Statehood in Times of Climate Change

Name: Statehood in Times of Climate Change
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Author: Frederick von Paepcke
ISBN: 978-3-653-96978-8

Paepcke, Frederick von

Statehood in Times of Climate Change

Impacts of Sea Level Rise on the Concept of States

by Frederick von Paepcke (Author)

Law, Economics & Management

Series: Europäische Hochschulschriften Recht, Volume 5690

Summary

Climate change is a most complex, global challenge for the international community and for international law. The tremendous negotiation efforts in the last decades did not result in effective mitigation measures, leading to a rising need for adaptation. Amidst a myriad of challenges, some small island states face an existential threat of losing their state territory due to sea level rise, a situation without precedence. What happens to their statehood when they lose a constituent criterion of a state? This thesis argues for a claim to a new state territory. Due to the existence of such a claim, island states continue to exist even when their territory is inundated, as the lack of a territory is not necessarily permanent.

Excerpt

Cover
Title
Copyright
About the author
About the book
Acknowledgement
This eBook can be cited
Contents
List of Abbreviations
§ 1. Introduction
§ 2. Impact of Climate Change on Small Island Developing States
A. Introduction
B. Global Warming: Difficulties and Peculiarities
1. Defining Climate Change
2. Climate Change Research – a ‘Post-Normal Science’
3. Political Hurdles
4. Lobbyism
5. Credibility Issues
6. Assessing Climate Change from a Legal Perspective
C. Climate Change – Present and Future Developments
D. Impacts on Small Island Developing States
E. Addressing Climate Change
1. Introduction
2. Mitigation
3. Adaption
4. Recent Development: Loss and Damage
§ 3. The Contemporary Concept of States
A. Introduction
B. Content
1. People
2. Sovereignty
3. State Territory
a) General Requirements
b) Inhabitable Territory as State Territory
aa. The Relationship between State and Territory
(1) Preliminary Remarks
(2) Patrimonial Theory
(3) Object Theory, or Property Theory
(4) Space Theory, or Quality Theory
(5) Objectivist Theory, or Competence Theory
(6) Interim Result
bb. Interim Conclusions: Sinking State Territories
4. Legal Relationship between State Sovereignty and State Territory
C. Discussions with regard to other Criteria
1. Recognition
2. Independence
3. Claim to Statehood
4. Other Criteria
5. Interim Result
D. History
1. Genesis of the Modern State
2. The Development of the Modern State towards the Welfare State
3. Montevideo-Convention
a) Content
b) Criticism
c) Relevance for Sinking Islands States
4. San Francisco Conference
5. Growing Importance of Statehood
E. Interim result
§ 4. Claim to a New State Territory?
A. Introduction
1. Preliminary Remarks
2. Relevant Legal Sources of International Law
3. Legal Nature of Rules and Principles
B. The No Harm Rule – Classical Approach
1. Introduction
2. Content and History
3. Legal Status
4. Elements of the No Harm Rule
a. Environmental Damage
b. Border Crossing
c. Substantiality
d. Causation
aa. Chain of Causation
(1) Ongoing Discussion and Scientific Level of Knowledge
(2) Precautionary Principle
(a) Introduction
(b) Content and History
(c) Legal Status
(d) Implications for this Study
bb. Cumulative Causation
e. Due Diligence
aa. Liability sine Delicto
bb. Liability ex Delicto
cc. No Applicability of International Law
dd. Pulp Mills Case – A New Impact?
ee. Discussion
5. Interim Result
C. The No Harm Rule in the Context of other International Law
1. Introduction
2. General Rules and Principles in International Environmental Law
a. Introduction
b. Principle of Common but Differentiated Responsibilities
aa. Introduction
bb. Content and History
cc. Legal Status
dd. Implications for this Study
c. Principle of Sustainable Development
aa. Introduction
bb. Content and History
cc. Legal Status
dd. Implications for this Study
d. Other Principles
aa. Introduction
bb. Principle of Intergenerational Equity
cc. Principle of Intragenerational Equity
dd. Principle of Co-Operation
ee. Principle of Preventive Action
ff. Principle of Shared Natural Resources
3. Rules, Principles and other Aspects in General International Law
a. Introduction
b. Human Rights
aa. Introduction
bb. History
cc. Content and Legal Nature
dd. Relevant Human Rights
ee. Implications for this Study
c. Right of Self-Determination
aa. Introduction
bb. Content and History
cc. Legal Nature
dd. Implications for this Study
d. Fundamental State Rights/State’s Right to Exist
aa. Introduction
bb. Content and History
cc. Legal Nature
dd. Implications for this Study
e. Other General Principles and Aspects in International Law
aa. Introduction
bb. Principles of Sovereign Equality and Territorial Integrity
cc. Unjust Enrichment
dd. Purpose of International Law: Peace and Security
ee. Development of International Law
4. Conclusions
a. Introduction
b. Does International Law Provide a Claim?
aa. Arguments for a Relocation Strategy Based on a Claim
bb. Arguments for a Global Immigration Scenario
cc. Sea Level Rise Fund
dd. Political Dimension of the Problem
ee. Statement
5. Legal and Political Scopes of a State Relocation
D. Claim Opponents
E. Limits of Liability
F. Procedural Options
1. Introduction
2. International Court of Justice
a. Institute Proceedings
b. Request an Advisory Opinion
3. International Environmental Court
4. International Tribunal for the Law of the Sea
5. Judicial Efforts of Endangered States so far
6. Strategic Implications
7. Statement
§ 5. Consequences for the Statehood of Endangered States
A. Introduction
B. Maintaining or Losing Statehood?
1. Governments in Exile, Failed States, and other Examples in State Practice
2. Arguments for Preservation of Statehood
3. Arguments for ‘sui generis’ Subject of International Law
4. Nation Ex-Situ
5. Statement
§ 6. Summary and Conclusions
Bibliography

