The ABA Journal has a cover story about the threat posed to island states by climate change. This is a topic we have discussed on Opinio Juris at various times. Duncan wrote at length about the Maldives; I had a shorter piece here, and there are various references in the midst of other blog posts.

The Journal article is long and covers a great deal.  Either I or some of my co-bloggers will likely come back to this at length. For now, I just wanted to post a “heads-up” and highlight some points of interest regarding sovereignty and especially the human toll of sinking states:

“A small island is likely to become uninhabitable long before it disappears,” says Jenny Grote Stoutenburg, an international law scholar who is a Ph.D. candidate at the University of Hamburg in Germany. And it is at the moment when the last remaining residents flee the last inhabited island that the state would cease to exist… [snip]

It would be unprecedented for a nation to lose its statehood because its land actually disappeared, says Caleb W. Christopher, who is legal adviser to the U.N. mission of the Marshall Islands. “There’s never been a time when a government—even a small government—has vanished without somebody else coming over and taking over and succeeding it. Peru is always Peru even if another country takes it over, or if their government changes. It doesn’t just up and vanish off the face of the Earth.”

A key issue is how those nations can seek to preserve their statehood, claims to resources and national identity when they have no actual physical homeland.

Speaking at last year’s conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Stoutenburg advised that island nations should try to keep at least some bit of land inhabitable and populated in order to anchor their claims to continued statehood… [snip]

Island nations were advised to freeze existing maritime boundaries by basing them on geographical coordinates that will not shift with retreating coastlines.

The article discusses other possible reactions to the problem of sinking sttaes, including concerted action by states-parties to the UN Convention on the Law of the Sea (UNCLOS) to draft new rules that take into account pre-existing sovereign claims prior to the loss of territory, to the idea of a non-territorial or ex situ state:

It would be made up of citizens scattered around the globe and headed by a government that would manage common resources, such as maritime resources and compensation funds; provide consular protection; maintain cultural ties and identity; and even keep alive the possibility of reunification in a new location.

However, as a law professor who writes about problems if statehood and sovereignty, it was the next two paragraphs that really caught my attention:

Heady ideas, perhaps, but some island nation citizens came away from the conference dispirited. During one question-and-answer session, a highly emotional resident of the Republic of the Maldives, a cluster of atolls and islands in the Indian Ocean where the average elevation is only about 5 feet, insisted that island nations “cannot be and should not be sacrificed on the altar of the good life of the rest of the world.”

Acknowledging such sentiments, Jariabka of Islands First says that, on an abstract level, the imminent statelessness of island nation residents is “a very interesting, sexy topic to be writing about as an academic.” But, he says, “my perception was that when you had the questions and comments, some of the government officials, the people from these islands, were visibly frustrated because they were hoping to learn how to save their islands rather than how to best manage their eventual extinction.”

And that is a good reminder for all that interesting legal conundra for some can be life-and-death issues for many.

I’ll have more to say on these and other sovereignty issues in another post. For now, I recommend reading the Journal article as well as Duncan’s previous post.

Was the Durban climate conference a success or failure?  As always, the answer depends on one’s frame of reference.

As compared to the expectations going in, the outcome was more than I think most people thought possible.  In a pre-Durban paper entitled “W[h]ither the Kyoto Protocol,” I identified three scenarios: (1) business-as-usual, with modest progress in developing the Copenhagen/Cancun framework and no political breakthroughs; (2) agreement to a “political” (not legally-binding) second commitment period under the Kyoto Protocol; and (3) agreement to a Kyoto Protocol amendment establishing a second commitment period, combined with a mandate for a new negotiating process to develop a legally-binding agreement addressing the emissions of the other major economies.  Many thought that (1) was the default option, (2) represented the best-case scenario, and (3) was politically unrealistic.  But the Durban outcome is in fact closest to (3):

• It wrapped up much of the remaining work to elaborate the Copenhagen/Cancun process, by adopting the governing instrument of the new Green Climate Fund and a transparency rules for both developed and developing countries pledges.
• It agreed to extend the Kyoto Protocol by another 5-8 years.  Although the emissions targets for Kyoto’s second commitment period still need to be worked out, and the formal amendment won’t be adopted until next year, the basic political decision to extend the Protocol was made in Durban.
• It agreed to launch a new negotiating process to develop a “protocol, another legal instrument, or agreed outcome with legal force,” addressing the post-2020 period  and “applicable to all Parties.”

