David Freestone and Duygu Çiçek David Freestone and Duygu Çiçek Disclaimer This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy, completeness, or currency of the data included in this work and does not assume responsibility for any errors, omissions, or discrepancies in the information, or liability with respect to the use of or failure to use the information, methods, processes, or conclusions set forth. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. 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Any queries on rights and licenses, including subsidiary rights, should be addressed to World Bank Publications, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@worldbank.org Cover: Malosmadulu Atolls, Maldives. Image courtesy NASA/GSFC/METI/ERSDAC/JAROS, and U.S./Japan ASTER Science Team Table of Contents Acronyms ............................................................................................................................. v Acknowledgment ................................................................................................................ vii Executive Summary............................................................................................................. viii Expected Effects of Climate Change on Coastal States, Particularly Low-Lying States Part I and Small Island Developing States (SIDS), with a Focus on Rising Sea Levels................ 1 1. Sea Level Rise Predictions from the Intergovernmental Panel on Climate Change.............. 1 2. Physical and Ecological Impacts of Climate Change and Sea Level Rise.............................. 4 The Legal Regime Governing the Rights and Resources of Coastal and Island States Part II in the Age of Climate Change and Sea Level Rise............................................................... 7 1. 1982 UN Convention on the Law of the Sea........................................................................ 7 2. 1992 UN Framework Convention on Climate Change and the 2015 Paris Agreement.......... 12 3. Legal Aspects of Statehood............................................................................................... 15 4. Legal Framework for Human Mobility in the Context of Climate Change........................... 17 5. Work of the International Law Association and the International Law Commission.......... 22 Key Legal and Policy Questions Faced by Coastal States, Particularly Part III Low-Lying States and SIDS, in Relation to Sea Level Rise................................................. 26 1. What Are the Legal Implications of Physical Changes to Different Types of Baselines Under the 1982 LOSC as a Result of Sea Level Rise?............................................................ 26 2. What is the Difference Between an “Island” and a “Rock”?................................................. 30 3. What Are the Legal Implications – for the Outer Limits of a State’s Maritime Zones and Maritime Boundaries With Other States, and for the Rights of Third States and Their Nationals – of Changes in Coastal Baselines From Which Maritime Zones are Delineated or Delimited?............................................................................................ 32 4. How Might a State Defend its Existing Maritime Entitlements in Accordance with International Law?........................................................................................................... 39 5. What Are the Legal Implications of an Island State Becoming Uninhabitable?................... 48 6. What Are the Legal and Policy Options Relating to Human Mobility in the Context of Climate Change?.......................................................................................................... 52 7. How is the International Community Able to Provide Support for States that Need to Adapt to Impacts From Sea Level Rise?.......................................................................... 60 Appendix I: Selected funds, financing, and other options available to SIDS.................... 69 iv | Table of Contents List of Figures Figure 1. Coastal baseline and maritime zones stipulated under Law of the Sea Convention ............................ 7 Figure 2. Types of baselines ............................................................................................................................ 8 Figure 3. Low tide elevations and the generation of maritime zones ................................................................ 9 Figure 4. Definition of the outer limits of the continental shelf ....................................................................... 11 Figure 5. Maritime zones of archipelagic States .............................................................................................. 29 Figure 6. Islands and low tide elevations ......................................................................................................... 30 Figure 7. Impacts on maritime zone of receding baselines ............................................................................... 34 Figure 8. Maritime zones ................................................................................................................................ 34 Figure 9. (i) Two States (State A and State B) with an opposite boundary dividing exclusive economic zones and (ii) Coastlines retreat: New High Seas area is created .................................................................. 36 Figure 10. Low tide elevation with navigational aid installation ........................................................................ 40 Figure 11. Major land reclamation in Singapore ................................................................................................ 41 Figure 12. The status of Pacific regional maritime boundaries .......................................................................... 42 Figure 13. Maritime boundary between opposite States (A and B) ..................................................................... 44 List of Boxes Box 1. Disaster risk management: Developments in the Pacific region ........................................................ 54 Box 2. Fiji’s Planned Relocation Guidelines (2018) ....................................................................................... 56 Box 3. The Kampala Convention on Internally Displaced Persons ................................................................ 57 Box 4. Nationally Determined Contributions with ocean-related commitments .......................................... 61 International Law Aspects of Sea Level Rise | v Acronyms AOSIS Alliance of Small Island States ARC African Risk Capacity ASA Advisory Services and Analytics AU African Union Cat DDOs Catastrophe Deferred Drawdown Options CCRIF Caribbean Catastrophe Risk Insurance Facility CDM Clean Development Mechanism CER Certified Emission Reduction CERC Contingent Emergency Response Component CESCR Committee on Economic, Social and Cultural Rights CIF Climate Investment Funds CLCS Commission on the Limits of the Continental Shelf CMA Meeting of Parties to the Paris Agreement COFA Compact of Free Association COP Conference of the Parties COSIS Commission of Small Island States on Climate Change and International Law CRW Crisis Response Window CS continental shelf CSF Climate Support Facility CTF Clean Technology Fund DOALOS Division for Ocean Affairs and Law of the Sea (UN) DPF Development Policy Financing DRR disaster risk reduction EEZ exclusive economic zone EIA environmental impact assessment ExCom Executive Committee FAO Food and Agriculture Organization GCCA Global Climate Change Alliance GCF Green Climate Fund GEF Global Environment Facility GFDRR Global Facility for Disaster Reduction and Recovery GHG greenhouse gas GMSL Global Mean Sea Levels HRC Human Rights Council ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice IDA International Development Association IDMC Internal Displacement Monitoring Centre IDPs internally displaced persons ILA International Law Association ILC International Law Commission ILO International Labor Organization IMO International Maritime Organization IOM International Organization for Migration IPCC Intergovernmental Panel on Climate Change IPF Investment Project Financing vi | Acronyms ISA International Seabed Authority ITLOS International Tribunal for the Law of the Sea ITMOs internationally transferred mitigation outcomes LDCF Least Developed Countries Fund LDCs least developed countries LOSC Law of the Sea Convention LTE low tide elevation m meter MDBs multilateral development banks MDTF Multi-Donor Trust Fund MRV measurement, reporting, and verification NAPA National Adaptation Programmes of Action NAPs National Adaptation Plans NDC Nationally Determined Contribution NDC-SF NDC Support Facility nm nautical miles NOAA National Oceanic and Atmospheric Administration OAS Organization of American States OAU Organization of African Unity OECD Organization for Economic Cooperation and Development OHCHR Office of the High Commissioner for Human Rights PA Paris Agreement PCA Permanent Court of Arbitration PCRAFI Pacific Catastrophe Risk Assessment and Financing Initiative PCRIC Pacific Catastrophe Risk Insurance Company PICTs Pacific Island Countries and Territories PIF Pacific Island Forum RFMOs Regional Fisheries Management Organizations SBI Subsidiary Body for Implementation SBSTTA Subsidiary Body on Scientific, Technical and Technological Advice SCCF Special Climate Change Fund SDG Sustainable Development Goal SEADRIF Southeast Asia Disaster Risk Insurance Facility SIDS Small Island Developing States SPC Secretariat of the Pacific Community UNCED UN Conference of Environment and Development UNDP United Nations Development Programme UNDRR UN Office for Disaster Risk Reduction UNEP UN Environment Programme UNFCCC UN Framework Convention on Climate Change UNGA UN General Assembly UNHCR UN High Commissioner for Refugees UNSG Secretary-General of the United Nations USD US Dollar WECAFC Western Central Atlantic Fishers Commission WIM Warsaw International Mechanism for Loss and Damage WMO World Meteorological Organization WRI World Resource Institute International Law Aspects of Sea Level Rise | vii Acknowledgment Tararwa Island, Kirtibati. Photo: John Hodjkinson T he original edition of this work, “Legal parts of the text, and to Professors Schofield and Andi Dimensions of Sea Level Rise: Pacific Arsana for use of graphics. This edition benefited Perspectives” which was published on June from the valuable review and feedback of Professor 29, 2021, was the result of a collaborative effort and Walter Kälin, Markus Pohlmann, and Farzaneh included guidance and input from Christina Leb, Shakeri. Finally, we would like to pay tribute to the Siobhán McInerney-Lankford, Sachiko Morita, Remi late Professor William Edeson who gave generously Moncel, Victor Bundi Mosoti; valuable comments of his advice on various issues. After a distinguished from the extended members of the team working career as an academic and in the Legal Office of the on the “Building Resilience in Pacific Atoll Island UN Food and Agriculture Organization he spent the Countries” study including Artessa Saldivar-Sali, final decades of his life supporting the legal work Annette Leith, Veronica Piatkov, Georgina McArthur, of the Pacific Island Forum right up to his untimely Colleen Butcher Gollach, Richard Croad, Jon Metcalf, death in October 2021. Doug Ramsay, Karen Jimeno, and Alessio Giardino; and comments and suggestions from the peer This edition was commissioned by the World Bank reviewers including Professor Nilufer Oral, Professor Legal Vice Presidency. Walter Kälin, Stephane Hallegatte, Nicolas Desremaut, Brenden Jongman, and Borja Gonzalez Reguero. Our thanks are also due to Angela Takats for editorial We are most grateful for important comments from assistance and Miki Fernandez for the design. Professors Davor Vidas and Clive Schofield on various viii | Executive Summary Executive Summary T his legal study is based on “Legal Dimensions of of this study is to present the latest legal thinking on Sea Level Rise: Pacific Perspectives” which was these issues and provide an analysis that will be useful published on June 29, 2021. The original version to stakeholders, policymakers, and practitioners. provided an assessment of key legal frameworks and policy questions that are relevant in the context of The study is divided into three parts. Part I looks briefly sea level rise in the Pacific region. This work, on the at the pioneering work of the Intergovernmental other hand, while largely based on the analysis of the Panel on Climate Change (IPCC) and its most recent original version, provides an updated assessment of predictions for sea level rise during the current century, the impacts of climate change, especially sea level rise, and then sets it in the context of other scientific work on the maritime rights of all island and coastal States.1 on threats from sea level rise and warming. Part II sets It is designed for a global audience. out an overview of relevant legal frameworks, key terminology, and principles based on international The study aims to provide a wide view of the legal law, as well as judicial decisions and scholarly work aspects of the impacts of sea level rise and climate that define the rights, resources, and obligations of change on Small Island Developing States (SIDS). It all coastal States—particularly island and low-lying looks at the main projected impacts of sea level rise States. Part III then presents a series of responses to and ocean related climate change on these States key legal and policy questions faced by these States in and territories, including the possible impacts on the relation to sea level rise. The questions addressed are marine resources on which they depend. It outlines the following: the main legal regimes that regulate these issues, including the 1982 UN Law of the Sea Convention ➊ What are the legal implications of physical (LOSC) and the regime of the 1992 UN Framework changes to different types of baselines under Convention on Climate Change (UNFCCC) and its 2015 the 1982 LOSC as a result of sea level rise? Paris Agreement. Although the primary focus of this Sea level rise is likely to result in retreating coastlines study is the maritime rights of coastal States, it also and the inundation of small offshore features—all of looks at the key legal framework regulating other which are used to measure maritime entitlements. issues likely to arise or increase in the light of the These changes may make it difficult for coastal possible threats, such as that related to human mobility States to retain those entitlements according to the and the issue of continued statehood. Many of these strict requirements of the LOSC. issues pose completely unprecedented challenges to the international legal order, so definitive answers to ➋ What is the difference between an “island” many questions are simply not possible. The objective and a “rock”? 1 It builds on the 2008 World Bank legal working paper on the Arbitration Tribunal awards provide detailed Maritime Rights of Coastal States. See, Leva,  C. D., and S. Morita. guidance on the difference between “rocks” and 2008. “Maritime Rights of Coastal States and Climate Change: “islands” as defined by the LOSC, but questions still Should States Adapt to Submerged Boundaries?”, World Bank Law and Development Working Paper Series. In the intervening years, the remain as to whether physical changes in islands threats of climate change have amplified, more coastal States have brought about by sea level rise might require them resolved to strengthen their resilience, and the relevant international legal regime has evolved, including through the adoption of the 2015 to be reclassified as “rocks” with more limited Paris Agreement. maritime entitlements. International Law Aspects of Sea Level Rise | ix ➌ What are the legal implications – for the ➎ What are the legal implications of an island outer limits of a State’s maritime zones and State becoming uninhabitable? maritime boundaries with other States, This is an unprecedented situation for international and for the rights of third States and their law, which the international community will need nationals – of changes in coastal baselines to address. But international law and practice from which maritime zones are delineated or does suggest a presumption of State continuity delimited? provided that the State can honor its international It is not clear what the legal effect is of physical obligations and responsibilities. changes to coastal baselines that have been used as the basis for maritime boundary delimitation ➏ What are the legal and policy options relating treaties or judicial decisions, even if the result is to to human mobility in the context of climate extend the delimitation lines beyond 200 nautical change? miles (nm) from the coast. International law does provide a framework for addressing issues of human mobility in the face of ➍ How might a State defend its existing sea level rise, but it is fragmented. This section sets maritime entitlements in accordance with out the relevant legal tools and policy options that international law? might help people adapt in situ and that facilitate Coastal States are entitled to use a number of human mobility if it becomes necessary. physical means, including artificial islands, to defend their coastlines and coastal basepoints. ➐ How is the international community able They may also seek to argue at the legal and policy to provide support for States that need to adapt level that they are not obliged to amend their to impacts from sea level rise? existing maritime entitlements in the face of sea There is a myriad of mechanisms available for level rise. financial support and technical assistance in designing and implementing adaptation measures, including legal and policy strategies. x | Section Great Exuma Island, Bahamas. Photo: NASA International Law Aspects of Sea Level Rise | 1 Part I Expected Effects of Climate Change on Coastal States, Particularly Low-Lying States and Small Island Developing States (SIDS), with a Focus on Rising Sea Levels 1. Sea Level Rise Predictions from the in 19903 predated the 1992 UN Framework Convention on Climate Change (UNFCCC), yet it added a degree of Intergovernmental Panel on Climate urgency to the negotiations because of the breadth of Change issues which it predicted would be impacted by climate The Intergovernmental Panel on Climate Change change and the possible severity of those impacts. (IPCC) was established in 1988 by the UN Environment The IPCC is now in its sixth cycle, producing the Sixth Programme (UNEP) and the World Meteorological Assessment Report (AR6).4 The Working Group I Organization (WMO) to provide policymakers with contribution to the AR6, Climate Change 2021: The regular scientific assessments on climate change, its Physical Science Basis, was released in August 2021;5 implications, and potential future risks, as well as to followed by the Working Group II contribution, Climate put forward adaptation and mitigation options. The Change 2022: Impacts, Adaptation and Vulnerability, IPCC does not conduct its own research, but through which was released in February 2022;6 and the its assessments it determines the state of scientific Working Group III contribution, Climate Change 2022: knowledge on climate change. It identifies where there Mitigation of Climate Change, which was released in is agreement in the scientific community on topics April 2022.7 Finally, the Synthesis Report was released related to climate change, and where further research is on 20 March 2023 to inform the 2023 Global Stocktake needed. The reports are drafted and reviewed in several under the UNFCCC.8 stages, thus guaranteeing objectivity and transparency. IPCC reports are neutral, policy-relevant but not policy- Over the last 30 years, scientific knowledge has prescriptive.2 Its First Assessment Report (FAR) issued increased exponentially as has modeling expertise. 2 The Intergovernmental Panel on Climate Change (IPCC), available at: https://www.ipcc.ch/ 3 IPCC, First Assessment Report Synthesis (FAR), published as part of the 1992 IPCC Supplementary Reports as IPCC First Assessment Report Overview and Policymaker Summaries and 1992 IPCC Supplement, available at: https://www.ipcc.ch/report/ar1/syr/ 4 See, IPCC, The Sixth Assessment Report (AR6) with contributions by its three Working Groups and a Synthesis Report, three Special Reports, and a refinement to its latest Methodology Report, available at: https://www.ipcc.ch/assessment-report/ar6/ 5 IPCC. 2021. Climate Change 2021: The Physical Science Basis, Working Group I contribution to the AR6, 7 August 2021, available at https://www. ipcc.ch/report/ar6/wg1/ 6 IPCC. 2022. Climate Change 2022: Impacts, Adaptation, and Vulnerability, Working Group II contribution to the AR6, 28 February 2022, available at: https://www.ipcc.ch/report/sixth-assessment-report-working-group-ii/ 7 IPCC. 2022. Climate Change 2022: Mitigation of Climate Change, Working Group III contribution to the AR6, 4 April 2022, available at: https:// www.ipcc.ch/report/sixth-assessment-report-working-group-3/ 8 https://www.ipcc.ch/ar6-syr/ 2 | Part I Expected Effects of Climate Change on Coastal States, Particularly Low-Lying States and Small Island Developing States (SIDS), with a Focus on Rising Sea Levels Although there are still uncertainties about a number determined by the ice sheets, especially in Antarctica. of issues, it is clear that even if greenhouse gas (GHG) This is highlighted by the fact that the Working Group emissions are radically reduced or even eliminated, I contribution to the AR6, Climate Change 2021: The sea levels will still continue to rise in the following Physical Science Basis, suggests that GMSL rise above decades or centuries. It is also clear that although the the likely range – approaching 2 m by 2100 and 5 m predictions are of Global Mean Sea Levels (GMSL), rises by 2150 under a very high GHG emissions scenario in sea level will not be uniform all over the globe and the – cannot be ruled out because of deep uncertainties Pacific region is already facing some of the highest concerning ice sheet processes.14 rates and levels.9 The IPCC has produced three interim special reports The 1990 FAR noted that the main drivers of these addressing concerns flagged within the UNFCCC. Two predictions would be the melting of glaciers and of these are particularly important for their coverage of thermal expansion and that the effects of the Antarctic sea level rise and ocean impacts: 2018 Global Warming and Greenland ice sheets would be small.10 It is now of 1.5°C (1.5°C Report or SR1.5) 15 and the 2019 SROCC. clear that the melting of the polar ice sheets will be a major factor in future rises but uncertainty about the The SR1.5 discusses a world 1.5°C warmer than pre- rates as well as possible extent of that melting remains industrial times – prompted by the commitment by high.11 The 2019 “Special Report on the Ocean and the Parties to the Paris Agreement – to pursue “efforts the Cryosphere in a Changing Climate” (SROCC),12 to limit the temperature increase to 1.5°C above discussed in more detail below, highlighted the fact pre-industrial levels, recognizing that this would that under a continued high GHG emissions scenario, significantly reduce the risks and impacts of climate the likely range of sea level rise might extend beyond change.”16 The basic message of the 1.5°C Report is that 1 meter (m) in 2100 due to a larger projected ice loss from climate change impacts on sustainable development, the Antarctic Ice Sheet.13 However, if GHG emissions eradication of poverty, and reducing inequalities are increasingly restricted – as the Paris Agreement would increase – even if global warming were limited seeks to ensure – a more likely prediction would be to 1.5°C and mitigation and adaptation synergies were a rise of 0.39 m from the period 2081–2100 (within a maximized while trade-offs were minimized.17 Major possible range of 0.26–0.53 m) and 0.43 m by 2100. negative impacts from that temperature rise would The uncertainty at the end of the century is mainly include a probable decline of 70–90 percent of the world’s coral reefs.18 9 The Pacific Marine Climate Change Report Card 2018 suggested that the Pacific Islands experienced sea level rise of 3–6 mm per year. As the title indicates, the 2019 SROCC is a more focused See, Commonwealth Marine Economies Programme (CMEP), Pacific Marine Climate Change Report Card 2018, available at: https:// report on ocean issues. It reported that it is virtually climateanalytics.org/media/cefas_pacific_islands_report_card_ certain that the global ocean has warmed unabated final_amended_spreads_low-res.pdf since 1970 and has taken up more than 90 percent of 10 Although it did acknowledge the uncertainties surrounding this. Ibid., p. xi. 11 Mass loss from the Antarctic ice sheet over the period 2007–16 14 IPCC, Climate Change 2021: The Physical Science Basis, at B.5.3. tripled relative to 1997–06. For Greenland, mass loss doubled over 15 See, Masson-Delmotte, V., P. Zhai, H. -O. Pörtner, D. Roberts, J. Skea, the same period (likely, medium confidence). See, IPCC. 2019. P. R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Summary for Policymakers, available at: https://www.ipcc.ch/site/ Connors, J. B. R. Matthews, Y. Chen, X. Zhou, M. I. Gomis, E. Lonnoy, assets/uploads/sites/3/2019/11/03_SROCC_SPM_FINAL.pdf, at A T. Maycock, M. Tignor, and T. Waterfield (eds). 2018. Global Warming 3.2 [3.3.1, Figures SPM.1, SPM.2, SPM A.1.1] in, Pörtner, H. -O., D. C. of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C Roberts,  V. Masson-Delmotte,  P. Zhai,  M. Tignor,  E. Poloczanska,  K. above pre-industrial levels and related global greenhouse gas emission Mintenbeck, A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama, and pathways, in the context of strengthening the global response to the threat N. M. Weyer (eds). 2019. IPCC Special Report on the Ocean and of climate change, sustainable development, and efforts to eradicate Cryosphere in a Changing Climate (SROCC SPM), IPCC. poverty (SR 1.5), IPCC, available at: https://www.ipcc.ch/sr15/ 12 SROCC SPM. 16 Paris Agreement, Art 2(10)(a). 13 Ibid., at B.3.1. But even for this higher projection the possible range 17 SR 1.5 SPM, at D.2. is 0.61–1.10 m by 2100. 18 Ibid., at B.6.2. International Law Aspects of Sea Level Rise | 3 the excess heat in the climate system. Since 1993, the The average intensity of tropical cyclones, the rate of ocean warming has more than doubled. Marine proportion of Category 4  and 5  tropical cyclones, and heatwaves have very likely doubled in frequency since the associated average precipitation rates are projected 1982 and are increasing in intensity. By absorbing more to increase for a 2°C global temperature rise above any carbon dioxide (CO2), the ocean has also undergone baseline period. Rising mean sea levels will contribute increasing surface acidification. A  loss of oxygen has to higher extreme sea levels associated with tropical also occurred from the surface to 1000 m.19 cyclones.  Coastal hazards will be exacerbated by an increase in the average intensity and magnitude of The 2019 SROCC found that GMSL had already risen storm surge, as well as precipitation rates of tropical over the last century by 0.16 m (likely range 0.12–0.21 cyclones.25 m) and the rate of rise for 2006–15 was  3.6 mm per year, which is unprecedented over the last century and The 2019 SROCC also highlighted the fact that about 2.5 times the rate for 1901–90 of 1.4 mm a year. It warming-induced changes in the spatial distribution confirmed that the dominant cause was anthropogenic and abundance of some fish and shellfish stocks have and that the dominant source of increased water levels had both positive and negative impacts on catches, was ice sheet and glacier melt which exceeded the effect economic benefits, livelihoods, and local culture. This of thermal expansion of ocean water. In particular, the has obvious negative consequences for indigenous combined increased ice loss from the Greenland and peoples and local communities that are dependent on Antarctic ice sheets.20 fisheries. Long-term loss and degradation of marine ecosystems compromises the ocean’s role in cultural, The 2019 SROCC also devotes considerable space to recreational, and intrinsic values important for human impacts on society, pointing out that GMSL rise will identity and well-being.26 Similarly, climate change cause the frequency of extreme sea level events at impacts on marine ecosystems and their services put most locations to increase. Localized coastal flooding key cultural dimensions of lives and livelihoods at events that historically occurred once per  century risk, including through shifts in the distribution or (historical centennial events) are projected to occur abundance of harvested species and diminished access at least annually at most locations by 2100 under all to fishing or hunting areas. This includes potentially scenarios.21 Many low-lying megacities and small rapid and irreversible loss of local and indigenous islands (including SIDS) are projected to experience culture and knowledge,  and negative impacts on historical centennial events at least annually by 2050 traditional diets and food security, aesthetic aspects, under a range of scenarios.22 The increasing frequency and marine recreational activities.27 At the same of high water levels can have severe impacts in many time, shifts in species distributions and abundance locations.23 Under the same assumptions, annual has challenged international and national ocean and coastal flood damages are projected to increase by 2–3 fisheries governance, including in the Arctic, North orders of magnitude by 2100 compared to today.24 Atlantic, and Pacific in terms of regulating fishing to secure ecosystem integrity and sharing of resources between fishing entities.28 19 SROCC SPM, at A2 [1.4, 3.2, 5.2, 6.4, 6.7, Figures SPM.1, SPM.2]. 20 Mass loss from the Antarctic ice sheet over the period 2007–16 tripled relative to 1997–06. For Greenland, mass loss doubled over the same period (likely, medium confidence). See, SROCC SPM, at A 3.2 [3.3.1, Figures SPM.1, SPM.2, SPM A.1.1]. 25 There are greater increases projected under RCP8.5 than under 21 Ibid., at B 3.4 [4.2.3, 6.3, Figures SPM.4, SPM.5]. RCP2.6 from around mid-century to 2100 (medium confidence). 22 Under RCP2.6, RCP4.5 and RCP8.5. The year when the historical There is low confidence in changes in the future frequency of tropical centennial event becomes an annual event in the mid-latitudes cyclones at the global scale. See, ibid., at B.3.6 [6.3.1]. occurs soonest in RCP8.5, next in RCP4.5, and latest in RCP2.6. 26 Ibid., at B.8 [3.2.4, 3.4.3, 5.4.1, 5.4.2, 6.4]. 23 SROCC SPM, at B 3.4. 27 Ibid., at B.8.4 [3.4.3, 3.5.3, 5.4.2]. 24 Ibid., at A.9 [4.3.3, 4.3.4, Box 6.1, Figure SPM.5]. 28 Ibid., at A 8.1 [3.2.4, 3.5.3, 5.4.2, 5.5.2, and Figure SPM 2]. 4 | Part I Expected Effects of Climate Change on Coastal States, Particularly Low-Lying States and Small Island Developing States (SIDS), with a Focus on Rising Sea Levels The 2019 SROCC’s final message is that – in the absence however, is whether they will be able to do this in ways of more ambitious adaptation efforts compared to today, which allow continued human habitation and use. and under current trends of increasing exposure and vulnerability of coastal communities – it can predict with Atoll islands are the creation of corals and for a very high level of confidence that risks, such as erosion millennia coral reefs and reef islands appear to have and land loss, flooding, salinization, and cascading been able to keep pace with the numerous changes impacts, due to mean sea level rise and extreme events, in sea level. Conventional wisdom, therefore, was are projected to significantly increase throughout this that coral growth would similarly be able to keep century under all GHG emissions scenarios. pace with changes in sea level brought about by anthropogenic climate change. Although individual The contribution of Working Group II to the AR6, corals seem able to grow at rates of 10–100 mm per Climate Change 2022: Impacts, Adaptation, and year,32 reefs accrete at slower rates than coral grows.33 Vulnerability, released in February 2022, acknowledged The fastest recorded rate of reef growth from the fossil that as the magnitude of climate change increases, so record is 7.89 mm per year,34 and current predictions does the likelihood of exceeding adaptation limits. The of the rate of sea level rise to 2100 may be outside report defined “hard” adaptation limits as situations that range.35 The problem is exacerbated by the fact where “no adaptive actions are possible to avoid that the persistent warming of the oceans together intolerable risks” while “soft” adaptation limits are with increased acidification is interfering with these situations where “options may exist but are currently natural processes.36 Mass coral bleaching events not available to avoid intolerable risks through primarily attributed to ocean warming resulting in adaptive action.” It makes the point that adaptation widespread coral deaths – such as those on the Great may not prevent all loss and damage, even with Barrier Reef in Australia – impact the ability of reefs effective adaptation and before reaching soft and hard to maintain themselves.37 Continued ocean warming limits. These limits have particularly acute impacts in vulnerable communities that lack the resources 32 Coral Reef Alliance, “How Coral Reefs Grow” available online: needed to implement adaptation options.29 https://coral.org/coral-reefs-101/coral-reef-ecology/how-coral- reefs-grow/#:~:text=The%20massive%20corals%20are%20 the,21%E2%80%9329%C2%B0%20C) The February 2022 Report also pointed to the threats to 33 Camoin, G. M., and L. Montaggioni, et al. 1997. “Holocene sea-level changes and reef development in South-Western Indian Ocean”, groundwater availability and freshwater ecosystems Coral Reefs, Vol. 16(4), pp. 247-259. in many watersheds, particularly in small islands, by 34 McManus, J. W. 2017. “Offshore Coral Reef Damage, Overfishing, the mid to long term, across all assessed scenarios.30 and Paths to Peace in the South China Sea.” International Journal of Marine and Coastal Law, Vol. 32, pp. 199-237 at 220. It also recognized that climate change is already con- 35 The Pacific Marine Climate Change Report Card 2018 suggested that tributing to humanitarian crises in all regions – par- the Pacific Islands experienced sea level rise of 3–6 mm per year in the period 1993–17 “but with some notable differences between islands” ticularly in situations where climate hazards interact with some islands in the Western Pacific (Solomon Islands, Papua with pre-existing high vulnerabilities by, for example, New Guinea, and Marshall Islands) subject to a higher rate of sea increasing displacement – with SIDS disproportion- level rise (up to 6 mm/year) compared to islands further east (such as Samoa and Kiribati), available online: https://climateanalytics.org/ ately affected.31 media/cefas_pacific_islands_report_card_final_amended_spreads_ low-res.pdf 36 IPCC 1.5˚C Report suggested that even if warming were to be 2. Physical and Ecological Impacts of restrained to 1.5˚C above pre-industrial levels, the result would be a “further loss of 70-90% of reef-building corals compared to today”, Climate Change and Sea Level Rise and that if warming reached 2˚C above pre-industrial levels, coral losses were estimated at 99 percent. Coastal ecosystems are essentially dynamic and adapt 37 The potentially serious effects of ocean warming for coral reefs are to changes in sea levels. The important question, underscored by the increasing frequency and severity of coral reef bleaching events. See, Wong, P. P., et al., “Coastal systems and low- lying areas” in, Field, C. B., et al. 2014. Climate Change 2014: Impacts, 29 AR6 February 2022 Report, at C.3.5. Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. 30 Ibid., at B.4.2. Contribution of Working Group II to the Fifth Assessment Report of the 31 Ibid., at B.1.7. Intergovernmental Panel on Climate Change. Cambridge University International Law Aspects of Sea Level Rise | 5 will bring higher ocean temperatures and increase The key takeaway from this important empirical storm severity.38 There are also concerns that higher research is that sea level rise in itself does not concentrations of human populations, as a result of necessarily mean the gradual and inevitable erosion increasing urbanization and coastal development, of reef islands until they become uninhabitable. It will inevitably increase local pollution, and that “hard” highlights the fact that these are dynamic systems sea defenses will disrupt sediment flows to prevent which may be able to maintain themselves by processes islands from naturally replenishing themselves. of sediment movement and accretion, provided always that those coral reefs are able to survive and maintain As a result, scientists have raised concerns over the the supplies of sediment. persistence of coral reefs, and the low-lying reef islands that depend on them, and questioned whether they At a time when instrumental records showed a rate of will become increasingly unable to support human sea level rise of 2.0 mm per year in the Pacific, their populations over the coming century.39 Nevertheless, study shows that only 14 percent of islands lost areas recent research suggests that reef islands are whereas 43 percent remained stable, and the further remarkably geomorphologically resilient land forms 43 percent increased in area over the timeframe of that have been able to remain stable or even grown in analysis. Only 14 percent of study islands exhibited a area over the last 20–60 years. In a groundbreaking net reduction in island area. Despite small net changes study in 2010, Webb and Kench40 analyzed historical in area, islands exhibited larger gross changes. This aerial photography and satellite images in order to was expressed as changes in the platform configuration study physical changes in 27 atoll islands in the central and position of islands on reef platforms.41 Collectively, Pacific over a 19- to 61-year period. Their study presents these adjustments represent net lagoonward migration the first quantitative analysis of the changes they of islands in 65 percent of cases. observed. More recent work appears to confirm this more positive message. Duvat (2019) conducted a global assessment of atoll islands’ platform changes over Press, pp. 361–409, 378. See also, Hughes, T. P., J. T. Kerry, and M. a series of decades.42 She found that over the past Alvarez-Noriega, et al. 2017. “Global Warming and Recurrent Mass Bleaching of Corals”, Nature Vol. 543, pp. 373–377; Hughes, T. P., K. D. decades, atoll islands exhibited no widespread sign Anderson, and S. R. Connolly. 2018 “Spatial and Temporal Patterns of physical destabilization in the face of sea level rise. of Mass Bleaching in the Anthropocene”, Science Vol. 359, pp. 80–83; She found that smaller islands were more susceptible van Hooidonk, R., J. Maynard, and J. Tamelander, et al. 2016. “Local- Scale Projections of Coral Reef Futures and Implications of the Paris to change but that no islands larger than 10 hectares Agreement”, Scientific Reports 6 (39666), pp. 1–8; Frölicher, T. L., E. (ha) had actually decreased in size during that M. Fischer, and N. Gruber. 2018. “Marine Heatwaves Under Global Warming”, Nature 560, pp. 360–364; T. P. Hughes et al. 2018. “Global period. Kane and Fletcher (2020) however add some Warming Transforms Coral Reef Assemblages”, Nature 556, pp. caution to this message in their multitemporal island 492–496; Harrison, H. B., M. Álvarez-Noriega, A. H. Baird, S. F. Heron, C. vulnerability assessment (MIVA) which they applied to Macdonald, and T. P. Hughes. 2019. “Back-to-back coral bleaching events on isolated atolls in the Coral Sea”, Coral Reefs, Vol. 38 (4), pp. 713-719. the Republic of the Marshall Islands.43 They conclude 38 See, Storlazzi, C. D., et al. 2018. “Most atolls will be uninhabitable that with rates of sea level rise that are likely under the by the mid-21st century because of sea level rise exacerbating wave- driven flooding”, Science Advances, Vol. 4(4), available online https:// IPCC “intermediate to high” sea level rise scenario, by advances.sciencemag.org/content/4/4/eaap9741 39 See, Leatherman, S. P. 1997. Island States at Risk: Global Climate 41 Modes of island change included: ocean shoreline displacement Change, Development and Populations, Coastal Education Research toward the lagoon; lagoon shoreline progradation; and extension of Foundation; Connell, J. 1999. “Environment Change, economic the ends of elongate islands. development and emigration in Tuvalu”, Pacific Studies, Vol. 22, pp. 42 See, Duvat, V. K. E. 2019. “A global assessment of atoll island 1-20 (cited by Webb et al. below). planform changes over the past decades”, WIREs Climate Change, Vol. 40 See, Webb, A., and P. Kench. 2010. “The dynamic response of reef 10 (1). islands to sea-level rise: Evidence from multi-decadal analysis of 43 See, Kane, H. H., and C. H. Fletcher. 2020. “Rethinking Reef island island change in the Central Pacific”, Global and Planetary Change, stability in relation to Anthropogenic Sea Level Rise”, Earth’s Future, Vol. 72(3), pp. 234-246. Vol. 8 (10). 