By Manishka De Mel
Small island nations and low-lying coastal regions are facing the imminent threat of sea-level rise. For many who live in landlocked areas, fears of the rising sea may seem as unrealistic as science fiction. Picturesque islands with white sand and turquoise waters are often a dream vacation for most, but for island residents the grim reality is that the lifespan of their native lands is numbered due to climate change. As the sea level rises, millions will lose their homes. The geographical nature of these areas makes them vulnerable to salinity intrusion that will stress freshwater availability. To make matters worse, storm surges, rising temperatures, drought and other extreme events will exacerbate existing issues.
Adapt or move?
Some question whether adaptation is a viable option, given that many of these countries could lose some or all of their land. Some island nations, such as Kiribati, are already thinking long-term, and are considering a mass migration of its population as a last resort. Others, such as the Marshall Islands have made firm statements they are not looking to migrate. Professor Michael Gerrard, Director of the Sabin Center for Climate Change Law at Columbia University, has penned some of the few books on climate change law that exist today. He’s been working with small island nations, assisting them with legal options. According to him there is certainly a focus on adaptation both in the short and medium term, and “for the next several decades, the hope is that they will be able to stay and try to make their lives as tolerable as possible during that time before they absolutely have to leave.”
Nations under water?
It is not expected that the current generation will live to see small island nations completely submerged due to rising seas. The situation however is likely to be different a few generations down the line, if emissions are not significantly cut down. What would become of small island nations if rising seas were to eventually drown them out completely? Would they still be considered countries? According to Professor Gerrard, “there are generally considered to be four attributes a place must have in order to be considered a state. It must have land, a permanent population, a functioning government, and recognition by other countries.” He goes on to explain that in terms of the permanent population there is some precedent that a number as few as 50 is sufficient and can be built up artificially to maintain a population. There is some academic discussion about a ‘nation in exsitu’ when a nation is displaced all together. “Never in the history has a nation disappeared due to physical problems … there is no precedent for it”.
The ethical debate
Not surprisingly, small island nations and some low-lying areas are among the countries that have contributed the least amount to climate change. They are disproportionally affected, even though their emissions are negligible.
A mitigation goal of 2°C (3.6 degrees Fahrenheit) was the non-binding target adopted in Copenhagen in 2009 to prevent dangerous climate change. This level was objected to by small island nations who stated that a target of 1.5°C is more likely to keep these islands above water. However if business as usual continues, warming is expected to exceed 2°C well before the end of the century.
Some attempts have been made to address the issues faced by small island nations using legal mechanisms. About two years ago there was an attempt to bring the plight of small island nations before the International Court of Justice. This would have required a majority vote of the members of the UN General Assembly, which it failed to achieve. According to Professor Gerrard, “The decision they were seeking was a declaration that they have a right to continue to exist, and the major emitting nations should make every effort to reduce their greenhouse gas emissions to ensure that existence. It probably would not have been any more specific than that. It’s not like a court order that is readily enforceable. It’s a statement of international law that people would listen to and care about.”
Legal options for displaced countries and climate refugees
Currently there are no international agreements that allow citizens of any nation to migrate legally due to impacts of climate change. Nor are there legal precedents for climate change-driven migration at present. A few countries have agreements with developed nations that allow their citizens a legal pathway to live and work, but are based on other non-climate change factors.
Climate change is predicted to result in refugees and internally displaced persons, of which a significant proportion would be due to rising sea levels (droughts and floods will result in the same). However ‘climate change refugees’ do not have international recognition under the United Nations High Commission on Refugees.
Recently a family from Tuvalu claimed refugee status in New Zealand on the grounds of climate change. Although this was initially rejected, in June 2014 the New Zealand Immigration and Protection Tribunal granted the family residency. Although this has received media attention as a success story for climate refugees, climate change was not singled out as the reason for granting residency. It was granted based on strong family ties to New Zealand, and the decision does not provide legal support for a claim of refugee status based on climate change. Gerrard states, “The sorts of problems faced by political refugees which the refugee convention is aimed at are very different to the conditions faced by climate. Political refugees have the hope of return, which is not the case for people affected by sea level rise. There is discussion about whether there should be a separate definition for climate-displaced people, [there’s] nothing happening officially … there is a long way to go before people affected by climate-induced migration will have a legal mechanism to facilitate migration.” The future
The best hope for small island nations and low-lying countries is if emissions are drastically reduced to prevent further warming. Vulnerable countries should also be given as much assistance as possible to adapt to climate change and increase resilience. While every attempt should be made to mitigate climate change, it is essential that adaptation plans are prepared using the latest climate projections, and are implemented as a matter of urgency. Additionally, both domestic and international laws need to be assessed and updated so that there are legal provisions to support these actions. This will probably be the best safeguard against climate change, allowing inhabitants of vulnerable regions to continue existing in their homelands.