GUJARAT NATTIONAL LAW UNIVERSITY

Climate Change and

Law
Environmental Law Project
Submitted By
V.Mrudula
12B154

Submitted to: Ms. Saira Gori

Climate Change and Law

TABLE OF CONTENTS

1. Introduction.......................................................................................................................3
2. Climate Change and Law...........................................4
3. Small Islands and their Problems.......6
4. Legal Remedies......9
Conclusion....................................................................................................................13

Climate Change and Law

INTRODUCTION
While all around the globe called earth, seasons have been shifting, temperatures are rising
and sea levels are increasing, our planet dutifully still supplies us and all other living things
with air, water, food and safe places to live. But it has come to be observed by the scientific
Community that Glaciers have shrunk, ice on rivers and lakes is breaking up earlier, plant and
animal ranges have shifted and trees are flowering sooner. Human activities such as burning
of fossil fuels like coal and oil the clearing of land for agriculture, industry, has increased the
concentration of atmospheric carbon dioxide (CO2) and other greenhouse gases1.

Loss of livelihoods, coastal settlements, infrastructure, ecosystem services, and

economic stability.

Reduced biodiversity, fisheries abundance, and coastal protection by coral reefs due to
heat-induced mass coral bleaching and mortality increases, exacerbated by ocean
acidification, e.g., in coastal boundary systems and sub-tropical gyres.

Wildfire-induced loss of ecosystem integrity, property loss, human morbidity, and

mortality as a result of increased drying trend and temperature trend.

Increased frequency and intensity of flood damage to infrastructure and settlements.

Significant reduction in water availability from river abstraction and from

groundwater resources, combined with increased water demand and with reduced
water drainage and runoff as a result of increased evaporative demand

Reduced crop productivity associated with heat and drought stress, with strong
adverse effects on regional, national, and household livelihood and food security,
also given increased pest and disease damage and flood impacts on food system
infrastructure.

The IPCC notes how surface temperature has oscillated for the past few million years
following glacial cycles, where mean global temperatures changed by between 4 and 7
1 Naomi Oreskes, "The Scientific Consensus on Climate Change," Science 3 December
2004: Vol. 306 no. 5702 p. 1686 DOI: 10.1126/science.1103618

Climate Change and Law

degrees Celsius.2 This in turn has influenced sea level, which rises and lowers according to
these variations in temperature. The IPCC adds that most of the observed increase in
global average temperatures since the mid-twentieth century is very likely due to the
observed increase in anthropogenic greenhouse concentrations.3
The effects of Climate change are wide ranged, but we narrow down its scope to the Rising
sea levels and Drought, addressing questions such as who is responsible for the people who
are victims of the climate changed caused by the human activities towards a mindless
development, and how the legal system can be used to restore justice in this regard.

Climate change and Law

With regard to climate change and its legal implications under the ambit of international
environmental law and general international law, dispute settlement paradoxically, seems to
hold both, a central, and a peripheral Position. In a non-hierarchical and largely consensual
system of law, it does not have the same role, as in domestic legal systems. The role of courts,
tribunals and other formal and quasi-formal dispute settlement procedures are perceived to be
supplementary to other forms of compliance-generation in international law. Thus the
ambiguity around a formal dispute settlement, with respect to laws pertaining to climate
change, creates a tension between the nominal prominence given to formal means of dispute
settlement as traditionally established, and their limited practicality. Article 14 of The United
Nations Framework Convention on Climate Change (UNFCCC), states that the Parties
concerned shall seek a settlement of the dispute through negotiation or any other peaceful
means of their own choice.

It also provides for a process of formal adjudication or

arbitration for the States that elect to use such mechanisms and, in the absence thereof, a
system of compulsory non-binding conciliation. Article 14 has not yet been relied upon as a
jurisdictional basis for action. But dispute settlement is not merely about reliance on formal
dispute settlement mechanisms. The fact that Article 14 defines disputes as matters
concerning the interpretation or application of the Convention indicates that it only
superficially grazes upon the potential of dispute settlement as regards climate change. In that
2 Ibid
3 N. L. Bindoff, et. al., Climate Change 2007: The Physical Science Basis.
Contribution of Working Group I to the 4th Assessment Report of the
Intergovernmental Panel on Climate Change, Cambridge University Press, 2007.
4

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regard the focus on the formal mechanisms under the climate change regime while ignoring
the nexus between dispute settlement and non-compliance, 4 but also fails to connect the role
of dispute settlement processes outside of the climate change regime, and international law.
However it must be noticed that there is an increase in domestic litigation in matters of
climate change. Thus, the evolution of Climate Change Law Jurisprudence depends upon the
capacity and willingness of the local courts to engage with global issues. But Despite a few
cases and is only considered as a sub issue alongside other important disputed questions of
law.
In the ambit of municipal law, climate change can provide either the subject matter or merely
be the broader context for such disputes. Its relevance is principally determined by the legal
rules that frame the dispute within that particular legal system. EU law, for instance, would
not consider matters of climate change in a similar way as human rights. By that logic
climate change law does not even exist.

