PART IV (F): Sea-level rise in relation to international law

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B. Sea-level rise in relation to international law
Mr. Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles,
Ms. Nilüfer Oral, Mr. Juan José Ruda Santolaria
I. Introduction
1. Sea-level rise has become in recent years a subject of increasing importance for a
significant part of the international community — more than 70 States are or are likely to be
directly affected by sea-level rise, a group which represents more than one third of the States
of the international community. Indeed, as is well known, this phenomenon is already having
an increasing impact upon many essential aspects of life for coastal areas, for low-lying
coastal States and small island States, and especially for their populations. Another quite
large number of States is likely to be indirectly affected (for instance, by the displacement of
people or the lack of access to resources). Sea-level rise has become a global phenomenon
and thus creates global problems, impacting on the international community as a whole.
2. In 2015, in paragraph 14 of the 2030 Agenda for Sustainable Development, the U.N.
General Assembly recognised that: “Climate change is one of the greatest challenges of our
time and its adverse impacts undermine the ability of all countries to achieve sustainable
development. Increases in global temperature, sea-level rise, ocean acidification and other
climate change impacts are seriously affecting coastal areas and low-lying coastal countries,
including many least developed countries and small island developing States. The survival
of many societies, and of the biological support systems of the planet, is at risk.”1
3. Thus, among the several impacts of climate change is sea-level rise. According to
scientific studies and reports, such as the Fifth Assessment Report of the Intergovernmental
Panel on Climate Change, this phenomenon is likely to accelerate in the future.2 As a result,
the inundation of low-lying coastal areas and of islands will make these zones less and less
habitable or uninhabitable, resulting in their partial or full depopulation.
4. These factual consequences of sea-level rise prompt a number of important questions
relevant to international law. For instance, what are the legal implications of the inundation
of low-lying coastal areas and of islands upon their baselines, upon maritime zones extending
from those baselines and upon delimitation of maritime zones, whether by agreement or
adjudication? What are the effects upon the rights of States in relation to those maritime
zones? What are the consequences for statehood under international law should the territory
and population of a State disappear? What protection do persons directly affected by sealevel
rise enjoy under international law?
5. These questions should be examined through an in-depth analysis of existing
international law, including treaty and customary international law, in accordance with the
mandate of the International Law Commission, which is the progressive development of
international law and its codification. This effort could contribute to the endeavours of the
international community to ascertain the degree to which current international law is able to
respond to these issues and where there is a need for States to develop practicable solutions
in order to respond effectively to the issues prompted by sea-level rise.
6. There has been a high level of interest and support for the topic by States. Fifteen
delegations in the Sixth Committee during the 72nd session of the U.N. General Assembly
requested its inclusion in the work programme of the Commission, 3 while other nine
1 A/RES/70/1. Emphasis added.
2 The Fifth Assessment Report of the Intergovernmental Panel on Climate Change estimates that the
global mean sea-level rise is likely to be between 26 cm and 98 cm by the year 2100. See
Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis.
Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on
Climate Change (Cambridge, United Kingdom, Cambridge University Press, 2013), p. 25.
3 Indonesia, Micronesia, Peru, Romania, Tonga and the Pacific Small Island Developing States
(Micronesia, Fiji, Kiribati, Nauru, Palau, Papua New Guinea, Marshall Islands, Samoa, Solomon
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delegations mentioned, in their national statements, the importance of the problem. 4
Furthermore, during an informal meeting held on 26 October 2017, in New York, at the
Permanent Mission of Romania, 35 States which attended showed a positive interest for the
Commission to undertake this topic.
7. Furthermore, the Government of the Federated States of Micronesia has put forward
a proposal dated 31 January 2018 for inclusion of a topic on the Long-Term Programme of
Work of the International Law Commission entitled “Legal Implications of Sea-level Rise”,5
which was taken into account in the preparation of the present syllabus.
II. Previous references to this topic in the works of the International Law Commission
8. The topic was referred to in the Fourth Report on the Protection of the atmosphere (in
paragraphs 66–67), examined during the 69th session of the Commission in 2017. As a result
of the debates during the session, the Commission decided in that topic to provisionally adopt,
inter alia, a paragraph in the preamble 6 and another paragraph7 where sea-level rise is
mentioned. On that occasion, several members of the Commission suggested that the issue
of the sea-level rise be treated in a more comprehensive manner, as a matter of priority, as a
separate topic of the Commission.
9. With regard to the topic Protection of persons in the event of disasters, completed by
the Commission in 2016, 8 the draft articles were considered in the commentary to be
applicable to different types of “disasters”,9 including with regard to “sudden-onset events
(such as an earthquake or tsunami) and to slow-onset events (such as drought or “sea-level
rise”), as well as frequent small-scale events (floods or landslides)”.10
III. Consideration of the topic by other bodies
10. The topic of sea-level rise was initially examined by the International Law
Association (ILA) Committee on Baselines under the International Law of the Sea, whose
final report was considered at the Sofia Conference (2012).11 The 2012 report recognized
“that substantial territorial loss resulting from sea-level rise is an issue that extends beyond
Islands, Tonga, Tuvalu and Vanuatu). See
http://statements.unmeetings.org/media2/16154559/marshall-islands-on-behalf-of-pacific-smallisland-
developing-states-.pdf.
4 Austria, Chile, India, Israel, Malaysia, New Zealand, Republic of Korea, Singapore and Sri Lanka.
5 See document ILC(LXX)/LT/INFORMAL/1 of 31 January 2018.
6 “Aware also, in particular, of the special situation of low-lying coastal areas and small island
developing States due to sea level rise,”. See Report of the International Law Commission on the
work of the sixty-ninth session (2017), document A/72/10,
http://legal.un.org/docs/?path=../ilc/reports/2017/english/chp6.pdf&lang=EFSRAC, p. 152.
7 3. When applying paragraphs 1 and 2, special consideration should be given to persons and groups
particularly vulnerable to atmospheric pollution and atmospheric degradation. Such groups may
include, inter alia, indigenous peoples, people of the least developed countries and people of lowlying
coastal areas and small island developing States affected by sea level rise.” See Report of the
International Law Commission on the work of the sixty-ninth session (2017), document A/72/10,
http://legal.un.org/docs/?path=../ilc/reports/2017/english/chp6.pdf&lang=EFSRAC, p. 157.
8 Adopted by the International Law Commission at its sixty-eighth session, in 2016, and submitted to
the General Assembly as a part of the Commission’s report covering the work of that session
(A/71/10), para. 48. The report will appear in Yearbook of the International Law Commission, 2016,
vol. II, Part Two.
9 Defined in Draft Article 3 (a) as “a calamitous event or series of events resulting in widespread loss of
life, great human suffering and distress, mass displacement, or large-scale material or environmental
damage, thereby seriously disrupting the functioning of society.”
10 Paragraph 4 of the Commentary to Draft Article 3.
11 See International Law Association Committee on Baselines under the International Law of the Sea,
Final Report (2012), Sofia Conference, at 30, available at http://ilareporter.org.au/wpcontent/
uploads/2015/07/Source-1-Baselines-Final-Report-Sofia-2012.pdf. This report stated that “the
existing law of normal baseline applies in situations of significant coastal change caused by both
territorial gain and territorial loss. Coastal states may protect and preserve territory through physical
reinforcement, but not through the legal fiction of a charted line that is unrepresentative of the actual
low-water line.”
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328 GE.18-13644
baselines and the law of the sea and encompasses consideration at a junction of several parts
of international law.”
11. As a consequence, the ILA in 2012 established a new Committee on International
Law and Sea Level Rise. That Committee decided to focus its work on three main issue areas:
the law of the sea; forced migration and human rights; and issues of statehood and
international security. An interim report of that Committee, which was presented at the
Johannesburg Conference in 2016,12 focused on issues regarding the law of the sea and
migration/human rights. Another report was considered at the Sydney Conference, which
completed the Committee’s work on law of the sea issues.13 Further, the 2018 report proposed
12 principles with commentary comprising a “Declaration of Principles on the Protection of
Persons Displaced in the Context of Sea Level Rise.” The mandate of the Committee is
expected to be extended to continue the study of the statehood question and other relevant
issues of international law.
IV. Consequences of sea-level rise
12. As already mentioned, sea-level rise produces the inundation of low-lying coastal
areas and of islands, which has consequences in three main areas: A) law of the sea; B)
statehood; and C) protection of persons affected by sea-level rise.
13. These three issues reflect the legal implications of sea-level rise for the constituent
elements of the State (territory, population and government/Statehood) and are thus
interconnected and should be examined together.
V. Scope of the topic and questions to be addressed
14. This topic deals only with the legal implications of sea-level rise. It does not deal with
protection of environment, climate change per se, causation, responsibility and liability. It
does not intend to provide a comprehensive and exhaustive scoping of the application of
international law to the questions raised by sea-level rise, but to outline some key issues. The
three areas to be examined should be analysed only within the context of sea-level rise
notwithstanding other causal factors that may lead to similar consequences. Due attention
should be paid, where possible, to distinguish between consequences related to sea-level rise
and those from other factors. This topic will not propose modifications to existing
international law, such as the 1982 U.N. Convention on the Law of the Sea (UNCLOS). Other
questions may arise in the future requiring analysis. Having in mind the above considerations,
the Commission could analyse the following questions related to the legal implications sealevel
rise.
15. Law of the Sea issues
(i) Possible legal effects of sea-level rise on the baselines and outer limits of the
maritime spaces which are measured from the baselines;
(ii) Possible legal effects of sea-level rise on maritime delimitations;
(iii) Possible legal effects of sea-level rise on islands as far as their role in the
construction of baselines and in maritime delimitations;
12 See the Interim Report of the ILA Committee on International Law and Sea Level Rise (2016),
Johannesburg Conference, available at http://www.ila-hq.org/index.php/committees.
13 See the Draft Report of the ILA Committee on International Law and Sea Level Rise (2018), Sydney
Conference, p. 19, available at http://www.ilahq.
org/images/ILA/DraftReports/DraftReport_SeaLevelRise.pdf. The committee recommended that
the ILA adopt a resolution containing two “de lege ferenda” proposals: (1) “proposing that States
should accept that, once the baselines and the outer limits of the maritime zones of a coastal or an
archipelagic State have been properly determined in accordance with the detailed requirements of the
1982 Law of the Sea Convention, these baselines and limits should not be required to be recalculated
should sea level change affect the geographical reality of the coastline”; and (2) proposing “that, on
the grounds of legal certainty and stability, the impacts of sea level rise on maritime boundaries,
whether contemplated or not by the parties at the time of the negotiation of the maritime boundary,
should not be regarded as a fundamental change of circumstances.”
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(iv) Possible legal effects of sea-level rise on the exercise of sovereign rights and
jurisdiction of the coastal State and its nationals in maritime spaces in which
boundaries or baselines have been established, especially regarding the exploration,
exploitation and conservation of their resources, as well as the rights of third States
and their nationals (e.g., innocent passage, freedom of navigation, fishing rights);
(v) Possible legal effects of sea-level rise on the status of islands, including rocks
and on the maritime entitlements of a coastal State with fringing islands;
(vi) Legal status of artificial islands, reclamation or island fortification activities
under international law as a response/adaptive measures to sea-level rise.
16. Statehood issues
(i) Analysis of the possible legal effects on the continuity or loss of statehood in
cases where the territory of island States is completely covered by the sea or becomes
uninhabitable;
(ii) Legal assessment regarding the reinforcement of islands with barriers or the
erection of artificial islands as a means to preserve the statehood of island States
against the risk that their land territory might be completely covered by the sea or
become uninhabitable;
(iii) Analysis of the legal fiction according to which, considering the freezing of
baselines and the respect of the boundaries established by treaties, judicial judgments
or arbitral awards, it could be admitted the continuity of statehood of the island States
due to the maritime territory established as a result of territories under their
sovereignty before the latter become completely covered by the sea or uninhabitable;
(iv) Assessment of the possible legal effects regarding the transfer — either with
or without transfer of sovereignty — of a strip or portion of territory of a third State
in favour of an island State whose terrestrial territory is at risk of becoming completely
covered by the sea or uninhabitable, in order to maintain its statehood or any form of
international legal personality;
(v) Analysis of the possible legal effects of a merger between the island
developing State whose land territory is at risk of becoming completely covered by
the sea or uninhabitable and another State, or of the creation of a federation or
association between them regarding the maintenance of statehood or of any form of
international legal personality of the island State.
17. Issues related to the protection of persons affected by sea-level rise
(i) The extent to which the duty of States to protect the human rights of individuals
under their jurisdiction apply to consequences related to sea-level rise;
(ii) Whether the principle of international cooperation be applied to help States
cope with the adverse effects of sea-level rise on their population;
(iii) Whether there are any international legal principles applicable to measures to
be taken by States to help their population to remain in situ, despite rising sea levels;
(iv) Whether there are any international legal principles applicable to the
evacuation, relocation and migration abroad of persons caused by the adverse effects
of sea-level rise;
(vi) Possible principles applicable to the protection of the human rights of persons
displaced internally or that migrate due to the adverse effects of sea-level rise.
VI. Method of work of the Commission on this topic
18. The format of a Study Group would allow for a mapping exercise of the legal
questions raised by sea-level rise and its interrelated issues. The Study Group would analyse
the existing international law, including treaty and customary international law, in
accordance with the mandate of the International Law Commission, which is to perform
codification of customary international law and its progressive development. This effort
could contribute to the endeavours of the international community to respond to these issues
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and to assist States in developing practicable solutions in order to respond effectively to the
issues prompted by sea-level rise.
19. The work of the Study Group would be based on papers that would address the
different issues raised by the topic, namely with regard to A) law of the sea, B) statehood and
C) protection of persons affected by sea-level rise. This approach would allow for sufficient
flexibility of approach and would be able to actively involve members of the Commission in
the work on this topic. It is to be recalled that the Commission has used this method
successfully in the past, a relevant example being the Study Group on the Fragmentation of
International Law (2002–2006).14
20. The work of the Study Group would be based on the practice of States, international
treaties, other international instruments, judicial decisions of international and national courts
and tribunals, and the analyses of scholars — all these in a systemic and integrative approach.
VII. The topic satisfies the requirements for selection of a new topic
21. In order to select new topics for inclusion in its programme of work, the Commission
is guided by the criteria that it had agreed upon at its fiftieth session (1998),15 namely that
the topic: (a) should reflect the needs of States in respect of the progressive development and
codification of international law; (b) should be at a sufficiently advanced stage in terms of
State practice to permit progressive development and codification; (c) should be concrete and
feasible for progressive development and codification; and (d) that the Commission should
not restrict itself to traditional topics, but could also consider those that reflect new
developments in international law and pressing concerns of the international community as
a whole.
22. First, the topic “Sea-Level Rise in relation to International Law” reflects the needs
of States: more than a third of the existing States of the international community are likely to
be directly affected by the sea-level rise and are keenly interested in this topic. Moreover,
there may be broader impacts to the international community at large, since another large
number of States are likely to be indirectly affected by sea-level rise (for instance, by the
displacement of people, the lack of access to resources). Sea-level rise has become a global
phenomenon, and thus creates global problems, impacting in general on the international
community of States as a whole. This interest is shared by a variety of States, from very
different geographic locations, including landlocked countries, which shows the amplitude
of the States’ interest.
23. Second, there is an emerging State practice — namely with regard to issues related to
the law of the sea (such as maintaining baselines, construction of artificial islands, and coastal
fortifications) and the protection of persons affected by sea-level rise (such as the relocation
of local communities within the country or to other countries, and the creation of
humanitarian visa categories). In addition, relevant practice exists, inter alia, in relation to
governments in exile as examples of maintaining statehood in absence of control over
territory. The consequences of sea-level rise, which may be defined as affecting the very
existence of a number of the States concerned, and, in any case, essential parameters of
statehood like territory, population and governance as well as the enjoyment of the essential
resources for the prosperity of these nations, call for an early analysis of its legal implications.
24. That is why, third, the topic is feasible because the work of the Study Group will be
able to identify areas ripe for possible codification and progressive development of
international law and where there are gaps. At the same time, the aspects to be examined
have a high degree of concreteness, as shown above in sections IV and V.
25. Fourth, it is beyond any doubt that this topic, in the light of the arguments presented,
reflects new developments in international law and pressing concerns of the international
community as a whole.
14 Followed by Study Groups on “Treaties over Time” (2009–2012) and “The Most-Favoured-Nation
Clause” (2009–2015).
15 Report of the fiftieth session, A/53/10 (1998), chap. X(C), para. 553. See also Report of the sixtyninth
session, A/72/10 (2017), chapter III(C), para. 32.
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VIII. Conclusion
26. The final outcome would be a Final Report of the Study Group on “Sea-Level Rise
in relation to International Law”, accompanied by a set of Conclusions of the work of the
Study Group. After the presentation of the Final Report of the Study Group, it could be
considered whether and how to pursue further the development of the topic or parts of it
within the Commission or other fora.
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Warrick, Richard A., and Qazi Kholiquzzaman Ahmad, eds. The implications of climate and
sea-level change for Bangladesh. Springer Science & Business Media, 2012.
Wentz, Jessica. “Assessing the Impacts of Climate Change on the Built Environment Under
NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model
Protocols.” (2015).
Williams, Angela. “Turning the tide: recognizing climate change refugees in international
law.” Law & Policy 30, no. 4 (2008): 502–529.
Wong, Derek. “Sovereignty Sunk-The Position of Sinking States at International Law.” Melb.
J. Int’l L. 14 (2013): 346.
Yamamoto, Lilian, and Miguel Esteban. Atoll Island States and international law. Springer-
Verlag Berlin An, 2016.
Ni, Xing-Yin. “A Nation Going under: Legal Protection for Climate Change Refugees.” BC
Int’l & Comp. L. Rev. 38 (2015): 329.
Xue, Guifang Julia. “Climate Change Challenges and the Law of the Sea Responses.”
In Climate Change: International Law and Global Governance, pp. 547–592. Nomos
Verlagsgesellschaft mbH & Co. KG, 2013.
Other Documents
Stocker, Thomas, ed. Climate change 2013: the physical science basis: Working Group I
contribution to the Fifth assessment report of the Intergovernmental Panel on Climate
Change. Cambridge University Press, 2013.
International Law Association Sofia Conference. “Report of the Committee on Baselines
under the International Law of the Sea.” (2012).
International Law Association Washington Conference. “Report of the Committee on
Baselines under the International Law of the Sea.” (2014).
International Law Association Johannesburg Conference. “Report of the Committee on
Baselines under the International Law of the Sea.” (2016).
International Law Association Sidney Conference. “Report of the Committee on Baselines
under the International Law of the Sea.” (2018).
International Law Association Johannesburg Conference. “Interim Report of the Committee
on ‘International Law and Sea Level Rise’.” (2016).
International Law Association Sidney Conference. “Report of the Committee on
‘International Law and Sea Level Rise’.” (2018).
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Chapter IX
Sea-level rise in relation to international law
A. Introduction
240. At its seventieth session (2018), the Commission decided to include the topic “Sealevel
rise in relation to international law” in its long-term programme of work.431
241. In its resolution 73/265 of 22 December 2018, the General Assembly subsequently
noted the inclusion of the topic in the long-term programme of work of the Commission, and
in that regard called upon the Commission to take into consideration the comments, concerns
and observations expressed by Governments during the debate in the Sixth Committee.
242. At its seventy-first session (2019), the Commission decided to include the topic in its
programme of work. The Commission also decided to establish an open-ended Study Group
on the topic, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr. Yacouba
Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and Mr. Juan José Ruda Santolaria. The
Commission further took note of the joint oral report of the Co-Chairs of the Study Group.432
243. Also during that session, the Study Group, co-chaired by Ms. Patrícia Galvão Teles
and Ms. Nilüfer Oral, held a meeting on 6 June 2019. The Study Group considered an
informal paper on the organization of its work containing a road map for 2019 to 2021. The
discussion of the Study Group focused on its composition, its proposed calendar and
programme of work, and its methods of work.433
244. With regard to the programme of work, and subject to adjustment in the light of the
complexity of the issues to be considered, the Study Group was expected to work on the three
subtopics identified in the syllabus prepared in 2018,434 namely: issues related to the law of
the sea, under the co-chairpersonship of Mr. Bogdan Aurescu and Ms. Nilüfer Oral; and
issues related to statehood, as well as issues related to the protection of persons affected by
sea-level rise, under the co-chairpersonship of Ms. Patrícia Galvão Teles and Mr. Juan José
Ruda Santolaria.
245. As to the methods of work, it was anticipated that approximately five meetings of the
Study Group would take place at each session. It was agreed that, prior to each session, the
Co-Chairs would prepare an issues paper. The issues papers would be edited, translated and
circulated as official documents to serve as the basis for the discussion and for the annual
contribution of the members of the Study Group. They would also serve as the basis for
subsequent reports of the Study Group on each subtopic. Members of the Study Group would
then be invited to put forward contribution papers that could comment upon, or complement,
the issues paper prepared by the Co-Chairs (by addressing, for example, regional practice,
case law or any other aspects of the subtopic). Recommendations would be made at a later
stage regarding the format of the outcome of the work of the Study Group.
246. It was also agreed that, at the end of each session of the Commission, the work of the
Study Group would be reflected in a report, taking due account of the issues paper prepared
by the Co-Chairs and the related contribution papers by members, while summarizing the
discussion of the Study Group. That report would be agreed upon in the Study Group and
subsequently presented by the Co-Chairs to the Commission, so that a summary could be
included in the annual report of the Commission.
431 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10),
para. 369.
432 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 265–273.
433 Ibid., para. 269.
434 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10),
Annex B.
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B. Consideration of the topic at the present session
247. At the present session, the Commission reconstituted the Study Group on sea-level
rise in relation to international law, chaired by the two Co-Chairs on issues related to the law
of the sea, namely Mr. Bogdan Aurescu and Ms. Nilüfer Oral.
248. In accordance with the agreed programme of work and methods of work, the Study
Group had before it the first issues paper on the topic (A/CN.4/740 and Corr.1), which was
issued together with a preliminary bibliography (A/CN.4/740/Add.1), prepared by Mr.
Aurescu and Ms. Oral.
249. Owing to the outbreak of the COVID-19 pandemic, and the ensuing postponement of
the seventy-second session of the Commission, the Co-Chairs invited the Commission’s
members to transmit written comments on the first issues paper directly to them. After the
completion of the first issues paper, Antigua and Barbuda and the Russian Federation
submitted information, which was posted on the Commission’s website together with the
information previously received from Governments 435 in response to the request by the
Commission in chapter III of its 2019 annual report.436 Comments from the Pacific Islands
Forum relating to the first issues paper were circulated to all members of the Study Group on
31 May 2021.
250. The Study Group held eight meetings, from 1 to 4 June and on 6, 7, 8 and 19 July
2021.437
251. At its 3550th meeting, on 27 July 2021, the Commission took note of the joint oral
report of the Co-Chairs of the Study Group.438
Discussions held in the Study Group
252. At the first meeting of the Study Group, held on 1 June 2021, the Co-Chair (Ms. Oral)
indicated that the purpose of the initial four meetings to be held during the first part of the
session was to allow for a substantive exchange, in the manner of a plenary, on the first issues
paper and on any relevant matters that members might wish to address. A summary of that
exchange, in the form of an interim report, would then serve as a basis for discussion at the
meetings of the Study Group scheduled for the second part of the session. Following those
discussions during the second part of the session, that report would be consolidated, agreed
upon in the Study Group, and subsequently presented by the Co-Chairs to the Commission,
with a view to being included in the annual report of the Commission. That procedure, agreed
upon by the Study Group, was based on the 2019 report of the Commission.
253. With regard to the substance of the topic, as also indicated in the syllabus prepared in
2018, it was recalled that the factual consequences of sea-level rise prompt a number of
important questions relevant to international law. To the extent that they concern issues
related to the law of the sea, these questions include that of the legal implications of the
inundation of low-lying coastal areas and of islands upon their baselines, upon maritime
zones extending from those baselines and upon delimitation of maritime zones, whether by
agreement or adjudication. The 2018 syllabus also provided that these questions are to be
examined through an in-depth analysis of existing international law, including treaty and
customary international law, in accordance with the mandate of the Commission, which is
the progressive development of international law and its codification.439 This effort could
435 Croatia, Maldives, the Federated States of Micronesia, the Netherlands, Romania, Singapore, the
United Kingdom of Great Britain and Northern Ireland, and the United States of America.
Information was also received from the Pacific Islands Forum. The information submitted is available
from: https://legal.un.org/ilc/guide/8_9.shtml.
436 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 31–33.
437 See chapter I, above, for the membership of the Study Group.
438 See A/CN.4/SR.3550.
439 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10),
Annex B, para. 5. Paragraph 14 of the 2018 syllabus provides, in part: “This topic deals only with the
legal implications of sea-level rise. It does not deal with protection of environment, climate change
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contribute to the endeavours of the international community to ascertain the degree to which
current international law is able to respond to these issues and where there is a need for States
to develop practicable solutions in order to respond effectively to the issues prompted by sealevel
rise.
(a) First issues paper
254. The first issues paper was introduced by the Co-Chairs of the Study Group (Mr.
Aurescu and Ms. Oral) at the first meeting of the Study Group with a summary of key points
and preliminary observations.
255. The Co-Chair (Mr. Aurescu) presented the introduction, Part One and Part Two of the
first issues paper. He recalled, inter alia, that the introduction to the first issues paper
contained a summary of the views expressed by Member States in the Sixth Committee, and
also drew the attention of the Study Group to the comments made by delegations in the Sixth
Committee, during the seventy-fifth session of the General Assembly (2020), after the
issuance of the first issues paper. A number of delegations had expressed appreciation for the
first issues paper,440 while a few others had simply referred to it.441 The scope and suggested
final outcome of the topic, the limitations on the scope of the work of the Study Group, as
agreed by the Commission, the focus on the practice of States and of regional and
international organizations were recalled.
256. The Co-Chair (Mr. Aurescu) presented the analysis of the first issues paper on the
possible legal effects of sea-level rise on the baselines and outer limits of the maritime spaces
that are measured from the baselines, including an analysis of the effects of the ambulation
of the baselines as a result of sea-level rise. He then introduced the analysis of the first issues
paper on the possible legal effects of sea-level rise on maritime delimitations, as well as on
the issue of whether sea-level rise constituted a fundamental change of circumstances, in
accordance with article 62, paragraph 2, of the 1969 Vienna Convention on the Law of
Treaties.442 The Co-Chair (Mr. Aurescu) also presented the main preliminary observations of
the Co-Chairs’ analysis on the possible legal effects of sea-level rise on the baselines and
outer limits of the maritime spaces measured from the baselines, as well as on maritime
delimitations, effected either by agreement or by adjudication, as presented in paragraphs
104 and 141 of the first issues paper.
257. The Co-Chair (Ms. Oral) then presented the structure and content of Parts Three and
Four of the first issues paper and pointed, inter alia, to the two central issues addressed
therein: the potential legal consequences of the landward shift of a newly drawn baseline due
to sea-level rise, and the impact of sea-level rise on the legal status of islands, rocks and lowtide
elevations. This was followed by an overview of the possible consequences on the rights
and jurisdiction of the coastal State, as well as third party States, in established maritime
zones where maritime zones shift because part of the internal waters become territorial sea,
part of the territorial sea becomes contiguous zone and/or exclusive economic zone, and part
of the exclusive economic zone becomes high seas. The Co-Chair (Ms. Oral) also highlighted
per se, causation, responsibility and liability. It does not intend to provide a comprehensive and
exhaustive scoping of the application of international law to the questions raised by sea-level rise, but
to outline some key issues. The three areas to be examined should be analysed only within the context
of sea-level rise notwithstanding other causal factors that may lead to similar consequences. Due
attention should be paid, where possible, to distinguish between consequences related to sea-level rise
and those from other factors. This topic will not propose modifications to existing international law,
such as the 1982 United Nations Convention on the Law of the Sea. Other questions may arise in the
future requiring analysis.”
440 Eleven delegations, out of the 25 that made statements on the Commission’s work, expressed
appreciation for the first issues paper: Belize, on behalf of the Alliance of Small Island States; Fiji, on
behalf of the Pacific small island developing States; Maldives; the Federated States of Micronesia;
New Zealand; Papua New Guinea; Portugal; Solomon Islands; Tonga; Turkey; and Tuvalu, on behalf
of the Pacific Islands Forum States.
441 Three delegations made reference to the first issues paper: the Republic of Korea, Sierra Leone and
the United States of America.
442 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), United Nations, Treaty Series,
vol. 1155, No. 18232, p. 331.
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the case of an archipelagic State where, due to the inundation of small islands or drying reefs,
the existing archipelagic baselines could be impacted, potentially resulting in the loss of
archipelagic baseline status.
258. The Co-Chair (Ms. Oral) further discussed the status of islands and rocks under article
121 of the United Nations Convention on the Law of the Sea443 and the potential significant
consequences of being reclassified as a rock due to sea-level rise, possibly becoming a rock
that “cannot sustain human habitation or economic life of their own” under article 121,
paragraph 3, of the Convention. The Co-Chair (Ms. Oral) concluded by highlighting several
of the preliminary observations made in the first issues paper (see paragraphs 190 and 218
thereof).
(b) Maritime delimitation practice of African States
259. The Co-Chair (Mr. Cissé) gave a presentation on the practice of African States
regarding maritime delimitation. Since maritime delimitation was a recent process in Africa,
with high stakes for coastal States, he had examined the legislative, constitutional and
conventional practice of 38 African coastal States, as well as relevant judicial decisions
rendered by international courts,444 in order to assess whether coastal States were supportive
of ambulatory or fixed maritime limits.
260. The outcome of the survey was that, while there was some African legislative and
constitutional practice on baselines and maritime borders, such practice was diverse. As such,
it was not possible to infer the existence of opinio juris in favour of or against permanent or
ambulatory baselines or maritime boundaries. There was no generalized African practice
since the geography of the coasts varied, such that the justification for the use of baselines,
tide (high or low), ambulatory or permanent lines was dependent on the general configuration
of the coasts.
261. Nonetheless, in the view of the Co-Chair, the application of principles of public
international law in the African context could favour fixed baselines or permanent maritime
boundaries, for the following reasons:
(a) In the light of the principle of the immutability of borders inherited from the
colonial era, in accordance with the principle of uti possidetis juris, it could be assumed that
a maritime boundary drawn by the former colonial powers continued to apply between newly
independent States without the possibility of modification;
(b) The limitation on the application of the principle of rebus sic stantibus, as
provided for in article 62, paragraph 2, of the Vienna Convention on the Law of Treaties,
namely that boundary treaties could not be affected by a fundamental change of
circumstances, seemed also applicable to maritime boundaries in the light of existing case
law, which had recognized that there was no need to distinguish between land and maritime
boundaries. As such, sea-level rise should not, in principle, have legal consequences in terms
of maintaining boundaries already delimited or baselines or base points already defined. The
freezing of baselines could address that concern;
443 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), ibid., vol.
1833, No. 31363, p. 3.
444 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18;
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 13; Case
concerning the delimitation of the maritime boundary between Guinea and Guinea-Bissau, Award of
14 February 1985, United Nations, Reports of International Arbitral Awards, vol. XIX, part IV, pp.
149–196 (in French; English version available in International Law Materials, vol. 25 (1986), pp.
251–306); Case concerning the delimitation of the maritime boundary between Guinea-Bissau and
Senegal, Decision of 31 July 1989, United Nations, Reports of International Arbitral Awards, vol.
XX, part II, pp. 119–213; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 303; Delimitation of
the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, ITLOS Reports 2017,
p. 4; and Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections,
Judgment, I.C.J. Reports 2017, p. 3.
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(c) Given the obligation of States to cooperate when they are at an impasse or are
having difficulty concluding an agreement on the delimitation of their maritime boundaries
(recourse to article 83, paragraph 3, or article 74, paragraph 3, of the United Nations
Convention on the Law of the Sea), the question of the unresolved maritime boundaries could
be frozen in favour of other solutions, such as the establishment of joint development zones.
(c) Summary of the general exchange of views held during the first part of the session
(i) General comments on the topic
262. During the first part of the session, members of the Study Group presented comments
on the first issues paper, in oral and written form.
263. The importance of the topic and the legitimacy of the concerns expressed by those
States affected by sea-level rise, together with the need to approach the topic in full
appreciation of its urgency, were emphasized. While some members stressed that sea-level
rise was a modern phenomenon of the past few decades that was projected to have significant
consequences – as noted in the first issues paper –, other members opined that it was not a
new or a sudden phenomenon. It was also suggested that the existence and effects of two
kinds of sea-level rise – natural and human-induced – should be identified and that coastlines
may change as a result of natural sea-level rise and fall, or sea-level extremes, caused by
earthquakes, tsunamis or other natural disasters. Referring to section III of the introduction
of the first issues paper, on scientific findings and prospects of sea-level rise and their
relationship with the topic, support was also expressed for treating sea-level rise as a
scientifically proven fact of which the Commission could take notice for the limited purpose
of its specific work on the international legal implications of sea-level rise. It was also noted
that over time there are reasons other than sea-level rise that could cause a coastline to change
location, as had been happening throughout history, and that any new rule justified by sealevel
rise must have regard to practice in such cases and might need to identify the mechanism
for distinguishing one case from another. It was also mentioned that the presumption in
dealing with this topic is that this phenomenon is a result of climate change, and is as such
(mainly) human-induced, while recalling that one of the limits of action by the Study Group,
as outlined in the 2018 syllabus, was that the topic “does not deal with … causation”. As a
result, the Study Group ought to consider the present topic based on the premise that sealevel
rise due to climate change is a fact already proven by science.
264. The immense challenge of understanding and seeking solutions to complex legal and
technical issues without losing sight of their human dimension, as well as the difficulty of
assessing the magnitude of the phenomenon and its consequences – including from the point
of view of the law of the sea – was also underlined. Members, however, generally considered
that the topic was of particular importance, and that it raised significant issues on which the
Commission could shed light.
(ii) General comments on the first issues paper
265. Concerns were expressed that the first issues paper had been read as already reflecting
the Commission’s views and, as a consequence of the postponement of the Commission’s
seventy-second session, it had been widely discussed outside the Commission before the
Commission itself had had the opportunity to consider it. It was noted that it was also due to
the adoption of a procedure different than that adopted by previous study groups, which was
necessitated by the urgency and importance attached to this topic. It was noted though that
this was not unique to this topic, and that reports of Special Rapporteurs being referred to as
the product of the Commission was a recurring problem.
266. Some members expressed support for the analysis, including the preliminary
observations contained in the first issues paper, while other members expressed doubts
regarding these preliminary observations. Some members agreed on the need for stability,
security, certainty and predictability, and the need to preserve the balance of rights and
obligations between coastal States and other States, yet did not agree on whether the first
issues paper’s preliminary observations reflected those needs. Further, some members took
the view that the statements by States in favour of stability, certainty and predictability could
be open to different interpretations, and called into question the first issues paper’s repeated
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reliance on “concerns expressed by Member States”. A view was expressed that the desire of
States for “stability” was not necessarily an “indication” of opinio juris, as suggested by the
first issues paper, to the extent that it was difficult to qualify the preference for stability as
reflecting “a sense of legal right or obligation” as stated in the Commission’s conclusions on
identification of customary international law. 445 It was noted that the terms “stability”,
“certainty” and “predictability” were referred in the jurisprudence in relation to land
boundary delimitation and not maritime delimitation, where the considerations are different.
It was also mentioned that they do not constitute a principle as such but a description of a
phenomenon. While the Study Group welcomed the suggestion that the meaning of “legal
stability” in connection with the present topic needed further clarification, including by
addressing specific questions to the Member States, it was noted that the statements delivered
in the Sixth Committee by the delegations of States affected by sea-level rise seemed to
indicate that, by “legal stability”, they meant the need to preserve the baselines and outer
limits of maritime zones.
(iii) Consideration of views expressed in the Sixth Committee and State practice
267. Members acknowledged that those States that had made statements on the subject had
been largely supportive of the inclusion of the topic in the Commission’s programme of work.
It was observed that States seemed to be generally in agreement that the outcome of the
Commission’s work on the topic should not interfere with or amend the United Nations
Convention on the Law of the Sea. It was also noted that the principles of certainty, security
and predictability and the preservation of the balance of rights and obligations between
coastal States and other States had figured prominently in the statements delivered by States
during the debate of the Sixth Committee in 2019.
268. The lack of State practice, especially from certain regions of the world, was
highlighted. Questions were also posed as to whether the statements by States and their
submissions on State practice should be considered as giving rise to emerging rules, or could
be considered as subsequent practice for purposes of interpretation of the relevant provisions
of the United Nations Convention on the Law of the Sea. Some members questioned whether
the statements by States in response to the first issues paper were adequate as evidence of
State practice in favour of fixed baselines. In light of the insufficient availability of State
practice, the view was also expressed that such statements by States in the Sixth Committee
were important and relevant. It was further suggested that, in addition to requesting
information from States, the Commission should conduct research, including reviewing the
legislation of all States and the maritime zone notifications circulated by the Secretary-
General under the United Nations Convention on the Law of the Sea.
(iv) Work of the International Law Association
269. Some members highlighted the work of the International Law Association’s
Committee on Baselines under the International Law of the Sea and Committee on
International Law and Sea Level Rise, suggesting that the Study Group add more detail on
their work and use it as a basis for analysis. They noted that in 2012 the Committee on
Baselines under the International Law of the Sea concluded that the normal baseline is
ambulatory and that existing law does not offer an adequate solution to a total territorial loss,
due to sea-level rise for example. It was also recalled that the subsequently established
Committee on International Law and Sea Level Rise recommended that the International Law
Association adopt a resolution containing de lege ferenda proposals that “baselines and limits
should not be required to be readjusted should sea level change affect the geographic reality
of the coastline”. This was endorsed by resolution 5/2018 of the Seventy-eighth Conference
of the International Law Association in Sydney.446 There was also a suggestion that, like the
International Law Association’s report of its 2018 Sydney Conference on International Law
and Sea Level Rise, the Study Group should conduct an analysis of the advantages and
disadvantages of the different options. Further, it was noted that under the United Nations
445 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10),
chapter V, section E, conclusion 9.
446 International Law and Sea Level Rise: Report of the International Law Association Committee on
International Law and Sea Level Rise, D. Vidas, et al. (eds.), Brill, Leiden, 2019, pp. 66–67.
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Convention on the Law of the Sea, the baselines had to be in line with reality. It was further
observed that the Committee on Baselines under the International Law of the Sea did not see
its 2012 findings as the last word as far as sea-level rise effects were concerned, and that
these effects should accordingly continue to be examined by the Committee on International
Law and Sea Level Rise, which, in 2018, proposed that, if the baselines and the outer limits
of maritime zones of a coastal or an archipelagic State had been properly determined in
accordance with the United Nations Convention on the Law of the Sea, those baselines and
outer limits should not be required to be recalculated should sea-level changes affect the
geographical reality of the coastline. The fact that the Commission employs a different
methodology than the International Law Association, which includes a close relationship
with the Sixth Committee, was also underlined.
(v) Interpretation of the United Nations Convention on the Law of the Sea: ambulatory or fixed
baselines
270. Some members noted that the normal baseline in article 5 of the United Nations
Convention on the Law of the Sea is the low-water line, which they viewed as inherently
ambulatory. Other members observed that the Convention was silent on whether baselines
were ambulatory or had to be regularly updated. Members agreed on the importance of and
need for assessing State practice on questions relating to the freezing of baselines and the
updating (or not) of charts. Some members expressed the view that baselines were not
established by charts or lists, but by the detailed rules set out in the Convention and other
relevant sources, that the charts and lists referred to in article 16 of the Convention only
concerned straight baselines or closing lines (not normal baselines), and that the Convention
expressly required that such charts and lists be produced in accordance with the rules set forth
in articles 7, 9, and 10 of the Convention. The importance of making a distinction between
base points (which are relevant for maritime delimitations if selected as relevant points on
the relevant coasts) and baselines (which are relevant for establishing the outer limits of
maritime zones) was also underlined, given that rising sea-level affects them differently,
which entails that they may require different legal solutions.
271. Some members regarded article 5 of the United Nations Convention on the Law of
the Sea as clear on the question of whether normal baselines were ambulatory, while other
members considered that article to be susceptible to a different interpretation. It was noted
that sea-level rise had not been mentioned in the travaux préparatoires of the Convention.
Some members maintained that the Convention was fully silent on the issue of sea-level rise,
including in relation to baselines and the updating of charts. Other members took the view
that, even if sea-level rise was not discussed, the issue of change in the location of baselines
was discussed, including the circumstances where a baseline could be fixed within specific
contexts (such as deltas). It was however noted that not too much should be read into any
silence, as it could be interpreted in different ways. The view was nonetheless also expressed
that, consequently, the Convention was not dispositive of the question as to whether baselines
were ambulatory or not. It was also mentioned, however, that the United Nations Convention
on the Law of the Sea does contemplate the change of baselines due to changes in the coast,
although sea-level rise was not specifically discussed.
272. In response to the diverse views expressed by members as to the existence of
ambulatory or fixed or permanent baselines, there was a suggestion that the Commission
should conduct additional research into whether a principle of stability existed under general
international law, including a study of the law of river delimitation. It was also deemed
important to closely consider the judgment rendered by the International Court of Justice in
the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) case 447 in which the Court used a moving delimitation line for maritime
delimitation.
273. Some members emphasized that, if ambulatory baselines were to be retained,
landward movement could result in a significant loss of sovereignty and jurisdictional rights
447 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and
Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment, I.C.J.
Reports 2018, p. 139.
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for coastal States. It could also give rise to a significant loss of resources and protected
maritime areas, while negatively affecting the conservation of biological diversity in areas
beyond national jurisdiction. Those members commented that legal uncertainty regarding
maritime boundaries would likely be a source of conflict and instability for coastal
neighbouring States. It was further observed that States would have to dedicate significant
resources for the purpose of regularly updating maritime charts or geographical data under
an ambulatory system. Some members expressed agreement with the view of the Co-Chairs
that the interpretation that baselines generally had an ambulatory character did not respond
to the concerns of the States facing the effects of sea-level rise. It was thus suggested by some
members that maintaining existing maritime baselines and limits was an optimal solution that
responded to States’ interests in connection with the effects of sea-level rise.
274. Other members were not convinced that shifting areas of maritime entitlements
necessarily led to a loss of the total amount of such entitlements, as opposed to just changing
their location. It was noted, also, that fixed baselines might not be required in all situations
(for example, where the land surface of a State had actually increased owing to the shift of
tectonic plates). The view was expressed that if baselines were fixed, States that may have
their land surface increase would not be able to move their baselines seawards and claim
larger areas, if they experienced such a phenomenon in the future. It was also mentioned that
there may be specific situations where States facing the threat of sea-level rise may have
erected coastal fortifications and may wish them to be treated as fixed baselines. As to the
situation of increased land surface due to factors other than sea-level rise, it was stressed that
this aspect is outside the mandate of the Study Group, which only deals with sea-level rise
effects. It was also recalled that the final outcome of the Study Group should be clearly
limited to sea-level rise due to climate change, according to the limits agreed to in the
mandate of the Study Group.
275. Some members suggested that there might be a continuum of intermediate
possibilities between the two options discussed in the first issues paper – ambulatory versus
permanent baselines – that deserved a full and detailed examination. As the discussion was
still of a preliminary nature, further in-depth analysis needed to be undertaken before the
Study Group could take a position on what was a complex subject.
276. The issue of navigational charts was also raised, a view being expressed that updating
them was important in the interests of navigational safety, while another view maintained
that the potential dangers to navigation might be rather exceptional given that the coast
receded landward in case of sea-level rise and that satellite technology was more accessible
than ever. Support was expressed for the ensuing proposal made by the Co-Chairs that the
issue of navigational charts could be subject to additional study. For example, such study
could examine the different functions of navigational charts as required under the rules of the
International Hydrographic Organization and of the charts that are deposited with the
Secretary-General of the United Nations for purposes of registration of maritime zones.
277. Some members suggested that the Study Group take into account the possible
situation where, as a result of sea-level rise and a landward shift of the coastline, the
bilaterally-agreed delimitation of overlapping areas of exclusive economic zones of opposite
coastal States no longer overlapped, as such a situation would result in States being trapped
in an unreasonable legal fiction. Support was expressed for the examination of this hypothesis,
including from the angle of concepts from the law of treaties, like obsolescence or the
supervening impossibility of performance of a treaty. Another view expressed was that the
preservation of existing baselines, when the natural baselines had shifted significantly, could
lead to disproportionately large maritime zones – beyond what was permitted under the
United Nations Convention on the Law of the Sea – which could benefit coastal States at the
expense of the rights of other States or the international community. It was also agreed to
examine in greater detail the possible loss or gain of benefits of third States, while it was
noted that no State that had commented thus far on the topic had requested this analysis or
mentioned the issue. Some members noted that, if the approach of fixed baselines were to be
adopted, sea-level rise could result in large areas of internal waters that normally would be
territorial sea (or even high seas), through which there would be no right of innocent passage.
Similarly, fixed baselines could result in maintaining a straits regime in a channel that
normally would not be a strait.
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(vi) Other sources of international law
278. Some members expressed the view that, while the United Nations Convention on the
Law of the Sea was a key source for its States parties, other sources should be analysed further.
It was also recalled that, according to the preamble of the Convention, matters not regulated
by the Convention continued to be governed by the rules and principles of general
international law. Since the legal problems arising as a consequence of sea-level rise could
not be fully addressed within the regime of the Convention, it was suggested that other
relevant rules of general international law should be considered. Other members noted that
the matter was covered by article 5 of the Convention. Such other sources included, notably,
customary international law, the 1958 Geneva Conventions448 and other multilateral and
bilateral instruments concerning a whole range of aspects of the law of the sea and involving
different zones that could be affected by sea-level rise. Some members suggested that other
principles and rules also be examined in more detail, such as the principle that the land
dominates the sea and the principle of freedom of the seas, as well as the role of the principle
of equity, good faith, historic rights and title, the obligation to settle disputes peacefully, the
maintenance of international peace and security, the protection of the rights of coastal States
and non-coastal States, and the principle of permanent sovereignty over natural resources.
The Study Group accordingly intends to follow up on these suggestions in its further work
on the topic.
(vii) Permanency of the exclusive economic zone and the continental shelf
279. Some members raised specific questions concerning the relationship between the
proposal of permanency of the continental shelf and the exclusive economic zone in relation
to the reference, in the first issues paper, to a discrepancy that could emerge between the
permanent outer limits of the continental shelf and possible ambulatory outer limits of the
exclusive economic zone. A view was expressed that certain statements in the first issues
paper regarding the permanency of the continental shelf were incorrect.
280. According to this view, there was no permanency: the argument made in the issues
paper was premised on the identification of the continental shelf based on the geographical
criteria; however, up to 200 nm, it is only the distance criteria that is applied, while, as per
this view, the outer limits of the continental shelf and the exclusive economic zone depend
on the location of baselines. Thus, it was argued, permanency of baselines cannot be asserted
based on the continental shelf being the natural prolongation of the land territory.
(viii) Sea-level rise and article 62, paragraph 2, of the Vienna Convention on the Law of Treaties
281. Some members noted that maritime treaties and adjudicated boundaries should be
final, while commenting that additional study was necessary. The relevance of the principle
of pacta sunt servanda was noted. Several members commented on article 62 of the Vienna
Convention on the Law of Treaties and the question as to whether sea-level rise would
constitute an unforeseen change of circumstances. A number of members noted that there
should be no distinction in that regard between land and maritime boundaries, as reflected in
the international jurisprudence cited in the first issues paper. Other members were more
reserved and considered that additional study should be undertaken on the issue, including
an analysis of the pros and cons of each view. Support was expressed for this suggestion and
it was recalled that on this matter doctrine and the 2018 conclusions of the International Law
Association Committee on International Law and Sea Level Rise lean towards establishing
that changes in land and maritime boundaries should not constitute an unforeseen change of
circumstances. Some members noted that land boundaries are sometimes ambulatory,
dependent upon the location of bank of a river or lake, the median point of a river or lake, or
a river’s thalweg, while a view was expressed that State practice has a different trend: in the
case where the river flow is changed, the agreed river boundary is kept permanently. A view
448 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958), United Nations,
Treaty Series, vol. 516, No. 7477, p. 205; Convention on the High Seas (Geneva, 29 April 1958),
ibid., vol. 450, No. 6465, p. 11; Convention on the Continental Shelf (Geneva, 29 April 1958), ibid.,
vol. 499, No. 7302, p. 311; and Convention on Fishing and Conservation of the Living Resources of
the High Seas (Geneva, 29 April 1958), ibid., vol. 559, No. 8164, p. 285.
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was expressed that whether maritime delimitation treaties were covered by article 62 was a
matter of treaty interpretation, and that it was a matter for international courts and tribunals,
and not for the Commission since that would be beyond its mandate. A point was also raised
regarding the non-binding nature of bilateral maritime boundary agreements upon third States,
which would therefore not be required to recognize agreements establishing or fixing
maritime delimitation boundaries. Another view stated that maritime agreements establishing
boundaries and fixing limits were treaties entered upon in accordance with the Vienna
Convention on the Law of Treaties and are binding upon all States. This is without prejudice
to the obligation of parties to such treaties to take due account of the legitimate rights of third
States in regard to their maritime entitlements in accordance with the United Nations
Convention on the Law of the Sea. It was noted that the matter needed to be further examined,
including from the perspective of objective regimes in international law. It was also suggested
that the Study Group examine the issue of the consequences for a maritime boundary if an
agreed land boundary terminus ended up being located out at sea because of sea-level rise.
(ix) Islands, artificial islands and rocks
282. Some members called for caution in addressing the topic of islands under article 121
of the United Nations Convention on the Law of the Sea. Other members expressed the view
that more attention should have been given to the arbitral award in The South China Sea
Arbitration between the Republic of the Philippines and the People’s Republic of China449 on
the issue of the status of islands under article 121 and the reasons for according to them
maritime entitlements, while the need for a critical analysis of that award was also expressed.
The view was expressed that artificial fortifications dedicated exclusively to preservation
from sea-level rise did not render a natural island artificial. However, a point was raised on
the need for clearer guidelines to distinguish between the construction of artificial islands for
the purpose of preservation from the construction of artificial islands to create artificial
entitlements. A view was expressed that coastal fortifications should not be abused to make
extensive maritime entitlements. A question was posed as to whether the observations in the
first issues paper were limited to sea-level rise or had a more general application. A question
was also raised as to whether “rocks” that become submerged should continue to enjoy
maritime entitlements. It was suggested that freezing the status of an island should not be a
general rule, given that its inundation could be the result of reasons not related to sea-level
rise. The Study Group considered that additional research into this area could be conducted
to ascertain whether such distinction could be made scientifically and how significant a
certain factor was to its study. The high cost of artificial preservation of baselines and coastal
areas was also highlighted.
(d) Concluding remarks at the end of the first part of the session
283. Members made a number of suggestions with regard to the Study Group’s future work
and working methods.
284. Suggestions were made regarding the title of the topic450 and the structure of the first
issues paper. The Study Group considered that the issue regarding the title of the topic could
be examined at a later stage. It also welcomed the suggestions on the structure of the first
issues paper, as well as the ones on bibliography. The suggestion for a study of State
legislation on baselines to be elaborated, with the support of the Secretariat, was also
welcomed by the Study Group. It was also suggested that the first issues paper be included
in volume II, Part One, of the Yearbook of the International Law Commission.
285. Recalling that the mandate of the Study Group was to undertake a mapping exercise
of the legal implications of sea-level rise, which might require follow-up but would not lead
to the development of any specific guidelines or articles, some members suggested that, to
preserve its credibility, the Study Group – and the Commission – ought to be clear and
449 The South China Sea Arbitration between the Republic of the Philippines and the People’s Republic
of China, Award of 12 July 2016, Arbitral Tribunal, Permanent Court of Arbitration, United Nations,
Reports of International Arbitral Awards, vol. XXXIII, p. 166.
450 These suggestions included a proposal to amend the title of the topic to read: “Sea-level rise and
international law”.
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transparent from the beginning in distinguishing between lex lata, lex ferenda and policy
options. It was also suggested that the Commission should be fully guided by its own prior
work relevant to the topic, such as its conclusions on identification of customary international
law and its conclusions on subsequent agreements and subsequent practice in relation to the
interpretation of treaties. The preliminary character of the first issues paper and the need to
respect the mandate of the Study Group to perform “a mapping exercise of the legal questions
raised by sea-level rise and its interrelated issues” were stressed; it was also emphasized that
only at a later stage, after the Study Group had deepened its analysis, and taking into account
the views of its members, could conclusions be drawn.
286. Conversely, the view was expressed that, given the importance of the subject, the topic
should be considered by a special rapporteur, rather than by a study group, to ensure
transparency and to allow the Commission to take a position in relation to draft texts, rather
than undertaking thematic studies. In that regard, it was also suggested that co-special
rapporteurs could be appointed with a view to concluding a set of draft articles that could be
presented to States for the negotiation of a global framework convention on the legal
consequences of sea-level rise, in accordance with article 23 of the Commission’s statute.
287. The methodological approach of the Study Group was also deemed to have important
consequences for the outcome of the topic, considering that such an approach might allow
the Commission to be more creative with proposing solutions for States to deliberate on a
topic that would become increasingly important for the peace, security and stability of the
international community. The view was expressed that any conclusions reached by the
Commission could provide States, especially those particularly affected by sea-level rise,
with practical legal solutions that would preserve their rights and entitlements under the law
of the sea, by explaining existing rules and proposing new ones where lacunae existed. It
would then be for States and the international community as a whole to decide to adopt such
rules, whether through practice, negotiations, international resolutions or agreements on
relevant legal instruments.
288. Some members recommended a cautious approach to avoid rushing to early
conclusions. Referring to the chapter on scientific findings, support was expressed for
treating sea-level rise as a scientifically proven fact of which the Commission could take
notice for the limited purpose of its specific work on the international legal implications of
sea-level rise. In that regard, it was recalled that the mandate of the Study Group excluded
causation, the premise of the work on the topic being that sea-level rise due to climate change
was to be taken as a scientifically proven fact. At the same time, if needed, the Study Group
could consider inviting scientific experts to future meetings of the Study Group.
(e) Outcome of the interactive discussion held during the second part of the session
289. During the first meeting of the Study Group during the second part of the session, held
on 6 July 2021, the Co-Chairs responded to comments made by members of the Study Group
during the first part, and introduced a draft interim report, an English version of which had
been circulated to all members on 2 July 2021, followed by all other language versions on 5
July 2021.
290. During the interactive discussion that followed, members had a debate on the working
methods of the Study Group. Some members expressed concern that the Co-Chairs’ first
issues paper (A/CN.4/740 and Corr.1 and Add.1) may have been interpreted as being of the
Study Group as a whole. The time constraints under which the Study Group was operating,
as well as the need for a collective and consultative process, were also underlined. Some
members further suggested that, given the importance of the topic, it might be preferable for
the Commission to consider following its regular procedure, appointing one or several special
rapporteurs on the topic, so as to allow for more transparency while being in a position to
take into account the position of States through a system of first and second readings of draft
texts. Questions were also raised about the foreseen outcome of the work of the Study Group.
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291. In that regard, the Co-Chairs expressed the view that they had proceeded in
accordance with the methods of work that the Commission had agreed upon in 2019.451 In
their view, these methods of work had been deliberately tailored to be more formal than those
followed by previous study groups, and appeared to be hybrid between the special rapporteur
format and traditional study groups. They welcomed the contributions made by members and
emphasized the need for a collective product. It was noted that the current year’s debate
consisted in a “mapping exercise” conducted on the basis of the first issues paper and the
preliminary observations included therein, and that substantial further research was required
for the Study Group to complete its task on the aspects of the law of the sea related to the
topic. Members were accordingly invited by the Co-Chairs to take the lead on the various
subjects that the Study Group would collectively investigate, some of which had already been
suggested during the exchange of views held in the first part of the session.
292. The foreseen outcome of the Study Group’s work, as outlined during the first part of
the session, was also recalled.452 It was also suggested that the Study Group should, in parallel,
continue to pursue progress on aspects related to the law of the sea.
293. In concluding their exchange on the Study Group’s working methods, members
agreed that the interim report encapsulating the main points of the debate held during the
session would, once finalized and agreed upon by the Study Group, be presented to the
Commission by the Co-Chairs for the purpose of inclusion as a chapter of the annual report
of the Commission.
294. The Study Group then elected to have a substantive discussion on the topic on the
basis of questions prepared by the Co-Chairs in follow up to the debate held during the first
part of the session. 453 As an outcome of this discussion, the Study Group identified the
451 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 265–273. See also paragraphs 245 and 246 above.
452 See also paragraph 0296 below.
453 The guiding questions proposed by the Co-Chairs were as follows: (1) What other sources of law
should the Study Group examine in relation to the topic? For example, it was suggested that, in
addition to the United Nations Convention on the Law of the Sea, there are other “treaties to be
considered, multilateral and bilateral, concerning a whole range of aspects of the law of the sea,
involving different zones that could be affected by sea-level rise. These treaties need to be interpreted,
including in the light of subsequent practice.” Beyond the 1958 Geneva Conventions, such treaties
need to be identified. It was also suggested that the Study Group look to other rules of general
international law that can be relevant in the new context. Indeed, this would be an important issue to
examine. From this perspective, the Co-Chairs would appreciate an indication on which such other
rules could be. It was further suggested that the Study Group examine norms of international
customary law not included in the United Nations Convention on the Law of the Sea, so it would be
very useful to point out which such norms should be taken into account; (2) What specific aspects of
the question of charts and navigation maps should be examined and how? (3) Is there a need for
additional scientific input into the work of the Study Group? Which aspects and how to reconcile
examining different causes of sea-level rise and effects with the limitation of the mandate that the
Study Group cannot examine “causation”?; (4) Is there a need for more technical studies of the
impacts of sea-level rise on baselines, outer limits of maritime zones measured therefrom, and
offshore features? If so, how should this be done? Should the Study Group examine different
scenarios from a purely technical perspective?; (5) Should the Study Group engage in an analysis of
sea-level rise as suggested by a member who expressed an interest for a “discussion of the interests of
those States that stand to gain from sea-level rise due to the loss by other States of their existing rights
and the increase of the surface area of the high seas”?; (6) On the issue of legal stability and
predictability, the question was raised as to whether it deserves more thorough discussion. The
question is which aspects should this be studied and how?; (7) Several members invoked the principle
of equity, an issue also raised by many States. Should equity be an important factor for the Study
Group to take into account in its analysis of the consequences of sea-level rise and finding solutions?
What is understood by “equity” by the Study Group? What other policy considerations could be
considered in favour of the preservation of baselines over ambulatory or vice versa (points raised by
two members)?; (8) It was suggested that there may be “a continuum of possibilities” between the
options (ambulatory/permanency approaches) and all of them should be explored. The Co-Chairs
would appreciate an indication on what such possibilities could be; (9) As suggested by a member,
should the Study Group engage in examining ways in which “to distinguish the construction of
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following issues as areas for further in-depth analysis on which it would focus on a priority
basis in the near future. These studies would be undertaken on a voluntary basis by members
of the Study Group:
(a) Sources of law: in addition to the United Nations Convention on the Law of
the Sea454 (in particular, the genesis and interpretation of its article 5), the 1958 Geneva
Conventions455 (and their travaux préparatoires), as well as customary international law of a
universal and regional scope, the Study Group would examine other sources of law – relevant
multilateral, regional and bilateral treaties or other instruments relating, for example, to
fisheries management or the high seas that define maritime zones, or the 1959 Antarctic
Treaty456 and its 1991 Protocol on Environmental Protection,457 the International Maritime
Organization’s treaties defining pollution or search and rescue zones, or the 2001 Convention
on the Protection of the Underwater Cultural Heritage,458 general principles of law, as well
as the regulations of relevant international organizations such as the International
Hydrographic Organization. The purpose of this examination would be to determine the lex
lata in relation to baselines and maritime zones, without prejudice to the consideration of the
lex ferenda or policy options. It would also aim at assessing whether these instruments permit
or require (or not) the adjustment of baselines in certain circumstances, and whether a change
of baselines would entail a change of maritime zones;
(b) Principles and rules of international law: the Study Group would examine
various principles and rules of international law in more detail, such as the principle that the
land dominates the sea, the principle of the immutability of borders, the principle of uti
possidetis juris, the principle of rebus sic stantibus, or the principle of freedom of navigation,
as well as the role of the principle of equity, the principle of good faith, historic rights and
title, the obligation to settle disputes peacefully, the maintenance of international peace and
security, the protection of the rights of coastal States and non-coastal States, and the principle
of permanent sovereignty over natural resources;
(c) Practice and opinio juris: the Study Group would aim to extend its study of
State practice and opinio juris to regions for which scarce, if any, information had been made
available, including Asia, Europe and Latin America (one member of the Study Group
already assumed the task to perform such analysis for this region) and continuing the work
on Africa. In doing so, the Study Group would examine the interrelation between State
artificial islands for preservation from that to create artificial entitlement”?; (10) Several members
indicated the need to study further article 62 of Vienna Convention on the Law of Treaties (rebus sic
stantibus) and whether it would apply to maritime boundaries agreed to by treaties. In addition to the
impacts of sea-level rise on valid maritime boundary agreements, another issue for the consideration
of the Study Group could be the impact of sea-level rise in an ambulatory baseline scenario to
maritime delimitation cases that have been adjudicated by the International Court of Justice, the
International Tribunal for the Law of the Sea or arbitral tribunals. Would the principle of res judicata
apply? What other principles might apply? Or would there be an obligation to re-open settled cases?
What impact would this have on “stability, security and predictability”?; (11) How to approach the
issue of the effects of sea-level rise on existing claims to the entitlement to maritime spaces in the
case of future maritime delimitations (see paragraph 141 (f) of the first issues paper)?; (12) What
would be the benefits of conducting a study on the law of river delimitations as proposed by a
member?; (13) Should the Study Group develop a list of priority issues to be examined?; (14)
Questions to the Co-Chair who reviewed the practice and laws of African States for further study; and
(15) Study of practice of other regions (Asia, Europe, Latin America) needed. The Co-Chairs would
appreciate members assuming such tasks (as already performed by two members).
454 United Nations, Treaty Series, vol. 1833, No. 31363, p. 3.
455 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958), United Nations,
Treaty Series, vol. 516, No. 7477, p. 205; Convention on the High Seas (Geneva, 29 April 1958),
ibid., vol. 450, No. 6465, p. 11; Convention on the Continental Shelf (Geneva, 29 April 1958), ibid.,
vol. 499, No. 7302, p. 311; and Convention on Fishing and Conservation of the Living Resources of
the High Seas (Geneva, 29 April 1958), ibid., vol. 559, No. 8164, p. 285.
