Legal Dimensions of Sea Level Rise: Pacific Perspectives David Freestone and Duygu Çiçek Legal Dimensions of Sea Level Rise: Pacific Perspectives David Freestone and Duygu Çiçek This work is a product of the staff of The World Bank and the Global Facility for Disaster Reduction and Recovery (GFDRR) with external contributions. The findings, analysis and conclusions expressed in this document do not necessarily reflect the views of any individual partner organization of The World Bank, its Board of Directors, or the governments they represent. Although the World Bank and GFDRR make reasonable efforts to ensure all the information presented in this document is correct, its accuracy and integrity cannot be guaranteed. Use of any data or information from this document is at the user’s own risk and under no circumstances shall the World Bank, GFDRR or any of its partners be liable for any loss, damage, liability or expense incurred or suffered which is claimed to result from reliance on the data contained in this document. The boundaries, colors, denomination, and other information shown in any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Suggested Citation: David Freestone and Duygu Çiçek. 2021. Legal Dimensions of Sea Level Rise: Pacific Perspectives. Washington, D.C. : World Bank Group. Rights and Permissions The material in this work is subject to copyright. Because The World Bank encourages dissemination of its knowledge, this work may be reproduced, in whole or in part, for noncommercial purposes as long as full attribution to this work is given. Design: Miki Fernández, ULTRA Designs, Inc. Front cover photo: Ian Dyball. Back cover photo: Efate Island, Vanuatu. © Martin Valigursky | Dreamstime.com LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / iii Table of Contents Acknowledgements...................................................................................................................................................................................................... v Executive Summary..................................................................................................................................................................................................... vi Part I Expected Effects of Climate Change on Small Island Developing States (SIDS), and Pacific Atoll Countries in Particular, with a Focus on Rising Sea Level............................................. 1 1. Sea Level Rise Predictions from the Intergovernmental Panel on Climate Change............................................................................. 2 2. Physical and Ecological Impacts of Climate Change and Sea Level Rise............................................................................................... 4 Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise............................................................... 11 1. 1982 UN Convention on the Law of the Sea................................................................................................................................................... 12 2. 1992 UN Framework Convention on Climate Change and the 2015 Paris Agreement....................................................................... 17 3. Legal Aspects of Statehood................................................................................................................................................................................ 19 4. Legal Framework for Human Mobility in the Context of Climate Change.............................................................................................. 21 5. Work of the International Law Association and the International Law Commission.......................................................................... 25 Part III Key Legal and Policy Questions Faced by SIDS, and Pacific Atoll Countries in Particular, in Relation to Sea Level Rise............................................................................................................................... 29 1. What are the legal implications of physical changes to different types of baselines under the 1982 LOSC as a result of sea level rise?................................................................................................................................................................................. 30 2. What is the difference between an “island” and a “rock”?.......................................................................................................................... 33 3. What are the legal implications for the outer limits of a State’s maritime zones and maritime boundaries with other States, and for the rights of third States and their nationals, of changes in coastal baselines from which maritime zones are delineated or delimited?........................................................................................................................... 36 4. How might a State defend its existing maritime entitlements in accordance with international law?......................................... 42 5. What are the legal implications of an island State becoming uninhabitable?...................................................................................... 48 6. What are the legal and policy options relating to human mobility in the context of climate change?.......................................... 51 7. How is the international community able to provide support for States that need to adapt to impacts from sea level rise?................................................................................................................................................................................................ 57 Appendix I: Key Legal and Policy Options Pertaining to Human Mobility in the Context of Climate Change.................................... 62 Appendix II: Selected Funds, Financing and Other Options Available to SIDS............................................................................................ 66 Appendix III: Selected Work of the World Bank in the Pacific Region............................................................................................................ 70 iv LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES List of Figures Figure 1. Map of the EEZs of PICTs and international water high seas areas for the tropical Pacific Ocean ................................. 7 Figure 2. Average historical (2005) distributions of skipjack, yellowfin and bigeye tuna, and South Pacific albacore (Mt/km2) in the tropical Pacific Ocean, and projected changes in biomass of each species relative to 2005 under the RCP8.5 emission scenario for 2050 and 2100, simulated using SEAPODYM ................................................................................................................................................................................... 8 Figure 3. Projected changes in license revenue from the purse-seine fishery, in terms of value (USD) and as a percentage of all government revenue, in 2050 relative to 2016 due to the effects of climate change on the combined biomass of skipjack, yellowfin and bigeye tuna in the EEZ of 10 PICTs .................................................. 9 Figure 4. Coastal baseline and maritime zones stipulated under LOSC ................................................................................................... 12 Figure 5. Illustration of types of baselines ........................................................................................................................................................ 13 Figure 6. LTEs and the generation of maritime zones ................................................................................................................................... 13 Figure 7. Definition of the outer limits of the continental shelf .................................................................................................................. 15 Figure 8. Archipelagic state zones. ..................................................................................................................................................................... 33 Figure 9. Islands and LTEs ..................................................................................................................................................................................... 34 Figure 10. Impacts on maritime zone of receding baselines .......................................................................................................................... 37 Figure 11. Maritime zones ....................................................................................................................................................................................... 38 Figure 12. (i) Two States with boundary dividing EEZs and (ii) Coastlines retreat: New High Seas area is created ....................... 39 Figure 13. LTE with navigational aid installation .............................................................................................................................................. 43 Figure 14. Major land reclamation in Singapore ................................................................................................................................................ 44 Figure 15. The Status of Pacific Regional Maritime Boundaries as of July 2020 .................................................................................... 45 Figure 16. Consequences of “freezing” coastal baselines to maintain maritime entitlements ............................................................ 46 List of Boxes Box 1. Impacts of migration on the Marshallese migrants and the Compact of Free Association (COFA) ................................ 54 Box 2. Fiji’s Planned Relocation Guidelines (2018) ..................................................................................................................................... 55 Box 3. NDCs of Atoll Countries with ocean-related commitments ....................................................................................................... 58 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / v Acknowledgements This Study was prepared as part of the World Bank’s Study including Artessa Saldivar-Sali, Annette Leith, Building Resilience in Pacific Atoll Island Countries Veronica Piatkov, Georgina McArthur, Colleen Butcher- Study, which aims to strengthen the capacity of Gollach, Richard Croad, Jon Metcalf, Doug Ramsay, selected Pacific Atoll Island countries to cope with Karen Jimeno, and Alessio Giardino. the long-term (100 year+) adverse impacts of climate We are also indebted to the peer reviewers who were change and boost their resilience. instrumental in the review process by helping us Acknowledging the collaborative efforts leading to the ensure the quality of the product including Professor finalization of this Study, we wish to extend our thanks Nilufer Oral, Professor Walter Kaelin, Stephane and appreciation for the overall guidance and input Hallegatte, Nicolas Desremaut, Brenden Jongman and received from the Environmental and International Borja Gonzalez Reguero. We cannot forget the great Law Practice Group (LEGEN) team including Christina comments other reviewers provided on various parts of the text including Professors Davor Vidas, William Leb, Siobhan McInerney-Lankford, Sachiko Morita, Edeson and Clive Schofield. We are also grateful to Remi Moncel, and Victor Bundi Mosoti. We also greatly Professor Schofield and Andi Arsana for use of graphics. appreciate the valuable comments from the regional team and its extended members working on the Our thanks are also due to Angela Takats for the editorial Building Resilience in Pacific Atoll Island Countries assistance and Miki Fernandez for the design. vi LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Executive Summary T his legal study has been developed as a part of (UNFCCC) and its 2015 Paris Agreement. Although the the World Bank’s work on “Building Resilience primary focus of this study is the maritime rights of in Pacific Atoll Island Countries” which aims coastal States, it also looks at the key legal framework to strengthen the capacity of selected Pacific regulating other issues likely to arise or increase in the atoll island countries to cope with the long-term adverse light of the possible threats, such as that related to hu- impacts of climate change and boost their resilience. man mobility in this context and the issue of continued The goal of this work is to contribute to the National statehood. Many of these issues pose completely un- Adaptation Planning Process currently in progress for precedented challenges to the international legal order, the Republic of the Marshall Islands and inform adap- so definitive answers to many questions are simply not tation options for Kiribati and Tuvalu through the Atoll possible, but the objective of this study is to present Adaptation Dialogue Mechanism. “Building Resilience the latest legal thinking on these issues and provide an in Pacific Atoll Island Countries” stresses that short- to analysis that will be useful to stakeholders, policymak- medium-term adaptation options will not suffice in ad- ers, and practitioners. dressing the escalating impacts of sea level rise and cli- It is divided into three parts. Part I looks at the pioneer- mate change. Consequently, it explores the implications ing work of the Intergovernmental Panel on Climate of alternative adaptation options while also considering Change (IPCC) and its most recent predictions for sea investment needs and relevant costs associated with level rise during the current century and then sets it these options.1 in the context of other scientific work on threats from Against this background, this legal study is designed sea level rise and warming, in particular the predicted to provide an assessment of the impacts of climate impacts on the fish resources on which the region is so change, especially sea level rise on the maritime rights dependent. Part II sets out an overview of relevant le- of coastal States. In doing so, it builds on the 2008 gal frameworks, key terminology, and principles based World Bank legal working paper on the Maritime Rights on international law as well as judicial decisions and of Coastal States.2 In the intervening years, the threats scholarly work that define the rights, resources, and of climate change have amplified, more coastal States obligations of SIDS and the Pacific atoll countries in have resolved to strengthen their resilience, and the rel- particular. Part III then presents a series of responses evant international legal regime has evolved, including to key legal and policy questions faced by these States, through the adoption of the 2015 Paris Agreement. in relation to sea level rise. The questions addressed are the following: This study, therefore, aims to take a much wider view of the legal aspects of the impacts of sea level rise and cli- 1. What are the legal implications of physical changes mate change on Small Island Developing States (SIDS), to different types of baselines under the 1982 LOSC and the Pacific atoll countries in particular. It looks at as a result of sea level rise? Sea level rise is likely the main projected impacts of sea level rise and ocean to result in retreating coastlines and the inundation related climate change on these States and territories of small offshore features—all of which are used to including the possible impacts on the marine resourc- measure maritime entitlements. These changes may es upon which they depend. It outlines the main legal make it difficult for coastal States to retain those regimes that regulate these issues, including the 1982 entitlements according to the strict requirements of UN Law of the Sea Convention (LOSC) and the regime of the LOSC. the 1992 UN Framework Convention on Climate Change 2. What is the difference between an “island” and a 1 Further details in respect to the World Bank’s work in this area in “rock”? Arbitration Tribunal awards provide detailed the Pacific Region are summarized in Appendix III. guidance on the difference between “rocks” and 2 Di Leva, Charles, and Sachiko Morita. 2008. “Maritime Rights “islands” as defined by the LOSC, but questions still of Coastal States and Climate Change: Should States Adapt to Submerged Boundaries?” World Bank Law and Development remain as to whether physical changes in islands Working Paper Series. brought about by sea level rise might require them to LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / vii be reclassified as “rocks” with more limited maritime community will need to address. But international entitlements. law and practice does suggest a presumption of State continuity provided that the State can honor 3. What are the legal implications for the outer its international obligations and responsibilities. limits of a State’s maritime zones and maritime boundaries with other States, and for the rights 6. What are the legal and policy options relating to of third States and their nationals, of changes in human mobility in the context of climate change? coastal baselines from which maritime zones are International law does provide a framework for delineated or delimited? It is not clear what the legal addressing issues of human mobility in the face of effect is of physical changes to coastal baselines that sea level rise, but it is fragmented. This section sets have been used as the basis for maritime boundary out the relevant legal tools and policy options that delimitation treaties or judicial decisions, even if the might help people adapt in situ and that facilitate result is to extend the delimitation lines beyond 200 human mobility if it becomes necessary.3 nautical miles (nm) from the coast. 7. How is the international community able to provide 4. How might a State defend its existing maritime support for States that need to adapt to impacts entitlements in accordance with international from sea level rise? There is a myriad of mechanisms law? Coastal States are entitled to use a number of available for financial support and technical physical means, including artificial islands, to defend assistance in designing and implementing adaptation their coastlines and coastal basepoints. They may measures, including legal and policy strategies.4 also seek to argue at the legal and policy level that they are not obliged to amend their existing maritime entitlements in the face of sea level rise. 5. What are the legal implications of an island State 3 For ease of reference, these are summarized in tabular form in becoming uninhabitable? This is an unprecedented Appendix I. situation for international law, which the international 4 These are also set out in tabular form in Appendix II. viii LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Kiribati, . Photo: © Trentinness | Dreamstime.com. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 1 Part I Expected Effects of Climate Change on Small Island Developing States (SIDS), and Pacific Atoll Countries in Particular, with a Focus on Rising Sea Level 2 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES 1. Sea Level Rise Predictions from globe and the Pacific region is already facing some of the highest rates and levels.9 the Intergovernmental Panel on Climate Change The 1990 FAR noted that the main drivers of these pre- dictions would be the melting of glaciers and thermal The Intergovernmental Panel on Climate Change (IPCC) expansion and that the effects of the Antarctic and was established in 1988 by the UN Environment Pro- Greenland ice sheets would be small.10 It is now clear gramme (UNEP) and the World Meteorological Orga- that the melting of the polar ice sheets will be a major nization (WMO) to provide policymakers with regular factor in future rises but uncertainty about the rates as scientific assessments on climate change, its implica- well as possible extent of that melting remains high.11 tions, and potential future risks, as well as to put for- The most recent 2019 Special Report on the Ocean and ward adaptation and mitigation options. The IPCC does the Cryosphere in a Changing Climate (SROCC),12 dis- not conduct its own research but through its assess- cussed in more detail below, highlighted the fact that ments, it determines the state of scientific knowledge under a continued high GHG emissions scenario, the on climate change. It identifies where there is agree- likely range of sea level rise might extend beyond 1 me- ment in the scientific community on topics related to ter (m) in 2100 due to a larger projected ice loss from the climate change, and where further research is needed. Antarctic Ice Sheet.13 However, if GHG emissions are in- The reports are drafted and reviewed in several stages, creasingly restricted—as the Paris Agreement seeks to thus guaranteeing objectivity and transparency. IPCC ensure—a more likely prediction would be a rise of 0.39 reports are neutral, policy-relevant but not policy-pre- m from the period 2081–2100 (within a possible range scriptive.5 Its First Assessment Report (FAR) issued in of 0.26–0.53 m) and 0.43 m by 2100. The uncertainty 19906 predated the 1992 UN Framework Convention at the end of the century is mainly determined by the ice on Climate Change (UNFCCC), yet it added a degree of sheets, especially in Antarctica.14 urgency to the negotiations because of the breadth of The IPCC has produced three interim special reports ad- issues which it predicted would be impacted by climate dressing concerns flagged within the UNFCCC. Two of change and the possible severity of those impacts. these are particularly important for their coverage of The IPCC is now in its sixth cycle, producing the Sixth sea level rise and ocean impacts: 2018 Global Warming Assessment Report (AR6).7 The contributions from its of 1.5°C (1.5°C Report or SR1.5) 15 and the 2019 SROCC. three Working Groups will be published in 2021 followed by a Synthesis Report in 2022.8 Over the last 30 years, 9 The Pacific Marine Climate Change Report Card 2018 suggested scientific knowledge has increased exponentially as has that the Pacific Islands experienced sea level rise of 3-6 mm per year. See, Commonwealth Marine Economies Programme (CMEP), modeling expertise. Although there are still uncertain- Pacific Marine Climate Change Report Card 2018, available at: ties about a number of issues, it is clear that even if https://climateanalytics.org/media/cefas_pacific_islands_report_ Greenhouse Gas (GHG) emissions are radically reduced card_final_amended_spreads_low-res.pdf 10 Although it did acknowledge the uncertainties surrounding this. or even eliminated, sea levels will still continue to rise in Ibid., p. xi. the following decades or centuries. It is also clear that 11 Mass loss from the Antarctic ice sheet over the period 2007–16 although the predictions are of Global Mean Sea Levels tripled relative to 1997–06. For Greenland, mass loss doubled (GMSL), rises in sea level will not be uniform all over the over the same period (likely, medium confidence). IPCC, 2019: Summary for Policymakers. In: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (SROCC SPM), H.-O. Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck, A. Alegría, M. Nicolai,  A. Okem, J. Petzold, B. Rama, N.M. Weyer (eds.), available at: https://www.ipcc. 5 The Intergovernmental Panel on Climate Change (IPCC), available ch/site/assets/uploads/sites/3/2019/11/03_SROCC_SPM_FINAL. at: https://www.ipcc.ch/ pdf, at A 3.2 [3.3.1, Figures SPM.1, SPM.2, SPM A.1.1]. 6 IPCC, First Assessment Report Synthesis (FAR), published as part 12 SROCC SPM. of the 1992 IPCC Supplementary Reports as IPCC First Assessment 13 Ibid., at B.3.1 But even for this higher projection the possible range Report Overview and Policymaker Summaries and 1992 IPCC is 0.61-1.10 m by 2100. Supplement, available at: https://www.ipcc.ch/report/ar1/syr/ 14 Ibid., at B.3. 7 See, in general, following upcoming reports: IPCC, The Sixth 15 IPCC, 2018: Global Warming of 1.5°C. An IPCC Special Report on the Assessment Report (AR6) with contributions by its three Working impacts of global warming of 1.5°C above pre-industrial levels and Groups and a Synthesis Report, three Special Reports, and a related global greenhouse gas emission pathways, in the context of refinement to its latest Methodology Report, available at: https:// strengthening the global response to the threat of climate change, www.ipcc.ch/assessment-report/ar6/ sustainable development, and efforts to eradicate poverty (SR 1.5), 8 Ibid. Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 3 The SR1.5 discusses a world 1.5°C warmer than pre-in- GMSL rise will cause the frequency of extreme sea level dustrial times—prompted by the commitment by the events at most locations to increase. Localized coastal Parties to the Paris Agreement—to pursue “efforts to flooding events that historically occurred once per cen- limit the temperature increase to 1.5°C above pre-in- tury (historical centennial events) are projected to oc- dustrial levels, recognizing that this would significantly cur at least annually at most locations by 2100 under reduce the risks and impacts of climate change.”16 all scenarios.21 Many low-lying megacities and small islands (including SIDS) are projected to experience The basic message of the 1.5°C Report is that climate historical centennial events at least annually by 2050 change impacts on sustainable development, eradication under a range of scenarios.22 The increasing frequency of poverty, and reducing inequalities would increase even of high water levels can have severe impacts in many lo- if global warming were limited to 1.5°C, even if mitigation cations.23 Under the same assumptions, annual coastal and adaptation synergies are maximized while trade-offs flood damages are projected to increase by 2–3 orders are minimized.17 Even in a world warmed to 1.5°C, there of magnitude by 2100 compared to today.24 will be major negative impacts, including a probable de- cline of 70–90 percent of the world’s coral reefs.18 The average intensity of tropical cyclones, the propor- tion of Category 4 and 5 tropical cyclones, and the as- As the title indicates, the 2019 SROCC is a more fo- sociated average precipitation rates are projected to cused report on ocean issues. It reported that it is virtu- increase for a 2°C global temperature rise above any ally certain that the global ocean has warmed unabated baseline period. Rising mean sea levels will contribute since 1970 and has taken up more than 90 percent of to higher extreme sea levels associated with tropical the excess heat in the climate system. Since 1993, the cyclones. Coastal hazards will be exacerbated by an rate of ocean warming has more than doubled. Marine increase in the average intensity, magnitude of storm heatwaves have very likely doubled in frequency since surge and precipitation rates of tropical cyclones.25 1982 and are increasing in intensity. By absorbing more carbon dioxide (CO2), the ocean has also undergone in- The 2019 SROCC also highlighted the fact that warm- creasing surface acidification. A loss of oxygen has also ing-induced changes in the spatial distribution and occurred from the surface to 1000 m.19 abundance of some fish and shellfish stocks have had both positive and negative impacts on catches, eco- The 2019 SROCC found that GMSL had already risen nomic benefits, livelihoods, and local culture. This has over the last century by 0.16 m (likely range 0.12–0.21 obvious negative consequences for indigenous peoples m) and the rate of rise for 2006–15 was 3.6 mm per and local communities that are dependent on fisheries. year which is unprecedented over the last century and Long-term loss and degradation of marine ecosystems about 2.5 times the rate for 1901–90 of 1.4 mm a year. compromises the ocean’s role in cultural, recreation- It confirmed that the dominant cause was anthropo- al, and intrinsic values important for human identity genic and that the dominant source of increased water and well-being.26 Similarly, climate change impacts on levels was ice sheet and glacier melt which exceeded the marine ecosystems and their services put key cultur- effect of thermal expansion of ocean water. In particu- al dimensions of lives and livelihoods at risk, includ- lar, the combined increased ice loss from the Greenland ing through shifts in the distribution or abundance of and Antarctic ice sheets.20 harvested species and diminished access to fishing The 2019 SROCC is also unusual in that it devotes con- or hunting areas. This includes potentially rapid and siderable space to impacts on society, pointing out that irreversible loss of local and indigenous culture and knowledge, and negative impacts on traditional diets P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, 21 Ibid., at B 3.4 [4.2.3, 6.3, Figures SPM.4, SPM.5]. T. Maycock, M. Tignor, and T. Waterfield (eds.), available at: https:// 22 Under RCP2.6, RCP4.5 and RCP8.5. The year when the historical www.ipcc.ch/sr15/ centennial event becomes an annual event in the mid-latitudes 16 Paris Agreement, Art 2(10)(a). occurs soonest in RCP8.5, next in RCP4.5 and latest in RCP2.6. 17 SR 1.5 SPM, at D.2. 23 SROCC SPM, at B 3.4. 18 Ibid., at B.6.2. 24 Ibid., at A.9 [4.3.3, 4.3.4, Box 6.1, Figure SPM.5]. 19 SROCC SPM, at A2 [1.4, 3.2, 5.2, 6.4, 6.7, Figures SPM.1, SPM.2]. 25 There are greater increases projected under RCP8.5 than under 20 Mass loss from the Antarctic ice sheet over the period 2007–16 RCP2.6 from around mid-century to 2100 (medium confidence). tripled relative to 1997–06. For Greenland, mass loss doubled over There is low confidence in changes in the future frequency of the same period (likely, medium confidence). See, SROCC SPM, at tropical cyclones at the global scale. See, ibid., at B.3.6 [6.3.1]. A 3.2 [3.3.1, Figures SPM.1, SPM.2, SPM A.1.1]. 26 Ibid., at B.8 [3.2.4, 3.4.3, 5.4.1, 5.4.2, 6.4]. 4 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES and food security, aesthetic aspects, and marine rec- 2100 may be outside that range.32 The problem is exac- reational activities.27 erbated by the fact that the persistent warming of the oceans together with increased acidification is interfer- At the same time, shifts in species distributions and ing with these natural processes.33 Mass coral bleaching abundance has challenged international and national events primarily attributed to ocean warming resulting ocean and fisheries governance, including in the Arctic, in widespread coral deaths—such as those on the Great North Atlantic and Pacific, in terms of regulating fishing Barrier Reef in Australia—impact the ability of reefs to to secure ecosystem integrity and sharing of resources maintain themselves.34 Continued ocean warming will between fishing entities.28 bring higher ocean temperatures and increase storm The 2019 SROCC’s final message is that in the absence severity.35 There are also concerns that higher concen- of more ambitious adaptation efforts compared to to- trations of human populations, as a result of increasing day, and under current trends of increasing exposure and urbanization and coastal development, will inevitably vulnerability of coastal communities, it can predict with increase local pollution, and that “hard” sea defenses a very high level of confidence that risks, such as erosion will disrupt sediment flows to prevent islands from nat- and land loss, flooding, salinization, and cascading im- urally replenishing themselves. pacts due to mean sea level rise and extreme events are As a result, scientists have raised concerns over the projected to significantly increase throughout this centu- persistence of coral reefs, and the low-lying reef islands ry under all GHG emissions scenarios. 32 The Pacific Marine Climate Change Report Card 2018 suggested 2. Physical and Ecological Impacts of that the Pacific Islands experienced sea level rise of 3–6 mm per Climate Change and Sea Level Rise year in the period 1993–17 “but with some notable differences between islands” with some islands in the Western Pacific (Solomon Islands, Papua New Guinea and Marshall Islands) subject Coastal ecosystems are essentially dynamic and adapt to a higher rate of sea level rise (up to 6 mm/year) compared to to changes in sea levels. The important question, how- islands further east (such as Samoa and Kiribati), available online: https://climateanalytics.org/media/cefas_pacific_islands_report_ ever, is whether they will be able to do this in ways which card_final_amended_spreads_low-res.pdf. allow continued human habitation and uses. 33 IPCC 1.5˚C Report suggested that even if warming were to be restrained to 1.5˚C above pre-industrial levels, the result would be a “further loss of 70-90% of reef-building corals compared to today”, Impacts on Coral Reefs and Reef Islands and that if warming reached 2˚C above pre-industrial levels, coral losses were estimated at 99%. Atoll islands are the creation of corals and for millennia, 34 The potentially serious effects of ocean warming for coral reefs coral reefs and reef islands appear to have been able are underscored by the increasing frequency and severity of coral to keep pace with the numerous changes in sea level. reef bleaching events. See, for example, P.P. Wong et al., “Coastal systems and low-lying areas,” in Climate Change 2014: Impacts, Conventional wisdom, therefore, was that coral growth Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. would similarly be able to keep pace with changes in sea Contribution of Working Group II to the Fifth Assessment Report of level brought about by anthropogenic climate change. the Intergovernmental Panel on Climate Change, eds. C.B. Field et Although individual corals seem well able to grow at al. (Cambridge University Press, 2014), pp. 361–409, 378. See also, T.P. Hughes, J.T. Kerry, M. Alvarez-Noriega et al., “Global Warming rates of 10–100 mm per year,29 reefs accrete at slower and Recurrent Mass Bleaching of Corals” Nature Vol. 543 (2017), rates than coral grows.30 The fastest recorded rate of pp. 373–377; T.P. Hughes, K.D. Anderson and S.R. Connolly, “Spatial reef growth from the fossil record is 7.89 mm per year,31 and Temporal Patterns of Mass Bleaching in the Anthropocene” Science Vol. 359 (2018), pp. 80–83; R. van Hooidonk, J. Maynard, and current predictions of the rate of sea level rise to J. Tamelander et al., “Local-Scale Projections of Coral Reef Futures and Implications of the Paris Agreement” Scientific Reports 6 27 Ibid., at B.8.4 [3.4.3, 3.5.3, 5.4.2]. (39666) (2016), pp. 1–8; T.L. Frölicher, E.M. Fischer and N. Gruber, 28 Ibid., at A 8.1 [3.2.4, 3.5.3, 5.4.2, 5.5.2, and Figure SPM 2]. “Marine Heatwaves Under Global Warming”, Nature 560 (2018), pp. 29 Coral Reef Alliance, “How Coral Reefs Grow” available online: 360–364; T.P. Hughes et al., “Global Warming Transforms Coral https://coral.org/coral-reefs-101/coral-reef-ecology/how-coral- Reef Assemblages” Nature 556 (2018), pp. 492–496; Harrison, reefs-grow/#:~:text=The%20massive%20corals%20are%20 Hugo B., Álvarez-Noriega, Mariana, Baird, Andrew H., Heron, Scott the,21%E2%80%9329%C2%B0%20C). F., Macdonald, Chancey, and Hughes, Terry P. (2019) “Back-to-back 30 Camoin, Gilbert M., Lucien Montaggioni, et al. 1997. “Holocene coral bleaching events on isolated atolls in the Coral Sea.” Coral sea-level changes and reef development in South-Western Indian Reefs, Vol. 38 (4), pp. 713-719. Ocean”, Coral Reefs, Vol. 16(4), pp. 247-259. 35 See also, Curt D. Storlazzi et al., “Most atolls will be uninhabitable 31 McManus, John W. 2017. “Offshore Coral Reef Damage, Overfishing, by the mid-21st century because of sea level rise exacerbating and Paths to Peace in the South China Sea.” International Journal wave-driven flooding”, Science Advances, Vol. 4(4), available online of Marine and Coastal Law, Vol. 32, pp. 199-237 at 220. https://advances.sciencemag.org/content/4/4/eaap9741. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 5 that depend on them, and question whether they will islands exhibited no widespread sign of physical desta- become increasingly unable to support human popu- bilization in the face of sea level rise. She found that lations over the coming century.36 Nevertheless, recent smaller islands were more susceptible to change but research suggests that reef islands are remarkably that no islands larger than 10 hectares (ha) had actually geomorphologically resilient land forms that have been decreased in size during that period. Kane and Fletch- able to remain stable or even grown in area over the last er (2020) however add some caution to this message 20–60 years. In a groundbreaking study in 2010, Webb in their multitemporal island vulnerability assessment and Kench37 analyzed historical aerial photography and (MIVA) which they applied to the islands of the Republic satellite images in order to study physical changes in 27 of the Marshall Islands.40 They conclude that with rates atoll islands in the central Pacific over a 19- to 61-year of sea level rise that are likely under the IPCC “interme- period. Their study presents the first quantitative anal- diate to high” sea level rise scenario, by mid-century, is- ysis of the changes they observed. land stability will deteriorate and that island instability “will be inevitable with no action.” Urbanized islands and The key takeaway from this important empirical re- those where there have been a high level of human infra- search is that sea level rise in itself does not necessarily structure and interference with coastline structure are mean the gradual and inevitable erosion of reef islands those most at risk. until they become uninhabitable. It highlights the fact that these are dynamic systems which may be able to The combined impacts of sea level rise and other cli- maintain themselves by processes of sediment move- mate change phenomena such as warming oceans and ment and accretion, provided always that those coral increased storm risk are still not clear.41 The natural pro- reefs are able to survive and maintain the supplies of cesses which have ensured the survival of islands in the sediment. past, can also be interfered with by human activities at a local level, such as beach sand and gravel mining, poor At a time when instrumental records showed a rate of engineering and even reclamation activities.42 Efforts to sea level rise of 2.0 mm per year in the Pacific, their study defend threatened parts of the coast are likely to have shows that only 14 percent of islands lost areas whereas unanticipated and unwelcome consequences elsewhere 43 percent remained stable, and the further 43 percent along the coast, especially in such dynamic inter-linked increased in area over the timeframe of analysis. Only systems. Nevertheless, the most important message 14 percent of study islands exhibited a net reduction in may be from Kane and Fletcher that by 2050 radical island area. Despite small net changes in area, islands human intervention may be necessary in many island exhibited larger gross changes. This was expressed as systems to counteract increasing island instability.43 changes in the platform configuration and position of islands on reef platforms.38 Collectively, these adjust- ments represent net lagoon-ward migration of islands in 65 percent of cases. Vol. 10 (1). More recent work appears to confirm this more posi- 40 Kane, Haunani H. and Charles H. Fletcher. 