35 U. Haw. L. Rev. 633 (2013)
A Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedy

handle is hein.journals/uhawlr35 and id is 647 raw text is: A Justice Paradox:
On Climate Change, Small Island
Developing States, and the Quest for
Effective Legal Remedy
Maxine Burkett*
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 signficant 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
unsurprising) justice paradox: the current international legal regime
forecloses any reasonable attempts at a remedy for victims of climate
change who are the most vulnerable and the least responsible.
. Associate Professor of Law, William S. Richardson School of Law, University of
Hawai'i. I thank Mahina Tuteur for excellent research assistance.

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