Climate Change is a very substantial truth that humans must be familiar with. It has innumerable consequential facets, among which is the rise in sea level. The impact of climate change on oceans and seas, unlike forests, was belatedly brought to the attention of the international community. The United Nations Convention on the Law of the Sea (“UNCLOS”) and the United Nations Framework Convention on Climate Change silhouette the legal fortitude of sea and climate law on the international level. The potential sea-level rise has bearing over maritime boundaries whose stable delimitation and resolving baselines are still one of the main purposes of the International Law of the Sea and the UNCLOS. Shifting baselines ensuing from sea-level rise will lead into modification of the marine spaces of some coastal and archipelagic States (territorial sea, contiguous zone, EEZ and continental shelf). This will undoubtedly create hostility between States, especially between neighbouring States, not only regarding access to resources but will also raise some critical questions concerning sovereignty and navigation.
Background: Sea Level Rise and the Anthropocene
Change in climate can be understood by two geological terms such as Holocene (the latest interglacial interval of 11,700 years, characterized by environmental stability – a feature significant for the development of human civilization) to new one Anthropocene (characterized by uncertainty and, possibly, a significant degree of instability). Many geologists and scientists believe that sea level rise is a direct result of end of Holocene and commencement of Anthropocene, given that the latter is characterized by significant instability. Sea Levels have been rising since the commencement of 20thcentury. Though there are differences in opinion behind the reason attributing to change in sea levels. There is a fair consensus that a large part of it is attributable to human burning of fossil fuels. Satellite radar measurements data reveal that from 1993 to 2017, sea levels worldwide witnessed an increase of 7.5 centimeters or 3 inches.
The UN backed Intergovernmental Panel on Climate Change, the commission responsible for analyzing and predicting the consequences of climate change, expects that the average global sea-level could rise nearly 30-60 cm by the year 2100. Small Island States are the frontline potential victims to rising sea level. Although relative sea level is diminishing in some parts of the world— usually because of post Ice Age land rise—the extensive majority of coastlines are undergoing a Relative Sea Level Rise. The differences of bearing regarding sea level rise creates an international policy gap while dealing with the subject of rising sea levels because not all states will be affected equally.
End of the Holocene and its Effects on International Law
We must understand that at the time when international law was formulated, it was based on features of late Holocene conditions which were fairly stable. However, with the commencement of the Anthropocene potential issues must be addressed. This paper merely addresses one of these impacts of climate change in the realm of international law — that of rising sea levels.
As per Article 1 of Montevideo Convention, for any entity to be acknowledged as state, it must meet four requirements – (i) permanent population, (ii) defined territory, (iii) effective government, (iv) the capacity to enter into relations with other states. Considering these criteria, SIDS i.e. Small Island Developing States will lose their statehood as their territories and lands will get submerged. An extreme rise in sea level could cause the disappearance of several island nations, including Kiribati, Tuvalu & the Maldives islands. There presently is no international law over involuntary state extinction.
• Refugee Status.
If a land becomes inhabitable because of submerging due to sea level rise, then it is very evident that people will be forced to relocate and move to other habitable places. However, under Article 1 of Convention Relating to Status of Refugees 1951, status of refugee is not accorded to people who have displaced as a consequence to the result of climate change. This means that people are forced to migrate because of climate change and may not be granted international refugee status in the state they take refuge. It is duty of international community to make sure if in future “ecological refugees” will be considered same as “political refugees”.
• Self Determination.
Article 1 of the UN Charter highlights the commitment of the UN towards ensuring self-determination of peoples. In the context of rising sea levels, this is particularly contentious. Given that migrants or ecological refugees’ right to self-determination will be severely undermined if their territories and homes get submerged. States such as Kiribati and Tuvalu are already facing the threat of disappearance. According to the statement by Spokesperson of OCHR, “if the islands of Kiribati and Tuvalu do disappear, gone with them will be all the trappings of a modern state – Government buildings, courts, hospitals and schools.”
• EEZ Survivability.
Articles 56 and 57 of UNCLOS provide that states have exclusive economic rights in an area that extends not more than 200 nautical miles from their coastlines. UNCLOS is known as “Constitution of Oceans”. UNCLOS Article 121(3) provides that “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Interpreting this, it can be widely understood that long before SIDS territories submerge, they will lose their EEZs and continental shelves. Rising of Sea levels is a process and not one-time event. UNCLOS will not be able to decide the survivability of EEZ in future.
To win a battle, one must be aware who the enemy is. To tackle the issue of sea level rise and its implications on international law, it is important that the international community formulates evaluative policies to determine the cause, timing and magnitude of sea level rise. In furtherance to evaluative policies, reactive policies to mitigate the effects of sea level rise both scientifically and legally are needed. This is particularly crucial as this phenomenon implicates questions of sovereignty, statehood, navigation, EEZs, and the status of refugees. Concievably, this may be addressed by appropriately widening the ambit of the UNCLOS, the Montevideo Convention, and the Convention Relating to Status of Refugees, 1951 to meet the present demands posed by the Anthropocene.
Muskan Nagpal is a fourth year B.A LL.B (Hons) student at Amity Law School, Delhi, GGSIPU.