Sea Change: the Legal Implications of Climate Change for Island States

Earlier this month, the intergovernmental 44th Pacific Islands Forum convened in the Marshall Islands to discuss the affairs of 16 sovereign states in the Pacific Ocean. Members of the Forum include Australia, the Federated States of Micronesia, Fiji and Samoa. Discussions at the Pacific Islands Forum covered a wide variety of economic, political and strategic topics, but the major focal point of the Forum concerned climate change.

The topic of climate change is one that has sparked strong—and often acrimonious—debate and has for the past few decades been a perennial issue of global concern, but its impact has affected the Pacific island states in a more fundamental and pressing way than that of most other countries. Namely, the increase in global average temperatures has resulted in significant melted snow and ice in the polar regions, a warming of the ocean temperatures and raised global mean sea levels. The raised sea levels present a potentially catastrophic problem to the members of the Pacific Islands Forum, as many of the islands on which the physical boundaries of the states extend lie a mere few feet above sea level and are thus in serious danger of erosion and coastal land loss, if not complete submersion. The Marshall Islands, host of this year’s Forum, are a prime example of the adverse impact of climate change facing many of the island states in the Pacific Ocean. The Marshall Islands’ capital city, Majuro, lies less than two meters above sea level.  It has been heavily flooded by seawater this year, causing extensive property damage and forcing the closure of its airport. Such extreme flooding is expected to increase in frequency and severity if sea levels continue to rise—and such a rise is widely predicted. According to the Intergovernmental Panel on Climate Change, an international body of scientists, sea levels are likely to rise by more than three feet by the end of the century if climate change continues at its current pace.

The many problems posed by climate change to Pacific island states present a complex tangle of legal issues, many of them unprecedented in international law. These legal issues include:

  • The conventional definition of statehood under international law states that a sovereign state must have (1) territory, (2) population, and (3) recognition by other states.  Given that the rise in sea levels threatens to completely submerge some of the lower-lying Pacific island states, what happens when a sovereign state entirely loses its physical territory to the sea? Is it still a state?
  • Given their limited size and population, the island states have contributed very little to the climate change problem. Indeed, statistics show that much larger countries such as China, the United States and India are the greatest contributors to the climate change problem through their higher levels of greenhouse gas emissions. Given that the island states have contributed very little to the problem but will arguably pay the heaviest price, do the island states and their citizens have any legal recourse for compensation? Under US law, there have been unsuccessful attempts to sue private entities for activities that likely contributed to climate change (e.g. cases such as Kivalina v. Exxon and American Electric Power v. Connecticut), but questions still remain concerning many facets of climate change litigation. For example, what kind of legal redress is available for climate-related harm across national borders?
  • If the pace of climate change continues, many citizens of the most vulnerable island states face imminent statelessness. There are currently no binding international agreements on climate-induced migration, but there have been precedents for climate-induced immigration on a limited basis. For instance, the Federated States of Micronesia, Marshall Islands, and Palau have an agreement with the United States that allows residents of those countries to travel and work in the United States. However, not all affected Pacific island states have similar agreements—who has the responsibility to take on migrants from these states? What legal obligations does the international community have towards settling these migrants? What happens when the influx of climate migrants grows larger in the face of increased environmental change?

Despite the relatively nascent nature of such legal issues, the island states have nonetheless been increasingly turning to international law to develop effective legal solutions to the problems presented by climate change. At the 44th Pacific Forum, member states finalized the Majuro Declaration for Climate Leadership, a legally-binding agreement that  commits its members to specific pledges dedicated to curbing climate change by restricting greenhouse gas emissions and increasing the use of renewable energy sources. Though the Majuro Declaration technically would have little—if any—effect on climate change as a whole as larger, more polluting states such as China and the United States are not parties to the agreement, the Declaration is designed to lead by example. Moreover, the Declaration may also serve as a platform for the international community to take concrete action—preferably in the form of a similarly-binding legal framework—on climate change issues.

Other legal strategies that island states have tried include Palau’s request to the International Court of Justice to issue an Advisory Opinion in order to provide guidance on how provisions of international law such as the ‘no harm rule’ and the UN Law of the Sea applies to climate change issues. Although non-binding, an Advisory Opinion would allow the International Court of Justice to clarify whether heavy-emitting states have a legal responsibility towards the smaller, most vulnerable island states under international law, thereby potentially allowing the smaller states more leverage during legally-binding climate change negotiations, where the voices of the smaller, more vulnerable states are often drowned out.

The legal issues posed by climate change to vulnerable island states are extremely complex, still developing and are above all fraught with serious practical implications for the lives of many. Like the on-going efforts to deal with the climate change issue through frameworks such as the Kyoto Protocol, the road to finding solutions to the thorny issues posed by climate change under international law are likely to remain contested, controversial, and unresolved for years to come. Unfortunately for the most vulnerable island states, however, the pace of climate change—and rising sea levels—continues on.

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