Akshita Tiwary
Law student, Government Law College, Mumbai
Assistant Editor, JURIST, University of Pittsburgh
akshitatiwary@gmail.com
Synopsis: Sea level rise has grave consequences under international law. It can threaten statehood if territories keep flooding, and human rights of affected populations can be impacted. The studies being carried out by the International Law Commission may provide suitable guidelines in this regard.
Keywords: sea level, climate change, statehood, territoriality, human rights, International Law Commission (ILC)
Introduction
So far, the 21st century has witnessed multiple challenges to international law. Climate change is probably the most vicious of these threats for states around the globe. The same has been acknowledged by the United Nations (UN) General Assembly in paragraph 14 of the 2030 Agenda for Sustainable Development. The rise in sea level is a troubling by-product of climate change. As per the report of the UN’s Intergovernmental Panel on Climate Change (IPCC), the sea level has been rising at an alarming rate. In fact, the IPCC has predicted that the average global sea level rise could increase by a meter (or 39 inches) by the year 2100, which would have disastrous consequences for the world. In light of its harmful effects, this issue needs to be addressed urgently at the international level. The International Law Commission (ILC) has taken note of the same by including this topic within its program of work.
The Work of the International Law Commission
The ILC, an associated UN body, is mandated to undertake studies and make recommendations for the progressive development and codification of international law. The criteria for selecting a topic within the scope of the work of ILC was determined in 1998. Accordingly, various ambiguous concepts within international law have been and are being studied and developed by the ILC to provide a clear interpretation.
As mentioned above, one of the topics that the ILC has adopted within its program of work is “Sea-Level Rise in Relation to International Law”. Given the fact that almost 70 or more states are likely to be impacted by this phenomenon, its implications in international law are likely to be massive. Entire territories or states may submerge, which will have a huge impact on populations. Against this background, it is safe to say that such an event involves consideration of multiple facets of international law, like migration, cultural survival, state sovereignty, human rights, refugees and statehood.
The ILC has attempted to identify certain questions with relation to which it can explore specific concepts further. Some of these questions are: how will states determine delimitation of maritime boundaries upon inundation of low-lying coastal areas or islands? What are the legal consequences of statehood if the territory of the state disappears and its population is permanently displaced? What are the legal protections guaranteed to persons affected by rise in sea level? I will analyse two of these aspects: firstly, the impact of rising sea level on statehood by using the territoriality principle; and secondly, the impact of rising sea level on affected populations.
Examining the Effects of Rising Sea Level on Statehood through the Territoriality Principle
With rising sea levels, there is a fear that parts of states or entire states (especially those that are low-lying coastal areas or islands) may submerge. States like Bangladesh are expected to lose parts of their territories, while states like Maldives may be completely inundated. This threatens the concept of statehood, one of the most fundamental components of international law.
Article 1 of the Montevideo Convention specifies that a state is a person of international law that possesses the following four characteristics: a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. Clearly, territoriality plays an important role in determining statehood as the state has the highest power (sovereignty) within a particular territory. This makes it difficult to ascertain the existence of a state in the event that its territory submerges. However, under contemporary international law, a state is viewed through its existence as an abstract order on the one hand, and in terms of its elements on the other. Further, substantial changes in its elements such as territory, cannot necessarily extinguish a state. Thus, statehood may not become extinct even if a state’s territory submerges due to rising sea level.
Under contemporary international law, a state is viewed through its existence as an abstract order on the one hand, and in terms of its elements on the other.
Moreover, a state may continue to thrive as an entity under international law if it is willing to do so with its own consent, and extinction should not occur due to geological compulsions. If other states and non-state actors accord due recognition to the state whose territory may have submerged, the sovereignty of that state may not disappear. In keeping with the constitutive theory of state recognition, acknowledgement of a state’s existence by other states can also prevent it from ceasing to exist even when its territory drowns.
Examining the Effects of Rising Sea Level on Affected Populations
In addition to causing vast environmental and economic damage, rising sea levels have serious ramifications for the affected people. It can lead to displacement and migration. People may be forced to become refugees. All of these situations have a significant impact on human rights. States have acknowledged the adverse short-term and long-term effects of climate change on human rights through multiple UN Human Rights Council resolutions. These effects are felt more severely by more vulnerable populations like minorities.
Various categories of human rights can be affected by rising sea levels. Most of these rights are contained in important international human rights instruments like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. One such fundamental right is the right to life, which cannot be violated even during public emergency situations. Right to life often subsumes rights like access to adequate food, water, housing and good health. General Comment 26 explicitly directs states to take appropriate measures to address situations like environmental degradation, which can have an adverse impact on this right in paragraphs 26 and 62. The submersion of territory can force people to relocate, thereby depriving them of their own natural habitat. Hence, other important rights affected by such a situation include the right to self-determination as people may be deprived of their own means of subsistence; and, the right to cultural identity as people may lose their livelihood on being forced to relocate.
The ILC should frame certain guidelines or rules for states concerning possible responses and outcomes in such an unknown situation.
Consequentially, states have an important role to play when it comes to protecting these rights. However, how far they are actually willing to go in order to cooperate with each other remains to be seen. The Sydney Declaration of 2018 provides some guidance to states to protect the rights of people displaced due to rise in sea levels. Principles 3 and 4 make it mandatory for states to take positive action and to cooperate. Thus, an environmental issue like this clearly contributes to a humanitarian crisis, and hence, requires the active response of states to tackle it collectively.
However, states may face various hurdles while performing these duties. Increased cross-border migration can create a strain on the natural, financial and economic resources of the host state. It may also lead to law and order problems, and become a burden for the administrative machinery. Absence of lucid international laws relating to the status of environmental refugees can make it difficult for states to determine how they should proceed. All these points necessitate further exploration by the ILC into the issue of rising sea level so that the actual range of effects on the affected populations may be determined. Once this is covered, the ILC should frame certain guidelines or rules for states concerning possible responses and outcomes in such an unknown situation. Providing this legal clarity will make it easier for states to meet their obligations under international human rights law.
Conclusion
The importance of formulating solutions related to the problems of rising sea level cannot be underestimated. Several states are already dealing with these problems, which are only expected to intensify in the future. As a result, nations will have to coordinate their positions and responses in order to deal with these problems effectively. The issue of sea level rise is multi-faceted, and many of its aspects still remain unknown. Since this issue is a relatively recent one, its actual, large-scale repercussions cannot be determined right away without sufficient and in-depth exploration into this field of study. Positive efforts by the ILC in this regard will hopefully yield desirous results. Nonetheless, states themselves should take any and all measures to mitigate these problems in whatever way they can. Adherence to existing climate change frameworks and dialogue and discussion at the international level are highly welcome. Working with non-state actors too will be very helpful. Utilising these solutions may help in tackling the issue of rising sea levels, collectively and constructively.
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