for those who have
sustained loss.

On a national level there is a National Environment Tribunal that was set up to provide damages
for accidents occurring while handling hazardous substances, although it is unlikely that this
Tribunal could be used to provide compensation to victims of climate change (also they have not
been notified even after 13 years). Neither is it likely that liability under the Public Liability
Insurance Act 1991 could be used to provide compensation for victims of climate change without
further clarification by the Government through an order or amendment.

There have been a number of recent initiatives by Central Government. There will be a climate
change policy published in June, which it is said will concentrate on three areas, international
negotiations, implementation of a national action plan and research on climate change. India has
proposed that the negotiation should proceed on three fronts, mitigation of climate change,
adaptation to existing risks from climate change and technology transfer. The action plan to be
finalised by the Prime Minister‟s Coordination Committee on Climate Change, will be
implemented by a special cell in the Ministry of Environment and Forests (MoEF)38 However, it
is not known whether the initiatives will propose the necessary legal and policy changes that are
necessary in order that direct damage prevention and compensation of all potential victims of
climate change can be fully and properly implemented.

Any proper legal response to the issue of direct damage prevention for coastal zones and marine
ecosystems, such as the Indian Sundarbans, from climate change impacts, needs to be fully
integrated and coordinated into legal and planning processes. It requires both reactive and
anticipatory adaptation measures39. For instance the legal response to reactive adaptation
measures should include legal and policy measures to mandate and promote:

Protection of the economic infrastructure

Public awareness to enhance protection of coastal and marine ecosystems

38
http://timesofindia.indiatimes.com/India/Govt_moves_to_quell_turf_war_on_climate_change_policy/articleshow/
2966656.cms
39
United Nations Framework Convention on Climate Change, Climate Change: Impacts, Vulnerabilities and
Adaptation in Developing Countries at
http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/txt/pub_07_impacts.pdf
12
 Building sea walls and beach reinforcement
Protection and conservation of coral reefs, mangroves, sea grass and littoral vegetation.

Similarly, an anticipatory adaptation mechanism would require legal measures, which provide:

Integrated coastal zone management40

Better coastal planning and zoning
Development of legislation for coastal protection
Research and monitoring of coasts and coastal ecosystems

Notwithstanding both reactive and anticipatory measures to directly prevent climate change
damage, there will continue to be some residual damage occurring. The legal framework needs to
be able to provide adequate compensation through systems of designated funds or government-
backed insurance schemes41.

7. International Obligations to Directly Prevent Damage (Adaptation)

The international legal framework on climate change recognises the plight of the inhabitants of
small islands and low-lying coastal areas due to sea-level rise42, but how much does it obligate
Parties to undertake measures to prevent direct damage and who is responsible for paying for it?
Is there any obligation on India to implement measures to prevent island loss in the Sundarbans?

The United Nations Framework Convention on Climate Change (FCCC) 1992 ratified by India
on the 1st November 1998 provides a basis for the argument. One of the founding principles of
the FCCC states:

“3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes
of climate change and mitigate its adverse effects. Where there are threats of serious or

40
The Coastal Zone Regulation 1991 under the Environment Protection Act 1986 needs to be fully integrated with
resource laws on water, land-use, forests etc.
41
which is an international obligation, see FCCC article 4.8 below
42
See Preamble to the FCCC and UN Resolution 44/206 of 22nd December 1989.
13
irreversible damage, lack of full scientific certainty should not be used as a reason for postponing
such measures, taking into account that policies and measures to deal with climate change should
be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such
policies and measures should take into account different socio-economic contexts, be
comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and
adaptation, and comprise all economic sectors. Efforts to address climate change may be carried
out cooperatively by interested Parties”43.

Article 3.3 of the FCCC provides for the precautionary principle, succinctly stating that the lack
of scientific certainty cannot be used to postpone action to mitigate it adverse effects. In the
context of the Sundarbans phenomenon, it could be argued that notwithstanding the fact that
there is no conclusive proof that climate change is contributing to island loss, adaptation policies
and measures, including necessary compensation for loss should be provided for. Another point
that can be made by Article 3.3 is that it contemplates that adaptation policies and measures will
be necessary because of the fact that there would be adverse effects. Therefore, signatories have
recognised that climate change impacts are a reality and that there is a need to adapt to them.

