Threatened Island Nations: Summary of Legal Issues

Gregory E. Wannier
Deputy Director

[Reposted with permission from China Dialogue: available at]

In December 2008, a series of swells coinciding with seasonal high (“king”) tide engulfed the island atoll of Majuro, capital of the Republic of the Marshall Islands, in the middle of the Pacific Ocean. These waves washed out roads and low-lying houses, forced a state of emergency and caused over US$1.5 million (9.7 million yuan) in damages to an economy totalling US$161 million (1.04 billion yuan).

This was not the first such catastrophe: Majuro has grown used to battling a major tidal event every decade or so. However, as global carbon emissions continue to increase, sea levels rise and tropical weather events become more numerous and intense, these events will become ever more common. The Marshallese people can respond to such crises every few years, but they cannot respond every few months, and it is possible (indeed probable) that life as they know it will become untenable by the end of the century. This fact raises serious questions about the continued viability of these nations, as well as protections for individuals who may need to relocate.

In late May this year, legal and policy experts from around the world gathered at Columbia Law School to address these and other questions arising from the impacts of global climate change – particularly rising sea levels – on small-island nations.

Speaking at the event, panelist Mary Elena Carr, associate director of the Columbia Climate Center, highlighted the scientific consensus: that, without any remediating activity, the Marshall Islands and other low-lying island nations around the world could become uninhabitable in a matter of decades, a serious security risk which can no longer be ignored. Sea-level rise will be particularly acute in the Pacific and other island regions, where increased intensity and severity of weather patterns, including so-called “king tide” and “el niño” events, may overwhelm domestic infrastructure and water supplies, as well as local ecosystems.

To underscore the severity of this issue and the importance of adaptation generally, Carr warned that, even if everybody stopped emitting greenhouse gases now “we will still have warming for over 1000 years…[and] just from the warming of water, we will still have one metre of sea-level rise by 2100.”

This raises a fundamental question: what happens to the nations themselves if their islands become uninhabitable? On this point, Jenny Grote-Stoutenburg, visiting scholar at the University of California, Berkeley, argued that “the international law of statehood is characterised by a tension between the principle of effectiveness [asking whether a state has a territory, population, government and independence] and another competing principle, the principle of legality…[which holds that] the extinction of states must not violate some fundamental norms of international legal order, called jus cogens norms.”

In other words, it is highly possible that some traditional requirements for statehood – permanent territory and population – may no longer be met by some of these countries, but that other nations will continue to recognise them for equitable reasons (and in fact may be legally obligated to do so), meaning the indices of statehood can likely be preserved. This might most effectively happen via some ex-situ arrangement, as outlined by University of Hawaii academic Maxine Burkett, whereby country representatives would manage and distribute national resources to a scattered population.

The extent of these resources depends heavily on nations’ ability to continue to access marine territories, which provide critical fishing and mineral rights. As currently set by the Law of the Sea Convention (LOSC), Exclusive Economic Zones (EEZs) – waters over which a state has special rights for exploration and resource-use – extend 200 nautical miles (just over 370 kilometres) from a nation’s low-tide mark. However, the convention is not clear regarding permanent boundaries, and so traditionally EEZs would recede along with the coast if sea levels rose.

Of more concern to small-island nations, substantial marine territory – as much as 40,000 square nautical miles (137,000 square kilometres) – could be threatened by the abandonment of a single island, because the LOSC clearly disallows marine territory for uninhabitable rocks. In response to this, David Freestone of The George Washington University notes that precedent elsewhere would support artificially bulwarking islands to preserve existing claims – most (in)famously, Japan has bolstered Okinotorishma Island from a rock to a full base that serves as a basis for territorial expansion to the south. Although this has been repeatedly challenged by other nations, for equitable reasons they would be less likely to object to similar bulwarking by small-island nations.

If certain small-island nations become uninhabitable, their populations will have to move somewhere, but it remains unclear where they would go. Unfortunately, the patchwork of international protections for displaced peoples will not provide extensive guidance: refugee law as defined by the 1951 Convention on Refugees probably would not apply to climate migrants (although subsequent clarifying agreements applying to Africa and the Americas might); and there is no international obligation for any particular country to take in such migrants. Similarly, protections in the United States and Europe for victims of environmental disasters are temporary, and leave no path to full residency.

