Natural disasters – Acts of God or human culpability?

Can politicians – our custodians –  and leaders of big fossil fuel companies – become personally responsible for damages that occur due to their negligence?

Act of God – force majeure – An old legal term

Legal history may sound boring, but is actually very interesting and relevant to today’s challenges. The reasoning about culpability (guilt) goes back to the Law of the Twelve Tables about 600 BC and the Roman Law further developed during a thousand years. “It is believed that Roman Law is rooted in the Etruscan religion, emphasising ritual”. Most juridical reasonings started out in religion. There were perceived gods everywhere and they apparently all had as a hobby to more or less intervene in human plans and business. So when a ship sank or a slave was accidentally killed, it was extremely difficult to claim compensation for damages by the one who suffered losses, as you could always argue that the accident was due to intervention by a god or two.

Roman law, which international law more or less is based on, starts here. The Romans developed a legal system to ensure that trade in the Mediterranean area would go as smoothly as possible, with a minimum of risk for the investors.  A shipwrecked captain would have to prove he had done everything possible to save the ship by referring to the precautionary measures he had taken, by training the crew, maintaining the boat, not overloading, when necessary throwing some heavy goods overboard etc. A legal standard that still exists in international law called “bonus pater familias” (Anners, p.289) was established: The standard of what a good, reasonable and responsible family father would have done in the same situation. (What this good person would have done was assessed by the judge / praetor (Anners, p.58).)

The reasonable person weighs four factors before he acts. First, he assesses the foreseeable risk of harm his actions or lack thereof  may create and compare them to the utility he might achieve. He also calculates the extent of the risk. Thirdly, he must assess the likelihood of the risk actually causing harm to others and fourth, the possible alternative actions of less risk. The reasonable person is thus required to appropriately inform himself and act accordingly.

If the captain of a ship in the Roman time had failed to take all reasonable precautions, culpability could be established. Negligence, mistakes or intentional damage that could have affected the outcome (causality) would be the first step towards making him personally responsible. The next step would be: was the damaging event foreseeable, or would it have surprised all cautious and responsible people? If the event would come right out of the blue as a complete surprise to any sensible person, this would have been called an act of the gods, later “Act of God” or “force majeure“, and the case dismissed. The investor would have to carry the loss himself, unless there was an agreement on more than one investor sharing the losses (Anners, p. 69). This is the historical roots of insurance companies.

The investors gradually developed teams of lawyers who would specialize in arguing for that the event could not have come as a complete surprise; a good and experienced captain should have foreseen…etc,  and that the captain had not fulfilled the bonus pater familias standards. A third legal point was added: possible or potential damage extent. The bigger the possible damage, the higher demands on precautionary measures that should have been taken to fulfill the “bonus pater standard”. A negligent and careless captain would have to argue very cleverly to get away, and to avoid risking lifelong slavery for himself and his family (Anners,p.74), he would often prefer going down with his ship. It is still a rule of honor for all captains to stay with his ship as long as possible, and be the last person to abandon it.

Gradually, expectations towards what the state or government should do to facilitate trade also grew: keep pirates away, help traders get their rights in other countries, build lighthouses, build harbors etc. If a representative of the state failed to do his duties, he would run the same risks of facing the investors’ lawyers in court as a captain who negligently lost his ship.

The old Roman law still gives important guidelines to EU law and international law. New legal standards in the area of damage claims have been developed e.g. “objective responsibility for damages” in addition to “subjective”. Objective responsibility means that even if you cannot directly blame an individual for the damages, they were foreseeable, and therefore the investor has to pay for damages on a third party, even if personal culpability was not established.

But still, most big insurance claims starts out establishing “force majeure” / “act of god”  or not, as a first step, reflecting a more than 2500 year old legal practice.

Arab and African traders at that time became very envious of the Roman legal systems for trade,  damage claims, lawyers, courts and developing insurance systems, as they had  more defeatist religious perceptions of accidents and damages than the Romans. In addition they were not able to adapt new laws efficiently because e.g, Arab laws were given by a static religion, such as at a later stage the Quran (Anners, p. 172), making them rather inflexible, while the Roman laws were given by the praetor (Anners, p.70), or by the government / Ceasar, in cooperation with private enterprise, and could easily be adapted and added on when new events and interests occurred. This meant that it was more risky for Africans and Arabs to invest large sums in foreign trade. They therefore tended to keep their investments modest and static, while Romans (Western Europe) kept increasing and developing theirs.

Do we see remnants of this even today?

Another interesting question is: are the authorities behaving responsibly facing potential natural disasters  – and more so when warnings about the  coming disasters have been given by the most prestigious scientists in the world on anthropogenic impacts on the world’s climate?

How about appropriate steps to preserve the world’s biological diversity and the health of our common ecosystems? Are we diligently enforcing laws and regulations preventing poisoning and polluting the environment to the detriment of others? If other people or animals get sick or even die because of our actions or lack of proper actions — are we criminally negligent then? Can people in other countries claim compensation for our negligent behavior?