The Durban outcome seemed unlikely because there was little indication that China and India would agree to negotiate a new agreement to limit their emissions.  Without agreement by China and India, the United States had said that it would not agree to a new round of negotiations.  And without agreement by the United States, China, and India, the European Union would not agree to a second commitment period under the Kyoto Protocol.  What allowed the Durban outcome was a careful compromise that gave BASIC countries, on one side, a 2020 start date for the new agreement and some ambiguity about its legal character (about which more below), and gave the EU, small island states and least-developed states, on the other side, early start and end dates for the negotiations (the negotiations will begin next year and conclude in 2015)  and language that the outcome of the new negotiations will have “legal force.”  Interestingly, the United States apparently played something of an intermediary role, since it had some flexibility about the issues of both dates and legal form.  In the end game of Durban, India was unwilling to accept a mandate to negotiate  a “protocol or another legal instrument,” and preferred the formulation “legal outcome.”  The United States suggested “outcome with legal force,” India added “agreed,” and the EU said ok.  Thus the deal was done.

Of course, the Durban outcomes are largely procedural.  So if one’s frame of reference is what needs to be done substantively to limit temperature change to no more than 1.5 or 2 degrees C, then the Durban outcome falls far short.  According to most scenarios, global emissions need to peak by 2015 in order to have a reasonable chance of limiting global warming to no more than 2 degrees.  Instead, emissions rose by 6% in 2010, the largest amount on record.  Even if the Durban Platform negotiations are successful, a new agreement wouldn’t kick in until 2020.  Although the Durban decision calls on countries to consider raising the ambition of their existing pledges for the 2012-2020 period, these pledges are non-binding under the Copenhagen/Cancun framework.  Hence the unhappiness of small island and least-developing states with a 2020 start date for a new agreement.

The Durban Platform is also pretty thin gruel as a negotiating mandate.  In terms of its actual language, it is arguably weaker than the 1990 UN General Assembly resolution that initiated the UN climate change negotiations and led to the development of the UN Framework Convention on Climate Change.  The 1990 UN General Assembly resolution called clearly  for the negotiation of a “convention” (albeit a “framework” agreement) “containing appropriate commitments.”  In contrast, the Durban meeting was unable to agree on a mandate to negotiate a legal agreement and contains no language about commitments.   The Durban platform could be satisfied by an “outcome with legal force” — a formulation that as far as I am aware does not have any precedent in international law.  Arguably, “legal force” means the same thing as “legally-binding,” and the addition of “with legal force” to “agreed outcome” (the Bali Action Plan language) means that the outcome is something more than what Bali contemplated (which included COP decisions).  But the inability to reach agreement on “legally-binding” suggests that at least some parties thought “legal force” might mean something less.

Moreover, the Durban Platform does not specify anything about the content of the new “protocol, another legal instrument or legal outcome with legal force.”  The assumption is that it will set forth emissions limitation commitments, but the Durban decision does not say so explicitly.  So, in theory, the Durban Platform negotiations could be satisfied by another framework-style agreement.  In Durban, the issue was often framed as whether the BASIC countries would agree to negotiate a legally-binding agreement for the post-2020 period.  But, of course, the BASIC countries are already parties to two climate change agreements, the UNFCCC and the Kyoto Protocol, one of which (the UNFCCC) already imposes general mitigation obligations on all parties, including the BASICs.  So the issue is not whether China, India and the  other BASIC countries are willing to become party to a legally-binding agreement, even one that imposes mitigation commitments on them.  Rather, the question is whether the BASIC countries are willing to accept specific (quantitative?) obligations to limit their emissions.

