[Jeni and I just returned from Columbia Law School’s Threatened Island Nations Conference, where we presented a poster on climate adaptation schemes. Here are my thoughts after attending.]
Sea level projections for the year 2100 exceed a 1-meter rise. If a nation of low-lying coral atolls in the South Pacific (say the Marshall Islands) sinks, will international law support “lifting it up” to maintain its status? What happens when climate change turns islands into rocks, states into deterriortialized zones? Are the stateless people entitled to their submerged nationhood? You might think/hope so. But the answer is far less from clear, especially when you have a room full of lawyers debating if and when island peoples should leave their homes and where they will go and what duties the world owes them.
The losses are many. Will small island states be able to successfully defend their fishing cultures when their citizens relocate to a new country? What about if the corals off the shores of those who stay home dissolve in corrosively acidic oceans? Will submerged states be entitled to defend historic maritime zones as coastal baselines erode? What is the citizenship status of those who resettle in a new state?
Some citizens of Pacific island states have said that they would rather drown than be uprooted from their homeland. If resettlement is truly a last resort, then which tipping points trigger final resettlement decisions? Who’s going to pay compensation for the full cost of relocation? What models (besides the World Bank’s resettlement policies) might we look toward? (Check out Newtok, Alaska.)
Who could write a climate equation capable of calculating all of the diversely important factors (known and unknown) necessary to protect an entire collective of island peoples’ and their island ways of life? Who should write such an equation?
After this conference, I’m not assured that it should be the lawyers, although that seemed to be the unspoken assumption in the room. (Columbia invited many islanders to attend and participate in the conference—indeed, the conference was held at the Marshall Islands’ request—but only a few islanders served as formal panelists.)
At least here in the U.S., lawyers (and I am one of them) are trained to respond to individual, not systemic, problems. As a legal community comprised of litigators, judges, professors, elected officials, etc., lawyers aren’t proving deft enough at applying the kind of complex calculus capable of rendering climate-displaced communities justice. Perhaps the first realization worth articulating is the value of knowing our limitations. How might the law fail here? How might we—as lawyers—fail here? What other solutions might we be ignoring by focusing so heavily on the law?
I’m not fatalistic about law (yet). If the law can empower sinking small island nations, the most likely outcome is to draw attention to their plight. The worthier end, the legal means for which have not yet evolved, is to award small island states with remedies for harms suffered. But are the attention-getting stories of the people suffering the damages a true part of our “legal” strategy? Where do the living, breathing, fearing, land-loving islanders reside within the technical landscape of harsh rocky landmarks, such as articles, treaties, causes of action, and technical market fixes?
Although there is a placeholder for relocation in the UNFCCC, where is the “placeholder” for people in the UNFCCC? People are being replaced by money (think of all the focus on adaptation finance and tech transfer), and by redlined paragraphs in treaties that don’t use the language of human rights and for all purposes are meaningless for humanity until they cap carbon. Yet while people suffer, a lawyer from Palau said the issue is that there are not enough plaintiffs.
What role is there for the law, then? Potentially one very reputable and fancy international law firm could bankroll a massive lawsuit on behalf of small island state plaintiffs against historical emitters with the biggest GDPs for damages related to relocation costs. Setting aside cause of action, venue, and other critically important legal issues that remain unsettled, one legal theory that no one at the conference discussed is the possible benefit of seeking a declaratory judgment.
Like an “advisory opinion,” which many at the conference suggested as a next step, a declaratory judgment would compel a study of remedies. It remains to be determined how judges might go about valuing the damages: How might judges consult with scientists to assess damages? To calculate adaptation costs? Would/should the insurance industry be consulted? Finally, do firms exist with the requisite resources to fund a plaintiffs’ lawsuit that wouldn’t be conflicted out? (Perhaps new law firms need to be created whose clients are solely persons suffering eventual resettlement fates due to climate threats?)
Certainly, the law and legal minds have important roles to play. There are many lawyers, good lawyers, who care deeply about these issues. But before inventing new treaties, kickstarting new law firms, and testing new legal theories in courts, lawyers first should spend more time listening, really listening, to what the island people threatened really want and need. Once a state ceases to exist, the legal game might very well be over. But life isn’t over, nor the lives of the peoples suffering such a loss.