Belt and Suspenders? The World Heritage Convention's Role in Confronting Climate Change
| Published date | 01 July 2009 |
| DOI | http://doi.org/10.1111/j.1467-9388.2009.00637.x |
| Date | 01 July 2009 |
| Author | William C.G. Burns |
Belt and Suspenders? The World Heritage
Convention’s Role in Confronting
Climate Changereel_637148..163
William C.G. Burns
In the face of increasing frustration with the tepid, and
largely feckless, national and international institu-
tional responses to the growing threat of climate
change, many governments, as well as non-
governmental actors, have either initiated or are
exploring potential causes of action in judicial and
quasi-judicial fora. This article explores one of these
recent actions, the petitions before the World Heritage
Committee requesting listing of several sites listed as
World Heritage Sites under the World Heritage Con-
vention on the List of World Heritage in Danger. The
article explores the contours of the petitions filed to the
Committee, the potential implications of listing of sites
threatened by climate change on the List of World
Heritage in Danger and the merits of the legal argu-
ments advanced in opposition to such listings.
INTRODUCTION
The disheartening record over the past few decades, at
both the international and national levels, to confront
climate change in a meaningful fashion is likely to have
dire implications for many of the world’s most vulner-
able States, in this century and beyond. The most recent
assessment by the Intergovernmental Panel on Climate
Change (IPCC)1concluded that global average surface
temperatures have increased by 0.8°C over the last
century, with the linear warming trend over the past
50 years twice that of the past century.2Despite this
alarming trend, the drafters of the United Nations
Framework on Climate Change (UNFCCC),3in the face
of pressure from the USA and other States, resorted to
‘constructive ambiguities’ and ‘guidelines’, rather than
establishing strict legal commitments to reduce green-
house gas emissions.4Thus, the UNFCCC merely calls
on the parties in Annex I (developed countries and
economies in transition) to ‘aim’ to return their emis-
sions back to 1990 levels.5
The Kyoto Protocol6to the UNFCCC did establish
targets and timetables for reducing the greenhouse
gas emissions of industrialized States. However, the
modest nature of these commitments, coupled with the
fact that neither the USA nor rapidly growing develop-
ing States, such as China and India, are participating,
ensures that the Protocol will have a de minimis impact
on projected climatic trends during this century.7While
negotiations are taking place to develop a successor
agreement to Kyoto under the rubric of the ‘Bali Action
Plan’,8it is difficult to be hopeful in face of continued
resistance by the USA and major developing countries.9
1See D.L. Feldman, ‘Iterative Functionalism and Climate Manage-
ment Organizations: From Intergovernmental Panel on Climate
Change to Intergovernmental Negotiating Committee’, in R.V. Bartlett
et al. (eds), International Organizations & Environmental Policy
(Policy Studies Organization, 1995), 1195–1196.
2S. Solomon et al., ‘Technical Summary’, in Intergovernmental Panel
on Climate Change, Climate Change 2007: The Physical Science
Basis 5 (IPCC, 2007), available at 〈http://www.ipcc.ch/
ipccreports.ar4-wg1.htm〉. Atmospheric temperatures have been
rising at a rate of approximately 0.2°C per decade over the past 30
years. See James E. Hansen, Green Mountain Chrysler-Plymouth-
Dodge-Jeep v. Thomas W. Torti, Case Nos. 2:05-CV-302 & 2:05-CV-
304 (Consolidated), Declaration of James E. Hansen (Vt., 2007),
available at 〈http://www.columbia.edu/~ jeh1/case_for_vermont.pdf〉.
York, 9 May 1992).
4R.K.L. Panjabi, ‘Can International Law Improve the Climate? An
Analysis of the United Nations Framework Convention on Climate
Change Signed at the Rio Summit in 1992’, 18 N.C. J. Int’l L & Comm.
Reg. (1993), 491, at 504.
5See UNFCCC, n. 3 above, Article 4(2)(b).
6Kyoto Protocol to the United Nations Framework Convention on
Climate Change (Kyoto, 10 December 1997).
