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Climate Change Litigation

December 14 2015 - by Dr. David Lee, CLP's Environment Specialist

This blog is being written during the second and final week of the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (COP21/CMP11) being held in Paris and is  being chaired and hosted by France.  Negotiations are intense as the world struggles to hammer out an agreement to succeed the Kyoto Protocol.  The conference is crucial because the expected outcome is a new international agreement on climate change, applicable to all, to keep global warming below 2°C.

The Caribbean along with the other members of the Alliance of Small Island States (AOSIS) hopes to, among other things, hold global warming to 1.5°C and have rallied around the slogan “1.5 to Stay Alive”.  AOSIS and the Caribbean countries have prepared as never before for these international negotiations.  Why is this number important?  If we somehow managed to cap our man-made temperature rise at just 1.5°C above pre-industrial levels – as island nations have called for – most of them could remain above water.  However, most other nations, especially more developed ones, seem more comfortable considering a global temperature rise 2°C or even 3°C above pre-industrial levels.  However, not even the most optimistic hold much hope in getting what the Region needs to cope with the effects of climate change. 

For the people of Kiribati, climate change isn't something to be debated, denied or legislated against — it's an everyday reality. The low-lying Pacific island nation may soon be underwater, thanks to rising sea levels.  In a personal conversation with TED Curator Chris Anderson, Kiribati President Anote Tong discusses his country's present climate catastrophe and its imperilled future. "In order to deal with climate change, there's got to be sacrifice. There's got to be commitment," he says. "We've got to tell people that the world has changed."

His Excellency Anote Tong is the fourth President of the Republic of Kiribati and has served three terms in Office.  Since the beginning of his presidency he has been a strong climate change advocate and has built worldwide awareness of the potentially devastating impacts of climate change.  He has stated on many occasions that Kiribati may cease to exist altogether and that its entire population may need to be resettled, as the atolls that make up Kiribati are about 2 feet above sea level.  He hopes that the world would take action to stop his country from disappearing, but if not, that their resettlement would not be as climate change refugees but as citizens who migrate on merit and with dignity.

As such, President Tong, has devised a plan he calls Migration with Dignity, which is supported by Australia and New Zealand.  Kiribati citizens can travel to those countries to gain specialised training and skills.  If and when the time comes to migrate permanently, then they might do so on merit rather than just as a helpless refugee.  Last year, Kiribati also purchased a small piece of land on one of Fiji’s islands, around 1,200 miles (1,930km) away, and for now Kiribati will use the land to grow crops and supply freshwater – resources already affected by rising salt water tides.  When the time comes, Kiribati may eventually move some of its citizens there. 

Kiribati is not alone, for citizens of six (6) to ten (10) island nations, climate change could rob them of their entire country.   The Maldives being one of them, with its low-lying islands, has been labelled the most at-risk country in South Asia from the impacts of climate change.  They do not have the luxury of simply having to move a few miles inland as much of the populations of larger more mountainous islands like those found in the Caribbean or those in cities on continents might have to do.

Rachel Nuwer writing for the BBC has outlined some of the intricacies of losing one’s country. 

At this point, however, that scenario seems nearly unavoidable, forcing the question of what will transpire. While nations have been absorbed by other nations or split off to form new ones in the past, never before has a country literally disappeared.  As such, there is no legal, cultural or economic precedent for what happens to a group of nationals who no longer have a physical country to call home.  

Does the submerged nation still have a seat at the UN?  Does it have an exclusive economic zone, and therefore the right to control fishing and mineral exploitation in its waters?  Where will its people go? What will their citizenship be?  And do they have any legal rights against greenhouse gas emitters or nations?

These questions will be further complicated by the political and environmental landscape of the not-too-distant future. It is thought that by the time island nations begin to actually disappear the world at large will be in crisis mode, with massive displacements occurring in low lying areas such as Bangladesh, the Nile Delta, the Mekong Delta and many other places. As such, the legal and logistical problems of small island states will not likely be a top global priority.

There is currently no international agreement on the fate of climate-displaced people – the legal term for someone forced to flee their home because of problems caused by global warming – and no one has yet to make a successful bid for citizenship based on the effects of climate change.

Has the time come for Climate Change Litigation because Climate Change Negotiations have failed?  Time will tell.