2020. “Rethinking Reef tive message. Duvat (2019) conducted a global assess- island stability in relation to Anthropogenic Sea Level Rise.” Earth’s Future, Vol. 8 (10). ment of atoll islands platform changes over a series of 41 Storm events can be highly destructive for coastal ecosystems decades.39 She found that over the past decades, atoll such as corals and, coupled with multiple other factors such as disease, feed web changes, invasive organisms and heat stress mortality, may “overwhelm the capacity for natural and human 36 Leatherman, Stephen P. 1997. Island States at Risk: Global systems to recover following disturbances.” See, IPCC 1.5°C Special Climate Change, Development and Populations, Coastal Education Report, above, p. 223. Note that other research shows how flood Research Foundation; Connell, John. 1999. “Environment Change, risk will increase with sea level rise and loss of reefs. See, e.g., economic development and emigration in Tuvalu.” Pacific Studies, Michael W. Beck, Iñigo J. Losada, et al., “The global flood protection Vol. 22, pp. 1-20. (cited by Webb et al. below). savings provided by coral reefs” (2018) Nat Commun No. 9 Article 37 Webb, Arthur and Paul Kench. 2010. “The dynamic response of reef No. 2186. islands to sea-level rise: Evidence from multi-decadal analysis of 42 The construction of sea defences may also interrupt sediment flow island change in the Central Pacific.” Global and Planetary Change, regimes, potentially compromising the capacity of coral islands Vol. 72(3), pp. 234-246. to naturally adapt to sea level rise. See, for example, Paul Kench, 38 Modes of island change included: ocean shoreline displacement “Understanding Small Island Dynamics: A Basis to Underpin Island toward the lagoon; lagoon shoreline progradation; and extension of Management,” in Proceedings of the International Symposium of the ends of elongate islands. Islands and Oceans, 22–23 January 2009, ed. H. Terashima (Ocean 39 Duvat, Virginie K. E. 2019. “A global assessment of atoll island Policy Research Foundation, 2009), pp. 24–28. planform changes over the past decades.” WIREs Climate Change, 43 See, Kane and Fletcher (2020). 6 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Threats to Natural Resources, Livelihoods, more in the Central and Eastern Pacific. These events and Food Security can affect the survival of tuna larvae in positive as well as negative ways—for example, more skipjack tuna lar- The depletion of coral reefs predicted by IPCC SR 1.5°C vae survive during El Niño to become juvenile fish.47 as a result of the impacts of ocean warming and acidifi- cation will reduce the availability of the fish species that The IPCC predictions suggest that sea surfaces will be depend on these coral reef ecosystems. In fact, the pro- very likely to become warmer and more acidic; it is also duction of demersal stocks in the Western and Central likely that there will be changes in water circulation pat- Pacific is predicted to decline by 20 percent by 2050 terns and decreases in oxygen levels in the water. This, and 20–50 percent by 2100 under continued high GHG in turn, seems likely to change the availability of nutri- emissions.44 As a result, the Pacific Island Countries and ents and hence food availability for tuna. Territories (PICTs) will have to make greater domestic In a recent analysis, the South Pacific Community use of pelagic species—particularly tunas. Indeed, it (SPC), with partners,48 sought to assess the impacts of has been estimated that by 2035, 25 percent of all fish climate change on tropical tuna species and tuna fisher- required for food security of Pacific Island people will ies in Pacific Island waters and high seas areas. The new need to be supplied by tuna. To meet this need, more modelling simulates the response of tropical tuna spe- than 85,000 tones of tuna and tuna-like species will be cies, and the ecosystem that supports them, to project- required annually for domestic consumption within the ed changes in sea surface temperature, ocean currents, next 15 years.45 dissolved oxygen levels, and other ocean variables un- The tuna fisheries of the Western and Central Pacific der IPCC’s continued high emissions “business as usual” are among the best managed tuna stocks in the world, scenario in 2050 and 2100. The modelling indicates that largely as a result of the work of South Pacific Forum significant changes in the distribution of the main tar- Fisheries Agency and the Parties to the Nauru Agree- get species of skipjack, yellowfin, and bigeye tuna and ment (PNA),46 as well as the Western and Central Pa- South Pacific albacore are expected to occur by 2050. cific Fisheries Commission (WCPFC). However, there The models suggest that there will be a strong eastward is increasing evidence that many of these stocks may shift in the distribution of skipjack and yellowfin tuna, begin to migrate as the ocean continues to warm over resulting in reduced abundance of both species in the the course of the current century. The migration of fish Exclusive Economic Zones (EEZs) of PICTs west of 170E stocks as a result of climate change has been widely ob- in the Western and Central Pacific Ocean. There might served in other parts of the world and it is already known also be a similar but weaker eastward shift in the distri- that the distribution and abundance of tuna species is bution of bigeye tuna. This shift to the east seems likely influenced by natural climate variability through the in- to mean that stocks will be moving out of the EEZs of fluence of climate drivers such as the El Niño Southern some of the Pacific coastal States and moving into the Oscillation (ENSO) and the Pacific Decadal Oscillation EEZs of others, but also into high seas areas, resulting (PDO). During a La Niña event, tuna populations are in a larger proportion of the catch of each species being found more in the Western Pacific and during El Niño made in international waters. A possible positive effect, however, might be an increase in the biomass of South 44 See, Pacific Islands Oceanic Fisheries Management Fact Sheet Pacific albacore in the EEZs of Pacific Island Countries (OFMP2) based on: “Climate Change Impacts, vulnerabilities and (PICs), although these predictions are uncertain due to adaptation: Western and Central Pacific marine fisheries” in M. Barange, T. Bahri, M.C.M. Beveridge, K.L. Cochrane, S. Funge-Smith, poor information about likely future levels of dissolved and F. Poulain, eds. 2018. Impacts of climate change on fisheries oxygen in oceanic waters. and aquaculture: synthesis of current knowledge, adaptation and mitigation options. FAO Fisheries and Aquaculture Technical Paper No. 627, p. 628, available at: http://www.fao.org/3/i9705en/ i9705en.pdf 47 See, OFMP2, “Climate Change Impacts, vulnerabilities and 45 South Pacific Community (SPC), “Implications of climate-driven adaptation: Western and Central Pacific marine fisheries” at p. 2. redistribution of tuna for Pacific Island economies”. SPC Policy Brief 48 SPC and Conservation International, “What are the effects of No. 32 (2019) at p. 3. climate change on tuna fisheries in the Western and Central 46 The Nauru Agreement is a sub-regional agreement regulating Pacific Ocean?” (January 2019). The modeling and analyses terms and conditions for tuna purse-seine fishing licenses in the were made possible through the support of the World Bank- region. The Parties include Federated States of Micronesia, Kiribati, implemented Ocean Partnerships for Sustainable Fisheries and Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands Biodiversity Conservation, a sub-project of the Common Oceans and Tuvalu. ABNJ Program led by the FAO and funded by the GEF. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 7 Figure 1. Map of the EEZs of PICTs and international water high seas areas for the tropical Pacific Ocean. Source: South Pacific Community, Division of Fisheries, Aquaculture and Marine Ecosystems, “Impact of climate and tuna fisheries in Pacific Island waters and high seas areas: modelling the effects of climate change on tuna abundance in areas beyond national jurisdiction” (December 2018). License fees from tuna fishing make a substantial con- Research and modelling done under the auspices of the tribution to the government revenues of many PICTs. SPC shows that in the period up to 2050 the relative Purse-seine fishing provides the vast majority of these abundance of skipjack and yellowfin tuna in the EEZs important national economic benefits. Indeed, six PICTs of PICTs west of 170E (for example, Federated States of derive approximately 30–100 percent of their govern- Micronesia, Marshall Islands, Nauru, Palau, Papua New ment revenues from tuna fishing license fees.49 Tuna Guinea, and Solomon Islands) and in international wa- ters (high seas) areas I1, I2 and H4 are projected to de- fishing also makes significant contributions to the gross cline. However, the relative abundance of tuna species domestic product of Federated States of Micronesia is expected to increase in the EEZs of most (but not all) and Marshall Islands. It also supports the employment PICTs east of 170 (for example, Cook Islands, Fiji, French of almost 25,000 people across the region, through Polynesia, Kiribati, Niue, Samoa, Tonga, and Vanuatu) jobs on fishing vessels, in fish processing operations, and in all other high seas areas.50 and in management of tuna fisheries. The tuna stocks that provide these economic and social benefits are in a SPC Division of Fisheries, Aquaculture and Marine Ecosystems, 50 “Impact of climate change on tropical tuna species and tuna healthy condition (that is, none of the tropical tuna spe- fisheries in Pacific Island waters and high seas areas: Modelling cies are overfished and overfishing is not occurring), due the effects of climate change on tuna abundance in areas beyond largely to strong management of purse-seine fishing in national jurisdiction” (December 2018), Information Paper 6003922 (CI-4), developed for Conservation International (CI) as part of the the EEZs of PICTs, particularly in the waters of the PNA. GEF-funded, World Bank implemented Ocean Partnerships for sustainable fisheries and biodiversity conservation (OPP), a sub- Ibid., p. 4. 49 project of the Common Oceans ABNJ Program led by UN-FAO., p. 3. 8 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Figure 2. Average historical (2005) distributions of skipjack, yellowfin and bigeye tuna, and South Pacific albacore (Mt/km2) in the tropical Pacific Ocean, and projected changes in biomass of each species relative to 2005 under the RCP8.5 emission scenario for 2050 and 2100, simulated using SEAPODYM. Skipjack 2005 2050 2100 40 °N 40 °N 40 °N 20 °N 20 °N 20 °N 0° 0° 0° 20 °S 20 °S 20 °S 40 °N 40 °N 40 °N 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 0 0.1 0.2 0.3 -0.2 -0.15 0 0.15 0.2 -0.2 -0.15 0 0.15 0.2 Yellowfin 2005 2050 2100 40 °N 40 °N 40 °N 20 °N 20 °N 20 °N 0° 0° 0° 20 °S 20 °S 20 °S 40 °N 40 °N 40 °N 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W -0.15 -0.075 0 0.075 0.15 -0.15 -0.075 0 0.075 0.15 0 0.05 0.1 0.15 Bigeye 2005 2050 2100 40 °N 40 °N 40 °N 20 °N 20 °N 20 °N 0° 0° 0° 20 °S 20 °S 20 °S 40 °N 40 °N 40 °N 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W -0.05 -0.025 0 0.025 0.05 -0.05 -0.025 0 0.025 0.05 0 0.01 0.02 0.03 0.04 South Pacific albacore 2005 2050 2100 0° 0° 0° 10 °S 10 °S 10 °S 20 °S 20 °S 20 °S 30 °S 30 °S 30 °S 40 °S 40 °S 40 °S 50 °S 50 °S 50 °S 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 150 °E 160 °W 110 °W 0 0.01 0.02 0.03 0.04 -0.04 -0.02 0 0.02 0.04 -0.04 -0.02 0 0.02 0.04 Source: Western and Central Pacific Ocean marine fisheries in “Impacts of climate change on fisheries and aquaculture Synthesis of current knowledge, adaptation and mitigation options”, FAO Fisheries and Aquaculture Technical Paper 627 (Rome: FAO, 2018), p. 313, Figure 14.4. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 9 Figure 3. Projected changes in license revenue from the purse-seine fishery, in terms of value (USD) and as a percentage of all government revenue, in 2050 relative to 2016 due to the effects of climate change on the combined biomass of skipjack, yellowfin and bigeye tuna in the EEZ of 10 PICTs. 2016 2050 Change 2016–2050 Change (%) Contribution in combined Contribution of licence biomass of of licence Contribution Total Govt. Tuna licence fees to SKJ, YFT & Total Govt. Tuna licence fees to Tuna licence to total revenue fee revenue total Gov’t BET tuna by revenue fee revenue total Gov’t fee revenue Gov’t PICT (EEZ) (USD m) (USD m)* revenue (%) 2050 (USD m) (USD m) revenue (%) (USD m) revenue (%) EEZ west of 170E FSM 133.9 63.2 47.2 -26 117.6 46.9 39.9 -16.3 -7.3 Marshall 64.7 29.2 45.1 -15 60.2 24.7 41.0 -4.5 -4.1 Islands Nauru 56.0 27.8 49.6 -9 53.4 25.2 47.1 -2.6 -2.5 Palau 50.7 6.8 13.4 -24 49.1 5.2 10.6 -1.6 -2.8 Papua New 5366.7 128.8 2.4 -37 5319.0 81.1 1.5 -47.7 -0.9 Guniea Solomon 411.9 41.6 10.1 -15 405.7 35.4 8.7 -6.2 -1.4 Islands EEZ east of 170E Cook Islands 143.8 12.8 8.9 18 146.1 15.1 10.3 2.3 1.4 Kiribati 217.5 118.3 54.4 15 235.4 136.2 57.9 17.9 3.5 Tokelau 13.6 13.3 98.0 -8 12.5 12.3 97.8 -1.0 -0.2 Tuvalu 39.0 23.4 60.0 -9 37.0 21.4 57.8 -2.0 -2.2 Total 465.2 403.5 Source: Pacific Islands Forum Fisheries Agency. 10 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Atafu Atoll, Tokelau. Photo: World History Archive / Alamy Stock Photo LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 11 Part II The Legal Regime Governing the Rights and Resources of Coastal and Island States in the Age of Climate Change and Sea Level Rise 12 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES 1. 1982 UN Convention on The contiguous zone stretches a further twelve nm sea- ward. In addition, the coastal State is entitled to claim the Law of the Sea an Exclusive Economic Zone (EEZ) out to 200 nm which gives it sovereign rights (although not full sovereignty) The 1982 UN Law of the Sea Convention (LOSC) has 320 over the resources of the seabed and the superjacent Articles and nine Annexes; it was negotiated over nearly waters.53 If a coastal State has a continental shelf that a decade (1973–82) and entered into force in 1994. It extends beyond 200 nm from the baseline, it is also— represents codification as well as progressive develop- subject to certain limitations—entitled to sovereign ment of the law of the sea. Many of its innovative pro- rights over those seabed resource of that shelf right to visions are a carefully negotiated compromise between the outer edge of the continental margin.54 different States’ interests.51 In the measurement of all these zones, the coastal The legal regime for the determination of maritime baseline plays a crucial role, as it does with the zones, limits and boundaries is a mixture of pre-existing delimitation of a State’s maritime boundaries with its customary law rules and innovative new concepts, such neighbors. In recognition of this, a coastal State that as the regime for archipelagic States in Part IV of LOSC. uses anything other than the “normal” low water line as its baseline must commission and publicize charts of an Figure 4. Coastal baseline and maritime zones adequate scale to show its baselines, and submit them stipulated under LOSC. (or their geographical co-ordinates) to the Secretary- General of the United Nations (UNSG).55 It is also obliged to publish, publicize and similarly submit charts or co- Continental Shelf Territorial Sea Baseline The ordinates of any delimitation lines of any maritime Sea-bed, Subsoil, Sedentary Species Area (Extended boundary agreements with other States.56 Continental Shelf) Exclusive Economic There are few, if any, States that do not have a Zone (EEZ) High Sea neighboring State whose own maritime zones abut it, Internal waters Water Column, Sea-bed, Subsoil Contiguous 200 M either as an adjacent or opposite State. Where a State 12 M zone Territorial 12 M has an opposite or adjacent neighbor, the LOSC enjoins sea Sea Level those States to reach agreement on the delimitation of a maritime boundary. For territorial sea boundaries between adjacent States or those less than 24 nm Upper Slope Plateau apart, there is a presumption of equidistance in that in or Terrace Lower Rise Deep the absence of historic title or special circumstances, Slope Ocean no State may legitimately claim beyond a median line.57 Source: Andi Arsana and Clive Schofield, Manual on Technical Aspects For other boundaries, however, there is an obligation to of the Law of the Sea (TALOS Manual), International Hydrographic reach agreement based on international law to reach an Organization, Special Publication No.51, (Monaco: International Hydrographic Bureau, 2014), Figure 5.1. “equitable solution.”58 In the case of islands situated on atolls or having fringing The Coastal Baseline reefs, the baseline may be drawn from the seaward low water line of the reef. Similarly, where an insular feature The coastline is the starting point for the measure- which is only above water at low tide—a low tide elevation ment of a coastal State’s maritime zones. The “nor- (LTE)—is situated less than twelve nm from the main- mal” baseline is “the low water line along the coast as land or an island—this may also be used as a basepoint.59 marked on large scale charts officially recognized by the coastal State.”52 From this baseline can be measured the State’s twelve nautical mile (nm) territorial sea, the 53 LOSC, Part V, Arts. 55-75. outer boundary of which is a line “every point of which is 54 LOSC, Part VI, Arts. 76-85. 55 LOSC, Art. 16. [twelves miles] from the nearest point of the baseline…”. 56 For boundaries in the territorial sea, LOSC, Art. 16. Also, for the EEZ, Art. 75 and continental shelf, Art. 84. 57 LOSC, Art. 15. 51 The so-called “Package deal”. 58 For EEZ, LOSC Art. 74; continental shelf, Art. 83. 52 LOSC, Art. 5. 59 LOSC, Art. 13. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 13 Figure 5. Illustration of types of baselines. All the waters to the landward side of the baseline are the internal waters of the coastal States and subject to its full sovereignty. It is also possible in the case of coastlines which are deeply indented or cut into or fringed with islands in its immediate vicinity—like the coast of Norway—to draw straight baselines. These straight baselines must link mainland and island fea- archipelagic tures and not depart appreciably from the direction of the coast. The sea areas within those lines must be suf- ficiently closely linked to the land to be subject to the regime of internal waters. bay mouth of river reefs A provision that is however not widely relied upon is included in Article 7 of the LOSC on the drawing of straight straight baselines. It relates to situation where “because of the presence of a delta and other natural conditions […] the coastline is highly unstable.” In such situations, normal an appropriate point may be selected along the furthest seaward extent of the low water line and the straight Source: Andi Arsana and Clive Schofield, TALOS Manual (2014). baseline linking those points shall remain effective “not- Figure 6. LTEs and the generation of maritime zones. withstanding the subsequent regression of the low-wa- ter line.” Land Archipelagic Baselines 1 The special regime for archipelagic States is drawn to- LTE = Low-tide elevation gether for the first time by Part IV of the LOSC. It pro- Territorial sea breadth measured from mainland only vides that a State constituted wholly by one or more 2 archipelagos and other islands may claim archipelagic 3 4 status. For the purposes of the LOSC, an archipelago is defined as “a group of islands, including parts of islands, interconnecting waters and other natural features Territorial sea limit using low-tide elevations 1 and 2 as baselines which are so closely interrelated that such islands, wa- Sea ters and other natural features form an intrinsic geo- graphical, economic and political entity, or which histor- Source: Andi Arsana and Clive Schofield, TALOS Manual (2014), Figure ically have been regarded as such.”64 4.4. Note: LTEs 3 and 4 may not be used to define the baseline because An archipelagic State “may draw straight archipelagic they lie beyond the breadth of the Territorial Sea. baselines joining the outermost points of the outermost islands and drying reefs of the archipelago” provided There are also specific rules regarding the drawing of that the “main islands” of the archipelagic State are baselines around ports,60 across the mouths of rivers,61 included within the archipelagic baseline system.65 The as well as detailed provisions regarding bays.62 A coast- requirements for the drawing of these straight archipe- al State’s territorial sea may also be expanded beyond lagic baselines are detailed and complex. The straight 12 miles to include “roadsteads”—areas normally used baselines linking the outermost islands and reefs must for the anchoring, loading, and unloading of ships.63 not depart to any appreciable extent from the configu- 66 ration of the archipelago. No single baseline segment 64 LOSC, Art. 46. 60 LOSC, Art. 11. 65 LOSC, Art. 47(1). 61 LOSC, Art. 9. 66 It can be noted that although these rules appear to be reasonably 62 LOSC, Art. 10. strict, Prescott was of the view that “Three of the five tests are 63 LOSC, Art. 12. incapable of consistent objective interpretation.” See, John R.V. 14 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES joining basepoints may normally be longer than 100 between the two States in accordance with international 67 nm, except that three percent of the total number of law.73 Most boundaries are amicably agreed in this baseline segments enclosing an archipelago may exceed way. The treaty between the two States reflecting 68 that up to 125 nm. Finally, and perhaps most impor- that agreement is technically only binding on the two tantly, the ratio of water to land within the baselines of States party, but because it delimits the areas of their 69 the archipelago must be between 1:1 and 9:1. respective sovereignty and/or sovereign rights, it must be respected by third States also. This ratio requirement disqualifies immediately a number of big island States like the United Kingdom In the event that agreement is not reached within a rea- or Japan, which have too much land to meet the ratio, sonable time, then it is possible to take advantage of but it also means that some island groups which are the compulsory dispute settlement procedures set out made up of widely dispersed small islands may not in Part XV of the LOSC. Indeed, multiple cases have been have enough land to meet this ratio. For the purpose of brought before the International Court of Justice (ICJ), computing the ratio of water to land, land areas may the International Tribunal for the Law of the Sea (ITLOS) include waters lying within the fringing reefs of islands and also arbitral tribunals established under the proce- and atolls, including that part of a steep-sided oceanic dure in Annex VII. plateau which is enclosed or nearly enclosed by a chain The compulsory dispute procedure in Part XV works of limestone islands and drying reefs lying on the in the following way. Article 287 provides that when a perimeter of the plateau.70 State becomes a party to the LOSC it may, if it wishes, choose one or more methods of dispute settlement set Maritime Boundaries out in that article, namely submission to: For many island States, some parts of the outer lim- a) ITLOS its of their maritime zones will be adjacent to the high seas. In those cases, the coastal State must unilaterally b) The ICJ delineate its outer boundaries in accordance with the c) An arbitral tribunal established under Annex VII LOSC rules71 and submit maps or coordinates of those delineation lines to the UNSG.72 d) A special tribunal under Annex VIII (for certain types of disputes). In the majority of situations, where the maritime zone abuts the maritime zone of another State, whether If a dispute subsequently arises and if both States have opposite or adjacent, the basic applicable principle is chosen a similar method of dispute settlement, then that the boundary should be concluded by agreement one State may bring proceedings using that procedure. If there is no commonality, the LOSC provides for the Prescott, “Straight and Archipelagic Baselines”, in Gerald H. Blake use of an arbitral tribunal under Annex VII, unless the (ed.), Maritime Boundaries and Ocean Resources, (Beckenham: parties agree to another procedure.74 States may uni- Croom Helm, 1987), Chap. 3, p.46. For a more detailed analysis of navigational issues related to archipelagic baselines and laterally elect to exclude disputes relating to maritime archipelagic waters see, Martin B. Tsamenyi, Clive H. Schofield boundaries from this procedure, in which case any sub- and Ben Milligan, “Navigation through Archipelagos: Current State sequent dispute goes to obligatory conciliation, under Practice”, pp. 413-454 in Myron H. Nordquist, Tommy B. Koh, and Annex V, if no other settlement procedure is agreed. 75 John N. Moore, eds, Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention (Martinus Nijhoff, 2008). This was recently used for the first time regarding the 67 LOSC, Art. 47(2). maritime boundary dispute between Australia and 68 It is worth noting that as it is the coastal State that constructs the Timor Leste under the auspices of the Permanent Court archipelagic baseline system and as there is no restriction on the number of baselines that an archipelagic State might draw, it is of Arbitration.76 usually possible to adjust the baseline system to overcome the no more than three per cent of baseline segments exceeding 100 nm 73 LOSC, Arts. 75 and 84. in length restriction and thus conform to the LOSC requirements. 74 LOSC, Art. 287(5). See, United Nations Division for Ocean Affairs and the Law of the 75 LOSC, Art. 298. Sea, Handbook on the Delimitation of Maritime Boundaries, (United 76 In the Matter of the Marine Boundary between Timor-Leste and Nations, 2000) at p. 8. Australia (Timor Sea conciliation), PCA Case no. 2016-10, before 69 LOSC, Art. 47(1). a Conciliation Commission constituted under Annex V to the 1982 70 LOSC, Art. 47(7). United Nations Convention on the Law of the Sea between the 71 Concerning Territorial Sea, EEZ and Continental Shelf. Democratic Republic of Timor-Leste and the Commonwealth of 72 LOSC, Arts. 16, 74 and 83. Australia. The Report and Recommendations of the Compulsory LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 15 Figure 7. Definition of the outer limits of the continental shelf. Established baseline 2500 m isobath + 100 nm (either normal or straight) 350 nm 200 nm Hedberg Line dry land low water 60 nm Continental shelf slope abysmal Continental crust plain Continental rise foot of slope (FOS) sediment (max change of gradient) ocean crust 1% sediment thickness Outer limit of CS (Gardiner Line) Fixed points (lat, long) Source: Andi Arsana and Clive Schofield, TALOS Manual (2014), Figure 5.12. Commission on the Limits of the line, it is important to have a method to determine the Continental Shelf proper extent of the coastal State’s sovereign rights and the beginning of “the Area”. In Article 76, the LOSC All coastal States are entitled to the seabed resources lays down complex methods for calculating that edge of their continental shelf, which is understood as the of the margin.81 natural prolongation of their land territory to the edge of the continental margin or to a distance of 200 nm Recognizing the complexity, the LOSC also provides a from their coastal baseline if the continental margin technical mechanism to ensure that lines have been does not extend to that distance. correctly drawn. Where a coastal State claims such an extended continental shelf, it has primary responsibility The ocean beyond the 200 nm line is high seas and be- for delineating the outer limits of that shelf by straight neath the high seas, the seabed, ocean floor and sub- lines, not exceeding 60 nm in length connecting fixed soil thereof is classified by the LOSC as “the Area.”77 points defined by coordinates of latitude and longitude. The Area and its mineral resources are the “common The coastal State must then submit its proposed delin- heritage of mankind”78 on whose behalf the Interna- eation line, with background information, to the Com- tional Seabed Authority79 regulates the exploration mission on the Limits of the Continental Shelf (CLCS) and exploitation of these resources.80 However, in sit- which reviews it in the light of the LOSC requirements uations where the edge of the continental margin of a and may make “recommendation” to the coastal State coastal State extends beyond 200 nm from the base- on its proposed delineation line.82 The coastal State may then submit revised proposals reflecting the rec- Conciliation Commission between Timor-Leste and Australia on the Timor Sea (TSCR), 9 May 2018, available at https://pcacases. ommendations of the CLCS. If the coastal State follows com/web/view/132. the recommendation of the CLCS, then the limits that 77 LOSC, Art. 1(1). it establishes are “final and binding.”83 This means that 78 LOSC, Art. 136. 79 LOSC, Art. 1(2). they are also binding on other States. 80 LOSC, Art. 137. The International Seabed Authority (ISA) is mandated under the LOSC to “organize, regulate and control all mineral-related activities in the international seabed area for the 81 LOSC, Art. 76(4). benefit of mankind as a whole.” ISA is based in Kingston, Jamaica. 82 LOSC, Art. 76(8). For further details, see: https://www.isa.org.jm/ 83 LOSC, Art. 76(8). 16 LEGAL DIMENSIONS / LEGAL OF DIMENSIONS SEA OF LEVEL SEA RISE: LEVEL RISEPACIFIC PERSPECTIVES Competent International Organizations Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC, 2000).89 The LOSC established the International Seabed Author- ity (ISA), the ITLOS and the CLCS. It also recognizes the Regional Fisheries Bodies in the Pacific important regulatory functions of other bodies that it terms “competent international organizations.” These Against this background, the South Pacific region has include sectoral organizations such as the International a number of fisheries management bodies and it is well Maritime Organization (IMO)84 and fisheries manage- established that its tuna stocks are the healthiest and ment bodies at global, regional, and sub-regional level.85 best managed in the world.90 The global fisheries body, the Food and Agriculture The Pacific Island Forum Fisheries Agency (FFA) was es- Organization of the UN (FAO), oversees a network of tablished in 1979, under the auspices of the South Pa- regional general fisheries (that is, not tuna) bodies— cific Forum (SPF) to help the 17 Pacific island member some with management authority and some that countries to sustainably manage their fishery resources are purely advisory. Despite recent efforts to develop that fall within their 200-mile EEZs.91 FFA is an adviso- a comprehensive network of regional management ry body providing expertise, technical assistance, and regimes, there are still gaps, such as the Southwest other support to its members who make sovereign de- Atlantic or the North Atlantic south of 35°N.86 cisions about their tuna resources and participate in re- gional decision making on tuna management, including A relative latecomer to this network of regional gener- WCPFC. al fisheries bodies is the South Pacific Regional Fisher- ies Management Organization (SPRFMO) established Eight FFA members are also parties to the 1982 Nauru in November 2009.87 The main commercial resources Agreement Concerning Cooperation in the Management fished in the SPRFMO Area are jack mackerel and jum- of Fisheries of Common Interest, (Nauru Agreement or bo flying squid in the Southeast Pacific and, to a much PNA) that controls the world’s largest sustainable tuna lesser degree, deep-sea species often associated with purse-seine fishery.92 The focus of PNA efforts to sus- seamounts in the Southwest Pacific.88 tainably manage tuna is the Vessel Day Scheme (VDS). PNA members agree on a limited number of fishing days There is, however, a comprehensive network of five for the year, based on scientific advice about the status RFMOs managing tuna and tuna-like species. These of the tuna stocks. Fishing days are then allocated by are: Inter-American Tropical Tuna Commission (IATTC, country and sold to the highest bidder. Many PNA con- which dates from 1949); International Commission servation measures are world firsts—such as high seas for the Conservation of Atlantic Tunas (ICCAT, 1966); closures to fishing, controls on Fish Aggregating Devices Indian Ocean Tuna Commission (IOTC, 1993); and most (FADs), protection for whale sharks, and the 100 percent recently, the Commission for the Conservation and coverage of purse-seine fishing vessels with observers. No dolphins are caught in PNA waters and the PNA is 84 LOSC, Art. 197. 85 LOSC, Art. 119(2). actively involved in limiting bycatch of other species.93 86 There is a current effort to upgrade the Western and Central Atlantic Fishers Commission (WECAFC) from an advisory to a 89 Established by the Convention opened for signature at Honolulu management body. in September 2000, which entered into force on 19 June 2004. 87 Established by the Convention on the Conservation and The Convention was the first regional tuna fisheries agreement Management of the High Seas Fishery Resources of the South to be adopted after the conclusion of the 1995 UN Fish Stocks Pacific Ocean (2015), published by the South Pacific Regional Agreement (UNFSA), and it reflects its requirements. It has 26 Fisheries Management Organization (SPRFMO), available at: parties, seven participating territories and eight co-operating non- https://www.sprfmo.int/assets/Basic-Documents/Convention- members. web-12-Feb-2018.pdf It is an inter-governmental organization 90 See above. committed to the long-term conservation and sustainable use of 91 Members: Australia, Cook Islands, Federated States of Micronesia, the fishery resources of the South Pacific Ocean and in so doing Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, safeguarding the marine ecosystems in which the resources occur. Papua New Guinea, Samoa, Solomon Islands, Tokelau, Tonga, 88 Fifteen members from Asia, Europe, the Americas, and Oceania: Tuvalu, and Vanuatu. Australia, Chile, People’s Republic of China, Cook Islands, Cuba, 92 Members are Federated States of Micronesia, Kiribati, Marshall Ecuador, European Union, Denmark in respect of the Faroe Islands, Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, and Republic of Korea, New Zealand, Peru, Russian Federation, Chinese Tuvalu. Taipei, United States of America, and Vanuatu. Cooperating non- 93 Nauru Agreement Concerning Cooperation in the Management of Contracting Parties (CNCPs) are: Curaçao, Republic of Liberia, and Fisheries of Common Stocks (as amended in April 2010), available Republic of Panama. at: https://www.pnatuna.com/content/nauru-agreement. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 17 2. 1992 UN Framework Convention on obligations, even though a number of emerging econo- mies had already started to become major GHG emit- Climate Change and the 2015 Paris ters.100 Agreement The 2015 Paris Agreement The UN Framework Convention on Climate Change (UN- FCCC)94 was signed in 1992 at the UN Conference of En- The 2015 Paris Agreement101 replaces the “top down” vironment and Development (UNCED),95 and came into approach of the Kyoto Protocol, with a “bottom up” force in 1994. With currently 197 parties, it has near-uni- approach, where all the contracting Parties, whether versal membership. Its negotiation was prompted by Annex I or not, agree to undertake and communicate the publication of the first IPCC Assessment report in their own Nationally Determined Contribution (NDC) 1990 and it is based on the twin principles of precaution reflecting their efforts to reduce national GHG emissions and common but differentiated responsibility. Its over- and to adapt to the impacts of climate change. To date, arching objective is the “stabilization of greenhouse gas 189 of the 197 Parties to the UNFCCC have ratified concentrations in the atmosphere at a level that would the Paris Agreement. The Paris Agreement is a treaty prevent dangerous anthropogenic interference with the under the UNFCCC, with the same institutions, however climate system”.96 Its institutional framework includes: the Parties to the Paris Agreement also agree to the the Conference of the Parties (COP); a secretariat and following specific objectives: two subsidiary bodies; the Subsidiary Body on Scientif- ic, Technical and Technological Advice (SBSTTA); and the a) Holding the increase in the global average tempera- Subsidiary Body for Implementation (SBI). Implementa- ture to well below 2°C above pre-industrial levels and tion is supported by a dedicated financial mechanism. pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that General Obligations this would significantly reduce the risks and impacts of climate change. Annex I of the UNFCCC lists the developed countries and the transition economy countries that are obliged b) Increasing the ability to adapt to the adverse impacts by Article 3(1) to take the lead in combatting climate of climate change and foster climate resilience and change and the obligations of the contracting Parties low GHG emissions development, in a manner that are differentiated in Article 4. Annex I countries have does not threaten food production. reporting and policy development obligations, where- c) Making finance flows consistent with a pathway to- as the reporting and other obligations of Non-Annex I wards low GHG emissions and climate-resilient de- countries are dependent on the provision of financing velopment. and technical assistance by the developed countries (listed in Annex II).97 The 1997 Kyoto Protocol98 clarified Nationally Determined Contributions the obligations of Annex I countries with more precision requiring them to reduce their Greenhouse Gas (GHG) To achieve those goals, Article 4(2) of the Paris Agree- emissions by an average of 5.2 percent between 2008 ment provides that “Each Party shall prepare, commu- and 2012.99 Non-Annex I parties had no GHG reduction nicate and maintain successive nationally determined contributions that it intends to achieve” (emphasis 94 United Nations Framework Convention on Climate Change added). So, each Party has the discretion to decide the (UNFCCC), 1771 U.N.T.S. 107, 165 (May 9, 1992). 95 Together with the Convention on Biological Diversity and the content of its NDC, but it is obliged to make such a de- Convention to Combat desertification, one of the so-called Rio Conventions. 100 The Doha Amendment signed in Qatar in 2012 created a second 96 UNFCCC, Art. 2. IPCC AR5 lays out “Reasons for Concern (RFCs)”, commitment period under the Kyoto Protocol for 37 Annex I see, IPCC, Climate Change 2014: Synthesis Report (2014), countries to cut their GHG emissions collectively by at least 18% Contribution of Working Groups I, II and III to the Fifth Assessment below 1990 levels from 2013 to 2020. In October 2020, Nigeria Report of the Intergovernmental Panel on Climate Change (Core became the 144th country to ratify the Doha Amendment, ensuring Writing Team, R.K. Pachauri and L.A. Meyer [eds.]) at pp. 72-73. that it would come into force on the day it expired at the end of 97 UNFCCC, Art 4(7). 2020. This entry into force, despite having some implications for 98 Kyoto Protocol to the United Nations Framework Convention on carbon accounting, is largely symbolic. Climate Change, U.N. Doc FCCC/CP/1997/7/Add.1 (Dec. 10, 1997). 101 UNFCCC COP, Adoption of the Paris Agreement, Decision 1/CP.21, in 99 Specific country commitments are set out in Annex B of the Kyoto COP Report No. 21, Addendum, at 2, U.N. Doc. FCCC/CP/2015/10/ Protocol. Add.1 (Jan. 29, 2016). 