Academic journal article Washington International Law Journal

Unjust Enrichment: An Alternative to Tort Law and Human Rights in the Climate Change Context?

Academic journal article Washington International Law Journal

Unjust Enrichment: An Alternative to Tort Law and Human Rights in the Climate Change Context?

Article excerpt

I. Introduction

The projections described by the International Panel on Climate Change ("IPCC") reveal an anticipated incongruity in climate change impacts across the globe.1 In particular, Small Island Developing States, ("SIDS") such as the country of Tuvalu, will suffer disproportionately from the impacts of climate change.2 Importantly, SIDS such as Tuvalu have contributed to the movement to draw linkages between human rights and climate change,3 and have also contributed to attempts to build tort-based international climate change case law,4 yet these developments have not produced any form of compensation for the country. Without the requisite funding to take immediate action, SIDS such as Tuvalu may face the destruction of their environment and livelihood,5 with no feasible plan for adaptation.

This comment argues that countries such as Tuvalu may wish to pursue compensation to pay for adaptation strategies in international tribunals and domestic courts using the principle of unjust enrichment. Part II provides a synopsis of prevailing scientific analysis in support of climate change, contextualizes the climate change impacts experienced by Tuvalu, and identifies two existing policy responses to climate change. Part III considers the inadequate application of tort and human rights frameworks to the SIDS context. Part IV discusses the principle of unjust enrichment, its existence in international law, its applicability to the Tuvaluan context, and potential challenges SIDS may face in pursuing claims under this legal theory.

II. For Some SIDS, Mitigation and Adaptation Strategies Alone Cannot Address the Threats of Climate Change

Scientists researching climate change emphasize that climate change stresses differ among every climatic zone.6 SIDS are particularly at risk and will suffer disproportionately from the impacts of climate change.7 The capacity for countries to adapt to their unique climate change-related experience depends on a number of factors, including economic and natural resource circumstances, "social networks, entitlements, institutions and governance, human resources, and technology."8 Because SIDS tend to lack many of these adaptive factors, it is likely that climate change adaptation will be particularly challenging for such countries.9

A. Human-Caused Climate Change and Associated Sea Level Rise Threaten SIDS

Scientific analysis attributes climate change to human activity. Representing much of the scientific community, the IPCC10 defines climate change as "any change in climate over time, whether due to natural variability or as a result of human activity."11 Even so, the Third Assessment Report of the IPCC establishes that human activity, and particularly greenhouse gas emissions ("GHGs"), is the driving force behind global warming.12 The IPCC predicts that current trends in global warming will exacerbate the number of people suffering from disease, hunger, malnutrition, and death; and injury from heat waves, floods, storms, fires, and drought.13

Furthermore, the global scientific community agrees that anthropogenic sea level rise will affect millions of people living near coasts. Coastal zones will experience significant erosion and other risks due to climate change and sea level rise.14 Coastal flooding alone, without intervention, may grow more than tenfold by 2080, thereby affecting over 100 million people per year.15 To make matters worse, the IPCC anticipates continuously rising sea levels, cyclone intensification, and intensification of storm surges.16

SIDS are particularly vulnerable to the impacts of climate change and will suffer disproportionately from its impacts.17 Their extreme vulnerability is due both to economic and geographic circumstances.18 Many SIDS face economic disadvantages associated with remoteness, susceptibility to natural disasters, and heavy dependence on international trade, and on local natural resources.19 In addition, twelve of the fifty-one SIDS are categorized under the United Nations as Least Developed Countries, a circumstance which further exacerbates their difficulty in responding to climate change in an adequate manner. …

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