GLOBAL WARMING:AN INCONVENIENT RESPONSIBILITY

René Lefeber

1. Introduction

Atlantis, an entire civilization sinking into the ocean and disappearing forever, is a romantic myth that has captured people’s imaginative sympathy for generations. Most of us would like to believe that, if Atlantis were real and sinking today, we could and would do something. With our modern technology and capabilities, surely we could prevent an entire nation from sinking beneath the sea. Failing that, we could, at a minimum, provide both immediate rescue and a new home to those rendered homeless by the ocean’s rising. If Atlantis were true, surely, we would act. But, in a fundamental way, Atlantis is true. That truth has emerged not as a romantic story with heroes and pathos, but as a messy reality. The consequence of the oceans’ rising has become an inconvenient truth – part of the same inconvenient truth which Al Gore has so effectively brought to our attention in his documentary An Inconvenient Truth. Our knowledge of and experience with respect to our changing climate has significantly increased in recent years, but we have yet to seriously adapt our behavior to it. In the past, the failure of societies to recognize the impact of human activities on the environment and to adapt their behavior to it in time has resulted in environmental degradation. One of the consequences of this failure has been the loss of land for sustainable inhabitation by humans, as may be illustrated by the histories of Rapa Nui and Bikini. Climate change is expected to pose a threat to the sustainable inhabitation of the Earth by humans, at least at current population levels, in the absence of a behavioral change of our societies. And even a behavioral change is likely to come too late to prevent the injurious consequences of climate change and to preserve all the land for sustainable inhabitation by humans.

Lost Land: Deforestation of Rapa Nui

Rapa Nui, also known as Easter Island, is an isolated island – with a surface area of 163.6 km2

and approximately 3,800 inhabitants – that is situated in the Pacific Ocean to the west of Chile of which it is currently a part. The island is famous for its stone statues that have been erected by the Polynesian population and infamous for the destruction by that population of its own habitat. The production of the stone statues (moai), which stood on stone platforms (ahu) that served as crematoria, has contributed to this destruction.1

There is conflicting archaeological evidence regarding the length of time that the island was sustainably inhabited following its colonization by Polynesians.2 At the time of colonization, the island mainly consisted of subtropical forests. The growth of the population without sufficient space for expansion, however, was accompanied by an increasing use of the limited natural resources. The adaptation of land for farming and the use of timber for fuel, construction material and the transport of the statues resulted in the deforestation of the whole island. The deforestation led to the destruction of the natural habitat of indigenous fauna. This destruction and the use of 1 See J. Diamond, Collapse, How Societies Choose to Fail or Survive (2005), at 95-96.2 Ibid., at 89-90 and 106-107; T.L. Hunt & C.P. Lip, ‘Late Colonization of Easter Island’, 311 Science 1303-

1306 (2006), at 1605-1606.

this fauna as food led in turn to the extinction of indigenous species. In the seventeenth century, these ecological changes resulted in famine, war and cannibalism. Ultimately, the famous statues became a victim of these events: all were eventually toppled.3

A new sustainable equilibrium could possibly have been found with a smaller population if the island would not have become prey to European expansion in the 19 th century. Following a military coup at the end of the 17th century, an era began in which a society with a new culture emerged.4 However, in 1722, the island was visited by an expedition led by the Dutchman Jacob Roggeveen. He observed the island on Easter Day and drafted the first report of a visit to the island by Europeans. Incidental visits followed in the course of the 18 th century. In the 19th

century, the indigenous population became the victim of slave trade and illnesses introduced by the Europeans. The size of the population decreased from tens of thousands of people at its height during the 17th century to 111 people in 1872.5

Currently, the island is once more blooming due to a surge of tourists drawn to the stone statues. The tourist surge has been made possible by the improved accessibility of the island by modern means of transport. The island is today once more sustainably inhabited, but the size of the population remains a fraction of its 17th century number.

Lost Land: Nuclear Tests on Bikini and Enewetak

Bikini is an atoll in the northwest of the Marshall Islands in the Pacific Ocean. The atoll consists of 36 islands with a total surface area of 6 km2 around a lagoon with a surface area of 594.1 km2. During the Second World War, the island was occupied by the United States. After the war, the United States Government selected Bikini as a test site for nuclear weapons.6 On 7 March 1946, the 167 inhabitants were transferred to other parts of the Marshall Islands in the expectation that they could return after nuclear testing would be terminated. Between 1 July 1946 and 23 July 1958, the United States conducted 23 atmospheric nuclear tests on Bikini.

Some islands of Bikini were partially or completely destroyed by the nuclear tests, whilst others have become uninhabitable for an indefinite period due to persistent radioactive contamination. On the basis of a radiological survey, President Johnson announced on 12 August 1968 that a few of the other islands of the atoll could be inhabited again. The return of the indigenous population to these islands, however, required the implementation of certain restoration measures, in particular the decontamination of the soil, the adaptation of land for farming, and the construction of infrastructure and residential buildings. A group of 139 people ultimately returned to Bikini.

Following a new radiological survey, the United States Government decided in 1978 to evacuate the atoll again. Supplementary restoration measures were implemented. A radiological survey, carried out at the request of the Government of the Marshall Islands, demonstrated in 1994 that additional restoration measures were necessary to sustain a traditional way of life on at least some of the islands of the atoll.7 The Government of the Marshall Islands, however, rejected 3 See J. Diamond, Collapse, How Societies Choose to Fail or Survive (2005), at 109-111.4 Ibid., at 109-111.5 Ibid., at 111-112.6 See, for a historical account, The US Court of the Federal Claims, People of Bikini, By and Through the

Kili/Bikini/Ejit Local Government Council, et al., v. the United States, No. 06-288C, Decision of 2 August 2007; J. Niedenthal, ‘A History of the People of Bikini Following Nuclear Weapon Testing in the Marshall Islands: With Recollections and Views of Elders of Bikini Atoll’, 73 Health Physics 28-36 (1997).

7 US Department of State, Report Evaluating the Request of the Government of the Republic of the Marshall Islands Presented to the Congress of the United States of America Regarding Changed Circumstances Arising

the conclusions of the survey and requested the International Atomic Energy Agency to conduct an independent international survey of the radiological condition on Bikini.

The IAEA Bikini Advisory Group concluded in 1997 that permanent settlement on Bikini under the prevailing radiological conditions could not be recommended.8 Permanent settlement in conformity with international radiological principles was, however, technically and economically feasible after the implementation of additional restoration measures. Meanwhile, a dispute has arisen between the inhabitants and the scientists over the nature of these additional restoration measures. To date, Bikini is not permanently inhabited, but has become a popular site for diving trips. More than sixty years after the nuclear tests, the inhabitants of Bikini, or at least their descendents (2,196 in 1996), still have no clear prospects for their return.

Besides Bikini, another atoll in the northwest of the Marshall Islands, Enewetak, was selected as a test site for nuclear weapon. In 1947, the 145 inhabitants were transferred to other parts of the Marshall Islands. The United States conducted 43 atmospheric tests on Enewetak and one in its vicinity. A radiological survey in 1973 demonstrated that the southern islands of the atoll could be inhabited again. To enable inhabitation, restoration measures were implemented starting in 1977. Since 1980, Enewetak is partially inhabitable and people have settled again on some of the islands of the atoll.

One of the tests on Bikini – with code name Bravo on 28 February 1954 – caused unexpected radioactive precipitation on two other inhabited atolls of the Marshall Islands, namely Rongelap with 86 inhabitants and Utrik with 167 inhabitants. The inhabitants of these atolls were exposed to radioactive precipitation during several days before they were evacuated. The inhabitants of Rongelap were permitted to return in 1957, but were evacuated once more following a radiological survey in 1985. Some of them returned in 2004, but the permanent population is too small and the implementation of additional restoration measures is necessary to enable sustainable inhabitation of the atoll. The inhabitants of Utrik were permitted to return within a few months (in 1955) and have remained on the atoll without noticeable radiological difficulties.