7Overall, climate researchers have estimated that full implementation
of Kyoto would reduce projected warming in 2050 by only about one
twentieth of one degree and projected sea-level rise by a mere 5
millimeters. See M. Parry et al., ‘Buenos Aires and Kyoto Targets Do
Little to Reduce Climate Change Impacts’, 8:4 Global Envtl. Change
(1998), 285. See also M.H. Babiker, ‘The Evolution of a Climate
Regime: Kyoto to Marrakech and Beyond’, 5 Envtl. Sci. & Pol’y
(2002), 195, at 202.
8Decision 1/CP.13, Bali Action Plan, found in Report of the Confer-
ence of the Parties, Thirteenth Session (FCCC/CP/2007/6/Add.1, 14
March 2008), available at 〈http://unfccc.int/files/meetings/cop_13/
application/pdf/cp_bali_action.pdf〉.
9D. Adam, ‘U.S. Balks at Bali Carbon Targets’, Guardian Unlimited
(10 December 2007), available at 〈http://www.guardian.co.uk/
environment/2007/dec/10/climatechange.usnews〉; J. Gupta, ‘Devel-
oped Countries Declarations on Climate Change “Make No Sense,”:
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Indeed, the rate of increase in greenhouse gas emis-
sions has leapt in the first decade of the new century to
more than two and half times the rate in the 1990s,10
outstripping even the IPCC’s most intensive emissions
scenario.11 As a consequence, even limiting projected
temperature increases to below 4°C above pre-
industrial levels may require a ‘radical reframing of
both the climate change agenda, and the economic
characterization of contemporary society’.12 This is an
extremely foreboding development, as most scientists
and policy makers now believe that even a 2°C increase
from pre-industrial levels will result in serious impacts
on human institutions and ecosystems.13
This combination of the urgency of the problem and
complexity of politico-legal solutions has caused many
State and non-State actors to look beyond traditional
international treaty mechanisms and national legisla-
tion for solutions to anthropogenic climate change.14 In
this context, litigation and other legal actions at sub-
national, national and international levels have evolved
from innovative ideas to an emerging practice area over
the last several years.15 Moreover, it is likely that inter-
national actions against major emitting States will
increase in the future.16
Some of these actions have been filed in domestic
courts, including in the USA. These include a challenge
to the US Environmental Protection Agency’s denial of
a petition to regulate greenhouse gas emissions from
new motor vehicles under Section 202(a)(1) of the
Clean Air Act,17 several actions alleging that climate
change constitutes a ‘public nuisance’,18 petitions to list
species allegedly threatened by climate change under
the Endangered Species Act,19 and a challenge to the
provision of financial support for international fossil-
fuel projects by the Overseas Private Investment Cor-
poration and the Export-Import Bank as violations of
the National Environmental Policy Act.20
Two actions have also been initiated in international
fora. In 2005, a petition was filed with the Inter-
American Commission on Human Rights on behalf of
Inuit peoples in Canada and the USA, requesting relief
for human rights violations associated with climate
change ‘caused by actions and omissions of the United
India’, India eNews (2 July 2008), available at 〈http://www.
indiaenews.com/business/20080702/129150.htm〉. The Obama
Administration in the USA has pledged to ‘engage vigorously’ in
climate change negotiations and, at the domestic level, has called for
implementing a cap-and-trade programme to reduce greenhouse gas
emissions in the USA back to 1990 levels by 2020, and by 80% by
2050. See K. Chipman and C. Dodge, ‘Obama Plan Has $79 Billion
From Cap-and-Trade in 2012’, Bloomberg News (26 February
2009), available at 〈http://www.bloomberg.com/apps/news?pid=
20601087&sid=aDT1Ybl.PccE&refer=home〉; Change.gov, The
Obama-Biden Plan, available at 〈http://change.gov/agenda/
energy_and_environment_agenda/〉; J. Mason, ‘Obama Vows Climate
Action Despite Financial Crisis’, Reuters (18 November 2008),
available at 〈http://www.reuters.com/article/vcCandidateFeed2/
idUSN18276285〉. Moreover, the Senate may begin debate on climate
change legislation this summer. See I. Talley, ‘Sen. Reid: Aiming to
Debate Climate Bill by Summer’, Wall Street Journal (20
February 2009), available at 〈http://online.wsj.com/article/
SB123516532284336065.html?mod=dist_smartbrief〉. However, gi-
ven substantial opposition to such initiatives, especially in the midst of
a deep recession, the fate of such efforts is highly uncertain. See ibid.
