Forgotten Crisis in a World in Turmoil

While many in Europe are focused on the Russo-Ukrainian War, or perhaps on the Israeli-Palestinian conflict and eroding transatlantic relations, one major contemporary issue has been left out of public debates, or at the least overshadowed: climate change and the consequential rise in sea levels.

So far, the Global North has gotten off relatively lightly when it comes to sea-level rise, making it a problem easy to forget. However, forgetting is not an option in other parts of the world, especially small island states, or for the Global North in the long run.

This post shall serve as a reminder of what is at stake as the International Court of Justice (ICJ) deliberates on the Advisory Opinion on Obligations of States in Respect of Climate Change requested by the Commission of Small Island States in 2023: the preservation of maritime entitlements for states impacted by climate change-induced sea-level rise and coastal recession. On this issue, I will discuss how the reinterpretation of Article 7(2) United Nations Convention on the Law of the Sea (UNCLOS) can be used as a solution.

Climate Change: The Overlooked Threat

Working Group II of the Intergovernmental Panel on Climate Change has made it clear, in its contribution to the “Sixth Assessment Report”, that global warming would pose extreme risks to the world as we know it.

There will be loss of biodiversity – instrumental to the functioning of the planet we depend on –, submergence of land, food insecurity caused by floods, droughts and heatwaves, as well as ensuing displacement and violent conflict.

It is Africa, South Asia, Central and South America and Small Islands, those having contributed the least to climate change, that will suffer the most.

Sea-level rise is also one of the many dangerous consequences of climate change. It not only presents a risk of coastal hazards affecting millions in coastal regions, but also an existential threat to small island states and low-lying coastal states, and consequentially, a threat to their sovereign maritime spaces.

International Legal Instruments for Protecting Maritime Entitlements

Maritime entitlements are determined by the drawing of baselines (e.g., Articles 3, 5, 33, 57 UNCLOS). These baselines are traditionally understood to be ambulatory, i.e., following any changes in coastlines (or low-water lines). As sea levels rise, the coastlines shift inland. Under the ambulatory baseline approach, maritime entitlements would shift inland accordingly. This would consequently lead to continuous changes of maritime boundaries; an undesirable phenomenon given that the stability of boundaries is considered essential for maintaining peaceful relations. Moreover, the exploitation of marine resources constitutes a significant part of the economies of many coastal states, and the sea plays a vital role in cultures of numerous peoples.

Beyond the Paris Agreement, the Kyoto Protocol, and other climate and environmental treaties, customary international law and the reinterpretation of existing rules of international law offer potential solutions to this issue.

Customary International Law

Since 2010, the Pacific Islands Forum and the Organization of African, Caribbean and Pacific States have advocated for the permanent delineation of coastlines and thus maritime zones. Nonetheless, due to the limited number of states actively participating in the formation of custom, the standards for the establishment of customary international law as set out by the ICJ in the North Sea Continental Shelf Case [74] and the Nicaragua Case [184] might not quite yet be met. Even if the inaction of states is not interpreted as acquiescence to a customary rule permitting the permanent fixation of maritime entitlements, the development of such a customary rule might still be possible in the near future, especially as the aforementioned organizations continue to raise awareness about the need for action.

Article 7(2) UNCLOS

However, even if no customary rule has been established, there remains conventional international law.

Articles 5 to 16 UNCLOS regulate baselines. In particular, Article 7(2) should be interpreted by the ICJ, as discussed by scholars (e.g., Prescott & Bird, Influence of Rising Sea Levels on Baselines, 1990) and proposed by various states in light of climate change-induced sea-level rise, as favouring the permanent fixation of baselines and maritime entitlements of states (cf. statements in meetings of the Sixth Committee on 1 Nov 2021 and of the Security Council on 14 Feb 2023 as well as statements submitted to the International Law Commission).

