Climate change and rising sea level: A threat to island nations

Abstract

 The existential threat that sea level rise brought on by climate change poses to island nations is examined in this essay. It examines the crisis’s legal, environmental, and human rights ramifications, emphasizing how groups minimum accountable for global emissions are excessively affected. It promotes strengthened international legal frameworks, climate justice, and equitable adaption measures through case studies and legal research. In order to prevent vulnerable countries from being the first victims of global warming, the article emphasizes the necessity of swift, coordinated global action.

INTRODUCTION

 Consider how wonderful it is for your feet to feel the sand and seashores when you wake up to the gentle feel and wind of the sea. An everyday way of life that has been etched in time, from your ancestors’ identity to your cultural heritage and comfortable living, as a citizen of this strange country, is something that cannot be taken away from you or maybe it could. A fresh day, a bright dawn, only to discover that your identity’s impression on the shoreline has vanished, what then? A sense of calm and pride that this is always your hometown, a mark and stamp that this is your home. This is not a piece of dystopian fiction, rather, it is a reality that millions of people must deal with as they impede small island nations; nations like Kiribati, Tuvalu, the Maldives, and the Marshall Islands, which are facing existential risks and urgent worldwide attention as a result of climate change and currently at the forefront of a climate disaster. In this case, climate change does not merely knock, it floods and draws without warning. A country deleted off the global map.

The main question this article aims to address is: What legal protections exist or should exist for nations and peoples at risk of being submerged due to climate change? It examines the intersection of climate science, international law, and human rights as they relate to sea level rise, evaluating the role of major greenhouse gas emitters, questions of state continuity, legal personality, and the broader implications of climate displacement. The article’s scope includes doctrinal analysis, case law review, and the construction of practical scenarios to explore the gaps and possibilities within existing legal regimes.

BACKGROUND

Global mean sea levels have increased by about 21–24 cm since 1880, according to the Intergovernmental Panel on Climate Change (IPCC), with about one-third of that increase taking place in the last 20 years alone (IPCC, 2021)¹. Anthropogenic emissions of greenhouse gases, mostly carbon dioxide and methane, are the main cause of the warming of the atmosphere and the accompanying melting of glaciers and ice caps².

Particularly at risk are island nations, many of which are only five meters above sea level. They do not have higher terrain to which its inhabitants can flee, unlike continental states. As a backup plan, nations like Kiribati, the Marshall Islands, and the Maldives are aggressively acquiring land elsewhere or building artificial elevations. The loss of physical territory, however, brings up difficult legal issues, such as whether a state may continue to exist without a specified area.

What happens to its international recognition, citizenship, and sovereignty?

The definition of statehood is known. The Montevideo Convention³ of 1933’s fundamental conditions for statehood a permanent population, a defined area, a government, and the ability to engage in international relations are now directly threatened. As traditional ideas of territorial integrity become outdated due to environmental disasters, legal experts and international courts are struggling with how to interpret these requirements in the light of climate change.

Main body Climate change is the long term alterations in the temperature, wind patterns, precipitation and generally other elements in the earth’s climate system. While climate naturally changes over time, the current phase of climate change is largely driven my human activities, such as deforestation, the burning of fossil fuels and other industrial processes, by this, it leads to the drastic increase of concentration of greenhouse gases, such as carbon dioxide⁴, methane⁵ into the atmosphere⁶.

Section 1: Major Emitters and the Principle of Common but Differentiated Responsibilities (CBDR)⁷

The core of the climate change debate revolves around the matter of accountability for its interconnection. The evidence from both historical trends and scientific findings demonstrates that a select group of industrialized countries have been responsible for an inordinate amount of greenhouse gas (GHG) emissions. These emissions are the principal cause of the ongoing climate change and as a direct consequence, the increasing sea levels that currently endanger island states.

Based on data from the IPCC and the World Resources Institute, as of 2020:

With more than 28% of the world’s carbon dioxide emissions, China is currently the biggest emitter. Despite making up only 4% of the world’s population, the United States comes in second with almost 15%. While 9% comes from the European Union, and India makes up 7% of the total, yet its emissions per person are still practicable⁸.

The Principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC)⁹, as enshrined in Article 3(1) of the United Nations Framework Convention on Climate Change (UNFCCC), recognizes that all states share an obligation to combat climate change but acknowledges the unequal contributions and capacities among them. However, if a look is done at cumulative historical emissions, the United States becomes the highest contributor having emitted over 25% of global GHGs since the industrial revolution followed by the EU and China (Global Carbon Project, 2021). These historical contributions are critical in framing legal responsibility¹⁰.