Another Issue In this area is whether an advisory opinion that is sought on various aspects of
climate change from the International Court of Justice contributes to the jurisprudence of
Climate Change Law. Several developing countries have indeed considered the merits of this
approach, hoping to generate public attention towards the issue. But even thought it did
receive the attention, it is considered as a separate initiative, when it came to be a feature of
dispute settlement. Nevertheless, the 2011 Advisory Opinion of the International Tribunal for
the Law of the Sea5 on the governance of the seabed made more contribution than the
International Court of Justice and has proved that general statements and clarifications of law
can go a long way in providing a clearer legal framework, and can either directly or indirectly
be referred to in the future disputes. An advisory opinion on damages from climate change by

4 Hari Osofsky, Climate Change and Dispute Resolution Processes in Rosemary

Rayfuse and Shirley V Scott (eds), International Law in the Era of Climate Change
(Edward Elgar 2012).
5 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area, Advisory Opinion, Seabed Disputes Chamber of the International
Tribunal for the Law of the Sea (1 February 2011)
http://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Adv_Op_010211_eng.pd
f.
(last accessed 20 September 2015).

Climate Change and Law

the International Court of Justice, proposed by small island States, and others, would
complement and not conflict with efforts to create a negotiated international climate regime.6
But despite all this activity, This area is still very undeveloped, and this can be concluded
from the fact, that Article 14 is an unduly formalistic, if not symbolic, inclusion in the text,
the practical utility of which remains untested as well as contradicting, the more consensual,
or alternative approaches to dispute settlement, with more emphasis on the non-compliance
mechanism.
This dichotomous understanding of the relevance and irrelevance of dispute settlement to
climate change reflects a broader assessment of the issue when considered in the light of
international environmental law. Though there has been a notable use of dispute settlement
procedures to litigate environmental matters in the past decade7 .
Climate change is yet to be the subject of a dispute before an international adjudicatory body.
There are significant political and economic considerations that would influence any States
litigation strategy, as well as the legal difficulties that such litigation would have to
overcome.8
Problems of the small Islands
There is growing evidence that climate change-related impacts like rising sea levels, higher
storm surges, and changing rainfall patterns are exacerbating existing vulnerabilities like
poverty, isolation, and resource scarcity, and may eventually leave small island states
uninhabitable, causing the displacement of entire populations. Among those particularly at
risk are low-lying coral atoll states like Kiribati, Tuvalu, and the Republic of the Marshall
Islands in the Pacific Ocean, and the Republic of the Maldives in the Indian Ocean. Small
6 Press Conference on request for International Court of Justice Advisory Opinion on
Climate Change (3 February)
http://www.un.org/News/briefings/docs/2012/120203_ICJ.doc.htm l accessed 20 Sept
2015.

7 Romano (n 72) 1055 and Malgosia Fitzmaurice, The International Court of Justice and
Environmental Disputes in French and others .

8 Hari Osofsky, Climate Change and Dispute Resolution Processes in Rosemary Rayfuse
andShirley V Scott (eds), International Law in the Era of Climate Change (Edward Elgar
2012).

Climate Change and Law

island states have been active participants and leaders in climate change negotiations over
the past two decades. Often acting collectively through the Alliance of Small Island States
(AOSIS), they have drawn regional and international attention to the impacts of climate
change on their territories and populations, adopting the Male Declaration on the Human
Dimension of Global Climate Change 9,initiating a Human Rights Council Resolution on
Human Rights and Climate Change10, contributing to the adoption of a General Assembly
Resolution on the security implications of climate change 11, proposing that states request an
Advisory Opinion from the International Court of Justice on state responsibility for transboundary climate change harms12, and contributing to expert forums on climate change and
displacement.13 The edited collection under review marks a fruitful collaboration between a
small island state and the academic community.
Speaking before the Security Council in 2011, for example, UN High Commissioner for
Refugees Antnio Guterres asked, where will these people go if and when it becomes
impossible for them to remain in their own country?... How will they retain, their national
identity? Is the world ready to accept the idea of a state without a territory? 14
9 Male Declaration on the Human Dimension of Global Climate Change, 14 Nov.
2007, available at: www.ciel.org/Publications/Male_Declaration_Nov07.pdf (last
accessed 20 Sept 2015).
10 Human Rights Council Res. 10/4: Human Rights and Climate Change, 25 Mar. 2009.
See also HumanRights Council Res. 7/23: Human Rights and Climate Change, 28 Mar.
2008.

