Lisa Friedman, The New York Times 23 Aug 10;
Rising ocean levels brought about by climate change have created a flood of unprecedented legal questions for small island nations and their neighbors.
Among them: If a country disappears, is it still a country? Does it keep its seat at the United Nations? Who controls its offshore mineral rights? Its shipping lanes? Its fish?
And if entire populations are forced to relocate -- as could be the case with citizens of the Maldives, Tuvalu, Kiribati and other small island states facing extinction -- what citizenship, if any, can those displaced people claim?
Until recently, such questions of sovereignty and human rights have been the domain of a scattered group of lawyers and academics. But now the Republic of the Marshall Islands -- a Micronesian nation of 29 low-lying coral atolls in the North Pacific -- is campaigning to stockpile a body of knowledge it hopes will turn international attention to vulnerable countries' plights.
"At the current negotiating sessions and climate change meetings, nobody is truly addressing the legal and human rights effects of climate change," said Phillip Muller, the Marshall Islands' ambassador to the United Nations.
"If the Marshall Islands ceases to exist, are we still going to own the sea resources? Are we still going to be asked for permission to fish? What are the rights that we will have? And we are also mindful that we may need to relocate. We're hoping it will never happen, but we have to be ready. There are a lot of issues we need to know the answer to and be able to tell our citizens what is happening," he said.
Frustrated by the dearth of answers to the questions he was posing, Muller said, Marshall Islands leaders contacted Columbia Law School. Michael Gerrard, who leads the law school's Center for Climate Change Law, picked up the challenge and issued a call for papers.
Theoretical questions become real
Gerrard, who is arranging a conference sponsored by Columbia University's Earth Institute next year, said that when he began reaching out to scholars, he realized most were working in isolation from one another. And, he said, some of the most ticklish legal questions facing small island nations have been understudied -- because until recently, the notion of a country's extinction has been largely theoretical.
"The prospect of a nation drowning is so horrific that it's hard to imagine," Gerrard said. Moreover, he added, until just a few years ago, it was difficult to have a conversation in the international community about how countries might adapt to climate change.
"There was a concern that it would divert focus from mitigation. But now people recognize that even with the most aggressive imaginable mitigation measures, the climate situation will get worse before it gets better, and we have to begin making serious preparation," he said.
The plight of refugees is the most emotional of the looming questions. Deciding where to relocate citizens is just the beginning for a disappearing nation. Still unanswered: What will the political status of those displaced people be? Will they assimilate into the culture and economy of their new host country, or will they retain a separate identity?
The International Organization for Migration (IOM) estimates that rising sea levels, saltwater intrusion and accelerated coastal erosion could lead to as many as 200 million environmentally induced migrants worldwide by 2050.
The Carteret Islanders of Papua New Guinea could be some of the world's first climate "refugees." The land is expected to be under water by 2015, and Papua New Guinea's mission to the United Nations has already announced it would evacuate the approximately 2,000 islanders to Bougainville Island -- about a four-hour boat ride away.
Maldives wants a fund of last resort
Meanwhile, in the Maldives, President Mohamed Nasheed declared upon entering office that he would create a sovereign fund -- something of a last-resort insurance policy -- in the event that the country's 305,000 citizens would require relocation. The fund fell victim to budget shortfalls, but Maldivian officials have said it had the desired effect of raising awareness in the international community.
And while environmental migration is not a new phenomenon, the projected scale of human movement over a short period of time is unprecedented. But, noted University of New South Wales professor Jane McAdam, "there is at present no internationally agreed definition of what it means to be an environmental 'migrant,' 'refugee,' or 'displaced person,' and consequently, no agreed label for those affected."
Edward Cameron, former senior adviser to the government of the Maldives, added: "We see at the moment how many people are on the move in Pakistan." While the floods devastating that country have been displacing millions internally, Cameron asked, "What if they were on the move across an international border? They certainly wouldn't have refugee status."
But while questions abound over the status and rights of displaced persons, experts say that field of study is burgeoning compared to the study of sovereign rights of vulnerable countries.
McAdam, who has looked at the question of whether a disappeared nation could retain its U.N. seat, noted that there is no automatic triggering mechanism that "undoes" a state.
"Certainly states have ceased to exist in the past, but it's through occupation, war, state secession," McAdam said. The closest thing to an extinct nation would be a government in exile. Yet even that assumes the government will eventually return to its territory -- something climate change may make impossible.
"There's precedent for other things that we can draw on, but ... there's no self-executing formula for deciding when a country doesn't exist anymore," she said.
Cleo Paskal, associate fellow at Chatham House and author of "Global Warring: How Environmental, Economic and Political Crises Will Redraw the World Map," said one of her top worries is the fate of countries' maritime exclusive economic zones.
Those areas where countries have exclusive rights to the resources are measured from coastlines or offshore islands. But, Paskal noted, the laws assume the coastlines won't change or disappear. That's already happening.
Laws assume coastlines are a constant
"Any country with a coastline or offshore islands that are being used to anchor claims need to start thinking about if that coastline or offshore island is affected, and what will that do to the exclusive economic zone claims?" she said. "The core issue is that we have written our laws, regulations, subsidies on the assumption that the environment is a constant, and it isn't."
Moreover, as Paskal noted in a recent blog post, countries that take in climate "refugees" might make a case for governing the former nation's maritime zone -- something she described as a "very lucrative and geopolitically touchy proposition."
Meanwhile, Paskal and others warn that well before a country disappears under rising waters, it will face less provocative but deeply vexing problems.
"On your way down, before your country disappears, you've got desalination problems, agriculture problems, import problems. You might lose your fresh water; your land might start to degrade because of saltwater intrusion," Paskal said.
Cameron said threatened nations need answers to the vexing legal questions of land, water and migration for their own sakes as well as to send a signal to developed countries stalling on climate change action that "if you don't come up with a response, we're going to start looking at legal options." But more broadly, he said, the international community needs to start viewing climate change through the lens of human rights.
"What we're trying to do in this debate is take an old issue, which is climate change, and make people look at it in a completely different way ... as a human and social issue instead of an ecological issue," he said. "Climate change is not about polar bears; it's about people, and human rights helps us to understand it as a human issue."