Roda Verheyen considers that Article 3.3 has “significant implications for the adaptation policies
of governments”44. She believes that Parties that foresee damage (and that of course will depend
upon the evidence that is available) will be required to take adaptive action in order to prevent
further damage. She gives the example of reducing vulnerabilities to coastal erosion and storms
in certain coastal areas and considers that, the national legal system permitting, an individual
should be able to rely on the precautionary principle to demand protective action, rather than
waiting for residual damage to occur.

As a Commitment under the FCCC, the Convention provides that:

“All Parties, taking into account their common but differentiated responsibilities and their
specific national and regional development priorities, objectives and circumstances shall:

43
United Nations Framework Convention on Climate Change (FCCC), Article 3.3.
44
Roda Verheyen, page 77, ibid.
14
Formulate, implement, publish and regularly update national and, where appropriate, regional
programmes containing measures to mitigate climate change by addressing anthropogenic
emissions by sources and removals by sinks of all greenhouse gases not controlled by the
Montreal Protocol, and measures to facilitate adequate adaptation to climate change”45 (my
emphasis).

Article 4.1(b) is clear on its face. There is a duty on all Parties to the Convention to implement
programmes containing measures to facilitate adequate adaptation to climate change and directly
prevent damage. There is the further obligation to report the fulfillment of this obligation under
Article 12.1 of the FCCC.

Notwithstanding this obligation, it appears that only developed countries have been the most pro-
active in defining their adaptation needs in their national communications. However, developing
countries must also undertake anticipatory, planned adaptation measures and cannot rely on
adaptation by natural or human systems46. Dr Verheyen considers that both Annex I and non-
Annex I Parties (developed and developing countries) consider themselves bound by the duty
established under Article 4.1(b), as evidenced by their national communications, which should
and, often do, contain climate change adaptation action plans.

Two of the terms within Article 4.1(b) need some further clarification. “Measures to facilitate”
should be given a literal meaning to “help, aid or assist”, but should not be restricted to that.
Once again it is considered that the measures can include the full range of measures that would
enable “adequate adaptation”, including both interventions in health, education or housing
sectors, as much as “hard” adaptation measures such as the building of dikes, or the planting of
trees in coastal areas to soften the impacts of tidal waves 47. “Adequate” adaptation is not defined
by the FCCC and allows for a whole range of measures to be adopted whilst not obliging Parties
to carry out any particular kind or type of measure. The provision also does not specify the time

45
FCCC, Article 4(1)(b).
46
See Roda Verheyen, pp85, ibid.
47
Verheyen, pp86, ibid, which is supported by Article 4.1(e) which states that Parties shall :”cooperate in
preparing for adaptation to the impact of climate change develop and elaborate…plans for coastal zone
management, water resources and agriculture, and for the protection and rehabilitation of areas, particularly in
Africa, affected by drought and desertification, as well as floods” which does not contain any positive requirement
in contrast to Article 4.1(b).
15
period in which the duty arises, nor does it set a deadline for either the formulation of the
adaptation programmes or their implementation. However adaptation measures that breach other
international or national rules could be deemed inadequate.

In the context of the Sundarbans phenomenon, the current paucity of adaptation measures is
likely to breach India‟s obligations under the 1972 UNESCO Convention Concerning the
Protection of the World Cultural and Natural Heritage, which contains binding protection
obligations in relation to specific sites for the benefit of the “world heritage of mankind as a
whole” and thus make them also inadequate in relation to climate change law.

The FCCC also provides that all Parties shall:

“Cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate
appropriate and integrated plans for coastal zone management, water resources and agriculture
and for the protection and rehabilitation of areas, particularly in Africa, affected by drought and
desertification, as well as floods”48.

Of course adaptation measures should only be undertaken after a full assessment of a particular
region‟s or community‟s vulnerability to climate change which should also focus on factors
highlighted to assist countries including, the degree of economic efficiency, environmental
sustainability, technical feasibility, administrative/legal admissibility, and the social acceptability
of the measures49. The term therefore leaves a degree of discretion to the State Party to choose
between preventing residual damage and accepting it.

However, the Sundarbans‟ islanders, notwithstanding the fact that the FCCC cannot be enforced
domestically50, could mount a strong argument that India is currently in breach of its
international obligations to have adequate measures to combat the island loss.