456 The Antarctic Treaty (Washington D.C., 1 December 1959), United Nations, Treaty Series, vol. 402,
No. 5778, p. 71.
457 Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991), ibid.,
vol. 2941, p. 3.
458 Convention on the Protection of the Underwater Cultural Heritage (Paris, 12 November 2001), ibid.,
vol. 2562, part I, No. 45694, p. 3.
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practice and sources of law by assessing whether such practice is relevant to customary
international law or whether it is pertinent to treaty interpretation. The Study Group would
also examine the maritime zone notifications deposited with the Secretary-General of the
United Nations and the national legislation accessible on the website of the Division of the
Law of the Sea and Ocean Affairs of the Office of Legal Affairs to determine whether States
do – or do not – update such notifications and laws;
(d) Navigational charts: Further to the study mentioned in paragraph 37 above,
the Study Group would also consider suggestions that take into account the operational
considerations and circumstances as well as practices of States as far as the updating of
navigational charts.
295. Members of the Study Group also agreed that the Study Group might call upon
scientific and technical experts to assist them in their task, on the understanding that they
would do so in a selective, useful and limited manner.
(f) Future work of the Study Group
296. With regard to the future programme of work, the Study Group will address issues
related to statehood and to the protection of persons affected by sea-level rise, under the cochairpersonship
of Ms. Patrícia Galvão Teles and Mr. Juan José Ruda Santolaria, who will
prepare a second issues paper as a basis for the discussion in the Study Group at the seventythird
session. The Study Group would then seek to finalize a substantive report on the topic,
in the first two years of the following quinquennium, by consolidating the results of the work
undertaken during the seventy-second and seventy-third sessions of the Commission.
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Chapter IX
Sea-level rise in relation to international law
A. Introduction
150. At its seventieth session (2018), the Commission decided to include the topic “Sealevel
rise in relation to international law” in its long-term programme of work.1205 The
General Assembly, in its resolution 73/265 of 22 December 2018, noted the inclusion of the
topic in the long-term programme of work of the Commission.
151. At its seventy-first session (2019), the Commission decided to include the topic in its
programme of work. The Commission also decided to establish an open-ended Study Group
on the topic, to be co-chaired, on a rotating basis, by Mr. Bogdan Aurescu, Mr. Yacouba
Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and Mr. Juan José Ruda Santolaria. At its
3480th meeting, on 15 July 2019, the Commission took note of the joint oral report of the
Co-Chairs of the Study Group.1206
152. At its seventy-second session (2021), the Commission reconstituted the Study Group,
and considered the first issues paper on the topic,1207 which had been issued together with a
preliminary bibliography.1208 At its 3550th meeting, on 27th July 2021, the Commission took
note of the joint oral report of the Co-Chairs of the Study Group.1209
B. Consideration of the topic at the present session
153. At the present session, the Commission reconstituted the Study Group on sea-level
rise in relation to international law, chaired by the two Co-Chairs on issues related to
statehood and to the protection of persons affected by sea-level rise, namely Ms. Galvão
Teles and Mr. Ruda Santolaria.
154. In accordance with the agreed programme of work and methods of work, the Study
Group had before it the second issues paper on the topic (A/CN.4/752), prepared by Ms.
Galvão Teles and Mr. Ruda Santolaria and issued in April 2022, together with a selected
bibliography (A/CN.4/752/Add.1), finalized in consultation with members of the Study
Group and issued only in its original language in June 2022.
155. The Study Group held nine meetings, from 20 to 31 May and on 6, 7 and 21 July
2022.1210
156. At its 3612th meeting, on 5 August 2022, the Commission considered and adopted the
report of the Study Group on its work at the present session, as reproduced below.
157. At the same meeting, the Commission decided to request the Secretariat to prepare a
memorandum identifying elements in the Commission’s previous work that could be relevant
for its future work on the topic, in particular in relation to statehood and the protection of
persons affected by sea-level rise, for its consideration at its seventy-fifth session.
1205 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), para.
369.
1206 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 265–273.
1207 A/CN.4/740 and Corr.1.
1208 A/CN.4/740/Add.1.
1209 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10), paras.
247–296.
1210 For the membership of the Study Group, see chap. I.
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1. Introduction of the second issues paper by the Co-Chairs
(a) Procedure followed by the Study Group
158. At the first meeting of the Study Group, held on 20 May 2022, the Co-Chair (Ms.
Galvão Teles) indicated that the purpose of the six meetings scheduled in the first part of the
session was to allow for an exchange of views on the second issues paper and any relevant
matters that its members might wish to address on the topic, insofar as they related to the two
subtopics under consideration, namely statehood and the protection of persons affected by
sea-level rise. The Co-Chair also invited members to engage in a structured and interactive
debate, drawing upon the contents of the second issues paper, and to provide input on a draft
bibliography on the subtopics, to be issued as an addendum to the second issues paper. The
outcome of the first part of the session would be an interim report of the Study Group, to be
considered and complemented during the second part of the session so as to reflect a further
interactive discussion on the future programme of work. It would then be agreed upon in the
Study Group and subsequently presented by the Co-Chairs to the Commission, with a view
to being included in the annual report of the Commission. That procedure, agreed upon by
the Study Group, was based on the 2019 report of the Commission.1211
159. The Co-Chair also recalled that, as outlined in Part Four of the second issues paper,
section II of which addressed the future programme of work of the Study Group, in the next
quinquennium, the Study Group would revert to each of the subtopics – the law of the sea,
statehood and the protection of persons affected by sea-level rise – and would then seek to
prepare a substantive report on the topic as a whole by consolidating the results of the work
undertaken.
(b) Presentation of the second issues paper
(i) Introduction, general comments and working methods
160. In a general introduction, the Co-Chairs (Ms. Galvão Teles and Mr. Ruda Santolaria)
emphasized the preliminary nature of the second issues paper, underlining that it was
intended to serve as a basis for the Study Group’s discussion and could be complemented by
contribution papers prepared by its members.
161. In addition to containing an outline of the purpose and structure of the issues paper
(chapter I), the introduction addressed the inclusion of the topic in the Commission’s
programme of work and the extent to which it had been considered so far (chapter II). It also
contained an overview of Member States’ expression of support for or interest in the topic,
or otherwise, during the debates in the Sixth Committee since 2018, and a summary of the
outreach initiatives undertaken by the Co-Chairs (chapter III). Chapter IV of the introduction
comprised an update on the scientific findings and prospects of sea-level rise relevant to the
subtopics, which was orally complemented to take account of the fact that two new reports
of the Intergovernmental Panel on Climate Change had been issued since the submission of
the second issues paper, and to share the key findings set out in the report of the panel on the
impacts, adaptation and vulnerability with respect to climate change.1212 Chapter V of the
introduction contained an outline of the relevant outcomes of the International Law
Association’s work. In that regard, the Co-Chairs noted that the Association had since
decided to extend the mandate of the Committee on International Law and Sea-level rise until
2024.
1211 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 270–271.
1212 Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and
Vulnerability – Contribution of Working Group II to the Sixth Assessment Report of the
Intergovernmental Panel on Climate Change [H.-O. Pörtner et al. (eds.)] (Cambridge, Cambridge
University Press); and Intergovernmental Panel on Climate Change, Climate Change 2022:
Mitigation of Climate Change – Contribution of Working Group III to the Sixth Assessment Report of
the Intergovernmental Panel on Climate Change [P.R. Shukla et al. (eds.)] (Cambridge and New
York, Cambridge University Press).
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162. The purpose of Part One (entitled “General”) was to recall the scope and outcome of
the topic, taking into account the limits set forth in the syllabus prepared in 2018.1213 In doing
so, Part One contained, in chapter I, an examination of the issues to be considered by the
Commission to the extent that they related to statehood, the protection of persons affected by
sea-level rise, and the final outcome. Chapter II recalled that methodological and
organizational matters had been addressed in the 2018 syllabus,1214 in chapter X of the 2019
annual report of the Commission,1215 and in chapter IX of its 2021 annual report.1216 In that
connection, the Co-Chairs emphasized that State practice was essential for the work of the
Commission and encouraged States, international organizations and other relevant entities to
continue engaging with the Study Group and the Commission in order to share their practices
and experiences with regard to the topic.
(ii) Statehood and related observations and guiding questions
163. Part Two of the second issues paper, entitled “Reflections on statehood”, was
introduced by the Co-Chair of the Study Group (Mr. Ruda Santolaria) at the second meeting
of the Study Group.
164. The Co-Chair recalled that sea-level rise is a global phenomenon, which is not uniform
and poses serious threats to all States. For low-lying and small island developing States, the
threat is existential in nature, and in the case of small island developing States, it concerns
their very survival. He noted that, while there had been cases within the same State of
evacuation of the population from one island to another,1217 there was no record of situations
where the territory of a State had been completely submerged or rendered uninhabitable. In
light of the progressive character of the phenomenon, such a situation could not, however, be
considered a distant theoretical concern. The Co-Chair also recalled that the preliminary
reflections on statehood did not aim to prejudge or formulate conclusions on those sensitive
matters, which deserved considerable caution. The paper aimed to explore certain past or
present experiences or situations so as to establish a list of relevant international law issues
to be analysed from the perspective of both lex lata and lex ferenda.
165. Turning to chapter II of Part Two of the issues paper, which focused on criteria for
the creation of a State, the Co-Chair recalled that there was no generally accepted notion of
a “State”. He noted, however, that to be considered a “person” or subject of international law,
a State had to meet four criteria in accordance with article 1 of the 1933 Convention on the
Rights and Duties of States: 1218 (a) permanent population; (b) defined territory; (c)
government; and (d) capacity to enter into relations with other States. The Co-Chair pointed
out that the latter point also applied to other subjects of international law. A general overview
of the criteria was provided in chapter II. As a matter of further reference, chapter II also
explored the characteristics of a State contained in provisions of other illustrative texts: the
1936 resolution of the Institut de Droit International concerning the recognition of new States
and new Governments;1219 the 1949 draft Declaration on Rights and Duties of States;1220 the
1956 draft articles on the law of treaties proposed by the Special Rapporteur;1221 and the
opinions of the Arbitration Commission of the 1991 International Conference on the Former
1213 Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10), annex
B, paras. 12–14.
1214 Ibid., para. 18.
1215 A/74/10, para. 263–273.
1216 A/76/10, para. 245–246.
1217 For example, the people of the Carteret Islands, in Papua New Guinea, have been relocated owing to
sea-level rise.
1218 Convention on the Rights and Duties of States (Montevideo, 26 December 1933), League of Nations,
Treaty Series, vol. CLXV, No. 3802, p. 19.
1219 Institut de Droit International, “Resolutions concerning the recognition of new States and new
Governments” (Brussels, April 1936), The American Journal of International Law, vol. 30, No. 4,
Supplement: Official Documents (October 1936), pp. 185–187.
1220 Yearbook of the International Law Commission 1949, p. 287.
1221 Yearbook of the International Law Commission, 1956, vol. II, document A/CN.4/101, para. 10, at pp.
107–108.
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Yugoslavia,1222 in which the definition of the characteristics of a State was consistent with
the requirements of the Convention on the Rights and Duties of States.
166. Chapter III contained some representative examples of actions taken by States and
other subjects of international law, starting with the Holy See and the Sovereign Order of
Malta. In that regard, it was noted that those entities, despite having been deprived of their
territories at a certain point in history, maintained their legal personality and continued to
exercise some of their rights under international law, in particular the right of legation and
the treaty-making power (sections A and B). Chapter III (section C) also considered the
example of Governments being forced into exile by foreign military occupation or other
circumstances. In that connection, it was noted that, despite losing control over all or a large
part of their territory, the affected States retained their status as such and their representative
organs moved to territories under the jurisdiction of third States that hosted them, which was
regarded as constituting evidence of a presumption of continuity of statehood. In a similar
vein, the Co-Chair, drawing upon certain international instruments referred to in section D
of chapter III, including the Convention on the Rights and Duties of States, noted that once
a State was created as such under international law, it had an unalienable right to take
measures to remain a State.
167. With respect to chapter IV, on concerns relating to the phenomenon of sea-level rise
and measures taken in that regard, the following aspects were listed for consideration relevant
to the issue of statehood:
(a) the possibility that the land area of the State could be completely covered by
the sea or rendered uninhabitable, and that there would not be sufficient supply of drinking
water for the population;
(b) the progressive displacement of persons to the territories of other States, which
in turn raised questions related to nationality, diplomatic protection and refugee status;
(c) the legal status of the Government of a State affected by sea-level rise that had
taken residence in the territory of another State;
(d) the preservation of the rights of States affected by the phenomenon of sea-level
rise in respect of the maritime areas;
(e) the right to self-determination of the populations of affected States.
168. The Co-Chair further stressed the need to examine measures aimed, on the one hand,
at mitigating the effects of sea-rise level – such as coastal reinforcement measures and the
construction of artificial islands – and, on the other hand, possible alternatives for the future
concerning statehood in the event of complete inundation of a State’s territory. With respect
to the former, the high cost of preservation measures and the need to assess their
environmental impact were underlined, including through cooperation in favour of the most
affected States. In connection with the latter, the urgent necessity to take into account the
perspective of small island developing States was also emphasized.
169. Against the above background, chapter V presented several preliminary alternatives
that were neither conclusive nor limitative. The first of the proposed alternatives was to
assume a presumption of continuity of statehood. That proposal was in line with the
preliminary approach taken by the International Law Association and with the views
expressed by some States that the Convention on the Rights and Duties of States applied only
to the determination of the birth of a State rather than to its continued existence. At the same
time, it was noted that continuity of statehood in the absence of a territory could entail certain
practical problems, such as statelessness of its population or difficulties in exercising rights
over maritime zones. Another possible alternative that could be explored consisted in
maintaining some form of international legal personality without a territory, similar to the
examples of the Holy See and the Sovereign Order of Malta, in relation to which the Co-
Chair outlined various modalities: (a) ceding or assignment of segments or portions of
1222 Maurizio Ragazzi, “Conference on Yugoslavia Arbitration Commission: opinions on questions
arising from the dissolution of Yugoslavia”, International Legal Materials, vol. 31, No. 6
(November 1992), pp. 1488–1526, at p. 1495.
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territory in other States, with or without transfer of sovereignty; (b) association with other
State(s); (c) establishment of confederations or federations; (d) unification with another State,
including the possibility of a merger; and (e) possible hybrid schemes combining elements
of more than one modality, specific experiences of which may be illustrative or provide ideas
for the formulation of alternatives or the design of such schemes.
170. At the third meeting of the Study Group, the Co-Chair introduced the guiding
questions related to statehood, contained in paragraph 423 of the paper. He emphasized that
these questions were meant to serve as a basis for future discussions within the Study Group.
(iii) Protection of persons affected by sea-level rise and related observations and guiding
questions
171. At the fourth meeting of the Study Group, the Co-Chair (Ms. Galvão Teles) recalled
some of the preliminary observations based on Parts Three and Four of the second issues
paper, concerning the subtopic “Protection of persons affected by sea-level rise”.
172. The Co-Chair noted that the existing international legal frameworks potentially
applicable to the protection of persons affected by sea-level rise were fragmented and general
in nature, suggesting that they could be further developed to address specific needs of
affected persons. In particular, the existing framework could be further complemented to
reflect the specificities of the long-term or permanent consequences of sea-level rise and to
take account of the fact that the affected persons could remain in situ, be displaced within
their own territory or migrate to another State in order to cope with or avoid the effects of
sea-level rise. In that connection, the Commission’s prior work, namely the 2016 draft articles
on the protection of persons in the event of disasters,1223 was regarded as a basis for that
exercise.
173. The Co-Chair also noted that, while relevant State practice at the global level remained
sparse, it was more developed among States already affected by sea-level rise. The Co-Chair
observed that some of the practice identified was not specific to sea-level rise, but generally
concerned the phenomena of disasters and climate change. Nonetheless, the practice revealed
several principles that might prove useful for the Study Group’s examination of the topic. It
was also observed that international organizations and other entities with relevant mandates
were taking a more proactive approach in order to promote practical tools to enable States to
be better prepared to address issues related to human rights and human mobility in the face
of climate displacement. The Co-Chairs’ efforts to facilitate the exchange of information with
States, international organizations and other stakeholders, including through expert meetings,
were also underlined.
174. The Co-Chair recalled several relevant international instruments examined in Part
Three of the second issues paper, including the Guiding Principles on Internal
Displacement, 1224 the African Union Convention for the Protection and Assistance of
Internally Displaced Persons in Africa (Kampala Convention),1225 the New York Declaration
for Refugees and Migrants, 1226 the Global Compact for Safe, Orderly and Regular
Migration,1227 the Sendai Framework for Disaster Risk Reduction 2015–2030,1228 the Nansen
Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the Context of
Disasters and Climate Change, 1229 and the International Law Association’s Sydney
Declaration of Principles on the Protection of Persons Displaced in the Context of Sea-level
1223 Yearbook of the International Law Commission, 2016, vol. II (Part Two), para. 48.
1224 E/CN.4/1998/53/Add.2, annex.
1225 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa
(Kampala, 23 October 2009), United Nations, Treaty Series, vol. 3014, No. 52375, p. 3.
1226 General Assembly resolution 71/1 of 19 September 2016.
1227 General Assembly resolution 73/195 of 19 December 2018, annex. See also A/CONF.231/7.
1228 General Assembly resolution 69/283 of 3 June 2015, annex II.
1229 Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of
Disasters and Climate Change, vol. 1 (December 2015).
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Rise.1230 The importance of the recent Views adopted by the Human Rights Committee in
Teitiota v. New Zealand, 1231 which concerned the applicability of the non-refoulement
principle in the context of both climate change and sea-level rise, was noted. The Co-Chair
further noted that, according to the Human Rights Committee in that case, the effects of
climate change, namely sea-level rise, in receiving States could expose individuals to a
violation of their rights under articles 6 (right to life) or 7 (prohibition of torture and cruel,
inhuman or degrading treatment or punishment) of the International Covenant on Civil and
Political Rights,1232 thereby triggering the non-refoulement obligations of sending States.
175. Turning to Part Four of the second issues paper, the Co-Chair then referred to
paragraph 435, which contained a list of guiding questions related to the protection of persons
affected by sea-level rise. The questions were divided into three subsets, relating to: (a) the
principles applicable to the protection of the human rights of the persons affected by sealevel
rise; (b) the principles applicable to situations involving evacuation, relocation,
displacement, or migration of persons, including vulnerable persons and groups, owing to the
consequences of sea-level rise or as a measure of adaptation to sea-level rise; and (c) the
applicability and scope of the principle of international cooperation to help States with regard
to the protection of persons affected by sea-level rise. The Co-Chair emphasized that the
guiding questions had been proposed in order to structure the future work of the Study Group
on the topic, and that proposals or contributions from its members on any of the issues raised
therein, and on aspects of State practice and the practice of relevant international
organizations and other relevant entities with regard to the issues raised therein, would be
welcomed.
2. Summary of the debate
(a) General comments
(i) Topic in general
176. Commenting on the topic in general terms, members of the Study Group reiterated the
topic’s relevance and the crucial importance of the Commission’s discussion for States that
are directly affected by sea-level rise, including for those whose survival might be threatened.
Some members also expressed a sense of urgency given the issues at stake and the gravity of
the situation, noting that sea-level rise had consequences that affected many branches of
international law. It was also noted that the States that could be at risk of losing their
statehood were small island developing States, which contributed the least to pollution
emissions in the atmosphere yet were the most affected by climate change through sea-level
rise.
177. It was also noted, however, that while the needs of small island developing States as
specially affected States should be carefully taken into account, consistent with the position
of the Commission in its conclusions on identification of customary international law,1233 the
Commission ought not to overlook the comments and needs of other States, given that the
legal consequences of sea-level rise would affect not only small island developing States and
coastal States, but all States. It was also noted that a middle path had to be found between the
human and legal dimensions of the topic to make sure that the former was wedded with the
latter. It was furthermore underlined that some aspects of the topic addressed difficult and
sensitive matters in the nature of policy questions, in relation to which the Commission ought
to be cautious, and that the Commission should focus on the legal aspects of the topic, in
accordance with its mandate to progressively develop and codify international law.
1230 Final report of the Committee on International Law and Sea-Level Rise, in International Law
Association, Report of the Seventy-eighth Conference, Held in Sydney, 19–24 August 2018, vol. 78
(2019), pp. 897 ff., and resolution 6/2018, annex, ibid., p. 33.
1231 CCPR/C/127/D/2728/2016.
1232 International Covenant on Civil and Political Rights (New York, 16 December 1966), United Nations,
Treaty Series, vol. 999, No. 14668, p. 171.
1233 A/73/10, chap. V (paras. 53–66).
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(ii) Second issues paper
178. Members of the Study Group largely expressed gratitude to the Co-Chairs (Ms.
Galvão Teles and Mr. Ruda Santolaria) for a very well-documented and structured second
issues paper, noting that it presented extensive relevant information in a systematized way,
that it was of high quality and that it provided an excellent basis for the Study Group to
deliberate on the two subtopics under consideration. It was also noted, however, that the
relevance of some developments in the paper – such as comments on the issues of nationality
and diplomatic protection with regard to statehood – was not obvious. It was also recalled
that the content of the issues paper pertained to the Co-Chairs, not to the Commission as a
whole.
179. Members further welcomed the Co-Chairs’ outreach efforts on the topic, in terms of
both gathering evidence of the practice of States, international organizations and other
relevant entities and generating greater interest in and contributions on the topic in
intergovernmental and academic fields.
(iii) Scope of the work of the Study Group and working methods
180. Regarding the scope of the work of the Study Group, differing views were expressed
in relation to both the material scope and the temporal scope of the topic: while some
members of the Study Group considered that they were too ambitious and ought to be
narrowed, limitations placed upon the topic were viewed by others as preventing the Study
Group from reaching conclusions on whether existing international law would be sufficient
to address the challenges faced or whether new rules or principles were required to fill
potential gaps.
181. The need to focus on the legal dimension of the topic and avoid speculative scenarios,
while ascertaining the operational role of the Commission and distinguishing matters of
policy from matters of international law, was also emphasized. In the latter regard, it was
suggested that the role of the Commission on the topic should be limited to reviewing or
outlining the relevant legal problems arising from situations of sea-level rise. It was also
suggested, in contrast, that the Commission could examine policy-related issues and allow
for the possibility of developing existing law or, at least, of making non-binding policy
suggestions.
182. The need to identify the nexus between the subtopic on issues related to the law of the
sea – which the Commission had considered during its seventy-second session – and the
subtopics being examined at the current session was also underlined. In that regard, the
interrelation between the impact of sea-level rise and the law of the sea was underlined, in
particular the principle that “the land dominates the sea” and the principle of freedom of the
seas.
183. With regard to working methods, it was noted that it would be useful to clarify how
the product of the Study Group would reflect its members’ contribution papers. It was further
suggested that the Commission, in the next quinquennium, could consider turning the topic
into a traditional topic, with a designated special rapporteur or rapporteurs and with public
debates in a plenary format.
(iv) Scientific findings
184. With regard to scientific findings, while it was suggested that the Commission might
need to appraise the scientific findings upon which it relied so as to be in a position to provide
a uniform assessment of the risks, members largely recalled that the work of the Study Group
was based on the common ground that sea-level rise was a fact, already proved by science,
which was significantly affecting a number of States and was a global phenomenon. It was
also noted that an excellent outline of the available scientific data was given in paragraphs
45 to 51 of the second issues paper, and that it was wise to lean – as did the first and second
issues papers – on the work of highly regarded expert groups such as the Intergovernmental
Panel on Climate Change.
185. On whether future meetings with scientists were needed, differing views were
expressed. Members of the Study Group nonetheless welcomed the Co-Chairs’ proposal to
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organize focused meetings to inform and educate them about the aspects most relevant to
their study of the legal questions.
(v) State practice
186. Members of the Study Group reiterated that State practice was essential to the work
of the Study Group on the topic and that the limited State practice available restricted the
mapping exercise with which it had been entrusted. It was also emphasized that, so far, no
States were in the process of becoming completely submerged or otherwise uninhabitable.
187. In terms of scale and representativity, while it was noted that regional practice from
small island States – specifically in the Pacific – was steadily emerging, a paucity of
comments from Latin America and the Caribbean, Asia and Africa was observed, in
conjunction with the need for the Commission to pursue governmental outreach initiatives
and for members of the Study Group to prepare contribution papers on regional practice.
188. It was suggested that, in the particular circumstances of an extremely complex,
existential and unavoidable phenomenon such as sea-level rise, where there was limited State
practice since no State had yet been fully submerged, the Commission might instead have
recourse to reasoning by analogy and interpretative norms, consistent with its mandate to
progressively develop international law. In that sense, it was recalled that international legal
practice included use of international law principles and constant interpretation of legal
norms in light of events, in order to be able to address new challenges when appropriate. The
need for the Commission to reflect on the basis of international law and to generate a dialogue
on the possible options and alternatives, as the Co-Chairs had done to identify the most
suitable of them, was also underlined.
(vi) Sources of law
189. With regard to sources of law, it was reiterated that the Commission should take
account of treaties, custom and general principles of law that could be applicable – including,
for example, the principle of equity, the principle of good faith and the principle of
international cooperation – as relevant to the topic. The central role of the United Nations
Convention on the Law of the Sea and the need to preserve its integrity was also
emphasized.1234
190. It was suggested by some members of the Study Group that the principle of
international cooperation seemed equally relevant to both subtopics under consideration. It
was also observed that the principle could play an important role for States to provide for
their own preservation, as suggested by the Co-Chairs in the second issues paper. Given the
particularly high cost of preservation measures such as the installation or reinforcement of
coastal barriers or defences and dykes, the importance of international cooperation through
technology transfer and the exchange of best practices was thus underlined. International
cooperation was deemed equally important in relation to the construction of artificial islands
to house persons affected by the phenomenon of sea-level rise, given the cost of these
initiatives and their potential environmental impact, so that other such durable and
environmentally sustainable formulas could be found. The need to identify practical ways
and means to achieve such international cooperation was underlined.
191. It was also observed that any reflection on statehood and sea-level rise should include
the principle of common but differentiated responsibilities, insofar as the cost of addressing
such a severe global environmental problem should be distributed among different States
according to their historical responsibility and to their capabilities. To that end, the Study
Group could build upon the already existing legal frameworks designed to address climaterelated
global challenges, including, inter alia, article 2 of the Vienna Convention for the
Protection of the Ozone Layer,1235 principle 7 of the Rio Declaration on Environment and
1234 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), United
Nations, Treaty Series, vol. 1833, No. 31363, p. 3.
1235 Vienna Convention for the Protection of the Ozone Layer (Vienna, 22 March 1985), United Nations,
Treaty Series, vol. 1513, No. 26164. p. 293.
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Development, 1236 article 3 of the United Nations Framework Convention on Climate
Change1237 and the Kyoto Protocol thereto,1238 article 20 of the Convention on Biological
Diversity,1239 and the Paris Agreement.1240
192. Differing views, encompassing support and scepticism, were also expressed in
relation to the relevance to statehood of the principle that the land dominated the sea.
(b) Comments on statehood and related observations and guiding questions
(i) Criteria of the Convention on the Rights and Duties of States
193. During the exchanges on statehood, it was noted that statehood was a complex issue
deserving of caution, and emphasized, as outlined in the second issues paper, that there was
neither a generally accepted definition of a State, nor clearly defined criteria for the extinction
of a State. It was noted that the Commission itself had faced difficulties in defining statehood
in the context of its work on the 1949 draft Declaration on Rights and Duties of States. In
that regard, it was observed that the term “State” had many meanings, that it had to be
interpreted in the context of a particular treaty, and that there was controversial international
case law on the matter. It was also noted that the issue of statehood was relevant only to those
States whose territory could totally disappear or become unsuitable for sustaining human
habitation or economic life, suggesting that the effect of sea-level rise could be limited to a
very small number of States.
194. Diverse views were expressed regarding the relevance of the four criteria for the
establishment of a State as set out in article 1 of the Convention on the Rights and Duties of
States, namely that a State have a permanent population, a defined territory, a sovereign
Government, and the capacity to enter into relations with other States and other subjects of
international law.
195. In that connection, it was noted that each of the criteria was multifaceted, with many
exceptions, possibilities and changing definitions. While these criteria were deemed to be a
useful anchoring or starting point for the discussion on statehood and sea-level rise, it was
noted that they were the product of a different historical context, at a time when the
disappearance of a territory due to environmental changes was conceivable as a matter of
fiction only. As such, they might unnecessarily limit the statehood options remaining for
affected States. It was also observed that the criteria were not indefinite requirements, and
that a State could not automatically disappear because it no longer met one of them, especially
through the loss of a territory or a population due to inhabitability.
196. Regarding the criterion of territory, it was affirmed that a territory was a prerequisite
for the establishment of a State, and that the existence of land territory had been a deeply
rooted aspect of statehood. In contrast, it was noted that sovereignty referred to the whole
territory under the State’s control and not solely to the land territory. Thus, a territory that
became fully submerged because of sea-level rise should not be considered a non-existent
territory.
197. It was also underlined that the capacity to enter into relations with other States, the
fourth criterion, was viewed in some legal traditions as a consequence stemming from
statehood, meaning that there were in fact three real constituent elements of a State: a territory,
a population and an effective Government.
198. It was further noted that, in their practice, States had developed modern criteria that
supplemented those of the Convention on the Rights and Duties of States, hence the need for
1236 A/CONF.151/26/Rev.l (Vol. l).
1237 United Nations Framework Convention on Climate Change (New York, 9 May 1992), United
Nations, Treaty Series, vol. 1771, No. 30822, p. 107.
1238 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11
December 1997), United Nations, Treaty Series, vol. 2303, No. 30822, p. 162.
1239 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992), United Nations, Treaty Series, vol.
1760, No. 30619, p. 79.
1240 Paris Agreement (Paris, 12 December 2015), United Nations, Treaty Series, No. 54113 (volume
number has yet to be determined), available from https://treaties.un.org.
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the Commission to be careful with its conclusions in that regard. A study on the practice of
States regarding the interpretation of the criteria of the Convention on the Rights and Duties
of States might therefore be helpful, including to take account of the decisions of the Security
Council of the United Nations given their importance in certain cases of statehood. The point
was also made that, according to State practice, failure to meet any of the criteria of the
Convention on the Rights and Duties of States did not necessarily result in the termination of
statehood.
(ii) Statehood and self-determination
199. In the course of the discussion, it was observed that, with a view to understanding
which statehood options could be made available to States affected by sea-level rise, the
interests and needs of the affected population should be an essential consideration. In that
regard, the preservation of an affected population as a people for the purposes of exercising
the right of self-determination should be one of the main pillars of the work of the
Commission on the issue. At the same time, it was noted that the Commission should keep
in mind the special historical and legal contexts of the right of self-determination and exercise
caution in applying that principle in relation to sea-level rise.
(iii) Statehood and presumption of continuity
200. Turning to comments on the presumption of continuity of submerged or uninhabitable
States and the maintenance of their international legal personality, as outlined in the second
issues paper, various views were expressed by members of the Study Group.
201. It was indicated that the presumption of continuity of statehood was a relevant solution
to address the consequences of sea-level rise, expressing support for the customary
presumption to be considered by the Study Group as a starting point, given that, in particular,
there was no clear criterion in customary international law for the cessation of a State. In that
regard, it was noted that such an approach would also be in line with the preliminary
conclusions reached by the International Law Association during its 2018 Sydney
Conference. It was further asserted that the right to preservation was a right inherent in
statehood.
202. According to another view that was presented, preliminary presumption of continuity
of statehood was subject to further consideration by States, some of which had previously
supported that option, disfavouring the extinction of States affected by sea-level rise. It was
also suggested that it was not an issue on which the Commission could draw a specific
conclusion, given that its role should be limited to outlining the relevant legal problems
arising from the situation of sea-level rise, rather than taking further steps to provide specific
solutions.
203. In that regard, it was recalled that, consistent with the 2018 syllabus, as referred to in
paragraph 64 of the second issues paper, the Commission was, inter alia, to undertake an
“analysis of the possible legal effects on the continuity or loss of statehood in cases where
the territory of island States is completely covered by the sea or becomes uninhabitable”.1241
It was accordingly proposed that the Commission might consider: (a) legal issues arising
from the continuity of statehood in the absence of territory, such as diplomatic protection for
de facto stateless persons, which were partly discussed in the issues paper; and (b) legal issues
arising from the discontinuity of statehood, namely extinction of statehood, which had not
been considered so far.
204. It was also noted that the principle of continuity of statehood was temporary, aimed
at allowing a State to be protected in the absence of a normal situation, as, for example, in
the event of military occupation of a territory or internal violence, referred to in paragraphs
192 and 193 of the second issues paper. Further, it was observed that the inundation of a
territory or complete absence thereof could not be compared to a change in a territory, and
that the presumption of continuity could be envisaged only where a territory and population
existed. In that regard, while it was recalled that a territory was an indispensable element of
1241 A/73/10, annex B, para. 16.
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334 GE.22-12452
a State, it was also stressed that, rather than depending upon its territory and population, the
presumption of continuity of a State was attached to its legal personality.
205. The risks associated with the continuation of statehood in the absence of a territory,
or where a disembodied State, without a territory, was subject to the sovereignty of another
State, were also underlined. The capacity of such a State to uphold its international and
domestic obligations, whether, for example, in relation to its maritime zones or in the field
of human rights, migration and refugee law, was also questioned. The need for the Study
Group to identify means and methods for preserving peoples’ cultural and traditional
identities, whether by statehood or otherwise, in low-lying coastal land as well as in fully
submerged territories, was also stressed.
(iv) Other possible alternatives for the future concerning statehood
206. Against the background of the above exchange, the Study Group also examined the
other possible alternatives for the future concerning statehood, as set out in chapter V of Part
Two of the issues paper, such as the maintenance of international legal personality without a
territory, and the use of various modalities, as listed in paragraph 169 above, to maintain
statehood.
207. In doing so, the Study Group generally welcomed the in-depth analysis and the many
illustrative examples explored by the Co-Chair, including those of the Holy See between
1870 and 1929, the Sovereign Order of Malta, and Governments in exile. While it was
suggested that they might be helpful to the Study Group in further assessing the loss of
statehood for submerged or uninhabitable States, they were deemed of historical interest
rather than useful analogies in examining options aimed at maintaining the existence of States
affected by sea-level rise. In that regard, it was notably emphasized that the context
surrounding the examples provided by the Co-Chair, in which the entities in question
appeared not to be truly regarded as a State, was fundamentally different to the context of a
territory becoming unavailable, as in the case of sea-level rise.
208. Taking into account the various options examined in the second issues paper, it was
suggested that a careful and prudent analysis of the possible alternatives be carried out, and
that the creation of sui generis legal regimes, on the basis of either agreements between States
or decisions by the international community, not be ruled out. In that regard, reference was
made to certain cases in which various association agreements allowed the free movement of
persons from small island States to a larger State, whereas in other cases no such agreement
existed, with the example provided of a procedure in place for other small island States
whereby only 75 persons selected by ballot were allowed to move to the larger State each
year.1242
209. In contrast, the view was expressed that it was not the role of the Commission to
recommend certain arrangements over others, a task that should be left to the political realm.
Also noted was the potential imbalance in power between a disappearing State and the other
(potentially receiving) State with which it would be negotiating a solution: in such a context,
the maritime entitlements of the disappearing State could largely or entirely be transferred to
the other (receiving) State as part of the arrangement.
(v) Statehood and reclamation efforts
210. Given the importance attached to the possession of a territory in practice, even in small
amount, it was suggested that a potential solution could lie in preserving some part of a
disappearing State, such as through reclamation efforts. Those efforts would take an already
1242 See, for example, the Statement of Partnership between New Zealand and Tuvalu (2019–2023),
available at https://www.mfat.govt.nz/assets/Countries-and-Regions/Pacific/Tuvalu/Statement-of-
Partnership-NZ-Tuvalu-_2019-2023.pdf. See also New Zealand, Operational Manual, available at
https://www.immigration.govt.nz/opsmanual/#46618.htm; and the New Zealand Government
Immigration website at https://www.immigration.govt.nz/new-zealand-visas/apply-for-a-visa/aboutvisa/
pacific-access-category-resident-visa; as well as R. Curtain and M. Dornan, “Climate change and
migration in Kiribati, Tuvalu and Nauru”, DevPolicyBlog, 15 February 2019, available at
https://devpolicy.org/climate-change-migration-kiribati-tuvalu-nauru-20190215/.
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existing feature, in its natural condition – such as an island – and expand the size of that
feature so as to increase the land mass.
(vi) Statehood and compensation
211. It was suggested that, rather than analysing various concepts of statehood and trying
to find precedents where there were none, it would be useful to give consideration to the
classic issue of compensation for the damage caused, keeping in mind that considerations of
continuity of sovereignty would not resolve the challenges faced by the most affected States,
which had contributed the least to a phenomenon largely caused by uncontrolled human
industry. It was alternatively suggested that addressing compensation as part of the topic
could be counterproductive and that it was not expressly mentioned in the 2018 syllabus.
212. It was also noted that some States had expressed concerns about the subtopic of
statehood and that it might be necessary to ascertain the extent to which global sea-level rise
was attributable to changes in coastlines, given that other such human activity could explain
the phenomenon.
(vii) Comments on guiding questions
213. Members of the Study Group made the following observations with respect to the
guiding questions listed in paragraph 423 of the second issues paper:
(a) It was suggested that it should be possible for a State, in exceptional
circumstances, to continue its existence despite no longer meeting some or all of the criteria
set out in the Convention on the Rights and Duties of States. Yet, caution was called for, as
practical situations would always be open to interpretation. At the same time, it was noted
that the criteria of population and territory remained crucial, and that the prolonged or
permanent loss of territory would inadvertently have an effect on statehood;
(b) It was noted that the cases of the Holy See and the Sovereign Order of Malta
were not helpful to the examination of the subtopic, although it was also observed that while
not directly related, they could be considered by analogy. Relatedly, cases of Governments
in exile, which were by definition temporary and did not involve the disappearance of a
territory, were not considered directly relevant. According to another view, some valuable
conclusions could be drawn from cases of Governments being forced in exile for, at least, the
immediate aftermath of the disappearance of a State’s land territory due to sea-level rise or
for when the land territory of a State became uninhabitable despite not being totally covered
by the sea;
(c) Hesitation was expressed as to the existence and content of the right of a State
to provide for its preservation, and it was proposed that the Study Group avoid addressing
preservation measures from the rights and obligations perspective;
(d) and (e) It was observed that maintaining a presumption of continuity of
statehood could result in complex practical difficulties. It was deemed uncertain whether the
questions in subparagraphs (d) and (e) of paragraph 423 of the second issues paper were
practical or necessary for the Study Group to explore. At the same time, it was proposed that
the Study Group develop a set of preventive tools for States to use;
(f) It was noted that any practical modalities would depend on agreements
between the States concerned. Some members expressed doubt as to the possibility of
expanding the right of self-determination in that context;
(g) A view was expressed that there was no presumption of continuity of statehood.
It was also noted that the Study Group should not determine the existence of such a
presumption, but instead explore whether it was appropriate;
(h) It was noted that, assuming that a State could still maintain its jurisdiction over
maritime zones despite losing its land territory, practical difficulties would arise, including
in terms of the State fulfilling its obligations within those zones. Nonetheless, that situation
was considered as a potential recourse for affected States. The need to differentiate between
cases of complete and partial inundation, and situations where the land territory of a State
became uninhabitable despite not being totally covered by the sea, was emphasized;
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(i) According to one view, the question in subparagraph (i) of paragraph 423 of
the second issues paper was not useful or relevant to the topic. It was also noted that
suggesting specific modalities, such as the establishment of a self-governing area within the
territory of a third State, was beyond the scope of the topic;
(j) It was observed that the choice of statehood options was a policy issue and
would depend on agreements between the States concerned in each particular case.
(c) Comments on the protection of persons affected by sea-level rise and related guiding
questions
(i) Existing legal frameworks
214. During discussions on the subtopic at the fourth and fifth meetings of the Study Group,
it was noted that there was no legal framework that provided for a distinct legal status of
persons affected by sea-level rise and that existing applicable frameworks were highly
fragmented. Support was voiced for the proposal to identify and assess the effectiveness of
the existing principles applicable to the protection of persons affected by sea-level rise. The
need to consider different features of sea-level rise in the course of that exercise was
emphasized. According to another view, it was questionable as to whether the fragmented
nature of applicable rules caused any practical problems. It was therefore considered
unnecessary to develop a highly specific legal framework for the protection of the narrow
group of persons affected by sea-level rise.
215. While commenting on the question of the applicability of existing legal frameworks,
some members noted that international refugee law, climate change law and international
humanitarian law were not equipped to deal with the protection of persons affected by sealevel
rise. In contrast, several relevant international legal instruments, such as the Kampala
Convention, the New York Declaration for Refugees and Migrants and the Global Compact
for Safe, Orderly and Regular Migration, were noted as examples of successful State
cooperation. Members also recalled recent relevant case law of the United Nations human
rights treaty bodies.1243
216. With respect to the question of available State practice, regret was expressed that only
a few States had provided the Commission with relevant information on the topic. It was
proposed that the request to States, international organizations and other relevant entities for
information and practice be reiterated. Examples were provided of administrative policies
adopted by States in response to cross-border displacement induced by sea-level rise. The
practices of issuing humanitarian visas and of granting subsidiary protection to persons not
qualifying as refugees were regarded as requiring further examination.
(ii) Applicability of human rights law
217. It was recognized that climate change and sea-level rise could adversely affect the
enjoyment of human rights, and that there was a need to view all human rights – civil, political,
economic, social and cultural – as interrelated, interdependent and indivisible. It was also
noted that, while not directly addressing the issue of sea-level rise, certain regional
instruments, such as the Cartagena Declaration on Refugees1244 and the Brazil Declaration1245
in Latin America or the Kampala Convention in Africa,1246 did take into account climate
change and disasters as cause for movement of persons who needed protection. It was further
stressed that States must respect their human rights obligations while addressing the
1243 For example, Teitiota v. New Zealand (CCPR/C/127/D/2728/2016) and Bakatu-Bia v. Sweden
(CAT/C/46/D/379/2009).
1244 Cartagena Declaration on Refugees, adopted at the Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama: Legal and Humanitarian Problems, held in
Cartagena, Colombia, on 19–22 November 1984. Available at
www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf.
1245 Brazil Declaration: “A Framework for Cooperation and Regional Solidarity to Strengthen the
International Protection of Refugees, Displaced and Stateless Persons in Latin America and the
Caribbean”, 3 December 2014. Available at: https://www.unhcr.org/brazil-declaration.html.
1246 See footnote 1225 above.
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phenomenon of sea-level rise. Relatedly, it was recalled that the Human Rights Council had
recently recognized the right to a clean, healthy and sustainable environment.1247
218. Some members of the Study Group questioned whether the international human rights
law framework could be fully relevant to the protection of persons affected by sea-level rise.
It was observed that while States had human rights obligations towards individuals, the sealevel
rise phenomenon was not directly attributable to any particular State. Accordingly, it
was unclear how human rights rules would operate within that context and, specifically, how
and against whom claims related to sea-level rise could be brought. Those questions were
considered even more pertinent in the case of a State whose territory was completely
submerged or rendered uninhabitable. In response, it was also argued that human rights law
was an important lens through which to view the sea-level rise phenomenon, and maintained
that the human rights of individuals remained inalienable even if their State had ceased to
exist owing to sea-level rise. It was considered, however, necessary to examine the extent to
which human rights rules were applicable in that context. A proposal was made to assess how
better to integrate human rights obligations into the climate change legal framework. An
additional examination of the non-refoulement principle in the context of sea-level rise was
suggested.
219. An argument was raised that it was difficult to examine the applicability of human
rights law in the context of sea-level rise without addressing the issue of causation, because
in order to determine how human rights law applied, it was necessary to identify which
specific State or States were responsible in any given case for the protection of applicable
human rights. It was noted in response that the Study Group had intentionally excluded
causation from the scope of the topic,1248 and that addressing it would not be helpful for the
Study Group’s work.
(iii) Comments on guiding questions
220. Members of the Study Group made the following observations with respect to the
guiding questions listed in paragraph 435 of the second issues paper:
(a) It was suggested that the human rights mentioned therein be addressed by
category, namely civil and political rights on the one hand, and economic, social and cultural
rights on the other. Furthermore, it was noted that the principles of non-discrimination,
equality and equal protection of the law should be included among those applicable to the
protection of the human rights of persons affected by sea-level rise;
(b) A concern was raised that the measures referred to therein with regard to
displacement and human mobility were too specific to be recommended as a general rule,
since the choice in every particular case would depend to a great extent on domestic legal
and administrative frameworks. It was also observed that a preferential regime for individuals
displaced owing to sea-level rise could be seen as discriminatory towards people escaping
other consequences of climate change. The importance of prevention and prohibition of
arbitrary displacement in situations involving the evacuation, relocation, displacement or
migration of persons owing to the consequences of sea-level rise was emphasized;
(c) The importance of the principle of international cooperation was stressed.
According to another view, the principle was a political concept, and it was questionable as
to whether any legal consequences could be derived from it. For guidance on the applicability
and scope of the principle of international cooperation, it was therefore suggested that the
Study Group refer to the Commission’s draft articles on the protection of persons in the event
of disasters and to principle 4 of the International Law Association’s Sydney Declaration of
Principles on the Protection of Persons Displaced in the Context of Sea-level Rise.1249
1247 See Human Rights Council resolution 48/13 of 8 October 2021.
1248 A/73/10, annex B, para. 14.
1249 Final report of the Committee on International Law and Sea-Level Rise, in International Law
Association, Report of the Seventy-eighth Conference (see footnote 1230 above), p. 904, and
resolution 6/2018, annex, ibid., p. 33.
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(d) Future work of the Study Group
221. In connection with the comments made with respect to the Study Group’s scope of
the work and working methods (paras. 31–34 above), concern was expressed that the scope
of the subtopics was too broad, and it was suggested that the number of questions under
examination be reduced. A proposal was also made to focus predominantly on areas with
sufficiently developed practice. Relatedly, it was suggested that the Study Group should leave
issues related to statehood aside and focus its future work on issues related to the law of the
sea and to the protection of persons affected by sea-level rise.
222. Regarding the subtopic of statehood, it was noted that further study was required of
the question of extinction of statehood, as it had not been sufficiently explored in the second
issues paper. Likewise, it was noted that the Study Group should further examine cases of
partial land inundation, cases in which the land territory became uninhabitable despite not
being totally covered by the sea, and coastal defence measures and the construction of
artificial islands. With respect to the subtopic of the protection of persons affected by sealevel
rise, it was proposed that matters of protection of persons in situ and in displacement
be considered separately. Moreover, three broad subjects for further study were put forward:
(a) human rights obligations; (b) issues specific to the movement of persons, including
displacement; and (c) the obligation to cooperate.
223. It was noted that the Study Group’s work needed to be based on the previous work of
the Commission, in particular on the draft articles on the protection of persons in the event
of disasters. At the same time, the need to examine specific aspects of sea-level rise, namely
its irreversibility and long-term nature, was emphasized. It was also proposed that the Study
Group consider establishing a dialogue with human rights expert bodies within the United
Nations system on the subtopic of the protection of persons affected by sea-level rise. On that
subtopic, it was further suggested to operate on the basis of a combined rights-based and
needs-based approach.
224. With regard to the outcome of the Study Group’s work, various proposals were made,
including that a framework convention be drafted on issues related to sea-level rise, which
could be used as a basis for further negotiations within the United Nations system, following
the example of the Convention to Combat Desertification in Those Countries Experiencing
Serious Drought and/or Desertification, Particularly in Africa.1250 Another proposal was to
focus the work of the Study Group on more concrete, limited outcomes, such as a draft treaty
on a new form of subsidiary protection for persons affected by sea-level rise, or a detailed
analysis, for illustrative proposes, of certain specific human rights to determine how exactly
they were affected and should be protected when affected by sea-level rise. Support was
voiced for the development of guidelines for bilateral agreements between States and for the
preparation of a list of legal questions to be addressed at the political level within the United
Nations. It was also noted that the short-term outcome of the Study Group’s work would be
its final report, on all subtopics, yet the Commission’s work could be continued beyond that
outcome in a different format. In that regard, a proposal was made to include, in the final
report of the Study Group, a draft resolution addressing all outstanding political issues, for
the consideration of the General Assembly.
3. Concluding remarks by the Co-Chairs
(a) General concluding remarks
225. At the sixth meeting of the Study Group, the Co-Chairs (Ms. Galvão Teles and Mr.
Ruda Santolaria) delivered concluding remarks in light of the comments that had been
expressed by its members during the previous meetings.
226. The Co-Chairs expressed their gratitude to the members of the Study Group for their
contributions and comments on the second issues paper. While the paper was considered a
good basis for future discussions, some additional information was required on the practice
1250 Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or
Desertification, Particularly in Africa (Paris, 14 October 1994), United Nations, Treaty Series, vol.
1954, No. 33480, p. 3.
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of States and international organizations, especially in Africa, Asia and Latin America and
the Caribbean. The Co-Chairs indicated that, while scientific findings related to sea-level rise
and climate change were not within the Study Group’s scope of work, they would endeavour
to organize informal meetings with scientists from the Intergovernmental Panel on Climate
Change on specific issues of interest.
227. The Co-Chairs further observed that the Study Group’s work would continue without
prejudice to the outcome of its work, which, according to the syllabus, was a consolidated
final report. Any proposals made by members of the Study Group with regard to the future
format of its work and outcome would be examined in more detail at a later stage.
(b) Statehood
228. The Co-Chair (Mr. Ruda Santolaria) recalled that sea-level rise was a gradual
phenomenon that could result in the partial or total loss of a State’s territory. Although there
had been no cases of complete inundation of a State’s land, the small island developing States
were likely to become uninhabitable in the future.
229. The Co-Chair noted that the lack of State practice had rendered it necessary to explore
historical examples and relevant general principles of law. With regard to the latter, he
recalled the principle of the sovereign equality of States, the principle of self-determination
of peoples, the principle of international cooperation, and the principle of good faith. While
it was acknowledged that the historical analogies of the Holy See and the Order of Malta
were not directly related to sea-level rise, they could nonetheless be useful for further work
on the topic with respect to the possibility of maintaining international legal personality
despite the loss of territory. Likewise, some valuable conclusions could be drawn from cases
of Governments being forced into exile for, at least, the immediate aftermath of the
disappearance of a State’s land territory due to sea-level rise or for when the land territory of
a State became uninhabitable despite not being totally covered by the sea.
230. Turning to the criteria of statehood, the Co-Chair reiterated that, although there was
no generally accepted notion of a “State”, the criteria of the Convention on the Rights and
Duties of States could constitute a starting point for the Study Group’s work. He noted the
position expressed by members of the Study Group that there was a difference between
criteria for the creation of a State and those for its continued existence. Some reflections on
the criteria of territory and permanent population were provided.
231. The Co-Chair noted that the presumption of continuity of a State was also a starting
point for further work. At the same time, he emphasized the need to consider the practical
implications of maintaining that presumption despite serious changes to a State’s territory
and its population. Relatedly, the right of a State to ensure its preservation required further
reflection. The importance of preserving the right of self-determination of the affected
populations was also highlighted.
(c) Protection of persons affected by sea-level rise
232. The Co-Chair (Ms. Galvão Teles) recalled that there was no specific legal framework
that provided for a distinct legal status of persons affected by sea-level rise. Existing universal
and regional legal frameworks, including human rights law, refugee and migration law, and
disaster and climate change law, required additional study with a view to evaluating their
applicability in the sea-level rise context. The Co-Chair noted the relevant emerging practice
of States, international organizations and other relevant entities, both direct and indirect, and
of the need to continue examining its development for the purpose of identifying principles
applicable to the protection of persons affected by sea-level rise.
233. The Co-Chair observed that, in line with the proposals made by some members, the
Study Group should refer in its work to previous outcomes of the Commission’s work, in
particular, but not limited to, the draft articles on the protection of persons in the event of
disasters. The Co-Chair also recalled that members of the Study Group were welcome to
provide individual written contributions on any of the guiding questions.
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4. Issues for further work on the subtopics of statehood and the protection of persons
affected by sea-level rise
234. Based on the discussions in the Study Group during the first part of the session, the
Co-Chairs made the following proposals regarding the continuation of its work on the
subtopics, without prejudice to the possibility of further examining other issues as appropriate.
(a) Statehood
235. The Co-Chair (Mr. Ruda Santolaria) proposed that the Study Group request the
Secretariat to undertake a study of the relevant previous work of the Commission, with a
view to assessing its relevance to the subtopic. He emphasized the need for collaboration
with entities and institutions from different regions of the world in order to ensure diversity
and representativeness, especially regarding the practice in regions for which less information
was available, such as Latin America and the Caribbean, Asia and the Pacific and Africa. He
proposed the following tasks to complement the second issues paper with respect to the
subtopic of statehood, taking into account the exchange of opinions among members of the
Study Group, in the context of the analysis of the sea-level rise in relation to statehood:
(a) an evaluation of the way in which the requirements for the configuration of a
State as a person or subject of international law had been interpreted, taking the Convention
on Rights and Duties of States as a starting point, and including references to the practice of
the General Assembly and the Security Council of the United Nations; and an analysis of any
differences between the criteria for the creation of a State and those for the continuity of its
existence;
(b) an analysis of the territory, including the different spaces under the sovereignty
of the State and the maritime zones under its jurisdiction, and the nature of the land surface
that could become submerged as a consequence of sea-level rise;
(c) a presentation of the possible legal effects of the maintenance or the eventual
loss of statehood, and of the eventual maintenance of some form of international legal
personality, in the context of the different scenarios resulting from sea-level rise; and an
analysis of the pertinence of the presumption of statehood in the case of States affected by
sea-level rise, and of the ways in which self-determination could be exercised by the affected
populations and whether certain principles of general international law could be applied in
such cases. Given the progressive nature of sea-level rise, it would be important to distinguish
between two situations and the potential effects thereof: one, closer in time, in which the land
surface of a State was not completely covered by the sea, but could become uninhabitable;
and the other, in which the land surface of a State could become completely covered by the
sea. Without prejudice to the specificities of each subtopic in the analysis, the interplay
between the different assumptions or scenarios in relation to statehood and their eventual
implications for the protection of persons and their rights should be reinforced;
(d) a reflection on the right of a State affected by sea-level rise to seek its
conservation, the modalities to be used for that purpose and the significance of international
cooperation to that effect;
(e) a careful and prudent analysis of the various options set out in the second issues
paper, taking into account the possibility of creating sui generis legal regimes or proposing
practical alternatives based on agreements between States or instruments in relation to the
phenomenon of sea-level rise that could be adopted within the framework of international
organizations, especially in the context of the United Nations system.
(b) Protection of persons affected by sea-level rise
236. The Co-Chair (Ms. Galvão Teles) proposed that the Study Group request the
Secretariat to undertake a study of the relevant previous work of the Commission, with a
view to assessing its relevance to the subtopic. She encouraged members of the Study Group
to prepare papers on relevant international and regional practice, and on the guiding questions
contained in paragraph 435 of the second issues paper. She emphasized the need to establish
and maintain contacts with relevant expert bodies and international organizations. Lastly, the
Co-Chair listed the following points that she intended to further examine to complement the
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second issues paper with respect to the subtopic of protection of persons affected by sea-level
rise taking into account the exchange of views among the members of the Study Group:
(a) the protection of human dignity as an overarching principle in the protection
of persons affected by sea-level rise;
(b) the combination of the needs-based and rights-based approaches as the basis
for the legal analysis of the protection of persons affected by sea-level rise;
(c) implications on human rights – including with regard to civil, political,
economic, social and cultural rights – in the context of the protection of persons affected by
sea-level rise;
(d) identification of the scope of the obligations of human rights duty bearers in
the context of sea-level rise;
(e) the protection of persons in vulnerable situations in the context of sea-level
rise;
(f) the relevance of the principle of non-refoulement in the context of the
protection of persons affected by sea-level rise;
(g) the implications of the Global Compact for Safe, Orderly and Regular
Migration and other soft-law instruments in terms of the protection of persons affected by
sea-level rise;
(h) the application of subsidiary and temporary protection to persons affected by
sea-level rise;
(i) the relevance of humanitarian visas and similar administrative policies for the
protection of persons affected by sea-level rise;
(j) tools for the avoidance of statelessness in the context of sea-level rise;
(k) the content of the principle of international cooperation, including institutional
paths for inter-State, regional and international cooperation regarding the protection of
persons affected by sea-level rise.
C. Future work of the Study Group
237. In the next quinquennium, the Study Group will revert to the subtopic of the law of
the sea in 2023 and to the subtopics of statehood and the protection of persons affected by
sea-level rise in 2024. In 2025, the Study Group will then seek to finalize a substantive report
on the topic as a whole by consolidating the results of the work undertaken.
United Nations A/CN.4/752
General Assembly Distr.: General
19 April 2022
English
Original: English and Spanish
22-02934 (E) 010422 190422
*2202934*
International Law Commission
Seventy-third session
Geneva, 18 April–3 June and 4 July–5 August 2022
Sea-level rise in relation to international law
Second issues paper by Patrícia Galvão Teles and Juan José Ruda
Santolaria, Co-Chairs of the Study Group on sea-level rise in
relation to international law
Contents
Chapter Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. Purpose and structure of the second issues paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. Inclusion of the topic in the Commission ’s programme of work; consideration of the topic by
the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
III. Debate in the Sixth Committee of the General Assembly; level of support from Member
States; outreach efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IV. Scientific findings and prospects of sea-level rise relevant to the subtopics . . . . . . . . . . . . . . . 13
V. Consideration of the topic by the International Law Association . . . . . . . . . . . . . . . . . . . . . . . . 16
Part One: General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
I. Scope and outcome of the topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Issues to be considered by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. Final outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
__________________
 The Co-Chair wishes to thank those who assisted in the preparation of the present issues paper,
including Claire Duval, Daniela Martins, Thaíssa Meira, Juan Francisco Padin, Victor Tozetto da
Veiga and Aylin Yildiz.
 With regard to the part concerning statehood, the Co -Chair would like to thank Grismi Bravo
Arana and Roberto Claros Abarca for their invaluable support. He would also like to thank Dante
Negro, Director of the Department of International Law at the Organization of American States,
and Jean-Baptiste Dudant for their valuable collaboration.
Please
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II. Methodological approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Part Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Reflections on statehood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. Criteria for the creation of a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. Under the 1933 Convention on the Rights and Duties of States . . . . . . . . . . . . . . . . . . . . . 21
1. Permanent population. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2. Defined territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3. Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
4. Capacity to enter into relations with the other States and other subjects of
international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. Under the 1936 resolution of the Institut de Droit International . . . . . . . . . . . . . . . . . . . . . 27
C. Under the 1949 draft Declaration on Rights and Duties of States. . . . . . . . . . . . . . . . . . . . 28
D. Under the 1956 draft articles on the law of treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
E. In the opinions of the Arbitration Commission of the 1991 International Conference on
the Former Yugoslavia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
III. Some representative examples of actions taken by States and other subjects of international
law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. Holy See . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. Sovereign Order of Malta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Governments in exile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
D. Some relevant issues in certain international instruments . . . . . . . . . . . . . . . . . . . . . . . . . . 39
IV. Concerns relating to the phenomenon of sea-level rise and some measures that have been
taken in that regard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
V. Possible alternatives for the future concerning statehood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
A. Presumption as to the continuity of the State concerned . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
B. Maintenance of international legal personality without a territory . . . . . . . . . . . . . . . . . . . 48
C. Use of some of the following modalities: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. Ceding or assignment of segments or portions of territory to other States, with or
without transfer of sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2. Association with other State(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3. Establishment of confederations or federations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
4. Unification with another State, including the possibility of a merger . . . . . . . . . . . . 52
5. Possible hybrid schemes combining elements of more than one modality, specific
experiences of which may be illustrative or provide ideas for the formulation of
alternatives or the design of such schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Part Three: Protection of persons affected by sea -level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
I. Introductory considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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A. A significant threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
B. A phenomenon of multifold dimensions and intensity with the potential to affect the
enjoyment of human rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
C. A phenomenon whose impact may lead to significant internal or international movement
of persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
D. Absence of a dedicated legal framework and of a distinct legal status for persons
affected by sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
E. Protection of persons affected by sea-level rise: the dual rights- and needs-based
approach of the 2016 draft articles on the protection of persons in the event
of disasters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
II. Mapping the existing legal frameworks potentially applicable to the protection of persons
affected by sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. International human rights law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
B. International humanitarian law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
C. International law concerning refugees and internally displaced persons . . . . . . . . . . . . . . 66
1. International law concerning refugees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
2. International law concerning internally displaced persons . . . . . . . . . . . . . . . . . . . . . 68
D. International law concerning migrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
E. International law concerning disasters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
1. Draft articles on the protection of persons in the event of disasters (2016) . . . . . . . . 72
2. Sendai Framework for Disaster Risk Reduction 2015 –2030. . . . . . . . . . . . . . . . . . . . 73
3. Nansen Initiative and its Agenda for the Protection of Cross -Border Displaced
Persons in the Context of Disasters and Climate Change . . . . . . . . . . . . . . . . . . . . . . 74
F. International law concerning climate change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
III. Mapping State practice and the practice of relevant international organizations and bodies
regarding the protection of persons affected by sea -level rise. . . . . . . . . . . . . . . . . . . . . . . . . . . 79
A. State practice regarding the protection of persons affected by sea-level rise. . . . . . . . . . . 80
1. Practice of small island States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
2. Practice of States with low-lying coastal areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
3. Practice of third States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
B. Practice of relevant international organizations and bodies regarding the protection of
persons affected by sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
1. United Nations Environment Programme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
2. Food and Agriculture Organization of the United Nations . . . . . . . . . . . . . . . . . . . . . 86
3. United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
4. Office of the United Nations High Commissioner for Human Rights . . . . . . . . . . . . 95
5. Office of the United Nations High Commissioner for Refugees . . . . . . . . . . . . . . . . 96
6. International Organization for Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
7. International Labour Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
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8. Task Force on Displacement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
9. Platform on Disaster Displacement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
10. International Federation of Red Cross and Red Crescent Societies . . . . . . . . . . . . . . 99
11. World Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
12. Organisation for Economic Co-operation and Development. . . . . . . . . . . . . . . . . . . . 100
Part Four: Preliminary observations, guiding questions for the Study Group and future
programme of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
I. Preliminary observations and guiding questions for the Study Group . . . . . . . . . . . . . . . . . . . . 100
A. Statehood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
B. Protection of persons affected by sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
II. Future programme of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
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Introduction
I. Purpose and structure of the second issues paper
1. The present issues paper is preliminary in nature. It is intended to serve as a
basis for discussion in the Study Group and may be complemented by contribution
papers prepared by members of the Study Group. It covers the subtopics of statehood
and the protection of persons affected by sea-level rise, and is divided into an
introduction and four parts.