6 | Section Efforts to defend threatened parts of the coast are likely to have unanticipated and unwelcome consequences elsewhere along the coast, especially in such dynamic inter-linked systems. Nevertheless, the most important message may be from Kane and Fletcher that, by 2050, radical human intervention may be necessary in Gizo Market, Solomon Islands. Photo: Sam Lawrence Photography | shutterstock many island systems to counteract increasing island instability.46 There are also related threats to the natural resources on which coastal and island States’ economies depend, that pose significant risks to people’s livelihoods and food security. The depletion of coral reefs predicted by IPCC SR 1.5°C, as a result of the impacts of ocean warming and acidification, will reduce the availability of the fish species that depend on these coral reef ecosystems. In fact, the production of demersal stocks in the Western and Central Pacific is predicted to decline by 20 percent by 2050 and 20–50 percent by 2100 under continued high GHG emissions.47 As a result, Pacific Island Countries and Territories (PICTs) will have to make greater domestic use of pelagic species – mid-century, island stability will deteriorate and that particularly tuna. Indeed, it has been estimated that by island instability “will be inevitable with no action.” 2035, 25 percent of all fish required for food security of Urbanized islands and those where there have been a Pacific Island people will be tuna.48 high level of human infrastructure and interference with coastline structure are those most at risk. The combined impacts of sea level rise and other climate change phenomena such as warming oceans and increased storm risk are still not clear.44 The natural processes which have ensured the survival of islands in of Islands and Oceans, 22–23 January 2009, Ocean Policy Research Foundation, pp. 24–28. the past, can also be interfered with by human activities 46 See, Kane and Fletcher (2020). at a local level, such as beach sand and gravel mining, 47 See, Pacific Islands Oceanic Fisheries Management Fact Sheet (OFMP2) based on: “Climate Change Impacts, vulnerabilities and poor engineering, and even reclamation activities.45 adaptation: Western and Central Pacific marine fisheries” in, Barange, M., T. Bahri, M. C. M. Beveridge, K. L. Cochrane, S. Funge-Smith, 44 Storm events can be highly destructive for coastal ecosystems such and F. Poulain  (eds). 2018. Impacts of climate change on fisheries and as corals and, coupled with multiple other factors such as disease, aquaculture: synthesis of current knowledge, adaptation and mitigation feed web changes, invasive organisms, and heat stress mortality, may options, FAO Fisheries and Aquaculture Technical Paper No. 627, p. “overwhelm the capacity for natural and human systems to recover 628, available at: http://www.fao.org/3/i9705en/i9705en.pdf following disturbances.” See, IPCC 1.5°C Special Report, above, p. 223. 48 2021 version of the study looked at these impacts in more detail. Note that other research shows how flood risk will increase with sea See, Freestone, D., and D. Çiçek. 2021. “Legal Dimensions of Sea Level level rise and loss of reefs. See, Beck, M. W., and I. J. Losada, et al. Rise: Pacific Perspectives”, available at: https://openknowledge. 2018. “The global flood protection savings provided by coral reefs”, worldbank.org/bitstream/handle/10986/35881/Legal-Dimensions- Nature Communications, No. 9 Article No. 2186. of-Sea-Level-Rise-Pacific-Perspectives.pdf. For an assessment 45 The construction of sea defences may also interrupt sediment flow concerning migration of fish stocks in the Central Arctic Ocean, see, regimes, potentially compromising the capacity of coral islands Schatz, V. J., Proelss, A., and Liu, N. 2019. “The 2018 Agreement to to naturally adapt to sea level rise. See, Kench, P., “Understanding Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: Small Island Dynamics: A Basis to Underpin Island Management” A Critical Analysis”, The International Journal of Marine and Coastal in, Terashima, H. 2009. Proceedings of the International Symposium Law No. 34, pp. 195–244. International Law Aspects of Sea Level Rise | 7 Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise 1. 1982 UN Convention on the Figure 1. Coastal baseline and maritime zones stipulated Law of the Sea under Law of the Sea Convention The 1982 UN Law of the Sea Convention (LOSC) has Continental Shelf 320 Articles and nine Annexes; it was negotiated The Territorial Sea Baseline Sea-bed, Subsoil, Sedentary Species Area over nearly a decade (1973–82) and entered into (Extended Continental Shelf) force in 1994. It represents codification, as well as Exclusive progressive development, of the law of the sea. Many Economic Zone (EEZ) High Sea Internal Waters Water Column, of its innovative provisions are a carefully negotiated Sea-bed, Subsoil 12 M Contiguous 200 M compromise between different States’ interests.49 Zone Territorial 12 M Sea Sea Level The legal regime for the determination of maritime zones, limits, and boundaries is a mixture of pre- existing customary law rules and innovative new Upper Slope Plateau or concepts, such as the regime for archipelagic States in Terrace Lower Rise Deep Part IV of LOSC. Slope Ocean Source: Arsana, A., and C. Schofield. 2014. Manual on Technical Aspects The Coastal Baselines of the Law of the Sea (TALOS Manual), International Hydrographic Organization, Special Publication No.51, (Monaco: International The coastline is the starting point for the measurement Hydrographic Bureau, 2014), Figure 5.1. of a coastal State’s maritime zones. The “normal” baseline is “the low water line along the coast as marked is entitled to claim an Exclusive Economic Zone (EEZ) on large scale charts officially recognized by the coastal out to 200 nm which gives it sovereign rights (although State.”50 From this baseline can be measured the State’s not full sovereignty) over the resources of the seabed 12 nm territorial sea, the outer boundary of which is a and the superjacent waters.51 If a coastal State has a line “every point of which is [12 miles] from the nearest continental shelf that extends beyond 200 nm from point of the baseline…”. The contiguous zone stretches the baseline, it is also – subject to certain limitations – a further 12 nm seaward. In addition, the coastal State entitled to sovereign rights over those seabed resources of that shelf right to the outer edge of the continental margin.52 49 The so-called “Package deal”. 50 LOSC, Art. 5. Although note that there are in LOSC Part II (Arts 2-16) more detailed provisions relating to the accommodation of other coastal features – such as bays – and to the use of straight baselines in specific circumstances. Discussed in more detail below and see 51 LOSC, Part V, Arts. 55-75. Figure 2. 52 LOSC, Part VI, Arts. 76-85. 8 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise In the measurement of all these zones, the coastal Figure 2. Types of baselines baseline plays a crucial role, as it does with the delimitation of a State’s maritime boundaries with B its neighbors. In recognition of this, a coastal State that uses anything other than the “normal” low water line as its baseline must commission and publicize charts of an adequate scale to show its baselines, and archipelagic submit them (or their geographical co-ordinates) to the Secretary-General of the United Nations (UNSG).53 It is bay also obliged to publish, publicize, and similarly submit mouth of a river reefs charts or co-ordinates of any delimitation lines of any maritime boundary agreements with other States.54 straight There are few, if any, States that do not have a normal A neighboring State whose own maritime zones abut it, either as an adjacent or opposite State. Where a State Source: Arsana, A., and C. Schofield. 2014. TALOS Manual. has an opposite or adjacent neighbor, the LOSC enjoins Note: A and B represent different States. those States to reach agreement on the delimitation of a maritime boundary. For territorial sea boundaries State’s territorial sea may also be expanded beyond 12 between adjacent States or those less than 24 nm apart, nm to include “roadsteads” – areas normally used for there is a presumption of equidistance in that in the the anchoring, loading, and unloading of ships.61 absence of historic title or special circumstances, no State may legitimately claim beyond a median line.55 All the waters to the landward side of the baseline are For other boundaries, however, there is an obligation the internal waters of the coastal States and subject to reach agreement based on international law to reach to its full sovereignty. It is also possible, in the case of an “equitable solution.”56 coastlines which are deeply indented or cut into or fringed with islands in the immediate vicinity – like In the case of islands situated on atolls or having the coast of Norway – to draw straight baselines. These fringing reefs, the baseline may be drawn from the straight baselines must link mainland and island seaward low water line of the reef. Similarly, where an features and not depart appreciably from the direction insular feature which is only above water at low tide – of the coast. The sea areas within those lines must be a low tide elevation (LTE) – is situated less than 12 nm sufficiently closely linked to the land to be subject to from the mainland or an island – this may also be used the regime of internal waters. as a basepoint.57 A provision that is however not widely relied upon There are also specific rules regarding the drawing of is included in Article 7 of the LOSC on the drawing baselines around ports,58 across the mouths of rivers,59 of straight baselines. It relates to situation where as well as detailed provisions regarding bays.60 A coastal “because of the presence of a delta and other natural conditions […] the coastline is highly unstable.” In such 53 LOSC, Art. 16. situations, an appropriate point may be selected along 54 For boundaries in the territorial sea, LOSC, Art. 16. Also, for the EEZ, the furthest seaward extent of the low water line and Art. 75 and continental shelf, Art. 84. 55 LOSC, Art. 15. the straight baseline linking those points shall remain 56 For EEZ, LOSC Art. 74; continental shelf, Art. 83. effective “notwithstanding the subsequent regression 57 LOSC, Art. 13. 58 LOSC, Art. 11. of the low-water line.” 59 LOSC, Art. 9. 60 LOSC, Art. 10. 61 LOSC, Art. 12. International Law Aspects of Sea Level Rise | 9 Figure 3. Low tide elevations and the generation of maritime zones Land 1 LTE = Low-tide elevation Territorial sea breadth measured from mainland only 2 3 4 Territorial sea limit using low-tide elevations 1 and 2 as baselines Sea Source: Arsana, A., and C. Schofield. 2014. TALOS Manual, Figure 4.4. Note: LTEs 3 and 4 may not be used to define the baseline because they lie beyond the breadth of the Territorial Sea. 64 Archipelagic Baselines configuration of the archipelago. No single baseline segment joining basepoints may normally be longer The special regime for archipelagic States is drawn 65 than 100 nm, except that 3 percent of the total number together for the first time by Part IV of the LOSC. It of baseline segments enclosing an archipelago may provides that a State constituted wholly by one or more 66 exceed that up to 125 nm. Finally, and perhaps most archipelagos and other islands may claim archipelagic importantly, the ratio of water to land within the baselines status. For the purposes of the LOSC, an archipelago 67 of the archipelago must be between 1:1 and 9:1. is defined as “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an 64 It can be noted that although these rules appear to be reasonably strict, Prescott was of the view that “Three of the five tests are intrinsic geographical, economic and political entity, incapable of consistent objective interpretation.” See, Prescott, J. or which historically have been regarded as such.”62 R. V., “Straight and Archipelagic Baselines” in, Blake, G. H. (ed). 1987. Maritime Boundaries and Ocean Resources, Beckenham: Croom Helm, Chap. 3, p. 46. For a more detailed analysis of navigational An archipelagic State “may draw straight archipelagic issues related to archipelagic baselines and archipelagic waters see, baselines joining the outermost points of the outermost Tsamenyi, M. B., C. H. Schofield, and B. Milligan, “Navigation through Archipelagos: Current State Practice”, pp. 413-454 in, Nordquist, M. islands and drying reefs of the archipelago” provided H., T. B. Koh, and J. N. Moore (eds). 2008. Freedom of the Seas, Passage that the “main islands” of the archipelagic State are Rights and the 1982 Law of the Sea Convention, Martinus Nijhoff. 65 LOSC, Art. 47(2). included within the archipelagic baseline system.63 66 It is worth noting that as it is the coastal State that constructs The requirements for the drawing of these straight the archipelagic baseline system and as there is no restriction on archipelagic baselines are detailed and complex. The the number of baselines that an archipelagic State might draw, it is usually possible to adjust the baseline system to overcome the straight baselines linking the outermost islands and no more than 3 percent of baseline segments exceeding 100 nm reefs must not depart to any appreciable extent from the in length restriction and thus conform to the LOSC requirements. See, United Nations. 2000. Handbook on the Delimitation of Maritime Boundaries, United Nations Division for Ocean Affairs and the Law of 62 LOSC, Art. 46. the Sea, p. 8. 63 LOSC, Art. 47(1). 67 LOSC, Art. 47(1). 10 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise This ratio requirement disqualifies immediately a The compulsory dispute procedure in Part XV works number of big island States like the United Kingdom in the following way. Article 287 provides that when a or Japan, which have too much land to meet the ratio, State becomes a party to the LOSC it may, if it wishes, but it also means that some island groups which are choose one or more methods of dispute settlement set made up of widely dispersed small islands may not out in that article, namely submission to: have enough land to meet this ratio. For the purpose of computing the ratio of water to land, land areas may a) ITLOS include waters lying within the fringing reefs of islands b) ICJ and atolls, including that part of a steep-sided oceanic c) An arbitral tribunal established under Annex VII plateau which is enclosed or nearly enclosed by a chain d) A special tribunal under Annex VIII (for certain of limestone islands and drying reefs lying on the types of disputes). perimeter of the plateau.68 If a dispute subsequently arises and if both States have Maritime Boundaries chosen a similar method of dispute settlement, then For many island States, some parts of the outer limits one State may bring proceedings using that procedure. of their maritime zones will be adjacent to the high If there is no commonality, the LOSC provides for the seas. In those cases, the coastal State must unilaterally use of an arbitral tribunal under Annex VII, unless delineate its outer boundaries in accordance with the the parties agree to another procedure.72 States may LOSC rules69 and submit maps or coordinates of those unilaterally elect to exclude disputes relating to delineation lines to the UNSG.70 maritime boundaries from this procedure, in which case any subsequent dispute goes to obligatory In the majority of situations, where the maritime conciliation, under Annex V, if no other settlement zone abuts the maritime zone of another State, procedure is agreed. 73 This was used for the first time whether opposite or adjacent, the basic applicable regarding the maritime boundary dispute between principle is that the boundary should be concluded Australia and Timor Leste under the auspices of the by agreement between the two States in accordance Permanent Court of Arbitration.74 with international law.71 Most boundaries are amicably agreed in this way. The treaty between the two States Commission on the Limits of the Continental reflecting that agreement is technically only binding Shelf on the two States party, but because it delimits the areas of their respective sovereignty and/or sovereign All coastal States are entitled to the seabed resources rights, it must be respected by third States also. of their continental shelf, which is understood as the natural prolongation of their land territory to the edge In the event that agreement is not reached within a of the continental margin or to a distance of 200 nm reasonable time, then it is possible to take advantage of from their coastal baseline if the continental margin the compulsory dispute settlement procedures set out does not extend to that distance. in Part XV of the LOSC. Indeed, a number of cases have been brought before the International Court of Justice 72 LOSC, Art. 287(5). 73 LOSC, Art. 298. (ICJ), the International Tribunal for the Law of the Sea 74 In the Matter of the Marine Boundary between Timor-Leste and (ITLOS), and also arbitral tribunals established under Australia  (Timor Sea  conciliation), PCA Case no. 2016-10, before a Conciliation Commission constituted under Annex V to the 1982 the procedure in Annex VII. United Nations Convention on the Law of the Sea between the Democratic Republic of Timor-Leste and the Commonwealth of 68 LOSC, Art. 47(7). Australia. The Report and Recommendations of the Compulsory 69 Concerning Territorial Sea, EEZ, and Continental Shelf. Conciliation Commission between Timor-Leste and Australia on the 70 LOSC, Arts. 16, 74 and 83. Timor Sea (TSCR), 9 May 2018, available at  https://pcacases.com/ 71 LOSC, Arts. 75 and 84. web/view/132 International Law Aspects of Sea Level Rise | 11 Figure 4. Definition of the outer limits of the continental shelf Established baseline 2500 m isobath + 100 nm (either normal or straight) 350 nm 200 nm Hedberg Line dry land low water 60 nm Continental shelf slope abyssal Continental crust plain Continental rise foot of slope (FOS) sediment (max change of gradient) ocean crust 1% sediment thickness Outer limit of CS (Gardiner Line) Fixed points (lat, long) Source: Arsana, A., and C. Schofield. 2014. TALOS Manual, Figure 5.12. The ocean beyond the 200 nm line is high seas and for delineating the outer limits of that shelf by straight beneath the high seas, the seabed, ocean floor, and subsoil lines, not exceeding 60 nm in length connecting fixed thereof is classified by the LOSC as “the Area.”75 The Area points defined by coordinates of latitude and longitude. and its mineral resources are the “common heritage of The coastal State must then submit its proposed mankind”76 on whose behalf the International Seabed delineation line, with background information, to the Authority77 regulates the exploration and exploitation Commission on the Limits of the Continental Shelf (CLCS) of these resources.78 However, in situations where the which reviews it in the light of the LOSC requirements edge of the continental margin of a coastal State extends and may make “recommendation” to the coastal State beyond 200 nm from the baseline, it is important to have on its proposed delineation line.80 The coastal State a method to determine the proper extent of the coastal may then submit revised proposals reflecting the State’s sovereign rights and the beginning of “the Area”. recommendations of the CLCS. If the coastal State In Article 76, the LOSC lays down complex methods for follows the recommendation of the CLCS, then the limits calculating that edge of the margin.79 that it establishes are “final and binding.”81 This means that they are also binding on other States. Recognizing the complexity, the LOSC also provides a technical mechanism to ensure that lines have been Competent International Organizations correctly drawn. Where a coastal State claims such an The LOSC established the International Seabed extended continental shelf, it has primary responsibility Authority (ISA), the ITLOS, and the CLCS. It also recognizes the important regulatory functions of 75 LOSC, Art. 1(1). other bodies that it terms “competent international 76 LOSC, Art. 136. organizations.” These include sectoral organizations 77 LOSC, Art. 1(2). 78 LOSC, Art. 137. The International Seabed Authority (ISA) is such as the International Maritime Organization mandated under the LOSC to “organize, regulate and control all mineral-related activities in the international seabed area for the benefit of mankind as a whole.” ISA is based in Kingston, Jamaica. For further details, see: https://www.isa.org.jm/ 80 LOSC, Art. 76(8). 79 LOSC, Art. 76(4). 81 LOSC, Art. 76(8). 12 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise (IMO)82 and fisheries management bodies at global, Body for Implementation (SBI). Implementation is regional, and sub-regional level.83 supported by a dedicated financial mechanism. The global fisheries body, the Food and Agriculture General Obligations Organization (FAO) of the UN, oversees a network of Annex I of the UNFCCC lists the developed countries regional general fisheries (not including tuna) bodies. and the transition economy countries that are obliged Some of these have management authority, known by Article 3(1) to take the lead in combatting climate as Regional Fisheries Management Organizations change and the obligations of the contracting Parties (RFMOs), and some are purely advisory. Despite recent are differentiated in Article 4. Annex I countries have efforts to develop a comprehensive network of regional reporting and policy development obligations, whereas management regimes, there are still coverage gaps, the reporting and other obligations of Non-Annex I such as the Southwest Atlantic or the North Atlantic countries are dependent on the provision of financing south of 35°N.84 and technical assistance by the developed countries (listed in Annex II).88 The 1997 Kyoto Protocol89 2. 1992 UN Framework Convention on clarified the obligations of Annex I countries with Climate Change and the 2015 Paris more precision requiring them to reduce their GHG Agreement emissions by an average of 5.2 percent between 2008 and 2012.90 Non-Annex I parties had no GHG reduction The UN Framework Convention on Climate Change obligations, even though a number of emerging (UNFCCC)85 was signed in 1992 at the UN Conference economies had already started to become major GHG of Environment and Development (UNCED),86 and emitters.91 came into force in 1994. With currently 198 Parties, it has near-universal membership. Its negotiation The 2015 Paris Agreement was prompted by the publication of the first IPCC Assessment report in 1990 and it is based on the twin The 2015 Paris Agreement92 replaces the “top down” principles of precaution and common but differentiated approach of the Kyoto Protocol, with a “bottom up” responsibility. Its overarching objective is the approach, where all the contracting Parties, whether “stabilization of greenhouse gas concentrations in the Annex I or not, agree to undertake and communicate atmosphere at a level that would prevent dangerous their own Nationally Determined Contribution anthropogenic interference with the climate system”.87 (NDC) reflecting their efforts to reduce national GHG Its institutional framework includes: the Conference emissions and to adapt to the impacts of climate change. of the Parties (COP); a secretariat and two subsidiary To date, 195 of the 198 Parties to the UNFCCC have bodies; the Subsidiary Body on Scientific, Technical ratified the Paris Agreement. The Paris Agreement is a and Technological Advice (SBSTTA); and the Subsidiary 88 UNFCCC, Art 4(7). 82 LOSC, Art. 197. 89 Kyoto Protocol to the United Nations Framework Convention on 83 LOSC, Art. 119(2). Climate Change, U.N. Doc FCCC/CP/1997/7/Add.1 (Dec. 10, 1997). 84 There is a current effort to upgrade the Western Central Atlantic 90 Specific country commitments are set out in Annex B of the Kyoto Fishers Commission (WECAFC) from an advisory to a management Protocol. body. 91 The Doha Amendment signed in Qatar in 2012 created a second 85 United Nations Framework Convention on Climate Change commitment period under the Kyoto Protocol for 37 Annex I countries (UNFCCC), 1771 U.N.T.S. 107, 165 (May 9, 1992). to cut their GHG emissions collectively by at least 18 percent below 86 Together with the Convention on Biological Diversity and the 1990 levels from 2013 to 2020. In October 2020, Nigeria became the Convention to Combat desertification, one of the so-called Rio 144th country to ratify the Doha Amendment, ensuring that it would Conventions. come into force on the day it expired at the end of 2020. This entry 87 UNFCCC, Art. 2. IPCC AR5 lays out “Reasons for Concern (RFCs)”, into force, despite having some implications for carbon accounting, see, Pachauri, R. K., and L. A. Meyer (eds). 2014. Climate Change 2014: is largely symbolic. Synthesis Report, Contribution of Working Groups I, II and III to the Fifth 92 UNFCCC COP, Adoption of the Paris Agreement, Decision 1/CP.21, Assessment Report of the Intergovernmental Panel on Climate Change, in COP Report No. 21, Addendum, at 2, U.N. Doc. FCCC/CP/2015/10/ IPCC, at pp. 72-73. Add.1 (Jan. 29, 2016). International Law Aspects of Sea Level Rise | 13 treaty under the UNFCCC, with the same institutions, progression beyond the Party’s then current [NDC] and however the Parties to the Paris Agreement also agree reflect its highest possible ambition.”93 to the following specific objectives: Even though the Paris Agreement sets out these require- a) Holding the increase in the global average ments for all Parties, it recognizes the Parties’ common temperature to well below 2°C above pre-industrial but differentiated responsibilities and respective capa- levels and pursuing efforts to limit the temperature bilities, in light of different national circumstances. It increase to 1.5°C above pre-industrial levels, recognizes that developing countries will need financial, recognizing that this would significantly reduce technological, and capacity-building support to imple- the risks and impacts of climate change ment their commitments under the Paris Agreement.94 b) Increasing the ability to adapt to the adverse Regarding mitigation actions envisaged in NDCs, there impacts of climate change and foster climate is a special provision for the least developed countries resilience and low GHG emissions development, in (LDCs) and SIDS who “may prepare and communicate a manner that does not threaten food production strategies, plans and actions for low [GHG] emissions c) Making finance flows consistent with a pathway development reflecting their special circumstances.”95 towards low GHG emissions and climate-resilient development. Adaptation Provisions Nationally Determined Contributions Adaptation receives clearer focus under the Paris Agreement. Parties to the Paris Agreement also com- To achieve those goals, Article 4(2) of the Paris mit to undertake and communicate ambitious efforts Agreement provides that “Each Party shall prepare, on adaptation.96 The Paris Agreement requires all Par- communicate and maintain successive nationally ties to “engage in adaptation planning processes and determined contributions that it intends to achieve” the implementation of actions” as appropriate.97 Par- (emphasis added). So, each Party has the discretion to ties are encouraged to submit and periodically update decide the content of its NDC, but it is obliged to make their adaptation communication describing their pri- such a determination and communicate it. In addition, orities, needs, plans, and actions.98 Parties can plan and the Paris Agreement imposes strong procedural communicate their adaptation efforts through Nation- obligations to operationalize NDCs. Under the Paris al Adaptation Plans (NAPs), NDCs, or other national Agreement, each Party is required to: communication tools. a) Provide the information necessary for clarity, transparency, and understanding in communicat- Loss and Damage ing its NDCs (Article 4[8]) Loss and damage is integrated into the text of the Paris b) Communicate a successive NDC every five years Agreement. The Warsaw International Mechanism (Article 4[9]) for Loss and Damage (WIM) agreed in 2013 is now c) Account for its NDCs to avoid double counting and incorporated into Article 8, but the Parties’ obligations promote environmental integrity and transparency as reflected in Article 8 are only of a cooperative and (Article 4[13]) d) Provide a national GHG inventory and the infor- 93 Paris Agreement (PA), Art 4(3). 94 PA, Art 3 and Art 4(3)-(5). mation necessary to track progress in implement- 95 PA, Art. 4(6). ing and achieving its NDCs (Article 13[7]). 96 PA, Art 3 and Art 7. Art. 3 states “As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious Each Party commits to review their own NDC at least efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to every five years in order to increase its “ambition” and achieving the purpose of this Agreement as set out in Article 2 […]”. 97 PA, Art. 7(9). commits that each successive NDC will represent a “… 98 PA, Art. 7(10). 14 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise facilitative nature, without any legal or financial Other Entry Points for International obligations. The Paris Agreement recognizes the Cooperation importance of averting, minimizing, and addressing In addition to finance, Parties to the Paris Agreement loss and damage associated with the adverse effects are required to strengthen international cooperative of climate change, including extreme weather events action on technology development and transfer. All and slow onset events, and the role of sustainable Parties are encouraged to cooperate to increase the development in reducing the risk of loss and damage. capacity of developing countries, so that they are At COP27, in a historic first, countries formally able to implement their obligations under the Paris acknowledged that existing funding arrangements for Agreement, and developed countries are urged to loss and damage are insufficient and agreed to establish increase their support in that regard. a fund and new funding arrangements.99 Details of the fund and new funding arrangements will be decided Finally, in implementing their obligations, Parties may and operationalized in upcoming climate negotiations. pursue voluntary cooperation under Article 6 of the Paris Agreement, which sets out three mechanisms Transparency Framework including: (i) voluntary cooperation approaches The measurement, reporting, and verification (MRV) under Article 6(2); (ii) the “sustainable development framework under the UNFCCC and Kyoto Protocol has mechanism” under Article 6(4); and (iii) non-market evolved over time. The Paris Agreement now provides approaches under Article 6(8). COP26 further that Parties must regularly share a national inventory substantiated the cooperative approaches established report of GHG emissions and information necessary to in Article 6.103 track progress in implementing and achieving NDCs and “should” provide information related to adaptation Paris Rulebook and Following Developments action.100 The enhanced transparency framework also In 2018 at UNFCCC COP24, the Parties agreed on detailed covers climate finance, technology development, and rules and procedures for implementing the Paris capacity-building.101 Agreement and adopted the Paris Agreement Work Program, the so-called “Katowice Climate Package” Finance or “Paris Rulebook.”104 The Parties agreed on various The UNFCCC already imposes a broad collective critical issues concerning the modalities of mitigation financial obligation on developed country Parties, and NDCs, the transparency framework, adaptation, requiring them to provide financial support finance, the global stock take, and compliance. COP24 for developing countries to implement their left a number of important issues to be resolved, commitments. Similarly, the Paris Agreement obliges including Article 6,105 reporting requirements for developed country Parties to provide financial support transparency and common timeframes for climate to developing country Parties with respect to mitigation and adaptation, while other Parties are “encouraged to 103 UNFCCC, “COP26 Outcomes: Market mechanisms and non-market provide” such support voluntarily.102 approaches (Article 6)”, available at: https://unfccc.int/process-and- meetings/the-paris-agreement/the-glasgow-climate-pact/cop26- outcomes-market-mechanisms-and-non-market-approaches- article-6 104 The full set of decisions agreed to in Katowice is available at ‘Katowice Climate Package’ (UNFCCC) https://unfccc.int/process- 99 Decision -/CP.27 -/CMA.4, “Funding arrangements for responding and-meetings/the-paris-agreement/paris-agreement-work- to loss and damage associated with the adverse effects of climate programme/katowice-climate-package change, including a focus on addressing loss and damage”. 105 Some of the most contentious issues included accounting rules to 100 PA, Art. 13. avoid double-counting, “corresponding adjustments” to international 101 Developed country Parties “shall” and other Parties that provide carbon trading under Art. 6(4), modalities for transitioning from support “should” provide information on these aspects. CDM and CERs, whether or not to allow “share of proceeds” to fund 102 See, in general, PA, Art. 9. adaptation under Art. 6(2). International Law Aspects of Sea Level Rise | 15 pledges, and efforts to review and strengthen loss and Although States are the primary subjects of interna- damage mechanism. At the Glasgow COP26 summit, tional law, the requirements for statehood are difficult many outstanding issues were resolved, making the to define precisely.109 They were described in a regional Rulebook fully operational.106 treaty concluded under the auspices of the Organiza- tion of American States (OAS) dating back to 1933: The 3. Legal Aspects of Statehood Montevideo Convention on the Rights and Duties of States.110 Article 1 of that Convention provides that: States are the primary subjects of international law possessing international legal personality, in the The State as a person of international law should same way that individuals are the primary subjects possess the following qualifications: of national law and possess legal personality under a) A permanent population national law. Just as national laws recognize other b) A defined territory legal entities with slightly different legal powers – c) Government such as companies, partnerships, charities, or even, d) Capacity to enter into relations with other states. in some countries, animals and nature in general; so international law also recognizes, to different extents, The Montevideo requirements are generally taken a range of non-state actors such as international to represent the customary international law regime organizations,107 and other entities including relating to the creation of States,111 however it is clear corporations, non-governmental organizations, and that over recent history, a number of entities have been individuals.108 granted recognition as States without fulfilling all these criteria and that a number of entities that appear The main capacities associated with statehood under to fulfill the physical requirements have not achieved international law include the capacity to enter into the international recognition required from other binding international agreements, being subject to States. A key indicator of the capacity of an entity to rights and obligations under international law, and enter into relation with other States is the willingness the ability to make claims before international or of other States to recognize that entity as having the national courts. It also includes the ability to become a capacity to do this. In turn, an important way in which member of the United Nations and other international the international community as a whole has exercised organizations. its recognition of this capacity since 1945 has been through its acceptance of an application to join the 106 The Article 6 negotiations at Glasgow reached decisions CMA United Nations. 12a, CMA 12b, and CMA 12c. There are also Annexes on Guidance (6.2), Rules (6.4), and a Work Program (6.8). It is worth noting that an equivalent of 5 percent of the “share of proceeds” from carbon Generally speaking, a “defined territory” is accepted as a markets linked to Article 6.4 mechanism will go toward adaptation significant constituent of statehood even though what funding to help developing countries finance their efforts to adapt to the impacts of climate change. the term exactly means is subject to scholarly debate. 107 The International Court of Justice (ICJ), in 1949, concluded that Unit- Definitively settled borders are not a prerequisite for ed Nations is a subject of international law “capable of possessing in- ternational rights and duties and that it has the capacity to maintain its rights by bringing international claims.” Reparation for Injuries Suf- 109 See, Crawford, J. 2006. The Creation of States in International Law, 2nd fered in the Service of the United Nations, Advisory Opinion, (April 1949) edn., Oxford University Press, pp. 37-45. I.C.J. No. 174. However, international legal personality differs among 110 The Montevideo Convention on the Rights and Duties of States different international organizations depending on a number of fac- (adopted 26 December 1933, entered into force 26 December 1934) tors including principally the competencies bestowed by the constit- 165 LTNS 19. The Montevideo Convention has sixteen ratifications uent instrument of the organization. See also, Legality of the Threat or including Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Use of Nuclear Weapons, Advisory Opinion, (1996) I.C.J. GL No. 95. Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, 108 As opposed to States, other entities benefit from different degrees Nicaragua, Panama, United States of America, and Venezuela. of legal personality and recognition from States. The rights and 111 Additional requirements have been considered at times. See, obligations of other entities will depend on various considerations Brownlie, I. 2008. Principles of Public International Law, 7th edn., that need to be determined on a case-by-case basis. Oxford University Press, pp. 70-76. 