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  • Gursehaj Singh

Sea Level Rise and Its Implications Under International Law

This article has been authored by Gursehaj Singh, a fourth-year student atJindal Global Law School, O.P. Jindal Global University pursuing the B.B.A., LL.B. (Hons.) course.


Introduction


In recent times, climate change advocacy has taken various forms, one of which is ‘sea level rise’. The phenomenon of sea level rise can have serious detrimental effects, particularly for low-lying coastal areas and small island states, as it can result in substantial territorial loss. 1 Since States are the primary actors in the field of international law, it is necessary to understand the interplay between sea level rise and the international law of the sea. According to the Report of the International Law Commission, sea level rise can have legal implications in three areas, namely “law of the sea, statehood and the protection of persons affected by sea level rise." 2 This article intends to critically analyze these legal implications through a doctrinal approach, i.e. by looking at the relevant judicial discourse, the underlying international legal framework and other legal sources.


Does Sea Level Rise Necessitate the Fixing of Maritime Entitlements?


Sea level rise results in a natural shift of baselines as they retreat landward. It may also lead to the disappearance of baselines, which are situated on islands, rocks and low tide elevations. 3 The current legal framework on baselines is based on the traditional principle of “the land dominates the sea”. 4 This was reiterated in the Final Report of The International Law Association Baselines Committee, which noted that “the normal baseline is ambulatory”. 5 However, the Report also acknowledged that the current legal framework on normal baselines does not solve the problems posed by sea level rise. 6


This is because the travaux préparatoires of the United Nations Convention on the Law of the Sea (“UNCLOS”) did not foresee the uncertainty, which sea level rise could cause in the near future. In this regard, the current debate is whether international law should adapt to the changing geographical circumstances and embrace a ‘fixing baseline’ framework. At this juncture, I argue that UNCLOS can depart from the principle of ‘the land dominates the sea’ and incorporate a framework, which freezes maritime entitlements. The freezing of maritime entitlements will be in accordance with the principles of certainty and stability, which are the primary objects of maritime delimitation. 7 It is further argued that travaux préparatoires serves, as a supplementary source of interpretation 8 and thus, due regard must be given to the primary source, i.e. the object and purpose of the UNCLOS.


​The International Court of Justice (“ICJ”) has also “consolidated the importance of predictable, objectively determined criteria for delimitation, as opposed to subjective views”. 9 In the 2006 Award in the Barbados/Trinidad and Tobago arbitration, the Arbitral Tribunal noted: “the search for an approach that would accommodate both the need for predictability and stability within the rule of law and the need for flexibility in the outcome that could meet the requirements of equity resulted in the identification of a

variety of criteria and methods of delimitation.” 10


Sea Level Rise and Maritime Boundary Treaties


The doctrine of rebus sic stantibus is enshrined in Article 62 of the Vienna Convention on the Law of the Treaties (“VCLT”). Article 62(2)(a) of the VCLT states: “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary”. 11 In the context of maritime boundary treaties, there are two issues that need to be answered. First, whether the rebus sic stantibus doctrine applies to maritime boundary treaties and second, whether sea level rise could be regarded as a fundamental change of circumstances in the context of the provision.


With respect to the first issue, it is argued that maritime boundaries do not come under the ambit of ‘boundary’ in Article 62(2)(a) of the VCLT. In Greece v. Turkey (Agean Sea Continental Shelf), the ICJ noted: “whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances” 12 Thus, significant reliance must be placed on the object and purpose of the UNCLOS i.e. to maintain stability and finality of maritime boundaries. In Temple of Preah Vihea, the ICJ noted: “When two countries establish a frontier between them, one of the primary objects is to achieve stability and finality” 13 This was reaffirmed by the Arbitral Tribunal in the Bay of Bengal Maritime Boundary Arbitration, where it stated: “neither the prospect of climate change nor its possible effects can jeopardize the large number of settled maritime boundaries throughout the world.” 14 The Arbitral Tribunal recognized that the stable and definitive character of maritime delimitations is essential to ensure peaceful relationships between States. 15 It is argued that maritime boundary agreements must be subject to the principle of pacta sunt servanda. 16


