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:Michael B. Gerrard, Director of the Center for Climate Change Law at the Columbia Law School and organiser of the 'Threatened Island Nations' conference - http://www.law.columbia.edu/centers/climatechange/resources/threatened-island-nations
GERRARD: We don't reallly know. There are some theories that it can and however long it takes before these countries are underwater. There may well still be some rock or something that is still above the surface that would form a basis, but it may also be that we'll want to talk about a new international treaty which would set new law and would allow the deterritorialised states to continue to have their sovereignty.
COUTTS: So is sovereignty only if something as you say a rock is above water. If it's completely submerged does it lose its sovereign status?
GERRARD: Well, one of the usual elements of being a sovereign state is that you have a permanent land mass and its populated and governed. If that's lost, there's a real question about whether sovereignty continues.
COUTTS: They have the economic zones and that includes territorial waters, so it couldn't be encompassed there?
GERRARD: Well, territorial waters are usually measured around a land mass and so if there's no land left, then there's a real question about what happens to the territorial waters.
COUTTS: And what becomes of the citizens of the deterrialized nation. Will they have access to a secondary citizenship in new destination?
GERRARD: That's another very important and novel question. The Marshall Islands have a compact with the United States that allow people from the Marshall Islands to freely enter the US and work there indefinitely and Federated States of Micronesia and Palau have similar agreements, but it's not the same as citizenship. They do not become US citizens. What would be the citizenship of people who move in that way but their countries are gone is another very difficult and open question.
COUTTS: As we've discussed previously, there's no such status in international law generally for environmental refugees?
GERRARD: That's correct. The usual definition of refugee involves fleeing political prosecution of the fear of it, not fleeing environmental hazards.
COUTTS: Now if a nation sunk tomorrow as a hypothetical, these people are stateless essentially and have no rights?
GERRARD: They would be stateless, they would if the Marshall Islands, for instance, they could go to the US and they would be able to live and work there. They would not be able to vote or exercise those kind of rights.
COUTTS: Now Mr. Gerrard, you spent most of your life practicing environmental law. How has climate change evolved as a legal concept during your time working on it?
GERRARD: Well, when I first began practicing more than 30 years ago, nobody had ever heard of climate change. In the last several years, it has obviously received a great deal of attention and in the United States, two or three years ago, there was widespread thought that the US would adopt a comprehensive set of regulations and laws, but of course the US Congress has not acted, but the US environment protection agency has authority under existing law, especially the Clean Air Acts to regulate greenhouse gases, so they have now begun doing that.
COUTTS: And, I just want to sort of go back to that point of the lack of environment refugee status. You say that the Marshall Islanders can go to Marshall Islands, but don't have full rights there. But if this does actually happen, what happens to that label environmental refugee, because it is not one actually that they want. We've had previous discussions with other people and the Pacific Islanders themselves see environmental refugee as a detrimental label. So what could they be called, how would you get around that?
GERRARD: Well, that's not clear. Of course the first priority is to allow them to stay as long as they possibly can through a combination of mitigation and adaptation and then if they do have to go some place to have their own rights and respect their national and cultural heritage, which are very difficult to preserve in a foreign land, but the severe climate change will led to all kinds of novel legal as well as cultural problems and that's high up on the list.
COUTTS: Well, Kyoto Protocol and industrialised nations, such as Australia, are really dragging their feet at the moment in terms of carbon trading and ETS schemes. Is this something that you'll be looking at as well? I mean does this kind of thing in terms of mitigation need to be really moved along more quickly than it's progressing at this stage?
GERRARD: It certainly does. The industrialised countries of the world, including the US and Australia and a number of others are not engaged in nearly the vigorous mitigation activities that had been envisaged in the UN framework convention and the Kyoto Protocol. But regardless of the state of those, the climate will get work and adaptation measures such as we're discussing will be necessary.
COUTTS: Fishing is a huge industry for the Pacific. It's a big earner, apart from a livelihood, a lifeline, a diet for Pacific Islanders. If they lose their statehood, as we've discussed already, do they lose their rights to their fishing zones as well?
GERRARD: Well, that's one of the major questions that if there is no longer land around which to measure an exclusive economic zone, then their fishing rights would also be imperilled. Of course, there are also physical dangers to the fishing, ocean acidification and warming of the oceans can also have a very adverse affect on fishing.
COUTTS: Well, the Colombia Law School Conference does take place as we said in New York, this weekend. Can you just give us a feel for some of the speakers and some of the topics that you'll be raising during this two day conference?
GERRARD: Eh yes, we're going to be talking about the issues of statehood and statelessness, we'll talk about the maritime zones and rights, we'll talk about the question of whether the world does need a new international convention on climate change, we'll talk about legal rights and remedies. Are there international tribunals or domestic tribunals that these countries or these people could go to to try to achieve some kind of relief and we'll also talk about the impossible adaptation measures. Are there methods of design or coastal protection or drinking water preservation and so forth that will allow the people of these countries to stay there as long as possible.