16 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise a defined territory. Moreover, the concept of territory fourth element is “the capacity to enter into relations includes “islands, islets, rocks, and reefs.”112 Presumably, with other States”, which is generally understood to even a very small amount of territory would be adequate include the maintenance of diplomatic relationships, to meet that criterion. A “permanent population” is the the ability to sign treaties, and to abide by international second element supporting the formation of statehood; obligations. This element lies at the intersection of again, it is not entirely settled what “permanent” independence and effectiveness of a government. In in this context really means. In general, there is no fact, many scholars emphasize “independence” as the minimum number necessary to meet this population determining element for statehood.117 criterion but “permanent population” usually refers to maintaining a “reasonably stable” population113 Although the criteria for statehood inform when though there is no quantitative or qualitative test and how statehood may be created, international law available. Nationality is also not required to satisfy the does not provide any clear-cut answers to the issue “permanent population” requirement.114 In the case of when it might cease to exist. International law of sea level rise, the “permanence” of a population addresses the various ways a State can become extinct might be threatened through wide-scale community including through merger, absorption, or dissolution relocation and migration. and provides some treaty-based solutions in respect to succession.118 However, cessation of statehood in the In addition to the defined territory and permanent context of sea level rise is unprecedented and is a notion population criteria, “government” is usually accepted as which traditional international law has never had to one of the most crucial elements. Scholars argue that the contemplate. Indeed, the Montevideo Convention itself territory element could be considered as “a constituent expressly provides in Article 6 that: “[r]ecognition is of government and independence rather than a distinct unconditional and irrevocable.” Therefore, drawing criterion of its own.”115 Though, there have been various analogies based on existing examples and anomalies is situations where statehood has been accepted as present particularly difficult and the examples may even be ill- even when an “effective government” was absent.116 The suited.119 Such a scenario is to date not clearly addressed by international law even though it has been subject to 112 See, ibid., p. 105. an extensive ongoing debate among scholars.120 113 See, Lowe, V. 2007. International Law, Oxford University Press, p. 154. Lowe’s analysis may provide some insight on this issue: “There may be some point at which the international community would draw through the illustration of the former Belgian Congo that was the line. For example, if the Pitcairn Islands (population, 45) were granted independence in 1960 as the Republic of the Congo (now, the to become independent and seek admission to the United Nations, Democratic Republic of Congo), Rwanda, Burundi and other cases States might re-examine the relationship between the principle of “premature independence.” He concludes: “[S]tatehood is not of sovereign equality and common sense. The population must be simply a factual situation. It is a legally circumscribed claim of right, reasonably stable. They may wander around within the country, like specifically to the competence to govern a certain territory. Whether the nomadic people of the Western Sahara, but they must have some that claim of right is justified as such depends both on the facts and degree of social cohesion; a transient, dissociated population (such as on whether it is disputed. Like other territorial rights, government as a the groups of fisherfolk who reside on certain otherwise unoccupied precondition for statehood is thus, beyond a certain point, relative. But islands on a seasonal basis) is not enough” (emphasis added). it is not entirely so: each State is an original foundation predicated on a 114 Crawford (2006) concludes “nationality is accepted to be within certain basic independence.” See, in general, pp. 56-61. the realm dependent upon statehood, not vice versa.” See, p. 52. In 117 See, Crawford (2006), p. 89 and Brownlie, p. 71. the Nottebohm case that has been the subject of ongoing controversy 118 Vienna Convention on the Succession of States in respect of among scholars and adjudicators, the ICJ concluded that issues Treaties (adopted 23 August 1978, entered into force 6 November relating to nationality are generally accepted to be within the domain 1996) 1946 UNTS 3 (with 19 Signatories and 23 Parties) and Vienna of the granting State: “[N]ationality is a legal bond having as its basis a Convention on the Succession of States in respect of State Property, social fact of attachment, a genuine connection of existence, interests and Archives, and Debts (opened for signature 8 April 1983, not yet in sentiments, together with the existence of reciprocal rights and duties. force) Doc. A/CONF.117/14. It may be said to constitute the juridical expression of the fact that the 119 See, Vidas, D. 2014. “Sea-Level Rise and International Law: At the individual … is in fact more closely connected with the population of Convergence of Two Epochs”, Climate Law Vol. 4, pp. 70-84, at 78. the State conferring nationality than with that of any other State.” See, 120 See, McAdam, J. 2010. “‘Disappearing states’, statelessness and the Nottebohm Case (Second Phase), I.C.J. Rep 1955 p. 4, 23. boundaries of international law”, Climate Change and Displacement: 115 See, Crawford (2006), p. 52. Multidisciplinary Perspectives, Hart; Rayfuse, R. 2009. “W(h)ither 116 Crawford (2006) analyzes the concept of “effective government” Tuvalu? International Law and Disappearing States”, UNSW Law International Law Aspects of Sea Level Rise | 17 4. Legal Framework for Human Mobility not include people who leave their home States for in the Context of Climate Change climate-related reasons. Although there is as yet no internationally agreed term to cover such situations, As sea level rise threatens access to land, livelihoods, the widely accepted umbrella term is “human food security, and well-being for vulnerable mobility in the context of climate change”, which communities – climate change may induce or generally refers to three movement patterns including exacerbate human mobility by interacting with other displacement (forced movement of persons), migration risk elements such as poverty, violence, and conflict.121 (voluntary movement of persons), and planned relocation (physical process of moving persons or It needs to be highlighted at the outset that the term groups of persons to a new location whether voluntary “climate refugee” is often considered ill-suited; indeed, or involuntary).124 It is important to note, however, that its use has been denounced widely, even drawing differentiating between “voluntary” and “forced” in criticism from the UN Refugee Agency.122 “Refugee” has this context is often difficult due to the complexity of a specific meaning in international law and is defined the issues involved and the fact that affected people under the 1951 Convention relating to the Status of may be driven by various factors.125 Refugees (Refugee Convention) as a person “owing to well-founded fear of being persecuted for reasons Relevant Legal Frameworks in General of race, religion, nationality, membership of a particular Climate change threatens the enjoyment of a wide range social group or political opinion, is outside the country of substantive and procedural human rights, either of his nationality and is unable, or owing to such fear, directly or indirectly.126 These include, in particular, is unwilling to avail himself of the protection of that country…” (emphasis added).123 This definition does Article 1A (2). 124 See, in general, Platform on Disaster Displacement, Key Definitions, Research Paper No. 2009-9; Rayfuse, R. 2010. “International available at: https://disasterdisplacement.org/the-platform/key- law and disappearing states: utilising maritime entitlements to definitions. Note that other terms are also used in practice. For overcome the statehood dilemma”, UNSW Law Research Paper instance, paragraph 14(f) of the Cancun Agreement (1/CP.16 The No. 2010-52; Stoutenburg, J. G. 2013. “When Do States Disappear? Cancun Agreements: Outcome of the work of the Ad Hoc Working Thresholds of Effective Statehood and the Continued Recognition Group on Long-term Cooperative Action under the Convention) of “Deterritorialized” Island States” in, Gerrard, M., and G. Wannier agreed on the term “climate change induced displacement, (eds). 2016. Threatened Island Nations: Legal Implications of Rising Seas migration and planned relocation” and paragraph 30(l) of the Sendai and a Changing Climate; Camprubí, A. 2016. Statehood under water: Framework uses “disaster-induced human mobility”. Challenges of sea-level rise to the continuity of Pacific Island States, Brill. 125 See, Kälin, W. 2023. Internal Displacement and the Law, Oxford 121 See, McAdam, J., and S. Weerasinghe. 2020. “Climate change University Press, p. 42.. and human movement”, Climate Change, Justice and Human Rights, 126 The Preamble of the Paris Agreement recognizes the linkages Amnesty International Netherlands. See also, Rigaud, K. K., and A. between climate change and human rights providing that “Parties de Sherbinin, et al. 2018. Groundswell: Preparing for Internal Climate should, when taking action to address climate change, respect, Migration, World Bank; Clement, V., and K. K. Rigaud, et al. 2021. promote and consider their respective obligations on human Groundswell Part 2: Acting on Internal Climate Migration, World rights, the right to health, the rights of indigenous peoples, local Bank. The Groundswell Report (2018) acknowledges migration as communities, migrants, children, persons with disabilities and “human face of climate change” and highlights that unless urgent people in vulnerable situations and the right to development, as well action is taken, over 140 million people will internally migrate by as gender equality, empowerment of women and intergenerational 2050 only in Sub-Saharan Africa, South Asia, and Latin America. equity.” These interlinkages are well documented by a variety of Groundswell Report Part 2 (2021) states that the combined results instruments at the UN level and elsewhere. See, United Nations of the two Groundswell reports show that by 2050, as many as 216 Human Rights Council (HRC) Resolution No. 41/21, “Human rights million people could be internal climate migrants across the six and climate change” (12 July 2019), UN Doc A/HRC/RES/41/21; Office World Bank regions including East Asia and the Pacific, North Africa, of the High Commissioner for Human Rights (OHCHR), “Mapping Eastern Europe and Central Asia, Sub-Saharan Africa, South Asia, Human Rights Obligations relating to the Enjoyment of a Safe, and Latin America. Clean, Healthy and Sustainable Environment: Focus Report on 122 See, UNHCR, Climate change and disaster displacement, available Human Rights and Climate Change” (June 2014); OHCHR Report on at: https://www.unhcr.org/en-us/climate-change-and-disasters.html. the Relationship between Climate Change and Human Rights (15 For a general analysis, see Kälin, W. 2010. Conceptualizing Climate- January 2009), UN Doc. A/HRC/10/61; and the Report of the Special Induced Displacement, Climate Change and Displacement: Multidisci- Rapporteur on the promotion and protection of human rights in the plinary Perspectives, Hart, pp. 81-103. context of climate change, “Promotion and protection of human 123 Convention relating to the Status of Refugees (adopted 28 July 1951, rights in the context of climate change mitigation, loss and damage entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), and participation” (26 July 2022), UN Doc A/77/226. For an insightful 18 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise the rights to life, health, water, food, adequate housing, through climate litigation – affirming that States’ self-determination, culture, and development as human rights obligations in this context include well as procedural rights such as rights to access to protecting people from foreseeable harm emanating information, participate in decision-making, and from the impacts of climate change irrespective access to justice.127 These negative impacts present of a State’s contribution to anthropogenic climate themselves asymmetrically with heightened effects on change.130 The long standing recognition of climate vulnerable groups such as women, children, the elderly, change and its adverse impacts on the enjoyment of and indigenous or other traditional communities with human rights has been institutionalized through the special dependency on and attachment to land.128 adoption of the UN Human Rights Council Resolution Though these impacts do not automatically mean that 48/14 in October 2021, which established a Special a State will be held legally responsible for violating Rapporteur on the promotion and protection of human relevant obligations under international human rights rights in the context of climate change.131 law,129 there is a growing body of case law – including In general, as a reflection of the principle of State sov- ereignty and territorial integrity, States have the pri- treatment of the issue, see also, McInerney-Lankford, S., M. Darrow, and L. Rajamani. 2011. Human Rights and Climate Change: A Review mary duty to provide protection and humanitarian of the International Legal Dimensions, The World Bank Group. For assistance to persons affected by natural disasters and further analysis on relevant aspects pertaining to slow onset events, see, OHCHR. 2018. “The Slow onset effects of climate change and similar emergency situations within their jurisdiction human rights protection for cross-border migrants”, UN Doc A/ or control.132 States’ existing obligations to respect, pro- HRC/37/CRP.4. See also, McAdam, J., B. Burson, W. Kälin, and and S. tect, and fulfil human rights under international and Weerasinghe. 2016. “International Law and Sea-Level Rise: Forced Migration and Human Rights”, report prepared by the Fridtjof regional human rights law are applicable to all individ- Nansens Institutt in cooperation with the Andrew & Renata Kaldor uals subject to their jurisdiction, irrespective of these Centre for International Refugee Law, University of New South Wales, FNI Report 1/2016. individuals’ citizenship status.133 In complementing 127 Ibid. For procedural rights, in particular, see also, Convention on Access to Information, Public Participation in Decision-Making and 130 For instance, in the recent case of Urgenda v. the Netherlands, the Access to Justice in Environmental Matters (adopted 25 June 1998, Supreme Court of the Netherlands concluded that the Netherlands entered into force 30 October 2001) 447 UNTS 2161. violated the right to life and the right to family life as contained in 128 In addition to the sources listed above, see, HRC, Report of the the European Convention on Human Rights by failing to take action Special Rapporteur on extreme poverty and human Rights: Climate to avoid climate change impacts. The Court has ruled that the state change and poverty (17 July 2019), UN Doc. A/HRC/41/39; OHCHR has ‘direct legal obligations’ to reduce GHG emissions by at least 25 Report: Analytical study on the promotion and protection of the percent by the end of 2020, compared to 1990 levels. See, State of the rights of persons with disabilities in the context of climate change Netherlands v Urgenda [2019] ECLI:NL:HR:2019:2006 (20 December (22 April 2020), UN Doc. A/HRC/44/30; and OHCHR Report: 2019). Analytical study on gender-responsive climate action for the full and 131 UN HRC, Resolution adopted by the Human Rights Council on 8 effective enjoyment of the rights of women (1 May 2019), UN Doc. A/ October 2021, Mandate of the Special Rapporteur on the promotion HRC/41/26. and protection of human rights in the context of climate change (13 129 Defining States’ human rights obligations in the context of climate October 2021), UN Doc. A/HRC/RES/48/14. change as well as enforcing them have demonstrated multiple 132 This primary role derives from the principle of sovereignty challenges. As of today, there is still no consensus on the scope as highlighted in Article 2 para 1 and para 7 of the UN Charter of these obligations in the context of climate change. Challenges (adopted 26 June 1945, entered into force 24 October 1945). See also, include not only determining causality and attributing relevant UNGA resolution no 46/182 “Strengthening of the coordination of harm to specific duty-bearers but also challenges deriving from humanitarian emergency assistance of the United Nations” Annex, transnational impacts and intergenerational nature of climate para 3. For a more in-depth analysis of the issue in the context of sea change. The Advisory Opinion issued by the Inter-American Court of level rise, see, Principle 4 and its commentaries in Sydney Declaration Human Rights could be particularly significant as it recognized the of Principles on the Protection of Persons Displaced in the Context of Sea existence of a stand-alone right to a healthy environment under the Level Rise adopted by the International Law Association in 2018. American Convention and the adverse impact of climate change on For protection of persons in the event of disasters (including slow human rights, also discussing the extraterritorial aspects of climate- onset events such as sea level rise), see Article 10 in Draft Articles related harm. For further details, see, The Environment and Human on the Protection of Persons in the Event of Disasters, adopted by the Rights (State Obligations in Relation to the Environment in the Context International Law Commission at its 68th session in 2016, available of the Protection and Guarantee of the Rights to Life and to Personal with commentaries at: https://legal.un.org/ilc/texts/instruments/ Integrity – Interpretation and Scope of Articles 4(1) and 5(1) of the english/commentaries/6_3_2016.pdf American Convention on Human Rights), Advisory Opinion OC-23/18, 133 See, in particular, International Covenant on Civil and Political Inter-Am. Ct. H.R., (ser. A) No. 23 (Nov. 15, 2017). Rights (adopted 16 December 1966, entered into force 23 March 1976) International Law Aspects of Sea Level Rise | 19 a State’s duty to protect, the international communi- State’s territory, irrespective of their nationality.138 ty as a whole bears a duty to cooperate with countries It is worth highlighting that other frameworks exist affected by sea level rise.134 Cooperation in the context at the regional level, including the 2009 African of international human rights obligations has been Union Convention for the Protection and Assistance explicitly mentioned under Article 2(1) of the Inter- of Internally Displaced Persons in Africa (Kampala national Covenant on Economic, Social and Cultural Convention), which is a binding legal instrument Rights (ICESCR) highlighting that States’ obligations and lays out legal rights and obligations of IDPs by to take steps to achieve progressive realization of eco- expanding the scope of the UN Guiding Principles.139 nomic, social, and cultural rights in particular, depend not only on the availability of their resources but also (ii) Cross-Border Displacement on economic and technical cooperation at internation- Mobility in the context of climate change has, to al level.135 date, mostly occurred internally, but cross-border movement is already common and may increase over (i) Internal Displacement time.140 Environmental harm in general or climate The 1998 UN Guiding Principles on Internal change is not part of the grounds listed by the Refugee Displacement restate and compile international law Convention to give rise to refugee status.141 That said, standards relevant to internally displaced persons some other regional instruments do not necessarily (IDPs).136 Although not binding in themselves, they limit refugee status to the grounds listed in the 1951 are based on well-established standards137 under Refugee Convention. People who cross borders to international humanitarian law and human rights seek protection may substantiate their claims based law extending the protection to all persons in a on events or circumstances “seriously disturbing public order” as mentioned under Article I(2) of the 1969 Organization of African Unity (OAU) Convention 999 UNTS 171 (ICCPR) and International Covenant on Economic, Governing the Specific Aspects of Refugee Problems Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 134 See, Articles 1(3), 55, and 56 of the UN Charter. See, also Sydney Declaration, Principle 7. Note that to date, the scope of such duty 138 See, for instance, general principle of non-discrimination, the to cooperate in the context of sea level rise and climate change in right not to be arbitrarily displaced, right to an effective remedy, right general is not entirely clear. Commentators have raised that related to life, right to liberty and security of person, freedom of movement issues such as the content, who the effective duty bearer is, and what and freedom to choose his or her residence, and right to seek asylum responsibilities are entailed need further clarification. See, McAdam, among others. J., and B. Burson, et al. 2016, at para 120. For a detailed legal analysis 139 African Union, African Union Convention for the Protection and on the extent of the international community’s responsibility to take Assistance of Internally Displaced Persons in Africa (“Kampala the actions necessary to protect those people most vulnerable to the Convention”) (signed on 23 October 2009; entered into force on effects of sea level rise, see, Knox, J. H. 2009. “Linking Human Rights 6 December 2012). Of the total of 55 AU Member States, which and Climate Change at the United Nations”, Harvard Environmental represent all the countries on the African continent, 40 states signed Law Review, Vol. 33. the convention and 33 ratified it. For the latest ratification status, 135 See, also ICESCR, Arts 11, 15, 22, and 23 for explicit reference to see: https://au.int/en/treaties/african-union-convention-protection- international cooperation in the context of specific rights. and-assistance-internally-displaced-persons-africa 136 The UN Guiding Principles define internally displaced persons 140 See, Internal Displacement Monitoring Centre (IDMC), (“IDPs”) as “people or groups of people who have been forced or “Synthesizing the state of knowledge to better understand obliged to flee or to leave their homes or places of habitual residence, displacement related to slow-onset events” (August 2018) developed in particular as a result of or in order to avoid the effects of armed in the context of Activity I.2 of the Task Force on Displacement conflict, situations of generalized violence, violations of human Workplan; The Nansen Initiative, Agenda for the Protection of Cross- rights or natural or human-made disasters, and who have not Border Displaced Persons in the Context of Disasters and Climate crossed an internationally recognized State border.” United Nations Change (December 2015), available at: https://disasterdisplacement. Guiding Principles on Internal Displacement, 1998, UNHCR Doc. E/ org/wp-content/uploads/2014/08/ EN_Protection_Agenda_ CN.4/1998/53/Add.2. Volume_I_-low_res.pdf; and Goodwin-Gill, G. S., and J. McAdam. 137 Note that in ‘2005 World Summit Outcome’, UNGA Res 60/1 (16 2017. Climate Change, Disasters and Displacement, UNHCR, available September 2005) para 132 (and many subsequent resolutions), UN at: http://www.unhcr.org/afr/596f25467.pdf member states unanimously recognized the Guiding Principles as an 141 For an insightful treatment of the issue, see, Scott, M. 2020. Climate “important international framework for the protection of internally Change, Disasters, and the Refugee Convention, Cambridge University displaced persons”. Press. 20 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise in Africa and Conclusion III(3) of the 1984 Cartagena arrangements usually occur bilaterally or at regional Declaration.142 level, there are umbrella principles in human rights law and relevant international labor law instruments In general, persons crossing borders in the context including the International Convention on the Protec- of sea level rise are not recognized as refugees unless tion of the Rights of All Migrant Workers and Mem- elements of persecution are also present.143 However, bers of Their Families146 and in International Labor the principle of non-refoulement can be applicable Organization conventions and recommendations.147 beyond refugee law.144 This general principle prohibits States from removing people to any place where (iv) Planned Relocation they would face a risk of torture; cruel, inhuman or When disasters or long-term adverse impacts are un- degrading treatment; or arbitrary deprivation of life.145 avoidable, then planned relocation148 may be necessary in certain cases.149 Relocation may entail drastic chang- (iii) Migration es to lifestyle and livelihoods as well as risk of impover- When in situ adaptation is no longer an option, com- ishment, landlessness, food insecurity among various munities may opt to migrate internally or interna- other risks,150 so planned relocation needs to be careful- tionally to avoid harm. Though in practice, such ly designed with meaningful consultation with affect- ed communities. The IPCC AR6 February 2022 report 142 See, OAU, Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Convention”), 10 September 1969, 1001 UNTS 45. See also, The Cartagena Declaration on Refugees, adopted 146 UN General Assembly, International Convention on the Protection during the “Coloquio Sobre la Protección Internacional de los of the Rights of All Migrant Workers and Members of their Families Refugiados en América Central, México y Panamá: Problemas Jurídicos (18 December 1990), A/RES/45/158. y Humanitarios”, held in Cartagena, 19-22 November 1984. For an in- 147 See, in particular, the Convention concerning Migration for depth assessment on this issue, see, UNHCR, “Legal considerations Employment (No. 97), the Convention concerning Migrations in regarding claims for international protection made in the context of the Abusive Conditions and the Promotion of Equality of Opportunity adverse effects of climate change and disasters” (1 October 2020). The and Treatment of Migrant Workers (No.143), the Recommendation note highlights that people displaced by the adverse effects of climate concerning Migration for Employment (No. 86), the Recommendation change and disasters can be refugees under regional refugee criteria. concerning Migrant Workers (No.151), the Convention concerning 143 Jurisprudence from the Pacific region in some cases concerning Forced or Compulsory Labor (No. 29) and the Convention concerning Kiribati and Tuvalu offer some insight on the issue. In the case of Abolition of Forced Labor (No. 105). Please also note supplementary AF (Kiribati) where the appellant claimed refugee status on the framework such as ILO Multilateral Framework on Labor Migration, basis of environmental changes in Kiribati caused by sea level rise, which consists of non-binding principles and guidelines. the Tribunal, concluded that the concept of “being persecuted” rests 148 Evacuation may also be undertaken as a last resort measure when within human agency rather than environmental impacts, such as there is an imminent threat to life. In the absence of voluntariness, climate change, albeit leaving the door open for any possible future where affected persons are evacuated against their will, relevant cases. See, AF (Kiribati) [2013] NZIPT 800413, at paras 54-55. Similarly, international law standards require that such measures are conducted see, AC (Tuvalu) [2014] NZIPT 800517-520, paras 45-46. in a proportionate, non-discriminatory way and in accordance with 144 See, the 1951 Refugee Convention, Art 33(1): “No Contracting State existing law and the principles of human dignity and liberty. shall expel or return (“refouler”) a refugee in any manner whatsoever 149 See, generally, McAdam, J., and E. Ferris. 2015. “Planned Relocations to the frontiers of territories where his life or freedom would be in the Context of Climate Change: Unpacking the Legal and threatened on account of his race, religion, nationality, membership Conceptual Issues”, Cambridge Journal of International and Comparative of a particular social group or political opinion.” Law, Vol. 4. Movement already occurs internally within customary 145 International human rights law establishes a legal basis for lands or elsewhere (rural or urban), and relocation to another PIC, or complementary protection; however, only certain rights are beyond PICs is certainly not uncommon in the Pacific context and is recognized as giving rise to an obligation of non-refoulement. The case expected to increase as climate change impacts are exacerbated. See, Teitiota v. New Zealand marks an important milestone on this front. In Campbell, J. 2010. “Climate-Induced Community Relocation in the 2019, the UN Human Rights Committee accepted, in principle, that it Pacific: The Meaning and Importance of Land” in Climate Change and is unlawful for States to send people to places where the impacts of Displacement: Multidisciplinary Perspectives, Hart, pp. 57-79; McAdam, climate change expose them to life-threatening risks or a risk of cruel, J. 2014. “Historical Cross-Border Relocation in the Pacific: Lessons for inhuman, or degrading treatment. See, Human Rights Comm., Teitiota Planned Relocations in the Context of Climate Change”, The Journal of v. New Zealand, UN Doc. CCPR/C/127/D/2728/2016 (Oct. 24, 2019). For Pacific History Vol. 49, p. 301. Also note that in certain cases, planned a comprehensive normative assessment of current developments, relocation could be based on a request from affected populations, see, McAdam, J. 2020. “Protecting People Displaced by the Impacts of whereas sometimes such demand may not be present. Climate Change: The UN Human Rights Committee and the Principle 150 Cernea, M. M. 2008. “Compensation and benefit sharing: why of Non-refoulement”, American Journal of International Law, Vol. 114(4), resettlement policies and practices must be reformed”, Water Sci pp. 708-725. Eng., Vol. 1, pp. 89–120. International Law Aspects of Sea Level Rise | 21 did highlight that responses to sea level rise and land migration, and planned relocation,” while “taking into subsidence in low-lying coastal cities and settlements account their common but differentiated responsibili- and small islands that include planned relocation will ties.”155 Additionally, in 2018, a Task Force on Displace- be more effective “if combined and/or sequenced, ment established pursuant to the Paris Agreement,156 planned well ahead, aligned with sociocultural values issued a set of recommendations to “facilitate orderly, and development priorities, and underpinned by inclu- safe, regular and responsible migration and mobility sive community engagement processes.”151 […] in the context of climate change, by considering the needs of migrants and displaced persons, […] by en- Although there is no international binding instrument hancing opportunities for regular migration pathways, specifically addressing the issue of planned reloca- including through labor mobility.”157 COP24 endorsed tion, relevant applicable standards can be found in the these recommendations “inviting” countries to consid- UN Guiding Principles on Internal Displacement, the er the recommendations, which was a crucial step for Pinheiro Principles on Housing and Property Restitu- the recognition of human mobility in the context of cli- tion,152 and various other initiatives.153 Furthermore, the mate change under the UNFCCC regime. The approach policies and experience of multilateral development developed under the UNFCCC framework refers to hu- banks, working on resettlement induced by develop- man mobility in the context of climate change holisti- ment projects, could potentially inform development cally, therefore providing a venue in the context of all of similar standards at the national and regional level movement patterns, whether internal or international. to address planned relocation in the context of climate change (for example, standards governing meaningful Similarly, with its aim of “the substantial reduction of consultation with displaced persons, consent, liveli- disaster risk and losses in lives, livelihoods and health”, hood restoration, and compensation among others).154 the Sendai Framework for Disaster Risk Reduction 2015–30, endorsed by the UN General Assembly, is Other Selected Normative Developments particularly relevant in the context of disaster-induced Under the UNFCCC regime, the 2010 Cancun Adap- displacement (including displacement due to slow- tation Framework marks an important milestone for onset events such as sea level rise). It explicitly mentions human mobility in the context of climate change as the importance of addressing disaster displacement in its paragraph 14(f) calls on Parties to take “measures the context of improving disaster preparedness158 and to enhance understanding, coordination and coop- strengthening disaster risk governance.159 The Sendai eration with regard to climate induced displacement, Framework, even though non-binding, is intended to guide the efforts of stakeholders at all levels, including global, regional, national, and local. Therefore, the 151 IPCC, AR6 February 2022 Report, at C.2.8. 152 UN Sub-Commission on the Promotion and Protection of Human Rights, Housing and property restitution in the context of the return 155 UNFCCC, “Report of the Conference of the Parties on its sixteenth of refugees and internally displaced persons, Progress report of the session,” Cancun Adaptation Framework, Cancun, 2010, UNFCCC Special Rapporteur, Paulo Sérgio Pinheiro (8 June 2005) UN Doc E/ Doc. FCCC/CP/2010/7/Add.1, available at: http://unfccc.int/resource/ CN.4/Sub.2/2004/22/Add.1. docs/2010/cop16/eng/07a01.pdf#page=4 153 See, the Peninsula Principles on Climate Displacement within States 156 UNFCCC COP, “Adoption of the Paris Agreement. Proposal by the (2013) and Brookings/Georgetown University/UNHCR, Guidance on President,” UNFCCC Doc. FCCC/CP/2015/L.9/Rev.1, 12 December 2015. Protecting People from Disasters and Environmental Change through Decision, Para.50, available at: https://unfccc.int/documentation/ Planned Relocation (7 October 2015); International Law Association, documents/advanced_search/items/6911.php?priref=600008831 Sydney Declaration of Principles for the Protection of Persons Displaced 157 UNFCCC, Decision -/CP.24, Report of the Executive Committee of the in the Context of Sea Level Rise (2018), Article 6. Warsaw International Mechanism for Loss and Damage associated 154 See, World Bank OP 4.12 on Involuntary Resettlement and ESS with Climate Change Impacts (Advance Unedited Version), Adopted 5 on Land Acquisition, Restrictions on Land Use and Involuntary 2-14 December 2018, available at: https://unfccc.int/sites/default/ Resettlement. For a detailed treatment of the issue, see, Kuusipalo, files/resource/cp24_auv_ec%20wim.pdf R. A., D. Cicek, and L. Atkins. 2020. “Legal and Policy Considerations 158 Sendai Framework for Disaster Risk Reduction 2015-2030, UN Doc A/ Relating to Human Mobility in the Context of Climate Change and RES/69/283 (23 June 2015), para 33(h). World Bank Operations”, World Bank Legal Climate Change Thematic 159 Ibid., Para 28(d). See also paras 27 and 30 on relocation and human Working Group Learning Note Series. mobility in general. 22 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise inclusion of displacement in the Sendai Framework is island and low-lying states; and to develop proposals considered as “an important step forward” for people for the progressive development of international law displaced by disasters and creates an entry point for in relation to the possible loss of all or of parts of state anticipating and preparing for displacement in this territory and maritime zones due to sea level rise, context.160 including the impacts on statehood, nationality, and human rights.”162 Another significant normative development is the adoption of the Global Compact on Safe, Orderly and In the first phase (2014–18) it focused on (a) law of the Regular Migration (Global Compact for Migration) sea issues, regarding the implications of sea level rise under the auspices of the UN in 2018.161 Although it on maritime zones and boundaries and (b) migration is an aspirational framework, it provides significant and human rights issues. The Committee presented political commitments, specifically addressing human its Final Report in August 2018.163 That report looked mobility in the context of climate change. Objective 2 specifically at the short-term impacts of sea level rise (“minimize the adverse drivers and structural factors on maritime zones and boundaries and also articulated that compel people to leave their country of origin”) some important principles for the protection of persons and Objective 5 (“enhance availability and flexibility displaced in the context of sea level rise.164 In relation of pathways for regular migration”) are particularly to the impacts of sea level rise on maritime zones, the relevant in this context. Committee’s primary recommendation was reflected in a Resolution of the 78th ILA Conference.165 That 5. Work of the International Law Resolution recognized the emerging State practice in the Association and the International interpretation of the provisions of the 1982 LOSC,166 and Law Commission recommended that States should accept that, once the baselines and the outer limits of the maritime zones of a coastal or an archipelagic State have been determined The International Law Association (ILA) in accordance with the detailed requirements of the The ILA was founded in 1873. Its objectives are “the 1982 Convention that reflect customary international study, clarification and development of international law, both public and private, and the furtherance 162 ILA, Minutes of the Meeting of the Executive Council (London, 10 of international understanding and respect for November 2012), at 5. International Law Association, International international law”. It has consultative status, as an Law and Sea Level Rise Committee: https://www.ila-hq.org/en/ committees. See, also, Vidas, D., D. Freestone, and J. McAdam. 2015. international non-governmental organization, with “International Law and Sea Level Rise: The New ILA Committee”, a number of the United Nations specialized agencies. International Law Students’ Association (ILSA) Journal of International The ILA Committee on International Law and Sea Level and Comparative Law Vol. 21, pp. 397–408. The authors were the Chair and co-Rapporteurs of the Committee, respectively. Rise, established in 2012, was given a four-year mandate 163 At the 78th ILA Conference in Sydney. ILA, Final Report of the starting in 2014, “to study the possible impacts of sea Committee on International Law and Sea Level Rise (2018). 164 The Sydney Declaration of Principles for the Protection of Persons level rise and the implications under international Displaced in the Context of Sea Level Rise. Resolution 6/2018, law of the partial and complete inundation of State Committee on International Law and Sea Level Rise. 78th Conference territory, or depopulation thereof, in particular of small of the International Law Association, held in Sydney, Australia, 19–24 August 2018. Text available at http://www.ila-hq.org/index.php/ committees 160 Walter, K. 2015. “Sendai Framework: An important step forward for 165 ILA Resolution 5/2018. people displaced by disasters”, The Brookings Institution, available 166 LOSC. Also note that Article 31(3) of the 1969 Vienna Convention online: https://www.brookings.edu/blog/up-front/2015/03/20/ on the Law of Treaties, ILM 8 (1969):689, provides that in the sendai-framework-an-important-step-forward-for-people-displaced- interpretation of a treaty: “There shall be taken into account, by-disasters/ together with the context: (a) any subsequent agreement between the 161 Intergovernmental Conference to Adopt the Global Compact for parties regarding the interpretation of the treaty or the application Safe, Orderly and Regular Migration, “Global Compact for Safe, of its provisions; (b) any subsequent practice in the application of Orderly, and Regular Migration” (December 10–11, 2018)., U.N. Doc. the treaty which establishes the agreement of the parties regarding its A/CONF.231/3. interpretation” (emphasis added). International Law Aspects of Sea Level Rise | 23 law, these baselines and limits should not be required law of the sea and territory, and to the rights of the to be readjusted should sea level change affect the affected populations, it will also study statehood and geographical reality of the coastline.167 The Resolution international law personality questions, and other also recommended that the ability of coastal and related issues of international law and international archipelagic States to maintain their existing lawful security.175 One of the first issues concerning the law maritime entitlements should apply equally to maritime of the sea discussed was the disproportionate impact boundaries delimited by international agreement or by that sea level rise seems likely to have on archipelagic decisions of international courts or arbitral tribunals.168 States.176 The ILA committee released its interim report at the 80th Biannual ILA Conference in Lisbon in June In relation to displacement in the face of sea level rise, 2022.177 The interim report looked at various issues a second plenary Resolution of the ILA Conference169 including sea level rise and archipelagic states, the drew attention to the recent efforts of the international development of state practice concerning the limits of community to develop a comprehensive legal and maritime zones and maritime boundaries in the context policy framework for the protection of people displaced of climate change-related sea level rise, consolidation in the face of climate change, and adopted its own of state practice, and the approach concerning treaty “Sydney Declaration of Principles on the Protection of interpretation by AOSIS and PIF Members. The interim Persons Displaced in the Context of Sea Level Rise.”170 report highlights the remarkable evolution of thinking The Sydney Declaration consists of 12 principles on state practice relating to maintaining maritime aiming to codify and progressively develop relevant zones, which is discussed more in detail in Part III norms of international law focusing on the protection below.178 Regarding statehood and the rights of affected of persons displaced in the context of sea level rise. populations, the interim report has sought to illustrate Some of these principles are general in scope171 and some of the critical challenges those possible scenarios applicable to all forms of “human mobility”172 while and strategies could raise and laid out the issues that other specific principles are applicable in the context will be addressed in further detail in the continuation of evacuation, planned relocation, migration, internal of the Committee’s work. The Committee is planning displacement, and cross-border displacement of to present its final report at the 81st ILA Biennial affected persons.173 Conference in Greece in 2024. In November 2018, the Committee was given a mandate The International Law Commission (ILC) for its second phase (2019–22)174 which was further The ILC was established by the General Assembly in extended in May 2022 for another two-year term. That 1947 to undertake the mandate of the Assembly under phase will be focusing on the study of international law Article 13(1)(a) of the Charter of the United Nations, issues prompted by the mid- to longer-term predictions to “initiate studies and make recommendations of sea level rise. In addition to the issues related to the for the purpose of [...] encouraging the progressive 167 ILA Resolution 5/2018. 168 Ibid. 175 An organizing meeting for the second phase of its work (up to 2022) 169 ILA Resolution 6/2018. was held in Madrid in December 2019. See, Vidas, D. 2019. “Madrid 170 Ibid. Meeting of the Committee on International Law and Sea Level Rise, 171 See, Principle 4 on the primary duty and responsibility of States to December 2019”, FIDE Foundation, available at: https://www.ila-hq. protect and assist affected persons, Principle 5 on the duty to respect org/en/committees the human rights of affected persons, Principle 6 on the duty to take 176 See, Freestone, D., and C. Schofield. 