The consequences of climate change have had far reaching effects, not only on the environment but also on aspects like world economy, international law and so on. One of the immediate effects of global warming is the rise in sea levels and it has the potential to bring significant challenges to the established international law regime.
International law is built on the very basis that states have defined boundaries. In case of coastal states their territories are not limited by their coastline but they extend to 12 nautical miles beyond their baselines and they enjoy sovereignty over that area. If we see a significant rise in sea levels, it might cause a lot of coastal areas to be inundated and might even cause some states to be completely submerged, all of which will inadvertently result in a loss of the baselines as well. This will interfere with the established delimitations of maritime boundaries between different states, since it is heavily reliant on the assumption of a fixed territorial boundary. Once that very boundary starts changing it will be difficult to ascertain where the territory of a state ends and another begins.
As per Article 1 of the 1933 Montevideo Convention on Rights and Duties of States one of the foremost principles of international law is the constituents of statehood, which has the following essential ingredients, viz.
- a permanent population
- a defined territory
- capacity to enter into relations with other states
Rise in sea levels causes the defined territory to change and in some extreme cases it might even cause the territory to be lost completely, such as in case of island states. Now when a state loses its entire territory, that is, one of the essential elements to confer on it the status of statehood, a question arises as to whether it is still considered a state or not.
It must also be noted that long before a state loses its territory it will lose its population due to economic, cultural, legal and educational problems. When coastal lands start getting inundated, it becomes uninhabitable and the people who were residents start moving away inland and finally they are forced to migrate completely when the land gets completely submerged. Thus the element of a permanent population also disappears. Now this gives rise to two issues, viz. the loss of one of the essential elements of statehood, and a refugee crisis because of the movement of the entire population.
The loss of these elements of statehood is one of the biggest issues associated with the rise in sea levels because although international law provides for the creation of a state, it is silent on the process or requirements for the extinction of a state. It is not clear from the existing international law doctrine as to whether a state will cease to exist if it loses its territory or its population, and if not, then whether these two elements may even be considered as essential to the existence or creation of a state. Also it gives no framework for the consequences in case a state is said to have ceased to exist on loss of population or territory or both.
If however, there is no total territorial loss, but only a partial submergence of coastal areas, it implies submergence of previously decided baselines, thus potentially changing the territorial boundary of the state as well.
The rise in sea levels gives rise to human migration resulting in movement and redistribution of population. Although we consider this migration to be a thing of the distant future, it must be remembered that it is very gradual and that is why it may not be noticeable now or in the near future. It will however turn out to be one of the major concerns as we need to understand that the migration will occur way before a piece of land is submerged completely. It may start happening when the soil begins to become saline or when it becomes impossible to cultivate the land but it is not limited to agriculturally dominant lands.
One solution that was suggested was for states to ‘freeze’ the baselines, which has the effect of perpetually fixing the outer limits of maritime zones. While this prima facie seems like a logical solution for the current scenario, it may not offer a permanent solution in the future. Freezing of baselines might result in nations having claim over sea water when the land that once used to be there has been submerged, unless it is possible to construct artificial structures on the water. This again is extremely expensive and probably not a very viable option for nations already experiencing territorial loss and the consequential economic, political and social burden. If there is no construction of any such artificial land the territory of the state would be a mere fiction and a band-aid for the legal issues, without actually addressing or solving the challenges faced by the country. This solution is a breach of the existing principles of international law as well, because permanent fixing of baselines is in violation of the doctrine that normal baselines are supposed to be ‘ambulatory’.
In order to tackle the problem of human migration, there have been suggestions such as elevation of houses or storing goods above the ground level but application of these only to domestic households will be of no use if the same is not done for schools, workplaces and other community places. It is needless to say that if the entire area is inundated then these measures will not be very effective in offering a permanent solution. This issue can only be addressed through a concrete policy decision taken by governments so as to guide the most vulnerable people and help them move to better locations and integrate them in their destination communities. Also it will be helpful to conduct further research and find out more precisely the number of people that might migrate in the future, the time in which maximum of this migration might occur, the communities and places that are most threatened and the potential destinations to which they might relocate. This data will help both the governments and people prepare themselves to deal with this issue more effectively.
The main objective of establishment of the various doctrines of international law or any law for that matter was to bring forth some certainty and stability in an ever-changing world. The rules of delimitations between boundaries of states, the fixation of baselines from which the maritime territory was to be measured was decided so that states do not get into disputes regarding territory. All of these rules were formulated on the basis of a fixed geography. The rise in sea levels, however, has threatened the existence of that very geography. As the coastlines across the globe continue to change, it is imperative for law to keep with it and change and amend itself according to it. Most of the suggestions given and conclusions arrived at by committees propose that the facts remain same in order to suit the law, but the facts will continue to keep changing in this epoch of Anthropocene. Thus in order to regain the stability that we had in Holocene with regard to international law, we must adopt a regime that is dynamic and not stagnant. A doctrine of international law that has the scope to constantly adapt itself with the change in the geography of the earth will offer a pertinent solution to the problems discussed above.
(Author: Ishika Chattopadhyay)