Climate Change Law, Island Nations, & the UN, with Maxine Burkett

September 26, 2019

Abaiang Island Council's Mayor Ngalueng K. Iatakee shows how Kiribati's landscape is changing due to climate change.
CREDIT: Australian Department of Foreign Affairs and Trade (CC).

ALEX WOODSON: Welcome to Global Ethics Weekly. I'm Alex Woodson from Carnegie Council in New York City.

This week I'm speaking with Maxine Burkett. Maxine is a professor of law at the William S. Richardson School of Law at the University of Hawaii and a global fellow at the Woodrow Wilson International Center for Scholars.

Maxine and I spoke about climate change law—her area of expertise—and related issues, including climate migrants, threats to island nations, and how governments and international organizations can work on solutions. This is a timely conversation, as it takes place during Climate Week and the UN General Assembly in New York.

Just a quick note: the sound quality is a little lower than usual and there are a couple of drop-outs. We apologize for that, but you can check the full transcript of this talk on carnegiecouncil.org.

You'll also find links to other resources on climate change, including a podcast and transcript from Eban Goodstein, director of the Bard Center for Environmental Policy, on the future of solar power. We'll be posting more podcasts on these subjects in the coming days and weeks.

Finally, special thanks to Miranda Massie for connecting us with Maxine. Miranda is the founder and director of the Climate Museum and Maxine is on the Museum’s board of trustees. You can find out more at climatemuseum.org and you can watch a 2017 Global Ethics Forum TV show with Miranda at carngiecouncil.org or youtube.com/carnegiecouncil.

For now, calling in from Honolulu, Hawaii, here’s my talk with Maxine Burkett.

Maxine, thanks so much for talking today. I'm looking forward to this talk.

MAXINE BURKETT: It's my pleasure. Thank you for having me.

ALEX WOODSON: Your area of focus is climate change law. We spend a lot of time at Carnegie Council thinking about things like refugees, things like the Geneva Convention, so I wonder how climate change law—an emerging field—fits in with these topics.

MAXINE BURKETT: Yes, absolutely. I'm happy to discuss that.

Climate change law is quite capacious, and it's growing. It includes everything from litigation at the domestic level to law and policy-making at the state and local levels all the way up to the international level. We've seen this over the last several decades of treaty-making and treaty-refining in order to address the mitigation of climate change, adaptation, and emerging issues like loss and damage. That is a big and robust area of law that needs to track some swiftly changing conditions that we're finding ourselves in.

I would argue, too, though, that climate change could impact on all areas of law. The way we think about climate change law will continue to grow as we understand it in areas like international humanitarian law, even private law, contracts, and property. All of these things are very much within the context of a changing climate.

ALEX WOODSON: I know a lot of your research and work focuses on island nations, places like the Marshall Islands and the Maldives. When you think about climate change law in regard to island nations that are losing their land, what can they do from a legal perspective? What are they doing from a legal perspective right now?

MAXINE BURKETT: I do a lot of work looking at the larger impacts of climate change on islands. Small island nations that are primarily atoll nations like Kiribati and Tuvalu and the Marshall Islands have to consider the loss of territory, and territory is obviously a very significant part of your statehood. What that means for their planning moving forward is quite complex.

I will say this very quickly. As we understand climate science, the more near-term issue is actually heat and lack of fresh water, so there are really urgent issues for island nations that are generally more isolated, that are generally reliant on rainwater, and that need good temperatures to grow food that they rely on. These are vulnerabilities that are quite significant and that are very near-term. While we know in the next couple of decades loss of territory, loss of land, and shifting baselines are going to be significant, there are immediate issues that are of concern.

In all of that, in the context of both the immediate issues that they're exposed to initially on top of having to think a generation or two ahead in terms of loss of territory, there's an urgent need for swift action in terms of reducing our emissions. Out of the gate we need to absolutely be as aggressive as we can be in reducing emissions and drawing carbon down. Small island nations have been a strong proponent of that and are trying to lead the way in their own planning with respect to their carbon intensity.