2021. “Sea Level Rise and positive action, and Principle 7 on the duty to cooperate. Archipelagic States: A Preliminary Risk Assessment”, Ocean Yearbook 172 As noted earlier in this study and by the Sydney Declaration, this Vol. 35. term is widely used as an umbrella term addressing all forms of human 177 ILA. 2022. Interim Report of the Committee on International Law mobility (i.e., displacement, migration, and planned relocation). and Sea Level Rise, available at https://www.ila-hq.org/index.php/ 173 See, Principles 8-12 for further details. committees. The report was presented at the 80th ILA Biennial 174 ILA, Minutes of the Meeting of the Executive Council (London, 17 Conference, in Lisbon, Portugal, 19–24 June 2022. November 2018), at 3, and Annex 5. 178 See also, Vidas D., and D. Freestone. 2022, below n [212]. 24 | Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise Drone view of the lagoon and motu of Fakarava North. Photo: Baptiste Le Bouil development of international law and its codification”. the ILC decided in May 2019 to include the topic in The members of the ILC are nominated by their its active work program and to initially address it governments and elected by the UN General Assembly. in an “open-ended Study Group.”182 Following its syllabus prepared in 2018,183 the ILC Study Group has In 2018, the ILC proposed the inclusion of the topic structured the organization of its work in terms of of “Sea-level rise in relation to international law” three main issue-areas (“subtopics”) of international in its long-term program of work.179 The proposal law: (a) law of the sea, (b) statehood, and (c) protection received support from nearly 120 UN Member States of persons affected by sea level rise. The Study Group during the debate at the Sixth (Legal) Committee also considered a road map for its work and plans to of the UN General Assembly,180 and was adopted initially address issues related to the law of the sea in a 2018 General Assembly resolution.181 In turn, (subtopic A) in 2020, and issues related to statehood and the protection of persons affected by sea level rise 179 ILC. 2018. Report of the Work of the Seventieth Session, UN Doc. (subtopics B and C) in 2021.184 A/73/10, Annex B. The proposal that was put forward by the Government of the Federated States of Micronesia (dated 31 January 2018) for the inclusion of the topic on the Long-Term Programme 2018. See also, more recently, UNGA Resolution 74/186 (UN Doc. A/ of Work of the ILC was taken into account and reflected in the RES/74/186) of 18 December 2019. preparation of this document accordingly. See, document ILC(LXX)/ 182 UN Doc. A/74/10, paras 9 and 265. LT/INFORMAL/1 of 31 January 2018. 183 UN Doc. A/74/10, para. 269  ; and UN Doc. A/73/10, annex B, 180 See, Teles, P. G., “Sea-Level Rise in Relation to International Law: especially para. 19. For ILC reports on this matter, see generally UN A New Topic for the United Nations International Law Commission” Doc. A/74/10 (2019), Chs. III and X; and UN Doc. A/73/10 (2018), Chs. in Ribeiro, M. C. (eds), et al. 2020. Global Challenges and the Law of the III and XII, and Annex B. Sea, Springer Nature, pp. 145–157. 184 UN Doc. A/74/10, para. 267. It is planned that the conclusions 181 UNGA Resolution 73/265 (UN Doc. A/RES/73/265) of 22 December of the ILC Study Group can be made available at the end of the International Law Aspects of Sea Level Rise | 25 The discussions held in the Sixth Committee of the rise on the baselines and outer limits of the maritime UN General Assembly from 2019 onwards clearly spaces measured from the baselines, on maritime demonstrated the increasing attention of many States delimitations, on the exercise of sovereign rights and to the international law implications of sea level rise. jurisdiction of the coastal State and its nationals, and Many UN Members States commended the ILC for its on the rights of third States and their nationals in proposed three-fold thematic structure of work185 and maritime spaces in which boundaries or baselines – regarding the law of the sea in particular – several have been established. The Second Issues Paper was States indicated their support for an approach to ensure also released at the 73rd session of the ILC in 2022.188 certainty and stability under the LOSC.186 The ILC plan It focused on considerations related to statehood and of work is, in turn, organized around basically the same the protection of persons affected by sea level rise. In three issue-areas that the ILA Committee agreed in 2014, 2023, an additional paper to the 2020 First Issues Paper namely: the law of the sea; forced migration and human was issued for the 74th ILC Session.189 It dealt with the rights; and issues of statehood. The 2020 First Issues meaning of “legal stability” in relation to sea level rise, Paper by the co-chairs of the ILC Study Group outlines with a focus on baselines and maritime zones and a the general scope and outcome of the topic, the issues wide range of other issues relating to baselines and to be considered by the Study Group, the outcome to be maritime entitlements and boundaries.190 reached, as well as the methodology to be used.187 The First Issues Paper focused on legal effects of sea level 188 ILC, ‘Sea-Level Rise in relation to International Law: Second Issues Paper by Patrícia Galvão Teles and Juan José Ruda Santolaria, current quinquennium (2017-2021) or more likely during the next Co-Chairs of the Study Group on Sea-Level Rise in relation to (2021-2016), see, Teles, P. G. 2020. “Sea-Level Rise in Relation to International Law (18 April–3 June and 4 July–5 August 2022)’ (19 International Law”, pp. 155–156. April 2022) UN Doc A/CN.4/752. 185 See, statements in the UN Sixth Committee debate (October– 189 A/CN.4/761 + Add.1. November 2019) by Peru (UN Doc A/C.6/74/SR.27, para. 64); Fiji, 190 Including immutability and intangibility of boundaries; on behalf of the Pacific small island developing States, including fundamental changes of circumstances (rebus sic stantibus); effects also Kiribati, Micronesia, Nauru, Palau, Papua New Guinea, Samoa, of the potential situation whereby, as a result of sea level rise and a Solomon Islands, Tonga, Tuvalu, and Vanuatu (ibid., para. 79); landward shift of the coastline, overlapping areas of the exclusive Romania (UN Doc A/C.6/74/SR.28, paras 14–15); Italy (ibid., para. 30); economic zones of opposite coastal States, delimited by bilateral The Netherlands (ibid., para. 79); Argentina (UN Doc A/C.6/74/SR.29, agreement, no longer overlap; effects of the situation whereby an para. 35); Ireland (ibid., para. 43); Thailand (ibid., para. 99): Portugal agreed land boundary terminus ends up being located out at sea (ibid., para. 108); Mexico (ibid., para. 114); Japan (UN Doc A/C.6/74/ because of sea level rise; principle that “the land dominates the sea”; SR.30, para. 34); Estonia (ibid., para. 61); Malaysia (ibid., para. 83); historic waters, title and rights; equity; permanent sovereignty over Philippines (UN Doc A/C.6/74/SR.31, para. 9); Indonesia (ibid., para. natural resources; possible loss or gain of benefits by third States in 29); and Bangladesh (ibid., para. 48). the case of fixed baselines; nautical charts and their relationship to 186 UN Doc. A/CN.4/734 (12 February 2020), para. 44. baselines, maritime boundaries and the safety of navigation; and 187 UN Doc. A/CN.4/740 (28 February 2020). relevance of other sources of law. 26 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise 1. What Are the Legal Implications A landward movement of the low water line – which is the “normal” coastal baseline – will mean that there of Physical Changes to Different will be corresponding landward movements of all Types of Baselines Under the 1982 the coastal States’ maritime zone outer limits.191 In LOSC as a Result of Sea Level Rise? addition, where baselines have been drawn around low- lying islands or insular features which generate their own maritime zones – or coastal basepoint have Sea level rise is likely to result in retreating coastlines been located on vulnerable features such as low-lying and the inundation of small offshore features – all of island, LTEs, or drying reefs (as permitted by the LOSC) which are used to measure maritime entitlements. – then the loss of these vulnerable features may well These changes may make it difficult for coastal States exacerbate this loss of maritime space. to retain those entitlements according to the strict requirements of the LOSC. Coastal Baselines The range of maritime zones that a State may claim under the LOSC, are set out above;192 all of which are in The current IPCC predictions of global mean sea level some way measured from the coast using the coastal rise will inevitably result in increased impacts on the baseline. In the measurement of all these zones, the coastal areas of low-lying States and islands within coastal baseline plays a crucial role, as it does with the the next 30–50 years and these impacts will continue delimitation of a State’s maritime boundaries with its beyond the end of this century, even if global GHG neighbors. It is in recognition of this that a coastal State emissions are drastically reduced. Indeed, many that uses any method other than the “normal” low water impacts are already being felt. Sea level rise is a “slow line as its baseline must commission and publicize onset event” which means that the first impacts will charts of an adequate scale to show its baselines, and be felt on the lowest lying and fragile coastal systems. submit them (or their geographical co-ordinates) to In the first instance, low tide elevations (LTEs) may be the Secretary-General of the United Nations.193 It is completely inundated and if drying reefs are not able also obliged to publish, publicize, and similarly submit to grow at the same rate as the sea rises, they may charts or co-ordinates of the delimitation lines of any also become submarine features. As discussed above, maritime boundary agreements with other States.194 coastal systems are intrinsically dynamic so there will 191 Undoubtedly, in the event of the unlikely but possible movement be adjustments to the shore; however, the most likely of the baseline seaward, this will increase the size of coastal States scenario is that the low water line will move, and maritime zones proportionately. 192 See, Part II(1) of this study for further details. although this movement may not be linear, the result 193 LOSC, Arts. 16(2), 47(9), 75(2), and 84(2). is most likely to be a steady retreat landward. 194 LOSC, Arts. 21(3) and 42(3). International Law Aspects of Sea Level Rise | 27 In drawing baselines – and particularly archipelagic advance of the LOSC Conferences (so-called travaux baselines, which are considered in detail below – preparatoires), as well as national legislation and States have generally taken advantage of the LOSC relevant decisions of the ICJ and other tribunals.195 The rules to push their baselines, and thus their maritime Committee’s conclusion in its 2012 Report – which is entitlements, as far seaward as possible, using islands well informed but not legally binding – was that as a and other features, many of which may now be at risk matter of general international law, coastal baselines of inundation. are “ambulatory” – which means the legal baselines move with the natural coastline.196 In these circumstances, the actual position and legal status of the baseline itself are important. However, However, since the ILC Study Group started its work on the wording of Article 5 LOSC is not totally free of “sea level rise in relation to international law” the issue controversy. It provides that: of whether coastal States are required to adjust their baselines and maritime zone entitlements in the light Except where otherwise provided in this Convention, of physical changes brought about by sea level rise has the normal baseline for measuring the breadth of the been discussed on a number of occasions in the Sixth territorial sea is the low-water line along the coast as (Legal) Committee of the UN General Assembly. The marked on large-scale charts officially recognized by predominant view expressed there by States has been the coastal State. that, in the interests of legal certainty and stability, coastal States so affected are entitled to maintain their The challenge with this wording is that it could be read existing entitlements. Commentators have suggested in two different ways: this is a remarkably rapid evolution in State practice a) It could be understood to mean that the normal that might be on the verge of crystallizing into a new baseline is the “actual” low water line wherever generally accepted interpretation of the Convention.197 that is b) It could be read to mean that it is the “charted” As described above, offshore islands, and so called baseline shown on officially recognized charts – “rocks”, are entitled to their own baseline and their own whether or not they are accurate. territorial sea; while islands, as strictly defined, may also generate their own EEZ and continental shelf.198 The significance of this difference is particularly 195 Although there is no judicial interpretation of Art 5 as such, the important in the context of sea level rise. If the first ICJ and tribunals have in a number of cases relied on evidence of the interpretation is correct, it means that the legal actual location of coastal basepoints – rather than on their charted positions, see, e.g. Territorial and Maritime Dispute between Nicaragua baseline moves with the actual coast (that is, it is and Honduras in the Caribbean Sea (Nicaragua v. Honduras), 2007 ambulatory). However, if the legal baseline is the one I.C.J. 659 (Oct. 8); Maritime Delimitation and Territorial Questions shown on official charts, and those charts are not between Qatar and Bahrain (Qatar v. Bahrain), 2001 I.C.J. 40 (Mar. 16); Award of the Arbitral Tribunal in the Matter of an Arbitration between changed, then the legal baseline does not change, nor Guyana and Suriname (Guyana v. Suriname), 47 ILM 166 (2008) (Sept. do any of the maritime zones measured from it. This 17, 2007), available at https://pca-cpa.org/en/cases/9/ 196 See, ILA Baselines Committee, Sofia Report, at p. 31. At https://www. is highly significant if the “actual” coastline moves as a ila-hq.org/index.php/committees. Available also as Lathrop, C., J. A. result of sea level rise. Roach, and D. Rothwell (eds). 2018. Baselines under the International Law of the Sea, in, Brill Research Perspectives on the Law of the Sea. 197 See Vidas, D., and D. Freestone. 2022. “Legal Certainty and This whole question was looked at in some detail by the Stability in the Face of Sea Level Rise: The Development of State ILA expert Committee on Baselines. That Committee Practice and International Law Scholarship on Maritime Limits and Boundaries”, International Journal of Marine and Coastal Law, 673-725 looked at the documents surrounding the negotiation doi:10.1163/15718085-bja10106; and The Impacts of Sea Level Rise of the original wording (which is also found in and the Law of the Sea Convention: Facilitating Legal Certainty and Stability of Maritime Zones and Boundaries” (2022) 99 International Article 3 of the 1958 Convention on the Territorial Sea Law Studies: UNCLOS 40th Anniversary Forum 944-964. and Contiguous Zone), the documents prepared in 198 LOSC, Art. 121(2). 28 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise The LOSC defines an island as “a naturally formed between insular features and LTEs in relation to the area of land, surrounded by water, which is above way they can be used as basepoints. water at high tide.”199 However, in order to distinguish islands from “rocks” which only generate a territorial The threat posed by rises in sea level is therefore relatively sea, an island must be capable of sustaining “human straightforward. An LTE which is submerged at high tide habitation or economic life” of its own.200 There is no may become completely submerged. If the fringing reefs requirement that they be of a particular size or of any cannot grow at a sufficient rate to keep above water even height above sea level.201 at low tide, then they will not have a low water mark. Hence both of these types of feature will be disqualified Even low tide elevations (LTEs) which are less than the from use as baselines if they are completely submerged. breadth of the territorial sea from the baseline, may be According to the “ambulatory baseline” theory, such used as a baseline.202 For islands on atolls or having a baselines would then have to be redrawn along the actual fringing reef, the baseline may be measured from the coast, which itself may have eroded further landward.206 seaward low water line of the reef.203 The LOSC does As the LOSC allows the use of LTEs up to 12 nm from the not seem to require that these fringing reefs be above shore, the areas lost could amount to kilometers rather water at all times, but in order to have a low water line, it than meters, and that loss of area is reflected not simply in suggests that they must break the surface at some point. the baseline but in the outer limits of the other maritime zones also, such as the EEZ. If a coastal State is taking advantage of the straight baseline provisions, that is, “where the coastline is In addition, low-lying offshore islands which are entitled deeply indented and cut into, or if there is a fringe of to generate a full range of maritime zones or which islands along the coast in its immediate vicinity,”204 are used as basepoints for straight baselines, are also then these lines may not be drawn to or from vulnerable. If a “legal island” (that is, one that meets the LTEs, unless a lighthouse or similar installation – LOSC definition) that is more than 12 nm from the coast permanently above water – has been built on them.205 becomes inundated at high tide as a result of rising seas, then it becomes a de facto LTE but its legal status may be So, it should be clear from the above rules that the open to challenge by other States. It could be argued that LOSC pays considerable attention to the difference as a result of this change, the LTE may not be entitled to between islands, in a strict sense, and insular features even a territorial sea nor could it be used as a basepoint which cannot sustain human habitation or economic for a straight baseline – unless a lighthouse or structure life which it terms “rocks” (whatever their physical permanently above sea level has been built on it. If it is composition). It also makes a strong distinction located with the 12 nm territorial sea generated by the coast itself and becomes an LTE, then it may still be used 199 LOSC, Art. 121(1). as a coastal basepoint. However, the loss of maritime 200 LOSC, Art. 121(3). zone area – particularly in the EEZ – from such changes 201 The ICJ in the 2012 Territorial and Maritime Dispute (Nicaragua v Colombia) cited Maritime Delimitation and Territorial Questions between of this kind could be substantial. Qatar and Bahrain (2001) and reaffirmed the “long-established principle” that “islands, regardless of their size… enjoy the same status, and therefore generate the same maritime rights, as other land territory” and further that a “comparatively small island may 206 Although the “First Issues Paper” by the Co-Chairs of the ILC give an entitlement to a considerable maritime area.” See, Territorial Study Group on sea-level rise in relation to international law states: and Maritime Dispute (Nicaragua v Colombia) Judgment [2012] I.C.J. GL “… nothing prevents Member States from depositing notifications, No. 124 (19 November 2012) at paras 139 and 176 respectively. in accordance with the Convention, regarding the baselines and 202 LOSC, Art. 13(1). outer limits of maritime zones measured from the baselines and, 203 As shown on a map “officially recognized by the coastal State.” See, after the negative effects of sea-level rise occur, to stop updating LOSC, Art. 6. these notifications in order to preserve their entitlements.” See, ILC, 204 LOSC, Art. 7. First Issues Paper by Co-Chair of the Study Group on sea-level rise 205 Or where such baselines have “received general international in relation to international law (28 February 2020), UN Doc No. A/ recognition” See, LOSC, Art. 7(4). CN.4/740 at para 104(f). International Law Aspects of Sea Level Rise | 29 Figure 5. Maritime zones of archipelagic States Source: Arsana, A., and C. Schofield. 2014. TALOS Manual, Figure 4.2. Archipelagic Baselines drying reefs and LTEs; if they are within 12 nm of an island coast or on which permanent installations have The detailed provisions set out in Part IV of the LOSC been built. The substantial advantage which this status relating to archipelagic status are set out above.207 confers is the ability to measure all maritime zones and Generally, these provide that States comprised entitlements from that baseline. So, the 200 nm EEZ is entirely of islands, or groups of islands, may draw measured from the line around the outermost points of “archipelagic baselines” around the “outermost points the outermost islands and hence encloses a potentially of the outermost islands and drying reefs of the enormous amount of ocean space, with consequential archipelago.”208 However, they also prescribe the length sovereign rights over the living resources located of baseline sectors209 and the key requirement that the within or travelling through it. ratio of land to water within the archipelagic baseline must be a minimum of 1:1 and not exceed 1:9.210 However, if, as the ILA Baseline Committee suggests, baselines are ambulatory, then the maintenance of Hence, the archipelagic baseline consists of a series of archipelagic status with these consequential maritime line segments, some of which may be on the low water entitlements appears to require that the archipelagic marks of islands and some of which may simply join State at all times meets the requirements of Part IV up a series of base points on insular features, including of LOSC. Sea level rise thus poses a substantial risk, 207 Part II(1). not simply of the loss of low-lying islands, LTEs, and 208 LOSC, Art. 47(1). other features but also the consequential risk of the 209 None may be longer than 100 nm- except that 3 percent may extend to 125 nm. See, LOSC, Art. 47(2). fact that these changes may compromise its ability to 210 LOSC, Art. 47(1). meet the detailed requirements of Article 47 regarding 30 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Figure 6. Islands and low tide elevations Island/rock (Article 121) LTE (Article 13) Land Sub-surface feature High tide Mean sea level Low tide Sea Source: Arsana, A., and C. Schofield. 2014. TALOS Manual, Figure 4.3. Note: If the LTE lies wholly outside the breadth of the territorial sea measured from the mainland or an island, it may not be used as part of the baseline. maximum lengths of baselines and ratio of land to 2. What is the Difference Between an water and thus its ability to maintain its archipelagic “Island” and a “Rock”? status.211 A recent survey of the current 22 State archipelagic baseline claims and their vulnerability to sea level Arbitration tribunal awards provide detailed guidance rise identified the three most vulnerable types of on the difference between “rocks” and “islands” as archipelagic basepoints as low-lying islands, reefs, defined by the LOSC, but questions still remain as to and LTEs.212 All 22 archipelagic States used at least whether physical changes in islands brought about by one of these types of basepoints: seven used low-lying sea level rise might require them to be reclassified as islands; 14 used reefs (including all the Pacific States); “rocks” with more limited maritime entitlements. and only two used LTEs. So, the risk is clear that if reefs are not able to grow at a sufficient rate to keep pace As we saw above, offshore islands, and so called with sea level rise, these “drying reefs” will become “rocks”, are entitled to their own baseline and their own submerged reefs and their value as basepoints will be territorial sea; while islands, as strictly defined, may also lost. Depending on their position, this poses the risk generate their own EEZ and continental shelf.213 Article that it may not be possible to maintain archipelagic 121 LOSC defines an island as “a naturally formed area status and the much-enhanced maritime entitlements of land, surrounded by water, which is above water at to the EEZ which they generate. high tide.”214 However, in order to distinguish islands from “rocks” which only generate a territorial sea, an island must be capable of sustaining “human habitation or economic life” of its own.215 There is no strict 211 The LOSC has no express provisions relating to loss of rights and 213 LOSC, Art. 121(2). status as a result of physical changes. 214 LOSC, Art. 121(1). 212 See, Freestone, D., and C. Schofield (2021). 215 LOSC, Art. 121(3). International Law Aspects of Sea Level Rise | 31 requirement that they be of particular size or any height However, the Tribunal insisted that either of these above sea level. tests can be satisfied – a disjunctive interpretation – but did observe that “economic activity is carried out Given the importance of this issue in drawing baselines by humans and that humans will rarely inhabit areas and measuring extensive maritime entitlements, there where no economic activity or livelihood is possible.”222 has been very little consideration or interpretation Furthermore, the Tribunal ruled that the economic of Article 121 by international courts and tribunals. activity must not be purely exploitative; the feature However, in the South China Sea Arbitration,216 one must sustain an activity “of its own.”223 of the complaints leveled by the Philippines against China was that China appeared to be trying to convert For this present discussion it is important that the Tri- small insular features, mostly coral atolls, into islands bunal also took the view that the assessment of the sta- by excavating the surrounding reefs to generate infill tus of a feature is to be determined on the basis of its to raise the ground level and to increase their land “natural capacity, that is, without external additions or area, on which airstrips and what appeared to be modifications intended to increase its capacity” to sup- military installations were then built. The Award in port human habitation or an economic life of its own.224 that case contained the first detailed judicial analysis This would confirm that reclamation activities, includ- of Article 121.217 It is important to note that China did ing the large-scale island building and reclamation ac- not participate in those proceedings and has refused tivities undertaken by China, and to a lesser extent by to accept the outcome of the resulting Award,218 other States, in the South China Sea, cannot transform but it nevertheless provides a number of important a feature that was a rock within the meaning of Article indications as to how future courts or tribunals may 121(3) LOSC in its natural condition into a fully entitled approach these issues. island.225 However, enhancing an existing fully entitled island to “maintain” its habitability does not compro- The Tribunal devoted a great deal of attention to the mise its ability to maintain the full suite of maritime provisions of Article 121(3) that deal with “rocks” and zones – although it may, depending on the amount of ruled that the term was not meant to apply only to features work needed, be prohibitively expensive.226 “composed of solid rock,”219 otherwise “absurd results” would occur.220 In the past, there has been considerable The Tribunal Award also stated that while an LTE discussion as to whether both the requirements of cannot be converted through artificial intervention “human habitation or economic life of its own” are into a rock nor a rock into a fully entitled island within needed to be satisfied for an insular formation to qualify the meaning of Article 121,227 nevertheless an LTE may as an island with full maritime zones.221 also have an artificial island superimposed on top of it.228 However, it is a breach of international law, the 216 South China Sea Arbitration, Philippines v. China, Award, PCA Case No 2013-19, ICGJ 495 (PCA 2016), 12th July 2016, Permanent Court of Boundaries Research Unit, Durham University, pp. 195-210, at 197-8. Arbitration [PCA]. 222 South China Sea Arbitration, at para. 497. 217 This following discussion draws heavily on Freestone, D., and C. 223 Ibid., at para. 543. So extractive activities such a guano mining Schofield (2021). would not count as having an economic life of their own. 218 Statement of the Ministry of Foreign Affairs of the People’s Republic 224 Ibid., at para. 542. of China on the Award of 12 July 2016 of the Arbitral Tribunal in 225 Ibid., at para. 508. the South China Sea Arbitration Established at the Request of the 226 Ibid., at para. 511. Such an enhancement would, of course, need Republic of the Philippines (July 12, 2016) available at: https://www. to be carried out in an environmentally acceptable way respecting fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm the obligations to “protect and preserve the marine environment” 219 South China Sea Arbitration, at para. 540. in Art. 192 and “rare and fragile ecosystems” as well as the “habitats 220 Ibid., at para. 481. Specifically, non-rocky features would generate of depleted, threatened or endangered species,” including giant EEZ and continental shelf rights whereas features composed of solid clams and as well as species of turtles, corals and fish, in Art. 194(5) rock were denied such rights, regardless of whether they were capable LOSC. This can really only be done, said the Tribunal in a nod to the of sustaining human habitation or an economic life of their own. jurisprudence of the ICJ, after an appropriate Environmental Impact 221 See, Freestone, D. 1990. “Maritime Boundary Delimitation in the Assessment as required by Art. 206 LOSC. Eastern Caribbean” in, International Boundaries and Boundary Conflict 227 Ibid., at para. 508. Resolution. Proceedings of the 1989 Conference, International 228 Ibid., at para. 1037. 32 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Tribunal ruled, to destroy valuable coral reefs and other However, the Tribunal did not have to consider the fragile ecosystems in the process, especially where situation which is of direct concern here – which may environmental impact assessments (EIAs) have not be the one brought on by sea level rise. Namely, the been undertaken, or, if they have, not been shared with situation of a fully entitled island able to support neighboring States as required under the LOSC.229 human habitation and an economic life of its own that loses so much land area, or is so contaminated The Tribunal was also “conscious that remote island by saltwater intrusion, that it can no longer sustain a populations often make use of a number of islands, human population. Does that feature then become a sometimes spread over significant distances, for “rock” for these purposes and therefore lose its maritime sustenance and livelihoods.”230 The Tribunal specifically entitlements, that is, its EEZ and continental shelf? ruled that in a situation where a local community is only able to sustain itself by utilizing a range of Unfortunately, there is no clear legal answer to that maritime features, it would not “fail to inhabit a feature question. It is an unprecedented situation and one on the grounds that its habitation is not sustained by a which no international judicial body has ever had to single feature.”231 Nor conversely would that group be consider. The following sections discuss how a State may “disabled from recognizing that such features possess seek to defend its entitlements by physical means or by an economic life of their own merely because not all the other means. But the legal arguments still continue as features are directly inhabited.”232 Further, concerning to whether baselines are indeed always “ambulatory” the determination of “human habitation” under Article and must move with physical changes to the coast 121(3), the Tribunal found, without determining an and landform. The ILA Sea Level Rise Committee arbitrary number that the community involved “need thought that existing maritime entitlements should be not necessarily be large” and that, for example, “in maintained – but this is still very much an open issue.237 remote atolls a few individuals or family groups could well suffice.”233 The Tribunal also found that periodic 3. What Are the Legal Implications—for rather than permanent habitation by nomadic people the Outer Limits of a State’s Maritime “could also constitute habitation”234 as would use by Zones and Maritime Boundaries With populations that are sustaining themselves through Other States, and for the Rights of a “network” or “constellation” of related maritime Third States and Their Nationals—of features.235 This view – which is not directly part of Changes in Coastal Baselines From the issues involved in the Award and so obiter dicta – Which Maritime Zones are Delineated which in any event is only binding on the two States or Delimited? party to the Arbitration236 – provides a very welcome perspective for many communities, particularly in low- lying islands in the Pacific, and elsewhere, threatened It is not clear what the legal effect is of physical by sea level changes. It suggests that if some individual changes to coastal baselines that have been used as islands in an archipelago are or become uninhabitable, the basis for maritime boundary delimitation treaties this would not necessarily mean that the maritime or judicial decisions, even if the result is to extend the entitlements of the whole archipelago would be lost. delimitation lines beyond 200 nm from the coast. 229 Ibid., at paras. 966 and 989–991. See also, Arts. 205–206, LOSC. Possible Impacts on Outer Limits of Maritime Ibid., at para. 547. Entitlements 230 231 Ibid., at para. 544. 232 Ibid. The coastal baseline plays a crucial role in the 233 Ibid., at para. 542. 234 Ibid. measurement of all of a State’s maritime zones.238 As 235 Ibid., at para. 544. 236 A tribunal’s incidental remarks (i.e., obiter dicta) are remarks that are not essential to resolve the case and therefore not binding. They 237 ILA Sea Level Rise Committee 2018 Report, pp. 30-32. may carry, however, some value for future cases. 238 From this baseline can be measured the State’s 12 nm territorial sea International Law Aspects of Sea Level Rise | 33 mentioned above, the LOSC requires that an EEZ “shall for vessels navigating there to determine whether they not extend beyond 200 [nm] from the baselines from were in the EEZ or the high seas, creating opportunities which the breadth of the territorial sea is measured.”239 for confusion and possible conflicts. If a State has claimed an EEZ, then the area beyond the EEZ limit (usually 200 nm) is high seas – where the The situation with the continental shelf is slightly established freedoms of the high seas apply.240 These different for some States. It depends on whether a State include, subject to limitations set out in the LOSC, is lucky enough to have a geomorphological continental freedom of navigation, overflight, laying of submarine shelf that extends beyond 200 nm from its coast. A cables, construction of artificial islands/installations, State with little or no natural continental shelf – such fishing, and scientific research.241 as the Pacific Coast States of South America – is still entitled to the resources of the seabed and ocean floor, The LOSC also states that “No State may validly purport including sedentary species, out to the 200 nm limit, to subject any part of the high seas to its sovereignty.”242 again measured from the coastal baseline.245 Hence if This means that if a coastal State tries to claim an EEZ sea level rise causes the baseline to retreat, then the wider than 200 nm, then that claim is not valid under extent of those States’ continental shelf entitlements international law and other States (third States) are not will also move landward – in step with the EEZ. obliged to respect that claim. However, those States that have continental margins Hence if a coastal baseline is affected by sea level rise that extend beyond 200 nm from their baselines are and moves landward, as a result of coastal erosion or the entitled to what is known as an “extended continental inundation of offshore insular features which had been shelf” out to the physical edge of their continental utilized to push coastal baselines seaward as permitted margin. The water column above those extended by LOSC, then, under an ambulatory approach,243 the continental shelf areas is high seas. In such situations, outer limits of the maritime zones will also be affected the LOSC sets out the complex formulae for calculating and move landward. This would mean that the outer where the edge of the continental margin is.246 Here areas of the previously claimed EEZ might now become again, the position of the baseline does have a role for high seas, where international law would normally some of the calculations.247 Once the coastal State has allow the vessels of third States the freedoms of the calculated the outer limit of its extended shelf beyond high seas, including fishing.244 Once the validity of that 200 nm, it is obliged to submit that information to the outer limit has been disputed, it would also be difficult CLCS.248 The CLCS, which is made up of 21 experts in the fields of geology, geophysics, or hydrography,249 reviews the outer boundary of which is a line “every point of which is [twelves that information and makes “recommendations” as to miles] from the nearest point of the baseline”. The contiguous zone whether or not they have been calculated properly in stretches a further 12 nm seaward. In addition, the coastal State is entitled to claim an [EEZ]out to 200 nm which gives it sovereign rights accordance with the LOSC requirements. In practice, (although not full sovereignty) over the resources of the seabed and these recommendations often mean that the coastal the superjacent waters. If it is fortunate enough to have a continently shelf that extends beyond 200 nm from the baseline it is also – subject State has to re-calculate its claim in ways in which the to certain limitations – entitled to sovereign rights over those seabed CLCS indicates. The recommendations of the CLCS resource of that shelf right to the outer edge of the continental margin. are not technically binding per se, but in order for the 239 LOSC, Art. 57. 240 LOSC, Art. 86. coastal State’s shelf limits to be “final and binding” on 241 LOSC, Art. 87(2) – but there are important limitations on the all States, they must be based on the recommendations exercise of these freedoms, including the obligation to pay “due regard” to the interests of other State in the exercise of them. See, Freestone, D. 2009. “Modern Principles of High Seas Governance: 245 LOSC, Art. 76(1). The Legal Underpinnings”, Environmental Policy and Law, Vol. 39(1), 246 LOSC, Art. 76(4) - (6). pp. 44-49. 247 For instance, LOSC Art. 76(5) allows a line to be drawn in one 242 LOSC, Art. 88. of two ways: one of which is 350 nm from the baseline. Not many 243 See the discussion of this above in Part III(1). continental shelves extend that far, however. 244 Subject always, of course, to regional fishery arrangements that 248 LOSC, Art. 76(8). may be applicable. 249 LOSC, Annex II Art 2. 34 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Figure 7. Impacts on maritime zone of receding baselines s area me riti ma of oss al l enti Pot Source: Arsana, A., and C. Schofield. 