18 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES termination and communicate it. In addition, the Paris the implementation of actions” as appropriate.106 Par- Agreement imposes strong procedural obligations to ties are encouraged to submit and periodically update operationalize NDCs. Under the Paris Agreement, each their adaptation communication describing their prior- Party is required to: ities, needs, plans, and actions.107 Parties can plan and communicate their adaptation efforts through National a) Provide the information necessary for clarity, trans- Adaptation Plans (NAPs), NDCs, or other national com- parency and understanding, in communicating its munication tools. NDCs (Article 4[8]). b) Communicate a successive NDC every five years Loss and Damage (Article 4[9]). Loss and damage is now integrated into the text of the c) Account for its NDCs to avoid double counting and Paris Agreement, as the Warsaw International Mecha- promote environmental integrity and transparency nism for Loss and Damage (WIM) agreed in 2013 is now (Article 4[13]). incorporated into Article 8, but the Parties’ obligations are only of a cooperative and facilitative nature, without d) Provide a national GHG inventory and the information necessary to track progress in implementing and any legal or financial obligations. The Paris Agreement achieving its NDCs (Article 13[7]). recognizes the importance of averting, minimizing, and addressing loss and damage associated with the adverse Each Party commits to review their own NDC at least effects of climate change, including extreme weather every five years in order to increase its “ambition” and events and slow onset events, and the role of sustainable commits that successive NDC will represent a “…pro- development in reducing the risk of loss and damage. gression beyond the Party’s then current [NDC] and re- flect its highest possible ambition.”102 Transparency Framework Even though the Paris Agreement sets out these require- The measurement, reporting, and verification (MRV) ments for all Parties, it recognizes the Parties’ common framework under the UNFCCC and Kyoto Protocol has but differentiated responsibilities and respective capa- evolved over time. The Paris Agreement now provides bilities, in light of different national circumstances. It that Parties must regularly share a national inventory recognizes that developing countries will need financial, report of GHG emissions and information necessary technological and capacity-building support to imple- to track progress in implementing and achieving NDCs ment their commitments under the Paris Agreement.103 and “should” provide information related to adaptation Regarding mitigation actions envisaged in NDCs, there action.108 The enhanced transparency framework also is a special provision for the least developed countries covers climate finance, technology development, and (LDCs) and SIDS who “may prepare and communicate capacity-building.109 strategies, plans and actions for low [GHG] emissions development reflecting their special circumstances.”104 Finance Adaptation Provisions The UNFCCC already imposes a broad collective financial obligation on developed country Parties, requiring them Adaptation receives clearer focus under the Paris to provide financial support for developing countries Agreement. Parties to the Paris Agreement also com- to implement their commitments. Similarly, the Paris mit to undertake and communicate ambitious efforts Agreement obliges developed country Parties to provide on adaptation.105 The Paris Agreement requires all Par- financial support to developing country Parties with re- ties to “engage in adaptation planning processes and spect to mitigation and adaptation, while other Parties 102 Paris Agreement (PA), Art 4(3). are “encouraged to provide” such support voluntarily.110 103 PA, Art 3 and Art 4(3)-(5). 104 PA, Art. 4(6). 106 PA, Art. 7(9). 105 PA, Art 3 and Art 7. Art. 3 states “As nationally determined 107 PA, Art. 7(10). contributions to the global response to climate change, all Parties 108 PA, Art. 13. are to undertake and communicate ambitious efforts as defined in 109 Developed country Parties “shall” and other Parties that provide Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose support “should” provide information on these aspects. of this Agreement as set out in Article 2 […]”. 110 See, in general, PA, Art. 9. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 19 Other Entry Points for International 3. Legal Aspects of Statehood Cooperation States are the primary subjects of international law In addition to finance, Parties to the Paris Agreement possessing international legal personality, in the same are required to strengthen international cooperative ac- way that individuals are the primary subjects of na- tion on technology development and transfer. All Parties tional law and possess legal personality under national are encouraged to cooperate to increase the capacity law. Just as national laws recognize other legal entities of developing countries, so that they are able to imple- with slightly different legal powers—such as companies, ment their obligations under the Paris Agreement and partnerships, charities, or even, in some countries, an- developed countries are urged to increase their support imals and nature in general; so international law also in that regard. recognizes to different extents a range of non-state ac- tors, such as international organizations,113 and other Finally, in implementing their obligations, Parties may entities including corporations, non-governmental or- pursue voluntary cooperation under Article 6 of the Par- ganizations, and individuals.114 is Agreement, which sets out three mechanisms includ- ing (i) voluntary cooperation approaches under Article The main capacities associated with statehood under 6(2), (ii) the “sustainable development mechanism” un- international law include the capacity to enter into bind- der Article 6(4), and (iii) non-market approaches under ing international agreements, being subject to rights Article 6(8). However, details and operating rules need and obligations under international law, and the ability to be fleshed out further to fully operationalize these to make claims before international or national courts. mechanisms. It also includes the ability to become a member of the United Nations and other international organizations. Paris Rulebook and Following Developments Although States are the primary subjects of interna- In 2018 at UNFCCC COP 24, the Parties agreed on de- tional law, the requirements for statehood are difficult tailed rules and procedures for implementing the Par- to define precisely.115 They were described in a region- al treaty concluded under the auspices of the Organi- is Agreement and adopted the Paris Agreement Work zation of American States (OAS) dating back to 1933: Program, the so-called “Katowice Climate Package” or The Montevideo Convention on the Rights and Duties of “Paris Rulebook.”111 The Parties agreed on various criti- States.116 Article 1 of that Convention provides that: cal issues concerning the modalities of mitigation and NDCs, the transparency framework, adaptation, fi- nance, the global stock take, and compliance. However, 113 The International Court of Justice (ICJ), in 1949, concluded COP 24 still left a number of important issues to be re- that United Nations is a subject of international law “capable solved. In particular, the Parties were unable to agree on of possessing international rights and duties and that it has various critical issues including Article 6,112 reporting re- the capacity to maintain its rights by bringing international claims.” Reparation for Injuries Suffered in the Service of the quirements for transparency and common timeframes United Nations, Advisory Opinion, (April 1949) I.C.J. No. 174. for climate pledges, and efforts to review and strength- However, international legal personality differs among different international organizations depending on a number of factors en loss and damage mechanism, which are pending to including principally the competencies bestowed by the constituent be resolved during the upcoming COPs. instrument of the organization. See also, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) I.C.J. GL No. 95. 114 As opposed to States, other entities benefit from different degrees of legal personality and recognition from States. The rights and obligations of other entities will depend on various considerations that need to be determined on a case-by-case basis. 111 The full set of decisions agreed to in Katowice is available at 115 In general, see James Crawford, The Creation of States in ‘Katowice Climate Package’ (UNFCCC) https://unfccc.int/process- International Law (2nd edn., Oxford University Press, 2006) pp. 37- and-meetings/the-paris-agreement/paris-agreement-work- 45. programme/katowice-climate-package. 116 The Montevideo Convention on the Rights and Duties of States 112 Some of the most contentious issues included accounting (adopted 26 December 1933, entered into force 26 December 1934) rules to avoid double-counting, “corresponding adjustments” 165 LTNS 19. The Montevideo Convention has sixteen ratifications to international carbon trading under Art. 6(4), modalities for including Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican transitioning from CDM and CERs, whether or not to allow “share Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, of proceeds” to fund adaptation under Art. 6(2). Mexico, Nicaragua, Panama, United States of America, Venezuela. 20 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES The State as a person of international law should pos- quantitative or qualitative test available. Nationality is sess the following qualifications: also not required to satisfy the “permanent population” requirement.120 In the case of sea level rise, the “perma- a) A permanent population nence” of a population might be threatened through b) A defined territory wide-scale community relocation and migration. c) Government In addition to the defined territory and permanent pop- ulation criteria, “government” is usually accepted as one d) Capacity to enter into relations with other states. of the most crucial elements. Scholars argue that the The Montevideo requirements are generally taken to territory element could be considered as “a constituent represent customary international law,117 however it is of government and independence rather than a distinct clear that over recent history, a number of entities have criterion of its own.”121 Though, there have been various been granted recognition as States without fulfilling all situations where statehood has been accepted as pres- these criteria and that a number of entities that appear ent even when an “effective government” was absent.122 to fulfill the physical requirements have not achieved the The fourth element is “the capacity to enter into rela- international recognition required from other States. A tions with other States”, which is generally understood key indicator of the capacity of an entity to enter into to include the maintenance of diplomatic relationships, relation with other States is the willingness of other the ability to sign treaties, and to abide by international States to recognize that entity as having the capacity obligations. This element lies at the intersection of in- to do this. In turn, an important way in which the inter- dependence and effectiveness of a government. In fact, national community as a whole has exercised its recog- many scholars emphasize “independence” as the deter- nition of this capacity since 1945 has been through its mining element for statehood.123 acceptance of an application to join the United Nations. Although the criteria for statehood inform when and how Generally speaking, a “defined territory” is accepted as a statehood may be created and may cease to exist, inter- significant constituent of statehood even though what national law does not provide clear cut answers to those the term exactly means is subject to scholarly debate. questions. International law addresses the various ways Definitively settled borders are not a prerequisite for a a State can become extinct including through merger, ab- defined territory. Moreover, the concept of territory in- cludes “islands, islets, rocks, and reefs.”118 Presumably, (emphasis added). 120 Crawford concludes “nationality is accepted to be within the even a very small amount of territory would be adequate realm dependent upon statehood, not vice versa.” See, p. 52. In the to meet that criterion. A “permanent population” is the Nottebohm case that has been the subject of ongoing controversy second element supporting the formation of statehood; among scholars and adjudicators, the ICJ concluded that issues relating to nationality are generally accepted to be within the again, it is not entirely settled what “permanent” in this domain of the granting State: “[N]ationality is a legal bond having context really means. In general, there is no minimum as its basis a social fact of attachment, a genuine connection of number necessary to meet this population criterion but existence, interests and sentiments, together with the existence “permanent population” usually refers to maintaining of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual … is in fact more a “reasonably stable” population119 though there is no closely connected with the population of the State conferring nationality than with that of any other State.” See, Nottebohm 117 Additional requirements have been considered at times. See, in Case (Second Phase), I.C.J. Rep 1955 p. 4, 23. general, Ian Brownlie, Principles of Public International Law (7th 121 See, Crawford, p. 52. edn., Oxford University Press, 2008) pp. 70-76. 122 Crawford analyzes the concept of “effective government” through 118 See, ibid., p. 105. the illustration of the former Belgian Congo that was granted 119 Lowe, Vaughan. 2007. International Law. Oxford University Press, independence in 1960 as the Republic of the Congo (now, the p. 154. Lowe’s analysis may provide some insight on this issue: Democratic Republic of Congo), Rwanda, Burundi and other cases “There may be some point at which the international community of “premature independence.” He concludes: “[S]tatehood is not would draw the line. For example, if the Pitcairn Islands (population, simply a factual situation. It is a legally circumscribed claim of 45) were to become independent and seek admission to the United right, specifically to the competence to govern a certain territory. Nations, States might re-examine the relationship between the Whether that claim of right is justified as such depends both on principle of sovereign equality and common sense. The population the facts and on whether it is disputed. Like other territorial rights, must be reasonably stable. They may wander around within the government as a precondition for statehood is thus, beyond a country, like the nomadic people of the Western Sahara, but they certain point, relative. But it is not entirely so: each State is an must have some degree of social cohesion; a transient, dissociated original foundation predicated on a certain basic independence.” population (such as the groups of fisherfolk who reside on certain See, in general, pp. 56-61. otherwise unoccupied islands on a seasonal basis) is not enough” 123 See, Crawford, p. 89 and Brownlie, p. 71. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 21 sorption, or dissolution and provides some treaty-based been denounced widely, even drawing criticism from solutions in respect to succession.124 However, cessation the UN Refugee Agency.128 “Refugee” has a specific of statehood in the context of sea level rise is unprece- meaning in international law and is defined as a per- dented and is a notion which traditional international law son “owing to well-founded fear of being persecuted for has never had to contemplate. Therefore, drawing anal- reasons of race, religion, nationality, membership of a ogies based on existing examples and anomalies is par- particular social group or political opinion, is outside ticularly difficult and the examples may even be ill-suit- the country of his nationality and is unable, or owing to ed.125 Such a scenario is to date not clearly addressed by such fear, is unwilling to avail himself of the protection international law even though it has been subject to an of that country… (emphasis added).”129 This definition extensive ongoing debate among scholars.126 does not include people who leave their home States for climate-related reasons. Although there is as yet no in- ternationally agreed term to cover such situations, the 4. Legal Framework for Human widely accepted umbrella term is “human mobility in Mobility in the Context of Climate the context of climate change”, which generally refers Change to three movement patterns including displacement (forced movement of persons), migration (defined as As sea level rise threatens access to land, livelihoods, voluntary movement of persons), and planned reloca- food security, and wellbeing for vulnerable communi- tion (physical process of moving persons or groups of ties, climate change may induce or exacerbate human persons to a new location whether voluntary or involun- mobility by interacting with other risk elements such as tary).130 It is important to note, however, that differen- poverty, violence, and conflict.127 tiating between “voluntary” and “forced” in this context is often difficult due to the complexity of the issues in- It needs to be highlighted at the outset that the term volved and the fact that affected people may be driven “climate refugee” is inappropriate; indeed, its use has by various factors.131 124 Vienna Convention on the Succession of States in respect of Relevant Legal Frameworks in General Treaties (adopted 23 August 1978, entered into force 6 November 1996) 1946 UNTS 3 (with 19 Signatories and 23 Parties) and Climate change threatens the enjoyment of a wide range Vienna Convention on the Succession of States in respect of State of substantive and procedural human rights, either Property, Archives, and Debts (opened for signature 8 April 1983, directly or indirectly.132 These include, in particular, the not yet in force) Doc. A/CONF.117/14. 125 Vidas, Davor. 2014. “Sea-Level Rise and International Law: At the Convergence of Two Epochs.” Climate Law Vol. 4, pp. 70-84, at 78. 128 See, UNHCR, Climate change and disaster displacement, available 126 See, e.g., Jane McAdam “‘Disappearing states’, statelessness at: https://www.unhcr.org/en-us/climate-change-and-disasters. and the boundaries of international law” Climate Change and html For a general analysis, see Walter Kälin, Conceptualizing Displacement: Multidisciplinary Perspectives (Hart, 2010) ed. Jane Climate-Induced Displacement, Climate Change and Displacement: McAdam; Rosemary Rayfuse, “W(h)ither Tuvalu? International Multidisciplinary Perspectives (Hart, 2010) ed. Jane McAdam, pp. Law and Disappearing States” (June 2009), UNSW Law Research 81-103. Paper No. 2009-9; Rosemary Rayfuse, “International law and 129 Convention relating to the Status of Refugees (adopted 28 July disappearing states: utilising maritime entitlements to overcome 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee the statehood dilemma” (2010) UNSW Law Research Paper No. Convention), Article 1A (2). 2010-52; Jenny Grote Stoutenburg, “When Do States Disappear? 130 See, in general, Platform on Disaster Displacement, Key Definitions, Thresholds of Effective Statehood and the Continued Recognition available at: https://disasterdisplacement.org/the-platform/key- of “Deterritorialized” Island States” (2013) in Michael Gerrard definitions and Gregory Wannier, eds, Threatened Island Nations: Legal 131 Kälin, Walter and Nina Schrepfer. 2012. “Protecting People Crossing Implications of Rising Seas and a Changing Climate; and Alejandra Borders in the Context of Climate Change: Normative Gaps and Torres Camprubí, Statehood under water: Challenges of sea-level Possible Approaches.” UNHCR Legal and Protection Policy Research rise to the continuity of Pacific Island States (Brill, 2016). Series, PPLA/2012/01. 127 McAdam, Jane and Sanjula Weerasinghe. 2020. “Climate change 132 The Preamble of the Paris Agreement recognizes the linkages and human movement.” Climate Change, Justice and Human between climate change and human rights providing that “Parties Rights, Amnesty International Netherlands (edited by David should, when taking action to address climate change, respect, Ismangil, Karen van der Schaaf & Lars van Troost). See, also, promote and consider their respective obligations on human Kanta K. Rigaud, Alex de Sherbinin, et al., Groundswell: Preparing rights, the right to health, the rights of indigenous peoples, local for Internal Climate Migration (2018), the World Bank. The report communities, migrants, children, persons with disabilities and acknowledges migration as “human face of climate change” and people in vulnerable situations and the right to development, as well highlights that unless urgent action is taken, over 140 million as gender equality, empowerment of women and intergenerational people will internally migrate by 2050 only in Sub-Saharan Africa, equity.” These interlinkages are well documented by a variety South Asia, and Latin America. of instruments at the UN level and elsewhere. See, in particular, 22 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES rights to life, health, water, food, adequate housing, there is a growing body of case law—including through self-determination, culture, and development as climate litigation—affirming that States’ human rights well as procedural rights such as rights to access to obligations in this context include protecting people information, participate in decision-making, and access from foreseeable harm emanating from the impacts of to justice.133 These negative impacts present themselves climate change irrespective of a State’s contribution to asymmetrically with heightened effects on vulnerable anthropogenic climate change.136 groups such as women, children, the elderly, and indigenous or other traditional communities with special In general, as a reflection of the principle of State sover- dependency on and attachment to land.134 Though eignty and territorial integrity, States have the primary these impacts do not automatically mean that a State duty to provide protection and humanitarian assistance will be held legally responsible for violating relevant to persons affected by natural disasters and similar obligations under international human rights law,135 emergency situations within their jurisdiction or con- trol.137 States’ existing obligations to respect, protect, United Nations Human Rights Council (HRC) Resolution No. 41/21, “Human rights and climate change” (12 July 2019), UN Doc A/HRC/ and fulfil human rights under international and regional RES/41/21; Office of the High Commissioner for Human Rights human rights law are applicable to all individuals sub- (OHCHR), “Mapping Human Rights Obligations relating to the ject to their jurisdiction, irrespective of these individ- Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Focus Report on Human Rights and Climate Change” (June 2014); uals’ citizenship status.138 In complementing a State’s OHCHR Report on the Relationship between Climate Change and duty to protect, the international community as a whole Human Rights (15 January 2009), UN Doc. A/HRC/10/61. For an bears a duty to cooperate with countries affected by insightful treatment of the issue, see also, Siobhán McInerney- Lankford, Mac Darrow, and Lavanya Rajamani, Human Rights and sea level rise.139 Cooperation in the context of interna- Climate Change: A Review of the International Legal Dimensions (The World Bank Group, 2011). For further analysis on relevant of the Rights to Life and to Personal Integrity – Interpretation aspects pertaining to slow onset events, see OHCHR, “The Slow and Scope of Articles 4(1) and 5(1) of the American Convention on onset effects of climate change and human rights protection for Human Rights), Advisory Opinion OC-23/18, Inter-Am. Ct. H.R., cross-border migrants” (22 March 2018), UN Doc A/HRC/37/CRP.4. (ser. A) No. 23 (Nov. 15, 2017). See also, Jane McAdam, Bruce Burson, Walter Kälin and Sanjula 136 For instance, in the recent case of Urgenda v. the Netherlands, the Weerasinghe, “International Law and Sea-Level Rise: Forced Supreme Court of the Netherlands concluded that the Netherlands Migration and Human Rights” (January 2016), report prepared by violated the right to life and the right to family life as contained the Fridtjof Nansens Institutt in cooperation with the Andrew & in the European Convention on Human Rights by failing to take Renata Kaldor Centre for International Refugee Law, University of action to avoid climate change impacts. The Court has ruled that New South Wales, FNI Report 1/2016. the state has ‘direct legal obligations’ to reduce GHG emissions by 133 Ibid. For procedural rights, in particular, see also, Convention on at least 25% by the end of 2020, compared to 1990 levels. See, Access to Information, Public Participation in Decision-Making and State of the Netherlands v Urgenda [2019] ECLI:NL:HR:2019:2006 Access to Justice in Environmental Matters (adopted 25 June 1998, (20 December 2019). entered into force 30 October 2001) 447 UNTS 2161. 137 This primary role derives from the principle of sovereignty as high- 134 In addition to the sources listed above, see, HRC, Report of the lighted in Article 2 para 1 and para 7 of the UN Charter (adopted Special Rapporteur on extreme poverty and human Rights: Climate 26 June 1945, entered into force 24 October 1945). See also, UNGA change and poverty (17 July 2019), UN Doc. A/HRC/41/39; OHCHR resolution no 46/182 “Strengthening of the coordination of human- Report: Analytical study on the promotion and protection of the itarian emergency assistance of the United Nations” Annex, para 3. rights of persons with disabilities in the context of climate change For a more in-depth analysis of the issue in the context of sea level (22 April 2020), UN Doc. A/HRC/44/30; and OHCHR Report: rise, see, Principle 4 and its commentaries in Sydney Declaration Analytical study on gender-responsive climate action for the full of Principles on the Protection of Persons Displaced in the Context and effective enjoyment of the rights of women (1 May 2019), UN of Sea Level Rise adopted by the International Law Association in Doc. A/HRC/41/26. 2018. For protection of persons in the event of disasters (including 135 Defining States’ human rights obligations in the context of climate slow onset events such as sea level rise), see Article 10 in Draft Arti- change as well as enforcing them have demonstrated multiple cles on the Protection of Persons in the Event of Disasters, adopted challenges. As of today, there is still no consensus on the scope by the International Law Commission at its 68th session in 2016, of these obligations in the context of climate change. Challenges available with commentaries at: https://legal.un.org/ilc/texts/in- include not only determining causality and attributing relevant struments/english/commentaries/6_3_2016.pdf harm to specific duty-bearers but also challenges deriving from 138 See, in particular, International Covenant on Civil and Political transnational impacts and intergenerational nature of climate Rights (adopted 16 December 1966, entered into force 23 March change. The Advisory Opinion issued by the Inter-American Court 1976) 999 UNTS 171 (ICCPR) and International Covenant on of Human Rights could be particularly significant as it recognized Economic, Social and Cultural Rights (adopted 16 December 1966, the existence of a stand-alone right to a healthy environment entered into force 3 January 1976) 993 UNTS 3 (ICESCR). under the American Convention and the adverse impact of climate 139 See, Articles 1(3), 55, and 56 of the UN Charter. See, also Sydney change on human rights, also discussing the extraterritorial Declaration, Principle 7. Note that to date, the scope of such duty aspects of climate-related harm. For further details, see, The to cooperate in the context of sea level rise and climate change Environment and Human Rights (State Obligations in Relation to in general is not entirely clear. Commentators have raised that the Environment in the Context of the Protection and Guarantee related issues such as the content, who the effective duty bearer LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 23 tional human rights obligations has been explicitly men- to give rise to refugee status.144 In general, persons tioned under Article 2(1) of the ICESCR highlighting that crossing borders in the context of sea level rise are not States’ obligations to take steps to achieve progressive recognized as refugees unless elements of persecution realization of economic, social, and cultural rights in are also present.145 However, the principle of non-re- particular, depend not only on the availability of their foulement can be applicable beyond refugee law.146 This resources but also on economic and technical coopera- general principle prohibits States from removing people tion at international level.140 to any place where they would face a risk of torture; cruel, inhuman or degrading treatment; or arbitrary (i) Internal Displacement deprivation of life.147 The 1998 UN Guiding Principles on Internal Displace- ment restate and compile international law standards (iii) Migration relevant to internally displaced persons (IDPs).141 Al- When in situ adaptation is no longer an option, commu- though not binding in themselves, they are based on nities may opt to migrate internally or internationally well-established standards under international human- to avoid harm. Though in practice, such arrangements itarian law and human rights law extending the protec- usually occur bilaterally or at regional level, there are tion to all persons in a State’s territory, irrespective of umbrella principles in human rights law and relevant in- their nationality.142 ternational labor law instruments including the Interna- tional Convention on the Protection of the Rights of All (ii) Cross-border Displacement Migrant Workers and Members of Their Families148 and Mobility in the context of climate change has, to date, mostly occurred internally, but cross-border movement 144 For an insightful treatment of the issue, see, Matthew Scott, is already common and may increase over time.143 En- Climate Change, Disasters, and the Refugee Convention vironmental harm in general or climate change is not (Cambridge University Press, 2020). Worth noting that some other regional instruments do not necessarily limit refugee status to the part of the grounds listed by the Refugee Convention grounds listed in the 1951 Convention. People who cross borders to seek protection may substantiate their claims based on “events is, and what responsibilities are entailed need further clarification. seriously disturbing public order” as mentioned under Article See, McAdam, Burson, et al. (2016), at para 120. For a detailed I(2) of the 1969 Organization of African Unity (OAU) Convention legal analysis on the extent of the international community’s Governing the Specific Aspects of Refugee Problems in Africa and responsibility to take the actions necessary to protect those people Conclusion III(3) of the 1984 Cartagena Declaration. See, OAU, most vulnerable to the effects of sea level rise, see, John H. Knox, Convention Governing the Specific Aspects of Refugee Problems “Linking Human Rights and Climate Change at the United Nations” in Africa (“OAU Convention”), 10 September 1969, 1001 UNTS 45. (2009), Harvard Environmental Law Review, Vol. 33. See also, The Cartagena Declaration on Refugees, adopted during 140 See, also ICESCR, Arts 11, 15, 22, and 23 for explicit reference to the “Coloquio Sobre la Protección Internacional de los Refugiados international cooperation in the context of specific rights. en América Central, México y Panamá: Problemas Jurídicos y 141 The UN Guiding Principles define internally displaced persons Humanitarios”, held in Cartagena, 19-22 November 1984. (“IDPs”) as “people or groups of people who have been forced 145 Jurisprudence from the Pacific region in some cases concerning or obliged to flee or to leave their homes or places of habitual Kiribati and Tuvalu offer some insight on the issue. In the case of AF residence, in particular as a result of or in order to avoid the effects (Kiribati) where the appellant claimed refugee status on the basis of armed conflict, situations of generalized violence, violations of of environmental changes in Kiribati caused by sea level rise, the human rights or natural or human-made disasters, and who have Tribunal, concluded that the concept of “being persecuted” rests not crossed an internationally recognized State border.” United within human agency rather than environmental impacts, such as Nations Guiding Principles on Internal Displacement, 1998, UNHCR climate change, albeit leaving the door open for any possible future Doc. E/CN.4/1998/53/Add.2. cases. See, AF (Kiribati) [2013] NZIPT 800413, at paras 54-55. 142 See, for instance, general principle of non-discrimination, the right Similarly, see, AC (Tuvalu) [2014] NZIPT 800517-520, paras 45-46. not to be arbitrarily displaced, right to an effective remedy, right to 146 See, the 1951 Refugee Convention, Art 33(1): “No Contracting life, right to liberty and security of person, freedom of movement State shall expel or return (“refouler”) a refugee in any manner and freedom to choose his or her residence, and right to seek whatsoever to the frontiers of territories where his life or freedom asylum among others. would be threatened on account of his race, religion, nationality, 143 See, Internal Displacement Monitoring Centre (IDMC), “Synthe- membership of a particular social group or political opinion.” sizing the state of knowledge to better understand displacement 147 International human rights law establishes a legal basis for related to slow-onset events” (August 2018) developed in the con- complementary protection; however, only certain rights are text of Activity I.2 of the Task Force on Displacement Workplan; recognized as giving rise to an obligation of non-refoulement. For a The Nansen Initiative, Agenda for the Protection of Cross-Border comprehensive normative assessment, see, Jane McAdam, “Climate Displaced Persons in the Context of Disasters and Climate Change Change Displacement and International Law: Complementary (December 2015), available at: https://nanseninitiative.org/ Protection Standards” (May 2011) UNHCR Legal and Protection wp-content/uploads/2015/02/PROTECTION-AGENDA-VOLUME-1. Policy Research Series, PPLA/2011/03. pdf; and Guy S. Goodwin-Gill and Jane McAdam, Climate Change, 148 UN General Assembly, International Convention on the Protection Disasters and Displacement, (2017) UNHCR, available at: http:// of the Rights of All Migrant Workers and Members of their Families www.unhcr.org/afr/596f25467.pdf (18 December 1990), A/RES/45/158. 24 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES in International Labor Organization conventions and the policies and experience of multilateral development recommendations.149 banks working on resettlement induced by development projects could potentially inform development of similar (iv) Planned Relocation standards at the national and regional level addressing When disasters or long-term adverse impacts are un- planned relocation in the context of climate change (for avoidable, then planned relocation150 may be necessary example, standards governing meaningful consultation in certain cases.151 Relocation may entail drastic chang- with displaced persons, consent, livelihood restoration, es to lifestyle and livelihoods as well as risk of impov- and compensation among others).155 erishment, landlessness, food insecurity among various other risks,152 so planned relocation needs to be careful- Other Selected Normative Developments ly designed with meaningful consultation with affected communities. Although there is no international binding Under the UNFCCC regime, the 2010 Cancun Adapta- instrument specifically addressing the issue of planned tion Framework marks an important milestone for hu- relocation, relevant applicable standards can be found man mobility in the context of climate change as its in the UN Guiding Principles on Internal Displacement, paragraph 14(f) calls on Parties to take “measures to the Pinheiro Principles on Housing and Property Resti- enhance understanding, coordination and cooperation tution,153 and various other initiatives.154 Furthermore, with regard to climate induced displacement, migration, and planned relocation,” while “taking into account their 149 See, in particular, the Convention concerning Migration for common but differentiated responsibilities.”156 Addition- Employment (No. 97), the Convention concerning Migrations ally, in 2018, a Task Force on Displacement established in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (No.143), the pursuant to the Paris Agreement,157 issued a set of rec- Recommendation concerning Migration for Employment (No. ommendations to “facilitate orderly, safe, regular and 86), the Recommendation concerning Migrant Workers (No.151), responsible migration and mobility […] in the context of the Convention concerning Forced or Compulsory Labor (No. 29) and the Convention concerning Abolition of Forced Labor (No. climate change, by considering the needs of migrants 105). Please also note supplementary framework such as ILO and displaced persons, […] by enhancing opportunities Multilateral Framework on Labor Migration, which consists of non- for regular migration pathways, including through labor binding principles and guidelines. mobility.”158 COP 24 endorsed these recommendations 150 Evacuation may also be undertaken as a last resort measure when there is an imminent threat to life. In the absence of voluntariness, “inviting” countries to consider the recommendations, where affected persons are evacuated against their will, relevant which was a crucial step for the recognition of human international law standards require that such measures are conducted mobility in the context of climate change under the UN- in a proportionate, non-discriminatory way and in accordance with existing law and the principles of human dignity and liberty. FCCC regime. The approach developed under the UNFC- 151 Movement already occurs internally within customary lands or elsewhere (rural or urban), and relocation to another PIC, or beyond within States (2013) and Brookings/Georgetown University/UNHCR, PICs is certainly not uncommon in the Pacific context and is Guidance on Protecting People from Disasters and Environmental expected to increase as climate change impacts are exacerbated. Change through Planned Relocation (7 October 2015). See, John Campbell, “Climate-Induced Community Relocation in the 155 See, for instance, World Bank OP 4.12 on Involuntary Resettlement Pacific: The Meaning and Importance of Land” in Climate Change and ESS 5 on Land Acquisition, Restrictions on Land Use and and Displacement: Multidisciplinary Perspectives (Hart, 2010) Involuntary Resettlement. For a detailed treatment of the issue, ed. Jane McAdam, pp. 57-79; Jane McAdam, “Historical Cross- see Rina A. Kuusipalo, Duygu Cicek, and Loren Atkins, “Legal and Border Relocation in the Pacific: Lessons for Planned Relocations Policy Considerations Relating to Human Mobility in the Context in the Context of Climate Change” (2014) The Journal of Pacific of Climate Change and World Bank Operations” (May 2020), World History Vol. 49, p.301. Also note that in certain cases, planned Bank Legal Climate Change Thematic Working Group Learning relocation could be based on a request from affected populations, Note Series. whereas sometimes such demand may not be present. See, Jane 156 UNFCCC, “Report of the Conference of the Parties on its sixteenth McAdam and Elizabeth Ferris, “Planned Relocations in the Context session,” Cancun Adaptation Framework, Cancun, 2010, UNFCCC of Climate Change: Unpacking the Legal and Conceptual Issues” Doc. FCCC/CP/2010/7/Add.1, available at: http://unfccc.int/ (2015), Cambridge Journal of International and Comparative Law, resource/docs/2010/cop16/eng/07a01.pdf#page=4 Vol. 4, p. 137. 