The Price of Sovereignty in the Era of Climate Change: The Role of Climate Finance in Guiding Adaptation Choices for Small Island Developing States.

AuthorSancken, Lauren E.

TABLE OF CONTENTS INTRODUCTION I. RISKS ASSOCIATED WITH TERRITORIAL LOSS FOR SIDS A. Existing Legal Frameworks and Institutional Principles Relevant to Climate-Displacement and Sovereignty B. Territorial Loss and Sovereignty II. ADAPTIVE RESPONSES TO CLIMATE IMPACTS THAT SUPPORT SOVEREIGNTY FOR SIDS A. Territorial Measures to Preserve Island Territories 1. Preserving the Habitability of Existing Islands 2. Constructing Artificial Islands to Preserve Territory B. Planned Resettlement as an Adaptative Measure to Preserve Sovereignty and Secure Rights C. Legal and Political Measures to Preserve Sovereignty III. FINANCIAL MECHANISMS AVAILABLE TO SIDS FOR CLIMATE ADAPTATION A. Overview of International Climate Finance Mechanisms 1. Financial Mechanisms Established by the United Nations Framework Convention on Climate Change a. The Global Environment Facility b. The Green Climate Fund 2. Climate Finance Channeled Through Non-UNFCCC Funds 3. Bilateral, Regional, and National Climate Funds 4. Private Climate Finance Mechanisms B. Data Gaps in Adaptation Finance to SIDS C. Current Funding Sources for Adaptation Projects in SIDS D. Long-term Adaptation Projects Remain Underfunded and Unfunded E. Managing Longterm Finance Requires Institutional Capacity IV. RECOMMENDATIONS CONCLUSION INTRODUCTION

Small island developing states (SIDS) are at risk of losing their habitable territories to sea-level rise and severe weather events. Many of these islands are only a few feet above sea level and the impacts of climate change may render them uninhabitable. Climate change poses a threat to frontline communities everywhere, but it poses a uniquely existential threat to SIDS--these countries must contemplate how to retain their sovereignty if and when their island territories cease to exist. Small island states bear next to no responsibility for creating the climate disaster, yet they bear a disproportionate share of its consequences. These nations must not only embrace the challenge of designing adaptation solutions to preserve their existing territories or resettle to new ones, but also navigate how to fund those adaptations. While the United Nations Framework Convention on Climate Change (UNFCCC) currently provides the largest source of finance for adaptation projects in SIDS, longterm measures, like planned resettlement, are underfunded.

This Article discusses the adaptation choices available to SIDS against the backdrop of limited public and private financial mechanisms. It argues while short-term, project-based financing is becoming increasingly available for adaptation projects, current financing options are inadequate to meet the longterm adaptation needs of small island states.

Part I of this Article describes the risk of statelessness associated with a loss of habitable territory and the lack of adequate legal frameworks to assist island communities in a climate displacement scenario. Part II discusses potential adaptation responses to the climate impacts small island nations face, from territorial solutions, such as building up existing islands and designing artificial islands, to nonterritorial options, such as proactive resettlement elsewhere. It also examines potential legal and political measures SIDS can use to preserve their sovereignty and territorial waters and increase investment in climate adaptation strategies. Part Ill explores the landscape of global climate finance (both the mechanisms that flow from the UNFCCC and non-UNFCCC sources of funds), data gaps regarding adaptation finance, the funding sources that have been used for adaptation projects in SIDS, and the lack of funding for longterm adaptation measures such as elevating existing islands, building artificial ones, or planned resettlement. Part IV provides recommendations for how SIDS might leverage these existing financial and legal mechanisms to reinforce their sovereignty and make self-determined adaptation choices about their futures. It argues SIDS should continue to pursue short-term adaptation projects because public finance investors readily fund these solutions. In addition, it argues SIDS should continue to pursue and advocate for the longterm financing needed to implement longterm adaptation measures like resettlement. Simultaneously, SIDS should pursue legal and political strategies to preserve their sovereignty and secure their territorial boundaries to guard against the risks of their territories becoming submerged or boundaries becoming ambulatory.

