Climate Change as the Ultimate Test for the Framework Convention Approach

1/5 Have the ultimate arguments and stakes really changed much since Dr Mahatir’s talk just before the 1992 Rio Conference? Or does this reach back further to the “Limits to Growth” argument of the 1970s, now recast as “degrowth,” or was Kahn more correct in arguing that technology would set things right, see Rathi, “These Folks Think that Eternal Economic Growth Will Lead to Unstoppable Climate Change” (Bloomberg, 08/18/20)? How would you analyze this, realizing that you are now looking at discussions stretching over almost 50 years?

2/5 What do you make as a lawyer of the progression you see from the 1992 UNFCCC, through the 1997 Kyoto Protocol (effective 2005), to the 2015 Paris Agreement, both of which the US did not ratify, or withdrew from? Why has this not worked like the 1987 Montreal Protocol on Ozone Depleting Substances in its time? Is the problem that politicians like Dr. Mahatir have simply set expectations too high in terms of the developing world still seeking economic growth, is the problem that we need more Charlestons and Miamis domestically to reinforce the idea that this will also bring major problems for the US without regard to the developing world, is the problem that we really need a package deal like the LOS Convention because the framework approach provides insufficient incentives, is the problem that distributive justice on both the international and domestic levels is simply doomed to failure, or what? Can you at least analyze what seem to be the sticking points from the lawyer’s perspective?

If you are the international lawyer, how would you describe the options to your principal (presumably a domestic politician appearing in an international negotiation)? What seems to be the ultimate problem, as we seemingly slowly transition away from mitigation to adaptation in climate change terms? You might start by focusing on specific elements and approaches incorporated into the Kyoto Protocol and Paris Agreement, asking how could we use them now? (For example, note how “international” climate remediation schemes like tropical forest preservation are linked to “domestic” schemes like EU carbon off-sets.) They already achieved sufficient acceptance to make it into international agreements, so the idea is presumably to incorporate the better ideas people have already agreed to, while we look for further improvements and, hopefully, some eventual consensus.

3/5 Let us ask for at least a preliminary report on the Charleston issues, to see where people are roughly a month into the problem, and to exchange ideas.

4/5 We shall assign the following problem to groups of students, to see what answers they suggest. Let’s identify as a policy question the difficult issue of how to deal legally with so-called “climate refugees,” now that we are seemingly transitioning increasingly towards adaptation and away from mitigation considerations in the climate change context. I have mentioned this issue indirectly in class a couple of times in conjunction with the idea that despite climate change theoretically creating problems for all countries, assuming the scientific projections are correct, the effects of climate change are projected to be much greater closer to the equator in the existing equatorial or tropical zones, as opposed to temperate areas closer to the North or South Poles. There is a relatively minor problem linked with the idea that a small number of South Pacific nations with very small populations may actually be submerged completely due to anticipated sea level rise. That permanently disappearing island homeland is a sad story for 30,000-50,000 inhabitants, but the real problem relates more to potential displacements of much larger numbers of people generally in coastal areas of large countries like the US due to sea level rise, linked with potential displacements inland related more to failure of agriculture due to drought conditions, etc.

Understand that the traditional law of refugees was developed to address mostly “political” refugees with a well-founded fear of persecution and threats to their lives in their country of origin. The common examples would have been non-communist ”White” Russians who rejected “Red” Bolshevism in the 1920s-30s (and went into exile in places like Paris), or Jews fleeing National Socialism in Germany and Austria in the 1930s-40s (many of whom were rejected as refugees, at least until word started leaking out about extermination camps during World War II). Those were the original groups targeted by public international refugee law formulated post-World War II against a background of millions of so-called displaced persons in Europe, although it has been subsequently extended sometimes in domestic law to broader targets of social violence like domestic violence or anti-gay violence (anti-LGBTQ, etc.). There is not a “right” answer to who should enjoy protected legal status as a refugee as opposed to being treated as unprotected “economic migrant,” particularly when recourse is made to human rights law like the Universal Declaration of Human Rights post-World War II as touchstone for refugee law? But we need to recognize that the numbers are climbing already, and are likely to increase significantly if the natural scientists are right about climate change, so we should make a conscious (policy) decision how to deal with the issues. Is this just distributive justice again in a new setting, after the fact, to the extent you are talking about potential climate refugees from hotter equatorial or lower coastal areas, that we have already established probably fare worse than temperate areas some distance above sea level?