The other gorilla in the room is stringency.  Specific emission limitation commitments by all of the world’s major economic would be a big step forward.  But whether it would be enough to prevent dangerous climate change would depend on the stringency of the commitments.  Durban made little if any progress in that regard.  The Durban Platform contains preambular language expressing “grave concern” about “the significant gap between the aggregate effect of Parties’ mitigation pledges … and aggregate emissions pathways consistent with having a likely chance of holding the increase in global average temperature below 2° C or 1.5° C above pre-industrial levels.”  It calls on the new negotiating group to “raise the level of ambition” and launches a workplan to “enhanc[e] mitigation ambition” and to “close the ambition gap.”  But efforts in Durban were completely unsuccessful to include language about when global emissions need to peak or about a long-range global emissions reduction goal (such as a 50% reduction by 2050).    This suggests that even if the Durban negotiations lead to the adoption of a new legal agreement, it could fall woefully short of what is needed.

So the Durban Conference should be seen as only one step along a long path.  What was remarkable about the meeting was that a coalition of small island states, least-developed countries and the European Union was successful in pushing through an outcome about which the United States, China and India were, at best, lukewarm.  Whether the political pressure that led to Durban will also be sufficient to produce a strong agreement will determine whether Durban is seen by history as a significant breakthrough or a pyrrhic victory.

In the early morning hours of Sunday morning (after two all-night negotiating sessions), climate negotiators at the Durban Conference reached a deal that some are already calling historic.  The decisions call for a new commitment period under the Kyoto Protocol together with the launching of a new round of negotiation (with the catchy title, “Durban Platform for Enhanced Action“)  aimed at reaching “a protocol, another legal instrument or an agreed outcome with legal force under the UN Framework Convention on Climate Change applicable to all Parties,” to be concluded no later than 2015.   Although the Durban Platform does not specify what types of commitments will be contained in the new instrument, the clear expectation is that it will include emission limitation commitments by those not covered by the Kyoto Protocol’s emission targets, including the United States, China and India.  The new protocol/instrument/outcome would thus expand the scope of the climate regime from the 15% of global emissions currently addressed through the Kyoto Protocol to all of the world’s major economies.

From the beginning, the main issue at Durban was whether the United States and the BASIC countries (Brazil, South Africa, India and China) would agree to a negotiating mandate sufficiently strong to enable the European Union to agree to an extension of the Kyoto Protocol.  Important issues included:

• Legal form — Some countries were reportedly unwilling to accept a mandate to negotiate a “legally-binding agreement.”  (India was most clearly in this camp; the positions of the United States and China were less clear.)  Early texts proposed negotiating a “legal framework” or a “legal outcome,” but the European Union, small island states and least developed countries  (LDCs) saw these formulations as insufficiently strong, since they arguably might be satisfied by COP decisions.  The Durban Platform finessed this question with the formulation, “protocol, another legal instrument or agreed outcome with legal force.”  (The phrases “protocol” and “another legal instrument” are the terms used in the Berlin Mandate, which launched the Kyoto Protocol negotiations,” and the term “agreed outcome” is from the Bali Plan of Action, but now modified by the phrase “with legal force.”)
• Time frame for the negotiations –  China reportedly wanted the negotiations to begin in 2016, after a review under the Cancun Agreements had been completed.  The European Union wanted the negotiations to begin immediately and to be concluded by 2015.  The Durban Platform follows the “EU roadmap” on this issue.
• Time frame for the new instrument – The BASIC countries were reportedly willing to become part of a new agreement only starting in 2020 (and the United States was unwilling to accept an earlier start date for itself than for the BASIC countries), while the small island states and LDCs wanted the new agreement to be applicable as soon as possible.  The Durban Platform specifies that the instrument will “come into effect and be implemented” from 2020.
• Negotiating forum – Rather than conduct the negotiations in the existing Ad Hoc Working Group on Long-term Collective Action (AWG-LCA) (created in 2007 by the Bali Roadmap), the Durban Platform establishes a new Ad Hoc Working Group on the Durban Platform on Enhanced Action.

As usual, on the issues about which there was no agreement (legal form and time frame), the lawyers in the negotiations played a crucial role in finding formulations that triangulated among the positions of the differing groups.