In response, as New York University law professor Katrina Wyman has discussed, the best option for individual nations may be to rely on existing agreements and relationships with potential destination countries that allow migration for other reasons or purposes. Domestic immigration laws in certain countries may also be used.

Options also exist in international institutions to provide more aid and support to climate-displaced peoples. Traditional institutions that could be integral to this effort include the International Organization for Migration and the United Nations High Commissioner for Refugees.

The United Nations Framework Convention on Climate Change (UNFCCC) may also be of potential use in organising resettlement activities. This is particularly true following last year’s climate negotiations in Cancún, which recognised the importance of “measures to enhance understanding, coordination and cooperation with regard to climate change induced displacement…at national, regional and international levels”. As Australian lawyer Ilona Millar suggested, the UNFCCC could perhaps be used to harness private-sector funding and insurance protection for vulnerable parties.

If people are forced to resettle, many have argued that they should be able to recover damages in court for harms received. However, the authority for such litigation remains unclear. Substantively, there are several possible bases for establishing a violation of international law, including breach of treaty claims under the UNFCCC, the human right of self-determination, the duty under the World Heritage Convention to “natural and cultural heritage” and theories in tort and certain other areas of the law. One particularly interesting possibility, as described by Dean Bialek, would to be to base a claim on ocean acidification, which could kill off tropical coral species, deplete fish reserves and potentially further undermine the physical stability of coral atolls.

A more difficult question is: which courts could hear such claims and enforce remedies, if such remedies are possible? The International Court of Justice is the principal judicial organ of the United Nations, but has only limited powers. Certain treaties, including the UNFCCC, offer similarly advisory commissions which could perhaps hear such cases. Access to domestic courts in key major emitters is also uncertain; the United States, especially in recent caselaw, famously makes it difficult for foreigners to gain access to US Courts under the Alien Tort Claims Act.

However, at least one lawsuit initiated by the Federated States of Micronesia has had success fighting carbon emissions in Czech Republic courts, by challenging an environmental-impact assessment for a proposed coal-fired power plant on the grounds it failed to adequately account for transboundary (read: climate) impacts. The success of this case was largely based on Czech provisions that allow foreigners access to domestic courts, but similar provisions are being scouted out elsewhere in Europe and around the world, and may provide further options for establishing jurisdiction.

If resettlement becomes unavoidable, then that process must be organised. As Brad Blitz from UK-based Kingston University has emphasised, preparations should be made far in advance of any actual movement, and should focus on preserving both physical and financial security, and cultural norms. Basic housing and life-supporting infrastructure must be planned.

Equally important, the political relationships between displaced nationals and host states would need to be resolved, addressing communities’ relationship with host nations as well as their involvement in the planning process. The experience of Alaskan villagers’ resettlement in Newtok, where community leaders have successfully led the relocation process, as contrasted with less successful relocations of island populations in Chagos and elsewhere, suggests that community involvement is critical for the success of any relocation activity. This involvement is important largely because new communities must do more than provide housing; they should be structured to promote livelihoods and preserve critical familial and community bonds; and community leaders are best placed to structure their resettlement process accordingly.

To get ready for this changing world, small-island governments need to update existing institutions to prepare administratively for sea-level rise and possible relocation. At May’s conference, Justin Rose gave a summary of programmes under way to prepare island communities, including adaptation projects (such as planting and building defenses against saltwater inundation), educational schemes and more direct sets of incentives for good long-term planning. More of this should be done. In addition to community development, states will need to address property systems to account for changing landscapes, develop new budget priorities, establish targeted insurance regimes to allow for individual recovery and, above all, educate their populations in preparation for possible future resettlement.

However, at heart this is a global problem, and the burden to resolve these issues falls squarely on the world’s largest emitters. Through no fault of their own, entire civilisations could soon be lost to the ocean. These civilisations must attempt to ease the pain of any transition through legal innovations and active planning – but they will need help. And it is our moral duty as a society to help them prepare for the world to come.

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