by Richard Ottinger
The IUCN Academy of Environmental Law is an organization of more than 140 universities world-wide that have substantial environmental law programs. It is headquartered at the University of Ottawa, Canada. For more information, see www.iucnael.org.
Each year the Academy holds a Colloquium on an important topic of environmental law, this year it was held in Ghent Belgium on the topic of Linkages Between Biodiversity and Climate Change. I attended as a representative of Pace Law School, a member of the Academy, and of the IUCN Commission on Environmental Law whose Specialty Group on Energy Law and Climate Change I chair. Also representing Pace at the Colloquium was Professor David Cassuto.
On Monday, 13 September, before the Colloquium, there was a Workshop on “Human Rights and the Environment: A comparative Review,” that I was unable to attend.
The Colloquium was introduced by Prof. dr. Paul Van Catwenberge, Rector of Ghent University, Prof. dr. Piet Taqelman, Dean, Faculty of Law, Prof. Rob Fowler, University of South Australia, Chair of the Academy, and Prof. Yves Le Bouthillier, University of Ottawa, Director of the Academy.
It is difficult to report on the Colloquium because there were more than 100 presenters divided into 37 panels of 5-8 speakers each, lasting two hours each from 8:30 A.M. to 5:30 P.M. for each day of the Colloquium. Since I could attend only one of the panels in each 2-hour session, it is not feasible to report on all the proceedings. They will be published on the Academy website and Elgar Press will publish a book of the principal presentations. I attach a copy of the program so you can get the details, but will cover only the breadth of subjects covered and a few of the highlights. The full agenda can be found on the Academy website above and I will try to attach it.
The first day a Plenary Session was held featuring Prof. Klaus Bosselmann, University of Auckland, New Zealand, Linkages or Interrelatedness? Prolegomena to a Law Protecting the Biosphere: Prof. Gloria Steno Ramos, University of the Cebu College of Law (Philippines), Combating Climate Change and Biodiversity Loss in a “Hot Spot: Megadiversity Country; Prof. Alexander Gillespie, University of Waikato, New Zealand, Climate Change and Biodiversity: Limits of Response; Prof. Jolene Lin, University of Hong Kong, Cost-Sharing Arrangements in the International Climate Change and Biodiversity Regimes; Prof. Andrew Long, Florida Coastal School of Law, USA, Linkage-Based International Environmental Law; and Prof.. Nikita Lopoukhine, IUCN World Commission on Protected Areas, Protected Areas: A natural Solution to the Wicked Problem of Climate Change. This will give an idea of the breadth and geographical diversity of the participants.
The panels covered the waterfront on biodiversity and climate change, from human rights aspects; land use planning; wetlands; poverty, ethics and justice; energy where I chaired the panel; indigenous peoples; forests; protection of species; biodiversity, climate change and agriculture where Prof. Cassuto gave a fine presentation; governance; biofuels; technology transfer; oceans and coasts; invasive species; ecosystem services; civil society; and environmental migrants, to give a sampling of the breadth of the presentations.
The Colloquium honoree and speaker was held in the Crypt of the ancient St. Pieters Abbey, originally constructed in 400 A.D. The honoree and distinguished speaker was Professor Charles Okidi, University of Nairobi, Director of the Centre for Advanced Studies in Environmental Law and Policy, Kenya. He gave a very impressive presentation on the dangers posed to biodiversity and the peoples and ecology of the planet. He commenced with very laudatory remarks about the impressive contributions of Pace Professor Nicholas Robinson to environmental law, IUCN, and his key role in formation of the Academy.
It was an excellent conference. The presentations I attended were well prepared and informative. One unique feature this year was the inclusion of students from around the world making presentations on many of the panels and plenaries.
So if an island nation is submerged beneath the ocean, does it maintain its membership in the United Nations? Who is responsible for the citizens? Do they travel on its passport? Who claims and enforces offshore mineral and fishing rights in waters around a submerged nation? International law currently has no answers to such questions.
United Nations Ambassador Phillip Muller of the Marshall Islands said there is no sense of urgency to find not only those answers, but also to address the causes of climate change, which many believe to be responsible for rising ocean levels.
“Even if we reach a legal agreement sometime soon, which I don’t think we will, the major players are not in the process,” Muller said.
Those players, the participants said, include industrial nations such as the United States and China that emit the most carbon dioxide and other so-called greenhouse gases. Many climate scientists say those gases are responsible for global warming. Mary-Elena Carr of Columbia University’s Earth Institute said what is now an annual sea level rise of a few millimeters will increase dramatically by the year 2100. “The biggest challenge is to preserve their nationality without a territory,” said Bogumil Terminski from Geneva. International legal experts are discovering climate change law, and the Pacific island nation of Tuvalu is a case in point: The Polynesian archipelago is doomed to disappear beneath the ocean. Now lawyers are asking what sort of rights citizens have when their homeland no longer exists.
Where protection for people forced to flee environmental or climate disasters can be found within existing instruments, however, is in cases of internal displacement. More specifically, many experts believe that the 1998 Guiding Principles on Internal Displacement can and actually do provide adequate protection for people who are forced to migrate within their own borders. A non-binding synthesis of international legal norms and human rights law, the Guiding Principles on Internal Displacement offer protection and assistance to displaced persons within the borders of their state of origin. Khalid Koser, the former Deputy Director of the Brookings-Bern Project on Internal Displacement, has argued that ‘the normative framework for people displaced by the effects of climate change inside their own country is better developed than for people displaced outside their country’. So, while those displaced internally qualify as internally displaced persons (IDPs) and thus are protected by international humanitarian law under the 1998 Guiding Principles, those forced to cross an international border for reasons other than specific forms of persecution are not. As Walter Kälin, the UN Special Representative for the human rights of internally displaced persons, has said: ‘existing human rights norms and the Guiding Principles on Internal Displacement provide sufficient protection for those forcibly displaced inside their own country… [but] the main challenge is to clarify or even develop the normative framework applicable to persons crossing internationally recognized state borders’.