Matter of Law

Climate change, policy and the Caribbean Sea

(a Jamaican initiative)

Background

On December 29, 2011 Jamaica’s Portia Simpson-Miller led the People’s National Party to an emphatic general election victory. On January 5, 2012 she was sworn in as the seventh Prime Minister of Jamaica. 

Just hours after her swearing in, the new Prime Minister announced her Cabinet. Interestingly, she announced Robert Pickersgill as Minister with portfolio responsibility for water, land and the environment. Of note, however, was the nomenclature of the ‘new’ Ministry. It was designated the Ministry of Water, Land, Environment & Climate Change.

Climate change? Really? What was the Most Honourable Prime Minister thinking?

One may be forgiven for thinking that my introduction is irrelevant to the theme of this issue of Caribbean Maritime, ‘Ports and Terminals’, and must have nothing to do with law. But let us look deeper.

Surrounded or bordered by the Caribbean Sea or bordered by the Atlantic Ocean, Caribbean and Central American territories, their governments and ports must be concerned about the issue of climate change and its potential impact on seaports.

All the results of climate change – the rise in global temperatures, the resultant glacier melt, the rise in sea levels, increased flooding, storms of greater intensity, stronger and more frequent storm surges – have real implications for our ports. In a region already vulnerable to tropical depressions, storms and hurricanes, Caribbean ports must prepare to mitigate and manage the consequences of climate change. Bear in mind that the Caribbean Sea supports three vital industries: sea transport, fishing and tourism.

Climate change and the law

Policymakers must realise that the implications actually start outside of our ports. Climate change has an impact on, for example, agriculture (affecting yields) and on road and rail transport (affecting usage), thus ultimately affecting the delivery of cargo to ports. The need to be proactive will result in the re-enforcement of structures and adjustments to inland infrastructure, all in an effort to respond to the growing appreciation of the risks posed by climate change and the need for adaptation.

Against that background, the preparation to mitigate and manage, and to recognise and adapt, must include matters of law – treaty arrangements, statutes and regulations – which frame a united response, coordinated across, at the very least, the Caricom territories. Legal details to be addressed, I suggest, should embrace, at the regional, and maybe hemispheric, level, a coordinated response to climate change, building on the work already done by organisations such as the Association of Caribbean States (ACS), particularly its Caribbean Sea Commission. 

The work of the ACS towards having the United Nations declare, by resolution, the Caribbean Sea ‘a special area for sustainable development’ not only recognised the potential impact of climate change on ports and low-lying coastal areas but also the critical importance of the three industries – shipping, fishing and tourism – to the ACS countries of the Caribbean and Central America. Treaty obligations should reflect the threats of climate change. They should set new standards for shipping and for the use of the Caribbean Sea. Governments throughout the region should collaborate in identifying funding for mitigation and adaptation responses and should agree on the criteria for access to treaties.

At municipal level, the necessary statutes and regulations must be updated in order to provide for: (a) an approach to the provision of catastrophe insurance; (b) the tax treatment of the additional expenditure necessarily made by ports in response to climate change mitigation and management; and (c) the regulation of safety and other issues concerning the movement of cargo to port, the storage of cargo on port and the loading/discharge of cargo.

It is clear that the law will have to respond through the lens of concepts such as force majeure, negligence, foreseeability, reasonableness, insurability, liability, responsibility, loss and damage. Ultimately, case law will develop from actual claims and will assist shipping and other interests in interpreting their own place in this specific part of an ever-changing world. 

These are not esoteric or philosophical matters discussed against the background of a rash and baseless theory. They are real and practical issues born of a scientifically confirmed phenomenon with which our region must grapple for solutions.

Policy and need for action

At a press briefing following his attendance at the 17th Conference of Parties (COP) to the United Nations Framework Convention on Climate Change in Durban, South Africa (November 28 to December 10, 2011) Minister Pickersgill announced the formation of a department within his Ministry to deal exclusively with climate change. He said Jamaica intended to access financing under the Convention’s Climate Change Adaptation Fund. He said Jamaica would embark on a programme of adaptation in response to the effects of climate change.

Mr Pickersgill’s statements indicated a recognition of the importance, if not yet urgency, with which a response to climate change must be made. Against the background of a languishing Kyoto Protocol and Jamaica’s suffering of hurricane and storm damage in excess of US$1.4 billion over the last eight years, Mr Pickersgill said: “As Jamaicans, as a government and as a ministry, we cannot but respond to the new challenges being posed by climate change since our survival depends on it.”

Conclusion

Whatever the Jamaican Prime Minister was thinking, it was strategic and timely. The recognition by Prime Minister Simpson-Miller of the threat, her open acknowledgment of the need to address that threat, and her inclusion of the words ‘climate change’ in a named Ministry, are exemplary. She has sent a clear message to the region and has, in the process, struck a blow for the protection of the natural environment and for the commerce, livelihood and indeed national development, so heavily dependent on the Caribbean Sea.