2. The introduction addresses certain general matters: the inclusion of the topic in
the Commission’s programme of work and the consideration of the topic by the
Commission so far; the positions of the Member States during the debates in the Sixth
Committee in the previous years; the level of support from Member States for the
subtopics addressed in the present issues paper; and outreach undertaken by the Co -
Chairs of the Study Group. It also includes a brief summary of scientific findings and
prospects of sea-level rise that are relevant to the subtopics of statehood and the
protection of persons affected by sea -level rise; and an update regarding the
consideration of these subtopics by the International Law Association.
3. Part One recalls the scope and outcome of the topic, the issues to be considered
by the Commission, the final outcome to be reached, as well as the methodology to
be used by the Study Group.
4. Part Two, entitled “Reflections on statehood”, starts with an introduction,
followed by a presentation regarding the following issues: criteria for the creation of
a State; some representative examples of actions taken by States and other subjects
of international law; references to concerns expressed relating to the phenomenon of
sea-level rise and some measures that have been taken in that regard; and the
formulation of possible alternatives for the future in respect of statehood.
5. Part Three addresses the subtopic of the protection of persons affected by sea -
level rise. It begins with introductory considerations and continues with a mapping
exercise of the existing legal frameworks potentially applicable to the protection of
persons affected by sea-level rise. A preliminary mapping exercise of State practice
and the practice of relevant international organizations and bodies regarding the
protection of persons affected by sea-level rise is then presented.
6. Part Four presents preliminary observatio ns, guiding questions for the Study
Group and the future programme of work.
7. A bibliography will be submitted as an addendum to the present issues paper.
II. Inclusion of the topic in the Commission’s programme of
work; consideration of the topic by the Commission
8. At its seventieth session (2018), the Commission decided to recommend the
inclusion of the topic “Sea-level rise in relation to international law” in its long-term
programme of work.1
9. Subsequently, in its resolution 73/265 of 22 December 2018, the General
Assembly noted the inclusion of the topic in the long -term programme of work of the
Commission, and in that regard called upon the Commission to take into consideratio n
__________________
1 Official Records of the General Assembly, Seventy -third Session, Supplement No. 10 (A/73/10),
para. 369.
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the comments, concerns and observations expressed by Governments during the
debate in the Sixth Committee.
10. At its 3467th meeting, on 21 May 2019, the Commission decided to include the
topic in its current programme of work. The Commission also decide d to establish an
open-ended Study Group on the topic, to be co -chaired, on a rotating basis, by Mr.
Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and
Mr. Juan José Ruda Santolaria.
11. At its 3480th meeting, on 15 July 201 9, the Commission took note of the joint
oral report of the Co-Chairs of the Study Group. At a meeting on 6 June 2019, the
Study Group had considered an informal paper on the organization of its work
containing a road map for 2019 to 2021. The discussion o f the Study Group had
focused on its composition, its proposed calendar and programme, and its methods of
work.
12. At the same meeting, the Study Group had decided that, of the three subtopics
identified in the syllabus prepared in 2018, 2 it would examine the first – issues related
to the law of the sea – in 2020, under the co-chairpersonship of Mr. Aurescu and Ms.
Oral, and the second and third – issues related to statehood and issues related to the
protection of persons affected by sea-level rise – in 2021, under the
co-chairpersonship of Ms. Galvão Teles and Mr. Ruda Santolaria.
13. The Study Group had agreed that, prior to each session, the Co -Chairs would
prepare an issues paper, which would be edited, translated and circulated as an o fficial
document to serve as the basis for the discussions and for the annual contribution of
the members of the Study Group. It would also serve as the basis for subsequent
reports of the Study Group on each subtopic. Members of the Study Group would
then be invited to put forward contribution papers that could comment upon, or
complement, the issues paper prepared by the Co -Chairs (by addressing, for example,
regional practice, case law or any other aspects of the subtopic). Recommendations
would be made at a later stage regarding the format of the outcome of the work of the
Study Group. At the end of each session of the Commission, the work of the Study
Group would be reflected in a substantive report, taking due account of the issues
paper prepared by the Co-Chairs and the related contribution papers by the members,
while summarizing the discussion of the Study Group. That report would be agreed
upon in the Study Group and subsequently presented by the Co -Chairs to the
Commission, so that a summary could be included in the annual report of the
Commission.3
14. The Study Group also examined and decided upon a number of other
organizational matters.4
15. Owing to the outbreak of the coronavirus disease (COVID -19) pandemic, and
the ensuing postponement of the seventy-second session of the Commission, the
__________________
2 Ibid., annex B.
3 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 270–271.
4 Ibid., paras. 272–273: “The Study Group also recommended that the Commission invite the
comments of States on specific issues that are ide ntified in chapter III of the report of the
Commission. The possibility of requesting a study from the Secretariat of the United Nations was
discussed in the Study Group as well. The knowledge of technical experts and scientists will
continue to be considered, possibly through side events organized during the next sessions of the
Commission … [W]ith the assistance of the Secretariat, the Study Group will update the
Commission on new literature on the topic and related meetings or events that might be organi zed
in the next two years.”
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initial calendar for the discussion of the first and second issues papers was delayed
by one year.
16. At its seventy-second session (2021), the Commission reconstituted the Study
Group on sea-level rise in relation to international law, chaired by the two Co -Chairs
on issues related to the law of the sea, namely Mr. Aurescu and Ms. Oral.
17. In accordance with the agreed programme of work and methods of work, the
Study Group had before it the first issues paper on the topic, 5 which was issued
together with a preliminary bibliography, 6 prepared by Mr. Aurescu and Ms. Oral.
18. The Study Group held eight meetings, from 1 to 4 June and on 6, 7, 8 and 19
July 2021.7
19. At its 3550th meeting, on 27 July 2021, the Commission took note of the joint
oral report of the Co-Chairs of the Study Group.8
20. Chapter IX of the 2021 annual report of the Commission contains a summary of
the work of the Study Group during that year on the subtopic of the law of the sea.
21. With regard to the future programme of work, it was decided that during the
seventy-third session of the Commission (2022), the Study Group would, in line with
the 2018 syllabus, address issues related to statehood and to the protection of persons
affected by sea-level rise, under the co-chairpersonship of Ms. Galvão Teles and Mr.
Ruda Santolaria, who would prepare a second issues paper as a basis for the
discussion in the Study Group at that session.
22. For the purposes of the subtopics to be addressed in 2022, the Commission
indicated in chapter III of its 2021 annual report 9 that it would welcome receiving, by
31 December 2021, any information that States, relevant international organizations
and the International Red Cross and Red Crescent Movemen t could provide on their
practice and other relevant information regarding sea -level rise in relation to
international law, including on:
(a) practice with regard to the construction of artificial islands or measures to
reinforce coastlines, in each case in order to take into account sea-level rise;
(b) instances of cession or allocation of territory, with or without transferral
of sovereignty, for the settlement of persons originating from other States, in
particular small island developing States, affec ted by sea-level rise;
(c) regional and national legislation, policies and strategies, as applicable,
regarding the protection of persons affected by sea -level rise;
(d) practice, information and experience of relevant international
organizations and the International Red Cross and Red Crescent Movement regarding
the protection of persons affected by sea-level rise;
(e) measures taken by third States with regard to small island developing
States, in particular those affected by sea-level rise, including: (i) modalities for
cooperation or association with such States, including the possibility of persons
travelling to, as well as establishing residency and developing professional activities
in, such third States; (ii) maintenance of the original nationalit y and/or access to the
__________________
5 A/CN.4/740 and Corr.1.
6 A/CN.4/740/Add.1.
7 Official Records of the General Assembly, Seventy-sixth Session, Supplement No. 10 (A/76/10),
para. 250.
8 See A/CN.4/SR.3550.
9 A/76/10, para. 26.
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nationality or citizenship of the third State; and (iii) conservation of the cultural
identity of such persons or groups.
III. Debate in the Sixth Committee of the General Assembly;
level of support from Member States; outreach efforts
23. In addition to the details given in the first issues paper with regard to Member
States’ expression of support for or interest in the topic, or otherwise, during the
debates in the Sixth Committee since 2018, 10 it is worth setting forth in the present
issues paper the positions expressed by Member States on the subtopics of statehood
and the protection of persons affected by sea -level rise.11
24. In their statements in the Sixth Committee of the General Assembly delivered
in October 2018, various States expressed concerns about the subtopic of statehood.
For instance, Papua New Guinea said that it was essential to maintain statehood in
order to preserve jurisdictional maritime zones, and that statehood was interrelated
with questions regarding maritime zones and raised a potential issue of statelessness,
including de facto statelessness.12
25. Cyprus emphasized the difficulties that the International Law Commission had
faced over the years in defining statehood. 13 Fiji noted that one of the criteria for
statehood under article 1 of the Convention on the Rights and Duties of States 14 was
that of a permanent population, and remarked the absence of guiding principles and
regulations as to what happened when a State became uninhabitable and lost its entire
population because of sea-level rise.15
26. The United States of America raised concerns about whether the issues of
statehood and protection of persons as specifically related to sea -level rise were at a
sufficiently advanced stage of State practice. 16 Greece referred to the risk of the
Commission embarking on an exercise that was primarily de lege ferenda, as reflected
in the speculative scenarios, such as “possible transfers of sovereignty ” and
“mergers”, mentioned in the 2018 syllabus.17
27. In statements by States delivered in the Sixth Committee in October and
November 2021, Samoa, speaking on behalf of the Pacific small island developing
States, said that the issues relating to statehood, statelessness and climate -induced
migration were directly relevant to the Pacific region, in view of the possibility that
the territories of small island States could be entirely submerged owing to climate
change-related sea-level rise. Under international law, there was a presumption that a
State, once established, would continue to exist, particularly if it had a defined
territory and population, among other factors.18
__________________
10 A/CN.4/740 and Corr.1, paras. 8–16.
11 The plenary debate in the Sixth Committee as p ertains to the subtopic is reflected in the summary
records contained in the documents cited in the following footnotes, which contain a summarized
form of the statements made by delegations. The full texts of the statements made by delegations
participating in the plenary debate are available from the Sixth Committee ’s web page, at
https://www.un.org/en/ga/sixth/.
12 Papua New Guinea (A/C.6/73/SR.23, para. 36).
13 Cyprus (A/C.6/73/SR.23, para. 51).
14 Convention on the Rights and Duties of States (Montevideo, 26 December 1933), Leagu e of
Nations, Treaty Series, vol. CLXV, No. 3802, p. 19.
15 Fiji (A/C.6/73/SR.23, para. 63).
16 United States (A/C.6/73/SR.29, para. 27).
17 Greece (A/C.6/73/SR.21, para. 68).
18 Samoa (on behalf of the Pacific small island developing States) (A/C.6/76/SR.19, para. 71).
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28. Iceland, speaking on behalf of the Nordic countries (Denmark, Finland, Iceland,
Norway and Sweden), said that some coun tries might be disproportionately affected
by the issue. Apart from the possibility that the territory of some States would be
partially or fully submerged, sea-level rise could, for example, also contribute to land
degradation, periodic flooding and freshwater contamination. It was therefore a threat
on multiple levels. The Nordic countries reaffirmed their support for the
Commission’s consideration of the topic through the study of three subtopics, the
results of which would be included in a finalized sub stantive report on the topic as a
whole.19
29. Singapore said that, like other small, low-lying island States, it faced an
existential threat from rising sea levels. 20
30. Liechtenstein appreciated in particular the decision to include subtopics on the
protection of persons affected by sea -level rise and on statehood in the work of the
Study Group, thus reflecting the importance of a person -centred and human rightsfocused
approach. The right to self-determination of the peoples most immediately
affected, including its manifestation through statehood, must always be taken into
consideration. In any discussion of statehood in the context of rising sea levels, it
should be noted that there was in practice a strong presumption of the persistence of
States, and that the extinction of any State or country should therefore be
disfavoured.21
31. For Cuba, great caution was needed in considering the possible loss of statehood
in relation to sea-level rise, owing to the loss of territory, and it was vital to uphold
the principle that if an effect of that scale was produced in a small island State, that
State would not lose its status as an international subject, with all the attributes
thereof. International cooperation would play an essential role in that regard. 22
32. Maldives said that sea-level rise was not a distant theoretical concern. Low -
lying coastal and small island States, such as itself, were particularly vulnerable to
the effects of sea-level rise. As they could not afford to mitigate the effects of sea -
level rise on their own, the cooperation of the international community was essential
to ensure adequate, predictable and accessible assistance to those States. 23
33. For Thailand, each region faced unique challenges caused by sea -level rise.
States might adopt different coastal protection measures to suit their specific
conditions. Sea-level rise affected not just States and statehood, but also has a direct
impact on populations, which might have to migrate or be displaced as a consequence
thereof.24
34. Argentina noted that rising sea levels represented one of the greatest threats to
the survival and growth prospects of many small island developing States, including
for some, through the loss of territory. There were cases where small island
developing States might find themselves in a highly vulnerable situation, where their
survival as a State might be in play owing to the impact of rising sea levels. Adequate
and effective responses should be considered to ensure that the members of the
international community could cooperate and coordinate with each other in specific
situations.25
__________________
19 Iceland (on behalf of the Nordic countries, namely Denmark, Finland, Iceland, Norway and
Sweden) (A/C.6/76/SR.19, paras. 87–88).
20 Singapore (A/C.6/76/SR.20, para. 22).
21 Liechtenstein (A/C.6/76/SR.21, paras. 3–4).
22 Cuba (A/C.6/76/SR.21, para. 32).
23 Maldives (A/C.6/76/SR.21, para. 139).
24 Thailand (A/C.6/76/SR.22, para. 4).
25 Argentina, A/C.6/76/SR.22, para. 31.
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35. For Papua New Guinea, those were critically important matters in the context
of the daily reality experienced in the Pacific region. 26 Latvia, in the light of its
experience of continued statehood since its founding in 1918 and its membership of
the League of Nations, endorsed the view that factual control over territory was not
always a necessary criterion for the juridical continuity of the existence of States.27
36. For Solomon Islands, the protection of persons and statehood in the context of
sea-level rise were vitally important topics for small island developing States. It urged
delegations to consider those topics in terms that could help in finding an internation al
solution to what had become a global problem. On the topic of statehood, Solomon
Islands supported the strong presumption in favour of continuing statehood, as the
continued existence of States was foundational to the current international
framework. State practice supported the notion that States could continue to exist
despite the absence of criteria under the Convention on the Rights and Duties of
States. The principles of stability, certainty, predictability and security also buttressed
the presumption of continuing statehood. Sea -level rise could not serve as
justification for denying vulnerable States vital representation in the international
order. Solomon Islands called on the International Law Commission to consider the
positions of small island developing States, as especially affected States.28
37. With regard to questions of Statehood, Cyprus highlighted that Judge James
Crawford had noted that a State was not necessarily extinguished by substantial
changes in territory, population or Governmen t, or even, in some cases, by a
combination of all three.29
38. Tonga also recognized the implications of sea -level rise for statehood,
statelessness, the exacerbation of disasters and climate change -induced migration. It
noted that yet, a defined territory and population were key indicia of statehood under
international law, but that for small island developing States, that was a question of
survival. Tonga therefore stressed the need to quickly address the international law
implications of those emerging issues.30
39. Tuvalu said it acknowledged that several of the requirements for effective
statehood were referred to in article 1 of the Convention on the Rights and Duties of
States. However, it said that a comprehensive policy review was important,
considering the argument that the criteria set out in the Convention were only for the
determination of the birth of a State. The response of international law must reflect
the interests of small island developing States, which were especially affected by sea -
level rise yet least responsible for its causes. 31
40. By contrast, according to Belarus, in the context of international law, it is more
relevant to consider sea-level rise in relation to the law of the sea than in relation to
issues of loss or reduction of territory. Belarus pointed out that although the
consequences for a State’s existence of the loss of all or some of its land territory was
a matter of scholarly and practical interest, such situations were unlikely to arise in
the near future.32
41. Regarding the subtopic of the protection of persons affected by sea -level rise,
delegations have generally supported its inclusion as part of the topic and have noted
__________________
26 Papua New Guinea (A/C.6/76/SR.22, para. 35).
27 Latvia (A/C.6/76/SR.22, para. 75).
28 Solomon Islands (A/C.6/76/SR.22, para. 81).
29 Cyprus (A/C.6/73/SR.23, para. 48; A/C.6/74/SR.30, para. 102; and A/C.6/76/SR.22, para. 101);
see also James Crawford, The Creation of States in International Law, 2nd ed. (Oxford, Oxford
University Press, 2006).
30 Tonga (A/C.6/76/SR.22, paras. 119–120).
31 Tuvalu (A/C.6/76/SR.23, paras. 4–5).
32 Belarus (A/C.6/76/SR.20, para. 63).
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the human impacts of sea-level rise. See, for instance, the statements delivered
between 2018 and 2021 by the delegations of Argentina, 33 Bangladesh,34 Belize (on
behalf of the Alliance of Small Island States), 35 Brazil,36 Canada,37 Chile,38 China,39
Colombia, 40 Costa Rica, 41 Cuba, 42 Cyprus, 43 Egypt, 44 El Salvador, 45 Estonia, 46 the
European Union (in its capacity as observer; also on behalf of the candidate countries
Albania, Montenegro, North Macedonia and Serbia; the stabilization and association
process country Bosnia and Herzegovina; and, in addition, Georgia, the Republic o f
Moldova and Ukraine),47 Fiji (on behalf of the Pacific Islands Forum), 48 France,49
Hungary,50 Iceland (on behalf of the Nordic countries, namely Denmark, Finland,
Iceland, Norway and Sweden), 51 India, 52 Ireland, 53 Israel, 54 Italy, 55 Jamaica, 56
Japan, 57 Jordan, 58 Latvia, 59 Lebanon, 60 Liechtenstein, 61 Malaysia, 62 Maldives, 63
Mexico,64 Micronesia (Federated States of),65 the Netherlands,66 Norway (on behalf
of the Nordic countries, namely Denmark, Finland, Iceland, Norway and Sweden), 67
__________________
33 Argentina (A/C.6/74/SR.29, para. 35).
34 Bangladesh (A/C.6/74/SR.31, para. 49).
35 Belize (on behalf of the Alliance of Small Island States) ( A/C.6/75/SR.13, para. 24).
36 Brazil (A/C.6/76/SR.21, para. 26).
37 Canada (A/C.6/73/SR.22, para. 65).
38 Chile (A/C.6/76/SR.21, para. 57).
39 China (A/C.6/74/SR.27, para. 92).
40 Colombia (A/C.6/74/SR.30, para. 113, and A/C.6/76/SR.23, para. 24).
41 Costa Rica (A/C.6/76/SR.23, para. 15).
42 Cuba (A/C.6/76/SR.21, para. 33).
43 Cyprus (A/C.6/73/SR.23, para. 48; A/C.6/74/SR.30, para. 102; and A/C.6/76/SR.22, para. 101).
44 Egypt (A/C.6/74/SR.30, para. 30, and A/C.6/76/SR.20, para. 59).
45 El Salvador (A/C.6/76/SR.20, para. 70).
46 Estonia (A/C.6/74/SR.30, para. 61).
47 European Union (in its capacity as observer; also on behalf of the candidate countr ies Albania,
Montenegro, North Macedonia and Serbia; the stabilization and association process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine)
(A/C.6/76/SR.19, para. 73).
48 Fiji (on behalf of the Pacific Islands Forum) ( ibid., para. 74).
49 France (A/C.6/76/SR.20, para. 47).
50 Hungary (A/C.6/76/SR.21, para. 67).
51 Iceland (on behalf of the Nordic countries, namely Denmark, Finland, Iceland, Norway and
Sweden) (A/C.6/76/SR.19, para. 88).
52 India (A/C.6/76/SR.23, para. 10).
53 Ireland (A/C.6/74/SR.29, para. 43).
54 Israel (A/C.6/73/SR.23, para. 32).
55 Italy (A/C.6/74/SR.28, para. 29, and A/C.6/76/SR.20, para. 87).
56 Jamaica (A/C.6/74/SR.27, para. 2).
57 Japan (A/C.6/74/SR.30, para. 34).
58 Jordan (A/C.6/76/SR.24, para. 126).
59 Latvia (A/C.6/76/SR.22, para. 75).
60 Lebanon (ibid., para. 134).
61 Liechtenstein (A/C.6/74/SR.30, para. 95, and A/C.6/76/SR.21, para. 3).
62 Malaysia (A/C.6/74/SR.30, para. 83, and A/C.6/76/SR.21, para. 153).
63 Maldives (A/C.6/76/SR.21, paras. 137–139).
64 Mexico (A/C.6/74/SR.29, para. 114).
65 Micronesia (Federated States of) (A/C.6/76/SR.21, para. 150).
66 Netherlands (A/C.6/74/SR.28, para. 79).
67 Norway (on behalf of the Nordic countries, namely Denmark, Finland, Iceland, N orway and
Sweden) (A/C.6/74/SR.27, para. 86).
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Papua New Guinea, 68 the Philippines, 69 Peru, 70 Portugal, 71 Republic of Korea, 72
Romania,73 Samoa (on behalf of the Pacific small island developing States), 74 Sierra
Leone, 75 Slovenia, 76 Solomon Islands, 77 South Africa, 78 Thailand, 79 Tonga, 80
Tuvalu,81 the United Kingdom of Great Britain and Northern Ireland, 82 Viet Nam83
and the Holy See.84
42. Belarus, 85 the Islamic Republic of Iran, 86 the Russian Federation 87 and the
United States88 have expressed reservations as to the inclusion of the subtopic of t he
protection of persons affected by sea-level rise, mainly citing a lack of State practice.
Further, Czechia89 has taken the view that the subtopic of the protection of persons
affected by sea-level rise is the only one suitable for consideration by the
Commission, while Germany90 has noted that the issue is of particular urgency.
43. The Co-Chairs of the Study Group have continued to undertake a series of
outreach efforts to explain the progress of the work of the Commission on the topic,
and the proposed steps and methodology. Some of the events organized or attended
by the Co-Chairs were used also to highlight the need for the Commission to receive
as much as information as possible on relevant State practice. 91
__________________
68 Papua New Guinea (A/C.6/73/SR.23, para. 33; A/C.6/74/SR.30, para. 18; A/C.6/75/SR.13, para.
39; and A/C.6/76/SR.22, para. 38).
69 Philippines (A/C.6/74/SR.31, para. 9, and A/C.6/76/SR.23, para. 17).
70 Peru (A/C.6/74/SR.31, para. 5).
71 Portugal (A/C.6/74/SR.29, para. 108, and A/C.6/76/SR.21, para. 10).
72 Republic of Korea (A/C.6/75/SR.13, para. 67).
73 Romania (A/C.6/74/SR.28, para. 15, and A/C.6/76/SR.21, para. 20).
74 Samoa (on behalf of the Pacific small island developing States) (A/C.6/76/SR.19, para. 71).
75 Sierra Leone (A/C.6/76/SR.20, para. 29).
76 Slovenia (A/C.6/74/SR.29, para. 146, and A/C.6/76/SR.21, para. 97).
77 Solomon Islands (A/C.6/76/SR.22, para. 79).
78 South Africa (A/C.6/73/SR.23, para. 15, and A/C.6/76/SR.20, para. 77).
79 Thailand (A/C.6/73/SR.22, para. 18; A/C.6/74/SR.29, para. 99; and A/C.6/76/SR.22, para. 3).
80 Tonga (A/C.6/73/SR.22, para. 63, and A/C.6/76/SR.22, para. 120).
81 Tuvalu (A/C.6/76/SR.23, para. 5).
82 United Kingdom (A/C.6/76/SR.21, para. 146).
83 Viet Nam (ibid., para. 85).
84 Holy See (Observer) (A/C.6/76/SR.23, para. 28–29).
85 Belarus (A/C.6/74/SR.28, para. 22, and A/C.6/76/SR.20, para. 63).
86 Iran (Islamic Republic of) (A/C.6/76/SR.20, para. 38).
87 Russian Federation (A/C.6/76/SR.22, para. 95).
88 United States (A/C.6/73/SR.29, para. 27, and A/C.6/74/SR.30, para. 126).
89 Czechia (https://www.un.org/en/ga/sixth/74/pdfs/statements/ilc/czech_republic_2.pdf;
A/C.6/74/SR.28, para. 66).
90 Germany (A/C.6/76/SR.21, para. 81).
91 The following events, inter alia, were organized or attended by the Co-Chairs of the Study Group
in 2020 and 2021: interactive dialogues with the Sixth Committee (28 October 2020 and 27
October 2021); side event organized by Fiji, Jamaica, Mauritius and Singapore during
International Law Week 2020 (28 October 2020); panels during the annual meetings of the
American Society of International Law on sea -level rise and the law of the sea (2020) and the
protection of people in the context of climate change and disasters (2021); series of workshops
organized by the Liechtenstein Institute on Self -Determination, at Princeton University, on sea -
level rise and self-determination (2020 and 2021); webinar as part of a series on the theme “Rising
sea levels: promoting climate justice through international law” on the role of the Commission,
organized by the British Institute of International and Comparative Law (3 March 2021); virtu al
interactive discussion with the Alliance of Small Island States on the protection of persons
affected by sea-level rise (22 April 2021); panel organized by the Asian Society of International
Law on the theme “Rising sea levels and international law: Asi a and beyond” (26 May 2021);
briefing to European Union Working Party on Public International Law (3 June 2021); twenty -first
meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law
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44. The Co-Chairs of the Study Group have also continued to publish papers related
to the topic.92
IV. Scientific findings and prospects of sea-level rise relevant to
the subtopics
45. In accordance with the 2018 syllabus and as stated the first issues paper, 93 the
Commission will consider the present topic on the premise that sea -level rise is a fact,
already proved by science. As stated in the syllabus, more than 70 States are or are
likely to be directly affected by sea -level rise, a group which represents mo re than
one third of the States of the international community. Indeed, this phenomenon is
already having an increasing impact upon many essential aspects of life for coastal
areas, for low-lying coastal States and small island States, and especially for t heir
populations. Another quite large number of States is likely to be indirectly affected
(for instance, by the displacement of people or the lack of access to resources).
Sea-level rise has become a global phenomenon and thus creates global problems,
with an impact on the international community as a whole. 94 The available scientific
data, briefly outlined below, shows that the phenomenon is already affecting a large
number of States, either directly or indirectly.
46. The Special Report of the Intergover nmental Panel on Climate Change on the
Ocean and Cryosphere in a Changing Climate (2019) is of particular relevance to
understand the impacts of sea-level rise on affected populations and States, and
therefore merits further attention, in addition to the r eferences made to it in the first
issues paper.95
__________________
of the Sea, on the theme “Sea-level rise and its impacts”, and side event entitled “Sea -level rise
and implications for international law: a dialogue with the ILC Study Group” (15 June 2021);
webinar organized by the University of Trento on the theme “Climate change and sea -level rise:
legal consequences from the law of the sea, statehood and affected persons perspectives” (1
October 2021); expert meeting organized by Roma Tre University on the theme “Is international
disaster law protecting us?” (4 and 5 October 2021); Freshfields Public Inte rnational Law Seminar
on the theme “Sea-level rise: what are the implications for international law?” (26 October 2021);
informal discussion on the theme “Why is it urgent to register and publish maritime zone
information in view of rising seas?”, organize d by the Alliance of Small Island States, the Pacific
Islands Forum and the Asian-African Legal Consultative Organization (29 October 2021); and side
event during International Law Week 2021 entitled “Question -and-answer session with the Study
Group on sea-level rise in relation to international law of the International Law Commission” (1
November 2021).
92 Patrícia Galvão Teles, “Sea-level rise in relation to international law: a new topic for the
International Law Commission”, in Marta Chantal Ribeiro, Fe rnando Loureiro Bastos and Tore
Henriksen (eds.), Global Challenges and the Law of the Sea (Springer International, 2020);
Patrícia Galvão Teles, Nilüfer Oral et al., remarks on “Addressing the law of the sea challenges of
sea-level rise”, American Society of International Law Proceedings, vol. 114 (2020), pp. 385–396;
Patrícia Galvão Teles, remarks on “Protecting people in the context of climate change and
disasters”, American Society of International Law Proceedings vol. 115 (2021), pp. 158–161; and
Patrícia Galvão Teles, Claire Duval and Victor Tozetto da Veiga, “International cooperation and
the protection of persons affected by sea -level rise: drawing the contours of the duties of non -
affected States”, Yearbook of International Disaster Law, vol. 3 (2020), pp. 213–237.
93 A/73/10, annex B, paras. 1–4, and A/CN.4/740 and Corr.1, para. 28.
94 A/73/10, annex B, para. 1.
95 Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate:
A Special Report of the Intergovernmental Panel on Climate Change (forthcoming); and
A/CN.4/740 and Corr.1, paras. 29–32.
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47. On the basis of the 2019 Special Report’s summary for policymakers 96 and
chapter 4, on sea-level rise and implications for low-lying islands, coasts and
communities,97 the following of the Panel’s main findings deserve to be highlighted:
(a) human communities in close connection with coastal environments and
small islands (including small island developing States) are particularly exposed to
sea-level rise and extreme sea levels. Other communities further from the coast are
also exposed to changes in the ocean such as those resulting from extreme weather
events;
(b) the low-lying coastal zone – that is, at less than 10 metres above sea level –
is currently home to 680 million people (nearly 10 per cent of the 2010 global
population), a figure that is projected to reach more than 1 billion by 2050. Small island
developing States are home to 65 million people;
(c) many low-lying cities (such as New York City and Shanghai and
Rotterdam), large agricultural deltas (such as the Mekong, Ganges and Nile Deltas)
and small islands (including small island developing States such as Fiji, Tuvalu,
Kiribati and Maldives) are at risk in the context of sea -level rise;
(d) some island nations are likely to become inhabitable owing to climate -
related ocean and cryosphere change;
(e) there are lower risks under low-emissions scenarios and higher risks under
high-emissions scenarios;
(f) sea-level rise (and thus its impacts) is not globally uniform and varies
regionally;
(g) the risks related to sea-level rise, such as erosion, land loss, flooding and
salinization, affect access to water, food security, health and livelihoods, such as in
the tourism and fisheries sectors;
(h) people with the highest exposure and vulnerability are often with the
lowest capacity to respond, particularly in low -lying islands and coasts.
48. With regard to the observed impacts on people in coastal communities, the
relevant findings by the Panel in its 2019 Special Report are as follows: 98
(a) coastal communities are exposed to multiple climate -related hazards,
including tropical cyclones, extreme sea levels and flooding, and marine heatwaves.
A diversity of responses has been implemented worldwide, mostly after extreme
events, but also some in anticipation of future sea level rise;
(b) coastal protection through hard measures, such as dykes, sea walls and
surge barriers, is widespread in many coastal cities and deltas. Ecosystem -based and
hybrid approaches combining ecosystems and built infrastructure are becoming more
popular worldwide. Coastal retreat, which refers to the removal of human occupation
of coastal areas, is also observed, but is generally restricted to small human
communities or occurs to create coastal wetland habitat;
(c) where the community affected is small, or in the aftermath of a disaster,
reducing risk by coastal planned relocations is worth considering if safe alternative
__________________
96 “Summary for policymakers”, in Intergovernmental Panel on Climate Change, The Ocean and
Cryosphere in a Changing Climate (see footnote 95 above).
97 Michael Oppenheimer et al., “Sea-level rise and implications for low-lying islands, coasts and
communities”, in Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a
Changing Climate (see footnote 95 above).
98 “Summary for policymakers”, in Intergovernmental Panel on Climate Change, The Ocean and
Cryosphere in a Changing Climate (see footnote 95 above), paras. A.9, A.9.2 and C.3.2.
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localities are available. Such planned relocation can be socially, culturally, financially
and politically constrained.
49. Regarding projected changes and risks for affected communities, the most
relevant findings by the Panel in its 2019 Special Report may be summarized as
follows:99
(a) increased mean and extreme sea level, alongside ocean warming and
acidification, are projected to exacerbate risks for human communities in low -lying
coastal areas;
(b) in urban atoll islands, risks are projected to be moderate to high even under
a low-emissions scenario.
(c) under a high-emissions scenario, delta regions and resource -rich coastal
cities are projected to experience moderate to high risk levels after 2 050;
(d) many nations will face challenges to adapt, even with ambitious
mitigation. Adaptive capacity continues to differ between as well as within
communities and societies;
(e) responses to sea-level rise and associated risk reduction present society
with profound governance challenges, resulting from the uncertainty about the
magnitude and rate of future sea-level rise;
(f) intensifying cooperation and coordination among gover ning authorities
can enable effective responses to sea-level rise;
(g) regional cooperation, including treaties and conventions, can support
adaptation action. Institutional arrangements that provide strong multiscale linkages
with local and indigenous communities benefit adaptation.
50. In a recent report, published in August 2021,100 the Panel furthermore refers to
the following important data concerning future projections of sea -level rise:
(a) the global mean sea level increased by 0.20 metres betwe en 1901 and
2018. The average rate of sea-level rise was 1.3 millimetres per year between 1901
and 1971, increasing to 1.9 millimetres per year between 1971 and 2006, and further
increasing to 3.7 millimetres per year between 2006 and 2018. Human influence was
very likely the main driver of these increases since at least 1971;
(b) the global mean sea level has risen faster since 1900 than over any
preceding century in at least the past 3,000 years. Heating of the climate system has
caused global mean sea-level rise through ice loss on land and thermal expansion
from ocean warming;
(c) global mean sea-level rise above the likely range – approaching 2 metres by
2100 and 5 metres by 2150 under a very high greenhouse gas emissions scenario –
cannot be ruled out, owing to deep uncertainty in ice-sheet processes. In the longer
term, sea level is expected to rise for centuries to millennia owing to continuing deep -
ocean warming and ice-sheet melt and will remain elevated for thousands of years;
(d) it is very likely to virtually certain that regional mean relative sea -level
rise will continue throughout the twenty -first century, except in a few regions with
substantial geologic land uplift rates. Approximately two thirds of the global coastline
has a projected regional relative sea-level rise within plus or minus 20 per cent of the
global mean increase. Owing to relative sea-level rise, extreme sea-level events that
__________________
99 Ibid., paras. B.9, B.9.2, C.1.4, C.3.3, C.4.1 and C.4.2.
100 Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis –
Summary for Policymakers. Working Group I Contribution to the Sixth Assessment Report of the
Intergovernmental Panel on Climate Change (Cambridge, Cambridge University Press, 2021).
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occurred once per century in the recent past are projected to occur at least annually at
more than half of all tide gauge locations by 2100. Relative sea -level rise contributes
to increases in the frequency and severity of coastal flooding in low -lying areas and
to coastal erosion along most sandy coasts;
(e) in coastal cities, the combination of more frequent extreme sea-level
events (owing to sea-level rise and storm surges) and extreme rainfall or river-flow
events will make flooding more probable;
(f) if global net negative emissions of carbon dioxide were to be achieved and
be sustained, the global increase in carbon dioxide-induced surface temperature
would be gradually reversed, but other climate changes would continue in their
current direction for decades to millennia. For instance, it would take several
centuries to millennia for the global mean sea level to reverse course even under large
net negative emissions of carbon dioxide.
51. The relationship between these scientifically proven facts and the topic included
in the Commission’s programme of work was set forth in the 2018 syllabus in def ining
the scope of the topic: the Commission will only deal with “the legal implications of
sea-level rise”, and not with “protection of environment, climate change per se,
causation, responsibility and liability ”.101 Notwithstanding these limitations, and as
emphasized in the syllabus in outlining the method of work of the Commission on
this topic, the Study Group’s efforts “could contribute to the endeavours of the
international community to respond to [the] issues ”102 provoked by sea-level rise, and
the topic “reflects new developments in international law and pressing concerns of
the international community as a whole ”.103
V. Consideration of the topic by the International Law
Association
52. The topic of sea-level rise was initially examined by the Committee on
Baselines under the International Law of the Sea of the International Law Association,
whose report was considered at the Association ’s Sofia Conference in 2012.104 The
2012 report recognized “that substantial territorial loss resulting fro m sea-level rise
is an issue that extends beyond baselines and the law of the sea and encompasses
consideration at a junction of several parts of international law ”.105
53. As a consequence, the International Law Association established the Committee
on International Law and Sea-level Rise in 2012. That Committee decided to focus
its work on three main issue areas: the law of the sea; forced migration and human
rights; and issues of statehood and international security. An interim report of that
Committee, which was presented at the 2016 Johannesburg Conference, 106 focused on
issues regarding the law of the sea and migration/human rights. Another report was
considered at the 2018 Sydney Conference, in which the Committee recommended
that the International Law Association adopt a resolution containing two de lege
ferenda proposals, on the law of the sea and migration/human rights. The report and
__________________
101 A/73/10, annex B, para. 14.
102 Ibid., para. 18.
103 Ibid., para. 25.
104 Final report of the Committee on Baselines under the International Law of the Sea, in
International Law Association, Report of the Seventy-fifth Conference, Held in Sofia, August 2012 ,
vol. 75 (2012), p. 385, at p. 424.
105 Resolution 1/2012, para. 7, ibid., p. 17.
106 Interim report of the Committee on International Law and Sea -Level Rise, in International Law
Association, Report of the Seventy-seventh Conference, Held in Johannesburg, August 2016, vol.
77 (2017), p. 842.
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resolution 5/2018 adopted at the Sydney Conference partially endorsed these
proposals, while maintaining their general conceptual orientation.107 Furthermore, the
2018 report proposed a set of principles with commentary comprising the Sydney
Declaration of Principles on the Protection of Persons Displaced in the Context of
Sea-level Rise.108
54. The Sydney Declaration of Principles, contained in resolution 6/2018, consists
of nine principles based on and derived from relevant international legal provisions,
principles and frameworks. The purpose of the Sydney Declaration is to provide
guidance to States in averting, mitigating and addressing displacement of persons
occurring in the context of sea-level rise.
55. The nine principles in the Sydney Declaration relate to:
(a) the primary duty and responsibility of States to protect and assist affected
persons;
(b) the duty to respect the human rights of affected persons;
(c) the duty to take positive action;
(d) the duty to cooperate;
(e) evacuation of affected persons;
(f) planned relocations of affected persons;
(g) migration of affected persons;
(h) internal displacement of affected persons;
(i) cross-border displacement of affected persons.
56. With regard to issues of statehood and international legal personality in the case
where a State loses its territory entirely or where the territory becomes permanently
uninhabitable, in its report on the 2018 Sydney Conference of the International Law
Association, the Committee on International Law and Sea -Level Rise took the view
that the international law rules on the acquisition and loss of territory were clear and
well established and that there had been numerous situations in the past where
Governments had existed without physical control of territory – as for example in the
cases of Governments in exile. The Committee was, however, conscious of the fact
that there had been no precedents for the situation which might initially be faced by
a small number of island States if sea-level rise reached existential proportions for
them.109
57. While it is generally agreed that, as guidance and as a starting point, there should
be a presumption of continuing statehood in cases where land territory was lost, the
Committee on International Law and Sea-Level Rise is of the opinion that the exact
modalities for the continuation of statehood, or perhaps some other form o f
international legal personality, as well as other solutions for the problem (e.g., merger
with another State), are questions of great sensitivity that the Committee should
approach with considerable caution.110
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107 Final report of the Committee on International Law and Sea -Level Rise, in International Law
Association, Report of the Seventy-eighth Conference, Held in Sydney, 19–24 August 2018, vol. 78
(2019), p. 866.
108 Final report of the Committee on Interna tional Law and Sea-level Rise, ibid., pp. 897 ff., and
resolution 6/2018, annex, ibid., p. 33.
109 Final report of the Committee on International Law and Sea -Level Rise, in International Law
Association, Report of the Seventy-eighth Conference (see footnote 107 above), p. 25.
110 Ibid., pp. 25–26.
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58. In resolution 6/2018, 111 the Conference recommended that the Executive
Council extend the mandate of the Committee on International Law and Sea -level
Rise in order to enable it to continue its work on the remaining aspects of its mandate,
namely the question of statehood and the rights of affecte d populations, and other
aspects of international law including issues related to the law of the sea and territory.
The Executive Council extended the Committee ’s mandate until November 2022.
59. The Committee is due to present a further report at the Inte rnational Law
Association Conference in Lisbon in June 2022. It is possible that the mandate of the
Committee may be extended further.
Part One: General
I. Scope and outcome of the topic
60. The present topic concerns the issue of “Sea-level rise in relation to international
law”. In accordance with the 2018 syllabus, the Study Group will examine the
possible legal effects or implications of sea -level rise in three main areas: (a) law of
the sea; (b) statehood; and (c) protection of persons affected by sea -level rise.112 The
syllabus also indicates that “[t]hese three issues reflect the legal implications of
sea-level rise for the constituent elements of the State (territory, population and
Government/statehood) and are thus interconnected and should be examined
together”.113
61. The 2018 syllabus emphasizes that the topic “does not intend to provide a
comprehensive and exhaustive scoping of the application of international law to the
questions raised by sea-level rise, but to outline some key issues ” in the abovementioned
three areas.114 The syllabus is also clear as to the fact that these “three
areas to be examined should be analysed only within the context of sea -level rise
notwithstanding other causal factors that may lead to similar consequences ”. 115
Another clear limit set forth by the syllabus is that “[t]his topic will not propose
modifications to existing international law”.116 At the same time, the syllabus does
not exclude that, in relation to the topic, “[o]ther questions may arise in the future
requiring analysis”.117
A. Issues to be considered by the Commission
62. As already mentioned, the Study Group will examine the possible legal effects
or implications of sea-level rise in three main areas: (a) law of the sea; (b) statehood;
and (c) protection of persons affected by sea -level rise.
63. The law of the sea was the subject of the first issues paper, 118 which was
presented by the Co-Chairs in 2020 and discussed by the Study Group, the
Commission and the Sixth Committee in 2021. A summary of the discussions of the
Commission can be found in chapter IX of the 2021 Commission ’s annual report119
__________________
111 Resolution 6/2018, in International Law Association, Report of the Seventy-eighth Conference (see
footnote 108 above), p. 33.
112 A/73/10, annex B, para. 12.
113 Ibid., para. 13.
114 Ibid., para. 14.
115 Ibid.
116 Ibid.
117 Ibid.
118 A/CN.4/740, Corr.1 and Add.1.
119 A/76/10.
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and the plenary debate on the topic in the Sixth Committee is summarized in the
relevant summary records.120 Work on this subtopic will continue at a later stage.
64. On statehood, the issues to be examined are listed in the 2018 syllabus as
follows: (a) analysis of the possible legal effects on the continuity or loss of statehood
in cases where the territory of island States is completely covered by the sea or
becomes uninhabitable; (b) legal assessment regarding the reinforcement of islands
with barriers or the erection of artificial islands as a means to preserve the statehood
of island States against the risk that their land territory might be completely covered
by the sea or become uninhabitable; (c) analysis of the legal fiction according to
which, considering the freezing of baselines and the respect of the boundaries
established by treaties, judicial judgments or arbitral awards, the continuity of
statehood of the island States could be admitted due to the maritime territory
established as a result of territories under their sovereignty before the latter become
completely covered by the sea or uninhabitable; (d) assessment of the possible legal
effects regarding the transfer – either with or without transfer of sovereignty – of a
strip or portion of territory of a third State in favour of an island State whose terrestrial
territory is at risk of becoming completely covered by the sea or uninhabitable, in
order to maintain its statehood or any form of international legal personality; and (e)
analysis of the possible legal effects of a merger between an island developing State
whose land territory is at risk of becoming completely covered by the sea or
uninhabitable and another State, or of the creation of a federation or association
between them, regarding the mainten ance of statehood or of any form of international
legal personality of the island State. 121
65. On the protection of persons affected by sea -level rise, the issues to be examined
are listed in the 2018 syllabus as follows: (a) the extent to which the duty of States to
protect the human rights of individuals under their jurisdiction applies to
consequences related to sea-level rise; (b) whether the principle of international
cooperation may be applied to help States cope with the adverse effects of sea -level
rise on their population; (c) whether there are any international legal principles
applicable to measures to be taken by States to help their population to remain in situ,
despite rising sea levels; (d) whether there are any international legal principles
applicable to the evacuation, relocation and migration abroad of persons owing to the
adverse effects of sea-level rise; and (e) possible principles applicable to the
protection of the human rights of persons who are internally displaced or who migrate
owing to the adverse effects of sea-level rise.122
B. Final outcome
66. According to the 2018 syllabus, the Study Group will perform “a mapping
exercise of the legal questions raised by sea -level rise and its interrelated issues …
This effort could contribute to the endeavours of the international community to
respond to these issues and to assist States in developing practicable solutions in order
to respond effectively to the issues prompted by sea -level rise.”123
67. The syllabus indicates that the final outcome will be a final report of the Study
Group, accompanied by a set of conclusions on its work. After the presentation of the
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120 A/C.6/76/SR.17 to A/C.6/76/SR.24. The full texts of the statements are available from the Sixth
Committee’s web page, at https://www.un.org/en/ga/sixth/.
121 A/73/10, annex B, para. 16.
122 Ibid., para. 17.
123 Ibid., para. 18.
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final report, “it could be considered whether and how to pursue further the
development of the topic or parts of it within the Commission or other [forums] ”.124
II. Methodological approach
68. According to the 2018 syllabus, the Study Group will analyse the existing
international law, including treaty and customary international law, in accordance
with the mandate of the Commission, which is to undertake progressive development
of international law and its codification. 125 The work of the Study Group will be
based, using a systemic and integrative approach, on the practice of States,
international treaties, other international instruments, judicial decisions of
international and national courts and tribunals, and the analyses of scholars. 126
69. Other methodological and organizational matters were addressed in chapter X
of the 2019 annual report of the Commission127 and in chapter IX of its 2021 annual
report.128
70. State practice is essential for the work of the Commission, including for the
work of the Study Group on the present topic. The Co -Chairs would like to express
their deep gratitude to those States, international organizations and other relevant
bodies that have responded to the requests by the Commission, in chapter III of the
2019 and 2021 annual reports of the Commission, for such practice with regard to the
subtopics covered in the present issues paper.129 The Co-Chairs would also like to
express their gratitude to the Secretariat for its assistance in researching State practice
and the practice of relevant international organizations and bodies.
71. The Co-Chairs encourage States, international organizations and other relevant
bodies to continue engaging with the Study Group and the Commission on a formal
and informal basis, in order to share their practices and experience with regard to sea -
level rise in relation to inter national law.
__________________
124 Ibid., para. 26.
125 Ibid., para. 18.
126 Ibid., para. 20.
127 A/74/10, paras. 263–273.
128 A/76/10, paras. 245–246.
129 A/74/10, paras. 31–33, and A/76/10, para. 26. Submissions have been received from Belgium (23
December 2021), Fiji (on behalf of the members of the Pacific Islands Forum, namely Australia,
Fiji, Kiribati, Marshall Islands, Micronesia (Federated States of), Nauru, New Zealand, Palau,
Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu) (31 December 2021),
Liechtenstein (12 October 2021), Morocco (22 December 2021), the Russian Federation (17
December 2020) and Tuvalu (on behalf of the members of the Pacific Islands Forum) (30
December 2019), and from the Economic Commission for Latin America and the Caribbean
(ECLAC) (3 January 2022), the Food and Agriculture Organization of the United Nations (FAO)
(30 December 2021), the International Maritime Organization (IMO) (11 October 2021), the
United Nations Environment Programme (UNEP) (6 December 2021) and the United Nations
Framework Convention on Climate Change (30 December 2021). The submissions are availabl e at
https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
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Part Two
Reflections on statehood
I. Introduction
72. As highlighted by the delegation of Viet Nam in its statement delivered in the
Sixth Committee of the General Assembly in October 2018, sea -level rise is a global
phenomenon and thus creates global problems, impacting the international
community as a whole.130
73. However, sea-level rise is not a uniform phenomenon, since it varies from one
region of the world to another; 131 it is, for example, more serious in the Western
Pacific. Low-lying coastal States and, in particular, small island developing States,
which are home to about 65 million people, suffer directly from the effects of the
phenomenon. As Samoa and Seychelles pointed out in the Sixth Committee, small
island developing States face the risk of erosion, flooding and salinization, with a
notable impact on the storage of drinking water and on the economic activities of the
population.132
74. Similarly, the General Assembly has noted that sea -level rise poses a serious
and real threat for the survival of small island developing States, 133 as evidenced by
the cases of Kiribati, Maldives, Marshall Islands, Nauru, Palau and Tuvalu, whose
land surface area may become covered by the sea or become uninhabitable. 134
II. Criteria for the creation of a State
A. Under the 1933 Convention on the Rights and Duties of States
75. While there is no generally accepted notion of “State”, the reference is usually
the requirements or criteria that a State has to meet to be consi dered a subject
(“person”) of international law in accordance with article 1 of the 1933 Convention
on the Rights and Duties of States: ( a) permanent population; (b) defined territory;
(c) government; and (d) capacity to enter into relations with the other States. In this
issues paper, we take these requirements into consideration, except that, given the
existence of international organizations and other entities with international legal
personality, we prefer to refer to the fourth requirement as the capac ity to enter into
relations with the other States and other subjects of international law.
76. The Convention on the Rights and Duties of States is an outcome of the Seventh
International Conference of American States, held in the Uruguayan capital in
December 1933, and where the issue on which the participants focused their attention
was the manner in which the principle of non -intervention was to be addressed, at a
time when brand new “good neighbour” policy towards Latin America of President
of the United States Franklin D. Roosevelt was being launched, and following a series
__________________
130 Viet Nam (A/C.6/73/SR.30, para. 48).
131 Submission of FAO.
132 Samoa (A/C.6/73/SR.23, para. 65) and Seychelles (A/C.6/73/SR.24, para. 11).
133 General Assembly resolution 72/217 of 20 December 2017, eleventh preambular para .
134 Jane McAdam et al., International Law and Sea-Level Rise: Forced Migration and Human Rights
(Lysaker, Fridtjof Nansen Institute, 2016), pp. 7 –9; Mariano J. Aznar Gómez, “El Estado sin
territorio: La desaparición del territorio debido al cambio climáti co”, Revista Electrónica de
Estudios Internacionales, No. 26 (2013), pp. 6–7; and Susin Park, “El cambio climático y el riesgo
de apatridia: La situación de los Estados insulares bajos” (Geneva, Office of the United Nations
High Commissioner for Refugees (UNHCR), 2011), p. 11.
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of prior experiences of intervention by the United States in the region in the
nineteenth century and at the beginning of the twentieth century. 135 An important
detail that emerges from the review of the Conference proceedings is that the content
of article 1 of the Convention was not discussed more extensively, since it reflected
principles common to the American States and was adopted unanimously b y the
delegations of the States represented at the Conference. 136
1. Permanent population
77. Regardless of the size of its population, a State must have a permanent
population that has settled in its territory. Such population comprises both nationals
and aliens, although the majority of the people in a State are generally nationals of
that State.
78. Nationality, as the legal bond between those individuals and the State, is
determined in accordance with the domestic law of the State, although in some ca ses
nationality issues may be the subject of treaties between the States concerned.
79. Nationality can be original – based on the operation of jus soli or jus sanguinis,
depending on the stipulations of the law of each State – or supervening – as per the
criteria and requirements contemplated by the domestic law of each State, or by
treaties on the subject that may have been concluded between some States. 137
80. Situations may arise where there is a concurrence of more than one original
nationality in respect of the same individual if, for example, the individual acquires
the nationality of a State jus soli and, at the same time, the nationality of another State
jus sanguinis; such conflict may also arise when a person acquires the nationality of
a State, as a supervening nationality, without losing or having to renounce his or her
original nationality.
81. The State exercises personal jurisdiction over its nationals. As indicated in
paragraph 79 supra, it is the State’s domestic law that determines both who are its
nationals and the manner in which that nationality is acquired – original or
supervening. The State has exclusive jurisdiction in this domain, although the
opposability of the nationality of a State again st third States may depend on the ability
to show an effective bond between the person and the State.
82. In that regard, with respect to diplomatic protection, the International Court of
Justice, in the Nottebohm case, distinguished between the effects of having acquired
nationality inside the State that conferred it, from the effects that said acquisition may
have in terms of its opposability against another State. 138
83. The personal jurisdiction of the State can be exercised over both nationals who
are inside its territory, who are also, of course, subject to the territorial jurisdiction of
__________________
135 Final Act of the Seventh International Conference of American States (Montevideo, 19 December
1933); and Report of the Second Subcommittee on Rights and Duties of States to the Second
Commission of the Seventh International Conference of American States, Actas y Antecedentes de
la Segunda Comisión (Montevideo, December 1933), pp. 177 –178.
136 Final Act of the Seventh International Conference of American States (see footnote 135 above), p.
82; Report of the Second Subcommittee on Rights and Duties of States to the Second Commission
of the Seventh International Conference of American States, Actas y Antecedentes de la Segunda
Comisión (Montevideo, December 1933); and Record of the Third Plenary Session of the Seventh
International Conference of American States, ibid., p. 57.
137 Paras. (1)–(3) of the commentary to article 4 of the draft articles on diplomatic protection,
Yearbook of the International Law Commission , 2006, vol. II (Part Two), para. 50.
138 Nottebohm Case (second phase), Judgment of April 6th, 1955: I.C.J. Reports 1955, p. 4, at pp. 21–
24.
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that State,139 since it may restrict the possibility of holding certain public posts to its
nationals, or even only to those with original nationality, and nationals who are
outside the territory. Concerning the latter, the territorial State undoubtedly also has
jurisdiction, although the State of nationality carries out various actions in their
respect, including those relating to civil registration, forwarding of documents,
consular assistance and protection, and diplomatic protection.
84. It is also important to consider cases, such as that of the European Union, where
nationals of each member State – an issue determined under the domestic law of each
State – also have the status of citizens of the European Union. As a consequence of
that status, they enjoy, among other rights, the right to move and reside freely in any
of the member States; the right to vote and to stand as ca ndidates in elections to the
European Parliament and in municipal elections in their member State of residence;
and the right to enjoy, in the territory of a third country in which the member State of
which they are nationals is not represented, the protec tion of the diplomatic and
consular authorities of any member State on the same conditions as the nationals of
that State.140
85. In the cases of persons with more than one nationality, according to the 2006
articles on diplomatic protection adopted by the International Law Commission, any
State of which a dual or multiple national is a national may exercise diplomatic
protection in respect of that national against a State of which that person is not a
national, with the particularity that, in addition, two or more States of nationality may
jointly exercise diplomatic protection in respect of such person. 141 At the same time,
a State of nationality may not exercise diplomatic protection in respect of a person
against a State of which that person is also a nati onal unless the nationality of the
former State is predominant, both at the date of injury and at the date of the official
presentation of the claim.142 Examples of this can be found in the cases of Raphael
Canevaro,143 Florence Strunsky Mergé144 and of Iran-United States dual nationals.145
86. Under article 15 of the Universal Declaration of Human Rights of 1948,
everyone has the right to a nationality. 146 It is therefore worthwhile highlighting the
efforts of the international community to avoid situations of statelessness through the
adoption of various provisions, such as article 24 of the 1966 International Covenant
on Civil and Political Rights,147 paragraph 3 of which stipulates that every child has
__________________
139 Yearbook of the International Law Commission , 1997, vol. I, p. 12, para. 45 (United Nations
publication, 2002); Yearbook of International Law Commission, 1952 , vol. II, p.7, para. 2.
140 See Consolidated version of the Treaty on European Union, Official Journal of the European
Union (2016/C 202/01), art. 35; Consolidated version of the Treaty on the Functioning of t he
European Union, Official Journal of the European Union (2016/C 202/01), arts. 20 –24; and
Charter of Fundamental Rights of the European Union, Official Journal of the European Union
(2016/C 202/02), arts. 44–46. Available at https://eur-lex.europa.eu/legalcontent/
EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=ES (accessed on 25 February 2022).
141 Article 6 of the articles on diplomatic protection, Yearbook of the International Law Commission,
2006, vol. II (Part Two), para. 49; and General Assembly resolution 62/67 of 6 December 2007.
142 Article 7 of the articles on diplomatic protection, Yearbook of the International Law Commission,
2006, vol. II (Part Two), para. 49.
143 Canevaro Case (Italy v. Peru), Award of 3 May 1912 , Arbitral Tribunal, Permanent Court of
Arbitration, United Nations, Reports of International Arbitral Awards, vol. XI, pp. 397–410.
144 Mergé Case, Decision No. 55 of 10 June 1955, Italian-United States Conciliation Commission,
United Nations, Reports of International Arbitral Awards, vol. XIV, pp. 236–248.
145 Islamic Republic of Iran v. United States of America , Iran-United States Claims Tribunal,
Decision, Case No. A/18, 6 April 1984. Available at https://iusct.com/cases/a18-decision-no-32-6-
april-1984/ (accessed on 25 February 2022).
146 Universal Declaration of Human Rights, General Assembly resolution 217 A (III), of 10 December
1948.
147 International Covenant on Civil and Political Rights (New York, 16 December 1966) United
Nations, Treaty Series, vol. 999, No. 14668, p. 171.
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the right to acquire a nationality, and instruments on the subject, such as the 1961
Convention on the Reduction of Statelessness, 148 which contemplates, for example,
the granting of nationality by any contracting State to a person who would otherwise
be stateless, including situations of foundlings born in the territory of a State, who,
unless proven otherwise, are children of parents possessing the nationality of the said
State, as well as for those not born in the territory of a contract ing State if the
nationality of one of his or her parents at the time of the person’s birth was that of
that State. At the same time, a national of a contracting State who seeks naturalization
in a foreign country shall not lose his or her nationality, unless he or she acquires or
has been accorded assurance of acquiring the natio nality of that foreign country, and
a contracting State shall not deprive a person of his or her nationality if such
deprivation would render him or her stateless.
87. Lastly, the articles on diplomatic protection adopted by the Commission
explicitly contemplate the possibility of a State exercising diplomatic protection in
respect of a stateless person or of a person who that State recognizes as a refugee, in
accordance with internationally accepted standards, if that person, at the date of the
injury and at the date of the official presentation of the claim, is lawfully and
habitually resident in that State.149
2. Defined territory
88. Territory is the concrete physical scope – whatever its size – over which the
State exercises its sovereignty and jurisdiction, and comprises continental and insular
areas, the sea adjacent to its coast, including its internal waters, generated using
straight baselines, its archipelagic waters, if any, and its territorial sea, as well as the
airspace over them.
89. The territory can be vast, small or even narrow; it can also be continuous or
discontinuous, in the sense that there is no geographic contiguousness between the
parts of the territory of a State, as is the case with the states of Alaska and Hawaii in
the United States or is completely surrounded by the territory of another State, as is
the case with Lesotho, San Marino and the Vatican City.
90. The territory or the boundaries of a State may be the subject of a dispute with
other States, because a State does not need to have defined boundaries for it to be
considered to exist.150 Similarly, the territory of a State cannot be lost or disappear as
a result of its total or partial occupation during a conflict. In that connection, article
42 of the Regulations concerning the Laws and Customs of War on Land, annexed to
the Convention respecting the Laws and Customs of War on Land, of 1907, states that
territory is considered occupied when it is actually placed under the authority of the
hostile army. The occupation ex tends only to the territory where such authority has
been established and can be exercised.151
91. The State also has rights of sovereignty and jurisdiction over maritime spaces,
such as the exclusive economic zone and the continental shelf, as defined in t he 1982
__________________
148 Convention on the Reduction of Statelessness (New York, 30 August 1961), United Nations,
Treaty Series, vol. 989, No. 14458, p. 175.
149 Article 7 of the articles on diplomatic protection, Yearbook of the International Law Commission,
2006, vol. II (Part Two), para. 49.
150 Crawford, The Creation of States (see footnote 29 above), pp. 46–47 and 48–52; and Juan José
Ruda Santolaria, Los Sujetos de Derecho Internacional: El Caso de la Iglesia Católica y del
Estado de la Ciudad del Vaticano (Lima, Fondo Editorial de la Pontificia Universidad Católica del
Perú, 1995), pp. 38–39.
151 Convention (IV) respecting the Laws and Customs of War on Land, and its annex, Regulations
concerning the Laws and Customs of War on Land (The Hague, 18 October 1907), James Brown
Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907 , 3rd ed. (New York,
Oxford University Press, 1918), p. 100.
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United Nations Convention on the Law of the Sea, several norms of which are also
part of customary international law.152
92. The State also exercises extraterritorial jurisdiction in respect of vessels or
aircraft flying its flag that are registered or matriculated in the State, even when they
are outside the geographical spaces under its sovereignty or in which it exercises
sovereign rights and under its jurisdiction, as is the case on the high seas. 153
93. The State also has jurisdiction in respect of aliens in its territory. The territorial
State has two fundamental attributes: fullness and exclusivity, both pursuant to the
principle of equality among States and the principle of non -intervention, in relation
specifically to the exercise of territori al jurisdiction by the State. The State has, in its
territory, full and exclusive jurisdiction in the executive, legislative and legal spheres,
without third States being able to take any type of action, unless they have the
authorization or consent of the relevant territorial State, or unless such action is
backed by international law. This does not exclude the possibility of condominium
over a defined territory based on treaties between the States concerned, as occurred,
for example, between France and Sp ain in connection with Pheasant Island, also
called Conference Island, which sits on the Bidasoa river and the administration of
which switches between the two parties for six -month periods.154
94. One issue to take into consideration is that the State can exercise jurisdiction in
geographic areas or spaces that are not strictly part of its territory, as illustrated by
the case of colonies that are under the jurisdiction and administration of colonial
powers, without that implying that they are part of the t erritories of such powers.155
95. Lastly, the State can authorize the existence of military bases of third States in
its territory. This often occurs pursuant to a treaty, which spells out the conditions for
the operation of such bases, the time of the conc ession, the possible amount of
economic compensation or leasing for this concept, and the legal regime to which the
military and civilian personnel – national or foreign – would be subjected in the
spaces comprising such bases.
3. Government
96. Government refers to the political organization that governs the State and
performs executive, legislative and judicial functions. In that regard, it is vital for the
State to have its own legal order, under which it organizes itself; the legal order
governs both nationals and aliens in the territory of the State, over whom the courts
of the State also have jurisdiction.
97. The form that the political organization takes will depend on the characteristics
and reality of each State, to the extent that said form cou ld change following a
decision taken freely by the State, without that affecting its international legal
personality. Accordingly, a State may be a monarchy or a republic, or have a unitary
or complex structure, as is the case with a federation, without an y limitation as to its
being able to adopt another form of political organization. At the same time, the State
__________________
152 See United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), U nited
Nations, Treaty Series, vol. 1833, No. 31363, p. 3, arts. 55–56 and 76–77.
