The International regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people dislocated because of environmental change. Such dislocation may occur internally within the country of original origin or externally into another State’s territory. International and national legal frameworks do not currently recognise or assist people displaced as a result of environmental factors including displacement occurring as a result of climate change. Legal frameworks developed to deal with this issue will need to consider the legal rights of those people displaced and the legal responsibilities of those countries required to respond to such displacement. The objective of this article is to identify the most suitable international institution to host a program addressing climate displacement. There are a number of areas of international law that are relevant to climate displacement, including refugee law, human rights law and international environmental law. These regimes, however, were not designed to protect people relocating as a result of environmental change. As such, while they indirectly may be of relevance to climate displacement, they currently do nothing to directly address this complex issue. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic. Commentators in this area have proposed three different regulatory models for addressing climate displacement. These models include: (a) Expand the definition of refugee under the Refugee Convention to encompass persons displaced by climate change; (b) Implement a new stand alone Climate Displacement Convention; and (c) Implement a Climate Displacement Protocol to the UNFCCC. This article will examine each of these proposed models against a number of criteria to determine the model that is most likely to address the needs and requirements of people displaced by climate change. It will also identify the model that is likely to be most politically acceptable and realistic for those countries likely to attract responsibilities by its implementation. In order to assess whether the rights and needs of the people to be displaced are to be met, theories of procedural, distributive and remedial justice will be used to consider the equity of the proposed schemes. In order to consider the most politically palatable and realistic scheme, reference will be made to previous state practice and compliance with existing obligations in the area. It is suggested that the criteria identified by this article should underpin any future climate displacement instrument.

Climate Change and Human Displacement

This paper will focus on the legal issues associated with people displaced as a result of water scarcity. Human displacement can lead to internal displacement (displacement of people within their country) and external displacement (displacement of people into another country). If the displacement takes place as a result of climate change these people may be referred to as climate refugees. The majority of work on climate refugees has focused on those people that will lose their homes as a result of sea –level rise. The number of people that could be displaced as a result of prolonged drought and lack of adequate water supplies is likely to be far more significant in number. There are estimates that around 2.8 billion people will suffer water shortages by 2025 and many of these people are at increased risk of internal or external displacement. Certain groups are more likely to be displaced as a result of prolonged drought or water scarcity. These groups include indigenous and minorities groups living in areas that are more susceptible to climate change and groups living in areas with a history of water shortage and supply issues. People displaced as a result of water scarcity are at increased risks of malnutrition and of dehydration. Furthermore the lack of adequate water supplies in such areas increases the risk and spread of disease among the population. In certain instances internal and external displacement may lead to escalation of conflict and competition for water resources in newly settled territories. This paper will use case studies from Australia (indigenous groups and rural landholders) and East Africa (Ethiopia, Sudan and Kenya) to demonstrate the significance of human displacement arising as a result of water scarcity. Climate adaptation policy frameworks will need to address a number of legal issues, arising as a result of climate displacement from water scarcity. There are a number of unresolved legal issues for both categories of environmental displaced people. The major legal issue for externally environmentally displaced people is lack of international recognition and support for these people. The Climate Change Convention, the Refugee Convention, the Desertification Convention and Human Rights instruments all fail to provide recognition for people externally displaced as a result of environmental conditions. Similarly there is a lack of legal recognition and legal support mechanisms to assist those people internally displaced by environmental conditions. The lack of developed environmental rights in most countries contributes to this problem. Polices and governance frameworks must be put in place which aims to prevent such displacement through programs identifying populations at risk and instigating damage mitigation and relocation programs. In addition there are a number of legal issues which may arise such as; rights of compensation, property and tenure disputes, increases on the water demand and environmental degradation in places of relocation and jurisdictional issues arising in federal countries. This paper will provide an overview of the legal issues at the international and national levels arising as a result of climate displacement from water scarcity.  

The Role of the Judiciary in Earth Jurisprudence : An Analysis of Judicial Approaches to Standing in Climate Change and Environmental Justice Litigation

The role of the judiciary in common law systems is to create law, interpret law and uphold the law. As such decisions by courts on matters related to ecologically sustainable development, natural resource use and management and climate change make an important contribution to earth jurisprudence. There are examples where judicial decisions further the goals of earth jurisprudence and examples where decisions go against the principles of earth jurisprudence. This presentation will explore judicial approaches to standing in Australia and America. The paper will explore two trends in each jurisdiction. Approaches by American courts to standing will be examined in reference to climate change and environmental justice litigation. While Australian approaches to standing will be examined in the context of public interest litigation and environmental criminal negligence cases. The presentation will draw some conclusions about the role of standing in each of these cases and implications of this for earth jurisprudence.