In 1947, the Marshall Islands had been designated as a trust territory under the 1945 Charter of the United Nations as part of the 1947 Trusteeship Agreement for the Former Japanese Mandates Islands. The Marshall Islands became independent from the United States in 1986. The mutual relations were regulated in the 1983 Compact of Free Association. Under the Compact, the United States accepted responsibility for compensation for loss or damage to property and person suffered by the citizens of the Marshall Islands resulting from the nuclear test program, provision was made for the just and adequate settlement of claims, and an amount of 150 million dollars was provided to the Government of the Marshall Islands for such settlement.9 An additional agreement provides for the establishment of a fund for the payment of compensation and a tribunal for the settlement of claims (Marshall Islands Nuclear Claims Tribunal).10

The Marshall Islands Nuclear Claims Tribunal has awarded compensation from the compensation fund for personal injury, loss of land, restoration measures and immaterial damage.11 The amount reserved was not sufficient for the payment of the claims that have been

from U.S. Nuclear Testing in the Marshall Islands Pursuant to Article IX of the Nuclear Claims Settlement Approved by Congress in Public Law 99-239 (2004), Chapter 3.

8 See P. Stegnar, ‘Assessing Radiological Conditions at Bikini Atoll and the Prospects for Resettlement, Review at Bikini Atoll’, 40/4 IAEA Bulletin 15-17 (1998).

9 Section 177 of the 1983 Compact of Free Association.10 1983 Agreement for the Implementation of Section 177 of the Compact of Free Association.11 Decisions of Marshall Islands Claims Tribunal with respect to Enewetak of 13 April 2000, Bikini of 5 March

2001, Utrik of 15 December 2006, and Rongelap of 17 April 2007.

awarded. A request from the Government of the Marshall Islands for a supplementation of the fund was not granted by the United States. The inhabitants of Bikini sued the United States for additional funds, but this lawsuit has, as yet, been unsuccessful.12 Up to 2003, the United States had spent more than 800 million dollars (adjusted for inflation to 2003 funds) on assistance and compensation in connection with the injurious consequences of the nuclear tests.

Lost Land: Volcanic Activity on Montserrat

Montserrat is a self-governing British Overseas Territory in the Caribbean. The appearance of the island, with a surface area of 102 km2, is dominated by a volcano (Soufriere Hills). This dormant volcano in the southern part of the island became active on 18 July 1995 and has remained active since. A large part of the island is covered by a layer of ashes emanating from the volcano and two-thirds of it has been declared a total exclusion zone. Thousands of inhabitants were forced to migrate to the island’s northern part or elsewhere. Initially, the British Government only offered assistance for the reception of inhabitants in the northern part of Montserrat, but later also for their transfer to other Caribbean islands, North-America and the United Kingdom of Great-Britain and Northern Ireland. In 1998, the inhabitants of Montserrat were scattered, with approximately 3,500 remaining on the island, 3,000 in Great-Britain and Northern Ireland and 3,000 elsewhere, including 300 in the United States. Since 1999, the British Government has been providing assistance to those who wish to return to the northern part of the island.13

In spite of the fact that Montserrat is part of the United Kingdom, the British immigration legislation, at least at the time the volcano became active, did not confer on Montserrat’s inhabitants the right to reside and work in Great-Britain and Northern Ireland.14 These rights as well as social rights – such as rights to housing, education, health care and welfare – were granted to them on 23 April 1996 for a period of two years. Following the expiration of this period, the immigration status of the Montserratians was adjusted and they were granted indefinite leave to remain. In 2002, the inhabitants of all British Overseas Territories were granted the right to abode following a court decision that recognized the right to abode in the United Kingdom of all its citizens.15

Montserratians were granted residential rights in the United States on humanitarian grounds under the Immigration and Nationality Act as of 22 August 1997. However, because the protected status accorded under this Act is only intended to apply to temporary disruptions of living conditions and because the volcanic activity on Montserrat was not likely to cease in the foreseeable future, the United States government terminated these rights as of 27 February 2005.16 The fact that the island was largely uninhabitable did not preclude such a finding. Individual Montserratians could apply for another immigration status in the United States, but residence on humanitarian grounds was no longer permitted.

The awakening of the volcano on Montserrat has not been attributed to human activity. The inhabitants were forced to leave their homes for reasons beyond their control or the control of 12 The US Court of the Federal Claims, People of Bikini, By and Through the Kili/Bikini/Ejit Local Government

Council, et al., v. the United States, No. 06-288C, Decision of 2 August 2007, against which appeal is pending.13 See, for an overview of the events and the response of the British Government to those events, Department for

International Development, An Evaluation of HMG’s Response to the Montserrat Volcanic Emergency (1999).14 The relevant legislation was the 1962 Commonwealth Immigrants Act and the 1981 British Nationality Act.15 This right is now embedded in the 2002 British Overseas Territories Act; see, on the court decision, the

Explanatory Notes to that Act, para. 5.16 US Citizenship and Immigration Services, DHS Concludes Temporary Protected Status for Nationals of

Montserrat, Press Release of 6 July 2004.

others. These people however, do not have the right of access to other states of which they are not citizens. In the 1960s, Montserrat declined independence and opted to remain part of the United Kingdom. This circumstance has prompted the British Government to assume responsibility for its overseas territory and provide for arrangements for the permanent reception of the displaced persons.

2. Climate Change and Its Causes

The Earth’s climate has changed in the past due to natural factors and these factors will also change the Earth’s climate in the future. Significant natural factors are, for example, volcanic activity and the activity of the sun. It has been generally accepted that human activities also contribute to climate change. The Intergovernmental Panel on Climate Change (IPCC) stated in 2007 with ‘very high confidence’ that the net effect of human activities since 1750, i.e. the beginning of the Industrial Revolution, has been one of warming.17 Since the beginning of the Industrial Revolution, the Earth has become more than half a degree Celsius warmer.

According to the IPCC, the observed rise of the global average temperature since the middle of the last century is ‘very likely’ due to the observed increase of the concentrations of greenhouse gases in the atmosphere that have their origin in human activities.18 In the last three decades, anthropogenic warming has ‘likely’ had a discernible influence on observed global changes in physical and biological systems.19 Continued greenhouse gas emissions at the same, or at or above current rates will cause further global warming. This is ‘very likely’ to lead to changes in the global climate system during this century that are greater than those observed in the last century. The IPCC has projected the increase of global average temperature towards the end of the century compared to that at the end of the last century by means of scenarios with demographic, economic and technological developments as variables. The estimate of the IPCC in 2007 was a rise of 1.8 Co in the best case scenario – within a range of 1.1 to 2.9 Co – and 4 Co in the worst case scenario – within a range of 2.4 to 6.4 Co.20

One of the observed changes is the rise of the global average sea level. The main causes of this phenomenon are the thermal expansion of sea water and the melting of land ice in polar and mountain regions as a result of the rising temperature. However, it is not easy to measure the sea level and to establish the impact of global warming on the rise of the sea level. Moreover, the rise of sea level relative to land is not only determined by the increase of the volume of sea water, but also by geological changes on land, such as the decrease or increase of the soil (relative sea level rise). Even for the historical sea level rise, the IPCC allows for a broad range. According to the IPCC, the sea level has risen 17 cm in the last century, but a range is used of plus or minus 5 cm.21 Anthropogenic global warming has ‘very probably’ contributed to this in the last part of the last century.22 It is expected that the global average sea level will rise further and faster, but how fast and how high depends on the rise of temperature. The IPCC expects a global average rise of 18 cm towards the end of this century in the best case scenario and 59 cm in the worst case

17 IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 37.18 Ibid., at 39.19 Ibid., at 41.20 Ibid., at 45.21 IPCC, Fourth Assessment Report, Working Group I Report “The Physical Science Basis” (2007), Chapter 5

(Observations: Oceanic Climate Change and Sea Level), at 410.22 IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 40.

scenario.23 Observed dynamical changes in ice flow in the Polar Regions have not been taken into account in these scenarios as it is, at for the time being, not clear whether these changes are attributable to anthropogenic global warming or natural variability. If these changes are attributable to anthropogenic global warming, this would mean an additional rise of 9 cm in the best case scenario and of 17 cm in the worst case scenario.

