By Climatico Contributor: Jean-Benoit Fournier

Delegates huddle to resolve outstanding issues (Source: IISD)

The last COP in Durban ended in a success for the UNFCCC process, but has more nebulous implications for the climate itself, with Kyoto put on artificial respirator and a more comprehensive agreement being pushed back to a later date.

The most significant progress at Durban for climate change adaptation came in the form of an agreement on – and thus official “launch” of – the Green Climate Fund (GCF). The GCF has been discussed since the last COP in Cancun as a funding/financing mechanism for both mitigation and adaptation efforts from developing countries and, most particularly, the least developed countries (LDCs). It was hoped that the shape and form of the fund could be agreed upon this year, as it was expected that countries would not be ready to commit to more funding for adaptation in such uncertain economic context: and it was.

As reported by IISD, the COP17 “designates the GCF as an operating entity of the financial mechanism of the Convention, with arrangements to be concluded between the COP and the Fund at COP 18 to ensure that it is accountable to and functions under the guidance of the COP to support projects, programmes, policies and other activities in developing country parties.”

The GCF will operate under the guidance of the Conference of Parties, or more simply, the UNFCCC, marking a big win for developing country negotiators. This has been a long-standing issue, with the EU and the US on the other side of the fence arguing that the Global Environmental Facility (GEF) and agencies such as the World Bank should have been responsible for the handling of the climate change adaptation (and mitigation) funding. The workings of this final decision are eminently complex, but one might posit that the vanishing of the negotiating power of the EU/US on the adaptation funding issue (due to growing economic uncertainty), the lack of significant mitigation action on the part of the US, and the structure of the UNFCCC decision process have created a quasi-insurmountable pressure on the proponents of a GEF/World Bank-handled fund to give in (if they were not to be the last nations to stand in the way of an agreement at Durban, that is).

However, the process of creating the GCF is not over yet: there still remain significant issues to be agreed upon such as the fund’s host country, its trustee(s), and its link(s) with the Adaptation Committee and Technology Executive Committee. Several difficult discussions and meetings are to be expected in the coming years on these topics.

In addition, the question of adaptation funding remains pending. With a bid to impose carbon tax on aviation and maritime transport for the purpose of generating revenues for the GCF rejected by developing countries, the responsibility could likely be passed again to cash-strapped sovereign treasuries. The struggle in defining country roles with just and substantial results while still adhering to the principle of common but differentiated responsibility thus continues.

By Climatico Contributor: Jean-Benoit Fournier

Container Ship (Source: Muhammad Mahdi Karim)

Much work has been – and is currently being – put into agreeing on the format of the much anticipated Green Climate Fund (GCF), a facility that would funnel public and private money to tackle both climate change mitigation and adaptation in developing countries. As mentioned in previous articles, the control of the funds (i.e. the precise mechanisms through which funds would be allocated) has been the subject of heated debates.

While an agreement on the format seems like the least one can expect from the intense negotiations at Durban, the actual funding of the fund is less straight-forward. Cash-strapped nations, and most notably those vulnerable to political pressure, are keen on calling on the private sector for investments. However, the funding of adaptation measures is of less appeal to the private sector than climate change mitigation ones, since they consist mainly of defensive expenditures (that is, expenditures that do not create conventional economic return on investment, but creates value through hedging nations, populations and environments from potential losses). It is unavoidable that the public sector has to chip in if necessary sums of money are to be leveraged.

Another difficulty that adaptation faces as an issue at Durban is the heavy attention that mitigation receives. In the words of one negotiator cited in IISD’s Daily Coverage (Dec. 5^th edition), “it’s time we start discussing adaptation”, as opposed to focusing almost exclusively on ways to reduce GHGs. While the two issues are not formally linked to each other in the UNFCCC arena, commitments on either issue are effectively used as bargaining chips by both developing and developed countries.

Some signs of hope came about recently, as a document circulated at the Conference mentioned the potential contribution to the Green Climate Fund of an international levy on bunker fuels used by be shipping industry. Thanks to the leadership of the International Chamber of Shipping (ICS), the shipping industry is reportedly “broadly supportive of such a scheme as long as it is applie[s] globally”. The contribution of the sector could be significant, providing the GCF with something near 10% of its $100b by 2020 objective.