11 GA Res. 63/281, 11 June 2009.

12 See, e.g., Palau Seeks UN World Court Opinion on Damage Caused by Greenhouse
Gases, UN NewsCentre (22 Sept. 2011).

13 See, e.g., UNHCR Expert Roundtable on Climate Change and Displacement, Summary
of Deliberationson Climate Change and Displacement (2225 Feb. 2011); McAdam,
Pacific Islanders Lead Nansen
Initiative Consultation on Cross-Border Displacement from Natural Disasters and Climate
Change,
Brookings: Up Front (30 May 2013).

14 Cited in Singh, Disaster Prevention Key to Stopping Climate Displacement, UNISDR

Secretariat (19 Jan.2012).

Climate Change and Law

How can small island states maintain their territorial and maritime claims in the
face of rising sea levels, and at what point will they cease to be recognized as states

under international law?

That are the possible solutions to the issue of climate change-related displacement,
taking into account the constraints imposed by national immigration policies and
political will. Some contributors propose the adoption of new legal norms, while

others rely on existing legal frameworks.

Whether there are any legal remedies available to these states or their citizens. Can
anyone be held (legally or morally) responsible for the displacement of small island
populations?

The question of what the status of an island State would be if its entire territory were to be
submerged is unclear. This is an essential problem, as it would not only determine the island
States ability to continue utilizing the resources that had previously been within its
Exclusive Economic Zone (EEZ) a sea zone in which a State has special rights over the
exploration and use of marine resources 15 but also from the point of view of preserving
the cultural identity of its citizens.
Inhabitants of island States have a strong connection to their islands, and even as some
appear resigned to the need to leave their islands, they are hoping to periodically return to
them in order to have a connection to their heritage. Their right to dispose of their own
wealth would also be violated, a right provided by Art. 1(2) of the International Covenant
on Civil and Political Rights: In no case may a people be deprived of its own means of
subsistence.
The loss of all the territory of a State would result in the deprivation of a means of
subsistence for the population. In addition, if their governments do not make arrangements
to keep their institutions working, the population could become stateless.
Indeed, it could be argued that atoll island States and cultures can never be satisfactorily
compensated for the loss of their physical bases. The IPCC notes how the populations on
many small islands have long developed and maintained unique lifestyles, adapted to their
natural environment.

15 (see Part 5 of the United Nations Convention on the Law of the Sea; UNCLOS)
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Climate Change and Law

Governments-in-exile have frequently been recognized by their allies as governments of an
enemy-occupied State during the course of the conflict and pending its outcome. 16 The
possibility exists that in the case of the disappearance of an Island State a government-in
exile could be created. However, governments-in-exile normally exist on the assumption of
restoring power in their own country, and until recently have been more connected to
situations of international conflicts But a government-in-exile of an Island State which is
about to disappear is quite tricky, because It cannot expect to recover its sovereignty over
the islands, unless they were to re-emerge again at a later date, even centuries later.
Although these possibilities and time-scales appear pointless in the mind of the lifetime of
individual human beings, several nations on Earth (such as China and Egypt) have a history
that spans millennia. Indeed, it could be argued that when Britain asked China for a 99-year
lease on what is now called the New Territories, the British Government were not thinking
that the lease would one day come up. Eventually, 99 years later the United Kingdom was
forced to return Hong Kong to China, highlighting how what appears like a very long time
in the mind of a human being is but a chapter in the long history of certain nations.
Similarly, territories that are under threat of disappearing could one day re-emerge, and the
legal implications of current treaties could be called into effect centuries or millennia later.17
The question is whether the island could be recovered by the old sovereign power or be
considered as Nobodys Island. It appears right that if the islands were to emerge again due
to a lowering of the sea level they should belong to the descendants of the people who once
lived there.18This, however, could depend on the continuous existence of a sovereign entity
that defends the interests of the people who once lived on the islands, highlighting the
Importance of such a hypothetical government-in-exile, which could have similar
functions to the de-territorialised state.19 . A de-territorialised state would consist of a
16 J. Crawford. The creation of states in international law, Oxford University
Press, 2006.
17 Atoll Island States and Climate Change: Sovereignty Implications, Lilian
Yamamoto Miguel Esteban, October 2011.
18 Yamamoto, L. and Esteban, M. (2009), Sovereignty issues of the
disappearance of Island States, Ocean & Coastal Management Journal.
Doi:10.1016.
19 R. Rayfuse, W(h)ither Tuvalu? International Law and Disappearing States, Uni.
Of New South Wales Faculty of Law Research Series, Paper 9, Berkeley Electronic
9

