Maxine Burkett

Reading Between the Red Lines: Loss and Damage and the Paris Outcome

For the least-developed countries and small-island states, excluding a standalone provision for loss and damage in the Paris Agreement constituted a red line, one that the negotiating groups refused to cross. For the developed world—and the United States in particular—any possible pathway to liability and compensation that a loss-and-damage provision might introduce was an equally bright and impassable red line. In the end, negotiators remained steadfast. Both lines remained more or less unbreached, and compromise language emerged in the Paris Outcome. 1 This article describes the process leading up to the Outcome, the language included in the loss-and-damage provision and its implications, and identifies questions that remain. In particular, the absence of a clear funding stream, the treatment of climate-related displacement, and questions regarding compensation for climate impacts are not completely resolved. These are, perhaps, the most compelling, confounding, and impactful elements of the loss-and-damage debate thus far. Based on the conclusion of the Paris COP , they are likely continue to animate the loss-and-damage discussion for the foreseeable future.

Understanding the Climate-Sensitive Decisions and Information Needs of Freshwater Resource Managers in Hawaii

AbstractUnderstanding how climate science can be useful in decisions about the management of freshwater resources requires knowledge of decision makers, their climate-sensitive decisions, and the context in which the decisions are being made. A mixed-methods study found that people managing freshwater resources in Hawaii are highly educated and experienced in diverse professions, they perceive climate change as posing a worrisome risk, and they would like to be better informed about how to adapt to climate change. Decision makers with higher climate literacy seem to be more comfortable dealing with uncertain information. Those with lower climate literacy seem to be more trusting of climate information from familiar sources. Freshwater managers in Hawaii make a wide range of climate-sensitive decisions. These decisions can be characterized on several key dimensions including purpose (optimization and evaluation), time horizon (short term and long term), level of information uncertainty (known, uncertain, d...

Loss and Damage

This article explores so-called ‘loss and damage’ as well as the emerging legal infrastructure that seeks to address it. The article concludes by identifying some of the deep points of contention in the international discourse on loss and damage, particularly regarding compensation, and considerations for a successful resolution of the impasse that loss and damage has produced.

The Nation Ex-Situ

It is plausible that by the close of this century the impacts of climate change will render certain States in the Pacific and Indian Oceans uninhabitable. The geopolitical consequences – not to mention the devastation to the nations and peoples at issue – will be great and unprecedented. These consequences will be significant despite the relatively small number of individuals affected. This loss of land may create a conundrum for international law, which is only equipped to deal with neater circumstances of stateless individuals or expiring States. Optimally, there would be sufficient political will and commitment at the international level to reduce emissions aggressively and work toward the continued habitability of all, although as Professor Carr addresses in Chapter 2, sea levels will rise regardless. Absent any indication of such swift action and given scientific eventualities, international law should now find a suitable resolution for the nation-states that will lack a territory. In response to this phenomenon, I argue that international law can accommodate a new category of international actors: the Nation Ex-Situ.Ex-situ nationhood would be a status that allows for the continued existence of a sovereign State, which would be afforded all the rights and benefits of sovereignty among the family of nation-states, in perpetuity. It would protect the peoples forced from their original place of being by serving as a political entity that remains constant even as its citizens establish residence in other States. It is a means of preserving the existing State and holding the resources and well-being of its citizens – in new and disparate locations – in the care of an entity acting in the best interest of its people.In practice, this new category would require the creation of a government framework that could exercise authority over a diffuse people. Other scholars have suggested a resurrection of the political trusteeship system as a means of administering the duties of a deterritorialized government. Here, I elaborate on those proposals and recommend a possible hybrid structure that provides a permanent space for long-distance, and perhaps collaborative, governance of Nations Ex-Situ.In this chapter, therefore, I seek to complete two quite different but intimately related tasks. First, I demonstrate that the recognition of a Nation Ex-Situ is a novel but justified interpretation of the State, one that international law could tolerate and incorporate into its existing definitions. To the extent that critics deem this an impossible departure from existing norms, I argue that the exigencies of the soon-to-be-landless favor new and creative ways for States to exist in the international community. Second, I demonstrate that a modified political trusteeship system is a viable model for effective participation in the international community, given the scenarios that those displaced by climate change face. A key element of this arrangement would be the continued self-governance of those nations by trustees who are elected by their peers and who act for the benefit of the ex-situ nation. (This role would not be a reprise of their – in some cases – prior trustee relationships.) I then detail integral elements of this arrangement as applied to the peculiar circumstances of endangered States.