In the coming decades we are likely to see an increasing number of total breakdowns of ecosystems. The most prominent researchers in the world have been crying out warnings for years. With climate change becoming increasingly severe, is it possible for farmers in California to sue the state authorities for negligently failing to take appropriate  steps in time to prevent unnecessary damage?  Can the farmers argue that the authorities knew or should have known that severe and prolonged droughts are increasingly likely because of  anthropogenically enhanced global warming, and that steps should have been taken to mitigate or at least adapt and increase resilience? If so – is it conceivable that the authorities might get away by playing the “Act of God”-card?

Are we taking the mitigation and adaptation steps required by the ‘bonus pater familias’ standard, or do we run the risk of being culpable of negligence in spite of clear warnings from authoritative sources?

There are now many lawyers working in their free time preparing lawsuits on behalf of e.g.Vanuatu and other small island states, against the world’s major emitters of greenhouse gases, the coal and oil companies of the world, and their PR companies spreading disinformation and trying to discredit the UN and the mainstream scientific communities. The big multinational fossil fuel lobbies are bracing themselves against these multi-billion dollar lawsuits by spreading as much confusion and doubt about harmful impacts of manmade global warming as possible through their propaganda industries.

Several organisations now prepare lawsuits against their own governments for gross negligence or even breaking their own laws.
E.g. according to the Norwegian constitution § 112

“Everyone has the right to an environment that ensures the health, and a nature where productivity and diversity is preserved. Nature’s resources should be allocated on the basis of a long-term and comprehensive account that safeguards this right also for posterity”.

What happens if a Norwegian court decides that the government of Norway breaks §112 in  the constitution? Can the members of the government be punished? Be sentenced to pay compensation?   See Norwegian Writer’s Climate Campaign § 112  and Grandparents Climate Campaign

In the USA, the NGO called Our Children’s trust, with a team of lawyers and scientists,  takes state authorities to court. The mission of OUR CHILDREN’S TRUST is to establish the legal right to a healthy atmosphere and stable climate for all present and future generations.By supporting youth plaintiffs in strategic atmospheric trust litigation, OUR CHILDREN’S TRUST empowers youth to lead a game-changing effort to hold the ruling generation accountable and to compel governments in the United States and abroad to adopt and implement enforceable science-based Climate Recovery Plans.   Here is a short video on the legal action 

Eradicating ecocide – Support ecocide law:  A fully proposed draft of the law of Ecocide was submitted into the United Nations by Polly Higgins in April 2010. The intent behind the drafting is to ensure that people and planet are put first and to create a legal duty of care to

a) prohibit the causes of mass damage and destruction,

b) prevent future significant harm from taking place and

c) pre-empt both human caused and natural Ecocides that put nations at risk of being unable to self-govern.

A law of Ecocide addresses the core issue of today: ensuring the welfare of both people and planet. Support ecocide law

End ecocide on Earth

The United Nations has persistently worked on an international set of laws to protect the environment.  UNEP has its own division called  Division of Environmental Law and Conventions (DELC). DELC works with Multilateral Environmental Agreements (MEAs).
The best known MEAS are probably:

References:

Legal actions

Urgenda case

Our childrens’ trust – Youths vs US

New York vs Big oil

California vs Big oil

New Jersey vs Big oil

Big Coal and Oil culpable of deception?

Indigenous peoples’ rights

Failing to take responsible action – culpability?

Gory examples of negligence:

Next

Norwegian Constitution § 112

Grunnlovens miljøparagraf

Grunnlovens klima- og miljøkrav. Beate Sjåfjell. «Norge kan ikke alene oppnå det politisk omforente togradersmålet. Men Norge kan gi et betydelig bidrag, og er etter Grl. § 110 b forpliktet til å gjøre det.»

Tjæresand, Oljefondet og norske rettsregler. Pål W. Lorentzen. «Som del av vår høyeste rettskilde, Grunnloven, forplikter bestemmelsen storting, regjering og alle oss andre.»

Statoil på kant med Grunnloven. Per Bjørn Foros. «Vår frihet blir til kommende generasjoners ufrihet. Det var ikke slik de tenkte på Eidsvoll i 1814.»

Grunnloven § 112 – et fyrtårn for «det grønne skiftet». Pål W. Lorentzen. «Tydeligere innhold, moderne språkdrakt: Grunnlovens bestemmelse om beskyttelse av miljøet kan bli et effektivt virkemiddel i miljøkampen.»

Grunnlovens § 112 krever handling, ikke ord. Beate Sjåfjell. «§ 112 krever dyptgående reformer. Alternativet er å sette selve vårt eksistensgrunnlag på spill. Et slikt fundamentalt brudd på Grunnloven bør ikke få gå upåaktet hen.»

«Den Norske Stat har rettsstridig brutt Grunnloven § 112» Høyesterettsadvokat Pål W. Lorentzen har tatt ut en tenkt stevning mot Staten, på vegne av Kari og Ola Nordmann, for manglende oppfølging av det vi vet om menneskeskapt global oppvarming.

 

 

About svenaake

University Teacher.
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