157 UNFCCC COP, “Adoption of the Paris Agreement. Proposal 152 Cernea, Michael M. 2008. “Compensation and benefit sharing: why by the President,” UNFCCC Doc. FCCC/CP/2015/L.9/Rev.1, 12 resettlement policies and practices must be reformed.” Water Sci December 2015. Decision, Para.50, available at: https://unfccc. Eng., Vol. 1, pp. 89–120. int/documentation/documents/advanced_search/items/6911. 153 UN Sub-Commission on the Promotion and Protection of Human php?priref=600008831. Rights, Housing and property restitution in the context of the return 158 UNFCCC, Decision -/CP.24, Report of the Executive Committee of refugees and internally displaced persons, Progress report of the of the Warsaw International Mechanism for Loss and Damage Special Rapporteur, Paulo Sérgio Pinheiro (8 June 2005) UN Doc E/ associated with Climate Change Impacts (Advance Unedited CN.4/Sub.2/2004/22/Add.1. Version), Adopted 2-14 December 2018, available at: https:// 154 See, for instance, the Peninsula Principles on Climate Displacement unfccc.int/sites/default/files/resource/cp24_auv_ec%20wim.pdf LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 25 CC framework refers to human mobility in the context of 5. Work of the International Law climate change holistically, therefore providing a venue in the context of all movement patterns in the context Association and the International of climate change, whether internal or international. Law Commission Similarly, with its aim of “the substantial reduction of di- The International Law Association (ILA) was founded in saster risk and losses in lives, livelihoods and health”, the 1873. Its objectives are “the study, clarification and de- Sendai Framework for Disaster Risk Reduction 2015–30, velopment of international law, both public and private, endorsed by the UN General Assembly, is particularly rel- and the furtherance of international understanding and evant in the context of disaster-induced displacement respect for international law”. It has consultative status, (including displacement due to slow-onset events such as an international non-governmental organization, with as sea level rise). It explicitly mentions the importance of a number of the United Nations specialized agencies. addressing disaster displacement in the context of im- The ILA Committee on International Law and Sea Level proving disaster preparedness159 and strengthening di- Rise, established in 2012, was given a four-year man- saster risk governance.160 The Sendai Framework, even date starting in 2014, “to study the possible impacts of though a non-binding framework, is intended to guide sea level rise and the implications under international law the efforts of stakeholders at all levels, including glob- of the partial and complete inundation of State territory, al, regional, national, and local. Therefore, the inclusion or depopulation thereof, in particular of small island and of displacement in the Sendai Framework is considered low-lying states; and to develop proposals for the pro- as “an important step forward” for people displaced by gressive development of international law in relation to disasters and creates an entry point for anticipating and the possible loss of all or of parts of state territory and preparing for displacement in this context.161 maritime zones due to sea level rise, including the im- pacts on statehood, nationality, and human rights.”163 Another significant normative development is the adop- tion of the Global Compact on Safe, Orderly and Regu- lar Migration (Global Compact for Migration) under the In the first phase (2014–18) it focused on (a) law of the auspices of the UN in 2018.162 Although it is an aspira- sea issues, regarding the implications of sea level rise tional framework, it provides significant political com- on maritime zones and boundaries and (b) migration mitments specifically addressing human mobility in the and human rights issues. The Committee presented context of climate change. Objective 2 (“minimize the its Final Report in August 2018.164 That report looked adverse drivers and structural factors that compel peo- specifically at the short-term impacts of sea level rise ple to leave their country of origin”) and Objective 5 (“en- on maritime zones and boundaries and also articulated hance availability and flexibility of pathways for regular some important principles for the protection of persons migration”) are particularly relevant in this context. displaced in the context of sea level rise.165 In relation to the impacts of sea level rise on maritime zones, the Committee’s primary recommendation was reflected in 163 ILA, Minutes of the Meeting of the Executive Council (London, 10 November 2012), at 5. International Law Association, International Law and Sea Level Rise Committee, available online: http://www.ila- hq.org/en/committees/index.cfm/cid/1043. See, also: Davor Vidas, 159 Sendai Framework for Disaster Risk Reduction 2015-2030, UN Doc David Freestone and Jane McAdam, “International Law and Sea A/RES/69/283 (23 June 2015), para 33(h). Level Rise: The New ILA Committee” International Law Students’ 160 Ibid., Para 28(d). See also paras 27 and 30 on relocation and human Association (ILSA) Journal of International and Comparative Law mobility in general. Vol. 21 (2015), pp. 397–408. The authors were the Chair and co- 161 Kälin, Walter. 2015. “Sendai Framework: An important step forward Rapporteurs of the Committee, respectively. for people displaced by disasters.” The Brookings Institution, available 164 At the 78th ILA Conference in Sydney. ILA, Final Report of the online: https://www.brookings.edu/blog/up-front/2015/03/20/ Committee on International Law and Sea Level Rise (2018). sendai-framework-an-important-step-forward-for-people- 165 The Sydney Declaration of Principles for the Protection of Persons displaced-by-disasters/ Displaced in the Context of Sea Level Rise. Resolution 6/2018, 162 Intergovernmental Conference to Adopt the Global Compact for Committee on International Law and Sea Level Rise. 78th Safe, Orderly and Regular Migration, “Global Compact for Safe, Conference of the International Law Association, held in Sydney, Orderly, and Regular Migration” (December 10–11, 2018)., U.N. Doc. Australia, 19–24 August 2018. Text available at http://www.ila-hq. A/CONF.231/3. org/index.php/committees. 26 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES a Resolution of the 78th ILA Conference.166 That Resolu- and cross-border displacement of affected persons.174 tion recognized the emerging State practice in the in- In November 2018, the Committee was given a mandate terpretation of the provisions of the 1982 LOSC,167 and for its second phase (2019–22).175 That phase will be fo- recommended that States should accept that, once the cusing on the study of international law issues prompt- baselines and the outer limits of the maritime zones of a ed by the mid- to longer-term predictions of sea level coastal or an archipelagic State have been determined rise. In addition to the issues related to the law of the in accordance with the detailed requirements of the sea and territory, and to the rights of the affected pop- 1982 Convention that reflect customary international ulations, it will also study statehood and international law, these baselines and limits should not be required law personality questions, and other related issues of to be readjusted should sea level change affect the geo- international law and international security.176 One of graphical reality of the coastline.168 The Resolution also the first issues concerning the law of the sea discussed recommended that the ability of coastal and archipe- was the disproportionate impact that sea level rise lagic States to maintain their existing lawful maritime seems likely to have on archipelagic States.177 entitlements should apply equally to maritime boundar- ies delimited by international agreement or by decisions The International Law Commission (ILC) was estab- of international courts or arbitral tribunals.169 lished by the General Assembly in 1947, to undertake the mandate of the Assembly, under Article 13(1)(a) of In relation to displacement in the face of sea level rise, the Charter of the United Nations to “initiate studies a second plenary Resolution of the ILA Conference,170 and make recommendations for the purpose of [...] en- drew attention to the recent efforts of the international couraging the progressive development of internation- community to develop a comprehensive legal and poli- al law and its codification”. The members of the ILC are cy framework for the protection of people displaced in nominated by their governments and elected by the UN the face of climate change, and adopted its own “Syd- General Assembly. ney Declaration Of Principles on the Protection of Per- sons Displaced in the Context of Sea Level Rise.”171 The In 2018, the ILC proposed the inclusion of the topic of Sydney Declaration consists of twelve principles aim- “Sea-level rise in relation to international law” in its ing to codify and progressively develop relevant norms long-term program of work.178 The proposal received of international law focusing on the protection of per- support from nearly 120 UN Member States during the sons displaced in the context of sea level rise. Some of debate at the Sixth (Legal) Committee of the UN Gen- these principles are general in scope172 and applicable eral Assembly,179 and was adopted in a 2018 General to all forms of “human mobility”173 while other specific Assembly resolution.180 In turn, the ILC decided in May principles are applicable in the context of evacuation, planned relocation, migration, internal displacement, 174 See, Principles 8-12 for further details. 175 ILA, Minutes of the Meeting of the Executive Council (London, 17 November 2018), at 3, and Annex 5. 166 ILA Resolution 5/2018. 176 An organizing meeting for the second phase of its work (up to 2022) 167 LOSC. Also note that Article 31(3) of the 1969 Vienna Convention was held in Madrid in December 2019. See, Davor Vidas, “Madrid on the Law of Treaties, ILM 8 (1969):689, provides that in the Meeting of the Committee on International Law and Sea Level Rise, interpretation of a treaty: “There shall be taken into account, December 2019”, FIDE Foundation, at: https://www.fidefundacion. together with the context: (a) any subsequent agreement between es/Madrid-Meeting-of-the-Committee-on-International-Law- the parties regarding the interpretation of the treaty or the and-Sea-Level-Rise-December-2019_a1173.html application of its provisions; (b) any subsequent practice in the 177 On which see David Freestone and Clive Schofield, “Sea Level Rise application of the treaty which establishes the agreement of the and Archipelagic States: A Preliminary Risk Assessment” (2021) parties regarding its interpretation (emphasis added).” Ocean Yearbook Vol. 35 (forthcoming). 168 ILA Resolution 5/2018. 178 ILC, Report of the Work of the Seventieth Session (2018), UN 169 Ibid. Doc. A/73/10, Annex B. The proposal that was put forward by 170 ILA Resolution 6/2018. the Government of the Federated States of Micronesia (dated 171 Ibid. 31 January 2018) for the inclusion of the topic on the Long-Term 172 See, Principle 4 on the primary duty and responsibility of States Programme of Work of the ILC was taken into account and to protect and assist affected persons, Principle 5 on the duty reflected in the preparation of this document accordingly. See, to respect the human rights of affected persons, Principle 6 on document ILC(LXX)/LT/INFORMAL/1 of 31 January 2018. the duty to take positive action, and Principle 7 on the duty to 179 See Patrícia G. Teles, “Sea-Level Rise in Relation to International cooperate. Law: A New Topic for the United Nations International Law 173 As noted earlier in this study and by the Sydney Declaration, this Commission” in M.C. Ribeiro et al., eds, Global Challenges and the term is widely used as an umbrella term addressing all forms Law of the Sea (Springer Nature, 2020) pp. 145–157. of human mobility (i.e., displacement, migration, and planned 180 UNGA Resolution 73/265 (UN Doc. A/RES/73/265) of 22 December relocation). 2018. See also, more recently, UNGA Resolution 74/186 (UN Doc. A/ LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 27 2019 to include the topic in its active work program and Members States commended the ILC for its proposed to initially address it in an “open-ended Study Group.”181 three-fold thematic structure of work,184 and—regard- Following its syllabus prepared in 2018,182 the ILC Study ing the law of the sea in particular—several States indi- Group has structured the organisation of its work in cated their support for an approach to ensure certainty terms of three main issue-areas (“subtopics”) of inter- and stability under the LOSC.185 The ILC plan of work national law: a) law of the sea, b) statehood, and c) pro- is, in turn, organized around basically the same three tection of persons affected by sea level rise. The Study issue-areas that the ILA Committee agreed in 2014, Group also considered a road map for its work and plans namely: the law of the sea; forced migration and human to initially address issues related to the law of the sea rights; and issues of statehood. The 2020 first issues (subtopic A) in 2020, and issues related to statehood paper by the co-chairs of the ILC Study Group outlines and the protection of persons affected by sea level rise the general scope and outcome of the topic, the issues (subtopics B and C) in 2021.183 to be considered by the Study Group, the outcome to be reached, as well as the methodology to be used.186 The discussions held in October 2019 in the Sixth Com- mittee of the UN General Assembly clearly demonstrat- ed the increasing attention of many States to the in- ternational law implications of sea level rise. Many UN 184 See, e.g., statements in the UN Sixth Committee debate (October– November 2019) by Peru (UN Doc A/C.6/74/SR.27, para. 64); Fiji, on behalf of the Pacific small island developing States, including RES/74/186) of 18 December 2019. also Kiribati, Micronesia, Nauru, Palau, Papua New Guinea, Samoa, 181 UN Doc. A/74/10, paras 9 and 265. Solomon Islands, Tonga, Tuvalu, and Vanuatu (ibid., para. 79); 182 UN Doc. A/74/10, para. 269; and UN Doc. A/73/10, annex B, Romania (UN Doc A/C.6/74/SR.28, paras 14–15); Italy (ibid., para. especially para. 19. For ILC reports on this matter, see generally UN 30); The Netherlands (ibid., para. 79); Argentina (UN Doc A/C.6/74/ Doc. A/74/10 (2019), Chs. III and X; and UN Doc. A/73/10 (2018), SR.29, para. 35); Ireland (ibid., para. 43); Thailand (ibid., para. 99): Chs. III and XII, and Annex B. Portugal (ibid., para. 108); Mexico (ibid., para. 114); Japan (UN Doc 183 UN Doc. A/74/10, para. 267. It is planned that the conclusions of the A/C.6/74/SR.30, para. 34); Estonia (ibid., para. 61); Malaysia (ibid., ILC Study Group can be made available at the end of the current para. 83); Philippines (UN Doc A/C.6/74/SR.31, para. 9); Indonesia quinquennium (2017-2021) or more likely during the next (2021- (ibid., para. 29); and Bangladesh (ibid., para. 48). 2016), see, Teles, “Sea-Level Rise in Relation to International Law,” 185 UN Doc. A/CN.4/734 (12 February 2020), para. 44. pp. 155–156. 186 UN Doc. A/CN.4/740 (28 February 2020). 28 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Marshall Islands. Photo: Photo 146878914 © Colton Nie | Dreamstime.com. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 29 Part III Key Legal and Policy Questions Faced by SIDS, and Pacific Atoll Countries in Particular, in Relation to Sea Level Rise 30 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES 1. What are the legal implications of Coastal Baselines physical changes to different types The range of maritime zones that a State may claim of baselines under the 1982 LOSC under the LOSC, are set out above;188 all of which are as a result of sea level rise? in some way measured from the coast using the coast- al baseline. In the measurement of all these zones, the coastal baseline plays a crucial role, as it does with the Sea level rise is likely to result in retreating coastlines delimitation of a State’s maritime boundaries with its and the inundation of small offshore features—all of neighbors. It is in recognition of this that a coastal State which are used to measure maritime entitlements. that uses any method other than the “normal” low wa- These changes may make it difficult for coastal ter line as its baseline must commission and publicize States to retain those entitlements according to the charts of an adequate scale to show its baselines, and strict requirements of the LOSC. submit them (or their geographical co-ordinates) to the Secretary-General of the United Nations.189 It is also obliged to publish, publicize, and similarly submit charts The current IPCC predictions of global mean sea level or co-ordinates of the delimitation lines of any maritime rise will inevitably result in increased impacts on the boundary agreements with other States.190 coastal areas of low-lying States and islands within the In drawing baselines—and particularly archipelagic next 30–50 years and these impacts will continue be- baselines, which are considered in detail below—States yond the end of this century, even if global GHG emis- have generally taken advantage of the LOSC rules to sions are drastically reduced. Indeed, many impacts are push their baselines, and thus their maritime entitle- already being felt. Sea level rise is a “slow onset event” ments, as far seaward as possible, using islands and which means that the first impacts will be felt on the other features, many of which may now be at risk of lowest lying and fragile coastal systems. In the first inundation. instance, low tide elevations (LTEs) may be completely inundated and if drying reefs are not able to grow at the In these circumstances, the actual position and legal same rate as the sea rises, they may also become sub- status of the baseline itself are important. However, the marine features. As discussed above, coastal systems wording of Article 5 LOSC is not totally free of contro- are intrinsically dynamic so there will be adjustments to versy. It provides that: the shore; however, the most likely scenario is that the Except where otherwise provided in this Convention, low water line will move, and although this movement the normal baseline for measuring the breadth of the may not be linear, the result is most likely to be a steady territorial sea is the low-water line along the coast as retreat landward. marked on large-scale charts officially recognized by A landward movement of the low water line—which is the coastal State. the “normal” coastal baseline—will mean that there The challenge with this wording is that it could be read will be corresponding landward movements of all the in two different ways: coastal States’ maritime zone outer limits.187 In addi- tion, where baselines have been drawn around low- ly- a) It could be understood to mean that the normal base- ing islands or insular features which generate their own line is the “actual” low water line wherever that is. maritime zones or coastal basepoint have been located a) It could be read to mean that it is the “charted” base- on vulnerable features such as low-lying island, LTEs or line shown on officially recognized charts—whether drying reefs—as permitted by the LOSC—then the loss or not they are accurate. of these vulnerable features may well exacerbate this loss of maritime space. The significance of this difference is particularly im- portant in the context of sea level rise. If the first in- terpretation is correct, it means that the legal baseline moves with the actual coast (that is, it is ambulatory). Undoubtedly, in the event of the unlikely but possible movement of 187 188 See, Part II(1) of this study for further details. the baseline seaward, this will increase the size of coastal States 189 LOSC, Arts. 16(2), 47(9), 75(2), and 84(2). maritime zones proportionately. 190 LOSC, Arts. 21(3) and 42(3). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 31 However, if the legal baseline is the one shown on official Even LTEs (insular features which are only above water charts, and those charts are not changed, then the legal at low tide) which are less than the breadth of the ter- baseline does not change, nor do any of the maritime ritorial sea from the baseline, may be used as a base- zones measured from it. This is highly significant if the line.197 For islands on atolls or having a fringing reef, the “actual” coastline moves as a result of sea level rise. baseline may be measured from the seaward low water line of the reef. 198 The LOSC does not seem to require This whole question was looked at in some detail by the that these fringing reefs be above water at all times, but ILA expert Committee on Baselines. That Committee in order to have a low water line, it suggests that they looked in detail at the documents surrounding the nego- must break the surface at some point. tiation of the original wording (which is also found in Ar- ticle 3 of the 1958 Convention on the Territorial Sea and If a coastal State is taking advantage of the straight Contiguous Zone), the documents prepared in advance baseline provisions, that is, “where the coastline is deep- of the LOSC Conferences (so-called travaux prepara- ly indented and cut into, or if there is a fringe of islands toires), as well as national legislation and relevant deci- along the coast in its immediate vicinity,”199 then these sions of the ICJ and other tribunals.191 The Committee’s lines may not be drawn to or from LTEs, unless a light- conclusion in its 2012 Report—which is well informed house or similar installation—permanently above wa- but not legally binding—was that as a matter of general ter—has been built on them.200 international law, coastal baselines are “ambulatory”— So, it should be clear from the above rules that the LOSC which means the legal baselines move with the natural pays considerable attention to the difference between coastline.192 islands, in a strict sense, and insular features which As described above, offshore islands, and so called cannot sustain human habitation or economic life which “rocks”, are entitled to their own baseline and their own it terms “rocks” (whatever their physical composition). territorial sea; while islands, as strictly defined, may It also makes a strong distinction between insular fea- also generate their own EEZ and continental shelf.193 tures and LTEs in relation to the way they can be used The LOSC defines an island as “a naturally formed area as basepoints. of land, surrounded by water, which is above water at The threat posed by rises in sea level is therefore relative- high tide.”194 However, in order to distinguish islands ly straightforward. An LTE which is submerged at high from “rocks” which only generate a territorial sea, an is- tide may become completely submerged. If the fring- land must be capable of sustaining “human habitation ing reefs cannot grow at a sufficient rate to keep above or economic life” of its own.195 There is no requirement water even at low tide, then they will not have a low water that they be of a particular size or of any height above mark. Hence both these types of feature will be disqual- sea level.196 ified from use as baselines if they are completely sub- 191 Although there is no judicial interpretation of Art 5 as such, the merged. According to the “ambulatory baseline” theory, ICJ and tribunals have in a number of cases relied on evidence such baselines would then have to be redrawn along the of the actual location of coastal basepoints—rather than on actual coast, which itself may have eroded further land- their charted positions, see, e.g. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua ward.201 As the LOSC allows the use of LTEs up to 12 nm v. Honduras), 2007 I.C.J. 659 (Oct. 8); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. established principle” that “islands, regardless of their size… enjoy Bahrain), 2001 I.C.J. 40 (Mar. 16); Award of the Arbitral Tribunal the same status, and therefore generate the same maritime in the Matter of an Arbitration between Guyana and Suriname rights, as other land territory” and further that a “comparatively (Guyana v. Suriname), 47 ILM 166 (2008) (Sept. 17, 2007), available small island may give an entitlement to a considerable maritime at http://www.pca-cpa.org/upload/files/Guyana-Suriname%20 area.” See, Territorial and Maritime Dispute (Nicaragua v Colombia) Award.pdf. Judgment [2012] I.C.J. GL No. 124 (19 November 2012) at paras 139 192 See, ILA Baselines Committee, Sofia Report, at p. 31. At https:// and 176 respectively. www.ila-hq.org/index.php/committees. Available also as Coalter 197 LOSC, Art. 13(1). Lathrop, J. Ashley Roach and Donald Rothwell (eds), Baselines under 198 As shown on a map “officially recognized by the coastal State.” See, the International Law of the Sea in Brill Research Perspectives on LOSC, Art. 6. the Law of the Sea, (eds D Rothwell and D Vidas) 2018. 199 LOSC, Art. 7. 193 LOSC, Art. 121(2). 200 Or where such baselines have “received general international 194 LOSC, Art. 121(1). recognition” See, LOSC, Art. 7(4). 195 LOSC, Art. 121(3). 201 Although the “First Issues Paper” by the Co-Chairs of the ILC Study 196 The ICJ in the 2012 Territorial and Maritime Dispute (Nicaragua Group on sea-level rise in relation to international law states: “… v Colombia) cited Maritime Delimitation and Territorial Questions nothing prevents Member States from depositing notifications, in between Qatar and Bahrain (2001) and reaffirmed the “long- accordance with the Convention, regarding the baselines and outer 32 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES from the shore, the areas lost could amount to kilometers Hence, the archipelagic baseline consists of a series of rather than meters, and that loss of area is reflected not line segments, some of which may be on the low wa- simply in the baseline but in the outer limits of the other ter marks of islands and some of which may simply join maritime zones also, such as the EEZ. up a series of base points on insular features, includ- ing drying reefs and LTEs; if they are within 12 nm of an In addition, low-lying offshore islands which are entitled island coast or on which permanent installations have to generate a full range of maritime zones or which are been built. The substantial advantage which this status used as basepoints for straight baselines, are also vul- confers is the ability to measure all maritime zones and nerable. If a “legal island” (that is, one that meets the entitlements from that baseline. So, the 200 nm EEZ is LOSC definition) that is more than 12 nm from the coast measured from the line around the outermost points of becomes inundated at high tide as a result of rising seas, the outermost islands and hence encloses a potentially then it becomes de facto an LTE but its legal status may enormous amount of ocean space, with consequential be open to challenge by other States. It could be argued sovereign rights over the living resources located within that as a result of this change, the LTE may not be en- or travelling through it. titled to even a territorial sea nor could it be used as a basepoint for a straight baseline—unless a lighthouse or However, if, as the ILA Baseline Committee suggests, structure permanently above sea level has been built on baselines are ambulatory, then the maintenance of ar- it. If it is located with the 12 nm territorial sea generat- chipelagic status with these consequential maritime ed by the coast itself and becomes an LTE, then it may entitlements appears to require that the archipelagic still be used as a coastal basepoint. However, the loss of State at all times meets the requirements of Part IV of maritime zone area—particularly in the EEZ—from such LOSC. Sea level rise thus poses a substantial risk, not changes of this kind could be substantial. simply of the loss of low-lying island, LTEs and other features but also the consequential risk of the fact that Archipelagic Baselines these changes may compromise its ability to meet the detailed requirements of Article 47 regarding maximum The detailed provisions set out in Part IV of the LOSC lengths of baselines and ratio of land to water and thus relating to archipelagic status are set out above.202 its ability to maintain its archipelagic status.206 Generally, these provide that States comprised entirely of islands, or groups of islands, may draw “archipelag- A recent survey of the current 22 State archipelagic ic baselines” around the “outermost points of the out- baseline claims and their vulnerability to sea level rise ermost islands and drying reefs of the archipelago.”203 identified the three most vulnerable types of archipelag- However, they also prescribe the length of baseline sec- ic basepoints as low-lying islands, reefs, and LTEs.207 All tors204 and the key requirement that the ratio of land to 22 archipelagic States used at least one of these types water within the archipelagic baseline must be a mini- of basepoints: seven used low-lying islands; 14 used mum of 1:1 and not exceed 1:9.205 reefs (including all the Pacific States); and only two used LTEs. So, the risk is clear that if reefs are not able to grow at a sufficient rate to keep pace with sea level rise, limits of maritime zones measured from the baselines and, after these “drying reefs” will become submerged reefs and the negative effects of sea-level rise occur, to stop updating these notifications in order to preserve their entitlements.” See, ILC, First their value as basepoints will be lost. Depending on their Issues Paper by Co-Chair of the Study Group on sea-level rise in position, this poses the risk that it may not be possible relation to international law (28 February 2020), UN Doc No. A/ to maintain archipelagic status and the much-enhanced CN.4/740 at para 104(f). 202 Part II(1) maritime entitlements to the EEZ which they generate. 203 LOSC, Art. 47(1). 204 None may be longer than 100 nm- except that 3% may extend to 206 The LOSC has no express provisions relating to loss of rights and 125 nm. See, LOSC, Art. 47(2). status as a result of physical changes. 205 LOSC, Art. 47(1). 207 See, David Freestone and Clive Schofield (2021). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 33 Figure 8. Archipelagic state zones. EEZ Sea LTE A ● Contiguous Zone lf e l Sh Sea Baselines tine er nta Con Out ialr ito r Ter ≤1 25 na Internal ut waters ical m ile s Archipelagic EEZ (3%) EEZ LTE B waters * Land Co nt Ou ine te nt r al Sh elf EEZ Source: Andi Arsana and Clive Schofield, TALOS Manual (2014), Figure 4.2. 2. What is the difference between an or economic life” of its own.210 There is no strict require- ment that they be of particular size or any height above “island” and a “rock”? sea level. Given the importance of this issue in drawing baselines Arbitration tribunal awards provide detailed guidance and measuring extensive maritime entitlements, there on the difference between “rocks” and “islands” as has been very little consideration, or interpretation, of defined by the LOSC, but questions still remain as to Article 121 by international courts and tribunals. How- whether physical changes in islands brought about ever, in the recent South China Sea Arbitration,211 one by sea level rise might require them to be reclassified of the complaints leveled by the Philippines against as “rocks” with more limited maritime entitlements. China was that China appeared to be trying to convert small insular features, mostly coral atolls, into islands by excavating the surrounding reefs to generate infill to As we saw above, offshore islands, and so called “rocks”, raise the ground level and to increase their land area, are entitled to their own baseline and their own terri- on which airstrips and what appeared to be military torial sea; while islands, as strictly defined, may also installations were then built. The Award in that case generate their own EEZ and continental shelf.208 Arti- contained the first detailed judicial analysis of Article cle 121 LOSC defines an island as “a naturally formed 121.212 It is important to note that China did not partici- area of land, surrounded by water, which is above water pate in those proceedings and has refused to accept the at high tide.”209 However, in order to distinguish islands from “rocks” which only generate a territorial sea, an is- 210 LOSC, Art. 121(3). 211 South China Sea Arbitration, Philippines v. China, Award, PCA Case land must be capable of sustaining “human habitation No 2013-19, ICGJ 495 (PCA 2016), 12th July 2016, Permanent Court of Arbitration [PCA]. LOSC, Art. 121(2). 208 212 This following discussion draws heavily on David Freestone and LOSC, Art. 121(1). 209 Clive Schofield (2021). 34 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Figure 9. Islands and LTEs. Island/rock (Article 121) LTE (Article 13) Land Sub-surface feature High tide Mean sea level Low tide Sea Source: Andi Arsana and Clive Schofield, TALOS Manual (2014), Figure 4.3. Note: If the LTE lies wholly outside the breadth of the territorial sea measured from the mainland or an island, it may not be used as part of the baseline. outcome of the resulting Award,213 but it nevertheless mans and that humans will rarely inhabit areas where provides a number of important indications as to how no economic activity or livelihood is possible.”217 Fur- future courts or tribunals may approach these issues. thermore, the Tribunal ruled that the economic activity must not be purely exploitative; the feature must sus- The Tribunal devoted a great deal of attention to the tain an activity “of its own.”218 provisions of Article 121(3) that deal with “rocks” and ruled that the term was not meant to apply only to fea- For this present discussion it is important that the Tri- tures “composed of solid rock,”214 otherwise “absurd re- bunal also took the view that the assessment of the sta- sults” would occur.215 In the past, there has been consid- tus of a feature is to be determined on the basis of its erable discussion as to whether both the requirements “natural capacity, that is, without external additions or of “human habitation or economic life of its own” are modifications intended to increase its capacity” to sup- needed to be satisfied for an insular formation to qualify port human habitation or an economic life of its own.219 as an island with full maritime zones.216 This would confirm that reclamation activities, includ- ing the large-scale island building and reclamation ac- However, the Tribunal insisted that either of these tests tivities undertaken by China, and to a lesser extent by can be satisfied—a disjunctive interpretation—but did other States, in the South China Sea, cannot transform observe that “economic activity is carried out by hu- a feature that was a rock within the meaning of Article 121(3) LOSC in its natural condition into a fully entitled 213 Statement of the Ministry of Foreign Affairs of the People’s Republic island.220 However, enhancing an existing fully entitled of China on the Award of 12 July 2016 of the Arbitral Tribunal in island to “maintain” its habitability does not compro- the South China Sea Arbitration Established at the Request of mise its ability to maintain the full suite of maritime the Republic of the Philippines (July 12, 2016) available at: https:// www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm zones—although it may, depending on the amount of 214 South China Sea Arbitration, at para. 540. work needed, be prohibitively expensive.221 215 Ibid., at para. 481. Specifically, non-rocky features would generate EEZ and continental shelf rights whereas features composed of solid rock were denied such rights, regardless of whether they were 217 South China Sea Arbitration, at para. 497. capable of sustaining human habitation or an economic life of their 218 Ibid., at para. 543. So extractive activities such as guano mining own. would not count as having an economic life of their own. 216 See e.g., David Freestone, “Maritime Boundary Delimitation in the 219 Ibid., at para. 542. Eastern Caribbean” in International Boundaries and Boundary 220 Ibid., at para. 508. Conflict Resolution (C. Grundy-Warr, ed.) Proceedings of the 1989 221 Ibid., at para. 511. Such an enhancement would, of course, need to Conference, International Boundaries Research Unit, Durham be carried out in an environmentally acceptable way respecting the University, 1990, pp. 195-210, at 197-8. obligations to “protect and preserve the marine environment” in LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 35 The Tribunal Award also stated that while an LTE cannot constitute habitation”229 as would use by populations be converted through artificial intervention into a rock that are sustaining themselves through a “network” nor a rock into a fully entitled island within the meaning or “constellation” of related maritime features.230 This of Article 121,222 nevertheless an LTE may also have an view—which is not directly part of the issues involved artificial island superimposed on top of it.223 However, in the Award and so obiter dicta—which in any event it is a breach of international law, the Tribunal ruled, to is only binding on the two States party to the Arbitra- destroy valuable coral reefs and other fragile ecosys- tion231—provides a very welcome perspective for many tems in the process, especially where environmental im- communities particularly in low-lying islands in the Pa- pact assessments (EIAs) have not been undertaken, or, cific, and elsewhere, threatened by sea level changes. It if they have, not been shared with neighboring States as suggests that if some individual islands in an archipel- required under the LOSC.224 ago are or become uninhabitable, this would not neces- sarily mean that the maritime entitlements of the whole The Tribunal was also “conscious that remote island archipelago would be lost. populations often make use of a number of islands, sometimes spread over significant distances, for sus- However, the Tribunal did not have to consider the situ- tenance and livelihoods.”225 The Tribunal specifically ation which is of direct concern here—which may be the ruled that in a situation where a local community is one brought on by sea level rise. Namely, the situation only able to sustain itself by utilizing a range of mari- of a fully entitled island able to support human habita- time features, it would not “fail to inhabit a feature on tion and an economic life of its own, that loses so much the grounds that its habitation is not sustained by a land area, or is so contaminated by salt water intrusion, single feature.”226 Nor conversely would that group be that it can no longer sustain a human population. Does “disabled from recognizing that such features possess that feature then become a “rock” for these purposes an economic life of their own merely because not all the and therefore lose its maritime entitlements, that is, its features are directly inhabited.”227 Further, concerning EEZ and continental shelf? the determination of “human habitation” under Article Unfortunately, there is no clear legal answer to that 121(3), the Tribunal found, without determining an ar- question. It is an unprecedented situation and one which bitrary number that the community involved “need not no international judicial body has ever had to consider. necessarily be large” and that, for example, “in remote The following sections discuss how a State may seek to atolls a few individuals or family groups could well suf- defend its entitlements by physical means or by oth- fice.”228 The Tribunal also found that periodic rather than er means. But the legal arguments still continue as to permanent habitation by nomadic people “could also whether baselines are indeed always “ambulatory” and Art. 192 and “rare and fragile ecosystems” as well as the “habitats must move with physical changes to the coast and land of depleted, threatened or endangered species,” including giant form. The ILA Sea Level Rise Committee thought that clams and as well as species of turtles, corals and fish, in Art. existing maritime entitlements should be maintained— 194(5) LOSC. This can really only be done, said the Tribunal in a nod to the jurisprudence of the ICJ, after an appropriate Environmental but this is still very much an open issue.232 Impact Assessment as required by Art. 206 LOSC. 222 Ibid., at para. 508. 