What does climate justice look like for the environmentally displaced in a post Paris Agreement environment? Political questions and court deference to climate science in the Urgenda decision.

• Author: Bellavia, Jeremy M.

1. Introduction

   Environmentally induced migration is not new to the pattern of biological migration on earth. (1) Human migration has ebbed and flowed in response to conflict, environmental changes, and resource scarcity throughout time. For generations people moved in search of "better land, milder climate, and easier living conditions." (2) Today, communities are continuing this trend. (3) What has changed, however, is the human influence from greenhouse gas ("GHG") emissions on the climate. (4) Anthropogenic climate change is having an unprecedented and varied effect on the environment leading to slow-onset disasters (e.g., flooding, increased extreme weather events, droughts, rising ocean levels). (5) The slow-onset environmental degradation caused by climate change disrupts livelihoods, creates food insecurity, and exacerbates resource inequality. (6)

   In developing countries and where people are heavily dependent on natural resources for survival, individuals are more vulnerable to climate change because they often lack the resources to successfully adapt. (7) Small Island Developing States ("SIDS") are home to some of the most vulnerable individuals, who have nowhere to go in the case of a climate change related disaster/ In other regions where vulnerable individuals have the resources to migrate, the environmentally displaced migrate to urban areas within their home country as a result of the slow-onset effects of climate change. (9) Increasing migration into urban areas strains local infrastructure and increases competition for natural resources, creating social unrest and political instability. (10) Strict immigration policies accompanying the modern geopolitics of state sovereignty and the growing trend of border extemalization (11) severely limit legitimate methods of migration. These policies leave those displaced by climate change to the risky channels of irregular migration, crossing sovereign borders illegally. (12)

   Developed states are the largest historic contributors to climate change, and are not immune to the effects. (13) During the Conference of Parties 21 ("COP21"), (14) the event that lead to the adoption of the Paris Agreement ("PA"), President of the United States Barack Obama said, "[w]e know the truth that many nations have contributed little to climate change but will be the first to feel its most destructive effects." (15) Developed countries are experiencing the costly market and non-market impacts of climate change, yet they have not taken the lead in drastically reducing emissions. (16) Highly populated coastal cities in the U.S. are experiencing the effects of storm surges, as well as impacts to marine and wetland eco-systems. (17)

   The efforts of individual states are not enough to stem the negative impact of climate change. Because climate change is global, it requires an international response. Prior to the adoption of the PA, the international treaty governing the stabilization of the climate through reduction of global GHG emissions was the United Nations Framework Convention on Climate Change ("UNFCCC"). (18) The Convention on Climate Change sets forth an overall framework for intergovernmental efforts to tackle the challenge posed by climate change. (19) The UNFCCC recognizes that the climate system is a shared resource whose stability is affected by industrial and other emissions of carbon dioxide and other greenhouse gases. (20)

   The PA was adopted under the UNFCCC in December 2015 (21), and is the first international environmental agreement ever to reference human rights. (22) The adoption of the PA followed two decades of capacity building, awareness, and research. (23) The PA was signed by 196 parties and became the first multilateral environmental agreement referencing parties' obligations to human rights. (24) Once fifty-five parties responsible for fifty-five percent of global GHG emission ratify the treaty, the agreement will come into force. (25) The PA will commit parties to their National Determined Contributions ("NDC"). (26) NDCs have the goal of keeping global temperatures below two degrees Celsius above pre-industrial levels. (27) The PA may bind parties to their voluntary commitments, but there is no enforcement or dispute settlement mechanism in the PA, nor does the PA provide procedural rights. (28) Accordingly, while the PA represents a step forward in addressing climate change, it does contain problematic enforcement gaps.

   In the 2014 report "Achieving Justice and Human Rights in an Era of Climate Disruption," the International Bar Association ("IBA") made over fifty recommendations to strengthen climate change justice. (29) This report was a measure of the global awareness of climate change and provided that "climate justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change impacts equitably and fairly." (30) The IBA report discussed the role that arbitration can play to fill the enforcement gaps related to the PA and influence international law related to climate change. (31)

   Businesses also play an important role in climate change mitigation. (32) As such, litigation and arbitration may present important tools in climate change mitigation. The scope of this paper is limited to the state of climate justice generally and the potential role of arbitration. (33) Because domestic legislatures are still slow to respond to the urgent situation presented by climate change, and the PA lacks enforcement mechanisms, litigation can be used to hold countries responsible for their GHG emissions reduction commitments. (34) June (2015) marked a potential turning point for climate related litigation. (35) In June (2015), in Urgenda v. Staat, a Dutch court ruled that the Netherlands has a "systemic responsibility" within its territory to reduce GHG emissions to the established national target, and that it was not on path to meeting that target. (36) This decision represents an important contribution to international jurisprudence relating to climate change mitigation. (37) The sections below will discuss this decision and others.

   This paper discusses the role of climate justice to mitigate climate change following the PA. Section II briefly discusses the effects of climate change on global peace and security and the gaps current international instruments leave in protecting the environmentally displaced. Section III discusses the significance of the Urgenda decision and its potential as a model for climate justice in pending and future cases.

2. A. CLIMATE CHANGE IS A THREAT MULTIPLIER, INCREASING POVERTY, AND DESTABILIZING FRAGILE STATES

   Before discussing the state of climate justice, it is important to first understand the challenges posed by climate change with respect to global peace and security, and the devastating impact climate change can have on the global population. Climate change strains economic growth, erodes food security, and increases poverty. (38) The earth's climate will not stabilize even if anthropogenic emissions of GHG are stopped, the negative effects associated with climate change will continue to affect local populations for centuries. (39) Continued global population growth means that an increasing number of people will be vulnerable to climate change, (e.g. more people are living in low lying coastal areas vulnerable to sea level rise). (40)

   Policies of colonialism and neoliberal trade created an unequal division of global resources between the wealthy global North and poor South. (41) Because states most responsible for anthropogenic climate change often have more resources than poorer states, they are better suited to reduce risks and adapt. (42) However, risk reduction and adaptation cannot shield even the wealthiest nations from all climate change related loss. (43)

   Violent conflicts stemming from the effects of climate change, threaten global peace and security. (44) U.S. Secretary of State John Kerry said, "Make no mistake: The implications here extend well beyond hunger. This isn't only about global food security; it's about global security--period." (45) Land degradation from unsustainable land use and extreme weather events lead to food insecurity, disrupts livelihoods, and drives people into urban areas. (46) Many displaced by climate change relocate within their home state. (47) Migration into urban areas increases competition for already scarce resources and can challenge already fragile governments. (48) Conflicts stemming from the symptoms of climate change contribute to large-scale migration from the global South and developing regions, to the North. (49) At the COP (21), President Obama said that the effects of climate change will lead to "[p]olitical disruptions that trigger new conflict, and even more floods of desperate peoples seeking the sanctuary of nations not their own." (50) In this way climate change is a "threat multiplier." (51) President Obama later said:

   The reason is because this one trend--climate change--affects all trends. If we let the world keep warming as fast as it is, and sea levels rising as fast as they are, and weather patterns keep shifting in more unexpected ways--then before long, we are going to have to devote more and more and more of our economic and military resources not to growing opportunity for our people, but to adapting to the various consequences of a changing planet. This is an economic and security imperative that we have to tackle now." (52) Climate change is linked to economic and social disruption, which can create environments ripe for recruitment by extremist groups like ISIL, and others. (53) Years of severe drought and poor water management in Syria led to total crop failure in the country's main agricultural region and eighty-five percent loss of livestock. (54) The loss of livelihoods forced families to migrate to already...