Climate Change and Law

Climate Change and Law

Gujarat NATtional Law universityClimate Change and LawEnvironmental Law ProjectSubmitted ByV.Mrudula12B154

Submitted to: Ms. Saira Gori

TABLE OF CONTENTS

1. Introduction.......................................................................................................................32. Climate Change and Law...........................................43. Small Islands and their Problems.......64. Legal Remedies......9Conclusion....................................................................................................................13

INTRODUCTIONWhile all around the globe called earth, seasons have been shifting, temperatures are rising and sea levels are increasing, our planet dutifully still supplies us and all other living things with air, water, food and safe places to live. But it has come to be observed by the scientific Community that Glaciers have shrunk, ice on rivers and lakes is breaking up earlier, plant and animal ranges have shifted and trees are flowering sooner. Human activities such as burning of fossil fuels like coal and oil the clearing of land for agriculture, industry, has increased the concentration of atmospheric carbon dioxide (CO2) and other greenhouse gases[footnoteRef:2]. [2: Naomi Oreskes,"The Scientific Consensus on Climate Change,"Science 3 December 2004: Vol. 306 no. 5702 p. 1686 DOI: 10.1126/science.1103618]

Loss of livelihoods, coastal settlements, infrastructure,ecosystemservices, and economic stability. Reduced biodiversity, fisheries abundance, and coastal protection by coral reefs due to heat-induced mass coral bleaching and mortality increases, exacerbated byocean acidification, e.g., in coastal boundary systems and sub-tropicalgyres. Wildfire-induced loss ofecosystemintegrity, property loss, human morbidity, and mortality as a result of increased dryingtrendand temperaturetrend. Increased frequency and intensity of flood damage to infrastructure and settlements. Significant reduction in water availability from river abstraction and from groundwater resources, combined with increased water demand and with reduced water drainage and runoff as a result of increased evaporative demand Reduced crop productivity associated withheatanddroughtstress, with strong adverse effects onregional, national, and household livelihood and food security, also given increased pest and disease damage and flood impacts on food system infrastructure.The IPCC notes how surface temperature has oscillated for the past few million years following glacial cycles, where mean global temperatures changed by between 4 and 7 degrees Celsius.[footnoteRef:3] This in turn has influenced sea level, which rises and lowers according to these variations in temperature. The IPCC adds that most of the observed increase in global average temperatures since the mid-twentieth century is very likely due to the observed increase in anthropogenic greenhouse concentrations.[footnoteRef:4] [3: Ibid] [4: N. L. Bindoff, et. al., Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the 4th Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2007.]

The effects of Climate change are wide ranged, but we narrow down its scope to the Rising sea levels and Drought, addressing questions such as who is responsible for the people who are victims of the climate changed caused by the human activities towards a mindless development, and how the legal system can be used to restore justice in this regard.

Climate change and LawWith regard to climate change and its legal implications under the ambit of international environmental law and general international law, dispute settlement paradoxically, seems to hold both, a central, and a peripheral Position. In a non-hierarchical and largely consensual system of law, it does not have the same role, as in domestic legal systems. The role of courts, tribunals and other formal and quasi-formal dispute settlement procedures are perceived to be supplementary to other forms of compliance-generation in international law. Thus the ambiguity around a formal dispute settlement, with respect to laws pertaining to climate change, creates a tension between the nominal prominence given to formal means of dispute settlement as traditionally established, and their limited practicality. Article 14 of The United Nations Framework Convention on Climate Change (UNFCCC), states that the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. It also provides for a process of formal adjudication or arbitration for the States that elect to use such mechanisms and, in the absence thereof, a system of compulsory non-binding conciliation. Article 14 has not yet been relied upon as a jurisdictional basis for action. But dispute settlement is not merely about reliance on formal dispute settlement mechanisms. The fact that Article 14 defines disputes as matters concerning the interpretation or application of the Convention indicates that it only superficially grazes upon the potential of dispute settlement as regards climate change. In that regard the focus on the formal mechanisms under the climate change regime while ignoring the nexus between dispute settlement and non-compliance,[footnoteRef:5] but also fails to connect the role of dispute settlement processes outside of the climate change regime, and international law. However it must be noticed that there is an increase in domestic litigation in matters of climate change. Thus, the evolution of Climate Change Law Jurisprudence depends upon the capacity and willingness of the local courts to engage with global issues. But Despite a few cases and is only considered as a sub issue alongside other important disputed questions of law. [5: Hari Osofsky, Climate Change and Dispute Resolution Processes in Rosemary Rayfuse and Shirley V Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012).]

