aquiescencia

Prof. Dr. Davor Vidas
Chair of the ILA Committee on International Law and Sea Level Rise

The Committee on International Law and Sea Level Rise of the International Law Association (ILA) met on 10–11 December 2019 in Madrid.[i] It would have been difficult to choose a better time and place for the sea-level rise committee to meet in 2019 than in the first half of December in Madrid – in conjunction with COP25 being held there.[ii] That choice was not deliberate, however: while COP25 happened to be held in Madrid,[iii] our meeting had long been planned to be held there in December 2019, owing to a longer-term cooperation between the Autonomous University of Madrid and the Fridtjof Nansen Institute, who cooperated on making this ILA committee meeting possible. Indeed, the ILA Committee on International Law and Sea Level Rise is very much about planning: looking ahead and recognising fundamental changes on the horizon. Changes for which we must start preparing in advance, and systematically – not least when it comes to elaborating options for the development of international law. That is, in essence, what the work of our Committee and its mission is all about.

Let me start with a few introductory words about the ILA Committee on International Law and Sea Level Rise. The Committee was established by approval of the ILA Executive Council in November 2012. Why was it set up? What is the Committee’s mandate and what are its tasks? What has been done so far – and what remains to be done?

While there is an explicit reference to ‘sea-level rise’ in the name of the Committee, this was in fact not the first international committee of the ILA set to study the implications of sea-level rise as regards international law. The original mandate of the Committee on Baselines under the International Law of the Sea, when established in 2008, contained the following statement:

the need to identify, and possibly clarify or develop, the existing law concerning the normal baseline arises in response to possible sea level rise that has been predicted to accompany the phenomenon of climate change, and the effects this may have in particular upon low-lying, small island developing States.[iv]

In August 2012, when the Baselines Committee adopted its first Report at the 75^th ILA Conference, held in Sofia, it had to conclude that:

the loss of a State’s territory to rising sea levels is not primarily a baseline or law of the sea issue. Substantial territorial loss is a much broader issue encompassing concerns of statehood, national identity, human rights, refugee status, state responsibility, access to resources, and international peace and security.

The 75^th Sofia ILA Conference acknowledged in its Resolution 1/2012 that this array of issues would require consideration by a committee to be set up for the specific purpose of addressing such a broad range of concerns. Later the same year, the Executive Council of the ILA approved the establishment of a new international committee: the Committee on International Law and Sea Level Rise.

In one way, then, today’s Sea Level Rise Committee evolved from part of the original mandate of the Baselines Committee. However, the mandate of our Committee is a far broader one: it is not limited to baselines nor the law of the sea issues. The Committee on International Law and Sea Level Rise was tasked with a two-part mandate:

• 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.

There was, however, also a wider context for proposing the establishment of the Committee on International Law and Sea Level Rise. It was prompted by recent natural science findings about the profound changes already underway in the Earth System (which include, but are not limited to, climate change) – and the possible ramifications of those changes for international law as we know it. This concerns the difference between general stability of natural conditions – something we have become accustomed to, given the experience accumulated through millennia, on the one hand, and an emerging horizon of increasingly rapid change, on the other.

The exact extent and the rate of sea-level rise remain uncertain. Yet, already at this stage, serious changes in sea-level in the coming decades of this century are unavoidable – since they are inherent in the interaction between changes in the atmosphere, the oceans and the polar ice. These are major upheavals compared to the past six to seven thousand years of relatively stable sea-levels.

This matter – or, this change of facts – is highly relevant for several areas of international law. It calls for study involving different parts of international law – and for an enhanced appreciation of their inter-relations. One such part is directly related to the sea: to the law of the sea, which regulates the maritime entitlements of states and the delimitation of their maritime zones. Ultimately, sea-level rise may call into question the conceptual architecture of the maritime zones under today’s law of the sea. Indeed, attention has been drawn to this issue in international law literature ever since the early 1990s.[v]

While this is a complex matter in its own right, the issue of sea-level rise may – especially in the case of some low-lying island states in the Pacific and Indian Ocean – extend far beyond the law of the sea and the determination of baselines and maritime zones of coastal states. Fundamental questions arise regarding aspects of state territory and statehood under international law.The concept ofa defined territory has served as a constituent criterion of statehood in international law. In the face of profound changes in natural conditions, such aspects may have to be re-examined in a new perspective. We may need to re-visit the concept of international legal personality under international law.

Moreover, the key factor may be population, not only territory itself.Small island states are likely to become uninhabitable for other reasons, long before they become physically submerged due to sea-level rise. What of the population: will it resettle as individuals only, or as a community? And when would a state cease to exist – given the criterion of population in defining statehood? How would this reflect on the continuity of international legal personality?

These questions have far-reaching implications. True, most of them belong to future. However, that future is likely to arrive in the coming decades, and certainly in the course of this century – thus, within a human lifetime. This is not a question of some abstract ‘future generations’ – but about today’s children, or even today’s youth.

Three main issue-areas to be dealt with by the Committee were at the outset identified as:

• the law of the sea;
• forced migration and human rights; and
• statehood and international security.

There has been a good deal of individual research on each of these topics in recent years. But the Committee considered that it could make useful contributions by synthesising these various issues, elaborating interlinkages, and considering options for proposals de lege ferenda.

Already at the first meeting of our Committee, at the ILA Conference held in Washington DC in 2014, we agreed to address our mandate through two main phases – or stages.

The first stage, implemented from 2014 to 2018, involved two parallel streams of study: one on law of the sea issues, and the other on forced migration and human rights. That stage was completed with the 2018 Report of the Committee and two ILA Resolutions (5/2018 and 6/2018) adopted at the 78^th ILA Conference in Sydney, Australia, in August 2018.[vi]

The second stage, from 2019 to 2022, involves the study of the statehood question – or, more broadly, of the international legal personality – but also other relevant issues of international law and wider issues of international security.