223 Ibid., at para. 1037. 229 Ibid. 224 Ibid., at paras. 966 and 989–991. See also, Arts. 205–206, LOSC 230 Ibid., at para. 544. 225 Ibid., at para. 547. 231 A tribunal’s incidental remarks (i.e., obiter dicta) are remarks that 226 Ibid., at para. 544. are not essential to resolve the case and therefore not binding. 227 Ibid. They may carry, however, some value for future cases. 228 Ibid., at para. 542. 232 ILA Sea Level Rise Committee 2018 Report, pp. 30-32. 36 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES 3. What are the legal implications The LOSC also states that “No State may validly pur- port to subject any part of the high seas to its sover- for the outer limits of a State’s eignty.”237 This means that if a coastal State tries to maritime zones and maritime claim an EEZ wider than 200 nm, then that claim is not boundaries with other States, valid under international law and other States (third and for the rights of third States States) are not obliged to respect that claim. and their nationals, of changes Hence if a coastal baseline is affected by sea level rise in coastal baselines from which and moves landward, as a result of coastal erosion or the maritime zones are delineated or inundation of offshore insular features which had been utilized to push coastal baselines seaward as permitted delimited? by LOSC, then, under an ambulatory approach,238 the outer limits of the maritime zones will also be affected and move landward. This would mean that the outer It is not clear what the legal effect is of physical areas of the previously claimed EEZ might now become changes to coastal baselines that have been used as high seas, where international law would normally al- the basis for maritime boundary delimitation treaties low the vessels of third States the freedoms of the high or judicial decisions, even if the result is to extend the seas, including fishing.239 Once the validity of that outer delimitation lines beyond 200 nm from the coast. limit has been disputed, it would also be difficult for ves- sels navigating there to determine whether they were in the EEZ or the high seas, creating opportunities for Possible Impacts on Outer Limits confusion and possible conflicts. of Maritime Entitlements The situation with the continental shelf is slightly dif- The coastal baseline plays a crucial role in the mea- ferent for some States. It depends on whether a State surement of all of a State’s maritime zones.233 As men- is lucky enough to have a geomorphological continen- tioned above, the LOSC requires that an EEZ “shall not tal shelf that extends beyond 200 nm from its coast. A extend beyond 200 [nm] from the baselines from which State with little or no natural continental shelf—such the breadth of the territorial sea is measured.”234 If a as the Pacific Coast States of South America—is still State has claimed an EEZ, then the area beyond the EEZ entitled to the resources of the seabed and ocean floor, limit (usually 200 nm) is high seas—where the estab- including sedentary species, out to the 200 nm limit, lished freedoms of the high seas apply.235 These include, again measured from the coastal baseline.240 Hence if subject to limitations set out in the LOSC, freedom of sea level rise causes the baseline to retreat, then the ex- navigation, overflight, laying of submarine cables, con- tent of those States’ continental shelf entitlements will struction of artificial islands/installations, fishing, and also move landward—in step with the EEZ. scientific research.236 However, those States that have continental margins that extend beyond 200 nm from their baselines are 233 From this baseline can be measured the State’s twelve nm territorial sea the outer boundary of which is a line “every point entitled to what is known as an “extended continental of which is [twelves miles] from the nearest point of the baseline shelf” out to the physical edge of their continental mar- …” The contiguous zone stretches a further twelve nm seaward. In gin. The water column above those extended continen- addition, the coastal State is entitled to claim an [EEZ]out to 200 nm which gives it sovereign rights (although not full sovereignty) tal shelf areas is high seas. In such situations, the LOSC over the resources of the seabed and the superjacent waters. If it is sets out the complex formulae for calculating where the fortunate enough to have a continently shelf that extends beyond edge of the continental margin is.241 Here again, the po- 200 nm from the baseline it is also—subject to certain limitations— entitled to sovereign rights over those seabed resource of that shelf sition of the baseline does have a role for some of the right to the outer edge of the continental margin. 234 LOSC, Art. 57. 39(1), pp. 44-49. 235 LOSC, Art. 86. 237 LOSC, Art. 88. 236 LOSC, Art. 87(2)—but there are important limitations on the 238 See the discussion of this above in Part III(1). exercise of these freedoms, including the obligation to pay “due 239 Subject always, of course, to regional fishery arrangements that regard” to the interests of other State in the exercise of them. See, may be applicable. David Freestone, “Modern Principles of High Seas Governance: The 240 LOSC, Art. 76(1). Legal Underpinnings” (2009) Environmental Policy and Law, Vol. 241 LOSC, Art. 76(4) - (6). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 37 Figure 10. Impacts on maritime zone of receding baselines. Source: Andi Arsana and Clive Schofield, TALOS Manual, (2014). Note: This figure shows the impacts of receding baselines on maritime zones. As the coastline recedes it changes shape, leaving outcrops as islands or LTEs. The outer edge of the EEZ recedes also leaving areas beyond 200 nm, previously within the EEZ that become high seas. calculations.242 Once the coastal State has calculated must be based on the recommendations of the CLCS. If the outer limit of its extended shelf beyond 200 nm, it is the coastal State were to seek to establish such limits obliged to submit that information to the CLCS.243 The without relying on the recommendations of the CLCS, CLCS, which is made up of 21 experts in the fields of ge- then they would not be binding, and third States could ology, geophysics or hydrography,244 reviews that infor- dispute those unilateral limits. mation and makes “recommendations” as to whether or not they have been calculated properly in accordance The main objective of this complex process is to ensure with the LOSC requirements. In practice, these recom- some degree of international technical oversight of the mendations often mean that the coastal State has to way that coastal States calculate their extended shelf re-calculate its claim in ways in which the CLCS indi- claims—because the ocean floor beyond those nation- cates. The recommendations of the CLCS are not tech- al continental shelf limits is termed “the Area” and is nically binding per se, but in order for the coastal State’s part of the “common heritage of mankind.”245 National shelf limits to be “final and binding” on all States, they claims, which are in excess of what the LOSC permits, encroach on that common heritage, so only claims that 242 For instance, LOSC Art. 76(5) allows a line to be drawn in one of meet the LOSC criteria, as evaluated by the CLCS, need two ways: one of which is 350 nm from the baseline. Not many continental shelves extend that far, however. to be recognized by other States. To achieve that, the 243 LOSC, Art. 76(8). 244 LOSC, Annex II Art 2. LOSC, Art. 136 and see the whole regime of Part XII LOSC. 245 38 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Figure 11. Maritime zones. nautical mile (nm) Continuous To a maximum of 350 nm from the coast/ Zone baseline or 100 nm beyond the 2,5000 meter isobath, whichever is greatest Coast/Baseline Limited law-enforcemnt 12 nm Area 24 nm 200 nm Exclusive Economic Zone The High Seas Territorial Sea Extended Continental Shelf Sovereignty extends to the water column, to the airspace above, and to the seabed and subsoil Continental Shelf Deep Seabed Area Sovereign rights over Sovereign rights over natural resources of the Sovereignity water column and the seabed and subsoil natural resources of the seabed and subsoil Source: Image courtesy of the NOAA Office of Ocean Exploration and Research available at: https://oceanexplorer.noaa.gov/okeanos/ explorations/ex1810/ecs/welcome.html Note: The position of the baseline of the extended continental shelf has a role for some of the calculations. text of Article 76(8) LOSC provides they are “final and seas of each of the two States is measured.”247 For the binding.” The implication is that this is forever. There is delimitation of the territorial sea, there is a presumption certainly no procedure for re-evaluating them. There that neither side is entitled to claim beyond such a line, has never been any judicial interpretation of this issue in the absence of agreement, historical title or other spe- but it seems that, even if the coastal State’s baselines cial circumstances.248 For other zones, such as the EEZ were subsequently to change as a result of sea level rise, or continental shelf, these delimitation lines must be ne- the coastal State would still be entitled to maintain its gotiated by “agreement on the basis of international law full entitlement to the extended continental shelf which […] in order to achieve an equitable solution.”249 has been settled by that process. These boundary delimitation agreements, which are treaties under international law, are only binding on the Possible Impacts on Maritime Boundary parties to the agreement. However, provided that they Treaties are in compliance with international law and do not ex- Coastal baselines are also used as the basis for the cal- tend beyond the areas which international law allows culation or negotiation of maritime boundaries with ad- the coastal States to claim (for example, 200 nm for jacent and opposite states. Adjacent boundaries are not EEZ claims), then they are opposable to third States as common in the Pacific as elsewhere in the world,246 who must respect their provisions. but the preliminary calculation of a maritime boundary However, if coastal baselines are indeed ambulatory between adjacent states, as with opposite States, is as suggested by the ILA Baseline Committee in 2012, usually based on the construction of a “median line, ev- then changes brought about by sea level rise might well ery point of which is equidistant from the nearest point cause some previously unprecedented situations. For of the baselines from which the breadth of the territorial 247 LOSC, Art. 15. It is rare for island or archipelagic States to have adjacent 246 248 North Sea Continental Shelf Cases (Federal Republic of Germany boundaries, but it does happen where parts of islands belong to v. Denmark; Federal Republic of Germany v. Netherlands), I.C.J. different States—such as the Indonesia’s boundaries with Borneo, Reports 1969, p.3, 20 February 1969. Papua New Guinea, and with Timor Leste. 249 See, LOSC, Art. 74 (for EEZ), and Art. 83 (for continental shelf). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 39 Figure 12. (i) Two States with boundary dividing EEZs and (ii) Coastlines retreat: New High Seas area is created (from left to right). State A State A Baseline A Baseline A 12 miles Territorial Sea A 12 miles Territorial Sea A Exclusive Economic Zone A <200 miles Exclusive Economic Zone A <200 miles Boundary Exclusive Economic Zone B <200 miles 12 miles ➡ High Seas Exclusive Economic Zone B <200 miles Territorial Sea B 12 miles Territorial Sea B Baseline B Baseline B State B State B Source: Adapted from Julia Lisztwan, “Stability of Maritime Boundary Agreements” (2012) Yale Journal of International Law, Vol. 37. example, a situation which has not to date been subject bilaterally agree to exclude third States from an area of to judicial interpretation, arises if the distance between the high seas, so it could be argued that as a result of two opposite States is about 400 nm and the States the physical changes that have taken place in the base- have agreed an equidistance line to delimit the EEZs lines, the treaty is now contrary to an express provision between them.250 If, as a result of sea level rise, one or of Article 89 of LOSC. Does this mean that it might be both of the coastal States loses offshore features and argued that it would not be binding on, or enforceable their coastlines recede so that they are now, for exam- against, third States? This again is a totally novel sit- ple, 410 nm apart, then there would be a 10 nm strip of uation for international law—and if this issue were to what would normally be high seas between them. The go to court, then an international tribunal seems likely LOSC only allows a State to claim a 200 nm EEZ. In- to take the view expressed in a number of other cases, deed, Article 89 specifically provides that “[N]o State discussed below, that the most important principle in- may validly purport to subject any part of the high seas volved is the certainty and stability of agreed maritime to its sovereignty.” Yet the existing maritime boundary boundary agreements. treaty—which is still binding on the opposing State par- ties—provides that their outer boundary is the treaty The similar quandary might be faced in a situation delimitation line that is now more than 200 nm from where, as a result of a boundary dispute, a judicial tribu- their coasts. nal has determined a boundary between two adjacent or opposite States. That judgment is technically only The same problem would arise if the maritime boundary binding on the parties to the litigation but is usually agreement did not designate an equidistance line but taken by third States as definitive. If the coastlines or a more complex line. To the extent to which that trea- parts of the coastlines, which were used by the tribu- ty now purported to extend the coastal State’s rights nal in determining an equitable solution, subsequently beyond 200 nm, it would still be binding on the other State party to the treaty.251 However two States cannot move landward as a result of changes brought about by sea level rise, so that the boundary decided by the tribu- 250 It is rare to have an agreement that simply agrees the principle nal is now more than 200 nm from the coast, does this without detailing all co-ordinates of the line—but it has happened, invalidate the tribunal’s decision? see, e.g., two treaties negotiated by France in relation to Wallis and Futuna, with Tonga in 1980, and with Tuvalu, in 1987. See, ILA Sea None of these situations has yet to arise, so the legal Level Rise Committee 2018 Report, pp. 22-23. 251 Because of the principle that treaties are only legally binding on the situation is untested. On the one hand, the LOSC seems parties. to suggest that third States are not required to recog- 40 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES nize a coastal State’s claim to sovereign rights over ar- rise-driven change in coastal baselines constitutes a eas further than 200 nm from baselines. On the other fundamental change. The second is a technical legal is- hand, the only case where an international tribunal has sue, namely whether a maritime boundary treaty is a discussed such an issue in relation to climate change type of treaty which can be set aside on the grounds and its possible impacts, is the 2014 case regarding the of a fundamental change of circumstances. Each will be Bay of Bengal, Bangladesh v India, in which the Arbitral considered in turn. Tribunal in its Award noted that: (i) Can a change in coastal baselines constitute a Maritime delimitations, like land boundaries, fundamental change of circumstances for a maritime must be stable and definitive to ensure a peaceful boundary treaty? relationship between the States concerned in the The answer to this question has never been decided by long term […] In the view of the Tribunal, neither any international court or tribunal, but the burden of the prospect of climate change nor its possible proof on the complaining State is very high and to date effects can jeopardize the large number of settled it has never been attempted. The 1969 Vienna Conven- maritime boundaries throughout the world. This tion on the Law of Treaties, which largely represents applies equally to maritime boundaries agreed customary international law, generally binding on all between States and to those established through States, lays down the requirements for such proof.255 international adjudication.252 The State arguing this would first need to show that It is important to note that this was not a part of the there has been a change in the circumstances which Tribunal’s actual decision—simply its incidental re- applied when the treaty was concluded “which was not marks (or “obiter dicta”)253—so this is not technically a foreseen by the parties.”256 A change of coastal base- binding judicial decision on the issue but if, as this Tribu- lines from which delimitation lines were measured nal suggests, the principles of stability and certainty of might in principle constitute such a change in circum- agreed and settled boundaries is an overriding consid- stances but it would be much more difficult to show eration, then this might cast some doubt on the issue that sea level rise-driven changes were not foreseen; at of whether coastal baselines and maritime zone limits least for any treaty concluded in the last thirty or more are always ambulatory, as discussed above, or whether years since the phenomenon of climate change and sea maritime boundary treaties which were legitimate when level rise has been known. The State seeking to argue they were agreed, or settled by a judicial body, should such a case must also prove that the existence of those in any event continue to be regarded as binding. At this circumstances constituted an essential basis of the point, however, there is no clear answer to this question. consent of the parties to be bound by the treaty, and that moreover, the effect of the change is “radically to Fundamental Change of Circumstances transform the extent of obligations still to be performed under the treaty.” 257 This leads to the next issue, about which there has been a lot of discussion in the scholarly literature, namely (ii) Can maritime boundary treaties ever be set aside on whether a State which is a party to a maritime bound- the grounds of a fundamental change of circumstances? ary treaty can seek to set it aside on the basis that This is another legal issue which has also never been changes in coastline baselines brought about by sea lev- thoroughly tested before an international tribunal,258 el rise, constitute a change in circumstances which fun- but on which there has been a great deal of scholarly damentally undermines the basis on which that State writing.259 A response to this question depends on an in- agreed to the treaty.254 255 United Nations, Vienna Convention on the Law of Treaties (adopted There are two basic questions involved. The first is 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 largely factual—whether it is possible that a sea level (“1969 Vienna Convention”). 256 1969 Vienna Convention, Art. 62(1). 257 1969 Vienna Convention, Art. 62(1)(a) and (b). 252 The Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. 258 Although there are remarks from the ICJ in 1978 and a tribunal in India), PCA Case 2010–16, Award of 7 July 2014, para. 216-217. See 2014. also the Aegean Sea case below. 259 Those who appear to regard maritime boundaries as included 253 See note 231 above. within the provisions of Article 62(2), so as not to contemplate the 254 This is discussed at some length by the ILA Sea level Rise use of fundamental change of circumstances, include the ICJ in an Committee in its 2018 Report, pp. 19-25. obiter dicta in the Aegean Sea Continental Shelf (Greece v. Turkey), LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 41 terpretation of the 1969 Vienna Convention. The 1969 also seems to be the position of the International Court Vienna Convention specifically exempts two classes of of Justice which in the 1978 Aegean Sea Case between treaties from being set aside on the grounds of funda- Greece and Turkey regarding the delimitation of the mental change of circumstances of which one is that Continental Shelf did remark that: “the treaty establishes a boundary.”260 Whether it is a land frontier or a boundary line in The controversial legal issue is that a treaty must be the continental shelf that is in question, the process interpreted in context, and it has been suggested that is essentially the same, and inevitably involves the the States who negotiated the 1969 Vienna Conven- same element of stability and permanence, and is tion were not considering maritime boundaries at the subject to the rule excluding boundary agreements time, but only land boundaries. Although the issue has from fundamental change of circumstances.264 generated some controversy among scholars,261 the ILA Sea Level Rise Committee in its 2018 detailed review of So, in conclusion, this is again an unprecedented situ- this issue, having cited the view of the Arbitral Tribunal ation, so it is not possible to predict with any certain- in the Bay of Bengal case (above),262 did conclude that ty how an international court or tribunal might react there is a very strong community interest in guaran- to some of the issues discussed above. It does seem teeing the certainty and stability of treaties in general likely however, that in cases of future disputes regard- and of agreed maritime boundaries in particular;263 this ing agreed maritime boundary treaties or boundaries settled by international tribunals, that there will be a [1978] I.C.J. Reports 3, para 85 (19 December 1978); Alfred H.A. strong presumption of their continuing validity.265 This Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries” (1990) Netherlands International Law Review, Vol. view is supported by the ILC Study Group in its 2020 37, pp. 207–232, at 228; David Freestone and John Pethick, “Sea First Issues Paper.266 Level Rise and Maritime Boundaries: International Implications of Impacts and Responses”, in: G. Blake (ed.) International Boundaries: Fresh Perspectives, Vol. 5 (Routledge, 1994), pp. 73–90, at 78; Clive Schofield, “The Trouble with Islands: The Definition and Role of 264 See, Aegean Sea Continental Shelf Case, para 85. As the Court lslands and Rocks in Maritime Boundary Delimitation” in: Seoung- found that it did not have jurisdiction to hear the case, these Yong Hong and Jon M. Van Dyke (2009) pp. 19-22; and, after a comments are not part of a binding judgement, and regarded as detailed examination of the travaux preparatoires, Julia Lisztwan, obiter dicta (incidental remarks). “Stability of Maritime Boundary Agreements” (2012) Yale Journal of 265 It is always open to State to renegotiate their boundaries—as International Law, Vol. 37, p. 186. Those who argue that the issue has been done in a number of situations with land boundaries may still be an open issue include David D. Caron, “Climate Change, where the melting of glaciers which mark mountain boundaries Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: has created uncertainty. See recent state practice regarding A Proposal to Avoid Conflict”, in: Seoung-Yong Hong and Jon M. Van ‘mobile’ land boundaries between Italy and Austria, and Italy and Dyke (eds), Maritime Boundary Disputes, Settlement Processes, Switzerland affected by the melting of glaciers. The exchange of and the Law of the Sea (Brill/Martinus Nijhoff, 2009) (while not diplomatic notes between Italy and Switzerland of 23 and 26 May supporting the position), Jonathan Lusthaus, “Shifting Sands: 2008 first formalizes the problem of the mobile border, to move Sea Level Rise, Maritime Boundaries and Inter-state Conflict” with the melting of the glacier. It came into force on 10 February (2010) Politics Vol. 30, pp. 115–118; and Snjólaug Arnadottir, 2010, available at: https://www.admin.ch/opc/fr/classified- “Termination of Maritime Boundaries Due to a Fundamental compilation/20091908/index.html. For the Italian Law of 29 May Change of Circumstances” (2016) Utrecht Journal of International 2009 (no. 72), approving the exchanged notes into internal law, see: and European Law Vol. 32, p. 94 (which includes a discussion of http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2009- arguments presented by Lisztwan); Stuart Kaye, “The Law of 05-29;72!vig= Cited in ILA 2018 Report at p. 23. the Sea Convention and Sea Level Rise after the South China Sea 266 The ILC Study Group’s First Issues Paper takes a more definitive Arbitration” (2017) International Law Studies, Vol. 93, p. 439. view: “Sea-level rise cannot be invoked in accordance with 260 The second exception is not relevant here: ‘(b) if the fundamental article 62, paragraph 2, of the 1969 Vienna Convention on the change is the result of a breach by the party invoking it either of an Law of Treaties, as a fundamental change of circumstances for obligation under the treaty or of any other international obligation terminating or withdrawing from a treaty which established a owed to any other party to the treaty’. maritime boundary, since maritime boundaries enjoy the same 261 See literature above at note 257. regime of stability as any other boundaries. The international 262 See, the ILA Sea Level Rise Committee 2018 Report, pp. 19-25. jurisprudence is clear in this respect.” See, ILC (28 February 2020), 263 Ibid., p. 21. A/CN.4/740, at para 141(c). 42 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES 4. How might a State defend its of baselines, in terms of distances lost, and hence the outer edges of a State’s maritime entitlements. existing maritime entitlements in accordance with international law? Under international law there is nothing to prevent the coastal State from physically defending these import- ant assets, although this may only be a short- or medi- Coastal States are entitled to use a number of physical um-term solution. The Tribunal in the South China Sea means, including artificial islands, to defend their Arbitration held that enhancing an existing fully entitled coastlines and coastal basepoints. They may also seek island to maintain its habitability did not compromise its to argue at the legal and policy level that they are not ability to maintain the full suite of maritime zones.268 Al- obliged to amend their existing maritime entitlements though a totally artificial island does not generate any in the face of sea level rise. maritime zones around it,269 defending an existing island or other feature that generates a territorial sea or an EEZ to prevent it disappearing is permitted by international The previous sections have looked at the impacts that law, although it may be prohibitively expensive.270 sea level rise is predicted to have on coastal baselines At one end of the scale, it will be recalled that simply and archipelagic baselines and on the delineation and placing a lighthouse or other artificial structure that is delimitation of a State’s maritime zones, including permanently above sea level on an LTE will allow that maritime boundary agreements. As discussed above LTE to be used as a basepoint for a straight baseline,271 also, the question of whether coastal baselines are am- or for an archipelagic baseline.272 This does not have to bulatory under international law—so that they must be a sophisticated building. Just a framework or a single be regularly re-charted to reflect changes brought pole with solar powered light would be sufficient. about by sea level rise—is still not entirely settled and can probably only be finally resolved by the means The provisions relating to ports also indicate that the discussed further below. At the same time, the pre- outermost permanent harbor works which are a part dominant view at present is that physical movements of harbor system can also be regarded as part of the of baselines as a result of sea level rise impacts will change the coastal State’s entitlements to the zones 268 South China Sea Award, at para. 511. Such an enhancement would, measured from them. There are two basic approach- of course, need to be carried out in an environmentally acceptable es to defending entitlements. The first is by physical way respecting the obligations to “protect and preserve the marine environment” in Art. 192, LOSC and “rare and fragile ecosystems” means—building sea defenses and strategically placed as well as the “habitats of depleted, threatened or endangered installations and maybe even raising island elevations. species,” including giant clams and as well as species of turtles, The second is by utilizing the existing international corals and fish, in Art. 194(5), LOSC. This can really only be done, said the Tribunal in a reference to the case law of the ICJ, after an law framework and political institutions to argue for appropriate Environmental Impact Assessment, as required by Art. the international recognition of these existing entitle- 206, LOSC. ments as a matter of international law or policy, de- 269 The coastal State does have “exclusive jurisdiction” over artificial spite the impacts of sea level rise. islands in its EEZ and may establish a “reasonable safety zone” that “shall not exceed 500 metres around them.” Art. 60, LOSC. 270 For an extreme example, Japan is reported to have spent over $200 Physical Defenses million in the late 1980s on the construction of sea defenses for its southernmost insular feature, Okinotorishima, from which it It is clear that in the early onset of these impacts, it will claims EEZ and continental shelf rights. Further, in 2016, it was be the most vulnerable features which will be lost; first, reported that Japan was planning to spend a further ¥13 billion (over US$100 million) to replace the existing elevated platform LTEs may be inundated, low-lying islands may disappear at Okinotorishima and to build additional facilities including a or become “rocks” for the purposes of the LOSC, 267 and lighthouse and pier. See Nash Jenkins, “Japan is spending $107 drying reefs which are unable to grow at sufficient pace million to rebuild a tiny Pacific Island,” Time, 2 February 2016, available online: https://time.com/4205570/okinotorishima- to keep ahead of sea level rise may no longer be able to japan-maritime-claims/; and, Julian Ryall, “Japan spends millions be used as basepoints. It is the loss of these offshore building structures on uninhabited rocks 1,740 km from Tokyo to insular features in the short to medium term which are mark its territory,” South China Morning Post, 2 February 2016, likely to have the biggest impacts on the measurement available online: https://www.scmp.com/news/asia/east-asia/ article/1908706/japan-spends-millions-building-structures- uninhabited-rocks-1740. It becomes unable to sustain human habitation or an economic life 267 271 LOSC, Art. 7(4). of its own, see, LOSC, Art. 121(3). 272 LOSC, Art. 47(4). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 43 Figure 13. LTE with navigational aid installation. In the South China Sea Arbitration, the Arbitral Tribunal took the view that it is not possible to change a feature which is naturally an LTE or a “rock” into an island—so as to generate a full suite of maritime zones. 280 The LOSC does establish a regime for the construction of artificial islands, installations, and structures in the EEZ,281 or on the Continental Shelf,282 where the coastal State has the “exclusive right to construct and to authorize and regulate” them. There is no specific provision relating to the construction of such items in internal waters or the territorial sea as this is an established function of the sovereignty which coastal States possess in those ar- eas. But none of these structures may generate any of the normal suite of maritime zones.283 Some of the world’s largest artificial islands are in the Source: CaribbeanEnv, April 23, 2013. Gulf in Dubai (UAE), designed as high-end tourist at- tractions. This approach has also been taken in the Mal- coastline that can be extended; this would include dives, where a number of artificial islands—designed to breakwaters and groynes linked to the coast, but not provide new safe space for high-end resorts—are under offshore artificial structures and islands.273 construction. The Maldives have also built a large arti- ficial island, Hulhumalé, close to the capital, Malé, on At the other end of the scale, international law permits which a new city is being constructed.284 It is reported a coastal State to extend land mass by land reclama- to cover 400 hectares, rising to a height of three metres tion activities, provided that they are conducted in an above current sea level, to house a hospital, schools, environmentally sound way and pay due regard to the government buildings, and housing for 40,000 people, interest of other States,274 and to rebuild or elevate ex- and to have cost “hundreds of millions of dollars.”285 The isting islands to allow them to retain their natural en- objective was to provide more land area for safe hu- titlements, again in an environmentally sustainable man habitation rather than to generate new maritime way.275 zones—for it is within an existing lagoon.286 Artificial An example is provided by Pulau Nipa (or Nipah), that Law (ASIL)/Martinus Nijhoff, 2016), pp. 4,813-4,824; and, Badan is one of many small islands in the Singapore Strait. 276 Informasi Geospasial [Agency for Geospatial Information] (BIG), It had been reduced by sand mining to one hectare but Peta Negara Kesatuan Republik Indonesia [Map of the Unitary was restored in 2004 to about 60 hectares, well above State of the Republic of Indonesia], (Cibinong, 2017). 280 See, South China Sea Award, at paras 621–22. It also highlighted sea level.277 It has remained as a part of Indonesia’s ar- the need for the preparation of proper environmental impact chipelagic baselines system,278 and also serves as a key assessments for such work to ensure that fragile ecosystems—like basepoint for the construction of the western extension coral reefs - are not damaged or adversely impacted, at para 988. 281 LOSC, Art. 60. of the Indonesia–Singapore territorial sea boundary.279 282 LOSC, Art. 80. 283 Although a 50 m “safety zone” may be placed around them, LOSC, 273 LOSC, Art. 11. Art. 60. 274 See, Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle 284 As Freestone and Schofield (2021) comment: “This artificial island Rocks and South Ledge (Malaysia v Singapore), Judgment, Merits has been created in a manner reminiscent of that employed by [2008] I.C.J. GL No. 130 (23 May 2008). China in the South China Sea and, indeed, this development is being 275 See, South China Sea Award, at para 511. largely financed by Chinese sovereign guaranteed loans to the 276 For details and a map, see, David Freestone and Clive Schofield Maldivian State-owned company responsible for the development (2021). of Hulhumalé.” Nenad J. Dauenhauer, “On the front line of climate 277 Ibid., p. 40. change as Maldives fights rising seas”, New Scientist, 20 March 278 Providing basepoints TR.190 and TR.190A. 2017. 279 See, Clive H. Schofield Ted L. McDorman and I Made Andi Arsana, 285 See Emma Allen, “Climate Change and Disappearing Island States: “Treaty between the Republic of Indonesia and the Republic of Pursuing Remedial Territory” Brill Open Law (2018), pp. 1-23, at 5. Singapore relating to the delimitation of the Territorial Seas of the 286 The Maldives were also reported in 2012 to have commissioned Two Countries in the Eastern Part of the Strait of Singapore”, in a Dutch engineer to design floating islands as “life-boats” for Coalter Lathrop, ed., The International Maritime Boundaries of the the population in the case of extreme events. See, D. Black, World, Vol. VII, (Leiden/Boston: American Society for International “Floating islands to the rescue in the Maldives”, The Star, 23 44 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES islands in the EEZ and on the Continental Shelf do not has been running for more than a decade to expedite the generate more than a safety zone of 50 m maximum,287 delineation of national maritime zones and the agree- but Hulhumalé is already within the internal waters of ment of outstanding maritime boundaries between the Maldives. the States of the region. The basis for this is the 2010 Framework for a Pacific Oceanscape,288 which urges Figure 14. Major land reclamation in Singapore. the PICTs “in their national interest”, to deposit with the UN coordinates and charts delineating their maritime zones, with as much detail as possible.289 It also man- dates a “regional effort to fix baselines and maritime boundaries to ensure the impact of climate change and sea level rise does not result in reduced jurisdiction of PICTs.”290 The program has had considerable success. Of the 73 potential maritime boundaries in the region, only 13 remain to be finalized.291 As discussed above, a number of international tribunals have commented that the maintenance of the integrity of international treaties—particularly those establish- ing boundaries—is a fundamental part of the system for the maintenance of international peace and security.292 The longer-term agenda of the 2010 Strategy is a united Photo: © Koon Holdings Limited regional effort that establishes baselines and maritime zones so that areas could not be challenged and reduced International Law and Policy Approaches due to climate change and sea level rise. However, nation- al actions by themselves—even if coordinated at a re- The fact that baselines and maritime zones limits may gional level—may not be enough to bring about a change. be “ambulatory” and seem highly likely to retreat land- It was clearly not an issue which the drafters of the 1982 ward in the face of sea level rise poses both a physical LOSC had in mind during the decade they spent draft- challenge and a legal and policy challenge. It means that ing the text of the convention but it is now an issue for low-lying island States stand to lose not only parts of which the international community needs to mobilize its brightest legal minds to resolve, sooner rather than later. their land but also parts of their maritime zones which If unresolved, it raises serious issues of equity and justice are measured from their coastal and archipelagic base- lines, perhaps disproportionately. These small islands 288 See, Cristelle Pratt and Hugh Govan, Our Sea of Islands, Out States have made the smallest contribution to the GHG Livelihoods, Our Oceania. Framework for A Pacific Oceanscape: emissions that are causing the phenomenon. There is, a catalyst for implementation of ocean policy (Pacific Islands Forum Secretariat, November 2010), available at: http://www. therefore, a strong moral justice argument that the in- forumsec.org/wp-content/uploads/2018/03/Framework-for- ternational community should consider taking some ac- a-Pacific-Oceanscape-2010.pdf. Strategic Priority 1 concerns tion to protect them from some of the legal implications jurisdictional rights and responsibilities See also useful background and summary of the Pacific Boundaries Project provided by Robyn of these changes. One approach would be to reverse Frost, Paul Hibberd, et al., ‘Redrawing the map of the Pacific’(2016), the apparent presumption of the ambulatory nature of Marine Policy, available online: https://www.sciencedirect.com/ coastal baselines and maritime zone entitlements. So journal/marine-policy/articles-in-press. how might that be done? 289 See, the Framework, in Pratt and Govan at 57. 