On the basis of these scientific data, it is the responsibility of the representatives of a society to determine whether a behavioral change of that society is required and, in such a case, to take measures. Such determination has been made in spite of the absence of full scientific certainty of the causes and effects of the observed climate change. The international community, in its capacity of the Conference of the Parties to the 1992 United Nations Framework Convention on Climate Change (Climate Change Convention), has adopted an action plan – the Bali Action Plan – to achieve the ultimate objective of the Convention.24 This objective is the stabilization of the concentrations of greenhouse gases in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.25 Since the adoption of the Climate Change Convention, mitigation and adaptation are the cornerstones of the international community to achieve this objective.

3. Mitigation of Climate Change

Mitigation of climate change seeks to control global warming through the regulation of the concentrations of greenhouse gases in the atmosphere that have an anthropogenic origin. These concentrations are a function of the emissions of greenhouse gases by ‘sources’ and their removals by ‘sinks’. Both emissions and removals may have an anthropogenic or a natural origin. Sources of an anthropogenic origin are, for example, the burning of fossil fuels, while an example of a source of a natural origin is volcanic eruptions. An example of a sink of an anthropogenic origin is the sequestration of greenhouse gases and an example of a sink of a natural origin would be their absorption by oceans and vegetation. Energy saving, the use of sustainable energy sources, and comparable human efforts contribute to the mitigation of climate change.

The international community has formulated quantified targets for all parties to the Climate Change Convention with the exception of developing countries.26 The exception for developing countries is justified by the historic responsibility of industrialized countries for the current concentrations of greenhouse gases in the atmosphere. This exception has been enshrined in the principle that the international community has a common responsibility for the mitigation of climate change, but that this responsibility is not the same for all countries and that the capacity of countries to contribute to the implementation of this responsibility must be taken into account.27 The cumulative contribution of developing countries – where approximately 80% of the human population resided in 2004 – to global warming since the beginning of the Industrial Revolution up to 2004 is estimated to be less than 25%.28 This contribution is currently rapidly increasing due to the growth of the population and the economy in these countries – their annual

23 Ibid., at 45; IPCC, Fourth Assessment Report, Working Group I Report “The Physical Science Basis” (2007), Chapter 10 (Global Climate Projections), at 820-822.

24 Bali Action Plan, UNFCCC Decision 1/CP.13 (2007).25 Art. 2 of the Climate Change Convention.26 The ‘developing countries’ are the parties to the Climate Change Convention not mentioned in Annex I to the

Convention, and the ‘industrialized countries’ are the parties mentioned in Annex I. 27 Art. 3.1 of the Climate Change Convention.28 Global Carbon Project, Carbon Budget 2007 (2008), Chapter 2.

contribution had risen to 53% in 2007. Yet, the per capita emissions of developing countries are and, for the time being, will continue to be much lower than those of industrialized countries. It may be clear that, bearing in mind these data, developing countries are still reluctant to agree to any quantified targets that also apply to them.29

The common quantified target for industrialized countries in the Climate Change Convention is the return to the anthropogenic emissions of greenhouse gases to 1990 levels.30 This target was to be achieved by the end of the last century. It has been achieved, but it was not sufficient to stop global warming. This was already recognized in 1995 in the first decision of the first Conference of the Parties to the Climate Change Convention.31 The target had to become stricter and had to be supplemented with individual quantified targets for industrialized countries.

The 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) provides for such targets. The new common quantified target for the industrialized countries became the reduction of the anthropogenic emissions of greenhouse gases to maximum 95% of 1990 levels; in addition, the Kyoto Protocol provides for individual quantified targets.32 These targets must be achieved by the end of 2012. The expectation is that these targets will also be achieved in spite of the fact that the United States has not become a party to the Kyoto Protocol. From recent data, it appears that the emissions of the majority of industrialized countries in 2006 were even less than 84% of 1990 levels.33 This positive pattern originates in the economic regression of Eastern European countries after the end of the Cold War and the dissolution of the Soviet Union. The level of emissions in Eastern European Countries was even less than 63% of 1990 levels, but the emissions of the other industrialized countries had increased by almost 2% compared to 1990 levels.

The achievement of the quantified targets of the Kyoto Protocol will, however, not be sufficient to stop global warming. The IPCC has stated with ‘high confidence’ that, in order to limit global warming to levels no higher than a rise of 2 to 3 Co compared to temperatures at the beginning of the Industrial Revolution, the industrialized countries must significantly reduce their emissions – to maximum 90% of 1990 levels in 2020 and to maximum 60% in 2050 – and that the developing countries must, at least, limit the growth of their emissions.34 On the basis of these science-based understandings, the parties to the Climate Change Convention have recognized that deep cuts in global emissions are required to achieve the ultimate objective of the Climate Change Convention.35 On 9 July 2008, the leaders of the member countries of the G8 committed themselves to the reduction of global emissions by 50% in 2050.36 This seems meaningful, but the exact meaning of this commitment is, for the time being, not clear due to the absence of a reference year. Furthermore, it has been made contingent on the development and deployment of low-carbon technologies and, hence, on a scenario that is equivalent to a scenario that is relatively favorable according to the IPCC. Finally, it is contingent on a global response, in

29 See J.G. Lammers, Billijkheid in het international milieurecht en de speciale positie van ontwikkelingslanden (2007), at 37.

30 Art. 4.2(b) of the Climate Change Convention.31 The Berlin Mandate: Review of the Adequacy of Article 4, Paragraph 2(a) and (b), of the Convention,

Including Proposals Related to a Protocol and Decisions on Follow-up, UNFCCC Decision 1.CP.1 (1995).32 Art. 3.1 of the Kyoto Protocol and accompanying Annex B.33 Annual Compilation Accounting Report for Annex B Parties under the Kyoto Protocol, Doc.

FCCC/KP/CMP/2008/9, at 11 (paras. 27-28).34 IPCC, Fourth Assessment Report, Working Group III Report “Mitigation of Climate Change”, Technical

Summary (2007), at 39, and 90, and Chapter 13 (Policies, Instruments, and Co-operative Arrangements), at 776.35 Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), preambular paragraph 4 and accompanying footnote.36 G8 Hokkaido Toyako Summit Leaders Declaration of 8 July 2008, para. 23.

particular, by the contributions from all major economies, consistent with the principle of common but differentiated responsibilities and respective capabilities. The leaders of the major economies, however, did not repeat this long-term goal in their declaration on energy security and climate change that issued the following day.37

The Bali Action Plan is directed, amongst other objectives, towards the development of new international arrangements with respect to mitigation, including a long-term global target for emission reductions.38 Such new arrangements could contribute to the prevention of dangerous anthropogenic interference with the climate system, provided that (a) the international community agrees to adequate mitigation obligations in a timely fashion, (b) all members of the international community commit themselves to these obligations, and (c) each member of the international community complies with its obligations. Past results offer little hope for the future: (a) the agreed mitigation obligations have not proved to be adequate, (b) the industrialized country with the largest quantity of emissions has not committed itself to these obligations, and (c) it is not expected that all industrialized countries will comply with their current commitments.