The Future of the World's Forests

Forest regulation is never far from the headlines. The recent COP 18 negotiations held in Doha towards the end of 2012 were criticized by observers for slowing the development of the ‘REDD+’ initiative and for marking the end of ‘Forest Day’, whilst in the last month controversy has arisen following reports that the World Bank’s investment in forestry-related projects has failed to address poverty or benefit local communities. Dr Rowena Maguire’s research focuses on international climate and forest regulation and indigenous and community groups rights and responsibilities in connection with environmental management. Her new book, Global Forest Governance, identifies the fundamental legal principles and governance requirements of Sustainable Forest Management, an introduction to which is provided in her article below.

Regulation of emissions under the carbon pricing mechanism : a case study of Australia’s coal fired electricity sector

On 1 July 2012, the carbon pricing mechanism commenced in Australia with the aim of reducing emissions and encouraging investment in clean energy. A substantial proportion of Australia’s emissions are attributable to the coal-fired electricity generation sector. This article examines whether the carbon pricing mechanism will effectively facilitate emissions reduction from the coal-fired electricity sector. Aspects analysed include the legislative constraints placed on the carbon price, the carbon pollution cap and provisions specific to the coal-fired electricity sector, such as transitional assistance. It is concluded that, in practice, the carbon pricing mechanism may not be sufficient in itself to achieve significant reduction in emissions from coal-fired electricity generation or significant investment in clean energy, and that a suite of additional regulatory measures, such as the federal Renewable Energy Target, should operate in conjunction with the mechanism.

Compensation covenants for mining activities run with the land : a win for successive landowners

The Queensland Supreme Court case of Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Shire Council [2012] QSC 381 provides guidance on the long-term ramifications of compensation agreements for mining activities. The central issue considered by the Court was whether compensation payments relate to land and run with the land pursuant to s 53(1) of the Property Law Act.

Innovative Leadership by School Principals : embedding Information Communication and Technology in Kuwaiti Schools

Kuwait is an oil rich country planning for a future that is not dependent on exploiting natural resources. A major policy initiative has been the introduction of Information Communication and Technology (ICT) to schools. However, contextual issues and teacher capabilities in the use of ICT have limited the success of this initiative. The study examines the leadership strategies of two secondary school principals whose schools have achieved this goal. The case study draws on intensive data collected through interviews of the principals, and teachers supported by document analysis and observations. Analysis was guided by theoretical perspectives drawn from the literature which identified a range of strategies used by the principals to manage change. The principals of Schools A and B employed three key strategies to maximise the impact on the teaching staff incorporating ICT into their teaching and learning practices. These strategies were: (a) encouragement for teaching staff to implement ICT in their teaching; (b) support to meet the material and human needs of teaching staff using ICT; and (c) provision of instructions and guidance for teaching staff in how and why such behaviours and practices should be performed. The outcome of this study proposes an innovative change leadership model that informs emerging countries, which are also undergoing major change related to ICT. However, the study also revealed limitations in the implementation of ICT in the classroom and provides insights into further strategies that principals need to adopt.

Issues in negotiating a Carbon Sequestration Agreement for a Biosequestration Offsets Project

Biosequestration of carbon in trees, forests and vegetation is a key method for offsetting greenhouse gas emissions. To facilitate it, the Commonwealth has introduced the Carbon Farming Initiative, a scheme whereby carbon credits can be earned for biosequestration offsets projects. The project proponent must acquire under state law a ‘carbon sequestration right’ which confers the benefit of the sequestered carbon on the land. Each State provides for an agreement associated with the carbon sequestration right between the landowner and the holder of the right (‘carbon sequestration agreement’). This article identifies some key risks and issues that must be considered in the drafting of a carbon sequestration agreement to support the successful operation of a biosequestration offsets project.

Logan Basin Water Resource Plan : environmental assessment of the southern Moreton Bay islands. Technical Advisory Panel Report: Stage 1.

