Compared to the long planetary history, humans have existed on the face of Earth for a relatively short time but have already managed to make a deep, permanent imprint on its ecosystem. The debate regarding the epoch we currently live in is now being put to rest with scientific bodies across the world, agreeing that we have indeed moved from the Holocene to the Anthropocene epoch. However, the prime question posed to the legal fraternity is whether the international legal system is equipped enough, to resolve the problems of an Anthropogenic world. This article discusses the implications of rising sea levels on international law and the need for evaluating existing relevant legal principles.
The interlink between rising sea levels and International Law
One of the most certain outcomes of climate change is a sea-level rise. The present rate of change in the sea level is 3.3 mm per year, and the sea height variation has been steadily increasing for many years. This phenomenon shakes the foundations of international law, as the core of many international legal principles depends on geographical stability. It poses a threat of extinction to low lying states, a disruption to the structure of maritime zones, and the violation of a wide range of human rights. In particular, rising sea levels have ramifications in three main aspects of international law: (1) law of the sea; (2) principles of statehood; and (3) international human rights.
The division of the maritime zones by the United Nations Convention on the Law of the Sea (UNCLOS) is dependent on the baseline determined by the coastal geography, which is perceived to be certain. Baselines act as the starting line of the outer limits of maritime zones and are important for the delimitation of maritime boundaries. This legal framework that was created to maintain certainty is now facing the challenge of rising sea levels. With water moving inwards changing the coastal geography, the states’ jurisdiction on their maritime zones will significantly be affected. In 2012, the Committee on the Baselines of the International Law Association remarked that the changes caused by erosion and sea-level rise could result in total territorial loss and, consequently, the loss of baselines and maritime zones measured from these baselines.
The change in baselines results in two possible situations. The first one, being the retreating of the baseline landwards and the second, is its disappearance. With baselines retreating landward, the legal status of maritime zones changes, affecting sovereign rights, including innocent passage, freedom of navigation, etc. Moreover, there could be a change in the initial direction of the coast, which may result in a breach of Article 7(3) of UNCLOS. The provision states that drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast. Such an article would be violated on replacing the former base point with a new one if there is a considerable distance between them, as the new baselines would depart from the general direction of the coast.
There is a substantial dichotomy between the maritime regime of low-tide elevations and islands. Article 13(1) of UNCLOS defines low-tide elevations as a naturally formed area surrounded by and above water at low tide but submerged at high tide. In contrast, an island is defined in Article 121(1) as a naturally formed area of land, surrounded by water, which is above water at high tide. Since the maritime entitlements are different for both legal situations, islands that are at a threat of submergence or of change into low tide elevations would try to assure their geographical stability by constructing artificial installations that prevent further submersion. Indeed, a major solution for low-lying territories and islands is to invest in the construction of artificial islands. This raises the question of whether these artificial installments would be legally accepted. Artificial islands need to be legally recognised to enjoy the same maritime entitlements that are conferred on islands that are naturally formed. However, artificial islands are not yet conferred with the legal status of ‘islands’ by the UNCLOS and are therefore outside of its regime. Thus, undeniably, the maritime jurisdiction and entitlement for these island nations would suffer.
As the possibility of submersion of island nations by rising sea levels become more certain and foreseeable, the legal fraternity compels to answer the question of extinction of states. It should be noted, however, that there is no conclusive theory that determines the existence of a state. Article 1 of the Montevideo Convention on Rights and Duties of States, 1933, recognises the declarative theory that states four elements as the criteria for statehood: (1) a permanent population; (2) a defined territory; (3) government; and (4) capacity to enter into relations with other states. The conflicting constitutive theory claims recognition by other nations as the determinant factor of statehood. International jurisprudence strongly suggests that the extinction of a state depends on the criteria that determine one’s existence. This notion will require a conceptual change when faced with the challenge of rising sea levels. The two contradicting streams of opinions regarding this issue were formed by Rosemary Rayfuse and Derek Wong. Rayfuse argues that a state ceases to exist when it fails to meet the criteria for existence. As sea levels rise, the territory becomes uninhabitable, forcing the evacuation of its population and eventually a complete sinking of the territory. Meanwhile, Wong emphasises the ‘strong presumption in favour of the continued state’. The Order of Malta that lost its sovereignty over the Maltese islands is still considered a subject of international law that enjoys sovereignty through recognition by other states. Similarly, the Holy See that lost the territory of the Papal States after the unification of Italy continues to be non-territorial sovereignty since it is recognised so by a considerable portion of the international comity. Thus, they provide examples of the continued existence of sovereignty even in the absence of a defined territory.
In such a situation, island nations are presented with solutions, such as investing in the construction of artificial islands, operating through the government in exile mechanism, transferring a portion of the territory of a third state in favour of the island state, or forming a confederation of states with another nation. Nonetheless, each of these solutions is faced with issues of legal viability. Since artificial islands are not equated legally with an island, the question of it being regarded as a ‘defined territory’ for constituting a state remains unanswered. Further, the government in exile mechanism has been a temporary operation until now, and the legality of it as a permanent solution for states facing the threat of submersion is left to be determined. Additionally, the principle of the land dominates sea that has been relied upon by the ICJ would require a change in situations of submerged states. Needless to say, many international legal principles and rules are in dire need of revision and would have to transform to accommodate these new circumstances and save the plight of these vulnerable nations.
International Human Rights
Climate change and rising sea levels are not stand-alone issues, where they can adversely affect the enjoyment of human rights. Rising sea levels can have impacts on a wide range of rights, ranging from the right to life, adequate food, safe drinking water, sanitation to the right to self-determination. Land inundation would deprive people of their traditional territories and livelihood and challenge their right to self-determination as it is unlikely for them to be relocated and remain together in another place, with functioning institutions and governance capacity. Although the phenomenon of land submersion by a rise in sea levels is a slow process, certain events like flooding and storm surges may be sudden, rendering the land uninhabitable and impacting the movement of people. This movement can either be voluntary migration, planned relocation, or displacement. Hence, current policies and legal frameworks need to be assessed whether they can effectively preserve human dignity while helping people remain in situ or migrate elsewhere.
Several existing legal tools like Sendai Framework on Disaster Risk Reduction 2015-2030, Cancun Adaptation Framework, etc. can be used effectively to mitigate the risk of disasters and plan for relocation. Some of these aforementioned tools provide strategies to prevent landward encroachment by the sea, such as building dykes, dunes, tide gates, etc. The UN Guiding Principles on Internal Displacement, a soft law instrument, can also prove to be effectual in such situations. However, according to the Nansen Initiative, there are normative gaps in addressing the movement of people in the context of a disaster. Courts have limited the scope of ‘inhuman or degrading treatment’ such that the phrase does not include the circumstances of general poverty and lack of resources that would occur in a post-disaster setting. Thus, a protection claim is not substantiated unless a state deliberately withholds resources and the harm claimed, is imminent. National level mechanisms for addressing issues of stay and movement in the disaster context are also uncoordinated and largely ad hoc. Evidently, any movement would require international cooperation in terms of constructive policies, and funding would have to be conducted to maintain the standard of human rights.
There is no doubt that climate change and rising sea levels are topics of utmost importance and relevance in the present times. The need of the hour that the world equips itself with effectual international legal tools for the new epoch. The current law was framed based on old factual circumstances. Thus, the global community must join hands and contribute to evaluating existing legal principles and frame new ones if need be. The sustainability of the present system depends on critical assessment and reformation. As the world bids adieu to the Holocene, it is only natural that international law does the same.
Adhira Rajesh Menon is a third-year law student at Gujarat National Law University, India, interested in international law.