← XII | XIII → List of Abbreviations

ARS	Articles on Responsibility of States for Internationally Wrongful Acts
AOSIS	Alliance of Small Island States
CERDS	Charter of Economic Rights and Duties of States
COP	Conference of the Parties
GHG	Greenhouse Gas(es)
HRC	Human Rights Council
ICJ	International Court of Justice
ICCPR	International Covenant on Civil and Political Rights
ICESCR	International Covenant on Economic, Social and Cultural Rights
IPCC	International Panel on Climate Change
ITLOS	International Tribunal for the Law of the Sea
MCRDS	Montevideo Convention on Rights and Duties of the States
OHCHR	Office of the U.N. High Commissioner for Human Rights
SIDS	Small Island Developing States
UN	United Nations
UN Friendly	Declaration on Principles of International Law concerning
Relations	Friendly Relations and Co-operation amongst States in
Declaration	Accordance with the Charter of the United Nations
UNCED	United Nations Conference on Environment and Development
UNCLOS	United Nations Convention on the Law of the Sea
UNDHR	Universal Declaration of Human Rights
UNEP	United Nations Environmental Programme
UNFCCC	United Nations Framework Convention on Climate Change
UNGA	United Nations General Assembly
Vienna	1985 Vienna Convention for the Protection of the Ozone
Convention 1985	Layer
WTO	World Trade Organisation← XIII \| XIV →

← XIV | 1 → § 1.Introduction

“Hot War about Climate,”¹ “Mania of Starry-Eyed Idealists,”² “Breaking Global Warming Taboos: ‘I Feel Duped on Climate Change,’”³ “Let’s Not Braise the Planet,”⁴, “Climate Change Will Shake the Earth,”⁵ “Obama’s Global-Warming Folly.”⁶. These selected headlines of articles published within the last few years give an idea about the pathos and the emotionalism that has found its way into debates in the complex field of climate change.

The emotionalisation of the social debate about global warming bears the risk of opinion-forming that is based rather on one’s political affiliation than on the available facts. This trend seems particularly prevalent perceivable in the USA. Whereas, for example, 47% of the Republican voters and 46% of the Democratic ones said in 1998 that the effects of global warming had already begun, this percentage shifted constantly until 2008, when this opinion was shared by 41% of the Republican voters and 76% of the Democratic voters.⁷ ← 1 | 2 → In 2011, 78% of those voting Democrat, 53% of those voting Republican, and 34% of Tea Party sympathizers affirmed this point of view.8 This increasing opinion gap stands in surprising and stark contrast to the increase in scientific knowledge about the world’s climate achieved in the course of the last two decades.

Climate change, which, according to Ban Ki-moon, is “the defining issue of our time,”⁹ is not only complex in terms of its scientific approach. It also entails multitudinous political, social, economical, and of course legal issues. It is, for example, expected that the end of this century will see up to 250 million climate refugees.¹⁰ Where shall they move? What rights do they have?¹¹ Does the rise in the sea level lead to a general liability in international law?¹² How to mitigate climate change, how to adapt to it?¹³ These challenges amount to the statement that “climate change has introduced the potential for a seismic shift in the way we have organized human systems on the planet”, leading to a “postclimate era in law and human society.”¹⁴

Amid this myriad of international challenges evolving from climate change, some Small Islands Developing States¹⁵ are facing troubles of existential proportions: Their homeland is very likely to become uninhabitable due to sea level rise¹⁶. However, as unique as these concerns may be – compared with the overall dimension of issues arising in this field thus far, they are of only minor importance for the international community.

← 2 | 3 → This scenario leads to a conundrum for international law.17 Out of the various consequential legal questions, this thesis addresses one: What happens to a state when its territory becomes permanently uninhabitable due to sea level rise? The statehood of these states will be the core object of this study.

To allow a legal assessment to be conducted, the current level of scientific knowledge of climate change first will be outlined, with a focus on the challenges global warming imposes on SIDS (see § 2). Subsequently, current statehood criteria will be elucidated against the backdrop of their history. Also, the ongoing discussion in this regard will be addressed. Additionally, the implications of these criteria for SIDS’ future statehood, based on the current understanding will be assessed (see § 3). § 4 will be guided by the notion that an option could be established for statehood not to cease but to continue, if and insofar as SIDS have a claim to new state territory based on the no harm rule in conjunction with other principles and aspects of international law. At first glance, this idea sounds far-fetched,¹⁸ but – as will be illustrated in that chapter – various aspects of international law argue in favour of such a claim. Recent negotiation efforts to implement binding compensation for climate change damages were undertaken exceptionally fierce¹⁹ and indicate the rising relevance of this topic.