With respect to the second issue, it is argued that sea level rise does not constitute a ‘fundamental change of circumstances’ for a State to unilaterally terminate or withdraw from a treaty. For a ‘fundamental change of circumstances’ to occur, the effect of the change must affect the essential basis of the treaty and must radically transform the extent of obligations still to be performed under the treaty. 17 The determination whether a ‘fundamental change of circumstances’ has occurred depends on the facts of each case. 18 It is argued that the precise effects of sea level rise are difficult to predict as of the present day. Due to this, it cannot be said that sea level rise radically transforms the extent of the obligations under a maritime boundary treaty. 19


Implications on Statehood and Human Rights


​Because of sea level rise, small island states face the ultimate threat of full inundation and loss of their state territory. The legal aspect to this issue can be located to Article 1 of the Montevideo Convention, which establishes the four criterion of statehood. 20 One of the criteria of statehood is that of a ‘defined territory’. In a situation where an island state has lost its territory because of sea level rise; the lack of territory is not necessarily permanent. 21 In other words, it is argued that the inundation of state territory because of sea level rise would only amount to a de facto lack of territory, and not de jure. A lack of territory becomes an alarming concern for the right of self-determination, due to the absence of autonomy and independence. 22 Sea Level Rise would also result in the forced displacement of people if the state’s territory becomes completely uninhabitable. This would further create obstacles in the social and cultural development of the people. 23 Amidst these concerns, the protection and enforcement of human rights will be at stake.


​Conclusion


​In conclusion, sea level rise can have legal implications with respect to law of the sea, statehood, and protection of person affected by sea level rise. From the perspective of the law of the sea, the fixing of baselines or maritime zones is a demanding solution. The fixing of baselines will be in accordance with Article 5 of the UNCLOS. The solution urgently calls for state practice so that it can be created as a new norm under customary international law. Maritime boundary treaties come within the ambit of the exclusion given in Article 62(2)(a), as observed in the Agean Sea Continental Shelf Case. Sea level rise can potentially result in full inundation of small island states, which may ultimately lead to loss of state territory. In such a scenario, the criterion of a ‘defined territory’ under Article 1 of the Montevideo Convention must be relaxed.


Endnotes:

1 International Law Association Committee on Baselines under the International Law of the Sea, Final Report, Sofia Conference, 30, (2012)

2 UN General Assembly, Report of the International Law Commission, Seventieth Session, A/73/10, 326, (2018).

3 Sarra Sefrioui, Adapting to Sea Level Rise: A Law of the Sea Perspective, in Andreone G. (eds) The Future Of The Law Of The Sea, 3-22, Springer, Cham, (2017)

4 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 20 February 1969, I.C.J. Reports 1969, p.3.

5 Supra, note 1, at 31.

6 Ibid.

7 Davor Vidas, Sea-Level Rise and International Law: At the Convergence of Two Epochs, Climate Law, Vol. 4, No. 1-2, 70-84, (2014).

8 Article 32, United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331

9 Supra, note 7, at 76.

10 Award of the Arbitral Tribunal in the Matter of an Arbitration between Barbados and the Republic of the Trinidad and Tobago, 11 April 2006, PCA, 2004-02.

11 Article 62(2)(a), United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331

12 Aegean Sea Continental Shelf (Greece v. Turkey), Jurisdiction, Judgment, 19 December 1978, I.C.J Rep 3

13 Temple of Preah Vihea (Cambodia v. Thailand), Merits, Judgment, 15 June 1962, I.C.J Rep 6

14 Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Award), 7 July 2014, PCA, 2010–6, 69

15 Ibid.

16 Snjólaug Árnadóttir, Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances, Utrecht Journal of International and European Law, Vol. 32, No. 83, 94-111, 102, (2016).

17 Article 62(1), United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations Treaty Series, vol. 1155, p. 331

18 Advisory Opinion No. 4, Nationality Decrees Case Issued in Tunis and Morocco, 4, PCIJ, 7 February 1923.

19 Supra, note 16, at 103.

20 Article 1, Montevideo Convention on the Rights and Duties of States, 26 December 1933.

21 Frederick von Paepcke, Statehood in Times of Climate Change: Impacts of Sea Level Rise on the Concept of States, (2014).

22 Catherine Blanchard, Evolution or Revolution? Evaluating the Territorial State-Based Regime of International Law in the Context of the Physical Disappearance of Territory Due to Climate Change and Sea-Level Rise, Vol. 53, Cambridge University Press, (2015).

23 Ibid.

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