In the ambit of municipal law, climate change can provide either the subject matter or merely be the broader context for such disputes. Its relevance is principally determined by the legal rules that frame the dispute within that particular legal system. EU law, for instance, would not consider matters of climate change in a similar way as human rights. By that logic climate change law does not even exist.Another Issue In this area is whether an advisory opinion that is sought on various aspects of climate change from the International Court of Justice contributes to the jurisprudence of Climate Change Law. Several developing countries have indeed considered the merits of this approach, hoping to generate public attention towards the issue. But even thought it did receive the attention, it is considered as a separate initiative, when it came to be a feature of dispute settlement. Nevertheless, the 2011 Advisory Opinion of the International Tribunal for the Law of the Sea[footnoteRef:6] on the governance of the seabed made more contribution than the International Court of Justice and has proved that general statements and clarifications of law can go a long way in providing a clearer legal framework, and can either directly or indirectly be referred to in the future disputes. An advisory opinion on damages from climate change by the International Court of Justice, proposed by small island States, and others, would complement and not conflict with efforts to create a negotiated international climate regime.[footnoteRef:7] [6: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (1 February 2011) http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Adv_Op_010211_eng.pdf. (last accessed 20 September 2015).] [7: Press Conference on request for International Court of Justice Advisory Opinion on Climate Change (3 February) http://www.un.org/News/briefings/docs/2012/120203_ICJ.doc.html accessed 20 Sept 2015.]

But despite all this activity, This area is still very undeveloped, and this can be concluded from the fact, that Article 14 is an unduly formalistic, if not symbolic, inclusion in the text, the practical utility of which remains untested as well as contradicting, the more consensual, or alternative approaches to dispute settlement, with more emphasis on the non-compliance mechanism.This dichotomous understanding of the relevance and irrelevance of dispute settlement to climate change reflects a broader assessment of the issue when considered in the light of international environmental law. Though there has been a notable use of dispute settlement procedures to litigate environmental matters in the past decade[footnoteRef:8] . [8: Romano (n 72) 1055 and Malgosia Fitzmaurice, The International Court of Justice and Environmental Disputes in French and others .]

Climate change is yet to be the subject of a dispute before an international adjudicatory body. There are significant political and economic considerations that would influence any States litigation strategy, as well as the legal difficulties that such litigation would have to overcome.[footnoteRef:9] [9: Hari Osofsky, Climate Change and Dispute Resolution Processes in Rosemary Rayfuse andShirley V Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012).]

Problems of the small IslandsThere is growing evidence that climate change-related impacts like rising sea levels, higher storm surges, and changing rainfall patterns are exacerbating existing vulnerabilities like poverty, isolation, and resource scarcity, and may eventually leave small island states uninhabitable, causing the displacement of entire populations. Among those particularly at risk are low-lying coral atoll states like Kiribati, Tuvalu, and the Republic of the Marshall Islands in the Pacific Ocean, and the Republic of the Maldives in the IndianOcean. Small island states have been active participants and leaders in climate change negotiations over the past two decades. Often acting collectively through the Alliance of Small Island States (AOSIS), they have drawn regional and international attention to the impacts of climate change on their territories and populations, adopting the Male Declaration on the Human Dimension of Global Climate Change[footnoteRef:10],initiating a Human Rights Council Resolution on Human Rights and Climate Change[footnoteRef:11], contributing to the adoption of a General Assembly Resolution on the security implications of climate change[footnoteRef:12], proposing that states request an Advisory Opinion from the International Court of Justice on state responsibility for trans-boundary climate change harms[footnoteRef:13], and contributing to expert forums on climate change and displacement.[footnoteRef:14] The edited collection under review marks a fruitful collaboration between a small island state and the academic community. [10: Male Declaration on the Human Dimension of Global Climate Change, 14 Nov. 2007, available at: www.ciel.org/Publications/Male_Declaration_Nov07.pdf (last accessed 20 Sept 2015).] [11: Human Rights Council Res. 10/4: Human Rights and Climate Change, 25 Mar. 2009. See also HumanRights Council Res. 7/23: Human Rights and Climate Change, 28 Mar. 2008.] [12: GA Res. 63/281, 11 June 2009.] [13: See, e.g., Palau Seeks UN World Court Opinion on Damage Caused by Greenhouse Gases, UN NewsCentre (22 Sept. 2011).] [14: See, e.g., UNHCR Expert Roundtable on Climate Change and Displacement, Summary of Deliberationson Climate Change and Displacement (2225 Feb. 2011); McAdam, Pacific Islanders Lead NansenInitiative Consultation on Cross-Border Displacement from Natural Disasters and Climate Change,Brookings: Up Front (30 May 2013).]