There is also obviously the need to adapt, and so the adaptation infrastructure is quite significant. At the international level, I would say not only have the small island nations been significant voices for aggressive action, but they've also been a moral compass for the community of nations that are gathering to set targets, to discuss adaptation planning, and to provide financing for that adaptation planning.

There's another provision—loss and damage—that is looking at these intense losses that we have not seen before, unprecedented loss of territory as the result of sea level rise and the loss of fisheries, for example. These are things that we cannot trust that we'll be able to reverse.

Action in order to press for those legal changes and the requisite planning around that has been quite significant and has been the charge of the small island nations—and others, of course, but with the urgency and the severity of the impacts that they're set to experience, they've been very prominent voices in that discussion.

ALEX WOODSON: I want to speak a little bit more specifically about some of these island nations if we can. Are there any strategies that you've seen that have been particularly effective? Are there any nations that are doing something that other nations aren't doing that could be replicated in other places maybe?

MAXINE BURKETT: When you're talking about strategies, you mean adaptation approaches and strategies? There have been efforts and litigation to address trans-boundary emissions, for example, that are coming out of countries in Europe and having a long-term effect in terms of sea level rise and other impacts in the Pacific. There have been innovations in terms of litigation and in efforts to press the international community to consider the moral and legal obligations that countries have to one another because of the disproportionate impact of climate change.

Specifically, you find countries like Kiribati highlighted because—particularly under their former administration with Anote Tong—there was a desire to look at an "all of the above" strategy. Again, Kiribati is one of the countries that is an atoll, has low-lying land, is facing the specter of loss of territory, and has lost habitable territory significantly.

They've taken an approach looking at migration: "So if we migrate, how can we migrate with dignity?" Migration with dignity is a big part of their approach. In other words, "How do we ensure that our citizens, once they leave Kiribati, are prepared to lead productive lives in the countries that they relocate to?"

The downside to that is that oftentimes it does require levels of skill and language acquisition that may not be universally available. But there are other backup plans that they've explored and employed, such as purchasing land in Fiji to—in the interim—grow food as their ability to grow food is dwindling because of saltwater intrusion into their agricultural lands, for example. The idea is that—with that purchase of land—as over time they're more stressed as to the ability to live in Kiribati, that there would be a place for the I-Kiribati to move to over time.

Of course, there are also those innovative engineering approaches, which I don't think will be a cure-all, but certainly are worth considering, which is to say, "Can we find a way to raise land? Can we find engineering that will allow for the land to move with the level of sea level rise and still allow for safe, fresh water through desalination or some other kinds of technology?"—so actually looking at multiple ways of addressing the more marginal livelihoods that we'll be seeing in places in the Pacific.

ALEX WOODSON: You're talking to me right now from a Pacific island, Hawaii, Oahu specifically.

MAXINE BURKETT: Yes, I am.

ALEX WOODSON: I think Hawaii has been hit by a few—I guess they're called "cyclones" in the Pacific over the last few years. What are some of the issues that Hawaii is dealing with as a group of Pacific islands, and what are some of the legal strategies that the state is undertaking to get more resources or do other things to help deal with climate change?

MAXINE BURKETT: Great question. First, I'll say that we are in the North Pacific, and the North Pacific has typhoons; there are cyclones in the South. We are also a state of the United States, so we have had more hurricane threats. We have had these events, and we can see the data that shows that the track of hurricanes in the 1990s was significantly lower for the islands, and the track last year, for example, in 2018, was cutting right across the Islands.

We are a small target in a large ocean. We've had significantly more threats in terms of hurricanes that were edging toward the state, and, of course, parts of the state were impacted with heavy rain and flooding during some of those storms last year. So, we are more so than ever before gearing up for hurricanes. We have seen, more so than ever before, those radar images of hurricanes in sort of a conveyor-belt kind of fashion, moving across and perhaps just south of the islands. This is unusual, and this is certainly a shift from 20 years ago.

