When all else fails, go to court. That could be the conclusion of exasperated poor countries as the rich world falls out over how to deal with climate change - and the biggest polluter, the United States, still refuses to play. If the negotiations in Bonn on the Kyoto protocol had been about forming an orchestra we would now have one viola player, a broken tuba and a half-written musical score.
As the millions made homeless by last week's floods in Orissa, India, showed again, poor countries suffer most from the increasingly unpredictable and extreme weather delivered by global warming. And, the weakened Kyoto protocol offers them little. At best there is an over-hyped "clean development mechanism", a device to help poor countries leapfrog dirty development, and the vague promise of adaptation funds.
A logical climate deal would start by agreeing a maximum allowable level of greenhouse gases in the atmosphere and then aim to contract emissions to meet the target. It would also concede that all people have a basic and equal entitlement to the air above their heads. Nations would then converge their emissions, allowing poor countries to develop and making rich countries live within their environmental budget. But in the meantime, and as the climate keeps getting worse, what should the countries suffering most, or making the most effort, do about the US?
One of the most basic principles in law is that if someone does you harm, two things should happen. First, the aggressor should stop what they are doing and, second, they should provide compensation for the harm they have caused. Apply this most simple principle to the turbulent theater of international relations and a startling picture emerges.
The UN environment program estimates that the extra economic costs of disasters attributable to climate change - floods, storms, hurricanes - are running at more than $300bn annually. The best guess of development groups is that climate change could cost developing countries up to £6.5 trillion over the next 20 years. A former director of insurance giant CGNU plotted a graph to see when climate change would bankrupt the global economy. He concluded that we have less than a lifetime left, just over half a century.
But it could be even worse than that. Economist Paul Freeman is quoted in the recent International Red Cross World Disasters Report 2001 suggesting that the indirect and secondary impacts of disasters "may be twice the size of the direct losses".
The prospects for poor countries look so bleak that we could be experiencing the end of development. The trickle of investment they receive focuses on exploiting natural resources. Getting the resources to tackle climate change seems impossible. But there is an action of last resort. A group of especially threatened small island states, or a country like Bangladesh, could act as the focus for a test case for the emerging international legal architecture. Perhaps it is time to take the US to court.
It could happen in a variety of ways. But, even if existing legal machinery proved ineffective, we could follow the successful example of the international criminal court and create a new legal forum.
Law professor Andrew Strauss has highlighted several avenues that point toward possible legal action. The UN general assembly could request an advisory opinion from the international court of justice. Countries committed to realistic action on cutting emissions might view the US cheap energy policy as an insidious subsidy and implement anti-subsidy duties. The US's legal remedy would then be dispute resolution at the World Trade Organization, where multilateral attempts to use trade measures for environmental issues are viewed more positively than purely unilateral action.
There are also useful precedents. A now classic case that arose over pollution from a Canadian smelter plant polluting Washington State in the US led, through arbitration, to the principle that states had a duty to protect other states, and that no state had the right to act in a way that might cause injury by "fumes" to another. Under the UN international law commission's draft declaration on state responsibility, US greenhouse gas emissions could constitute an international crime.
The US is the most obvious candidate, but all industrialized countries whose emissions are, per person, above a sustainable threshold should be looking over their shoulders. The next message G7 heads of state receive from their poorer cousins may not be an invitation to a reception, or a plea for more aid. It may be much more abrupt: "We'll see you in court for global warming."
Stephen Timms works for the New Economics Foundation
© Guardian Newspapers Limited 2001