Speaking before the Security Council in 2011, for example, UN High Commissioner for Refugees Antnio Guterres asked, where will these people go if and when it becomes impossible for them to remain in their own country?... How will they retain, their national identity? Is the world ready to accept the idea of a state without a territory? [footnoteRef:15] [15: Cited in Singh, Disaster Prevention Key to Stopping Climate Displacement, UNISDR Secretariat (19 Jan.2012).]

How can small island states maintain their territorial and maritime claims in the face of rising sea levels, and at what point will they cease to be recognized as states under international law? That are the possible solutions to the issue of climate change-related displacement, taking into account the constraints imposed by national immigration policies and political will. Some contributors propose the adoption of new legal norms, while others rely on existing legal frameworks. Whether there are any legal remedies available to these states or their citizens. Can anyone be held (legally or morally) responsible for the displacement of small island populations?

The question of what the status of an island State would be if its entire territory were to be submerged is unclear. This is an essential problem, as it would not only determine the island States ability to continue utilizing the resources that had previously been within its Exclusive Economic Zone (EEZ) a sea zone in which a State has special rights over the exploration and use of marine resources[footnoteRef:16] but also from the point of view of preserving the cultural identity of its citizens. [16: (see Part 5 of the United NationsConvention on the Law of the Sea; UNCLOS)]

Inhabitants of island States have a strong connection to their islands, and even as some appear resigned to the need to leave their islands, they are hoping to periodically return to them in order to have a connection to their heritage. Their right to dispose of their own wealth would also be violated, a right provided by Art. 1(2) of theInternational Covenant on Civil and Political Rights: In no case may a people be deprived of its own means of subsistence.The loss of all the territory of a State would result in the deprivation of a means of subsistence for the population. In addition,if their governments do not make arrangements to keep their institutions working, the population could become stateless.Indeed, it could be argued that atoll island States and cultures can never be satisfactorily compensated for the loss of their physical bases. The IPCC notes how the populations on many small islands have long developed and maintained unique lifestyles, adapted to their natural environment.Governments-in-exile have frequently been recognized by their allies as governments of an enemy-occupied State during the course of the conflict and pending its outcome.[footnoteRef:17] The possibility exists that in the case of the disappearance of an Island State a government-in exile could be created. However, governments-in-exile normally exist on the assumption of restoring power in their own country, and until recently have been more connected to situations of international conflicts But a government-in-exile of an Island State which is about to disappear is quite tricky, because It cannot expect to recover its sovereignty over the islands, unless they were to re-emerge again at a later date, even centuries later. Although these possibilities and time-scales appear pointless in the mind of the lifetime of individual human beings, several nations on Earth (such as China and Egypt) have a history that spans millennia. Indeed, it could be argued that when Britain asked China for a 99-year lease on what is now called the New Territories, the British Government were not thinking that the lease would one day come up. Eventually, 99 years later the United Kingdom was forced to return Hong Kong to China, highlighting how what appears like a very long time in the mind of a human being is but a chapter in the long history of certain nations. Similarly, territories that are under threat of disappearing could one day re-emerge, and the legal implications of current treaties could be called into effect centuries or millennia later.[footnoteRef:18] The question is whether the island could be recovered by the old sovereign power or be considered as Nobodys Island. It appears right that if the islands were to emerge again due to a lowering of the sea level they should belong to the descendants of the people who once lived there.[footnoteRef:19]This, however, could depend on the continuous existence of a sovereign entity that defends the interests of the people who once lived on the islands, highlighting the Importance of such a hypothetical government-in-exile, which could have similar functions to the de-territorialised state.[footnoteRef:20] . A de-territorialised state would consist of a government entity that would continue to represent the rights of its citizens at the international level and vis-vis their new host state or states. It would manage the state's maritime zones and other assets for the benefit of its citizens wherever they might be located. This way, displaced populations would be able to finance their future in a new country, instead of depending on goodwill alone. [17: J. Crawford. The creation of states in international law, Oxford University Press, 2006.] [18: Atoll Island States and Climate Change: Sovereignty Implications, Lilian Yamamoto Miguel Esteban, October 2011.] [19: Yamamoto, L. and Esteban, M. (2009), Sovereignty issues of the disappearance of Island States, Ocean & Coastal Management Journal. Doi:10.1016.] [20: R. Rayfuse, W(h)ither Tuvalu? International Law and Disappearing States, Uni. Of New South Wales Faculty of Law Research Series, Paper 9, Berkeley Electronic Press (2009).]

