Land ahoy? Solutions for Statehood in a post climate change world
Climate change is expected to cause receding coastlines due to rising sea levels. Geological formations like islands, rocks, reefs and other low-tide elevations would be permanently submerged, and this would affect the control of States over the sea if the baseline measurement changed with them. In fact, some low-lying States could conceivably lose their rights to exploit their territorial sea and Exclusive Economic Zone (EEZ) due to their land territory being submerged. This has serious ramifications for Statehood in international law, which faces challenges as a consequence of climate change. Therefore, the ILC decided to include the topic ‘Sea-level rise in international law’ in its program of work at its 70th session and established a study group on issues related to Statehood.
Climate change and international law on Statehood
There is no universally accepted definition of a State. Neither the constitutive theory, nor the theory of recognition is accepted as being conclusively determinative of the existence of a State. Similarly, the Montevideo criteria are neither essential, nor self-contained determinants of Statehood and serve at most as a basis for further investigations.
According to the World Meteorological Organization, global temperatures are on course to rise by 3 degrees Celsius by the year 2100, and this process will lead to a gradual rise in the sea level. This could have disastrous consequences – a one-metre rise in sea levels would result in nearly a fifth of the land territory of Bangladesh being submerged and 30 million people being displaced. Some Low-lying, small island States such as Kiribati, Maldives and the Marshall Islands would also find their entire land territory submerged.
The territorial sea of a coastal State is measured from the baseline. This is the low-water line along the coastal land territory of the State, which is used to measure its EEZ and continental shelf The establishment of an EEZ is especially crucial because it treaties which govern fishing, navigation, and oil and gas activities rely on the baseline as a starting point. Therefore, the question arises as to whether these States will lose their sovereign rights over their territorial sea because of their land territory being submerged due to climate change.
However, the extinction of a State as a consequence of natural causes is an unprecedented scenario, and it is not one which was envisaged when international law governing the creation and succession of States was developed. Further, geopolitical considerations mandate that a solution which does not disturb the presently established territorial demarcation is found.
It has been suggested that the entire island State or territorial sea and baselines would transform into the high seas or expand the territory of neighbouring States (Stoutenburg 2015, p. 161). However, the principle of the land dominates the sea does not necessarily imply that submerged land necessitates a contraction of State territory.
As long as the submerged State retains other characteristics of Statehood, it should be recognised as a sui generis State with territorial sea in place of the erstwhile land territory. A State is not necessarily extinguished by substantial changes in territory, population or government, or a combination of all three (Crawford 2007, p. 700). Therefore, it would be incorrect to presume that the loss of one, or even more of the necessary criteria would lead to a cessation of Statehood.
Submerged States will not face extinction
The process of the extinction of a State in international law cannot be forced, and it is therefore dependent on consent. The forced relocation of the entire population from the submerged land is due to geological compulsions rather than a voluntary renunciation of sovereignty and would not lead to extinction of the State.
In principle, States can also continue to function even when their governments operate from outside their territory (McAdam 2012, p.130). The absence of all four elements of the objective criterion for a State does not lead to its extinction due to the clear presumption of the continuity of existing States. The State can continue to exercise sovereign rights over marine resources and conduct diplomatic functions unhindered through a government-in-exile.
A sui generis legal structure for Artificial Islands is also a possibility. This could be in the form of a treaty or a protocol to UNCLOS which would act as an exception to the erstwhile rule that artificial Islands do not confer territory. It would recognize territorial sea as extending from an artificial island, where this island was created in lieu of submerged land territory. The Maldives has tried to implement this idea with the creation of the artificial island of Hulhumalé.
The survival of a State is not conditional on the existence of a defined land territory
Many writers assert that territory is an essential and defining feature of the Westphalian State. They claim that territorial integrity and sovereignty, the primary concerns of all States, derive from this territorial control and suggest that States without territory are but ‘disembodied spirits’. However, mapping and demarcating of territorial borders wasn’t as popular before the eighteenth century (Fassbender and Peters eds. 2012, p. 225). Therefore, the primacy of delineation of territory has not always been as essential as these views suggest.
