“When island nations drown, who owns their seas?”
That’s the question both posed by, and is also the title of an article that ran on the Boston Globe website last month.
The article dissects the complexities of such a question by asking more questions: who gets to decide whether or not island nations legally retain the rights to their exclusive economic zone—an economic radius that extends 200-miles from a country’s coast? How would the drowned country be able to monitor and patrol their historic exclusive economic zone (EEZ) even if they retained the rights? What if the government of the underwater nation has been absorbed into another country?
For low-lying atoll nations like Kiribati, Tuvalu and the Maldives these are pressing questions. The president of Kiribati has already spent millions of dollars purchasing land in Fiji to provide a new home for a large portion of the nation’s 100,000 citizens. The article, written by Latif Nesser, outlines strategies several law experts recommend the island nations pursue in order to maintain rights to their historical EEZ, even after they are submerged:
- Fred Soons of the Utrecht University School of Law offered one of the earliest proposals that the legal definition of “naturally formed” islands be broadened to include man-made barriers and other adaptation efforts such as artificial islets. This means as long as an island was originally considered “natural,” it should be able to keep this designation even with physical extensions that keep it above water. However, Soons recognizes that such physical modifications can only keep an island above water for so long, especially considering that many island nations can’t afford such expensive artificial fortifications.
- Several legal scholars, including Professor David Caron of the UC Berkeley School of Law, have suggested “freezing” current boundaries in place, especially considering many nations will be faced with shrinking coastlines, not just island states. This would prevent a constant redrawing of maps and ensure that future drowned islands retain the economic benefits from their current coastal waters.
- Rosemary Rayfuse of the University of New South Wales in Australia proposes another way for islands to retain their rights, even when they’ve been forced to relocate. She argues for the recognition of a new category of state by international law as the “de-territorialized state.” She points to the historic case of the Knights of Malta as a precedent. This group, which is a 900-year-old-lay Catholic order, is landless today but still has a nonvoting seat at the United Nations.
- The fourth strategy rests on the assumption that strategies 2 and 3 are near impossible to realize due to the sluggish pace of international law and how cumbersome it is to enforce, especially for island nations with historically little geopolitical power. Rayfuse puts forth this final strategy, and she considers it the most appealing option. Just as Kiribati has purchased land from Fiji in preparation for “migrating with dignity,” each drowning island nation can find a neighbor willing to sell some of its territory. In this way the fleeing island state can still operate its maritime zones (as long as some part of it is still above water).
Each of these potential strategies leaves much to be desired, and in the end, Nasser points out that—given there were enough willing countries to absorb these populations—the final strategy would likely result in island nation’s trading economic access to their EEZs for a place to call home.
While not all island states will meet this extreme fate, at least within the foreseeable future, the article highlights the contentious issue of recompense for developing countries who are hit hardest by climate change impacts. On the whole, developing countries have demanded they be compensated for the irreversible economic and cultural losses they suffer due to the effects of climate change, as well as climate change-related damages that must be repaired from things like storms and flooding.
However, developed nations generally don’t want to admit responsibility for their historic and current emissions or pay for the resultant loss and damage. Besides the lack of political will, logistics of such reparations make a compensation mechanism tricky. How much should each developed nation be required to pay? Who gets to decide and who enforces it?
These are all questions that are being addressed through the United Nations Framework Convention on Climate Change (UNFCCC). The nations that are part of the UN negotiating block of the Alliance of Small Island States (AOSIS) and the unique challenges they face have shaped the specific outcomes they seek within the UNFCCC negotiations. The issue of loss and damage is one they’ve pursued within Working Group II that addresses impacts, adaptation and vulnerability. In 2011 at COP17 in Durban, South Africa, negotiators came to a consensus on elements to include in the Subsidiary Body of Implementation’s (SBI) Work Program on Loss and Damage, which formalized this topic as one to be addressed under the convention framework.
Since 2011, loss and damage has gathered steam as AOSIS and the Least Developing Countries (LDCs) seek reparation for the significant economic and cultural loss they’ve endured due to rising seas, warming and acidifying oceans, stronger storms, and increasing drought and desertification. Last year at COP19 in Warsaw, Poland, the topic of loss and damage garnered global attention on the heals of Typhoon Haiyan hitting the Philippines, when 132 country delegations walked out of the talks after developed Annex I nations refused to negotiate text on compensation until 2015.
The walk out was orchestrated by the G77 plus China negotiating bloc and the media amplified the story worldwide. G77 plus China, AOSIS and the LDCs felt Australia’s move to block changes to text that would have established loss and damage as a separate working group, rather than a topic of focus within Working Group II, demonstrated that Australia and other Annex I countries were being too dismissive of this serious issue. By the end of the COP, the countries were able to agree to what is now known as the Warsaw Mechanism on Loss and Damage, though it was weaker in nature than the version supported by developing nations.
In preparation for COP20, AOSIS has drafted a submission on what they deem an acceptable loss and damage mechanism to the UNFCCC, which they will present in Lima. The document outlines four key needs that the mechanism should fulfill including: 1) enhancing knowledge and understanding of how to address loss and damage associated with climate change, especially slow onset impacts; 2) preventing and reducing loss and damage from climate impacts; 3) providing support for loss and damage when it can be rehabilitated; 4) compensating for loss and damage when it is unavoidable and unrecoverable.
Additionally, the submission outlines how the institutional structure that supports the mechanism should be designed. It states that the international mechanism should be governed by an executive board under the guidance of and reporting to the Conference of the Parties of the UNFCCC and should have two operational arms. The first arm would be a technical facility to address gaps in knowledge, provide financial support, and provide assistance to develop technology that could help prevent and reduce loss and damage. The second arm would be a financial facility that could develop and manage the dedicated funding sources of the mechanism.
AOSIS closes the document by stating that loss and damage is a matter of highest priority as it directly impacts their long-term survival as nations “including for some through the loss of territory.” There is no doubt in my mind that as the Boston Globe article foretells, the loss of island nation’s EEZs will be a hot issue at COP20 and will increase in importance at future COPs to come. Too much is at stake to ignore it.