290 Once the maritime boundaries are legally established, the A pragmatic strategy has already been implemented in implications of climate change, sea level rise and environmental change on the highly vulnerable baselines that delimit the maritime the Pacific Region where the Pacific Boundaries Project zones of PICTs should be addressed. This could be a united regional effort that establishes baselines and maritime zones so that areas August 2012, available online: https://www.thestar.com/news/ could not be challenged and reduced due to climate change and sea world/2012/08/23/floating_islands_to_the_rescue_in_the_ level rise. See, Pratt and Govan, p.58. maldives.html; and, “Artificial Islands Concept for the Maldives”, 291 Dr Stuart Minchin, Director General of the Pacific Community available online: http://futuristicnews.com/artificial-islands- (SPC), Pacific Regional Conference, 9 September 2020. concept-for-the-maldives/. 292 See, Aegean Sea Continental Shelf case, at para 85 and The Bay of 287 LOSC, Art. 60. Bengal Maritime Boundary Arbitration. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 45 Figure 15. The Status of Pacific Regional Maritime Boundaries as of July 2020. Source: SPC, Oceans and Maritime Programme, Geoscience, Energy & Maritime Division (July 2020). in the international legal order and may in the future even UNFCCC,295 utilisation of the amendment provisions constitute a risk to international peace and security. of the LOSC,296 a decision of the Meeting of the State There are a number of possible ways in which an estab- lished rule of international law might be changed. The Maritime Limits and Boundaries.’ Netherlands International Law Review, Vol. 37, pp. 207–232. See also David D. Caron, “When law ILA Sea Level Rise Committee considered in some de- makes climate change worse: rethinking the law of baselines in tail all the options which had been suggested by the late light of a rising sea level”, (1990) 17 Ecology Law Quarterly, 621; Professor Hayashi (former head of the UN Division for and David Freestone, “International Law and Sea Level Rise” in Ocean Affairs and Law of the Sea [DOALOS]) in a paper International Law and Global Climate Change, (Robin Churchill and David Freestone, eds) 1991, pp. 109-125, at 115. dating from 2011.293 These included the development 295 As proposed in 1990 by the Coastal Zone Management Subgroup of customary international law,294 a protocol to the of the IPCC, reported by David Freestone and John Pethick, “Sea Level Rise and Maritime Boundaries: International Implications of Impacts and Responses”, in: G Blake (ed.) International Boundaries: 293 Even though he himself admitted some of them might not be Fresh Perspectives, Vol. 5 (Routledge, 1994), pp. 73–90, at 76. practical. See Moritaka Hayashi, “Sea-level rise and the law of the 296 See, LOSC, Arts. 311–316. For a discussion of the complexity of sea: future options” In The World Ocean in Globalisation: Climate this procedure, see e.g. David Freestone and Alex G. Oude Elferink, Change, Sustainable Fisheries, Biodiversity, Shipping, Regional ‘Flexibility and Innovation in the Law of the Sea: Will the LOS Issues, Davor Vidas and Peter Johan Schei, eds. (Boston: Brill, 2011), Convention amendment procedures ever be used?’ in A.G. Oude pp. 187–206 at 205, ILA 2018 Report, at 15. Elferink, (ed.), Stability and Change in the Law of the Sea: The Role 294 Soons, Alfred H.A. 1990. ‘The Effects of a Rising Sea Level on of the LOS Convention, (Boston/Leiden, Nijhoff, 2005) pp. 163–216. 46 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Figure 16. Consequences of “freezing” coastal baselines to maintain maritime entitlements. Frozen Frozen Baseline Outer Limit Baseline Outer Limit expanded Sea level rises Internal Territorial Exclusive Economic Zone High Sea Waters Sea Internal Territorial Exclusive Economic Zone High Sea Waters Sea Source: Arsana and Schofield (2017). Note: If coastal baselines and outer limits are maintained (or frozen) when the physical coastline retreats, then it results in an expanded area of internal waters behind the baseline. Parties to the LOSC (SPLOS),297 a diplomatic conference freedoms of the high seas. A regional custom would only open also for States non-parties to the LOSC, or an be binding amongst the countries of the region. agreement adopted by the UN General Assembly after However, the development of a new rule of general cus- negotiation in its subsidiary bodies or informal consul- tomary international often takes a long time, as it not tations.298 only needs evidence of State practice in support but Of these options, the one that has attracted the most also opinio juris.300 It starts, however, with the devel- attention is the idea of the development of a new rule of opment of uniform State practice, and there is at least customary international law. As long ago as 1990, schol- prima facie evidence of the development of a regional ars had argued that rather than spend large amounts of State practice in the Pacific islands—many of which are money physically defending their coastlines, vulnerable the most vulnerable to losses of baseline points and, States might be better served by directing their efforts consequently, territory from sea level rise.301 The Pacific to the development of a new rule of customary inter- national law which recognized existing maritime enti- 300 In certain fields, such as the law of the sea, customary international tlements, despite changes brought about by sea level law (CIL) has sometimes developed rapidly. The ILC in its work on identification of CIL has pointed out that “The relevant practice rise.299 It is possible for customary law to be regional or must be general, meaning that it must be sufficiently widespread universal, but in order to address the specific situation and representative, as well as consistent. Provided that the practice of small island States this new customary rule would is general, no particular duration is required” (emphasis added). See, ILC Draft conclusions on identification of customary international need to be universal—to be binding on all States—par- law, with commentaries (2018), adopted by the ILC at its seventieth ticularly on those who most frequently exercise the session and submitted to the General Assembly, UN Doc. A/73/10, Draft Conclusion 8. Relevant Commentary on Draft Conclusion 8 states “a relatively short period in which a general practice is 297 Note that Art. 319(2)(e) LOSC appears to allocate only followed is not, in and of itself, an obstacle to determining that a administrative roles to this meeting, e.g. under LOSC Annex II, Art. corresponding rule of customary international law exists” (para 9). 293 and Annex VI, Arts. 4(4), 18 and 19, discussed in Freestone and 301 For discussion of Regional State Practice, see, David Freestone Oude Elferink, pp. 207–209. and Clive Schofield, “Islands Awash Amidst Rising Seas: Sea Level 298 All discussed further by Moritaka Hayashi, ‘Sea Level Rise and Rise and Insular Status under the Law of the Sea” in Proceedings the Law of the Sea—Future Options”, in: Davor Vidas and Peter of the 2018 Singapore Conference on Climate Change (2019) J. Schei (eds), The World Ocean in Globalisation: Climate Change, International Journal of Marine and Coastal Law Vol. 34 (3), pp. Sustainable Fisheries, Biodiversity, Shipping, Regional Issues 391-414; and (same authors) “Securing Ocean Spaces for the (Boston/Leiden: Brill/Martinus Nijhoff, 2011), pp. 200–206. Future? The Initiative of the Pacific SIDS to Develop Regional 299 See, Soons (1990). Practice Concerning Baselines and Maritime Zone Limits” (2019) LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 47 Island States are among those “States whose interests more detailed delineation of maritime limits using coor- are specially affected,” a significant attribute regarding dinates based on modern geodetic data. 306 the establishment of a general practice in the formation The project has also assisted with one submission to of a new rule of customary international law, that was the CLCS, although 16 more are in preparation.307 An recognized by the ICJ in the 1969 North Sea Continental example of a more modern approach to delineation of Shelf cases.302 national limits is provided by the Republic of the Mar- Another approach is to assess whether State practice shall Islands which, on 18 March 2016, passed compre- has actually changed the traditional interpretation of hensive new legislation repealing “in its entirety” the the LOSC. The 1969 Vienna Convention on the Law of 1984 Maritime Zones Declaration Act, and declaring Treaties does envisage that in interpreting treaties, anew all its maritime zones in a detailed document “any subsequent practice in the application of the trea- running to more than 400 pages.308 This represents ty which establishes the agreement of the parties re- one of the latest developments in an emerging pat- garding its interpretation” shall be taken into account, tern of practice in the Pacific region whereby States together with the context.303 In 2016, the ILC looked at are unilaterally declaring and publicizing their mari- the question of what constitutes “subsequent practice” time jurisdictional baselines, limits, and boundaries. for these purposes and it suggested that this would in- Even though the LOSC only requires notification to the clude State conduct in the application of a treaty, after UNSG of certain types of limits and boundaries (such its conclusion, which establishes the agreement of the as straight and archipelagic baselines), it has become parties regarding the interpretation of the treaty, or it regional practice to notify the UN of all maritime lines could be conduct by one or more parties in the appli- and zones, with full geodetic data. While stability in cation of the treaty, after its conclusion.304 So if it can the spatial scope of a State’s maritime jurisdiction be shown that there is consistent state practice in the has clear administrative as well as enforcement ben- interpretation of the LOSC rules on baselines, this would efits, the wider implication of this practice is that it be important evidence of an emerging customary law appears to be a deliberate attempt to pre-empt argu- interpretation of the issue of “ambulatory” baselines. ments that physical changes to its coastline, particu- larly those resulting from climate change induced sea In addition to a number of important joint political state- level rise, would have resulting impacts on its baselines ments by the leaders of PICs,305 there has also been a and/or on the outer limits of its zones.309 Similar legis- major effort under the Pacific Oceanscape Programme lation, designating new archipelagic waters and desig- to accelerate the conclusion of maritime boundaries nating the outer limits of the national EEZs, has also between the States and territories of the region and been passed by Kiribati310 and Tuvalu.311 to determine with much more detail and precision the existing extent and delineation of national maritime zones. The Pacific Maritime Boundaries project working within this framework has assisted and facilitated the 306 See, Robyn Frost et al. (2016) pp. 302–303 and 306–309. 307 Ibid. conclusion of a remarkable number of agreements in 308 Act No. 13 of 2016. Source at: http://www.un.org/Depts/ the region as well as assisted with the development of los/LEGISLATIONANDTREATIES/PDFFILES/ DEPOSIT/mhl_ mzn120_2016_1.pdf. Discussed in detail by David Freestone and Clive Schofield, ‘Republic of the Marshall Islands: 2016 Maritime Ocean Yearbook Vol. 33, pp. 58-89. Zones Declaration Act: drawing lines in the sea’ (2016) International 302 North Sea Continental Shelf cases (1969) I.C.J. Reports, p. 3 at Journal of Marine and Coastal Law Vol. 31, 720–746. paras. 73–74. 309 This and the following section draw on Freestone and Schofield 303 1969 Vienna Convention, Art. 31(3)(b). (2016). 304 Report of the International Law Commission: Sixty-eighth session 310 Baselines around the Archipelagos of Kiribati Regulations 2014 (2 May–10 June and 4 July–12 August 2016) A/71/10.118 at 121. The (2014), http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/ ILC adopted “Draft conclusions on subsequent agreements and PDFFILES/KIR _2014_archipel_baselines_regulations.pdf. Also, Ex- subsequent practice in relation to the interpretation of treaties, clusive Economic Zone Outer Limit Regulations 2014 (2014) (Kiri- with commentaries” at its seventieth session, in 2018, and bati), http://www.un.org/depts/los/LEGISLATIONANDTREATIES/ submitted to the General Assembly as a part of the Commission’s PDFFILES/KIR_2014_eez_outer_limits_regulations.pdf (Kiribati). report covering the work of that session (A/73/10). Cited by Stuart Kaye, ‘The Law of the Sea Convention and Sea Lev- 305 See, e.g., the 2015 Taputapuātea Declaration, the Delap el Rise after the South China Sea Arbitration’ (2017) International Commitment and the Boe Declaration—all discussed in Freestone Law Studies, Vol. 93 at 444. and Schofield “Securing Ocean Spaces for the Future? The Initiative 311 Declaration of Archipelagic Baselines 2012, LN No. 7 of 2012 (Tuvalu), of the Pacific SIDS to Develop Regional Practice Concerning available at: www.un.org/depts/los/LEGISLATIONANDTREATIES/ Baselines and Maritime Zone Limits” (2019), pp.58-89. PDFFILES/tuv_declaration_archipelagic_baselines2012_1.pdf. 48 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES The issue of how to expand that regional understand- rise.312 The issues involved are sensitive and a number ing to include the wider community of States is difficult. of options are possible and available, so what follows is Any international recognition is going to be important, essentially a summary of the key issues and an attempt but deliberately precipitating international discussion to identify in broad brush some of the approaches which of the issue—by proposing a UNGA resolution or devel- commentators have suggested.313 oping a regional agreement under Article 311(3) of the A territory and a permanent population are two of the LOSC, may galvanize support for this, but also run the key requirements for statehood laid out in the Montevi- risk of crystalizing opposition to such a new general rule. deo Convention, discussed earlier. Traditionally, territo- ry has been central to the doctrine of international juris- 5. What are the legal implications diction. A State has exclusive jurisdiction in the territory over which it exercises sovereignty. Sovereignty has of an island State becoming been defined as the “totality of international rights and uninhabitable? duties recognized by international law as residing in an independent territorial unit—the State.” 314 It entails the passing of legislation, the ownership of assets, and the This is an unprecedented situation for international other attributes of government. A State also has per- law, which the international community will need sonal jurisdiction over its nationals and other entities, to address. But international law and practice does like ships or companies, registered under its laws. These suggest a presumption of State continuity provided primary grounds for jurisdiction would arguably contin- the State can honor its international obligations and ue even without an exclusively owned land territory, as responsibilities. long as the entity of government itself persists. The main organs of government through which a State At some point in the twenty-second century, or possi- exercises its jurisdiction are the legislature, the judicia- bly earlier, a number of island territories may become ry, and the executive—the administration. As the slow uninhabitable. Not necessarily because they are totally onset of sea level rise begins to make inroads into the inundated, but because the land area available for liv- island territory, these organs will need to be relocat- ing and growing crops has been reduced below a critical ed, probably sooner rather than later. This relocation threshold, or the soil itself and the freshwater lens be- may in the first instance be within the State. In certain neath the island has become too saline to support life. cases, a State may also maintain a symbolic presence, At that point, if not well before, human populations will for example, through a parliament building on a built- need to move. The question is—will that result in the up higher ground where the parliament meets once or extinction of the State if the normal requirements for twice a year. If the situation is reached where no further statehood include a permanent population and a de- higher ground is available, the relocation will need to be fined territory? to another State, either to another higher island or to a At present, the idea of an island State without inhabit- 312 Davor Vidas (2014), p. 83. See also, Davor Vidas, David Freestone, able island space and no population is still a hypothet- and Jane McAdam, “International Law and Sea Level Rise: The ical situation, but it is worth addressing as it poses a New ILA Committee,” (2015), ILSA Journal of International and completely novel problem for international law. Besides, Comparative Law, Vol. 21(2), pp. 397-408. 313 Rayfuse, Rosemary. 2009. “W(h)ither Tuvalu International some of the legal challenges and practical constraints Law and Disappearing States.” UNSW Law Research Paper No. imposed by the impacts of sea level rise in this context 2009-9; Jenny Grote Stoutenburg, “When Do States Disappear? might become topical in just a few decades, well before Thresholds of Effective Statehood and the Continued Recognition of ‘Deterritorialized’ Island States” in Michael Gerrard and Gregory statehood becomes an issue. Part II(3) of this paper pro- Wannier, eds, Threatened Island Nations: Legal Implications of vided an overview of applicable rules of international Rising Seas and a Changing Climate (2013), pp. 76-77; Catherine law relating to statehood. These rules were developed Blanchard, “Evolution or Revolution: Evaluating the Territorial State- Based Regime of International Law in the Context of the Physical during the relatively stable climatic period of the last Disappearance of Territory due to Climate Change and Sea-Level 11,500 years (the Holocene) and international law has Rise” (2015) Canadian Yearbook of International Law, Vol. 53 pp. never had to address the issue of a viable, functioning 66-118. sovereign State slowly losing its population and pos- 314 See, in general, Crawford, pp. 32-33. “Jurisdiction” on the other hand, refers to “particular aspects of the substance, especially sibly its territory also due to the impacts of sea level rights (or claims), liberties, and powers”, see, Brownlie, p. 106. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 49 mainland area. The details of this relocation will prob- in principle, there is no reason why a sovereign State ably be different in each case, but commentators have could not relocate its seat of government. The details suggested a few alternatives. The most obvious exam- would have to be negotiated with the host State that is ple of an alternative is that the relocating State may be offering refuge or is being paid to provide land on a lease able to lease or buy land areas in another State.315 This or in perpetuity. Indeed, the host State may be prepared is why analogies have been drawn with situations where to offer certain political assistance of its own—in the a government has moved into exile.316 way that France and Spain offer protection to the mi- cro-State of Andorra, San Marino operates under the There are various examples of governments operating general protection of Italy, but enters into treaties on “in exile” outside of their own territory. The general pre- its own, and Liechtenstein, whose foreign relations are sumption is that such an arrangement is temporary. The generally handled by Switzerland. disconnect between the territory and population obvi- ously poses various limitations with regard to the ca- In the short term, well before these scenarios take place, pacity of such a government to function compared with the increasing uninhabitability of parts of affected coun- the situation of a government operating within its own tries and other adverse effects of sea level rise may cre- territory. Thus, where a government might be forced to ate significant constraints on affected States’ capacity operate outside of its territory on a permanent basis, to function effectively both at internal and external lev- the scope of its sovereignty and independence may well els. Governments might, for instance, become less and be questioned, if not effectively impacted. less able to implement their obligations to protect civil In such a scenario, where a government has to relocate, and political rights of their populations and the full re- there are a number of key issues to consider. Is the re- alization of economic, social, and cultural rights; repay located government able to function effectively, gener- loans and service debts; or fulfil treaty obligations to ate its own income, and protect the assets and the na- cooperate with other countries on specific matters. The tionals that still owe allegiance to it? Can it continue to following paragraphs outline some of the key legal impli- function on the international plane? This does not mean cations and applicable legal regimes, albeit not exclusive. simply maintaining a number of ambassadors or over- seas legations—although it will probably have to do that Membership of International Organizations —but whether it can really govern; that is, can it meet the One of the privileges associated with statehood is the obligations and responsibilities which international law ability to seek membership of international organiza- imposes upon it? These would include being able to honor tions, even though such membership is not always ex- the international treaty obligations it has undertaken by, clusively reserved for States.318 Particular conditions for for example, ratifying human rights treaties and the obli- membership vary; certain international organizations gations derived from customary international law. There may have more stringent preconditions for member- is also a question as to the continued ownership of the ship. Article 4.1 of the UN Charter states, “Membership islands and maritime areas from which it has relocated. in the United Nations is open to all other peace-loving States which accept the obligations contained in the Each of these questions will need to be addressed on an present Charter and, in the judgment of the Organiza- individual basis, but there does appear to be a presump- tion, are able and willing to carry out these obligations” tion of State continuity under international law317 and, (emphasis added). 315 See, Emma Allen (2018), pp. 1-23. They may rather choose to merge with another State, as Zanzibar and Tanganyika did in 1964 to Maritime Entitlements form Tanzania. Becoming a new State raises another wide swathe of legal issues which will not be dealt with here. For the discussion The question of continued ownership and sovereign- of a suggested totally new entity, see, Maxine Burkett, “The Nation ty over the former islands and maritime areas which Ex-Situ: On Climate Change, Deterritorialized Nationhood, and the Post-Climate Era” (2011) Climate Law, Vol. 2, pp. 245-374. were generated by those islands is a truly new issue and 316 McAdam, Jane. 2010. “‘Disappearing States’, Statelessness and the Boundaries of International Law.” Climate Change and the presumption—in practice a strong presumption—favours the Displacement: Multidisciplinary Perspectives. Oxford, Hart, ed. continuity and disfavours the extinction of an established State.” Jane McAdam, pp. 105-130, at 116-118. See, pp. 700-701. For a detailed analysis on the issue, see also, 317 Crawford concludes that “A State is not necessarily extinguished Crawford, pp. 667-699. by substantial changes in territory, population or government, or 318 Some international organizations do admit non-State entities as even, in some cases, by a combination of all three. […] And, generally, members. 50 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES contains a number of unknowns. It is possible that the International law may provide a remedy in that it pre- relocated State may claim ownership and sovereignty sumes that there could be situations where the original over the islands and insular features that remain above circumstances leading to the conclusion of a treaty may water. After all, many States claim ownership of islands have changed and thus parties cannot be taken to have in distant parts of the world. While they remain above consented to the performance of the treaty under the water, they will at least generate a 12 nm territorial sea. new circumstances. This principle, discussed above, is called “fundamental change of circumstances,”323 and The challenge is that the majority of the wealth of the may be very relevant in this situation. But otherwise ocean resource, such as pelagic tuna resources, lies fur- the relocated State would need to honor its general in- ther offshore as does the majority of continental shelf ternational law obligations, including its treaties. This resources. In order to maintain sovereign rights over is particularly important as the final and essential re- these resources, the relocated State will need to be able quirement of statehood is the “capacity to enter into to maintain its wider maritime zone entitlements, to a relations with other States.”324 This capacity ultimately 200 nm EEZ and if relevant an extended continental depends upon the recognition by other States of the re- shelf beyond 200 nm. located government as a State. To maintain this recog- The 1982 LOSC does not really provide help with this nition, it will need to show itself capable of, and willing issue. It indicates that an insular feature that “cannot to take advantage of its international rights and meet sustain human habitation or an economic life of its own” its international duties. is not entitled to an EEZ or continental shelf.319 Similar- ly, if there is no feature above water at high tide, then Protection of Persons no maritime zones are recognized by the LOSC. How- In a possible scenario where the government and popu- ever, the total or partial loss of maritime entitlements lation (either partially or entirely) have to be relocated, has been described as an outcome that is “intrinsical- then the protection of the population becomes a par- ly inequitable and contrary to intentional law.”320 There ticularly complex issue. A State has the primary duty is considerable State practice developing in the Pacific to ensure the protection of persons under its jurisdic- region, discussed above,321 to support the view that is- tion or control. If the affected State loses its status as a land and coastal States should not be required to adjust State, who would function as the duty-bearer in respect their coastal baselines and maritime entitlements in to the human rights of the affected population who had response to changes brought about by sea level rise. If to move due to sea level rise or to people who remain? this were to gather sufficient support from other States This would be a crucial issue to be addressed. In theory, to crystallize into a rule of customary international law preservation of statehood may alleviate such risk of le- or a universally accepted interpretation of the LOSC, gal lacunae. In practice, however, even before statehood then maritime entitlements could be maintained. As becomes an issue, there is a clear risk that sea level rise they could if a new international legal instrument were impacts may hamper a State’s capacity to provide pro- to recognize their continued ownership in some way.322 tection and fulfil the progressive realization of econom- But the relocated State would still need to be able to al- ic, social, and cultural rights of its people. locate resources to policing and defending those areas. State Responsibility Treaty Obligations Under international law, State responsibility generally There will inevitably be a few treaty obligations that refers to legal responsibility for the violation of an inter- the relocated State may simply not be able to honor. national obligation and associated consequences.325 For State responsibility to arise, there has to be a violation 319 LOSC, Art. 121(3). of an international obligation attributable to a State. In 320 Rayfuse, Rosemary. 2010. “International Law and Disappearing the presence of a valid defense, such responsibility may States: Utilizing Maritime Entitlements to Overcome the Statehood Dilemma.” University of New South Wales Faculty of Law Research Paper no 2010-52 at 9. Blanchard, pp. 96-97. Also, Clive Schofield and David Freestone, “Options to Protect Coastlines and Secure 323 Or rebus sic stantibus. 1969 Vienna Convention, Art. 62. Maritime Jurisdictional Claims in the Face of Global Sea Level Rise” 324 Montevideo Convention, Art. 1. in Gerrard and Wannier, p. 162. 325 See, in general, UN International Law Commission, Draft Articles 321 See also 2018/5 Resolution of the ILA. on Responsibility of States for Internationally Wrongful Acts, with 322 See options discussed in 2018 ILA Report. commentaries, U.N. Doc. A/56/10 (2001). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 51 be avoided.326 For instance, can sea level rise be accepted tory and population and, most importantly, a function- as force majeure?327 Alternatively, could other grounds al government, so that status quo could be maintained. precluding wrongfulness, such as distress or necessity, However, despite the strong presumption of continuity be invoked by States affected by sea level rise as de- of statehood for so long as crucial elements of state- fense mechanisms in situations where they breach their hood are maintained, continuity of statehood might still obligations due to constraints imposed by sea level rise? be questioned in situations where the loss of territory International law does not provide clear cut answers to or the exile of the population and government become these questions. These grounds could be arguably used permanent. Even, before then, while these elements but the threshold would be potentially high, considering weaken, statehood may erode over time, or at least be the causes and effects of climate change in light of the questioned. modern scientific thinking. In general, it is argued that it would be incorrect to 6. What are the legal and policy presume that the loss of one or more elements of the Montevideo criteria would automatically lead to the options relating to human mobility cessation of statehood,328 if only because of the risk of in the context of climate change? rendering significant numbers of people stateless, ei- ther legally (de jure) or practically (de facto).329 More- over, governments can still maintain some functional International law does provide a framework for capacity and exercise sovereign rights through options addressing issues of human mobility in the face of such as government-in-exile. While it is not certain, sea level rise, but it is fragmented. This section sets it is most likely that the international community will out the relevant legal tools and policy options that be willing to recognize the continuity of statehood for might help people adapt in situ and that facilitate those states threatened by submergence due to sea lev- human mobility if it becomes necessary.331 el rise,330 so long as they maintain some symbolic terri- 326 Such grounds precluding “wrongfulness” may include consent, As laid out in Part II(4), the regime addressing human force majeure and fortuitous event, distress, state of necessity, mobility in the context of climate change is highly frag- and self-defense. See, ILC Draft articles on Responsibility of States for Internationally Wrongful Acts, Chapter V in general. mented.332 Various proposals have been presented by 327 ILC, Draft articles on Responsibility of States for Internationally scholars including the possibility of a new convention to Wrongful Acts, Article 23 on force majeure reads as follows: specifically address this issue.333 However, a new inter- “The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or theories as some believe that an entity cannot be accepted as of an unforeseen event, beyond the control of the State, making a state unless it is generally recognized as such by other states it materially impossible in the circumstances to perform the (constitutive theory) whereas others accept that recognition has obligation.” no legal effect on the formation of statehood (declaratory theory). 328 McAdam (2010) at p. 117. 331 For ease of reference these are summarized in tabular form in 329 Although “de facto” statelessness might occur when the State is Appendix I. no longer able to protect its citizens—which may be in advance of 332 Indeed, it has been argued that it is the confusion surrounding the loss of statehood. Commentators have flagged this, see, “Climate fragmented regime rather than gaps in the legal regime itself that Change and Statelessness: An Overview” submitted by the United leads to the current de facto protection gaps. See, in particular, Nations High Commissioner for Refugees with the support of the Benoit Mayer, The Concept of Climate Migration: Advocacy and its International Organization for Migration and the Norwegian Refugee Prospects (Edward Elgar Publishing, 2016). Council to the 6th session of the Ad Hoc Working Group on Long- 333 Biermann, Frank and Ingrid Boas. 2010. “Preparing for a Warmer Term Cooperative Action (AWG-LCA 6) under the UN Framework World: Towards a Global Governance System to Protect Climate Convention on Climate Change (15 May 2009). Also Michelle Foster Refugees,” in Global Environmental Politics, pp. 60-88, MIT Press. and Helene Lambert, “Statelessness as a Human Rights Issue: A Docherty, Bonnie and Tyler Giannini. 2009. “Confronting a Rising Concept Whose Time Has Come” (2016), International Journal Tide: A Proposal for a Convention on Climate Change Refugees.” of Refugee Law, Vol. 28(4), pp. 564-584; Marija Dobrić, “Rising Harvard Environmental Law Review, Vol. 33, pp. 349-403. For Statelessness Due to Disappearing Island States: Does the Current a comprehensive treatment of relevant proposals, see, Michele Status of International Law Offer Sufficient Protection?” (2019), K. Solomon and Koko Warner, “Protection of Persons Displaced Statelessness & Citizenship Review, Vol 1(1), pp. 42-68. The two as a Result of Climate Change: Existing Tools and Emerging existing conventions addressing the issue of statelessness, namely, Frameworks” in Threatened Island Nations: Legal Implications of the 1954 Convention relating to the Status of Stateless Persons Rising Seas and a Changing Climate, eds. Michael B. Gerrard and and the 1961 Convention on the Reduction of Statelessness are Gregory E. Wannier (Cambridge Press, 2013). Although others are only applicable to de jure statelessness and not widely ratified. unconvinced: Jane McAdam, “Swimming against the Tide: Why a 330 The issue of recognition of states has been subject to competing Climate Change Displacement Treaty is not the Answer” (2011), 52 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES national treaty would need considerable political capital protect, and fulfil human rights would need to inform to conclude, bring into force, and implement.334 More- legal and policy interventions at the national level.339 over, a generalized treaty may not necessarily provide Procedural rights, notably the rights to information the key tools to address specific, localized concerns and to participate in decision-making, play a key role that might be better dealt with at the regional, bilateral in enabling affected people to make informed decisions. and national levels.335 This section will highlight specific Core principles such as non-discrimination, transparen- legal and policy options in the context of different mo- cy, and human dignity are also relevant for adaptation bility scenarios. measures. In 2015, the UN General Assembly endorsed the defi- In Situ Adaptation Where this is Feasible nition of resilience in the Sendai Framework as: “The and Desirable ability of a system, community or society exposed to There is little doubt that allowing people to adapt in hazards to resist, absorb, accommodate to and recov- their original location—in situ adaptation to sea level er from the effects of a hazard in a timely and efficient rise impacts—is the preferred option, but not always manner, including through the preservation and resto- physically possible.336 It does require a great deal of for- ration of its essential basic structures and functions.”340 ward planning and preparedness, which in turn requires To foster resilience, it is important to understand vul- resources. nerabilities and capacity to cope with sea level rise and climate change risks and impacts. Coping with the ex- The Paris Agreement recognizes that adaptation is a isting root causes of vulnerability and poverty will in- country-driven process which needs to adopt a “gen- crease communities’ resilience.341 der-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, Disaster risk management schemes are important tools communities and ecosystems.”337 Assessing climate im- to increase resilience. The Sendai Framework for Disas- pacts, vulnerability, and risks including the impacts of ter Risk Reduction identifies four priorities in this re- adaptation and climate resilience strategies that aim to spect: (i) understanding disaster risk, (ii) strengthening assist those who wish to remain in situ need to inform disaster risk governance to manage disaster risk, (iii) legal and policy interventions. Identifying medium- and investing in disaster risk reduction for resilience, and (iv) long-term adaptation needs and communicating these enhancing disaster preparedness for effective response. needs through instruments such as NDCs and NAPs It outlines necessary actions to achieve these targets remain crucial in accessing adaptation financing and including through governance, policymaking, invest- therefore ensuring effective implementation of adapta- ment, and international cooperation.342 tion measures. The UN Office for Disaster Risk Reduction (UNDRR) has “Adaptation with Dignity” requires “not only a focus on provided guidance in Words into Action Disaster Dis- defending sustainable livelihoods but doing so in a way placement: How to Reduce Risk, Address Impacts and which enables people to live with their human rights Strengthen Resilience. This guiding document comple- respected.”338 States’ existing obligations to respect, ments the Sendai Framework by providing further guid- International Journal of Refugee Law, Vol 23(1), pp. 2-27. International Law, Vol. 53, p. 268. See also, Dug Cubie, “In-Situ 334 McAdam (2011) at p. 25. Adaptation: Non-Migration as A Coping Strategy for Vulnerable 335 See, in general, Michael M. Cernea, Elizabeth Ferris, and Daniel Persons” in Climate Change, Migration and Human Rights: Law Petz, “On the Front Line of Climate Change and Displacement: and Policy Perspectives, eds. Dimitra Manou, Andrew Baldwin, et Learning from and with Pacific Island Countries” (2011), as part of al. (Routledge, 2017). Brookings-Bern Project on Internal Displacement. 