The Rising Tide of Climate Change Cases

March 4, 2013 • Islands, Print, Theme • Views: 1778

BY RACHEL BROWN

On many islands, crystalline waters lap against sands at the fringes of lushly forested coasts, drawing both tourists and fame. But rising sea levels may soon submerge these scenic shorelines and wash away citizens’ livelihoods along with them, a threat that is becoming the focus of a struggle of David-and-Goliath proportions. Small island states—most notably Palau, a Pacific island nation with a population of around 20,000—are challenging some of the world’s largest, most politically powerful nations, including the United States. But instead of a battle between the Israelites and the Philistines, the question at issue is what responsibilities major greenhouse-gas emitting states have for the harms their environmental pollution causes to these small islands. And instead of a sling, the tool island nations plan to use is international law.

“Climate change poses a significant existential threat to these countries,” said Palau’s Ambassador and Permanent Representative to the United Nations (UN), Stuart Beck. “These small island nations are literally being destroyed by greenhouse gas emissions, and it seems to me their right to existence, is as important as someone’s right to vote.” Like Palau, the Marshall Islands, the Maldives, and Tuvalu, among others, confront similar challenges of eroded coasts, more violent typhoons, and contaminated water supplies. These states feel an increasing urgency to act, as such changes would endanger citizens’ ways of life and the land they call home.

Frustrated by a lack of progress in major UN climate change negotiations, Palau’s President, Johnson Toribiong, announced a new strategy for tackling climate change in September 2011. In his speech at the UN General Assembly (UNGA), he called for that body to request an advisory opinion on climate change from the International Court of Justice (ICJ).

An advisory opinion is a non-binding judgment that provides an opportunity for the world’s highest court, the ICJ, to clarify how provisions of international law on transboundary harm apply to climate change. Counselor to Palau’s Permanent Mission to the UN, Aaron Korman, explained that transboundary harm is a straightforward principle that “I can’t do anything in my backyard that would harm you in your backyard.” Such obligations to prevent transboundary harm are referred to as the “no harm rule.”

Palau chose to pursue this route because according to Beck the UNGA and the ICJ are “the only place we have a voice.” The large negotiations often become mired in political conflicts, and small nations have little hope for influence, so “these poor, vulnerable countries are just collateral damage” of climate change.

While the ICJ has never ruled specifically on climate change, past cases on transboundary harms could shape the justices’ thinking. A 1996 advisory opinion put the principle of the illegality of transboundary pollution to the test when the idea was applied to the environmental effects of nuclear weapons. Unlike in past cases, however, with climate change there is no one nation or party clearly at fault.

Some island nations have also sought rulings outside the ICJ.  In 2009, the Federated States of Micronesia requested that the Czech government conduct an environmental impact assessment on the increase in pollution from expanding a power plant in the Czech Republic. Although the plant’s plans were ultimately approved, the Czech environmental minister resigned in protest.

An ICJ advisory opinion might help define the legal responsibilities of emitting states towards affected states regarding the environmental impacts of greenhouse gas emissions, while avoiding some of the political hostility cases such as Micronesia’s inevitably spark. Deputy Dean of the Yale Law School Douglas Kysar co-teaches the class “Climate Change and the International Court of Justice” with both Ambassador Beck and Aaron Korman. He explained that a ruling could help answer the question of what happens when a group of “heavy industrialized countries causes changes to the atmosphere that are going to mean that a small place like the Maldives of the Marshall Islands literally gets wiped off the map, does that violate international law?”

The environmental rationale driving the initiative is clear. Although parts of Palau are higher in elevation than land in many other island nations, some of the country’s more than 200 islands are already being affected by rising sea levels. This contaminates fresh water sources and leads to salination of the coastal fields where taro, a traditional staple food in Palau, is grown. Rising ocean temperatures are also bleaching the nation’s coral reefs, which provide the foundation for both the fishing and tourism industries of Palau. Beck concisely summarized the impact of such a change: “If the reefs die that is the end of Palau.”

Even if international consensus on reducing emissions is reached, the effects of climate change are already such that taking measures to adapt—like constructing seawalls and fortifying coastlines—will be necessary to help at-risk nations cope. Palau is part of the Pacific Adaptation to Climate Change project, through which it has begun to develop programs to improve food security and coastal food production in the face of higher sea levels.

Such measures, however, are expensive and more importantly, they may be ineffective. Ambassador Beck dismissed such suggestions for taking adaptive measures as an “insulting fantasy.” He added that for many residents “there’s no way to adapt to climate change, except leaving—getting plane tickets and leaving.” Kysar further emphasized that the environmental implications of climate change for small island nations are dire. “Every year in which we don’t achieve international, serious restrictions on emissions, every year is another nail in a coffn for these countries.”

Many more years may elapse, however, before the culmination of the process initiated by Palau and other island nations, and even then success is not guaranteed. To request an advisory opinion from the ICJ, there must be support from a majority of states in the UNGA. The coalition of nations working with Palau, many of them through the group Ambassadors for Responsibility on Climate Change, is still trying to establish this majority. Ambassador Beck believes the campaign “has a wide appeal,” but it faces opposition as well.

One of the initiative’s opponents is also a nation with a historically close relationship to Palau: the United States. Palau was once a U.S. territory, and although the islands gained independence in 1994, the two nations maintain strong diplomatic and economic ties through the Compact of Free Association. Under the Compact, the U.S. has provided Palau with millions of dollars of financial support in return for control over who can enter and exit Palau’s waters and airspace, as well as the right to build military bases on Palau’s territory.

Palau is, in many ways, a model ally. Soldiers from Palau fight in the U.S. army and in 2009, Palau resettled six prisoners released from Guantanamo Bay. According to a U.S. State Department report, Palau’s UNGA votes in 2011 coincided with those of the U.S. 99.2 percent of the time—more than those of any other nation. These ties are significant, but Kysar said, “in this instance there is a feeling that the issue of climate change trumps that traditional diplomatic circumspection.”

Ironically, if the effects of climate change do force citizens of Palau to leave their homeland it may test the strength of the U.S.-Palau relationship in another way. Under the Compact, Palauans can live and work in the US without visas, and climate refugees may begin to make use of this provision. Their numbers would likely be limited, but of greater concern to the US and other large emitting nations is the impact a ruling by the ICJ might have on current negotiations.

If the justices ultimately issue an advisory opinion, their decision could help establish standards to provide much needed structure to future negotiations. As Beck explained, “Moral norms are created by international legal opinions, and international legal opinions are affected by what the International Court of Justice, the highest world court, says.” A decision could also have trickle-down effects in nations where international law is incorporated into the domestic legal system.

The nature of the debate has already begun to change. Protecting the rights of climate change victims is increasingly characterized as an issue of defending human or civil rights— indicating shifting paradigms. Beck sees such a change in attitude inevitable, if not immediate. “Eventually if you keep going and stay on the moral high ground, eventually you can win.” But small island states can only hope to stay the path if their territorial high ground remains above rising sea levels.

Rachel Brown ’15 is in Saybrook College. Contact her at rachel.brown@yale.edu.

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