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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
1
2
See J. Diamond, Collapse, How Societies Choose to Fail or Survive (2005), at 95-96.
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.
led to the destruction of the natural habitat of indigenous fauna. This destruction and the use of
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 19th 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 18th 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
3
4
5
6
See J. Diamond, Collapse, How Societies Choose to Fail or Survive (2005), at 109-111.
Ibid., at 109-111.
Ibid., at 111-112.
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).
least some of the islands of the atoll.7 The Government of the Marshall Islands, however, rejected
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
7
8
9
10
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
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.
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).
Section 177 of the 1983 Compact of Free Association.
1983 Agreement for the Implementation of Section 177 of the Compact of Free Association.
damage.11 The amount reserved was not sufficient for the payment of the claims that have been
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 GreatBritain 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.
11
12
13
14
15
16
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.
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.
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).
The relevant legislation was the 1962 Commonwealth Immigrants Act and the 1981 British Nationality Act.
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.
US Citizenship and Immigration Services, DHS Concludes Temporary Protected Status for Nationals of
Montserrat, Press Release of 6 July 2004.
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
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
17
18
19
20
21
IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 37.
Ibid., at 39.
Ibid., at 41.
Ibid., at 45.
IPCC, Fourth Assessment Report, Working Group I Report “The Physical Science Basis” (2007), Chapter 5
(Observations: Oceanic Climate Change and Sea Level), at 410.
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
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
22
23
24
25
26
27
IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 40.
Ibid., at 45; IPCC, Fourth Assessment Report, Working Group I Report “The Physical Science Basis” (2007),
Chapter 10 (Global Climate Projections), at 820-822.
Bali Action Plan, UNFCCC Decision 1/CP.13 (2007).
Art. 2 of the Climate Change Convention.
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.
Art. 3.1 of the Climate Change Convention.
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
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
28
29
30
31
32
33
34
35
36
Global Carbon Project, Carbon Budget 2007 (2008), Chapter 2.
See J.G. Lammers, Billijkheid in het international milieurecht en de speciale positie van ontwikkelingslanden
(2007), at 37.
Art. 4.2(b) of the Climate Change Convention.
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).
Art. 3.1 of the Kyoto Protocol and accompanying Annex B.
Annual Compilation Accounting Report for Annex B Parties under the Kyoto Protocol, Doc.
FCCC/KP/CMP/2008/9, at 11 (paras. 27-28).
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.
Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), preambular paragraph 4 and accompanying footnote.
G8 Hokkaido Toyako Summit Leaders Declaration of 8 July 2008, para. 23.
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
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
37
38
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.
Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(a-b).
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
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
39
40
41
42
43
44
45
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-141305.
Barack Obama and Joe Biden: Promoting a Healthy Environment, www.barackobama.com.
Procedures and Mechanisms Relating to Compliance under the Kyoto Protocol, UNFCCC Decision 27/CMP.1
(2005).
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).
Minister of the Environment, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act
(2008), at 5.
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.
Minister of the Environment, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act
(2007).
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
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
46
47
48
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.
Federal Court, Friends of the Earth v. The Minister of the Environment, 2008 FC 1183, Decision of 20 October
2008.
Art. 4.3 of the Climate Change Convention.
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
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
49
50
51
52
53
Arts. 4.4 and 4.5 of the Climate Change Convention.
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.
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.
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).
Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(c-e).
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
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
54
55
56
57
58
59
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.
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.
Art. 12.8 of the Kyoto Protocol.
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.
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.
Deltacommissie 2008, Samen werken met water (2008), at 22.
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
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
60
61
62
63
Ibid., at 25, 87, and Annex 3.
Ibid., at 90-92.
Ibid., at 73 and 92.
IPCC, Fourth Assessment Report, Climate Change 2007: Synthesis Report (2007), at 65.
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
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
64
65
66
67
68
Bali Action Plan, UNFCCC Decision 1/CP.13 (2007), para. 1(c)(ii-iii).
See N. Stern (ed.), The Economics of Climate Change: The Stern Review (2006), at 99 and 435.
See E. Bergsma, ‘Global Justice and the Costs of Climate Change, Who Pays?’, The Broker (2007), at 9.
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.
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.
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
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.
69
70
71
72
73
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.
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.
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.
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).
Complaint for Damages of Plaintiffs of 26 February 2008 in Native Village of Kivalina and City of Kivalina v.
ExxonMobil Corp., et al.
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
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
74
75
76
77
78
79
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 08cv-01138 SBA; Plaintiff’s Consolidated Opposition to Motions to Dismiss of 18 September 2008.
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.
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.
Ibid., at 4 and 27-35.
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).
Ibid., at 4 and 32.
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.
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 changedisplaced 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.
80
81
82
83
84
85
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.
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).
Statute of the Office of the United Nations High Commissioner for Refugees, UN Doc. A/Res/428 (1950), Annex,
paras. 6-7.
Opening Statement by Mr. António Guterres, United Nations High Commissioner for Refugees, at the Fiftyeighth 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.
1969 OAU Convention Governing the Specific Aspects of Refugee Problems; 1984 OAS Cartagena Declaration
on Refugees.
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.
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
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.
86
87
88
89
Statute of the International Organization for Migration (as amended in in 1987).
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.
IPCC, Fourth Assessment Report, Working Group II Report “Impacts, Adaptation, and Vulnerability” (2007),
Chapter 16 (Small Islands), at 708.
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).
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
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
90
91
See R. Ramesh, ‘Paradise Almost Lost: Maldives Seek to Buy a New Homeland’, The Guardian, 10 November
2008.
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.
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
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.