Ultimately, the findings of §§ 3 and 4 will form the basis for a comprehensive assessment of what will happen to SIDS statehood when their territory is inundated due to sea level rise (see § 5).

For any legal assessment in the field of climate change, it is especially important to not give too much consideration to the often sharp repartee between political and other interest groups, and instead to focus on international law. Nevertheless, the political and juridical dimensions of the problem are at times closely interlinked. Therefore, brief political considerations will be entertained where appropriate to both contribute to an overall understanding of this thesis’ topic and to better assess which legal results have a reasonable chance at practical implementation.← 3 | 4 →

___________

1 The original German headline reads “Heißer Krieg ums Klima.” See Axel Bojanowski, “Heißer Krieg ums Klima,” Spiegel Online Wissenschaft, 3 May 2010, available at http://www.spiegel.de/wissenschaft/natur/forscherskandal-heisser-krieg-ums-klima-a-688175.html, last accessed 29 April 2014.

2 The quoted part of the original German headline reads “Wahn der Weltverbesserer.” See Axel Bojanowski, “Vorwürfe gegen Klimaforscher: Wahn der Weltverbesserer,” Spiegel Online Wissenschaft, 13 March 2013, available at http://www.spiegel.de/wissenschaft/natur/klimafalle-von-storch-und-krauss-ueber-politik-und-klimaforschung-a-885364.html, last accessed 29 April 2014.

3 See interview with Fritz Vahrenholt, “I Feel Duped on Climate Change,” Spiegel Online International, 8 February 2013, available at http://www.spiegel.de/international/world/breaking-global-warming-taboos-i-feel-duped-on-climate-change-a-813814.html, last accessed 29 April 2014.

4 See Mark Bittman, “Let’s Not Braise the Planet,” The New York Times, 1 July 2013, available at http://opinionator.blogs.nytimes.com/2013/07/01/lets-not-braise-the-planet/?ref=globalwarming, last accessed 29 April 2014.

5 See Bill McGuire, “Climate Change Will Shake the Earth,” The Guardian, 26 February 2012, available at http://www.guardian.co.uk/environment/2012/feb/26/why-climate-change-shake-earth?INTCMP=SRCH, last accessed 29 April 2014.

6 See Charles Krauthammer, “Obama’s Global-Warming Folly,” The Washington Post, 4 July 2013, available at http://articles.washingtonpost.com/2013-07-04/opinions/40369711_1_warming-climate-change-global-temperatures, last accessed 29 April 2014.

7 See Riley E. Dunlap, “Climate-Change Views: Republican-Democratic Gaps Expand,” Gallup, 29 May 2008, available at http://www.gallup.com/poll/107569/climatechange-views-republicandemocratic-gaps-expand.aspx, last accessed 29 April 2014.

8 See Leiserowitz et al., p. 4.

9 Protocol of the 6.587^th meeting of the Security Council, 20 July 2011, U.N Doc. S/PV.6587, p. 3.

10 See Human Tide: The Real Migration Crisis – A Christian Aid Report, May 2007, p. 6. Available at http://www.christianaid.org.uk/images/human-tide.pdf, last accessed 29 April 2014. The study will hereinafter be referred to as Human Tide.

11 Markard et al., ZAR 2009, 27 (27 et seqq.), e.g., summarize this discussion with regard to new migration laws for Europe.

12 Kehrer discusses this topic in her doctoral thesis.

13 The main strategies pursued in addressing climate change, namely mitigation, adaption and (since recently) loss and damage will be briefly discussed further below, see § 2. E.

14 Burkett in: Gerrard/Wannier, 89 (120).

15 Hereinafter, Small Islands Developing States will be referred to as SIDS.

Details

Pages: XIII, 226
Publication Year: 2015
ISBN (PDF): 9783653052749
ISBN (MOBI): 9783653969771
ISBN (ePUB): 9783653969788
ISBN (Softcover): 9783631659007
DOI: 10.3726/978-3-653-05274-9
Language: English
Publication date: 2014 (November)
Keywords: Völkerrecht Klimawandel Staatsbegriff Umweltvölkerrecht
Published: Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2015. XIV, 226 pp.
Product Safety: Peter Lang Group AG

Biographical notes

Frederick von Paepcke (Author)

Frederik von Paepcke studied Law at the Universities of Heidelberg, Lausanne and Münster. For the United Nations he worked as an advisor at the Mission of Tuvalu (Oceania) and holds a fellowship of the Stiftung der Deutschen Wirtschaft (German Economy Foundation).

Statehood in Times of Climate Change

Summary

Excerpt

Table Of Contents

← XII | XIII → List of Abbreviations

← XIV | 1 → § 1.Introduction

Details

Biographical notes

Key Subject Areas