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Extinction and climate change

By Atty. Harry Roque Jr. | Feb. 28, 2013 at 12:01am
Ten law schools are competing in this years national rounds of the Philip Jessup Moot Court competition, the largest and most prestigious competition for law students. This is unprecedented. A moot court is where students simulate oral arguments before a court. The Jessup simulates arguments before the International Court of Justice, the judicial organ of the United Nations. This year, the problem revolves around the issue of climate change, one that is foreign to me since I have been a student of the law of the sea and the law applicable on armed conflicts. To my delight, this area is turning out to be fascinating and extremely urgent as well for low-lying island-states in the Pacific, including the Philippines.

The problem revolves around an island state, applicant Alfurna, whose territory has been inundated when the sub-standard repair of its seawall intended to protect it from the rising sea water led to its

collapsed. The inundation is because of climate change, which is a result of unabated carbon emissions from developed states, including the respondent state, Rotatia. Both applicant and respondent states are parties to the United Nations Framework Agreement on Climate Change. Under this treaty, all countries have the “common but differentiated responsibility” to address the malaise of climate change. What exactly is meant by this obligation is contested between the parties. Alfurna, as a developing country who has not contributed substantially to the problem of global warming, will argue that developed states have the obligation to pay for cost of adaptation

measures, or those intended to address the dire consequences of climate change including rising sea levels. It will argue that this obligation means that it must pay for the cost of these adaptation

measures and should not profit from it by granting third world countries with interest paying climate change loans. Rotatia, on the other hand, will argue that its obligation under the UN treaty is only to provide new and additional funds, which it has done through a concessionary loans of $120 million.

Also at issue is whether Alfurna, whose territory is now under water, is still a state and hence, able to appear and advance its claims before the International Court of Justice. Under the statute of the

court, only states can appear before it. In order to be able to sue the respondent state, it must prove that it continues to be a state despite the inundation of its territory, The only thing going for applicant is this regard is a lease that it has entered into with a third state, Finutafu, over the island of Nasatima. It will argue then that this lease suffices to comply with the element of permanent

territory, an element that under the Montevideo Convention is required in order that an entity can be a state. Rotatia , on the other hand, will argue that the loss of Alfurna’s territory is complete and that

its lease of the island, because it does not own it, will not suffice for purposes of statehood. Yet an interesting issue is the status of individuals who are forced to flee their homeland as a result of natural disasters such as climate change. In the problem, around 3,000 Afurnan nationals became

boat people when their territory sank. They were then apprehended by Rotatian authorities at sea and detained for three years at a facility that resembles a medium security prison. There were about five deaths from dysentery and at least three of the detainees went insane. There were human rights reports that the detention facilities were cramped.

Alfurna will argue that a new norm has arisen granting victims of natural calamities the right to temporary residence in third states. It will argue that this has arisen because of major natural calamities such as the Haitian earthquake and the Asian tsunami, among others. Rotatia, on the other hand will argue that only individuals fleeing from political persecution have the rights of refugees. The Alfurnans may hence be lawfully detained as illegal migrants.

My team this year includes for the first time a freshman, Peterson Poon. Also part of the UP team are Maria Margarita Lim, a veteran being  been a member of last year’s UP team that finished as

semi-finalist in Washington DC; Ana Margarita Rodriguez, a participant to the Stetson moot in Florida last year; Arianne Ferrer, the acknowledged cerebral heavyweight in the team; and Crisela Bernardino, head of the Delta Lambda Sorority of UP. Assisting me in the training of the team are Atty. Maricel Seno and Mr. Gil Anthony Aquino.

Unfortunately, this column will be printed without knowing who will be Team Philippines for this year. But as I’ve told my team, it’s not just about winning. It’s about gaining mastery of that branch of law that makes such practices as torture, genocide, war crimes and crimes against humanity as being absolutely prohibited. It’s also about the skill of advocacy to ensure that the law should be applied in a manner that would suit our interest as human beings, In this sense, all participants to this year’s moot competition are already champions in their own right.

Congratulations to all of them!
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