2014. TALOS Manual. Note: This figure shows the impacts of receding baselines on maritime zones. As the coastline recedes it changes shape, leaving outcrops as islands or LTEs. The outer edge of the EEZ recedes also leaving areas beyond 200 nm, previously within the EEZ that become high seas. Figure 8. Maritime zones nautical mile (nm) Continuous To a maximum of 350 nm from the coast/ Zone baseline or 100 nm beyond the 2,500 meter isobath, whichever is greatest Coast/Baseline Limited law-enforcement 12 nm zone 24 nm 200 nm Exclusive Economic Zone The High Seas Territorial Sea Extended Continental Shelf Sovereignty extends to the water column, to the airspace above, and to the seabed and subsoil Continental Shelf Deep Seabed Area Sovereign rights over Sovereign rights over natural resources of the Sovereignty water column and the seabed and subsoil natural resources of the seabed and subsoil Source: Image courtesy of the NOAA Office of Ocean Exploration and Research, available at: https://oceanexplorer.noaa.gov/ okeanos/explorations/ex1810/ecs/welcome.html Note: The position of the baseline of the extended continental shelf has a role for some of the calculations. International Law Aspects of Sea Level Rise | 35 of the CLCS. If the coastal State were to seek to establish claim beyond such a line, in the absence of agreement, such limits without relying on the recommendations historical title or other special circumstances.253 For of the CLCS, then they would not be binding, and third other zones, such as the EEZ or continental shelf, these States could dispute those unilateral limits. delimitation lines must be negotiated by “agreement on the basis of international law […] in order to achieve The main objective of this complex process is to ensure an equitable solution.”254 some degree of international technical oversight of the way that coastal States calculate their extended shelf These boundary delimitation agreements, which are claims – because the ocean floor beyond those national treaties under international law, are only binding on continental shelf limits is termed “the Area” and is the parties to the agreement. However, provided that part of the “common heritage of mankind.”250 National they are in compliance with international law and do claims, which are in excess of what the LOSC permits, not extend beyond the areas which international law encroach on that common heritage, so only claims that allows the coastal States to claim (for example, 200 nm meet the LOSC criteria, as evaluated by the CLCS, need for EEZ claims), then they are opposable to third States to be recognized by other States. To achieve that, the who must respect their provisions. text of Article 76(8) LOSC provides they are “final and binding.” The implication is that this is forever. There However, if coastal baselines are indeed ambulatory is certainly no procedure for re-evaluating them. There as suggested by the ILA Baseline Committee in 2012, has never been any judicial interpretation of this issue then changes brought about by sea level rise might but it seems that, even if the coastal State’s baselines well cause some previously unprecedented situations. were subsequently to change as a result of sea level rise, For example, a situation which has not to date been the coastal State would still be entitled to maintain its subject to judicial interpretation, arises if the distance full entitlement to the extended continental shelf between two opposite States is about 400 nm and the which has been settled by that process. States have agreed an equidistance line to delimit the EEZs between them.255 If, as a result of sea level rise, Possible Impacts on Maritime Boundary one or both of the coastal States loses offshore features Treaties and their coastlines recede so that they are now, for Coastal baselines are also used as the basis for the cal- example, 410 nm apart, then there would be a 10 nm culation or negotiation of maritime boundaries with strip of what would normally be high seas between adjacent and opposite states. Adjacent boundaries them. The LOSC only allows a State to claim a 200 nm are not as common in the Pacific as elsewhere in the EEZ. Indeed, Article 89 specifically provides that “[N] world,251 but the preliminary calculation of a maritime o State may validly purport to subject any part of the boundary between adjacent states, as with opposite high seas to its sovereignty.” Yet the existing maritime States, is usually based on the construction of a “me- boundary treaty – which is still binding on the opposing dian line, every point of which is equidistant from the State parties – provides that their outer boundary is the nearest point of the baselines from which the breadth treaty delimitation line that is now more than 200 nm of the territorial seas of each of the two States is mea- from their coasts. sured.”252 For the delimitation of the territorial sea, there is a presumption that neither side is entitled to 253 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. Reports 1969, p. 3, 20 February 1969. 250 LOSC, Art. 136 and see the whole regime of Part XII LOSC. 254 See, LOSC, Art. 74 (for EEZ), and Art. 83 (for continental shelf). 251 It is rare for island or archipelagic States to have adjacent 255 It is rare to have an agreement that simply agrees the principle boundaries, but it does happen where parts of islands belong to without detailing all co-ordinates of the line – but it has happened, different States – such as the Indonesia’s boundaries with Borneo, see, e.g., two treaties negotiated by France in relation to Wallis and Papua New Guinea, and with Timor Leste. Futuna, with Tonga in 1980, and with Tuvalu, in 1987. See, ILA Sea 252 LOSC, Art. 15. Level Rise Committee 2018 Report, pp. 22-23. 36 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Figure 9. (i) Two States (State A and State B) with an opposite boundary dividing exclusive economic zones and (ii) Coastlines retreat: New High Seas area is created (from left to right) State A State A Baseline A Baseline A 12 miles Territorial Sea A 12 miles Territorial Sea A Exclusive Economic Zone A 200 miles Exclusive Economic Zone A <200 miles Boundary <200 miles High Seas Exclusive Economic Zone B 200 miles 12 miles Exclusive Economic Zone B Territorial Sea B 12 miles Territorial Sea B Baseline B State B Baseline B State B Source: Adapted from Lisztwan, J. 2012. “Stability of Maritime Boundary Agreements”, Yale Journal of International Law, Vol. 37. The same problem would arise if the maritime taken by third States as definitive. If the coastlines or boundary agreement did not designate an equidistance parts of the coastlines, which were used by the tribunal line but a more complex line. To the extent to which in determining an equitable solution, subsequently that treaty now purported to extend the coastal State’s move landward as a result of changes brought about rights beyond 200 nm, it would still be binding on the by sea level rise, so that the boundary decided by the other State party to the treaty.256 However two States tribunal is now more than 200 nm from the coast, does cannot bilaterally agree to exclude third States from this invalidate the tribunal’s decision? an area of the high seas, so it could be argued that as a result of the physical changes that have taken place in None of these situations has yet to arise, so the legal the baselines, the treaty is now contrary to an express situation is untested. On the one hand, the LOSC provision of Article 89 of LOSC. Does this mean that seems to suggest that third States are not required to it might be argued that it would not be binding on, or recognize a coastal State’s claim to sovereign rights over enforceable against, third States? This again is a totally areas further than 200 nm from baselines. On the other novel situation for international law – and if this issue hand, the only case where an international tribunal has were to go to court, then an international tribunal discussed such an issue in relation to climate change seems likely to take the view expressed in a number of and its possible impacts, is the 2014 case regarding the other cases, discussed below, that the most important Bay of Bengal, Bangladesh v India, in which the Arbitral principle involved is the certainty and stability of Tribunal in its Award noted that: agreed maritime boundary agreements. Maritime delimitations, like land boundaries, must be The similar quandary might be faced in a situation stable and definitive to ensure a peaceful relationship where, as a result of a boundary dispute, a judicial between the States concerned in the long term […] In tribunal has determined a boundary between two the view of the Tribunal, neither the prospect of climate adjacent or opposite States. That judgment is technically change nor its possible effects can jeopardize the large only binding on the parties to the litigation but is usually number of settled maritime boundaries throughout 256 Because of the principle that treaties are only legally binding on the parties. International Law Aspects of Sea Level Rise | 37 the world. This applies equally to maritime boundaries a fundamental change of circumstances. Each will be agreed between States and to those established considered in turn. through international adjudication.257 (i) Can a change in coastal baselines constitute a It is important to note that this was not a part of the fundamental change of circumstances for a maritime Tribunal’s actual decision – simply its incidental remarks boundary treaty? (or obiter dicta)258 – so this is not technically a binding judicial decision on the issue. But if, as this Tribunal The answer to this question has never been decided suggests, the principles of stability and certainty by any international court or tribunal, but the burden of agreed and settled boundaries is an overriding of proof on the State seeking to argue such a case is consideration, then this might cast some doubt on very high and to date it has never been attempted. the issue of whether coastal baselines and maritime The 1969 Vienna Convention on the Law of Treaties, zone limits are always ambulatory, as discussed above, which largely represents customary international or whether maritime boundary treaties which were law, generally binding on all States, lays down the legitimate when they were agreed, or settled by a judicial requirements for such proof.261 body, should in any event continue to be regarded as binding. At this point, although there is no clear answer The State arguing this would first need to show that to this question, the debates at the UN Sixth Committee there has been a change in the circumstances which discussed above indicated that States universally took applied when the treaty was concluded “which was not the view that, in the interests of stability and certainty, foreseen by the parties.”262 A change of coastal baselines such boundaries once delimited by treaty or judicial from which delimitation lines were measured might in decision were not challengeable.259 principle constitute such a change in circumstances but it would be much more difficult to show that sea level Fundamental Change of Circumstances rise-driven changes were not foreseen; at least for any This leads to the next issue, about which there has treaty concluded in the last thirty or more years since been a lot of discussion in the scholarly literature, the phenomenon of climate change and sea level rise has namely whether a State which is a party to a maritime been known. The State seeking to argue such a case must boundary treaty can seek to set it aside on the basis that also prove that the existence of those circumstances changes in coastline baselines brought about by sea constituted an essential basis of the consent of the level rise constitute a change in circumstances which parties to be bound by the treaty, and that moreover, the fundamentally undermines the basis on which that effect of the change is “radically to transform the extent State agreed to the treaty.260 of obligations still to be performed under the treaty.” 263 There are two basic questions involved. The first is (ii) Can maritime boundary treaties ever be set aside on largely factual – whether it is possible that a sea level the grounds of a fundamental change of circumstances? rise-driven change in coastal baselines constitutes a fundamental change. The second is a technical legal This is another legal issue which has also never been issue, namely whether a maritime boundary treaty is a thoroughly tested before an international tribunal,264 type of treaty which can be set aside on the grounds of but on which there has been a great deal of scholarly 257 The Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. 261 United Nations, Vienna Convention on the Law of Treaties (adopted 23 India), PCA Case 2010–16, Award of 7 July 2014, para. 216-217. See also May 1969, entered into force 27 January 1980) 1155 UNTS 331 (“1969 the Aegean Sea case below. Vienna Convention”). 258 See note 231 above. 262 1969 Vienna Convention, Art. 62(1). 259 See, Vidas, D., and D. Freestone, above n 212. 263 1969 Vienna Convention, Art. 62(1)(a) and (b). 260 This is discussed at some length by the ILA Sea level Rise 264 Although there are remarks from the ICJ in 1978 and a tribunal in Committee in its 2018 Report, pp. 19-25. 2014. 38 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise writing.265 A response to this question depends on an in particular.269 This also seems to be the position of the interpretation of the 1969 Vienna Convention. The International Court of Justice which, in the 1978 Aegean 1969 Vienna Convention specifically exempts two Sea Case between Greece and Turkey regarding the classes of treaties from being set aside on the grounds delimitation of the Continental Shelf, did remark that: of fundamental change of circumstances of which one is that “the treaty establishes a boundary.”266 Whether it is a land frontier or a boundary line in the continental shelf that is in question, the process is The controversial legal issue is that a treaty must be essentially the same, and inevitably involves the same interpreted in context, and it has been suggested that element of stability and permanence, and is subject the States who negotiated the 1969 Vienna Convention to the rule excluding boundary agreements from were not considering maritime boundaries at the fundamental change of circumstances.270 time, but only land boundaries. Although the issue has generated some controversy among scholars,267 So, in conclusion, this is again an unprecedented the ILA Sea Level Rise Committee in its 2018 detailed situation, so it is not possible to predict with any review of this issue, having cited the view of the certainty how an international court or tribunal might Arbitral Tribunal in the Bay of Bengal case (above),268 react to some of the issues discussed above. It does did conclude that there is a very strong community seem likely however, that in cases of future disputes interest in guaranteeing the certainty and stability of regarding agreed maritime boundary treaties or treaties in general and of agreed maritime boundaries boundaries settled by international tribunals, that there will be a strong presumption of their continuing 265 Those who appear to regard maritime boundaries as included validity.271 This view is supported by the ILC Study within the provisions of Article 62(2), so as not to contemplate the Group in its 2020 First Issues Paper,272 and by the views use of fundamental change of circumstances, include the ICJ in an obiter dicta in the Aegean Sea Continental Shelf (Greece v. Turkey), expressed by States in debates within the UN Sixth [1978] I.C.J. Reports 3, para 85 (19 December 1978); Soons, A. H. Committee.273 A. 1990. ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries”, Netherlands International Law Review, Vol. 37, pp. 207– 232, at 228; Freestone, D., and J. Pethick., “Sea Level Rise and Maritime 269 Ibid., p. 21. Boundaries: International Implications of Impacts and Responses” 270 See, Aegean Sea Continental Shelf Case, para 85. As the Court found in, Blake, G. (ed). 1994. International Boundaries: Fresh Perspectives, that it did not have jurisdiction to hear the case, these comments Vol. 5, Routledge, pp. 73–90, at 78; Schofield, C., “The Trouble with are not part of a binding judgement, and regarded as obiter dicta Islands: The Definition and Role of lslands and Rocks in Maritime (incidental remarks). Boundary Delimitation” in, Hong, S. Y., and J. M. Van Dyke, pp. 19- 271 It is always open to State to renegotiate their boundaries – as has 22; and, after a detailed examination of the travaux preparatoires, been done in a number of situations with land boundaries where the Lisztwan, J. 2012. “Stability of Maritime Boundary Agreements”, Yale melting of glaciers which mark mountain boundaries has created Journal of International Law, Vol. 37, p. 186. Those who argue that the uncertainty. See recent state practice regarding “mobile” land issue may still be an open issue include Caron, D. D., “Climate Change, boundaries between Italy and Austria, and Italy and Switzerland Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: affected by the melting of glaciers. The exchange of diplomatic A Proposal to Avoid Conflict”, in, Hong, S. Y., and J. M. Van Dyke notes between Italy and Switzerland of 23 and 26 May 2008 first (eds). 2009. Maritime Boundary Disputes, Settlement Processes, and formalizes the problem of the mobile border, to move with the melting the Law of the Sea, Brill/Martinus Nijhoff, (while not supporting the of the glacier. It came into force on 10 February 2010, available at: position), Lusthaus, J. 2010. “Shifting Sands: Sea Level Rise, Maritime https://www.admin.ch/opc/fr/classified-compilation/20091908/ Boundaries and Inter-state Conflict”, Politics Vol. 30, pp. 115–118; index.html. For the Italian Law of 29 May 2009 (no. 72), approving and Arnadottir, S. 2016. “Termination of Maritime Boundaries the exchanged notes into internal law, see: http://www.normattiva. Due to a Fundamental Change of Circumstances”, Utrecht Journal it/uri-res/N2Ls?urn:nir:stato:legge:2009-05-29;72!vig= Cited in ILA of International and European Law Vol. 32, p. 94 (which includes a 2018 Report at p. 23. discussion of arguments presented by Lisztwan); Kaye, S. 2017. “The 272 The ILC Study Group’s First Issues Paper takes a more definitive Law of the Sea Convention and Sea Level Rise after the South China view: “Sea-level rise cannot be invoked in accordance with article 62, Sea Arbitration”, International Law Studies, Vol. 93, p. 439. paragraph 2, of the 1969 Vienna Convention on the Law of Treaties, 266 The second exception is not relevant here: ‘(b) if the fundamental as a fundamental change of circumstances for terminating or change is the result of a breach by the party invoking it either of an withdrawing from a treaty which established a maritime boundary, obligation under the treaty or of any other international obligation since maritime boundaries enjoy the same regime of stability as any owed to any other party to the treaty’. other boundaries. The international jurisprudence is clear in this 267 See literature above at note 257. respect.” See, ILC (28 February 2020), A/CN.4/740, at para 141(c). 268 See, the ILA Sea Level Rise Committee 2018 Report, pp. 19-25. 273 See, Vidas, D., and D. Freestone, above n 212. International Law Aspects of Sea Level Rise | 39 4. How Might a State Defend its drying reefs which are unable to grow at sufficient pace Existing Maritime Entitlements in to keep ahead of sea level rise may no longer be able to Accordance with International Law? be used as basepoints. It is the loss of these offshore insular features in the short to medium term which are likely to have the biggest impacts on the measurement of baselines, in terms of distances lost, and hence the Coastal States are entitled to use a number of physical outer edges of a State’s maritime entitlements. means, including artificial islands, to defend their coastlines and coastal basepoints. They may also seek Under international law there is nothing to prevent to argue at the legal and policy level that they are not the coastal State from physically defending these obliged to amend their existing maritime entitlements important assets, although this may only be a short- in the face of sea level rise. or medium-term solution. The Tribunal in the South China Sea Arbitration held that enhancing an existing The previous sections have looked at the impacts fully entitled island to maintain its habitability did that sea level rise is predicted to have on coastal not compromise its ability to maintain the full suite baselines and archipelagic baselines and on the of maritime zones.275 Although a totally artificial delineation and delimitation of a State’s maritime island does not generate any maritime zones around zones, including maritime boundary agreements. As it,276 defending an existing island or other feature discussed above also, the question of whether coastal that generates a territorial sea or an EEZ to prevent baselines are ambulatory under international law it disappearing is permitted by international law, – so that they must be regularly re-charted to reflect although it may be prohibitively expensive.277 changes brought about by sea level rise – is still not entirely settled and can probably only be finally At one end of the scale, it will be recalled that simply resolved by the means discussed further below. At placing a lighthouse or other artificial structure that the same time, the predominant view at present is that physical movements of baselines as a result of of its own, see, LOSC, Art. 121(3). sea level rise impacts will change the coastal State’s 275 South China Sea Award, at para. 511. Such an enhancement would, entitlements to the zones measured from them. There of course, need to be carried out in an environmentally acceptable way respecting the obligations to “protect and preserve the marine are two basic approaches to defending entitlements. environment” in Art. 192, LOSC and “rare and fragile ecosystems” as The first is by physical means – building sea defenses well as the “habitats of depleted, threatened or endangered species,” including giant clams and as well as species of turtles, corals and and strategically placed installations, and maybe fish, in Art. 194(5), LOSC. This can really only be done, said the even raising island elevations. The second is by Tribunal in a reference to the case law of the ICJ, after an appropriate utilizing the existing international law framework Environmental Impact Assessment, as required by Art. 206, LOSC. 276 The coastal State does have “exclusive jurisdiction” over artificial and political institutions to argue for the international islands in its EEZ and may establish a “reasonable safety zone” that recognition of these existing entitlements as a matter “shall not exceed 500 meters around them.” Art. 60, LOSC. 277 For an extreme example, Japan is reported to have spent over of international law or policy, despite the impacts of US$200 million in the late 1980s on the construction of sea defenses sea level rise. for its southernmost insular feature, Okinotorishima, from which it claims EEZ and continental shelf rights. Further, in 2016, it was reported that Japan was planning to spend a further ¥13 billion Physical Defenses (over US$100 million) to replace the existing elevated platform at Okinotorishima and to build additional facilities including a It is clear that in the early onset of these impacts, it will lighthouse and pier. See, Jenkins, N. 2016. “Japan is spending $107 be the most vulnerable features which will be lost; LTEs million to rebuild a tiny Pacific Island,” Time, available online: may be inundated, low-lying islands may disappear or https://time.com/4205570/okinotorishima-japan-maritime-claims/; and, Ryall, J. 2016. “Japan spends millions building structures on become “rocks” for the purposes of the LOSC,274 and uninhabited rocks 1,740 km from Tokyo to mark its territory,” South China Morning Post, available online: https://www.scmp.com/news/ asia/east-asia/article/1908706/japan-spends-millions-building- 274 It becomes unable to sustain human habitation or an economic life structures-uninhabited-rocks-1740 40 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise is permanently above sea level on an LTE will allow that An example is provided by Pulau Nipa (or Nipah), that LTE to be used as a basepoint for a straight baseline,278 is one of many small islands in the Singapore Strait.283 or for an archipelagic baseline.279 This does not have to It had been reduced by sand mining to one hectare but be a sophisticated building; just a framework or a single was restored in 2004 to about 60 hectares, well above pole with solar powered light would be sufficient. sea level.284 It has remained as a part of Indonesia’s archipelagic baselines system,285 and also serves as Figure 10. Low tide elevation with navigational aid a key basepoint for the construction of the western installation extension of the Indonesia–Singapore territorial sea boundary.286 In the South China Sea Arbitration, the Arbitral Tribunal took the view that it is not possible to change a feature which is naturally an LTE or a “rock” into an island – so as to generate a full suite of maritime zones.287 The LOSC does establish a regime for the construction of artificial islands, installations, and structures in the EEZ,288 or on the continental shelf,289 where the coastal State has the “exclusive right to construct and to authorize and regulate” them. There is no specific provision relating to the construction of such items in internal waters, or the territorial sea, as this is an established function of Source: CaribbeanEnv, April 23, 2013. the sovereignty which coastal States possess in those areas. But none of these structures may generate any of the normal suite of maritime zones.290 The provisions relating to ports also indicate that the outermost permanent harbor works, which are a part Some of the world’s largest artificial islands are in of a harbor system, can also be regarded as part of the the Gulf in Dubai (UAE), designed as high-end tourist coastline that can be extended; this would include attractions. This approach has also been taken in breakwaters and groynes linked to the coast, but not the Maldives, where a number of artificial islands – offshore artificial structures and islands.280 283 For details and a map, see, Freestone, D., and C. Schofield (2021). At the other end of the scale, international law permits 284 Ibid., p. 40. a coastal State to extend land mass by land reclamation 285 Providing basepoints TR.190 and TR.190A. activities, provided that they are conducted in an 286 See, Schofield, C., T. L. McDorman, and A. Arsana, “Treaty between the Republic of Indonesia and the Republic of Singapore relating to environmentally sound way and pay due regard to the delimitation of the Territorial Seas of the Two Countries in the the interest of other States,281 and to rebuild or elevate Eastern Part of the Strait of Singapore” in, Lathrop, C., (ed). 2016. The International Maritime Boundaries of the World, Vol. VII, Leiden/ existing islands to allow them to retain their natural Boston: American Society for International Law (ASIL)/Martinus entitlements, again in an environmentally sustainable Nijhoff, pp. 4,813-4,824; and, Badan Informasi Geospasial [Agency way.282 for Geospatial Information] (BIG), Peta Negara Kesatuan Republik Indonesia [Map of the Unitary State of the Republic of Indonesia], (Cibinong, 2017). 287 See, South China Sea Award, at paras 621–22. It also highlighted 278 LOSC, Art. 7(4). the need for the preparation of proper environmental impact 279 LOSC, Art. 47(4). assessments for such work to ensure that fragile ecosystems – like 280 LOSC, Art. 11. coral reefs – are not damaged or adversely impacted, at para 988. 281 See, Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks 288 LOSC, Art. 60. and South Ledge (Malaysia v Singapore), Judgment, Merits [2008] I.C.J. 289 LOSC, Art. 80. GL No. 130 (23 May 2008). 290 Although a 50 m “safety zone” may be placed around them, LOSC, 282 See, South China Sea Award, at para 511. Art. 60. International Law Aspects of Sea Level Rise | 41 designed to provide new safe space for high-end resorts Figure 11. Major land reclamation in Singapore – are under construction. The Maldives have also built a large artificial island, Hulhumalé, close to the capital, Malé, on which a new city is being constructed.291 It is reported to cover 400 hectares, rising to a height of 3 meters above current sea level – featuring a hospital, schools, government buildings, and housing for 40,000 people – and to have cost “hundreds of millions of dollars.”292 The objective was to provide more land area for safe human habitation rather than to generate new maritime zones – for it is within an existing lagoon.293 The Maldives are also a pioneer in the development of floating homes within the lagoon of one of its existing atolls.294 Artificial islands in the EEZ and on the continental shelf do not generate more Source: © Koon Holdings Limited. than a safety zone of 50 m maximum,295 but Hulhumalé is already within the internal waters of the Maldives. These small islands States have made the smallest contribution to the GHG emissions that are causing International Law and Policy Approaches the phenomenon. There is, therefore, a strong moral The fact that baselines and maritime zones limits justice argument that the international community may be “ambulatory” and seem highly likely to retreat should consider taking some action to protect them landward in the face of sea level rise poses both a from some of the legal implications of these changes. physical challenge and a legal and policy challenge. One approach would be to reverse the apparent It means that low-lying island States stand to lose not presumption of the ambulatory nature of coastal only parts of their land but also parts of their maritime baselines and maritime zone entitlements. So how zones which are measured from their coastal and might that be done? archipelagic baselines, perhaps disproportionately. A pragmatic strategy has already been implemented 291 As Freestone and Schofield (2021) comment: “This artificial in the Pacific Region where the Pacific Boundaries island has been created in a manner reminiscent of that employed Project has been running for more than a decade to by China in the South China Sea and, indeed, this development is expedite the delineation of national maritime zones being largely financed by Chinese sovereign guaranteed loans to the Maldivian State-owned company responsible for the development of and the agreement of outstanding maritime bound- Hulhumalé”. See, Dauenhauer, N. J. 2017. “On the front line of climate aries between the States of the region. The basis for change as Maldives fights rising seas”, New Scientist. 292 See, Allen, E. 2018. “Climate Change and Disappearing Island this is the 2010 Framework for a Pacific Oceanscape,296 States: Pursuing Remedial Territory”, Brill Open Law, pp. 1-23, at 5. which urges PICTs “in their national interest”, to de- 293 The Maldives were also reported in 2012 to have commissioned posit with the UN coordinates and charts delineating a Dutch engineer to design floating islands as “life-boats” for the population in the case of extreme events. See, Black, D. 2012. “Floating islands to the rescue in the Maldives”, The Star, available online: https:// www.thestar.com/news/world/2012/08/23/floating_islands_to_the_ 296 See, Pratt, C., and H. Govan. 2010. Our Sea of Islands, Our rescue_in_the_maldives.html; and, “Artificial Islands Concept for Livelihoods, Our Oceania. Framework for A Pacific Oceanscape: a the Maldives”, available online: http://futuristicnews.com/artificial- catalyst for implementation of ocean policy, Pacific Islands Forum islands-concept-for-the-maldives/ Secretariat, available at: http://www.forumsec.org/wp-content/ 294 See Maldives Floating City, available online: https:// uploads/2018/03/Framework-for-a-Pacific-Oceanscape-2010.pdf maldivesfloatingcity.com/. Discussed also in, Schofield, C., D. Strategic Priority 1 concerns jurisdictional rights and responsibilities Freestone, and D. Çiçek. (forthcoming) “Reflections on Coastal State See also useful background and summary of the Pacific Boundaries Response Options in an Era of Sea Level Rise: Practical Challenges Project provided by Frost, R., P, Hibberd, et al. 2016. “Redrawing the and Legal Consequences”. map of the Pacific”, Marine Policy, available online: https://www. 295 LOSC, Art. 60. sciencedirect.com/journal/marine-policy/articles-in-press. 42 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Figure 12. The status of Pacific regional maritime boundaries Source: SPC, Oceans and Maritime Programme, Geoscience, Energy & Maritime Division (March 2023). their maritime zones, with as much detail as possi- As discussed above, a number of international ble.297 It also mandates a “regional effort to fix base- tribunals have commented that the maintenance of the lines and maritime boundaries to ensure the impact integrity of international treaties – particularly those of climate change and sea level rise does not result establishing boundaries – is a fundamental part of the in reduced jurisdiction of PICTs.”298 The program has system for the maintenance of international peace and had considerable success. Of the 73 potential mar- security.300 itime boundaries in the region, only 13 remain to be finalized.299 The longer-term agenda of the 2010 Strategy is a united regional effort that establishes baselines and maritime 297 See, the Framework, in Pratt, C., and H. Govan (2010), p. 57. zones so that areas could not be challenged and re- 298 Once the maritime boundaries are legally established, the implications of climate change, sea level rise and environmental duced due to climate change and sea level rise. Howev- change on the highly vulnerable baselines that delimit the maritime er, national actions by themselves – even if coordinated zones of PICTs should be addressed. This could be a united regional effort that establishes baselines and maritime zones so that areas at a regional level – may not be enough to bring about could not be challenged and reduced due to climate change and sea level rise. See, Pratt, C., and H. Govan (2010), p. 58. 299 Dr Stuart Minchin, Director General of the Pacific Community 300 See, Aegean Sea Continental Shelf case, at para 85 and The Bay of (SPC), Pacific Regional Conference, 9 September 2020. Bengal Maritime Boundary Arbitration. International Law Aspects of Sea Level Rise | 43 a change. It was clearly not an issue which the drafters adopted by the UN General Assembly after negotiation of the 1982 LOSC had in mind during the decade they in its subsidiary bodies or informal consultations.306 spent drafting the text of the convention but it is now an issue for which the international community needs Of these options, the one that has attracted the most to mobilize its brightest legal minds to resolve, sooner attention is the idea of the development of a new rather than later. If unresolved, it raises serious issues rule of customary international law. As long ago as of equity and justice in the international legal order 1990, scholars had argued that rather than spend and may in the future even constitute a risk to interna- large amounts of money physically defending their tional peace and security. coastlines, vulnerable States might be better served by directing their efforts to the development of a new There are a number of possible ways in which an es- rule of customary international law which recognized tablished rule of international law might be changed. existing maritime entitlements, despite changes The ILA Sea Level Rise Committee considered in brought about by sea level rise.307 It is possible for some detail all the options which had been suggest- customary law to be regional or universal, but in order ed by the late Professor Hayashi (former head of the to address the specific situation of small island States UN Division for Ocean Affairs and Law of the Sea this new customary rule would need to be universal – [DOALOS]) in a paper dating from 2011.301 These in- to be binding on all States – particularly on those who cluded the development of customary internation- most frequently exercise the freedoms of the high seas. al law,302 a protocol to the UNFCCC,303 utilization of A regional custom would only be binding amongst the the amendment provisions of the LOSC,304 a deci- countries of the region. sion of the Meeting of the State Parties to the LOSC (SPLOS),305 a diplomatic conference open also for However, the development of a new rule of general States non-parties to the LOSC, or an agreement customary international often takes a long time, as it not only needs evidence of State practice in support but also opinio juris.308 It starts, however, with the devel- 301 Even though he himself admitted some of them might not be practical. See Hayashi, M., “Sea-level rise and the law of the sea: opment of uniform State practice, and there is at least future options” in, Vidas, D., and P. J. Schei (eds). 2011. The World Ocean prima facie evidence of the development of a regional in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues, Boston: Brill, pp. 187–206 at 205, ILA 2018 State practice in the Pacific islands – many of which Report, at 15. are the most vulnerable to losses of baseline points 302 See, Soons, A. H. A. 1990. “The Effects of a Rising Sea Level on Maritime Limits and Boundaries.” Netherlands International Law Review, Vol. 37, pp. 207–232. See also, Caron, D. D. 1990. “When law makes climate change worse: rethinking the law of baselines in light of a rising sea level”, Ecology Law Quarterly, 621; Freestone, 306 All discussed further by Hayashi, M., “Sea Level Rise and the Law D., “International Law and Sea Level Rise” in, Churchill, R., and D. of the Sea – Future Options” in, Vidas, D., and P. J. Schei (eds). 2011. Freestone (eds). 1991. International Law and Global Climate Change, The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, pp. 109-125, at 115. Biodiversity, Shipping, Regional Issues, Boston/Leiden: Brill/Martinus 303 As proposed in 1990 by the Coastal Zone Management Subgroup Nijhoff, pp. 200–206. of the IPCC, reported by Freestone, D., and J. Pethick, “Sea Level Rise 307 See, Soons (1990). and Maritime Boundaries: International Implications of Impacts 308 In certain fields, such as the law of the sea, customary international and Responses” in, Blake, G (ed). 1994. International Boundaries: Fresh law (CIL) has sometimes developed rapidly. The ILC in its work on Perspectives, Vol. 5, Routledge, pp. 73–90, at 76. identification of CIL has pointed out that “The relevant practice 304 See, LOSC, Arts. 311–316. For a discussion of the complexity of must be general, meaning that it must be sufficiently widespread and this procedure, see, Freestone, D., and A. O. Elferink, ‘Flexibility representative, as well as consistent. Provided that the practice is general, and Innovation in the Law of the Sea: Will the LOS Convention no particular duration is required” (emphasis added). See, ILC Draft amendment procedures ever be used?’ in, Elferink, A. O. (ed). conclusions on identification of customary international law, with 2005. Stability and Change in the Law of the Sea: The Role of the LOS commentaries (2018), adopted by the ILC at its seventieth session Convention, Boston/Leiden, Nijhoff, pp. 163–216. and submitted to the General Assembly, UN Doc. A/73/10, Draft 305 Note that Art. 319(2)(e) LOSC appears to allocate only administrative Conclusion 8. Relevant Commentary on Draft Conclusion 8 states “a roles to this meeting, e.g. under LOSC Annex II, Art. 293 and Annex relatively short period in which a general practice is followed is not, VI, Arts. 4(4), 18 and 19, discussed in Freestone, D., and A. O. Elferink, in and of itself, an obstacle to determining that a corresponding rule pp. 207–209. of customary international law exists” (para 9). 44 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Figure 13. Maritime boundary between opposite States (A and B) (i) Two States with an equidistant boundary dividing their EEZs and (ii) as a result of sea level rise both coastal baselines retreat – so outer limits of their EEZs also retreat and a new High Seas area (with arrow) is created Frozen Frozen Baseline Outer Limit Baseline Outer Limit expanded Sea level rises Internal Territorial Exclusive Economic Zone High Sea Waters Sea Internal Territorial Exclusive Economic Zone High Sea Waters Sea Source: Arsana, A., and C. Schofield (2017). Note: If coastal baselines and outer limits are maintained (or frozen) when the physical coastline retreats, then it results in an expanded area of internal waters behind the baseline. and, consequently, territory from sea level rise.309 The account, together with the context.311 In 2016, the ILC Pacific Island States are among those “States whose looked at the question of what constitutes “subsequent interests are specially affected,” a significant attribute practice” for these purposes and it suggested that regarding the establishment of a general practice in this would include State conduct in the application the formation of a new rule of customary international of a treaty, after its conclusion, which establishes the law, that was recognized by the ICJ in the 1969 North Sea agreement of the parties regarding the interpretation of Continental Shelf Cases.310 the treaty, or it could be conduct by one or more parties in the application of the treaty, after its conclusion.312 Another approach is to assess whether State practice So if it can be shown that there is consistent state has actually changed the traditional interpretation practice in the interpretation of the LOSC rules on of the LOSC. The 1969 Vienna Convention on the baselines, this would be important evidence of an Law of Treaties does envisage that in interpreting emerging customary law interpretation of the issue of treaties, “any subsequent practice in the application “ambulatory” baselines. of the treaty which establishes the agreement of the parties regarding its interpretation” shall be taken into The Member States and Territories of the Pacific Island Forum (PIF) and those of the Alliance of Small 309 For discussion of Regional State Practice, see, Freestone, D., and C. Schofield. 2019. “Islands Awash Amidst Rising Seas: Sea Level Rise and Insular Status under the Law of the Sea”, in, Proceedings of the 1969 Vienna Convention, Art. 31(3)(b). 