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Rising Sea Level and its Implications in International Law

The gradual albeit rapid heating of the earth’s atmosphere has brought about immense adverse effects on the environment, including the melting of the icecaps, shifting precipitation patterns, ocean acidification, habitat destruction, loss of ecosystem and, the consequent migration of both man and animals. The melting of glaciers and sea ice has led to an increase in the volume of ocean water. The thawing of these ice masses has been recently raising about a panic. When reminding ourselves of the fact that about 70 per cent of the earth is water, this permutation proves to be quite a worrisome bargain.

Factors Contributing To The Rise Of Sea Level

Primarily, the increase in the sea volume can be linked to two factors[i], all induced by the ongoing global climate change:
Thermal expansion: This refers to the expansion of the seawater due to the rise in its temperature. About half of the sea-level rise over the past many years is attributable to warmer oceans simply occupying more space.

Melting glaciers and vast area of ice sheets: The alpine glaciers naturally melt slightly each summer. During the winter, evaporation creates sufficient snow, primarily from the seawater, to balance out the melting. However, recent higher temperatures caused by global warming have persistently led to gross summer melting as well as below par snowfall due to climate change. This creates an imbalance causing sea levels to rise.

Same as the mountain glaciers, the increased heat is causing the massive ice sheets that cover Greenland and Antarctica to melt more quickly. While melting in West Antarctica has drawn considerable attention from scientists, especially after the break in the Larsen C ice shelf in 2017,[ii] at the same time glaciers in East Antarctica are showing poor signs of destabilizing.[iii]

Impacts Of Rising Sea Level

The rising sea level has been majorly affecting the islands, both natural and artificial, and the low-lying States most of which belong to the least developed (LDC) category. Every year, the ocean level rises by another 0.13 inches (3.2 mm).[iv] This brings about major implications for inland terrain. For example, soil erosion and salination in these regions are capable of rendering the area uninhabitable and thus, have already begun to cause displacement or migration. The migration and the related human rights concerns have been addressed by the International Law Association’s Committee on International Law and Sea Level Rise at its 78th Conference[v] while adopting the Sydney Declaration[vi] prepared by the Committee.

Regional effects such as floods have already been a harbinger of heavy losses to life and property. A special report from the UN’s Intergovernmental Panel on Climate Change [vii] concluded that by 2100 the oceans may be expected to rise and "could reach around 30 cm (12 in) to 60 cm (24 in) by 2100 even if greenhouse gas emissions are sharply reduced and global warming is limited to well below 2°C, but around 60 cm (24 in) to 110 cm (43 in) if emissions continue to increase strongly.” This may result in huge losses for coastal and island States, especially the poorer countries who cannot afford the required defences when life and infrastructural damage becomes unavoidable for them.

The impairment of the polar, beach and coral ecosystems has already led to a gross reduction of some of the most unique species of flora and fauna while the extinction of others. The sea-level rise can cause significant habitat loss with severe consequences for the region’s unique biota, particularly the polar wildlife, birds and freshwater organisms.

Implications In International Law

The increasing ocean level is not just an environmental concern but also affects international laws. Baselines Committee of the ILA was the first to have ever addressed the question of sea level and its implications on international law.[viii] In May 2019, the UN International Law Commission decided to include the topic of ‘Sea-level in relation to international law’ in its programme of work, to address this matter within the scope of the ILC mandate. [ix]

The United Nations Convention on the Law of the Sea (UNCLOS), 1982 determines the various maritime zones. With the increase in the mean sea level, the baselines [x] of many coastal States have shifted. From this baseline, States measure their territorial sea,[xi] contiguous zone,[xii] exclusive economic zone (EEZ)[xiii] and continental shelf. [xiv] These States have always been at odds with each other over their sea rights and this reduction in the State boundaries will further lead to an uncertainty of the State’s maritime zones which is essential for maintaining the jurisdiction with respect to other States and in turn, international peace.

Further, the treaties and agreements entered into by certain States before this epoch event while delimiting their territorial boundaries (mainly, by applying the equidistance principle) may become void sooner or later, leaving open the question regarding the jurisdiction of all concerned parties. This can spur future private international disputes without any solid framework in place to elude from in such a situation.

