By Abiola Inniss LLB,LLM,ACIArb
“The field of law has, in many ways, been the poor relation in the world-wide effort to deliver a cleaner, healthier and ultimately fairer world. We have over 500 international and regional agreements, treaties and deals covering everything from the protection of the ozone layer to the conservation of the oceans and seas. Almost all, if not all, countries have national environmental laws too. But unless these are complied with, unless they are enforced, then they are little more than symbols, tokens, paper tigers.” Klaus Töpfer, Executive Director of the United Nations Environment Programme, 2002.
This statement, made in 2002 is even more critical now with the deleterious effects of global warming and the changing climate. While all this can seem cliché, the real consequences of this environmental debacle on the legal rights of the affected populace are as yet hardly appreciated in the Caribbean. There is little discussion of the problems of international law, human rights law, and even less of the emerging areas of environmental migration and its attendant legal field and possible regulatory framework. Within International law the issues of statehood and statelessness become a real problem in the advent of rising sea levels and the consequential displacement of populations. The awful question of what happens at law if a country disappears under water must be answered in International law; does it retain its statehood? Does it keep its United Nations seat? Who controls its offshore mineral rights, its fish, its airspace and shipping lanes? The law is premised on the idea that countries’ coastlines are a constant and while this has been the reality for centuries with exceptions made for naturally occurring phenomena such as volcanic eruptions which may expand and change landforms, the wholesale reclamation of land by the sea has not until now, posed such large-scale problems for humanity and at law. The Caribbean has experienced the displacement of population in the case of the volcanic eruptions in Montserrat which caused an entire half of a country to disappear and disrupted its functioning as a nation, yet the issue of citizenship in an environmental migration context did not arise since Montserrat retained its status as a UK protectorate and its citizens were subsumed within the United Kingdom. This situation provided an instance of environmental migration and allowed the Caribbean to gauge the devastating effects of the reclamation of land by natural phenomena. The case of the 2010 Haiti earthquake, while tragic in every sense, created more issues of internal displacement and internal governance and not of large scale environmental refugee status problems where millions of displaced people sought refuge in other countries as a consequence of having nowhere to go.
While efforts are being made to mitigate the effects of climate change it must be recognized that there continues to be noticeable physical change created by the rising sea levels. Countries which rely on the principles and laws which create maritime exclusive economic zones will have to begin considering what the consequences will be at law should these coastlines recede, since these zones are measured from the countries’ coastlines. In other parts of the world, the Carteret islanders of Papua New Guinea are anticipated to be some of the world’s first climate refugees since their lands are expected to be underwater by 2015 and its mission to the United Nations has announced its plan to evacuate its two thousand inhabitants to another of its islands. Even more significant however, is the estimation by the International Organization for Migration which projects that rising sea levels, salt water intrusion and accelerated coastal erosion could lead to two hundred million climate refugees worldwide by 2050. The status and rights of displaced persons provide emotional foliage for the issues of the real legal problems of statehood and all the technical problems of a disappearing country. In the history of the world, countries have ceased to exist through war, occupation and state secession; the possibility of disappearance through climate change and the finality of such an event will change the way that International law and municipal law will frame its theories of nation status since the premise of non shifting coastlines is now proving inaccurate. The island states and countries of the Caribbean with low lying coastlines will need to engage in the exploration of the legal scholarship surrounding these issues while observing the debates taking place in other parts of the world. The discussions surrounding climate change have focused for most part on strategies to reduce environmental damage with the assumption that all will be well should these strategies work out, and with the expectation that they will. The reality of the Caribbean nations however, is that the vexing legal issues of water, land, migration and citizenship must be addressed and the question of whether a national of a Caribbean country who is displaced as a result of climate change may be subsumed into another Caribbean country by virtue of Caribbean citizenship and, whether the sinking coastline will be continued to be measured from the point of its origination underwater for the purpose of maintaining the exclusive economic zones.
The field of law provides the necessary reference point , the framework and the intellectual matter to formulate answers to many issues which dog human existence and life in the Caribbean ,and it is paramount that it be put to work to fulfill its potential in creating a useful, “fairer, ultimately healthier, cleaner world”. Concurrently, the national laws, where they exist must be enforced and the conventions revisited to ensure a sensible, modern approach to the issues of climate change and law.