311 2018 Singapore Conference on Climate Change (2019) International 312 Report of the International Law Commission: Sixty-eighth session Journal of Marine and Coastal Law Vol. 34 (3), pp. 391-414; and (same (2 May–10 June and 4 July–12 August 2016) A/71/10.118 at 121. The authors) “Securing Ocean Spaces for the Future? The Initiative of the ILC adopted “Draft conclusions on subsequent agreements and Pacific SIDS to Develop Regional Practice Concerning Baselines and subsequent practice in relation to the interpretation of treaties, with Maritime Zone Limits” (2019) Ocean Yearbook Vol. 33, pp. 58-89. commentaries” at its seventieth session, in 2018, and submitted to 310 North Sea Continental Shelf cases (1969) I.C.J. Reports, p. 3 at paras. the General Assembly as a part of the Commission’s report covering 73–74. the work of that session (A/73/10). International Law Aspects of Sea Level Rise | 45 Island States (AOSIS) include among their members In addition to a number of important joint political many of the States most vulnerable to, or “specially statements by the leaders of PICs,315 there has also been affected” by, the impacts of sea level rise. The position a major effort underway for more than a decade – under they take publicly on these issues is therefore of major the Pacific Oceanscape Programme – to accelerate the significance in this process. In August 2021, the PIF conclusion of maritime boundaries between the States leaders issued a Declaration on Preserving Maritime and territories of the region and to determine with Zones in the Face of Climate Change-Related Sea Level much more detail and precision the existing extent and Rise313 and in September 2021, the Heads of State and delineation of national maritime zones. The Pacific Government of AOSIS issued a similar Declaration.314 Maritime Boundaries project, working within this The significance of these separate but largely similar framework, has assisted and facilitated the conclusion political declarations is that they provide further of a remarkable number of agreements in the region as clarity on the position of the PIF and AOSIS member well as assisted with the development of more detailed states regarding how relevant LOSC provisions relating delineation of maritime limits using coordinates based to the limits of maritime zones and the rights and on modern geodetic data.316 entitlements should be interpreted. The project has also assisted with one submission to The PIF Declaration (mirrored by the AOSIS Declara- the CLCS, although 16 more are in preparation.317 An tion) proclaims that: example of a more modern approach to delineation of national limits is provided by the Republic of the Marshall […] the Convention imposes no affirmative obligation Islands which, on 18 March 2016, passed comprehensive to keep baselines and outer limits of maritime new legislation repealing “in its entirety” the 1984 zones under review nor to update charts or lists of Maritime Zones Declaration Act, and declaring anew geographical coordinates once deposited with the all its maritime zones in a detailed document running Secretary-General of the United Nations. to more than 400 pages.318 This represents one of the […] maritime zones, as established and notified to the latest developments in an emerging pattern of practice Secretary-General of the United Nations in accordance in the Pacific region whereby States are unilaterally with the Convention, and the rights and entitlements declaring and publicizing their maritime jurisdictional that flow from them, shall continue to apply, without baselines, limits, and boundaries. Even though the LOSC reduction, notwithstanding any physical changes only requires notification to the UNSG of certain types of connected to climate change-related sea-level rise. limits and boundaries (such as straight and archipelagic baselines), it has become regional practice to notify the UN of all maritime lines and zones, with full geodetic 315 See, the 2015 Taputapuātea Declaration, the Delap Commitment 313 Pacific Island Forum, Declaration on Preserving Maritime Zones in and the Boe Declaration – all discussed in Freestone and Schofield the Face of Climate Change-Related Sea-Level Rise (6 August 2021), “Securing Ocean Spaces for the Future? The Initiative of the Pacific available at: https://www.forumsec.org/2021/08/11/declaration-on- SIDS to Develop Regional Practice Concerning Baselines and preserving-maritime-zones-in-the-face-of-climate-change-related- Maritime Zone Limits” (2019), pp. 58-89. sea-level-rise/. See also, Freestone, D., and C. Schofield. 2021. “Pacific 316 See, Frost, R., et al. 2016, pp. 302–303 and 306–309. Note also, Islands Countries Declare Permanent Baselines, Limits and Maritime Freestone, D., and C. Schofield. 2019. “Securing Ocean Spaces for the Boundaries”, International Journal of Marine and Coastal Law 685- Future? The Initiative of the Pacific SIDS to Develop Regional Practice 696. Concerning Baselines and Maritime Zone Limits”, 33 Ocean Yearbook 314 Alliance of Small Island States (AOSIS), The Alliance of Small Island 58-89. States Leaders’ Declaration (22 September 2021), available at: https:// 317 Ibid. www.aosis.org/launch-of-the-alliance-of-small-island-states- 318 Act No. 13 of 2016. Source at: https://www.spc.int/updates/ leaders-declaration/ See also, Vidas, D., and D. Freestone. 2022. blog/2020/09/the-status-of-pacific-regional-maritime-boundaries- “Legal Certainty and Stability in the Face of Sea Level Rise: Trends in as-of-july-2020. Discussed in detail by Freestone, D., and C. Schofield. the Development of State Practice and International Law Scholarship 2016. ‘Republic of the Marshall Islands: 2016 Maritime Zones on Maritime Limits and Boundaries”, The International Journal of Declaration Act: drawing lines in the sea’, International Journal of Marine and Coastal Law 37, at pp. 673–725. Marine and Coastal Law, Vol. 31, 720–746. 46 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise data. While stability in the spatial scope of a State’s together with the work of the ILC Study Group, have maritime jurisdiction has clear administrative as well precipitated extensive debates within the UN Sixth as enforcement benefits, the wider implication of this Committee. Consensus seems to have emerged that this practice is that it appears to be a deliberate attempt to pre- interpretation of the baseline/maritime entitlements empt arguments that physical changes to its coastline, issue is now widely accepted by State Practice and may particularly those resulting from climate change represent opinio juris.323 induced sea level rise, would have resulting impacts on its baselines and/or on the outer limits of its zones.319 Another option is to approach an international court Similar legislation, designating new archipelagic waters or tribunal (e.g., the ICJ or the ITLOS) for an Advisory and designating the outer limits of the national EEZs, Opinion on one or more of the many legal issues has also been passed by Kiribati320 and Tuvalu.321 which have never previously been considered by a court or tribunal. Advisory Opinions are, as the name The issue of how to expand that regional understanding “opinion” suggests, an authoritative statement of the to include the wider community of States is difficult. court’s views on important legal questions – but they Any international recognition is going to be important, are not binding. They have in the past made significant but deliberately precipitating international discussion contributions to the progressive development of of the issue – by proposing a UNGA resolution or international law. They are especially persuasive in developing a regional agreement under Article 311(3) respect of obligations erga omnes, where, because of the of the LOSC, may galvanize support for this. It also interests of the international community as a whole, runs the risk of crystalizing opposition to such a new contentious proceedings may be less feasible.324 general rule. In actual fact, as discussed above, the 2021 PIF Declaration and a later Declaration on 22 September Under Article 96(a) of the Charter of the United by the Heads of State or Government of members Nations: of the Alliance of Small Island States (AOSIS),322 The General Assembly or the Security Council may 319 This and the following section draw on Freestone, D., and C. request the International Court of Justice to give an Schofield (2016). advisory opinion on any legal question.325 320 Baselines around the Archipelagos of Kiribati Regulations 2014, https://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDF- FILES/KIR_2014_archipel_baselines_regulations.pdf. Also, Exclusive Under the UN General Assembly Rules of Procedure, Economic Zone Outer Limit Regulations 2014 (2014) (Kiribati), https:// decisions on “important questions” – that are enumerated www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/ KIR_2014_eez_outer_limits_regulations.pdf. (Kiribati). Cited by Stuart in Article 83 – are taken by a two-thirds majority of the Kaye, ‘The Law of the Sea Convention and Sea Level Rise after the South members present and voting.326 All other decisions China Sea Arbitration’ (2017) International Law Studies, Vol. 93 at 444. “shall be made by a majority of the members present 321 Declaration of Archipelagic Baselines 2012, LN No. 7 of 2012 (Tuvalu), available at: www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/tuv_declaration_archipelagic_baselines2012_1.pdf 322 The Declaration is published on the AOSIS webpage at: https:// Grenadines, Suriname, and Trinidad and Tobago; and in the South www.aosis.org/launch-of%20-the-alliance-of-small-island-states- China Sea: Singapore. leaders-declaration/; The Alliance of Small Island States (AOSIS), 323 See, Vidas, D., and D. Freestone. 2021. op. cit., and by same authors which was established in 1990 and has a membership of 39 – mostly “The Impacts of Sea Level Rise and the Law of the Sea Convention: small island developing States but also some low-lying coastal States Facilitating Legal Certainty and Stability of Maritime Zones and – which are spread across several different maritime regions in the Boundaries” (2022) 99 International Law Studies: UNCLOS 40th Atlantic, Indian and Pacific Oceans, as well as in the Caribbean region Anniversary Forum 944-964, which includes the text of the US and the South China Sea. From the Pacific Ocean, AOSIS includes 14 statement on this issue. of in total 18 PIF Members (i.e., all except Australia, New Zealand, 324 See, Freestone, D., R. Barnes, and P. Akhavan. 2022. “Agreement French Polynesia, and New Caledonia). Other Member States of for the Establishment of the Commission of Small Island States on AOSIS are in the Atlantic Ocean: three African States, namely, Climate Change and International Law”, 37(1) International Journal of Cape Verde, Guinea-Bissau, and San Tomé and Principe; in the Marine and Coastal Law 166-178. Indian Ocean: Comoros, Maldives, Mauritius and Seychelles; in the 325 Available at https://www.un.org/en/about-us/un-charter/ Caribbean region: Antigua and Barbuda, Bahamas, Barbados, Belize, chapter-14 Cuba, Dominica, Dominican Republic, Grenada, Guyana, Haiti, 326 Available at: https://www.un.org/en/ga/about/ropga/plenary. Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the shtml International Law Aspects of Sea Level Rise | 47 and voting.”327 As the making a request to the ICJ for Under Article 1 of the COSIS Agreement, the mandate an advisory opinion is not included in the list of of that Commission is: “important questions”, such a request requires a simple majority.328 To promote and contribute to the definition, implementation, and progressive development of rules Advisory Opinions from ITLOS are envisaged by Ar- and principles of international law concerning climate ticle 138 of its Rules of Procedure which provide that: change, including, but not limited to, the obligations of States relating to the protection and preservation 1. The Tribunal may give an advisory opinion on of the marine environment and their responsibility for a legal question if an international agreement injuries arising from internationally wrongful acts in related to the purposes of the Convention respect of the breach of such obligations. specifically provides for the submission to the Tribunal of a request for such an opinion As per Article 2 of the COSIS Agreement, COSIS is specifically authorized to request advisory opinions 2. A request for an advisory opinion shall be from the ITLOS on “any legal question within the scope transmitted to the Tribunal by whatever body is of the 1982 United Nations Convention on the Law of authorized by or in accordance with the agreement the Sea, consistent with Article 21 of the ITLOS Statute to make the request to the Tribunal.329 and Article 138 of its Rules”.333 Over the last decade or so, a number of PICs have On 12 December 2022, COSIS (which now has nine indicated an interest in seeking an ICJ Advisory member states)334 made an application to the ITLOS for Opinion through the UN General Assembly on legal an Advisory Opinion on the obligations of the Parties to issues related to climate change – principally the UNCLOS in relation to marine pollution that might be responsibility of the major GHG emitting States.330 caused by the emissions of greenhouse gases. 335 Vanuatu has emerged as the main proponent of such a move. On March 29, 2023, the UNGA adopted a resolution, by consensus, requesting an advisory opinion from the ICJ on the obligations of States with respect to climate change.331 Pages/showDetails.aspx?objid=08000002805c2ace 333 For more information, see, Freestone, D., R. Barnes, and P. Akhavan. A parallel and complementary initiative is also 2022. Agreement for the Establishment of the Commission of Small underway in relation to ITLOS. On 31 November 2021 Island States on Climate Change and International Law (COSIS),  The at the UNFCCC COP26 in Glasgow, the Governments International Journal of Marine and Coastal Law, 37(1), 166-178. 334 Antigua and Barbuda, Bahamas, Niue, Palau, St Kitts and Nevis, St of Antigua and Barbuda and of Tuvalu signed an Lucia, St Vincent and the Grenadines, Tuvalu, and Vanuatu. Agreement for the Establishment of the Commission 335 The COSIS request was as follows: What are the specific obligations of State Parties to the United Nations Convention on the Law of the of Small Island States on Climate Change and Sea (the “UNCLOS”), including under Part XJI: International Law (COSIS Agreement).332 (a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warm ing and sea level 327 Art 85 UNC. rise, and ocean acidification, which are caused by anthropogenic 328 See, Freestone, D., R. Barnes, and P. Akhavan (2022). greenhouse gas emissions into the atmosphere? 329 Available at https://www.itlos.org/fileadmin/itlos/documents/ (b) to protect and preserve the marine environment in relation to basic_texts/ITLOS_8_25.03.21.pdf climate change impacts, including ocean warming and sea level 330 See, Palau in 2011, available at: https://news.un.org/en/ rise, and ocean acidification? See, Request for an Advisory Opinion story/2011/09/388202 submitted by the Commission of Small Island States on Climate 331 UNGA, Request for an advisory opinion of the International Court Change and International Law, available at: of Justice on the obligations of States in respect of climate change (1 https://www.itlos.org/en/main/cases/list-of-cases/request-for-an- March 2023), UN Doc. No. A/77/L.58. advisory-opinion-submitted-by-the-commission-of-small-island- 332 Text at Freestone, D., R. Barnes, and P. Akhavan (2022) registered states-on-climate-change-and-international-law-request-for- with the UN on 31 October 2022, available at: https://treaties.un.org/ advisory-opinion-submitted-to-the-tribunal/ 48 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise 5. What Are the Legal Implications number of options are possible and available, so what of an Island State Becoming follows is essentially a summary of the key issues and an attempt to identify with a broad brush some of the Uninhabitable? approaches which commentators have suggested.337 A territory and a permanent population are two of the key This is an unprecedented situation for international requirements for statehood laid out in the Montevideo law, which the international community will need Convention, discussed earlier. Traditionally, territory has to address. But international law and practice does been central to the doctrine of international jurisdiction. suggest a presumption of State continuity provided A State has exclusive jurisdiction in the territory over the State can honor its international obligations and which it exercises sovereignty. Sovereignty has been responsibilities. defined as the “totality of international rights and duties recognized by international law as residing in an At some point in the twenty-second century, or possibly independent territorial unit – the State.”338 It entails the earlier, a number of island territories may become passing of legislation, the ownership of assets, and the uninhabitable. Not necessarily because they are totally other attributes of government. A State also has personal inundated, but because the land area available for jurisdiction over its nationals and other entities, like ships living and growing crops has been reduced below a or companies, registered under its laws. These primary critical threshold, or the soil itself and the freshwater grounds for jurisdiction would arguably continue even lens beneath the island has become too saline to without an exclusively owned land territory, as long as the support life. At that point, if not well before, human entity of government itself persists. populations will need to move. The question is – will that result in the extinction of the State if the normal The main organs of government through which a State requirements for statehood include a permanent exercises its jurisdiction are the legislature, the judiciary, population and a defined territory? and the executive – the administration. As the slow onset of sea level rise begins to make inroads into the At present, the idea of an island State without inhabitable island territory, these “organs” will need to be relocated, island space and no population is still a hypothetical probably sooner rather than later. This relocation may situation but it is worth addressing, as it poses a in the first instance be within the State. In certain completely novel problem for international law. It is cases, a State may also maintain a symbolic presence, expected that some of the legal challenges and practical for example, through a parliament building on built- constraints imposed by the impacts of sea level rise in up higher ground where the parliament meets once or this context might become topical in just a few decades, twice a year. If the situation is reached where no further well before statehood becomes an issue. Part II(3) of higher ground is available, the relocation will need to this paper provided an overview of applicable rules of be to another State, either to another higher island or international law relating to statehood. These rules were 337 Rayfuse, R. 2009. “W(h)ither Tuvalu International Law and developed during the relatively stable climatic period of Disappearing States.” UNSW Law Research Paper No. 2009-9; the last 11,500 years (the Holocene) and international Stoutenburg, J. G., “When Do States Disappear? Thresholds of Effective law has never had to address the issue of a viable, Statehood and the Continued Recognition of ‘Deterritorialized’ Island States” in, Gerrard, M., and G. Wannier (eds). 2013. Threatened Island functioning sovereign State slowly losing its population Nations: Legal Implications of Rising Seas and a Changing Climate, pp. and possibly its territory also due to the impacts of sea 76-77; Blanchard, C. 2015. “Evolution or Revolution: Evaluating the Territorial State-Based Regime of International Law in the Context of level rise.336 The issues involved are sensitive and a the Physical Disappearance of Territory due to Climate Change and Sea-Level Rise”, Canadian Yearbook of International Law, Vol. 53 pp. 336 Vidas, D. 2014. p. 83. See also, Vidas, D., D. Freestone, and J. 66-118. McAdam. 2015. “International Law and Sea Level Rise: The New ILA 338 See, Crawford, J. (2006) pp. 32-33. “Jurisdiction” on the other hand, Committee”, ILSA Journal of International and Comparative Law, Vol. refers to “particular aspects of the substance, especially rights (or 21(2), pp. 397-408. claims), liberties, and powers”, see, Brownlie, I. (2008) p. 106. International Law Aspects of Sea Level Rise | 49 to a mainland area. The details of this relocation will entitlements do not need to be adjusted in the face probably be different in each case, but commentators of physical changes brought about by sea level rise have suggested a few alternatives including the – as discussed above – then continued ownership of relocating State leasing or buying land areas in another maritime entitlements may no longer be in dispute. State.339 This is why analogies have been drawn with situations where a government has moved into exile.340 Each of these questions will need to be addressed on an individual basis, but there does appear to be a strong There are various examples of governments operating presumption in favor of State continuity and against in exile outside of their own territory. The general the extinction of States under international law341 and, presumption is that such an arrangement is temporary. in principle, there is no reason why a sovereign State The disconnect between the territory and population could not relocate its seat of government. The details obviously poses various limitations with regard to the would have to be negotiated with the host State that capacity of such a government to function compared is offering refuge or is being paid to provide land on with the situation of a government operating within a lease or in perpetuity. Indeed, the host State may be its own territory. Thus, where a government might be prepared to offer certain political assistance of its own forced to operate outside of its territory on a permanent – for example, France and Spain offer protection to the basis, the scope of its sovereignty and independence micro-State of Andorra; San Marino operates under the may well be questioned, if not effectively impacted. general protection of Italy but enters into treaties on its own; and Liechtenstein, whose consular services are In such a scenario, where a government has to relocate, generally handled by Switzerland in countries where there are a number of key issues to consider. Is the Liechtenstein has no embassy. relocated government able to function effectively, generate its own income, and protect the assets and the In the short term, well before these scenarios take nationals that still owe allegiance to it? Can it continue place, the increasing uninhabitability of parts of to function on the international plane? This does not affected countries and other adverse effects of sea mean simply maintaining a number of ambassadors level rise may create significant constraints on or overseas delegations – although it will probably affected States’ capacity to function effectively both have to do that – but whether it can really govern; that at internal and external levels. Governments might, is, can it meet the obligations and responsibilities for instance, become less and less able to: implement which international law imposes on it? These would their obligations to protect civil and political rights of include being able to honor the international treaty their populations, and achieve the full realization of obligations it has undertaken by, for example, ratifying economic, social, and cultural rights; repay loans and human rights treaties and the obligations derived from service debts; or fulfil treaty obligations to cooperate customary international law. There have also been with other countries on specific matters. The following questions in the past as to the continued ownership paragraphs outline some of the key legal implications of the islands and maritime areas from which it and applicable legal regimes, albeit not exclusive. has relocated. However, if baselines and maritime Membership of International Organizations 339 See, Allen, E. 2018. pp. 1-23. They may rather choose to merge One of the privileges associated with statehood is with another State, as Zanzibar and Tanganyika did in 1964 to form the ability to seek membership of international Tanzania. Becoming a new State raises another wide swathe of legal issues which will not be dealt with here. For the discussion of a suggested totally new entity, see, Burkett, M. 2011. “The Nation Ex- 341 Crawford, J. (2006) concludes that “A State is not necessarily Situ: On Climate Change, Deterritorialized Nationhood, and the Post- extinguished by substantial changes in territory, population or government, Climate Era”, Climate Law, Vol. 2, pp. 245-374. or even, in some cases, by a combination of all three. […] And, generally, 340 McAdam, J. 2010. “‘Disappearing States’, Statelessness and the the presumption—in practice a strong presumption—favours the Boundaries of International Law.” Climate Change and Displacement: continuity and disfavours the extinction of an established State.” Multidisciplinary Perspectives. Oxford, Hart, pp. 105-130, at 116-118. See, pp. 700-701. For a detailed analysis on the issue, see pp. 667-699. 50 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise organizations, even though such membership is not “intrinsically inequitable and contrary to intentional always exclusively reserved for States.342 Particular law.”344 There is considerable State practice developing conditions for membership vary, and certain in the Pacific region and beyond discussed above,345 to international organizations may have more stringent support the view that island and coastal States should preconditions for membership. Article 4.1 of the UN not be required to adjust their coastal baselines and Charter states, “Membership in the United Nations maritime entitlements in response to changes brought is open to all other peace-loving States which accept about by sea level rise. If this were to continue to gather the obligations contained in the present Charter and, sufficient support from other States to crystallize into in the judgment of the Organization, are able and a rule of customary international law or a universally willing to carry out these obligations” (emphasis added). accepted interpretation of the LOSC, then maritime The UN Charter does not have a provision on ending entitlements could be maintained – as they could if a membership of States that might lose some of the new international legal instrument were to recognize indicia of statehood. their continued ownership in some way.346 But the relocated State would still need to be able to allocate Maritime Entitlements resources to policing and defending those areas. The question of continued ownership and sovereignty over the former islands and maritime areas which were Treaty Obligations generated by those islands is a truly new issue and There will inevitably be a few treaty obligations that contains a number of unknowns. It is possible that the the relocated State may simply not be able to honor. relocated State may claim ownership and sovereignty International law may provide a remedy in that it over the islands and insular features that remain above presumes that there could be situations where the water. After all, many States claim ownership of islands original circumstances leading to the conclusion of in distant parts of the world. While they remain above a treaty may have changed and thus parties cannot water, they will at least generate a 12 nm territorial sea. be taken to have consented to the performance of the treaty under the new circumstances. This principle, The challenge is that the majority of the wealth of the discussed above, is called “fundamental change of ocean resource, such as pelagic tuna resources, lies circumstances,”347 and may be very relevant in this further offshore – as does the majority of continental situation. But otherwise, the relocated State would shelf resources. In order to maintain sovereign rights need to honor its general international law obligations, over these resources, the relocated State will need to be including its treaties. This is particularly important as able to maintain its wider maritime zone entitlements, the final and essential requirement of statehood is the to a 200 nm EEZ and, if relevant, an extended “capacity to enter into relations with other States.”348 continental shelf beyond 200 nm. This capacity ultimately depends upon the recognition by other States of the relocated government as a State. The 1982 LOSC does not really provide help with this To maintain this recognition, it will need to show issue. It indicates that an insular feature that “cannot itself capable of, and willing to take advantage of its sustain human habitation or an economic life of its international rights and meet its international duties. own” is not entitled to an EEZ or continental shelf.343 Similarly, if there is no feature above water at high 344 Rayfuse, R. 2010. “International Law and Disappearing States: Utilizing Maritime Entitlements to Overcome the Statehood tide, then no maritime zones are recognized by the Dilemma”, University of New South Wales Faculty of Law Research LOSC. However, the total or partial loss of maritime Paper no 2010-52 at 9. Blanchard, pp. 96-97. Also, Schofield, C., and D. Freestone, “Options to Protect Coastlines and Secure Maritime entitlements has been described as an outcome that is Jurisdictional Claims in the Face of Global Sea Level Rise” in, Gerrard, M. B., and G. E. Wannier, p. 162. 345 See, in particular, Sections 1, 3, and 4 of Part III above. 342 Some international organizations do admit non-State entities as 346 See options discussed in 2018 ILA Report. members. 347 Or rebus sic stantibus. 1969 Vienna Convention, Art. 62. 343 LOSC, Art. 121(3). 348 Montevideo Convention, Art. 1. International Law Aspects of Sea Level Rise | 51 Protection of Persons State Responsibility International human rights law provides some key Under international law, State responsibility generally principles that contribute to legal certainty and refers to legal responsibility for the violation of an in- stability in this context. In a possible scenario where ternational obligation and associated consequences.351 the government and population (either partially or For State responsibility to arise, there has to be a vio- entirely) have to be relocated, then protection of the lation of an international obligation attributable to a population becomes a particularly complex issue. State. In the presence of a valid defense, such responsi- Although persons affected by the impacts of climate bility may be avoided.352 For instance, can sea level rise change and sea level rise will still remain as right be accepted as force majeure?353 Alternatively, could oth- holders at all times, the task of allocating duties among er grounds precluding wrongfulness, such as distress possible different duty bearers (e.g., State of origin or necessity, be invoked by States affected by sea level and host State) may become a more complex issue to rise as defense mechanisms in situations where they determine, especially when mixed human mobility (or breach their obligations due to constraints imposed by immobility) dynamics are taken into account. Under sea level rise? International law does not provide clear different scenarios of relocation, where, for instance, cut answers to these questions. These grounds could affected States are able to secure substantial parts of be arguably used but the threshold would be potential- their territory versus when they lose most or all of their ly high, considering the causes and effects of climate habitable territory, this allocation of duties between the change, in light of the modern scientific thinking. affected State and the host State would look different.349 In general, it is argued that it would be incorrect to In general terms, a State has the primary duty to en- presume that the loss of one or more elements of sure the protection of persons under its jurisdiction or the Montevideo criteria would automatically lead control. Exercising such jurisdiction or control over a to the cessation of statehood,354 if only because of person is a key aspect when determining which State the risk of rendering significant numbers of people would be the duty bearer in a given scenario. States’ stateless, either legally (de jure) or practically (de existing obligations to respect, protect, and fulfil hu- facto).355 Moreover, governments can still maintain man rights under international and regional human rights law are applicable to all individuals subject to 351 See, in general, UN International Law Commission, Draft Articles their jurisdiction on a non-discriminatory basis, al- on Responsibility of States for Internationally Wrongful Acts, with commentaries, U.N. Doc. A/56/10 (2001). though some limitations may apply based on non-cit- 352 Such grounds precluding “wrongfulness” may include consent, izenship status and some additional protections may force majeure and fortuitous event, distress, state of necessity, and self-defense. See, ILC Draft articles on Responsibility of States for also be provided to migrants and refugees, e.g., due to Internationally Wrongful Acts, Chapter V in general. the application of the non-refoulement principle. That 353 ILC, Draft articles on Responsibility of States for Internationally said, there is a clear risk that sea level rise impacts Wrongful Acts, Article 23 on force majeure reads as follows: “The wrongfulness of an act of a State not in conformity with an may hamper a State’s capacity to provide protection international obligation of that State is precluded if the act is due and fulfil the progressive realization of the econom- to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially ic, social, and cultural rights. In those situations, the impossible in the circumstances to perform the obligation.” duty to cooperate, which is firmly established within 354 McAdam (2010) at p. 117. the international human rights law regime, could play 355 Although “de facto” statelessness might occur when the State is no longer able to protect its citizens – which may be in advance of loss a significant role for the protection of persons in the of statehood. Commentators have flagged this, see, “Climate Change context of sea level rise.350 and Statelessness: An Overview” submitted by the United Nations High Commissioner for Refugees with the support of the International Organization for Migration and the Norwegian Refugee Council to the 349 The ILA Committee on International Law and Sea Level Rise is 6th session of the Ad Hoc Working Group on Long-Term Cooperative currently working on this issue. For a more detailed assessment Action (AWG-LCA 6) under the UN Framework Convention on of these scenarios and the tools to safeguard the rights of affected Climate Change (15 May 2009). Also, Foster, M., and H. Lambert. 2016. populations, see its forthcoming ILA report (2024). “Statelessness as a Human Rights Issue: A Concept Whose Time Has 350 Ibid. See also, Part II (4) of this Report. Come”, International Journal of Refugee Law, Vol. 28(4), pp. 564-584; 52 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise some functional capacity and exercise sovereign It is valid to hold that once a State exists as such, in that it rights through options such as a government in meets the conditions set out in article 1 of the Convention exile. While it is not certain, it is most likely that the on the Rights and Duties of States, it has full capacity international community will be willing to recognize to exercise its rights, in accordance with international the continuity of statehood for those states threatened law and with respect for the rights of other members of by submergence due to sea level rise,356 so long as they the international community. Those rights, which may maintain some symbolic territory and population and, not be impaired, undoubtedly include the right of the most importantly, a functional government, so that State to provide for its preservation; that is, to use the status quo could be maintained. various means at its disposal – including international cooperation – to ensure its continued existence.358 In this context, it is also worth highlighting Articles 3 and 5 of the Montevideo Convention which read as As discussed above, there appears to be a strong follows: presumption against the extinction of statehood, for so long as at least some of the crucial elements of Article 3: statehood are maintained. However, its effectiveness The political existence of the state is independent of might still be questioned in situations where the recognition by the other states. Even before recognition loss of territory and the exile of the population and the state has the right to defend its integrity and government become permanent. It will be increasingly independence, to provide for its conservation and important to examine this closer as the practice and prosperity, and consequently to organize itself as it thinking on the issue evolves, including its impacts on sees fit, to legislate upon its interests, administer its nationality and prevention of statelessness.359 services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other 6. What Are the Legal and Policy limitation than the exercise of the rights of other states Options Relating to Human Mobility according to international law. in the Context of Climate Change? Article 5: The fundamental rights of states are not susceptible of International law does provide a framework for being affected in any manner whatsoever. addressing issues of human mobility in the face of sea level rise, but it is fragmented. This section sets out More recently, the Second Issues Paper produced by the relevant legal tools and policy options that might the co-chairs of the sea level rise study group of the ILC help people adapt in situ and that facilitate human makes a compelling argument based on its reading of mobility if it becomes necessary. Articles 3-5 of the Montevideo Convention: 357 As laid out in Part II(4), the regime addressing Dobrić, M. 2019. “Rising Statelessness Due to Disappearing Island human mobility in the context of climate change is States: Does the Current Status of International Law Offer Sufficient Protection?”, Statelessness & Citizenship Review, Vol 1(1), pp. 42-68. The highly fragmented.360 Various proposals have been two existing conventions addressing the issue of statelessness, namely, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are only applicable International Law (18 April–3 June and 4 July–5 August 2022)’(19 to de jure statelessness and not widely ratified. April 2022) UN Doc A/CN.4/752. 356 The issue of recognition of states has been subject to competing 358 Ibid., para 158. theories as some believe that an entity cannot be accepted as a state 359 See, Lixinski, L., J. McAdam, and P. Tupou. 2022. ‘Ocean Cultures, unless it is generally recognized as such by other states (constitutive the Anthropocene and International Law: Cultural Heritage and theory) whereas others accept that recognition has no legal effect on Mobility Law as Imaginative Gateways’, Melbourne Journal of the formation of statehood (declaratory theory). International Law 1–22. See also, Foster, M., N. Hard, H. Lambert, and 357 ILC, ‘Sea-Level Rise in relation to International Law: Second J. McAdam. 2022. The Future of Nationality in the Pacific: Preventing Issues Paper by Patrícia Galvão Teles and Juan José Ruda Santolaria, Statelessness and Nationality Loss in the context of Climate Change. Co-Chairs of the Study Group on Sea-Level Rise in relation to 360 Indeed, it has been argued that it is the confusion surrounding the International Law Aspects of Sea Level Rise | 53 presented by scholars including the possibility of a The Paris Agreement recognizes that adaptation new convention to specifically address this issue.361 is a country-driven process which needs to adopt a However, a new international treaty would need “gender-responsive, participatory and fully transparent considerable political capital to conclude, bring into approach, taking into consideration vulnerable groups, force, and implement.362 Moreover, a generalized treaty communities and ecosystems.”365 Climate impacts, may not necessarily provide the key tools to address vulnerability, and risks – including the impacts of specific, localized concerns that might be better dealt adaptation and climate resilience strategies that aim to with at the regional, bilateral, and national levels.363 assist those who wish to remain in situ – need to inform This section will highlight specific legal and policy legal and policy interventions. Identifying medium- options in the context of different mobility scenarios. and long-term adaptation needs, and communicating these needs through instruments such as NDCs and In Situ Adaptation Where This is Feasible and NAPs, remains crucial in accessing adaptation financing Desirable and therefore ensuring effective implementation of There is little doubt that allowing people to adapt in adaptation measures. their original location – in situ adaptation to sea level rise impacts – is the preferred option, but not always The concept of “adaptation with dignity” requires “not physically possible.364 It does require a great deal of only a focus on defending sustainable livelihoods but forward planning and preparedness, which in turn doing so in a way which enables people to live with requires resources. their human rights respected.”366 States’ existing obligations to respect, protect, and fulfil human rights would need to inform legal and policy interventions fragmented regime rather than gaps in the legal regime itself that at the national level.367 Procedural rights, notably the leads to the current de facto protection gaps. See, in particular, Mayer, B. 2016. The Concept of Climate Migration: Advocacy and its Prospects, rights to information and to participate in decision- Edward Elgar Publishing. making, play a key role in enabling affected people to 361 See, Biermann, F., and I. Boas. 2010. “Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees”, make informed decisions. Core principles such as non- Global Environmental Politics, Vol 10 (1), pp. 60-88; Docherty, B. and T.Gi- discrimination, transparency, and human dignity are annini. 