Half a dozen island nations around the globe — home to nearly 1 million people — are sinking, or, more accurately, the ocean around them is rising due to global warming.
When the water gets high enough, their countries will cease to exist, presenting a host of legal challenges. Where will the residents go? Who — if anyone — will pay for their relocation? Without land, can they continue to be countries? Do citizens who lose their homes to rising oceans — due to carbon-emitting activities on the other side of the globe that are said to exacerbate global warming — have any legal recourse against the emitters? Climate experts say similar challenges will face landowners living on the coasts of low-lying developing countries like Bangladesh.
These are not idle questions, as Michael Gerrard, director of the Center for Climate Change Law at Columbia University, learned first-hand during a recent visit to the Marshall Islands, a former U.S. territory that gained its independence in 1986. The threatened nation's 30-mile-long, dog-leg shaped capital island of Majuro sits on the rim of an extinct volcano and is flanked by the Pacific Ocean on one side and a lagoon on the other.
“The distance between them is about the distance between Fifth and Sixth avenues in Manhattan,” he says. “You feel fairly vulnerable just standing there.” To such countries, already feeling the effects of rising global temperatures — in Papua New Guinea, for example, residents are already fleeing land made uninhabitable by rising sea levels — climate change is a “very urgent” problem, Gerrard says.
Some island communities have already had to relocate, and many of their governments are incorporating into their disaster preparedness policies measures to help adapt to climate change, such as preparing designated communities to receive those displaced by climate change. “An island becomes uninhabitable well before it is submerged, for several reasons,” Gerrard explains. First, “drinking water supply is likely to become contaminated with salt water. Second, flooding becomes so frequent and extensive it becomes hard to live there. And third, a place becomes so vulnerable to large waves it becomes dangerous.”
Indian farmer Srikanta Doloi fears he may lose his ancestral farmland on Ghoramara Island, some 60 miles south of Kolkata. Over the last 25 years, the island's land mass has been reduced by 50 percent by rising sea levels due to melting polar ice caps. Half a dozen island nations around the globe face the same dilemma, presenting a host of legal challenges. (AFP/Getty Images/Deshakalyan Chowdhury)
While the threat is environmental, the consequences are political. “For the first time in history, we are contemplating the disappearance of a [nation] state without the possibility of a successor,” raising many legal questions, said Phillip Muller, ambassador of the Marshall Islands to the United Nations. If the countries’ land is submerged, who controls their fishing or mineral rights? Where will the residents go, and who will pay for their relocation? Are other countries obligated to admit them?
Legal scholars have offered a variety of responses. One option might be to artificially reinforce the islands so their land rises above the encroaching seas. On the other hand, Gerrard points out, there are precedents to being a sovereign, but landless, country. The Holy See, the official jurisdiction of the Catholic Church, was recognized as a sovereign nation before it had secured the territory of the Vatican. The international system also recognizes the Sovereign Military Order of Malta, a religious lay order founded nearly 1,000 years ago that lost its territory to Napoleon.
Many scholars and diplomats expect other countries to “continue to recognize the statehood of these small nations for a long time, partly out of a sense of moral obligation, since the disappearance of the state was in no way their own fault,” says Gerrard, who convened the first conference on the topic at Columbia this summer.
Then, whose fault is it? Scientifically, the answer to that question is simple: industrialized nations. But while no one can prove that one country's troubles were due to specific emissions from a given factory or country, “the science is extremely clear that the accumulation of greenhouse gases in the atmosphere from major emitting countries is the principal cause of sea level rise around the world,” says Gerrard. (Greenhouse gases include carbon dioxide, nitrous oxide, methane and other gases produced from the burning of fossil fuels such as oil, natural gas and coal. They are dubbed greenhouse gases because they trap the Earth's heat, acting as a greenhouse.)
Legally, the question is murkier. For example, are major carbon-emitting nations culpable for climate-induced migration? That's what the Federated States of Micronesia contended in a recent legal paper. Micronesia wants to see carbon emitters held accountable under international law for the consequences of their environmental choices. Although other island nations and some academics support the idea, no legal battles have been won yet.
In fact, legal precedents aren't particularly favorable for this line of thinking. One oft-cited precedent comes from the Marshall Islands, where the United States tested 67 nuclear weapons between 1946 and 1958. The islands sought financial reparations for the damages caused by the tests. The United States eventually agreed to set up a Nuclear Claims Tribunal to adjudicate those claims, and it was given $563 million to disperse for damages. But most of the money was never paid, and last year, the U.S. Supreme Court declined to hear the case, effectively blocking any legal recourse for reparations.
Muller, however, thinks there may be new, more effective strategies yet to be tried. “The most vulnerable countries need to think hard, together, about how to use the law to make emitters responsible for their actions,” he said.
— Jina Moore