Legal Remedies for displaced Persons As we have seen, a strong hole legal remedies are quite vague in this area, however we could discuss the relevant provisions to that effect. The 1992 UN Framework Convention on Climate Change (UNFCCC) mentions neither the displacement to be caused by climate change nor the human rights dimensions of global warming.[footnoteRef:21] [21: The closest it comes to recognising this particular manifestation of rising seas and other consequences of climate change is the following sections: 4(1)(d) All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall:(d) Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems.(f) Takes climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change.]

Likewise, the 1951 Refugee Convention does not recognise the particular rights of climate change displaced persons, nor do any of the major human rights treaties. This lack of inclusion of this specific group of climate change displaced persons has led some to propose the amendment of the 1951 Refugee Convention and 1967 Protocol to expand the protection of these instruments to include climate change displaced persons. This initiative does not appear likely at the moment to have the political support required to amend the Refugee Convention and Protocol, Another proposal for a Protocol on the Recognition, Protection and Resettlement of Climate Refugees to the UNFCCC,[footnoteRef:22] has also been developed as has a specific convention detailing the rights of those displaced due to climate change.[footnoteRef:23] None of these pertinent and worthy initiatives, however, are likely to be approved any time soon. [22: See: for instance: Biermann, F. and Boas, I. Protecting Climate Refugees: The Case for a Global Protocol in Environment (vol. 50, number 6), pp. 9-16, 2008.] [23: See, David Hodgkinson, Tess Burton, Simon Dawkins, Lucy Young and Alex Coram, Towards a Convention for Persons Displaced by Climate Change: Key Issues and Preliminary Responses, 2008 (available at: http://www.ias.uwa.edu.au/new-critic/eight/hodgkinson]

What Are housing, land and property (HLP) Rights? In terms of HLP rights protections, climate change displaced persons for the moment at least will need to rely on the rather vast body of international human rights law (and international law more generally) and the domestic human rights provisions found within the national legal frameworks of all nations as a basis for claiming and asserting their HLP rights.[footnoteRef:24] While the implementation of human rights law remains weak in many countries, viewed in its entirety the normative framework offered by human rights law may prove to be more inclusive in terms of protecting the general human rights and housing, land and property rights of climate change displaced persons than many will have imagined. Combining the sentiments of the Universal Declaration on Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966) and a range of other treaties, together with a vast array of equally important instruments and interpretive standards such as the UN Committee on Economic, Social and Cultural Rights General Comment No. 4 on the Right to Adequate Housing (1991), General Comment No. 7 on Forced Evictions (1997), the UN Guiding Principles on the Rights of Internally Displaced Persons (1998), the UN Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005) and many others, reveals a very considerable body of international human rights laws and standards which can and should be used by Governments. [24: It is important to note, at the same time, that the UN General Assembly while avoiding direct recognition of the HLP rights of Climate change displaced persons, has recently addressed the explicit links between climate change and international peace and security in resolution 63/281 Climate change and its possible security implications, 11 June 2009.]

