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Ocean Law Bulletins

Submerged States and the legal rights at risk

Mar 30, 2017 4:09:42 PM / by Kevin Chand and James Sloan

Climate change and its impacts are one of the greatest environmental problems of today and its effects include, inter alia, changing climate patterns, warming ocean temperatures, melting glaciers and ice caps, and sea level rise. These impacts while felt globally are disproportionately distributed. Low lying island States are particularly vulnerable with Pacific Islands like the Marshall Islands, Tuvalu and Kiribati facing uncertain futures because of the very real threat of sea level rise submerging their land territory (inundation). As well as the threatened loss of their homes, extinction of their cultures and the unwelcome prospect of becoming climate change refugees, they also face the consequence of losing their rights of sovereignty in International law.

In this piece we examine the unresolved question of whether States threatened with inundation may also lose their claim to their maritime zones and associated legal rights. We consider whether the international climate change regime has provisions that address this threat and briefly look at the limited opportunities for recourse under the present system and suggest an amendment to UNCLOS may be necessary to guarantee the rights of States threatened with the terrifying prospect of inundation.


An amendment to UNCLOS may be necessary to guarantee the maritime rights of States facing inundation, and the UN will be instrumental in securing these rights in the future.

Part 1: The Problem: Climate Change and sea level rise

The two primary causes of sea level rise are thermal expansion of the oceans water and the melting of glaciers and ice caps. Both are linked to climate change. It should be noted that sea level rise is not uniform across the globe due to a variety of factors that include changes in ocean currents, winds, the Earth’s gravity field and land distribution [3] with some of the highest rates of sea level rise found in the tropical Pacific Ocean [4].

 Natural geomorphological processes allow atolls, such as those of the Marshall Islands, Tuvalu and Kiribati, to adapt to gradual sea level rise over a period and in some cases may also increase the area of these islands [5]. However, with sea level rise increasing rapidly in the face of climate change, this rate exceeds the rate at which these atolls can naturally persist and adapt geo-morphologically [5]. A forced exodus of people from these islands may precede total submergence because of food and water insecurity issues coupled with “king tides” and salt water intrusion that may render the lands untenable.

Part 2: Inundation and Sovereignty

If inundation of sea water covers the atolls or islands of Pacific Island States completely then their internationally and legally recognized rights to sovereignty could be extinguished. National sovereignty and its enumerated rights are inextricably linked to statehood. The Montevideo Convention lays out the criteria for establishing what statehood entails and it includes:

a ) a permanent population;

b ) a defined territory;

c ) government; and

d) capacity to enter into relations with the other states.

There is an additional criterion of recognition by other States that confers legitimacy to statehood, and this often is more of a political choice [7], see the case of Taiwan or Turkish North Cyprus. Simply applying the criteria enumerated in the Montevideo Convention to the case of an inundated State creates worrying conclusions for Pacific Island States threated with inundation.

(a) Permanent population: This refers to the State maintaining a permanent population on the State’s territory. While there is no minimum population identified, in the event of inundation it is likely that the permanent population would be nil, thus the inundated State would fail the first criteria of statehood.

(b) A defined territory: In the event of inundation land territory would be essentially non-existent. Furthermore, maritime boundaries under the United Nations Convention on Law of the Sea (UNCLOS), are calculated from the coastal baselines and are ambulatory to it. Therefore, there is a real risk that loss of territory will extinguish existing claimed maritime boundaries in accordance with UNCLOS [8] as well as the State failing the criterion for a defined territory.

(c) A government: This is readily addressed given preexisting governing institutions, and is very likely to continue post-inundation with associated climate migration. However, the role and priorities of government are likely to shift to a primary role of maintaining the welfare of its relocated people and all its associated challenges. While the criterion of government may be met, the challenges that this government will face and how it and the cultures it will be tasked with protecting will fare are unknown.

(d) Capacity to enter into relations with other States: Given that a government is likely to exist in a post-inundation scenario, the fourth criterion is likely to be met. A government with established diplomatic relationships is likely to continue to enter relations with other States.