Failure of the international community to reach agreement on new mitigation obligations does not imply that countries are entitled to emit greenhouse gases without any limitation. The obligations of the Climate Change Convention and other relevant norms of international environmental law will remain applicable. Accordingly, each country is obliged to take adequate mitigation measures to prevent a dangerous anthropogenic interference with the climate system. Countries cannot ignore new scientific data on climate change when developing such measures. If a country fails to take adequate mitigation measures, it can be held liable for such failure. However, in the absence of individual quantified targets, it will not be easy to prove that the mitigation measures adopted by a country are not adequate. Moreover, another country will have to overcome several procedural obstacles and diplomatic reservations to hold such country legally liable.

If a country chooses not to commit itself to new mitigation obligations, the obligations of the Climate Change Convention and other relevant norms of international law will likewise remain applicable. The decision of the United States not to become a party to the Kyoto Protocol only means that the United States is not required to comply with its obligations under the Kyoto Protocol, but it does not exempt it from its obligation to take adequate mitigation measures to prevent a dangerous anthropogenic interference with the climate system. The procedural obstacles and diplomatic reservations referred to above have prevented other countries so far from holding the United States legally liable for the alleged failure to take adequate mitigation measures. Yet it has been attempted to force the United States, through the Inter-American Commission on Human Rights, to take binding measures to reduce emissions unilaterally and to cooperate with other countries to reduce emissions globally. However, the Commission refused to process a petition submitted on behalf of all Inuit of the Arctic regions of the United States and Canada.39 According to the Commission, the information submitted was not sufficient to determine whether a human right had been violated under the 1948 OAS Declaration of the 37 Declaration of Leaders Meeting of Major Economies on Energy Security and Climate Change of 9 July 2008;

it was issued by the leaders of Australia, Brazil, Canada, China, the European Union, France, Germany, India, Indonesia, Italy, Japan, the Republic of Korea, Mexico, Russia, South Africa, the United Kingdom, and the United States.

38 Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(a-b).39 Letter on behalf of the Inter-American Commission on Human Rights of 16 November 2006 in Response to

the 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 of 7 December 2005, Petition No. P-1413-05.

Rights and Duties of Man. The Commission honored a request for a hearing which was held on 1 March 2007. It appears that the demands of the Inuit will, after all, be accommodated by President Obama. He has announced a national mitigation target that envisages a reduction of the emissions to 1990 levels in 2020.40 The proposed target falls short of the Kyoto Protocol, pursuant to which the United States would be required to reduce its emissions to 93% of 1990 levels before 2013 – that is seven per cent less and seven years earlier.

Failure of a country to comply with new mitigation obligations to which it has committed itself provides a more solid legal basis to hold that country liable. The procedural obstacles and diplomatic reservations referred to above will, however, also in such case discourage other countries to hold such country legally liable. The effective international supervision of compliance with mitigation obligations is therefore of eminent importance. Such supervision is provided for under the Kyoto Protocol by the establishment of a committee with powers to facilitate, to promote and, if necessary, to enforce compliance with the Kyoto Protocol.41 The powers of the Compliance Committee under the Kyoto Protocol also seek to provide for early warning of potential non-compliance with individual quantified targets. Although the industrialized countries only have to achieve these targets by the end of 2012, it has appeared that several industrialized countries are not on target.42 Hence, there is reason to make use of the Compliance Committee.

An example is Canada with an emission level in 2006 that is 29% above its quantified target under the Kyoto Protocol.43 In 2007, the Canadian Government developed a national action plan to reduce emissions, including a national emission target.44 The primary target is the reduction of emissions to 80% of 2006 levels in 2020. This target deviates from the quantified target of Canada under the Kyoto Protocol. Pursuant to the Kyoto Protocol, Canada must reduce its emissions to 94% of 1990 levels before 2013. Thus, the Canadian Government uses another reference year – 2006 instead of 1990 – and another target year – 2020 instead of 2013. The Canadian Parliament rejected the plan and adopted the Kyoto Protocol Implementation Act which seeks to secure Canada’s compliance with the Kyoto Protocol. However, the plan developed by the Canadian Government to implement this Act will still not achieve that objective.45 According to the Canadian Government, compliance with the Kyoto Protocol is not possible, because the required measures would result in a severe economic recession for Canada and the use of international emission rights is not an acceptable alternative for the domestic reduction of emissions.46 An action by a non-governmental organization to secure compliance with the Kyoto Protocol Implementation Act by the Canadian Government was dismissed by a national court, because the reasonableness of the Government’s response to Canada’s obligations under the

40 Barack Obama and Joe Biden: Promoting a Healthy Environment, www.barackobama.com.41 Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, UNFCCC Decision

27/CMP.1 (2005).42 Demonstration of Progress in Achieving Commitments under the Kyoto Protocol by Parties Included in

Annex I to the Convention, UNFCCC Decision 7/CMP.3 (2007).43 Minister of the Environment, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation

Act (2008), at 5.44 Government of Canada, Turning the Corner, An Action Plan to Reduce Greenhouse Gases and Air Pollution

(2007); Government of Canada, Turning the Corner, Regulatory Framework for Industrial Greenhouse Gases (2008), at 1.

45 Minister of the Environment, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act (2007).

46 Memorandum of Fact and Law of the Respondent of 13 February 2008 in Friends of the Earth v. The Minister of the Environment, Federal Court, Court File No. T-1683-07, para. 16.

Kyoto Protocol was not subject to judicial review.47 Hence, there is reason to call in the Compliance Committee, but Canada is not likely to call in the Committee; other countries could call in the Committee, but so far no country has overcome its diplomatic reservations. If Canada does not achieve its quantified target under the Kyoto Protocol, the Compliance Committee can still enforce compliance by Canada after 2012, provided that the international supervision will be continued, Canada commits itself to new mitigation obligations, and Canada will not be permitted to start with a clean slate after 2012.

4. Adaptation to Climate Change

Adaptation to climate change presupposes that a certain degree of global warming is inevitable and that the international community must prepare itself for the resulting global changes in physical and biological systems, including a sea level rise. Adaptation is the adjustment of physical or human systems, in connection with a real or expected change of the climate and its consequences, with the aim of reducing the vulnerability of those systems to climate change. In case of sea level rise, adaptation could be achieved through the maintenance of natural barriers such as dunes and mangrove forests, the creation of buffer areas for water, the construction and reinforcement of sea barriers and, if such measures are not effective or no longer cost-effective, the abandonment of land.

Adaptation to climate change, at least to a sea level rise, requires drastic measures which in many cases cannot, or not easily, be reversed. Uncertainties with respect to the occurrence and the injurious consequences of climate change complicate the adoption of a rational decision on the implementation of such measures. Moreover, the implementation of adaptation measures requires the availability of the necessary technological, economic and administrative capacities in a country. On the one hand, adaptation measures may be implemented that in hindsight could have been avoided and, on the other hand, other adaptation measures may erroneously not be implemented.

