BY: Prateek Singh
Prateek Singh is a student at National Law University in Jodhpur, India
In an era of climate change, the sea poses a threat to island states. With an increase in sea levels, the coastal boundaries of a territory are moving landwards, thereby causing a part of the land to get submerged by the sea, leaving it inaccessible for habitation.[1] According to the World Meteorological Organisation, by the end of this century, the global average temperatures are likely to increase by over 3°C, which may in turn cause seas to rise by almost a meter.[2] This could have deadly outcomes for the international community, since a number of states are likely to lose a large percentage of their territories to water. Low-lying nation states like Maldives and the Marshall Islands are expected to be completely submerged by the end of this century.[3]
Section 2 of the 1982 United Nations Convention on the Laws of the Sea (UNCLOS) holds that the maritime territories of a state are measured from its baseline, the line along the coast from which the seaward limits of a state’s territorial sea and other maritime zones are measured.[4] However, with a continuous increase in sea levels, baselines are likely to move landwards. If this occurs, states will lose control over their land and nautical territories. Exclusive Economic Zones (EEZ) are naval zones measured 200 nautical miles from the baseline, under which a nation is exclusively entitled to conduct economic activities such as fishing, navigation, and oil and gas mining.[5] Based on the verdict of the International Court of Justice (ICJ) in the Land Continental Shelf (Germany v Denmark and the Netherlands [1969] ICJ 1), as per the principle of land dominates the sea, a state has no right to control its formerly occupied naval territory, if it loses its land to the sea.[6] If a state loses its land territory to water, it inevitably also loses its right to carry out commercial activities over a certain nautical region.
However, the ICJ’s opinion in the North Sea Continental Shelf case serves as a settled principle of international law, stating that once a nation has once attained its statehood, its status shall not cease to exist even if it becomes unable to satisfy the essentials, as laid under the Montevideo Convention, 1933.[7] This principle affirms the idea that the nature of international law acts not on the basis of sanctions, but on the basis of consent. Since state recognition is merely a social action, other states may continue to interact with submerged states. In addition, it is pertinent to differentiate between the state’s land and the state’s territory. A land possessed by the state which is submerged will continue to remain a part of the state’s territory.[8]
There exists no framework to decide how long a state may sustain without a territory of its own. However, there do exist examples such as the Order of Malta and the Holy See, which represent a state’s ability to exercise control without having power over a defined territory.[9]
Despite the absence of an explicit mechanism regulating the statehood of submerged states under international law, the Sydney Conference of 2018 acted as a turning point, observing a practice for states to demarcate unvarying baselines which shall remain unchanged even if the land territory moves inwards.[10]
Though the law is not very strong on this point, the fact that existing landless states are able to exercise control in their territories indicates that sovereignty persists even if the state loses its characteristics of statehood. Since sovereignty binds a territory, not a land, it is likely that in the circumstance where a state loses its land to the seas, its citizens shall still be entitled to continue controlling within their maritime territories. Professor Burkett has drawn a solid analogy, predicting that a deterritorialized state is bound to exist, as in the case of states with exiled governments.[11] Such states are an example of states maintaining their sovereignty without possessing any land, functioning satisfactorily with due recognition under international law. Tibet is one such state operating despite its government being dislocated.[12]
Therefore, a state’s sovereignty does not simply rest upon its land, but upon its territory, which also includes water and air. Although submergence under the sea would not amount to losing statehood status per se, it is important that states formally declare their baselines on an urgent basis so as to authenticate their land and naval territories and ensure stable maritime governance.
[1] National Geographic. 2020. Weather Shows Evidence Of Climate Change Every Single Day Since 2012. [online] Available at: <https://www.nationalgeographic.com/science/2020/01/weather-shows-evidence-of-climate-change-every-single-day-since-2012> [Accessed 19 October 2020].
[2] World Meteorological Organization. 2019. State Of The Climate In 2018 Shows Accelerating Climate Change Impacts. [online] Available at: <https://public.wmo.int/en/media/press-release/state-of-climate-2018-shows-accelerating-climate-change-impacts#:~:text=The%20WMO%20Statement%20on%20the,and%20is%20expected%20to%20continue.>
[3] World Bank. 2010. Climate Change In The Maldives. [online] Available at: <https://www.worldbank.org/en/news/feature/2010/04/06/climate-change-in-the-maldives#:~:text=With%20the%20melting%20of%20polar,in%20the%20worst%2Dcase%20scenario.> [Accessed 29 July 2020].
[4] Section 2, Article 5. United Nations Convention on the Law of the Sea (UNCLOS). [online] Available at: <https://www.un.org/depts/los/convention_agreements/texts/unclos/part2.htm.> [Accessed 5 October 2020].
[5] Part V, Article 57. United Nations Convention on the Law of the Sea (UNCLOS). [online] Available at: <https://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm.> [Accessed 5 October 2020].
[6] North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Merits) [1969] ICJ Rep 3 para 96.
[7] North Sea Continental Shelf (Federal Republic of Germany/Netherlands) [1969] (The International Court of Justice).
[8] United Nations High Commissioner for Refugees, 2011. Climate Change Displacement And International Law: Complementary Protection Standards. LEGAL AND PROTECTION POLICY. [online] Available at: <https://www.unhcr.org/4dff16e99.pdf.> [Accessed 29 July 2020].
[9] Byrnes, Timothy, ‘Sovereignty, Supranationalism, And Soft Power: The Holy See In International Relations’ (2017). 15 The Review of Faith & International Affairs. Farran, C D’Olivier, ‘The Sovereign Order Of Malta: A Supplementary Note’ (1955) 4 International and Comparative Law Quarterly.
[10] In: Sydney Conference (2018). International Law and Sea Level Rise. Sydney: International Law Association.
[11] Burkett, Maxine, The Nation Ex-Situ: On Climate Change, Deterritorialized Nationhood, and the Post-Climate Era (2011). 2 Climate Law 345, 2011, Available at SSRN: https://ssrn.com/abstract=2372457
[12] Hao, Zhidong, ‘Sovereignty, Ethnicity, And Culture: The Tibetan Issue In An Institutionalist Perspective’ (2012) 21 Journal of Contemporary China.
