When islands drown: The plight of "climate change refugees" and recourse to international human rights law

University of Pennsylvania Journal of International Economic Law

Volumn 31, Issue 4, 2010, Pages 1239-1266

  Duong, Tiffany T V ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 77954460319     PISSN: 10867872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (142)

1. Rebecca Elizabeth Jacobs, Comment, Treading Deep Waters: Substantive Law Issues in Tuvalu's Threat to Sue The United States in the International Court of Justice, 14 PAC. RIM L. & POL'YJ. 103, 103 (2005).
2. See id. at 103-04 ("Some scientists predict that the island... will sink into the ocean by the year 2054 due to the adverse effects of global warming."). Several unpopulated islands have been engulfed already by the Pacific Ocean.
3. Id. at 104.
4. See id. at 104-05 (describing the Tuvaluan Prime Minister's announcement that the nation would bring suit in the International Court of Justice against nations refusing to enter into the Pact). In the end, Tuvalu did not sue the United States or Australia as threatened because the jurisdictional and standing concerns proved to be too high.
5. Timo Koivurova, International Legal Avenues to Address the Plight of Victims of Climate Change: Problems and Prospects, 22 J. ENVTL. L. & LITIG. 267, 279 (2007) ("The central reason for this standstill is jurisdictional.").
6. Jacobs, supra note 1, at 107 n.30 and accompanying text (describing the Tuvaluan Prime Minister's request for environmental refugee status for his citizens); All Things Considered: Tuvalu (National Public Radio broadcast Nov. 15, 2001), http://www.npr.org/templates/story/story.php?storyId=1133294 (last visited Apr. 9, 2010) [hereinafter NPR] (reporting that New Zealand has agreed to accept 60 Tuvaluans per year as environmental refugees).
7. Rupert Murdoch, Chairman and Chief Executive Officer, News Corp., Address to his Employees (May 9, 2007), available at http://www.wbcsd.org/plugins/ DocSearch/detaUs.asp?type=DcK:Det&ObjectId=MjQ2MTg.
8. Derald J. Hay, Post-Kyoto Stress Disorder: How the United States Can Influence International Climate Change Policy, 15 Mo. ENVTL. L. & POL'Y REV. 493, 493 (2008).
9. See id. (describing the effects of climate change thus far).
10. See Michael G. Faure & Andre Nollkaemper, International Liability as an Instrument to Prevent and Compensate for Climate Change, 43 STAN. J. INT'L L. 123, 124 (2007) (discussing the plight of the island nation of Tuvalu);
11. Jacobs, supra note 1, at 103-04 (parsing through Tuvalu's potential legal claims for climate change liability against the United States).
12. Hay, supra note 6, at 493.
13. 10 See WORLD VISION, PLANET PREPARE: PREPARING COASTAL COMMUNITIES IN ASIA FOR FUTURE CATASTROPHES: ASIA PACIFIC DISASTER REPORT 14 (2008), available at hrrp://www.wvasiapacific.org/downloads/PlanetPrepare-LowRes.pdf (describing the affects of melting ice caps);
14. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE ("IPCC"), CLIMATE CHANGE 2007: SYNTHESIS REPORT 30-54 (2007), available at http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ar4-syr.pdf [hereinafter SYNTHESIS REPORT] (examining observed changes in the global climate, the causes of these observed changes, and the possible future impact of these changes).
15. WORLD VISION, supra note 10, at 15.
16. Id. (describing how quickly the ice shelves are disintegrating).
17. Id. at 14. See SYNTHESIS REPORT, supra note 10, at 45 (projecting increased ice flow from Greenland and Antarctica at the rates observed for 1993-2003).
18. WORLD VISION, supra note 10, at 14. Accord SYNTHESIS REPORT, supra note 10, at 47 (discussing how projected ice sheet contraction will "continue to contribute to sea level rise"). For an extensive list of projected rises in sea level and surface temperatures, see id. at 45 tbl.3.1.
19. WORLD VISION, supra note 10, at 14.
20. Id.
21. Jacobs, supra note 1, at 107 (describing the island's topography);
22. Jason D. Söderblom, Climate Change: National & Regional Security Threat Multiplier for Australia, SECURITY SOLUTIONS Mar.-Apr. 2008, at 60, available at http://ssm.com/abstract=1101961 (examining some of the dangers which Tuvalu faces due to climate change).
