6 - Statehood and Sea-Level Rise: Scenarios and Options

Chapter IX: Sea-level Rise in Relation to International Law

A. Introduction

• Commission Decision: Included "Sea-level rise in relation to international law" in its long-term work program (2018).

• General Assembly Resolution: Resolution 73/265 dated 22 December 2018 noted the topic's inclusion and urged consideration of comments from Governments.

• Seventy-first Session (2019): Established an open-ended Study Group co-chaired by Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral, and Mr. Juan José Ruda Santolaria.

• Study Group Meetings: Held initial meetings focusing on organization and road mapping for 2019-2021.

• Subtopics Identified:

  • Issues related to the law of the sea.

  • Issues of statehood.

  • Protection of persons affected by sea-level rise.

• Methods of Work:

  • Approximately five meetings each session.

  • Co-Chairs to prepare issues papers before sessions, edited and translated for discussions.

  • Members to submit contribution papers regarding regional practices or case law.

  • A report will summarize discussions and be presented to the Commission, included in the annual report.

B. Consideration of the Topic at the Present Session

• Reconstitution of Study Group: Chaired by Mr. Bogdan Aurescu and Ms. Nilüfer Oral.

• First Issues Paper: Presented and discussed; it included a preliminary bibliography and synthesized prior member recommendations.

• COVID-19 Impact: Triggered postponement of the seventy-second session; members were invited to submit written comments on the issues paper.

• Meetings Held: Total of eight from 1 to 19 July 2021.

• Initial Meeting Purpose: To discuss themes in the first issues paper and establish an interim report for future reference.

Discussions Held in the Study Group

• Substantive Topics: Addressed legal implications of sea-level rise on maritime zones and baselines.

• Maritime Law Issues: Included analysis of baseline shifts caused by inundation and potential changes to maritime delimitations.

• Coastal and Island Legal Status:

  • Legal implications of low-lying areas and islands inundated by rising seas.

  • Consequences for rights and jurisdictions of coastal states.

• Legal Effects of Maritime Boundaries:

  • Focus on existing treaties and law in light of sea-level impacts.

  • The necessity for in-depth analysis of international law's capacity to adapt.

First Issues Paper

• Presentation by Co-Chairs: Summary of discussions and Member State views presented.

• Key Points Addressed:

  • Legal effects of shift in baselines due to sea-level rise.

  • Potential fundamental changes as per the Vienna Convention on the Law of Treaties.

• Maritime Delimitation Practice in Africa:

  • Diverse practices across African coastal states on maritime delimitations.

  • Principles suggesting enforcement of fixed baselines in response to existing practices inherited from colonial boundaries.

Summary of General Exchange of Views

• Emphasis on Importance: Recognized challenges of sea-level rise as increasingly pertinent issue.

• Diverse Opinions: Perspectives varied from it being recent phenomenon to long-standing effects recognized in historical contexts.

• Need for Clarity: Addressing systemic issues beyond mere sea-level changes, including natural disasters and climate impacts.

• Legitimate Rights: Addressing the balance of rights and obligations among coastal and non-coastal States amid shifting baselines.

Conclusions from the First Part of the Session

• Future Work Directions:

  • Priority issues identified including further examination of legal sources, state practices, and impacts on navigational charts.

  • Notable concern for potential instability or conflict arising from shifting maritime entitlements.

• Methodological Recommendations: Suggested cautious approach to conclusions, respect for member states' perspectives, and incorporating scientific input as needed.

Future Work of the Study Group

• Next Steps: Focus on statehood and protection measures for persons affected by sea-level rise.

• Second Issues Paper: To be prepared addressing legal implications outlined during this session.

• Long Term Goals: Aim for substantive report finalization by the end of the next quinquennium.

Statehood and Sea-Level Rise: Scenarios and Options by MB Gerrard

• Context: Rising sea levels may render some low-lying nations uninhabitable by the end of this century.

• Key Questions:

  • If a country is underwater, is it still considered a state?

  • Does it retain its membership in the United Nations?

  • What citizenship do displaced people hold?

• Climate Scale: Goals are set to keep average global temperatures within 1.5°C, but current paths suggest a rise of 2.6°C to 2.9°C by 2100.

• Sea Level Concerns: A rise of 2.5°C could lead to a mean sea level increase of 58 cm to 93 cm by 2100, impacting vulnerable atoll nations.

Vulnerable Nations

• Nations such as Kiribati, Marshall Islands, and Tuvalu at extreme risk due to their low elevations (3-5 meters max).

• Sea level rise occurring at 2-3x the global average in the Pacific region.

• Current challenges include salination of water sources and uninhabitability due to floods and erosion.

Requirements for Statehood

Definition of Statehood

• No universal definition; most cited is from the Montevideo Convention (1933):

  1. Permanent population

  2. Defined territory

  3. Government

  4. Capacity to enter into relations with other states

• The Restatement of the Law also emphasizes these criteria.

