Island states mull risks and benefits of suing big emitters

Tiny islands are getting some big-league help in their quest to haul major emitters into international court over global warming. But they're fearful the United States and China might punish them by cutting off foreign aid.

Germany, Ireland and Switzerland have vowed support for the Republic of Palau, which is leading a coalition of vulnerable nations in a landmark campaign to make climate change a matter of international law. The backing of wealthy European nations brings support for a resolution before the U.N. General Assembly to 33 countries and is considered a major boost to the case.

Behind the scenes, though, diplomats and attorneys say leaders of climate-vulnerable nations are putting on the brakes, terrified of jeopardizing billions in aid for education, roads, HIV-AIDS clinics and other projects if they pursue litigation.

"Some of them are afraid, since the big country doesn't like it," said Bangladesh Ambassador to the United Nations Abdul Momen. Momen and others said the concern has not derailed nations' pursuit of an advisory opinion before the Hague-based International Court of Justice (ICJ), but it has significantly slowed the momentum.

"We are still working with those [small island] governments, but the enthusiasm that we have seen in the beginning, that has a little bit slackened," Momen added. "They depend on help and assistance from the big countries. You know who they are."

The stakes in this case are enormous. A legal judgment by the ICJ that polluters have a responsibility to ensure their greenhouse gas emissions do not harm other nations will not mandate carbon cuts or new financial flows. Indeed, the United States does not recognize or accept the jurisdiction of the world court. But such a decision would reverberate, supporters and opponents of the case agree, perhaps putting vulnerable countries in a stronger position at future climate treaty negotiations.

"If you have a sensitive climate change treaty negotiation going on, you have a compliant president and there is some looming international lawsuit pending, it can't help but move the negotiations forward," said Steven Groves, a fellow at the Heritage Foundation, a conservative think tank.

'Death by a thousand cuts'


Countries on the front lines of climate change are at a crossroads. A new global emissions deal is expected to take effect by 2020. But the carbon cuts nations have so far promised are more than 5 gigatons short of averting a catastrophic rise in global temperatures. Low-lying nations -- some of which, like Kiribati and Papua New Guinea, have already begun migrations as rising seas submerge their homelands -- say they're fed up with the U.N. talks.

Around the margins of the negotiations, island leaders are increasingly weighing more confrontational alternatives. Those range from the ICJ case to employing an obscure dispute settlement provision of the U.N. Framework Convention on Climate Change (UNFCCC). But, those involved say, the single biggest thing holding back poor nations is their near-total dependency on big emitters for development, trade and, increasingly, money to adapt to climate change.

"Were it not for the fact that they are so dependent on foreign aid, I think they would have brought claims 10 years ago. I know this for a fact," said Matt Pawa, an attorney who represented the Alaskan village of Kivalina in a landmark global warming case.

"They have foreign aid issues that hold them back from making these types of claims, and it's a tragedy. They are so extremely dependent on foreign aid, so they're constantly in a position of having their short-term interests and their long-term interests collide," he said.

Palau, an archipelago of more than 300 islands in the western Pacific Ocean, grabbed headlines when it formed Ambassadors for Responsibility on Climate Change (ARC) to ask the U.N. General Assembly for an advisory opinion from the world court.

"For us, it's about survival," former President Johnson Toribiong said, describing roads and crops coming to ruin as sea levels eat away at Palau's nine inhabitable islands.

Ambassador Stuart Beck, Palau's envoy to the United Nations, said he attended the 2009 climate summit in Copenhagen, Denmark, and the next one in Mexico, souring as diplomats dithered while his island lost land and capacity to grow taro. He expects little from the upcoming UNFCCC meeting next month in Doha, Qatar.

"If the ladies can't grow taro, and it's generally a matriarchal task, they're going to move from that island. And that's a slow-moving kind of depopulation, but it's a real one nonetheless," Beck said. "It's death by a thousand cuts, and every time somebody leaves the island, that's another cut."

'Your people are squealing like us'

He came to a stark conclusion about the negotiations. "Why would anybody be involved in this pretext of a process?" he asked. "We're looking at countries disappearing, and what, we're supposed to wait until the next meeting in Doha?"

Beck said the United States has made no secret of its objections but insisted his country's aid has never been threatened. Still, he maintained, Palau "gives far more in strategic value" to the United States than it takes in assistance.

Meanwhile, he and other diplomats outright rejected the entreaties they said the U.S. State Department has privately made: that while it is sympathetic to islands' plight, a court case would cripple any chance at persuading Congress to reduce emissions or sign off on international funding.

Ambassador Ronny Jumeau of Seychelles called it a song that vulnerable countries have heard too many times.

"We just don't trust you anymore. And we've waited long enough. In fact, we've waited until your own country has been hit by the worst drought in 60 years, until your people are squealing like us. How much more can we wait?" Jumeau said. He added that parties pressing the ICJ case have been careful not to name any specific country and have willingly watered down the resolution to attract European support. Nevertheless, he said, China and the United States appear to be "terrified" that the case will move forward.

Momen said he is confident the United States is going to be more receptive under a second Obama term. Meanwhile, he agreed that few countries are sympathetic to U.S. protestations. "The U.S. is saying, 'We are trying, but this is making it harder.' But unless you pressure, things never happen," Momen said.

U.S. State Department officials declined requests to discuss the case, instead forwarding an April statement to the United Nations explaining the administration's concerns. It argues that trying climate change in the courts is a "distraction" that will create ill will in the global negotiations. That process, they argued, has occurred "precisely because parties have expressly set aside the question of legal responsibility."

UNFCCC Executive Secretary Christiana Figueres distanced the body from Palau's effort, saying recently, "We have our goals and objectives, and we are going to pursue them no matter what other parties do."

Another route to climate justice?

As countries lobby one another on the high-profile court case, attorneys such as Center for International Environmental Law President Carroll Muffett are quietly exploring an obscure but potentially powerful new tool called Article 14 of the UNFCCC. The provision provides rules for a dispute settlement between any parties to the climate convention, including the United States.

Under it, one party could notify another that a dispute exists -- say, over damage incurred by climate change. If the dispute is not resolved within a year, either party can unilaterally invoke a conciliation tribunal. Its recommendation, Muffett said, "could do a lot of things if a case were brought properly."

Yet no country has taken the leap on Article 14, either, for the same reasons they are reluctant to press the ICJ case. And conservatives in the United States say those considering confrontational acts on climate are right to fear Congress' willingness to greenlight foreign aid.

"One would hope that members would be less inclined to give hundreds of millions of American taxpayer dollars to a country that was suing us," said the Heritage Foundation's Groves. "I know that I would do everything in my power to point out to members of Congress if a country or a group of countries were attempting to sue the United States in world court."

Some attorneys are advocating extreme caution. Brook Meakins, an activist and attorney in Berkeley, Calif., who specializes in legal assistance for low-lying nations, said the stakes are enormous and the citizens of the poorest nations will have to deal with the fallout if the legal cases are not successful. Most worrisome, she said, is the likely loss of funding for climate-related disasters.

Muffett agreed but said he is confident that eventually the law will force changes where treaty negotiations have not. The ICJ case and possible use of Article 14 are, he said, "the start of what is going to be an increasingly important field of law."

"It's not easy, but once you open that door, if some clever attorney and some brave plaintiff somewhere can open that door, it changes the entire calculus," he said. "There are a lot of levers out there that haven't been pulled yet. When they're pulled, it's going to move the world in exciting ways. But finding a country that has the capacity and the will and the immune system for this stuff is tough."

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