Will other governments step in at this early stage to promise funding or wait for the precise GCF (fund control) mechanism to be agreed on? Will opening on mitigation efforts by developing nations constitute a big enough “carrot” for the developed nations to loosen up their wallets? As prior mentioned in this publication and elsewhere, the UNFCCC’s is a process where nothing is agreed on until everything is agreed on. The shipping industry’s recent move, however, has operated a breach in the catch-22 of the negotiations on adaptation funding. The end of the week will tell if this will have helped catalyzing international public investments in adaptation and thus provide some wind for the adaptation funding ship to sail at last. 

By Climatico Contributor: Jean-Benoit Fournier

A severe drought in East Africa threatens lives. (Image by: Colin Crowley/Save the Children)

Adaptation to climate change, a topic largely covered in this forum in recent years, is back with a vengeance in the march towards the next Conference of Parties (COP17) in Durban, South Africa. Back with a vengeance mainly because of the growing gap that seems to develop between the need for – and the supply of – adaptation solutions and funding. This gap, largely attributable to the timidity with which recent agreements have been reached, creates discontent amongst developing countries, international NGOs and, to some extent, the private sector, which is looking for strong signals from governments to propose climate change adaptation solutions.

Just a few weeks ago, the generally prudent International Energy Agency took an unusual step in its World Energy Outlook of 2011, warning the world that the business-as-usual scenario with regards to energy infrastructures and investment patterns might lead us into an energy lock-in that would allow the conditions for an irreversible climate change to materialize in just five years from now. Although this should be understood as a call for action to mitigate climate change before it is too late, it also indirectly acts as a reminder of how difficult it will be to steer the world away from a dangerous climate change scenario. It is rational for some vulnerable countries to, put simply, freak out, and ask that help be extended to them.

The World Bank, in a landmark study that combined top-down and bottom-up approaches to cost estimation, evaluated that adaptation to climate change, net of regular development funding and requirements, could represent costs between $4 billion to $109 billion a year. To those familiar with the Stern Review on the Economics of Climate Change, this is old news: adaptation costs an awful lot more than early action (mitigation of the root causes of climate change) and some of the most vulnerable countries happen to be those with the least money to deal with these impacts.

Climate change adaptation, in the context of international negotiations of the UNFCCC, thus encompasses the necessity, mostly by developing nations, to reduce their country’s vulnerability to the current and future impacts of climate change and/or boost their adaptive capacity.

Progress on the adaptation front at Durban will likely be directly linked to the last COP in Cancún, where Parties reached an agreement on the Green Climate Fund (GCF), a vehicle aimed at managing international donors’ money devoted to climate change mitigation and adaptation. As mentioned in earlier articles, the final format of the GCF has not yet been agreed upon. However, a Transitional Committee (TC) has been mandated with coming up with recommendations for approval in Durban.

The TC’s recommendations are visibly aimed at generating consensus, making sure that this funding mechanism would be jointly controlled by developed and developing countries, balance mitigation and adaptation in funding decisions, and build on the efforts already undertaken by several international financial institutions, regional development banks and UN institutions.     

Sadly, this is probably one of the only good news to expect from Durban with regards to adaptation, namely that negotiators may eventually agree upon the structure of the GCF. As noted by China’s top climate change official, Xie Zhenhua, the current financial uncertainty and European difficulties could end up playing a damping role on the climate talks, especially when it comes to funding, so it might be wise not to expect big announcements with regards to funding.

Under a conservative scenario for adaptation funding, the Durban talks could end up being slightly more than a procedural step leading to an agreement on the form that this funding-to-come could take. In the best of scenarios, one could imagine that the GCF could be amended as to create enough incentives to, at best, secure current commitments by donor states and the private sector. 