153 See United Nations Convention on the Law of the Sea, art. 91.
154 Treaty delimiting the frontier from the mouth of the Bidasoa to the point where the Department of
Basses-Pyrenees adjoins Aragon and Navarra (France and Spain) (Bayonne, 2 December 1856),
United Nations, Treaty Series, vol. 1142, No. 838, p. 317; and Convención entre España y Francia,
reglamentando la jurisdicción en la Isla de los Faisanes (Bayonne, 27 March 1901), Gaceta de
Madrid, No. 290, 17 October 1902, p. 201.
155 Declaration on Principles of International Law concerning Friendly Relations and Coopera tion
among States in accordance with the Charter of the United Nations, General Assembly resolution
2625 (XXV) of 24 October 1970, annex.
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retains its international personality despite changes in its name over time, as can be
seen in the cases of Benin, the Plurinational State of Bol ivia, Burkina Faso, Cambodia
and Eswatini.156
98. The existence of a government which also exercises real control over the
territory and the population is especially significant in considering whether a State
exists as such, and consequently, to recognize it. Nonetheless, in some circumstances,
such as when a new State is created through the exercise of the right to self -
determination of its population, there may be a case where the Government ’s actions
are backed or supported by other friendly St ates and international organizations that
make it possible for the State to function and to perform its principal functions in
respect of the population living in its territory. In such situations, by the very singular
nature of the circumstances, the existence of the State is not called into question, even
though the Government is not able to perform or accomplish all its tasks by itself.
However, the actions taken in such cases by other States and international
organizations – such as the United Nations – is temporary in nature and do not
undermine the sovereignty and integrity of the State nor the ability of its Government
to make its own decisions.157
99. It should also be noted that while in some treaties reference is made to
Governments when referring to the parties, the subjects of international law involved
in such instruments are States, whose political structure comprises Governments,
which act on behalf of the State and make binding undertakings on its behalf at the
international level.
100. In addition, it is very important to point out that, in exceptional situations where
the territory of a State has been occupied by a third power, the representation of said
State may fall on Governments in exile. 158 As shown below, such a situation occurred
in some States during the First and Second World Wars, as well as in the cases of
Cambodia – at the time referred to as Democratic Kampuchea – following the
Vietnamese invasion of December 1978 and the establishment of a Government under
the control of the occupying forces in January 1979; and of Kuwait, between 1990
and 1991, following the invasion and annexation by Iraq. 159
__________________
156 Crawford, The Creation of States (see footnote 29 above), pp. 679–680.
157 Ibid., pp. 55–58.
158 Crawford, The Creation of States (see footnote 29 above), pp. 97–99 and 106–107; Thomas D.
Grant, “Defining statehood: the Montevideo Convention and its discontents”, Columbia Journal of
Transnational Law, vol. 37, No. 2 (1999), pp. 403–457, at p. 435; Jenny Grote Stoutenburg,
“When do States disappear? Thresholds of effective statehood and the continued recognition of
‘deterritorialized’ island States”, in Michael B. Gerrard and Gregory E. Wannier (eds.),
Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate
(Cambridge, Cambridge University Press, 2013), pp. 59 and 72 –76; Park, “El cambio climático y
el riesgo de apatridia” (see footnote 134 above), p. 11; and Stefan Talmon, “Who is a legitimate
government in exile? Towards normative criteria for governmental legitimacy in international
law”, in Guy S. Goodwin-Gill and Stefan Talmon (eds.), The Reality of International Law. Essays
in Honour of Ian Brownlie (Oxford, Oxford University Press, 1999), pp. 499 –537.
159 Crawford, The Creation of States (see footnote 29 above), pp. 97–99; Grote Stoutenburg, “When
do States disappear?” (see footnote 158 above), pp. 59, 69–70 and 74–75; John Hiden, Vahur
Made and David J. Smith (eds.), The Baltic Question during the Cold War (New York, Routledge,
2008); Lauri Mälksoo, “Professor Uluots, the Estonian Government in exile and the continuity of
the Republic of Estonia in international law”, Nordic Journal of International Law, vol. 69, No. 3
(March 2000), pp. 289–316; Park, “El cambio climático y el riesgo de apatridia” (see footnote 134
above), pp. 11–13; and Romain Yakemtchouk, “Les Républiques baltes en droit international.
Echec d’une annexion opérée en violation du droit des gens”, Annuaire francais de droit
international, vol. 37 (1991), pp. 259–289.
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4. Capacity to enter into relations with the other States and other subjects of
international law
101. The capacity of the State to enter into relations with the other States and other
subjects of international law is linked to its sovereignty, the external expression of
which is independence. The State is independent and not subordinated to the power
of any other power; it governs itself and is subjected directly to international law. In
that sense, the State’s capacity is only limited by the sovereignty of the other States
and by respect for the rules and principles of international law.
102. The State has its own international legal personality in that it is the direct
possessor of rights and obligations rooted in international law. As a consequence of
their sovereign and independent character, States are legally equal among themselves
and no possibility for acts that entail int ervention or interference in their internal
affairs is allowed.
103. The capacity of the State to enter into relations with the other subjects of
international law is embodied in, among other things, the active and passive right of
legation, the foundation of diplomatic relations; the active and passive right of
consulate, membership in international organizations; conclusion of treaties;
international responsibility for wrongful acts committed by the State and its agents;
enjoyment of immunities and privileges in accordance with international law; and
dispute settlement through political or diplomatic means, or through jurisdictional
means, as dictated by the international order. At the same time, the State has the
capacity to exercise self-defence, in accordance with international law, and to
preserve its integrity and independence, including against other States that do not
recognize it.
B. Under the 1936 resolution of the Institut de Droit International
104. Article 1 of the resolution concerning the recognition of new States and new
Governments, adopted by the Institut de Droit International in April 1936, states as
follows:
“The recognition of a new State is the free act by which one or more States
acknowledge the existence on a definite territory of a human society politically
organized, independent of any other existing State, and capable of observing the
obligations of international law, and by which they manifest therefore their
intention to consider it a member of the international Community.
Recognition has a declaratory effect;
The existence of a new State with all the juridical effects which are attached to
that existence, is not affected by the refusal of recognition by one or more
States.”160
105. As can be seen, there are indisputable coincidences with the requirements
contained in article 1 of the Convention on the Rights and Duties of States, in that it
stipulates that the new State comprises a politically organized society existing in a
defined territory, and that the State is independent of any other existing State and is
capable of observing the obligations of international law. An important detail to noted
is that it refers to a new State, which at the time of its creation or establishment has
to meet criteria or requirements to achieve that status. It is also worth noting that the
recognition of a new State is declaratory in nature, and its existence, with all the
__________________
160 Institut de Droit International, “Resolutions concerning the recognition of new States and new
Governments” (Brussels, April 1936), The American Journal of International Law, vol. 30, No. 4,
Supplement: Official Documents (October 1936), pp. 185 –187.
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juridical effects attached thereto, is not affected by the refusal of recognitio n by one
or more States.
C. Under the 1949 draft Declaration on Rights and Duties of States
106. In its resolution 375 (IV) of 6 December 1949, the General Assembly took note
of the draft Declaration on Rights and Duties of States, developed by the International
Law Commission at its first session. 161 While not containing a notion of State or
describing per se the criteria or requirements for the establishment of a State, the draft
Declaration incorporates, in its first two articles, elements which undoubtedly reflect
the nature of the State. The articles stipulate as follows:
“Article 1
Every State has the right to independence and hence to exercise freely, without
dictation by any other State, all its legal powers, including the choice of its own
form of government.
Article 2
Every State has the right to exercise jurisdiction over its territory and over all
persons and things therein, subject to the immunities recognized by international
law.”
107. In that connection, it refers to the right of any State to exercise jurisdiction over
its territory and over all persons and things found therein, which encompasses the
population and the living and non-living resources of the territory. It also refers to the
right to independence, hence the right of every State to freely exercise its legal powers
and to elect its form of government, without being subjected to the will of any other
State, but at the same time without prejudice to the immunities recognized by
international law.
D. Under the 1956 draft articles on the law of treaties
108. The draft articles on the law of treaties, presented in 1956 to the International
Law Commission by Special Rapporteur Sir Gerald Fitzmaurice, included a draft
article 3, entitled “Certain related definitions”, which stated as follows:
For the purposes of the present Code:
(a) In addition to the case of entities recognized as being States on special
grounds, the term “State”:
(i) Means an entity consisting of a people inhabiting a defined territory, under an
organized system of government, and having the capacity to enter into international
relations binding the entity as such, either directly or through some other State; but
this is without prejudice to the question of the methods by, or channel through which
a treaty on behalf [of] any given State must be negotiated – depending on its status
and international affiliations;
(ii) Includes the government of the State …. ”162
109. Despite the fact that this definition was ultimately not included in the work of
the Commission on the topic or in the 1969 Vienna Convention on the Law of Treaties
__________________
161 Yearbook of the International Law Commission 1949 , p. 287.
162 Yearbook of the International Law Commission, 1956 , vol. II, document A/CN.4/101, para. 10, at
pp. 107–108.
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163 and that, considering the time when it was introduced, it also refers to “protected
States”, it contains some elements that accord with article 1 of the Convention on the
Rights and Duties of States. In that connection, it is worth highlighting the reference
to an entity consisting of a people inhabiting a defined territory, under an organized
system of government, and having the capacity to enter into international relations
binding the entity as such, as well as that it is explicitly mentioned , in conjunction
with the point made above, that that includes the Government of the State.
E. In the opinions of the Arbitration Commission of the 1991
International Conference on the Former Yugoslavia
110. In its opinion No. 1 of 29 November 1991, in response to the letter from the
Chair of the International Conference on the Former Yugoslavia, Lord Carrington,
dated 20 November 1991, the Arbitration Commission of the Conference (Badinter
Commission) noted that “the State is commonly defined as a community which
consists of a territory and a population subject to an organized political authority; that
such a State is characterized by sovereignty ”.164
111. As can be seen, the definition that the Badinter Commission used as a reference
is fully consonant with the provisions of article 1 of the Convention on the Rights and
Duties of States, in that it conceives the State as a community with a territory and a
population, subjected to an organized political authority, characterized by
sovereignty.
III. Some representative examples of actions taken by States
and other subjects of international law
112. To date, there has not been a situation of a State whose land territory has been
completely covered by the sea or that has become inhabitable for its population.
Nonetheless, there have historically been cases, such as those of the Holy See and the
Sovereign Order of Malta, where entities that exercised jurisdiction over defined
territories – the Pontifical States and the Island of Malta, respectively – were deprived
of said territories, but nonetheless maintained their international legal personality. At
the same time, there have also been different situations where, owing to an
exceptional internal circumstance or total or partial occupation of the territory of the
State by a foreign power, a Government was set up in exile in the territory of a third
State on behalf of the State affected by such exceptional circumstance or by the
foreign occupation of its territory.
A. Holy See165
113. The Catholic Church is a religious confession whose faithfuls around the world
recognize the spiritual authority of the Pope as the head of the Church. The Catholic
__________________
163 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), United Nations, Treaty Series,
vol. 1155, I-18232, p. 331.
164 Maurizio Ragazzi, “Conference on Yugoslavia Arbitration Commission: opinions on questions
arising from the dissolution of Yugoslavia”, International Legal Materials, vol. 31, No. 6
(November 1992), pp. 1488–1526, at p. 1495.
165 This section is based on the following works by the Co -Chair: Ruda Santolaria, Los Sujetos de
Derecho Internacional (see footnote 150 above); Juan José Ruda Santolaria, “La Iglesia Católica y
el Estado Vaticano como Sujetos de Derecho Internacional”, Archivum Historiae Pontificiae –
Pontificia Universidad Gregoriana, No. 35 (1997), pp. 297–302; Juan José Ruda Santolaria,
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Church therefore has a universal dimension and has a structure of government and
international representation, comprising the Holy See or the Apostolic See, wh ich in
turn includes the Pope and the Roman Curia.166 The Roman Curia includes a dicastery,
the Secretariat of State, whose Second Section is responsible for relations with the
States.167
114. The Catholic Church is autonomous and independent in relation to any other
power or authority in the world. It therefore has its own legal order – canon law –
which stems from its organs and is applicable directly to its faithful on matters that it
addresses.
115. For various centuries and until 1870, the Pope served as both head of the
Catholic Church and Head of State of the Pontifical States, which covered
approximately one third of the Italian peninsula, whose capital was Rome. At that
time, the Holy See exercised the active and passive right of legation, as part of a
practice that dates back to the Byzantine Empire, when the Holy See accredited
representatives to States, which in turn started accrediting permanent diplomatic
representatives to the Holy See at the end of the fifteenth century. In that connection,
the Regulation Concerning the Relative Ranks of Diplomatic Agents, incorporated
into the Protocol to the Treaty of Paris, adopted at the meeting of 19 March 1815 of
the Vienna Congress, 168 contains provisions formalizing the status of nuncios and
legates as ambassadors or first-class agents, and offering the possibility of granting
precedence to Papal representatives, in terms that could make them the dean of the
diplomatic corps in States to which they were accredited.
__________________
“Relaciones Iglesia-Estado: Reflexiones sobre su marco jurídico”, in Manuel Marzal, Catalina
Romero and José Sánchez (eds.), La Religión en el Perú al filo del milenio (Lima, Fondo Editorial
de la Pontificia Universidad Católica del Perú, 2000), pp. 59 –86; and Juan José Ruda Santolaria,
“Vatican and the Holy See”, in Anthony Carty (ed.), Oxford Bibliographies in International Law
(New York, Oxford University Press, 2016). The following publications in particul ar have also
been taken into consideration: Hyginus Eugene Cardinale, The Holy See and the International
Order (Gerrards Cross, Smythe, 1976); Carlos Corral Salvador, La relación entre la Iglesia y la
comunidad política (Madrid, Biblioteca de Autores Cristianos, 2003); Julio A. Barberis, “Sujetos
del Derecho Internacional vinculados a la actividad religiosa”, Anuario de Derecho Internacional
Público (Buenos Aires, Universidad de Buenos Aires, Facultad de Derecho y Ciencias Sociales,
Instituto de Derecho Internacional Público), vol. 1 (1981), pp. 18–33; and Pío Ciprotti, “Santa
Sede: su función, figura y valor en el Derecho Internacional”, Concilium – Revista Internacional
de Teología (Madrid, Ediciones Cristiandad), No. 58 (1970), pp. 207–217. The following lecture
may also be useful: Juan José Ruda Santolaria, “La Santa Sede y el Estado de la Ciudad del
Vaticano a la luz del derecho internacional”, Audiovisual Library of International Law, audio and
video files, 16 May 2018; available at https://legal.un.org/avl/ls/RudaSantolaria_IL.html .
166 Canon 361 of the Codex Iuris Canonici, Rome, 25 January 1983, at
http://www.vatican.va/archive/ESL0020/_INDEX.HTM (accessed on 25 February 2022); Canon
48 of the Codex Canonum Ecclesiarum Orientalium, Rome, 18 October 1990, at
http://w2.vatican.va/content/john -paul-ii/la/apost_constitutions/documents/hf_jp -
ii_apc_19901018_index-codex-can-eccl-orient.html (accessed on 25 February 2022).
167 Articles 39 to 47 of the Apostolic Constitution “Pastor Bonus”, Rome, 28 June 1988, at
https://www.vatican.va/content/john-paul-ii/en/apost_constitutions/documents/hf_jp -
ii_apc_19880628_pastor-bonus.html (accessed on 25 February 2022). After the present issues
paper had been prepared, Pope Francis issued the Apostolic Constitution “Praedicate
Evangelium”, on 19 March 2022, abrogating and substituting the Constitution “Pastor Bonus” on
5 June 2022. Articles 44 to 52 address the issue of the Secretariat of the State, conceived as the
Papal Secretariat, which includes three sections. One of these is the Sec tion for Relations with
States and International Organizations. The text of the new Apostolic Constitution may be
consulted at
https://press.vatican.va/content/salastampa/it/bollettino/pubblico/2022/03/19/0189/00404.html .
168 See articles 1 and 2 of Regulation Concerning the Relative Ranks of Diplomatic Agents, Congress
of Vienna (March 19, 1815), Yearbook of International Law Commission, 1956, vol. II, p. 133.
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116. The Holy See also signed treaty-like instruments – which it calls concordats –
covering matters relating to the legal status of the Catholic Church in the territory of
the relevant State, as well as topics of common interest to the Church and the State;
and the Pope intervened in the settlement of disputes between Christian monarchs and
formalized the rights of those monarchs over defined territories, as was the case, for
example, with the Papal bulls issued by Pope Alexander VI in 1493 following the
discovery of America by Christopher Columbus and served as the basis for the Treaty
of Tordesillas between Spain and Portugal the following year. The Holy See also
exercised the active and passive right of consulate on behalf of the Pontifical States.
117. When the troops of King Victor Emmanuel II captured Rome on 20 September
1870 and the city was declared the capital of Italy, the Holy See was deprived in fact
of the territory over which it had exercised sovereignt y and jurisdiction. As a sign of
protest, the Pope locked himself inside the Vatican, giving rise to what became known
as the “Roman Question”, which culminated in the Lateran Treaty between the Holy
See and Italy, which was signed on 11 February 1929 and became effective on 7 June
of that same year, for Italy to recognize the sovereignty and ownership of the Holy
See over the Vatican City.169
118. In the meantime, the Italian Parliament passed Act No. 214, of 13 May 1871, on
guarantees of the prerogatives o f the Sovereign Pontiff and the Holy See, and on
relations between the State and the Church, 170 which was rejected by the Holy See for
many reasons, including the fact that it was unilateral in nature and only recognized
a right of usufruct for the Holy See over the Vatican and certain buildings. However,
in relation to the present topic, the “law of guarantees” contained provisions whereby
Italy recognized the maintenance of the active and passive right of legation of the
Holy See, granting to diplomatic representatives accredited to the Holy See the same
privileges and immunities as those granted to diplomatic representatives accredited
to Italy, and conferring on Papal legates treatments and privileges equivalent to those
established for their Italian coun terparts on one-way or return travel.
119. One issue that is particularly relevant is that the Holy See exercised the active
and passive right of legation uninterruptedly during the period between 1870 and
1929, the only difference being that the number of States that had diplomatic relations
with the Holy See rose during that time. In the case of a State like France, for example,
the diplomatic relations continued until 1904 and were interrupted for 17 years, but
were restored in May 1921, 8 years before the entry into force of the Lateran Treaty.
120. During the period in question, the Holy See signed some concordats with
countries such as Portugal in 1886, Colombia in 1887, Poland in 1925 and Lithuania
in 1927. It is also worth highlighting the mediation of Pope Leo XIII in 1885 in
connection with the dispute between Spain and Germany for the Caroline Islands, as
well as the efforts and representations of Pope Benedict XV for an end to the First
World War.
121. With regard to the exercise of the right of c onsulate, given the conception
whereby it is linked to the survival of territorial sovereignty, while the Holy See did
not insist on the sending and receiving of consuls, there was no formal withdrawal of
exequatur from Papal consuls. In this regard, some cases are worth highlighting,
including that of the Papal consul in New York, who continued to be considered as
such by the Government of the United States until his death in 1895, and that of the
__________________
169 See articles 2 and 3 of the Trattato fra la Santa Sede e l ’Italia (1929), at
https://www.vaticanstate.va/phocadownload/leggi -decreti/TrattatoSantaSedeItalia.pdf (accessed on
25 February 2022).
170 Sulle prerogative del Sommo Pontefice e della Santa Sede, e sulle relazioni dello Stato con la
Chiesa (071U0214), at https://www.gazzettaufficiale.it/eli/gu/1871/05/15/134/sg/pdf (accessed on
25 February 2022).
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Papal consul in Antwerp, who had been granted exequatur by the Government of
Belgium in 1872, but who resigned without assuming the post, while maintaining the
position that the Pope must retain his usual powers. 171
122. The Pope has held the position of both head of the universal Catholic Church
and Head of State of the Vatican City since the entry into force of the Lateran Treaty
of 1929. In the majority of cases where the Holy See undertakes international action ,
it does so in its capacity as agent of the Government and as representative of the
Church. The Holy See exercises the active and passive right of legation, taking into
consideration the 1961 Vienna Convention on Diplomatic Relations in respect of
nuncios and internuncios as first- and second-class diplomatic agents, respectively, as
well as the possibility of recognizing the precedence of the representative of the Holy
See, as an exception to the general seniority criterion. 172
123. The Holy See signs concordats and agreements of that nature with States, 173 but
is also party to a series of multilateral treaties, such as the 1961 Vienna Convention
on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations 174 and
the 1969 Vienna Convention on the Law of Treaties. It also participates in the work
of international organizations,175 as a member – this is the case with the International
Atomic Energy Agency, of which it is also a founder – or as an observer, as is the case
with the United Nations. Drawing on its peace mission, it undertakes actions aimed
at the peaceful settlement of disputes, as happened during the pontificate of John Paul
II, with the provision of good offices, first, and then, with mediation in the southern
dispute between Argentina and Chile that led to the Treaty of Peace and Friendship,
signed by both States in the Vatican City on 29 November 1984176 and placed under
the “moral protection” of the Holy See.
124. On the other hand, the Vatican City meets the criteria of the Convention on the
Rights and Duties of States to be considered a State, in that it has a territ ory, pursuant
to the provisions of the Lateran Treaty of 1929; a population (comprising persons
residing in the Vatican or holding Vatican citizenship empowered to perform tasks of
responsibility for the Holy See or the Vatican City itself, and the cardina ls residing in
Rome or the Vatican City); a Government and political organization (taking into
consideration the Vatican City with its government organs and its legal order, which
includes canon law, but also Vatican rules proper); and the capacity to ente r into
relations with the other States and subjects of international law. 177 On the
international plane, it is worth noting that, under the Lateran Treaty, and as evidenced
during the Second World War, Vatican territory is neutral and inviolable, and that, in
accordance with the provisions of its Fundamental Law, the Vatican City State is
__________________
171 Cardinale, The Holy See and International Order (see footnote 165 above), pp. 183, 283–284 and
288; and Adolfo Maresca, Las Relaciones Consulares (Madrid, Aguilar, 1974), p. 34.
172 See Article 14 of the Vienna Convention on Diplomatic Relations (Vienna, 18 A pril 1961) United
Nations, Treaty Series, vol. 500, No. 7310, p. 95.
173 See the list of States with which the Holy See maintains diplomatic relations, at
https://www.vatican.va/roman_curia/secretariat_state/index_attivita -diplomatica_it.htm (accessed
on 25 February 2022).
174 Vienna Convention on Consular Relations (Vienna , 24 April 1963), United Nations, Treaty Series,
vol. 596, I-8638, p. 261.
175 See participation of the Holy See in International Organizations, at
https://www.vatican.va/roman_curia/secretariat_stat e/orgintern/
documents/rc_segstat_20100706_org -internaz-2009_it.html (accessed on 25 February
2022).
176 United Nations, Treaty Series, vol. 1399, No. 23392, p. 89.
177 See Nuova Legge Fondamentale dello Stato della Città del Vaticano (Rome, 26 November 2000),
at https://www.vaticanstate.va/phocadownload/leggi -decreti/LanuovaLeggefondamentale.pdf
(accessed on 25 February 2022).
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represented through the Secretariat of State of the Holy See. 178 Concretely, in the case
of some treaties and international organizations that are of a technical nature, suc h as
the Universal Postal Union and the International Telecommunications Union, the
Holy See acts on behalf of the Vatican City State. 179
125. The Vatican City is not an end in itself, but is, in practice, an instrument or
means to ensure the independence of the Holy See in relation to any State or earthly
authority. Nonetheless, as noted above, the fundamental weight of international action
falls on the Holy See, as organ of government and representation of the Catholic
Church, and not on the Vatican City. As proof, during the period between 1870 and
1929, when it was deprived in practice of sovereignty over any territory, the Holy See
continued to exercise the active and passive right of l egation, signing treaty-like
agreements and acting with regard to the peaceful settlement of disputes.
B. Sovereign Order of Malta180
126. The Sovereign Order of Malta emerged in the eleventh century with the
establishment of a hospital for pilgrims in Jerusalem, on the initiative of a few
merchants from Amalfi, on the southern Italian peninsular. Thereafter, an order of
knights was formed, dedicated to Saint John the Baptist; the Order was approved by
the Holy See in 1113.
127. In addition to its charity work, the Order also served a military purpose, with its
active participation in the defence of Christian presence in the Holy Land, until t he
capture of Saint-Jean-d’Acre by the Muslims in 1291. Thereafter, the Order moved
first to the island of Cyprus, and soon after, from 1310, it moved to the island of
Rhodes. The Order exercised jurisdiction over that territory until the end of 1522,
when it was conquered by the Ottoman Turks.
128. In 1530, Charles I of Spain and V of the Sacred Roman -Germanic Empire, at
the request of the Pope, gave the islands of Malta and Gozo and the city of Tripoli to
the Order. From then and until 1798, the year of t he invasion and occupation of Malta
by the French troops headed by Napoleon Bonaparte, th is island was under the
jurisdiction of the Order. At the time, the Order acted on the international stage, to all
intents and purposes, in a manner equivalent to that of States.
129. Following the loss of the island by the knights to the French, the British evicted
them from Malta. Then, despite the provisions of the Treaty of Amiens of 1802, 181
regarding the return of Malta to the knights of the Order, Great Britain ma intained
control over the island.
__________________
178 See Trattato fra la Santa Sede e l’Italia (1929), at
https://www.vaticanstate.va/phocadownload/leggi -decreti/TrattatoSantaSedeItalia.pdf (accessed on
25 February 2022).
179 See International Organizations where the Vatican City State participates as a member, at
https://www.vaticanstate.va/it/stato-governo/rapporti-internazionali/partecipazioni-adorganizzazioni-
internazionali.html (accessed on 25 February 2022).
180 For this section, the following publications in particular have been taken into account : Ruda
Santolaria, Los Sujetos de Derecho Internacional (see footnote 150 above), pp. 70–74; Piero
Valentini, L’ordine di Malta. Storia, giurisprudenza e relazioni internazionali (Rome, De Luca
Editori d’Arte, 2016); Charles d’Olivier Farran, “La Soberana Orden de Malta en el Derecho
Internacional” (Lima, Ed. Lumen S.A., 1955). Relevant information on the official website of the
Sovereign Order of Malta has also been consulted: see https://www.orderofmalta.int/es/orden-demalta/
(accessed on 25 February 2022).
181 Tratado Definitivo de Paz entre el Rey de España y las Repúblicas Francesa y Bátava de una parte,
y el Rey del Reino Unido de la Gran Bretaña y d e Irlanda de la otra (Amiens, 27 de marzo de
1802), Alejandro del Cantillo (ed.), Tratados de paz y de comercio desde el año 1700 hasta el día ,
Madrid, Imprenta de Alegria y Charlain, 1843, p. 702.
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130. Considering the information provided by the Russian Federation, the following
piece is worth highlighting in that regard:
… there was a period in Russian history when the State continued to maintain
international relations with a State-like entity that had lost its territory. After the
seizure of Malta by Napoleon in 1798, the Russian [S]tate continued to maintain
relations with the Order of Malta for several more decades until 1817. 182
131. The Order established its seat in 1834 in Rome, where it remains to this day,
without exercising jurisdiction over any territory.
132. An important detail, as indicated in the decision of the cardinalitial tribunal of
24 January 1953 and the 1961 Constitution of the Order, 183 is the dual status of the
Order as both a subject of international law and a religious order authorized by the
Holy See. As a subject of international law, the Order maintains relations with the
Holy see through the Secretariat of State, while as a religious orde r, it maintains
relations with the Holy See through the dicasteries and bodies of the Roman Curia
responsible for religious orders.
133. Following the loss of Malta in 1798, the Order no longer performed a military
function, focusing its work on charitable endeavours, providing valuable support in
situations of natural disaster, emergency, humanitarian relief and conflict. The Order
concluded agreements to that end with various States where it carried out said
charitable and humanitarian work.
134. The Order of Malta has its own government structure, headed by a Grand Master
resident in Rome, and its own legal order, the law of the Order of Malta, highlighted
by the Constitution of 1961 and the Code of 1966, with their respective amendments.
Unlike other orders of knights established centuries before in some European
countries, which were embedded in those countries, the Order of Malta, has
historically had a presence in States on different continents – and still does – but is
not subordinate or subject to any of those States.
135. The Order of Malta, also known as the Sovereign Military Hospitaller Order of
Saint John of Jerusalem of Rhodes and Malta, to reflect the various places where it
has had its seat throughout its history, exercises both the active and the passive right
of legation, maintaining diplomatic relations with more than 100 States, as well as
with the European Union. Specifically, as shown in the Russian Federation piece cited
above, the Russian Federation restored its official relations w ith the Order of Malta
via a protocol dated 21 October 1992. 184
136. The Order of Malta also has permanent missions to the United Nations and its
specialized agencies, as well as delegations or missions to other international
organizations. The Order of Malta also concludes treaties with various States on
issues pertaining primarily to its humanitarian assistance work and receives assistance
from some international organizations to that end.
137. Lastly, it should be noted that the administrative and judicia l organs of Italy,
where the Order has had its seat since the nineteenth century, have, in various
pronouncements, confirmed the character of the Order as a subject of international
law, in addition to the inviolability of its premises and other immunities and privileges
attaching thereto, as well as to the persons who perform the highest functions in its
__________________
182 Submission of the Russian Federation, para. 35.
183 Constitutional Charter and Code of the Sovereign Military Hospitaller Order of Saint John of
Jerusalem of Rhodes and of Malta, promulgated 27 June 1961, revised by the Extraordinary
Chapter General, 28–30 April 1997, published in the Official Gazette of the Order, special issue,
12 January 1998.
184 Submission of the Russian Federation, p. 13.
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government structure and who act on its behalf. Of particular relevance are the rulings
of 10 March 1932185 of the Single Section of the Court of Cassation; and of 13 March
1935186 of the First Civil Section of the Court of Cassation and, more recently, the
ruling of 13 February 1991, of the Civil Section of the Supreme Court of Cassation.187
C. Governments in exile
138. With regard to exceptional situations where the territory of a State is occupied
by a third power or that give rise to circumstances that seriously undermine
institutional order inside the State, there have been cases at different times in history
where, without having control over the territory of the State or a good portion of said
territory, Governments in exile have assumed international representation of such
State.
139. The Governments of States affected by such exceptional circumstances relocate
to territories under the jurisdiction of third States, from where they exercise the right
of legation, conclude treaties, participate in international organizations, assist their
nationals, and carry out timely actions to preserve the assets, properties, rights and
interests of their States abroad.
140. It is relevant to note that despite not exercising control over all or part of the
territory, which may be under the occupation of a State or a group of States, the
affected State maintains its status as such, and retains its international legal
personality, despite the exceptional situation that led to the loss of control over the
territory. Of particular note is that the existence a Government in exile that represents
the State constitutes evidence of the continuity of the S tate.
141. As Stefan Talmon rightly noted, concurring with this:
According to the predominant view in the legal literature a “government in
exile” is not a subject of international law but the “representative organ” of the
international legal person ‘State’ and, as such, the depository of its sovereignty.
There can thus logically be no “government”, either in exile or in situ, without
the legal existence of State which the government represents. ”188
142. It is worth recalling, for example, the case of the Government of Belgium during
the First World War. On 11 October 1914, Raymond Poincaré, the French President,
assured King Albert I that “the Government of the Republic … will immediately
arrange for the necessary measures to guarantee the stay in France of His Majesty and
his ministers in full Independence and sovereignty ”.189 While King Albert I remained
in Veurne, behind the Yser Front, the only part of Belgian territory that was not under
occupation, between 1914 and 1918, there was a functioning Government of Belgium
in exile operating out of the municipality of Sainte -Adresse, in the French city of Le
__________________
185 Sezioni unite: Udienza 10 marzo 1932, Pres. Barcellona P., Est. Casati, P. M. Giaquinto (concl.
conf.); S. O. Gerosolimitano, detto di Malta (Avv. Chiovenda, Gozzi) c. Brunelli (Avv. Scialoja,
Massari, Fanna), Tacoli (Avv. Carnelutti, Donatelli, Troiani), Tiepolo (Avv. Persico, Zironda) e
Medina (Avv. De Notaristefani, Tagliapietra, Landi), Il Foro Italiano, vol. 57, Part One (1932), pp.
543–547.
186 Sezione I civile: Udienza 13 marzo 1935, Pres. ed est. Casati, P. M. Dattino (concl. diff.); Nanni
(Avv. Merolli) c. Pace (Avv. Astorri) e Sovrano Militare Ordine di Malta, Il Foro Italiano, vol. 60,
Part One (1935), pp. 1485–1493.
187 Sezione I civile: Sentenza 5 novembre 1991, n. 11788, Pres. Corda, Est. Senofonte, P.M.
Donnarumma (concl. diff.); Sovrano militare Ordine di Malta (Avv. Marini) c. Min. Finanze (Avv.
dello Stato Olivo). Cassa Comm. trib. centrale 17 ottobre 1987, n. 7334, Il Foro Italiano, vol. 114,
Part One (1991), pp. 3335–3337.
188 Talmon, “Who is a legitimate government in exile?” (see footnote 158 above), p. 501.
189 Cited in Talmon, “Who is a legitimate government in exile?” (see footnote 158 above), p. 518.
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Havre, headed by Baron Charles de Brouqueville, as Prime Minister and Head of
Cabinet.
143. It is also relevant to cite the example of Emperor Haile Selassie I, following the
Italian invasion of Ethiopia in 1936, who first moved to Jerusalem, British Mandate
of Palestine at the time, and then settled in Bath, United Kingdom. 190 It is also worth
citing the examples of some other Governments in exile during the Second World
War, such as that of Belgium, the Netherlands and Norway, based in London; that of
Luxemburg, based in Montreal and London; that of Greece, based first in Cairo, then
in London; that of Yugoslavia, based in Jerusalem, London, Cairo and again
London;191 and that of Poland, based in London. 192
144. With regard to the examples mentioned, it is particularly important to consider
how the matter was handled by the United Kingdom, which embraced the majority of
governments in exile during the Second World War by granting them immunities and
privileges on British territory in accordance with the Diplomatic Privilege
(Extension) Act 1941 and the Diplomatic Privilege (Extension) Act 1944. 193
Concretely, in the Amand case, the Attorney General of Great Britain and Northern
Ireland highlighted the criteria for invitation, acceptance and recognition, when, in
referring to the Government in exile of the Netherlands, said that:
It was stated in court by the Attorney-General that the Government of the
Netherlands was a government for the time being allied with His Majesty the
King of Great Britain and Northern Ireland and established in the United
Kingdom; that it was established and exercised its functions in the United
Kingdom with the assent and on the invitation of His Majesty ’s Government in
the United Kingdom, and that His Majesty ’s Government recognized Her
Majesty Queen Wilhelmina and her Government as … exclusively competent to
carry out the legislative, administrative and other functions appertaining to the
Sovereign and Government of the Netherlands. 194
In that case, it was also recognized that the government in exile of the Netherlands in
London had full authority over a Netherlands national domiciled in England.195
145. It is worth noting that the same Government in exile of the Netherlands was also
recognized by the United States, as evidenced in the communication from the
Department of State to the Secretary of the Treasury referring to Netherlands legation
note No. 4934 of 14 June 1940, where it was stated that “[t]he Government of the
United States continues to recognize as the Government of the Kingdom of the
Netherlands the Royal Netherlands Government, which is temporarily residing and
exercising its functions in London. ”196
__________________
190 Lutz Haber, “The Emperor Haile Selassie I in Bath, 1936 –1940”, in Trevor Fawcett (ed.), Bath
History, vol. 3 (Gloucester, Alan Sutton Publishing, 1990).
191 Maurice Flory, Le statut international des gouvernements réfugiés et le cas de la France libre,
1939–1945 (Paris, Pedone, 1952), p. 5.
192 George V. Kacewicz, Great Britain, the Soviet Union and the Polish Government in Exile (1939 –
1945), Studies in Contemporary History, vol. 3 (The Hague, Martinus Nijhoff Publishers, 1979),
p. IX.
193 Flory, Le statut international (see footnote 191 above), p. 21.
194 In re Amand, King’s.Bench Division, Law Reports of the Incorporated Council of Law Reporting,
1941, vol. II (London, 1941), p. 239; cited in Flory, Le statut international (see footnote 191
above), p. 36.
195 Ibid., p. 208.
196 Ibid., p. 36. Letter from the Assistant Secretary of the United States Department of State,
Washington D.C., dated 27 June 1940, addressed to the Secretary of the Treasury. This
communication refers to a Royal Decree of the Netherlands dated 24 May 1940; a note from the
Department of State, dated 13 June 1940, addressed to the Royal Netherlands Legation in
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146. Similarly, it was made clear in the case Lorentzen v. Lydden, 197 that the
Government in exile of Norway was recognized by the United Kingdom as “the de
jure government of the entire Kingdom of Norway. ”198
147. With regard to the situation of Poland during the Second World War, it is worth
recalling that the courts of the United States of Ame rica held in the cases Re Skewrys’
Estate, Re Murika199 and Re Flaum’s Estate 200 that:
Although Poland is occupied by the enemy, its sovereignty remains unimpaired,
and existing mutual treaty obligations, including consular rights, are accorded
full recognition by the United States of America. The terms of the treaty between
the Republic of Poland and the United States of America (Treaty of Friendship,
Commerce and Consular Rights, dated June 15, 1931, ratified and confirmed
July 10, 1933; 48 U.S. Stat. 1507) are therefore binding and subject to
enforcement in all courts of this State. (Matter of Schurz, 28 N.Y.S.2d 165.)201
148. A more recent example worth noting is the case of Cambodia, following the
invasion by Viet Nam in December 1978 and the proclamation on 7 January 1979 of
the so-called People’s Republic of Kampuchea, which led the Cred entials Committee
and the General Assembly of the United Nations to refuse, over successive years, to
allow the representatives of that purported Government to take the place of Cambodia
in the Organization, on the understanding that, in practice, the Camb odian territory
or a large part of it was under the control of the Vietnamese army. Rather, with the
support of the majority of members of the Credentials Committee and the States
Members of the Organization in the General Assembly maintained that in those
circumstances, the representation of Cambodia at the United Nations was exercised
by the Governor of Democratic Kampuchea. 202
149. In respect of that case, it is especially relevant to cite Tommy Koh, the then
Permanent Representative of Singapore, who, in his statement in the General
Assembly on18 December 1981, pointed out that:
The last argument that has been adduced in support of the proposed amendment
is that the Government of Democratic Kampuchea does not control the entire
territory or population of Kampuchea. I concede that in normal circumstances
__________________
Washington, D.C.; and Note No. 4934, dated 14 June 1940, in which the Royal Netherlands
Legation in Washington, D.C., responded to the Department of State. Available at
https://fraser.stlouisfed.org/files/docs/historical/eccles/049_11_0005.pdf . In addition, this
reference is quoted in Anderson v. N.V. Transandine Handelsmaatschappij (289 N.Y. 7; Annual
Digest, 1941-2, Case No. 4), cited by Whiteman, Marjorie (director), Digest of International Law,
vol. 2, Washington, D.C.: Department of State Publication 7553, 1963, p. 475.
197 Lorentzen v. Lydden, The Law Reports 1942, vol. II, p. 202.
198 Lorentzen v. Lydden ([1942] 2 K.B. 202), cited in Marjorie Whiteman (ed.), Digest of
International Law, vol. 2 (Washington, D.C., Department of State Publication 7553, 1963), p. 475.
See also Flory, Le statut international (see footnote 191 above)., p. 37.
199 Re Skewrys’ Estate, Re Murika, 46 N.Y.S. 2d 942 (reproduced in International Law Reports, vol.
12, p. 424).
200 Re Flaum’s Estate, 42 N.Y.S. 2d 539 (reproduced in International Law Reports, vol. 12, p. 425).
201 S. Griffiths, “Matter of Skewrys”, Opinion, 21 February 1944; available at
https://casetext.com/case/matter-of-skewrys. See also H. Lauterpacht (ed.), Annual Digest and
Report of Public International Law Cases, vol. 12 (London, Butterworth, 1949), pp. 424 –425.
202 See memorandum to the Under-Secretary-General for Political and General Assembly Affairs
entitled “Question of representation of Democratic Kampuchea at the resumed thirty -third session
of the General Assembly. Provisional seating of challenged representatives of a Member State.
Majority required for reconsideration of representatives ’ credentials already accepted by the
General Assembly. The General Assembly is not bound by other United Na tions organs’ decisions
regarding representation”, United Nations Juridical Yearbook 1979, p. 166. See also A/34/500 and
A/34/PV.4 and Corr.1; A/35/484 and A/35/PV.35; A/36/517 and A/36/PV.3; A/37/543, A/37/PV.42
and A/37/PV.43; A/38/508; A/39/574; A/40/747; A/41/727; A/42/630; A/43/715; and A/44/639.
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two of the criteria by which we decide whether or not to recognize a Government
are control of territory and control of the habitual obedience of the population.
This general rule is, however, not applica ble when a country is invaded and
occupied by another. In support of my proposition I merely need to remind
delegations that during the Second World War the Governments of several allied
countries occupied by Nazi Germany took refuge abroad. They continued to
function overseas and were recognized by other countries as the legal and
legitimate Governments of those occupied countries. In the same way,
Kampuchea is today a country under foreign armed occupation. The legal and
legitimate Government of that country is waging a war of resistance against the
occupying army. The normal criteria of control of territory and of the population
do not apply in this case.203
150. The following year, the then Prince Norodom Sihanouk, head of the Government
Coalition Government of Democratic Kampuchea, delivered a statement at the
General Assembly on 25 October 1982, noting that there were liberated areas in the
north-west, south-east and north-east of the country, but that the main cities of
Cambodia remained under the contr ol of the occupation forces.204 On the same day,
in defending the position of Singapore supporting that fact that the Government of
Democratic Kampuchea will continue to act on behalf of Cambodia in the
Organization, Permanent Representative Tommy Koh recal led specifically the cases
of Governments in exile of the States occupied by Nazi Germany during the Second
World War.205
151. Another situation worth mentioning occurred between August 1990 and
February 1991, when, owing to the invasion and occupation of t he territory of Kuwait
by Iraq, the Government of Kuwait took up residence in Saudi Arabia, from where it
continued to act on behalf of the State of Kuwait. Kuwait also continued to be
represented in the United Nations and the specialized agencies of the U nited Nations
system, such as the International Civil Aviation Organization. 206
152. It is also worth considering the situation that occurred following the coup d ’état
of 30 September 1991 against the then President of Haiti, Jean -Bertrand Aristide,
who, with the help of a multinational force, returned to the country in October 1994
and was able to complete the term for which he had been democratically elected. On
that score, particular attention should be drawn to the joint efforts of the U nited
Nations and the Organization of American States to address such circumstances,
including through such measures as United Nations General Assembly resolution
47/20, of 24 November 1992, concerning the situation of democracy and human rights
in Haiti, where the Assembly reaffirmed as unacceptable any entity resulting from
that illegal situation and demanded the restoration of the legitimate Government of
President Jean-Bertrand Aristide, together with th e full application of the National
Constitution and hence the full observance of human rights in Haiti .
153. Similarly, regarding the case of Haiti, it is worth noting that in 1992 the
International Monetary Fund accepted the credentials of the delegation appointed by
the Government in exile of Haitian President Jean -Bertrand Aristide, instead of the
credentials of the delegation appointed by the Government in Port au Prince, which
__________________
203 A/36/PV.3, para. 117.
204 A/37/PV.42, paras. 23 and 30–31.
205 A/37/PV.43, para. 67.
206 International Civil Aviation Organization Assembly resolution A28-7, on aeronautical
consequences of the Iraqi invasion of Kuwait, United Nations Juridical Yearbook 1990, at p. 176.
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was effectively controlling the territory and the administration of the Memb er State.
The Fund held that position in 1993 and 1994. 207
154. In addition, as noted above, there are cases that cannot be described as
Governments in exile, in the strict sense, because in those situations there is no State
on whose behalf they could act. A case in point is Tibet, whose territory and
population form part of China, and whose spiritual leader, the Dalai Lama, has, over
the past few years, been demanding Tibetan autonomy inside that State.
D. Some relevant issues in certain international instruments
155. When considering sea-level rise and the threat that it poses to the maintenance
of statehood, in particular for small island developing States, it is worth bearing in
mind that the Convention on the Rights and Duties of Sta tes itself provides that the
rights of a State derive from the simple fact of its existence as a “person” or subject
of international law, and that the fundamental rights of States are not susceptible of
being affected in any manner whatsoever (articles 4 and 5, respectively). This
becomes even more in light of article 3, which provides that every State has the right
to defend its integrity and independence and to provide for its conservation and
prosperity, and that the exercise of those rights has no othe r limitation than the
exercise of the rights of other States according to international law.
156. Similarly, it is stated in articles 10 and 12 of the Charter of the Organization of
American States that the rights of each State depend upon the mere fact of its
existence as a “person” or subject of international law and that the fundamental rights
of States may not be impaired in any manner whatsoever. In Article 13 of the Charter,
it is stated that the State has the right to defend its integrity and independence and to
provide for its preservation, and that the exercise of those rights is limited only by the
exercise of the rights of other States in accordance with international law. 208
157. Article III of the Charter of the Organization of African Unity (OAU) affirms
the adherence of its member States to principles such as “respect for the sovereignty
and territorial integrity of each State and for its inalienable right to independent
existence”,209 while one of the objectives of the African Union, as set out in article 3
of its Constitutive Act, is to “defend the sovereignty, territorial integrity and
independence of its Member States”.210
158. On that basis, it is valid to hold that once a State exists as such, in that it meets
the conditions set out in article 1 of the Convention on the Rights and Du ties of States,
it has full capacity to exercise its rights, in accordance with international law and with
respect for the rights of other members of the international community. Those rights,
which may not be impaired, undoubtedly include the right of the State to provide for
its preservation; that is, to use the various means at its disposal – including
international cooperation – to ensure its continued existence.
__________________
207 United Nations Juridical Yearbook 1992, p. 269; United Nations Juridical Yearbook 1993, p. 266;
and United Nations Juridical Yearbook 1994, p. 174.
208 Charter of the Organization of American States (Bogota, 30 April 1948), United Nations, Treaty
Series, vol. 119, No. 1609, p. 3, arts 10, 12 and 13.
209 Charter of the Organization of African Unity (Addis Ababa, 25 May 1963), United Nations, Treaty
Series, vol. 479, No. 6947, p. 39, art. III.
210 Constitutive Act of the African Union (Lomé, 11 July 2000), United Nations, Treaty Series, vol.
2158, No. 37733, p. 3, art. 3.
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IV. Concerns relating to the phenomenon of sea-level rise and
some measures that have been taken in that regard
159. The statements concerning statehood delivered by small island developing
States in the Sixth Committee of the General Assembly of the United Nations in
October 2018 are quite enlightening.
160. The delegation of the Marshall Islands, speaking on behalf of the members of
the Pacific Islands Forum, said that:
Issues relating to statehood, statelessness and climate -induced migration were
also directly relevant to the region, particularly in view of the possibility of
whole atolls being entirely submerged.211
161. The delegation of Fiji, referring to article 1 of the Convention on the Rights and
Duties of States, highlighted the significance of a population as one of the
fundamental requirements of statehood and underlined the ris ks, in terms of the
preservation of the population, that could arise as a result of migration if the territories
of island States were to become uninhabitable. It said that:
Sea-level rise is also contributing to the movement of people in coastal
communities and low-lying atolls. One of the elements of statehood described
in article 1 of the 1933 Montevideo Convention on the Rights and Duties of
States is a permanent population. It is expected that populations will not all
move at once due to sea-level rise and there will be gradual and random
movement. Also, the population will slowly disintegrate and present a set of
challenges such as legal, economic, financial, education, cultural, and many
more.212
162. Papua New Guinea drew attention to the fact that the preservation of the
maritime rights of States is closely linked to the preservation of their statehood, since
only States can generate jurisdictional maritime zones. In that connection, it said that:
As only States could generate maritime zones, it was essential for island States
to maintain statehood in order to preserve their maritime zones. Thus, statehood
was a threshold issue that was interrelated with questions regarding maritime
zones.213
163. Papua New Guinea raised another very important point to be considered when
addressing statehood issues, namely that situations of de facto statelessness could
arise. In that regard, it said that:
Statehood raised a potential issue of statelessness, includ ing de facto
statelessness. The principle of prevention of statelessness in international law
was a corollary to the right to a nationality, and reference should be made to the
1961 Convention on the Reduction of Statelessness as one of the legal
instruments to be considered by the Commission. 214
164. When analysing the phenomenon of sea-level rise with a particular focus on the
issue of statehood, it is worth considering, inter alia, the following aspects:
(a) The possibility of a State’s territory being completely covered by the sea
or becoming uninhabitable, or there being an insufficient supply of drinking water for
the population.
__________________
211 Marshall Islands (on behalf of members of the Pacific Islands Forum) ( A/C.6/73/SR.20, para. 41).
212 Fiji (https://www.un.org/en/ga/sixth/73/pdfs/statements/ilc/fiji_1.pdf ; A/C.6/73/SR.23, para. 63).
213 Papua New Guinea (A/C.6/73/SR.23, para. 36).
214 Ibid.
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(b) The resulting displacement of persons to the territories of other States.
This raises a number of concerns with regard to the rights and legal status of nationals
of States particularly affected by sea -level rise, including questions about:
(i) The maintenance of original nationality or citizenship, the acquisition of
another nationality or the granting of dual nationalit y or a common citizenship
to more than one entity, in order to avoid situations of de facto statelessness;
(ii) The ways in which diplomatic protection and assistance and consular
protection and assistance could be provided to persons who have their right s
violated or require assistance in third States; and
(iii) The possibility of treating such displaced persons as refugees;
(c) The legal status of the Government of a State that has to take up residence
in the territory of another State, including with regard to that Government’s
enjoyment of immunities and privileges and the exercise of international rights on
behalf of the State affected that attest to the maintenance of its international legal
personality. The possible use of different mechanisms and forms of “digital
government” should also be explored, as should ways in which the Government of
the State affected by such circumstances could act on behalf of its people residing in
the State hosting the Government or in the territories of other States;
(d) The preservation of the rights of States affected by the phenomenon of sea -
level rise in respect of the maritime areas under their jurisdiction and the living and
non-living resources therein. In this regard, it is also worth taking into accou nt the
need to preserve maritime boundaries established pursuant to agreements with other
States or decisions of international courts and tribunals;
(e) The right to self-determination of the populations of States affected by sea -
level rise, including the right of those populations to preserve their national, cultural,
group and other identities.
165. Measures being applied in different States to address sea -level rise include the
installation or reinforcement of coastal barriers, coastal defences and pold ers. This
has been taking place in States in different parts of the world, not only in small island
developing States. Belgium215 and Morocco216 have provided the International Law
Commission with information on the work they are carrying out in this field, and the
__________________
215 Belgium (https://legal.un.org/ilc/sessions/73/pdfs/english/slr_belgium.pdf ).
216 Morocco (https://legal.un.org/ilc/sessions/73/pdfs/english/slr_morocco.pdf ).
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Commission has obtained additional information concerning Australia ,217 Belgium,218
France,219 Germany,220 Singapore,221 the United Kingdom222 and the United States.223
__________________
217 Australia, Department of the Environment, New South Wales Coastline Management Manual,
September 1990, at
https://www.environment.gov.au/archive/coasts/publications/nswmanual/index. html (accessed on
25 February 2022); and Environment Agency, “Coastal Adaptation Project: Review of
international best practice”, Halcrow Group Ltd., November 2008, pp. 25 –31, at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
292911/geho0409bpwi-e-e.pdf (accessed on 25 February 2022).
218 European Environment Agency, “10 case studies. How Europe is adapting to climate change”,
Climate-ADAPT, European Climate Adaptation Platform, (Luxembourg: Publications Office of
the European Union, 2018), available at https://climate-adapt.eea.europa.eu/about/climate-adapt-
10-case-studies-online.pdf (accessed on 25 February 2022).
219 Ministry of Ecological Transition, “Adaptation des territoires aux évolutions du littoral”, at
https://www.ecologie.gouv.fr/adaptation-des-territoires-aux-evolutions-du-littoral (accessed on 25
February 2022); GIP Littoral 2030, “Stratégie Régionale de Gestion de la Bande Côtière”, at
https://www.giplittoral.fr/ressources/strategie -regionale-de-gestion-de-la-bande-cotiere (accessed
on 25 February 2022); Loi No. 2021-1104 du 22 août 2021 portant lute contre le dérèglement
climatique et renforcement de la résilience face à ses effets”, published in Journal Officiel de la
République Française, JORF n°0196 du 24 août 2021, at
https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000043956924 (accessed on 25 February 2022);
“Fait du jour. Une digue à Fourques pour ne plus avoir peur du Rhône”, ObjectifGard, at
https://www.objectifgard.com/2019/07/09/fait -du-jour-une-digue-a-fourques-pour-ne-plus-avoirpeur-
du-rhone/ (accessed on 25 February 2022); Seasteading Institute, Recueil d ’intentions
réciproques entre La Polynésie française et The Seasteading Institute, at
https://static.actu.fr/uploads/2017/01/Memorandum-of-Understanding-MOU-French-Polynesia-
The-Seasteading-Institute-Jan-13-2017-1.pdf (accessed on 25 February 2022); and Adapto,
“Adapto, un projet LIFE”, project partly financed by the European Union through the Life
programme, at https://www.lifeadapto.eu/adapto-un-projet-life.html (accessed on 25 February
2022).
220 The Federal Government, “German Strategy for Adaptation to Climate Change”, adopted by the
German Federal cabinet on 17 December 2008, at
https://www.preventionweb.net/files/27772_dasgesamtenbf1 -63.pdf (accessed on 25 February
2022); Adaptation Action Plan of the German Strategy for Adaptation to Climate Change, adopted
by the German Federal Cabinet on 31 August 2011, at https://www.bmuv.de/fileadmin/bmuimport/
files/pdfs/allgemein/application/pdf/aktionsplan_anpassung_klimawandel_en_bf.pdf
(accessed on 25 February 2022); J.-T. Huang-Lachmann and J. C. Lovett, “How cities prepare for
climate change: Comparing Hamburg and Rotterdam”, Cities, 54 2015 pp. 36–44; Bob Berwyn,
“Hamburg’s Half-Billion-Dollar Bet”, Hakai magazine, 05 May 2017, at
https://hakaimagazine.com/news/hamburgs-half-billion-dollar-bet/(accessed on 25 February
2022); “Up a notch: Hamburg takes on sea level rise”, Euronews, 26 July 2017, at
https://www.euronews.com/2017/07/26/up-a-notch-hamburg-takes-on-sea-level-rise (accessed on
25 February 2022); HafenCity, Central innovation theme of the city of tomorrow, In frastructure, at
https://www.hafencity.com/en/urban-development/infrastructure (accessed on 25 February 2022);
and European Environment Agency, “10 case studies. How Europe is ad apting to climate change”,
Climate-ADAPT, European Climate Adaptation Platform, (Luxembourg: Publications Office of
the European Union, 2018), available at https://climate-adapt.eea.europa.eu/about/climate-adapt-
10-case-studies-online.pdf (accessed on 25 February 2022).
221 National Climate Change Secretariat Singapore, Strategy Group Prime Minister ’s Office, “Coastal
Protection”, at https://www.nccs.gov.sg/singapores-climate-action/coastal-protection/ (accessed on
25 February 2022); and Audrey Tan, “National Day Ral ly 2019: Land reclamation, polders among
ways S’pore looks to deal with sea-level rise”, The Straits Times, at
https://www.straitstimes.com/politics/national-day-rally-2019-land-reclamation-polders-amongways-
spore-looks-to-deal-with-sea (accessed on 25 February 2022).
222 Environment Agency, “Managing flood risk through London and the Thames estuary”, Thames
Estuary 2100 Plan, November 2012, at
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/
322061/LIT7540_43858f.pdf (accessed on 25 February 2022); Houses of Parliament,
Parliamentary Office of Science and Technology, “Sea Level Rise”, Postnote, No. 363, September
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166. With regard to small island developing States, the case of Maldives is worth
mentioning. In response to the phenomenon of sea-level rise, it has built the new
artificial island of Hulhumalé, close to the capital, Male ’, which is on Male’ Island.
It has also constructed coastal barriers to address the serious threat that sea -level rise
poses to the country.224
167. In the information paper dated 31 December 2021 that the Pacific Islands Forum
presented to the Commission on the subtopics of sea-level rise in relation to statehood
and the protection of persons affected by sea -level rise, some members of the Forum
transmitted information on their practice with regard to the construction of artificial
islands and the establishment or reinforceme nt of coastal barriers as part of their
strategies to address sea-level rise.225
168. The Cook Islands has no artificial islands and is not currently planning to
construct any. However, according to the information paper:
There are some coastal reinforcement measures used in the capital of Rarotonga,
which are intended to protect against erosion, including erosion caused by sea -
level rise. These are mostly hard structures such as concrete sea walls, groynes
and rock walls. There is currently one pilot project at a coastal site, using sand -
filled geotextile bags as a coastal protection measure. Vetiver grass and other
vegetation were planted behind the sandbags, so that by the time the sandbags
fail, the vegetation will be well established. This semi-nature-based solution
may become more popular in Rarotonga and on outer islands in future. The Cook
Islands Joint National Action Plan identifies construction and upgrade of coastal
protection structures as a priority action for p revention of flooding and
protection against erosion.226
169. The Federated States of Micronesia explained that its Government ’s jurisdiction
with regard to the establishment and use of artificial islands, installations and
structures was recognized in the Code of the Federated States of Micronesia, and that
there was an ancient practice in some parts of the country of building artificial islands
and similar structures as seats and projections of political power and authority. Those
structures, off the island of Pohnpei, were now a United Nations Educational,
Scientific and Cultural Organization World Heritage Site and had recently been added
to the List of World Heritage in Danger, in part because of the threats posed by sea -
level rise.227
__________________
2010, at https://www.parliament.uk/globalassets/documents/post/postpn363 -sea-level-rise.pdf
(accessed on 25 February 2022); Environment Agency, “Thames Estuary 2100: 10-Year Review
monitoring key findings”, Policy Paper, Updated 22 February 2021, at
https://www.gov.uk/government/publications/thames -estuary-2100-te2100/thames-estuary-2100-
key-findings-from-the-monitoring-review#conclusion (accessed on 25 February 2022); and North
West and North Wales Coastline, “Shoreline Managemen t”, at
https://www.mycoastline.org.uk/shoreline-management-plans/(accessed on 25 February 2022). See
also references to the Polder2C’s programme: Interreg 2 Seas Mers Zeeën, Europea n Regional
Development Fund, at https://polder2cs.eu/activities (accessed on 25 February 2022).
223 See, for instance, the case of measures for the coastal protection of Louisiana, United States of
America: Coastal Protection and Restoration Authority, at https://coastal.la.gov/our-plan/ and
http://coastal.la.gov/wp-content/uploads/2017/04/2017-Coastal-Master-Plan_Web-Book_CFinalwith-
Effective-Date-06092017.pdf (accessed on 25 February 2022).
224 Emma Allen, “Climate change and disappearing island States: pursuing remedial territory”, Brill
Open Law (2018), p. 5.
225 Submission of Fiji (on behalf of the members of the Pacific Islands Forum, namely Australia, F iji,
Kiribati, Marshall Islands, Micronesia (Federated States of), Nauru, New Zealand, Palau, Papua
New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu) (31 December 2021).
Available at https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
226 Ibid., para. 17.
227 Ibid., para. 18.
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170. In Fiji, “the Fijian Government has constructed sea walls in local communities
that have been challenged by sea-level rise. These include hybrid sea walls built
recently in Viro village, Ovalau, using an ingenious combination of human -made and
nature-based solutions to provide protection that is more effective and less expensive
than a concrete wall.”228
171. In the Marshall Islands, there is no consistent practice with regard to the
construction of artificial islands:
[B]ut coastal and island strengthening through “hard” structural interventions is
one planning consideration of national adaptation strategies, including in urban
areas, as the atoll nation has an average of between one of two metres (in the
range of long-term sea-level rise projections). Measures to rein force coastlines
would be addressed in part through the Coast Conservation Act 1998 as well as
the Ministry of Environment Act 2018. The practice of modern -era coastal
reinforcement or structural alternation dates back to the early [post -Second
World War] era and [United States] military actions, and has since been a
consistent factor in the subsequent growth of population centres. However, such
structural measures can also result in a range of negative environmental impacts.
As a general observation, sea-level rise poses complex planning,
implementation and policy challenges in an atoll environment. 229
172. With regard to Solomon Islands, a permanent concrete seawall has been
constructed in Tulagi to protect the coastline from the effects of sea -level rise, and
individuals have built semi-permanent seawalls on privately own parts of the seafront
throughout the country. The construction of artificial islands as a means of coastal
protection is a common practice in the province of Malaita, particularly in part s of
Lau Lagoon in the north, Walande in the south, East ‘Are’are in the east and
Langalanga Lagoon in the west of the province. Tree and mangrove planting is being
encouraged where appropriate.230
173. It is worth highlighting that building artificial isla nds for people affected by the
phenomenon of sea-level rise and constructing polders is very costly, and that the
environmental impact of such measures (for example, on coral reefs) must also be
assessed. 231 The international community needs to provide resp onses that can be
delivered in a predictable manner, through cooperation, to the States most affected by
sea-level rise. The focus should not be on the short term but rather on finding lasting
and environmentally sustainable solutions.
174. This was reflected clearly in the statement delivered by Maldives in the Sixth
Committee in late October 2021:
Maldives has undertaken extensive adaptation measures to combat the effects
of sea-level rise, including sea walls and beach replenishments. However, our
efforts to preserve coastlines through artificial means is extremely costly, and
yet only maintains the status quo. Adaptation alone cannot provide a sustainable
solution to ongoing sea-level rise. Our resilience-building and fortification
efforts are consuming an ever-increasing share of our limited fiscal space, a
challenge that has been exacerbated by the strain that COVID -19 has placed on
our national budgets. As many small islands and coastal States cannot afford to
mitigate the effects of sea-level rise on their own, it is essential that the
international community cooperates to ensure adequate, predictable and
__________________
228 Ibid., para. 21.
229 Ibid., para. 29.
230 Ibid., pp. 6–7, para. 33.
231 Emma Allen, “Climate Change and Disappearing Island States…” (see footnote 224 above), pp. 5–
6.
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accessible assistance to our States. Simultaneously, we must focus on reducing
greenhouse gas emissions to prevent global warming, which eventually leads to
sea-level rise.232
V. Possible alternatives for the future concerning statehood
175. No situation has yet arisen in which the entire land territory of a State has been
covered by the sea or become uninhabitable, but the evolution of sea -level rise and
the perception of the phenomenon by affected States, in particular those for which the
threat is nearest and most tangible, make it necessary to consider the foundations in
international law of the options that could be implemented at some point.
