Who should pay for climate change disasters?

To a casual observer of the latest round of United Nations climate talks in Warsaw, Poland, last week, it was a battle between Polish coal miners determined to hang on to their jobs, and the people of the Philippines, who would rather not lose their lives to the tempests likely unleashed by climate change.

In the corridors, the talks looked different: another stage in the agonisingly slow crawl towards a deal on carbon emission that diplomats hope to seal in 2015.

Little progress was made on most issues, but the two-week negotiations did end with an outline agreement that could one day allow people like the Filipino victims of the super-typhoon Haiyan to use science to sue coal-mining firms and power companies for compensation.

The deal was still being hammered out on Saturday – a day after the talks were due to close. After compromises from all sides, the negotiators agreed to set up an "international mechanism to provide most vulnerable populations with better protection against loss and damage caused by extreme weather". It was a tacit acceptance that the promises made by governments at the Earth Summit in Rio de Janiero in 1992 to prevent "dangerous climate change" have failed. Dangerous climate change is now happening.

Resort to the courts

It is not yet clear how such an international mechanism will work. Rich nations remain deeply hostile to the idea to handing out compensation payments after disasters. But, with efforts to prevent escalating climate change making such slow progress, it could all end up in court with or without this mechanism in place.

Lawyers say nations hit by extreme weather might already have a case at the UN International Court of Justice in The Hague, the Netherland, which resolves legal disputes between nations. For example, the court could attempt to charge rich nations with failing to honour their Earth Summit commitment.

Such cases would depend on researchers' increasing ability to attribute blame for specific disasters. Myles Allen and fellow climate modellers at the University of Oxford have shown that the European heatwave of 2003, which may have killed as many as 70,000 people, was made at least twice as likely by global warming. Researchers could well conclude that typhoon Haiyan has human fingerprints all over it. Especially since the most recent assessment of climate science from the Intergovernmental Panel on Climate Change (IPCC) found that warmer oceans are increasing the intensity of winds in tropical cyclones, while rising sea levels worsen storm surges.

Allen says legal culpability should start from 1990, the year governments signed off the first IPCC report about climate change. After that date, polluters cannot claim they were ignorant of the consequences. Moreover, Allen says, by 2023, two-thirds of all the planet-warming emissions ever caused by humans will have happened since 1990.

People vs company

If countries can sue each other at the UN, then why shouldn't private citizens take actions against energy companies? A few tried in the US courts after hurricane Katrina in 2005. So far, none have got very far, with courts ruling that climate change is a political rather than a legal issue.

But, with or without a new political deal in 2015 on "loss and damage", that could change. Last week, Richard Heede of the Climate Accountability Institute, an evidence-based NGO in Snowmass, Colorado, tracked 63 per cent of carbon emissions in the past 250 years to just 90 corporations and state enterprises. Chevron, ExxonMobil, Aramco, BP and Gazprom topped the list.

The aim, Heede said, was to "apportion responsibility for climate change". The people of the Philippines might be interested in that.