While mitigation measures will not be effective without international cooperation, adaptation can often be achieved through local projects. However, at the global level, the majority of injurious consequences of climate change are likely to manifest themselves in developing countries. The heaviest burdens are thus on the shoulders of the countries that historically least contributed to climate change and that have the least capacity for the implementation of adaptation measures. The financing of global adaptation requires therefore international cooperation, in particular if developing countries are expected to contribute to the mitigation of climate change. International law does, however, not require industrialized countries to make available financial resources and technology for adaptation measures in developing countries. The Climate Change Convention and the Kyoto Protocol provide for the partial financing of the costs of the development of an adaptation policy in these countries,48 but not the costs of adaptation measures. Industrialized countries are only required to endeavor to make technology available and to assist developing countries that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects.49

Several international funds have been established that are, amongst other goals, destined for the financing of adaptation measures in developing countries – including two funds under the 47 Federal Court, Friends of the Earth v. The Minister of the Environment, 2008 FC 1183, Decision of

20 October 2008.48 Art. 4.3 of the Climate Change Convention. 49 Arts. 4.4 and 4.5 of the Climate Change Convention.

Climate Change Convention that are particularly destined for the financing of adaptation (Least Developed Country Fund; Special Climate Change Fund) and one fund under the Kyoto Protocol that is exclusively destined for the financing of adaptation measures (Adaptation Fund). Several industrialized countries have pledged to contribute to these funds. On 4 March 2008, just over a quarter of a billion dollars has been pledged by 19 of the 24 countries from which pledges are expected pursuant to the Climate Change Convention.50 More than 90 million dollars has been pledged by 13 countries for the Special Climate Change Fund, including almost 75 million dollars for adaptation and more than 15 million dollars for the transfer of technology, and more than 172 million dollars by 19 countries for the Least Developed Country Fund. These pledges contribute to the implementation of a political declaration that was made by a group of industrialized countries – the European Community and its member states, Canada, Iceland, New Zealand, Norway and Switzerland – to make available annually 410 million dollars as of 2005 to developing countries for the financing of projects relating to climate change.51 However, according to different estimates, the annual additional adaptation costs in developing countries will be much higher and amount to billions of dollars.52

The Bali Action Plan is also directed towards the development of new international arrangements on adaptation, including the provision of financial resources for adaptation.53 New arrangements could contribute to a decrease of the vulnerability of developing countries to the injurious consequences of climate change if sufficient additional financial resources and technology are promptly made available to these countries. In this case too, the results of the past offer little hope for the future. Existing arrangements on adaptation are characterized by the absence of quantified commitments of industrialized countries. It is not a realistic option to hold these states liable for their failure to make available financial resources and technology.

A potential legal basis to hold industrialized countries liable for the financing of adaptation measures in developing countries is the principle that the polluter must pay for the pollution caused by him. This principle has an economic origin. Pursuant to this principle, operators must internalize the costs of pollution caused by their activities. The economic objective of the principle is an optimal allocation of the means of production and a maximum value of the production. It is, however, not clear whether the principle only applies to the person in control of the polluting activity or also to the state within whose control the activity is carried on. It could be argued that the application of the principle should be extended to the state within whose control the activity is carried on, because it can permit or prohibit the activity and, if it permits the activity, it benefits from the activity through the contribution by that activity to the gross

50 Status Report on the Climate Change Funds as of March 4, 2008, GEF/LDCF.SCCF.4/Inf.2 (2008). The pledges were made by the following 19 industrialized countries mentioned in Annex II to the Climate Change Convention: Australia, Austria, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom. The other five countries mentioned in Annex II are Belgium, Greece, Iceland, Turkey, and the United States.

51 Joint Political Declaration by the European Community and its member states, together with Canada, Iceland, New Zealand, Norway, and Switzerland during the second half of the Sixth Conference of the Parties to the Climate Change Convention in Bonn from 16 to 27 July 2001on financial support for developing countries.

52 See e.g. World Bank Development Committee, Clean Energy and Development: Towards an Investment Framework, DC2006-002, Annex K, at 143-144 (10 to 100 billion dollars); United Nations Development Program, Human Development Report 2007/2008, Fighting Climate Change: Human Solidarity in a Divided World (2007), at 194 (86 billion dollars by 2015); UNFCCC, Report on the Analysis of Existing and Potential Investment and Financial Flows Relevant to the Development of an Effective and Appropriate International Response to Climate Change (2007), para. 22 (28 to 67 billion dollars by 2030).

53 Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(c-e).

national product of a state.54 According to such extended application of the principle, a state must require operators within its control to internalize the transboundary costs of their activities. Adaptation costs are aimed at the prevention or mitigation of damage and are, therefore, eligible for internalization. In this form, the principle could be applied as a principle of international law which could be invoked by states if adaptation costs are not internalized. However, such an application of the principle is not supported by existing international instruments and case law.55

The development of an international mechanism could make the financing of adaptation measures in developing countries independent from the contributions of other countries. The Clean Development Mechanism under the Kyoto Protocol envisages the use of a part of the revenues it generates through the trade in international emission rights to finance adaptation measures in developing countries that are particularly vulnerable to the injurious consequences of climate change.56 The annual revenues – approximately 20 million dollars in 2008 – are not negligible and are likely to increase, but are insufficient to considerably contribute to the financing of adaptation measures in these developing countries.57 This method of financing should, as soon as possible, be extended to the revenues of the trade in other international emission rights that are generated under the Kyoto Protocol, i.e. by Joint Implementation and Emissions Trading.

Reclaimed Land: The Netherlands

The Netherlands is a small country – with a surface area of 41.528 km2, more than 16 million inhabitants and a coastline of approximately 350 km – that is situated on the North Sea in the northwest of Europe. It is famous for its struggle against the sea and its land reclamation. More than half of the Netherlands is situated below sea level. Almost nine million people live in the part of the Netherlands that is protected by dunes and dikes along the coast and where two-thirds of the gross national product is earned.58 The potential damage as a result of flooding of this part of the Netherlands is estimated at 190 billion euros. If no additional adaptation measures are implemented, this amount will increase in the course of this century to approximately 400 to 800 billion euros in 2040 in case of a sea level rise of 24 to 60 cm and to 3,700 billion euros in 2100 in case of sea level rise of 150 cm.59

In 2007, the Netherlands Government has established a committee to advise on the protection of the Netherlands coast against the consequences of climate change (Deltacommissie 2008). In case of a temperature increase of 6 Co in 2100, compared to that of the end of the last century, the relative sea level rise on the Netherlands coast is estimated by this Commission at 65 to 130 cm.60

These estimates are upper limits based on the maximum estimation of the temperature increase in

54 See R. Lefeber, Transboundary Environmental Interference and the Origin of State Liability (1996), at 2-3; Advocate-General J. Kokott in Case C-188/07, Commune de Mesquer v. Total France SA and Total International Ltd, Conclusion of 13 March 2008, paras. 142-143.

55 Arbitral Tribunal, Case Concerning the Auditing of Accounts Between the Kingdom of the Netherlands and the French Republic Pursuant to the Additional Protocol of 25 September 1991 to the Convention on the Protection of the Rhine Against Pollution by Chlorides of 3 December 1976, Award of 12 March 2004, para. 103.

56 Art. 12.8 of the Kyoto Protocol.57 Status of Income and Expenditure to Support CDM Activities During the 2008-2009 Biennium (as at 27

November 2008), Doc. UNFCCC CDM-EB-44 (2008), Annex 43.58 Deltacommissie 2008, Samen werken met water (2008), at 21; IPCC, Fourth Assessment Report, Working

Group II Report “Impacts, Adaptation, and Vulnerability” (2007), Chapter 12 (Europe), at 547.59 Deltacommissie 2008, Samen werken met water (2008), at 22.60 Ibid., at 25, 87, and Annex 3.

the worst case scenario of the IPCC. These upper limits are science based, but a calculation of the probability that this scenario materializes is absent in the Committee’s report. Hence, it is debatable whether a sea level rise for the Netherlands coast of 65 to 130 cm should be the basis for the adoption of additional adaptation measures.

The report of the Committee contains recommendations for additional adaptation measures for the sustainable development of the Netherlands coast.61 The annual costs of implementation of these measures are estimated at 1.2 to 1.6 billion euros up to 2050 and subsequently at 0.9 to 1.5 billion euros up to 2100.62 According to the Committee, the threat is not imminent, but the task is urgent and so is the need to implement its recommendations.