23. Söderblom, supra note 17, at 60.
24. Hay, supra note 6, at 504 (describing how President Bush cited three reasons for the administration's view that Kyoto was a failure, including "scientific uncertainty regarding the threat of climate change.").
25. Laurie Goering, Global Warming Can Be Reduced, But at What Cost?, SEATTLE TIMES, May 21, 2007, at Al ("Bush administration officials argued that the same aggressive effort [the U.N. advocated to hold GHG emissions in check] would throw the world's economy into recession.").
26. th century is very likely due to the observed increase in anthropogenic GHG concentrations.");
27. Jacobs, supra note 1, at 110 ("The [IPCC's] Third Report also concluded that 'most of [the] observed warming over [the] last fifty years [was] likely due to increases in [GHG] concentrations due to human activities.'").
28. Faure & Nollkaemper, supra note 8, at 133-34 (examining how a victim may, in some circumstances, determine venue in climate change cases).
29. This principle was recognized internationally in the 1992 Rio Declaration on Environment and Development. J. Martin Wagner, International Investment, Expropriation and Environmental Protection, 29 GOLDEN GATE U. L. REV. 465, 470 (1999) (citing Conference on Environment and Development, June 3-14, 1992
30. Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev. 1 (June 13, 1992), reprinted in 311.L.M. 876).
31. This rationale was a crucial part of why the United States refused to sign the Kyoto Protocol, which set binding emissions reduction targets for Annex B countries (mostly the developed world) while leaving the emissions of the developing world (i.e. China and India, whose combined emissions rival those of developed nations) largely unregulated.
32. Hay, supra note 6, at 506 ("[C]limate change will have a differentiated impact on various regions.").
33. The Intergovernmental Panel on Climate Change (IPCC) is an intergovernmental scientific body comprised of governments, scientists, and the people, as represented by the United Nations Body; thus, the IPCC report detailing climate change's predicted disparate impact can be considered authoritative and scientifically based.
34. Intergovernmental Panel on Climate Change, Organization, http://vww.ipcc.ch/organization/organization.htm (last visited Apr. 10, 2010) (describing the IPCC's function).
35. Hay, supra note 6, at 506 (internal citations omitted).
36. The top ten GHG-emitting countries, in order, are: the United States, China, the EU-25, Russia, India, Japan, Germany, Brazil, Canada, and the U.K.
37. DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 663 (3d ed. 2007) (listing the top GHG emitting countries' carbon equivalent emissions for six GHGs)
38. Hay, supra note 6, at 506-07 (arguing that the United States and other developed nations are the least threatened by adverse climate change impacts).
39. Id. at 506-07 (describing the United States' superior position to mitigate and adapt to climate change).
40. HOLLEY RALSTON ET AL., CLIMATE CHANGE CHALLENGES TUVALU 7 (Germanwatch Climate Responsibility Campaign ed., 2004), available at http://vvww. germanwatch.org/download/klak/fb-ruv-e.pdf ("Tuvalu has always had to fight with extreme weather events like storm surges and floods.");
41. Jacobs, supra note 1, at 105-06 (describing the history of Tuvalu's inhabitants and how they have dealt with extreme weather). "During the fiercest of these storms, the inhabitants would protect themselves from being blown into the Pacific by tying themselves to coconut palms, hoping the wind was not forceful enough to take the rooted trees as well." Id. at 106.
42. Jacobs, supra note 1, at 106 (describing the multiplication in intensity and number of natural disasters befalling Tuvalu because of global warming).
43. Id. (discussing the negative impact that rising water has had on island agriculture).
44. Id. at 106-07 (explaining how sandy soil makes island agriculture difficult and how global warming effects amplify this difficulty).
45. Söderblom, supra note 17, at 60 (describing the damage "king tides" have caused in Tuvalu); SYNTHESIS REPORT, supra note 10, at 49 (discussing the exacerbating effects of climate change on freshwater availability);
46. RALSTON ET AL., supra note 30, at 10 ("A great threat to food security is the rising sea level, which leads to salinization of the soil and ground water.");
47. FRIENDS OF THE EARTH, A CITIZEN'S GUIDE TO CLIMATE REFUGEES sec. 2 (2007), available at http://www.foe.org.au/resources/publications/climate- justice/CitizensGuide.pdf ("Saltwater intrusion reduces the land's productive capabilities. It has already affected communal crop gardens on six of Tuvalu's eight islands.").