Legal Interpretation of CBDR-RC Courts and academicians have construed CBDR-RC as a moral and legal theory that serves as the basis for distinct responsibilities under international environmental law.

CBDR is still reflected in the 2015 Paris Agreement, which calls on wealthy nations to support developing ones while permitting Nationally Determined Contributions (NDCs), although being more flexible than the Kyoto Protocol. However, critics contend that because NDCs are optional, enforcement is weakened, leaving small island nations vulnerable to international goodwill¹¹.

Crafted Scenario A hypothetical country Bakwai an island republic that is only three meters above sea level. It produces less than 0.01% of the world’s greenhouse gas emissions and has never industrialized. By 2045, its capital is under water, salt intrusion has compromised freshwater aquifers, and its population have been forcibly moved to Australia. Bakwai brings a lawsuit against the US and China in the International Court of Justice, citing the CBDR principle and seeking damages under international law.

In a landmark advisory decision, the court concludes that larger mitigation commitments and climate monetary reparations are required to meet the moral and legal obligations under the Paris Agreement and the UNFCCC, even though binding duty cannot be imposed without state approval.

Section 2: Climate Change and the Changing Concept of Statehood in International Law

Article 1 of the Montevideo Convention on the Rights and Duties of States (1933)¹² lays out four fundamental components of statehood: a permanent population, a defined territory, a government, and the ability to engage in relations with other states. The most vulnerable standard for island nations that face impending submersion due to sea level rise is the need for a defined territory.

But what happens when a state loses all or most of its land to the ocean? What is the new reality for states that have already started to migrate their citizens abroad? What laws will apply to them? Will they continue to be citizens of their home state or will they become citizens of the foreign state? What other issues are there that are not yet apparent but are lurking, such as the government and the economic impact of the foreign state?

The Montevideo Convention has to provide a new definition of a state, as well as a new explanation or discussion of what happens to a state that is submerged by water and other climate difficulties. These are the obvious issues that require solutions.

Trends and Upcoming Ideas There is no history of a state dissolving purely because of climate change. The International Law Commission (ILC) has recognized that current legal frameworks might not be sufficient to handle such significant changes, though, in its work on sea level rise and international law.

Statehood can persist without a definite physical location, according to customary international law. Rather, the operation of governmental institutions and foreign states’ recognition might act as stand-ins for continuity¹³. Although coordinated multilateral recognition and legislative reform would be necessary, this changing perspective might give fading governments legal life support.

Legal Innovations and Proposals: International organizations and legal scholars have suggested solutions like: Transnational constitutional arrangements, in which submerged nations may sign treaties granting autonomy over specific lands or governance in exile; floating islands or artificial structures, which may be designated as temporary sovereign territory (though this raises significant logistical and legal issues)¹⁴; and extraterritorial sovereignty, which permits a state to maintain nationality and run a government outside of its traditional geographic boundaries.

Section 3: Human Rights and Climate induced displacement

Climate change impacts human rights in several profound ways, particularly for island nations. The United Nations has recognized climate change as a direct threat to human rights, especially the right to life, health, and adequate living standards. As sea levels rise, islanders face the loss of their homes, livelihoods, and culture¹⁵.

Furthermore, climate-induced displacement creates challenges for international refugee law. Currently, no legal framework exists for those displaced by environmental factors. The 1951 Refugee Convention does not explicitly cover ‘climate refugees,’ leading to advocacy for an expanded legal framework.

The 1951 Refugee Convention, for example, narrowly defines a refugee as someone fleeing persecution due to race, religion, nationality, political opinion, or membership in a particular social group, it does not cover persons displaced by environmental factors like rising sea levels.

The Right to Remain vs. the Right to Relocate Island populations are increasingly faced with the harsh impasse: stay and perish or leave and lose everything. This dilemma brings into conflict two fundamental rights; the right to relocate, linked to survival, dignity, and self-determination, and the right to remain in one’s homeland, linked to cultural and territorial integrity. As a result, international law lacks clear pathways for addressing climate-induced displacement.

New Legal Acknowledgment The Supreme Court of New Zealand denied the asylum request of a Kiribati national who claimed that sea level rise threatened his life in the historic case of Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107¹⁶. The court ruled that such situations were not covered by the 1951 Refugee Convention, although acknowledging the seriousness of climate change¹⁷.

In Ioane Teitiota v. New Zealand (2020)¹⁸, the UN Human Rights Committee upheld the ruling but noted that future climate conditions may call for refusal to return responsibilities if returning to one’s native country would actually endanger life. This is a big step in the right direction to acknowledge displacement brought on by climate change as a human rights concern.