A country like the Netherlands has the necessary technological, economic and administrative capacities to implement the recommended adaptation measures. The prospects for the timely adaptation of coastlines in other densely populated delta areas in the worlds, for example along the Gulf of Bengal, are less favorable. Countries without the necessary technological, economic and administrative capacities will face heavier flooding in the course of this century and are likely to have to abandon land.

5. The Inevitable Injurious Consequences of Climate Change

According to the IPCC, neither mitigation nor adaptation alone can avoid all climate change impacts.63 The IPCC has pointed out that mitigation and adaptation can complement each other and together can significantly reduce the risks of climate change. The assumption is that the international community will come to a timely agreement on arrangements for mitigation and adaptation, that all members of the international community will commit themselves to these arrangements, and that each member of the international community will comply with them. The implementation of mitigation and adaptation measures could result in a significant reduction of the risks of climate change, but not in their elimination. Hence, it is inevitable that the international community, in spite of the implementation of mitigation and adaptation measures, will have to face the injurious consequences of climate change. The magnitude of these consequences will also depend on the effective implementation of new mitigation and adaptation measures.

It is expected that the Earth will be confronted more frequently with increasingly serious natural disasters, including flooding as a result of heavier storms and sea level rise. It is possible to be better prepared for these disasters by the development and improvement of contingency plans, disaster relief plans, temporary shelter arrangements for displaced persons, and compensation mechanisms for victims.

Disaster preparedness qualifies as a means of adaptation to climate change that is covered by the term ‘adaptation’ under the Climate Change Convention and the Kyoto Protocol. The Bali Action Plan is also directed towards the development of new international arrangements on this means of adaptation.64 The Plan builds on earlier initiatives and identifies the management and reduction of risks as well as disaster reduction strategies as areas of focus. It also suggests the development of mechanisms to share and transfer risks by means of insurance as well as means to address loss and damage associated with climate change impacts in developing countries that are particularly vulnerable to the adverse effects of climate change. These are not more than 61 Ibid., at 90-92.62 Ibid., at 73 and 92.63 IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 65.64 Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(c)(ii-iii).

suggestions. The results from the past certainly offer little hope for the future. Although the international community generally responds adequately to natural disasters

through the mobilization of resources for disaster relief, the provision of such resources by other states is voluntary. International law does not require states to assist other states with disaster management and it is not realistic that an exception will be made in the framework of the Climate Change Convention. Alternative suggestions of the Bali Action Plan include the development of mechanisms for the sharing and transfer of risks by means of insurance and mechanisms for the compensation of losses and damage. Options to implement these suggestions include the provision of incentives to the insurance industry to offer world-wide insurance at reasonable cost, the development of a collective compensation mechanism with international funding, and the improvement of liability mechanisms for climate change related damage.

The availability of insurance at reasonable cost to cover potential losses and damage associated with climate change impacts is limited, in particular in developing countries.65 In order to provide affordable coverage of these risks, innovative insurance products to distribute the costs of climate change impacts will need to be developed.66 The insurance industry could be encouraged, through incentives, to develop such alternative risk transfer mechanisms. The availability of insurance could thus be improved, but this is not likely to be sufficient to provide comprehensive coverage of all climate change risks by the market.

The magnitude of climate change risks would seem to justify the introduction of a supplementary collective compensation mechanism that is funded by states. There are examples of such mechanisms; they address damage caused by nuclear reactors. The contributions of states to these mechanisms are based on the gross domestic product of and the thermal capacity of nuclear reactors in participating states.67 These mechanisms are effective, but require the conclusion of a treaty. Hence, they require prior agreement of a group of states followed by ratification by at least several of these states. This would also be true for any supplementary collective compensation mechanism to cover climate change risks.68

Private operators can already be held liable for damage caused by them on the basis of national law and states can be held liable for activities under their jurisdiction or control on the basis of international law. However, numerous legal obstacles complicate the establishment of liability for climate change related damage. Proposals to remove these obstacles, at least partially, by the development of a special liability arrangement in the framework of the Climate Change Convention and the Kyoto Protocol have been rejected by industrialized countries. Thus, a proposal to attribute to the Kyoto Protocol Compliance Committee the power to require a state to pay for the restoration of damage to the environment was not accepted.69 Likewise, a proposal to include a reference in the Climate Change Convention to the polluter-pays principle was not accepted.70

The rejection of the latter proposal by industrialized countries prompted several developing

65 See N. Stern (ed.), The Economics of Climate Change: The Stern Review (2006), at 99 and 435.66 See E. Bergsma, ‘Global Justice and the Costs of Climate Change, Who Pays?’, The Broker (2007), at 9.67 1963 Brussels Convention Supplementary to the 1960 Paris Convention on Third Party Liability in the Field

of Nuclear Energy, as amended in 2004; 1997 Convention on Supplementary Compensation for Nuclear Damage.68 An international insurance scheme covering climate change risks that relies on international funding has been

proposed by Tuvalu in the framework of the Climate Change Convention and the Kyoto Protocol; see International Blueprint on Adaptation, Docs. FCCC/CP/2007/MISC.2 and FCCC/KP/CMP/2007/MISC.3.

69 See R. Lefeber, ‘From The Hague to Bonn to Marrakech and Beyond: A Negotiating History of the Compliance Regime under the Kyoto Protocol’, 14 Hague Yearbook of International Law 25-54 (2001), at 31-39.

70 See T.N. Slade, ‘Climate Change: The Human Rights Implications for Small Island Developing Countries’, 37 Environmental Policy and Law 215-219 (2007), at 218.

countries to declare that their signature of the Climate Change Convention did not constitute a renunciation of any rights under international law concerning state responsibility.71 Thus, they reserved their rights to hold other states liable for the injurious consequences of climate change. So far, they have not made use of these rights. This is understandable in view of the diplomatic reservations and the legal obstacles that have to be overcome for one state to successfully hold another state legally liable for climate change related damage. It may first require the emergence a compelling test case for a state, such as the permanent inundation of its territory, to overcome its diplomatic reservations and to take up the legal challenge.

Such a state may be reassured that international law already provides for a legal basis to substantiate a claim for climate change related damage. States are required to take adequate measures to prevent that activities within their jurisdiction or control cause transboundary damage. A state that has been injured, e.g. as a result of the permanent inundation of its territory, will nevertheless face several legal obstacles to substantiate a claim for damages.72 First, the injured state will have to demonstrate that the flood was caused by global warming and that such warming was caused by emissions of greenhouse gases. Second, the injured state will have to demonstrate the extent to which global warming is attributable to the defendant state. This will have to be demonstrated taking into account that (a) other states, including the injured state, have contributed to global warming and (b) predominantly private operators are responsible for the emissions of greenhouse gases. States are, as a matter of principle, not liable for transboundary damage caused by private operators. A state would only be liable for damage associated with climate change impacts if its mitigation policy does not meet an objective international standard that is observed by other states with an equivalent level of prosperity. Third, the injured state will have to demonstrate that all emissions of the defendant state since the beginning of the Industrial Revolution should be taken into account and not only the emissions since the time that it could have been known that emissions of greenhouse gases contribute to global warming. Finally, a court will have to be found that is competent to hear the case and finds the claim admissible.

At the national level, it will be equally difficult to substantiate a claim for climate change related damage. Nevertheless, on 26 February 2008, the representatives of Kivalina, an indigenous local community of Inuit in Alaska (United States), initiated a legal action against several oil companies and energy companies before a court in California (United States).73 They claim compensation for the coming loss of their traditional home land due to global warming. Applicants hold these companies liable for this loss. The defendants reject the claim.74 The court has yet to decide the case.