176. Given the gravity of the scenario, it does not seem appropriate to wait for a
situation to occur before thinking about it. It would therefore be worth laying out
some alternatives as a basis for discussions and exchanges of views that could
contribute to the identification of the best approaches. Such an exercise will be useful
in assessments conducted by Member States, in particular States that might be most
directly affected by sea-level rise. States could consider the various options, or
possibly combine elements of different options, in the analyses that they conduct as
groups or individually, taking into account their particular circumstances and the
decisions that their populations may take with respect to the right to selfdetermination.
177. Iceland, in a statement delivered in the Sixth Committee on behalf of the Nordic
countries (Denmark, Finland, Iceland, Norway and Sweden) on 28 October 2021,
specifically drew attention to the situation of certain States that are disproportionately
affected by the phenomenon of sea-level rise, in the following terms:
Apart from the possibility of [the] territory of States going partially or fully
under water, sea-level rise can for instance increase land degradation, periodic
flooding, and contamination of fresh water. It is a threat on multiple levels, not
least for small island developing States, [which] have done little to cause climate
change but are likely to suffer the most from it. 233
178. In its statement in the Sixth Committee delivered on 29 October 2021, Singapore
said that “[l]ike other small, low-lying island States, the threat posed by rising sea
levels is an existential one for Singapore. We strongly support efforts to identify
possible solutions for the plight of vulnerable island States. ”234
179. On the same day, Maldives said that:
Sea-level rise is not a distant theoretical concern. It is something we are
experiencing now. Low-lying coastal States and small island States, such as …
Maldives, are especially vulnerable to the effects of sea -level rise.235
180. The Pacific Islands Forum indicated in the information paper submitted to the
International Law Commission on 31 December 2021 that a collective position on the
__________________
232 Maldives (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/21mtg_maldives_2.pdf ;
A/C.6/76/SR.21, para. 139).
233 Iceland (on behalf of Denmark, Finland, Iceland, Norway and Sweden)
(https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/19mtg_nordic_2.pdf ; A/C.6/76/SR.19,
para. 87).
234 Singapore (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/20mtg_singapore_2.pdf ;
A/C.6/76/SR.20, para. 22).
235 Maldives (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/21mtg_maldives_2.pdf ;
A/C.6/76/SR.21, para. 137).
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matter had not yet been adopted. However, that has not prevented some of its members
from expressing their own positions or preferences. 236
181. For instance, Papua New Guinea has stated that “[t]hese are also issues of
critical importance to us in the context of the ongoing daily lived reality of our people
in the Pacific region.”237 Solomon Islands, referring to the topics of protection of
persons and statehood in the context of the work of the International Law Commission
Study Group on sea-level rise in relation to international law, has said that “[t]hese
topics are of great importance to small island developing States, like Solomon Islands
…. We strongly encourage delegations to engage [on] these topics so that we may
find an international solution to what is already becoming a global problem. ”238
182. A number of alternatives are set out below. These are by no means intended to
be conclusive or to preclude the possibility of considering other options.
A. Presumption as to the continuity of the State concerned
183. One alternative, which is in line with the pr eliminary approach taken by the
International Law Association at its meeting held in Sydney in 2018, and also by some
States, is that there should be a strong presumption as to the continuity of the State.
184. In that connection, Samoa, in its statement i n the Sixth Committee delivered on
28 October 2021 on behalf of the Pacific small island developing States, said that:
Under international law, there is a presumption that a State, once established,
will continue to be a State, particularly if it has a de fined territory and
population, among other factors.239
185. Incidentally, the delegation of Solomon Islands urged the International Law
Commission to consider the views of small island developing States, as particularly
affected States, stating that:
Solomon Islands supports the strong presumption in favor of continuing
statehood. The continued existence of States is foundational to our current
international order. State practice supports the notion that States may continue
to exist despite the absence of Montevideo Convention criteria. The principles
of stability, certainty, predictability and security also underly the presumption
of continuing statehood. Sea-level rise cannot be a justification for denying a
vulnerable State’s vital representation in the international order.240
186. Tonga said:
Yet, a defined territory and population were key indicia of statehood under
international law. For small island developing States, that was a question of
__________________
236 Submission of Fiji (on behalf of the members of the Pacific Islands Forum, namely Australia, Fiji,
Kiribati, Marshall Islands, Micronesia (Federated States of), Nauru, New Zealand, Palau, Papua
New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuat u).
237 Papua New Guinea
(https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/22mtg_papuanewguinea_2.pdf ;
A/C.6/76/SR.22, para. 35).
238 Solomon Islands (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/22mtg_solomonis_2.pdf ;
A/C.6/76/SR.22, para. 78).
239 Samoa (on behalf of the Pacific small island developing States)
(https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/19mtg_psids_2.pdf ; A/C.6/76/SR.19, para.
71).
240 Solomon Islands (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/22mtg_solomonis_2.pdf ;
A/C.6/76/SR.23, para. 4).
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survival. Tonga therefore stressed the need to quickly a ddress the international
law implications of those emerging issues. 241
187. Tuvalu made the following important point:
We acknowledge that several of the requirements for effective statehood are
referred to in article 1 of the Montevideo Convention. For m y country, although
we are still conducting a comprehensive review of our policy, we notice that the
argument is growing [that] the criteria provided by the Montevideo Convention
[apply] only for the determination of the birth of a State rather than [for t he
determination of] a State’s [continued existence].242
188. Cuba maintained a cautious position, saying that:
“Great caution was needed in considering the possible loss of statehood in
relation to sea-level rise. It was vital to uphold the principle that , in the event
that a small island State were to lose its territory as a result of sea -level rise, it
would not lose its status as an international subject, with all the attributes
thereof. International cooperation would play an essential role in that reg ard.”243
189. Drawing on its own experience, Latvia said that:
In light of its experience of continued statehood since its founding in 1918 and
its membership of the League of Nations, Latvia endorsed the view that factual
control over territory was not always a necessary criterion for the continued
juridical existence of States.244
190. Cyprus, quoting the distinguished judge and jurist James Crawford in his well -
known work entitled The Creation of States in International Law,245 said that:
[A]s regards … questions of statehood, we wish to highlight that the late Judge
James Crawford … noted that “[a] State is not necessarily extinguished by
substantial changes in territory, population or government, or even, in some
cases, by a combination of all three ”.246
191. Liechtenstein, emphasizing the importance of respect for the right to self -
determination, said that:
Legal challenges to the persistence of particular States and countries have in the
past arisen in situations of the loss of control over territory or over the
population belonging to that State or residing in that territory. Instead , a
different State or Government assumes control over the aforementioned territory
and population. Such a challenge to State persistence rests on the failure of the
first State to fulfil the first three Montevideo criteria, of a permanent population,
a defined territory and a Government. Situations of territorial inundation due to
sea-level rise differ in this respect, as the territory and the population residing
therein does not necessarily fall under the control of a different State or
Government. Instead, in situations of sea-level rise, it can be presumed at the
very least that the population, and thus the Government with control over it,
persists at the point of inundation.
… Any discussion of statehood in the context of rising sea -levels should note
that there is in practice a strong presumption of State persistence and
__________________
241 Tonga (A/C.6/76/SR.22, para. 120).
242 Tuvalu (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/23mtg_tuvalu_2 .pdf;
A/C.6/76/SR.23, para. 4).
243 Cuba (A/C.6/76/SR.21, para. 32).
244 Latvia (A/C.6/76/SR.22, para. 75).
245 Crawford, The Creation of States (see footnote 29 above).
246 Cyprus (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/22mtg_cyprus_2.pdf ).
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disfavouring of the extinction of any State or country, including its rights and
obligations under international law, for example in situations of belligerent
occupation. Such a presumption should also apply to a situation of the full or
partial inundation of the territory of a State or country, or of the relocation of its
population.247
192. In that regard, it should be noted that the criteria of the Convention on the Rights
and Duties of States are applicable when considering a State constituted as such, i.e.
when determining whether a State has been established as a subject of international
law and, more generally, its status thereafter. However, there are exceptional
situations where, for example, the territory may be totally occupied by another State
or a group of States without this entailing the disappearance of the State, in particular
if, as mentioned above, there is a Government in exile acting on behalf of the affected
State. In such cases, the State continues to exist and maintains its international legal
personality.
193. Even when a State experiences serious situations of internal violence or non -
international conflict that continue for several years, during which time there i s no
Government exercising control over most of the territory and the population, or the
Government is not recognized by other members of the international community, it is
assumed, in principle, that the State has not ceased to exist.
194. With regard to small island developing States whose territory could be covered
by the sea or become uninhabitable owing to exceptional circumstances outside their
will or control, a strong presumption in favour of continuing statehood should be
considered. Such States have the right to provide for their preservation, and
international cooperation will be of particular importance in that regard.
195. The preservation of statehood is also linked to the preservation of the rights of
States affected by the phenomenon of sea-level rise in respect of the maritime areas
under their jurisdiction and the living and non -living resources therein.
196. The problems or difficulties that may arise in practice with this option include
the possibility of the population s of affected States becoming stateless and potential
difficulties in providing diplomatic protection and assistance and consular protection
and assistance to nationals of States affected by sea -level rise; ineffectiveness of the
Government; and difficulties of the State affected by sea-level rise in exercising its
rights over the maritime areas under its jurisdiction and the living and non -living
resources therein.
B. Maintenance of international legal personality without a territory
197. Another possibility that could be explored would be for the State whose land
territory is completely covered by the sea or becomes uninhabitable to maintain its
international legal personality, as the Holy See did between 1870 and 1929, and as
the Sovereign Order of Malta is doing today. In this scenario, the subject of
international law concerned would be able to exercise both the active and the passive
right of legation, and would have treaty -making capacity. It would continue to be a
member of some international org anizations, act on behalf of its population or some
of its nationals and ensure the proper use of State resources for the benefit of its
population.
__________________
247 Liechtenstein (https://www.un.org/en/ga/sixth/76/pdfs/statements/ilc/21mtg_liechtenstein_2.pdf ;
A/C.6/76/SR.21, paras. 3–4).
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C. Use of some of the following modalities:
1. Ceding or assignment of segments or portions of territory to other States, with
or without transfer of sovereignty
With transfer of sovereignty
198. One option would be for a State to transfer sovereignty over a portion of its
territory to the developing island State whose territory is at risk of be ing completely
covered by the sea. However, while this is a valid alternative from a legal perspective,
it would be very difficult to achieve in practice.
Without transfer of sovereignty
199. Another option would be the ceding of a portion of territory without transfer of
sovereignty, for example under an agreement between the States concerned which, in
addition to providing for the transfer of territory, addresses matters relating to the
establishment of the population and Government of the St ate affected by sea-level
rise in the geographical area concerned.
200. Such an agreement could include provisions concerning the nationality of the
people of the affected island State who, while retaining their nationality of origin,
would also acquire the nationality of the ceding State or be granted a new common
citizenship that may be created for nationals of both States, to ensure that they do not
become stateless in practice; they would also enjoy broad autonomy to preserve their
national, cultural and group identities.
201. The agreement could also address matters related to the establishment of the
Government of the affected island State in the ceded part of the territory, including
issues regarding its enjoyment of immunities and privileges and ques tions concerning
the exercise of rights – such as the right of legation and the right to conclude treaties –
in the name of the affected State and the performance of actions for the benefit of its
population, which the Government would continue to represen t.
202. It is worth highlighting two examples in connection with this alternative,
although they concern the granting or recognition of rights in contexts unrelated to
sea-level rise. The first concerns relations between Peru and Ecuador, while the
second relates to relations between the Holy See and Italy.
203. The first example involves 1 km2 of territory, at the centre of which is a place
known as Tiwinza. The land is in Peruvian territory and under Peruvian sovereignty,
but the property rights have been transferred free of charge to the Government of
Ecuador, without the possibility of revocation. Ecuador has property rights over the
land in accordance with the national private law of Peru, but it cannot transfer the
property or have military or police p ersonnel in the area; only commemorative acts
conducted in coordination with the Government of Peru may be carried out, and no
weapons of any kind may be transported from one country to the other. 248
204. The second example concerns the Lateran Treaty of 19 29 between the Holy See
and Italy, in which the sovereignty and ownership of the Holy See over the Vatican
City was recognized and provision was made for special treatment of a number of
immovable properties that are owned by the Holy See but are located i n the territory
of Italy. These include the patriarchal basilicas of Saint John Lateran, Saint Mary
__________________
248 Binding View issued by the Heads of State of the Guarantor Countries of the Protocol of Rio de
Janeiro, of 13 October 1998, with the elements to conclude the setting up of a common land
border, which forms an integral part of the Presi dential Act of Brasilia, signed by the Presidents of
Peru and Ecuador on 26 October 1998, paragraph 2, at https://planbinacional.org.pe/wpcontent/
uploads/2018/07/BIN-Acuerdos-Brasilia-Per%C3%BA-Ecuador-1998.pdf (accessed on 25
February 2022).
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Major and Saint Paul, with their annexed buildings; the premises in Rome that house
the dicasteries of the Roman Curia; and the Papal Palace and Villa Barbe rini in Castel
Gandolfo. The Treaty provides that, in addition to enjoying the immunities and
privileges of diplomatic premises as recognized under international law, the premises
shall never be subject to liens or to expropriation for reasons of public ut ility, except
by prior agreement with the Holy See, and shall be exempt from all taxes, whether
ordinary or extraordinary, payable to the State or to any other entity. 249
2. Association with other State(s)
205. The following examples, involving some small island developing States, can
serve as references in relation to this option:
(a) The case of the Cook Islands and New Zealand, where the Joint Centenary
Declaration of the Principles of the Relationship between the Cook Islands and New
Zealand, signed on 11 June 2001 shows clearly that these are two independent and
sovereign States sharing New Zealand citizenship. 250 The Cook Islands engages in
activities in the sphere of international relations, including the conclusion of treaties
and its membership in international organizations, such as the South Pacific Regional
Fisheries Management Organization, of which both New Zealand and the Cook
Islands are members.251
(b) The cases of the Federated States of Micronesia, the Marshall Islands and
Palau, which have signed agreements with United States of America that do not
provide for the inhabitants of those island States to obtain United States citizenship
or permanent residency, but do provide for United States assistance to those States
and the recognition of the right of their nationals to live and work in the United States
and even to serve in the United States armed forces.
3. Establishment of confederations or federations
206. Although the examples of confederations – the United States in its early years
of existence, before the entry into force of the federal Constitution of 1787,
Switzerland until 1848 and the German Confederation between 1815 and 1867 – are
historical, 252 the confederation model may still be useful when considering the
situation of small island developing States affected by sea -level rise. Confederations
are established through agreements between the States concerned, which retain their
sovereignty and participate in the confederation on an equal footing in order to
achieve or pursue certain common objectives. Populations and territories do not have
a direct or immediate relationship with the confederation, only with the relevant
member State.
__________________
249 Art. 13–16 of the Trattato fra la Santa Sede e l’Italia (1929), at
https://www.vaticanstate.va/phocadownload/leggi -decreti/TrattatoSantaSedeItalia.pdf (accessed on
25 February 2022).
250 Joint Centenary Declaration of the Principles of the Relationship between the Cook Islands and
New Zealand (Rarotonga, 11 June 2001), at https://www.mfat.govt.nz/assets/Countries-and-
Regions/Pacific/Cook-Islands/Cook-Islands-2001-Joint-Centenary-Declaration-signed.pdf
(accessed on 25 February 2022).
251 South Pacific Regional Fisheries Management Organization, Participation, Commission Members,
at https://www.sprfmo.int/about/participation/ (accessed on 25 February 2022).
252 François Aubert, “The historical development of confederations”, in European Commission for
Democracy through Law (Venice Commission), “The modern concept of confederation”,
Santorini, 22–25 September 1994, Science and technique of democracy No. 11, document
CDL.STD (1994)011, at
https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL -STD(1994)011-e
(accessed 25 February 2022).
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207. Another possibility would be for States to form or join an existing federation. A
federation is governed by a Constitution, has sovereignty vested in it and, together
with the relevant substate entities, has a direct relationship to the population and the
territory. In federations, the subject of international law is the federal State, although,
as stated in the Commission’s draft articles on the law of treaties of 1966:
States members of a federal union may possess a capacity to conclude treaties
if such capacity is admitted by the federal constitution and within the limits
there laid down.253
208. A detail that could be taken into account when considering the advisability of
forming a federation or joining an existing one is that, in some federal States, the
individual units of the federation are recognized as having the capacity to carry out
certain actions of an international character, as described below.
Germany
209. A particularly interesting example is that of the “reserved rights”
(“Reservatrechte”) of the Kingdom of Bavaria during the time of the German Empire
(1871–1918), which concerned matters such as the right of legation and the
conclusion of treaties.254
210. In the present Federal Republic of Germany, responsibility for conduct ing
relations with foreign States lies with the Federation, pursuant to article 32, paragraph
1, of the Basic Law. However, it is worth highlighting that in the other paragraphs of
article 32, it is stipulated that the Länder may, with the consent of the F ederal
Government, conclude with foreign States treaties concerning matters falling within
the scope of their legislative powers, and that there must be coordination between the
Federal Government and the Länder on foreign policy matters that are of intere st to
or concern the Länder.255
211. An example of this practice is the treaty between the French Republic and the
Länder of Baden-Württemberg, the Free State of Bavaria, Berlin, Freie Hansestadt
Bremen, Freie und Hansestadt Hamburg, Hesse, Lower Saxony, No rth Rhine-
Westphalia, Rhineland-Palatinate, Saarland and Schleswig-Holstein on cultural
matters, which was signed in Berlin on 2 October 1990 and has been in force since
11 July 1992.256
Switzerland
212. While it is expressly stated in article 54 of the Federal Constitution of
Switzerland that foreign relations are the responsibility of the Confederation, articles
55 and 56 address the participation of the cantons in foreign policy decisions and
relations between the cantons and foreign States, respectiv ely.257
__________________
253 Article 5 (2) of the draft articles on the law of treaties, Yearbook of the International Law
Commission, 1966, vol. II, document A/6309/Rev.1, part II, para. 38, at p. 178.
254 B. Poloni, “La Bavière et l’empire”, in G. Krebs and G. Gérard Schneilin (eds.), La naissance du
Reich (Paris: Presses Sorbonne Nouvelle, 1995), pp. 60 –74.
255 Basic Law for the Federal Republic of Germany in the revised version published in the Federal
Law Gazette Part III, classification number 100 -1, as last amended by Article 1 of the Act of 29
September 2020 (Federal Law Gazette I, p. 2048), at https://www.gesetze-iminternet.
de/englisch_gg/englisch_gg.html#p0019 (accessed on 25 February 2022)
256 Treaty concerning the European Cultural Channel (with statement) (Berlin, 2 October 1990),
United Nations, Treaty Series, vol. 1705, No. 29477, p. 9.
257 Art. 54–56 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (Status as of 7
March 2021), at https://www.fedlex.admin.ch/eli/cc/1999/404/en?print=true (accessed on 25
February 2022).
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Belgium
213. The rights of the regions and linguistic communities are spelled out as part of
the federal arrangement of the State. For instance, the Walloon Region has the
capacity to establish a delegation in and conclude agreements with France . Examples
of such agreements include the cooperation agreement between the Government of
the French Republic and the Walloon Region of Belgium, which was signed in
Brussels on 10 May 2004 and has been in force since 1 February 2006, 258 and the
agreement between the Government of the French Republic and the Government of
the Walloon Region of the Kingdom of Belgium on access for persons with
disabilities, which was signed in Neufvilles, Belgium, on 21 December 2011 and has
been in force since 1 March 2014.259
Canada
214. Canadian practice allows the provinces of Canada to conclude agreements on
matters within their jurisdiction with foreign States. An illustrative example is the
cooperation agreement on international adoption entered into in 2002 between the
Government of Peru and the Government of Quebec that enables residents of the
Canadian province to adopt children from Peru. 260
Former Soviet Union
215. Under the Constitutions of the Union of Soviet Socialist Republics, the
constituent republics of the Union had the capacity to carry out international actions.
In that regard, it is worth recalling the cases of the then Soviet Republics of Ukraine
and Belarus, which were members of the United Nations and parties to multilateral
treaties.261
4. Unification with another State, including the possibility of a merger
216. In case of a merger, the island State affected by sea-level rise would be absorbed
by another State. The population of the island State would be incorporated into the
population of the other State and take on the nationality of that State. However, a
degree of autonomy for the former nationals of the affected island State could be
agreed upon beforehand, in order to preserve their cultural and group identity.
__________________
258 Décret No. 2009-281 du 11 Mars 2009 portant publication de l ’accord de coopération entre le
Gouvernement de la République française et la région wallonne de Belgique, signé à Bruxelles le
10 mai 2004, published in Journal Officiel de la Repúblique Française, 14 March 2009, at
https://www.legifrance.gouv.fr/download/pdf?id=A3wJUVkMYZxmy8At3EmqcEY0JMRNZGyV
DKF_N-r7shY= (accessed on 25 February 2022).
259 Décret No. 2014-316 du 10 mars 2014 portant publication de l ’accord-cadre entre le
Gouvernement de la République française et le Gouvernment de la region wallonne du Royaume
de Belgique sur l’accueil des personnes handicapés, signé à Neufvilles le 21 décembre 2011,
published in Journal Officiel de la Repúblique Fran çaise, 12 March 2014, at
https://www.legifrance.gouv.fr/download/pdf?id=OCqqBWszkTNKfQ5XVejd -vCwQ8RhV7Mt8asmbCOZxc=.
260 Convenio de Cooperación en materia de Adopción Internacional entre el Gobierno de Quebec y el
Gobierno de la República del Perú (6 May 2002), at
https://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/1E73222FE2DD397F05257ECB006
826E0/$FILE/4_DSN%C2%BA068-2002-RE.pdf (accessed on 25 February 2022).
261 Rosalyn Cohen, “The concept of statehood in United Nations practice”, University of
Pennsylvania Law Review, vol. 109, No. 8 (June 1961), pp. 1131–1132.
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5. Possible hybrid schemes combining elements of more than one modality,
specific experiences of which may be illustrative or provide ideas for the
formulation of alternatives or the design of such schemes
Joint sovereignty model
217. In addition to the above-mentioned case of Pheasant Island, or Conference
Island, involving Spain and France, it is worth bearing in mind that Argentina and the
United Kingdom engaged in negotiations on the possibility of joint sovereignty over
the Falkland Islands (Malvinas) before the war of 1982, and again after the Argentine
invasion that year, during the brief mediation of the then Secretary of State of the
United States, Alexander Haig.262
218. The joint sovereignty model was also a matter of negotiation between Spain an d
the United Kingdom in respect of Gibraltar in 2001 and 2002. More recently, on 4
October 2016, the Permanent Representative of Spain to the United Nations put
forward a proposal formally inviting the United Kingdom to engage in negotiations
with a view to reaching an agreement on a joint sovereignty regime for Gibraltar
based on the recognition of the broadest self -government possible that is compatible
with the constitutional system of Spain, and on an advantageous personal status for
Gibraltarians, which could include dual nationality.263
Bosnia and Herzegovina
219. In Bosnia and Herzegovina, the Constitution resulting from the 1995 General
Framework Agreement for Peace in Bosnia and Herzegovina states that the State
would comprise two entities, the Republika Srpska and the Federation of Bosnia and
Herzegovina, whose inhabitants would be citizens of each of those entities and of the
Federation as a whole.264
Faroe Islands
220. The Faroe Islands have a very high degree of autonomy within the Kingdom of
Denmark and are active in international relations through the conclusion of treaties 265
(such as commercial treaties with the European Union and with Iceland, Norway and
Switzerland) and participation in international organizations, including fisheries
__________________
262 Ana Laura Bochicchio, “Cold War and American Intervention in Malvinas (1982)”, Quinto Sol,
vol. 25, No. 1 (January–April 2021); John O’Sullivan, “How the U.S. Almost Betrayed Britain”,
The Wall Street Journal, 2 April 2012, at
https://www.wsj.com/articles/SB10001424052702303816504577313852502105454 (accessed on
25 February 2022); and Juan González Yuste, “Buenos Aires rechaza una administración
tripartita”, El País, 13 April 1982, at
https://elpais.com/diario/1982/04/14/internacional/387583201_850215.html (accessed on 25
February 2022). There is a dispute between the Governments of Argentina and the United
Kingdom of Great Britain and Northern Ireland concerning sovereignty over th e Falkland Islands
(Malvinas). See ST/CS/SER.A/42, of 3 August1999.
263 Spain (http://www.spainun.org/wp-content/uploads/2016/10/Intervenci%C3%B3n -
Espa%C3%B1a-Item-58-71AG-versi%C3%B3n-compilada-ESP.ING_.pdf; A/C.4/71/SR.3, paras.
3–4).
264 Letter dated 29 November 1995 from the Permanent Representative of the United States of
America to the United Nations addressed to the Secretary -General, attaching the General
Framework Agreement for Peace in Bosnia and Herzegovina ( A/50/79C-S/1995/999), 30
November 1995.
265 Act No. 80 of 14 May 2005 on the Conclusion of Agreements under International Law by the
Government of the Faroes, at https://www.government.fo/en/foreign-relations/constitutionalstatus/
the-foreign-policy-act/ (accessed on 25 February 2022).
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management organizations, such as the South Pacific Regional Fisheries Management
Organization.266
Special Administrative Regions of Hong Kong and Macao (China)
221. The Special Administrative Region s of Hong Kong and Macao, in the People ’s
Republic of China, are separate customs territories and, as such, are members of the
World Trade Organization and conclude treaties concerning trade and investment. 267
The legal and court systems that existed in those territories before they were
retroceded to the People’s Republic of China are still in place, and their inhabitants
enjoy a specific set of rights. Hong Kong and Macau are able to continue to use
English and Portuguese, respectively, as official languages, alongside Chinese. 268
Scenarios relating to citizenship
222. The possibilities with regard to citizenship include individuals holding the
citizenship of a constituent entity of the State as well as a common citizenship of the
State as a whole, as in Bosnia and Herzegovina, or a model along the lines of the
“citizenship of the European Union” system, whereby citizenship of the Union is
accorded to nationals of any of its member States. This makes it possible, for example,
for nationals of a State member of the Union to receive c onsular assistance in a third
State from another member State if the State of nationality of the individual is not
represented in the third State.269
223. The various categories of citizenship other than that of “British citizen”
provided for in the British Nationality Act do not in themselves entitle individuals in
those categories to live and work in the United Kingdom, but they do enable them to
hold a British passport and receive consular assistance and diplomatic protection from
the United Kingdom abroad. In that connection, it is worth bearing in mind the case
of the descendants of Asians who had settled in Uganda during the period of British
colonization, most of whom were of Indian origin and were engaged in trade and
business, who had to leave Uganda as a result of a decision by the country’s dictator,
Idi Amin, in August 1972. Given the situation and the fact that those persons held
British passports, the United Kingdom provided them with assistance. Approximately
__________________
266 South Pacific Regional Fisheries Management Organization, Participation, Commission Members,
at https://www.sprfmo.int/about/participation/ (accessed on 25 February 2022).
267 World Trade Organization, Members and Observers, at
https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm . The Free Trade Agreements and
International Investment Agreements concluded by Hong Kong, China, and Macao, China, may be
consulted at https://investmentpolicy.unctad.org/international -investment-agreements/by-economy
(accessed on 25 February 2022).
268 Constitution of the People’s Republic of China, adopted at the Fifth Session of the Fifth National
People’s Congress and promulgated by the Announcement of the National People’s Congress on 4
December 1982, at https://www.basiclaw.gov.hk/en/constitution/introduction.html (accessed on 25
February 2022); and Basic Law of the Hong Kong Special Administrative Region of the People ’s
Republic of China, adopted at the Third Session of the Seventh National People ’s Congress on 4
April 1990, at https://www.basiclaw.gov.hk/en/basiclaw/basiclaw.html (accessed on 25 February
2022).
269 Consolidated version of the Treaty on European Union, Official Journal of the European Union;
Consolidated version of the Treaty on the Functioning of the European Union, Officia l Journal of
the European Union; Charter of Fundamental Rights of the European Union, Official Journal of
the European Union (2016/C 202/02), at https://eur-lex.europa.eu/legalcontent/
EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=ES (accessed on 25 February 2022); and
Council Directive (EU) 2015/637 of 20 April 2015 on the coordination and cooperation measures
to facilitate consular protection for unrepresented cit izens of the Union in third countries and
repealing Decision 95/553/EC, Official Journal of the European Union 24.4.2015, at https://eurlex.
europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015L0637&from=ES (accessed on 25
February 2022).
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30,000 of them settled in the United Kingdom, while the rest were taken in by other
Commonwealth countries, such as Australia and Canada , and the United States.270
224. Another scenario would be where a State grants nationality to specific
categories of persons with historic links to that Sta te. For example, Spain adopted the
royal decree of 1924, and Act No. 12/2015, of 24 June 2015, granting Spanish
nationality to Sephardic persons originating in Spain. It is also worth bearing in mind
that Spain and Sweden issued protective passports to Jew s in Budapest during the
latter years of the Second World War.271
Scenarios relating to the right of peoples to self -determination
225. Indigenous peoples have the right to self -determination, in terms of the power
to organize themselves and handle thei r own internal and local affairs, in accordance
with the United Nations Declaration on the Rights of Indigenous Peoples of 2007, 272
and the American Declaration on the Rights of Indigenous Peoples of 2016, 273 and
taking into consideration the jurisprudence o f the Inter-American Court of Human
Rights.274 Particularly interesting cases in this regard include those of the Maori in
New Zealand and the Cook Islands ( with the noteworthy precedent set by the Treaty
of Waitangi of 1840); 275 the Sami in the Nordic countries (Finland, Norway and
Sweden);276 and the Kanak people in New Caledonia, in the context of that territory ’s
relationship with France.277
226. It is essential to preserve the right to self -determination of the populations of
any small island developing States whose land territory is completely covered by the
sea or becomes uninhabitable. That right could be upheld through the maintenance of
__________________
270 Chibuike Uche, “The British Government, Idi Amin and the expulsion of British Asians from
Uganda”, Interventions – International Journal of Postcolonial Studies , vol. 19-6, published
online 15 May 2017, at
https://www.tandfonline.com/doi/abs/10.1080/1369801X.2017.1294099?journalCode=riij20
(accessed on 25 February 2022); and Becky Taylor, “Good Citizens? Ugandan Asians, Volunteers
and ‘Race’ Relations in 1970s Britain”, History Workshop Journal, vol. 85, 19 June 2018, pp.
120–141, at https://academic.oup.com/hwj/article/doi/10.1093/hwj/dbx055/4818096 (accessed on
25 February 2022).
271 Alejandro González-Varas Ibáñez, “La adquisición de la ciudadanía española por parte de los
judíos sefardíes tras la aprobación de la Ley 12/2015”, Revista Latinoamericana de De recho y
Religión, vol. 2, No. 2 (2016); Ministerio de Asuntos Exteriores y de Cooperación de España,
“Más allá del deber: La respuesta humanitaria del Servicio Exterior frente al Holocausto” (2014);
and Ministerio de Asuntos Exteriores y de Cooperación de España y Casa Sefarad-Israel, “Visados
para la libertad (Visas for freedom): Diplomáticos españoles ante el Holocausto” (2008), at
https://cdn.bush41.org/exhibits/catalogo_visadosDic08.pdf (accessed on 25 February 2022).
272 General Assembly resolution 61/295 of 13 September 2007, annex.
273 American Declaration on the rights of indigen ous peoples, adopted by the General Assembly of
the Organization of American States on 14 June 2016, at
https://www.oas.org/es/sadye/documentos/res-2888-16-es.pdf (accessed on 25 February 2022).
274 See, for instance, Inter-American Court of Human Rights, Case of the Saramaka People v.
Suriname, Judgment of 28 November 2007 (Preliminary Objections, Merits, Reparations, and
Costs), para. 93.
275 Treaty of Waitangi (Waitangi, 6 February 1840), at https://nzhistory.govt.nz/politics/treaty/read -
the-treaty/english-text (accessed on 25 February 2022).
276 A/HRC/EMRIP/2021/2.
277 Loi No. 88-1028 du 9 novembre 1988 portant dispositions statutaires et préparatoires à
l’autodétermination de la Nouvelle-Calédonie en 1998, published in Journal Officiel de la
République Française, at https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000687687/
(accessed 25 February 2022); and Loi No. 99 -209 organique du 19 mars 1999 relative à la
Nouvelle-Calédonie, published in Journal Officiel de la République Française, at
https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000393606/#:~:text=La%20Nouvelle%2DC
al%C3%A9donie%20d%C3%A9termine%20librement,d%C3%A9cider%20de%20modifier%20so
n%20nom (accessed on 25 February 2022).
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statehood or the implementation of other approaches that enable the populations
concerned to express their will in relation to decisions that could affect their future,
and that preserve their rights, including their right to maintain their identity.
Part Three: Protection of persons affected by sea-level rise
I. Introductory considerations
A. A significant threat
227. Sea-level rise poses a significant threat to small islands and low -lying coastal
areas around the world. Among the physical impacts , rising sea levels expose coastal
populations to loss of land owing to an exacerbated risk of destructive erosion,
inundation and wetland flooding of low-lying coastal areas. Increased flooding will
have particularly adverse consequences for infrastructure, settlements and
agricultural lands located at or near coasts. Higher sea levels also promote saltwater
intrusion into river estuaries and aquifers, causing stress on the supply of freshwater
resources and reducing the bearing capacity of the ground. 278 Studies of extreme sea
levels worldwide have also indicated that sea -level rise brings with it more frequent
extreme events driven by severe weather such as tropical cyclones and mid -latitude
storms, which further aggravate such physical changes. 279
B. A phenomenon of multifold dimensions and intensity with the
potential to affect the enjoyment of human rights
228. Because sea-level rise is not uniform across time and space, 280 the nature and
intensity of its physical impact will vary from region to region and locality to
locality,281 depending, inter alia, on terrain, climatic conditions, wealth, economic
conditions, infrastructure and political institutions. 282 Yet, together, sea-level rise and
the frequency and intensity of extreme events have potentially significant
socioeconomic, environmental and cultural consequences for hum an lives and living
conditions in coastal and low-lying areas. They threaten all aspects of human life,
including mortality, livelihoods and industry, food and water security, health and
well-being, homes, land and other property, infrastructure and critic al services, and
cultural heritage.283 Accordingly, although sea-level rise does not in itself constitute
a violation of human rights, it has the potential to adversely affect the enjoyment of
human rights,284 especially those of already vulnerable persons a nd groups, including
__________________
278 Nobuo Mimura, “Sea-level rise caused by climate change and its implications for society”,
Proceedings of the Japan Academy, Series B: Physical and Biological Sciences , vol. 89, No. 7 (25
July 2013), pp. 281–301, at pp. 291–295.
279 Antarctic Climate and Ecosystems Cooperative Research Centre, “Position analysis: climate
change, sea-level rise and extreme events – impacts and adaptation issues” (Hobart, 2008), p. 12.
280 Benjamin Horton et al., “Mapping sea-level change in time, space and probability”, Annual
Review of Environment and Resources, vol. 43 (2018), pp. 481–521.
281 McAdam et al., International Law and Sea-Level Rise (see footnote 134 above), p. 2.
282 Sujatha Byravan and Sudhir Chella Rajan, “The ethical implications of sea -level rise due to
climate change”, Ethics and International Affairs, vol. 24, No. 3 (Fall 2010), pp. 239–260, at p.
240.
283 McAdam et al., International Law and Sea-Level Rise (see footnote 134 above), p. 4.
284 Siobhán McInerney-Lankford, “Human rights and climate change: reflections on international
legal issues and potential policy relevance”, in Gerrard and Wannier (eds.), Threatened Island
Nations (see footnote 158 above), pp. 195–242.
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women, children, older persons, and indigenous groups and other traditional
communities.
229. In resilient communities, the physical impact of sea -level rise and associated
extreme events falling short of total submergence may be overcome through
mitigation and adaptation strategies. 285 However, in more severe cases, where the
habitability of coastal and low-lying areas is jeopardized and adaptation and
mitigation measures prove inadequate, such disruption may have a serious impact on
the lives of local inhabitants, potentially leaving t hem with no choice but to relocate
or migrate.
C. A phenomenon whose impact may lead to significant internal or
international movement of persons
230. Estimating the magnitude of such relocation or migration is challenging,
because the impact of sea-level rise interacts with that of other, economic, social and
political, factors that force people from their homes. 286 In the past decade, 83 per cent
of all disasters triggered by natural hazards were caused by extreme weather - and
climate-related events.287 According to the Internal Monitoring Displacement Centre,
weather-related disasters caused the internal displacement of 23.9 million people in
2019 alone.288 Other studies estimate that 146 million people will be at risk of having
to evacuate their homes over the next century owing to the adverse effects of climate
change, including sea-level rise.289
231. Most involuntary relocation or displacement in the context of sea -level rise will
be internal as opposed to across international borders. However, with out timely and
proactive interventions, displacement to other States may become inevitable. 290 In
either scenario, given that it is, in principle, irreversible, sea -level rise is more likely
to cause long-term or permanent movement of people than any other form of
environmentally-induced human migration.291
232. The partial or complete inundation of State territory, including of small island
States and low-lying coastal States, as a result of sea -level rise, has thus an impact on
the populations of those areas, which are often densely populated. Sea-level rise
jeopardizes the habitability of such areas, leading to a potentially large number of
displaced persons, but also affecting those who might be able to stay.
233. A key issue to be addressed is therefore that of the protection of persons affected
by sea-level rise, whether they are displaced or migrate owing to sea -level rise, or are
__________________
285 Anthony Oliver-Smith, Sea Level Rise and the Vulnerability of Coastal Peoples: Responding to
the Local Challenges of Global Climate Change in the 21st Century (Bonn, United Nations
University (UNU) Institute for Environment and Human Security, 2009), p. 28.
286 Gregory E. Wannier and Michael B. Gerrard, “Overview” in Gerrard and Wannier (eds.),
Threatened Island Nations (see footnote 158 above), p. 5.
287 International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2020:
Come Heat or High Water – Tackling the Humanitarian Impacts of the Climate Crisis Together
(Geneva, 2020).
288 Internal Monitoring Displacement Centre, Global Report on Internal Displacement 2020 (Geneva,
2020).
289 Etienne Piguet, “Climate change and forced migration”, New Issues in Refugee Research,
Research Paper No. 153 (Geneva, UNHCR, 2008); and David Anthoff et al., “Global and regional
exposure to large rises in sea-level: a sensitivity analysis” Working Paper No. 96 (Norwich,
Tyndall Centre for Climate Change Research, 2006).
290 McAdam et al., International Law and Sea-Level Rise (see footnote 134 above), p. 23.
291 Byravan and Chella Rajan, “The ethical implications of sea -level rise due to climate change” (see
footnote 282 above), p. 240.
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able to stay owing to mitigation and adaptation measures but may still face the impact
of sea-level rise.
D. Absence of a dedicated legal framework and of a distinct legal
status for persons affected by sea-level rise
234. To date, there is no binding international legal instrument that specifically
includes provisions for cross-border movements induced by climate change an d for
the protection of persons who are affected and/or move owing to the adverse effects
of climate change, such as sea-level rise. International law does not at present grant
to persons affected by the adverse consequences of climate change, including se alevel
rise, any distinct legal status.
235. However, because of the particular situation that persons affected by sea -level
rise may face, owing to the nature of this adverse effect of climate change, they may
have specific needs that would need to be ad dressed. The impact of sea-level rise on
affected persons thus raises questions as to how such persons should be protected and
what existing legal frameworks are potentially applicable to this situation ( lex lata),
and whether existing legal frameworks are sufficiently comprehensive, coherent or
specific, what their limitations are and whether adjustments would be warranted ( lex
ferenda).
E. Protection of persons affected by sea-level rise: the dual rightsand
needs-based approach of the 2016 draft articles on the
protection of persons in the event of disasters
236. The protection of persons affected by sea -level rise should be understood, for
the purposes of this subtopic, as all activities aimed at ensuring full respect for the
rights of persons affected, in accordance with the relevant and applicable bodies of
international law. As stated by the Special Rapporteur, Eduardo Valencia -Ospina, in
the Commission’s preliminary report on the topic “protection of persons in the event
of disasters”: “The title [of the topic] … imports a distinct perspective, that is, of the
individual who is a victim of a disaster, and therefore suggests a definite rights -based
approach to treatment of the topic. The essence of a rights -based approach to
protection and assistance is the identification of a specific standard of treatment to
which the individual, the victim of a disaster, in casu, is entitled. To paraphrase the
Secretary-General, a rights-based approach deals with situations not simply in ter ms
of human needs, but in terms of society’s obligation to respond to the inalienable
rights of individuals, empowers them to demand justice as a right, not as a charity,
and gives communities a moral basis from which to claim international assistance
when needed.”292
237. In the subsequent work of the Special Rapporteur on the protection of persons
in the event of disasters and the outcome of the Commission ’s work on the topic, a
needs-based approach was also adopted, informed by existing human rights
obligations. As the Special Rapporteur stated in the second report: “More than a
normative statement with claims of exclusivity, the [rights -based] approach is a useful
departing position that carries the all-important baggage of rights-based language,
and needs to be complemented by other views of relevance to the specific subject
matter to be understood. [The International Federation of Red Cross and Red Crescent
Societies] has suggested that a rights-based approach to the topic may be
complemented by considering the relevance of needs in the protection of persons in
__________________
292 A/CN.4/598, para. 12.
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the event of disasters. The Special Rapporteur believes that such an exercise can be
usefully undertaken in this context. There is no stark opposition between needs and a
rights-based approach to the protection of persons in the event of disasters. On the
contrary, a reasonable, holistic approach to the topic seems to require that both rights
and needs enter the equation, complementing each other when appropriate. ”293
238. This compromise between the rights-based and the needs-based approaches
resulted in draft article 2, which reads as follows: “The purpose of the present draft
articles is to facilitate the adequate and effective response to disasters and reduction
of the risk of disasters, so as to meet the essential needs of the persons concerned,
with full respect for their rights. ”294
239. A similar approach would seem justified in regard to the protection of persons
affected by sea-level rise, since the two approaches (rights-based and needs-based)
are not necessarily mutually exclusive but are best viewed as complementary: the
protection of persons affected by sea-level rise should meet their needs, and such
response must take place with full respect for their rights.
II. Mapping the existing legal frameworks potentially
applicable to the protection of persons affected by sea-level
rise
240. This section is devoted to mapping the existing legal frameworks that are
potentially applicable to the protection of persons affected by sea -level rise. The
relevant legal frameworks are addressed according to the following categories:
international human rights law, international humanitarian law, international law
concerning refugees and internally displaced persons, international law concerning
migrants, international law concerning disasters and international law concerning
climate change.
241. International human rights law, both at the international and regional level, is
one of the relevant to the protection of persons affected by sea -level rise since the
adverse effects of sea-level rise may affect the enjoyment of several human rights.
The analysis mostly focuses on international human rights law, but also refers to
regional protection systems as appropriate.
242. A brief analysis of international humanitarian law is relevant in the sense that
there could be a nexus between the adverse effects of climate change, such as sea -
level rise, and conflict, in terms of both the root causes of armed conflict and the
impact of climate change on the vulnerability of civilian victims of armed conflict.
243. Because sea-level rise might lead to the movement of persons, within their own
country or abroad, their protection from the point of view of international and regional
legal regimes related to refugees, inter nally displaced persons and migrants is also
appropriate.
244. Since sea-level rise has also been characterized as a disaster and is an adverse
effect of climate change, international and regional legal regimes concerning the
protection of persons in the event of disasters and international law concerning
climate change might also contain relevant provisions.
245. The mapping exercise is intended to be descriptive rather than prescriptive, and
is based on existing lex lata that is potentially applicable, ta king into account that in
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293 A/CN.4/615 and Corr.1, para. 17.
294 Draft articles on the protection of persons in the event of disasters, and commentary thereto,
Yearbook of the International Law Commission, 2016 , vol. II (Part Two), paras. 48–49.
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many cases the existing instruments are of a soft-law character. Both international
and regional instruments are considered, as appropriate.
A. International human rights law
246. It is now generally recognized that climate change can adversely affect the
enjoyment of human rights, although there is no specific protection in the
international or regional human rights legal regime regarding the adverse effects of
climate change, including sea-level rise.
247. The Human Rights Council, in several of its resolutions, 295 has acknowledged
that the adverse effects of climate change have a range of direct and indirect
implications for the effective enjoyment of human rights. These adverse effects have
also been highlighted by the Special Rapporteur on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable
environment296 and other special procedures of the Council. 297 The Council’s recent
creation of the Special Rapporteur on the promotion and protection of human rights
in the context of climate change298 and the Council’s recognition of the human right
to a clean, healthy and sustainable environment 299 further highlights the link between
the adverse effects of climate change an d the enjoyment of human rights.
248. The Paris Agreement, concluded on 12 December 2015, 300 was the first
international agreement on the subject of climate change to refer to human rights: in
the preamble, it is acknowledged “that climate change is a common concern of
humankind”, and that States should, “when taking action to address climate change,
respect, promote and consider their respective obligations on human rights, the right
to health, the rights of indigenous peoples, local communities, migrants, children,
persons with disabilities and people in vulnerable situations and the right to
development, as well as gender equality, empowerment of women and
intergenerational equity”.
249. Although sea-level rise does not in itself constitute a violation of human rights,
it has the potential to adversely affect the enjoyment of human rights, protected by
both international and regional conventions, 301 especially those of already vulnerable
persons and groups. Moreover, it has the potential to increase future v ulnerability, as
relatively safe communities today may become increasingly vulnerable.
250. The consequences of sea-level rise pose risks to many aspects of human life,
including mortality, food and water security, health, housing, land and other property,
__________________
295 Human Rights Council resolutions 10/4 of 25 March 2009, 18/22 of 30 September 2011, 26/27 of
27 June 2014, 29/15 of 2 July 2015, 32/33 of 1 July 2016, 35/20 of 22 June 2017, 38/4 of 5 July
2018, 41/21 of 12 July 2019, 44/7 of 16 July 2020 and 47/24 of 14 July 2021.
296 See
https://www.ohchr.org/en/Issues/environment/SRenvironment/Pages/SRenvironmentIndex.aspx .
297 See paras. 369–370 and 391–394 below.
298 See Human Rights Council resolution 48/14 of 8 October 2021.
299 See Human Rights Council resolution 48/13 of 8 October 2021.
300 United Nations, Treaty Series, No. I-54113, eleventh preambular para. Available from
https://treaties.un.org.
301 See, in particular: Universal Declaration of Human Rights; International Covenant on Civil and
Political Rights; International Covenant on Economic, Social and Cultural Rights (New York, 16
December 1966), ibid., vol. 993, No. 14531, p. 3; American Convention on Human Rig hts: “Pact
of San José, Costa Rica” (San José, 22 November 1969), ibid., vol. 1144, No. 17955, p. 123;
African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981), ibid., vol. 1520, No.
26363, p. 217; and Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights) (Rome, 4 November 1950), ibid., vol. 213, No. 2889, p.
221.
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livelihoods and cultural heritage. Such adverse effects have to be taken into
consideration both regarding measures to address climate change, such as mitigation
and adaptation measures, and regarding the effects of sea -level rise that might require
the affected persons to be relocated, internally displaced or moved abroad.
251. Among the human rights that are most likely to be affected by sea -level rise are
the rights to life, property, adequate food and water, health, adequate housing, and
cultural identity,302 and States have an obligation to respect such human rights vis -àvis
persons within their jurisdiction. Slow-onset events, such as sea-level rise, can
negatively affect these substantive human rights, but also the rights of participation
and information, of persons potentially affected by sea -level rise.
252. By means of exemplification, without being fully comprehensive and without
prejudice to a case-by-case analysis regarding the specific right and situation in
question, there follows a discussion of the potentially specific effects on the dignity
and human rights of persons affected by sea-level rise:
(a) The right to life. 303 Adverse effects of climate change, including the
impact of sea-level rise, can pose both direct and indirect threats to hu man life.
Mortality is one impact of climate -related extremes. There is a high risk of death in
low-lying coastal zones and small island developing States and other small islands
owing to storm surges, coastal flooding and sea -level rise. In an extreme case, if an
entire country is at risk of becoming submerged under water, the conditions of life in
that country may become incompatible with the right to a life with dignity before the
risk is realized;
(b) The prohibition of cruel, inhuman or degrading tre atment.304 Even if
the right to life is not directly in peril, adverse effects of climate change such as sea -
level rise could expose individuals who live in the territories affected to cruel,
inhuman or degrading treatment, in that they are deprived of the effective enjoyment
of several human rights – namely the economic, social and cultural rights mentioned
below – that are essential to an adequate standard of living and a life with dignity.
The presence of such adverse effects in receiving States, which ma y expose
individuals to a violation of the prohibition of cruel, inhuman and degrading
treatment, could also trigger the non-refoulement obligations of sending States;
(c) The right to adequate housing. 305 The right to adequate housing is a
component of the right to an adequate standard of living. Having a place of shelter is
fundamental to many aspects of human existence and is closely associated with a
number of other human rights. The observed and projec ted impact of climate change,
including sea-level rise, has several direct and indirect implications for the enjoyment
of the right to adequate housing, including through its impact on infrastructure and
__________________
302 See A/HRC/10/61.
303 Universal Declaration of Human Rights, art. 3; International Covenant on Civil and Political
Rights, art. 6; European Convention on Human Rights, art. 2; American Convention on Human
Rights, art. 4; and African Charter on Human and Peoples ’ Rights, art. 4. See also Human Rights
Committee, general comment No. 36 (2018) (CCPR/C/GC/36).
304 Universal Declaration of Human Rights, art. 5 ; International Covenant on Civil and Political
Rights, art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (New York, 10 December 1984), United Nations, Treaty Series, vol. 1465, No. 24841,
p. 85, art. 16; European Convention on Human Rights, art. 3; American Convention on Human
Rights, art. 5; and African Charter on Human and Peoples ’ Rights, art. 5. See also Human Rights
Committee, general comment No. 20 (1992), report of the Human Rights Committee, Official
Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.
305 Universal Declaration of Human Rights, art. 25 , and International Covenant on Economic, Social
and Cultural Rights, art. 11. See also Committee on Economic, Social and Cultural Rights, gen eral
comment No. 4 (1991), Official Records of the Economic and Social Council, 1991, Supplement
No. 3 (E/1992/23-E/C.12/1991/4), annex III.
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settlements. Inappropriately located and poor-quality housing are often the most
vulnerable to extreme events, including floods and sea -level rise. Settlements and
infrastructure in coastal areas are particularly at risk;
(d) The right to food.306 Livelihoods can be disrupted in low-lying coastal
zones and small island developing States and other small islands owing to storm
surges, coastal flooding and sea-level rise, which may have implications for the
availability and accessibility of food and c ause disruption in food production,
reductions in crop yields, increased food prices and food insecurity;
(e) The right to water.307 The right to water is regarded as implicit in the right
to an adequate standard of living and the right to the enjoyment o f the highest
attainable standard of health. It is indispensable for leading a life with dignity and is
a prerequisite for the realization of other human rights. The salinization of the
freshwater lens due to sea-level rise in small island developing State s and in lowlying
coastal areas can affect the right to water of the local population;
(f) The right to take part in cultural life and to respect for cultural
identity.308 When people move as a result of slow-onset events such as sea-level rise
or coastal erosion, they risk losing their cultures that are attached to the traditional
territory. The inability to live on ancestral lands or close to the ocean might for some
be at odds with their right to pursue their protected cultural rights. This is relevant in
respect of the enjoyment of cultural rights by indigenous groups and minority
populations, including their ability to identify with a particular community and, so,
to engage in their cultural practices;
(g) The right to a nationality and the preventio n of statelessness. 309
Everyone has the right to a nationality and must be protected from arbitrary
deprivation of nationality. Persons affected by sea -level rise are not per se at risk of
losing their nationality and becoming statelessness. Only in an extr eme scenario, in
which a State disappeared and there was no solution to ensure the continuity of its
legal personality or some form of State succession, would that issue arise. At the same
time, it is important to guarantee, in the context of the possible displacement or
migration abroad of persons affected by sea -level rise, that such persons will not be
involuntarily arbitrarily deprived of their nationality as a result of the application of
national laws relating to nationality matters;
__________________
306 Universal Declaration of Human Rights, art. 25, and International Covenant on Economic, Social
and Cultural Rights, art. 11. See also Committee on Economic, Social and Cultural Rights, general
comment No. 12 (1999), Official Records of the Economic and Social Council, 2000, Supplement
No. 2 (E/2000/22-E/C.12/1999/11 and Corr.1), annex V.
307 Universal Declaration of Human Rights, art. 25 , and International Covenant on Economic, Social
and Cultural Rights, arts. 11 and 12. See also Committee on Economic, Social and Cultural Rights,
general comment No. 15 (2002) Official Records of the Economic and Social Council, 2003,
Supplement No. 2 (E/2003/22-E/C.12/2002/13), annex IV, and General Assembly resolution
64/292 of 28 July 2010 on the human right to water and sanitation.
308 Universal Declaration of Human Rights, art. 27 , and International Covenant on Economic, Social
and Cultural Rights, art. 15. See also Committee on Economic, Social and Cultural Rights, general
comment No. 21 (2009), Official Records of the Economic and Social Council, 2003, Supplement
No. 2 (E/2010/22-E/C.12/2009/3), annex VII.
309 Universal Declaration of Human Rights, art. 15, and American Convention on Human Rights, art.
20. See also Convention relating to the Status of Stateless Persons (New York, 28 September
1954), United Nations, Treaty Series, vol. 360, No. 5158, p. 117; and Convention on the Reduction
of Statelessness.
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(h) The rights of children. 310 The human rights discussed in the present
section are also generally protected by the Convention on the Rights of the Child.
Children have been recognized as being particularly affected by climate change, in
terms of both the manner in which they experience the effects of climate change and
the potential of climate change to affect them throughout their lifetime, particularly
if immediate action is not taken. Given the particular impact on children, and the
recognition by States parties to the Convention on the Rights of the Child that children
are entitled to special safeguards, including appropriate legal protection, States may
have heightened obligations to protect children from foreseeable harm caused by
climate change, including sea-level rise;
(i) Public participation, access to information and access to justice. 311
International human rights law, complemented by international environmental law,
increasingly recognizes that the right of all persons to take part in the government of
their country and in the conduct of public affairs includes the right of public
participation in the preparation of plans or measures that may have a significant
impact on the environment, which might be the case with measures to combat sea -
level rise or to protect persons from its effects. Closely related is the right of access
to relevant information in these domains held by public authorities and the right of
access to justice, including for the purposes of redress and remedies, regarding
decisions taken in connection with sea-level rise that might affect human rights;
(j) The right to self-determination and the rights of indigenous peoples.312
The collective right to self-determination is a fundamental principle of international
law, in accordance with the Charter of the United Nations. It is also a human right, in
accordance with common article 1 of the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights,
which establishes that, by virtue of that right, “all peoples … freely determine their
political status and freely pursue their economic, social and cultural development ”.
The right to self-determination is essential for the effective enjoyment of other human
rights. Land inundation stemming from sea-level rise can pose risks to the territorial
__________________
310 Universal Declaration of Human Rights, art. 25, and International Covenant on Civil and Political
Rights, art. 24. See also Convention on the Rights of the Child (New York, 20 November 1989),
United Nations, Treaty Series, vol. 1577, No. 27531, p. 3; and Human Rights Committee, general
comment No. 17 (1989), report of the Human Rights Committee, Official Records of the General
Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex VI.
311 Universal Declaration of Human Rights, arts. 8 and 19 –21; International Covenant on Civil and
Political Rights, arts. 2, 19 and 25; International Covenant on Economic, Social and Cultural
Rights, art. 13; Convention on the Elimination of All Forms of Discr imination against Women
(New York, 18 December 1979), United Nations, Treaty Series, vol. 1249, No. 20378, p. 13, art. 7;
Convention on the Rights of the Child, art. 13; and American Convention on Human Rights, arts.
23 and 25. See also Human Rights Committee, general comment No. 25 (1996), report of the
Human Rights Committee, Official Records of the General Assembly, Fifty -first Session,
Supplement No. 40 (A/51/40), vol. I, annex V. See also Rio Declaration on Environment and
Development (A/CONF.151/26/Rev.l (Vol. l)), annex I, principle 10; United Nations Framework
Convention on Climate Change (New York, 9 May 1992), United Nations, Treaty Series, vol.
1771, No. 30822, p. 107, art. 6; Paris Agreement, art. 12; Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus,
Denmark, 25 June 1998), United Nations, Treaty Series, vol. 2161, No. 37770, p. 447; and
Regional Agreement on Access to Information, Public Participation and Justice in Environmental
Matters in Latin America and the Caribbean (Escazú, Costa Rica, 4 March 2018), ibid., No. I-
56654, available from https://treaties.un.org.
312 International Covenant on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights, common art. 1. See also Human Rights Committee, general comment
No. 12 (1984), report of the Human Rights Committee, Official Records of the General Assembly,
Thirty-ninth Session, Supplement No. 40 (A/39/40 and Corr.1 and Corr.2), annex VI; and the
United Nations Declaration on the Rights of Indigenous Peoples (General Assembly resolution
61/295, annex).
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integrity of States with extensive coastlines and to small island States; at its most
extreme, sea-level rise may threaten the continued existence of some low-lying States.
In such cases, the right to self-determination could be at risk, since it is unlikely that
the whole community would be able to be relocated and remain together elsewhere,
with functioning institutions and governance capacity. In these and other cases, the
impact of sea-level rise may deprive indigenous peoples of their traditional territories
and sources of livelihoods. The potential loss of traditional territories from sea -level
rise and coastal erosion, for example, threatens the cultural survival, livelihoods and
territorial integrity of indigenous peoples.
253. It should be noted, however, that only a case -by-case enquiry, taking into
account all the relevant circumstances, would allow for an assessment of the
applicability of each of the above -mentioned rights. In particular, sea-level rise could
be considered an extreme circumstance in which derogation from human rights
obligations was permitted under several treaties, such that it might not be entirely
certain that the corresponding obligations to ensure the enjoyment of the various
rights would apply equally in such circumstances. Such an enquiry might be needed
before establishing that a right definitely applied, and to what extent.
254. The exact applicability and scope of States ’ human rights obligations would
depend on the nature of the right in question, namely whether it was a civil or political
right or an economic, social or cultural right. A deeper and more nuanced analysis
would also be necessary in this respect.
B. International humanitarian law
255. The relationship between international humanitarian law and climate change is
a subject that has been attracting growing attention, 313 but the potential applicability
of international humanitarian law to the protection of persons affected by sea -level
rise is not easy to ascertain.
256. International humanitarian law could be relevant in connection with the
protection of persons affected by sea-level rise in the event of an international or non -
international armed conflict in a territory subject to sea -level rise, a situation that
would trigger the application of this specialized body of international law, as lex
specialis over human rights law.314 That is to say, sea-level rise could occur in the
same territory where an armed conflict is taking place, or vice ver sa, and the situation
would then be governed in the first instance by the rules of international humanitarian
law.
__________________
313 See, for example, Tuiloma Neroni Slade, “International humanitarian law a nd climate change”, in
Suzannah Linton, Tim McCormack and Sandesh Sivakumaran (eds.), Asia-Pacific Perspectives on
International Humanitarian Law (Cambridge, Cambridge University Press, 2019), pp. 643 –655.
See also Karen Hulme, “Climate change and internat ional humanitarian law”, in Rosemary
Rayfuse and Shirley V. Scott (eds.), International Law in the Era of Climate Change (Cheltenham,
United Kingdom, and Northampton, Massachusetts, Edward Elgar Publishing, 2012), pp. 190 –
218, at p. 207; and Christine Bakker, “The relationship between climate change and armed conflict
in international law: does the Paris Agreement add anything new?”, Journal for Peace Processes,
vol. 2, No. 1 (first quarter, 2016), pp. 2 –3.
314 As the International Court of Justice stated in its Advisory Opinion on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory (I.C.J. Reports 2004, p. 136, at p.
178, para. 106): “As regards the relationship between international humanitarian law and human
rights law, there are thus three possible situations: some rights may be exclusively matters of
international humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law. In order to answer the question put to
it, the Court will have to take into consideration both these branches of international law, namely
human rights law and, as lex specialis, international humanitarian law.”
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257. In draft article 18 of the draft articles on the protection of persons in the event
of disasters, the Commission recognized that the dr aft articles did not apply to the
extent that the response to a disaster was governed by the rules of international
humanitarian law. As explained in the commentary, “the rules of international
humanitarian law shall be applied as lex specialis, whereas the rules contained in the
present draft articles would continue to apply ‘to the extent’ that legal issues raised
by a disaster are not covered by the rules of international humanitarian law. The
present draft articles would thus contribute to filling legal gaps in the protection of
persons affected by disasters during an armed conflict while international
humanitarian law shall prevail in situations regulated by both the draft articles and
international humanitarian law. In particular, the present draft art icles are not to be
interpreted as representing an obstacle to the ability of humanitarian organizations to
conduct, in times of armed conflict (be it international or non -international) even
when occurring concomitantly with disasters, their humanitarian activities in
accordance with the mandate assigned to them by international humanitarian law. ”315
258. In several provisions of the Geneva Conventions of 1949 and of the Protocols
additional thereto of 1977,316 reference is made to forms of humanitarian relief to be
provided during conflict or occupation even where the situations that they seek to
alleviate have not necessarily been caused by such conflict or occupation, although
they might have been exacerbated.317
259. Accordingly, if it became necessary to provide relief to people subject to the
effects of sea-level rise in a situation of armed conflict (of either international or non -
international character), such relief would be provided in accordance with th e
applicable rules of international humanitarian law. Given that a complex situation is
at issue, in which multiple vulnerabilities intersect, international humanitarian law
and disaster law would then be applicable concurrently, 318 against a backdrop of
subsidiary applicable protections afforded by international human rights law and
other relevant bodies of international law.
260. It has been recognized in the literature that people are subject to a “double
vulnerability” in many conflicts, 319 owing to the coexistence of risk factors
emanating, on the one hand, from climate -related circumstances (including sea -level
rise) and, on the other, from the conflict itself. 320 In these cases, people are
simultaneously victims of the conflict and of hardship arising f rom environmental
and climate causes, thus meriting specific forms of humanitarian assistance.
__________________
315 Commentary to draft article 18 of the draft articles on the protection of persons in the event of
disasters, Yearbook of the International Law Commission, 2016 , vol. II (Part Two), para. 49.
316 Geneva Conventions for the protection of war victims (Geneva, 12 August 1949), United Nations,
Treaty Series, vol. 75, Nos. 970–973, p. 31; and Protocols Additional to the Geneva Conventions
of 12 August 1949 (Geneva, 8 June 1977), ibid., vol. 1125, Nos. 17512–17513, p. 3.
