Lawyers are preparing for a time when certain entire nations cease to exist because of climate change.
A committee of the International Law Association is tasked with considering two challenges:
- to study the possible impacts of sea level rise and the implications under international law of the partial and complete inundation of state territory, or depopulation thereof, in particular of small island and low-lying states; and
- to develop proposals for the progressive development of international law in relation to the possible loss of all or of parts of state territory and maritime zones due to sea level rise, including the impacts on statehood, nationality, and human rights.
Somehow there is something very powerful about the use of clinical legal language in discussing what will be multiple thousands of individual human tragedies. The unjust transition, the unfairness, of sea level rise’s destruction of entire nations comes home very clearly.
As we know, in most cases those affected in this way are among the people least responsible for climate change and least able to finance its consequences. Those who have most benefited from the economic growth that fossil fuel use has powered are unfairly imposing traumatic consequences on those who have gained limited benefits and have limited scope to cope. That is the greatest unfairness, the great injustice, of this transition.
Sea-levels have already risen around 20cm or so since 1880, with the pace increasing from around 1.4mm a year in the 20th century to 3.6mm in more recent years. About two-thirds is due to melting glaciers and ice-sheets, one-third because of the thermal expansion of the water as it heats up. This ratio used to be nearer 50:50 but melting has accelerated in the last decade. Projections from here vary, just as the path of global politics makes it impossible to predict with any certainty the path of future carbon emissions. But the lowest estimates see rises of at least 0.3m by 2100; the more extreme pathway suggests it could be 2.5m. In storms, the rise that is experienced will be still greater.
It is of course not the first time that land inhabited by humans has been subject to inundation. The number of cultures with ancient stories of great floods is ample testament to that, as is the existence of Doggerland, territories walked by our mesolithic ancestors now beneath the waters of the North Sea. But it is probably (pace Utnapishtim, Noah and the rest) the first time that humankind has known what is coming, and it is certainly the first time since we invented nation states and have created laws of the sea.
This issue of sea level rise and inundation is about nation states, but it is at its heart a human tragedy at the scale of individuals. Which is why the case of Ioane Teitiota – called by some the ‘first climate change refugee’ – is so interesting. Teitiota is a national of Kiribati, one of the Pacific island nations seen to be most at risk from sea level rise. He sought refugee status in New Zealand on the basis of the risk to his life from climate change, and having failed through the New Zealand process he took the case to the UN Human Rights Committee for adjudication in 2015. The Committee issued its ruling towards the end of 2019.
The Committee agreed that forcibly returning a person to a place where their life would be at risk due to the adverse effects of climate change has the capacity to violate their right to life, one of the core human rights that most states have agreed to uphold. However, the majority opinion of the committee found, with two dissenters, that though there were indeed significant threats these were not imminent and they were not personal to Teitiota (officially called the author of these proceedings), as the law requires.
As so often, it is among the dissenting opinions that the clearest and most powerful statements are found. Committee member Duncan Laki Muhumuza stated: “The author presents evidence, which is not disputed by either the State party or the rest of the Committee, that sea level rise in Kiribati has resulted in the scarcity of habitable space, causing life endangering violent land disputes, and in severe environmental degradation resulting in contamination of the water supply and the destruction of food crops”. He goes on to say: “In my view, the author faces a real, personal and reasonably foreseeable risk of a threat to his right to life as a result of the conditions in Kiribati. The considerable difficulty in accessing fresh water because of the environmental conditions should be enough to reach the threshold of risk, without needing to reach the point at which there is a complete lack of fresh water.”
This lack of fresh water, and its worrying health consequences, are among the most striking elements of the evidence in the case. In part they are striking because saltwater infiltration contaminating freshwater supplies is a fundamental concern, not only in terms of the health of individuals but because it is one of the indicators of an island no longer being inhabitable – something which in law (as a shorthand) renders them no longer islands at all, but rocks, with much reduced status under the UN Convention on the Law of the Sea. Any such reclassifications would be fundamental, for example: “if the island of Kapingamarangi, the southernmost island in the Federated States of Micronesia, located some 300 kilometres south of the nearest island were to be reclassified as a rock, the Federated States of Micronesia would lose more than 30,000 square nautical miles of its exclusive economic zone” according to a 2020 report from the International Law Commission.
And this issue of the extent of the exclusive economic zone really matters: fisheries exports account for 94.7% of total exports for Federated States of Micronesia, 81.9% for the Cook Islands, 73% for Palau, 61.5% for Samoa and 23.8% for Tonga. As the extent of their land above sea level shrinks, the nations’ maritime waters will increasingly become high seas and these revenue sources will disappear.
It’s for this reason, as well as tradition and sentiment, that these states are arguing that rather than maritime boundaries shifting as land gets inundated, they should remain fixed. And that they should be fixed even after the point that the entire nations are fully submerged, or otherwise become uninhabitable. That at least would secure a revenue source for the displaced nation as it tried to build lives elsewhere above the waves.
There aren’t really alternatives. Maintaining territorial waters by artificial maintenance of land above sea level is prohibitively expensive, so much so that it “raises considerations of equity and fairness”, the International Law Commission states. Even wealthy Singapore baulks at the cost. It feels the need to prepare for a local mean sea level rise of 1 metre by 2100, quite fundamental for an island where around 30% is less than 5 metres above mean sea level. A comprehensive approach to coastal defences “could cost S$100 billion or more over the next 50 to 100 years”.
Lawyers are preparing for a time when certain entire nations will no longer exist, and are proposing legal ways forward in respect of those extraordinary circumstances. The basic conclusion that they are reaching, in support of these island nations, is that though the nations may cease to exist, their rights over the relevant pieces of ocean – their territorial waters – should persist. The hope being that this would provide at least some financial protection for their impoverished nationals.
I was initiated into these discussions by a remarkable series of webinars hosted by the great British Institute of International and Comparative Law, called Rising Sea Levels: Promoting Climate Justice through International Law. Despite the best efforts of some campaigning lawyers, the lack of justice, the lack of fairness, in what is happening is what came across to me most powerfully from these four thoughtful sessions.
So, on earth day, a blog on the sea, a blog on the impending loss of earth in perhaps the most fundamental of ways. A blog on the most unjust transition of all.
See also: Just transitions and gilets jaunes
This wonderful Tortoise photo essay brings these issues to life in a way that my words do not.
Report of the Committee on International Law and Sea Level Rise, International Law Association, 2018
Teitiota v Ministry of Business, Innovation & Employment, New Zealand. UN Human Rights Committee, CCPR/C/127/D/2728/2016
UN Convention on the Law of the Sea (1982)
Sea-level rise in relation to international law: First issues paper, Bogdan Aurescu, Nilüfer Oral, International Law Commission, 2020
Rising Sea Levels: Promoting Climate Justice through International Law, BIICL webinar series, March 2021
The Sense of Fairness blog 