On the issue of differentiation, the Durban Platform represents a complete departure from the Berlin Mandate, which launched the Kyoto Protocol negotiations.  Not only does the Durban Platform affirmatively state that the new agreement will be “applicable to all” (in contrast to the Berlin Mandate, which explicitly excluded any new commitments for developing countries); in addition, the Durban Platform does not include any mention of the principle of “common but differentiated responsibilities and respective capabilities,” the principle of equity, the historical responsibility of developed countries, or the need for developed countries to take the lead in reducing emissions — the formulations previously used by developing countries to avoid taking emission limitation commitments.  Whether this represents a real change of heart or a tactical shift remains to be seen.  But nonetheless it suggests a very different framing of the new negotiations than the Kyoto Protocol.

In parallel with the Durban Platform decision, the Kyoto Protocol parties adopted a decision that sets the stage for the adoption next year of an amendment establishing a second commitment period under the Protocol, running from either 2013-2017 or 2013-2020.  The countries that will have emissions targets (a list that does not include Canada, Japan and Russia, which had previously announced that they would not participate in a KP second commitment period) are supposed to submit their “quantified emissions limitation and reduction objections” (i.e., their emissions targets) in the coming year, “with a view” to adopting an amendment at next year’s meeting.  The Kyoto Protocol outcomes also include a proposed amendment to add another gas (NF3) to the basket of gases addressed by Kyoto, as well as decisions dealing with land-use and forestry accounting and the Kyoto market mechanisms.  These decisions address the technical issues relating to a second commitment period, leaving only the emissions targets and time period for next year’s meeting.  To avoid any gap between the first and second commitment periods, the new commitment period will cover emissions from January 1, 2013 on, even though ratification and entry into force of the amendment will occur subsequently.

Finally, the Durban meeting tied up the two major “loose ends” from the Copenhagen/Cancun process.  First, it adopted the Governing Instrument for the new Green Climate Fund (GCF), which aims to mobilize $100 billion by 2020 for mitigation and adaptation.  The Governing Instrument establishes a Board consisting of 24 members, equally split between developed and developing countries, and designates the World Bank as the interim trustee of the fund for a period of three years.  A food fight is already emerging concerning the location of the new GCF secretariat, with many countries expressing interest.  Second, the Durban meeting adopted rules for international assessment and review (IAR) of developed country actions and international consultation and analysis (ICA) of developing country actions.  These transparency rules for developed and developing countries differ in their particulars, but both provide for review/analysis of national reports by technical experts, together with a more political  assessment/exchange of views by the parties.

Although the effectiveness of the UN climate change process in reducing emissions is subject to debate, the Durban outcome shows that the political momentum behind the process is not spent — at least to the extent that no one wants to be responsible for derailing it.

Durban, South Africa, December 8 – The one silver lining to the slow pace of the climate change negotiations is that it gives one plenty of time to attend “side events” to learn what is going on in the broader world of climate policy.  In the past couple of days, I attended side events on innovative climate finance, the “partnership for market readiness” (designed to assist developing countries in adopting market mechanisms), California’s new emissions trading program, and efforts to address non-CO2 aspects of the climate change problem (such as black carbon and HFCs).

Happily, a lot is going on (although unhappily it is not enough to achieve the goal of limiting global warming to 2 degrees).  For example, although China’s negotiating position may not have changed much, as Julian reported a few days ago, China is doing a lot domestically, including developing pilot emissions trading programs in a number of regions.  Brazil has made its international pledge to reduce emissions by more than a third (relative to business as usual) binding under its domestic law.  Australia just adopted a domestic emissions trading system.  California is in the process of finalizing the regulations for its new emissions trading system.  Financial institutions are developing new products to provide financing through the emerging carbon markets.   Efforts to regulate HFCs under the Montreal Protocol and black carbon under the Long-Range Transboundary Air Pollution Convention are ongoing.  And so forth and so on.  (I recently wrote a report for the Center for Climate and Energy Solutions (formerly the Pew Center) on climate activities in other multilateral forums that is available here.)