317 In particular: Geneva Convention Relative to the Protection of Civilian Persons in Time of Wa r
(Convention IV), ibid., vol. 75, No. 973, p. 287, arts. 23, 55, 59 –61 and 63; Protocol Additional to
the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), ibid., vol. 1125, No. 17512, p. 3, arts. 17, 61–71 and
81; and Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), ibid., vol. 1125, No.
17513, p. 609, art. 18. See Hulme, “Climate change and international humanitarian law”, in
Rayfuse and Scott (eds.) International Law in the Era of Climate Change (see footnote 313
above), p. 207.
318 On international law concerning disasters, see also sect. E below, paras. 284 –305.
319 See International Committee of the Red Cross (ICRC), “ The relationship between climate change
and conflict”, 6 January 2016.
320 Katie Peters et al., “Double vulnerability: the humanitarian implications of intersecting climate
and conflict risk”, Overseas Development Institute, March 2019.
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261. In a recent report, the International Committee of the Red Cross (ICRC) points
out that while climate change does not directly cause armed conflict, its eff ects may
indirectly increase the risk of conflict by exacerbating social, economic or
environmental factors that can, in a complex interplay, ultimately lead to conflict. 321
In places already enduring armed conflicts, climate change may impede the
capabilities of the competent authorities to deal with the vulnerabilities and needs of
the civilian population.322
C. International law concerning refugees and internally displaced
persons
1. International law concerning refugees
262. To date, no receiving State has granted refugee status, in the sense of the
Convention relating to the Status of Refugees (1951), 323 based exclusively on factors
relating to climate-induced changes such as sea-level rise.324
263. The existing international regulatory framework governing refugees does not
recognize climate change, or any of its adverse effects, such as sea -level rise, as a
situation that merits the recognition of protected status, unless the specific conditions
of the existing legal definition of a refug ee discussed below are otherwise met.
264. Terms such as “climate change refugee”, “climate refugee” or “environmental
refugee” are therefore not legal terms, though often used as advocacy tools to generate
attention and mobilize civil society around the dangers of global warming. 325
265. Besides not constituting a legal category, several limits have been pointed out
regarding these terms:
(a) they may contribute to misunderstandings about the likely patterns,
timescale and nature of climate change-related movement;326
__________________
321 ICRC, When Rains Turns to Dust: Understanding and Responding to the Combined Impact of
Armed Conflicts and the Climate and Environment Crisis on People´s Lives (Geneva, 2020), p. 19.
322 Ibid., pp. 18–20.
323 Convention relating to the Status of Refugees (Geneva, 28 July 1951), United Nations, Treaty
Series, vol. 189, No. 2545, p. 137.
324 See, for instance, cases before the courts in New Zealand Courts, such as Supreme Court of New
Zealand, Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment , Case
No. [2015] NZSC 107, Judgment, 20 July 2015.
325 The notion of “environmental refugee” became popular in 1985 when Essam el -Hinnawi of UNEP
used the term in his report to designate “... th ose people who have been forced to leave their
traditional habitat, temporarily or permanently, because of a marked environmental disruption
(natural and/or triggered by people) that jeopardized their existence and/or seriously affected the
quality of their life” (Essam el-Hinnawi, Environmental Refugees (Nairobi, UNEP, 1985), p. 4).
See also François Gemenne, “How they became the human face of climate change: research and
policy interactions in the birth of the ‘environmental migration’ concept”, in Etienne Piguet et al.
(eds.), Migration and Climate Change (Cambridge, Cambridge University Press; Paris, United
Nations Educational, Scientific and Cultural Organization, 2011), pp. 225 –259, at p. 228.
326 Jane McAdam, “The relevance of international refugee law”, in Climate Change, Forced
Migration, and International Law (Oxford University Press, 2012), pp. 39 –51, at p. 40.
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(b) they may be considered offensive by those to whom they are ascribed, 327
and may be rejected because they are s een as invoking a sense of helplessness, lack
of dignity and stigmatization of the victims; 328
(c) legal scholars reject them as misnomers. 329
266. The legal definition of “refugee” status, and the rights and entitlements that it
entails, are set out in the 1951 Convention, read in conjunction with the Protocol
relating to the Status of Refugees (1967). 330 This definition governs mainly political
refugees (that is, those who are fleeing persecution) and therefore does not cover the
possibility of extending protection to persons affected by climate change, including
sea-level rise.
267. The 1951 Convention defines a refugee as any person who, “owing to a wellfounded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of
the protection of that country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such events, is unable or, owing
to such fear, is unwilling to return to it ”.331
268. The Office of the United Nations High Commissioner for Refugees
(UNHCR), 332 in its Handbook and Guidelines on Procedures and Criteria f or
Determining Refugee Status, has confirmed that victims of natural disasters are
excluded from the scope of the Convention, 333 unless the above-mentioned criteria
from the 1951 Convention are met. The same reasoning would be applicable in
relation to the adverse effects of climate change, such as sea -level rise.
269. At the regional level, both the OAU Convention Governing the Sp ecific Aspects
of Refugee Problems in Africa (1969) 334 and the Cartagena Declaration on Refugees
(1984) 335 in Latin America contain broader definitions of refugees than the 1951
Convention. However, these expanded definitions do not dispense with the difficu lty
of establishing legal causation between climate -induced changes and human activity;
__________________
327 Jane McAdam, “The normative framework of climate change -related displacement”, Brookings
Institution, 3 April 2012, pp. 1–2; and Peter Penz, “International ethical responsibilities to
‘climate change refugees’”, in Jane McAdam (ed.), Climate Change and Displacement:
Multidisciplinary Perspectives (Oxford and Portland, Oregon, Hart Publishing, 2010), pp.151 –
174, at p. 152.
328 McAdam, “The relevance of international refugee law”, in Climate Change (see footnote 326
above), p. 41.
329 Jane McAdam, “From economic refugees to climate refugees? Review of International Refugee
Law and Socio-Economic Rights: Refuge from Deprivation by Michelle Foster”, Melbourne
Journal of International Law, vol. 10, No. 2 (October 2009), pp. 579–595.
330 Protocol relating to the Status of Refugee s (New York. 31 January 1967), United Nations, Treaty
Series, vol. 606, No. 8791, p. 267.
331 Art. 1 (A) (2).
332 On UNHCR, see also paras. 395 –398 below.
333 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva,
2011), para. 39.
334 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (Addis Ababa,
10 September 1969), United Nations, Treaty Series, vol. 1001, No. 14691, p. 45.
335 Cartagena Declaration on Refugees, adopted at the Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama: Legal and Humanitarian Problems, held in
Cartagena, Colombia, on 19–22 November 1984. Available at
www.oas.org/dil/1984_Cartagena_Declaration_on_Refugees.pdf .
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for example, it is unclear who might be considered an agent of persecution in
situations of climate-induced displacement.336
270. Concerning relevant soft-law instruments or initiatives, the New York
Declaration for Refugees and Migrants, 337 adopted in 2016 by the General Assembly
at its seventy-first session, formally recognizes the link between migration, the
environment and climate change.338 Nonetheless, the New York Declaration does not
recognize a category of climate refugees or environmental refugees, and neither does
the global compact on refugees, presented by UNHCR and affirmed by the Assembly
on 17 December 2018.339
2. International law concerning internally displaced persons
271. Individuals who are displaced within their country are categorized or referred
to as “internally displaced persons” rather than refugees, and are therefore excluded
from the scope of the 1951 Convention. Instead, they fal l under the responsibility of
their country of origin, and there is no international convention regarding this
category of persons.
272. At the international level, the Guiding Principles on Internal Displacement, 340
presented to the Commission on Human Rights, 341 contain the first international
standards developed for internally displaced persons, and collate all the existing
international principles relevant to internally displaced persons into a single
instrument. The Guiding Principles do not create a ne w legal status for internally
displaced persons – who enjoy the same rights and freedoms as other persons in their
country – but seek to address their specific needs. 342
273. The Guiding Principles define internally displaced persons as “persons or
groups of persons who have been forced or obliged to free or to leave their homes or
places of habitual residence, in particular as a result of or in order to avoid the effects
of armed conflict, situations of generalized violence, violations of human rights or
natural or human-made disasters, and who have not crossed an internationally
recognized State border”.343 This definition is not a legal definition but a “descriptive
identification of the category of persons whose needs are the concern of the Guiding
Principles”.344
274. The defining characteristics of internal displacement are that the movement is
coerced or forced and that the movement occurs within national borders. Under the
Guiding Principles, States are called upon to take measures to prevent internal
displacement, to uphold the rights of the individuals who are displaced and to support
durable solutions.
275. While the Guiding Principles are, in principle, applicable to persons who have
been displaced internally owing to the adverse effects of climate change, such as sealevel
rise, they might present some limits:
__________________
336 Environmental Justice Foundation, “Falling through the cracks: a briefing on climate change,
displacement and international governance frameworks” (2014), p. 7.
337 General Assembly resolution 71/1 of 19 September 2016.
338 Ibid., paras. 1 and 43.
339 General Assembly resolution 73/151 of 17 December 2018.
340 E/CN.4/1998/53/Add.2, annex.
341 See Commission on Human Rights resolution 2004/55.
342 Roberta Cohen, “The Guiding Principles on Internal Displacement: a new instrument for
international organizations and NGOs”, Forced Migration Review, No. 2 (August 2998), p. 2.
343 E/CN.4/1998/53/Add.2, annex, para. 2.
344 Walter Kälin, Guiding Principles on Internal Displacement – Annotations, (Washington, D.C.,
American Society of International Law, 2008) , pp. 3–5.
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(a) as the effects of climate change, such as rising sea levels, can occur over
months, years or even decades, it is difficult to determine whether displacement is
voluntary or coerced and thus whether the Guiding Principles are applicable; 345
(b) it is difficult to determine when an area becomes uninhabitable. In the
context of small island States affected by sea -level rise, for instance, it is likely that
as conditions deteriorated, individuals would leave long before the islands were
submerged to avoid the longer-term effects, because of the salinization of water
supplies and arable land and because of the destruction of infrastructure; 346
(c) slow-onset disasters and the negative effects of climate change may not
necessarily cause displacement, but may prompt people to consider moving as a way
to adapt to the changing environment and may explain why people move to regions
with better living conditions and income opportunities. Howe ver, if areas become
uninhabitable over time because of further deterioration, eventually leading to
complete desertification, permanent flooding of coastal zones or similar situations,
population movements will amount to forced displacement and become per manent;347
(d) the intricate intersection of environmental and economic drivers of
population movements makes it hard to apply the Guiding Principles, which are based
on the distinction between voluntary and involuntary movement. It is challenging to
determine when climate-induced changes lead to the loss of livelihoods and people
move in order to find work;348
(e) the Guiding Principles deliberately exclude those displaced for economic
reasons, yet most human mobility related to climate change features a s trong
economic dimension centred around the loss of livelihoods and reductions in
household income;349
(f) displacement is likely to be slow and to occur in places where seasonal
migration has been used as a livelihood strategy in the past. In some countri es,
seasonal labour migration and temporary displacement because of disasters is
common. In such contexts, it becomes difficult to make the distinction between
migration used as a livelihood strategy and displacement. 350
276. At the regional level, the African Union Convention for the Protection and
Assistance of Internally Displaced Persons in Africa (Kampala Convention), of 2009,
seeks to fill the legal protection gap regarding internal displacement in international
law.351 Furthermore, its article V (4) recognizes the link between climate change and
displacement, providing that States parties should take measures to protect and assist
persons who have been internally displaced due to natural or human made disasters,
including climate change”. The Secretary-General’s High-Level Panel on Internal
Displacement, in a report of September 2021 entitled Shining a Light on Internal
Displacement: A Vision for the Future,352 further recognized that link and highlighted
__________________
345 See Elizabeth Ferris, Erin Mooney and Chareen Stark, From Responsibility to Response: Assessing
National Approaches to Internal Displacement (Brookings Institution–London School of
Economics Project on Internal Displacement, Washington, D.C., 2011), p. 119.
346 Ibid., p. 124.
347 Ibid., p. 123.
348 Ibid., p. 124.
349 Environmental Justice Foundation, “Falling through the cracks” (see footnote 336 above), p. 9.
350 See Ferris, Mooney and Stark, From Responsibility to Response (see footnote 345 above), p. 125.
351 African Union Convention for the Protection and Assistance of Internally Displaced Persons in
Africa (Kampala, 23 October 2009), United Nations, Treaty Series, vol. 3014, No. 52375, p. 3. See
also Mehari Taddele Maru, “The Kampala Convention and its contribution in filling the protection
gap in international law”, Journal of Internal Displacement, vol. 1, No. 1 (July 2011), pp. 91–130,
at p. 96.
352 United Nations, 2021.
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the importance of finding durable solutions, s trengthening prevention and improving
protection and assistance.
D. International law concerning migrants
277. Those displaced by sea-level rise have been described as “climate” or
“environmental” displaced persons or migrants. According to the Intern ational
Organization for Migration (IOM), 353 “[e]nvironmental migrants are people or
groups, who, for compelling reasons of sudden or progressive changes in the
environment that adversely affect their lives or living conditions, are obliged to leave
their habitual homes, or chose to do so, either temporarily or permanently, and who
move either within their country or abroad ”.354
278. The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families, adopted by the General Assembly on 18
December 1990,355 deals mainly with economic migrants, as it defines a “migrant
worker” as “a person who is to be engaged, is engaged or has been engaged in a
remunerated activity in a State of which he or she is not a natio nal”.356
279. However, there have been recent soft-law developments concerning migration
that are relevant to displacement caused by the adverse effects of climate change,
including sea-level rise. On 19 September 2016, the General Assembly convened a
high-level meeting on addressing large movements of refugees and migrants, with the
aim of improving the response of the international community. At that meeting, all
193 Member States of the United Nations unanimously adopted the New York
Declaration for Refugees and Migrants.357
280. Annex II to the New York Declaration set in motion a process of
intergovernmental consultations and negotiations towards the development of a non -
binding agreement for safe, orderly and regular migration. This process concluded on
10 December 2018 at an intergovernmental conference held in Marrakech, Morocco,
with the adoption, by a majority of Member States, of the Global Compact for Safe,
Orderly and Regular Migration, which was followed by its formal endorsement by
the General Assembly on 19 December 2018.358
281. Under the Global Compact for Migration, States will:
(a) develop adaptation and resilience strategies to sudden -onset and slowonset
natural disasters, the adverse effects of climate change, and environmental
degradation, such as desertification, land degradation, drought and sea -level rise,
taking into account the potential implications for migration, while recognizing that
adaptation in the country of origin is a priority; 359
(b) cooperate to identify, develop and st rengthen solutions for migrants
compelled to leave their countries of origin owing to slow -onset natural disasters, the
adverse effects of climate change, and environmental degradation, such as
desertification, land degradation, drought and sea -level rise, including by devising
__________________
353 On IOM, see also paras. 399–401 below.
354 Oli Brown, “Migration and climate change”, IOM Migration Research Series, No. 31 (Geneva ,
IOM, 2008), p. 15.
355 United Nations, Treaty Series, vol. 2220, No. 39481, p. 3.
356 Art. 2 (1).
357 General Assembly resolution 71/1.
358 General Assembly resolution 73/195 of 19 December 2018. See also A/CONF.231/7.
359 General Assembly resolution 73/195, annex, para. 18 (i).
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planned relocation and visa options, in cases where adaptation in or return to their
country of origin is not possible.360
282. The Global Compact is therefore significant for its recognition of disasters and
climate change, including sea-level rise – which is expressly mentioned – as drivers
of cross-border human mobility.
283. Also under the Global Compact, States will: 361
(a) strengthen joint analysis and sharing of information to better map,
understand, predict and address migration movements, such as those that may result
from sudden-onset and slow-onset natural disasters, the adverse effects of climate
change, environmental degradation, as well as other precarious situations, while
ensuring the effective respect for and protection and fulfilment of the human rights
of all migrants;
(b) integrate displacement considerations into disaster preparedness strategies
and promote cooperation with neighbouring and other relevant countries to prepare
for early warning, contingency planning, stockpiling, coordination mechanisms,
evacuation planning, reception and assistance arrangements, and public information;
(c) harmonize and develop approaches and mechanisms at the subregional and
regional levels to address the vulnerabilities of persons affected by sudden -onset and
slow-onset natural disasters, by ensuring that they have access to humanitarian
assistance that meets their essential needs with full respect for their rights wherever
they are, and by promoting sustainable outcomes that increase resilience and self -
reliance, taking into account the capacities of all countries involved;
(d) develop coherent approaches to address the chal lenges of migration
movements in the context of sudden -onset and slow-onset natural disasters, including
by taking into consideration relevant recommendations from State -led consultative
processes, such as the Agenda for the Protection of Cross -Border Displaced Persons
in the Context of Disasters and Climate Change, and the Platform on Disaster
Displacement.
E. International law concerning disasters
284. There is no generally accepted legal definition of the term “disaster” in
international law.362 Nonetheless, definitions, where provided in treaties, do not differ
in any significant manner. This term is commonly defined as a serious disruption of
the functioning of society, causing significant, widespread human, material, ec onomic
or environmental losses, whether caused by accident, nature or human activity, and
whether developing suddenly or as the result of complex, long -term processes.363
__________________
360 Ibid., para. 21 (h).
361 Ibid., para. 18 (h) and (j)–(l).
362 A/CN.4/598, para. 46.
363 For example, in the Tampere Convention on the Provision of Telecommunication Resources for
Disaster Mitigation and Relief Operations (Tampere, 18 June 1998; United Nations, Treaty Series,
vol. 2296, No. 4096, p. 5, art. 1 (6)), the term “disaster” is defin ed as “a serious disruption of the
functioning of society, posing a significant, widespread threat to human life, health, property or
the environment, whether caused by accident, nature or human activity, and whether developing
suddenly or as the result of complex, long-term processes”; and under the Association of
Southeast Asian Nations (ASEAN) Agreement on Disaster Management and Emergency Response
(Ventiane, 26 July 2005; Asean Documents Series 2005, p. 157, art. 1 (3)), the term “disaster”
means “a serious disruption of the functioning of a community or a society causing widespread
human, material, economic or environmental losses”.
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285. Activities for the protection of persons in the event of disasters have generally
been approached pragmatically, as evidenced by international law -making and
organizational developments in disaster governance, such as the steady growth of
bilateral agreements and of regulatory frameworks under the aegis of the United
Nations and entities such as ICRC.364
286. Furthermore, there are several instruments and initiatives regarding the
protection of persons and assistance in the event of disasters that are of potential
relevance in the context of the protection of persons affected by sea -level rise.
287. As a preliminary comment, it is important to note that while disaster law
provides for immediate or short-term responses, the consequences of sea-level rise
might call for more long-term responses. That being said, several instruments and
initiatives may be relevant to the protection of persons in the context of sea -level
rise,365 such as the Commission’s 2016 draft articles on the protection of persons in
the event of disasters,366 the Sendai Framework for Disaster Risk Reduction 2015 –
2030,367 and the Nansen Initiative and its Agenda for the Protection of Cross -Border
Displaced Persons in the Context of Disasters and Climate Change. 368
1. Draft articles on the protection of persons in the event of disasters (2016)
288. The draft articles on the protection of persons in the event of disasters, adopted
by the Commission in 2016,369 make it clear that sea-level rise is a type of disaster.
According to the commentary, “the draft articles apply equally to sudden-onset events
(such as an earthquake or tsunami) and to slow-onset events (such as drought or sealevel
rise), as well as frequent small-scale events (floods or landslides) ” (emphasis
added).370
289. This means that these 2016 draft articles are applicable to the protection of
persons in relation to sea-level rise. Nevertheless, despite being a disaster comparable
to other calamitous events, sea-level rise has specificities that can and should be
considered when applying the 2016 draft articles to individual cases. Sea -level rise is
a slow-onset event, which can create long-term consequences that might be difficult,
if not impossible, to overturn, such as the loss of territory and the salinization of
otherwise fresh water. Although the 2016 draft articles were designed to be flexible
in order to take account of the nature and contours of different types of disasters, the
irreversibility of some of the effects of sea-level rise and the impossibility of reverting
to the status quo ante might justify specific forms of application of some of the 2016
draft articles and the need for additional forms of protection.
290. Given that the 2016 draft articles have the ultimate objective of meeting “the
essential needs of the persons concerned, with full respect for their rights ”,371 even
the draft articles that formally apply between States or between States and other actors
(such as those dealing with the duty to cooperate, the duty of the affected State to
seek assistance where its capacity is manifestly exceeded, the termination of external
__________________
364 A/CN.4/598, para. 17.
365 For a list of relevant instruments applicable to the protection of persons in the event of disasters,
compiled by the Secretariat in 2008, see A/CN.4/590/Add.2.
366 Yearbook of the International Law Commission, 2016 , vol. II (Part Two), para. 48.
367 General Assembly resolution 69/283 of 3 June 2015, annex II.
368 Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons in the Context of
Disasters and Climate Change, vol. 1 (December 2015).
369 Yearbook of the International Law Commission, 2016 , vol. II (Part Two), para. 48.
370 Para. (4) of the commentary to draft article 3, ibid. para. 49.
371 Draft article 2, ibid., para. 48.
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assistance, and conditions placed by the affected State on the provision of external
assistance)372 are intended ultimately to achieve the objective of protecting persons.
291. According to the 2016 draft articles, when responding to sea -level rise or
reducing the risks associated therewith, States, as well as other relevant actors, must
respect and protect human dignity and human rights. 373 They must also act “in
accordance with the principles of humanity, neutrality and impartiality, and on the
basis of non-discrimination, while taking into account the needs of the particularly
vulnerable”.374
292. Similarly, as “[e]ffective international cooperation is indispensable for the
protection of persons in the event of disasters ”,375 all States, not only those affected
by sea-level rise, have a general duty to cooperate among themselves – and with other
actors, as appropriate – to reduce the risks of and to respond to this phenomenon. 376
This general duty to cooperate is further addressed in different circumstance s
throughout the 2016 draft articles, especially in draft articles 8 and 9. 377
293. The 2016 draft articles, by including within their scope the phenomenon of sea -
level rise, help to clarify the nature, content and application of a set of rights and
duties in relation to the protection of persons affected by rising sea levels. These rights
and duties apply differently to States directly affected, to States not directly affected,
and to other potential or actual assisting actors. They also apply on two distin ct axes:
“the rights and obligations of States in relation to one another ” (including also other
relevant actors) “and the rights and obligations of States in relation to persons in need
of protection”.378
2. Sendai Framework for Disaster Risk Reduction 2015–2030
294. The Sendai Framework for Disaster Risk Reduction 2015 –2030 was adopted by
187 States on 18 March 2015, and endorsed by the General Assembly on 3 June
2015, 379 to build on the Hyogo Framework for Action 2005 –2015: Building the
Resilience of Nations and Communities to Disasters.380 The objective of the Sendai
Framework is to prevent new and reduce disaster risk by 2030.
295. Several of the Sendai Framework ’s guiding principles may be considered
relevant to the protection of persons affected by sea-level rise:381
(a) each State has the primary responsibility to prevent and reduce disaster
risk, including through international, regional, subregional, transboundary and
bilateral cooperation;
(b) disaster risk reduction requires that r esponsibilities be shared by central
Governments and relevant national authorities, sectors and stakeholders, as
appropriate to their national circumstances and systems of governance;
__________________
372 Para. (1) of the commentary to draft article 7, para. (3) of the commentary to draft article 8, para.
(1) of the commentary to draft article 11, para. (1) of the commentary to draft article 14, and para.
(4) of the commentary to draft article 17, ibid. para. 49.
373 Draft articles 4 and 5, ibid., para. 48.
374 Draft article 6, ibid., para. 48.
375 Para. (1) of the commentary to draft article 7, ibid., para. 49.
376 See draft article 7, ibid., para. 48.
377 Para. (6) of the commentary to draft article 7, ibid., para. 49.
378 Para. (2) of the commentary to draft article 1, ibid., para. 49.
379 General Assembly resolution 69/283. The United Nations Office for Disaster Risk Reduction is the
United Nations focal point for disaster risk reduction and supports the implementation of the
Sendai Framework.
380 A/CONF.206/6 and Corr.1, chap. I, resolution 2.
381 General Assembly resolution 69/283 annex II, para. 19 (a), (b), (l) and (m).
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(c) an effective and meaningful global partnership and the further
strengthening of international cooperation, including the fulfilment of respective
commitments of official development assistance by developed countries, are essential
for effective disaster risk management;
(d) developing countries, in particular the least developed countries, small
island developing States, landlocked developing countries and African countries, as
well as middle-income and other countries facing specific disaster risk challenges,
need adequate, sustainable and timely provision of sup port, including through
finance, technology transfer and capacity -building from developed countries and
partners tailored to their needs and priorities, as identified by them.
296. Several of the Sendai Framework’s priorities for action may also be deemed
relevant to the protection of persons affected by sea -level rise:
(a) the Sendai Framework recognizes the need to “find durable solutions in
the post-disaster phase and to empower and assist people disproportionately affected
by disasters”,382 and highlights the importance of formulating public policies on the
“relocation, where possible, of human settlements in disaster risk -prone zones”383 as
a potential preventive or adaptive measure;
(b) the Sendai Framework highlights the importance of encouraging “the
adoption of policies and programmes addressing disaster-induced human mobility to
strengthen the resilience of affected people and that of host communities, in
accordance with national laws and circumstances ”.384
3. Nansen Initiative and its Agenda for the Protection of Cross-Border Displaced
Persons in the Context of Disasters and Climate Change
297. The Nansen Initiative was a State-led, bottom-up consultative process intended
to identify effective practices and build consensus on key principles and e lements to
address the protection and assistance needs of persons displaced across borders in the
context of disasters, including the adverse effects of climate change. It was based
upon a pledge by the Governments of Switzerland and Norway, supported by s everal
States, to cooperate with interested States and other relevant stakeholders, and was
launched in October 2012.385
298. The Nansen Initiative identified a number of lessons learned, over the course of
the consultative process that it conducted worldwi de, on how to protect displaced
persons in the context of disasters and the effects of climate change, among which the
following may be highlighted for their relevance to the protection of persons affected
by sea-level rise:386
(a) in the absence of clear provisions in international law, some States have
developed measures that allow them to admit foreigners from disaster -affected
countries, at least temporarily. Such measures include admitting cross -border
disaster-displaced persons using their regular mig ration laws by, for instance, giving
priority to immigration applications submitted by individuals from disaster -affected
countries, or by expanding the use of temporary work quotas; adopting agreements
allowing the free movement of persons between countri es in the region; taking
__________________
382 Ibid., para. 30 (j).
383 Ibid., para. 27 (k).
384 Ibid., para. 30 (l).
385 Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons (see footnote 368
above).
386 Nansen Initiative, “Fleeing floods, earthquakes, droughts and rising sea levels: 12 lessons learned
about protecting people displaced by disasters and the effects of climate change” (November
2015).
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exceptional migration measures, such as providing for a humanitarian visa or
temporary protection status; and using refugee law when the effects of a disaster
generate violence and persecution;387
(b) States of origin have the responsibility to support communities to relocate
to safer areas, before or after a disaster strikes. Planned relocation is generally
considered a last resort, and today takes place within countries. It is more likely to be
sustainable if it is undertaken in direct consultation with affected people and host
communities, while taking into account cultural values and psychological attachments
to the original place of residence and ensuring adequate livelihood opportunities,
basic services and housing in the new l ocation;388
(c) States of origin have the responsibility to address the needs of internally
displaced persons in disaster contexts. A lack of durable solutions allowing them to
rebuild their lives in a sustainable way either after returning back home or in another
part of their country is one reason why internally displaced persons may subsequently
move abroad to seek assistance and protection. 389
299. The Nansen Initiative also resulted in 2015 in the Agenda for the Protection of
Cross-Border Displaced Persons in the Context of Disasters and Climate Change
(Protection Agenda),390 a non-binding text in which key principles and examples of
effective State practice worldwide are compiled and analysed, and a toolbox provided
of policy options for action.
300. Under the Protection Agenda, the term “disaster displacement” refers to
“situations where people are forced or obliged to leave their homes or places of
habitual residence as a result of a disaster or in order to avoid the impact of an
immediate and foreseeable natural hazard.”391 Disaster displacement “may take the
form of spontaneous flight, an evacuation ordered or enforced by authorities or an
involuntary planned relocation process. Such displacement can occur within a country
… or across international borders”.392
301. According to the Protection Agenda, the provision of protection to cross -border
disaster-displaced persons can take two forms:393
(a) States can admit such persons to the territory of the receiving country and
allow them to stay at least temporarily;
(b) States can refrain from returning foreigners to a disaster -affected country
if they were already present in the receiving country when the disaster occurred.
302. The need to facilitate “migration with dignity” in the context of natural hazards
and climate change as an adaptation strategy is stressed in the Protection Agenda, 394
and the following effective practices, inter alia, are listed for States to consider for
that purpose:
(a) reviewing existing bilateral, subregional and regional migration
agreements to determine how they could facilitate migration as an adaptation
measure, including issues such as simplified travel and customs documents. In the
__________________
387 Ibid., p. 20.
388 Ibid., p. 30.
389 Ibid., p. 31.
390 Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons (see footnote 368
above).
391 Ibid., para. 16.
392 Ibid., para. 18.
393 See ibid., paras. 30–34.
394 Ibid., paras. 87–93.
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absence of such agreements, negotiating and implementing new agreements to
facilitate migration with dignity;
(b) developing or adapting national policies providing for residency permit
quotas or seasonal worker programmes in accordance with international labour
standards to prioritize people from countries or areas facing the effects of na tural
hazards or climate change.
303. It is recognized in the Protection Agenda that the possibility for permanent
migration is particularly important for low -lying small island States and other
countries confronting substantial loss of territory or other adverse effects of climate
change that increasingly make large tracts of land uninhabitable. 395
304. The importance of protecting internally displaced persons is stressed in the
Protection Agenda, as is the responsibility of States to find durable solution s for them.
Such solutions include voluntary return with sustainable reintegration at the place
where displaced persons lived before the disaster, local integration at the location
where people were displaced, or settlement elsewhere within their country. 396
305. The Platform on Disaster Displacement397 is a State-led initiative whose main
objective is to follow up on the work of the Nansen Initiative by implementing the
recommendations of the Protection Agenda to work towards better protection for
people displaced across borders in the context of disasters and climate change. The
Platform seeks, inter alia, to promote policy and normative development to address
gaps in the protection of persons at risk of displacement or displaced across borders.
F. International law concerning climate change
306. International law concerning climate change consists of a number of widely
ratified binding international agreements, most notably the United Nations
Framework Convention on Climate Change 1992) and the Paris Agreement (2015).
307. While the climate change legal regime focuses on mitigation and adaptation
measures, the issue of the protection of persons affected by the adverse effects of
climate change, including sea-level rise, has also been a part of the discussions in the
context of the United Nations Framework Convention on Climate Change and the
Paris Agreement, essentially through the use of the concept of “human mobility” in
the context of climate change. Human mobility can be seen not only as a consequence
of climate change, but also as a form of adaptation to it. The term “human mobility”
covers three types of movement induced by climate change: migration, displacement
and planned relocation.
308. This term “human mobility” has gradually taken hold in the context of the
international legal framework on climate change and has now been explicitly included
in the language of the sessions of the Conference of the Parties to the United Nations
Framework Convention on Climate Change, as well as under the Warsaw
International Mechanism for Loss and Damage associated with Climate Change
Impacts.
309. References to human mobility in the context of climate change negotiations first
appeared in documents for adoption by the Conference of the Parties at its fifteenth
__________________
395 Ibid., para. 90.
396 Ibid., para. 102.
397 On the Platform on Disaster Displacement, see also paras. 407–408 below.
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session that prepared the elements of a new climate agreement. 398 In the Cancun
Agreements, adopted in 2010 by the Conference of the Parties at its sixteenth session,
all Parties were invited “to enhance action on adaptation under the Cancun Adaptation
Framework … by undertaking, inter alia, … [m]easures to enhance understanding,
coordination and cooperation with regard to climate change induced displacement,
migration and planned relocation, where appropriate, at the national, regional and
international levels”.399
310. The language of human mobility in the context of climate change was explicitly
adopted by the Conference of the Parties at its eighteenth session, in 2012, in its
decision 3/CP.18, in which it acknowledged the further work needed to advance the
understanding of and expertise on loss and damage, including enhancing the
understanding of “[h]ow impacts of climate change are affecting patterns of
migration, displacement and human mobility ”.400
311. The adoption of the Paris Agreement in 2015 rendered climate migration more
visible by providing for the creation of the Task Force on Displacement, 401 which was
entrusted with developing recommendations for integrated approaches to avert,
minimize and address displacement related to the adverse impacts of climate
change. 402 The Executive Committee of the Warsaw International Mechanism for
Loss and Damage associated with Climate Change Impacts was responsible for
operationalizing the Task Force.403 One of the strategic workstreams of the five -year
rolling workplan of the Executive Committee concerns “enhanced cooperation and
facilitation in relation to human mobility, including migration, displacement and
planned relocation”.404
312. At its twenty-sixth session, held in October and November 2021, the Conference
of the Parties adopted the Glasgow Climate Pact, a package of decisions, whose
preamble includes the following: “[a]cknowledging that climate change is a common
concern of humankind, Parties should, when taking action to address climate change,
respect, promote and consider their respective obligations on human rights, the right
to health, the rights of indigenous peoples, local communities, migrants, children,
persons with disabilities and people in vulnerable situations and the right to
development, as well as gender equality, empowerment of women and
intergenerational equity.”405
__________________
398 Olivia Serdeczny, What Does It Mean to “Address Displacement” under the UNFCCC? An
Analysis of the Negotiation Process and the Role of Research (Bonn, German Development
Institute, 2017), p. 7.
399 Report of the Conference of the Parties to the United Nations Framework Convention on Climate
Change on its sixteenth session, held in Cancun from 29 November to 10 December 2010,
addendum: decisions adopted by the Conference of the Parties, decision 1/CP.16
(FCCC/CP/2010/7/Add.1), para. 14 (f).
400 Report of the Conference of the Parties to the United Nations Framework Convention on Climate
Change on its eighteenth session, held in Doha from 26 November to 8 December 2012,
addendum: decisions adopted by the Conference of the Parties, decision 3/CP.18 (see
FCCC/CP/2012/8/Add.1), para. 7 (vi).
401 On the Task Force on Displacement, see also paras. 405–406 below.
402 Report of the Conference of the Parties to the United Nations Framework Convention on Climate
Change on its twenty-first session, held in Paris from 30 November to 13 December 2015,
addendum: decisions adopted by the Conference of the Par ties, decision 1/CP.21
(FCCC/CP/2015/10/Add.1), para. 49.
403 Ibid., para. 50.
404 FCCC/SB/2017/1/Add.1, annex.
405 For an advance unedited version of the Glasgow Climate Pact, see
https://unfccc.int/sites/default/files/resource/cop26_auv_2f_cover_decision.pdf (accessed 20
February 2022).
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313. In the Glasgow Climate Pact, States also reaffirmed their duty to fulfil the
pledge of developed countries to mobilize jointly 100 billion dollars annually. The
“Climate finance delivery plan: meeting the US$100 billion goal” was agreed in order
to scale up financial resources to achieve a balance between adaptation and
mitigation. These pledges are particularly important for the work of the Executive
Committee of the Warsaw International Mecha nism for Loss and Damage and the
Task Force on Displacement, since increasing access to sustainable and predictable
climate financing to avert, minimize and address displacement related to the adverse
effects of climate change has remained a challenging is sue.406
314. The term “human mobility” has also been used in the context of international
law concerning disasters, including in the Hyogo Framework for Action 2005 –
2015,407 the Sendai Framework for Disaster Risk Reduction 2015 –2030,408 and the
Nansen Initiative’s Agenda for the Protection of Cr oss-Border Displaced Persons in
the Context of Disasters and Climate Change (2015). 409 The Platform on Disaster
Displacement, whose main objective is to follow up on the work of the Nansen
Initiative by implementing the recommendations of the Protective Age nda, seeks,
inter alia, to promote the mainstreaming of human mobility challenges into, and
across, relevant policy and action areas. 410
315. “Human mobility” is thus an umbrella term that has been used in the context of
the climate change and disaster frameworks, which refers to all aspects of the
movement of people (individuals and groups) in space and time; that is, encompassing
involuntary internal and cross-border displacement, voluntary internal and cross -
border migration, and planned relocation with t he consent of those concerned.411 It
reflects a wider range of movement of persons than the term “migration”, and covers
the broad range of types of movement that can take place in the context of climate
change.412 It is an academic,413 an analytical,414 and an advocacy tool.415
316. As regards the legal value of the term “human mobility”, the term has, so far,
been mainstreamed into soft-law instruments only. It is not a legal term or a term with
__________________
406 See, for instance, https://disasterdisplacement.org/staff-member/pdd-key-messages-cop26
(accessed 20 February 2022).
407 A/CONF.206/6 and Corr.1, chap. I, resolution 2.
408 General Assembly resolution 69/283, annex II, para. 30.
409 Nansen Initiative, Agenda for the Protection of Cross-Border Displaced Persons (see footnote 368
above), para. 22.
410 Platform on Disaster Displacement, “Update on 2017 progress”, July 2018, p. 1. Available at
https://agendaforhumanity.org/sites/default/files/resources/2018/Jul/2018%20Initiatives%20Updat
es_PDD_final_20%20June_1.pdf (accessed 20 February 2022).
411 Advisory Group on Climate Change and Human Mobility (2015), “Human mobility in the context
of climate change: elements for the UNFCCC Paris Agreement”, March 2015, p. 2, available at
https://www.unhcr.org/5550ab359.pdf (accessed 20 February 2022); and IOM, “Glossary on
Migration”, International Migration Law, No. 34 (Geneva, 2018). See also strategic workstream
(d) of the five-year rolling workplan of the Executive Committee of the Warsaw International
Mechanism for Loss and Damage: “Enhanced cooperation and facilitation in relation to human
mobility, including migration, displacement and planned relocation” ( FCCC/SB/2017/1/Add.1,
annex).
412 IOM, “Glossary on migration” (see footnote 411 above).
413 For a literature review, see Serdeczny, What Does It Mean to “Address Displacement” under the
UNFCCC? (see footnote 398 above), pp. 13–18.
414 See, for instance, United Nations Development Programme, Human Development Report 2009:
Overcoming Barriers – Human Mobility and Development (Basingstoke and New York, Palgrave
Macmillan, 2009).
415 For instance, UNU and the Nansen Initiative, in collaborat ion with IOM, UNHCR and a number of
other organizations, have advocated the integration of human mobility issues into national
adaptation plans. See Koko Warner et al., “Integrating human mobility issues within national
adaptation plans”, UNU Institute for Environment and Human Security Publication Series, Policy
Brief No. 9 (Bonn, UNU Institute for Environment and Human Security, 2014).
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a specific legal content. 416 It is therefore not a legal concept or framework for
analysis, but it is worth referencing since it has been used frequently in the context
of the protection of persons affected by climate change and its adverse effects,
including sea-level rise.
III. Mapping State practice and the practice of relevant
international organizations and bodies regarding the
protection of persons affected by sea-level rise
317. The States most affected by the impact of sea -level rise first attempted to bring
the issue to the attention of the internatio nal community some 30 years ago, through
the Malé Declaration on Global Warming and Sea -Level Rise of 1989.417
318. Because sea-level rise – although already happening, as proven by scientific
data – is still a relatively new phenomenon and, as mentioned ab ove, its acceleration
will have different impacts through time and space, many States seem only now to be
beginning to consider the measures required to protect persons affected by it.
Furthermore, some of the emerging practice that may be identified is no t necessarily
specific to sea-level rise, since it may cover the wider phenomena of disasters and
climate change.
319. While a preliminary assessment of State practice shows that it is still scarce at
the global level, it is increasingly more developed in the States and regions that are
the most exposed to sea-level rise and thus that are already feeling its effects on their
territory, such as Pacific small island States and States with low -lying coastal areas.
320. Certain third States that might be exposed to an indirect impact, from crossborder
displacement of persons affected by the adverse effects of climate change,
including sea-level rise, are also commencing to take legal or policy measures to
prepare for such a possibility.
321. International organizations and other bodies with relevant mandates in the field
of human rights, displacement, migration, labour, refugees, statelessness, climate
change and financing have been taking a more proactive approach in order to promote
tools that would allow States to be better prepared with regard to issues related to
human rights and human mobility in the face of climate displacement, including as a
result of sea-level rise.
322. In spite of the general support for the inclusion of the subtopic of the protect ion
of persons affected by sea-level rise in the current work of the Commission, and
following the Commission’s requests in chapter III of its annual reports of 2019 418
and 2021 419 for information from States, international organizations and other
relevant bodies, only a few replies have been received so far. 420 More time appears to
__________________
416 Certain domestic laws and policies do adopt the term, however. See, for instance, Fiji, “Planned
relocation guidelines: a framework to undertake climate change related relocation”, available at
https://cop23.com.fj/wp-content/uploads/2018/12/CC-PRG-BOOKLET-22-1.pdf (accessed 20
February 2022).
417 A/C.2/44/7, annex.
418 A/74/10, paras. 31–33.
419 A/76/10, para. 26.
420 Submissions have been received from Belgium (23 December 2021), Fiji (on behalf of the
members of the Pacific Islands Forum, namely Australia, Fiji, Kiribati, Marshall Islands,
Micronesia (Federated States of), Nauru, New Zealand, Palau, Papua New Guinea, Samoa,
Solomon Islands, Tonga, Tuvalu and Vanuatu) (31 December 2021), Liechtenstein (12 October
2021), Morocco (22 December 2021), the Russian Federation (17 December 2020) and Tuvalu (on
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be needed for States, international organizations and other relevant bodies to provide
the Commission with the necessary supporting material to complete its task. Further
information would therefore be welcomed, and could be the subject of a more detailed
study in the future.
323. A very preliminary, merely illustrative and non -exhaustive mapping exercise of
the practice of States, international organizations and other relevant bodies is
presented in the following sections, therefore, based on the replies received and on
further research on the basis of publicly available information, for the purposes of
highlighting examples of relevant practice, including of practice not specific to sea -
level rise that arises in the context of the protection of persons in the context of
disasters and climate change.
324. It is hoped that, at a later stage, based on further submissions received from
States, international organizations and other relevant bodies, and possibly on a
memorandum by the Secretariat and/or contribution papers by members of the Study
Group, a more detailed analysis of the emerging practice with regar d to the protection
of persons affected by sea-level rise may be carried out.
325. The following sections therefore contain some examples of practice by directly
and indirectly affected States and by international organizations and other relevant
bodies, in order to highlight emerging practice relevant for the purposes of the
protection of persons affected by sea-level rise.
A. State practice regarding the protection of persons affected by sea -
level rise
326. The present section contains examples from small island States directly affected
by sea-level rise, from States with low-lying coastal areas and from third States that
might be indirectly affected by the movement of persons affected by sea -level rise.
1. Practice of small island States
327. The submission of Fiji on behalf of the Pacific Islands Forum, 421 an international
organization comprising 18 States and territories, 422 contains information provided by
individual Forum members and relevant regional organizations. While not exhaus tive,
the submission serves to “demonstrate examples of national and regional practice
across the region”. The information provided is representative of national practice
and positions of individual Forum members, and therefore do not reflect a collective
position of the Forum unless stated otherwise.
328. According to the submission, the members of the Forum have been at the
“forefront of tackling issues such as the protection of persons affected by sea -level
rise through climate change and disaster resili ence efforts”. States such as Kiribati,
the Marshall Islands and Tuvalu “are taking urgent actions to protect their people who
live the reality of climate change on a daily basis. ”
__________________
behalf of the members of the Pacific Islands Forum) (30 December 2019), and from ECLAC (3
January 2022), FAO (30 December 2021), IMO (11 October 2021), UNEP (6 December 2021) and
the United Nations Framework Convention on Climate Change (30 December 2021). The
submissions are available at https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
421 The submission of Fiji (on behalf of the members of the Pacific Islands Forum) is accompanied by
supplementary reference documents, also available at
https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
422 Australia, Cook Islands, Fiji, French Polynesia, Kiribati, Marshall Islands, Micronesia (Federated
States of), Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, Samoa,
Solomon Islands, Tonga, Tuvalu and Vanuatu.
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329. Most recently, the leaders of Forum members have prepared and endorsed
various declarations regarding climate change and the impact of sea -level rise, such
as the Boe Declaration on Regional Security (2018) and the Kainaki II Declaration
for Urgent Climate Action Now (2019). 423 In 2021, leaders endorsed the Declaration
on Preserving Maritime Zones in the Face of Climate Change -related Sea-Level Rise,
recognizing “the threats of climate change and sea-level rise as the defining issue that
imperils the livelihoods and well-being of our peoples and undermines the full
realization of a peaceful, secure and sustainable future for our region ”.
330. The subtopic of the protection of persons affected by sea -level rise is a “complex
[issue] of vital importance to [Forum] [m]embers and the entire global community,
and … more time is needed to work through [it]”. For Forum members, due
consideration of the subtopic “should be guided and informed by applicable principles
and norms of international law and relevant international frameworks and standards
to address the need for an effective response to the urgent threats posed by sea -level
rise”.
331. There follows a short summary of the submission of Fiji to the Commission on
behalf of the members of the Pacific Islands Forum, concerning regional and national
legislation, policies and strategies relating to the protection of persons affected by
sea-level rise:
(a) for the Federated States of Micronesia, helping its population to remain in
their island homes is a major priority. Its goal is to “prevent environmental migration
through adaption strategies”, for which coordination is needed between national, state
and local actors and across multiple sectors. The Constitution of enshrines the right
of citizens to migrate within the borders of the State, a right that is particularly crit ical
in the face of displacement induced by climate change, including sea -level rise and
inundation of atolls and low-lying atolls;
(b) Fiji has put in place various policies and frameworks to address the
adverse effects of climate change, including sea -level rise, in relation to the possible
displacement of people and communities. The National Climate Change Policy 2018 –
2030, encapsulated in the Climate Change Act (2021), includes strategies to reduce
the climate change-related impact on human well-being and national sovereignty
through robust regional and international policy. For Fiji, human mobility is a priority
issue for human security and for national security. It prioritizes the need for legal
frameworks, policies and strategies for managing climat e and disaster-induced
displacement in order to protect human rights and reduce long -term risks, through
planned relocation, relevant resourcing and national policies and strategies as a form
of adaptation. On cross-border migration issues, the Global Comp act for Migration is
considered a useful guide. Fiji has also developed guidelines on displacement in the
__________________
423 See also, for example: Pacific Islands Forum, “ Our Sea of Islands, Our Livelihoods, Our
Oceania”: Framework for a Pacific Oceanscape – A Catalyst for Implementation of Ocean Policy,
November 2010, available at https://library.sprep.org/sites/default/files/684.pdf ; Palau Declaration
on “The Ocean: Life and Future – Charting a Course to Sustainability”, adopted by the Pacific
Islands Forum Leaders at their forty-fifth meeting, in July 2014, available at
https://www.forumsec.org/wp-content/uploads/2017/11/2014-Forum-Communique_-Koror_-
Palau_-29-31-July.pdf; Taputapuātea Declaration on Climate Change, adopted by the Polynesian
Leaders Group on 16 July 2015, available at https://www.samoagovt.ws/wpcontent/
uploads/2015/07/The-Polynesian-P.A.C.T.pdf; Delap Commitment on Securing Our
Common Wealth of Oceans – “Reshaping the Future to Take Control of the Fisheries”, adopted by
the representatives of eight Pacific island States on 2 March 2018, available at
https://www.pnatuna.com/sites/default/files/Delap%20Commitment_2nd%20PNA%20Leaders%20
Summit.pdf; and communiqué of the fiftieth Pacific Islands Forum Leaders meeting, held in
Funafuti, Tuvalu, 13–16 August 2019, available at https://www.forumsec.org/2019/08/19/fiftieth -
pacific-islands-forum-tuvalu-13-16-august-2019/.
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context of climate change and disasters, and a national adaption plan to address
climate change in relation to sea-level rise and the relocation of affected communities.
Reinforcing the preservation and practicality of traditional knowledge and expression
of culture is pivotal. For Fiji, relocation is probably the most drastic of the possible
steps to be taken, as people rarely want to move from the pla ces in which they have
grown up and that provide them with sustenance. However, if the risks are too great
and will affect not just the livelihoods but the very existence of communities,
relocation is a sensible option. In total, four local communities hav e been relocated
in Fiji, and another 80 communities have been earmarked for relocation due to sea -
level rise and other adverse effects of climate change. In the case of displacement and
relocation within a State, the human rights of the persons affected m ust be protected
and their security guaranteed as they move into new communities where social issues
and potential conflicts over limited resources can arise. Fiji launched the first ever
national planned relocation guidelines in 2018, at the twenty -fourth session of the
Conference of the Parties to the United Nations Framework Convention on Climate
Change. The guidelines provide a blueprint for a human rights -based approach in
relation to relocation processes, particularly with regard to vulnerable groups;
(c) in Palau, the action plan of the national climate change policy focuses,
inter alia, on strengthening resilience within vulnerable communities through
innovative financing for relocation and climate -proofing, and on establishing
relocation, displacement and emergency support programmes for vulnerable members
of society. Climate change-related sea-level rise has necessitated urgent action to
protect access to health-care services, and there are plans to relocate a national
hospital;
(d) in Papua New Guinea, the people of the Carteret Islands, in the
Autonomous Region of Bougainville, have been relocated owing to sea -level rise;
(e) in the Marshall islands, the National Strategic Plan 2020 –2030 sets out the
following key principles that underpin the State’s approach to climate change
adaptation: the right to remain, the resilience imperative, integrated adaptation, the
“knowledge first” principle, adaptative capacity-strengthening, consensus and
inclusion, and technology and tradition;
(f) in Samoa, the 2017 “State of Human Rights Report” focused on the impact
of climate change on the full enjoyment of human rights, including the impact of sea -
level rise. It highlighted the impact of climate change in human rights terms, and
considered how the Government could embrace a human rights-based approach to
climate change policies;
(g) in Tuvalu, the national climate change policy (2012 –2021) lists as a
strategy the development of a climate change migration and resettlement plan for each
island in case the impact of climate change impacts lead to the worst -case scenario.
332. In the debate in the Sixth Committee in 2021, Tuvalu further stated that “[w]hile
several international legal instruments, literature and human rights case law addressed
the situation and status of refugees and stateless persons, international law did not
explicitly apply to the situation of persons displaced by sea -level rise. The human
rights of such persons must be protected.”424
333. During the same debate, Solomon Islands added that “[i]t was also important
for States to consider disaster risk reduction principles when adopting measures in
the context of sea-level rise, such as measures to help populations remain in situ or
to evacuate and relocate populations. In that conn ection, [the] delegation encouraged
__________________
424 Tuvalu (A/C.6/76/SR.23, para. 5).
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the Study Group to consider the numerous international frameworks that incorporated
those principles in its work.”425
2. Practice of States with low-lying coastal areas
334. In their submissions to the Commission, Belgium and Morocco describe, inter
alia, measures taken for the protection of their coastal areas.
335. In other publicly available information, cited here for illustrative purposes, there
are accounts of measures regarding flooding adaptation and the restriction of coastal
development in States with low-lying coastal areas such as the Netherlands, 426
Indonesia, Thailand,427 the United States,428 the United Kingdom,429 South Africa430
and France.431 Singapore has put in place land reclamation strategies and installed
hard walls or stone embankments, and has developed a national plan for combating
sea-level rise.432
336. The case of Bangladesh provides an example of a rights -based approach to
internal displacement in the context of disasters and climate change. In Bangladesh,
sea-level rise caused by climate change is anticipated to subsume up to 13 per cent of
the coastal land by 2080. A national strategy on the management of internal
displacement in the context of disasters and climate change was adopted in December
2020.433 In this strategy, it is recognized that the key driver of displacement in coastal
regions was increasing tidal-water height, leading to tidal flooding. The national
strategy proposes a rights-based approach with three prongs: (a) prevention and
preparation (risk reduction); (b) protection during displacement; and (c) durable
solutions.
3. Practice of third States
337. In its submission to the Commission, the Russian Federation stated the
following:
The interests of the Russian Federation in connection with climate change are
not limited to its territory, and are global in nature. This is driven both by the
global character of climate change and by the need to take into account in
international relations the diversity of climate impacts and the implications of
__________________
425 Solomon Islands (A/C.6/76/SR.22, para. 80).
426 Louise Miner and Jeremy Wilks, “Rising sea levels: how the Netherlands found ways of working
with the environment”, Euronews, 25 February 2020; and C40 Cities Climate Leadership Group,
“C40 Good Practice Guides: Rotterdam – climate change adaptation strategy”, February 2016.
427 Robert Muggah, “The world’s coastal cities are going under: here’s how some are fighting back”,
World Economic Forum, 16 January 2019.
428 C40 Cities Climate Leadership Group, “Sea -level rise and coastal flooding: a summary of The
Future We Don’t Want research on the impact of climate change on sea levels”. Available at
https://www.c40.org/other/the-future-we-don-t-want-staying-afloat-the-urban-response-to-sealevel-
rise (accessed 20 February 2022).
429 Organisation for Economic Co-operation and Development (OECD), Responding to Rising Seas:
OECD Country Approaches to Tackling Climate Risks (Paris, OECD Publishing, 2019).
430 Sally Brown, “African countries aren’t doing enough to prepare for rising sea levels”, The
Conversation, 16 September 2018.
431 OECD, Responding to Rising Seas (see footnote 429 above).
432 Audrey Tan, “Singapore to boost climate change defences”, The Straits Times, 8 January 2018,
available at https://www.straitstimes.com/singapore/environment/spore -to-boost-climate-changedefences
(accessed 20 February 2022); and Singapore, National Climate Change Secretariat,
“Impact of climate change and adaptation measures”, available at
https://www.nccs.gov.sg/faqs/impact-of-climate-change-and-adaptation-measures/ (accessed 20
February 2022).
433 See http://www.rmmru.org/newsite/wp-content/uploads/2020/02/NSMDCIID.pdf (accessed 20
February 2022).
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climate change in different regions of the Earth. When establishing climate
policies, account must be taken not only of the direct, but also of the indirect
and long-range, impacts of climate change on the natural environment, the
economy, the population and its various social groups. Indirect impacts of
climate change include their impact on migration patterns as a result of the
global redistribution of natural resources, including fo od and water, and the
reduction in the relative comfort of human habitation in some regions of the
Russian Federation and beyond.434
338. The Russian Federation further stated that the 1951 Convention ’s definition of
a refugee “does not so far allow for the recognition of persons affected by sea-level
rise as refugees”, and that “assistance …, in the form of temporary asylum on
humanitarian grounds, may be provided on the territory of Russia, but only if it is
established that there is a real threat to the l ives of such persons due to a natural
emergency. We were unsuccessful in finding evidence of practice of the Russian
Federation that would make it possible to establish whether sea -level rise and its
consequences would be regarded as such an emergency ”.435
339. In its submission to the Commission, Liechtenstein affirmed that it “sees a
fundamental role for the right of self-determination in addressing the issues raised by
sea-level rise for the protection of persons affected by sea -level rise and for
statehood”. It recalled that common article 1 of the International Covenant on
Economic, Social and Cultural Rights and International Covenant on Civil and
Political Rights provides for the right of all peoples to self -determination, and that,
by virtue of that right, they freely determine their political status and freely pursue
their economic, social and cultural development. 436
340. The submission of Fiji, on behalf of Pacific Islands Forum, contains information
on measures taken by third States with regard to small island developing States that
may be relevant for the protection of persons affected by sea -level rise.
341. According to that submission, the Marshall Islands, Micronesia (Federated
States of) and Palau are party to Compacts of Free Association with the United
States.437 The compacts make it easier for citizens of the three States parties to enter
and establish non-immigrant residence in the United States by, inter alia, waiving
visa and labour certification requirements. The compacts do not confer the right to
establish the residence necessary for naturalization or the right to petition for benefits
for non-citizen relatives, though they do not preclude citizens of the States parties
from pursuing those rights under the United States Immigration and Nationality Act.
342. Because of the compacts, emigration to the United States from their States
parties is continuing. The Federated States of Micronesia reports that this movement
is primarily for “education, employment and health reasons” rather than climate
displacement, but that this “will likely change in the near future to becoming driven
primarily by climate displacement, especially from atolls and low-lying islands in the
three States [parties to the compacts] (indeed, there is already evidence that this is
happening for citizens of [the Marshall Islands] at an accelerated rate) ”.
343. The compacts allow citizens of the Marshall Islands, Micronesia (Federated
States of) and Palau to become and remain non -immigrant, non-citizen residents in
the United States indefinitely, without the need for a visa or any other similar
immigration documents: only a passport issued by the relevant State party is required
for entry. This status allows them to retain their original citizenship while remaining
__________________
434 Submission of the Russian Federation.
435 Ibid.
436 Submission of Liechtenstein.
437 See https://www.doi.gov/oia/compacts-of-free-association.
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in the United States indefinitely. It also allows them, inter alia, to pursue gainful
employment, seek educational opportunities and us e health and medical services
while in the United States.
344. According to publicly available information, third States that might be exposed
to an indirect impact, from displacement and migration of persons affected by sea -
level rise, have begun to take legal or policy measures to prepare for such a possibility.
Such measures concern, for instance, the adoption of procedures for temporary
protection status and humanitarian visas, and the inclusion in national legislation on
immigration and asylum of categ ories of environmental migrants or similar.
345. In the United States, the White House published a report in October 2021 on the
impact of climate change on migration. 438 While it is recognized in the report that
domestic climate change-related displacement is a current and future security risk in
the United States, the focus of the report is on international climate change -related
migration. It notes that United States policy can aid in supporting human security by
building on existing foreign assistance towards reconsidering and developing legal
mechanisms to support those who migrate. After an analysis of existing legal
instruments at the international, regional and domestic levels, the report concludes
that expanding access to protection will be vital, in cluding through national measures
such as the granting of “temporary protected status” in the United States.
346. Countries such as New Zealand have discussed the creation of a humanitarian
visa category to help relocate people from the Pacific countries displaced by the
effects of climate change, including for persons displaced by rising sea levels. 439
347. In Sweden, the Aliens Act (2005)440 applies to “refugees and persons otherwise
in need of protection”. The latter category comprises aliens who, under c ircumstances
falling outside the scope of either asylum or subsidiary protection, are outside their
country of origin because they: (a) need protection because of external or internal
armed conflict or, because of other severe conflicts in their country of origin, feel a
well-founded fear of being subjected to serious abuse, or (b) are unable to return to
their country of origin because of an environmental disaster. Such persons in need of
protection and their family members are entitled to a residence perm it.441
B. Practice of relevant international organizations and bodies
regarding the protection of persons affected by sea-level rise
348. Certain international organizations and other bodies have developed a relevant
body of practice relating to the protection of persons affected by disasters and climate
change, including sea-level rise, especially in the past decade or so. The present
section adds further examples to those already mentioned above, in particular in
section II of the present Part.
__________________
438 Available at https://reliefweb.int/sites/reliefweb.int/files/resources/Report -on-the-Impact-of-
Climate-Change-on-Migration.pdf.
439 Lin Taylor, “New Zealand considers visa for climate ‘refugees’ from Pacific islands”, Reuters, 17
November 2017. Resident visas had already been granted on a humanitarian basis owing to the
effects of climate change in the country of origin: see Immigration and Protection Tribunal, AD
(Tuvalu), Case No. [2014] NZIPT 501370-371, Decision, 4 June 2014, available at
https://www.refworld.org/cases,NZ_IPT,585152d14.html (accessed 20 February 2022).
440 See https://www.government.se/contentassets/784b3d7be3a54a0185f284bbb2683055/aliens -act-
2005_716.pdf (accessed 20 February 2022).
441 See Jane McAdam, Climate Change Displacement and International Law: Complementary
Protection Standards (Geneva, UNHCR, 2011).
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349. Submissions to the Commission referring to such practice have been received
so far from the United Nations Environment Programme (UNEP) and the Food and
Agriculture Organization of the United Nations (FAO).
350. Further preliminary research, based on publicly available documents, is then
presented to illustrate potentially relevant practice from United Nations organs and
bodies, Office of the United Nations High Commissioner for Human Rights
(OHCHR), UNHCR, IOM, the International Labour Organization (ILO), the Task
Force on Displacement, the Platform on Disaster Displacement, the International
Federation of Red Cross and Red Crescent Societies, th e World Bank and the
Organisation for Economic Co-operation and Development (OECD). According to
this preliminary research, these organizations and bodies have been integrating into
their respective policies the issue of climate change, including sea -level rise, and its
impact on the protection of persons.
1. United Nations Environment Programme
351. UNEP, in its submission, provides relevant examples of regional and national
legislation, policies and strategies regarding the protection of persons affected by sea -
level rise. It includes examples of Pacific regional instruments and national
legislation, policies and strategies from several States in the Caribbean and in the
Pacific and Indian Oceans. According to UNEP, the objective of many of these
instruments is to strengthen resilience for people and communities in the face of sea -
level rise, prevent displacement if possible and, in some instruments, set out a rights -
based framework that seeks to respect, protect and ensure the rights of displaced
persons in different stages of displacement and during the search for durable
solutions.
2. Food and Agriculture Organization of the United Nations
352. FAO, in its submission, refers to its 2017 strategy on climate change, in which
it recognizes that biophysical changes, including sea -level rise, have an impact on the
socioeconomic status of the fishery an d aquaculture sector in many parts of the world.
It also has an impact on levels of poverty and food insecurity in areas dependent on
fish and fishery products, as well as on the governance and management of the sector
and on societies. These changes are h aving profound impacts on fishery- and
aquaculture-reliant communities and the ecosystems on which they depend,
especially in tropical regions, including persons affected by sea -level rise.
353. FAO recalls that it is mandated to assist Member Nations in a ddressing the
biophysical impacts of climate change, including sea -level rise, through technical
assistance projects and programmes, including through regional and national
legislation, policies and strategies for ensuring food security and nutrition for a ffected
persons, in particular the marginalized and vulnerable members of the community.
3. United Nations
354. This section briefly presents practice arising from treaties deposited with the
Secretary-General or registered with the Secretariat, and res olutions and decisions of
the General Assembly and some of its bodies – such as the United Nations Openended
Informal Consultative Process on Oceans and the Law of the Sea – the Security
Council, the Human Rights Council and its special procedures, and th e human rights
treaty bodies.
Treaties deposited or registered with the United Nations
355. No treaties relating specifically to the protection of persons in the event of sea -
level rise were found among treaties deposited or registered with the United Nations.
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Nonetheless, there are agreements that anticipate the relocation of persons in the
context of emergencies. 442 Such agreements envisage the relocation of persons,
including as refugees, albeit, again, not in the specific context of the consequences of
sea-level rise.