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government entity that would continue to represent the rights of its citizens at the
international level and vis- vis their new host state or states. It would manage the state's
maritime zones and other assets for the benefit of its citizens wherever they might be
located. This way, displaced populations would be able to finance their future in a new
country, instead of depending on goodwill alone.
Legal Remedies for displaced Persons
As we have seen, a strong hole legal remedies are quite vague in this area, however we
could discuss the relevant provisions to that effect. The 1992 UN Framework Convention
on Climate Change (UNFCCC) mentions neither the displacement to be caused by climate
change nor the human rights dimensions of global warming.20
Likewise, the 1951 Refugee Convention does not recognise the particular rights of climate
change displaced persons, nor do any of the major human rights treaties. This lack of
inclusion of this specific group of climate change displaced persons has led some to propose
the amendment of the 1951 Refugee Convention and 1967 Protocol to expand the
protection of these instruments to include climate change displaced persons. This initiative
does not appear likely at the moment to have the political support required to amend the
Refugee Convention and Protocol, Another proposal for a Protocol on the Recognition,
Protection and Resettlement of Climate Refugees to the UNFCCC, 21 has also been
developed as has a specific convention detailing the rights of those displaced due to climate
Press (2009).
20 The closest it comes to recognising this particular manifestation of rising seas
and other consequences of climate change is the following sections: 4(1)(d) All
Parties, taking into account their common but differentiated responsibilities and
their specific national and regional development priorities, objectives and
circumstances, shall:(d) Promote sustainable management, and promote and
cooperate in the conservation and enhancement, as appropriate, of sinks and
reservoirs of all greenhouse gases not controlled by the Montreal Protocol,
including biomass, forests and oceans as well as other terrestrial, coastal and
marine ecosystems.(f) Takes climate change considerations into account, to
the extent feasible, in their relevant social, economic and environmental policies
and actions, and employ appropriate methods, for example impact assessments,
formulated and determined nationally, with a view to minimizing adverse effects
on the economy, on public health and on the quality of the environment, of
projects or measures undertaken by them to mitigate or adapt to climate
change.
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change.22 None of these pertinent and worthy initiatives, however, are likely to be approved
any time soon.
What Are housing, land and property (HLP) Rights?
In terms of HLP rights protections, climate change displaced persons for the moment at
least will need to rely on the rather vast body of international human rights law (and
international law more generally) and the domestic human rights provisions found within
the national legal frameworks of all nations as a basis for claiming and asserting their HLP
rights.23 While the implementation of human rights law remains weak in many countries,
viewed in its entirety the normative framework offered by human rights law may prove to
be more inclusive in terms of protecting the general human rights and housing, land and
property rights of climate change displaced persons than many will have imagined.
Combining the sentiments of the Universal Declaration on Human Rights (1948), the
International Covenant on Civil and Political Rights (1966), the International Covenant on
Economic, Social and Cultural Rights (1966) and a range of other treaties, together with a
vast array of equally important instruments and interpretive standards such as the UN
Committee on Economic, Social and Cultural Rights General Comment No. 4 on the Right
to Adequate Housing (1991), General Comment No. 7 on Forced Evictions (1997), the UN
Guiding Principles on the Rights of Internally Displaced Persons (1998), the UN Pinheiro
Principles on Housing and Property Restitution for Refugees and Displaced Persons (2005)
and many others, reveals a very considerable body of international human rights laws and
standards which can and should be used by Governments.
In essence, HLP law constitutes a composite of the following existing rights found within
international human rights law:
21 See: for instance: Biermann, F. and Boas, I. Protecting Climate Refugees: The
Case for a Global Protocol in Environment (vol. 50, number 6), pp. 9-16, 2008.
22 See, David Hodgkinson, Tess Burton, Simon Dawkins, Lucy Young and Alex
Coram, Towards a Convention for Persons Displaced by Climate Change: Key
Issues and Preliminary Responses, 2008 (available at:
http://www.ias.uwa.edu.au/new-critic/eight/hodgkinson
23 It is important to note, at the same time, that the UN General Assembly while
avoiding direct recognition of the HLP rights of Climate change displaced
persons, has recently addressed the explicit links between climate change and
international peace and security in resolution 63/281 Climate change and its
possible security implications, 11 June 2009.
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The right to adequate housing and rights in housing

