By Olivia Townsend
Seas cover more than 70% of the surface of the globe and historically have performed two important functions: first, as a medium of communication, and secondly, as a plentiful resource. These functions prompted the development of legal rules governing the seas, the most relevant of which is the United Nations Convention on the Law of the Sea (UNCLOS). As rising sea levels threaten the existence of low-lying island states and ongoing disputes over rights conferred on land-locked states, the law of the sea faces one of its greatest challenges.
Whether we want to admit it or not: climate change is real. There, I’ve said it. How provocative of me. Now that the political incorrectness is out of the way, let’s focus on the legal side of this matter.
Article 124(1)(a) of UNCLOS provides that a ‘land-locked state’ is a State with no sea coast. These states gain access via territory of neighboring states known as transit states. For example, India and Bangladesh are transit states for Nepal. There are, at present, forty-five land-locked states in the world.
The state has long been accepted as international law’s central actor, and “it still makes a great difference whether an entity is or is not a State” (1). International law has assumed territory will always exist and consequently focused on state creation and succession, rather than extinction or continuity. Until now, state extinction has only been a theoretical concept. However, with the emergence of climate change, these theoretical scenarios are becoming reality. Currently, there are a number of low-lying island states at risk of immersion due to rising sea levels. Statehood is extremely important to these states as the consequences for extinction are unclear within international law. At best, the state will lose its status as a state but remain ‘a subject of international law … capable of possessing international rights and duties’. At worst, physical extinction may result in corresponding extinction of rights and responsibilities. The people will have no remedy pertaining international law, at least in the context of pre-existing obligations vis-a-vis the extinct state. At the very least, extinction will result in the loss of maritime rights, which is of key concern to island states.
The concept of statehood is a sensitive and politicized area of law. Article 1 of the Montevideo Convention on the Rights and Duties of States presents the most widely accepted formulation of statehood. However, more relevant to the issue of low-lying islands is Article 12(1) of UNCLOS. This Article stipulates that an island is “a naturally formed area of land, surrounded by water, which is above water at high tide.” Normally an island can generate all maritime zones, being territorial seas, the contagious zone, the EEZ and the continental shelf. However, when the population has to flee the island in the face of rising tides, it reverts to a “rock” which cannot sustain human habitation, and consequently loses all maritime rights that comes with being a state.
International law’s approach to statelessness is twofold; focusing on protection of stateless persons but also emphasizing prevention and reduction of statelessness. With regards to low-lying island states, prevention means halting the rise of sea levels. However, a more realistic solution would be to negotiate cession of sovereign territory from another state. Sovereignty would transfer to the island state which could then relocate its people. This would allow the state to maintain sovereign rights over its waters, ensuring some level of economic viability.
Another solution is the construction of islands or structures that remain above sea level. Current international law does not allow for wholly man-made structures to constitute territory: “only structures which make use of a specific piece of the earth’s surface can be recognized as State territory within the meaning of international law” (2). This is consistent with UNCLOS’ regime which provides that “[a]rtificial islands, installations and structures do not possess the status of islands” (3). The International Court of Justice has additionally held that there is no customary rule allowing for low tide elevations to constitute territory (4).
There does not seem to be anything, in principle, militating against accepting artificial structures (located where territory once was) as territory. Although it would seem desirable that changes to law occur by treaty, amendment to UNCLOS, while providing certainty on issue of maritime rights, would be insufficient. UNCLOS does not conclusively determine what suffices as ‘territory’ for the purposes of statehood and the island state would need to obtain ‘confirmation’ (presumably via recognition) that it remains a state. The applicability of UNCLOS as a treaty therefore hinges upon the existence of a state and consequently recognition is crucial.
Olivia Townsend is currently completing a Master of International Law. She maintains she does not have an addiction to tea, despite repeated interventions from friends and family.
(1) Derek Wong, ‘Sovereignty Sunk? The Position of ‘Sinking States’ at International Law’ (2013) 14(2) The Melbourne Journal of International Law 346.
(3) United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994).
(4) Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits)  ICJ Rep 40, 101–2.