Gaps in Legal Protection There is currently no legally binding agreement that specifically addresses climate migrants or climate refugees. The Global Compact for Safe, Orderly and Regular Migration (2018)¹⁹ recognizes environmental migration and encourages collaborative efforts to support impacted populations. The human rights at issue are:

• The right to life (ICCPR, art. 6)
• The right to adequate housing and a standard of living (ICESCR, art. 11)
• The right to culture and identity (UNDRIP, 8 and 11)
• The right to non-discrimination; and
• The right to protection from arbitrary States, particularly major emitters, have a legal duty to protect these rights for vulnerable populations.

Section 4: Adaptation, Relocation Techniques, and the Function of International Law

Island nations are left with no choice but to migrate, adapt, or do both as the seas continue to rise. International legal frameworks must adapt to provide structured, humane, and rights-based solutions, as adaption methods are becoming more and more impractical for many.

Strategies for Domestic Adaptation. For example, the Maldives has begun a multi-million dollar artificial island project (Hulhumalé)²⁰ to accommodate climate refugees, and Kiribati’s “Migration with Dignity” policy²¹ intends to upskill locals for jobs overseas as a long-term adaptation plan.

Nevertheless, adaptation isn’t always financially viable. Due to their tight finances, many SIDS are highly dependent on outside assistance. Even when it is possible, adaptation frequently provides short-term relief rather than long-term stability.

Relocation Plans and Their Legal Difficulties Significant ethical, political, and legal obstacles arise with relocation. Should one state buy another’s land? How should displaced people be incorporated into society, culture, and the economy? Will they continue to be citizens? Who is responsible for paying for it?

The purchase of property in Fiji as a possible resettlement site by Kiribati was a noteworthy attempt at cross-border relocation. But this poses questions regarding authority over recently occupied areas, sovereignty, and the continuation of statehood.

As of the now, no international law requires nations to take in climate refugees. People who are compelled to relocate because of climate change lack legal status and protection because the majority of migration rules are state-centric.

International Institutions’ Function One of the few institutional solutions to climate loss is the Warsaw International Mechanism for Loss and Damage (WIM), which was created under the UNFCCC. It is not legally obligatory, nevertheless, and prioritizes financial assistance above resettlement or legal protection.

Despite being revolutionary, the Paris Agreement²² does not establish legally binding commitments on migration, loss, or damage. Although Article 8 recognizes loss and harm, it does not offer any means of accountability.

Discussion

Deep cracks in the current international legal system are shown by the dire situation of island nations. As governments vanish and people shift, the fundamental tenets of international law sovereignty, citizenship, and human rights run the risk of becoming ill-defined. The Paris Agreement and other contemporary international environmental tools, according to critics, are adequate. These tools, however, do not address statelessness, have no enforcement mechanisms, and offer climate migrants no real protection.

Furthermore, some scholars warn that this could create a risky precedent for state recognition, while others suggest reinterpreting the Montevideo criterion to allow for “de-territorialized states.” The globe is faced with a conundrum: laws that were intended to promote stability now have to welcome change.

Additionally, there is conflict between international obligation and state sovereignty. Despite having made a disproportionate amount of contributions to climate change, major emitters especially developed nations are not held legally responsible for the displacement of vulnerable communities. Although it is not legally obligatory, the UNFCCC’s Common But Differentiated Responsibilities premise is morally compelling.

The international community runs the risk of transgressing its own values in the absence of significant legislative reform, especially the obligation to prevent statelessness, the right to life, and the norm of refusal to return.

Conclusion

Island nations face a silent but serious threat from the rising sea levels brought on by climate change. These populations suffer the most even if their contributions to global emissions are negligible. The law must be used as an instrument for justice as well as a shield, ensuring that significant emitters are held accountable and providing assistance to disadvantaged countries. The international community can preserve the values of sustainability and equity and make sure that the voices of those who are most impacted are not ignored or forgotten by adopting a collaborative, legally based global response.

Reference(S):

1. Intergovernmental Panel on Climate Change (IPCC), Climate Change 2023: Synthesis Report (IPCC 2023) https://www.ipcc.ch/report/sixth-assessment-synthesis-report/ accessed 12 April 2025.
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accessed 12 April 2025.

3. Jon Barnett and Michael Webber, ‘Accommodating Migration to Promote Adaptation to Climate Change’ (2010) 40 World Development
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development-in-the-maldives accessed 12 April 2025.

