I recently completed a review of “Disappearing Island States in International Law” by Jenny Grote Stoutenburg (Brill Nijhoff, 2015). The book explores the readiness of international law to deal with the loss of landmass of island states as a result of climate change. It is a fascinating read in its own right, as it explores an issue that will seriously challenge the international community in the years ahead.
It also an important reminder that there are many areas of law, both domestic and international, that were developed on the assumption of a stable climate, an assumption that no longer holds true. The book therefore offers inspiration for new areas of research for legal scholars in many fields of law. The following is a brief overview of the book and its key findings.
The December 2015 Paris Climate Agreement has introduced some optimism that the global community can avoid the worst impacts of climate change for the first time in over a decade. However, time is short, and even under the most optimistic scenarios, it is difficult to see how the dire impacts predicted for low lying small island states can be avoided. Many have started to feel the impacts already.
The book is structured in three Parts. Part 1 sets the political and scientific context for the legal issues explored in the remainder of the book. It starts with a brief overview of the development history of small island states, and the treatment of small island states in international law. This is followed with a summary of the role of small island states in the climate negotiations. An overview of the impacts of climate change on island states is provided, with a focus on sea level rise and the resulting risk of island abandonment. Finally, Part 1 offers a summary of the response to climate change under the United Framework Convention on Climate Change and its Kyoto Protocol.
The focus of the remainder of the book is on two interrelated issues. Part 2 of the book considers what happens to maritime boundaries and maritime entitlements as island states lose landmass due to sea level rise. Part 3 of the book then considers what happens to the status of an island state in international law as it gradually loses its landmass, and at what point it might lose its statehood.
Each topic is covered by first considering how island states would be treated under international law as it currently stands. The book then turns to possible solutions for each under different circumstances, with a focus on proposals for pragmatic changes to international law to allow for equitable treatment of small island states.
For each of the two basic questions, the book considers a broad range of circumstances, such as islands gradually becoming uninhabitable due to the cost or futility of fortification, islands losing landmass and maritime zones, the potential of islands turning to “rocks” or “low tide elevations”, islands being turned into artificial islands in response, islands being depopulated in response, island states negotiating for territory elsewhere in response, island states merging with other states, and island states being governed from governments in exile.
The book does raise a few other issues related to the threat of sea level rise to island states. For example, there is reference in various sections of the book to the issue of climate refugees, but the challenges they pose to international refugee law are not addressed in any detail. The focus throughout is on loss of maritime and land territory and the implications for the statehood of island states.
Part 2 offers a thorough and dispassionate coverage of the law as it stands with respect to maritime zones and the continental shelf of island states, and how they will be affected by loss of landmass. The book hones in on the problem of ambulatory baselines, and the effect on territorial sea and EEZ in particular. The author then explores options for “final and binding” and “permanent” fixing of outer limit of continental shelf under Article 76 of UNCLOS, and the potential for this to offer protection for island states facing loss of landmass.
The conclusion reached is that ambulatory baselines are at the heart of the problem for island states facing loss of landmass from sea level rise. The author first considers the effect of maritime boundaries settled through agreements between states and through judicial pronouncements on the ambulatory baseline problem, and the effect of loss of statehood on the effect of such agreements or judicial pronouncements on maritime boundaries, and concludes that such boundaries offer some protection.
Part 2 then offers a detailed consideration of pragmatic solutions, largely centered around the idea of stable maritime zones and the proposal that deterritorialized island states be allowed to continue to exercise sovereignty and control over their maritime zones. The focus then shifts to implementation of the proposed solution. The author considers three mechanisms for implementing stable maritime zones. They are customary law options, the option of amending the UN Convention on the Law of the Sea (UNCLOS), and the possibility an UNCLOS implementation agreement, based on extension of the 76(9) approach for continental shelf claims to the territorial sea and the exclusive economic zone. Advantages and limitations of each option are explored, considering both practical and conceptual challenges. The implementation agreement is favoured for practical reasons. Other steps are explored as possible complements, including a UN General Assembly resolution.
Part 3 of the book again starts by offering a very thorough and dispassionate coverage of the law as it stands. It explores the legal threshold for an island state losing statehood, and then considers the key elements of statehood in some detail. With respect to the permanent population requirement, the author concludes that the presence of caretakers on the island would likely a minimum threshold. With respect to the defined territory requirement, a key observation is that even if maritime zones are preserved as explored in Part 2, these would not meet the defined territory requirement, as it is based on land territory. With respect to government, the issue of in situ versus in exile government is highlighted.
The author concludes that loss of statehood is a real risk under current international law rules, one that may materialize under the more extreme examples, such as island turning into “low tide elevation” with no in situ population or government. The problem, however, will arise incrementally, and there are questions surrounding the competence to declare loss of statehood.
Part 3 includes an assessment of the effect of key peremptory norms of jus cogens on the statehood issue, such as right to self determination, the right to permanent sovereignty over natural resources, fundamental human rights, fundamental right to “state survival”, and prohibition of massive pollution of the atmosphere. The author explores whether these principles might obligate states to continue to recognize a deterritorialized state.
Part 3 concludes with a detailed consideration of pragmatic solutions and implications of loss of statehood. Having concluded that there is no clear duty for continued recognition of a deterritorialized island state, the book considers avenues for international law to facilitate the continued recognition of statehood out of a sense of international justice and solidarity. Deterritorialized statehood is explored as a possible response. Finally, some implications of loss of statehood are explored for the population, for membership in international organizations, treaty obligations, and for debts and assets is considered and compared to the deterritorialized state option.
The book does what it promises to do. It offers an authoritative exploration of two key international law issues associated with the implications of sea level rise for low lying island states, loss of maritime zones and territory, and loss of statehood. Many other issues are identified, but not explored fully, such as the issue of persons displaced by climate change. Some issues explored, such as the effect of peremptory norms of jus cogens, might have been covered a bit more thoroughly.
Finally, the coverage of efforts to address climate change under the UN Framework Convention on Climate Change is a bit cryptic, and is a bit dated due to publication prior to the completion of the Paris Agreement in December, 2015. An interesting question in this regard is whether the Paris Agreement offers more hope of avoiding these situations than expected when this book was written, particularly in light of the long term goal to keep global average temperatures to well below 2 degrees above background levels, while making efforts to keep the below 1.5 degree.
The book is essential reading for scholars, negotiators, policy makers, graduate students and others interested in preparing international law for the consequences of climate change. It should serve as a model for what needs to be done in other areas of international law. We have a set of rules and institutions that were developed on the assumption of a stable climate. The assumption is wrong. To ensure an orderly and peaceful transition to the new reality, we need this kind of careful analysis in all areas of international law, and we need to act on the results.
Professor, Schulich School of Law
To download some of my publications on the UN climate regime, see http://ssrn.com/author=715387.