The Columbia Law School in America invited specialists from around the world to discuss an aspect of climate change adaptation that is often overlooked - how will the pressures of climate change effect our legal systems?
Do the laws we have need to be changed? And if so, how?
Speaker:Maxine Burkett, Associate Professor of Law at the University of Hawai'i; www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations
BURKETT: Yeah well that's what we're trying to figure out at this point. We find that oftentimes we back up into laws that seems to be working but under a vastly different scenario may not be flexible or nimble enough to really respond to the rapid change that we have to anticipate with the changing climate. So we find that sometimes the law is actually an impediment as it is written to finding the best response.
COUTTS: Can you give us an example of the impediments you're talking about?
BURKETT: Sure well I'll give you a sort of a local and then an international level, so at the local level, especially for coastal areas for island nations, island states like Hawaii, what you find is that we have certain rules and laws that govern the coastline, and those laws aren't necessarily, they haven't been written necessarily thinking about a vastly changing coastline. So if you have coastal development that is following the existing laws are getting setbacks. Those setbacks may not be sufficient or aggressive enough to deal with a change in sea-level or the impact of increasing storm surge, increasing intensity of storm surge and those sorts of things. And so if you have a law that isn't responsible or responsive to that, you find that you continue to do development in an area that's not safe, that's no longer sort of reasonable under the circumstances that climate change will introduce. At an international level using a similar circumstance you find that island nations, nations generally will enjoy some sort of governance over their waters better that are adjacent to their land, and at this point we find that exclusive economic zones for example are set or determined by a baseline, but when we made that baseline determination the idea that you may actually be losing territory as a result of the rising sea-level was never sort of at the forefront of the drafters' mind. So you find that you may be looking at a situation in which a country's losing valuable land as well as valuable marine territory.
COUTTS: Well what about the people themselves, I understand that in local and international law there's no real provision for environmental refugees?
BURKETT: That's exactly right. Environmental refugees is a term that sort of makes sense conceptually and we use it in lay discussion all the time, but as far as there being a legal hook to that, there is no category or refugee status that recognises environmental stresses as a sole cause and a legitimate cause for international response. And that's certainly the case for what we're hearing more of, which is climate refugees, it doesn't have legal weight. So the absence of that legal weight as well is causing additional issues, and this is another area in which the law can be an impediment, absent some sort of functioning and viable legal category it is difficult to address the needs of these people that will be rendered either landless or nationless if we don't make the appropriate amendments to what we see now in our international legal infrastructure.
COUTTS: Is there a reluctance to adopt that category legally, environmental refugees, because if they the next step then will be compensation?
BURKETT: I think there are a number of reasons that people are reluctant, I think there's a lot of just administration concerns, to administer the sheer number of potential folks that will fall into this category have to have a sort of consistent definition of that term so that you can use it. There are a number of reasons why a person may move from a particular area, so it becomes difficult then to find a secure definition. Not that we shouldn't do it necessarily, but it is a difficult task just from a drafting and sort of legal concept perspective. And sure there may be some concerns that as we continue to recognise the needs and sort of recognise rights and the parallel obligations of people to respect those rights, we're going to be asking a lot more from other nations and other entities that may be resistant to either compensation or offering land or offering space or accommodation for the potential refugees.
COUTTS: And what about the impact of climate change on poor and coloured communities? The ethical and legal obligations owed to them?
BURKETT: Well that's the current research that's continuing to happen, identifying where climate impacts will be the most severe often means identifying where the vulnerabilities currently exist. And we find that climate change and the sort of unfortunate coincidences is going to be especially difficult for communities that are already challenged with poverty and other existing risks and vulnerabilities or environmental burden. And so finding a way to allow for a community, to identify those vulnerabilities in very different ways and then finding a way for those communities to then have the appropriate adaptive capacity to the changes in climate is a big part of the work that certainly we're looking at at the Center for Island Climate Adaptation and Policy. And my own personal research in looking at where the intersections are in terms of risks.