In essence, HLP law constitutes a composite of the following existing rights found within international human rights law: The right to adequate housing and rights in housing The right to security of tenure The right not to be arbitrarily evicted The right to land and rights in land The right to property and the peaceful enjoyment of possessions The right to privacy and respect for the home The right to HLP restitution/compensation following forced displacement The right to freedom of movement and to choose ones residence The right to political participation The right to information The right to be free from discrimination The right to equality of treatment and access The right to water The right to energy

In terms of when displacement due to climate change actually takes place, this is likely to manifest in essentially five primary ways. These are: 1. Temporary Displacement - People who for generally short periods of time are temporarily displaced due to a climate event such as a hurricane, flood, storm surge or tsunami but who are able to return to their homes once the event has ceased, such as during a larger than usual King Tide in Vanuatu; 2. Permanent Local Displacement - People who are displaced locally, but on a permanent basis due to irreversible changes to their living environment, in particular sea-level rise, coastal inundation and the lack of clean water and increasingly frequent storm surges. This form of displacement implies that localised displacement solutions will be available to this group of forced migrants, such as higher ground in the same locality. This would include dwellers along Bangladeshs coastline who flee to higher ground in the immediate vicinity; 3. Permanent Internal Displacement - People who are displaced inside the border of their country, but far enough away from their places of original residence that return is unlikely or impossible. This would concern a family displaced from one region of a country to another region in country, for instance, from a coastline to an inland town or city, such as the ongoing resettlement from the Carteret Islands to the larger island of Bougainville in Papua New Guinea.4. Permanent Regional Displacement - People for whom displacement solutions within their own countries are non-existent or inaccessible and who migrate to nearby countries willing to offer permanent protection. This would involve, for instance, a citizen of Tokelau or Tuvalu migrating on a permanent basis to New Zealand. 5. Permanent Inter-Continental Displacement - People for whom no national or regional displacement solutions are available, and who are able to receive the protection of another State in another continent, such as a Maldivian who migrates to London.

Each of these five categories will have different policy and legal implications for Governments, the people concerned and whatever international agencies that may be assigned to assist climate change displaced persons to find durable solutions to their plight. Such responses, which can initially be understood in terms of short- and long-term options, have important ramifications for those affected and for those involved in ameliorating the emerging displacement crisis caused by climate change.

CONCLUSONIn conclusion, while there is much the legal uncertainty surrounding the obligation of one State to accommodate, the lack of strategic willingness is an equally relevant issue. Why should they? The de-territorialized state and the state they take refuge in must come to terms with how they will benefit each other and evolve laws to assure the same.The concept of a de-territorialised state, which could become a key element to the preservation of the interests of Island States under the current United Nation Convention on the Law of the Sea (UNCLOS), that would allow these States to survive, in some form, the disappearance of their territory, preserve their identity and culture. The accordance of such a status could be essential in order to and major emitters of greenhouse gas could face a moral obligation to protect those communities, as they are very likely to be the ones responsible for the increased pace in sea level rise.The victims of forced climate displacement could also be pursuing litigation at the national, regional and international levels in the pursuit of remedial action in response to their displacement. While it is by all means uncertain that such avenues will provide residential justice to those presenting such claims, cases of this sort may generate public attention leading to eventual policy and legal changes that benefit (or do not, as the case may be) climate change displaced persons. The Inuit Case (2005) at the Inter-American Commission on Human Rights[footnoteRef:25] sought to place blame on the United States for causing global warming, which in turn lead to violations of the rights of the Inuit people. Some of the rights alleged to have been violated included central HLP rights such as the right to use and enjoy the lands they have traditionally occupied, to use and enjoy their personal property and rights to residence, movement and inviolability of the home. Although this case was never actually adjudicated, it did receive considerable media attention that led to ever vigorous debates as to the origins of many of the consequences of climate change. This case shows that litigation strategies may be of possible interest to climate change displaced persons to make certain points to the broader public, but it equally reveals the remedial shortcomings of cases of this nature. At the same time, new cases filed with the specific intent of strengthening the HLP rights position of climate change displaced persons may be considerably more utility, and the idea of developing broader HLP climate litigation strategies towards this end has definite merit. [25: Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States, submitted by Sheila WattCloutier, with the Support of the Inuit Circumpolar Conference, on Behalf of All Inuit of the Arctic Regions of the United States and Canada (7 December 2005)]

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