While it may be necessary to meet all of the above criteria to establish a sovereign State in international law there is an argument that once a Sovereign State is established losing one or more of those criteria will not necessarily cancel or negate Statehood. This is likely to reflect the nature of international law itself, in that it may depend on whether other States continue to recognize the sovereignty of inundated States. Eckert (2002) suggests that “statehood, once a “question of fact,” has become a primarily a question of norms. Indeed, the recognition of a State is more through social and political construction than the arbitrary criteria set out by the Montevideo Convention. This argument may provide a small comfort that a submerged sovereign State may persist following inundation through its continual recognition from other States. It is considered that issues of equity are central to this presumption, but there are no guarantees that this will be the case. Also, the question of how long a State can be maintained when it has no defined territory, no permanent population, and its population may be dispersed across different States is unknown. In terms of international law, we are when it comes to threats of this magnitude, in unchartered territory.

Part 3: Submerged States under international law

International Climate Change Regime

The International effort to combat climate change amounts to seeking the co-operation of all States to limit or reduce their carbon emissions. This effort is being led by the United Nations Framework Convention on Climate Change (UNFCCC) which provides the foundation for international cooperation. The Kyoto Protocol and the Paris Agreement sit within this UN led framework. The Paris Agreement aim is to limit a global temperature rises this century to below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.

Regardless of whether this strategy will succeed in its aim, unfortunately it is not likely to address the accelerating sea level rise in the near term or to the extent that is likely to alter the timeline of its impact for threatened Pacific Islands [11].

This climate change regime does not directly or adequately address the concerns of Island States threatened by inundation. A step towards this though, came via the Paris Agreement where the Warsaw International Mechanism for “Loss and Damage” associated with impacts of climate change was officially endorsed as a separate pillar of climate action in addition to adaptation and mitigation. This was a small victory for developing countries, particularly Small Island Developing States (SIDS) and Least Developed Countries (LDCs), who had advocated for the Paris Agreement to recognize Loss and Damage. Loss and Damage draws on numerous principles of international law, including polluter pays, intergenerational equity, trans-boundary harm and responsibility of a State [12].

Loss and Damage has been a politically contentious issue stemming from fears by developed countries that developing countries would link Loss and Damage to liability and compensation [13]. This intention was articulated in the decision text that provided Loss and Damage “does not involve or provide a basis for any liability or compensation.” While this arguably shuts the door from a litigation perspective to file suits against developed countries for liability and compensation for climate change impacts it is common of treaty negotiations that various parties with competing interests play “tug of war”[14]. Ultimately the Loss and Damage provision provides funding to assist with climate impacts that result in irrecoverable loss and repairable damage, however, the exact details of this, including the level of funding has yet to fully fleshed out. The UNFCCC Conference of the Parties (COP) in Bonn this year is presided over by Fiji and is being unofficially dubbed the “Pacific COP”. While the COP in Marrakech in 2016 failed to develop Loss and Damage further, this year’s COP places the spotlight on the Pacific and provides an opportunity to raise and address issues like loss and damage and other concerns that affect States threatened with inundation. Funds under Loss and Damage can be harnessed for states vulnerable to climate induced inundation.

Law of the Sea

UNCLOS provides the basis by which maritime boundaries are determined and created. It is under the UNCLOS framework and international law machinery that issues related to maritime territory will be decided. As for land territory, in the case of inundation it is presumed that sovereign claims to terrestrial territory will be extinguished in lieu of maritime claims (however temporary they may be).


UNCLOS enables maritime zones to be generated and claimed based on baselines that are calculated in accordance with UNCLOS. Generally, baselines will follow the low-water line mark of a coastal state, however, straight baselines may be used in the case of deeply indented coastlines or a coastline with fringing islands. For archipelagic states such as Fiji, archipelagic baselines may be claimed and are drawn as straight archipelagic baselines that connect the outermost points of the outermost islands. The maritime zone within the archipelagic baseline is called archipelagic waters. Baselines are dynamic and subject to change as a result of coastal erosion or land gain. It should be noted that, at present, under UNCLOS artificial islands do not generate any baselines nor do they generate any maritime claims. This precludes States threatened with inundation creating artificial islands over their existing territory to guarantee their rights to maritime boundaries after inundation if these rights are challenged.