Expectations and the emerging picture of the GCF are creeping apart (source: UNclimatechange)

In advance of COP 17, the Green Climate Fund’s (GCF) Transitional Committee (TC) have passed the Parties a report, recommending it “take note” of the report’s findings. It is worth analysing this report since it  brings in to clearer focus the contrast between the expectations that some have for the fund – largely the private sector – and the the emerging picture of the fund.

Specifically, the overarching sentiment from the report is that the GCF will be a vehicle for aid-based disbursement. This is not necessarily consistent with the guiding principle of “catalyzing climate finance.” It is this apparent confliction – between the guiding principle of acting as a catalyst for climate finance, supposedly inclusive of the private sector, and the emerging picture of aid-based finance – that has recently attracted criticism from figures such as Yvo de Boer, and the frame in which we should view the suggested design of the GCF given to Parties at COP 17.

Sourcing the money

The report states that the finance will be delivered at a country level. This means that finance delivered by the GCF could, for example, be delivered to a sovereign-administered fund that lends to projects or programmes that aim to execute a particular objective arising from a national policy.

A natural consequence is that the GCF can be expected to deliver finance in much the same way as existing multilateral funds. Notably, it will place far more importance on public rather than privately sourced finance, since private investors would find it more difficult to contribute to a fund that’s lending criteria focus on promoting a particular national or regional policy, first and foremost, delivering returns as a somewhat more ancillary benefit.

The report, however, does state that the GCF should have a private sector facility that employs the private sector in fund contributions. It is unclear if the reference to a separate “facility” should be interpreted to mean that the privately sourced finance will be disbursed through mechanisms separate to those for public sector finance, nor if such a distinction should emerge, how the private finance will be delivered.

Disbursing the money

Inspecting the financial instruments recommended for disbursement of the funds gives perhaps no clearer demonstration of an aid-based picture. Disbursal will be focussed on grants and concessional lending. The instruments will be used to finance the additionality gap – taking the risky investments that the private won’t take alone in order to get a programme or project off the ground.

Clearly, grant-based disbursal limits the involvement of the private sector in the fund’s capitalisation. This also extends the earlier question: will concessional lending on a country level attract private investors to the fund, and if not, will the private sector facility employ delivery mechanisms that are different to grants and concessional lending.

A stark contrast

In contrast to the emerging picture of the GCF, the Green Climate Finance Framework (GCFF) suggested by BNEF is a manifestation of the expectations of the private sector. In this proposal the public sector contributions make up around 10% of the fund, are delivered by aid-based finance and used to leverage the remaining 90% from the private sector, i.e. fulfilling the mandate of catalysing finance for climate change from the outset.

It could be argued that the difference between the GCF and the GCFF is based largely on the level of the involvement of the private sector, and that both can catalyse finance by funding the additionality gap. This is true, but a design like the GCFF does far more catalysing from the outset, precisely because it is leveraging nine times more private than public sector capital.

The GCF, as it stands now, is the inverse of the GCFF – predominantly aid-based delivery of finance at a country level, with a small, but “non-negligible,” role for the private sector. This set-up, if justified properly, is not in-and-of itself objectionable. It is, however, of concern that the emerging picture of the GCF seems to contrast sharply with the expectations of the private sector, whilst also limiting the fund’s ability to catalyse private sector finance from the outset.

GCF needed for more than mitigation (Image by: USFWS Headquarters)

One of the purported successes of the talks in Cancun last year was the creation of the Green Climate Fund (GCF). This year the GCF’s Transitional Committee (TC) was created, with forty members, twenty-five of which are from developing countries. The TC is tasked with no less than designing the GCF itself. It must be an institution that is capable of handling vast sums of “new and additional” funding from the $100 billion promised annually by 2020, and that can target investment across many different fields of climate change related investment.

The GCF as a “recipe for failure”

The TC has agreed on some guiding principles, one of which is that the GCF should be designed in a way that subordinates private sector finance to public sector funding. This is the approach favoured by many developing countries and is line with the GCF’s objectives of providing more direct, reliable and streamlined access to climate finance. Last week, however, Bloomberg New Energy Finance (BNEF) released a white paper that forcefully argues the TC’s current approach is “a recipe for failure.”