356. There are also several agreements dealing with specific repatriation
arrangements, again not specifically related to persons affected by sea -level rise, but
which could nonetheless be deemed relevant as analogous practice. 443
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442 See, for example, the Agreement between Mexico and United States of America on cooperation in
cases of natural disasters (Mexico City, 15 January 1980; United Nations, Treaty Series, vol. 1241,
No. 20171, p. 207, at p. 211), which envisages the establishment of a United States –Mexico
consultative committee on natural disasters, whose mandate (art. II) would include the exchange
of information on techniques for evacuation and relocation of pers ons under emergency conditions
(although not specifically or expressly related to sea -level rise). Another example, this time a
treaty action, is that of the notification by Brazil under article 1 (B) (2) of the Convention relating
to the Status of Refugees, which reads as follows (United Nations, Treaty Series, vol. 1558, No.
2545, p. 370): “... by Decree 98.602, of 19 December 1989, the President of the Republic annulled
the geographic restriction clause in Section B.1 (a) of article 1 of the Convention on the Status of
Refugees concluded in Geneva on 20 June 1951. As Your Excellence is aware, that clause
rendered the Convention inapplicable in Brazil to refugees of non -European origin, who currently
make up almost the total number applying for refuge. Whi le the clause was in effect, non-
European refugees were accepted in Brazil on an in -transit basis, although, in practice, they were
allowed to work and remain on national territory until their relocation to another country, and
were even allowed to settle permanently in Brazil provided petitions for them to do so had been
filed by the United Nations High Commissioner for Refugees. The annulment of the geographic
restriction clause renders possible, as of now, the official acknowledgment of these refugees by
the Brazilian Government and makes the application of this international instrument in Brazil fully
in conformity with Article 48, subsection X, of the new Constitution, which establishes the
concession of political asylum as one of the principles of Braz il’s foreign policy.”
443 See, for example: Tripartite Agreement for the voluntary repatriation of the Surinamese refugees,
between France, Suriname and UNHCR (Paramaribo, 25 August 1998), United Nations, Treaty
Series, vol. 1512, No. 26128, p. 69; Agreement conc erning migration and settlement, between
Japan and Brazil (Rio de Janeiro, 14 November 1960), ibid., vol. 518, No. 7491, p. 61;
Convention (with Final Protocol) concerning the reciprocal grant of assistance to distressed
persons, between Sweden, Denmark, Finland, Iceland and Norway (Stockholm, 9 January 1951),
ibid., vol. 197, No. 2647, p. 377; and Fourth Convention between the European Economic
Community and the African, Caribbean and Pacific States (with protocols, final act, exchange of
letters, minutes of signature, declaration of signature dated 19 December 1990 and memorandum
of rectification dated 22 November 1990) (Lomé, 15 December 1989), ibid., vol. 1924, No. 32847,
p. 3. In particular, under article 255 (1) and (2) of the latter Convention: “1. As sistance may be
granted to [African, Caribbean and Pacific] States taking in refugees or returnees to meet acute
needs not covered by emergency assistance, to implement in the longer term projects and action
programmes aimed at self-sufficiency and the integration or reintegration of such people. 2.
Similar assistance, as set out in paragraph 1, may be envisaged to help with the voluntary
integration or reintegration of persons who have had to leave their homes as a result of conflicts or
natural disasters. In implementing this provision account shall be taken of all the factors leading to
the displacement in question including the wishes of the population concerned and the
responsibilities of the government in meeting the needs of its own people.” Under art icle 257 of
the same Convention: “Post-emergency action, aimed at physical and social rehabilitation
consequent on the results of natural disasters or extraordinary circumstances having comparable
effects, may be undertaken with Community assistance under this Convention. The postemergency
needs may be covered by other resources, in particular the counterpart funds generated
by Community instruments, the special appropriation for refugees, returnees, and displaced
persons, the national or regional indicative programmes or a combination of these different
elements.” Under annex LII of the same Convention, entitled “Joint declaration on article 255”:
“The Contracting Parties agree that, in the implementation of Article 255, particular attention
should be given to the following: (i) projects that assist the voluntary repatriation and
reintegration of refugees; (ii) the cultural identity both of refugees in host countries and displaced
persons within their own countries; (iii) the needs of women, children, the a ged or the
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General Assembly
357. The General Assembly, in a number of its resolutions, has referred to the f act
that sea-level rise is a result of climate change or link the phenomenon to the various
threats that it poses to, for example, small island developing States and biodiversity.
358. In resolution 44/206 of 22 December 1989,444 on the possible adverse effects of
sea-level rise on islands and coastal areas, particularly low -lying coastal areas, the
General Assembly urged the international community to provide effective and timely
support to countries affected by sea-level rise, particularly developing countries, in
their efforts to develop strategies to protect themselves and their vulnerable natural
marine ecosystems from the particular threats of sea -level rise caused by climate
change.
359. In General Assembly resolution 70/1 of 25 September 2015,445 by which the
Assembly adopted the 2030 Agenda for Sustainable Development, it was stressed that
increases in global temperature, sea-level rise, ocean acidification and other climate
change impacts were seriously affecting coastal areas and low -lying coastal countries,
including many least developed countries and small island developing States.
360. A further relevant example is resolution 66/288 of 27 July 2012,446 in which the
General Assembly endorsed the outcome document of the United Nations Conference
on Sustainable Development, entitled “The future we want”. In the outcome
document, the Conference “note[s] that sea-level rise and coastal erosion are serious
threats for many coastal regions and islands, particularly in developing countries ” and
“call[s] upon the international community to enhance its efforts to address these
challenges”. The Conference further notes that “[s]ea-level rise and other adverse
impacts of climate change continue to pose a significant risk to small island
developing States and their efforts to achieve sustainable development and, for many,
represent the gravest of threats to their survival and viability, including for some
through the loss of territory”, and “call[s] for continued and enhanced efforts to assist
small island developing States”.
361. A resolution that directly connects sea -level rise to migration is resolution
73/195 of 19 December 2018,447 in which the General Assembly endorsed the Global
Compact for Safe, Orderly and Regular Migration. Under the Global Compact, States
would “[d]evelop adaptation and resilience strategies to sudden-onset and slow-onset
natural disasters, the adverse effects of climate change, and environmental
degradation, such as desertification, land degradation, drought and sea -level rise,
taking into account the potential implications for migration, while recognizing that
adaptation in the country of origin is a priority ”. States would further “[c]ooperate to
identify, develop and strengthen solutions for migrants compelled to leave their
countries of origin owing to slow-onset natural disasters, the adverse effects of
climate change, and environmental degradation, such as desertification, land
degradation, drought and sea-level rise, including by devising planned relocation and
visa options, in cases where adaptation in or return t o their country of origin is not
possible”.
__________________
handicapped among refugees or displaced persons; (iv) creating a greater awareness of the role
that assistance under Article 255 can play in meeting the longer-term developmental needs of
refugees, returnees and displaced persons and of the popu lation of the host regions; (v) closer
coordination between the ACP States, the Commission and other agencies in the implementation
of these projects.”
444 General Assembly resolution 44/206, para. 2.
445 General Assembly resolution 70/1, para. 14.
446 General Assembly resolution 66/288, annex, paras. 165, 178 and 179.
447 General Assembly resolution 73/195, annex, paras. 18 (i) and 21 (h).
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362. It is also worth noting – although it has not yet, at the time of writing, been
debated or adopted – that Tuvalu proposed a draft resolution to the General Assembly
in July 2019 under the agenda item on sust ainable development in relation to the
protection of the global climate for present and future generations of humankind. The
draft resolution included a proposal to develop a “legally binding instrument to create
appropriate protection for persons displace d by the impacts of climate change ”.
United Nations Open-ended Informal Consultative Process on Oceans and the Law
of the Sea
363. “Sea-level rise and its impacts” was the theme of the twenty-first meeting of the
United Nations Open-ended Informal Consultative Process on Oceans and the Law of
the Sea, which was held from 14 to 18 June 2021. The report on the work of the
Informal Consultative Process at its twenty -first meeting includes the Co-Chairs
summary of discussions on sea-level rise and its impacts.448
364. The General Assembly, in its resolution of 9 December 2021, 449 on oceans and
the law of the sea, provided a brief overview of the meeting and the discussions,
noting that they, inter alia:
… focused on the characterization and extent of sea level rise, including
regional variability, and its environmental, social an d economic impacts,
highlighted the urgency of sea level rise and the impacts of the increasing
frequency of extreme weather events for small island developing States and
coastal States including low-lying coastal areas, discussed the various
mitigation and adaptation responses, urging that measures be taken urgently and
stressing possible challenges such as their cost, data gaps and challenges for
modelling and monitoring sea level rise, stressed the importance of the science -
policy interface and cooperation at all levels and with all stakeholders, the
relevance of traditional and local knowledge, of the ocean -climate nexus and of
the legal dimension, while noting that delegations looked forward to engaging
in, and do not want to prejudge, the work of appro priate forums on legal matters
related to sea level rise, and the need for international cooperation and
coordination, capacity-building, national planning processes, and financing.
Security Council
365. The Security Council has discussed whether clima te change and its
consequences can be considered a threat to international peace and security on several
occasions and in different formats.450 Since 2007, the Security Council has held open
debates and Arria-formula meetings on the issue of climate change, international
peace and security.451 At the most recent open debate, held on 13 December 2021, the
Council failed to adopt a draft resolution in which it would have expressed “deep
concerns that the impacts [of climate change], including the loss of territ ory caused
by the rise of the sea level, may have implications for international peace and
security”.452
__________________
448 A/76/171.
449 General Assembly resolution 76/72, para. 211.
450 See, for example, S/PV.8451 (25 January 2019).
451 For the open debates, see S/PV.5663 (17 April 2007), S/PV.6587 and S/PV.6587 (Resumption 1)
(20 July 2011), S/PV.7499 (30 July 2015), S/PV.8307 (11 July 2018), S/PV/8451 (25 January
2019), S/PV/8864 (23 September 2021) and S/PV/8926 (13 December 2021). Arria-formula
meetings were held on 15 February 2013, 20 June 2015, 10 April 2017, 15 December 2017, 22
April 2020 and 18 October 2021. See https://www.securitycouncilreport.org/un-security-councilworking-
methods/arria-formula-meetings.php?msclkid=276251c2afb911ecbb0098022f272058 .
452 S/2021/990.
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366. At the Arria-formula meeting in October 2021, on sea-level rise and
implications for international peace and security, 453 the concept note circulated by
Viet Nam contained five questions to guide the discussions, 454 including the
following:
(a) how can a better understanding be gained of the interlinkages between
instability, conflict and climate risks, including climate change -related sea-level rise?
(b) what are the best policy and practical measures to effectively approach the
multifaceted risks of climate change, and in particular sea -level rise, including
through conflict prevention and peacebuilding?
(c) how can the United Nations system an d other international and regional
organizations be better empowered to address the challenges of climate change and
sea-level rise, including through adaptation and mitigation measures and support for
small island developing States?
(d) how can the Security Council better employ its existing tools and
mechanisms in addressing climate-related security risks, in particular the risks from
sea-level rise?
(e) how can developing States affected by climate change and small island
developing States gain better access the support that they need to mitigate these
threats?
367. Previously, in April 2017, the Security Council had discussed the theme
“Security implications of climate change: sea -level rise” during an Arria-formula
meeting organized by the then-Council member Ukraine in cooperation with non -
Council member Germany. During the open debate held in July 2015 on peace and
security challenges facing small island developing States, the Secretary -General
noted that “[r]ising sea levels, dying coral reefs and the increasing frequency and
severity of natural disasters exacerbate the conditions leading to community
displacement and migration”. 455 In a statement by the President of the Security
Council in July 2011, the President expressed the Council ’s “concern that possible
security implications of loss of territory of some States caused by sea -level rise may
arise, in particular in small low-lying island States”.456
Human rights bodies
368. There has been a marked increase since 2010 in references to topics concerning
human rights and climate change, including sea -level rise, within United Nations
human rights bodies. 457 Whether in States’ submissions or in reports or other
__________________
453 See https://media.un.org/en/asset/k1i/k1im1x4i6t .
454 Available at https://s3-eu-west-
1.amazonaws.com/upload.teamup.com/908040/IHrZ4x3Q2a7eWfWfWUq5_Concept -20Note-20--
20Arria-20on-20Sea-20level-20rise-final.pdf.
455 S/PV.7499.
456 S/PRST/2011/15.
457 Although it is not a document of a human rights body, it may be worth noting that International
Migration and Human Rights: Challenges and Opportunities on the Threshold of the 60th
Anniversary of the Universal Declaration of Human Rights (Global Migration Group, 2008),
which includes a foreword from the Secretary -General, the following definition of an
environmental migrant is provided, distinguishing between “environmentally motivated migrants”
and “environmental forced migrants” (p. 9; citing IOM, “Expert seminar: migration and the
environment”, International Dialogue on Migration, No. 10 (Geneva, 2008), pp. 22 –23): “An
environmental migrant is characterized as a person who, for compelling reasons of sud den or
progressive change in the environment that adversely affects his/her life or living conditions, is
forced to leave his/her habitual home and cross a national border, or chooses to do so, either
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documents issued by human rights bodies, including reports of special rapporteurs or
independent experts, the aim of these references is to underline a range of potential
consequences of sea-level rise, such as the potential risk of the flooding of low -lying
lands due to sea-level rise,458 the threat posed to local communities, 459 the challenges
regarding access to water and sanitation and the need to make the human right to
water a tangible reality,460 the increased incidence of disease,461 and the fear of forced
relocation among affected populations and the need for the legal order to include
guarantees that they would be properly consulted. 462
369. A number of Human Rights Council documents describe sea -level rise as a
factual cause of migration or internal displacement. This co nnection has been referred
to the context of the universal periodic review and other review mechanisms, both in
documents prepared by the States under review and in Council documents. 463 The
Special Rapporteur in the field of cultural rights, Karima Bennoun e, highlighted the
connection in her report on a visit to Tuvalu, and refers to a 2001 agreement between
Tuvalu and New Zealand establishing an annual emigration quota of Tuvaluans
wishing to leave their country because of sea -level rise.464
370. More specifically, some Human Rights Council documents spell out that rising
sea-levels caused by global warming threaten the very existence of small island
States, which has “implications for the right to self -determination, as well as for the
full range of rights for which individuals depend on the State for their protection ”.465
In addition, during a visit to Maldives in 2011 to examine the situation of persons
internally displaced as a result of the 2004 tsunami and to study issues related to risks
of potential internal displacement in the future, including owing to the effects of
climate change, the Special Rapporteur on the human rights of internally displaced
persons, Chaloka Beyani, found that “climate change and other factors specific to the
low-lying island environment of Maldives were already affecting the livelihoods and
rights of residents of many islands, including the rights to housing, safe water and
health”. The Special Rapporteur further noted that “other factors, such as more
frequent storms and flooding, coastal erosion, salination, overcrowding and the
existential threat posed by rising sea levels, point to increased risks of potential
internal displacement in the future ”.466
371. Commenting in the context of the universal periodic review of Solomon I slands
on the status of persons displaced owing to climate factors, UNHCR noted that while
such persons “were not ‘refugees’ under the 1951 Convention, there were nonetheless
clear links between environmental degradation or climate change, and social tensions
__________________
temporarily or permanently. Environmental migrants may be distinguished between two
categories: [(a)] [e]nvironmentally motivated migrants are defined as those persons who ‘pre-empt
the worst by leaving before environmental degradation results in [the] devastation of their
livelihoods and communities. These individuals may leave a deteriorating environment that could
be rehabilitated with proper policy and effort. ’ Their movement may be temporary or permanent;
[(b)] [e]nvironmental forced migrants are defined as those persons who ‘are avoiding the worst.
These individuals have to leave due to a loss of livelihood, and their displacement is mainly
permanent. Examples include displacement or migration due to sea -level rise or loss of topsoil.’”.
458 For example, CRC/C/ATG/2-4, para. 138.
459 For example, A/HRC/WG.6/22/MHL/3, para. 22.
460 For example, A/HRC/24/44/Add.2, summary.
461 For example, A/HRC/24/44/Add.1, para. 48, and A/HRC/22/43, para. 20.
462 For example, CCPR/C/SR.2902, para. 21.
463 For examples emanating from States, see A/HRC/WG.6/24/PLW/1, CEDAW/C/MHL/1-3 and
A/HRC/WG.6/35/KIR/1. For examples emanating from OHCHR, see A/HRC/WG.6/24/SLB/3,
A/HRC/WG.6/35/KIR/2 and A/HRC/WG.6/38/SLB/3.
464 A/HRC/46/34/Add.1, para. 8.
465 For example, A/HRC/22/43, para. 20.
466 A/HRC/19/54, para. 12.
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and conflict. Experience in other Pacific island countries has demonstrated that
displacement can lead to competition with a host community and lead to conflict,
often over land or the use of limited resources (e.g. potable water). In the worst -case
scenario, involving complete submersion under rising sea levels, widespread
‘external displacement’ and a de facto or de jure loss of the sovereign State itself may
result.” UNHCR went on to recognize that “climate change posed a unique set of
challenges for many Pacific island countries, including Solomon Islands, as it resulted
in … rising sea levels, salinization, the incidenc e of storms of increasing frequency
and severity, and increasing climate variability ”, and noted that “[t]he populations of
a number of small islands in Solomon Islands were facing imminent relocation ”.467
Human rights treaty bodies’ joint statements, general recommendations, decisions
and general comments
372. Human rights treaty bodies have also referred to the connection between climate
change and human rights, namely between sea -level rise and migration. One example
is the joint statement on human ri ghts and climate change by the Committee on the
Elimination of Discrimination against Women, the Committee on Economic, Social
and Cultural Rights, the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families, the Committee on the Rights of the Child
and the Committee on the Rights of Persons with Disabilities, issued on 14 May 2020.
In that statement, the treaty bodies highlight sea -level rise as a cause of forced
migration, and assert that “States must therefore address the effects of climate change,
environmental degradation and natural disasters as drivers of migration and ensure
that such factors do not hinder the enjoyment of the human rights of migrants and
their families. In addition, States should offer migrant workers displaced across
international borders in the context of climate change or disasters and who cannot
return to their countries complementary protection mechanisms and temporary
protection or stay arrangements”.468
373. The Committee on the Elimination of Discrimination against Women addressed
sea-level rise in its general recommendation No. 37 (2018) on the gender -related
dimensions of disaster risk reduction in the context of climate change. It emphasized
that, “[i]n their reports submitted to the Committee pursuant to article 18 [of the
Convention on the Elimination of All Forms of Discrimination against Women],
States parties should address general obligations to ensure substantive equality
between women and men in all areas of life, as well as the specific guarantees in
relation to those rights under the Convention that may be particularly affected by
climate change and disasters, including extreme weather events such as floods and
hurricanes, as well as slow-onset phenomena, such as the melting of polar ice caps
and glaciers, drought and sea-level rise”.469
374. Two important communications have been submitted to the Human Rights
Committee for the purposes of assessing the principles applicable to the protection of
persons affected by sea-level rise.
375. In the first case, the author, Ioane Teitiota, alleged tha t, by removing him to
Kiribati, New Zealand had violated his right to life under article 6 of the International
Covenant on Civil and Political Rights. 470 This case was the Committee’s first ruling
on a communication by an individual seeking asylum from the effects of climate
change, in particular the effects of sea-level rise.
__________________
467 A/HRC/WG.6/11/SLB/2, paras. 56 and 59.
468 HRI/2019/1, paras 15–16.
469 CEDAW/C/GC/37, para. 10.
470 Teitiota v. New Zealand (CCPR/C/127/D/2728/2016), para. 3.
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376. In the communication, Mr. Teitiota claimed, inter alia, that “the effects of
climate change and sea-level rise forced him to migrate from the island of Tarawa in
Kiribati to New Zealand. The situation in Tarawa has become increasingly unstable
and precarious due to sea-level rise caused by global warming ”.471 He argued that the
severe impacts of climate change in Kiribati triggered the non-refoulement
obligations of New Zealand not to send him back to Kiribati.
377. In its Views, adopted on 24 October 2019, the Committee assessed whether there
was clear arbitrariness, error or injustice in the evaluation by the authorities of New
Zealand of Mr. Teitiota’s claim that when he was removed to the Kiribati he faced a
real risk of a threat to his right to life under article 6 of the Covenant. The Committee
noted that the facts before it did not permit it to conclude that Mr. Teitiota ’s removal
violated his right to life under article 6 of the Covenant, or thus that the nonrefoulement
obligations of New Zealand were triggered in this particular case.
378. The Committee nonetheless recalled that “environmental degradation can
compromise effective enjoyment of the right to life”. It also stated that the “obligation
not to extradite, deport or otherwise transfer, pursuant to article 6 of the Covenant,
may be broader than the scope of the principle of non-refoulement under international
refugee law, since it may also require the protection of aliens not entitled to refugee
status”. However, it was of the opinion that Mr. Teitiota had not substantiated the
claim that he faced upon deportation “a real risk of irreparable harm to his right to
life”, that was specific to him, rather than a general risk faced by all individuals in
Kiribati.
379. The Committee accepted Mr. Teitiota ’s claim that sea-level rise was “likely to
render Kiribati uninhabitable”. However, it noted that the “time frame of 10 to 15
years, as suggested by the author, could allow for intervening acts by Kiribati, with
the assistance of the international community, to take affirmative measures to protect
and, where necessary, relocate its population ”. While the Committee recognized the
burdensome living conditions in Kiribati for the general population, it concluded that
the information provided to it had not indicated that upon his return to Kiribati, Mr.
Teitiota was at serious risk of living in poverty, being deprived of adequate food or
being subjected to a situation of extreme precariousness that would affect his right to
a decent life.
380. Significantly, the Committee expressed the view that “without robust national
and international efforts, the effects of climate change in receiving States may expose
individuals to a violation of their rights under articles 6 or 7 of the Covenant, thereby
triggering the non-refoulement obligations of sending States. Furthermore, given that
the risk of an entire country becoming submerged under water is such an e xtreme risk,
the conditions of life in such a country may become incompatible with the right to
life with dignity before the risk is realized ”.472
381. In his dissenting opinion, Committee member Duncan Laki Muhumuza found
that it would be “counter-intuitive to the protection of life to wait for deaths to be
very frequent and considerable in number in order to consider the threshold of risk as
met”. As he put it, “the action taken by New Zealand is … like forcing a drowning
person back into a sinking vessel, with the ‘justification’ that after all, there are other
passengers on board”.473
382. In her dissenting opinion, Committee member Vasilka Sancin argued that the
notion of “potable water” should not be equated with “safe drinking water”. She stated
it fell to New Zealand, not to Mr. Teitiota, “to demonstrate that [he] and his family
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471 Ibid., para. 2.1.
472 Ibid., para. 9.11.
473 Ibid., annex I, paras. 5 and 6.
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would in fact enjoy access to safe drinking (or even potable) water in Kiribati, to
comply with its positive duty to protect life from risks arising from known natural
hazards”.474
383. The second communication was initiated on 13 May 2019 by eight Torres Strait
Islanders, who alleged that Australia is violating their rights under articles 2 (respect
for Covenant rights), 6 (right to life), 17 (right to be free from arbit rary interference
with privacy, family and home), 24 (rights of the child) and 27 (right of minorities to
enjoyment of their own culture) of the Covenant as a result of the insufficient targets
and plans set by Australia concerning greenhouse gas mitigatio n, and its failure to
fund adequate measures for coastal defence and resilience on the islands, such as sea
walls.475 In particular, the authors requested that Australia commit to the provision of
at least $20 million for emergency measures such as sea wall s, as requested by local
authorities; to sustained investment in long -term adaptation measures to ensure that
the islands can continue to be inhabited; to a reduction in its emissions by at least 65
per cent below 2005 levels by 2030 and to net zero emissi ons by 2050; and to a
phasing-out of thermal coal, both for domestic electricity generation and for export
markets.
384. This case constitutes the first communication to the Committee by inhabitants
of low-lying islands, where communities are highly vulner able to the effects of
climate change, including sea-level rise, against a national Government for inaction
on climate change. The Committee has yet to render its decision.
385. In its general comment No. 36 (2018) on the right to life, under article 6 of the
Covenant, the Committee specifically stated the following:
Environmental degradation, climate change and unsustainable development
constitute some of the most pressing and serious threats to the ability of present
and future generations to enjoy the right to life. The obligations of States parties
under international environmental law should thus inform the contents of article
6 of the Covenant, and the obligation of States parties to respect and ensure the
right to life should also inform their relev ant obligations under international
environmental law. Implementation of the obligation to respect and ensure the
right to life, and in particular life with dignity, depends, inter alia, on measures
taken by States parties to preserve the environment and p rotect it against harm,
pollution and climate change caused by public and private actors. States parties
should therefore ensure sustainable use of natural resources, develop and
implement substantive environmental standards, conduct environmental impact
assessments and consult with relevant States about activities likely to have a
significant impact on the environment, provide notification to other States
concerned about natural disasters and emergencies and cooperate with them,
provide appropriate access to information on environmental hazards and pay
due regard to the precautionary approach. 476
386. On 22 September 2021, the Committee on the Rights of the Child adopted
decisions on the impact of climate change on children ’s rights. Sixteen children had
submitted five identical communications against Argentina, Brazil, France, Germany
and Turkey, alleging that those States had violated their rights under articles 6 (right
to life), 24 (right to the enjoyment of the highest attainable standard of health) and 30
(rights of children belonging to minorities and indigenous children), read in
conjunction with article 3 (the principle of the best interests of the child) of the
__________________
474 Ibid., annex II, paras. 3 and 5.
475 Communication No. 3624/2019, currently pending before the Human Rights Committee.
476 Human Rights Committee, general comment No. 36 (2018), para. 62.
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Convention on the Rights of the Child by failing to prevent and mitigate the
consequences of climate change.477
387. In particular, the authors claimed that rising sea levels were transforming
children’s relationships with the land, and the Committee noted the authors ’ claims
that, “due to the rising sea level, the Marshall Islands and Palau a re at risk of
becoming uninhabitable within decades”.
388. The Committee found the communications inadmissible for failure to exhaust
domestic remedies. It noted that domestic remedies were available to the authors, and
recalled that they must make use of all judicial or administrative avenues that could
offer them a reasonable prospect of redress.
389. Nevertheless, in its decisions concerning these communications, the Committee
clarified the scope of extraterritorial jurisdiction in relation to environme ntal
protection. It found that the appropriate test for jurisdiction in the present case was
that adopted by the Inter-American Court of Human Rights in its Advisory Opinion
on the environment and human rights. 478 which implied that when transboundary
harm occurred, children were under the jurisdiction of the State on whose territory
the emissions originated if there was a causal link between the acts or omissions of
the State in question and the negative impact on the rights of children located outside
its territory, when the State of origin exercised effective control over the sources of
the emissions in question. As a result, the Committee found that the State parties had
effective control over the sources of carbon emissions that contributed to causing
reasonably foreseeable harm to children outside their territory.
390. It is also important to note that, in June 2021, the Committee on the Rights of
the Child decided to draft a general comment on children ’s rights and the
environment, with a special focus on climate change. The draft general comment is
being prepared through consultations and workshops with the global community,
including specific consultations with children and young people. It is expected to be
adopted in March 2023.
4. Office of the United Nations High Commissioner for Human Rights
391. The United Nations High Commissioner for Human Rights and her Office have,
in response to requests by the Human Rights Council and on their own initiative,
contributed to the analysis of the implications for human rights of climate change,
including sea-level rise.
392. OHCHR has developed the following key messages on human rights, climate
change and migration:479 (a) ensure the dignity, safety and human rights of migrants
in the context of climate change; (b) reduce the risk of forced migration through
climate change mitigation; (c) reduce climate change risks through adaptation; (d)
protect the human rights of people who are in particularly vulnerable situations; (e)
ensure liberty and freedom of movement for all persons; (f) ensure durable legal status
for all those forced to move and safeguards in the context of returns; (g) ensure
meaningful and informed participation; (h) guarantee human rights in relocation; (i)
__________________
477 Sacchi et al. v. Argentina (CRC/C/88/D/104/2019), Sacchi et al. v. Brazil
(CRC/C/88/D/105/2019), Sacchi et al. v. France (CRC/C/88/D/106/2019), Sacchi et al. v.
Germany (CRC/C/88/D/107/2019) and Sacchi et al. v. Turkey (CRC/C/88/D/108/2019).
478 Inter-American Court of Human Rights, Advisory Opinion OC-23/17, on “The environment and
human rights” (requested by Colombia), 15 November 2017.
479 OHCHR, “OHCHR’s key messages on human rights, climate change and migration”, available at
https://www.ohchr.org/Documents/Issues/ClimateChange/Key_Messages_HR_CC_Migrat ion.pdf
(accessed 20 February 2022).
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ensure access to justice for those affected by climate change; and (j) cooperate
internationally in order to protect the rights of migrants.
393. In 2018, the High Commissioner produced a report entitled “Addressing human
rights protection gaps in the context of mig ration and displacement of persons across
international borders resulting from the adverse effects of climate change and
supporting the adaptation and mitigation plans of developing countries to bridge the
protection gaps”.480
394. Also in 2018, OHCHR presented a conference room paper to the Human Rights
Council on a study undertaken on behalf of OHCHR, in collaboration with the
Platform on Disaster Displacement, on the slow -onset effects of climate change and
human rights protection for cross-border migrants.481
5. Office of the United Nations High Commissioner for Refugees482
395. UNHCR seeks to contribute substantively to understanding on legal and
normative issues around displacement in the context of disasters and climate change.
In this context, and in the exercise of its supervisory role for international refugee
instruments, UNHCR has recalled that refugee law, as well as broader human rights
principles, will be relevant in certain circumstances, but that this does not involve the
creation of a new legal category, or the expansion of the refugee definition, given that
most people who move in the context of climate change or disasters are not likely to
fall within the definition of a refugee.
396. UNHCR has been working on legal guidance in relation to claims for asylum in
the context of the adverse effects of climate change. In this regard, people fleeing in
the adverse effects of climate change and disasters may, in certain circumstances,
have valid claims for refugee status under the 1951 Convention, or under the wider
refugee definition in the 1969 OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa or the 1984 Cartagena Declaration on Refugees, but only
insofar as the criteria for recognition as a refugee under tho se definitions are fulfilled.
Complementary forms of protection under international human rights law in some
contexts, as well as the potential for the use of temporary protection and stay
arrangements, may also be of relevance.
397. Building on a study that it had published in 2018,483 UNHCR issued a document
in 2020 entitled “Legal considerations regarding claims for international protection
made in the context of the adverse effects of climate change and disasters ”, to guide
interpretation and steer inter national discussion on such claims.484 The term “climate
refugee” is not used by UNHCR in this document, preferring instead “persons
displaced in the context of disasters and climate change ”.
398. UNHCR has also begun to examine the question of the potentia l implications of
sea-level rise for the risks of statelessness, since it has mandate responsibilities in this
__________________
480 A/HRC/38/21.
481 A/HRC/37/CRP.4, available at https://www.ohchr.org/en/migration/reports.
482 See the pages on the UNHCR website dedicated to climate change and disaster displacement
(https://www.unhcr.org/climate-change-and-disasters.html); and UNHCR, “Key concepts on
climate change and disaster displacement”, June 2017. See also “ Displaced on the front lines of
the climate emergency”, a new data visualization launched by UNHCR in 2021 , that shows how a
warming world is compounding risks for people already living with conflict and instability,
driving further displacement, and often decreasing possibilities for return.
483 Sanjula Weerasinghe, In Harm’s Way: International Protection in the Context of Nexus Dynamics
between Conflict or Violence and Disaster or Climate Change (Geneva, UNHCR, 2018).
484 Available at https://www.refworld.org/docid/5f75f2734.html . Also published in International
Journal of Refugee Law, vol. 33, No. 1 (2021), pp. 151–65.
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area under the 1954 and 1961 Statelessness Conventions. 485 In this regard, it has
recently published a fact sheet on the links between the impacts of climate change
and statelessness. 486 According to this fact sheet, millions of stateless people face
considerable vulnerabilities in the context of climate change, including exclusion
from disaster relief, health care and adaptation solutions. Th e risks of statelessness
can increase when people move, including during displacement situations in the
context of climate change and disasters. For UNHCR, the greatest risks of
statelessness owing to climate change relate not to the disappearance of State s as
such, but rather to the significant number of people being displaced in the context of
climate change and disasters all over the world. Specific efforts are therefore needed
to reduce statelessness risks for displaced people and to include stateless p ersons in
climate action to strengthen their protection and resilience.
6. International Organization for Migration487
399. IOM has played an important role in the development of the notion of
environmental migrants and environmental migration. The visio n of IOM is to support
States and migrants in addressing the complex challenges posed by environmental
degradation and climate change in terms of human mobility and in delivering
enhanced benefits to migrants and vulnerable communities.
400. IOM has produced, for instance, the Atlas of Environmental Migration,488 the
annual World Migration Report, 489 and the Institutional Strategy on Migration,
Environment and Climate Change 2021 –2030.490
401. IOM has consistently recognized sea-level rise as one of the greatest climate
change threats that are likely to affect populations and cause migration in the future
and has called for a rights-based approach to migration in the context of
environmental degradation, climate change and migration.
7. International Labour Organization
402. ILO is another international organization that has included in its policy analysis
and action the issue of climate change, including sea -level rise, as an additional driver
of migration, both internal and across bord ers.491 In the case of slow-onset events,
climate variables interact with other key drivers, including lack of decent work and
employment opportunities, weak governance and intercommunity violence. The
sectors that employ the majority of workers are also so me of the most vulnerable to
climate change. When livelihoods are compromised and if survival is at stake, people
migrate in search for better opportunities. This is an increasing trend, particularly
among young persons.
__________________
485 1954 Convention relating to the Status of Stateless Persons and 1961 Convention on the Reduction
of Statelessness.
486 UNHCR, “Statelessness and Climate Change”, October 2021. Available at
https://www.unhcr.org/618524da4.pdf (accessed 20 February 2022).
487 See the IOM Environmental Migration Portal ( https://environmentalmigration.iom.int/), which is a
rich repository for information from both IOM and other sources.
488 Dina Ionesco, Daria Mokhnacheva and François Gemenne, Atlas of Environmental Migration
(Abingdon and New York, Routledge, 2016).
489 Available at https://worldmigrationreport.iom.int.
490 IOM, Institutional Strategy on Migration, Environment and Climate Change 2021 –2030: For a
Comprehensive, Evidence- and Rights-Based Approach to Migration in the Context of
Environmental Degradation, Climate Change and Disasters, for the Benefit of Migrants and
Societies (Geneva, 2021).
491 See John Campbell and Olivia Warrick, Climate Change and Migration Issues in the Pacific
(Suva, United Nations, 2014).
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403. The experience of ILO has shown that labour migration, when governed in
accordance with international labour standards, can play an important role in the
development of both countries of origin and countries of destination. Labour
migration can be used to boost resilience in communitie s through the generation of
remittances, the transfer of knowledge and skills and the development of networks
that can lead to entrepreneurship and new markets. If migrants crossing borders owing
to climate-related factors can do so through safe and regula r channels and can access
formal employment opportunities, they are more likely to contribute positively to
their home country’s development.
404. ILO participates in the Task Force on Displacement under the Warsaw
International Mechanism for Loss and Damage associated with Climate Change
Impacts. In addition, ILO is contributing to the Platform on Disaster Displacement
through the implementation of regional and integrated projects and plans of action.
8. Task Force on Displacement492
405. The Conference of the Parties to the United Nations Framework Convention on
Climate Change, at its twenty-first session, in Paris, established the Task Force on
Displacement to develop recommendations for integrated approaches to avert,
minimize and address displacement related to the adverse impacts of climate change.
The Executive Committee of the Warsaw International Mechanism for Loss and
Damage associated with Climate Change Impacts was entrusted by the Conference of
the Parties with operationalizing the Task Force. The Task Force also includes
representatives from, inter alia, UNHCR, IOM, the United Nations Development
Programme, the International Federation of Red Cross and Red Crescent Societies,
ILO and the Platform on Disaster Displacement, among other s.
406. The Task Force presented a set of recommendations on integrated approaches in
2018. 493 These recommendations provide for a range of actions and policy
instruments that aim to strengthen policies, institutional frameworks, tools and
guidelines, and the preparedness and capacities of national and local governments to
address climate-related drivers and the impact of displacement. The recommendations
also recognize and stress the importance of enhancing knowledge, data collection,
monitoring of risks, and coordination and policy coherence.
9. Platform on Disaster Displacement
407. The Platform on Disaster Displacement is a State -led initiative that was
launched at the World Humanitarian Summit in 2016 as a follow -up to the Nansen
Initiative, to work towards better protection for people displaced across borders in the
context of disasters and climate change.
408. The Platform on Disaster Displacement continues the work of the Nansen
Initiative by bringing together a group of States committed to supporting the
implementation of the Protection Agenda. The Protection Agenda offers States a
toolbox to better prevent and prepare for displacement before a disaster strikes. When
displacement cannot be avoided, it helps States improve their responses to situations
when people are forced to find refuge, either within their own country or across an
international border. Rather than calling for a new binding international convention
on cross-border disaster displacement, the Protection Agenda supports the in tegration
of effective practices by States and subregional actors into their own normative
frameworks, in accordance with their specific context.
__________________
492 For further information, see https://unfccc.int/process/bodies/constituted -
bodies/WIMExCom/TFD#eq-5.
493 Available at https://unfccc.int/sites/default/files/resource/2018_TFD_report_17_Sep.pdf .
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10. International Federation of Red Cross and Red Crescent Societies
409. The International Federation of Red Cross and Red Crescent Societies has
increasingly devoted its attention to disasters and climate change and their impact on
affected populations. A resolution entitled “Disaster laws and policies that leave no
one behind” was adopted in December 2019 at the thirty-third International
Conference of the Red Cross and Red Crescent. 494
410. The World Disasters Report 2020: Come Heat or High Water 495 discusses how
disaster risk management should become climate smart, including in the face of sea -
level rise: “In a world already replete with people highly exposed to natural hazards,
we must, at the least, ensure the resilience of our critical infrastructure against
reasonably predictable weather extremes and rising sea levels. In light of these
growing risks, we need also to develop a much more thorough and nuanced
understanding of existing vulnerabilities and capacities – and not just in a national
aggregate, but at community level. ”
411. In a 2021 report entitled Displacement in a Changing Climate,496 a collection of
case studies is presented on how national Red Cross and Red Crescent societies
around the world are protecting and assisting communities in the context of climate -
related displacement, including sea-level rise. More ambitious climate action and
investment in local communities and local organizations is called for to address this
urgent humanitarian challenge. According to the report, millions of people around the
world are displaced and moving in the context of disasters and the adverse effects of
climate change, which is only set to worsen as climate change increases the intensity
and frequency of sudden- and slow-onset hazards. It refers to a collective duty to
address the humanitarian impacts of climate -related displacement, without waiting
until communities are displaced: “we can and must take action now to protect them”.
412. In a 2021 report entitled Turning the Tide: Adapting to Climate Change in
Coastal Communities, 497 the devastating impact of climate change on coastal
communities across the globe is highlighted. People living in the world ’s coastal
regions face multiple and compounding risks from climate change. Sea levels are
rising, coastal floods are becoming more severe, storms and cyclones are intensifying,
and storm surge is reaching higher levels, further inland. In addition to extreme
weather events, large areas are becoming uninhabitable, and millions of people have
been or may be forced to leave their homes. The report includes first -hand accounts
by resilient people living in coastal areas in Bangladesh, Mexico and Somalia.
Whether as a result of extreme heat, sea-level rise, droughts or storms, the climate
crisis is already pushing those communities towards the very limits of their future
survival.
__________________
494 Resolution 7, in ICRC and International Federation of Red Cross and Red Crescent Societies, 33rd
International Conference of the Red Cross a nd Red Crescent, Including the Summary Report of the
2019 Council of Delegates (Geneva, 2019), p. 125.
495 International Federation of Red Cross and Red Crescent Societies, World Disasters Report 2020
(see footnote 287 above).
496 International Federation of Red Cross and Red Crescent Societies, Displacement in a Changing
Climate: Localized Humanitarian Action at the Forefront of the Climate Crisis (Geneva, 2021).
497 Bangladesh Red Crescent Society, Cruz Roja Mexicana, International Federation of Red Cross and
Red Crescent Societies, Norwegian Red Cross, Red Cross Red Crescent Climate Centre and
Somalia Red Crescent Society, Turning the Tide: Adapting to Climate Change in Coastal
Communities (Oslo, Norwegian Red Cross, 2021).
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11. World Bank
413. In June 2021, the World Bank published a report entitled Legal Dimensions of
Sea Level Rise: Pacific Perspectives. 498 The focus of the report is on key policy
questions pertaining to the law of the sea, but it also covers issues related to the
protection of persons affected by sea-level rise and how the international community
could assist affected communities.
414. In the area of development and internal climate migration, the World Bank
published its first Groundswell report in 2018),499 focusing on sub-Saharan Africa,
South Asia and Latin America, and the second Groundswell report in 2021, 500
focusing on East Asia and the Pacific, North Africa, and Eastern Europe and Central
Asia. In these reports, future scenarios were explored and patterns identified of
potential hotspots for both in- and outmigration, which constitute key steps towards
a better understanding of the nexus of climate, migration and development.
415. The World Bank also published two Groundswell Africa reports, focusing on
internal climate migration in Africa and using the Groundswell methodology.501 The
impact of sea-level rise and related projections are covered in these reports, but their
scope is broader than sea-level rise. The Groundswell Africa reports also contain a
dedicated legal and policy chapter.
12. Organisation for Economic Co-operation and Development
416. In 2019, OECD published a report on the risks of sea -level rise and how their
members were adapting. This report, entitled Responding to Rising Seas: OECD
Country Approaches to Tackling Coastal Risks,502 includes an analysis of potential
strategies and their benefits and limitations. Such strategies include the construction
and maintenance of hard defences, beach nourishment and dune restoration, “living”
shorelines, amendment of building codes, prevention of new development through
zoning, and relocation.
Part Four: Preliminary observations, guiding questions for
the Study Group and future programme of work
I. Preliminary observations and guiding questions for the
Study Group
A. Statehood
417. The present paper constitutes an initial and preliminary approach to the question
of statehood, where we sought to introduce the main aspects of the issue and to present
some points for discussion and an exchange of views. Although the starting point of
the paper is that sea-level rise is a global phenomenon and has global effects, it is
__________________
498 David Freestone and Duygu Çiçek, Legal Dimensions of Sea Level Rise: Pacific Perspectives
(Washington, D.C., World Bank Group, 2021).
499 Kanta Kumari Rigaud et al., Groundswell: Preparing for Internal Climate Migration (Washington,
D.C., World Bank Group, 2018).
500 Viviane Clement et al., Groundswell Part II: Acting on Internal Climate Migration (Washington,
D.C., World Bank Group, 2021).
501 Kanta Kumari Rigaud et al., Groundswell Africa: Internal Climate Migration in the Lake Victoria
Basin Countries (Washington, D.C., World Bank Group, 2021); and Kanta Kumari Rigaud et al.,
Groundswell Africa: Internal Climate Migration in West African Countries (Washington, D.C.,
World Bank Group, 2021).
502 (See footnote 429 above).
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very important to note that the phenomenon poses a very serious threat to the
existence of some small island developing States, whose land territory may be
completely covered by the sea or become uninhabitable.
418. In this paper, we set out the requirements for the creation of a State as a subject
of international law, on the basis of the 1933 Convention on the Rights and Duties of
States, and a brief description of the cri teria in that regard contained in the
Convention. We also considered the 1936 Institut de Droit International resolution
concerning the recognition of new States and new Governments, the International
Law Commission’s 1949 draft Declaration on the Rights and Duties of States, the
draft articles on the law of treaties presented to the International Law Commission in
1956 by Special Rapporteur Sir Gerald Fitzmaurice; and the opinions of the
Arbitration Commission of the International Conference on the Former Yugoslavia
(Badinter Commission) of 1991. We provided representative examples of actions
taken by States and other subjects of international law, including the cases of the Holy
See, the Sovereign Order of Malta and Governments in exile, and drew attention to
elements of certain international instruments that demonstrate the right of the State to
ensure its own preservation, in accordance with international law and without
prejudice to the rights of other members of the international community.
419. The following issues should also be considered in relation to the phenomenon
of sea-level rise from the perspective of statehood: (a) the entire land territory of a
State may be covered by the sea or become uninhabitable, possibly resulting in
insufficient supply of drinking water for the population; (b) there may be a
displacement of persons to other States, raising a number of concerns relating to the
rights and legal status of nationals of particularly affected States, including questions
concerning the prevention of situations of de facto statelessness through the
maintenance of original nationality or citizenship, the acquisition of another
nationality or the implementation of a dual nationality or common citizenship system;
the ways in which diplomatic protection and assistance and consular protection and
assistance could be provided; and the possibility of treating these displaced persons
as refugees; (c) the legal status of the Government of a State needing to take up
residency in the territory of another St ate; (d) the preservation by States affected by
sea-level rise of their rights with respect to the maritime areas under their jurisdiction
and the resources therein, also taking into account the need to maintain maritime
boundaries established pursuant to agreements or judicial or arbitral decisions; and
(e) the right to self-determination of the people of the States affected by sea -level
rise, which encompasses the right to preserve identities of various kinds.
420. We noted that measures adopted by States include the construction and
reinforcement of coastal defences and polders, as well as the construction of artificial
islands to accommodate persons affected by sea -level rise, and drew attention to the
high costs of such measures and the need to evaluate their potential environmental
impact.
421. Lastly, we emphasized that, although there have not yet been any cases of the
land territory of a State being completely covered by the sea or becoming
uninhabitable, States that have the potential to be the most affected by sea -level rise
have a legitimate interest in seeing the question of statehood in such situations
addressed and the possible approaches analysed. This paper is not intended to be
exhaustive or definitive; the intention is rather to explore possible alternatives, with
a view to contributing to the consideration of the issue by the States Members of the
United Nations, whether that be within the United Nations, in the context of other
entities or groupings or at the level of civil society. Such alternatives include a strong
presumption of continuity of States; the maintenance of international legal personality
without a territory, as in the cases of the Holy See from 1870 to 1929 and the
Sovereign Order of Malta today; and the use of modalities such as the ceding of a
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portion of territory by another State, with or without transfer of sovereignty,
association with other State(s), the establishment of or incorporation into
confederations or federations, unification with another State, including the possibility
of a merger, and the possible development of hybrid schemes, for which we provided
some examples and ideas that may be useful at some point.
422. This is a very sensitive issue that should be addressed with caution, but its
consideration should not be avoided or further postponed, especially considering the
concerns and worries expressed by the States directly concerned. At this time, the aim
is to set out various options that could be considered individuall y, or, depending on
the circumstances, elements of different options could be combined.
423. The following questions are proposed with a view to fostering a fruitful
discussion within the Commission ’s Study Group:
(a) Could we consider the criteria set out in the Convention on the Rights and
Duties of States as the determinants of the existence of a State as a subject of
international law, but agree that, in exceptional circumstances, a State does not cease
to exist despite not meeting any of those criter ia?
(b) How can the cases of the Holy See, the Sovereign Order of Malta and
Governments in exile be of use in addressing the topic?
(c) How can a State exercise the right to provide for its preservation?
(d) How can situations of de facto statelessness be avoided?
(e) How can adequate diplomatic protection and consular assistance be
provided to nationals of a small island developing State affected by the phenomenon
of sea-level rise who are located in third States?
(f) How could the Government of a small island developing State that has to
be hosted in a third State because its territory has been completely covered by the sea
or become uninhabitable best perform its functions?
(g) Is it appropriate to maintain a strong presumption in favour of the
continuity of the statehood of States whose land territory is completely covered by
the sea or becomes uninhabitable?
(h) How could a State whose land territory is completely covered by the sea
or becomes uninhabitable exercise its rights with respect to the maritime areas under
its jurisdiction and the resources therein?
(i) What would be the best ways to preserve and ensure the exercise of the
right to self-determination of the people of States whose land territory is totally
covered by the sea or becomes uninhabitable?
(j) What statehood options could be considered for States whose land territory
is completely covered by the sea or becomes uninhabitable?
424. As indicated by the Republic of Korea in its statement in the Sixth Committee
of the General Assembly delivered in October 2018,503 this issue should be dealt with
comprehensively, that is, taking into account elements of both lex lata and lex ferenda.
Furthermore, as highlighted by both the Republic of Korea 504 and the Holy See,505 at
that same session, sea-level rise is an intergenerational issue and, therefore, the
approaches adopted should ensure respect for the rights and the needs of future
generations.
__________________
503 Republic of Korea (A/C.6/73/SR.23, para. 71).
504 Ibid.
505 Holy See (Observer) (A/C.6/73/SR.24, para. 49).
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B. Protection of persons affected by sea-level rise
425. Sea-level rise is among the several adverse effects of climate change. According
to scientific evidence, this phenomenon, which is already taking place, is likely to
accelerate in the future, resulting in the increased inundation of low -lying coastal
areas and of islands, making these zones less and less habitable. Low -elevation
coastal zones in different regions will be at risk from a variety of threats related to
the rising sea levels, including soil salinization, degradation of marine ecosystems,
more frequent flooding and extreme weather events such as cyclones.
426. Particularly vulnerable areas include small island developing States in the
Pacific and Indian Oceans, West Africa and the Caribbean and highly populated urban
centres in megadeltas and low-lying coastal areas. In these areas, sea-level rise is
having and will continue to have an impact on the lives and livelihoods of the
inhabitants, and may lead to their displacement.
427. Displacement and migration may be triggered by the slow -onset consequences
of sea-level rise, such as coastal erosion, by sudden -onset disasters or by a
combination of both. Sea-level rise may exacerbate storm surges, leading to saltwater
intrusion into surface water and corruption of the freshwater lens, thus diminishin g
habitable conditions of a territory even before its possible submersion or
disappearance. Displacement within one ’s own country and cross-border
displacement to third countries in the context of climate change and disasters,
including sea-level rise, is a multicausal phenomenon, involving interaction with
other, economic, social and political, factors. Unlike some other disasters or adverse
effects of climate change, however, sea-level rise has the potential to create long-term
or permanent movement of persons within a country or to another country.
428. At the same time, for those who wish to remain in situ and who may be able to
do so because of mitigation and adaptation measures, questions may arise as to how
to ensure that their human rights are respec ted, in terms, inter alia, of human dignity,
non-discrimination, access to information and public participation and regarding
possible processes of planned relocation.
429. The current international legal frameworks – that is, the lex lata – that are
potentially applicable to the protection of persons affected by sea -level rise are
fragmented, mostly non-specific to sea-level rise but generally applicable in the
context of disasters and climate change, and often of a soft -law character. Such
international legal frameworks could be further developed in a more specific,
coherent and complete manner in order to effectively protect persons who remain in
situ or have to move because of the impact of sea -level rise.
430. A preliminary assessment of State practice shows that it is still sparse at the
global level, but that it is more developed in States that are already feeling the impact
of sea-level rise on their territory. Some of the practice that it has been possible to
identify is not necessarily specific to sea-level rise, since it covers the wider
phenomena of disasters and climate change, but it reveals relevant principles that may
be used as guidance for the protection of persons affected by sea -level rise.
International organizations and other bodies with relevant mandates in the field of
human rights, displacement, migration, refugees, statelessness, labour, climate
change and finance have been taking a proactive approach in order to promote
practical tools to enable States to be better prepared with rega rd to issues related to
human rights and human mobility in the face of climate displacement, including in
the context of sea-level rise.
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431. Consequently, given the complexity of the issues at hand and taking account of
the mapping exercise of the applic able legal frameworks and emerging practice,
presented in the present paper, it can be concluded that the principles applicable to
the protection of persons affected by sea -level rise could be further identified and
developed by the Study Group and the Commission.
432. This identification and development exercise could build on the draft articles on
the protection of persons in the event of disasters, 506 which provide a general
framework for disaster response and the protection of persons, namely with regard to
human dignity (draft article 4), human rights (draft article 5), the duty to cooperate
(draft article 7) and the role of the affected State (draft article 10). This framework
could be further developed to reflect the specificities of the long -term or permanent
consequences of sea-level rise and to take account of the fact that affected persons
may remain in situ, be displaced within their own country or migrate to another State
in order to cope with or avoid the effects of sea -level rise.
433. As discussed in Part Three, section II, of the present paper, in addition to
instruments of international and regional human rights law, 507 other existing
instruments that could usefully be taken into consideration in this respect include the
Guiding Principles on Internal Displacement (1998),508 the Kampala Convention (23
October 2009), the New York Declaration for Refugees and Migrants (2016), 509 the
Global Compact for Safe, Orderly and Regular Migration (2018), 510 the Sendai
Framework for Disaster Risk Reduction 201 5–2030 (2015) 511 and the Nansen
Initiative’s Agenda for the Protection of Cross-Border Displaced Persons in the
Context of Disasters and Climate Change (2015). 512 Guidance could also be drawn
from the International Law Association ’s Sydney Declaration of Principles on the
Protection of Persons Displaced in the Context of Sea -level Rise.513
434. This exercise should also incorporate the relevant emerging practice of States
and relevant international organizations and bodies, mapped in a preliminary and
illustrative form in Part Three, section III, of the present issues paper. Special
attention should be paid to recent decisions, such as that by the Human Rights
Committee in Teitiota v. New Zealand,514 according to which the effects of climate
change, namely sea-level rise, in receiving States may expose individuals to a
violation of their rights und er articles 6 (right to life) or 7 (prohibition of torture and
cruel, inhuman or degrading treatment or punishment) of the International Covenant
on Civil and Political Rights, thereby triggering the non-refoulement obligations of
sending States, and that given that the risk of an entire country becoming submerged
under water is such an extreme risk, the conditions of life in such a country may
become incompatible with the right to life with dignity before the risk is realized.
__________________
506 Yearbook of the International Law Commission, 2016, vol. II (Part Two), para. 48.
507 Universal Declaration of Human Rights; International Covenant on Civil and Political Rights;
International Covenant on Economic, Social and Cultural Rights; American Conve ntion on Human
Rights: “Pact of San José, Costa Rica”; African Charter on Human and Peoples ’ Rights; and
European Convention on Human Rights.
508 E/CN.4/1998/53/Add.2, annex.
509 General Assembly resolution 71/1.
510 General Assembly resolution 73/195, annex.
511 General Assembly resolution 69/283, annex II.
512 Nansen Initiative, Agenda for the Protection of Cross -Border Displaced Persons (see footnote 368
above).
513 Resolution 6/2018, annex, in International Law Association, Report of the Seventy-eighth
Conference (see footnote 108 above), p. 34.
514 CCPR/C/127/D/2728/2016.
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22-02934 105/107
435. Taking the 2018 syllabus into account,515 and starting from the recognition that
territorial States have the primary duty and responsibility to provide protection and
assistance to persons within their jurisdiction, 516 the following issues may be studied
further and in more detail in order to identify and develop principles regarding the
protection of persons affected by sea-level rise:
(a) what principles are applicable or should be applicable to the protection of
the human rights of persons affected by sea-level rise? In particular, what are or
should be:
(i) the substantive obligations of States to respect human rights with regard
to the right to life, the prohibition of cruel, inhuman or degrading treatment, the
right to adequate housing, the right to food, the right to water, the right to take
part in cultural life and respect for cultural identity, the right to a nationality and
the prevention of statelessness, the rights of children, the right to self -
determination and the rights of indigenous peoples;
(ii) the procedural obligations regarding public participation, access to
information and access to justice;
(iii) the non-refoulement obligations for third States;
(iv) the obligations regarding the protection of vulnerable persons and groups
(including women, children and indigenous peoples);
(v) the obligations regarding the prevention of risks affecting persons?
(b) what principles are applicable or should be applicable to situations
involving the evacuation, relocation, displacement or migration of persons, including
vulnerable persons and groups, owing to the consequences of sea -level rise or as a
measure of adaptation to sea-level rise? In particular, with regard to displacement and
human mobility, what are or should be the obligations of States to protect and assist
persons affected by sea-level rise, adopting both a rights-based and a needs-based
approach, in the following areas:
(i) prevention of displacement;
(ii) assistance to remain in situ;
(iii) establishment of principles for planned relocation;
(iv) protection of persons in case of internal displacement and promotion of
durable solutions;
(v) protection options in case of cross-border displacement (such as
humanitarian visas or temporary protection schemes);
(vi) arrangements for regular migration (both temporary and long -term);
(vii) the granting of refugee status or complementary protection if existing
criteria are met?
__________________
515 A/73/10, annex B, para. 17.
516 See, for instance, Guiding Principles on Internal Displacement, principle 3; General Assembly
resolution 71/127 of 8 December 2016, on strengthening of the coordination of emergency
humanitarian assistance of the United Nations, twenty-second preambular para.; draft article 10 of
the draft articles on the protection of persons in the event of disasters, Yearbook of the
International Law Commission, 2016, vol. II (Part Two), para. 48; and Assembly resolution 45/100
of 14 December 1990 on humanitarian assistance to victims of natural disasters and similar
emergency situation, third preambular para.; and Assembly resolution 46/182 19 December 1991
on strengthening of the coordination of humanitarian emergency assistance of the United Nations,
annex, para. 4.
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106/107 22-02934
(c) what is or should be the applicability and scope of the principle of
international cooperation by other States, in the region and beyond, and by
international organizations, to help States with regard to the protection of persons
affected by sea-level rise?517
436. With regard to subparagraph (c) above, the importance of international
cooperation for the protection of persons was highlighted not only in the
Commission’s draft articles on the protection of persons in the event of disast ers,518
but generally also in many statements by Member States while addressing the topic
of sea-level rise in the debates in the Sixth Committee, namely, in 2021: Colombia, 519
Cuba, 520 Germany, 521 Italy, 522 Maldives, 523 Mexico, 524 New Zealand, 525 Solomon
Islands,526 Turkey527 and Viet Nam.528 For instance, according to Solomon Islands:
“With regard to the protection of persons affected by sea -level rise, the foundational
principles of international cooperation must apply, to help States cope with the
adverse effects of sea-level rise on their populations. The duty to cooperate with
respect to the effects of sea-level rise should be informed by specialized legal regimes
connected to sea-level rise … The principle of cooperation had been interpreted in
__________________
517 Article 1 (3) of the Charter of the United Nations lists the following as one of the four purposes of
the United Nations: “To achieve international cooperation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without dist inction as to race, sex,
language, or religion”. Under Article 56 of the Charter, “[a]ll Members pledge themselves to take
joint and separate action in co-operation with the Organization for the achievement of the
purposes set forth in Article 55.” See also, for instance, International Covenant on Economic,
Social and Cultural Rights, arts. 2 (1), 11, 15 and 22 –23; Declaration on Principles of
International Law concerning Friendly Relations and Co -operation among States in accordance
with the Charter of the United Nations, General Assembly resolution 2625 (XXV), annex, para. 1;
Rio Declaration on Environment and Development, principles 5, 7, 13, 24 and 27; United Nations
Framework Convention on Climate Change, arts. 4 (1) (c)–(e), (g), (h), (i), 5(c), 6(b); articles on
prevention of transboundary harm from hazardous activities ( 2001) (General Assembly resolution
62/68 of 6 December 2007, annex), arts. 4, 14 and 16; Declaration of the United Nations
Conference on the Human Environment (Stockholm, 16 June 1972), Report of the United Nations
Conference on the Human Environment, Stockholm, 5 –16 June 1972 (United Nations publication,
Sales No. E.73.II.A.14 (A/CONF.48/14/Rev.1 and Corr.1, part I, chap. 1), principles 22 and 24.
See also Committee on Economi c, Social and Cultural Rights, general comment No. 2 (1990),
Official Records of the Economic and Social Council, 1990, Supplement No. 3 (E/1990/23-
E/C.12/1990/3 and Corr.1 and Corr.2), annex III; general comment No. 3 (1990), ibid., 1991,
Supplement No. 3 (E/1991/23-E/C.12/1990/8 and Corr.1), annex III; general comment No. 7
(1997), ibid., 1998, Supplement No. 2 (E/1998/22-E/C.12/1997/10 and Corr.1), annex IV; general
comment No. 14 (2000), ibid., 2001, Supplement No. 2 (E/2001/22-E/C.12/2000/21), annex IV;
and general comment No. 15 (2002). Under the Convention on the Rights of Persons with
Disabilities (New York, 13 December 2006; United Nations, Treaty Series, vol. 2515, No. 44910,
p. 3), the principle of cooperation applies “in situations of risk, including situations of armed
conflict, humanitarian emergencies and the occurrence of natural disasters” (art. 11). In the
context of natural disasters specifically, see: General Assembly resolution 46/182, annex, para. 5;
draft Article 5 of the draft articles on the protection of persons in the event of disasters, Yearbook
of the International Law Commission, 2016 , vol. II (Part Two), para. 48; and Guiding Principles
on Internal Displacement, principle 3.
518 Yearbook of the International Law Commission, 2016, vol. II (Part Two), para. 48).
519 Colombia (A/C.6/76/SR.23, para. 24).
520 Cuba (A/C.6/76/SR.21, para. 32).
521 Germany (ibid., para. 79).
522 Italy (A/C.6/76/SR.20, para. 87).
523 Maldives (A/C.6/76/SR.21, para. 139).
524 Mexico (ibid., para. 48).
525 New Zealand (ibid., para. 104).
526 Solomon Islands (A/C.6/76/SR.22, paras. 79–80).
527 Turkey (A/C.6/76/SR.20, para. 81).
528 Viet Nam (A/C.6/76/SR.21, para. 83).
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22-02934 107/107
the context of human rights, the environment and other areas of international law as
an obligation of States to exchange information and provide financial and technical
assistance to States that required additional support. ”529 In that regard, it is also worth
recalling the Malé Declaration on Global Warming and Sea -Level Rise, adopted at
the Small States Conference on Sea-Level Rise in 1989, in which the participants
declared their “intent to work, collaborate and seek international cooperation to
protect the low-lying small coastal and island States from the dangers posed by
climate change, global warming and sea-level rise.”530
437. The Co-Chairs would appreciate guidance and comments from the members of
the Study Group regarding the guiding questions propo sed in paragraphs 423 and 435
above. Contribution papers from members of the Study Group on any of the issues
raised in the guiding questions would be welcomed, and on aspects of State practice
and the practice of relevant international organizations and b odies.
II. Future programme of work
438. In the next quinquennium, the Study Group will revert to each of the subtopics –
the law of the sea, statehood and the protection of persons affected by sea -level rise –
and will then seek to prepare a substantive report on the topic as a whole by
consolidating the results of the work undertaken.