Permanent Population

• Must have families, schools, and businesses; temporary caretakers insufficient.

• Example: Pitcairn Islands recognized but not independent.

Defined Territory

• Must have substantial land; water alone is insufficient.

• States can include modified or protected territories, but artificial islands do not count.

• Example: If a state develops a fortified island, it can retain statehood.

Government

• Must maintain governance over the territory; failure to govern could lead to status as a failed state.

Capacity to Enter Relations

• Capability to engage with other states independently is crucial.

Continuation of Statehood

• Presumption of continuity of statehood exists under international law; states are presumed to persist despite circumstances.

• Factors affecting this inference include historical context, government non-functionality, and external influences.

Determining the End of Statehood

• Historically, no state has ceased to exist due to physical events; notable case of Bikini Atoll maintains a legal identity but is uninhabitable due to radiation.

• No precedence for legal state extinction via physical debilitation due to climate change.

Alternatives for Uninhabitable Countries

1. Moving Population: Mass relocation to another state with further administrative control.

   • Example: New Iceland settlement in Canada.

2. Moving State: Relinquishing sovereignty over land to another country through treaties.

3. Association: Merging with another state (e.g. Tanganyika with Zanzibar).

4. Government in Exile: Establishing a government elsewhere during displacement.

5. Deterritorialized State: Concept of a nation existing without territory, preserved digitally (e.g. Tuvalu's cultural heritage).

Key Issues with Alternatives

• State Functions: Includes U.N. membership, citizenship issuance, military forces, etc.

• Statelessness: Citizenship ceases with the loss of state; UNHCR emphasizes agreements regarding status and relocation.

• Maritime Rights: UNCLOS states baseline shifts may alter maritime rights and associated economic zones affecting statehood viability.

Resolving Issues

• A UN resolution affirming perpetual statehood regardless of physical conditions might be ideal.

• Regional initiatives like the Rising Nations Initiative seek to maintain sovereignty and heritage of atoll nations.

Conclusion

• Predictions indicate that sea-level rise could lead to existential crises for small island states.

• Proactive measures are essential to address statehood and its implications while these states are still inhabited.

• Significant changes in climate policy are needed immediately to alter the trajectory towards potential uninhabitability.

Summary of the UN Global Compact on Migration

• The UN Global Compact on Safe, Orderly and Regular Migration is a non-legally binding political instrument.

• Its purpose is to enhance international cooperation and coordination regarding migration policies.

• Several EU member states, including Hungary, Austria, Poland, Bulgaria, the Czech Republic, and Italy, have announced their decisions not to sign the Compact, citing national sovereignty and interests.

Implications of Not Signing the Compact

• Sovereignty Concerns: Not adopting the Compact paradoxically leads to a reduction in national sovereignty as it diminishes the ability to manage migration effectively.

• Human Rights Neglect: Failure to adopt the Compact compromises EU member states' obligations to uphold human rights laws for migrants, including their own citizens abroad.

• All EU member states are bound to protect and enforce existing EU and international laws regarding human rights.

The Nature of the Global Compact

• The Compact does not create new legally enforceable obligations or a 'human right to immigration'.

• It reaffirms existing rights and emphasizes the need for cooperation in migration management.

• The document is flexible and does not demand new legal standards, allowing States to decide how to implement its recommendations.

• It encourages a range of policy actions and best practices for migration management without legal consequences for non-compliance.

• National Sovereignty: The Compact underscores the sovereign right of states to determine their own national migration policies.

Impact of Restrictive Migration Policies

• The Compact seeks to address unsafe and irregular migration by promoting safer, regular migration pathways.

• Irregular migration often occurs due to a lack of safe channels, leading people to rely on dangerous routes.

• Establishing legal pathways is argued to reduce irregular migration significantly.

• Examples from the European Parliament emphasize the importance of addressing labor market needs to discourage irregular migration.

Misconceptions about a Human Right to Immigration

• The concept of a 'human right to immigration' is misleading; the Compact does not enshrine this right.

• EU member states are already obligated to uphold international human rights standards, regardless of their stance on the Compact.

• Governments must ensure their migration policies do not violate human rights, underscoring that rights are universal and not contingent upon immigration status.

Relationship Between Human Rights and Sovereignty

• Human rights are foundational to legitimate sovereignty.

• Cooperation on migration should not be viewed as a trade-off with national sovereignty; rather, it strengthens state governance and societal stability.

• Importance for Citizens: Citizens also have a stake in upholding human rights; neglecting these rights endangers citizens abroad.

• The Compact's rejection may lead to a broader erosion of human rights protections for all.

Conclusions

• EU member states are encouraged to adhere to their international human rights commitments while managing migration.

• The signature and adoption of the Global Compact on Migration could facilitate the setup of regular migration channels.

• It is necessary for governments to adopt long-term, planned migration policies rather than reactive, populist measures.

• The Global Compact serves as a pathway toward sharing migration responsibilities more equitably among EU member states.