48
FCCC Article 4.1(e)
49
. See Klein/Tol, Adaptation to Climate Change: Options and Technologies, Technical Paper FCCC/TP/1997/3.
See also UNDP Adaptation Policy Framework (http://www.undp.org) which seeks to assist in making such choices.
50
There is currently not legislation giving effect to the FCCC are required under Article 253 of the Constitution of
India.
16
8. The Costs of Adaptation

The major issue in direct damage prevention in developing countries is who should pay for it.
Adaptation to the climate change impacts is going to cost a huge amount of resources. By 2030
the adaptation funds required were estimated at: USD 14 million for agriculture, forestry and
fisheries; USD 11 billion for water resources; USD 5 billion for human health; USD 11 billion
for coastal zones; and USD 8 –130 billion for infrastructure. In summary, the UNFCCC
secretariat estimated that the investment and financial flows needed for adaptation are likely to
be tens of billions of dollars per year several decades from now and could be more than USD 100
billion per year. Other studies also estimate adaptation costs at tens of billions of dollars per
year51.

The FCCC recognises both that the global nature of the problem calls for “widest possible
cooperation” between countries and that the response should be in accordance with their
“common but differentiated responsibilities”, their respective capabilities and their social and
economic conditions52. The Convention however contains specific provisions that deal with how
the international community should deal with the funding of adaptation in developing countries.

Article 4.8 states that Parties….shall:

“give full consideration to what actions are necessary under the FCCC, including action related
to funding insurance and the transfer of technology, to meet the specific needs and concerns of
developing countries Parties arising from the adverse effects of climate change and/of the
implementation of response measures especially on:

(a) Small island countries;

(b) Countries with low-lying coastal areas;
(c) Countries with arid and semi-arid areas, forested areas and areas liable to forest decay;
(d) Countries with areas prone to natural disasters;
(e) Countries with areas liable to drought and desertification;

51
United Nations Framework Convention on Climate Change, Climate Change: Impacts, Vulnerabilities and
Adaptation in Developing Countries, pp.40, ibid
52
See Preamble to FCCC.
17
(f) Countries with areas of high urban atmospheric pollution;
(g) Countries with areas with fragile ecosystems, including mountainous ecosystems;
(h) Countries whose economies are highly dependent on income generated from the production,
processing and export, and/or on consumption of fossil fuels and associated energy-intensive
products; and
(i) Landlocked and transit countries”.

Further Article 4.9 states the Parties… shall:

“take full account of the specific needs and special situations of the least developed countries in
their actions with regard to funding and transfer of technology”.

The considered view is that Article 4.8 includes direct damage prevention schemes and funding
insurance for consequent damage, such as island loss, as evidenced through the discussion held
in the International Negotiation Committee of the FCCC about insurance schemes for residual
damage53. “Concerns” can include both the financial and technological needs for adaptation to
prevent damage to property, territory and life and the financial and technological needs for
addressing climate change induced damage that cannot be prevented through adaptation
measures54.

The FCCC also provides for certain financial commitments and mechanisms for direct damage
prevention.:

“The developed country Parties and other developed Parties included in Annex II shall provide
new and additional financial resources (my addition) to meet the agreed full costs incurred by
developing country Parties in complying with their obligations under Article 12, paragraph
53
Decision 5/CP7 (FCCC/CP/2001/13/Add.1) took up this mandate and asked the Secretariat to hold workshops on
how to progress on the issue of insurance. Two workshops on this issue were held in May 2003, one on insurance
and risk assessment in the context of climate change and extreme weather events, the other on insurance-related
action to address the needs of developing country Parties arising from the adverse effects of climate change and
from the impact of the implementation of response measures. See Linneroth-Bayer/Mace/Verheyen, Insurance-
Related Actions and Risk Assessment in the Context of the FCCC, Background Paper, May 2003 and
FCC/SBI/2003/11. Report on the FCCC workshops on insurance. Recorded in Verheyen, page 89.
54
Roda Verheyen, pp 89, Ibid
18
1(communication of information, my addition). They shall also provide such financial resources,
including for the transfer of technology, needed by the developing country Parties to meet the
agreed full incremental costs of implementing measures that are covered by paragraph 1 of this
Article and that are agreed between a developing country Party and the international entity or
entities referred to in Article 11, in accordance with that Article (my addition). The
implementation of these commitments shall take into account the need for adequacy and
predictability in the flow of funds and the importance of appropriate burden sharing among the
developed country Parties”55.