  1. RISKS ASSOCIATED WITH TERRITORIAL LOSS FOR SIDS

    Climate change poses an existential threat to SIDS. In addition to the severe damage caused by climate-related extremes, these states face the real prospect of losing their sovereignty if their territory becomes uninhabitable. (1) The possibility and logistics of maintaining a meaningful life on the atolls or elsewhere must be considered against the backdrop of existing legal frameworks and achieving the overarching goal of maintaining sovereignty. Capital investments in adaptation measures, including the potential resettlement of certain atoll communities, is what makes these choices not just theoretical, but possible.

    1. Existing Legal Frameworks and Institutional Principles Relevant to Climate-Displacement and Sovereignty

      One immediate threat SIDS face is displacement caused by climate change. Climate displacement implicates many legal frameworks, including migration and asylum law, environmental law, international development law, and human rights and humanitarian law. (2) However, no single overarching governing framework exists for climate-displaced persons in either the cross-border migration context or the internal displacement context. Because of this gap, no affirmative sources of legal protection or financial support exist for climate-displaced persons. (3)

      Legal regimes for cross-border movements employ human rights principles, but do not offer meaningful legal remedies. The 1951 Refugee Convention provides basic principles for guiding human rights in cross-border displacement scenarios, but its narrow definition of the term "refugee" excludes most climate-related scenarios. (4) The legal architecture that applies to persons who are internally displaced (5) consists of the Guiding Principles on Internal Displacement, (6) the Platform on Disaster Displacement's cross-border principles (successor to the Nansen Initiative), (7) and the 2018 Global Compact for Safe, Orderly and Regular Migration. (8) While these guidelines help countries develop best practices for migration scenarios, none are binding and none provide affirmative remedies.

      Some regional frameworks offer greater sources of protection for those displaced by climate change within certain regions, but these agreements do not encompass all SIDS. For instance, the 1969 Organization for Africa Unity Convention on Refugees (OAU) and the 1984 Cartagena Declaration on Refugees (9) expanded their definitions of "refugee" to include climate migrants. (10) Both instruments have operated to protect those displaced by environmental conditions and natural disasters, and could be used to similarly assist climate migrants, but they are only available to communities in Africa and Latin America. (11)

      Bilateral agreements, like the Compacts of Free Association (COFAs) between some Pacific SIDS and the United States, could potentially mitigate the risk of displacement. For nearly forty years, the United States and three Pacific Island states--the Republic of the Marshall Islands (RMI), the Federated States of Micronesia (FSM), and the Republic of Palau--have engaged in COFAs. (12) The major provisions of the COFA between the RMI and the United States, for example, fall into three categories: (1) economic support from the United States with the goal of RMFs economic self-sufficiency, (13) (2) securing the United States' national security and strategic military rights, (14) and (3) the right of Marshallese citizens to reside and work in the United States and its territories as lawful non-immigrants. (15) While these COFAs enable lawful immigration to the United States and provide a structure for continued economic support, they do not directly support those displaced by climate impacts or provide project financing for adaptation measures. However, if amended as outlined in Subpart II.C, they could provide financial and institutional support.

    2. Territorial Loss and Sovereignty

      The self-determination and sovereignty of SIDS are inexorably tied to their territories. Without a territory, a nation's right to statehood becomes precarious. (16) Territory, and with it, statehood, are "fundamental precursor[s] to the enjoyment of all other rights." (17) When a nation's territory disappears, that nation must address complicated questions of how to exist and how to make its collective existence as a state meaningful. (18) While international law recognizes sovereignty is flexible and may be independent of territory, (19) particularly when communities are made diasporic by processes of invasion or colonization, (20) one of the largest political risks to SIDS is they may not be recognized as "states" if their populations are forced to migrate. (21) Even though a strong presumption favors continuity of statehood regardless of territory, (22) the international community has not addressed the prospect of a state whose population must permanently resettle elsewhere.

      Loss of territory is not just a threat to political sovereignty; it poses a threat to a nation's right to freely pursue its economic, social, and cultural development. (23) One facet of self-determination for many SIDS is the right to an Exclusive Economic Zone (EEZ). An EEZ is a "an area [up to 200 nautical miles] beyond and adjacent to the territorial sea" where the coastal state enjoys sovereign rights over natural resources and has jurisdiction over "the establishment and use of artificial islands, installations and...

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