What we're also seeing in Hawaii is an incredible increase in heat. A lot of people thought, We're in the middle of Pacific Ocean, and the ocean absorbs a lot of heat. Right at the moment, the ocean is 3 degrees warmer than it has been typically, and we're experiencing significant heat waves, which have had an impact on quality of life and public health. Drought, increasing wildfires—all the things you see happening across our country and the world—are happening here.

What's different with Hawaii is that—like I say, we're "ahead of the curve but behind the ball." We're ahead of the curve in that we were the first state to introduce 100 percent renewable electricity by 2045. This is by formal state law. We have agreements between all of the counties to get to a similar target by 2045 in ground transportation, all electric.

We are well-supportive of affirmative actions on reducing our emissions and building our resilience. We're the first city—the city and county of Honolulu—to have an Office of Climate Change Sustainability and Resiliency. The words "climate change" are actually in the name of the office. The mayor is very supportive in this significant action in terms of understanding both our vulnerability and the opportunities for being more resilient in the face of these impacts that might come with greater speed over the years to come.

We are behind the ball to the extent that we are a very remote island. We saw what happened with Hurricane Maria in Puerto Rico, and we noted our greater distance and perhaps equal vulnerability to some degree. That's noteworthy for our decision makers and nerve wracking for a lot of our residents.

We are highly dependent on food being imported, so while we have a year-round growing season we have been in decades of shifting to this more globalized model, and so a lot of our food is shipped in—80-90 percent. Any shocks externally we feel very significantly, whether it's in price or availability, and we suspect that that might increase. We have a lot of work to do even though we've come really far.

ALEX WOODSON: We just posted an article on our website about climate migrants, how this is becoming a huge issue—people having to leave their regions and their countries because of climate change. The article was about the fact that climate migrants aren't currently protected in the same way that refugees would be, people who are fleeing war or persecution.

Do we need to change the Conventions? Do we need to have new Conventions? What can be done to help protect people who are displaced because of climate change?

MAXINE BURKETT: That's a great question and a really difficult one. We could spend hours on just that one question.

I'll give you a quick lay of the land, which is to say that there have been maybe two or three categories of discussion around how to manage the increasing flow of human beings within their countries and across borders. The management issue is the first one, and then, of course, there's a way we can do poorly or we can do it well with the rights of those migrants in mind.

There has been obviously—because we have this Convention on Refugees—a real interest in seeing if there's a possibility to amend it or to somehow allow for the definition to be more expansive and include the circumstances of climate change. The Refugee Convention at present is really about concerns of citizens that can't be met or who is antagonistic to the government. Persecution and urgency are elements of the definition that don't really capture all of the circumstances or maybe even most of the circumstances of climate-induced migration.

The Refugee Convention would have to be amended quite significantly, and there is some sort of realpolitik here, which is to say, can we amend it in a way that's meaningful and won't actually weaken it, given the fact that our experience with the Refugee Convention has not been an exemplary one in the last few years.

There have also been calls—and I'd say this is the second category—of having a specific Climate Change Migration Convention that would look at how we could provide legal protections. Again, there is difficulty in terms of thinking about the timeframes here. These things are very considered and very political and take a good amount of time to actually come into being, and to get that level of consensus at the nation-state level—much less understanding exactly what the characteristics are of climate-induced migration compared to other kinds. These are difficult questions that suggest it would take a bit longer to get any kind of satisfying resolution.

The third issue or category is that the vast number of people who will be displaced will be displaced internally. The international community can't really do much in terms of management or governance of that. They can provide maybe support in terms of financial support or other kinds of mechanisms to support countries in dealing with that kind of displacement, but that's really up to the countries themselves. Many of those countries, in numbers that we're seeing—the big numbers of hundreds of billions—are in the global South, so it becomes a bit more difficult.