The distinction between the two phases is not only thematic. It also concerns the focus, which was on priority areas in a relatively shorter-term perspective in the first phase of work (until 2018) – and on the issues emerging in a mid- to longer-term perspective, which will be central to our work in this second phase, which commenced in 2019.

The work of the Committee in this new phase will therefore – in addition to issues related to the law of the sea and territory, and to the rights of the affected population – focus also on the study of statehood and international law personality questions, and other related issues of international law and international security.

Such questions are already increasingly receiving attention from many states – not only small island, low-lying states. This was evident in the discussions held recently (in October 2019) at the UN Sixth Committee. Moreover, in December 2018 the UN General Assembly adopted the proposal of the International Law Commission (ILC) for the inclusion of the theme of ‘Sea level rise in relation to international law’ in its programme of work;[vii] and then, in May 2019, an ‘open-ended Study Group of the ILC on sea-level rise in relation to international law’ was formed.[viii] This Study Group has organized its work in terms of three issue-areas (‘subtopics’) of international law, with regard to: ‘A) law of the sea, B) statehood and C) protection of persons affected by sea-level rise’[ix] – basically the same three issue-areas that our Committee defined at its first meeting in Washington DC in 2014. Due not least to this mirroring structure of work, we recognize the cooperation potential of the ILA Committee and the newly-formed ILC Study Group.

Let me add that the themes dealt with by the ILA Committee on International Law and Sea Level Rise have thus far attracted over 40 members from altogether 21 different ILA national/regional branches, joining the work of the Committee.

We were indeed fortunate to have the opportunity of holding our 2019 Committee meeting in Madrid, at the FIDE Foundation, where we were warmly hosted by our colleagues – and Committee members – of the Spanish ILA Branch: Professor Carlos Esposito, who made it possible for our meeting to be held there, and Dr Alejandra Torres Camprubí, who has been a Committee member from the beginning. I wish to extend deep-felt thanks to our Spanish colleagues for providing such excellent support.

NOTES:

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[i] Previous meetings of the Committee were held at the biennial conferences of the ILA: in Washington DC, in April 2014 (at the 76^th ILA Conference); in Johannesburg, South Africa, in August 2016 (at the 77^th ILA Conference); and in Sydney, Australia, in August 2018 (at the 78^th ILA Conference). Moreover, inter-sessional meetings of the Committee were held in 2015 at the Fridtjof Nansen Institute (FNI) in Lysaker, Norway (12–13 June 2015); at the Franciscan Monastery at Island Lopud, Croatia, hosted by Thyssen-Bornemisza Art Contemporary (TBA21) Foundation in co-organization with the FNI (15–16 September 2017); and at the National University of Singapore, 15 March 2018. The Madrid meeting of the Committee in December 2019 was held at the FIDE Foundation, co-organized by the Autonomous University of Madrid and the FNI. The FNI gratefully acknowledges the support of the Research Council of Norway in enabling it to organize the inter-sessional meetings of the Committee in 2015, 2017, and 2019.

[ii] The UN Climate Change Conference, COP25 (25^th Conference of the Parties to the UN Framework Convention on Climate Change) was held in Madrid from 2 to 13 December 2019.

[iii] Originally, COP25 was scheduled to be held in Santiago, Chile, 2–13 December 2019; however, Spain generously offered in early November 2019 to host it in Madrid instead, after the Chilean government withdrew from its hosting of COP25 in view of the unrest and developments taking place in Santiago.

[iv] Emphasis added. At that time in 2008, the ILA Baselines Committee had at its disposal the IPCC predictions of sea-level rise as contained in its 4^th Assessment Report (AR4) issued in 2007. Predictions concerning sea-level rise have significantly advanced in the meantime, and two IPCC assessment reports have been completed since: the 5^th Assessment Report (AR5) in 2013/14, and the Special Report on the Ocean and Cryosphere in a Changing Climate, issued on 25 September 2019 in the IPCC’s Sixth Assessment Report (AR6) cycle; see  <https://report.ipcc.ch/srocc/pdf/SROCC_FinalDraft_FullReport.pdf&gt; (accessed 11 December 2019).

[v] The literature is extensive. Early (legal) writers include: E. Bird and J. Prescott, ‘Rising Global Sea Levels and National Maritime Claims’ (1989) 1 Marine Policy Reports 177–196; A.H.A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37 Netherlands International Law Review 207–232; D.D. Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of Rising Sea Level’ (1990) 17 Ecology Law Quarterly 621; D. Freestone, ‘International Law and Sea Level Rise’ in: R.R. Churchill and D. Freestone (eds), International Law and Global Climate Change (London/Dordrecht: Graham and Trotman/Martinus Nijhoff, 1991), 109–122; D. Freestone and J. Pethick, ‘Sea Level Rise and Maritime Boundaries: International Implications of Impacts and Responses’, in: G. Blake (ed.) International Boundaries: Fresh Perspectives, Vol 5 (Routledge, 1994), 73–90.

[vi] ILA, Report of the Seventy-eighth Conference, held in Sydney, 19–24 August 2018 (London: ILA, 2019), at 29–40 (resolutions) and 866–915 (report). Published also separately in an edited version as: D. Vidas, D. Freestone and J. McAdam (eds), International Law and Sea Level Rise: Report of the International Law Association Committee on International Law and Sea Level Rise (Brill: Leiden/Boston, 2019), 92 pp.

[vii] UNGA resolution 73/265 of 22 December 2018.

[viii] UN Doc. A/74/10, paras 9 and 265.

[ix] Ibid., para. 269; and UN Doc. A/73/10, annex B, especially para. 19.