A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedy

Abstract

Despite their clear and significant vulnerability to climate change, small island developing states have not had the opportunity to pursue in earnest a remedy for the impacts of that change. All small island developing states face significant challenges to their economic well-being and the availability of basic resources -- including food and water. Some face the loss of habitability of their entire territory. Identifying and implementing adequate repair will be difficult enough. After at least two decades of knowledge of these impacts, however, small island developing states still face the equally difficult task of just getting their claims heard. This is not for want of trying. Indeed, there has been extensive research and scholarship as well as abbreviated attempts in international fora to hold large emitters accountable. These have not been effective. Further, the latest attempt to clarify the legal responsibility of the largest emitters has been met with threats of reprisal by those large emitters. This kind of intimidation, coupled with a weak international legal regime at base, delays justice for small island developing states.

In this article, Professor Burkett explores the failure of the legal regime to provide adequate process and substantive remedy for small island developing states -- either through the absence of viable legal theories, capacity constraints, or uneven power dynamics in the international arena -- or all three. She argues, however, that the costs of pursuing these claims -- and other novel approaches she outlines in the article -- are dwarfed by the costs to small island communities of unabated climate impacts. In surveying the possible claims and introducing new approaches, Professor Burkett attempts to respond to a striking and persistent (if surprising) justice paradox: the current international regime forecloses any reasonable attempts at a remedy for victims of climate change who are the most vulnerable and the least responsible.