In other words there is a financial obligation for developed country Parties to inter alia provide
financial resources to fund the adaptation measures in Article 4.1(b) and cooperation in
preparation for adaptation measures in 4.1 (e).

Additionally, Article 4.4 states that:

“The developed country Parties and other developed Parties included in Annex II shall also assist
the developing country Parties that are particularly vulnerable to the adverse effects of climate
change in meeting costs of adaptation to those adverse effects”.

It is considered that this provides an unlimited basis for adaptation and the most costly provision
in the Convention itself. Professor P Sands has commented that Article 4.4 “amounts to an
implicit acceptance of the responsibility for causing climate change”56. It is further asserted that
the financial obligations in 4.3 and 4.4 are mandatory and differ substantially from other
voluntary assistance. Correspondingly, the climate regime, uniquely provides developing
countries with a legal basis to claim funds from developed countries for the purposes defined in
the FCCC and in particular for dealing with climate change damage57. The „linking clause‟ also

55
FCCC Article 4.3
56
Sands, The United Nations Framework Convention on Climate Change, 1 RECIEL (1992) as quoted in Verheyen,
pp 92.
57
During the negotiations of the FCCC, developing countries emphasised that the implementation of any obligations
by them, including the duty to implement adaptation measures, would depend on new financial commitments by the
developed countries.
19
seems to indicate that developing countries should or could only undertake adaptation measures
when developed countries have provided the means to do so:

“The extent to which developing country Parties will effectively implement their commitments
under the Convention will depend on the effective implementation by developed country Parties
of their commitments under the Convention related to financial resources and transfer of
technology and will take fully into account that economic and social development and poverty
eradication are the first and overriding priorities of the developing country Parties”58.

So what are the exact legal obligations contained in Articles 4.3 and 4.4 of the FCCC? The
concept contained in Article 4 that the developed countries should fund only the “incremental
costs of measures” is somewhat problematic. Incremental costs are not defined but clearly apply
one of the underlying principles of the Convention that only adaptation costs to climate change
damage should be met. So in relation to the Sundarbans phenomenon, where human-induced
sea-level rise is only a contributor to island loss, how would it be possible to clearly calculate
how much of the direct damage prevention costs would be attributable to climate change and
those attributable to natural climate variability? How much of the cost of a sea wall on southern
Sagar Island would have to be borne by the developed countries?

Another problem is that the text of Article 4.3 implies that financial entitlements for adaptation
purposes are to be determined by the real needs of developing countries on an agreed basis. This
is seemingly confirmed by paragraph 5 of the MoU59 concluded between the Conference of
Parties and the Global Environmental Facility (GEF), which is the Convention‟s Financial
Mechanism, which states: “funding decisions for specific projects should be agreed between the
developing country Party concerned and the GEF in conformity with policy guidance from the
COP”. Therefore, if the GEF rejects a project the developed country parties need not provide any

58
FCCC, Article 4.7
59
Para 5 of the MoU: “If any Party considers that a decision of the Council regarding a specific project in criteria
established by the COP in the context of the Convention, the COP should analyse the observations presented to it by
the Party and take decisions on the basis of the compliance with such policies, programmer priorities and eligibility
criteria. In the event that the COP considers that this specific project decision does not comply with the policies,
programme priorities, and the eligibility criteria established by the COP, it may ask the Council of the GEF for
further clarification on the specific project decision and in due time may ask for a reconsideration of that decision”.
20
funding. This considerably weakens the commitment under Article 4.3 that does not provide
developing countries with a direct claim for adaptation funds from developed countries.

Article 4.4 is perhaps a less problematic route to obtaining financial resources for damage
prevention from developed countries. There is no specific reference to any agreement or to
incremental costs; however, the Convention does not provide any definition to the phrase
“particularly vulnerable”. A number of vulnerability factors have been identified under Article
4.8, including “countries with low-lying coastal” regions mentioned in the Preamble to the
Convention, but this would include almost all developing countries. This lack of clarity has led
Parties to agree that it is necessary to identify particularly vulnerable Parties in order to
implement Article 4.460. It is understood that no such list has been made which leaves open the
question as to which developing country Parties are “particularly vulnerable” under the
Convention.