2009. “Confronting a Rising Tide: A Proposal for a Convention also relevant for adaptation measures. on Climate Change Refugees”, Harvard Environmental Law Review, Vol. 33, pp. 349-403. For a comprehensive treatment of relevant proposals, see, Solomon, M. K., and K. Warner, “Protection of Persons Displaced as In 2015, the UN General Assembly endorsed the a Result of Climate Change: Existing Tools and Emerging Frameworks” in, Gerrard, M. B., and G. E. Wannier (eds). 2013. Threatened Island Na- definition of resilience in the Sendai Framework as: tions: Legal Implications of Rising Seas and a Changing Climate, Cambridge “The ability of a system, community or society exposed Press. Although others are unconvinced: McAdam, J. 2011. “Swimming to hazards to resist, absorb, accommodate to and against the Tide: Why a Climate Change Displacement Treaty is not the Answer”, International Journal of Refugee Law, Vol 23(1), pp. 2-27. More re- recover from the effects of a hazard in a timely and cently, Ian Fry, the Special Rapporteur on the promotion and protection efficient manner, including through the preservation of human rights in the context of climate change, in his latest report to the Human Rights Council, proposed an additional protocol to the 1951 and restoration of its essential basic structures and Refugee Convention. See, “Providing legal options to protect the human rights of persons displaced across international borders due to climate change - Report of the Special Rapporteur on the promotion and protec- 365 PA, Art. 7(5). tion of human rights in the context of climate change” (18 April 2023), 366 McAdam, J., and Saul, B. 2010. “Displacement with Dignity: UN Doc A/HRC/53/34. International Law and Policy Responses to Climate Change Migration 362 McAdam (2011) at p. 25. and Security in Bangladesh”, German Yearbook of International 363 See, in general, Cernea, M. M., E. Ferris, and D. Petz. 2011. “On the Law, Vol. 53, p. 268. See also, Cubie, D., “In-Situ Adaptation: Non- Front Line of Climate Change and Displacement: Learning from and Migration as A Coping Strategy for Vulnerable Persons” in, Manou, with Pacific Island Countries”, as part of Brookings-Bern Project on D., A. Baldwin (eds) et al. 2017. Climate Change, Migration and Human Internal Displacement. Rights: Law and Policy Perspectives, Routledge. 364 See, Pacific Islands Forum Secretariat, 2008 Niue Declaration 367 As briefly outlined under Part II(4), many argue that States’ relevant on Climate Change, available at: https://www.forumsec. obligations under human rights law need to be complemented org/2008/02/21/the-niue-declaration-on-climate-change/; and the through international cooperation to address technical and financial Report from the Nansen Initiative Pacific Regional Consultation, constraints that affected States may be facing. The duty to cooperate Human Mobility, Natural Disasters, and Climate Change in the can play an important role in the context of sea level rise, though its Pacific: Outcome Report (21-24 May 2013, Rarotonga, Cook Islands). scope and content is contested and requires further clarification. 54 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise functions.”368 To foster resilience, it is important to understand vulnerabilities and capacity to cope with Box 1. Disaster risk management: sea level rise and climate change risks and impacts. Developments in the Pacific region Coping with the existing root causes of vulnerability There have been various developments in and poverty will increase communities’ resilience.369 the Pacific region that are worth particularly highlighting.372 The regional Framework for Disaster risk management schemes are important Resilient Development in the Pacific: An tools to increase resilience. The Sendai Framework Integrated Approach to Address Climate for Disaster Risk Reduction identifies four priorities Change and Disaster Risk Management 2017– in this respect: (i) understanding disaster risk; (ii) 2030 was adopted by the Pacific Islands region strengthening disaster risk governance to manage in 2016 as voluntary guidelines to support disaster risk; (iii) investing in disaster risk reduction efforts to enhance resilience to climate change for resilience; and (iv) enhancing disaster preparedness and disasters. This framework puts particular for effective response. It outlines necessary actions to emphasis on human mobility by highlighting achieve these targets including through governance, the need to integrate it into both regional and policymaking, investment, and international national policies within the context of disaster cooperation.370 preparedness, response, and recovery.373 The Vanuatu Climate Change and Disaster Risk The UN Office for Disaster Risk Reduction (UNDRR) Reduction Policy 2016–2030, for instance, has provided guidance in “Words into Action highlights the need for targeted support for Disaster Displacement: How to Reduce Risk, Address IDPs374 and calls for development of a national Impacts and Strengthen Resilience.” This document policy addressing internal displacement and complements the Sendai Framework by providing resettlement.375 This policy led to the 2018 further guidance on how human mobility can be Vanuatu National Policy on Climate Change integrated in disaster risk management schemes.371 and Disaster-Induced Displacement stressing durable solutions for Vanuatu’s IDPs.376 372 Burson, B., R. Bedford, and C. Bedford. 2021. “In the Same Canoe: Building the Case for a Regional Harmonisation of Approaches to Humanitarian Entry and Stay in ‘Our Sea of Islands’”, available at: https://disasterdisplacement.org/wp-content/uploads/2021/09/ PDD-In_the_Same_Canoe-2021-screen_compressed.pdf 373 Framework for Resilient Development in the Pacific An Integrated Approach to Address Climate Change and Disaster Risk Management (FRDP) 2017 – 2030, available at: http://tep-a.org/wp-content/ uploads/2017/05/FRDP_2016_finalResilient_Dev_pacific.pdf 374 The Vanuatu Climate Change and Disaster Risk Reduction Policy 2016–2030 (adopted in 2015), available at: https://www.nab.vu/ sites/default/files/nab/vanuatu_cc_drr_policy_minus_att4v4.pdf, see Section 7.6.1 375 Ibid., Section 7.6.6. 368 Sendai Framework for Disaster Risk Reduction 2015–2030 (adopted 376 Vanuatu National Policy on Climate Change and Disaster-Induced 3 June 2015), UNGA Res A/RES/69/283 69/283. Displacement (2018), available at: https://www.pacificclimatechange. 369 Cubie, at p. 104. net/sites/default/files/documents/iom-vanuatu-policy-climate- 370 See, Sendai Framework for Disaster Risk Reduction 2015–2030, in change-disaster-induced-displacement-2018.pdf See also, Ministry particular, paras 27, 28, 30, 33, and 36. of Economy, Republic of Fiji, Displacement Guidelines in the 371 UN Office for Disaster Risk Reduction (UNDRR) “Words into Action context of climate change and disasters (2019), available at: https:// Disaster Displacement: How To Reduce Risk, Address Impacts And www.pacificclimatechange.net/sites/default/files/documents/ Strengthen Resilience” (2019) available at: https://www.preventionweb. Displacement%20Guidelines.%20In%20the%20context%20of%20 net/files/58821_wiadisasterdisplacement190511webeng.pdf climate%20change%20and%20disasters..pdf International Law Aspects of Sea Level Rise | 55 Integrating adaptation strategies into sustainable addressing primarily the issues of admission, development policies and programs could be another residence permits, and access to the labor market.381 important tool to help people to stay. Although Agenda 2030 for Sustainable Development377 does not explicitly Currently, in the Pacific region, there are various address human mobility in the context of climate existing immigration schemes related to employment, change, the Sustainable Development Goals (SDGs) family, education, or other forms of privileged access to do provide meaningful entry points for governments territory. The Nansen Initiative’s regional consultations and other development actors to help people adapt by in the Pacific region highlight that former ties with building their resilience and factoring migration into certain countries contributed to the formation of sub- development strategies.378 regional “clusters” of States and have facilitated some form of voluntary migration through privileged access Migration as a Means of Adaptation to temporary or permanent residence in “hub” States, When in situ adaptation is no longer an option, affected including New Zealand, USA, France, and Australia.382 communities may opt to seek livelihood opportunities The way existing clusters are structured as well as elsewhere within their countries or abroad. As such, levels of opportunities available for each cluster are migration as adaptation can be an effective tool to disparate.383 In the same vein, in the Africa region, avoid later potential displacement.379 As discussed in various instruments have traditionally facilitated Part II(4), there are umbrella principles enshrined in cross-border migration at the regional and sub-regional human rights law and relevant international labor law levels, including free movement agreements, even instruments that can guide legal and policy actions though most of these instruments were not initially at national and regional levels. The host countries’ designed to address the climate-mobility nexus. In relevant human rights obligations would apply practice, rights granted under these frameworks may to anyone within their jurisdiction irrespective of also be subject to certain limitations and discretion of nationality.380 However, these standards would need host States.384 to be complemented with immigration frameworks Existing migration frameworks present significant potential entry points but may generally not be 377 UN General Assembly, “Transforming our world: the 2030 Agenda comprehensive enough to address wide-scale for Sustainable Development” Resolution adopted by the General migration and specific challenges brought by sea level Assembly on 25 September 2015, UN Doc. No. A/RES/70/1. 378 Particularly relevant goals include: ending poverty by building rise and climate change.385 Existing laws and policies resilience of vulnerable populations to extreme events under Goal 1; achieving food security and promoting sustainable agriculture and strengthening capacity for adaptation to environmental 381 For existing practices and gaps, see generally Nansen Initiative changes under Goal 2; reducing the number of people suffering Protection Agenda. from water scarcity under Goal 6; promoting the implementation 382 Ibid. The Discussion Paper concludes: “The dynamic process of of planned and well-managed migration policies under Goal 10; cluster formation and development provides opportunities for the reducing the number of deaths and people affected by disasters enhancement of regional mobility. Existing and emerging sub- through effective DRR practices and strengthening development regional clusters will need to be encouraged and supported in their planning for resilient cities and settlements under Goal 11; and attempts to foster and promote intra‑cluster mobility” p. 46. building adaptive capacity in the face of climate change and 383 For a detailed analysis, see, ibid., pp. 24-40. integrating climate change measures in policies under Goal 13. For 384 For a detailed analysis, see, Wood, T. 2019. “The Role of Free further details, see International Organization for Migration (IOM), Movement of Persons Agreements in Addressing Disaster Task Force on Displacement Activity II.2 “Mapping Human Mobility Displacement – A Study of Africa”. See, also, Platform on Disaster (Migration, Displacement and Planned Relocation) and Climate Displacement, “Stakeholder Workshop Report: The Role of Change in International Processes, Policies and Legal Frameworks” Free Movement of Persons Agreements in Addressing Disaster (August 2018). Displacement in Africa with Focus on ECOWAS, IGAD and SADC 379 McAdam, J., and B. Burson, et al. (2016), p. 39. Regions” (November 2019). 380 While the enjoyment of some rights is strongly connected to 385 See, McAdam, J., and B. Burson, et al. (2016), p. 41 and Solomon, nationality (e.g., political rights), core human rights, such as the right M. K., and K. Warner (2013), p. 277. For a more detailed treatment of to life, the right to liberty and security of person, and human rights the issue in the Pacific region, see also, Bedford, R., and C. Bedford, to education, health and cultural identity are afforded to everyone “International Migration and Climate Change: A Post-Copenhagen irrespective of nationality or other status. Perspective on Options for Kiribati and Tuvalu” in Burson, (ed). 2010. 56 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise will probably need to be reviewed in the light of key conducted for a legitimate purpose, that is, to protect legal frameworks as outlined above,386 with a view to the right to life and health of affected persons.390 addressing challenges brought by sea level rise and climate change specific to each region and providing The UNHCR and other key actors recommend that flexibility for migrants in obtaining worker status and governments consider planning at the legal, policy, and accessing residency options. institutional level to address planned relocations as part of their long-term climate change adaptation plans.391 Planned Relocation Guidance is available from a wide range of initiatives As sea level rise becomes more intense later in the on existing standards and lessons learned relating to century, some planned relocations as a preventive displacement occurring in the context of development measure to move people out of risk-prone areas projects. The UNHCR also recommends that planned might be inevitable.387 Forced evacuations and relocation is considered as a measure of last resort arbitrary displacement are generally prohibited and that relevant human rights principles are taken under international law.388 However, States’ existing into account, such as free, prior, and informed consent human rights obligations to protect the right to life of affected communities; effective and meaningful may obligate States to evacuate persons facing serious participation; appropriate and fair compensation; and imminent risk to their lives due to sea level rise the right to an adequate standard of living including impacts.389 Similarly, when it is impossible or unsafe adequate housing; and the right to an effective remedy.392 to return, human rights obligations may also oblige a State to relocate affected persons temporarily or permanently in the face of a foreseeable harm provided Box 2. Fiji’s Planned Relocation Guidelines that such measures are proportionate, necessary, and (2018) Fiji is one of the few countries which has a framework in place for addressing planned Climate Change and Migration: South Pacific Perspectives, Institute of relocation as part of their adaptation strat- Policy Studies. egies in relation to disasters and slow-on- 386 In Part II(4). 387 For an extensive discussion in scholarly literature, see, McAdam, set events related to climate change. Fiji has J., and E. Ferris. 2015. “Planned Relocation in the Context of Climate already relocated Vunidogoloa village in Vanua Change: Unpacking the Legal and Conceptual Issues”, Cambridge Levu in 2014 and communities in Vunisavisavi Journal of International and Comparative Law, Vol. 4(1) pp. 137–66; McAdam, J. 2014. “Historical Cross-Border Relocation in the Pacific: in 2015. In light of past experiences and the Lessons for Planned Relocations in the Context of Climate Change”, pressing threat posed by adverse impacts Journal of Pacific History, Vol. 49(3), pp. 301–27. 388 Guiding Principles on Internal Displacement, Principle 6; Kampala of climate change, Fiji’s Planned Relocation Convention, Arts. 3(1), 4(1) and 4(4). The Committee on Economic, Guidelines393 outline principles related to Social and Cultural Rights (CESCR) has recognized that “forced evictions are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of 390 Ibid., p. 398. See also, the Sydney Declaration, Principle 9 and its international law.” See, CESCR, General Comment No 7: Forced commentary. Evictions (1997) Doc. No. E/1998/22 at para 1. 391 Planned Relocations, Disasters and Climate Change: Consolidating 389 See, ECtHR, Budayeva and Others v. Russia, App. No. 153391/02 (2008). Good Practices, Preparing for the Future, Background Document, See also, the Sydney Declaration, Principle 8 and its commentary. For UNHCR, Brookings Institution and Georgetown University a comprehensive analysis on the issue, see Burson, B., W. Kälin, J. Consultation, Sanremo, Italy, 12–14 March 2014. McAdam, and S. Weerasinghe. 2018. “The Duty to Move People Out of 392 Ibid. Harm’s Way in the Context of Climate Change and Disasters”, Refugee 393 Planned Relocation Guidelines: A framework to undertake climate change Survey Quarterly Vol. 37, pp. 379 - 407. The authors also state: “To date, related relocation (2018), available at: https://www.preventionweb. no regional court or international treaty-monitoring body has had the net/publication/fiji-planned-relocation-guidelines-framework- opportunity to examine the tension between the State’s duty to protect undertake-climate-change-related. The Planned Relocation life, on the one hand, and the individual’s right to liberty of movement Guidelines was developed under the guidance of the Ministry of and freedom to choose one’s residence (which also encompasses the Economy of the Fijian Government with support from the Deutsche right to stay), on the other” see pp. 395-396 for further details. Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). International Law Aspects of Sea Level Rise | 57 become inevitable. The relevant international Box 2. cont. framework addressing internal displacement is largely planned relocation and identify concrete considered adequate at the normative level.397 The actions pertaining to different stages and implementation, however, can be strengthened at a relevant stakeholders involved. These Guide- national level by incorporating relevant standards lines also highlight the importance of an into legal and policy instruments. The Office of the inclusive and gender responsive consultative High Commissioner for Human Rights (OHCHR) has and participatory process and are designed to recommended that domestic frameworks align with serve as a coordination mechanism to improve the UN Guiding Principles on Internal Displacement collaboration between relevant stakeholders. – the prevailing normative framework – and States’ obligations to respect, protect, and fulfil related human Following this policy development, Prime Min- rights.398 In 2019, the High-Level Panel on Internal ister Honorable Josaia Voreqe Bainimarama Displacement was established by the UN Secretary- launched the world’s first relocation fund on General to identify concrete recommendations on how the margins of the 74th United Nations General to better prevent, respond and, achieve solutions to the Assembly: Climate Relocation and Displaced global internal displacement crisis. The Panel submitted Peoples Trust Fund for Communities and Infra- its report in 2021,399 followed by the Secretary-General’s structure,394 to which New Zealand has already Action Agenda on Internal Displacement, which sets donated US$2 million.395 out 31 commitments by the UN system to better resolve, prevent, and address internal displacement crises.400 Internal and Cross-border Displacement Box 3. The Kampala Convention on Large-scale internal displacement as a result of the Internally Displaced Persons (IDPs) adverse impacts of climate change is reported to be The African Union Convention for the Protec- already occurring.396 Without planned responses, tion and Assistance of Internally Displaced widespread displacement across borders may also Persons in Africa (“Kampala Convention”)401 provides a legally binding framework for the 394 Permanent Mission of Fiji to the United Nations, World’s First – Ever Relocation Trust Fund for People Displaced by Climate Change Launched by Fijian Prime Minister (25 September 2019), available at: https://www.un.int/fiji/news/world%E2%80%99s-first- 397 See, in general, Kälin, W., and N. Schrepfer (2012). See also, %E2%80%93ever-relocation-trust-fund-people-displaced-climate- McAdam, J., and B. Burson, et al. (2016), at p. 29. change-launched-fijian-prime 398 OHCHR. 2011. “Protecting the Human Rights of Internally 395 In February 2020, New Zealand made a pioneering international Displaced Persons in Natural Disasters: Challenges in the Pacific”, donation to Fiji’s Climate Relocation and Displaced Peoples Trust Regional Office for the Pacific, available at: http://pacific.ohchr.org/ Fund for Communities and Infrastructure in the amount of US$2 docs/IDP_report.pdf. See also, McInerney-Lankford, S., “Human million, part of a broader US$150 million package of climate change Rights and Climate Change: Reflections on International Legal Issues assistance to Fiji. See, Goering, L. 2020. “New Zealand makes first and Potential Policy Relevance” in, Gerrard, M. B., and G. E. Wannier donation to Fiji climate relocation fund”, Reuters, available at: https:// (eds). 2013. Threatened Island Nations: Legal Implications of Rising Seas www.reuters.com/article/us-climate-change-fiji-newzealand-trfn/ and A Changing Climate, Cambridge, pp. 238-239. new-zealand-makes-first-donation-to-fiji-climate-relocation-fund- 399 See, the Report of the UN Secretary-General’s High-Level idUSKCN20L04K Panel on Internal Displacement, “Shining a Light on Internal 396 Internal Displacement Monitoring Centre (IDMC), Global Report Displacement: A Vision for the Future” (2021), available at: https:// on Internal Displacement 2021, available at: https://www.internal- internaldisplacement-panel.org/wp-content/uploads/2021/09/ displacement.org/global-report/grid2021/. See, also, World Bank HLP-report-WEB.pdf Groundswell Report (2018) and Groundswell Report Part 2 (2021). The 400 See, https://www.un.org/internal-displacement-panel/ combined results of the two Groundswell reports show that by 2050, 401 As of June 2020, 40 countries have signed and 31 have ratified the across the six World Bank regions including East Asia and the Pacific, Convention. For the list of countries which have signed and ratified North Africa, Eastern Europe and Central Asia, Sub-Saharan Africa, the Kampala Convention, see: https://au.int/en/treaties/african- South Asia and Latin America, as many as 216 million people could union-convention-protection-and-assistance-internally-displaced- migrate internally. persons-africa 58 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise some other regional instruments do not necessarily Box 3. cont. limit refugee status to the grounds listed in the 1951 protection of IDPs in Africa and constitutes – to Convention.406 date – the only legally binding continentally applicable instrument on internal displace- Recent research highlighted that State practices do not ment. Under Article 5(4), Parties are obliged widely recognize multiple factors that may give rise to “take measures to protect and assist per- to human movements, therefore, protection offered sons who have been internally displaced under refugee law frameworks remains limited in the due to natural or human-made disasters, context of climate-related reasons.407 Accordingly, it has including climate change.” It prohibits dis- been acknowledged, including by the UNHCR, that the crimination of any kind and requires States refugee criteria of the 1951 Convention or the broader to respect the rights of IDPs provided under refugee criteria of regional refugee law frameworks regional and international human rights could apply in the context of “nexus dynamics”, i.e., treaties to which the State is a party, also rec- when conflict and/or violence and disaster and/or the ognizing specific circumstances and needs adverse effects of climate change are present and as of marginalized and vulnerable groups.402 such, categorically limiting the applicability of refugee law in this context may not be appropriate.408 Concerning cross-border displacement, however, gaps Moreover, as mentioned earlier, human rights law and remain. The Nansen Initiative, a “State-led, bottom- the principle of non-refoulement may provide some up consultative process intended to identify effective protection in cases of cross-border displacement. In practices,” has developed a “Protection Agenda.” This September 2015, Mr. Teitiota, a citizen of Kiribati, work has diagnosed a general lack of preparedness filed a communication with the UN Human Rights leading to ad hoc responses in many cases and it has Committee, alleging that New Zealand had violated his highlighted priority areas for enhanced action.403 right to life under the International Covenant on Social and Political Rights (ICCPR) by denying his asylum In general, refugee law could apply for people crossing application and forcibly returning him to Kiribati borders due to climate change impacts as long as where he had claimed to face risks to his life posed by elements of persecution are also present to meet the sea level rise. In January 2020, the UN Human Rights “refugee” definition of the 1951 Convention relating Committee disagreed that this risk was “imminent”, to the Status of Refugees.404 The applicability of the but it expressly recognized the potential risk of loss of international refugee law framework is particularly life due to sea level rise.409 important as refugees are entitled to a specific protection regime under the 1951 Convention.405 As 406 For instance, people who cross borders to seek protection may discussed above, it is worth highlighting the fact that substantiate their claims based on “events seriously disturbing public order” as mentioned under Article I(2) of the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects 402 Kampala Convention, Art. 3(1)(d) and Art. 9(2). of Refugee Problems in Africa and Conclusion III(3) of the 1984 403 These areas include: “(1) collecting data and enhancing knowledge Cartagena Declaration. on cross-border disaster-displacement; (2) enhancing the use 407 Weerasinghe, S. 2018. “In Harm’s Way: International Protection of humanitarian protection measures for cross-border disaster- in the Context of Nexus Dynamics Between Conflict or Violence displaced persons, including mechanisms for lasting solutions; and and Disaster or Climate Change”, UNHCR Legal and Protection Policy (3) strengthening the management of disaster displacement risk Research Series, PPLA/2018/05. in the country of origin.” See, The Nansen Initiative, Agenda for 408 Ibid. See also, UNHCR, “Legal considerations regarding claims for the Protection of Cross-Border Displaced Persons in the Context of international protection made in the context of the adverse effects of Disasters and Climate Change (December 2015). climate change and disasters” (1 October 2020). 404 Refugee Convention, Art. 1A (2). 409 UN Human Rights Committee, Views Adopted by the 405 Including not to be returned to a place where they may be subject Committee under Article 5(4) of the Optional Protocol, concerning to a risk of persecution or other serious harm (principle of non- Communication No. 2728/2016 (Teitiota v New Zealand), 7 January refoulement). 2020, CCPR/C/127/D/2728/2016. International Law Aspects of Sea Level Rise | 59 Finally, agreements on free movement of persons Action Agenda and strengthen durable solutions for might also address some of these gaps pertaining to IDPs.414 cross-border displacement frameworks. Although such agreements generally serve economic purposes, As highlighted earlier, the Nansen Initiative and its they can be used in climate-mobility nexus and successor, the Platform on Disaster Displacement, may provide access to the territory of the host State, constitute important fora working towards enhanced status and rights during stay, and opportunities for protection and bridging the normative gap concerning lasting solutions.410 In 2020, the Intergovernmental cross-border displacement in the context of disasters Authority on Development (IGAD) endorsed the IGAD and climate change. Under this initiative, several Free Movement Protocol, which also includes specific regional consultations have been conducted in the provisions for access to territory of the host country, Pacific, the Horn of Africa, South Asia, and the Americas conditions of stay, and protection of people moving due resulting in a compilation of a broad set of effective to climate impacts.411 practices and priority areas for further action.415 Selected Platforms for Future Action and Additionally, both the Global Compact for Migration Cooperation and the Global Compact on Refugees reflect political commitments towards global governance of The UNFCCC Cancun Framework explicitly recognizes migration416 and provide a new capacity development the issue in the context of the climate regime and mechanism for enhancing information sharing between creates the possibility for it to be dealt with under the countries as well as technical support to governments adaptation framework, thereby enabling adaptation in designing laws and policies addressing human financing to cover this issue.412 The UNFCCC Task mobility in the context of climate change. The Global Force on Displacement, established under the Warsaw Compact on Migration in particular, aims to “minimize International Mechanism for Loss and Damage the adverse drivers and structural factors that compel associated with Climate Change Impacts (WIM), has people to leave their country of origin” and urges been set up specifically to enable greater cooperation States to develop adaptation and resilience strategies among international organizations and facilitate to sudden-onset and slow-onset natural disasters cooperative approaches among relevant stakeholders (explicitly referring to sea level rise), emphasizing that to “avert, minimize and address displacement related in situ adaptation is a priority.417 Where in situ adaptation to the adverse impacts of climate change.”413 is not feasible, it calls on States to “enhance availability and flexibility of pathways for regular migration” and In May 2022, the UN Secretary-General appointed a specifically highlights the need to “cooperate to identify, Special Adviser on Solutions to Internal Displacement develop and strengthen solutions” for such migrants as a key component of the Action Agenda on Internal including through designing planned relocation and Displacement mentioned earlier. The Special Adviser visa options.418 will have the mandate to ensure robust follow-up to the 414 See, UN Press Release, “Secretary-General Appoints Robert Andrew Piper of Australia Special Adviser on Solutions to Internal 410 Kälin, W. 2022. “Locating International Law on Human Mobility in Displacement” (4 May 2022), available at: https://press.un.org/ the Context of Climate Change”, American Society of International en/2022/sga2116.doc.htm Law, Proceedings of the 116th Annual Meeting, Cambridge University 415 See, in general, Platform on Disaster Displacement, available at: Press, pp. 160-162. https://disasterdisplacement.org/ 411 See, Intergovernmental Authority on Development (IGAD), avail- 416 For a comprehensive analysis, see, Kälin, W. 2018. “The Global able at: https://igad.int/protocol-on-free-movement-of-persons-en- Compact on Migration: A Ray of Hope for Disaster-Displaced dorsed-at-ministerial-meeting/ Persons”, International Journal of Refugee Law, Vol. 30(4). 412 UNFCCC Cancun Framework, at para 14(f). 417 United Nations Global Compact for Safe, Orderly and Regular 413 UNFCCC, Report of the Task Force on Displacement, September Migration: Intergovernmentally Negotiated and Agreed Outcome 17, 2018, available at: https://unfccc.int/sites/default/files/ (July 13, 2018), Objective 2, para 18(i). resource/2018_TFD_report_17_Sep.pdf 418 Global Compact on Migration, Objective 5, para 21(h). 60 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise Judicial proceedings can also play an important role 7. How is the International Community in the clarification and progressive development of Able to Provide Support for States international law in this area and serve as key tools for that Need to Adapt to Impacts From future action.419 A recent development is an initiative led Sea Level Rise? by Vanuatu in accordance with Article 96 of the Charter of the United Nations, to request the ICJ, pursuant to Article 65 of the Statute of the Court, to render an There is a myriad of mechanisms available for financial advisory opinion on the obligations of States under support and technical assistance in designing and international law to protect the rights of present and implementing adaptation measures, including legal future generations against the adverse effects of climate and policy strategies. These are also set out in tabular change.420 An advisory opinion on this issue may have form in Appendix I below. significant implications for the protection of persons in the context of climate change and sea level rise in general, but also on issues concerning human mobility. Increasing access to various financing options, fostering technical assistance, and capacity-building support are There are similar initiatives initiated at the regional key to ensuring that some of the adaptation measures level. On January 9, 2023, Chile and Colombia co- covered earlier are in fact feasible. This section will signed a request to the Inter-American Court of Human provide a broader overview of existing mechanisms Rights for an advisory opinion with the purpose of that can offer financial support and technical assistance “clarify[ing] the scope of the States’ obligations … to in designing and implementing adaptation measures, respond to the climate emergency within the framework including legal and policy strategies.423 of international human rights law”.421 The request intends to guide countries in the region regarding The Paris Agreement mandates “continuous and the development of policies and programs at the enhanced international support” to be provided to local, national, and international level in this context developing country Parties for the implementation including with regard to displacement.422 of their adaptation efforts, including strengthening cooperative action on technology development and transfer.424 Parties agree to strengthen their cooperation on enhancing action on adaptation, taking into account the Cancun Adaptation Framework, including with regard to: 419 See, Árnadóttir, S. 2021. “Judicial Proceedings to Clarify International Law on Climate Change”, available at: https://www. cambridgeblog.org/2021/12/judicial-proceedings-to-clarify- a) Sharing information, good practices, experiences international-law-on-climate-change/. See also, Wewerinke-Singh, and lessons learned, including, as appropriate, M. 2022. “Climate Change in an Unequal World: Do International Courts and Tribunals Matter?”, available at: https://cil.nus.edu. as these relate to science, planning, policies and sg/blogs/climate-change-in-an-unequal-world-do-international- implementation in relation to adaptation actions courts-and-tribunals-matter/ 420 See Section 4 above on this. 421 The Republic of Colombia and the Republic of Chile, “Request for b) Strengthening institutional arrangements, includ- an Advisory Opinion on Climate Emergency and Rights to the Inter- ing those under the Convention that serve this American Court of Human Rights” (January 9, 2023), available at: http://climatecasechart.com/wp-content/uploads/sites/16/non-us- Agreement, to support the synthesis of relevant case-documents/2023/20230109_18528_petition.pdf information and knowledge, and the provision of 422 For a more detailed assessment on the initiative concerning technical support and guidance to Parties the Inter-American Court of Human Rights, see, Auz, J.,  and  T. Viveros-Uehara. 2023. “Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human 423 For an insightful assessment of the role of developing and Rights”, EJIL: Talk, available at: https://www.ejiltalk.org/another- developed countries relating to climate finance under the UNFCCC advisory-opinion-on-the-climate-emergency-the-added-value-of- regime, see also, Di Leva and Morita (2008), pp. 29-32. the-inter-american-court-of-human-rights/ 424 PA, Art. 7(13) and Art. 10(2). International Law Aspects of Sea Level Rise | 61 c) Strengthening scientific knowledge on climate, Box 4. Nationally Determined Contributions including research, systematic observation of the (NDCs) with ocean-related commitments climate system and early warning systems, in a Research concerning nature-based solutions in manner that informs climate services and supports NDCs highlight that of the 128 NDCs submitted by decision-making coastal States, 107 included adaptation compo- nents.427 Of those 79 coastal countries highlight- d) Assisting developing country Parties in identifying ing climate vulnerabilities to coastal ecosystems effective adaptation practices, adaptation needs, and fisheries in their NDCs, 47 pledged to hybrid priorities, support provided and received for adaptation whereas 38 focused on “Nature-Based adaptation actions and efforts, and challenges and Solutions” (for example, conservation of coastal gaps, in a manner consistent with encouraging and/or marine ecosystems) and 31 committed to good practices engineered actions such as construction of sea- walls, levees, wells, and irrigation infrastructure. e) Improving the effectiveness and durability of The Marshall Islands’ NDC428 highlights the need adaptation actions.425 to design new policies and plans for “construct- ing elevated settlements for future consolidation NAPs, NDCs, and other instruments can help countries of the population” and stresses mangrove reha- communicate their national adaptation needs and bilitation as an adaptation action with mitigation priorities as well as their finance needs including co-benefits. Kiribati’s NDC429 highlights actions existing sources of financing available that need to be in respect to the maritime and coastal sectors complemented further.426 In that regard, identifying involving mangroves, coastal vegetation, and the relevant financing channels, enhancing program seagrass beds. It also identifies primary obstacles and project development to access financing, and in implementing climate action including lack using instruments such as NAPs and NDCs to reflect of technical capacity, reliable data for inform- adaptation priorities will be important. ing adaptation decision-making, and resources. Note that coastal ecosystem management does not only provide adaptation benefits but can also generate significant amounts of (sequestered) GHG emission reductions (so-called ‘blue car- bon’) which could be sold on carbon markets and thereby generate additional carbon finance. 425 PA, Art. 7(7). 426 Gallo et al. demonstrate the increasing emphasis on marine 427 See, Seddon, N., and S. Sengupta, et al. 2019. “Nature-based issues (70 percent of 161 NDCs refer to ocean and marine issues). Solutions in Nationally Determined Contributions: Synthesis and Developing countries and LDCs (SIDS in particular) focus on recommendations for enhancing climate ambition and action by 2020”, marine climate impacts and adaptation as their livelihood depend IUCN and University of Oxford, p. 19, available at: https://portals.iucn. on the ocean and is substantially challenged by relevant climate org/library/sites/library/files/documents/2019-030-En.pdf at p. 19. impacts. The study suggests that vulnerabilities associated with sea 428 The Republic of the Marshall Islands, “Nationally Determined level rise (e.g., the population living in low-lying coastal areas) are Contribution” (submitted 22 November 2018), available at: https://www4. particularly influential in the design of relevant climate policies. For unfccc.int/sites/ndcstaging/PublishedDocuments/Marshall%20 further details, see, Gallo, N. D., D. G. Victor, and L. A. Levin. 2017. Islands%20Second/20181122%20Marshall%20Islands%20NDC%20 “Ocean Commitments under the Paris Agreement”, Nature Climate to%20UNFCCC%2022%20November%202018%20FINAL.pdf Change, Vol. 7. See also, Herr, D., and E. Landis. 