Modern refugee law exists mostly under the 1951 Convention Relating to the Status of Refugees, as amended by its1967 Protocol, concerning which legal principles you may consult UNHCR, A guide to international refugee protection and building state asylum systems (Handbook for Parliamentarians No 27, 2017). Having said all of that, the more recent politics of modern refugee law have not been easy to the extent the combination of Syrians, Afghans, etc. from the Middle East and Central Asia, together with the North Africans crossing the Mediterranean to land mostly in Italy, have created enormous political stresses in Europe, while you have seen the concerns in the US political narrative already presented by the “march” of 5,000-6,000 mostly Central American families endeavoring to escape violence in their home countries.

The refugees coming in from Syria and Afghanistan arguably look like traditional refugees fleeing war and violence. Meanwhile, a case can be made that at least some of the Africans fleeing to Europe might be fairly described in plain English as climate refugees. This is because the collapse of order and violence in their home countries relates to extended droughts destroying the livelihoods of smallholder farmers and villages on the edges of the Sahara desert, indirectly spawning violent groups like Boko Haram in Northern Nigeria, Niger and Mali, etc. (With the operative question being whether such droughts should be deemed products of climate change, much as the natural scientists are starting to refer to events like the California droughts and resulting wildfires as being products of climate change.) That is why the US Armed Forces have considered climate change a national security threat, because if it triggers resource competition and serious social dislocations, you may wind up with a violent social movement like Boko Haram in Africa.

At the same time, if you read the Fourth National Climate Assessment for the US, it predicts (potentially 13 million) Americans being displaced over time from coastal areas by rising sea levels, etc. These are the coastal people perhaps poor enough, or unlucky enough, not to live in a place like the Charleston Peninsula, deemed valuable enough on some scale to justify heavy investments in adaptation. The claim is that the US is simply not prepared for what would be designated in refugee law terminology “internally displaced persons,” meaning Americans moving within their home country, rather than across international borders. So if the Fourth National Assessment projects millions of Americans potentially being displaced from coastal areas (perhaps 3-4% of the total population), it seems likely there will be similar or even larger displacements in Central and South America, whose numbers would seemingly make the recent 5,000-6,000 “march” of Central Americans northward look puny by comparison. And in the American context, thus far there have been only limited experiments with support like resettlement funds, so it may be the case that there will eventually be a significant number of uncompensated forced evacuations.

5/5 So what to do about this problem looking forward on timelines like 2035-2050-2100? Current law regards claimed “refugees” moving for economic reasons like flooded houses or drought-parced fields merely to be “economic migrants” with no claim to refugee status entitling them to public support, and public discussions of climate refugees are commonly limited to the relatively small number of people occupying spaces like small South Pacific islands which are forecast to disappear completely beneath the waves (Nauru, etc.). But the mooted African example of Boko Haram is linked with claims that violence may be the result of worsening water availability, agricultural crop failures, and similar problems. The US Armed Forces themselves have designated climate change as a security threat, presumably because of the potential for violence, etc., raising the issue whether there would be enough climate change-related violence to satisfy the traditional refugee law standard. (So it is not just a human rights issue for declared progressives, because like the older ATCA cases you could theoretically cast and recast facts to reflect either traditional gross human rights violations– extrajudicial killings, torture, etc., versus related, less violent claims like forced displacement of indigenous peoples, or another level down habitat destruction interfering with indigenous peoples’ way of life.) Then there are problems evaluating legal or moral claims based upon considerations linking traditional precedents like Trail Smelter with ideas about joint and several liability being applied to carbon generation.

So please articulate the legal and policy case(s) for and against (NIMBY) recognizing “climate refugees,” so that you make a reasoned decision for whatever result you would favor. Please take a concrete position in the end, which you can then defend, or perhaps split your group to come up with differing teams presenting the arguments for and against. This is really a case where there is at best an appreciation of the coming problems rather than much real law, but climate science indicates that we shall face a lot more of these people, and sooner, than we realize, so in governance terms what should we do with them? Even domestically, it seems there will be too many to just declare them to be FEMA’s temporary concern.