48. Söderblom, supra note 17, at 62 (describing the increases in disease that accompany global warming)
49. SYNTHESIS REPORT, supra note 10, at 48, 51, 53 (predicting health problems that global climate change may cause)
50. FRIENDS OF THE EARTH, supra note 34, sec. 2 (describing the increase in vector and waterborne diseases accompanying warmer temperatures).
51. Söderblom, supra note 17, at 62 (discussing how climate change will affect food production and cause associated health problems)
52. RALSTON ET AL., supra note 30, at 13 (linking the warming climate to increasing prevalence of insect-borne and water-borne diseases on numerous tropical islands).
53. Jacobs, supra note 1, at 106.
54. NPR, supra note 4; see id. ("The Pacific island nation of Tuvalu is slowly sinking beneath the sea, the Prime Minister is worried, and the citizens have a choice to make: they can watch as the beaches disappear or they can leave.").
55. See supra note 4 and accompanying text.
56. Under the Pacific Access Category immigration program, New Zealand has agreed to accept seventy-five Tuvaluans a year who meet specific immigration categories. FRIENDS OF THE EARTH, supra note 34, at 6. Australia, on the other hand, has refused to accept any environmental refugees from Tuvalu.
57. Id.
58. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (1954) [hereinafter Refugee Convention] (entered into force Apr. 22, 1954), available at http://www2.ohchr.org/english/law/refugees. htm.
59. Jessica B. Cooper, Student Article, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. ENVTL. L.J. 480, 480 (1998) [hereinafter Cooper] (describing how the U.N. definition of a "refugee" remains the "functional core of international refugee jurisprudence").
60. Refugee Convention, supra note 41, art. 1.
61. Cooper, supra note 42, at 481.
62. For a discussion on why environmentally displaced persons should not count under the traditional refugee definition and laws as they stand see Kara K. Moberg, Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection, 94 Iowa L. Rev. 1107, 1113 (2009). "[Environmental migrants are unlikely to benefit from the definition of refugee and [there are] dangers in construing the law to allow [them] to fall under the pre-existing refugee definition."
63. Id.
64. Cooper, supra note 42, at 482
65. Moberg, supra note 45, at 1128 (describing the refugee definition as unchanged since its promulgation in 1951).
66. Cooper, supra note 42, at 482.
67. KAREN MUSALO ET AL., REFUGEE LAW AND POLICY: A COMPARATIVE AND INTERNATIONAL APPROACH 36 (3d ed. 2007) (describing the limits on the refugee definition).
68. Id.
69. Protocol relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (1967) (entered into force Oct. 4, 1967), available at http://www2.ohchr. org/english/law/protocolrefugees.htm.
70. MUSALO ET AL., supra note 48, at 36 (discussing the elimination of the restrictive requirement that a refugee's claim relate to an event in pre-1951 Europe; extending protection to refugees from other parts of the world).
71. Id.
72. Dana Zartner Falstrom, Perspective: Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment, 13 COLO. J. INT'L ENVTL. L. & POL'Y Y.B. 1, 4 (2002).
73. Id.
74. The use of the term "environmentally displaced person" rather than "climate change refugee" removes the problematic issue of dependence upon narrowly interpreted international refugee law for recourse. Rather than waste time arguing a tentative position under the Refugee Convention, Tuvalu and other states can then focus on their infringed human rights and the obligations created from those rights in order to find liability for climate change and its environmental effects.
75. MUSALO ET AL., supra note 48, at 367.
76. HUNTER ET AL., supra note 28, at 1366 (explaining the interplay between human rights and the environment).
77. Marc Limon, Human Rights and Climate Change: Constructing a Case for Political Action, 33 HARV. ENVTL. L. REV. 439, 465 (2009) (quoting the Human Rights Committee).
78. Introduction to HUMAN RIGHTS AND FORCED DISPLACEMENT ix (Anne F. Bayefsky & Joan Fitzpatrick eds., 2000).
79. Human rights considerations are central across the spectrum of the refugee problem, from departure, through refuge, to solutions.
