Climate Justice for drowning States
Climate change has many different impacts, including, but not limited to, extreme weather events, such as floods. Among the best-known effects are the melting of polar ice and of glaciers. The loss of ice means rising sea levels, threatening coastal communities. At times, even in ways that might seem counterintuitive at first: the icebergs of the North Atlantic, for example, have their origin in Greenland, especially in the Ilulissat glacier (Mian, Marzio G. (2019). Die neue Arktis - Der Kampf um den hohen Norden, Bozen: Folio Verlag, p. 15). As Greenland’s ice melts, larger pieces of ice break off, resulting in larger icebergs. These icebergs float south through the Davis Strait into the North Atlantic. Due to their size, they take a long time to melt. As a result, icebergs are found in parts of the North Atlantic where they were not found earlier. This, in turn, creates new risks, for example for ship operations on which many coastal communities depend. Rising sea levels lead to coastal erosion, for example along Alaska’s North Shore where relocation of entire villages is planned. Such relocations have already happened, even against the will of the local communities, in Greenland, where some coastal communities were at risk. In the Arctic, too, “[r]ising sea levels challenge the assumptions of stable physical contexts” (Dalby, Simon (2020). Anthropocene Geopolitics - Globalization, Security, Sustainability, Ottawa: University of Ottawa Press, p. 64). But these places are not abstract ideas, they are home to people who often can trace back their roots for many generations. Merely relocating does not provide adequate compensation in particular for communities that earlier enjoyed a certain degree of autonomy, or even, for example in the case of Pacific island states, sovereignty. It can be argued that “the particular loss of the ability to operate as an autonomous territorial polity can only be compensated by the provision of that ability on some other territory” (Dalby, Simon (2020). Anthropocene Geopolitics - Globalization, Security, Sustainability, Ottawa: University of Ottawa Press, p. 67). In other words, eventually, new autonomous territories or states will have to be created for those peoples that lose their homes, territories or states. This concept, as unusual as it might appear at first sight, actually has connections to international law. As a matter of principle, international law prefers restitutio in integrum. When that is not possible, compensation is due. Providing territory and autonomy/sovereignty comes closer to restitutio in integrum than any monetary compensation. Reparation rules have long been an important topic in international law, for example in the 1928 Factory at Chorzów case (that has been discussed recently by Felix E. Torres, a doctoral student from the University of Nottingham, in the article “Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice” in the 2021 volume of the Nordic Journal of International Law. Dalby (Dalby, Simon (2020). Anthropocene Geopolitics - Globalization, Security, Sustainability, Ottawa: University of Ottawa Press, p. 67) argues that those states most responsible for climate change should be the first to be responsible for making this possible. From the perspective of international law, this might not be entirely impossible. It is sometimes said among lawyers that extreme cases make bad law, but international law has to provide answers to the questions posed to it by the international community. By its very nature, international law is reactive. States come up with solutions once they identify a problem. In the case of climate change, the problem, the risk that entire peoples might lose their homelands due to sea level rise and other climate change effects, is already visible, even if the damage has not yet been realized. Here, like in the case of the Central Arctic Ocean Fisheries Agreement, the international community has the chance to take action now. States are unlikely to hand over part of their territorial sovereignty to another state unless required to do so by the International Court of Justice. Translating a claim to some kind of compensation into a claim to sovereignty over a specific territory, however, does not appear feasible under current international law. Any such solution will have to be created on the basis of consensus. Such a consensus might resemble a peace treaty at the end of a war, defining borders and compensations. This comparison already indicates the likely difficulties. But solutions will have to be found before the territory in question, for example, a Pacific island state, will be lost completely. As long as there is some territory that is home to a people and governed, there is a state as a legal subject that can negotiate with other states, no matter how small the territory is. Once the territory is lost, there is no state that can bring a claim. In that case, the claim would have to be brought by the people, which would lead to a number of other questions on issues such as legal subjectivity and representation. Polluter states must not be allowed to sit out the problem. It is not only necessary to limit future climate change, and to focus on climate justice from the perspective of human rights (although this aspect is highly relevant), but long-term solutions have to be created in time. Climate change is already a problem today and needs a holistic approach also from the international legal community.
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