The sea is rising? Island nations will see you in court

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If the globe keeps warming and the seas keep rising, the country of Palau could be wiped off the map. So the Pacific island is teaming up with other small island nations to fight the threat of climate change -- in court.


The countries want the International Court of Justice to offer an opinion on whether countries that pollute have a responsibility to other countries that get hurt by that pollution. Ecological damage that crosses borders could be seen as a violation of international law, a legal cudgel against climate change.

‘It is not an exaggeration to say that climate change is, for us, a matter of life and death,’ Sprent Dabwido, president of the Pacific state of Nauru, said at a climate change conference in December.

Some island nations have already begun planning to go underwater: Maldivian President Mohamed Nasheed recently told the Sydney Morning Herald that his countrymen might need to relocate to Australia as climate refugees. The president of Kiribati, another Pacific island nation, has mused that they might need to build artificial floating islands to cope. Several South Pacific islands have already disappeared.

The same fears have hit closer to home here in California, where Balboa Island, a mere four to eight feet above sea level, is faced with replacing its aging seawalls at a cost of roughly $60 million, The Times reported in December. ‘We don’t want to wait until we have a problem,’ a city engineer said.

Michael Gerrard, director of the Center for Climate Change Law at Columbia University, has been advising island nations on their legal quest: Can one country take another country to court over polluting it out of existence? He answered our questions about rising seas, shrinking islands and the law.

What would happen to these countries, legally, if they no longer had dry land?


Having inhabited land and a permanent population are usually seen as prerequisites to statehood. There have sometimes been governments in exile, but due to political and military events, not natural causes. There is already talk of creating a new kind of legal entity -- the “nation ex situ,” that is, a state that still has its political identity but no surviving homeland.

Has a country ever ceased to exist because of natural causes?

No. Some islands have been rendered uninhabitable because of volcanic activity, but the complete submersion of a country would be an unprecedented event in human history. The only precedent is the mythical Atlantis.

Lay out the basic argument for us: Who is responsible and what do they owe these island nations?

The basic argument is that under international law, no nation may cause pollution that causes damage in other nations. Thus the major emitting countries should reduce their greenhouse gas emissions so as to reduce the damage that sea level rise and other climate impacts cause to the island nations.

If everything went perfectly, what would you want to see happen as a result of this case?


The International Court of Justice would issue an opinion that the major emitting nations have an obligation to reduce their greenhouse gas emissions. This would not directly compel the nations to reduce their emissions, but it would be relevant in the future international negotiations on climate change.

Even if the case succeeds, can carbon emissions be stopped fast enough to save these islands?

If current emission trends continue, the small island nations are likely to be submerged eventually; it will take a major international effort to prevent that from happening, though the time may be extended.

So if sea levels do continue to rise, what might these countries do?

It may be possible to build houses on stilts and take other adaptation measures that will allow populations to stay for longer periods of time. But eventually, migration to other countries may be needed.

(For more on rising sea levels, you can explore the National Oceanic and Atmospheric Administration map of sea level trends or watch this video from the Manus Tumbuna Save Assn., which interviews people in Papua New Guinea about how rising seas are affecting their lives.)


[For the record, 10:04 a.m. Feb. 7: A previous version of this post used an incorrect spelling of Columbia University.]


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