This report is a technical assessment of the hydrological environment of the southern Moreton Bay islands and follows the terms of reference supplied by the then Queensland Department of Natural Resources and Water. The terms of reference describe stage 1 as a condition assessment and stage 2 as an assessment of the implications of water planning scenarios on future condition. This report is the first stage of a two-stage investigation whose primary purpose is to identify and assess groundwater dependent ecosystems (GDEs) and the groundwater flow regimes necessary to support them. Within this context, the groundwaters themselves are also considered and comment made on their condition. Information provided in this report will inform an amendment to the Logan Basin Water Resource Plan to incorporate the southern Moreton Bay islands. The study area is the water resource plan amendment area, which includes North and South Stradbroke islands and the smaller islands between these and the mainland, including the inhabited smaller rocky islands—namely, Macleay, Russell, Karragarra, Lamb and Coochiemudlo islands. This assessment is largely a desktop study based on existing information, but incorporates some field observations, input from experts in specific areas and community representatives, and the professional experience and knowledge of the authors. This report reviews existing research and information on the southern Moreton Bay area with an emphasis on North Stradbroke Island, as it represents the largest and most regionally significant groundwater resource in southern Moreton Bay. The report provides an assessment of key waterrelated environmental features, their condition and their degree of dependence on groundwater. This report also assesses the condition and status of ecosystems within this region. In addition, the report identifies information gaps, uncertainties and potential impacts; reviews groundwater models that have been developed for North Stradbroke Island; and makes recommendations on monitoring and research needs.

Increasing Food Production Sustainably in a Changing Climate : Understanding the Pressures and Potential

Australian agriculture is faced with the dilemma of increasing food production for a growing domestic and world population while decreasing environmental impacts and supporting the social and economic future of regional communities. The challenge for farmers is compounded by declining rates of productivity growth which have been linked to changes in climate and decreasing investment in agricultural research. The answer must lie in understanding the ecological functionality of landscapes and matching management of agricultural systems and use of natural resources to landscape capacity in a changing climate. A simplified mixed grain and livestock farm case study is used to illustrate the challenges of assessing the potential for shifts in land allocation between commodities to achieve sustainable intensification of nutrition production. This study highlights the risks associated with overly-simplistic solutions and the need for increased investment in research to inform the development of practical strategies for increasing food production in Australian agro-ecosystems while managing the impacts of climate change and addressing climate change mitigation policies.

Towards a right to sustainable energy

Energy represents the cornerstone of modern life. However, current patterns of energy production are unsustainable. This is true for both the developed and developing worlds. In this context, this paper considers how, from a conceptual perspective, the law can contribute to more sustainable patterns of energy production can be addressed. The approach that this paper adopts is to consider two of the most important concepts that are relevant to the governance of modern environmental and societal challenges: human dignity and sustainable development. It is within this context that this paper contends that the convergence of these concepts provides the platform for a novel approach to encourage the sustainable production of energy by way of a ‘right to sustainable energy’. With this in mind, this paper considers the forum in which a right to sustainable energy may be developed and outlines the content of the proposed right.

Property : a regulatory instrument for protecting private and public interests in the environment

Property in an elusive concept. In many respects it has been regarded as a source of authority to use, develop and make decisions about whatever is the subject matter of this right of ownership. This is true whether the holder of this right of ownership is a private entity or a public entity. Increasingly a right of ownership of this kind has been recognised not only as a source of authority but also as a mechanism for restricting or limiting and perhaps even prohibiting existing or proposed activities that impact upon the environment. It is increasingly therefore an instrument of regulation as much as an instrument of authorisation. The protection and conservation of the environment are ultimately a matter of the public interest. This is not to suggest that the individual holders of rights of ownership are not interested in protecting the environment. It is open to them to do so in the exercise of a right of ownership as a source of authorisation. However a right of ownership – whether private or public – has become increasingly the mechanism according to which the environment is protected and conserved through the use of rights of ownership as a means of regulation. This paper addressed these issues from a doctrinal as well as a practical perspective in how the environment is managed.

The diversity of interests in environmental governance : a challenge for the rule of law

The function of environmental governance and the principle of the rule of law are both controversial and challenging. To apply the principle of the rule of law to the function of environmental governance is perhaps even more controversial and challenging. A system of environmental governance seeks to bring together the range of competitive and potentially conflicting interests in how the environment and its resources are managed. Increasingly it is the need for economic, social and ecological sustainability that brings these interests – both public and private – together. Then there is the relevance of the principle of the rule of law. Economic, social and ecological sustainability will be achieved – if at all – by a complex series of rules of law that are capable of enforcement so as to ensure compliance with them. To what extent do these rules of law reflect the principle of the rule of law? Is the principle of the rule of law the formally unstated value that is expected to underpin the legal system or is it the normative predicate that directs the legal system both vertically and horizontally? Is sustainability an aspirational value or a normative predicate according to which the environment and its resources are managed? Let us deal sequentially with these issues by reviewing a number of examples that demonstrate the relationship between environmental governance and the rule of law.