While territory remains an important feature of Statehood, it is interesting to note that situations involving a lack of effective control over the majority of the territory of the State do not rob the State of its Statehood. Further, even though a defined territory is required as per the understanding of international law, this requirement isn’t followed stricto sensu. Even when the borders of a territory aren’t well defined, or even when there is a discontinuity in the territory of a State, Statehood remains unaffected. Modern examples such as the Order of Malta and the Holy See are also evidence that sovereignty can exist even in the absence of control over a clearly defined territory.
It is also important to distinguish land territory and the territory of a State. Territory which was once connected to land and then submerged by the sea should continue to be regarded as a connected part of State territory (McAdam 2012, p. 130). While a defined ‘land’ territory is essential for the establishment of a State, once a State has been created, the loss of land territory should not affect the national frontiers already agreed among States and the international community.
Admittedly, the ICJ has relied on the principle of the land dominates the sea and held the entitlement to all zones depends on the coastal State’s title over its land territory. However, Professor Makoto Seta considers that an exception to this general principle should be allowed in exceptional cases such as harm caused by sea level rise. Other writers including Vasco Becker-Weinberg suggest that in certain cases, the sea is already dominating the land opposite to said principle, like the certainty of maritime boundaries in the Bay of Bengal between Bangladesh and Myanmar. Therefore, David Freestone highlights a need to recognise some principles as more important than others, with principles of human dignity, non-discrimination and international cooperation having paramount importance. International cooperation would be best served by retaining the present reliable territorial delimitations because constantly changing territorial limits would cause inevitably chaos and instability. Therefore, the principle of the land dominates the sea should not apply in determining the territorial seas of submerged States.
Further, there is an emerging practice of States’ fixing their baselines or maritime zones irrespective of sea-level-rise (see here). The Pacific island States would, in the formulation of the ICJ in the North Sea Continental Shelf Cases Judgement, be among those ‘States whose interests are particularly affected’ in the formation of a new customary rule.
Solutions in the existing international legal framework
International law has several comparable historical practices applicable to the notion of continuity of Statehood for low-lying small island States whose land areas would be submerged by climate change-induced sea-level rise.
The history of failed States and the recognition of deterritorialized States is a strong testimony to the fact that continuity of Statehood remains even if the State loses some characteristics of Statehood. Since Sovereignty relates to a territory as a whole and not exclusively to land territory (Crawford 206, p. 205), the government and the people of a submerged State retain sovereignty over the territorial sea.
Generally, a country delegates some of its sovereign powers to other State or non-State actors without that actor themselves assuming the status of a sovereign State. Therefore, where the absence of land territory need not prevent a government from handling its population and resources within its territory through, or with the assistance of other States or intergovernmental organisations without affecting the continuance of its Statehood.
The territory of a State is not limited to land territory. It includes land territory, the territorial sea, resources and jurisdiction over the EEZ as well as airspace. Land erosion or submersion must not necessarily affect the sovereignty of a State. However, States should declare their baselines, as a matter of urgency to authenticate internationally their existing land territory and maritime zones. The stability of a State and the negotiated baselines of such States, irrespective of the consequences of sea-level rise, strengthens the international post-war order and the UN Charter legal order essential to maintain stable ocean governance and friendly relations between nations.
Advancements in science and technology are promoting promising frontiers such as artificial islands. These practices redefine the necessity of land territory as an indispensable element in the creation of a State. Admittedly, international law does not accept artificial islands as islands under UNCLOS. However, UNCLOS was not negotiated to correct geographical circumstances; it was tailored to the geographical circumstances of its own time, not the ones yet to come.
Progressively, one hopes that international law through the practices of States will offer inspiration on the development of new norms on the consequences of the sea level rise. States with submerged land territory due to sea-level-rise are therefore likely to be allowed to construct artificial islands and the likes to secure their existing maritime rights over their territorial sea.
Unmekh Padmabhushan is a final-year student of National Law University, Jodhpur. He has previously been an intern at the Asian-African Legal Consultative Organisation. He may be reached at firstname.lastname@example.org .
Devesh Kumar is a third-year student of National Law University, Jodhpur. He has keen interest in Public International Law and Commercial Laws. He may be reached at email@example.com.
Cite as: Unmekh Padmabhushan & Devesh Kumar, Land ahoy? Solutions for Statehood in a post climate change world, Völkerrechtsblog, 16 March 2020, doi: 10.17176/20200316-123019-0.