CLIMATE CHANGE AND THE LEGAL STATUS OF SUBMERGED STATES: RETHINKING SOVEREIGNTY ANDMARITIME ENTITLEMENTS UNDER INTERNATIONAL LAW

Abstract

The threat caused by climate change creates sea level rise problems, which result in affecting international law and, in particular, the law of the sea. This article basically highlights how there is a lack of comprehensive guidelines on the prediction of baselines in the UN Convention on the Law of the Seas, which results in not addressing the permanent inclusion of territory and the continuous increase of maritime zones. This article has been critically analyzed by thoroughly discussing the judicial intervention on the said issue and perspectives of different legal scholars, and has explored the contraction of territorial seas, Exclusive Economic Zones (EEZs), and continental shelves that always put the sovereignty and economic survival of poor states in threat. It has concluded by giving the way forward in combating this legal issue by adopting some practical steps to protect their statehood and maritime entitlements, and they must develop and modify their legal doctrines.

Introduction

The current International order is believed to be based on geographical order, which remains unchanged. But due to climate change, the level of the sea is rising, which, as a result, changes the international boundaries. As per the fourth assessment report of the International Panel on Climate Change (IPCC), 11 years have been ranked as the warmest in respect of global temperature. The oceans have the capability to absorb 80 percent of the heat that is added due to climate change. Due to these changes, there are risks of droughts and floods, and an increase in sea level also results in the melting of glaciers. Rapid changes in the climate will disturb the public at large by affecting their access to water, food, population, health, and land use. The poorest countries and their people are expected to suffer more because of their geographical location, lower incomes, and institutional capacities.  States like Kiribati, Tuvalu, and the Maldives, which are low-lying islands, are at high risk of being affected in the present rather than having any future risks.  This paper analyses the legal implications of the effect of a rise in sea level because of climate change. The thesis statement of this topic is that unless we take proper action and amend existing laws, there will be a higher risk of losing the land due to climate change, and the inhabitants of the state will be affected.

1.Research Methodology

This article is based on doctrinal and analytical research methodology. It has discussed different international statutes, laws, and treaties, which a primary sources and make it a doctrinal study. Furthermore, secondary sources have been used as well by including books and journal articles, to enhance the discussions of statutes. Thus, the approach will be considered analytical because of analyzing different materials and studying the existing laws and loopholes in them, and finding a solution to the said problem.

2.LEGAL FRAMEWORK

It is pertinent to note that there is no express provision that says that the boundaries should move with the baseline. Article 7 of UNCLOS states that if there is instability in coastal lines because of any natural condition, then the coastal states can change their baseline line, but it should be according to the convention.

The United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea, also called as Constitution of the Ocean, was adopted as a comprehensive agreement. It basically deals with the peaceful use of oceans and the allocation of resources. It also deals with sovereignty and sovereign rights, in respect of the application of the maritime zone. Once this law was being negotiated, it was accepted that coastlines are naturally dynamical and change easily. Nevertheless, the consequences of such changes were never brought up in discussions. There are some zones under this convention. According to UNCLOS Article 5, the low water baseline is the standard baseline. Straight baselines may be utilized in exceptional circumstances in compliance with Articles 7, 9, and 10. If specific conditions are satisfied under Article 47 of UNCLOS, archipelagic States are subject to the archipelagic baseline.

Territorial Sea

A coastal state has complete territorial dominion over a 12-nautical-mile-wide strip of the sea that extends from its baselines.  The seabed, subsurface, and airspace are all included under this sovereignty.

Contiguous Zone

 A state may exert power over a zone up to 24 nautical miles from the baselines to prevent violations of its financial, immigration, hygienic, or customs rules outside of its territorial sea.

Exclusive Economic Zone (EEZ)

A coastal state has “sovereign rights for the purpose of investigating and exploiting, preserving and managing the natural resources,” as well as jurisdiction over artificial islands and marine scientific research, in an area up to 200 nautical miles from the baselines.

Continental Shelf

The continental shelf is made up of the seabed and subsoil of the undersea regions that stretch 200 nautical miles or beyond the territorial sea to the outer edge of the continental margin. Over inactive species and non-living resources, the coastal state has sovereign rights.
Although the Convention does not address the permanent, man-made loss of baseline points, it does tacitly acknowledge coastal dynamism. The underlying cause of the impending crisis is this legal silence.

3.Judicial Interpretation

Massachusetts V. EPA

The U.S. SC addressed the subject of shoreline shrinkage brought on by global warming in 2007.  The state claimed, among other things, that the state’s 200 miles of coastline could be lost as a consequence of sea level rise, which would be a “concrete and particularized injury that is either existent or at hand.” The Court specifically cited Massachusetts’ undisputed claim that “rising seas have already begun to taste Massachusetts’ coastal land” and concluded that the defendant, the Environmental Protection Agency, was responsible for the particularized injury because “the Commonwealth owns a substantial portion of the state’s coastal property.”  Among other things, this decision was noteworthy because it was the first time the Court acknowledged and addressed the loss of coasts as a result of climate change.

United States v. Alaska

In United States v. Alaska, the U.S. SC upheld this strategy, ruling that “the displacement in a low-water line along the geological formation could lead to a change in the baseline for measurement of a maritime zone” and that the “State’s claim to underwater lands beneath the territorial sea would change” in accordance with the baseline’s changes. Furthermore, a federal concession that “Accidental grounds is admissible to show significant deviations on such charts from the actual low-water line, in which case the actual low-water line prevails” was cited by the Special Master in United States v. Louisiana, where the Master was debating whether to exercise the actual low-water line or the one shown on a map.