The right to security of tenure
The right not to be arbitrarily evicted
The right to land and rights in land
The right to property and the peaceful enjoyment of possessions
The right to privacy and respect for the home
The right to HLP restitution/compensation following forced displacement
The right to freedom of movement and to choose ones residence
The right to political participation
The right to information
The right to be free from discrimination
The right to equality of treatment and access
The right to water
The right to energy

In terms of when displacement due to climate change actually takes place, this is likely to
manifest in essentially five primary ways. These are:
1. Temporary Displacement - People who for generally short periods of time are
temporarily displaced due to a climate event such as a hurricane, flood, storm surge or
tsunami but who are able to return to their homes once the event has ceased, such as during
a larger than usual King Tide in Vanuatu;
2. Permanent Local Displacement - People who are displaced locally, but on a permanent
basis due to irreversible changes to their living environment, in particular sea-level rise,
coastal inundation and the lack of clean water and increasingly frequent storm surges. This
form of displacement implies that localised displacement solutions will be available to this
group of forced migrants, such as higher ground in the same locality. This would include
dwellers along Bangladeshs coastline who flee to higher ground in the immediate vicinity;
3. Permanent Internal Displacement - People who are displaced inside the border of their
country, but far enough away from their places of original residence that return is unlikely
or impossible. This would concern a family displaced from one region of a country to
another region in country, for instance, from a coastline to an inland town or city, such as
the ongoing resettlement from the Carteret Islands to the larger island of Bougainville in
Papua New Guinea.
4. Permanent Regional Displacement - People for whom displacement solutions within their
own countries are non-existent or inaccessible and who migrate to nearby countries willing
to offer permanent protection. This would involve, for instance, a citizen of Tokelau or
Tuvalu migrating on a permanent basis to New Zealand.
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5. Permanent Inter-Continental Displacement - People for whom no national or regional
displacement solutions are available, and who are able to receive the protection of another
State in another continent, such as a Maldivian who migrates to London.
Each of these five categories will have different policy and legal implications for
Governments, the people concerned and whatever international agencies that may be
assigned to assist climate change displaced persons to find durable solutions to their plight.
Such responses, which can initially be understood in terms of short- and long-term options,
have important ramifications for those affected and for those involved in ameliorating the
emerging displacement crisis caused by climate change.

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CONCLUSON
In conclusion, while there is much the legal uncertainty surrounding the obligation of one
State to accommodate, the lack of strategic willingness is an equally relevant issue. Why
should they? The de-territorialized state and the state they take refuge in must come to
terms with how they will benefit each other and evolve laws to assure the same.
The concept of a de-territorialised state, which could become a key element to the
preservation of the interests of Island States under the current United Nation Convention on
the Law of the Sea (UNCLOS), that would allow these States to survive, in some form, the
disappearance of their territory, preserve their identity and culture.
The accordance of such a status could be essential in order to and major emitters of
greenhouse gas could face a moral obligation to protect those communities, as they are very
likely to be the ones responsible for the increased pace in sea level rise.
The victims of forced climate displacement could also be pursuing litigation at the national,
regional and international levels in the pursuit of remedial action in response to their
displacement. While it is by all means uncertain that such avenues will provide residential
justice to those presenting such claims, cases of this sort may generate public attention
leading to eventual policy and legal changes that benefit (or do not, as the case may be)
climate change displaced persons. The Inuit Case (2005) at the Inter-American Commission
on Human Rights24 sought to place blame on the United States for causing global warming,
which in turn lead to violations of the rights of the Inuit people. Some of the rights alleged
to have been violated included central HLP rights such as the right to use and enjoy the
lands they have traditionally occupied, to use and enjoy their personal property and rights to
residence, movement and inviolability of the home. Although this case was never actually
adjudicated, it did receive considerable media attention that led to ever vigorous debates as
to the origins of many of the consequences of climate change. This case shows that
litigation strategies may be of possible interest to climate change displaced persons to make
certain points to the broader public, but it equally reveals the remedial shortcomings of
cases of this nature. At the same time, new cases filed with the specific intent of
strengthening the HLP rights position of climate change displaced persons may be
24 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, submitted by Sheila WattCloutier, with the Support of the Inuit
Circumpolar Conference, on Behalf of All Inuit of the Arctic Regions of the United
States and Canada (7 December 2005)
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considerably more utility, and the idea of developing broader HLP climate litigation
strategies towards this end has definite merit.

15