80. Violations of human rights are a major cause of forced displacement Human rights considerations are key to the realization of long-term solutions to the problems of forced displacement. Implementation of human rights standards is inseparable form the overall goal of conflict-resolution and peace. Invoking the language of human rights and available international remedies for human rights violations can help the victims of forced displacement.
81. Id.
82. Kyung-wha Kang, Deputy High Comm'r for Human Rights, Office of the U.N. High Comm'r for Human Rights, Address at the Conference of the Parries to the UNFCCC and its Kyoto Protocol (Dec. 14, 2007), available at hrrp://www.imhchr. ch/huricane/huricane.nsf/viewOl/013DC0FAA475EC87Cl2573B10074796A?opendocument
83. Id. at 465-66 (describing the role that human rights treaty bodies play in an analytical and advocacy sense in the growing climate change regime).
84. Kyung-wha Kang, supra note 60 (examining the obligations which international human rights law imposes on states that are relevant to addressing human vulnerabilities to climate change).
85. Id.
86. Universal Declaration of Human Rights, G.A. Res. 217A, ¶ 1, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 Pec. 12, 1948) [hereinafter Universal Declaration].
87. International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966
88. G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), available at http://www2.ohchr.org/english/law/ccpr.htm [hereinafter ICCPR].
89. International Covenant on Economic, Social, and Cultural Rights, opened for signature Dec. 16, 1966
90. G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., U.N. Doc. A/6316, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976), available at http://www2.ohchr. org/english/law/cescr.htm [hereinafter ICESCR].
91. HUNTER ET AL., supra note 28, at 1373.
92. Sumudu Atapattu, Global Climate Change: Can Human Rights (and Human Beings) Survive this Onslaught?, 20 COLO. J. INT'L ENVTL. L. & POL'Y 35, 45 (2008) (describing the right to life as the most fundamental of all rights).
93. Vienna Convention on the Law of Treaties art. 53, May 23, 1969
94. 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (defining a peremptory or jus cogens norm).
95. HUNTER ET AL., supra note 28, at 1373-74 (listing the human rights instruments containing the right to life). Among them are the Universal Declaration, Article 3; the ICCPR, Article 6; the Inter-American Convention, Article 4; the American Convention on Human Rights, Article 4; the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3; and the African Charter on Human and Peoples' Rights, Article 4.
96. Id.
97. Atapattu, supra note 68, at 46 ("[A]s a result of climate change, the right to life of people all over the world will be at risk due to increased incidence of hurricanes, cyclones, flooding, heat waves, increased air pollution, and vector borne diseases."); notes 32-42 and accompanying text (describing the devastating potential effects of climate change on Tuvalu).
98. These arguments are borrowed from a petition submitted by the Inuit peoples against GHG emitters in the United States. Atapattu, supra note 68, at 46. The Inuit are facing a similar fate as the Tuvaluans; their homes on the Arctic ice are melting due to rising global temperatures.
99. See id. at 55-58 (discussing the rights argued for by the Inuit Petition)
100. Sheila Watt-Cloutier, Petition to the Inter-American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States Pec. 7, 2005), available at http://www.ciel.org/Publications/ICC-Petition-7Dec05.pdf (arguing that the United States is the largest contributor to the climate change problem, which is adversely affecting every aspect of Inuit life).
101. Universal Declaration, supra note 64, art. 25.
102. ICESCR, supra note 66, art. 12.
103. See HUNTER ET AL., supra note 28, at 1375-76 (listing human rights instruments containing the right to health and well-being).
104. See id. at 1375 (examining how many human rights instruments treat the right to health as closely related to the rights to food, adequate living conditions, and safe and healthy working conditions).
105. Sara C. Aminzadeh, Note, A Moral Imperative: The Human Rights Implications of Climate Change, 20 HASTINGS INT'L & COMP. L. REV. 231, 252 (2007).
106. See id. at 253-354 (describing long-term health consequences of human-induced climate change).
107. See supra Section 2.3 (describing the effects of climate change on Tuvalu).
108. See ICESCR, supra note 66, art. 11 ("The States Parties to the present covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food....")