Article 4.4 also somewhat muddies the waters through the use of the term “assist in meeting the
costs”. It is unclear about the extent of the funding to be provided and the phrase itself seems to
imply that not all the costs should be from developed country Parties. “Assist” could be any
support provided, even on a very small scale relative to the total cost of the activity. Article 4.4
has not been discussed extensively, so the Parties have offered no clear views. However, on a
proper interpretation of the Article it must be the needs of the countries, rather than the
willingness of developed country Parties to pay for adaptation needs which are paramount. Also
Article 4.4 has to be contrasted with Article 4.3 where only the adaptation needs or proportion of
costs arising from climate change could be obtained. There is therefore a strong argument that
the international legal obligations require developed countries to provide funds to prevent island
loss in the Sundarbans and to assist in creating a legal framework that could meet the adaptation
needs.

60
Report of COP1, FCCC/CP/1995/Add.1, para 1(d)
21
9. The International Climate Change Funds

So what funds could be made available to the inhabitants, say of Sagar Island, and how
accessible are these? Pursuant to Article 21.3 FCCC and certain decisions of the COP, funding
under the FCCC is provided by its financial mechanism the GEF as mentioned above. The GEF
was established as a joint project of United Nations Environment Program (UNEP), United
Nations Development Programme, and the World Bank in 199161 to address the financial needs
to fight biodiversity loss, climate change, degradation of international waters and ozone
depletion-the four focal areas62. Developing countries were concerned about the attachment of
the GEF to the World Bank (and consequently the United States as its major contributor), and
correspondingly Article 11 FCCC was added which defines a “financial mechanism” for the
provision of financial resources on a “grant or concessional basis” for the implementation of the
FCCC. It further stipulates that the mechanism will function under the “guidance” of, and be
accountable to, the COP. This guidance is limited in scope to “policies, programmes priorities
and eligibility criteria” and does not extend to specific funding decisions”.

The GEF has an operational strategy, upon which all its decisions are based63. It states that, inter
alia, the projects financed or co-financed by the GEF shall result in “global benefits”. According
to the strategy, such benefits are obtained whenever a global environmental objective is met. In
the context of funding for direct damage prevention this is problematic as, by definition such
action usually benefits only the region or country in which the measures are undertaken.
Consequently, the GEF‟s projects have been focused on mitigation measures, in particular on
renewable energy and energy efficiency, which through greenhouse gas reduction will have a
clear global environmental benefit. This is clearly a major, and in the author‟s views, an
unwarranted funding criteria. The purpose of the funding is surely to ensure that there is some
distributive justice from those who are responsible for the problem to those who are victims, and
61
Dec. 12/CP.2, FCCC/CP/1996/15/Add.1, 55. The COP designated the GEF as an operating entity of the financial
mechanism on an on-going basis, subject to review every four years at COP 4 (3/CP/4, FCCC/CP/1008/16/Add.1).
62
For more detail, see GEF Report on the Development of a Climate Change Strategy, FCCC/CP/1995/4; Report of
the Global Environment Facility to COP2, FCCC/CP/1996//8; GEF Report to COP4, FCCC/CP/1998/12; GEF
Report to COP5, FCC/CP./1999/3; GEF Report to COP 6, FCCC/CP/2000/3 and FCCC/CP/2000/3/Add.1; GEF
report to COP7, FCCC/CP/2001/8; GEF Report to COP8, FCCC/CP/2002/4; GEF Report to COP9,
FCCC/CP/2003/3 and GEF Report to COP 10, FCCC/CP/2004/6.
63
Global Environment facility, Operational Strategy, February 1996 at Http://gefweb.org.
22
correspondingly there should be no need to make an assessment of the global environmental
benefit of the measures to be taken. However, in the context of the Sundarbans meeting the
“global benefit” criteria should not present a difficulty, owing to the area‟s status as an World
Heritage Site and therefore of global environmental importance (see above).

The GEF has operationalised funding in three stages. Stage I provides support for the national
communications process, a portion of which is the vulnerability and adaptation assessment. Stage
II provides further assistance for other capacity-building efforts for adaptation. Stage III refers to
support for actual adaptation activities, including insurance.