339 As briefly outlined under Part II(4), many argue that States’ relevant 336 See, Pacific Islands Forum Secretariat, 2008 Niue Declaration obligations under human rights law need to be complemented on Climate Change, available at: https://www.forumsec. through international cooperation to address technical and org/2008/02/21/the-niue-declaration-on-climate-change/; and financial constraints that affected States may be facing. The duty the Report from the Nansen Initiative Pacific Regional Consultation, to cooperate can play an important role in the context of sea level Human Mobility, Natural Disasters, and Climate Change in the rise, though its scope and content is contested and requires further Pacific: Outcome Report (21-24 May 2013, Rarotonga, Cook clarification. Islands). 340 Sendai Framework for Disaster Risk Reduction 2015–2030 337 PA, Art. 7(5). (adopted 3 June 2015), UNGA Res A/RES/69/283 69/283. 338 McAdam, Jane and Ben Saul. 2010. “Displacement with Dignity: 341 Cubie, at p. 104. International Law and Policy Responses to Climate Change 342 See, Sendai Framework for Disaster Risk Reduction 2015–2030, in Migration and Security in Bangladesh.” German Yearbook of particular, paras 27, 28, 30, 33, and 36. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 53 ance on how human mobility can be integrated in disas- Migration as a Means of Adaptation ter risk management schemes.343 Even more relevant When in situ adaptation is no longer an option, migra- is the regional Framework for Resilient Development in tion as adaptation can be an effective tool to avoid the Pacific: An Integrated Approach to Address Climate later potential displacement.350 As discussed in Part Change and Disaster Risk Management 2017–2030 that II(4), there are umbrella principles enshrined in human was adopted by the Pacific Islands region in 2016 as vol- rights law and relevant international labor law instru- untary guidelines to support efforts to enhance resilience ments that can guide legal and policy actions at na- to climate change and disasters. This framework puts tional and regional levels. The host countries’ relevant particular emphasis on human mobility by highlighting human rights obligations would apply to anyone within the need to integrate it into both regional and national their jurisdiction irrespective of nationality.351 Howev- policies within the context of disaster preparedness, re- er, these standards would need to be complemented sponse, and recovery.344 The Vanuatu Climate Change with immigration frameworks addressing primarily the and Disaster Risk Reduction Policy 2016–2030, for in- issues of admission, residence permits, and access to stance, highlights the need for targeted support for labor market. Current migratory schemes in the region IDPs345 and calls for development of a national policy ad- may provide meaningful entry points for further policy dressing internal displacement and resettlement.346 This development in the context of migration.352 policy led to the 2018 Vanuatu National Policy on Climate Change and Disaster-Induced Displacement stressing Currently, in the Pacific region, there are various exist- durable solutions for Vanuatu’s IDPs.347 ing immigration schemes related to employment, fami- ly, education, or other forms of privileged access to ter- Integrating adaptation strategies into sustainable de- ritory. The Nansen Initiative’s regional consultations in velopment policies and programs could be another im- the Pacific region highlight that former ties with certain portant tool helping people to stay. Although Agenda countries contributed to the formation of sub-regional 2030 for Sustainable Development348 does not explic- “clusters” of States and have facilitated some form of itly address human mobility in the context of climate voluntary migration through privileged access to tem- change, the Sustainable Development Goals (SDGs) do porary or permanent residence in ‘hub’ States, including provide meaningful entry points for governments and New Zealand, USA, France, and more recently Austra- other development actors to help people adapt by build- lia.353 The way existing clusters are structured as well ing their resilience and factoring migration into develop- ment strategies.349 and strengthening capacity for adaptation to environmental changes under Goal 2; reducing the number of people suffering 343 UN Office for Disaster Risk Reduction (UNDRR) “Words into Action from water scarcity under Goal 6; promoting the implementation Disaster Displacement: How To Reduce Risk, Address Impacts And of planned and well-managed migration policies under Goal 10; Strengthen Resilience” (2019) available at: https://www.preven- reducing the number of deaths and people affected by disasters tionweb.net/files/58821_wiadisasterdisplacement190511webeng. through effective DRR practices and strengthening development pdf planning for resilient cities and settlements under Goal 11; and 344 Framework for Resilient Development in the Pacific An Integrated building adaptive capacity in the face of climate change and Approach to Address Climate Change and Disaster Risk integrating climate change measures in policies under Goal 13. For Management (FRDP) 2017—2030, available at: http://tep-a.org/ further details, see International Organization for Migration (IOM), wp-content/uploads/2017/05/FRDP_2016_finalResilient_Dev_ Task Force on Displacement Activity II.2 “Mapping Human Mobility pacific.pdf (Migration, Displacement and Planned Relocation) and Climate 345 The Vanuatu Climate Change and Disaster Risk Reduction Policy Change in International Processes, Policies and Legal Frameworks” 2016-2030 (adopted in 2015), available at: https://www.nab.vu/ (August 2018). sites/default/files/nab/vanuatu_cc_drr_policy_minus_att4v4.pdf, 350 McAdam, Burson, et al. (2016), p. 39. see Section 7.6.1 351 While the enjoyment of some rights is strongly connected to 346 Ibid., Section 7.6.6. nationality (e.g., political rights), core human rights, such as the 347 Vanuatu National Policy on Climate Change and Disaster- right to life, the right to liberty and security of person, and human Induced Displacement (2018), available at: https://www. rights to education, health and cultural identity are afforded to pacificclimatechange.net/sites/default/files/documents/ everyone irrespective of nationality or other status. iom-vanuatu-policy-climate-change-disaster-induced- 352 See, Bruce Burson and Richard Bedford, “Clusters and Hubs: displacement-2018.pdf Toward a Regional Architecture for Voluntary Adaptive Migration in 348 UN General Assembly, “Transforming our world: the 2030 Agenda the Pacific” (December 2013), Discussion Paper, Nansen Initiative. for Sustainable Development” Resolution adopted by the General 353 Ibid. The Discussion Paper concludes: “The dynamic process of Assembly on 25 September 2015, UN Doc. No. A/RES/70/1. cluster formation and development provides opportunities for 349 Particularly relevant goals include: ending poverty by building the enhancement of regional mobility. Existing and emerging sub- resilience of vulnerable populations to extreme events under Goal regional clusters will need to be encouraged and supported in their 1; achieving food security and promoting sustainable agriculture attempts to foster and promote intra‑cluster mobility” p. 46. 54 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES as levels of opportunities available for each cluster are to worker status, allowing residency options, alleviat- disparate.354 ing the requirements for sponsorship for residence, and adopting a less stringent approach to the existing quota These frameworks are generally not comprehensive arrangements.357 Data on gender and other vulnerable enough to address wide-scale migration and challenges groups and on interactions between remittances and brought by sea level rise and climate change.355 Existing adaptive capacity would also contribute to a better un- laws and policies will probably need to be reviewed in the derstanding of where gaps are.358 light of key legal frameworks as outlined above,356 with a view to providing flexibility in allowing the transition Box 1. Impacts of migration on the Marshallese migrants and the Compact of Free Association (COFA). The Freely Associated States (FAS) of the Republic of the Marshall Islands (RMI), the Federated States of Micronesia (FSM), and the Republic of Palau (Palau) all enjoy a special relationship with the United States through their Compacts of Free Association (COFAs). These COFAs govern diplomatic, economic, security, and defense relations and also include immigration provisions giving citizens of the FAS the right to enter, work, and live in the U.S. subject to certain restrictions. In light of the distinctive legal context presented by COFAs, the Marshall Islands Climate and Migration Project (MICMP), 359 has studied the extent to which climate-related stressors have driven migration within the Marshall Islands and from the Marshall Islands to the U.S. as well as the impacts of migration on the Marshallese migrants and their home communities. MICMP identifies potential priority areas that need to be addressed within the COFA framework as climate change impacts are expected to increase migration. The COFA framework creates a category of “lawful non-immigrants” for RMI citizens enabling them to benefit from various U.S. federal programs and services, reside and work in the U.S. and its territories. However, there are still some challenges with the existing COFA programs including migrants’ access to certain critical benefits in the U.S., like health insurance, as well as problems relating to access to education. 354 For a detailed analysis, see, ibid., pp. 24-40. 355 Solomon and Warner, p. 277. For a more detailed treatment of the issue, see also, Richard Bedford and Charlotte Bedford, “International Migration and Climate Change: A Post-Copenhagen Perspective on Options for Kiribati and Tuvalu” in Climate Change and Migration: South Pacific Perspectives (Institute of Policy Studies, 2010) ed. Burson. 356 In Part II(4). 357 Burson and Bedford, pp. 8-10. See, also, John Campbell and Olivia Warrick, “Climate Change and Migration Issues in the Pacific” (2014), produced as part of the Pacific Climate Change and Migration (PCCM) Project entitled, “Enhancing the Capacity of Pacific Island Countries to Manage the Impacts of Climate Change on Migration” supported by the European Union and implemented by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), the International Labour Organization (ILO) and the United Nations Development Programme (UNDP). 358 Campbell and Warrick, p. 31. 359 For further details, see, Kevin Morris, Maxine Burkett, and Brittany L. Wheeler, “Climate-Induced Migration and the Compact of Free Association (COFA): Limitations and Opportunities for the Citizens of the Republic of the Marshall Islands” (2019) Policy Brief of the Marshall Islands Climate and Migration Project, University of Hawai‘I at Mānoa. The report is available online at: https://static1.squarespace.com/ static/596d5a162e69cf240a0f043b/t/5e3cfc7fb5004465df14d6c9/1581055113094/MICMP2019_COFAPolicyBrief.pdf This research is part of the Marshall Islands Climate and Migration Project (MICMP) which is conducted in Partnership with the Pacific Island Climate Science Center (PICSC), NOAA’s Pacific Research and Integrated Science Assessments Program (Pacific RISA), and The Marshall Islands Conservation Society (MICS). The Marshall Islands Climate and Migration Project generally deals with the role of climate change and ecosystem services in the migration decisions of Marshallese islanders. Further information is available at: www.rmi-migration.com LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 55 Planned Relocation velopment projects. The UNHCR also recommends that planned relocation is considered as a measure of last As sea level rise becomes more intense later in the cen- resort and planned to take into account relevant human tury, some planned relocations as a preventive measure rights principles, such as free, prior, and informed con- to move people out of risk-prone areas might be inevi- sent of affected communities; effective and meaningful table.360 Forced evacuations and arbitrary displacement participation; appropriate and fair compensation; the are generally prohibited under international law.361 How- right to an adequate standard of living including ade- ever, States’ existing human rights obligations to protect quate housing; and the right to an effective remedy.365 the right to life may obligate States to evacuate persons facing serious and imminent risk to their lives due to sea level rise impacts.362 Similarly, when it is impossible Box 2. Fiji’s Planned Relocation Guidelines (2018). or unsafe to return, human rights obligations may also Fiji is one of the few countries which has a frame- oblige a State to relocate affected persons temporarily work in place for addressing planned relocation as or permanently in the face of a foreseeable harm provid- part of their adaptation strategies in relation to ed that such measures are proportionate, necessary and disasters and slow-onset events related to climate conducted for a legitimate purpose, that is, to protect the change. Fiji has already relocated Vunidogoloa vil- right to life and health of affected persons.363 lage in Vanua Levu in 2014 and communities in The UNHCR and other key actors recommend that the Vunisavisavi in 2015. In light of past experiences and governments of PICs consider planning at the legal, the pressing threat posed by adverse impacts of cli- policy, and institutional level to address planned relo- mate change, Fiji’s Planned Relocation Guidelines366 cations as part of their long-term climate change adap- launched at COP24, outline principles related to tation plans.364 Guidance is available from a wide range planned relocation and identify concrete actions of initiatives on existing standards and lessons learned pertaining to different stages and relevant stake- relating to displacement occurring in the context of de- holders involved. These Guidelines also highlight the importance of an inclusive and gender responsive consultative and participatory process and are 360 For an extensive discussion in scholarly literature, see, Jane McAdam and Elizabeth Ferris, “Planned Relocation in the Context designed to serve as a coordination mechanism to of Climate Change: Unpacking the Legal and Conceptual Issues” improve the collaboration of relevant stakeholders. (2015) Cambridge Journal of International and Comparative Law, Following this policy development, Prime Minister Vol. 4(1) pp. 137–66; Jane McAdam, “Historical Cross-Border Relocation in the Pacific: Lessons for Planned Relocations in the Honourable Josaia Voreqe Bainimarama launched Context of Climate Change” (2014) Journal of Pacific History, Vol. the world’s first relocation fund on the margins of 49(3), pp. 301–27. the 74th United Nations General Assembly: Climate 361 Guiding Principles on Internal Displacement, Principle 6; Kampala Convention, Arts. 3(1), 4(1) and 4(4). The Committee on Economic, Relocation and Displaced Peoples Trust Fund for Social and Cultural Rights (CESCR) has recognized that “forced Communities and Infrastructure,367 with the aim to evictions are prima facie incompatible with the requirements of receive additional funds for 45 other villages identi- the Covenant and can only be justified in the most exceptional fied and possible others to be relocated in the near circumstances, and in accordance with the relevant principles of international law.” See, CESCR, General Comment No 7: Forced future. This trust fund aims to supplement the ex- Evictions (1997) Doc. No. E/1998/22 at para 1. isting Environment and Adaptation Climate Levy 362 See, e.g., ECtHR, Budayeva and Others v. Russia, App. No. 153391/02 through which Fiji is providing seed funding. (2008). See also, the Sydney Declaration, Principle 8 and its commentary. For a comprehensive analysis on the issue, see Bruce Burson, Walter Kälin, Jane McAdam, and Sanjula Weerasinghe, “The Duty to Move People Out of Harm’s Way in the Context of Climate Change and Disasters” (2018) Refugee Survey Quarterly Vol. 37, 365 Ibid. pp. 379 - 407. The authors also state: “To date, no regional court 366 Planned Relocation Guidelines: A framework to undertake climate or international treaty-monitoring body has had the opportunity change related relocation (2018), available at: https://cop23.com.fj/wp- to examine the tension between the State’s duty to protect life, on content/uploads/2018/12/CC-PRG-BOOKLET-22-1.pdf The Planned the one hand, and the individual’s right to liberty of movement and Relocation Guidelines was developed under the guidance of the Ministry freedom to choose one’s residence (which also encompasses the of Economy of the Fijian Government with support from the Deutsche right to stay), on the other” see pp. 395-396 for further details. Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). 363 Ibid., p. 398. See also, the Sydney Declaration, Principle 9 and its 367 Permanent Mission of Fiji to the United Nations, World’s First commentary. –Ever Relocation Trust Fund for People Displaced by Climate 364 Planned Relocations, Disasters and Climate Change: Consolidating Change Launched by Fijian Prime Minister (25 September 2019) Good Practices, Preparing for the Future, Background Document, available at: https://www.un.int/fiji/news/world%E2%80%99s-first- UNHCR, Brookings Institution and Georgetown University %E2%80%93ever-relocation-trust-fund-people-displaced-climate- Consultation, Sanremo, Italy, 12–14 March 2014. change-launched-fijian-prime 56 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Internal and Cross-border Displacement cation with the UN Human Rights Committee, alleging that New Zealand had violated his right to life under the Large-scale internal displacement as a result of the International Covenant on Social and Political Rights adverse impacts of climate change is reported to be (ICCPR) by denying his asylum application and forcibly already occurring.368 Without planned responses, wide- returning him to Kiribati where he had claimed to face spread displacement across borders may also become risks to his life posed by sea level rise. In January 2020, inevitable. The relevant international framework ad- the UN Human Rights Committee disagreed that this dressing internal displacement is largely considered risk was ‘imminent’, but it expressly recognized the po- adequate at the normative level.369 Their implementa- tential risk of loss of life due to sea level rise.372 tion, however, can be strengthened at national level by incorporating relevant standards into legal and policy Selected Platforms for Future Action and instruments. The Office of the High Commissioner for Cooperation Human Rights (OHCHR) has recommended that do- mestic frameworks align with the UN Guiding Principles The UNFCCC Cancun Framework explicitly recogniz- on Internal Displacement—the prevailing normative es the issue in the context of the climate regime and framework—and States’ obligations to respect, protect, creates the possibility for it to be dealt with under the and fulfil related human rights.370 adaptation framework, thereby enabling adaptation fi- nancing to cover this issue.373 The UNFCCC Task Force Concerning cross-border displacement, however, gaps on Displacement, established under the Warsaw Inter- remain. The Nansen Initiative, a “State-led, bottom-up national Mechanism for Loss and Damage associated consultative process intended to identify effective prac- with Climate Change Impacts (WIM), has been set up tices,” has developed a “Protection Agenda.” This work specifically to enable greater cooperation among inter- has diagnosed a general lack of preparedness leading to national organizations and facilitate cooperative ap- “ad hoc responses” in many cases and it has highlighted proaches among relevant stakeholders to “avert, mini- priority areas for enhanced action.371 mize and address displacement related to the adverse As mentioned earlier, human rights law and the prin- impacts of climate change.”374 ciple of non-refoulement may provide some protection In 2013, the Nansen Initiative conducted important dis- in cases of cross-border displacement. In September cussions with experts, State representatives, and other 2015, Mr. Teitiota, a citizen of Kiribati, filed a communi- stakeholders to identify relevant gaps and opportuni- ties for further action in the context of the Pacific re- 368 Internal Displacement Monitoring Centre (IDMC), Pacific Response gion,375 and compiled a broad set of effective practices to Disaster Displacement, https://www.internal-displacement. and priority areas for further action.376 org/sites/default/files/brochure_prdd_final_260520_min_v2.pdf. See, also, World Bank report, Groundswell: Preparing for Internal Additionally, both the Global Compact for Migration and Climate Migration. The report acknowledges migration as “human face of climate change” and highlights that unless urgent action is the Global Compact on Refugees reflect political com- taken, over 140 million people will internally migrate by 2050 only mitments towards global governance of migration377 and in Sub-Saharan Africa, South Asia, and Latin America. 369 See, in general, Kälin and Schrepfer above. See also, McAdam, Burson, et al. (2016), at p. 29. 372 UN Human Rights Committee, Views Adopted by the Committee 370 OHCHR, Regional Office for the Pacific, “Protecting the Human under Article 5(4) of the Optional Protocol, concerning Rights of Internally Displaced Persons in Natural Disasters: Communication No. 2728/2016 (Teitiota v New Zealand), 7 January Challenges in the Pacific” (2011), available at: http://pacific.ohchr. 2020, CCPR/C/127/D/2728/2016. org/docs/IDP_report.pdf See also, Siobhán McInerney-Lankford, 373 UNFCCC Cancun Framework, at para 14(f). “Human Rights and Climate Change: Reflections on International 374 UNFCCC, Report of the Task Force on Displacement, September Legal Issues and Potential Policy Relevance” in Threatened Island 17, 2018, available at: https://unfccc.int/sites/default/files/ Nations: Legal Implications of Rising Seas and A Changing Climate resource/2018_TFD_report_17_Sep.pdf (Cambridge, 2013), eds. Michael B. Gerrard and Gregory E. Wannier. 375 The Nansen Initiative, “The Report from the Nansen Initiative At pp. 238-239. Pacific Regional Consultation, Human Mobility, Natural Disasters, 371 These areas include: “(1) collecting data and enhancing knowledge and Climate Change in the Pacific: Outcome Report”, Pacific on cross-border disaster-displacement; (2) enhancing the use Regional Consultation in Rarotonga, Cook Islands (21-24 May of humanitarian protection measures for cross-border disaster- 2013). displaced persons, including mechanisms for lasting solutions; and 376 See, in general, Platform on Disaster Displacement, available at: (3) strengthening the management of disaster displacement risk https://disasterdisplacement.org/ in the country of origin.” See, The Nansen Initiative, Agenda for the 377 For a comprehensive analysis, see, Walter Kälin, The 2018 Global Protection of Cross-Border Displaced Persons in the Context of Compacts on Refugees and Migration (2018) International Journal Disasters and Climate Change (December 2015). of Refugee Law, Vol. 30(4). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 57 provide a new capacity development mechanism for en- action on technology development and transfer.381 Par- hancing information sharing between countries as well as ties agree to strengthen their cooperation on enhancing technical support to governments in designing laws and action on adaptation, taking into account the Cancun policies addressing human mobility in the context of cli- Adaptation Framework, including with regard to: mate change. The Global Compact on Migration in partic- a) Sharing information, good practices, experiences ular, aims to “minimize the adverse drivers and structural and lessons learned, including, as appropriate, as factors that compel people to leave their country of ori- these relate to science, planning, policies and imple- gin” and urges States to develop adaptation and resilience mentation in relation to adaptation actions. strategies to sudden-onset and slow-onset natural disas- ters (explicitly referring to sea level rise), emphasizing that b) Strengthening institutional arrangements, including in situ adaptation is a priority.378 Where in situ adaptation those under the Convention that serve this Agree- is not feasible, it calls on States to “enhance availability ment, to support the synthesis of relevant informa- and flexibility of pathways for regular migration” and spe- tion and knowledge, and the provision of technical cifically highlights the need to “cooperate to identify, devel- support and guidance to Parties. op and strengthen solutions” for such migrants including c) Strengthening scientific knowledge on climate, through designing planned relocation and visa options.379 including research, systematic observation of the climate system and early warning systems, in a 7. How is the international manner that informs climate services and supports decision-making. community able to provide support for States that need to adapt to d) Assisting developing country Parties in identifying effective adaptation practices, adaptation needs, impacts from sea level rise? priorities, support provided and received for adapta- tion actions and efforts, and challenges and gaps, in a manner consistent with encouraging good practices. There is a myriad of mechanisms available for financial support and technical assistance in e) Improving the effectiveness and durability of designing and implementing adaptation measures, adaptation actions.382 including legal and policy strategies. These are also NAPs and NDCs, and other instruments, can help coun- set out in tabular form in Appendix II. tries communicate their national adaptation needs and priorities as well as their finance needs including existing sources of financing available that need to be comple- Increasing access to various financing options, fostering mented further.383 In that regard, identifying the relevant technical assistance and capacity-building support are financing channels, enhancing program and project de- key to ensuring that some of the adaptation measures velopment to access financing, and using instruments covered earlier are in fact feasible. This section will pro- such as NAPs and NDCs to reflect adaptation priorities vide a broader overview of existing mechanisms that will be important. can offer financial support and technical assistance in designing and implementing adaptation measures, in- 381 PA, Art. 7(13) and Art. 10(2). cluding legal, and policy strategies.380 382 PA, Art. 7(7). 383 Gallo et al. demonstrate the increasing emphasis on marine issues (70% The Paris Agreement mandates “continuous and en- of 161 NDCs refer to ocean and marine issues). Developing countries hanced international support” to be provided to devel- and LDCs (SIDS in particular) focus on marine climate impacts and oping country Parties for the implementation of their adaptation as their livelihood depend on the ocean and is substantially challenged by relevant climate impacts. The study suggests that adaptation efforts, including strengthening cooperative vulnerabilities associated with sea level rise (e.g., the population living in low-lying coastal areas) are particularly influential in the design 378 United Nations Global Compact for Safe, Orderly and Regular of relevant climate policies. For further details, see, Natalya D. Gallo, Migration: Intergovernmentally Negotiated and Agreed Outcome David G. Victor, and Lisa A. Levin, “Ocean Commitments under the (July 13, 2018), Objective 2, para 18(i). Paris Agreement” (2017), Nature Climate Change, Vol. 7. See also, 379 Global Compact on Migration, Objective 5, para 21(h). Dorothee Herr and Emily Landis, “Coastal blue carbon ecosystems: 380 For an insightful assessment of the role of developing and developed Opportunities for Nationally Determined Contributions” (2016) countries relating to climate finance under the UNFCCC regime, see available online at: https://www.nature.org/content/dam/tnc/nature/ also, Di Leva and Morita (2008), pp. 29-32. en/documents/BC_NDCs_FINAL.pdf 58 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES The provision of scaled-up financial resources Box 3. NDCs of Atoll Countries with ocean- should aim to achieve a balance between ad- related commitments. aptation and mitigation, taking into account country-driven strategies, and the priorities and Of the 128 NDCs submitted by coastal needs of developing country Parties, especially States, 107 included adaptation compo- those that are particularly vulnerable to the ad- nents.384 Of those 79 coastal countries high- verse effects of climate change and have signif- lighting climate vulnerabilities to coastal icant capacity constraints, such as the [LDCs] ecosystems and fisheries in their NDCs, 47 and [SIDS], considering the need for public and pledged to hybrid adaptation whereas 38 grant-based resources for adaptation.388 focused on “Nature-based Solutions” (for example, conservation of coastal and/or The Green Climate Fund (GCF) and the Global Envi- marine ecosystems) and 31 committed to ronment Facility (GEF), as well as the Least Developed engineered actions such as construction Countries Fund (LDCF) and the Special Climate Change of seawalls, levees, wells, and irrigation in- Fund (SCCF), administered by the GEF, were entrust- frastructure. The Marshall Islands’ NDC385 ed as operating entities under the dedicated financial highlight the need to design new policies and mechanism of the UNFCCC and are also mandated to plans for “constructing elevated settlements serve the Paris Agreement.389 In COP 24, Parties decided for future consolidation of the population” that the Adaptation Fund “shall” serve the Paris Agree- and stresses mangrove rehabilitation as an ment effective 1 January 2019.390 The Paris Agreement adaptation action with mitigation co-ben- calls on the institutions serving the Paris Agreement, efits. Kiribati’s NDC386 highlight actions in including the operating entities under the UNFCCC, to respect to the maritime and coastal sectors “aim to ensure efficient access to financial resources involving mangroves, coastal vegetation, through simplified approval procedures and enhanced and seagrass beds. The NDC also identifies readiness support for developing country Parties, in primary obstacles in implementing climate particular for the least developed countries and small action including lack of technical capacity, island developing States, in the context of their national reliable data for informing adaptation deci- climate strategies and plans (emphasis added).”391 sion-making and resources. The GEF 392 was established by the World Bank in 1991, to support the financing of “global environmental goods.”393 The three original “Implementing Agencies” Support through Climate Finance were United Nations Environment Programme, Unit- ed Nations Development Programme, and the World Under the Paris Agreement, developed country Parties Bank with four focal areas—Ozone Depletion, Climate should continue to take the lead in mobilizing climate Change, Biodiversity Conservation, and International finance that should represent “a progression beyond Waters. In 1994, the GEF was restructured to allow it to previous efforts:”387 become the financial mechanism for the UNFCCC and the Convention on Biological Diversity, and land degra- dation, and later chemicals and waste, were added as 384 Nathalie Seddon, Sandeep Sengupta, et al., “Nature-based Solutions in Nationally Determined Contributions: Synthesis and recommendations for enhancing climate ambition and action by 388 PA, Art. 9(4). 2020” IUCN and University of Oxford, available at: https://portals. 389 Decision 1/CP.21, at para 59. iucn.org/library/sites/library/files/documents/2019-030-En.pdf 390 Decision 13/CMA.1 and Decision 1/CMP.14 on “Matters relating to at p. 19. the Adaptation Fund” Docs No. FCCC/PA/CMA/2018/3/Add.2 and 385 The Republic of the Marshall Islands, “Nationally Determined FCCC/KP/CMP/2018/8/Add.1 respectively. Contribution” (submitted 22 November 2018) available at: 391 PA, Art. 9.9. https://www4.unfccc.int/sites/ndcstaging/PublishedDocuments/ 392 Global Environment Facility, available at: https://www.thegef.org/ Marshall%20Islands%20Second/20181122%20Marshall%20 393 The Instrument for the Establishment of the Restructured GEF, Islands%20NDC%20to%20UNFCCC%2022%20November%20 available at: https://www.thegef.org/documents/instrument-estab- 2018%20FINAL.pdf lishment-restructured-gef For history see David Freestone, “The Es- 386 Republic of Kiribati, “Intended Nationally Determined Contribution,” tablishment, Role and Evolution of the Global Environment Facility: UNFCCC (submitted 26 September 2015), available at: http:// Operationalizing Common but Differentiated Responsibility?” Liber www4.unfccc.int/submissions/INDC/Published%20Documents/ Amicorum for Thomas A. Mensah: Law of the Sea, Protection of the Kiribati/1/INDC_KIRIBATI.pdf Marine Environment and Settlement of Disputes. (Ndlaye and Wol- 387 PA, Art. 9(3). frum, eds.) Martinus Nijhoff, 2007, pp. 1077-1107. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 59 focal areas.394 Other financial intermediary funds oper- The Adaptation Fund402 was established by the 1997 ating under the GEF are the SCCF, LDCF, Capacity Build- Kyoto Protocol (Article 12), but operationalized at COP ing Initiative for Transparency, and Nagoya Protocol 13 in December 2007 in Bali, Indonesia. Since January Implementation Fund. The GEF supports various proj- 1st, 2019, the Adaptation Fund has been serving the ects relating to adaptation measures in the Pacific.395 Paris Agreement. The World Bank serves as trustee on Financial contributions from donors are replenished an interim basis. The Adaptation Fund supports ad- every four years. Under the GEF-7 replenishment peri- aptation projects by bridging the adaptation funding od (2018–22), the GEF has mobilized US$4.1 billion.396 gap and aims to bolster countries’ adaptive capacities However, much more is needed for global adaptation. through Direct Access modality, which is designed to There are varying estimates in respect to adaptation enable “National Implementing Entities”403 to directly costs and investment needs. The annual global cost of access adaptation funding and have ownership on ad- adaptation has been estimated at between US$28 bil- aptation action.404 Although designed to be funded by a lion and more than US$100 billion a year by 2030 and “share of the proceeds” from Clean Development Mech- US$70 billion to US$500 billion by 2050.397 anism transactions under the Kyoto Protocol405 it is also a donor fund and in 2019, the Adaptation Fund reached The SCCF was established in 2001 at UNFCCC COP 7 in close to US$90 million in new pledges. Marrakech to finance projects relating to, in particular, adaptation, technology transfer, and capacity build- The GCF406 was launched in 2010 during UNFCCC COP ing.398 The SCCF has a portfolio of more than US$350 16, in Cancun, Mexico, to serve as an operating entity million which has been providing support for about 85 of the Financial Mechanism of the UNFCCC (together projects at the global level.399 with the GEF) to provide funding for mitigation and ad- aptation action. The outcome of the Paris Agreement The LDCF, also established at COP 7, is designed specif- also highlighted the key role of the GCF for post-2020 ically for LDCs. The LDCF assists LDCs in preparing and framework. The World Bank serves as the trustee and implementing their National Adaptation Plans of Action an Accredited Entity of the GCF. The combined pledges (NAPAs) targeting primarily water, agriculture, disaster and contributions made to the GCF for its first replen- risk management, and infrastructure sectors among ishment (GCF-1), approved by the GCF Board on Novem- others.400 Moving forward, funding support for NAP pro- ber 14, 2019, US$9.87 billion.407 cesses through the SCCF is also contemplated.401 Moreover, the Climate Investment Funds (CIF) were cre- 394 It is now the financial mechanism also for 1994 UN Convention to ated in 2008 for six Multilateral Development Banks Combat Desertification, 2001 Stockholm Convention on Persistent including the Asian Development Bank, African Devel- Organic Pollutants, and the 2013 Minamata Convention on opment Bank, European Bank for Reconstruction and Mercury, and administers the Multilateral Fund for the Montreal Protocol. Development, Inter-American Development Bank, In- 395 Under the World Bank’s Pacific Resilience Program, GEF provides ternational Finance Corporation, and World Bank, to fill funding through SCCF among other funding mechanisms. See, an immediate financial gap. CIF consists of two funds, also Increasing Resilience to Climate Change and Natural Hazards Project (P112611) in Vanuatu and Kiribati Adaptation Program - namely, the Clean Technology Fund (CTF) and the Stra- Phase III Project (P112615) supported by the GEF. tegic Climate Fund (SCF). The Pilot Programme for Cli- 396 GEF Replenishment Cycles, available at: https://www.thegef.org/ mate Resilience (PPCR) is a targeted program developed sites/default/files/pictures/gef_replenishment_cycles_gef7.png 397 See, in general, Stephane Hallegatte et al., “The Economics of (and under the SCF. Regional Technical Support Mechanism, Obstacles to) Aligning Development and Climate Change Adaptation: A World Bank Group Contribution to the Global Commission on Adaptation” (2018), available online at www.gca.org 402 Adaptation Fund, available at: https://www.adaptation-fund.org/ 398 UNFCCC COP Decision 7/CP.7, Report of the Conference of the 403 For further details, see: https://www.adaptation-fund.org/apply- Parties on its Seventh Session, held at Marrakesh from 29 October funding/implementing-entities/national-implementing-entity/ to 10 November 2001, Funding under the Convention, UNFCCC Doc. 404 For details on “Direct Access” visit: https://www.adaptation-fund. FCCC/CP/2001/13/Add.1. org/about/direct-access/ 399 Special Climate Change Fund—SCCF, Global Environment Facility, 405 Kyoto Protocol, Art 12. Note that the Doha Amendments extended available at: https://www.thegef.org/topics/special-climate-change- it to the share of proceeds of Joint Implementation projects under fund-sccf Art. 6 of Kyoto. 400 Least Developed Countries Fund—LDCF, Global Environment Facility, 406 Green Climate Fund (GCF), available at: https://www.greenclimate. available at: https://www.thegef.org/topics/least-developed-coun- fund/ tries-fund-ldcf 407 GCF, “Status of Pledges and Contributions (First Replenishment: 401 SCCF, available at: https://www.thegef.org/topics/special-climate- GCF-1)” (July 2020), available at: https://www.greenclimate.fund/ change-fund-sccf sites/default/files/document/status-pledges-gcf1_2.pdf 60 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES as a registered network of pre-approved experts on local, national and regional level, in developing countries various climate-related topics, can be used to provide that are particularly vulnerable to the adverse effects advice on available finance opportunities and general of climate change.”410 Science confirms that actual loss technical assistance including in developing project and and damage is already occurring,411 but little progress program proposals, on the request of PICs.408 has been in developing a financial mechanism to sup- port the WIM.412 Loss and Damage Relevant World Bank Products and Services The continuous work of SIDS with the Association of and Other Support Modalities Small Island States (AOSIS) has been crucial in prompt- ing discussions of loss and damage within the UNFCCC The World Bank offers a range of financing options in- COP 19 establishing the Warsaw International Mech- cluding the Catastrophe Deferred Drawdown Option anism for Loss and Damage associated with Climate (Cat DDO), Contingent Emergency Response Compo- Change Impacts (WIM) and the Executive Committee nents (CERCs) in Investment Project Financing (IPF), (ExCom) of the WIM has led to significant change in the stand-alone investment projects, or Development Pol- discourse concerning loss and damage. Now included in icy Operations (DPOs) that are prepared in response the Paris Agreement through Article 8, the conversation to natural disasters, including under the IDA Crisis Re- is still in progress, but finance for loss and damage re- sponse Window (CRW), and disaster risk intermedia- mains a contentious issue. tion services and products.413 Climate change is one of the special themes for the IDA19 replenishment period Specifically, the areas of cooperation and facilitation to (2020–23) which has US$82 billion available.414 enhance understanding, action and support under Arti- cle 8 of the Paris Agreement may include: In addition to financing instruments, World Bank prod- ucts and services that can provide support for States in a) Early warning systems. addressing the impacts of sea level rise include Advisory b) Emergency preparedness. Services and Analytics (ASA). These are non-lending ac- c) Slow onset events. tivities that can support the design or implementation of relevant policies to adapt to the impacts of sea level rise, d) Events that may involve irreversible and permanent strengthen relevant institutions, and build capacity.415 loss and damage. e) Comprehensive risk assessment and management. 