Exclusive Economic Zone (EEZ)

EEZs may be claimed for up to 200nm from baselines. EEZ’s confer to coastal states sovereign rights within this zone (effectively 188nm from the outer edge of the territorial sea). In the development of UNCLOS maritime boundaries were deemed to be ambulatory to baselines. This is not explicitly mentioned in the text but stands contrary to exceptions under UNCLOS, like the continental shelves (permanent) and deltas (baselines of deltas can be fixed by coastal state and amended subject to their discretion). This means that with changing baselines the EEZ is subject to change as well. In the case of archipelagos, archipelagic baselines can shift dramatically if outer islands are inundated, potentially negating large swaths of archipelagic waters and the corresponding EEZ. This conceivably widens the potential losses that Pacific States could suffer to their existing maritime zones, as outer islands may be important to maintaining their existing claims to EEZ areas and in the event that these claims are challenged by other States.

Continental Shelf

A State’s continental shelf is generated from the determined baseline. The continental shelf extends to the outer limits of a State’s EEZ and can extend further depending on the natural prolongation of the continental shelf. Unlike EEZs, the continental shelf becomes permanent once its delimitation is deposited with the Secretary General of the United Nations. UNCLOS further provides that a State is entitled to maintain its claims in perpetuity or until a new map is deposited. In the case of an island State inundation will mean that if a State has deposited its continental shelf claims as specified it will, unlike its maritime boundaries, retain its sovereign rights over the continental shelf in perpetuity.

Climate change migration

One of the keys issues that arise from States that may be lost to sea level rise is the issue of where to next for its people? As a form of environmentally-induced displacement, this is characterized as “slow onset events for low lying small islands States (resulting in the loss of their territory)” [10]. The first avenue in international law would be to view this issue from an international refugee law perspective and the extent to which it is applicable [10]. The 1951 Convention relating to the Status of Refugees defines a refugee as “any person who… owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Under the test of the definition of what a refugee is, it would be difficult to establish that the driver of the migration or displacement is persecution in general, without delving into the reasons in more detail.

There is some debate on how to approach the problem of climate change displacement and migration and even whether the existing human rights framework is capable of meeting the challenges posed by the effects of climate change. Some argue that amending the definition of “refugee” to include those affected by climate change displacement could be a solution. A further possibility is framing the migration within the context of the Convention [15]. This latter viewpoint notes that climate change displacement will be complemented by a host of competing issues that could be harnessed to fit within the definition of refugee in lieu of the climate change migrant route. Another potential response is developing a Convention or using a soft law instrument that addresses this. This would provide more certainty and clearer picture of what’s ahead for any State likely to be affected by inundation.

Unfortunately, as we have seen in the Pacific there is no guarantee that other Pacific States, like Australia will abide by refugee Conventions.

Part 4: Conclusions

The Paris Agreement represented a step in the right direction for the climate movement as it finally established a consensus and motivation to push ahead with drastic emission reductions. However, for those States threatened with inundation and the extinction of their culture, identity and maritime rights the Paris Agreement was only a small step. Many issues are not adequately addressed and one of the more pertinent ones is the plight of low lying island nations that are particularly vulnerable to sea level rise.

There remains the significant risk that these States risk losing not only their islands but also their sovereign rights to their maritime zones. While UNCLOS does not explicitly state that inundation will result in the loss of these maritime boundaries, a logical interpretation of the relevant clauses and the ambulatory nature of maritime zones to baselines, leads to the reasonable conclusion that inundated States are liable to lose their existing maritime zones. The loss of sovereignty however, in the face if inundation seems less likely within the context of normative international diplomacy practices in addition to issues of equity. Less certain are options for climate migration that are not addressed in international law. Ultimately, there is no clear articulation of many of these issues due to the unprecedented nature of State inundation. This year’s COP is slated to be the Pacific COP, and it may represent the best opportunity these Pacific Island States have to bring this issue forward. Ultimately to remedy this issue will require some action or amendment under the UNCLOS regime and this itself is no easy feat from a political perspective. In addition, it seems to us that the issues related to the potential loss of maritime boundaries of inundated States should also be raised, greater clarity sought on how UNCLOS will approach this and whether an amendment to UNCLOS may be required to guarantee established maritime boundaries for inundated States.

SDG 14 slogan.png

SDG 14 expressed aim is sustainable development and life below water, but this may also provide an opportunity to raise the plight of inundated States and the maritime rights that are threatened which will also adversely impact current and traditional fisheries management practices


Please note:

This legal bulletin is provided for general information purposes only and it is not, and should not be relied on as, legal advice.


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Topics: Oceans Law, Human Rights, Pacific, UNCLOS, International Law, Maritime boundaries, Sovereignty

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