By Dr John Sydenham

Various groups maintain that nations have a Historical Liability for climate change and slavery.   The idea of Historical Liability is that if people a hundred years ago can be shown to have caused damage that is evident today then their descendants are liable for that damage.

Historical Liability is usually justified on the grounds of the Nation State having a "vicarious" responsibility for any accidents and actions involving its citizens or corporate entities.  Vicarious responsibility originally arose because bosses and lords had control over their staff or serfs.  If the staff or serfs had accidents whilst at work the boss or lord was held to be responsible.

In a country governed by Common Law the citizens are born free. It is not assumed that the state has control over them.  They are responsible for their own accidents and actions and the accidents and actions of the business entities that they own.   A Common Law Nation is not a business or communist entity that can be assumed to be responsible for all the actions of its people.  In a Common Law Jurisdiction individuals and companies can have vicarious responsibility but not the Nation.  If the Nation itself assumes this responsibility it relinquishes the principle that we are born free. (See Note 1).

It is important for the UK to rebut the various claims that it is responsible for global warming as a "Nation".  This is essential to stop the real offenders from getting away with continuing to emit CO2 and to stop sophisticated campaigners from shifting our constitution away from the idea that we are free born people.

Climate Change

Given that the UK cannot admit vicarious liability it is still possible that individual businesses may be found liable.  How can we assess the contribution to Climate Change of the people and businesses who built power stations etc. in the UK?  Is there liability for these groups under UK law?

The emission of CO2 had little effect on global temperature until the 1920s:

Prior to 1960 CO2 emissions had been relatively low and did not increase global temperatures by more than a small amount:

Source: Carbon Brief

The half life of CO2 in the atmosphere is about 120 years so the earliest industrial emissions by the UK, Germany etc. in the 18th and 19th centuries had ceased to have much effect by 1960.

This is also the case with the anthropogenic component of sea level rise where the contribution of man made Global Warming to sea level rise was only evident from around 1960-70. (See Future sea level rise constrained by observations and long-term commitment by Mengel et al (2016)).

Also notice that at least half of the CO2 released by humans before 1960 was due to land use change.  Most of the CO2 released by land use change in the UK was released a millennium or more ago and did not contribute to modern warming.

Those who wish to assign Historical Responsibility for global warming argue that the CO2 released before 1980 has become part of the global pool of CO2 and so creates as much global warming as any other releases of CO2.  This is a facetious argument because after 1980 it was known that CO2  was actually causing global warming.  This knowledge should have caused the emitters to stop.  The fallacy of lumping pre-1980 emissions with post 1980 emissions is the same as declaring that demolishing a house is equivalent to bombing a city.

CO2 released before 1980 is "innocent" CO2 whereas that released after 1980 is "culpable" CO2.  Had the UN and the governments of the world acted on their knowledge in 1980 global warming would not be a problem today.  Indeed, the desire to assign Historical Responsibility for global warming is undoubtedly an attempt by fossil fuel producers and China to deflect blame from themselves for deliberate pollution. 

In 1980 the science was clear: CO2 was causing global warming.   Margaret Thatcher's speech to the Royal Society in 1988 summarised the effect of depletion of the ozone layer,  global warming due to CO2 and the effect of pollutants. She attempted to galvanise the world to combat this problem.

"The response was vehement. Corporations and individuals who opposed all government regulation began to spend many millions of dollars on lobbying, advertising, and “reports” that mimicked scientific publications, in an effort to convince people that there was no problem at all." Scientific American, The Discovery of Global Warming

Had emissions been reduced after 1980 anthropogenic climate change would not have been a problem.

So even if Historical Responsibility for Global Warming were accepted the CO2 released before 1960 was mostly due to land use change and was insufficient to create a global climate crisis.  It is the CO2 that was released after 1980, when it was known that climate change was happening, that has caused our problems.

So who is truly culpable and should pay for the losses due to climate change?  The top CO2 emitters:

Source: Carbon Project

and the top fossil fuel producers such as the oil companies and Saudi Arabia etc.

Notice that UK emissions are so small (about 0.4Gt) they are not on the graph above. The countries that expanded CO2 output after 1980 deliberately and knowingly put the globe at risk. The fossil fuel industry also mounted a massive disinformation campaign and should be held responsible for this (See Exxon Mobile and Climate Change Controversy and Global Climate Coalition).

China might declare that they should also "have a chance at prosperity" due to fossil fuel use but this is ridiculous given that since 1980 it has been clear that fossil fuel use will create disastrous climate change.