2016. “Coastal blue 429 Republic of Kiribati, “Intended Nationally Determined Contribution,” carbon ecosystems: Opportunities for Nationally Determined UNFCCC (submitted 26 September 2015), available at: http://www4. Contributions”, available online at: https://www.nature.org/content/ unfccc.int/submissions/INDC/Published%20Documents/Kiribati/1/ dam/tnc/nature/en/documents/BC_NDCs_FINAL.pdf INDC_KIRIBATI.pdf 62 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise The first assessment report by the UNFCCC Standing An important aspect of this task is to ensure Committee on Finance (SCF) on the determination accountability and transparency in the process. The of the needs of developing country Parties related to 2021 Glasgow Climate Pact (COP26) urges developed implementing the UNFCCC and the Paris Agreement, country Parties to “fully deliver on the USD 100 billion which was released in 2021 and presented at COP26, goal urgently and through to 2025” and highlights collated developing countries’ needs identified the role of transparency in the implementation through a number of formal mandated submissions, of these pledges.435 The assessment of developed including national communications (NCs), NDCs, or countries’ first biennial submission of climate finance NAPs. 430 The SCF report highlighted lack of available reporting under Article 9.5 of the Paris Agreement data, tools and capacity to assessing adaptation needs recognizes that improvements should be made in as a key issue.431 next communications with a view to enhance the quality and granularity of the information provided Support through Climate Finance “including projected levels, channels and instruments, Under the Paris Agreement, developed country Parties particularly on climate finance for the least developed should continue to take the lead in mobilizing climate countries and small island developing States, and on finance that should represent “a progression beyond relevant methodologies and assumptions.”436 On long- previous efforts.”432 In this context, Decision 1/CP.21, term finance, the COP27 decision requested the SCF para.53, to the Paris Agreement (2015) states that, prior to prepare biennial reports on progress towards the to 2025, “a new collective quantified goal from a floor of US$100 billion goal for consideration at COP29, COP31, US$ 100 billion per year” shall be set.433 Regarding the and COP33.437 balance between climate mitigation and adaptation finance, the Paris Agreement further states: It is worth recalling that Article 7 of the Paris Agree- ment refers to the global goal of “enhancing adaptive The provision of scaled-up financial resources should capacity, strengthening resilience and reducing vulner- aim to achieve a balance between adaptation and ability to climate change, with a view to contributing mitigation, taking into account country-driven to sustainable development and ensuring an adequate strategies, and the priorities and needs of developing response in the context of the temperature goal”. The country Parties, especially those that are particularly Global Stocktake will review the overall progress in vulnerable to the adverse effects of climate change achieving this goal. At COP26, the Glasgow–Sharm el- and have significant capacity constraints, such as the Sheikh work program on the global goal on adaptation [LDCs] and [SIDS], considering the need for public and was launched to measure progress towards this end.438 grant-based resources for adaptation.434 Although this represents a significant step forward in operationalizing the global goal on adaptation out- lined in the Paris Agreement, it would be important to ensure that it does not potentially create a complex 430 UNFCCC Standing Committee on Finance, First report on the reporting process that may overly burden countries determination of the needs of developing country Parties related to implementing the Convention and the Paris Agreement (2021) (The with limited financial resources, particularly SIDS and SCF Report), available at: https://unfccc.int/sites/default/files/ LDCs where capacities are already constrained. Thus, resource/54307_2%20-%20UNFCCC%20First%20NDR%20 technical%20report%20-%20web%20%28004%29.pdf 431 Ibid., at p. 8. 435 COP26, Decision -/CMA.3, “Glasgow Climate Pact”, para 46. 432 PA, Art. 9(3). 436 COP26, Decision -/CMA.3, “Compilation and synthesis of, 433 In 2020, developed countries fell short on the US$100 billion and summary report on the in-session workshop on, biennial climate finance commitment by only providing or mobilizing communications of information related to Article 9, paragraph 5, of US$83.3 billion climate finance – most of which was spent on the Paris Agreement, para 14. mitigation activities. See OECD Report on ‘Climate Finance Provided 437 Draft Decision -/CP.27 on “Matters Relating to Finance” Doc No. and Mobilized by Developed Countries in 2016-2020’ (September FCCC/CP/2022/L.6. 2022). The OECD expects the US$100 billion goal to be met by 2023. 438 Glasgow–Sharm el-Sheikh work programme on the global goal on 434 PA, Art. 9(4). adaptation (14 November 2021) Decision -/CMA.3. International Law Aspects of Sea Level Rise | 63 it will remain key for this process to allocate increased as focal areas).444 Other financial intermediary funds resources for financially constrained countries to plan, operating under the GEF are the SCCF, LDCF, Capacity implement, and evaluate adaptation.439 Building Initiative for Transparency, and Nagoya Protocol Implementation Fund. The GEF supports The Green Climate Fund (GCF) and the Global various projects relating to adaptation measures.445 Environment Facility (GEF), as well as the Least Financial contributions from donors are replenished Developed Countries Fund (LDCF) and the Special every four years. Under the GEF-7 replenishment Climate Change Fund (SCCF), both administered by period (2018–22), the GEF has mobilized US$4.1 the GEF, were entrusted as operating entities under billion.446 The GEF-8 replenishment (2022–26) aims the dedicated so-called Financial Mechanism of the to scale up this support with new pledges totaling UNFCCC and are also mandated to serve the Paris US$5.25 billion, increasing the GEF’s funding by Agreement.440 The Paris Agreement calls on the nearly 30 percent compared to GEF-7.447 institutions serving the Paris Agreement, including the operating entities of the Financial Mechanism The SCCF was established in 2001 at COP7 in under the UNFCCC to “aim to ensure efficient access Marrakech to finance projects relating to, in to financial resources through simplified approval particular, adaptation, technology transfer, and procedures and enhanced readiness support for capacity building.448 The SCCF has a capitalization of developing country Parties, in particular for the least more than US$363 million which has been providing developed countries and small island developing States, support for about 88 projects at the global level.449 in the context of their national climate strategies and plans” (emphasis added).441 The LDCF, also established at COP7, is designed specifically for LDCs. The LDCF assists LDCs in The GEF 442 was established by the World Bank preparing and implementing their National Adaptation in 1991, to support the financing of “global Programmes of Action (NAPAs) targeting primarily environmental goods.”443 The three original water, agriculture, disaster risk management, and “Implementing Agencies” of the GEF were United infrastructure sectors among others.450 Moving Nations Environment Programme, United Nations forward, funding support for NAP processes through Development Programme, and the World Bank with the SCCF is also contemplated.451 At COP27, eight four focal areas – Ozone Depletion, Climate Change, Biodiversity Conservation, and International Waters. 444 It is now the financial mechanism also for 1994 UN Convention to In 1994, the GEF was restructured to allow it to Combat Desertification, 2001 Stockholm Convention on Persistent Organic Pollutants, and the 2013 Minamata Convention on Mercury, become the Financial Mechanism for the UNFCCC and administers the Multilateral Fund for the Montreal Protocol. and the Convention on Biological Diversity, and land 445 For instance, under the World Bank’s Pacific Resilience Program, GEF provides funding through SCCF among other funding degradation (chemicals and waste were later added mechanisms. See, also Increasing Resilience to Climate Change and Natural Hazards Project (P112611) in Vanuatu and Kiribati Adaptation Program - Phase III Project (P112615) supported by the GEF. 439 Climate Analytics, “What next for the Global Goal on Adaptation?” 446 GEF Replenishment Cycles, available at: https://www.thegef.org/ (December 2021), available at: https://climateanalytics.org/ who-we-are/funding publications/2021/what-next-for-the-global-goal-on-adaptation/ 447 Ibid. 440 Decision 1/CP.21, at para 59. 448 UNFCCC COP Decision 7/CP.7, Report of the Conference of the 441 PA, Art. 9.9. Parties on its Seventh Session, held at Marrakesh from 29 October 442 Global Environment Facility, available at: https://www.thegef.org/ to 10 November 2001, Funding under the Convention, UNFCCC Doc. 443 The Instrument for the Establishment of the Restructured GEF, FCCC/CP/2001/13/Add.1. available at: https://www.thegef.org/documents/instrument- 449 Special Climate Change Fund – SCCF, Global Environment Facility, establishment-restructured-gef For history, see, Freestone, D. available at: https://www.thegef.org/topics/special-climate-change- 2007. “The Establishment, Role and Evolution of the Global fund-sccf Environment Facility: Operationalizing Common but Differentiated 450 Least Developed Countries Fund – LDCF, Global Environment Responsibility?” Liber Amicorum for Thomas A. Mensah: Law of the Facility, available at: https://www.thegef.org/topics/least-developed- Sea, Protection of the Marine Environment and Settlement of Disputes. countries-fund-ldcf Martinus Nijhoff, pp. 1077-1107. 451 SCCF, available at: https://www.thegef.org/topics/special-climate- 64 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise donor governments pledged new funding for the LDCF The agreement reached at COP26 (2021) on the and SCCF for a total of $105.6 million.452 rules and procedures of the cooperative approaches under Article 6 of the Paris Agreement (including The Adaptation Fund453 was established by the 1997 market mechanisms and non-market approaches) Kyoto Protocol (Article 12) but operationalized at COP13 has implications for adaptation finance. As a “Share in December 2007 in Bali, Indonesia. At COP24, Parties of Proceeds”, 5 percent of the emission reductions decided that the Adaptation Fund “shall” serve the Paris (Art.6.4 ERs) transacted under the Sustainable Agreement effective 1 January 2019.454 The World Bank Development Mechanism (SDM), established under serves as trustee of the Adaptation Fund on an interim Article 6.4 of the Paris Agreement, are required to be basis. The Adaptation Fund supports adaptation projects forwarded to the Adaptation Fund to be monetized and by bridging the adaptation funding gap and aims to to support concrete adaptation projects in developing bolster countries’ adaptive capacities through a Direct countries around the world.460 During COP26, a Access modality, which is designed to enable “National push was made to also implement a similar “Share of Implementing Entities”455 to directly access adaptation Proceeds” requirement for adaptation finance under funding and have ownership on adaptation action.456 Article 6.2 of the Paris Agreement for “internationally Although designed to be funded by a so-called “Share transferred mitigation outcomes” (ITMOs) transacted of Proceeds” from Clean Development Mechanism under Article 6.2 of the Paris Agreement. However, transactions under the Kyoto Protocol457 it is also a donor instead of becoming a requirement, the COP26 (2021) fund and in 2019, the Adaptation Fund reached close to decision on Article 6.2 only “strongly encourages” US$90 million in new pledges. At COP26, the Adaptation countries that participate in cooperative approaches Fund raised US$356 million in new pledges including to commit to contribute resources for adaptation “to first-time contributions from the United States and assist developing country Parties that are particularly Canada (at the national level).458 At COP27, contributors vulnerable to the adverse effects of climate change to announced nearly US$243 million in new pledges and meet the costs of adaptation.”461 contributions.459 The GCF462 was launched in 2010 during COP16, in change-fund-sccf Cancun, Mexico, to serve as an operating entity of 452 See, GEF, “Countries pledge added support to GEF funds for urgent climate adaptation” (15 November 2022), available at: https://www. the Financial Mechanism of the UNFCCC (together thegef.org/newsroom/press-releases/countries-pledge-added- with the GEF) to provide funding for mitigation and support-gef-funds-urgent-climate-adaptation. See also, GEF, “Joint statement on donors’ pledge of $105.6 million and confirmation of adaptation action. The outcome of the Paris Agreement support to the Least Developed Countries Fund and Special Climate also highlighted the key role of the GCF for post-2020 Change Fund” (15 November 2022), available at: https://www.thegef. international climate finance infrastructure. The World org/newsroom/news/joint-statement-donors-pledge-105-6-million- and-confirmation-support-least-developed Bank serves as the interim trustee and as an Accredited 453 Adaptation Fund, available at: https://www.adaptation-fund.org/ Entity of the GCF. As part of its first replenishment 454 Decision 13/CMA.1 and Decision 1/CMP.14 on “Matters relating to the Adaptation Fund” Docs No. FCCC/PA/CMA/2018/3/Add.2 and period (2020–2023; GCF-1), the GCF mobilized US$10 FCCC/KP/CMP/2018/8/Add.1 respectively. billion. The GCF Board meeting in July 2022 officially 455 For further details, see: https://www.adaptation-fund.org/apply- funding/implementing-entities/national-implementing-entity/ 456 For details on “Direct Access” visit: https://www.adaptation-fund. Egypt” (December 2022), available at: https://www.adaptation-fund. org/about/direct-access/ org/wp-content/uploads/2022/11/Press-Release_Updated122202_ 457 Kyoto Protocol, Art 12. Note that the Doha Amendments extended Adaptation-Fund-Receives-Nearly-US-243-Million-Mobilized-in- it to the share of proceeds of Joint Implementation projects under 2022-for-the-Most-Climate-Vulnerable-at-COP27-in-Egypt.pdf Art. 6 of Kyoto. 460 UNFCCC, “COP26 Outcomes: Finance for Climate Adaptation”, 458 Adaptation Fund, “Adaptation Fund Raises Record US$ 356 Million available at: https://unfccc.int/process-and-meetings/the-paris- in New Pledges at COP26 for its Concrete Actions to Most Vulnerable” agreement/the-glasgow-climate-pact/cop26-outcomes-finance-for- (November 2021), available at: https://www.adaptation-fund.org/ climate-adaptation#eq-4 adaptation-fund-raises-record-us-356-million-in-new-pledges-at- 461 COP26, Decision -/CMA.3, “Guidance on cooperative approaches cop26-for-its-concrete-actions-to-most-vulnerable/ referred to in Article 6, paragraph 2, of the Paris Agreement”, para 37. 459 Adaptation Fund, “Adaptation Fund Receives Nearly US$ 243 462 Green Climate Fund (GCF), available at: https://www.greenclimate. Million Mobilized in 2022 for the Most Climate-Vulnerable at COP27 in fund/ International Law Aspects of Sea Level Rise | 65 launched the replenishment cycle for the second Loss and Damage replenishment period (2024–2027; GCF-2) 463 that will The continuous work of SIDS with the Association lead to a GCF pledging conference in September 2023 of Small Island States (AOSIS) has been crucial in and be critical for GCF’s continued role and status in prompting discussions of loss and damage at the the international climate finance architecture. UNFCCC level leading to the COP19 (2013) establishing the Warsaw International Mechanism for Loss and Moreover, the Climate Investment Funds (CIF) were Damage associated with Climate Change Impacts created in 2008 for six Multilateral Development (WIM) and the Executive Committee (ExCom) of the Banks including the Asian Development Bank, African WIM. The WIM has led to significant change in the Development Bank, European Bank for Reconstruction discourse concerning loss and damage within the and Development, Inter-American Development Bank, UNFCCC process. At COP21 (2015), developing country International Finance Corporation, and World Bank, Parties succeeded in having a separate Article 8 on to fill an immediate financial gap. CIF consists of two loss and damage included in the Paris Agreement. funds, namely, the Clean Technology Fund (CTF) and But, at the same time, developed countries made sure the Strategic Climate Fund (SCF). The Pilot Programme to document in Decision 1/CP.1, para. 51, to the Paris for Climate Resilience (PPCR) is a targeted program Agreement that Article 8 “does not involve or provide developed under the SCF which aims to support a basis for any liability or compensation”. developing countries and regions that are highly vulnerable to climate change by strengthening their Specifically, the areas of cooperation and facilitation adaptive capacities and resilience against the impacts of to enhance understanding, action, and support under climate change on their communities, ecosystems, and Article 8 of the Paris Agreement may include: infrastructures.464 a) Early warning systems However, much more financial support is needed to b) Emergency preparedness meet global demand for adaptation action. There are c) Slow onset events varying estimates in respect to adaptation costs and d) Events that may involve irreversible and investment needs. In 2018, the annual global cost of permanent loss and damage adaptation has been estimated by a World Bank study e) Comprehensive risk assessment and management at between US$28 billion and more than US$100 billion f) Risk insurance facilities, climate risk pooling and a year by 2030 and US$70 billion to US$500 billion by other insurance solutions 2050.465 The 2021 UNEP Adaptation Gap Report also g) Non-economic losses finds that there is an urgent need to step up climate h) Resilience of communities, livelihoods and adaptation finance as the estimated adaptation costs ecosystems. in developing countries are five to ten times greater than current public adaptation finance flows, and the As of today, there is no official definition under the adaptation finance gap is widening.466 UNFCCC of the term “Loss and Damage”. However, the term is commonly understood to refer to the consequences of and harm caused by the impacts of 463 GCF, Resource Mobilization, available at: https://www. climate change that go beyond what people can adapt greenclimate.fund/about/resource-mobilisation/gcf-2 464 Climate Investment Funds (CIF), Pilot Programme for Climate to, including sea level rise. Resilience, available at: https://www.cif.org/topics/climate-resilience 465 See, in general, Hallegatte, S. et al. 2018. “The Economics of (and Obstacles to) Aligning Development and Climate Change Adaptation: There have been continual calls from developing A World Bank Group Contribution to the Global Commission on countries to include loss and damage in mandate of Adaptation”, available online at www.gca.org the operating entities of the Financial Mechanism 466 UNEP, Adaptation Gap Report 2021 (1 November 2021), available at: https://www.unep.org/resources/adaptation-gap-report-2021 and expand the institutional arrangements under 66 | Part III Key Legal and Policy Questions Faced by Coastal States, Particularly Low-Lying States and SIDS, in Relation to Sea Level Rise the WIM to ensure that developing countries would the establishment of a new fund providing loss and benefit from its work. The Santiago Network for damage support, as well as assisting in mobilizing averting, minimizing, and addressing loss and “new and additional resources” and, as such, damage associated with the adverse effects of climate “complement and include sources, funds, processes change467 was created “to catalyze the technical and initiatives under and outside the Convention and assistance of relevant organizations […] for the the Paris Agreement.”473 The wording of the Decision implementation of relevant approaches at the local, does not necessarily require the new fund to become an national and regional level, in developing countries additional operating entity of the Financial Mechanism that are particularly vulnerable to the adverse effects of the UNFCCC and the Paris Agreement. That said, of climate change.”468 the structure and operational modalities of these new funding arrangements for loss and damage are yet to Science confirms that actual loss and damage is be clarified in the upcoming COP(s). already occurring.469 Some estimates have been provided on the economic cost of loss and damage Other Selected Modalities in developing countries from selected regions with The World Bank offers a range of financing options in total residual damages for these regions ranging response to natural disasters and emergencies. These from US$116–435 billion in 2020 and rising to include Catastrophe Deferred Drawdown Option (Cat US$290–580 billion in 2030.470 DDOs), Contingent Emergency Response Components (CERCs), Investment Project Financing (IPF), and A multi-year Glasgow Dialogue was established at Development Policy Financing (DPF) Operations that COP26 (2021) to discuss the arrangements for the are prepared in response to natural disasters, including funding of activities to avert, minimize, and address under the International Development Association loss and damage associated with the adverse impacts (IDA)474 Crisis Response Window (CRW), and disaster of climate change.471 COP27 (2022) then closed with risk intermediation services and products.475 Similarly a breakthrough agreement to provide “new funding to IDA18 and IDA19, IDA’s 20th replenishment also arrangements for assisting developing countries that includes a special theme on climate change with are particularly vulnerable to the adverse effects of additional commitments.476 climate change in responding to loss and damage”.472 These funding arrangements are likely to lead to In addition to these various financing instruments, World Bank products and services that can provide support for States in addressing the impacts of sea 467 UNFCCC, About the Santiago Network, available at: https://unfccc. int/topics/adaptation-and-resilience/resources/santiago-network/ level rise may also include Advisory Services and about-the-santiago-network Analytics (ASA). These are non-lending activities that 468 COP25, Decision 2/CMA.2, “Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts and can support the design or implementation of relevant its 2019 review” (advanced unedited version), available at: https:// unfccc.int/sites/default/files/resource/cma2_auv_6_WIM.pdf para 43. 473 COP 27, Decision 2/CP.21, para.2. 469 IPCC 1.5°C Special Report (2018); see also, Mechler, R., C. Singh, 474 Established in 1960, the International Development Association and K. Ebi, et al. 2020. “Loss and Damage and limits to adaptation: (IDA) is the part of the World Bank Group that helps the world’s recent IPCC insights and implications for climate science and policy”, poorest countries by providing zero to low-interest credits and Sustainability Science, Vol. 15, pp. 1245–1251. grants. See, https://ida.worldbank.org/en/what-is-ida 470 See, Markandya, A., and M. González-Eguino, “Integrated 475 For a detailed treatment of these as instruments, see, World Bank Assessment for Identifying Climate Finance Needs for Loss and LEG Climate Change Thematic Working Group Learning Note “Legal Damage: A Critical Review” in Mechler, R. (eds) et al. 2019. Loss Aspects of World Bank Financing for Recovery from Natural Disasters and Damage from Climate Change: Concepts, Methods and Policy and Health-Related Emergencies” (March 2020). Options, Springer, at p. 349. 476 IDA20 Special Theme: Climate Change (June 2021), available at: 471 Glasgow Climate Pact, para 73. http://documents.worldbank.org/curated/en/374421625066951199/ 472 COP 27, Decision 2/CP.27, par 2. IDA20-Special-Theme-Climate-Change International Law Aspects of Sea Level Rise | 67 policies to adapt to the impacts of sea level rise, Likewise, the African Risk Capacity (ARC) was strengthen relevant institutions, and build capacity.477 established in 2013 to better plan, prepare, and respond to extreme weather events and natural disasters in Another significant actor in the field of disaster Africa.482 A recent example of disaster risk pooling has risk management is the Global Facility for Disaster been the Southeast Asia Disaster Risk Insurance Facility Reduction and Recovery (GFDRR), a grant-funding (SEADRIF) that was formed as a regional platform to mechanism managed by the World Bank. The GFDRR build financial resilience against climate shocks and is a global partnership providing support to developing disasters in Southeast Asia.483 countries in reducing their vulnerability to climate change and disaster risks through funding and Finally, the NDC Partnership, housed in the World technical assistance.478 GFDRR builds its support on the Resource Institute (WRI) and the UNFCCC Secretariat, is priority areas identified by the Sendai Framework for a global initiative made up of more than 200 members, Disaster Risk Reduction 2015–30.479 including more than 115 (developed and developing) countries and more than 80 institutions, including the Regional catastrophe disaster risk pools can also World Bank Group, to create and deliver on ambitious constitute an effective approach to disaster risk climate action that helps to achieve the Paris management and address some of the impacts of Agreement and SDGs. In particular, it aims to provide climate change. The Caribbean Catastrophe Risk technical and financial support for countries to achieve Insurance Facility (CCRIF) was formed in 2007 as the their NDCs. It was launched during COP22 in 2016. The first multi-country risk pooling scheme in the world to NDC Support Facility (NDC-SF) is a multi-donor trust provide funding for Caribbean governments to alleviate fund established and managed by the World Bank the financial impact of hurricanes and earthquakes.480 (under the umbrella of the World Bank-administered In the same vein, the Pacific Catastrophe Risk Climate Support Facility [CSF]) to contribute to the Assessment and Financing Initiative (PCRAFI) and the implementation of NDCs and align green economic Pacific Catastrophe Risk Insurance Company (PCRIC) recovery efforts with countries national climate goals were established as a regional insurance scheme to and long-term, low-carbon, climate-resilient strategies. support member countries with post disaster funding.481 It works with the NDC Partnership to mobilize financial and technical support to help countries meet their 477 This report is prepared as part of the “Building Resilience in Pacific NDCs.484 Adaptation and resilience are important Atoll Island Countries Study” which is built on an initial assessment under the Programmatic Advisory Services & Analytics (ASA) on components of future NDCs; these mechanisms have Building Climate and Disaster Resilience in the Pacific (P152037). considerable potential to develop national capacities. 478 GFDRR currently has more than 400 partnerships including community-level actors, civil society, academia, and international Countries can consider adding a component in their organizations. For further details on the GFDRR’s funding structure NDC to reflect their financing needs to meet that NDC and partnerships, see: https://www.gfdrr.org/en/partnerships commitment. Inclusion of finance gaps in NDCs is 479 Namely Priority 1: Understanding disaster risk, Priority 2: Strengthening disaster risk governance to manage disaster risk, voluntary but can be an effective tool to communicate Priority 3: Investing in disaster risk reduction for resilience, and finance gap needs. Priority 4: Enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation and reconstruction. 480 The Caribbean Catastrophe Risk Insurance Facility (CCRIF), see: 482 The African Risk Capacity (ARC), see: https://www. https://www.ccrif.org/about-us africanriskcapacity.org/ 481 Support is provided through direct premium subsidies from the 483 The Southeast Asia Disaster Risk Insurance Facility (SEADRIF), Government of Japan, Grants, national budgets, IDA credits. PCRIC see: https://seadrif.org/ offers modeled-loss-type parametric products covering earthquake, 484 The NDC Support Facility, see: https://www.worldbank.org/en/ tropical cyclone, and extreme rainfall. programs/ndc-support-facility Funafuti International Maldives. Photo: Visual Art Agency Airport, Tuvalu. Photo: Dmitry Malov International Law Aspects of Sea Level Rise | 69 Appendix I: Selected funds, financing, and other options available to SIDS The funds, financing, and other options available to SIDS and coastal states listed below represent a fraction of available options. In addition to climate funds – relevant World Bank modalities, initiatives from various MDBs, and bi-lateral aid agencies provide financing and technical support for projects and programs addressing climate action, with an increasing focus on adaptation.485 SIDS and coastal States will further benefit from exploring a wider range of opportunities beyond sources listed below. Selected funds/ Types of projects that can be Fund/grant size, or type of technical General requirements to qualify financing/ other funded/ financed or provided or other assistance for funding/financing, technical options available with technical or other types of assistance, or other types of assistance assistance Global The GEF provides funding for Under the GEF-7 replenishment Country eligibility for GEF Environment projects or programs that intend period (2018–2022), the GEF has funding can be satisfied through Facility (GEF) “to meet the objectives of the mobilized US$4.1 billion. The GEF- (i) ratification of the international international environmental 8 replenishment (2022–26) aims conventions the GEF serves and conventions and agreements” to scale up this support with new conformity with the eligibility which include the UNFCCC. The pledges totaling US$5.25 billion. criteria decided by the COP of GEF funding can be accessed each convention, or (ii) eligibility through four modalities including to receive World Bank financing full-sized projects, medium-sized or to receive UNDP technical projects, enabling activities, and assistance through its target for programmatic approaches. The resource assignments. In addition GEF supports countries in their to the country eligibility criteria, mitigation and adaptation efforts. the project must be driven by See also GEF Policy and Program the country, be consistent with Cycle Policy for additional details. national priorities that support sustainable development, and be aligned with GEF priority areas including biodiversity, mitigation, land degradation, international waters, and chemicals and waste (for more details, see GEF-8 Programming Directions Documents [7 January 2022]). The public must be involved in project design and implementation (See Policy on Public Involvement in GEF-Financed Projects). 485 See for instance, UNFCCC, Bilateral and Multilateral Funding, https://cop23.unfccc.int/topics/climate-finance/resources/multilateral-and- bilateral-funding-sources 70 | Appendix I: Selected funds, financing, and other options available to SIDS Selected funds/ Types of projects that can be Fund/grant size, or type of technical General requirements to qualify financing/ other funded/ financed or provided or other assistance for funding/financing, technical options available with technical or other types of assistance, or other types of assistance assistance Special Climate The SCCF primarily funds SCCF has a portfolio of more than All developing country Parties to Change Fund adaptation. It also funds US$363 million. the UNFCCC are eligible under the (SCCF) technology transfer, mitigation SCCF. A concept for a project must in selected sectors, and economic be submitted to the GEF Secretariat diversification. through one of its Implementing Agencies486 with a letter of endorsement from the country’s appointed GEF Operational Focal Point or government representative. Least Developed The LDCF helps countries Available funding can be accessed LDCs are eligible under the LDCF. Countries Fund prepare and implement National here. A concept for a project must be (LDCF) Adaptation Programs of Action submitted to the GEF Secretariat (NAPAs). Any sector identified as through one of its Implementing a priority area under the NAPA Agencies with a letter of is relevant for the LDCF (see, in endorsement from the country’s general). appointed GEF Operational Focal Point or government representative. Adaptation Fund There are no prescribed sectors At COP27, contributors announced Multilateral, regional, and national or approaches but the Adaptation nearly US$243 million in new organizations can apply for Fund finances concrete adaptation pledges and contributions.487 accreditation as implementing projects and programs in entities by the Adaptation Fund developing countries that are Board. Once an organization particularly vulnerable to the has received accreditation, it adverse effects of climate change. can submit project proposals for approval by the Board. Project and program proposals undergo either a one-step or a two-step approval process. Green Climate The GCF provides funding for As part of its first replenishment The GCF works through a Fund (GCF) both mitigation and adaptation (GCF-1), the GCF mobilized US$10 diverse range of partners. action, technology development billion. Recipient countries have direct and transfer (including carbon access to funding through capture and storage), and capacity accredited national and sub- building. national implementing entities and intermediaries (through rigorous fiduciary requirements to become accredited). Alternatively, countries can access funding through accredited international entities, such as MDBs, UN agencies, and regional organizations. 486 See, United Nations Development Programme, United Nations Environment Programme, World Bank, African Development Bank, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank, International Fund for Agricultural Development, United Nations Food and Agricultural Organization, United Nations Industrial Development Organization, World Wildlife Fund, Inc., Conservation International, International Union for Conservation of Nature, and Development Bank of Southern Africa. 487 Adaptation Fund, “Adaptation Fund Receives Nearly US$243 Million Mobilized in 2022 for the Most Climate-Vulnerable at COP27 in Egypt” (December 2022), available at: https://www.adaptation-fund.org/wp-content/uploads/2022/11/Press-Release_Updated122202_Adaptation- Fund-Receives-Nearly-US-243-Million-Mobilized-in-2022-for-the-Most-Climate-Vulnerable-at-COP27-in-Egypt.pdf International Law Aspects of Sea Level Rise | 71 Selected funds/ Types of projects that can be Fund/grant size, or type of technical General requirements to qualify financing/ other funded/ financed or provided or other assistance for funding/financing, technical options available with technical or other types of assistance, or other types of assistance assistance The Climate The CIF consists of two funds, Available funding can be accessed Countries can access the PPCR Investment Funds the Clean Technology Fund (CTF) here. through the development (CIF) and the Pilot and the Strategic Climate Fund banks working in their country Programme for (SCF). The PPCR is a targeted by providing an expression of Climate Resilience program developed under the SCF. interest. Countries are selected (PPCR) The Regional Technical Support by a PPCR expert group based Mechanism, as a registered on certain criteria (including network of pre-approved experts transparency and vulnerability, on various climate-related topics, country distribution, preparedness, can be used to provide advice on and types of hazards). available finance opportunities and general technical assistance including developing project and program proposals, at the request of PICs. Relevant World The World Bank offers a range of Available funding depends on the Eligibility criteria depend on the Bank products, financing options including the relevant products, services, and relevant products, services, and services, and Catastrophe Deferred Drawdown support modalities. support modalities. other support Option (Cat DDO), Contingent modalities Emergency Response Components (CERCs) in Investment Project Financing (IPF), stand-alone investment projects, or Development Policy Operations (DPOs) that are prepared in response to natural disasters, including under the IDA Crisis Response Window (CRW), and disaster risk intermediation services and products.488 Regional The Pacific Catastrophe Risk Initial capitalization provided Pacific Catastrophe Risk Insurance catastrophe Assessment and Financing to PCRIC from donor partners Company (PCRIC) offers modeled- disaster risk pools Initiative (PCRAFI) aims to provide through the InsuResilience loss-type parametric products. The (Pacific) PICs with disaster risk modeling Global Partnership and PCRAFI PCRIC payouts are usually made and assessment tools and financial Multi-Donor Trust Fund (MDTF), within 10 days, providing member solutions for the reduction of their administered by the World Bank. countries with an immediate but financial vulnerability to natural Sources of premia include direct limited cash injection following disasters and to climate change. premium subsidies from the an eligible hazard. Policy triggers Government of Japan, grants, are based on modeled losses, national budgets, and IDA credits. rather than on-the-ground loss assessments. Risks covered include earthquake, tropical cyclone, and extreme rainfall. Insured members are the Cook Islands, the Marshall Islands, Samoa, Tonga, and Vanuatu. Other eligible members include Fiji, Kiribati, Federated States of Micronesia, Nauru, Niue, Palau, Papua New Guinea, Solomon Islands, Timor Leste, and Tuvalu. 488 For a detailed treatment of these instruments, see, World Bank LEG Climate Change Thematic Working Group Learning Note “Legal Aspects of World Bank Financing for Recovery from Natural Disasters and Health-Related Emergencies” (March 2020). 72 | Appendix I: Selected funds, financing, and other options available to SIDS Selected funds/ Types of projects that can be Fund/grant size, or type of technical General requirements to qualify financing/ other funded/ financed or provided or other assistance for funding/financing, technical options available with technical or other types of assistance, or other types of assistance assistance Regional The Caribbean Catastrophe Risk Initial capitalization through CCRIF offers earthquake, tropical catastrophe Insurance Facility (CCRIF) was contributions to a MDTF by various cyclone, and excess rainfall policies disaster risk pools formed in 2007 as the first multi- donors and membership fees paid to Caribbean and Central American (Caribbean) country risk pooling scheme in by participating governments. governments. CCRIF introduced the world to provide funding for The MDTF currently channels coverage for the fisheries sector Caribbean governments to alleviate funds from various donors, for Saint Lucia and Grenada (July the financial impact of hurricanes including Canada, USA, EU, and 2019) and coverage for electric and earthquakes. Germany. Additional financing has utilities (October 2020). Currently been provided by the Caribbean 19 Caribbean governments are Development Bank, with resources members (Anguilla, Antigua & provided by Mexico, Ireland, the Barbuda, Bahamas, Barbados, EU, and The World Bank. Belize, Bermuda, British Virgin Islands, Cayman Islands, Dominica, Grenada, Haiti, Jamaica, Montserrat, St. Kitts & Nevis, Saint Lucia, Sint Maarten, St. Vincent & the Grenadines, Trinidad & Tobago, and Turks & Caicos Islands); 3 Central American governments (Guatemala, Nicaragua, and Panama); and 2 electric utility companies (ANGLEC and LUCELEC). Regional The African Risk Capacity (ARC) Initial capitalization through ARC provides an “index-based catastrophe Group is a Specialized Agency of participating countries’ premiums insurance mechanism for disaster risk pools the African Union established to as well as one-time partner infrequent, severe drought events.” (Africa) help African governments improve contributions In order to participate in ARC, their capacities to better plan, countries must undertake several prepare, and respond to extreme processes (see here). Members weather events and natural receive a payout when the rainfall disasters. deviation is sufficiently severe (when the estimated response costs cross a certain pre-defined threshold). When that happens, qualifying members receive a payout within 2–4 weeks of the end of the rainfall season, to allow them to begin early intervention programs. It currently offers a maximum coverage of US$30 million per country per season for drought events that occur with a frequency of 1 in 5 years or less. ARC currently has 35 Member States from the African Union (see here). International Law Aspects of Sea Level Rise | 73 Selected funds/ Types of projects that can be Fund/grant size, or type of technical General requirements to qualify financing/ other funded/ financed or provided or other assistance for funding/financing, technical options available with technical or other types of assistance, or other types of assistance assistance NDC Partnership The NDC Partnership provides Analytics and knowledge sharing, & NDC Support technical and financial support capacity-building, and cross- Facility for countries to achieve their sectoral coordination. NDCs. The NDC Support Facility (NDC-SF) is a multi-donor trust fund established to contribute to the implementation of NDCs. It works with the NDC Partnership to mobilize financial and technical support to help countries meet their NDCs. Global Climate The GCCA is funded by the EU and In the second phase (2014–20), LDCs and SIDS send an official Change provides support for five priority the GCCA received a total of €420 expression of interest to the Alliance (GCCA) areas including climate change million. European Union (EU) delegation and poverty reduction, adaptation, in their home country. The EU deforestation, and disaster risk Delegation assesses eligibility reduction. based on the availability of funds and selection criteria for GCCA funding (including vulnerability to climate change, in particular the risks related to floods, droughts, storms, and sea level rise).