The paper’s author, Michael Liebreich, claims that the GCF will never be able to raise a large portion of the $100 billion from the public sector. This, Liebreich states, is because many of the donor countries are under extreme fiscal strains and because many would face political difficulties in passing the revenue raising mechanisms in to law.

Liebreich argues that instead efforts should be focussed on the creation of a Green Climate Finance Framework (GCFF). The GCFF would raise approximately ninety percent of funds from the private sector, channelling money through existing financial mechanisms, whilst investment is largely used to target mitigation or, more specifically, infrastructure projects. The GCF still exists in Liebreich’s scenario, but plays a smaller role, administering the funds needed to leverage private sector money – in this case subsidising the gap left between the cost of clean and dirty energy.

A more complex issue

Liebreich’s arguments are compelling, but there are four immediate objections. First, although donor countries are indeed facing fiscal constraints, the funds they are capable of contributing is unclear. The ambiguity surrounding availability, or willingness, of funding is part of a larger problem: the lack of follow through on financial commitments by developed countries.

It seems premature – or even far-fetched – to state unequivocally at this stage that donor countries are incapable of providing the finance, although the author is correct to draw attention to the difficulty in ensuring the pledged funds are in fact received and spent, and to reaffirm the contention that the private sector will have to play a non-negligible part.

Second, many in the TC may disagree with the sentiment that a large majority of GCF expenditure should be on mitigation. Adaptation is under-funded yet considered equally important as mitigation by developing countries. Moreover, adaption activities are far less likely to be funded by the private sector on a large scale, since they are unlikely to generate revenues – if any at all – of the same scale, stability and longevity as mitigation projects. As the role of the private sector increases in the GCF, the available funding for adaptation decreases.

Third, the guiding principles of the GCF – which reflects the sentiment of those creating the fund – states that recipients wish to use the funding to promote ownership of climate activities within their countries. Although this can be interpreted in many different ways, one is to say that recipient countries wish to ensure the money is spent in a way that does not entrench dependence on foreign money and expertise.

However, since the majority of programmes and projects in a GCFF would be financed and/or owned by private investors, likely to be overseas investors, and that capacity building and technology transfer are both understandably unlikely to be funded by the private sector, domestic ownership of climate change related activities is significantly undermined.

Finally, a guiding principle of the GCF is the desire to make delivery of finance results-based, whilst ensuring it is not wholly conditional on results. Clearly, the delivery of finance by the private sector is based almost entirely on results, and thus runs contrary to the sentiment of those participating in the creation of a climate finance mechanism.

There is no reason why a GCFF cannot be created; indeed it is a good idea. However, suggesting that it should replace the GCF entirely – and therefore that the majority of the $100 billion should come from the private sector – would result in only a sub-section of the types of projects in need of funding, receiving funding. Moreover, it opposes the sentiment and guiding principles of those attempting to create a climate finance mechanism, in that it reduces the domestic ownership of emissions reductions activities and ensures that delivery of finance is almost entirely conditional on results.

While Ontario’s ambitious feed-in-tariff (FIT) policy is being put to the test by domestic and international opposition, including a challenge from Japan, Japan has just achieved a major breakthrough for its own FIT policy as it continues to recover from the tsunami and nuclear disaster this past March. Both examples will have implications for renewable energy policies and trade worldwide.

Currently in place in more than 40 countries – most notably in Germany, whose early leadership made it the world’s leading solar power – FIT policies boost initial development in renewable technologies by providing developers with above-market rates guaranteed over a long-term contract, usually 15-20 years. When designed well, they deliver long-term emissions reductions while providing a stable rate of return for clean-tech developers and reasonable costs for the consumer. When costs are not controlled over time, however, an FIT can be doomed to follow the example of Spain, whose program created a rush of solar development that ultimately led to a bust.

Ontario’s FIT Program Faces Many Challenges

The Green Energy Act (GEA) was passed in 2009 in Ontario, Canada, by the Liberal Party as a way to position the province as a long-term renewable energy leader while phasing out coal, spurring clean-tech investment and boosting the economy by creating jobs through domestic content requirements. The Act’s FIT program covers biomass, biogas, landfill gas, on-shore wind, solar photovoltaics (PV) and waterpower. So far, it has created 13,000 jobs and attracted $20 billion in private-sector investment.