Article 7(2) UNCLOS allows states to draw straight baselines along their coast if the state’s coastline is highly unstable “because of the presence of a delta and other natural conditions”. As opposed to the ambulatory baselines approach, these baselines “remain effective until changed by the coastal State”.

Applying the rules of interpretation set out in the Vienna Convention on the Law of Treaties (Articles 31, 32, 33), a fundamental premise and three core arguments support this approach.

The premise is that UNCLOS is, according to the International Tribunal for the Law of the Sea (ITLOS), a living instrument and should be interpreted as such.

Firstly, neither paragraphs 1 and 2 of Article 7 UNCLOS, nor the terms “delta” and “other natural conditions”, are to be understood as being cumulative requirements. If paragraphs 1 and 2 and the terms “delta” and “other natural conditions” were cumulative requirements, only states with a delta on their deeply indented or cut into coast could draw straight baselines. Hence, the Article would not be applicable to many states experiencing climate change-induced coastal regression.

Paragraphs 1 and 2 describe distinct geographical sceneries. In rare cases, all these phenomena might appear, but to make it a requirement would render the Article almost inapplicable. This is supported by the Article’s wording; both paragraphs begin with near-identical wording and end by granting the right to draw straight baselines independently. They exist in parallel and are not cumulative.

Many member states of the European Union have translated the “and” in between “delta” and “other natural conditions” as an “or” in their national versions of the convention. The Russian version of UNCLOS, an authentic text according to Article 320 UNCLOS, also uses an “or” instead of “and”. This illustrates an alternative understanding of the two options and demonstrates, at the very least, the wording’s ambiguity.

Secondly, “other natural conditions” and “highly unstable” are both open to interpretation. There is no reason climate change-induced coastal recession should not be perceived as a “natural condition”. Moreover, as sea-level rise is rather unpredictable with regards to its effects on the coast, these coasts become highly unstable due to continuous erosion.

Lastly, underlying principles of UNCLOS, such as equity through the protection of the interests of disadvantaged states and stability, support this interpretation. As stated in the preamble, the convention aims at “a just and equitable international economic order which […], in particular [takes into account] the special interests and needs of developing countries”, which are often disproportionately affected by sea-level rise. Stable maritime boundaries foster peaceful relations, which becomes impossible if, due to climate change, boundaries are continuously challenged. The ICJ saw a similar issue in the Temple of Preah Vihear Case regarding a potential delimitation method (p. 34).

Some (e.g., Jesus, Rocks, New-Born Islands, Sea Level Rise and Maritime Space, 2003) have argued that baselines, once deposited with the Secretary-General of the United Nations, are effectively fixed as there is no obligation to update them. However, the ICJ has repudiated a basepoint deposited by Honduras because it did not reflect geographical reality in relation to Article 5 UNCLOS. States should therefore at least clarify they are not relying on Article 5 UNCLOS when depositing baseline coordinates.

In the Additional Paper to the First Issues Paper (2020) on Sea-level rise in relation to international law, authors Bogdan Aurescu and Nilüfer Oral, Co-Chairs of the Study Group, note that no state has objected to a reading of UNCLOS in favour of baseline freezing.

A Call for More

The time for forgetting and hesitation is over. International law cannot afford to be a passive observer while coastlines disappear, entire nations face extinction, and peoples lose integral parts of their culture and the ancestral lands they have lived on for centuries. The fixation of maritime zones is not just a legal technicality – it is a question of justice in an unjust world. If the ICJ truly stands for a global order based on equity, it must seize this opportunity to secure the rights of vulnerable states, which have contributed the least to global emissions but are now suffering the consequences of the Global North’s pursuit of wealth. The urgency of the matter is shown by the conclusion of the Falepili Union Treaty, which grants the Tuvaluan people certain rights in relation to Australia in the event of the total loss of their sovereign space.

May this treaty be a reminder to us all that climate change does not wait, and neither can we. Now is the time to act—not when it is convenient, but while action still matters.