The GEF currently operates a number of separate funds for adaptation measures:

Least Developed Country Fund (LDCF)64.

Strategic Priority on Adaptation (SPA)65.
Special Climate Change Fund (SCCF)66.

Another fund, the Adaptation Fund67, has been receiving money for several years but has not
been operationalised because of disagreements on who should manage it. Developing countries
did not want the GEF governing the Fund, owing to the limited funding criteria and the Fund‟s
potential size. At Bali, however, it was decided, due to pressure from developing countries, that
the Fund should be independent of the GEF with its own representative governing Board and
64
(LDCF) is a development-focused fund. It supports the poorest countries, which are most vulnerable to climate
change impacts (India is not one). The fund provides support to LDCs as they prepare National Adaptation
Programmes of Action (NAPA) in which they identify their most urgent adaptation needs. Following their
completion, additional funds will be made available to assist LDCs to implement the NAPAs, probably through
expedited, medium-sized projects up to US$ 1.5 million. This fund became operational in July 2001.
65
SPA is an ecosystem/focal area focused fund. The goal is to ensure that climate change concerns are incorporated
in the management of ecosystems through GEF focal area projects. It will pilot demonstration projects concerned
with the management of ecosystems to show how climate change adaptation planning and assessment can be
practically integrated into national policy and sustainable development planning. This fund became operational in
July 2004. The SPA is a pilot programme of US$ 50 million which will be evaluated by the GEF before additional
funds are allocated. (View Council Document: Oct. 2005)
66
(SCCF) is also a development-focused fund concerned primarily with activities, programmes and measures in the
development sectors most affected by climate change. Areas of support include adaptation in agriculture, water
resources management, health, disaster-risk management and coastal zone management. This fund became
operational in October 2005
67
The Adaptation Fund is not active as yet and is not expected to generate significant resources until at least 2010.
Therefore the primary focus of this website is programming for the SPA, LDCF, and SCCF
23
eventually its own Secretariat68. This is a major step forward in trying to ensure justice in climate
change.

The majority of the climate change funds under international law are therefore mainly intended
to promote capacity building into adaptation planning, pilot projects, and programmes in the
least developed countries. The Sundarbans islanders could potentially use the Adaptation Fund
to fund concrete direct damage prevention schemes69. There are also a number of other
international funds which could be used for the assessment of climate change risks, technology
transfer, or emergency response70.

On a global level there is large disparity between the needs as identified by the FCCC and the
resources for adaptation available from the international funds. For instance the amount of
money available in the existing funds amounts to USD 275 million as of August 2007. The
Adaptation Fund could receive USD 80-300 million for each year of the first commitment period
(2008-2012)71. This indicates a serious shortfall in funding for direct damage prevention for
developing countries and indicates that they will need to look at other methods of funding direct
damage prevention from, other revenue72, or from other multilateral environmental treaties. In
the Sundarbans context, particularly in relation to its environmental importance, India could rely
on the United Nations Law of the Sea Convention (UNCLOS) 73; Convention Concerning the

68
See “Major news from Bali climate conference: Victory for the vulnerable with decision on climate-change
adaptation fund”, International Institute for Environment and Development, 11th December 2007 at:
http://www.iied.org/mediaroom/releases/071211Bali.html
69
Information on how these funds, including the Adaption Fund can be accessed can be found at:
https://login.undp.org/smforms/login.fcc?TYPE=33554433&REALMOID=06-a027ebb1-44a7-1001-b928-
834f91350000&GUID=&SMAUTHREASON=0&METHOD=GET&SMAGENTNAME=-SM-
jDTUZ2FVzvXrzyCydSJv9prWLp2lnkltQLZ2j6P1qwpfBXzbw%2be8issJKuboprmw&TARGET=-SM-
http%3a%2f%2fintra%2eundp%2eorg%2fgef%2fadaptation%2fannexes%2f07_PDG_v2a%2ehtml
70
Dr Benito Muller, Director Oxford Climate Change Policy UK, Sources and Mechanisms for Financing
Adaptation, 25th-26th February 2008, page 6, at:
http://209.85.175.104/search?q=cache:YkSst3OzdJcJ:www.teriin.org/events/docs/adma_presentation/2benito.pdf+a
daptation+fund+and+governance&hl=en&ct=clnk&cd=6&gl=in
71
. The Adaptation Fund is funded by a 2% levy on the Clean Development Mechanism of the Kyoto Protocol. See
United Nations Framework Convention on Climate Change, Climate Change: Impacts, Vulnerabilities and
Adaptation in Developing Countries, pp. 38, ibid
72
Muller 2008, ibid
73
Island loss could lead to substantial losses of maritime zones and corresponding sovereign rights (Article 6). The
use of customary international law could be used to gain compensation.
24
Protection of the World Cultural and Natural Heritage (UNESCO)74; and Convention on
Biological Diversity75 amongst others.