What is striking is the divergence between the virtual stalemate in the UN negotiating process and the progress that is happening on the ground.  Supporters of the UN process argue that, whatever its deficiencies, it provides the political impetus for many of these outside efforts to address climate change.  I think there is probably an element of truth to this view.  Many argue further that a new legally-binding agreement is necessary in order to continue to drive national action.  But there is also a counter view that the obsessive focus on legally-binding commitments distracts energy away from national and sub-national efforts, and that rather than continue to beat its head against the wall trying to develop a new treaty, the UNFCCC process should seek to play a more facilitative and less regulatory role.

Another year, another climate COP.  This year’s conference of the parties (COP)  is in Durban, South Africa.  The South Africans have provided a wonderful venue and the meeting has proceeded thus far with few of the histrionics of Copenhagen and Cancun.  But a certain weariness has crept into the proceedings, as massive numbers of people gather year after year, with little to show for their efforts.   Global emissions continue to grow (2010 set a new record) and the science of climate change becomes ever stronger (even a skeptical group at Berkeley recently concluded that climate scientists had not distorted the temperature record).  But rising temperatures have failed to thaw the international negotiating process, where progress remains glacial (at best).

This year’s meeting  has extra urgency, given the expiration of the Kyoto Protocol’s emission reduction targets next year.  African countries have pledged not to allow the Kyoto Protocol to die on African soil.  But a chain of dominoes could topple their efforts.  The European Union has said it would agree to a new commitment period under Kyoto only if the other major economies (read the United States, China and perhaps India) agree to launch a new round of negotiations to develop a treaty setting binding limits on their emissions.    The United States has said that it would be willing to go along with a new round of negotiations, but only if the mandate makes clear that a new agreement would apply symmetrically to all of the major economies.  Meanwhile, China has seemed to say that it would be willing to accept emissions targets in 2020, but that new negotiations should not begin until 2016, after a review has been completed of what has been done to date.  And India seems unwilling to go down the legally-binding route at all.  So finding an equation that accommodates all of these variables poses a significant challenge.  Many expect it to be impossible, which would make the “success” of Durban dependent on whether, at the end, the European Union caves — an outcome that one can usually bank on in the climate negotiations, but which appears less certain here.

If Durban fails to save the Kyoto Protocol, then the Rio+20 meeting in June will provide the last opportunity.   This prospect has reportedly made Brazil, in particular, extremely nervous (and hence eager to reach a deal here), since nothing would be more likely to spoil Rio+20 than injecting climate change into the meeting.

Brad Roth has sent along a link to this New York Times editorial, which begins:

If a country sinks beneath the sea, is it still a country? That is a question about which the Republic of the Marshall Islands — a Micronesian nation of 29 low-lying coral atolls — is now seeking expert legal advice. It is also a question the United States Senate might ask itself the next time it refuses to deal with climate change.

The editorial notes that while the Intergovernmental Panel on Climate Change has a “conservative” estimate of at least a 20 inch rise in sea-levels by the end of the century (excluding any effects of the possible melting of the Greenland and West Antarctic ice sheets), some studies predict a 4 to 7 foot increase. The editorial continues:

Officials in the Marshall Islands — where a 20-inch rise would drown at least one atoll — are not only thinking about the possibility of having to move entire populations but are entertaining even more existential questions: If its people have to abandon the islands, what citizenship can they claim? Will the country still have a seat at the United Nations? Who owns its fishing rights and offshore mineral resources?

The government of the Marshall Islands has asked Columbia Law professor Michael Gerrard for advice. Gerrard “notes that an island can become uninhabitable before the sea level rises above it, because even moderate storms can swamp any agricultural land and render freshwater supplies undrinkable.”

On a related note, see Duncan’s post from a couple of years ago on the Maldives.

The UN Human Rights Council adopted a resolution last week on “Human Rights and Climate Change,” in follow up to the January  report by the Office of the High Commissioner on Human Rights on the Relationship between Climate Change and Human Rights,

The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights.  The resolution notes that “climate change-related effects have a wide range of implications … for the enjoyment of human rights” and “affirms” that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.”  But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year.

I’m all in favor of letting a thousand flowers bloom in the effort to combat climate change, and can understand the appeal of human rights approaches. . .