On thin ice: the failure of the United States and the World Heritage Committee to take climate change mitigation pursuant to the World Heritage Convention seriously.

Author:Thorson, Erica J.
  1. INTRODUCTION II. THE "INCONVENIENT TRUTH": THE WORLD HERITAGE CONVENTION, GLACIER NATIONAL PARK, AND CLIMATE CHANGE A. Overview of the World Heritage Convention B. Climate Change: A Serious and Specific Danger to Glacier National Park 1. Glacial Retreat 2. Potential Effects on the Hydrological System 3. Vulnerable Biodiversity C. Petitioning for "In Danger" Listings due to Climate Change III. DEEP CUTS: CLIMATE CHANGE MITIGATION UNDER THE WORLD HERITAGE CONVENTION A. The Nature and Extent of State Parties" Obligations Under Articles 4, 5, and 6 1. The Limits of Discretion Under Articles 4 and 5 2. Article 6: No Deliberate Damage B. The Mitigation Strategy Required by the World Heritage Convention 1. To the "Utmost" of Their Resources.. The Case for Deep Cuts 2. Burden Sharing: Article 6 and "Common but Differentiated Responsibilities IV. POLITICS OF CONVENIENCE: STATUS QUO FOR THE UNITED STATES A. The World Heritage Committee's Weak Stance on Mitigation B. The US. Position on "In Danger" Listings and Citizen Petitioning 1. Citizen Petitions 2. State Party Consent V. CONCLUSION I. INTRODUCTION

    Arguably, the worst failure of U.S. environmental policy is the United States refusal to ratify the Kyoto Protocol (1) to the United Nations Framework Convention on Climate Change (UNFCCC), (2) which would have committed the United States to reducing its greenhouse gas emissions seven percent below 1990 emission levels by 2012. (3) Partially because of this failure, the Kyoto Protocol has been largely unsuccessful in meaningfully beginning to stem the tide of global climate change. (4) However, even if the United States had ratified the Kyoto Protocol and all other Parties fully upheld their commitments, the U.S. National Center for Atmospheric Research suggests that this effort would result in a reduction of projected warming by 2060 of only one-twentieth of one degree Celsius. (5) Without U.S. participation, however, the Kyoto Protocol's regime of greenhouse gas reduction targets will fail to achieve even this modest reduction of projected warming. (6)

    Without the United States on board with the Kyoto Protocol and future protocol negotiations, as well as the regime's overall failure to achieve the level of commitment necessary to avoid dangerous anthropogenic interference with the Earth's atmosphere, lawyers, policy-makers, and advocates are beginning to examine means of pushing a climate change agenda from beyond the framework of the UNFCCC and Kyoto Protocol. (7) Much of this effort focuses on climate change effects already occurring and legal responses available to address these effects. In fact, climate change, in particular global warming, is wreaking havoc on the Earth's ecosystems, and nothing short of an immediate and aggressive climate-change mitigation policy, plus intensive short-term and long-term adaptation strategies, will even begin to preserve our world as we know it.

    The ecosystem changes wrought by global warming are most evident in an increasingly common phenomenon: glacial retreat. Around the world, glaciers are melting at alarming rates. While the loss of glaciers is a loss of majestic, natural beauty, the loss of glaciers also has devastating effects on surrounding ecosystems. When a glacier disappears, it portends devastation for a watershed dependent on seasonal glacial ablation to supply its rivers with freshwater. (8) In fact, Himalayan glaciers supply critical freshwater to arid regions of Asia. (9) When the glaciers disappear, the supply of freshwater will also disappear. The newly unfrozen waters of retreating glaciers have formed glacial lakes held back by only earthen moraines, some of which have burst, causing Glacial Lake Outburst Floods (GLOFs), drowning villages, pastureland, and crops. (10) Many species depend on glaciers to supply river systems with the cold water necessary to support their life cycles. (11) Moreover, sea levels continue to rise as ice in the form of both glaciers and ice caps continues to melt. (12) Ten percent of earth's land (15,000,000 square kilometers) is covered with ice, (13) and seventy-five percent of the earth's freshwater is stored in that ice. (14) Glacial retreat has contributed, along with ice cap melt, between 0.2 and 0.4 millimeters per year to overall sea-levels during the last century. (15) Although this figure includes melting ice caps, scientists indicate that "[d]uring the 20th century, the areas and volumes for mountain glaciers declined much more than for the icecaps and contribute nearly all the [sea level rise]." (16) To put the amount of worldwide glacial melt in perspective: since the early 1960s, mountain glaciers have lost 4000 cubic kilometers of water, which is more than one year's worth of discharge from the Orinoco, Congo, Yangtze, and Mississippi Rivers combined. (17) Furthermore, in the 1990s, the rate at which glaciers melted more than doubled compared to the rates of previous decades. (18)