COUTTS: Well a lot of countries are still struggling with political refugees, it seems to be an inordinate amount of time to process those people. So again even if they did have laws that recognise environmental refugees, they then have to have sovereignty and states I suppose applied to them, again another issue where do they go and who will adopt them and what can international law or local law prescribe in that area?
BURKETT: That's exactly right, I mean the potential administrative burden here it could be great. Again that's not a reason not to do it, I'd actually militate that really is strongly favours doing it in advance and us getting started on this work now. But yeah, all along the chain there's going to be some significant issues; when do you determine that a place is no longer inhabitable for a particular population, where do they go, how is that movement funded, if it's across borders how do we deal with that as a matter of international law, who is responsible for protecting their rights, for providing citizenship or passports if you are rendered stateless? And there's just the statelessness issue itself is a really thorny one, and you may find that a country that their land is no longer inhabitable and do they still exist without a territory? Do they still have international personality, can they still issue passports, can they negotiate at the international level? I contend that they should absolutely still be able to do those sorts of things, and that we need to have the appropriate amendments to our current international legal structures to accommodate these kind of new international personality, which will be countries without territories.
COUTTS: Well what rights do people living in climate change affected islands of the Pacific, because that's the area that we're interested in this morning, what rights do they actually have at the moment? I mean they're struggling now to get the international community to commit funds to help them with mitigation, but if mitigation doesn't work and they do have to move, in the interim what rights do they have? I mean can they charge people and the larger industrial countries of ignoring their rights to a clear environment etc.?
BURKETT: That's exactly what's being explored now, there's certainly human rights norms that would be really squarely addressing the issues that we have here, either right to self-determination, right to food, right to clean water that's being more sort of greater consensus of recognition, right to a home. I mean there are a number of rights that you can appeal to that are available, of course the problem is to enforce compliance is a wholly different issue. So we find that as well as the level of the framework convention on climate change is there's a number of provisions that have really pretty good language in dealing with differential experiences of the most vulnerable communities and nation states, but to actually have that translate into aggressive action from the powerbrokers in the discussion, is really quite difficult. So it's a yes and no answer, which is that yes there are rights that can be appealed to, yes the provisions that are squarely relevant, but to actually have that translate into action and accountability for the countries that can make the big decisions, that's not quite happening at this point, and we see that at all levels of the negotiation and discussion.
COUTTS: Climate change and global warming hasn't actually snuck up on us, so why is it that the legal fraternity are so slow in getting about to doing anything and getting descriptions and provisions that we've been talking about included in the law?
BURKETT: Well that's a good question, I think a lot of us are thinking now how can we tackle this, I think initially I always joke that climate change was at first just a purely scientific question, now we're seeing the law and policy implications and the next frontier will be understanding the psychology of it. Why is it so difficult for us to sort of wrap our heads around and address very quickly and rapidly and with as much seriousness as we should? But it's probably because of the fact that you can't actually see a rapid impact on climate change for the most part, nor can you attribute the more exciting events that really capture people's minds, you cannot directly and comfortably contribute them all to climate change. It becomes hard for us to respond in a way that is sufficient, so because it's creeping in some ways it's easier to ignore. Now the issue of migration in particular is something that the United Nations, the inter-governmental panel on climate change identified as a major issue over 20 years ago in 1990, and the first assessment report, this is one of the major impacts that they're anticipating from climate change, and the exact numbers are somewhat hard to predict, but this is a phenomenon that's been predicted. But it's something that's especially difficult for all the reasons that we've discussed, that it's easier to sort of set it aside for now and not squarely deal with it. But of course small island nations in the Pacific are saying that's no longer acceptable, we have to actually address this because this is very much a present tense concern for us, it's a present tense concern, it's something that may happen in the next generation or two in which we may have to see large scale migration and it needs to be addressed in an orderly manner. The alternative is not going to be a good one.