Two years later, however, it is facing three international challenges. First, in a dispute initiated under the World Trade Organization (WTO) last year, Japan is calling the Act’s domestic content requirements a prohibited subsidy that discriminates against imported products and violates key elements of international trade law. Europe likewise objects to the domestic requirements in its own complaint it initiated in the WTO last month. The third challenge comes from Mesa Power Group, owned by T. Boone Pickens, who filed a compaint in July under the North American Free Trade Agreement (NAFTA), alleging that Ontario made last-minute, discriminatory changes to its FIT rules, preventing the company from winning contracts for two wind projects it was hoping to build in the province.

The Act also faces significant domestic opposition in Ontario. Some of the opposition comes from communities fighting the construction of wind turbines in their neighborhoods. Some of it comes from a $7 billion deal made in 2010 between the Ontario government and South Korean-owned Samsung, which has sparked anger and which oddly dismisses Ontario’s own goal of promoting local over foreign companies.

Much opposition comes from the Act’s purported role in rising household energy bills. Conservative Leader Tim Hudak, in advance of a provincial election in October, has promised to cancel the FIT program and the Samsung contract, hoping he can oust the Liberals on the perception that the Act’s rising costs hurt the economy. Yet as Pembina Institute shows, the rising prices are due to such factors as the introduction of smart metering and the much-needed replacement of aging infrastructure – and prices would rise even without renewable investment. Others note that prices are expected to fall in the long-term.

As Japan Challenges Ontario’s FIT, it Passes its Own

Meanwhile, as the composition of the Ontario-Japan WTO dispute panel got underway, Japan passed a renewable energy FIT law that will go into effect next July. Some details of the policy remain undecided, but the tariff will cover solar PV, wind, biomass, geothermal and small hydroelectric generation. An overall review will occur every three years, and tariffs and contract terms will be reviewed annually.

Given the long-standing political strength of the nuclear industry in Japan, the measure would not have passed if it weren’t for the Fukushima disaster, as well as the controversies surrounding the government’s handling of it. The powerful but heavily criticized Ministry of Economy, Trade and Industry (METI) will not be responsible for implementing the FIT system; rather, that responsibility will go to a special parliamentary committee.

The law reflects the large shift in public opinion on nuclear energy since the tsunami and disaster at Fukushima, as well as the pressure government officials have been under to phase out atomic power. While it may be considered a victory for long-silenced renewable energy supporters, Prime Minister Yoshihiko Noda is attempting to convince a fearful public that Japan’s precarious position cannot be overcome without any nuclear in the mix.

Implications – and Questions – From Both Cases

The implications of these related examples are likely to be significant. For example, Japan’s new policy could help it recover its leadership in solar PV technology, along with Germany, and place it in competition with China, which last month established its own solar FIT program. (In another parallel example, China’s wind FIT program is currently being challenged by the United States for its support of domestic wind turbine manufacturers, considered also to be an illegal protective subsidy).

It is not certain, however, that Japan’s policy, if successful, will affect other countries’ nuclear policies, given that each country’s nuclear energy needs and capacities are different.  It is also not certain whether Japan will implement its own domestic requirements as part of its FIT policy, but this is unlikely while its own case against Ontario remains open.

With regard to Ontario, it is unclear whether its FIT program is more at risk from the three international challenges or from domestic opposition. Certainly, however, a repeal of the Act would render the WTO and NAFTA challenges moot, leaving the protective subsidy question unanswered.

Guest Editorial by: Matt Williams, UK Youth Climate Coalition

UNFCCC Executive Secretary Christiana Figueres during a press briefing (Image by: IISD Reporting Services)

The UNFCCC process has been mired in something of a quandary since the high hopes around Copenhagen in 2009 were quickly dashed when countries failed to come up with a second global, legally binding agreement to replace the Kyoto Protocol (due to expire in 2012). But the meeting in Cancun in late 2010 repaired some of the damage.