10 K. Anderson and A. Bows, ‘Reframing the Climate Change Chal-
lenge in Light of Post-2000’, Philosophical Transactions Royal Soc’y
A(29 August 2008), at 15.
11 J. Eilperin, ‘Carbon is Building Up in the Atmosphere Faster than
Predicted’, Washingtonpost.com (Washington Post, 26 September
2008), available at 〈http://www.washingtonpost.com/wp-dyn/content/
article/2008/09/25/AR2008092503989.html?hpid=moreheadlines
http://www.washingtonpost.com/〉.
12 See K. Anderson and A. Bows, n. 10 above, at 18. See also A.P.
Sokolov et al.,Probabilistic Forecast for Twenty-First Century
Climate Based on Uncertainties in Emissions (Without Policy) and
Climate Parameters, MIT Joint Program on the Science and Policy of
Global Changes, Rep. No. 169 (January 2009), at 24, available at
〈http://globalchange.mit.edu/files/document/MITJPSPGC_Rpt169.
pdf〉(latest MIT assessment projects median surface warming in
2091–2100 of 5.1°C).
13 Many climatologists and policy makers have identified temperature
increases of 1–2°C above pre-industrial levels as the threshold for
dangerous anthropogenic interference with the atmosphere. See
German Advisory Council for Global Change, New Impetus for
Climate Policy: Making the Most of Germany’s Dual Presidency,
WBGU Policy Paper 5 (Germany Advisory Council on Global
Change, 2007); Commission of European Communities, Communi-
cation from the Commission to the Council, the European Parliament,
the European Economic and Social Committee and the Committee of
the Regions, Limiting Global Climate Change to 2°C the Way Ahead
for 2020 and Beyond COM (2007) 002 final; J. Hansen et al., ‘Dan-
gerous Human-Made Interference with Climate: A GISS Model
Study’, 7 Atmospheric Chemistry & Physics (2007), 2287, available at
〈http://pubs.giss.nasa.gov/docs/2007/2007_Hansen_etal_1.pdf〉.
14 See H.M. Osofsky, ‘The Geography of Climate Change Litigation:
Implications for Transnational Regulatory Governance’, 83 Wash. U.
L.Q. (2005), 1789, at 1795–1800; E.A. Posner, ‘Climate Change and
International Human Rights Litigation: A Critical Appraisal’, 155 U.
Pa. L. Rev. (2007), 1925.
15 See E. Torbenson, ‘Lawyers Preparing for Explosion of Climate-
Related Work’, The Dallas Morning News, Business Section (24 June
2007); J. Peel, ‘The Role of Climate Change Litigation in Australia’s
Response to Global Warming’, 24 EPLJ (2007), 90, at 103–104;
M. Mukerjee, ‘Greenhouse Suits’, ScientificAmerican.com (3
February 2003), available at 〈http://www.sciam.com/article.cfm?
id=greenhouse-suits-2003-02-03〉.
16 R. Verheyen and P. Roderick, Beyond Adaptation: The Legal Duty
to Pay Compensation for Climate Change Damage, WWF-UK
Climate Change Programme Discussion Paper (November 2008),
at 37, available at 〈http://assets.wwf.org.uk/downloads/beyond_
adaptation_lowres.pdf〉.
17 Massachusetts v. EPA, 127 S. Ct. at 1438 (2007).
18 Native Village of Kivalina v. ExxonMobil Corp., 08-CV-1138 (ND
Cal., February 2008); California v. General Motors Corp., No. 3:06-
CV-05755 (ND Cal., 2006) (dismissed August 2007, appeal pending);
Comer v. Murphy Oil USA, Inc., No. 1:05-CV-436 (SD Miss., 2006);
State of Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265,
273 (SDNY, 2005).
19 Centre for Biological Diversity, Petition to List Acropora Palmata
(Elkhorn Coral), Acropora Cervicornis (Staghorn Coral), and
Acropora Prolifera (Fused-Staghorn Coral) as Endangered Species
Under the Endangered Species Act (Centre for Biological Diversity,
2004), available at 〈http://www.biologicaldiversity.org/swcbd/
SPECIES/coral/petition.pdf〉.
20 Friends of the Earth, Inc. v. Mosbacher, 488 F. Supp.2d 889 (ND
Cal., 2007) (case settled in February 2009).
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