- The Washington Times - Thursday, April 4, 2002

As many now know, the South Pacific island nation of Tuvalu loudly blames its gloomy future on purportedly rising sea levels resulting from man-made "climate change." The truth, as detailed by climatologist Patrick Michaels, is somewhat different: "In short, Tuvalu is a Tuvalu-made ecological disaster that is now an economic disaster. The natives want out because they wrecked the place."

Having despoiled their native land through resource mismanagement and plain recklessness, Tuvaluans plan to unleash a preposterous lawsuit to force developed countries to pay them to go elsewhere.

This sovereign mosh pit first demanded nearby developed countries accept its 11,000 residents as "environmental refugees." New Zealand agreed, to a point. Obviously, a nation as small and lavish with welfare as New Zealand cannot absorb the entire moveable feast. So, the Tuvaluans eyed Australia for their other host organism. Exhausted by a flood of regional migrants and knowing full well the bunkum of this crowd's alleged plight, the Aussies demurred. Enter the lawyers.

Tuvalu threatens to bring suit in the International Court of Justice (ICJ) in The Hague. Their claim is that Australia is, or will be, responsible for damages to Tuvalu due to Australia's refusal to ratify the Kyoto Protocol on global warming. Global warming continues apace, sea levels rise, Tuvalu drowns, or so goes the argument.

There are at least two major problems with this claim, the phony neck brace of 21st-century litigiousness. The collapsing science underpinning "catastrophic climate change" notwithstanding, Tuvalu is actually growing, not shrinking. Second, even Kyoto's breathless proponents admit it wouldn't do anything.

Climatologist Patrick Michaels cites satellite data demonstrating "Tuvalu is near the epicenter of a region where the sea level has been declining for nearly 50 years. In fact, the decline is so steep that even using the U.N.'s lurid (and wrong) median estimates of global warming for the next century will not get the Tuvalus back to their 1950 sea level until 2050."

Further, Tuvalu seeks extraordinary relief, in effect a "mandatory" injunction that is, not preventing action but requiring it specifically, that a sovereign nation ratify and comply with a treaty. Typically, injunctive relief requires a higher showing of evidence. Even alarmist scientists claim that complete (that is, unrealistic) participation in and compliance with the Kyoto Protocol might only prevent about one inch of sea level rise in the next 100 years. You see the legal case, if nothing else, drowning.

Of course, lacking facts, causation or reasonable basis for judgment insures against neither frivolous lawsuits nor mindless verdicts. Yet we should not fear this threat, but welcome it, for two very good reasons: It will expose "climate change" science and illustrate the Bush administration's own, if distinct, exposure to such lawsuits due to a lack of Kyoto conviction.

Specifically, even before a court ruled by loopy Europeans, the Toovies' complaint poses greater danger to the eco-fear industry than to Australia because it will reveal the mythical scientific "consensus" as a small if vocal minority of calamity groupies enamored of unlimited "relevance" (funding). The New York Times, et al., will face no small task in distorting, e.g., 19,000 "skeptical" scientists on record as part of a petition project mentored by past president of the National Academy of Sciences, Dr. Frederick Seitz.

Again, substantive hurdles notwithstanding, the Toovies also threaten to expose the perils of feel-good treaty signatures without ratification or withdrawal. For example, Australia, the United States and many other developed countries went along with Kyoto's agreement and signing stages but make no effort to ratify. President Clinton, for example, refused to send the document to the Senate for a vote. Now, President Bush refuses to withdraw from Kyoto, preferring to merely badmouth a treaty that nonetheless bears our signature.

The 1972 Vienna Convention on Conventions, delineating the interpretation and administration of treaties, has something to say about that. Title 18 states that after signing a treaty, "a State is obliged to refrain from acts which would defeat the object and purpose of a treaty," until and unless "it shall have made its intention clear not to become a party to the treaty, or it has expressed its consent to be bound by the treaty."

Regarding Kyoto, that means the Bush administration cannot engage an energy plan calling for the construction of more coal-fired power plants, and/or its Valentine's Day "climate change" proposal (dignifying alarmism yet) allowing increased greenhouse gas emissions. This exposes the U.S. to a lawsuit in the ICJ substantially more legitimate than that facing the Australians.

Savvy Tuvaluans should also seek judgment that either administration violates Kyoto via the Vienna Convention. At that point, one hopes, we might see the Bush administration do the right thing, for which it has already taken a beating, and withdraw the United States from the Kyoto Protocol. As a matter of international law, Kyoto or his energy plan must go.

Who says frivolous lawsuits are all bad?

Christopher Horner is a senior fellow at the Competitive Enterprise Institute.

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