Climate Victims Deserve a Hearing, Whether Here or in The Hague

FILE - In this Nov. 9, 2011 file photo, a couple stands in front of River Street while the waves hit the seawall, in Nome, Al
FILE - In this Nov. 9, 2011 file photo, a couple stands in front of River Street while the waves hit the seawall, in Nome, Alaska. A massive storm that pummeled Nome earlier this month also prevented the last barge from delivering gasoline and diesel fuel before winter sets in on Alaska's western coastline. The city of 3,500 is now iced-in and a plan is in the works to fly in fuel in what could be a logistical nightmare requiring round-the-clock deliveries by air, weather permitting. (AP Photo/Peggy Fagerstrom, file)

Last week, leaders of the 193 members of the United Nations General Assembly descended upon New York to open that body's sixty-seventh session. Among the pressing questions facing the body is the adequacy of the international community's current approach to the problem of climate change. The leaders also held a high-level meeting on the rule of law at the national and international levels.

The two agenda items could not be more in sync: All over the world, climate change is creating victims who lack protection of the rule of law. For instance, island nations such as Cape Verde, Grenada, the Marshall Islands, and Palau are seeing their lands increasingly affected by rising sea levels, intensifying storms, and other threats that owe their genesis to greenhouse gas emissions. In the United States, we also are seeing the devastating effects of anthropogenic climate change, most pointedly in the Alaskan village of Kivalina.

The city of Kivalina and its native village reside on the tip of a six-mile barrier reef. With a decline of protective sea ice and a rise of storms and surges, Kivalina's land is being swallowed up - -so much so that the U.S. Government Accountability Office has warned that the village could be flooded at any time and that "[r]emaining on the island... is no longer a viable option for the community."

To fight back, Kivalina filed suit against 19 major energy companies, claiming that they, as major contributors to global warming, should help defray the costs of relocating the city.

Shortly before the U.N. session opened, a U.S. appeals court ruled that, as far as the federal government is concerned, climate change is a political problem to be addressed by the legislative and executive branches. Basic legal principles of right and responsibility, in other words, have no bearing and if the residents of Kivalina want compensation for their harms, they will have to duke it out with their opponents in Congress.

Whether in this or a subsequent U.N. session, a parallel campaign to Kivalina's will be brought to the General Assembly and the question will be raised, will the international community follow the U.S. court's lead by throwing the climate change problem to the dustbin of politics?

Last year, several small island states called on the U.N. General Assembly to request an advisory opinion from the International Court of Justice on the responsibilities of nations whose emissions of greenhouse gases within their jurisdictions contribute to serious harms in other countries. Sensing that endless political negotiations have resulted in little progress internationally, the islands sought to show that the climate change problem is one of law and justice, rather than merely politics and power.

At Yale, students are studying this campaign as part of a project on climate change and the international rule of law. Through this initiative, we have heard firsthand from island representatives who face the enormous challenge of working with powerful nations that seem not to care that their homelands, their ways of life, and their very existence are in peril. At bottom, the islanders' struggle is for climate justice and like earlier civil rights movements they may be forced to turn to the courts for help in prodding along recalcitrant political interests.

All nations should support a campaign to bring the rule of law to the climate change problem. Though any opinion obtained from the ICJ would be non-binding, it may begin a process whereby reducing the threat of climate change comes to be seen as a legal responsibility of nations, rather than an act of charity toward weak and distant neighbors. It may bring the order and principle to a matter affecting the very fate of our planet.

The sooner this transformation happens the better. Small low-lying island nations are the first and most obvious to experience significant impacts from climate change, but we delude ourselves when we think that they are alone or that the threat for us lies far in the future.