In Bonn, it quickly became clear to me that there are still a lot of big gaps in the negotiations. The talks are now over but these gaps remain unresolved ahead of the talks in Durban in December.

One such gap is a concern around the Green Climate Fund, agreed upon in Cancun. This body which aims to provide $100bn a year by 2020 for climate change mitigation and adaptation faces problems concerning its funding in the medium term (2012-2020). While kick-start funding currently stands at $10bn a year, Parties must increase their public climate finance commitments to ensure that the Green Climate Fund moves forward. There is a lack of clarity about how it will reach its 2020 target. The funding gap between now and 2012 still looms large.

The second potential gap concerns the Kyoto Protocol. This is the legally binding global deal which commits some countries to reduce their carbon dioxide emissions between 2008-2012. The commitments concern only 37 Parties, the wealthier countries in the world (with some notable exceptions – the US still hasn’t ratified the Kyoto Protocol). Nonetheless it has been a key part of moving global climate negotiations forward. In 2012 the Kyoto Protocol will expire and there is currently no new deal on the table to replace it. Any amendment to extend or replace the Kyoto Protocol would require all countries to independently ratify it by 31 December 2012 to prevent there being any gap. It is almost too late for this now, and so a regulatory gap is almost a certainty. Indeed, in a meeting with young people in Bonn which I was lucky enough to attend, Christiana Figueres, Executive Secretary of the UNFCCC, said that a regulatory gap is inevitable.

Coming up with a new deal is high on everyone’s list of priorities, but remains a contentious issue. It is made particularly difficult by questions over the involvement of emerging economies such as China, Brazil and India, who are unwilling to limit their economic progress, but whose involvement will be vital before countries such as Canada and the US will even begin to discuss entering a new deal. However, there are signs that the EU and the G77 might be beginning to talk behind the scenes about how a new deal could be struck. What such a deal would avoid is a so-called “pledge and review” system whereby countries would essentially go it alone and commitments would not be part of a global legally binding framework.

Finally, the ambition gap is probably the best known of all the gaps. Outside of the Kyoto Protocol, countries discuss their pledges to reduce emissions in the long-term. The ambition gap can be defined as the difference between the emissions reductions countries are committed to and the emissions reductions the science requires in order to keep global warming to safe levels. The science tells us that there is a big gap between the amount of emissions that would be saved by current pledges on the one hand and the need to limit warming to 2C on the other.

What’s more, at the opening of the talks last week, Oxfam released a report showing that two thirds of emissions reduction efforts currently on the table are those made by developing countries (those countries with the least historical responsibility for climate change and with fewer means to make emissions reductions). This revelation puts wealthier developed nations to shame and shows that a second ambition gap is opening up, between developed and developing country Parties.

The negotiations in Bonn were frustrating. Positive options are still on the table, but countries did little to move towards them at these talks. The space remains open for many countries to show leadership on a number of issues in Durban and to move the world towards a clean, fair future.

Matt Williams is part of UK Youth Climate Coalition’s (UKYCC) youth delegation to the UN climate talks (un.ukycc.org) and is currently interning with the ClientEarth communications team.

This story originally appeared on ClientEarth.

Even with the world map turned upside down, the Marshall Islands and other tiny Pacific nations are hard to find. What if climate change alters the map? (Image from MapCenter.com)

Questions of statehood and statelessness are generally laden with controversy and emotion, yet with Pacific islands such as the Republic of the Marshall Islands (RMI) at risk of becoming gradually uninhabitable and entirely submerged under rising seas, along with losing their sovereignty and lucrative marine rights, there is an urgent need for legal solutions. Solutions are available, even if uncertainties surrounding precedents and current options mean they will depend as much on politics as they will on law.

According to customary international law as codified in the 1933 Montevideo Convention, a state must have a permanent population, a defined territory, a government, and the capacity to enter into relations with the other states to be considered sovereign. Nevertheless, even without climate change taken into account, not all recognized states today conform to all these requirements, and some academics have long argued that the definition is inadequate.