109. Universal Declaration, supra note 64, art. 25 ("Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food...").
110. See U.N. Econ. & Soc. Council, Comm. on Econ., Soc., & Cultural Rights [ECOSOC], 29th Sess., General Comment No. 15: The Right to Water, para. 1, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003), available at http://www2.ohchr.org/ english/issues/water/docs/CESCR-GC-15.pdf (discussing access to water as a basic human right).
111. See Mark Hayes, We Are All Tuvaluans, 12 GRIFFTTH REV. 172, 180 (2007), available at www.tuvaluislands.com/features/GriffithReview2007/ GriffithReview2007-01-05.html ("The effects of global warming here are not spectacular. They're creeping and insidious, weakening the already fragile fabric that enables this tiny atoll society to exist.").
112. See HUNTER ET AL., supra note 28, at 1383-86 (providing a list of human rights instruments containing the rights to self-determination and cultural expression).
113. Id. at 1383
114. see also RALSTON ET AL., supra note 30, at 8-11 (describing how the loss of resources that Tuvaluans depend upon for life could spell disaster for the island's people, even before the island drowns).
115. See Söderblom, supra note 17, at 62 ("Territorial waters are determined from a country's coastline. If a coastline shifts then the Exclusive Economic Zone of a nation (generally an area of 200 nautical miles) shifts too.").
116. Id.
117. Universal Declaration, supra note 64, art. 22.
118. See ICCPR, supra note 65, art. 27 ("In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise [sic] their own religion, or to use their own language.")
119. ICESCR, supra note 66, art. 1 ("All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.")
120. art. 15 (protecting "the right of everyone ... to take part in cultural life")
121. Limon, supra note 58, at 455-56 ("What are the obligations of states, in the context of climate change, to respect the right of self-determination and to prevent loss of statehood?").
122. See, e.g., Alexandra Berzon, Tuvalu is Drowning, SALON.COM, Mar. 31, 2006, http://www.salon.com/news/feature/2006/03/31/tuvalu/print.html (last visited Mar. 24, 2010) [hereinafter Berzon] (describing the impact climate change will have upon the Tuvaluan way of life)
123. All Things Considered: Tiny Island Makes Climate a Priority (National Public Radio broadcast June 4, 2007), available at http://www.npr.org/templates/ story/story.php?storyld=10712509 (interviewing the President of Palau, a nation facing a similar fate, wherein the President laments that the children will have to move off the island and find jobs elsewhere in trades unfamiliar and unknown to them).
124. Universal Declaration, supra note 64, art. 17.
125. Aminzadeh, supra note 77, at 249.
126. Office of the U.N. High Comm'r for Human Rights, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Human Rights and Climate Change, para. 86, U.N. Doc. A/HRC/10/61 (Jan. 15, 2009).
127. Limon, supra note 58, at 455.
128. See Falstrom, supra note 53, at 2 (advocating for a new convention rather than an expansion of the Refugee Convention as a means to protect climate change refugees).
129. Cooper, supra note 42, at 488.
130. Id.
131. MUSALO ET AL., supra note 48, at 54-55.
132. See id. at 55 (describing how the participants at the drafting convention adopted the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, § IV, E).
133. Id.
134. Falstrom, supra note 53, at 9.
135. See generally RALSTON ET AL., supra note 30 (examining the threat climate change poses to Tuvalu and the drastic impact it will have on the Tuvaluan way of life).
136. MUSALO, supra note 48, at 231.
137. Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, art. I, para. 2, June 20, 1974, 1001 U.N.T.S. 45.
138. Cartagena Declaration on Refugees, sec. III.3, Nov. 22, 1984, reprinted in 3 UNHCR, COLLECTION OF INTERNATIONAL INSTRUMENTS AND LEGAL TEXTS CONCERNING REFUGEES AND OTHERS OF CONCERN TO UNHCR 1197 (2007).
139. Falstrom, supra note 53, at 11.
140. 106 See Berzon, supra note 89 (quoting a climate change advocate who believes "'[t]hese people are being forced into a position of [sic] where they have nowhere to go, including home, and that's the definition of a refugee.'").
141. NPR, supra note 4.
142. See Hayes, supra note 82, at 175 (citing the phrase as "used by some environmentalists who understand that global warming and rising sea levels, while gravely threatening the existence of low-lying tropical island countries like Tuvalu, threaten us all").