410 COP25, Decision 2/CMA.2, “Warsaw International Mechanism for f) Risk insurance facilities, climate risk pooling and Loss and Damage associated with Climate Change Impacts and its other insurance solutions. 2019 review” (advanced unedited version), available at: https://unfccc. int/sites/default/files/resource/cma2_auv_6_WIM.pdf para 43. g) Non-economic losses. 411 IPCC 1.5°C Special Report (2018); see also, Mechler, R., Singh, C., h) Resilience of communities, livelihoods and ecosystems. Ebi, K. et al., “Loss and Damage and limits to adaptation: recent IPCC insights and implications for climate science and policy” There have been continual calls from developing coun- (2020), Sustainability Science, Vol. 15, pp. 1245–1251. 412 COP 25 decision calls for the Executive Committee “to further tries to include loss and damage in mandate of the op- engage and strengthen its dialogue with the Standing Committee on erating entities of the financial mechanism and expand Finance by providing input in line with decision 2/CP.19, paragraph the institutional arrangements under the WIM to ensure 5(c)(ii), to the Standing Committee on Finance when, in accordance with its mandate, it provides information, recommendations and that developing countries would benefit from its work. draft guidance relating to the operating entities of the financial The Santiago Network for averting, minimizing, and ad- mechanisms under the Convention and the Paris Agreement, as dressing loss and damage associated with the adverse appropriate.” Available at https://unfccc.int/sites/default/files/ effects of climate change409 was created “to catalyze resource/cma2_auv_6_WIM.pdf para 37. 413 For a detailed treatment of these instruments, see, World Bank the technical assistance of relevant organizations […] LEG Climate Change Thematic Working Group Learning Note for the implementation of relevant approaches at the “Legal Aspects of World Bank Financing for Recovery from Natural Disasters and Health-Related Emergencies” (March 2020). 414 IDA19 Replenishment, available at: https://ida.worldbank.org/ 408 Regional Technical Support Mechanism (RTSM), available at: replenishments/ida19 https://rtsm.pacificclimatechange.net/ 415 This report is prepared as part of the “Building Resilience in Pacific 409 UNFCCC, About the Santiago Network, available at: https:// Atoll Island Countries Study” which is built on an initial assessment unfccc.int/topics/adaptation-and-resilience/resources/santiago- under the Programmatic Advisory Services & Analytics (ASA) on network/about-the-santiago-network Building Climate and Disaster Resilience in the Pacific (P152037). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 61 Another significant actor in the field of disaster risk man- Finally, the NDC Partnership is a global initiative made agement is the Global Facility for Disaster Reduction and up of governments and international institutions, in- Recovery (GFDRR), a grant-funding mechanism, man- cluding the World Bank Group, hosted by the World aged by the World Bank. This is a global partnership pro- Resources Institute (WRI) and the UNFCCC. It aims to viding support to developing countries in reducing their provide technical and financial support for countries to vulnerability to climate change and disaster risks through achieve their NDCs. It was launched during the UNFC- funding and technical assistance.416 GFDRR builds its CC COP 22 in 2016. The NDC Support Facility (NDC-SF) support on the priority areas identified by the Sendai is a multi-donor trust fund established to contribute Framework for Disaster Risk Reduction 2015–30.417 to the implementation of NDCs. It works with the NDC Partnership to mobilize financial and technical support Regional catastrophe disaster risk pools can also con- to help countries meet their NDCs.421 The Pacific NDC stitute an effective approach to disaster risk man- Hub,422 as part of the NDC Partnership, is designed to agement and address some of the impacts of climate support countries in the region with implementing and change. The Pacific Catastrophe Risk Assessment and enhancing their NDCs. It aims to provide technical as- Financing Initiative (PCRAFI) aims to support PICs sistance, support member countries for NDC implemen- with disaster risk modeling and assessment tools418 tation, enhancement, and financing aspects. and provide a forum for PICs to discuss integrated fi- nancial solutions for disaster risk management.419 The Adaptation and resilience are important components of World Bank Treasury has acted as an intermediary for future Pacific NDCs; these mechanisms have consider- risk transfer contracts for a number of PICs to secure able potential to develop national capacities. Countries competitive rates from the international reinsurance can consider adding a component in their NDC to reflect market. Under PCRAFI, the Pacific Catastrophe Risk In- their financing needs to meet that NDC. Inclusion of fi- surance Company (PCRIC) was established as a regional nance gaps in NDCs is voluntary but can be an effective insurance program to support member countries with tool. Countries can also create friendly environments post disaster funding.420 for investments through various policy actions.423 416 GFDRR currently has more than 400 partnerships including community-level actors, civil society, academia, and international organizations. For further details on the GFDRR’s funding structure and partnerships, see: https://www.gfdrr.org/en/funding- structure-partnerships 417 Namely Priority 1: Understanding disaster risk, Priority 2: Strengthening disaster risk governance to manage disaster 421 The NDC Support Facility, available at: https://www.worldbank. risk, Priority 3: Investing in disaster risk reduction for resilience, org/en/programs/ndc-support-facility and Priority 4: Enhancing disaster preparedness for effective 422 The Regional Pacific NDC Hub is a collaborative effort by PICs and response and to “Build Back Better” in recovery, rehabilitation and the Deutsche Gesellschaft für Internationale Zusammenarbiet reconstruction. (GIZ) GmbH, the Global Green Growth Institute (GGGI), the NDC 418 Strengthening the Pacific Risk Information System (PACRIS), a Partnership Support Unit (NDCP SU), the Pacific Community database containing detailed, country-specific information on (SPC), and the Secretariat for the Pacific Regional Environment assets, population, hazards, and risks. Programme (SPREP), with initial funding of 2.1 million Euros from 419 The countries are the Republic of Marshall Islands, Samoa, Solomon the UK, Australia, and Germany. For further information, see Islands, the Kingdom of Tonga, Republic of Vanuatu, and the Cook https://ndcpartnership.org/news/pacific-nationally-determined- Islands. contributions-ndc-hub-fully-operational-next-year. 420 Support is provided through direct premium subsidies from the 423 Fransen, Taryn and Ichiro Sato, et al. 2019. “Enhancing NDCs: A Government of Japan, Grants, national budgets, IDA credits. Guide to Strengthening National Climate Plans by 2020.” Prepared PCRIC offers modeled-loss-type parametric products covering by the World Resources Institute and United Nations Development earthquake, tropical cyclone, and extreme rainfall. Programme, available at: https://www.wri.org/ndcs 62 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Appendix I Key Legal and Policy Options Pertaining to Human Mobility in the Context of Climate Change This table sets out the general considerations of law and policy related to each legal and policy option below as well as the actions and resources required to implement such options and challenges. This is not a comprehensive treatment of the issue and should be read in the light of Part II(4) and Part III(6) of this report as well as various resources listed below throughout the table. There may be various other frameworks and considerations depending on the regional and country context. SIDS and coastal States will further benefit from exploring a wider range of opportunities beyond sources listed below. Challenges and/or barriers (if any) to implement such option Legal and policy Generally applicable legal and Actions and resources required (at the local and international options policy frameworks to implement such option levels) In situ 1. The UNFCCC international 1. UNFCCC international climate 1. Heightened impacts of sea adaptation climate law regime remains law regime mandates continuing level rise may exacerbate existing where this is important in guiding climate mitigation and adaptation vulnerabilities, which in turn can feasible and change mitigation and efforts. NDCs and NAPs can be increase the risk of displacement. desirable adaptation actions. Key used to reflect countries’ specific National capacities may need instruments under this needs (including finance) and enhancing. The costs of in framework are described in Part vulnerabilities. situ adaptation may become II(2) including both binding legal 2. At domestic level, conducting prohibitive as the risks and instruments (e.g., the UNFCCC risk and vulnerability impacts intensify. and Paris Agreement) as well as assessments and building 2. Accessing technical and various significant non-binding national strategies based financial support is crucial instruments such as the Cancún on these assessments is an for countries which are Adaptation Framework. important way to address disproportionately affected by 2. Disaster law and policy country-specific considerations. the impacts of sea level rise. frameworks also constitute Such strategies, in compliance 3. International cooperation can an important basis to increase with human rights law, play an important role, although the resilience of communities can improve disaster risk the scope of duty to cooperate affected by sea level rise. The management while also under international law still Sendai Framework on Disaster addressing specific vulnerabilities requires further clarification. Risk Reduction 2015–2030— and needs of affected though non-binding—provides populations. valuable guidance at the 3. Technical, institutional, and international level. financial capacity will be needed 3. States’ obligations under to design and implement relevant human rights law also guide policies and actions. International relevant measures addressing sea cooperation will be key in level rise. implementing relevant measures. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 63 Challenges and/or barriers (if any) to implement such option Legal and policy Generally applicable legal and Actions and resources required (at the local and international options policy frameworks to implement such option levels) Migration as 1. Human rights law provides 1. The Climate Change and 1. Legal and policy gaps combined adaptation certain protections though Migration Issues in the Pacific with cultural and political these standards need to be Report (2014), provide a sensitivities around the issue of complemented with immigration comprehensive treatment of migration increase challenges frameworks addressing primarily the issue by presenting specific to implement migration as the issues of admission, residence considerations relating to the adaptation as a policy option. permit, and access to labor Pacific context, gaps, and 2. Funding gaps also remain a market. recommended legal and policy practical barrier. steps.424 2. Existing frameworks at regional level may be used as 2. The Report stresses the need entry points (see, e.g., existing for national policy development arrangements between certain on migration in the context PICs and New Zealand, USA, and of climate change as well as Australia). These frameworks further policy dialogue among are not designed to address the PICs, and between PICs and impacts of climate change per other host countries/potential se, therefore, further review and destinations.425 strengthening of these existing 3. To inform further legal and frameworks may be needed in policy development, it urges response to the complexities States to focus on the integration posed by migration in the context of climate change and migration of climate change. policy, the costs of climate change-related migration on sending and receiving communities, the gendered implications of migration, and the role of remittances in adaptive capacity.426 4. Furthermore, to complement policy developments enabling access to labor market, it is also important to build the capacity of migrants to compete in the labor markets of host communities. 424 Campbell, John and Olivia Warrick. 2014. “Climate Change and Migration Issues in the Pacific.” Produced as part of the Pacific Climate Change and Migration (PCCM) Project entitled, “Enhancing the Capacity of Pacific Island Countries to Manage the Impacts of Climate Change on Migration” supported by the European Union and implemented by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), the International Labour Organization (ILO) and the United Nations Development Programme (UNDP). 425 Ibid. 426 Ibid. 64 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Challenges and/or barriers (if any) to implement such option Legal and policy Generally applicable legal and Actions and resources required (at the local and international options policy frameworks to implement such option levels) Planned There is no international 1. Despite the considerable legal 1. Lack of legal and policy relocation binding instrument specifically and policy gap relating to planned frameworks may impede effective addressing the issue of planned relocation in the context of climate implementation of planned relocation, but relevant applicable change, various principles relating relocation processes. standards can be found in to the practice of development- 2. In addition to legal, policy, the UN Guiding Principles on induced displacement and and institutional gaps, it is Internal Displacement, the resettlement can be applicable in important to consider significant Pinheiro Principles on Housing addition to lessons learned from contextual complexities including and Property Restitution,427 and other practices. implications on livelihoods, various other initiatives.428 2. Practical tools are available identity, self-determination, and in sources such as the Report legal status. on “Planned Relocation, 3. Accessing financing may also Disasters and Climate Change: be a significant challenge in Consolidating Good Practices and implementing this option. Preparing for the Future.”429 3. For States considering this option, it will be important to plan at legal, policy, and institutional levels. Lessons learned and other practical tools may be useful in guiding States in adopting relevant legal and policy frameworks at national level. Providing 1. Internal displacement induced 1. The international frameworks Challenges relating to the protection and by climate impacts is already addressing internal displacement implementation of human rights assistance in occurring and is projected to are generally adequate, but obligations at the domestic situations of continue. their implementation can be level as well as limited access to internal 2. Various legal and policy strengthened at national level by technical and financial support displacement frameworks provide guidance in incorporating relevant standards may impair protection of IDPs. into legal and policy instruments. addressing internal displacement. UN Guiding Principles on Internal 2. Strengthening institutional Displacement address the needs frameworks would also and rights of IDPs in all phases of improve countries’ capacity displacement. to provide effective protection and assistance in situations of 3. States’ human rights internal displacement. obligations are also important. 4. Other instruments including those addressing disaster relief will also be relevant. 427 UN Sub-Commission on the Promotion and Protection of Human Rights, Housing and property restitution in the context of the return of refugees and internally displaced persons Progress report of the Special Rapporteur, Paulo Sérgio Pinheiro (8 June 2005) UN Doc E/CN.4/ Sub.2/2004/22/Add.1. 428 See, for instance, the Peninsula Principles on Climate Displacement within States (2013) and Brookings/Georgetown University/UNHCR, Guidance on Protecting People from Disasters and Environmental Change through Planned Relocation (7 October 2015). 429 “Planned Relocation, Disasters and Climate Change: Consolidating Good Practices and Preparing for the Future” (2014) prepared in collaboration with the Brookings Institution, the Institute for the Study of International Migration (ISIM) at Georgetown University and UNHCR through multiple expert meetings. The first of these meetings was held in Sanremo, Italy, in March 2014. The report of that meeting is available at: http://www.unhcr.org/54082cc69.pdf. The second meeting was held in Washington, DC, in February 2015. The third meeting was held in Bellagio, Italy, in May 2015. Specific guidance stemming from discussions at each of these meetings on undertaking planned relocation in the context of disasters and environmental change, including the effects of climate change has been developed and is available at: http://www. brookings.edu/research/papers/2015/10/07-planned-relocation-guidance. LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 65 Challenges and/or barriers (if any) to implement such option Legal and policy Generally applicable legal and Actions and resources required (at the local and international options policy frameworks to implement such option levels) Providing 1. Human rights law and refugee 1. The Nansen Initiative’s 1. Practical, financial and legal protection and law (where applicable) can offer Protection Agenda provides a gaps may need to be addressed. assistance in protection in situations of cross- valuable, non-binding, roadmap 2. The lack of an international situations of border displacement, but there by highlighting gaps and good institution with a clear mandate cross-border are major legal gaps. Refugee law practices. to protect cross-border displaced displacement provides protection to persons 2. According to the Protection persons in the context of climate who fall under the legal definition Agenda, priority areas for further change and disasters undermines of a “refugee.” Nonetheless, in action include: (i) collecting concerted efforts.432 Identifying certain cases, international data and enhancing knowledge potential forums (such as the refugee law can still be applicable on cross-border disaster- Pacific Islands Forum in the (see, Part II[4]). displacement, (ii) enhancing the context of the Pacific region) is 2. The law on statelessness use of humanitarian protection important to address this gap. offers limited protection but the measures for cross-border 3. Funding gaps concerning definition of a stateless person is disaster-displaced persons, cross-border displacement may narrow and relevant instruments including mechanisms for lasting also hamper effective action. are not widely ratified (i.e., solutions, and (iii) strengthening To ensure access to funding, the Convention relating to the the management of disaster countries should include human Status of Stateless Persons and displacement risk in the country mobility considerations into Convention on the Reduction of of origin.430 climate change adaptation, Statelessness). 3. Effective management of disaster risk reduction, and 3. Human rights law offers certain these priority areas depends on development initiatives and protection though not without coordinated action at all levels processes. gaps and inherent implementation including through international challenges. and regional platforms as well as 4. Critical issues including coordination at the country level admission, access to basic through a multisectoral approach services, and return are not and with meaningful participation adequately addressed under these of all stakeholders.431 frameworks. 430 See, The Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of Disasters and Climate Change (December 2015), Volume I, available at: https://nanseninitiative.org/wp-content/uploads/2015/02/PROTECTION-AGENDA-VOLUME-1.pdf 431 Ibid. at p. 44. 432 Ibid. at p. 18. 66 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Appendix II Selected Funds, Financing and Other Options Available to SIDS The funds, financing, and other options available to SIDS and coastal states listed below represent a fraction of available options. In addition to climate funds—relevant World Bank modalities, initiatives from various MDBs and bi-lateral aid agencies provide financing and technical support for projects and programs addressing climate action, with an increasing focus on adaptation.433 SIDS and coastal States will further benefit from exploring a wider range of opportunities beyond sources listed below. Types of projects that can be General requirements to qualify Selected funds/ funded/ financed or provided for funding/ financing, technical financing/ other with technical or other types of Fund/grant size, or type of assistance or other types of options available assistance technical or other assistance assistance Global The GEF provides funding for Under the GEF-7 replenishment Country eligibility for GEF Environment projects or programs that intend period (2018-2022), the GEF has funding can be satisfied through Facility (GEF) “to meet the objectives of the mobilized US$4.1 billion. (i) ratification of the conventions international environmental the GEF serves and conformity conventions and agreements” with the eligibility criteria which include the UNFCCC. The decided by the COP of each GEF funding can be accessed convention, or (ii) eligibility to through four modalities including receive World Bank financing full-sized projects, medium-sized or to receive UNDP technical projects, enabling activities assistance through its target for and programmatic approaches. resource assignments. In addition The GEF supports countries in to the country eligibility criteria, their mitigation and adaptation the project must be driven by efforts. See also GEF Policy the country, be consistent with and Program Cycle Policy for national priorities that support additional details. sustainable development, and be aligned with GEF priority areas including biodiversity, mitigation, land degradation, international waters and chemicals and waste (for more details, see Annex A of the GEF-7 Programming Directions Documents [3 April 2018]). The public must be involved in project design and implementation (See, Policy on Public Involvement in GEF- Financed Projects). See for instance, UNFCCC, Bilateral and Multilateral Funding, https://cop23.unfccc.int/topics/climate-finance/resources/multilateral-and- 433 bilateral-funding-sources LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 67 Types of projects that can be General requirements to qualify Selected funds/ funded/ financed or provided for funding/ financing, technical financing/ other with technical or other types of Fund/grant size, or type of assistance or other types of options available assistance technical or other assistance assistance Special Climate The SCCF primarily funds SCCF has a portfolio of more All developing country Parties Change Fund adaptation. It also funds than US$350 million. to the UNFCCC are eligible (SCCF) technology transfer, mitigation in under the SCCF. A concept for selected sectors, and economic a project must be submitted to diversification. the GEF Secretariat through one of its Implementing Agencies434 with a letter of endorsement from the country’s appointed GEF Operational Focal Point or government representative. Least Developed The LDCF helps countries Available funding can be LDCs are eligible under the LDCF. Countries Fund prepare and implement National accessed here. A concept for a project must be (LDCF) Adaptation Programs of Action submitted to the GEF Secretariat (NAPAs). Any sector identified as through one of its Implementing a priority area under the NAPA Agencies with a letter of is relevant for the LDCF (see, in endorsement from the country’s general). appointed GEF Operational Focal Point or government representative. Adaptation Fund There are no prescribed The Adaptation Fund reached Multilateral, regional, and sectors or approaches but nearly US$90 million in new national organizations can the Adaptation Fund finances pledges. apply for accreditation as concrete adaptation projects and implementing entities by the programs in developing countries Adaptation Fund Board. Once that are particularly vulnerable an organization has received to the adverse effects of climate accreditation, it can submit change. project proposals for approval by the Board. Project and program proposals undergo either a one- step or a two-step approval process. 434 See, United Nations Development Programme, United Nations Environment Programme, World Bank, African Development Bank, Asian Development Bank, European Bank for Reconstruction and Development, Inter-American Development Bank, International Fund for Agricultural Development, United Nations Food and Agricultural Organization, United Nations Industrial Development Organization, World Wildlife Fund, Inc., Conservation International, International Union for Conservation of Nature, and Development Bank of Southern Africa. 68 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Types of projects that can be General requirements to qualify Selected funds/ funded/ financed or provided for funding/ financing, technical financing/ other with technical or other types of Fund/grant size, or type of assistance or other types of options available assistance technical or other assistance assistance Green Climate The GCF provides funding for The combined pledges and The GCF works through a diverse Fund (GCF) both mitigation and adaptation contributions made to the GCF range of partners. Recipient action, technology development for its first replenishment (GCF- countries have direct access and transfer (including carbon 1), approved by the GCF Board to funding through accredited capture and storage), and on November 14, 2019, US$9.87 national and sub-national capacity building. billion. implementing entities and intermediaries (through rigorous fiduciary requirements to become accredited). Alternatively, countries can access funding through accredited international entities, such as MDBs, UN agencies, and regional organizations. The Climate The CIF consists of two funds, Available funding can be Countries can access the PPCR Investment the Clean Technology Fund (CTF) accessed here. through the development Funds (CIF) and the Strategic Climate Fund banks working in their country and the Pilot (SCF). The PPCR is a targeted by providing an expression of Programme program developed under the interest. Countries are selected for Climate SCF. Regional Technical Support by a PPCR expert group based Resilience (PPCR) Mechanism, as a registered on certain criteria (including network of pre-approved experts transparency and vulnerability, on various climate-related topics, country distribution, can be used to provide advice on preparedness, and types of available finance opportunities hazards). and general technical assistance including in developing project and program proposals, on the request of PICs. Relevant World The World Bank offers a range Available funding depends on the Eligibility criteria depend on the Bank products of financing options including relevant products, services, and relevant products, services, and and services and the Catastrophe Deferred support modalities. support modalities. other support Drawdown Option (Cat DDO), modalities Contingent Emergency Response Components (CERCs) in Investment Project Financing (IPF), stand-alone investment projects, or Development Policy Operations (DPOs) that are prepared in response to natural disasters, including under the IDA Crisis Response Window (CRW), and disaster risk intermediation services and products.435 Climate change is one of the special themes for the IDA19 replenishment period (2020–23) which has US$82 billion available. For a detailed treatment of these instruments, see, World Bank LEG Climate Change Thematic Working Group Learning Note “Legal Aspects of 435 World Bank Financing for Recovery from Natural Disasters and Health-Related Emergencies” (March 2020). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 69 Types of projects that can be General requirements to qualify Selected funds/ funded/ financed or provided for funding/ financing, technical financing/ other with technical or other types of Fund/grant size, or type of assistance or other types of options available assistance technical or other assistance assistance Regional The Pacific Catastrophe Risk Initial capitalization provided Pacific Catastrophe Risk catastrophe Assessment and Financing to PCRIC from donor partners Insurance Company (PCRIC) disaster risk Initiative (PCRAFI) aims to through the InsuResilience Global offers modeled-loss-type pools - Pacific provide the PICs with disaster Partnership and PCRAFI Multi- parametric products. The PCRIC risk modeling and assessment Donor Trust Fund, administered payouts are usually made within tools and financial solutions for by the World Bank. Source of 10 days, providing member the reduction of their financial premia include direct premium countries with an immediate but vulnerability to natural disasters subsidies from the Government limited cash injection following and to climate change. of Japan, Grants, national an eligible hazard. Policy triggers budgets, IDA credits. are based on modeled losses, rather than on-the-ground loss assessments. Risks covered include earthquake, tropical cyclone, and extreme rainfall. Insured members are the Cook Islands, the Marshall Islands, Samoa, Tonga, Vanuatu Other eligible members including Fiji, Kiribati, Federated States of Micronesia, Nauru, Niue, Palau, Papua New Guinea, Solomon Islands, Timor Leste, and Tuvalu. NDC Partnership The NDC Partnership provides Analytics and knowledge sharing, & NDC Support technical and financial support capacity-building, and cross- Facility for countries to achieve their sectoral coordination NDCs. The NDC Support Facility (NDC-SF) is a multi-donor trust fund established to contribute to the implementation of NDCs. It works with the NDC Partnership to mobilize financial and technical support to help countries meet their NDCs. Global Climate The GCCA is funded by the In the second phase (2014–20), LDCs and SIDS send an official Change European Union and provides the GCCA received a total of EUR expression of interest to the Alliance (GCCA) support for five priority areas 420 million. European Union (EU) delegation including climate change and in their home country. The EU poverty reduction, adaptation, Delegation assesses eligibility deforestation, and disaster risk based on the availability of funds reduction. and selection criteria for GCCA funding (including vulnerability to climate change, in particular the risks related to floods, droughts, storms, and sea level rise). 70 LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES Appendix III Selected Work of the World Bank in the Pacific Region This legal study is part of the wider work of the World Tuvalu through the Atoll Adaptation Dialogue Mecha- Bank in the Pacific Region. The umbrella framework nism. The Study stresses that short- to medium-term guiding the World Bank Group (WBG) engagement in adaptation options (including construction of seawalls, the Pacific is the Regional Partnership Framework for and nature-based coastal engineering options) will not the Pacific (FY2017–21).436 The Framework outlines the suffice in addressing the escalating impacts of sea lev- WBG strategic program for Kiribati, the Republic of the el rise and climate change. Consequently, it focuses on Marshall Islands, the Federated States of Micronesia, transformational long-term options such as land eleva- the Republic of Nauru, the Republic of Palau, the Inde- tion and/or creation as well as relocation of populations pendent State of Samoa, the Kingdom of Tonga, Tuva- and critical infrastructure, among other interventions. lu, and Vanuatu. The Framework focuses on the main The Study primarily consists of two phases. Phase I in- pillars of action including the use of International De- cludes a series of Technical Notes aiming to identify and velopment Association (IDA) source allocations in fi- evaluate a full range of possible options for atoll islands, nancing larger projects,437 building on the results of the implementation barriers, and opportunities for enabling systematic country diagnostics (SCDs) in the region as long-term adaptation resilience with specific focus on well as other recent analytical work in addressing par- the RMI.440 Phase II is built on the findings of Phase I ticular risks that the Pacific Island Countries (PICs) are in exploring the implications of alternative adaptation currently facing, and addressing the drivers of fragility options while also considering investment needs and in the Pacific438 to achieve sustainable development.439 relevant costs associated with these options. Building Resilience in Pacific Atoll Island The Building Resilience in Pacific Atoll Island Countries Countries Study Study is based on an initial assessment, which is ongoing under the Programmatic Advisory Services & Analytics In particular, this legal study forms a part of the World (ASA) on Building Climate and Disaster Resilience in Bank’s Building Resilience in Pacific Atoll Island Coun- the Pacific (P152037). This ASA aims to boost the tries Study, which aims to strengthen the capacity of capacity of PICs under the Pacific Resilience Program selected Pacific Atoll Island countries to cope with the (PREP) and strengthen their climate and disaster long term (100 year+) adverse impacts of climate change resilience by “improving early warning and preparedness, and boost their resilience. Its goal is to contribute to mainstreaming disaster and climate resilience in the National Adaptation Planning Process currently in spatial planning and sector investments and improving progress for the Republic of the Marshall Islands (RMI) disaster risk and climate financing mechanisms.”441 In and also inform adaptation options for Kiribati and addition to the activities under PREP, the ASA aims to support the Vanuatu Infrastructure Reconstruction and 436 World Bank, Regional Partnership Framework for the Pacific (FY2017-2021), available at: http://documents1.worldbank.org/ Improvement Project (P156505)442 and provide general curated/en/137341508303097110/pdf/120479-WP-P156647- assistance to the PICs. The World Bank has already been PUBLIC-SydneyRPFFA.pdf involved in similar engagements with Samoa, Tonga, 437 Nauru and Palau are IBRD countries. Modalities for engagement with these countries are also contemplated under the Regional Vanuatu, Solomon Islands, Fiji, and Kiribati. Previously, Partnership Framework. 438 The issues highlighted in particular include those related to 440 Technical Notes include “Technical Note on Underpinning Long- institutional capacity, growth and urbanization, climate change, Term Adaptation Options;” “Technical Note on Land Tenure and natural disasters, and gender. Management;,” “Technical Note on Human Settlement Patters 439 Focus areas include (i) fully exploiting the available economic in Marshal Islands,” and finally “Background Note on Knowledge opportunities, (ii) enhancing access to employment opportunities, Attitudes and Practices as they relate to flood risk management.” (iii) protecting incomes and livelihoods (including strengthening 441 Concept Note, Building Climate and Disaster Resilience in the preparedness and resilience to natural disasters and climate Pacific (P152037). change), and (iv) strengthening the enablers of growth and 442 Vanuatu Infrastructure Reconstruction and Improvement Project opportunities (macro-economic management, infrastructure and (P156505) aims to reconstruct and improve school infrastructure addressing knowledge gaps). impacted by Tropical Cyclone Pam (among other components). LEGAL DIMENSIONS OF SEA LEVEL RISE: PACIFIC PERSPECTIVES / 71 the World Bank also supported the Government of Fiji in development, labor mobility, tourism, and fisheries.444 its climate vulnerability assessment.443 The Report aims to inform policy making and provide recommendations for selected sectors. In the context of Pacific Possible low-lying atoll countries, the Report identifies targeted measures such as special labor mobility schemes and The Pacific Possible Report, launched in 2017, is a climate change funding. The Report recommends comprehensive document focusing on possible options careful consideration of adaptation action in accordance for PICs by 2040 and identifies challenges that require with the local contexts and highlights that there will urgent action. Seven key themes that Report explores likely be a compromise between “hard protection include climate and disaster resilience, deep-sea mining, options” (including sea walls, building retrofitting, and health and non-communicable diseases, financing for desalination plants that are more expensive due to the cost of importing materials) and “softer options” Main areas for future action were identified as follows: (i) to 443 (including early warning systems and the conservation ensure serviced land and housing in safe areas, (ii) to strengthen of mangroves and wetlands). In that regard, trade-offs infrastructure to help to meet the needs of the Fiji economy and and actions with co-benefits in different sectors need to population, (iii) to provide support for agriculture and fisheries development that is smart for climate, the environment, and the be identified.445 economy, now and for the future, (iv) conservation policies that can protect assets and reduce adaptation costs, and (v) to build 444 Pacific Possible: Long-term economic opportunities and challenges socioeconomic resilience, take care of the poor, and keep economic for Pacific Island Countries, available at: http://documents. growth inclusive. Appendix I of the assessment lists relevant worldbank.org/curated/en/168951503668157320/Pacific- actions by sectors including water, energy, transportation, Possible-long-term-economic-opportunities-and-challenges-for- hazard management, housing and land use, health and education, Pacific-Island-Countries environment, agriculture, fisheries, and social protection. 445 Pacific Possible, at p. 90.