With regard to climate change, there is no precedent for a state losing its territory for any reason other than war, annexation or the sale of land. One option for a state threatened with submersion to retain its sovereignty is to purchase new territory if it is available. For example, the Indonesian government has agreed to rent out one of its thousands of uninhabited islands for the Maldives. Another possibility could be the resettlement of the state’s citizens into a receiving state, in which they would retain some autonomy. This option, however, is fraught with political difficulties, and so far, it is mostly unprecedented, as movements tend to be within one country rather than between countries – for example, in Papua New Guinea, the Carteret Islanders have begun relocating to higher ground in Bougainville, an autonomous region 50 miles away.

There are two kinds of state independence: factual, which is the set of four elements above, and legal, a status conferred by the international community and based on fundamental, inviolable jus cogens norms. Even if an uninhabitable island is no longer factually independent, it can still be recognized by other states as legally independent as long as it maintains a “population nucleus” of 50 or more people – or, in the case of complete submersion, if it maintains a functioning government, even one located in another state, that claims continued statehood. Only if the majority of the world’s states decided not to recognize it any longer would the island no longer be legally independent, but that is an unlikely scenario. Morally, other countries have an obligation to support the islands’ continued existence. Politically, many would want to avoid setting dangerous new precedents.

Other options include a trusteeship run by the islanders with financing from other countries, a “nation ex situ” that can hold a scattered Pacific island diaspora together and would align well with today’s global, cross-border citizenships and rich online communities. Yet the trustneeship known as the United Nations Trust Territory of the Pacific Islands, administered by the United States between 1947 and 1986, caused significant problems before RMI became independent in 1979. During that time, America conducted 66 nuclear test explosions, leading to the Marshallese peoples’ first exposure to radiation – and relocation. The effects of that radiation and relocation still linger in the form of more than 35 severe medical conditions, such as cancer of the bone, and destroyed homes and property. If a trusteeship were the answer, then, it would have to work entirely differently from how it has in the past. But it also remains unclear how an island diaspora would work without the land and resources that form the basis of its cultural identity.

This one example highlights the difficulty surrounding possible solutions to safeguard the islanders’ statehood if the worst-case scenario becomes a reality – a reality that is extraordinarily challenging for Pacific islanders like the Marshallese to contemplate, not least because today’s generation may be challenged by a statehood they struggled to achieve only 25 years ago. But if discussing legal theories in advance of submersion prepares the world for such changes and smooths inevitable political difficulties, that statehood – while hardly ideal – will at least not be lost.

This piece is based partially on presentations made by Maxine Burkett of the University of Hawaii and Jenny Grote Stoutenburg of the University of California, Berkeley, as well as comments made by RMI Ambassador Phillip Muller, all at the Columbia University’s law school conference, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate.

UNFCCC Bonn conference – June 2011. (Image by: Adopt a Negotiator)

The UN Climate Change Conference kicks off this week in Bonn, Germany as governments continue framework discussions in preparation for the Seventeenth Conference of Parties (COP17) to be held in Durban, South Africa, at the end of the year. Over three thousand participants representing 183 countries are attending the conference in Bonn from June 6-17, including government delegates, business and industry representatives, environmental organizations, and research bodies.

Speaking on the first day of the conference, UNFCCC Executive Secretary Christiana Figueres reminded governments that they hold an unavoidable responsibility to make clear progress towards the 2011 climate objectives agreed to at COP16 in Cancun.

“Governments lit a beacon in Cancun towards a low-emission world which is resilient to climate change. They committed themselves to a maximum global average temperature rise of 2 degrees Celsius, with further consideration of a 1.5 degree maximum. Now, more than ever, it is critical that all efforts are mobilized towards living up to this commitment.”

Ms. Figueres expects that the meeting in Bonn should provide clarity on the architecture of the future international climate change regime to reduce global emissions. In addition, negotiators will focus on the design of the finance, technology and adaptation institutions agreed to in Cancun which will allow developing countries to successfully adapt to climate change while still building their own sustainable futures.