The UK has halved emissions within its territory and since 1990 has even reduced its consumption-based emissions (offshored CO2 in the form of emissions produced to make imports).

It is only by cutting imports from overseas that the UK will be able to reduce consumption based emissions further.

There is a cautionary note needed here about "consumption based emissions".  Firstly the exporters of goods cannot escape liability by blaming the purchasers of these goods.  Secondly if consumption based emissions are expressed as a % of total emissions those countries that cut domestic CO2 emissions will appear as if they are increasing emissions when the opposite is true. (This error is committed by the World in Data article on the subject although it does also supply the raw data). 

The fossil fuel producers, China and some in the UN are lobbying for "Historical Responsibility" to be the critical factor in financing action against climate change and have achieved considerable success (see CNBC article).  This is a diversion and misinformation.  It is the emitters of CO2 and producers of fossil fuels since 1980, when it was known to be damaging, who are most responsible and should pay.  They are still emitting vast amounts of CO2 and must be laughing at the BBC etc. who are so easily convinced to attack their own country.

The UK has almost no debts in respect of global warming and climate change because it's early industrialisation did not cause global warming before 1960 and as soon as it was understood that CO2 was dangerous the UK limited CO2 emissions.  The UK Government and Parliament must stand firm in the face of attempts by current large scale CO2 producers to blame everyone except themselves.

The Legal Case for Historical Responsibility

Nation States often sign treaties and enter into agreements that extend beyond a single human lifetime.  The prime example of such an agreement is the UN Charter which was signed 77 years ago.  These international documents give the "Nation" a legal existence within a body of International Law that has been steadily extended over the past decades.  It is now conceivable that almost any area of our personal lives could be affected by a motion at the UN or WTO.

Although the UN supposedly bases its resolutions on "Universal" Rights it is clear that Russia and China pick and choose the elements of International Law that they wish to obey and ignore the rest.  In practice International Law consists of those laws that powerful Nations accept now.

Western Countries (the Western Allies of WWII and the states that they established afterwards) regard International Law more seriously than Russia and China.  There is an excellent summary of the position of the United Kingdom on International Law in the Document: Principles of international law: a brief guide.  This points out that:

"In the UK, provisions of an international treaty can only have effect in domestic law if they are written into or incorporated by domestic legislation. Therefore, provisions of treaties that are not made part of UK law (i.e. have not been incorporated) are not usually recognised by UK courts.  This reflects the UK’s dualist approach to international law."

So UK domestic laws are not legally bound to International Laws.  The UK is, in principle, capable of ignoring International Law in the same way as Russia or China.  The UK only rarely ignores International Law because International Law is likely to be supported by Parliament in most cases.  This means that in practice Parliament acquiesces in International Law because MPs believe each law is morally acceptable.

Many states have different approaches to International Law from that of the UK.  As an example, in Germany International Law takes precedence over National Laws.  This provides huge scope for misunderstandings in the interpretation of International Treaties such as the EU Withdrawal Agreement.  Unfortunately many UK commentators are unaware of the UK constitution and think the UK is bound by a manual of rules like Germany (The UK Constitution can be summarised as: In the long run The House of Commons is Sovereign).

Given that the adherence of the UK to International Law is largely the result of the tacit moral acceptance of each law by Parliament the legal case for "historical responsibility" reduces to the moral case.

Note 1:

There are problems with the  vicarious responsibility of nations even in countries that are governed by the ideology of "Rights" and Civil Law rather than the innate freedom of individuals .  If Nations were to become liable for actions in the distant past the courts would become clogged with compensation claims for the acts of Inca Kings and Genghis Khan etc.  If a whole nation accepts vicarious liability it is in danger of writing a blank check to the rest of the world.

In the case of slavery and global warming the claimed Liability is for acts that were considered legal and even moral when they occurred.  Paying compensation for this type of Historical Liability opens the door to the framing of new laws to create new historical wrongs that produce liabilities where there were none before.  No Nation can leave themselves exposed to such random claims on their wealth.

Furthermore what is "good" and what is "harmful" change rapidly in a postmodern society.  The timing of claims then becomes crucial, when yesterday's criminal can be exonerated today and vice versa there is a lack of connection between Historical Liability and any real morality. Although it is sensible and helpful for countries to offer help to those suffering the effects of climate change etc. only a country run by fools would accept vicarious responsibility for these things.

7/11/2022

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