In contrast to de Klerk’s initiative, the State Environmental Inspectorate’s methodology isn’t designed to tally indirect emissions like those from the displacement of Ukrainian victims of the war. Neither does it account for prospective emissions from the eventual reconstruction. Rather, for now, the draft methods will inventory emissions from only hostilities-related wildfires, damages to industrial facilities and fuel consumption by military equipment — and nothing else. (The methods might be expanded in the future, for instance, to include emissions from infrastructure fires). It’s the difference between making scientifically sound estimations — the Initiative on GHG Accounting of War’s present domain — and only collecting data that will meet a particular legal threshold and withstand the scrutiny of a judge picking them apart during a court case. The draft methods of the State Environmental Inspectorate of Ukraine are meant to fulfill the latter goal. They will, therefore, measure only those direct greenhouse gas emissions that can be calculated “precisely” and with what information is currently available, said Andrii Moroz, a lawyer who is advising the State Environmental Inspectorate.
For instance, wildfires from shelling often must meet criteria that ensure they aren’t naturally occurring. An atypically shaped blaze that follows a streak-line pattern characteristic of shelling, for instance, is a sign that it has not occurred randomly but is due to “anthropogenic influence,” as Savenets sometimes calls acts of war out of scientific habit. Meanwhile, the destruction of industrial property, say a pipeline or a power plant, must be formally attributed to Russian troops by official bodies like the State Emergency Service of Ukraine or the State Environmental Inspectorate of Ukraine, in order to attribute those emissions to Russia.
Alina Sokolenko, a sustainability expert who analyzes the legal questions arising from the war’s environmental damages for Ukraine’s State Environmental Inspectorate, sums it up this way: “It’s not only a matter of how to measure, but [also] how to prove and how to receive compensation for these losses.”
Should Ukraine go ahead with claims for greenhouse gas emissions, it would mark the first time a country seeks compensation for such damages resulting from an all-out war, Rutgers Law School professor Cymie Payne, an expert on international environmental reparations, told me. “It would push our understanding of the harms of war to the environment in new directions.”
The road to compensation would likely follow the usual legal procedures. First, the plaintiff — Ukraine — would have to show that it was injured because the defendant — Russia — broke the law. It would then have to show the extent and kind of harm it suffered, and also that the law is one that requires compensation.
Yes, the climate claims would be a long shot, largely because it will not be easy for the plaintiffs to establish that the greenhouse gases have caused Ukraine harm that is specific enough to be compensated. Still, Ukrainian experts point to a relevant precedent in international courts where a handful of lawsuits have resulted in the awarding of environmental damages from cross-border conflict. In the foremost of these cases, Kuwait accused Iraq of breaching the international law doctrine prohibiting unprovoked attacks when it spilled massive amounts of oil across the Kuwaiti desert during the Gulf War of the early 1990s. The United Nations Compensation Commission awarded Kuwait about $3 billion in monetary compensation just for those claims. In 2018, the International Court of Justice ruled that Nicaragua had to pay Costa Rica a few hundred thousand dollars in environmental compensation for illegally dredging a canal that damaged its wetlands.
Karen Hulme, at the University of Essex School of Law, thinks one possible, but never-before-tested path that Ukraine could take to make its claims would involve arguing that, like with Iraq, Russia’s invasion constitutes a breach of the prohibition on states to use unprovoked force against one another. That doctrine is enshrined in the United Nations Charter. Ukraine would need to further argue that Russia must make amends for all the resulting damage to the climate with monetary damages. Alternative arguments could claim breaches of the global climate rules tied to the United Nations Framework Convention on Climate Change, or of states’ duty to prevent significant transboundary environmental damage, a doctrine of international law, Hulme said. “It is so far unprecedented in international law for greenhouse gas emissions to qualify as damage in such claims,” she warned. “And so there would be many legal hurdles to pass.”