The conference comes amid a backdrop of new warnings from the International Energy Agency (IEA) of a sharp rise in the volume and concentration of greenhouse gas emissions in the atmosphere. The IEA announced last week that 2010 emissions from global energy generation have returned to record highs, marking an unexpectedly sharp rebound from the reduced emission levels caused by the financial crisis. Reports now show that carbon dioxide concentrations have once again peaked at just under 395 parts per million (ppm).

The two week conference includes the thirty-fourth sessions of the Subsidiary Body for Scientific and Technological Advice (SBSTA 34) and the Subsidiary Body for Implementation (SBI 34), the sixteenth session of the Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP 16), and the fourteenth session of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (AWG-LCA 14).

New items under discussion include: SBI’s consideration of proposed items on work programmes relating to reporting by Annex I and non-Annex I countries, adaptation, and response measures, as well as SBSTA’s consideration of the work programme on agriculture, the impacts of climate change on water and water resource management, and the initiation of a new work programme on issues regarding reducing emissions from deforestation and forest degradation in developing countries (REDD+) identified within the Cancun Agreements.

Kwajalein Atoll – Marshall Islands. (Image by: Vanderberg Witness)

Citizens from small island nations in the Pacific Ocean have known for decades that their geographic isolation, heavy coastal infrastructure, population dispersion across many islands, and low-lying atolls only meters above sea level make them the most vulnerable countries to climate change in the world. However, now changes in the global climate are accelerating, and the shorelines of countries such as the Federated States of Micronesia, the Republic of Nauru and the Republic of the Marshall Islands (RMI) are increasingly battered with severe storm, coastal erosion and sea-level rise. Frustrated with the lack of progress at the United Nations climate change negotiations, and mindful that they need to be prepared for the possibility the sea may soon submerge their homelands, these islanders have brought their case – and unprecedented legal and policy questions – to the world community.

A conference late May at Columbia University’s Center for Climate Change Law, Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, organized at the request of the Marshall Islands government, brought together academics from institutions such as Columbia, NYU and the University of New South Wales; diplomatic groups such as the Alliance of Small Island States (AOSIS); and NGOs such as Islands First to explore complex and unusual questions on state sovereignty, marine rights, international treaties, and migration and resettlement. For those like myself who have worked with small island nations, this public discussion, as well as the burgeoning of academic papers on these subjects, were largely new.

Climate change and the highly likely scenario that small islands will disappear in the near future – even if emission levels stabilize at current levels, according to the IPCC’s 2007 Summary for Policymakers – challenge many aspects of international, and domestic, law and policy as we know them today. The host of new issues never before addressed includes what options are available for a state, deterritorialized due to climate change, to maintain its sovereignty; how to treat ambulatory coastlines in international law, which has implications for a country’s marine rights; and how to deal with the possible relocation and resettlement of thousands of individuals. These questions need to be balanced with the ongoing challenges of assigning responsibility for emissions and of developing countries accessing sorely needed mitigation and adaptation funding.

After three days of presentations and discussions among legal, science and social science scholars, it was clear that there are few easy answers. Some issues, such as statelessness and resettlement, are fraught with emotion and uncertainty. Others, such as migration due to climate change, are characterized by a lack of credible evidence. The conference wavered between, on the one hand, rallying the many lawyers in attendance into using the law to help the small island nations, and on the other hand, recognizing the limits of the law to provide that assistance.

Diplomats from small islands also issued their own rallying cries. RMI Ambassador Phillip Muller, said the fact his government had to organize this conference was nothing to celebrate because it highlighted the failure of the international community to address climate change urgently. Yet he also was buoyed by the media and academic attention, and hopeful that there was still time to save his tiny low-lying country. RMI Minister of Foreign Affairs John Silk said the conference represented his country’s first steps to finding solutions to difficult problems rather than acting as “passive or silent victims. “We, the Marshallese and all nations and people at the front lines of vulnerability,” he said, “should be more actively defining our future in all eventualities instead of letting others write it for us.”

This is the first in a series of posts on the conference at Columbia University, “Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate”. In upcoming posts, I will explore in greater detail the issues of statelessness, marine rights, ocean acidification, and migration and resettlement.