5. Chris McGrath, ‘Kiribati Buys Land in Fiji in Climate Refuge Move’ (Al Jazeera, 12 July 2014) https://www.aljazeera.com/news/2014/7/12/kiribati-buys-land-in-fiji-in-climate-

refuge-move accessed 12 April 2025.

6. United Nations Framework Convention on Climate Change (UNFCCC), Paris Agreement (2015) https://unfccc.int/sites/default/files/english_paris_agreement.pdf

accessed 12 April 2025.

7. Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) [2015] HAZA C/09/00456689 (District Court of The Hague).
8. Massachusetts v Environmental Protection Agency 549 US 497 (2007).
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10. United Nations High Commissioner for Refugees (UNHCR), ‘Legal Considerations Regarding Claims for International Protection Made in the Context of the Adverse Effects of Climate Change and Disasters’ (1 October 2020) https://www.unhcr.org/publications/legal-considerations-regarding-claims-international- protection-made-context accessed 12 April 2025.
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12. International Law Commission, Draft Articles on the Protection of Persons in the Event of Disasters, UN Doc A/71/10 (2016).
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¹ Global Carbon Project, ‘Global Carbon Budget 2021’ (December 2021) https://www.globalcarbonproject.org/carbonbudget/21/files/GCP_CarbonBudget_2021.pdf accessed 12 April 2025.

² ibid

³ The Montevideo Convention, a treaty established in 1933, sets forth the fundamental requirements for the recognition of statehood. These criteria include the existence of a permanent population, a clearly demarcated territory, an established government, and the ability to conduct international relations. Importantly, the convention also affirms the principle of the equal standing of all states and the obligation of non-intervention in the internal matters of fellow states.

⁴ Carbon dioxide is a kind of gas that is naturally present in the earth’s atmosphere, living things such as human breath out carbon dioxide, also, organic materials like oil, coal, wood, or gas are burned which is combustion which is then emitted to the air. The importance of carbon dioxide is that asides it being one of the most important greenhouse gasses, this is because it traps heat in the earth’s atmosphere which in turn contributes to global warming and then results to climate change.

⁵ Methane exists in smaller amounts in comparison to carbon dioxide, it is still a powerful greenhouse gas, methane and carbon dioxide have similar features such as colorless, and odorless, although, one distinctive feature is that methane is highly flammable. Methane is more than 25 times more effective than carbon dioxide at trapping heat in the atmosphere in over a 100-year period, this makes it a serious contributor to climate change.

⁶ Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis. Summary for Policymakers (IPCC 2021) https://www.ipcc.ch/report/ar6wg1/downloads/report/IPCC_ARG-WGI_SPM_final.pdf accessed 12 April 2025.

⁷ United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), art 3(1).

⁸ Global Carbon Project, ‘Global Carbon Budget 2023’ (Global Carbon Atlas, 5 December 2023) https://www.globalcarbonatlas.org/ accessed 12 April 2025.

⁹ ibid

¹⁰ ibid

¹¹ Paris Agreement under the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) UN Doc FCCC/CP/2015/10/Add.1.

¹² supra

¹³ Rosemary Rayfuse, ‘International Law and Disappearing States: Maritime Zones and the Criteria for Statehood’ (2010) 41 Environmental Policy and Law 281.

¹⁴ Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era’ (2011) 2 Climate L 345.

¹⁵ Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention)

¹⁶ UN Human Rights Committee, Ioane Teitiota v New Zealand (Views adopted 24 October 2019) UN Doc CCPR/C/127/D/2728/2016.

¹⁷ ibid

¹⁸ Teitiota v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107 (New Zealand Supreme Court).

¹⁹ Global Compact for Safe, Orderly and Regular Migration (adopted 19 December 2018) UN Doc A/RES/73/195.

²⁰ UN-Habitat, ‘Hulhumalé: A Climate-Resilient Urban Development in the Maldives’ (UN-Habitat, 2019)

<https://unhabitat.org/hulhumale-a-climate-resilient-urban-development-in-the-maldives> accessed 12 April 2025.

²¹ Jon Barnett and Michael Webber, ‘Accommodating Migration to Promote Adaptation to Climate Change’ (2010) 40 World Development 1055, 1059; Chris McGrath, ‘Kiribati Buys Land in Fiji in Climate Refuge Move’ (Al Jazeera, 12 July 2014) <https://www.aljazeera.com/news/2014/7/12/kiribati-buys-land-in-fiji-in-climate-refuge-move>

accessed 12 April 2025.

²² Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UN Doc FCCC/CP/2015/10/Add.1.