The Bali Action Plan arising out of the Bali Conference recognises the need to have “enhanced
action on adaptation”, including inter alia: “disaster reduction strategies and means to address
loss and damage associated with climate change impacts in developing countries that are
particularly vulnerable to the adverse effects of climate change”76. The Plan also requires
“enhanced action on the provision of financial resources to support action on. adaptation and
technology cooperation”. This is a step forward and it is hoped that it will engender new or better
legal instruments to resource adaptation measures.

10.Conclusion

The phenomenon of island loss in the Indian Sundarbans represents only the tip of the iceberg
(no pun intended) in relation to damage through climate change impacts, but like the dew drop
on a leaf reflects the much wider issues of climate change surrounding it. Climate change will
inevitably affect hundreds of millions of the most vulnerable people on our planet. Those like the
Sundarbans islanders who have least contributed to the problem will be most affected by its
hungry tide. The case shows that the world has not yet fully woken up to the reality that it is
facing. The scientific basis of climate change, and even its most subtle impacts, are not
completely understood or accepted at the highest level. The business as usual attitude permeates
into the lack of concrete action on the international, national and regional level notwithstanding
certain legal obligations to do so.

Environmental refugees, those who will face displacement though land loss, water shortage, or
flooding due to global warming, like their Refugee Convention counterparts77, require a global
humanitarian response. Adequate adaptation and reparation for victims of residual damage
cannot be left to the individual actions of state-actors or communities to take action for breaches

74
Through a request for financial assistance with the World Heritage Committee (Article 13.1).
75
Through use of its no-harm rule (Article 3)
76
See 1(c)(3)
77
Convention Relating to the Status of Refugees 1951.
25
of international public or private law78. A proper international legal framework must exist for the
recognition of actual or potential damage attributable to climate change; State Parties must fulfill
their “common, but differentiated responsibility” through providing sufficient resources through
national taxation schemes for the heaviest polluters if need be; and receiving States must ensure
that there are legal mechanisms in place for both reactive and anticipatory adaptation measures.

One such suggestion on a national level is a Climate Change Security Act. The Act should
mandate all relevant ministries and institutions to have nodal officials who are concerned with
looking at climate change needs from the prospective of their ministry and be involved with
planning and creating implementing policies and action plans. There should be a full study of
India‟s vulnerabilities and adaptation needs. This should include analysing impacts on water
resources, agriculture, biodiversity, ecosystems and human health. Anticipatory actions should
be contemplated in all development programmes and the Act should ensure that the legal
measures for both reactive and anticipatory adaptation needs are integrated into all relevant
natural resource laws.

The noise around publicising and campaigning on issues can often drown out the quiet footfalls,
which illuminate an issue and reveal its full form. The footfall of the Sundarbans needs to be
heard, the hungry tide awaits.

78
A section on litigation is For more information on litigation, see Roda Verheyen ibid and
Anita M Halvorssen, Implementing the Climate Regime: International Compliance, (Book Review), 17 Colorado
Journal of International Environmental Law and Policy 1 (2005-6).
Ken Alex, A Period of Consequences: Global Warming as a Public Nuisance, 43 Stanford Journal of International
Law 77(2007).
Elizabeth E Hancock, Red Dawn, Blue Thunder, Purple Rain: Corporate Risk Liability for Global Climate Change
and the Sec Disclosure Dilemma, 17 Geo International Environmental Law 233 (2004-2005).
Combating the Impacts of Global Warming: A Novel Legal Strategy, 13 Colorado Journal of Environmental Law
and Policy 171 (2002).

26