Legal aspects of climate change at threatened Pacific Island nations conference

[Stacey King]

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Updated May 27, 2011 08:48:25

If a Pacific island becomes uninhabitable because it's flooded through climate change induced sea level rise does it still retain its "statehood"?

That's one of the questions that have engaged the minds of people at a "Threatened Island Nations' conference at the prestitious Columbia Law School in the United States.

Experts gathered to consider how the pressures of climate change will affect legal systems.


Presenter:Geraldine Coutts
Speaker:Professor Michael B. Gerrard, Director, Center for Climate Change Law, Columbia Law School.

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GERRARD: In July the Security Council of the United Nations is going to take up a resolution concerning climate change as a national security issue at the request of Germany. The representatives of the small island nations have been very active in advocating that kind of consideration and will be doing a great deal of work in the run-up to that debate.

COUTTS: And a number of experts reportedly said that a priority for small islands should be the standardising of legal baselines as defined by the UN Convention on the Law of the Sea. What will that provide for them?

GERRARD: If the nations file certain kind of maps with the United Nations that means that even if their land shrinks or disappears, they still would have a strong argument that they're entitled to the Exclusive Economic Zone that is around the baseline, and therefore could get income from fishing and mineral exploitation.

COUTTS: And did they also discuss and resolve the issue of the fact that there is no legal concept of an environmental refugee?

GERRARD: Yes we discussed it, I wouldn't say we resolved it but there was quite a bit of discussion that the people who would be displaced as a result of climate change do not fit within the legal definition of refugee, and there's a lot of sentiment for trying to develop a new class of climate displaced people, although others suggested that the different situations that might arise vary so much from one to the other that it might not be worth the effort. So there was debate but not yet agreement on that subject.

COUTTS: In previous discussions we discussed that Marshall Islands put forward a number of issues that they want to discuss, did that actually happen and were there answers to their questions?

GERRARD: Yes there is a large delegation that came from the Marshall Islands led by the President and the Foreign Minister, and all of the issues that they had hoped to be discussed would be, certainly one of the important issues was statelessness, the question of what happens if an island is completely under water? Is it still a state? And there was a general sense that certainly for quite a while the statehood would likely be preserved because most of the big countries would not want to take the affirmative action necessary to dissolve a state.

COUTTS: Well is a state a lump of land or the people who inhabit it, so does the statehood go with them?

GERRARD: It's a combination of land that is permanently inhabited by a viable population and it governs itself, it has the ability to interact with other nations. There is not much precedent for a state that doesn't have land, although the Holy See and the ?? of Malta are similar situations to a certain extent.

COUTTS: And what about the concept of caretaker as a concept that some lawyers put up as a suggestion establishing artifical islands as permanent installations, caretakers?

GERRARD: There was a general sense it would have to be more than just like a lighthouse attendant, that it would have to be a viable population with families, but probably not a lot, but the number 50 towards the number of people who would need to be there to make it a viable community was put forward.

COUTTS: And Japan has attempted that previously, so is that a precedent now?

GERRARD: Well it's certainly an attempt, it hasn't been established in international law that that is an effective attempt, and that was not a previously populated island in the same way that Majuro and the other island and the Marshall Islands are that really do have vibrant populations now.

COUTTS: And the discussion about the Order of Malta, which is an example of people who list no territory who still enjoy sovereignty. Can this work as a model for threatened small island states?

GERRARD: That's probably the closest analogy in history to what's being talked about here. And one of the speakers talked about the concept of an ex-situ state, a state whose people are not at the land where it originally came from. And I think there will be considerable discussion of that going forward. Thankfully none of this is imminent, it's many decades away it appears, but it's now time to talk about it.

COUTTS: And resettlement seems to be a sticking point as well, not only because it's tricky but it's also unpopular about those who might have to resettle?

GERRARD: It's very clear that the residents of all these islands very much want to stay whre they are, that is their top priority, and so even talking about resettlement makes them very uncomfortable. Some see it as an admission that they will not be able to stay, and they very much do want to stay.

COUTTS: Well having had this conference now and you were sort of overseeing it Mr Gerrard, what was the importance of it on reflection now for you?

GERRARD: It was really the first time that there had been an international gathering on the legal issues faced by island nations that are threatened with submersion as a result of sea-level rise. We had 264 people registered for the conference, people came from every continent including many from Australia and the rest of the Pacific region, and we formed a lot of friendships and alliances among people who've been working on this subject. Scholars, activists, government officials, people from NGOs and all different areas, and we have resolved to stay in close touch and explore the very complex legal as well as the political and administrative issues that arise from this terrible situation.

COUTTS: It seems that it's some way off before any kind of law can be written to cover any of these complex situations. So will it take precedent, will it take someone having, an island nation in this situation before the legal ramifications can be dealt with?

GERRARD: Well we hope not but there is certainly a lot of experience where it does take a disaster in order to focus people's attention enough to have new laws applied. It also became clear at the conference that the steady rise of seas is a gradual process and it will take many decades before islands are really under water. However there is an ever growing risk of a sudden event of a combination of sea-level rise and high tides and a serious typhoon or other kind of weather event that could have devastating local impacts.