    While many of these concerns seem a world away from the United States, mountain ranges in mid-latitude regions, including the Cascade Range and Rocky Mountains, are suffering severe glacial loss. (19) In fact, Al Gore has been often cited as decrying the state of Glacier National Park's Rocky Mountain glaciers with the exclamation, "Within 20 years, this is the park that will be formerly known as Glacier." (20) In fact, Glacier National Park's ecosystem already suffers the consequence of the loss of the glaciers. (21) Glacial retreat has altered water flows and water temperatures have risen. (22) Additionally, temperature-sensitive organisms have begun migrations to find more adequate habitat. (23) These changes will forever alter Glacier National Park.

    Despite the immediacy of glacial retreat and the concomitant ecosystem devastation, the Bush Administration blithely insists that its policy of voluntary cuts in greenhouse gas emissions is a solid, workable climate change strategy. (24) The rejection of the Kyoto Protocol put the Bush Administration in a position to insist that the United States had not incurred any binding greenhouse gas reduction obligations, placating both industry and climate-change skeptics. (25) The UNFCCC sets goals, including "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system," but the UNFCCC is simply a framework convention; it does not itself set binding measures for fulfilling this goal. (26) The Bush Administration's recent climate change rhetoric in light of the latest Intergovernmental Panel on Climate Change (IPCC) Report charges that the United States is living up to its climate-change responsibilities under the UNFCCC and even considers itself a leader in climate change field. (27) This despite the fact that the United States' total greenhouse gas emissions now constitute approximately a quarter of the world's total greenhouse gas emissions. (28)

    Enter the World Heritage Convention (WHC). (29) The WHC protects numerous natural areas covered, or once covered by glaciers, including Waterton-Glacier International Peace Park (Glacier National Park represents the U.S. portion of the transboundary park). (30) At its inception it was heralded as a milestone for international cooperation. (31) Negotiations of the treaty stemmed largely from an international campaign arising out of plans to build the Aswan High Dam in Egypt, which would have flooded the Abu Simbel Temple. (32) Egypt and Sudan collectively appealed to the United Nations Educational, Scientific and Cultural Organization (UNESCO) to protect the temples, resulting in their dismantling and relocation. (33) The campaign to save the temples comprised the efforts of at least fifty countries, which, along with efforts to protect a number of other significant areas, propelled UNESCO to begin negotiations on an international agreement to protect cultural and natural areas of special significance to humankind. (34) The General Assembly of UNESCO adopted the WHC on November 16, 1972. (35)

    As part of the internationally cooperative spirit underlying the negotiations, the State Parties agreed to do all they can to protect and preserve World Heritage sites, including agreeing not to take deliberate measures that directly or indirectly damage world heritage. (36) From these commitments arise obligations to reduce--or at least halt the increase of--greenhouse gas emissions in light of the toll global warming is taking on protected World Heritage areas. (37) Given these obligations, the WHC provides an international forum beyond the UNFCCC and the Kyoto Protocol that could meaningfully address both climate change mitigation and adaptation--especially given the role that the United States has in fomenting global warming, its failure to commit to binding GHG reduction targets, and the effects that such warming is having on iconic, nationally protected natural areas like Glacier National Park. This is particularly true because the WHC is one of the few multilateral environmental agreements allowing direct citizen participation through a petition process. (38)

    Part II of this Article provides an overview of the WHC, examines, in basic terms, the current climate change threats to Waterton-Glacier International Peace Park, and describes the history of petitions to list various World Heritage sites as "in danger" due to climate change. Part III considers the nature of the core obligations of the WHC, concluding that they require an aggressive climate-change mitigation strategy that includes commitments to make deep-cuts in greenhouse gas emissions. Part IV describes the World Heritage Committee's (39) current efforts to adopt a climate change policy, and counters U.S. arguments that State Party consent is necessary for "in danger" listing and that the WHC in its implementing rules does not allow citizen submissions. Part V concludes that because climate...

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