Romania v. Ukraine

As demonstrated in Maritime Delimitation in the Black Sea (Romania v. Ukraine), where it used the equidistant/relevant circumstances technique, the International Court of Justice (ICJ) has further complicated the issue past highlighting justice in maritime delimitation.  The core situation, the coastline itself, is disappearing, and it is yet unclear how equitable principles apply in this situation.

4.Critical Analysis

There are severe legal and economic consequences of changing of baseline because of climate change.

Contraction of Maritime Zones

Due to climate change, there is a high rise in sea level, which results in a reduction of the state’s maritime area. There are different zones like territorial sea, contiguous zone, and EEZ, which contract once the baseline moves in an inward direction. Due to this shift in land, the coastal states can lose their resources, the area that they held once becomes part of the EEZ, and the EEZ becomes part of the high sea. This results in violating the economic and sovereign rights of that specific area.

Alteration of Navigational Rights

There is a legal regime that regulates navigation and its changes within the zone. When the transition occurs, especially from territorial sea to EEZ and EEZ to becoming a part of the sea, the rights which was once associated with the inhabitants of that state and were referred to as “innocent passage” turn to the “freedom of navigation.” As a consequence that national security is affected, along with the environmental regulations and customs enforcement, which also change.

Destabilization of Maritime Boundaries

The maritime boundaries are often established under a treaty, statute, or any adjudication that forms the baselines. When the baseline is shifted, it can affect that specific agreement or treaty as well and making it ineffective, which results in long-term disputes among the states that signed that agreement. UNCLOS brought stability and finalized the territory and sovereignty of the state, which could be undermined by such a shift.

Recent Developments and Inadequate Response

Although the international community has not swiftly responded to such effects but they are making some efforts to reduce the threats. There are two associations, like the International Law Association and the International Law Commission, that have for the first time introduced the topic of the rise in sea level on their agendas. Along with that, some initiatives have been taken, like the Platform on Disaster Displacement and efforts under the UNFCCC, such as National Adaptation Programs of Action (NAPAs) and the newer National Adaptation Plans (NAPs), seek to address climate impacts. But these initiatives solely focus on giving some other space to the inhabitants of the affected places, but they do not focus on the main issue of protecting the maritime zones and statehood. As per article 60(8), the artificial installation does not create maritime zones, thus the construction of coastal defenses does not render any useful legal solution for the problem. In a nutshell, the solutions imposed by those initiatives are insufficient for addressing the main issue and preserving maritime zones.

5.RECOMMENDATIONS

In order to reduce this catastrophe, there is a need to implement a proactive strategy to preserve the maritime zone. These recommendation provides a way forward to reduce those issues.

International Legal Instrument

There is a great need for states to come forward and negotiate a new agreement, which must be implemented as soon as possible under UNCLOS, and it should recognize the promise of “stable maritime zones.” This step would help the states that are under existing threat to fix their baselines permanently, along with their legal rights and entitlements regarding that territory, which will be protected.

2.Universalize and Strengthen UNCLOS Compliance

There is a lack of compliance with UNCLOS by different member states; thus, the ratification by all the countries, particularly by the United States, is very necessary. Furthermore, there should be a campaign that would support and assist the poor states that are not able to deal with this situation in complying with the deposit. Along with that, there is a need to update the geospatial technology for those states.

3.Integrate Climate-Change Clauses in Maritime Boundary Treaties

Another important way to combat these threats is by raising awareness regarding climate change, and states need to amend their treaties by adding clauses that explicitly address the change in climate and its effects on shifting baselines. These clauses must contain a comprehensive mechanism to deal with such coastal changes, and there should be clauses for preserving the stability, and there should be such steps to prevent any future disputes among states.

Establish an International Fund for Technical and Legal Assistance

There should be a campaign for raising funds by the International Seabed Authority or under the UNFCCC, which should help the poor states by providing the technical resources for protecting their baselines. Furthermore, they should be provided with the techniques that help in measuring the exact maritime zone and help those states in developing their plans.

Develop a UN Charter-Based “Sovereignty in Absentia” Doctrine

The UN General Assembly or Security Council needs to take up a resolution laying out a policy for entirely submerged countries to continue to be recognized as states. In accordance with Recommendation 1, this would ensure their maritime zones are preserved, they maintain control over their remaining assets and population (wherever they may be relocated), and they continue to be members of international organizations.

Create a Specialized International Tribunal Chamber

Within an existing tribunal, like the International Tribunal for the Law of the Sea (ITLOS), a special chamber should be created with the purpose of resolving issues pertaining to sea level rise and climate change. This would offer a specialized setting for creating a fair and cogent body of law on these new topics.

6.Conclusion

The increase in climate change is affecting the international legal system in the modern era. The concepts which were mentioned in the UN charter, like territorial integrity and sovereignty, equality, are at risk. This legal article has articulated all the data and explored the legal aspects, the judicial intervention, and critically analyzed it, and in the end, provided a way forward to deal with this threat. A system on the verge of collapse is shown by the legal recognition of coastline loss and the rational consequences of changing baselines. Active adaptation only controls the deterioration; it is insufficient. Instead, the international community needs to actively develop the law. The suggested actions, which range from establishing baselines to ensuring the continuation of statehood, are essential to maintaining justice and order and are not only theoretical exercises. The decision is clear: either let the law become a tool of erasing for weaker countries, or transform it into a barrier that defends their rights, identity, and sovereignty from the invading waters. Now is the moment to construct that shield.

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