Doomed Land: Alaska

The Polar Regions are warming faster than the rest of the Earth. As a result, sea and land are frozen fewer days during the year, the average sea ice coverage decreases and the permafrost on

71 These countries are Fiji, Nauru, Papua New Guinea, Tuvalu, and Kiribati; Cook Islands, Niue, Nauru, and Kiribati also reserved their rights when they signed, ratified or acceded to the Kyoto Protocol.

72 See e.g. M. Faure & A. Nollkaemper, ‘International Liability as an Instrument to Prevent and Compensate for Climate Change’, 43 Stanford Journal of International Law 12-179 (2007).

73 Complaint for Damages of Plaintiffs of 26 February 2008 in Native Village of Kivalina and City of Kivalina v. ExxonMobil Corp., et al.

74 Motions to Dismiss of Defendants of 30 June 2008 in Native Village of Kivalina and City of Kivalina v. ExxonMobil Corp., et al., US District Court, Northern District of California, Oakland Division, Case No. C 08-cv-01138 SBA; Plaintiff’s Consolidated Opposition to Motions to Dismiss of 18 September 2008.

land thaws.75 Storms that hitherto raged over relatively stable frozen sea and land now result in seas battering melting coastlines. In addition, higher temperatures have brought heavy rainfall, ice jams, glacial melts, and rising sea levels. This results in flooding and erosion of the coasts of low-lying polar areas, including coastal areas of Alaska. According to the United States General Accounting Office, 184 out of 213 indigenous local communities in Alaska are increasingly threatened by these climate changes.76 It appeared from a survey into nine communities that four of them are forced to make plans for relocation, including Kivalina and Shishmaref.77

Shishmaref is an indigenous local community of approximately 600 inhabitants of predominantly Iñupiat (Northern Eskimos) on the island of Sarichef. Sarichef forms part of a barrier reef that is located near the west coast of Alaska in the Chukchi Sea. The island’s coasts – which are not more than a quarter of a mile broad and three miles long – erode during heavy storms. It has not been feasible to reverse this physical process and the disappearance of the island is inevitable. On 10 July 2002, the Community of Shishmaref decided that relocation of the Community would be the best option to adapt to climate change. Presently, the Community is in the process of developing plans, together with the authorities, for the relocation of the Community to mainland Alaska.78

The costs of relocation of indigenous local communities in Alaska are high as a result of the expensive costs of equipment and transport in the remote areas where these communities reside. The costs of relocation of Shishmaref are estimated at 180 million dollars and those of Kivalina at 100 to 400 million dollars.79 These communities do have the necessary technological, economic and administrative capacities to develop and implement relocation plans. They are dependent on the authorities, in this case authorities which possess the necessary capacities and are willing to provide the necessary assistance. The organized relocation enables these Communities to continue their traditional way of life elsewhere in their natural habitat.

6. The Expected Mass Migration Resulting from Climate Change

It is expected that natural disasters will not only increase in number and gravity, but also that land will have to be abandoned on a permanent basis. The number of persons who will be displaced by climate change in the course of this century is estimated at 25 million or more.80 The migration of peoples is not unique for this era of anthropogenic climate change. The history of humanity is characterized by numerous migrations of peoples which were induced by climate change. These migrations occurred, however, in an era without sovereign states, without international boundaries, and with more space for fewer people.

75 IPCC, Fourth Assessment Report, Climate Change: Synthesis Report (2007), at 30; IPCC, Fourth Assessment Report, Working Group II Report “Impacts, Adaptation, and Vulnerability” (2007), Chapter 15 (Polar Regions (Arctic and Antarctic)), at 653-685.

76 Testimony of the Shishmaref Erosion and Relocation Coalition before the Committee on Homeland Security and Governmental Affairs Sub-Committee on Disaster Recovery of the United States Senate of 11 October 2007 during Hearing on “The State and Federal Response to Storm Damage and Erosion in Alaska’s Coastal Villages”; US General Accounting Office, Alaska Native Villages: Most Are Affected by Flooding and Erosion, but Few Qualify for Federal Assistance (2003), GAO-04-142, at 2-3 and 13-17.

77 Ibid., at 4 and 27-35.78 Ibid., at 34. See, for an informative perspective on the social dimension of the relocation of the Community,

the documentary The Last Days of Shishmaref (2008).79 Ibid., at 4 and 32.80 See e.g. O. Brown (prepared for the International Organization for Migration), Migration and Climate

Change (2008), at 11-12; N. Stern (ed.), The Economics of Climate Change: The Stern Review (2006), at 77.

International law does not attribute to persons displaced due to climate change the right of access to states of which they are not citizens. The existing international instruments that attribute rights to refugees and stateless persons do not offer adequate judicial protection for climate change-displaced persons.81 These instruments only offer a basis for the acquisition of residential rights in a state if an individual is physically present in that state. Furthermore, the individual will have to meet the specific requirements set out in these instruments in order to invoke these rights, such as the requirement of persecution under the 1951 Convention Relating to the Status of Refugees. The mandate of the United Nations High Commissioner for Refugees is related to these instruments and does not seem to cover the reception of climate change-displaced persons.82

High Commissioner Guterres has already indicated that the challenge posed by climate change displaced persons is clearly beyond his mandate.83

Some regional instruments contain a broader definition of the term ‘refugee’ that also extend protection to people who seek refuge for events which have seriously disturbed the public order.84

These instruments have not been developed to offer protection to persons who have been displaced by natural disasters, but it cannot be discounted that global warming qualifies as a human-induced event that seriously disturbs the public order. However, the protection under these instruments is limited and does not envisage permanent reception of climate change- displaced persons.

For the time being, climate change-displaced persons will have to rely on humanitarian immigration programs that are in place in several states.85 The reception on the basis of these programs is, however, characterized by specific conditions, discretionary application and temporariness. These programs are likely to be of great importance for the temporary relief for climate change-displaced persons, but do not provide much perspective for their permanent relief.

Climate change-displaced persons lack thus adequate international judicial protection. The International Organization for Migration (IOM) is already investigating the expected mass migration as a result of climate change in the course of this century. The purpose of the IOM is to ensure the orderly flow of migration movements and to facilitate the settlement and integration of the migrants in the country of reception, but the IOM is not the proper forum for the attribution of rights to climate change-displaced persons.86 The proper forum is the Conference of the Parties of the Climate Change Convention. This forum should explicitly recognize that the reception of climate change displaced persons is covered by the term ‘adaptation’ under the Climate Change Convention and the Kyoto Protocol. The Bali Action Plan ignores this and is not directed towards

81 1951 Convention Relating to the Status of Refugees; 1954 Convention Relating to the Status of Stateless Persons; 1948 Universal Declaration of Human Rights (Art. 14.1).

82 Statute of the Office of the United Nations High Commissioner for Refugees, UN Doc. A/Res/428 (1950), Annex, paras. 6-7.

83 Opening Statement by Mr. António Guterres, United Nations High Commissioner for Refugees, at the Fifty-eighth Session of the Executive Committee of the High Commissioner's Programme, Geneva, Switzerland, of 1 October 2007; see also ‘UN: Climate Change Driving Forced Migration’, Mail & Guardian Online, 1 October 2007.

84 1969 OAU Convention Governing the Specific Aspects of Refugee Problems; 1984 OAS Cartagena Declaration on Refugees.

85 See e.g. US Immigration and Nationality Act; Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving Such Persons and Bearing the Consequences Thereof; Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted.

86 Statute of the International Organization for Migration (as amended in in 1987).

the development of international arrangements for this form of adaptation. However, the attribution of rights to climate change-displaced persons is urgent. It not only concerns residential rights of individuals, but also rights of groups.