Issues facing the loss of State territory or a complete loss of Statehood are another major implication of the sea level rise leading to many more adversities. Islands such as Perlamutrovy [xv]and Kiribati xvi] have already succumbed to the sea. Apart from generating environmental migration they are also responsible for massive humanitarian crises. Under the 1951 Refugee Convention, climate-related migration does not confer the refugee status on the displaced people.[xvii] Even with the Sydney declaration[xviii] international law only recognizes political refugees. Hence, currently, there exists no legal framework for “climate refugees.”

In consideration of all these changes, State practices at both national and international front may also be influenced. Countries may be quick to alter their existing laws or the creation of new ones as a strategy to acquire new territorial rights due to the physical changes around the erstwhile borders. This can be catastrophic for the entire international community.

The question of man’s accountability for change in the environment has been long discussed and attempts have also been made to resolve the circumstances but we are still far from the goal. Back in December 1989, the General Assembly in its resolution [xix] deliberated on the possible adverse effects of sea-level rise on islands and coastal areas, and urged the international community to provide effective and timely support to Member States affected by sea-level rise, particularly the developing and the LDC category States.

This was a marked step to develop and implement strategies for such regimes to protect themselves and their vulnerable natural ecosystems from the particular threats of sea-level rise caused by climate change. Most recently, the 2015 Paris Agreement codified international efforts around resiliency, adaptation and mitigation of climate change. Other initiatives of the UN have also provided support to protect such countries with necessary funding and support.

Conclusion
The importance of the rising sea level as an impact of climate change has been getting global attention and has fortunately been regularly addressed at various fora. The international laws for the protection of States and humanitarian reasons need to undergo a structural change soon along with laying more emphasis on its implementation in the days to come. The effects of the rising sea level on international laws are inevitable. With this, international cooperation shall perhaps, finally universalize.

End-Notes:
  1. Vital signs facts for Sea level, NASA: Global Climate Change, available at https://climate.nasa.gov/vital-signs/sea-level/
  2. Douglas fox, The Larsen C Ice Shelf Collapse Is Just the Beginning—Antarctica Is Melting, National Geographic Magazine, July 12, 2017, available at https://www.nationalgeographic.com/magazine/2017/07/antarctica-sea-level-rise-climate-change/.
  3. Leah Asmelash, This giant glacier in Antarctica is melting, and it could raise sea levels by 5 feet, scientists say, CNN, March 25, 2020, available at https://edition.cnn.com/2020/03/25/world/denman-glacier-antarctica-melt-trnd/index.html.
  4. Christina Nunez, Sea level rise, explained, National Geographic, Feb 19, 2019, available at https://www.nationalgeographic.com/environment/global-warming/sea-level-rise/. See also, Supra at 1.
  5. Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise, ILA, Res. 6/2018, annex.
  6. Freestone et al. (2015). “International Law and Sea Level Rise: The New ILA Committee,” 21 ILSA Journal of International law, 397-408.
  7. IPCC Press release, Choices made now are critical for the future of our ocean and cryosphere, Sep 25, 2019, 2019/31/PR, available at https://www.ipcc.ch/site/assets/uploads/sites/3/2019/09/SROCC_PressRelease_EN.pdf
  8. Baselines under the International Law of the Sea: Committee Report, ILA, Report of the Seventy-Fifth Conference held in Sofia, 385–428.
  9. Report on the work of the Seventy-First Session (2019), International Law Commission, A/74/10, Chap. III and X.
  10. Article 5, United Nations Convention on the Law of the Sea (1982)
  11. Ibid, Article 3.
  12. Ibid, Article 33
  13. Ibid, Article 57.
  14. Ibid, Article 76(1).
  15. Atle Staalesen, “The Arctic Island that disappeared,” The Barents Observer, Feb 22, 2019, available at https://thebarentsobserver.com/en/arctic/2019/02/arctic-island-disappeared
  16. Brian Reed, “A Kiribati Village Slowly Succumbs To The Sea Around It,” NPR Dec 1, 2010, available at https://www.npr.org/sections/thetwo-way/2010/12/01/131708517/a-kiribati-village-slowly-succumbs-to-the-sea-around-it.
  17. Hioureas, Christina, 2017, Effects of the Rising Sea Level on Maritime Boundaries, Foley Hoag LLP, 11.
  18. Supra at 5
  19. General Assembly—Fourty-Fourth Session, Possible adverse effects of sea-level rise on islands and coastal areas, particularly low-lying coastal areas, A/RES/44/206, available at https://undocs.org/en/A/RES/44/206.

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