5. Challenges of Collective and Permanent Relocation
5.2 The Allocation of Responsibility
The challenge of allocating responsibility to accommodate environmentally and externally displaced peoples is certainly a difficult one, as it poses the question; what States, if any, are responsible for providing a solution to the adverse impacts of climate change, to the point at which they must accommodate the permanent and collective relocation of environmentally and externally displaced peoples from uninhabitable SIDS? There are two potential avenues for allocating responsibility to States, based firstly on States who have contributed
significantly to GHG emissions and thus climate change degradation, and based secondly on States which have the capacity to accommodate these peoples.
There are many advocates for responsibility based on liability. Kolers wishes to lay the accountability “at the feet of those who are destroying it: the perpetrators of the climate
152ibid.
151McAdam (n 130) 152.
150P. Holthus and others, ‘Vulnerability Assessment for Accelerated Sea Level Rise. Case Study: Majuro Atoll, Republic of the Marshall Islands’ (1992) SPREP Reports and Studies Series, 73. As cited in: Willcox (n 108) 191.
catastrophe”.153These perpetrators, based on their GHG emissions, have been identified as China, United States, India and Russia.154Biermann and Boas have similarly argued that the countries which have “caused most past and present GHG emissions”155should have the most responsibility. However, it is submitted that there are many issues with this approach. Firstly, allocating responsibility in this manner may be achieved through an application of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts,156which requires a causal link to be established between the wrongful act and injury suffered in order to seek reparation157(which in this case would be the provision of some form of replacement territory158). However, it is difficult to pin down causation and proportionate liability when there are multiple contributing factors to the harm. Environmental degradation is the result of many States committing many acts of pollution. The more actors at play, the more diffused the responsibility becomes. Mark Bovens describes this as “the problem of many hands”.159 The only real guidance offered by international law on navigating multiple wrongful acts are the Guiding Principles on Shared Responsibility,160but unfortunately these principles are mainly aspirational and lack any binding power of enforcement.
Additionally, it is reasonable to assume that polluters a number of decades ago were unaware of the effect their actions would have on the climate.161Therefore, holding current and future
161Craig A. Johnson, ‘Governing Climate Displacement: The Ethics and Politics of Human Resettlement’
(2012) 21(2) Env. Politics 308, 320.
160André Nollkaemper and others, ‘Guiding Principles on Shared Responsibility in International Law’ (2020) 31(1) EJIL 15.
159Mark Bovens, Robert E. Goodin and Thomas Schillemans (eds), The Oxford Handbook of Public Accountability (OUP, 2007) 1.
158Any form of compensation other than the provision of new territory would be a futile attempt to replace the loss suffered by these displaced peoples. See: Dietrich and Wündisch (n 83) 87.
157ibid Article 31(1).
156ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001).
155Frank Biermann and Ingrid Boas, ‘Protecting Climate Refugees: The Case for a Global Protocol’ (2008) 50(6) Environment: Science and Policy for Sustainable Development 8, 13.
154Union of Concerned Scientists, ‘Each Country’s Share of CO2 Emissions’ (12 August 2020)
<https://www.ucsusa.org/resources/each-countrys-share-co2-emissions> accessed 8 June 2021.
153Avery Kolers, ‘Floating Provisos and Sinking Islands’ (2012) 29(4) Journal of Applied Philosophy 333, 334.
As cited in: Dietrich and Wündisch (n 83) 93.
governments responsible for acts of pollution committed by oblivious previous generations does not seem fair, even if those acts contribute to present degradation.162Furthermore, it is submitted that allocating responsibility for hosting displaced peoples based on previous GHG emissions could generate ill will among the international community, and may make States hesitant to ratify any future international instruments which oblige further reductions in GHG emissions, for fear they could be required to host a displaced population due to a potential breach of obligations. Lastly, allocation of responsibility purely on the basis of liability for climate change could see the relocation of populations to territories which are otherwise wholly unsuitable due to their incapability of accommodating the displaced peoples’ way of life. Although displaced peoples might not be able to relocate to their optimal solution, wholly impractical locations should be avoided.
Therefore, this research submits that responsibility should instead be allocated on the basis of those who have the ability to accommodate an influx of displaced peoples on a permanent basis. This proposal takes one element from Risse’s two-pronged approach to responsibility, which is based on State liability as well capacity, according to wealth.163The accommodation of these peoples should be realised in a way that can grant them as close a lifestyle as
possible to before, and therefore considerations of capacity should also extend beyond the financial means of States, to geographical proximity, temperate climate and a similar natural landscape.164State willingness to accommodate these peoples, as well as to grant them whatever level of autonomy is agreed upon, is also required. This approach is also not unproblematic. It is not based on legal responsibility for climate change, but rather on a hope that States which are able, will step up and help. It is unwise to assume that States which are comparatively blameless for this situation will be eager to shoulder all of the consequences.
Additionally, over-reliance on geographical proximity could result in the responsibility for all displaced peoples from SIDS based in the Pacific to rest on Australia alone, for example.
164Dietrich and Wündisch (n 83) 90.
163Risse (n 83) 297.
162ibid.
It has been previously recommended that the United Nations General Assembly requests an Advisory Opinion from the International Court of Justice on whether, and how, GHG emitters should be held liable for climate change.165Such an advisory opinion could clarify how the causal link would be established for multiple actors, and the scope of liability they would face. This would certainly alleviate some of the concerns associated with allocating
responsibility based on liability, and makes Risse’s two pronged-approach to responsibility more realistic. Furthermore, it is submitted that if a clear set of guidelines for allocating responsibility based on liability is established, one such consequence of that responsibility should be to financially support the States that are best suited to accommodate the displaced peoples based on capacity, geographical proximity and climate. This could in turn increase these State’s willingness to assist in the relocation.
It is clear that selecting States which will accommodate a collective and permanent relocation of these displaced peoples is a mammoth task, and beyond the scope of this research. Further authoritative guidelines and a sense of international political will must be obtained before one could outline an appropriate framework. It is evident at any rate that this will be one of the main challenges for the international community to consider when devising protections for environmentally and externally displaced peoples.
165Emma Allen, ‘Climate Change and Disappearing Island States: Pursuing Remedial Territory’ (2018) Brill Open Law 1, 22.