Drowning nations disappointed with outcome of U.N. climate summit may have one move left: Lawsuits

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For the Chagossians, the island of Diego Garcia became a paradise lost. In the late 1960s, Britain began forcibly removing the inhabitants of the Indian Ocean atoll — most of them the descendants of enslaved people and laborers — to make way for a U.S. military base. The expelled Chagossians, who were suing for restitution until today, would live as second-class citizens away from their stunning turquoise beaches.

After the middling results of COP26 — the U.N. climate summit in Glasgow, Scotland — the world may be doing to the residents of small island states what British soldiers did to the Chagossians: sentencing them to forced exile. Island leaders claim that the half-promises to reduce emissions and slow down the process of removing fossil fuels from the energy grids are effectively telling their people they will be exiled.

“Phasing ‘down’ coal? “Really?” Gaston Browne (prime minister of Antigua-Barbuda), an island nation between the Atlantic Ocean ,and the Caribbean Sea, told me this week by telephone. This should have been about phasing in. Their language is a game to the system. For us in the Caribbean, in the Pacific Ocean, this is imperiling our very existence.”

Facing the prospect of unlivable futures, Browne and other island leaders are moving to do what the Chagossians did: Sue.

At the Paris climate summit in 2015, large emitters succeeded in shifting the legal conversation away from “compensation” for climate-related loss and damage in heavily impacted states, and toward the notion of voluntary aid. They have been slow to provide even this — and nations are only vaguely willing to begin a dialogue on the matter.

Now, a group of frustrated island states have come to the conclusion that the time has come to play less nice. Antigua, Barbuda, and Scotland signed an agreement with Tuvalu recently added by Palau. This new deal aims to find legal tools to force large emitters to pay the price for destruction of island states.

Their legal avenues are challenging, but not closed. Their legal options are not closed. They can seek an opinion from the International Court of Justice on the possibility of nations being held responsible for the effects of their emission on others. But referral to the court requires the support of a United Nations body such as the General Assembly — a hurdle island states tried and failed to scale in 2012, in part due to fears that a court decision could muddy the waters at future climate talks. Vanuatu, another vulnerable island nation, is making a new bid for an ICJ opinion now. Another option could be sidestepping the assembly and seeking an opinion from the International Tribunal for the Law of the Sea in Hamburg, established by a U.N. convention in 1982.

Though not legally binding, an advisory opinion from either tribunal could be used as leverage both in climate negotiations and further legal challenges in domestic or international courts.

Payam Akhavan, legal counsel for the newly formed Commission of Small Island States on Climate Change and International Law, summed up the objective this way: “You pollute, you pay.”

“There may have been a time in the 1980s when we didn’t know what the consequences were of global warming,” he said. We now know. And it’s inflicting irreparable harm on island states.”

Almost without exception, the United Nations Office for Disaster Risk Reduction has said, small island states are at great risk from projected impacts of climate change. There are many problems that they have to face. The problems they face are varied. Is it limited to the cost of moving people? Should the damage be more than that?

Already, waters that once were “gin-clear are now cloudy with sand,” my colleagues noted. Cassava and Taro — which were long grown locally — have been imported. The rising seas have polluted fresh water supplies and Tuvalu is now dependent on rainwater. There is talk of Tuvalu’s residents being relocated to Australia, New Zealand and Fiji.

“The reality is that in the future, the Tuvaluan community is likely to be fragmented among many different countries,” Jordan Emont and Gowri Anandarajah wrote in the American Medical Association Journal of Ethics.

Island states additionally face outsize impacts from rising salination, droughts, heavy rains and coral bleaching. Hurricane season in the Caribbean is particularly dangerous because of more severe weather.

Few nations understand that risk more than Browne’s. In 2017, I ventured to Barbuda, the smaller of Antigua and Barbuda’s main islands, to document Hurricane Irma’s devastating impact there. In that single, devastating disaster for society, virtually no structure survived. Its 1,800 people evacuated from the island, Barbuda had gone feral within a week. The abandoned dogs were forming packs to take down the livestock. The medical dorms at the hospital were in ruins. A tree was used to hold an ambulance.

The devastation triggered bitter disputes between Barbudans and the central government in Antigua over how to rebuild. Of the international pledges for help that Browne said initially numbered in the “billions of dollars,” only about $22 million actually materialized. More than four years later, Browne said, only 70 percent of the island is rebuilt.

Asked why he was so disappointed in the summit in Scotland, he replied: “Because for us, climate change is not a theoretical construct. There are more severe and frequent hurricanes. We also have heat waves and brush fires. Some of the most stunning beaches have been destroyed. Warmer temperatures are threatening coral reefs. We had the most devastating floods of our lives last year. For us, this is a life and death.”

Unlike the Chagossians, most Barbudans returned home.

They may not be so lucky next time.

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