I guess the short answer is that climate migrants absolutely need legal protections, and we absolutely need to crack this nut, and we need to do it swiftly. What we're finding is that there are significant opportunities but drawbacks in the current infrastructure, so we may need to think outside of the box on this one.

ALEX WOODSON: We're speaking during the UN General Assembly, during Climate Week here in New York. What can and should the United Nations be doing this week to tackle climate change? I know it's a very broad question, but what are you seeing right now from the United Nations, and what more could they be doing?

MAXINE BURKETT: This is also a tough one because the United Nations is only as powerful as the individual countries allow it to be. It's not a superstructure or super-government. It really is dependent on there being commitment and rigor at the country level and there being individuals—and certainly the non-governmental participants—who can set the bar high in terms of what we're looking for that's appropriate, given the science of climate change. People like Greta Thunberg—who has gotten a lot of well-deserved attention—can they push the participants, the country leaders, to think at a level that this crisis requires?

The body itself can only do as much as the countries, and I think we need to be pretty specific about how we press those countries, especially the more intransigent ones, to be involved and to think differently about the political economy.

I also think, in terms of the international organization, we need to think differently about climate change. It's not just an environmental issue. In fact, the cabining of it as an environmental issue has allowed it to be sidestepped in other areas in which international cooperation may be more successful and compliance may be more successful—whether it's international trade law or other elements of private international law that would be relevant to this. We do this just in Climate Week, but this needs to be done every day and in every element of our international governance and certainly at our state and domestic levels, but in international governance we need to be thinking about climate change in all of the transactions that we are sanctioning at that level.

ALEX WOODSON: I just have one more question. This dovetails with the last question, speaking about the United Nations being only as strong as its member nations.

Obviously, a very strong nation, a very strong member of the United Nations, is the United States. We've seen after the last elections a push for a Green New Deal. A lot of people are concerned that this could change society. A lot of people are concerned that it will take rights away, things like that.

From a legal perspective, what can and can't be done in terms of the Green New Deal, and how should we be thinking about something like this?

MAXINE BURKETT: There are a couple of ways to think about this. Concerns about one's rights and abilities to thrive are fair and significant, and I just want to emphasize that the ability to express your rights and thrive are challenged with every major storm, with every major heat wave. The needs are greater when we see our natural resources and the environments around us collapse.

So, thinking about the costs of not doing this is as significant as understanding the costs of acting. Without exception, the costs of inaction are so much greater. That doesn't oftentimes even get monetized—the emotional and moral strains on our society of the kinds of impacts we're seeing from Dorians and Harveys or even Tropical Storm Imelda. These are significant equations. We need to understand what's on either side.

I would say that the Green New Deal—and again, it's a proposal; the actual document is just a few pages. What it's suggesting—that is I think really monumental and a significant shift in thinking—is that we cannot separate our personal and community wellbeing, public health, and our ability to have jobs with dignity from the state of our environment. That alone is what makes the Green New Deal, I think, so important and innovative. It suggests that these areas that we've separated are inextricably intertwined, which in fact they are.

We have the opportunity here to think about the ways in which public health, good jobs, the state of equality of our environment in the near term—whether it's reducing air pollution so our children can go to school, focus on their work, and have the possibility of thriving in their own lives—is connected to also the long-term survivability of our planet, which we are also inextricably intertwined with.

I think there's a significant reframing and re-shifting that happens when we see documents and proposals like the Green New Deal. The specifics of those kinds of proposals will play themselves out, and we see that playing itself out obviously in the Democratic primary campaign, where we see different iterations that basically act on that theme of really understanding workers, public health, and environmental integrity as having a deep connection to one another.

ALEX WOODSON: That was Maxine Burkett. She is a professor of law at the William S. Richardson School of Law at the University of Hawaii and a global fellow at the Woodrow Wilson International Center for Scholars.

I'm Alex Woodson. Thanks for listening to Global Ethics Weekly.

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