More Doomed Land: Tuvalu

The World Summit on Sustainable Development in 2002 was addressed by President Falcam of Micronesia.87 He addressed the consequences of climate change for low-lying island states and made an urgent appeal to the international community to assist these states. This assistance was necessary for the adaptation of these states to the sea level rise and, in particular, for the development of a migration policy given that mitigation and adaptation measures would come too late for many low-lying island states.88

One of these island states, Tuvalu, became independent from the United Kingdom in 1978. Tuvalu is situated in the Pacific Ocean and consists of nine islands with approximately 12,000 inhabitants. The main sources of income are development aid, remittances, and the sale of fisheries concessions, stamps, coins and the lucrative internet domain name ‘.tv’.

The highest point of Tuvalu is approximately 5 m above sea level. However, Tuvalu will become uninhabitable long before the islands disappear in the sea. During storm surges, the islands will be flooded more frequently, more extensively and for longer stretches of time, and become more and more brackish as a result. The damage caused by storms is increasing due to the erosion of coral reefs as a result of ocean acidification under the influence of the absorption of greenhouse gases. The Tuvaluan Government is conscious of these processes, anticipates that the population may have to migrate, and has asked countries in the region for assistance. The former Australian Shadow Government has heard this cry for help and has declared its willingness to receive climate change displaced persons in Australia under a humanitarian immigration program.89 To that end, it not only suggested the formation of a regional coalition of states in the Pacific Ocean to receive climate change-displaced persons, but also suggested that the United Nations should work towards the adequate protection of climate change-displaced persons under existing or new treaties. The current Australian Government emanates from the former Shadow Government and can now suit the action to word.

Following its relocation, the Tuvaluan people, as a subject of international law, would continue to have the right to self-determination. It will, however, have to exercise this right on the territory of another state. When Tuvalu disappears in the sea, its territory will be permanently lost. As a result, Tuvalu will no longer satisfy one of the criteria to qualify as a state under international law and will legally cease to exist. The emergence of a state is reviewed by a factual assessment and this would therefore also apply to the disappearance of a state – unless the international community accepts the continued existence of Tuvalu as a legal fiction and develops an international regime for ghost states.

Not all sovereign rights of the state will pass on to the Tuvaluan people. The jurisdiction to prescribe and enforce law on the basis of the principle of territoriality will be lost together with

87 Statement by H.E. Leo A. Falcam, President of the Federated States of Micronesia, at the World Summit on Sustainable Development, Johannesburg, South Africa, of 3 September 2002.

88 IPCC, Fourth Assessment Report, Working Group II Report “Impacts, Adaptation, and Vulnerability” (2007), Chapter 16 (Small Islands), at 708.

89 B. Sercombe (Shadow Minister for Overseas Aid and Pacific Island Affairs) & A. Albanese (Shadow Minister for Environment and Heritage and Water), Our Drowning Neighbours, Labor’s Policy Discussion Paper on Climate Change in the Pacific (2006).

the territory. This is also true for the sovereign rights in adjacent sea areas, including fisheries’ rights. The waters around and above the Tuvalu will become high seas, but discussion is possible as to whether that happens at the time the last island disappears into the sea or the time the last inhabitant leaves the islands.

The jurisdiction to prescribe and enforce law on the basis of principles other than territoriality could be exercised on the territory of another state by the representatives of a people. The Tuvaluan people could thus be enabled to protect the cultural heritage of Tuvalu, including its own language. Furthermore, the right to issue passports could be passed on to the representatives of a people, but other states are not likely to grant access to persons with such passports in the absence of state to which these persons can be expelled.

President Nasheed of the Maldives, another low-lying island state of 1,192 islands with approximately 380,000 inhabitants and a highest point above sea level of 2.4 m, has been less passive than the Tuvaluan Government. The President has announced his intention to buy land elsewhere and has made reference to Sri Lanka, India and Australia for this purpose.90 However, he has not clarified whether such land will be acquired as private property or public property. In the former case, the sale of land to foreigners will have to be permitted in the state concerned and such foreigners will, moreover, have to obtain residential rights in that state in order to be able to live on the purchased land. In the latter case, another state must be prepared to transfer sovereignty over a part of its territory to the Maldives on the basis of a treaty of cession. In such case, the Maldives could continue to exist as a sovereign state. In both cases, the Maldives would be dependent on the cooperation of other states.

It would seem that the best option for low-lying island states is a fusion with another, higher lying island state.91 In this case too, it will be necessary to find another state that is willing to cooperate to that end. A fusion means that a state will be expanded with a people with the right to self-determination. Perhaps, the acquisition of rights over adjacent sea areas makes a fusion attractive, at least as long as there is fish in the seas and oil in the ground.

7. Inconvenient Responsibilities

The ecosystems of islands are among the most fragile on Earth. The fates of Rapa Nui and Bikini provide examples where ecosystems were destroyed by human activities and land was lost for sustainable inhabitation by humans. The ecosystem of the Earth as a whole is fragile too, unique as it is in the universe. Climate change, irrespective whether it originates in human activities or natural variability, is impacting on the Earth’s ecosystem. There is near scientific consensus that anthropogenic global warming poses a serious threat for the current balance of this ecosystem and its sustainable inhabitation by humans, at least at current population levels. This near scientific consensus has prompted the international community to cooperate towards preventing dangerous anthropogenic interference with the climate system.

The international community’s policy to prevent dangerous anthropogenic interference with the climate system is based on the mitigation of climate change and the adaptation to it. Neither mitigation nor adaptation alone can avoid all climate change impacts. Mitigation and adaptation complement each other and together they can significantly reduce, but no longer eliminate, the risks of climate change. The international community will therefore have to endure the injurious 90 See R. Ramesh, ‘Paradise Almost Lost: Maldives Seek to Buy a New Homeland’, The Guardian, 10

November 2008.91 See A.H.A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’, 37 Netherlands

International Law Review 207-232 (1990), at 230.

consequences of climate change. The magnitude of these consequences will depend on the effective implementation of mitigation and adaptation measures.

Among the injurious consequences will be losses and damage resulting from natural disasters that are associated with climate change. Such losses and damage have, as yet, not been the subject of special regulations or judicial decisions. The prompt, adequate and effective compensation of victims for such losses and damage is therefore currently not safeguarded by legal mechanisms. It is the responsibility of legislators to provide statutory protection to such victims, and of courts and arbitral tribunals to provide judicial protection to them. Accordingly, they will have to develop legal mechanisms that ensure the internalization of the costs of the emissions of greenhouse gases by the polluters, i.e. the producers of the products that require the emissions of greenhouse gases for their production, and, through the producers, the consumers of such products.

Among the injurious consequences of climate change will, furthermore, be the permanent displacement of persons, in particular as a result of rising sea levels. This will not be a short-term event that temporarily prevents states from protecting their citizens against the injurious consequences of climate change. Even if climate change is not irreversible, the reversal of such loss of land for inhabitation by humans, or the achievement of a new equilibrium that sustains human inhabitation of lost land by humans, is likely to span many human generations. The international community will have to assume the responsibility for the permanent reception of climate change-displaced persons outside of their home land. Contemporary international and national legal frameworks are not yet equipped to deal with this. This may be illustrated by the reception of Montserratians in the United States. The United States Government terminated their temporary protected status when it appeared that their return to the island would not be likely in the foreseeable future.

If current laws and mechanisms are insufficient to provide a solution, the question arises: will the international community find a way to save the people of Atlantis? In its capacity of the Conference of the Parties to the Climate Change Convention, the international community should explicitly recognize that the reception of climate change-displaced persons, inside and outside of their home land, is covered by the term ‘adaptation’ under the Climate Change Convention and the Kyoto Protocol, and adopt consequential measures to provide international judicial protection to them.