__________________
529 Solomon Islands (A/C.6/76/SR.22, paras. 79–80).
530 A/C.2/44/7, annex.
United Nations A/CN.4/761
General Assembly Distr.: General
13 February 2023
Original: English
23-02584 (E) 120423
*2302584*
International Law Commission
Seventy-fourth session
Geneva, 24 April–2 June and 3 July–4 August 2023
Sea-level rise in relation to international law
Additional paper to the first issues paper (2020), by Bogdan
Aurescu and Nilüfer Oral,* Co-Chairs of the Study Group on
sea-level rise in relation to international law
Contents
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Inclusion of the topic in the Commission’s programme of work; consideration of the
topic by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Purpose and structure of the additional paper to the first issues paper (2020) . . . . . . . . 5
C. Debate in the Sixth Committee of the General Assembly; level of support from
Member States; outreach efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. Issue of “legal stability” in relation to sea-level rise, with a focus on baselines and
maritime zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Views of Member States related to legal stability and the preservation of baselines
and maritime zones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Submissions of Member States to the Commission. . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Statements by Member States in the Sixth Committee of the General Assembly . 16
3. Collective declarations by regional bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
B. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
III. Immutability and intangibility of boundaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. Boundaries and the principle of immutability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. Uti possidetis juris and the intangibility of boundaries. . . . . . . . . . . . . . . . . . . . . . . . . . 42
C. Application of the principle of uti possidetis to maritime boundaries . . . . . . . . . . . . . . 45
D. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
* The Co-Chair wishes to thank Zhifeng Jiang for his research assistance, and Beril Söğüt.
Please
recycle@
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IV. Fundamental change of circumstances (rebus sic stantibus). . . . . . . . . . . . . . . . . . . . . . . . . . 47
A. Submissions of Member States to the Commission and statements by Member States
in the Sixth Committee of the General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. Development of the rule of fundamental change of circumstances . . . . . . . . . . . . . . . . 49
C. Case law and application of the rule of fundamental change of circumstances to
maritime boundaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
D. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
V. Effects of the potential situation whereby overlapping areas of the exclusive economic
zones of opposite coastal States, delimited by bilateral agreement, no longer overlap, and
the issue of objective regimes; effects of the situation whereby an agreed lan d boundary
terminus ends up being located out at sea; judgment of the International Court of Justice in
the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica
v. Nicaragua) case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
VI. Principle that “the land dominates the sea” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. Development of the principle that “the land dominates the sea” . . . . . . . . . . . . . . . . . . 59
B. Principle of natural prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
C. Exception of “permanency” and the continental shelf. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
D. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
VII. Historic waters, title and rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
A. Development of the principle of historic waters, title and rights . . . . . . . . . . . . . . . . . . 63
B. Case law and application of the principle of historic waters, title and rights . . . . . . . . . 65
C. State practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
D. Application to sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
E. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
VIII. Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
A. Statements by Member States in the Sixth Committee of the General Assembly . . . . . 69
B. Equity in general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
C. Equity and the law of the sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
D. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
IX. Permanent sovereignty over natural resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
A. Development of the principle of permanent sovereignty over natural resources . . . . . . 76
B. Definition of permanent sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
C. Permanent sovereignty over marine resources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
D. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
X. Possible loss or gain by third States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
A. Part of the internal waters becomes territorial sea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
B. Part of the territorial sea becomes part of the contiguous zone . . . . . . . . . . . . . . . . . . . 82
C. Part of the territorial sea becomes part of the exclusive economic zone . . . . . . . . . . . . 83
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D. Part of the exclusive economic zone becomes part of the high seas . . . . . . . . . . . . . . . . 85
E. Loss of the archipelagic baseline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
F. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
XI. Nautical charts and their relationship to baselines, maritime boundaries and the safety of
navigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
A. Submissions of Member States to the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
B. Purpose of nautical charts under international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
C. Information provided by the International Hydrographic Organization and the
International Maritime Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
D. Survey by the Division for Ocean Affairs and the Law of the Sea, Office of
Legal Affairs, of charts or lists of geographical coordinates deposited with the
Secretary-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
E. Preliminary observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
XII. Relevance of other sources of law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
XIII. Future work of the Study Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
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I. Introduction
A. Inclusion of the topic in the Commission’s programme of work;
consideration of the topic by the Commission
1. At its seventieth session (2018), the Commission decided to recommend the
inclusion of the topic “Sea-level rise in relation to international law” in its long-term
programme of work. 1 Subsequently, in its resolution 73/265 of 22 December 2018,
the General Assembly noted the inclusion of the topic in the long-term programme of
work of the Commission.
2. At its seventy-first session (2019), the Commission decided to include the topic
in its programme of work. The Commission also decided to establish an open-ended
Study Group on the topic, to be co-chaired, on a rotating basis, by Mr. Bogdan
Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and
Mr. Juan José Ruda Santolaria. At its 3480th meeting, on 15 July 2019, the
Commission took note of the joint oral report of the Co-Chairs of the Study Group. 2
3. At its seventy-second session (2021), the Commission reconstituted the Study
Group, chaired by the two Co-Chairs on issues related to the law of the sea, namely
Mr. Aurescu and Ms. Oral. The Commission considered the first issues paper on the
topic, concerning issues related to the law of the sea,3 prepared by Mr. Aurescu and
Ms. Oral. The paper was issued together with a preliminary bibliography. 4 The Study
Group held eight meetings, from 1 to 4 June and on 6, 7, 8 and 19 July 2021. At its
3550th meeting, on 27 July 2021, the Commission took note of the joint oral report
of the Co-Chairs of the Study Group. Chapter IX of the 2021 annual report of the
Commission contains a summary of the work of the Study Group during that session
on the subtopic of issues related to the law of the sea.5
4. At its seventy-third session (2022), the Commission reconstituted the Study
Group, chaired by the two Co-Chairs on issues related to statehood and to the
protection of persons affected by sea-level rise, namely Ms. Galvão Teles and
Mr. Ruda Santolaria. The Commission considered the second issues paper on the
topic, concerning issues related to statehood and to the protection of persons affected
by sea-level rise,6 prepared by Ms. Galvão Teles and Mr. Ruda Santolaria. The paper
was issued together with a selected bibliography. 7 The Study Group held nine
meetings, from 20 to 31 May and on 6, 7 and 21 July 2022. At its 3612th meeting, on
5 August 2022, the Commission considered and adopted the report of the Study Group
on its work at that session. Chapter IX of the 2022 annual report of the Commission
contains a summary of the work of the Study Group during that session on the
subtopics of issues related to statehood and to the protection of persons affected by
sea-level rise.8
__________________
1 Official Records of the General Assembly, Seventy -third Session, Supplement No. 10 (A/73/10),
para. 369.
2 Official Records of the General Assembly, Seventy -fourth Session, Supplement No. 10 (A/74/10),
paras. 265–273.
3 A/CN.4/740 and Corr.1.
4 A/CN.4/740/Add.1.
5 Official Records of the General Assembly, Seventy -sixth Session, Supplement No. 10 (A/76/10),
paras. 247–296.
6 A/CN.4/752.
7 A/CN.4/752/Add.1.
8 Official Records of the General Assembly, Seventy -seventh Session, Supplement No. 10
(A/77/10), paras. 153–237.
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B. Purpose and structure of the additional paper to the first issues
paper (2020)
5. The purpose of the present paper is to supplement and develop the content of
the first issues paper (2020), on the basis of a number of suggestions by members of
the Study Group that were proposed during the debate on that paper, which took place
during the seventy-second session (2021). These suggestions were presented in the
2021 annual report of the Commission and referred to a wide range of issues. 9
6. While all such suggestions are pertinent to the debates within the Study Group,
owing to the inherent limited dimensions of the present paper, the Co-Chairs will
address the main aspects highlighted by the Member States in their submissions to
the Commission and in their statements presented in the Sixth Committee of the
General Assembly after the first issues paper was issued and following the debate on
it in the Commission in 2021.
7. From this perspective, the present paper focuses on the following areas and is
structured accordingly: the meaning of “legal stability” in connection with the present
topic, including the issue of ambulatory versus fixed baselines; the potential situation
whereby, as a result of sea-level rise and a landward shift of the coastline, overlapping
areas of the exclusive economic zones of opposite coastal States, delimited by
bilateral agreement, no longer overlap; the issue of the consequences of the situation
whereby an agreed land boundary terminus ends up being located out at sea because
of sea-level rise; the relevance of other international treaties and legal instruments
than the United Nations Convention on the Law of the Sea; 10 the relevance for the
topic of various principles; the issue of navigational charts in connection with the
topic; and the possible loss or gain of benefits by third States in the case of fixed
baselines..
8. The present paper is intended to serve as a basis for discussion in the Study
Group and may be complemented by contribution papers prepared by members of the
Study Group.
C. Debate in the Sixth Committee of the General Assembly; level of
support from Member States; outreach efforts
9. Owing to the outbreak of the coronavirus disease (COVID-19) pandemic in
2020, and the ensuing postponement of the seventy-second session of the
Commission, Member States had the opportunity to comment upon the first issues
paper during the sessions of the Sixth Committee in both 2020 and 2021. 11 Some
Member States also made reference in their statements in 2022 to the law of the sea
aspects related to sea-level rise included in the first issues paper and in chapter IX of
the 2021 annual report of the Commission.
__________________
9 See ibid., chap. IX.
10 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982), United
Nations, Treaty Series, vol. 1833, No. 31363, p. 3.
11 The plenary debate in the Sixth Committee as pertains to the subtopic is reflected in the summary
records contained in the documents cited in the footnotes, which contain a summarized form of
the statements made by delegations. The full texts the statements made by de legations
participating in the plenary debate are available from the Sixth Committee ’s web page, at
https://www.un.org/en/ga/sixth/.
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10. The growing interest in and support for the topic as described in the first issues
paper with respect to 2017, 2018 and 2019,12 was confirmed as a trend during the
debates in the Sixth Committee in 2020, 2021 and 2022.
11. In 2020, because of the pandemic and the consequent special circumstances in
which the debate in the Sixth Committee took place, only 25 Member States presented
statements on the Commission’s work,13 of which 15 referred to the topic: 11 of them
expressed appreciation for the first issues paper, 14 and the remaining 4 made reference
to the topic or to the first issues paper.15
12. In 2021, 67 delegations delivered 69 statements in the Sixth Committee that
referred to the topic.16 These statements not only refer to the first issues paper, but
also react to the substantive debates in the Study Group and the Commission that took
place during its seventy-second session (2021).
__________________
12 A/CN.4/740 and Corr.1, paras. 8–9 and 19.
13 A/76/10, para. 255.
14 Belize, on behalf of the Alliance of Small Island States ( A/C.6/75/SR.13, paras. 24–28); Fiji, on
behalf of the Pacific small island developing States ( ibid., paras. 50–51); Maldives (ibid.,
paras. 55–58); Micronesia (Federated States of) ( ibid., paras. 52–55); New Zealand (ibid.,
paras. 43–46); Papua New Guinea (ibid., paras. 37–39); Portugal (ibid., para. 65); Solomon
Islands (ibid., paras. 72– 74); Tonga (ibid., para. 59); Türkiye (ibid., paras. 60–61); and Tuvalu,
on behalf of the Pacific Islands Forum ( ibid., paras. 21–23).
15 India (ibid., paras. 69–60); Republic of Korea ( ibid., paras. 66–68); Sierra Leone (ibid.,
paras. 34–36); and United States of America ( ibid., paras. 30 –32).
16 Croatia (A/C.6/76/SR.17 , para. 64); Samoa, on behalf of the Pacific small island developing
States (A/C.6/76/SR.19, paras. 68 –71); European Union (in its capacity as observer; also on
behalf of the candidate countries Albania, Montenegro, North Macedonia and Serbia; the
stabilization and association proc ess country Bosnia and Herzegovina; and, in addition, Georgia,
the Republic of Moldova and Ukraine) ( ibid., paras. 72–73); Fiji, on behalf of the Pacific Islands
Forum (ibid., paras. 74–76); Antigua and Barbuda, on behalf of the Alliance of Small Island
States (ibid., paras. 77–82); Iceland, on behalf of the Nordic countries (Denmark, Finland,
Iceland, Norway and Sweden) (ibid., paras. 87–91); Singapore (A/C.6/76/SR.20, paras. 22–24);
Sierra Leone (ibid., paras. 27 –29); Islamic Republic of Iran (ibid., paras. 38 –39); France ( ibid.,
paras. 45–47); Egypt (ibid., paras. 58–59); Belarus ( ibid., paras. 63–65); El Salvador (ibid.,
para. 70); Kingdom of the Netherlands ( ibid., para. 76); South Africa (ibid., paras. 77–78);
Türkiye (ibid., paras. 81 –83); Italy (ibid., paras. 87 –88); China (ibid., paras. 92–95); United
States (ibid., para. 96); Israel (ibid., paras. 98–99); Liechtenstein (A/C.6/76/SR.21, paras. 2–4);
Portugal (ibid., paras. 8–10); Romania (ibid., paras. 20–23); Brazil (ibid., para. 26); Cuba (ibid.,
paras. 31–33); Slovakia (ibid., para. 38); Japan (ibid., paras. 41–42); Mexico (ibid., paras. 48–50);
Chile (ibid., paras. 51–58); Hungary (ibid., paras. 67–68); Germany (ibid., paras. 78–82); Viet
Nam (ibid., paras. 83–85); Czech Republic (ibid., para. 92); Slovenia ( ibid., paras. 96–97); New
Zealand (ibid., paras. 102–107); Sri Lanka (ibid., paras. 111–112); Estonia (ibid., paras. 118–122);
Ireland (ibid., paras. 131 –135); Maldives (ibid., paras. 137–141); United Kingdom of Great
Britain and Northern Ireland (ibid., para. 146); Federated States of Micronesia (ibid., paras. 147–150);
Malaysia (ibid., paras. 153–154); Thailand (A/C.6/76/SR.22, paras. 3–5); Côte d ’Ivoire (ibid.,
paras. 6–7); Cameroon (ibid., para. 26); Argentina (ibid., paras. 31–34); Papua New Guinea
(ibid., paras. 35 –38); Austria (ibid., paras. 53–55); Republic of Korea (ibid., para. 60); Australia
(ibid., paras. 62 –63); Poland (ibid., paras. 70–71); Latvia (ibid., paras. 74–75); Solomon Islands
(ibid., paras. 76 –81); Indonesia (ibid., paras. 83 –84); Russian Federation (ibid., paras. 91–95);
Algeria (ibid., paras. 99–100); Cyprus (ibid., paras. 101 –106); Spain (ibid., para. 115); Tonga
(ibid., paras. 117 –120); Greece (ibid., paras. 129 –131); Lebanon (ibid., paras. 133–134); Tuvalu
(A/C.6/76/SR.23, paras. 2–5); India (ibid., paras. 9–10); Costa Rica (ibid., paras. 11–15);
Philippines (ibid., paras. 17–21); Colombia (ibid., paras. 23–25); Holy See (Observer) (ibid.,
paras. 28–29); and Jordan (A/C.6/76/SR.24 , paras. 126–127). The topic was referred to in two
statements by Japan (A/C.6/76/SR.17, para. 74; and A/C.6/76/SR.21, paras. 41–42) and by Sri
Lanka (A/C.6/76/SR.18, para. 8; and A/C.6/76/SR.21, paras. 111 –112). Of all the delegations that
presented statements, only one (Austria) expressed doubts as to “the usefulness of discussing
topics closely resembling those that have already been dealt with” by either the International
Law Association or the Institute of International L aw.
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13. The following were the main issues highlighted in these statements:
(a) the meaning of legal stability, security, certainty and predictability;17
(b) support for the preliminary observation contained in the first issues
paper that the United Nations Convention on the Law of the Sea does not exclude an
approach based on the preservation of baselines and outer limits of maritime zones in
the face of climate change-related sea-level rise once information about such
maritime zones has been established and deposited with the Secretary-General,18 or
support for the solution of fixed baselines and/or outer limits of maritime zones; 19
(c) support for the Declaration on Preserving Maritime Zones in the Face of
Climate Change-related Sea-Level Rise, issued by the Pacific Islands Forum Leaders
in August 2021, and references to regional State practice among the Pacific small
island developing States or the Alliance of Small Island States; 20
(d) support for the Declaration of the Heads of State and Government of the
Alliance of Small Island States issued in September 2021;21
__________________
17 The following States referred explicitly in their statements to legal stability, although implicit
references were made in many other statements: Fiji, on behalf of the Pacific Islands Forum; Antigua
and Barbuda, on behalf of the Alliance of Small Island S tates; Sierra Leone; France; Kingdom of the
Netherlands (which “is guided by the notions of legal certainty, stability and security, while
remaining firmly grounded in the primacy of the [United Nations Convention on the Law of the
Sea]”); Italy; Romania; Brazil; Chile (“‘legal stability’ meant the need to preserve the baselines and
outer limits of maritime zones”); Viet Nam; Slovenia; New Zealand; Estonia; Maldives; Malaysia;
Federated States of Micronesia (“legal stability, security, certainty, and predic tability … mean[s] the
need to maintain maritime zones without reduction, as well as the rights and entitlements that flow
from them, regardless of climate change -related sea-level rise”); Papua New Guinea (“legal
stability … means the need to preserve the baselines and outer limits of maritime zones”); Indonesia;
Solomon Islands (“Solomon Islands holds the view that maritime boundaries and archipelagic
baselines are fixed. Once national maritime zones are determined in accordance with [the United
Nations Convention on the Law of the Sea] and deposited with the Secretary -General, our
interpretation of international law is that they are not subject to change, despite sea -level rise. The
foundational principles of certainty, predictability and stability in int ernational law demand this
result”); Cyprus; Spain; Greece; Tuvalu; Costa Rica; and Philippines.
18 A/CN.4/740 and Corr.1, para. 104.
19 Samoa, on behalf of the Pacific small island developing States; Fiji , on behalf of the Pacific Islands
Forum; Antigua and Barbuda, on behalf of the Alliance of Small Island States; Egypt; Cuba; Chile;
Estonia; Maldives; Malaysia; Federated States of Micronesia; Argentina; Papua New Guinea;
Australia (“[i]t is important tha t we protect our maritime zones, established in accordance with [the
United Nations Convention on the Law of the Sea], in the face of sea -level rise”); Solomon Islands;
Algeria; Cyprus; Tonga; Greece; Tuvalu; and Philippines (which “would caution against i nference in
favour of ambulatory baselines, absent a showing of State practice and opinio juris on the matter”).
20 Samoa, on behalf of the Pacific small island developing States; Fiji, on behalf of the Pacific Islands
Forum; Antigua and Barbuda, on behalf of the Alliance of Small Island States; Japan; New Zealand;
Federated States of Micronesia; Papua New Guinea; Australia (“[w]hile preserving maritime zones to
the greatest extent possible, the Declaration upholds the integrity of [the United Nations Convention
on the Law of the Sea] and is supported by the legal principles underpinning it, including legal
stability, security, certainty and predictability”); Latvia; Spain (“Spain un derstands and positively
values the statement made by the Pacific Islands Forum”); Tonga; and Tuvalu.
21 Fiji, on behalf of the Pacific Islands Forum; Antigua and Barbuda, on behalf of the Alliance of
Small Island States; and New Zealand.
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(e) the need to interpret the United Nations Convention on the Law of the
Sea in the light of changing circumstances and/or taking into account the interests of
States affected by sea-level rise;22
(f) the need to maintain the integrity of the Convention and/or the balance
of rights and obligations under the Convention;23
(g) the need to take into account of equity, 24 the principle of uti possidetis,25
the principle of good faith, 26 the principle that “the land dominates the sea”, the
principle of freedom of the seas, obligations for the peaceful settlement of disputes,
protection of the rights of coastal and non-coastal States, and the principle of
permanent sovereignty over natural resources; 27
(h) the preservation of maritime boundary delimitation treaties and the
decisions of international courts or tribunals;28
(i) the need to study navigational charts;29
(j) the issue of ambulatory versus fixed baselines;30 and
__________________
22 Iceland, on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden);
Chile; Germany (“Germany commits to support the process and work together with others to
preserve their maritime zones and the rights and entitlements that flow from them in a manner
consistent with [the United Nations Convention on the Law of the Sea], including through a
contemporary reading and interpretation of its intents and purposes, rather than through the
development of new customary rules”); Sri Lanka (“[p]e rhaps it was time for the Commission to
examine whether or not [the United Nations Convention on the Law of the Sea] could be modified
by mutual consent or based on the subsequent practice of all States parties”); Estonia; Papua New
Guinea; Russian Federation (“[a] practical solution was needed that was aligned with the United
Nations Convention on the Law of the Sea, on the one hand, and reflected the concerns of States
affected by sea-level rise, on the other”); Solomon Islands; Spain (“[i]t was imperativ e for the
Commission to continue working on the topic in a manner that ensured respect for and integrity of
the United Nations Convention on the Law of the Sea, and also allowed for the identification of
special formulas that reflected the extraordinary ci rcumstances that various States, especially
small island developing States, endured as a consequence of sea -level rise due to climate
change”); Tonga (the United Nations Convention on the Law of the Sea “must be interpreted and
applied in a way that respects the rights and sovereignty of vulnerable small island States”); and
Greece (“[w]ith respect to the topic of sea -level rise, the [United Nations Convention on the Law
of the Sea] provides the answers to the questions raised, within their proper context”) .
23 European Union (in its capacity as observer; also on behalf of the candidate countries Albania,
Montenegro, North Macedonia and Serbia; the stabilization and association process country Bosnia and
Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine); Fiji, on behalf of the
Pacific Islands Forum; Iceland, on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway
and Sweden) (which also referred to predictability and stability in connection with the integrity of the
Convention); Singapore; Italy; China; United States (which emphasized “the universal and unified
character of the [United Nations] Convention on the Law of the Sea”); Romania; Cuba; Japan; Chile;
Germany; Viet Nam; Czech Republic (which also referred to leg al stability, certainty and predictability
in connection with the integrity of the Convention); Malaysia; Australia (for which the Convention
“reflects our commitment to an international rules-based order, as the basis for international stability
and prosperity”); Russian Federation; Cyprus; Spain; Greece; Costa Rica; Philippines; and Jordan.
24 Singapore; Islamic Republic of Iran; Federated States of Micronesia; and Philippines
(“[e]cological equity as a principle is key: no State should suffer disproport ionately from effects
of climate change affecting all”).
25 Egypt, El Salvador and Philippines.
26 El Salvador and Federated States of Micronesia.
27 Belarus and Federated States of Micronesia.
28 Singapore; Italy (“the principle of fundamental change of circumstances [applies] neither to
existing delimitation agreements nor to decisions rendered in arbitral or judicial decisions”);
Chile; Estonia; Malaysia; Argentina; Poland; Indonesia; Algeria; Cyprus; Greece; and Philippines.
29 South Africa.
30 United States, Israel, Romania, Sri Lanka and Ireland.
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(k) the importance of distinguishing between lex lata, lex ferenda and policy
options in the future work on this topic.31
14. In 2022, 67 delegations delivered 68 statements by in the Sixth Committee that
referred to the topic.32 The majority of these statements referred to the second issues
paper, dedicated to the subtopics of statehood and the protection of persons affected
by sea-level rise, and to the debates that took place in the Study Group and the
Commission at its seventy-third session (2022). However, 17 statements also referred
to issues relating to the law of the sea in connection with sea-level rise,33 mainly the
following: support for the solution of fixed baselines; 34 support for legal stability;35
__________________
31 South Africa, Germany, Ireland, Austria and Poland.
32 Croatia; France; European Union (in its capacity as observer; also on behalf of the candidate
countries Albania, Montenegro, North Macedonia an d Serbia; the stabilization and association
process country Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and
Ukraine); Bahamas, on behalf of the Caribbean Community; Iceland, on behalf of the Nordic
countries (Denmark, Finland, Iceland, Norway and Sweden); Singapore; Poland; Slovenia;
China; India; Italy; El Salvador; Belarus; Hungary; United States; Romania; Malaysia; Austria;
Mexico; Sierra Leone; Germany; Islamic Republic of Iran; Brazil; Colombia; Slovakia; Estonia;
Armenia; Australia; Cuba; Portugal; Philippines; Ireland; Kingdom of the Netherlands; Antigua
and Barbuda, on behalf of the Alliance of Small Island States; Israel; Samoa, on behalf of the
Pacific small island developing States; Cameroon; Bangladesh; Maldives; Vi et Nam; South
Africa; United Kingdom; Russian Federation; Chile; Thailand; Egypt; Spain; Federated States of
Micronesia; Czech Republic; Cyprus; Japan; Algeria; Indonesia; United Republic of Tanzania;
Papua New Guinea; Jamaica; Liechtenstein; Côte d ’Ivoire; Peru; Nicaragua; Türkiye; Republic
of Korea; New Zealand; Argentina; Bulgaria; Holy See (Observer); and State of Palestine
(Observer). El Salvador referred to the topic in two statements before the Sixth Committee (see
https://www.un.org/en/ga/sixth/77/summaries.shtml , 21st and 26th plenary meetings).
33 Croatia; European Union (in its capacity as observer; also on behalf of the candidate countries
Albania, Montenegro, North Macedonia and Serbia; the stabilization and association process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine); India;
United States; Romania; Germany; Cuba; Antigua and Barbuda, on behalf of the Alliance of Small
Island States; Samoa, on behalf of the Pacific small island developing States; Thailand; Federated
States of Micronesia; Cyprus; Indonesia; Papua New Guinea; Türkiye; New Zealand; and Bulgaria.
34 Croatia (“Croatia holds the vie w that baselines are fixed and, once determined, national maritime
zones are not subject to change, despite sea -level rise”); European Union (in its capacity as
observer; also on behalf of the candidate countries Albania, Montenegro, North Macedonia and
Serbia; the stabilization and association process country Bosnia and Herzegovina; and, in
addition, Georgia, the Republic of Moldova and Ukraine) (which noted that “there is no express
obligation on States under the United Nations Convention on the Law of th e Sea to periodically
review and update all the charts and coordinates [that] they have drawn (or agreed) and duly
published in accordance with the relevant provisions of the Convention”); United States (which
had “announced a new policy on sea -level rise and maritime zones. Under this policy, which
recognizes that new trends are developing in the practices and views of States on the need for
stable maritime zones in the face of sea -level rise, the United States will work with other
countries toward the goa l of lawfully establishing and maintaining baselines and maritime zone
limits and will not challenge such baselines and maritime zone limits that are not subsequently
updated despite sea-level rise caused by climate change”); Romania (which noted that
“preserving the baselines and outer limits of maritime zones is crucial to legal stability”); Cuba;
Antigua and Barbuda, on behalf of the Alliance of Small Island States; Samoa, on behalf of the
Pacific small island developing States; Cyprus; Papua New Guinea; New Zealand; and Bulgaria.
35 European Union (in its capacity as observer; also on behalf of the candidate countries Albania,
Montenegro, North Macedonia and Serbia; the stabilization and association process country Bosnia and
Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine) (“there are major legal
and policy reasons to recognize the stability provided for by the maritime delimitations established either
by treaty or by adjudication”); United States (see footnote 34 above); Romania (see footnote 34 above);
Germany (which noted that, “[i]n our view, a contemporary reading of [the rules under the United
Nations Convention on the Law of the Sea regarding the stability of baselines] gives t he coastal State the
right to update its baselines when the sea level rises or falls or the coastline moves, but it does not require
the coastal State to do so”); Antigua and Barbuda, on the behalf of Alliance of Small Island States;
Samoa, on behalf of the Pacific small island developing States; Thailand; Indonesia; and Bulgaria.
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the principle that “the land dominates the sea”;36 the need to maintain the integrity of
the United Nations Convention on the Law of the Sea; 37 the need to respect rights of
third States;38 the preservation of maritime boundary delimitation treaties and the
decisions of international courts or tribunals;39 the issue of customary international
law in relation to the topic;40 and the need to interpret the Convention in the light of
changing circumstances and/or taking into account the interests of States affected by
sea-level rise.41
15. The Co-Chairs of the Study Group have continued to undertake numerous
outreach efforts to explain the progress of the Commission’s work on the topic.
II. Issue of “legal stability” in relation to sea-level rise, with
a focus on baselines and maritime zones
16. At the seventy-second session of the Commission (2021), the debate in the Study
Group and in the Commission on the first issues paper focused, inter alia, on the
important issue of legal stability. Some members of the Study Group agreed on the
need for stability, security, certainty and predictability, and the need to preserve the
balance of rights and obligations between coastal States and other States, yet did not
agree on whether the first issues paper’s preliminary observations reflected those
needs. Further, some members took the view that the statements by States in favour
of stability, certainty and predictability could be open to different interpretations, and
called into question the first issues paper’s repeated reliance on “concerns expressed
by Member States”. It was noted that the terms “stability”, “certainty” and
“predictability” were referred to in the jurisprudence in relation to land boundary
delimitation and not maritime delimitation, where the considerations were different.
At the same time, it was noted that the statements delivered in the Sixth Committee
by the delegations of States affected by sea-level rise seemed to indicate that, by
“legal stability”, they meant the need to preserve the baselines and outer limits of
maritime zones. The Study Group welcomed the suggestion that the meaning of “legal
stability” in connection with the present topic needed further clarification, including
by addressing specific questions to the Member States. 42
17. Another important part of the debate on legal stability focused on the relevance
of the preliminary observation from the first issues paper regarding the possible use
__________________
36 Croatia; and European Union (in its capacity as observer; also on behalf of the candidate countries
Albania, Montenegro, North Macedonia and Serbia; the stabilization and asso ciation process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine).
37 Croatia; European Union (in its capacity as observer; also on behalf of the candidate countries
Albania, Montenegro, North Macedonia and Serbia; the stabilization and association process
country Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and
Ukraine); and Romania.
38 European Union (in its capacity as observer; also on behalf of the candidate countries Albani a,
Montenegro, North Macedonia and Serbia; the stabilization and association process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine).
39 European Union (in its capacity as observer; also on behalf of the ca ndidate countries Albania,
Montenegro, North Macedonia and Serbia; the stabilization and association process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine);
Thailand; and Cyprus.
40 European Union (in its c apacity as observer; also on behalf of the candidate countries Albania,
Montenegro, North Macedonia and Serbia; the stabilization and association process country
Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and Ukraine);
Federated States of Micronesia; and Papua New Guinea.
41 Samoa, on behalf of the Pacific small island developing States; Federated States of Micronesia;
Papua New Guinea; and New Zealand.
42 A/76/10, para. 266.
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of fixed baselines and outer limits of the maritime zones measured from the baselines
as a response to the concerns of the States affected by sea-level rise. A substantive
discussion regarding the interpretation of the provisions of the United Nations
Convention on the Law of the Sea pertaining to the ambulatory or fixed character of
baselines took place in the Study Group. 43
18. Beyond the doctrinal perspective on the issue of legal stability, it is highly
relevant to take into account the views expressed by Member States in their
submissions to the Commission and in their statements delivered in the Sixth
Committee after the first issues paper was released in 2020, and, especially, in
reaction to the debate in the Study Group and in the Commission in 2021. Indeed,
this methodological approach is confirmed by the references in the 2021 annual report
of the Commission to the need to address specific questions to the Member States in
further clarifying the meaning of “legal stability”, and to the agreement among
members of the Study Group on the importance of and need for assessing State
practice on questions relating to the freezing of basel ines.44
19. As evidenced below, the Member States, in their submissions and statements,
attached concrete meaning to “legal stability”, connected to the importance of fixing
the baselines from which the maritime zones are measured and the outer limits of
these zones, thus preserving their entitlements to these zones. The issue of legal
stability in connection with delimitation agreements is not covered in the present
chapter, but will be examined later, in chapters III and IV, in the context of analysis
of the principles of uti possidetis juris and rebus sic stantibus. Member States were
clear and unequivocal as to their support for the observations in paragraph 141 of the
first issues paper in this respect, especially subparagraph (c).45
A. Views of Member States related to legal stability and the
preservation of baselines and maritime zones
1. Submissions of Member States to the Commission
20. Antigua and Barbuda, in its submission to the Commission, in 2021, 46 makes a
direct and concrete reference to the meaning that it attaches to legal stability, which
is connected with the solution of fixed baselines: “The baselines may remain fixed
despite sea-level rise to abide with the principles of certainty and stabili ty … Antigua
and Barbuda shares the concerns expressed in the [first issues paper] that ambulatory
baselines ‘affect legal stability, security, certainty and predictability’”.47 It states the
following:
Antigua and Barbuda’s legal opinion, which is backed by its State practice …,
is that maritime baselines established in accordance with [the United Nations
Convention on the Law of the Sea] may remain fixed despite sea-level rise and,
additionally, States have no obligation to revise maritime baselines because of
sea-level rise. … [B]aselines may remain fixed despite sea-level rise to abide
__________________
43 Ibid., paras. 270–275.
44 Ibid., paras. 266 and 270.
45 A/CN.4/740 and Corr.1, para. 141, especially 141 (c): “Sea -level rise cannot be invoked in
accordance with article 62, paragraph 2, of the 1969 Vienna Convention on the Law of Treaties,
as a fundamental change of circumstances for terminating or withdrawing from a t reaty which
established a maritime boundary, since maritime boundaries enjoy the same regime of stability as
any other boundaries.”
46 Submission of Antigua and Barbuda. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
47 Ibid., para. 17; and A/CN.4/740 and Corr.1, para. 77.
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with the principles of certainty and stability. Furthermore, ambulatory baselines
are inequitable and unfair.48
Antigua and Barbuda again makes the direct connection between legal stability and
fixed baselines: “Fixed baselines respect international law while ambulatory
baselines may lead to the violation of international law principles … Interpreting
baselines as fixed would be more consistent with the principles of certainty and
stability of international law.”49 It goes further with this reasoning by arguing that the
United Nations Convention on the Law of the Sea should be interpreted in the light
of the current challenges prompted by sea-level rise. In this respect, it invokes
article 7, paragraph 2, of the Convention, on deltas:
[U]nder this provision, States can keep their baseline when the low-water line
regresses but can still move them forward in the event the low-water line were
to expand … [S]ea-level rise triggers article 7, [paragraph 2,] of [the
Convention] and allows for the drawing of straight baselines “along the furthest
seaward extent of the low-water line” that “shall remain effective until changed
by the coastal State” “notwithstanding subsequent regression of the low -water
line”. Indeed, the “other natural conditions” and “regression of the low-water
line” included in the article can reasonably be read to include sea -level rise.
Thus, even with sea-level rise, which causes a coastline to be highly unstable,
and notwithstanding subsequent regression of the low-water line, baselines can
remain fixed.50
Antigua and Barbuda concludes by referring to its State practice: “Antigua and
Bermuda deposited its maritime charts with the United Nations … In accordance with
the practice of fixed maritime entitlements, Antigua and Barbuda has never updated
its deposited charts as sea levels have risen. This practice is consistent with
[paragraph 104 (f) of the first issues paper], that found that States do not have to
update their baseline and can preserve their entitlements.”51 Moreover, its Maritime
Areas Act 1982 “provides for no mandatory update of those charts or lists”. 52
21. Colombia, in its submission to the Commission, in 2022, does not refer directly
to legal stability, but refers extensively to the issue of baselines. It recalls the
Declaration on Preserving Maritime Zones in the Face of Climate Change-related
Sea-Level Rise, issued by the Pacific Islands Forum Leaders in August 2021, “in
which the member countries of the Forum state that … they do not in tend to review
the baselines or limits of their maritime zones as notified [at the relevant time] to the
Secretary-General”. While Colombia has not yet formally decided on a specific
position regarding that intention, it notes the following:
[It] will continue to review the issue, in particular because, owing to its
geographical location and the configuration of its coastline and island territories,
it is among the States that will be the worst affected by climate change and rising
sea levels. … [B]aselines, although they are of a variable nature insofar as they
change in accordance with changes in the coastline and variations in the lowwater
line, have to be set out on maps, and there is no express obligation to
modify or update them. … [T]here would be no legal impediment to updating
or revising registered and publicized maps or coordinates, but nor is there a
positive obligation to do so.53
__________________
48 Submission of Antigua and Barbuda (see footnote 46 above), paras. 10 and 13.
49 Ibid., at para. 12, and para. 20.
50 Ibid., paras. 19 and 22–23.
51 Ibid., para. 45.
52 Ibid., para. 44.
53 Submission of Colombia, pp. 2–3. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
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22. New Zealand, in its submission to the Commission, in 2022, refers to its State
practice: “New Zealand has not updated [its] maritime zone submission since it was
submitted [on 8 March 2006]. In the event that New Zealand experiences coastal
regression as a result of climate change-related sea-level rise, New Zealand does not
intend to update its notification of 8 March 2006.”54 This practice is presented as fully
in accordance with Declaration on Preserving Maritime Zones in the Face of Climate
Change-related Sea-Level Rise, issued by the Pacific Islands Forum Leaders on
6 August 2021:
The Declaration … makes clear our intention to maintain our zones, without
reduction. The Declaration records the position of Members of the [Pacific
Islands Forum] that maintaining maritime zones established in accordance with
[the United Nations Convention on the Law of the Sea], and rights and
entitlements that flow from them, notwithstanding climate change-related sealevel
rise, is supported by both the Convention and the legal principles
underpinning it.55
23. New Zealand also informs the Committee about the practice of the Cook Islands:
The Cook Islands is a self-governing territory in free association with New
Zealand, and a party to [the United Nations Convention on the Law of the Sea]
in its own right. New Zealand notes that when the Cook Islands deposited its list
of geographic coordinates to the Secretary-General on 12 August 2021 in
accordance with [the Convention], it further transmitted … the following
observation of relevance to this topic: ‘The Cook Islands states its understanding
that it is not obliged to keep under review the maritime zones reflected in the
present official deposit of lists of geographical coordinates of points and
accompanying illustrative maps, delineated in accordance with [the Convention,
and that the Cook Islands intends to maintain these maritime zones in line with
that understanding, notwithstanding climate change-induced sea-level rise.’56
24. The Pacific Islands Forum, in its submission to the Commission, in 2021, refers,
inter alia, to the practice of Fiji: “Fiji’s Climate Change Act 2021 is a most recent
State practice that recognizes by law the permanence of Fiji ’s maritime boundaries
and maritime zones notwithstanding the effects of climate change and sea-level rise,
aligned to the [Pacific Islands Forum] position in the 2021 [Forum] Declarati on.”57
25. The Philippines, in its submission to the Commission, in 2022, notes the
following regarding the stability of baselines in case of sea-level rise:
We are … of the view that any adjustment of the baselines should result in
expansion rather than diminution of our maritime zones. Erosion of coastlines
and inundation of features as a result of sea-level rise, for example, should not
affect the baselines that the State has established. … Further, in accordance with
article 7 (2) of [the United Nations Convention on the Law of the Sea], there is
no need to change the baselines if it would result in a reduction of maritime zone
areas as a result of the regression of the coastline.58
26. Japan, in its submission to the Commission, in 2022, noted that the Leaders
Declaration adopted at the Ninth Pacific Islands Leaders Meeting, on 2 July 2021,
__________________
54 Submission of New Zealand, p. 1. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
55 Ibid.
56 Ibid., p. 2.
57 Submission of the Pacific Islands Forum in 2021, para. 44. Available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
58 Submission of the Philippines. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
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referred to the “importance of protecting maritime zones established in accordance
with” the United Nations Convention on the Law of the Sea. 59
27. France, in its submission to the Commission, in 2022, is in favour of interpreting
the United Nations Convention on the Law of the Sea in order to find solutions for
the impact of sea-level rise, even if it does not explicitly mention “legal stability”:
France considers that the Convention’s framework and ambitions help us to
understand this relatively new legal issue, without requiring a new multilateral
framework. In this regard, it is … important to note that the Convention
provisions grant coastal States room for manoeuvre when it comes to taking the
initiative to modify or maintain declared data regarding baselines and limits of
their maritime zones. The Convention leaves it to coastal States to decide
whether to make modifications to this data, which means that so long as a coastal
State does not decide to make such modifications, the initially declared data
remain in force.60
France goes on to note that “some of the Convention ’s provisions could be applied to
sea-level rise”, with direct reference to article 7, paragraph 2, regarding deltas, which,
according to France, can be interpreted “as being applicable to situations resulting
from sea-level rise, independently [of] the presence of a delta”. It takes that reasoning
further, noting that article 7, paragraph 4, of the Convention could similarly “be
applied in the context of sea-level rise, because it enables a coastal State to establish
straight baselines from low-tide elevations”.61
28. Germany, in its submission to the Commission, in 2022, goes in the same
direction and is clear:
[O]n the issue of the preservation of baselines and maritime zones … Germany
commits to … work together with others to preserve their maritime zones and
the rights and entitlements that flow from them in a manner consistent with the
[United Nations Convention on the Law of the Sea], including through a
contemporary reading and interpretation of its intents and purposes, rather than
through the development of new customary rules. 62
Germany is explicitly in favour of interpreting the Convention in order to find
solutions for the impact of sea-level rise:
Through such contemporary reading and interpretation, Germany finds that [the
Convention] allows for freezing of [baselines and outer limits of maritime
zones] once duly established, published and deposited … in accordance with the
Convention.
[The Convention] does not contain any explicit obligations to update [either]
normal baselines that have been marked … [or] straight baselines that have been
marked, published and deposited …, as well as no further obligation to update
a State’s relevant charts and lists of geographical coordinates with regard to the
[exclusive economic zone] … and the continental shelf ….
__________________
59 Submission of Japan. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms . See also
para. 12 of the Leaders Declaration, available from https://www.mofa.go.jp/files/100207980.pdf .
60 Submission of France, pp. 1–2. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
France also notes that the Convention “does not provide for an obligation, for coastal States, to
re-evaluate and update their b aselines”, that “States may update their baselines and their national
maritime zone notifications, but they are not obliged to do so”, and that the Convention “does
not provide for an obligation to update the charts and lists of geographical coordinates, o nce
published pursuant to its provisions” ( ibid., pp. 3–4).
61 Ibid., p. 2.
62 Submission of Germany, p. 1. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
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However, Germany concludes [that] the concept of fictitious baselines [is]
already immanent within [the Convention], in particular when a coastline is
highly unstable due to the presence of “a delta and other natural conditions” [in
accordance with article 7, paragraph 2, of the Convention].
Since this provision has been translated as “delta or other natural conditions” in
several translations by [European Union member States], Germany suggests to
examine if a contemporary understanding of the provision could broaden the
scope of the exception pursuant to [article 7, paragraph 2, of the Convention]
and provide further legal certainty with regard to States freezing their baselines
and outer limits of maritime zones.63
Germany continues to present this interpretation in the following terms:
Germany … considers that once the baselines and lines of delimitation
mentioned in [article 16 of the Convention] have been drawn in accordance with
the Convention and their charts and lists of geographical coordinates duly
published and deposited with the [Secretary-General], these baselines and lines
of delimitation, as well as the charts and geographical coordinates, remain stable
until the coastal State decides to update them again.
Germany also considers that once a coastal State has duly published the outer
limit lines and the lines of delimitation of its [exclusive economic zone] and
continental shelf in accordance with the Convention and duly published and
deposited their relevant charts and lists of geographical coordinates with the
[Secretary-General], … the Convention does not impose a further duty on the
coastal State to keep these under review and/or update them regularly (but the
coastal State remains entitled to do so).64
29. Ireland, in its submission to the Commission, in 2022, informs the Committee
of the following:
Ireland notes that its practice in this field to date has not been formulated
expressly in contemplation of sea-level rise. In Ireland normal baselines are
ambulatory and are determined by the low-water line along the coast as marked
on the officially recognized large-scale charts. These charts are revised from
time to time and accordingly the normal baselines may change over time
depending on natural processes.
At the same time, Ireland “notes that in contrast to straight baselines, coastal States
are not required by [the United Nations Convention on the Law of the Sea] to deposit
details of normal baselines with the Secretary-General”.65
30. The Kingdom of the Netherlands, in its submission to the Commission in 2022,
provides interesting information regarding its efforts to ensure the stability of its
coastline:
In respect of the European part of the [Kingdom of the] Netherlands a so-called
“basic coastline” has been established (for policy purposes). … An important
tool to maintain and preserve the coastline is the “basic coastline”, which is
defined as an imaginary, indicative line along our coast, in between the lowwater
line along the coast at the bottom and the dune foot … at the top. … The
basic coastline (“approach”) is evaluated every six years in terms of loca tion
and efficiency. It is also periodically reviewed whether the effects of the rising
sea level should be taken into account. … In respect of the European part of the
__________________
63 Ibid., p. 2.
64 Ibid., p. 3.
65 Submission of Ireland. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
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[Kingdom of the] Netherlands, the current adaptation measures executed by the
Dutch authorities in order to preserve the coastline take the form of sand
nourishment …. The basic coastline remains basically the same.66
31. Poland, in its submission to the Commission, in 2022, notes that it “does not
consider modifying of maritime boundary treaties due to sea-level rise for now”.67
32. The United Kingdom of Great Britain and Northern Ireland, in its submission to
the Commission, in 2022, refers to the frequency of updating of national legislation
regarding baselines, and of national maritime zone notifications deposited with the
Secretary-General: “There has been no change to this legislation, including to the
specified coordinates, since it was originally made [in 2014]”. 68
2. Statements by Member States in the Sixth Committee of the General Assembly
33. The statements presented from 2020 to 2022 on behalf of the Pacific Islands
Forum and by the member States of the Forum are clear as to the meaning attached
to legal stability.
34. For instance, Tuvalu, in its statement on behalf of the Pacific Islands Forum in
2020, refers directly to legal stability:
As mentioned by the [first issues paper] and highlighted by many Member
States, there is an overarching concern for preserving legal stability, security,
certainty and predictability at the very centre of this topic. This would also be
in line with the general purpose of the [United Nations Convention on the Law
of the Sea], as reflected in its preamble. … The practice of our region, as well
as the practice of other regions, demonstrates the interest of many Member
States in preserving the legal stability and security of their baselines and of outer
limits of maritime zones measured from the baselines. … In this context, we
note with appreciation the preliminary conclusions set out in [paragraph] 104 of
the first issues paper and particularly draw attention to the points in
[subparagraphs] (e) and (f) that the Convention does not exclude an approach
based on the preservation of baselines and outer limits once notifications have
been deposited.69
35. Fiji, in its statement on behalf of the Pacific Islands Forum in 2021, explicitly
clarifies the meaning of legal stability:
In the interest of absolute clarity, particularly in light of the discussion in the
Commission this year on this point, we stress that when we refer to the need for
legal stability, security, certainty and predictability in relation to the subtopic of
the law of the sea, we mean that this is achieved through the preservation of
maritime zones and the rights and entitlements that flow from them despite
climate change-related sea-level rise.70
It also specifies the following:
The Pacific Islands Forum’s approach to this issue … preserves maritime zones
in the face of climate change-related sea-level rise. … We also recognize that
__________________
66 Submission of the Kingdom of the Netherlands, pp. 2 –3. Available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
67 Submission of Poland, p. 2. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
68 Submission of the United Kingdom, para. 6. Available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
69 Statement of Tuvalu, on behalf of the Pacific Islands Forum, in 2020. Available from
https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
70 Statement of Fiji, on behalf of the Pacific Islands Forum, in 2021, para. 12. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#19mtg .
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other countries, including small island developing States and low-lying States
outside of our Pacific region, similarly require stability, security, certainty and
predictability of their maritime zones.71
36. In the same statement, Fiji refers to the Declaration on Preserving Maritime
Zones in the Face of Climate Change-related Sea-Level Rise, issued by the Pacific
Islands Forum Leaders on 6 August 2021, as “a formal statement of Forum Members ’
view on how the [United Nations Convention on the Law of the Sea] rules on
maritime zones apply in the situation of climate change-related sea-level rise” and “a
good-faith interpretation of [the Convention] and a description of the current and
intended future practice of our members in [the] light of this interpretation”. 72
37. Similar references to the importance of the Declaration in connection with legal
stability can be found in many statements by Forum member States in 2021 and 2022.
For example, Papua New Guinea, in its statement in 2021, noted the following:
Through this Declaration, Pacific Island Forum Members intend to promote
stability, security, certainty and predictability of maritime zones by clarifying
our good-faith interpretation of [the Convention] as it applies to the relationship
between climate change-related sea-level rise and maritime zones.
The Declaration proclaims that the Pacific Islands Forum Members’ maritime
zones, as established and notified to the Secretary-General of the United Nations
in accordance with [the Convention], and the rights and entitlements that flow
from them, shall continue to apply, without reduction, notwithstanding any
physical changes connected to climate change-related sea-level rise.
… [T]his proclamation, and the current and intended future State practice in our
region, is supported by [the Convention] and its underpinning legal principles,
including those of stability, security, certainty and predictability. Furthermore,
preserving maritime zones in the manner set out in the Declaration contributes
to a just international response to climate change-related sea-level rise.73
Papua New Guinea also notes in its statement in 2022 that this approach of the
Declaration “is in accord with the observations in paragraphs 104 (e) and 104 (f) of
the first issues paper. We are pleased at the positive responses to the [Forum]
Declaration that have been expressed to us by many members of the international
community across different regions”.74 Similarly, New Zealand, in its statement in
2021, notes that the Declaration “promotes the principles of legal stability and
certainty over maritime zones”,75 and, in its statement in 2022, refers again to “the
approach set out” in the Declaration.76 Similar references are made by Samoa, in its
statement on behalf of the Pacific small island developing States in 2021; 77 by the
Federated States of Micronesia in its statement in 2021; 78 and by Australia in its
__________________
71 Statement of Fiji, on behalf of the Pacific Islands Forum, in 2021 (see footnote 70 above),
paras. 8 and 11.
72 Ibid., paras. 10 and 13.
73 Statement of Papua New Guinea in 2021, p. 3. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
74 Statement of Papua New Guinea in 2022, p. 2. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (29th plenary meeting).
75 Statement of New Zealand in 2021, p. 4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
76 Statement of New Zealand in 2022, p. 2. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (29th plenary meeting).
77 Statement of Samoa, on behalf of the Pacific small island developing States, in 2021. Avai lable
from https://www.un.org/en/ga/sixth/76/summaries.shtml#19mtg .
78 Statement of the Federated States of Micronesia in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
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statement in 2021 (“While preserving maritime zones to the greatest extent possible,
the Declaration … is supported by the legal principles underpinning it, including legal
stability, security, certainty and predictability”).79
38. In its statement on behalf of the Pacific small island developing States in 2020,
Fiji refers to efforts to ensure that “maritime zones could not be challenged or reduced
as a result of sea-level rise and climate change”, and calls on other member States to
“recognize the need [to retain] maritime zones and the entitlements that flow from
such maritime zones once delineated in accordance with [the United Nations
Convention on the Law of the Sea]”.80 Samoa, in its statement on behalf of the Pacific
small island developing States in 2021, goes into further detail on the need to maintain
the stability of maritime zones and of the entitlements and rights of coastal States
affected by sea-level rise:
Currently, the mean low-water lines along coasts around the world as marked
on large-scale charts officially recognized by the relevant coastal States are used
as normal baselines for measuring maritime zones under [the Convention].
These physical points will likely change in the future due to climate changerelated
sea-level rise, but [the Convention does not explicitly state what this
means for maritime zones and the rights and entitlements that flow from them.
It is important that [the Convention] is applied in such a way that respects the
rights and obligations in the Convention, including the rights and entitlements
of island States flowing from their maritime zones. We note with appreciation
the preliminary observations set out in [paragraph 104 of the first issues paper]
and particularly draw attention to the points in [subparagraphs] (e) and (f) that
[the Convention] does not exclude an approach based on the preservation of
baselines and outer limits of maritime zones in the face of climate change -
related sea-level rise once information about such maritime zones has been
established and deposited with the … Secretary-General.
… Many [Pacific small island developing States] have built on regional State
practice by adopting domestic legislation purporting to maintain their maritime
limits for perpetuity, including the description of maritime boundary lines by
reference to geographic coordinates and defining the outer limits of our
continental shelves beyond 200 nautical miles and reference to neutral decisionmaking
processes under [the Convention]. … This practice grounds the
observations of the Co-Chairs that, in order to preserve maritime zones and the
rights and entitlements that flow from them, States parties [to the Convention]
are not obligated to update their maritime zone coordinates or charts once
deposited with the … Secretary-General.81
In its statement on behalf of the Pacific small island developing States in 2022, Samoa
notes that “[Pacific Islands] Forum Leaders consider that maritime zones, once
established and notified to the Secretary-General … in accordance with [the
Convention], and the rights and entitlements that flow from them, shall continue to
apply, without reduction, notwithstanding any physical changes connected to climate
change-related sea-level rise”.82
__________________
79 Statement of Australia in 2021, p. 2. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
80 Statement of Fiji, on behalf of the Pacific small island developing States, in 2020, p. 2. Available
from https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
81 Statement of Samoa, on behalf of the Pacific small island developing States, in 2021 (see
footnote 77 above).
82 Statement of Samoa, on behalf of the Pacific small island developing States, in 2022, p. 2.
Available from https://www.un.org/en/ga/sixth/77/summaries.shtml (28th plenary meeting).
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39. Papua New Guinea, a Pacific Islands Forum member, refers to legal stability in
its statement in 2020:
For Papua New Guinea, as an archipelagic States, the need to preserve the legal
stability, security, certainty and predictability of our maritime zones is of very
high priority, including as regards our archipelagic waters. We therefore
welcome and agree with the emphasis in the [Study Group Co-Chairs’] first
issues paper on the need to preserve legal stability, security, certainty and
predictability.83
In its statement in 2021, it is even more direct as to the meaning of legal stability:
[W]e recognize the need for legal stability, security, certainty and predictability,
to maintain peace and security and orderly relations between States, and to avoid
conflict …. By “legal stability”, we mean the need to preserve the baselines and
outer limits of maritime zones. … [T]here are no provisions in [the Convention]
that require States to keep under review and update their baselines and outer
limits of maritime zones, once the relevant information has been deposited with
the SecretaryGeneral
of the United Nations in accordance with [the
Convention].84
It makes similar references in its statement in 2022. 85
40. In its statement in 2020, the Federated States of Micronesia, another Pacific
Islands Forum member, refers explicitly to legal stability:
We agree with the [first issues paper]’s observations that the 1982 United
Nations Convention on the Law of the Sea … does not contemplate the
phenomenon of sea-level rise, does not prohibit States parties from preserving
for perpetuity their maritime zones and the entitlements that flow from them
once those zones are delineated in accordance with the Convention, and should
be interpreted and applied in a manner that fosters legal stability, security,
certainty and predictability.86
It continues by providing information about its State practice in this regard:
[E]arlier this year, [the Federated States of] Micronesia officially deposited its
lists of geographical coordinates of points and accompanying illustrative maps
of our maritime zones with the Secretary-General …. In that process, [the
Federated States of] Micronesia formally included with its deposit a set of
written observations which, among other things, underscored that [the Federated
States of] Micronesia is a specially-affected State with respect to sea-level rise
and climate change; stated [the Federated States of] Micronesia’s understanding
that it is not obliged to keep under review the maritime zones reflected in its
official deposit of lists of geographical coordinates of points and accompanying
illustrative maps, as delineated in accordance with the Convention; and
announced that [the Federated States of] Micronesia intends to maintain these
maritime zones in line with that understanding, notwithstanding climate changeinduced
sea-level rise. These observations have been included in the formal
maritime zone notification circulated earlier this year by the Secretary-General
as depositary of the Convention. 87
__________________
83 Statement of Papua New Guinea in 2020, p. 3. Available from
https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
84 Statement of Papua New Guinea in 2021 (see footnote 73 above), pp. 2 –3.
85 Statement of Papua New Guinea in 2022 (see footnote 74 above).
86 Statement of the Federated States of Micronesia in 2020, p. 1. Available from
https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg
87 Ibid., p. 2.
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It is even more explicit in its statement in 2021:
[The Federated States of] Micronesia stresses that when we speak of the
importance of legal stability, security, certainty and predictability in connection
with the law of the sea elements of the sea-level rise topic, we mean the need to
maintain maritime zones without reduction, as well as the rights and
entitlements that flow from them, regardless of climate change-related sea-level
rise. … [T]he rights and entitlements that flow from maritime zones that are
originally established by a coastal State must never be reduced solely on the
basis of climate change-related sea-level rise. … [T]he preservation of maritime
zones and the rights and entitlements that flow from them is the most suitable
and equitable approach in order to achieve that goal.88
41. In its statement in 2020, Tonga, also a Pacific Islands Forum member, takes the
same line:
Tonga maintains that the baselines which determine our territorial boundaries,
once established under the United Nations Convention on the Law of the Sea,
should remain unchanged despite the effects of sea-level rise and any climate
change modification that might ensue. Our sovereignty must not be
compromised to that effect.89
It is more explicit in its statement in 2021:
The catastrophic impacts of rising sea levels cannot be emphasized enough.
This unprecedented reality was not contemplated 40 years ago when the legal
regime for ocean governance under the 1982 United Nations Convention on the
Law of the Sea … was being negotiated. The current deliberations of the
Commission are key to filling this gap and strengthening the [Convention]
framework to address the modern realities of sea-level rise.
It is for the aforementioned [reasons] that our Pacific Islands Forum leaders are
committed to ensuring [that] maritime zones of Pacific Member States are
delineated in accordance with [the Convention] which should not be challenged
or reduced due to climate change-induced sea-level rise. We maintain the
importance of preserving baselines and outer limits of maritime zones measured
therefrom and their entitlements, despite climate change-induced sea-level rise.
[The Convention must be interpreted and applied in a way that respects the rights
and sovereignty of vulnerable small island States. …
We welcome the Commission’s … preliminary conclusion in [paragraph 104 of
the first issues paper] that preserving maritime zones once notifications have
been deposited can be consistent with the Convention. 90
42. In its statement in 2020, Solomon Islands, another Pacific Islands Forum
member, also refers to fixed baselines in the context of stability:
[The United Nations Convention on the Law of the Sea] does not adequately
consider rapidly rising sea levels. This ambiguity was underscored in the Study
Group’s issues paper. …
My delegation would like to reaffirm its opinion that maritime boundaries and
archipelagic baselines are fixed. Once national maritime zones are determined
in accordance with [the Convention] and deposited with the Secretary-General,
__________________
88 Statement of the Federated States of Micronesia in 2021 (see footnote 78 above).
89 Statement of Tonga in 2020. Available from https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg.
90 Statement of Tonga in 2021, pp. 1 –2. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
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our interpretation of international law is that they are not subject to change,
despite sea-level rise. Fixed baselines contribute to the certainty, predictability,
and stability of maritime boundaries in international law. Fixed baselines ensure
fair and equitable results, by preserving existing maritime entitlements which
[small island developing States] and so many other States rely on.
This stability is of great importance to Solomon Islands …. Consistent with
international law and regional practice, Solomon Islands has deposited
geographic coordinates for nearly all of its maritime zones with [the Division
for Ocean Affairs and the Law of the Sea]. These zones are fixed and are not to
be altered, despite sea-level rise.91
Solomon Islands repeats the same position in its statement in 2021:
Once national maritime zones are determined in accordance with [the
Convention] and deposited with the Secretary-General, our interpretation of
international law is that they are not subject to change, despite sea-level rise.
The foundational principles of certainty, predictability and stability in
international law demand this result.92
43. In its statement in 2021, Tuvalu, another Pacific Islands Forum member, also
refers explicitly to legal stability: “As mentioned in the [first issues paper] and
highlighted by many Member States, there is an overarching concern for preserving
legal stability, security, certainty and predictability at the very centre of this topic.
This would also be in line with the general purpose of [the United Nations Convention
on the Law of the Sea], as reflected in its preamble.”93
44. In its statement in 2021, Australia, also a Pacific Islands Forum member, refers
to the issue of stability in the following terms:
It is important that we protect our maritime zones, established in accordance
with [the United Nations Convention on the Law of the Sea], in the face of sealevel
rise.
… [T]he Declaration [on Preserving Maritime Zones in the Face of Climate
Change-related Sea-Level Rise] adopted by Pacific Islands Forum Leaders on
6 August 2021 … is supported by the legal principles underp inning it, including
legal stability, security, certainty and predictability.
Australia is committed to working together with all States to preserve maritime
zones and the rights and entitlements that flow from them … in a manner that is
consistent with international law, particularly [the Convention].94
45. In its statement in 2020, New Zealand, another Pacific Islands Forum member,
directly refers to legal stability: “New Zealand agrees that the principle of stability
and certainty underlies [the United Nations Convention on the Law of the Sea], along
with justice and equity, good faith, reciprocity and the duty of States to cooperate. …
[T]hese principles are all relevant to the issue of sea-level rise and international
law.”95 It goes further in its statement in 2021:
__________________
91 Statement of Solomon Islands in 2020, pp. 2 –3. Available from
https://www.un.org/en/ga/sixth/75/summaries.s html#13mtg.
92 Statement of Solomon Islands in 2021, p. 1. Availab le at
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
93 Statement of Tuvalu in 2021, p. 2. Available at https://www.un.org/en/ga/sixth/76/summaries.shtml#23mtg.
94 Statement of Australia in 2021 (see footnote 79 above), p. 2.
95 Statement of New Zealand in 2020, p. 3. Available from
https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
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We recall that [the Convention] was adopted as an integral package containing
a delicate balance of rights and obligations, which are integral to many States’
development pathways. It is in the interests of the international community to
preserve this balance and to ensure [that] there is certainty, security, stability
and predictability over maritime zones. New Zealand is committed to working
constructively with other States to this end.96
It also refers to the “urgency” of the “securing marit ime zones for future generations”,
to the Pacific Islands Forum Declaration on Preserving Maritime Zones in the Face
of Climate Change-related Sea-Level Rise, issued by the Pacific Islands Forum
Leaders on 6 August 2021, and to the Declaration of the Heads of State and
Government of the Alliance of Small Island States, issued in September 2021. 97
46. Belize, in its statement on behalf of the Alliance of Small Island States in 2020,
points in the same direction:
[W]e agree with the observation of the first issues paper that nothing prevents
Member States from depositing geographic coordinates or large-scale charts
concerning the baselines and outer limits of maritime zones measured from
baselines, in accordance with [the United Nations Convention on the Law of the
Sea], and then not updating those coordinates or charts, in order to preserve their
entitlements. … [A]s indicated in the first issues paper, an approach responding
adequately to the need to preserve legal stability, security, certainty and
predictability is one based on the preservation of baselines and outer limits of
maritime zones measured therefrom and their entitlements.
… [T]here is a body of State practice under development regarding the
preservation of maritime zones and the entitlements that flow from them. Many
small island and low-lying States have taken political and legislative measures
to preserve their baselines and the existing extent of their maritime zones,
through domestic legislation, maritime boundary agreements, and deposit of
charts or coordinates and declarations attached thereto.
… This State practice grounds the observations of the Co -Chairs that, in order
to preserve maritime zones and the entitlements that flow from them, State
Parties are not obligated to update their coordinates or charts once deposited.
… Nevertheless, the absence of a general customary rule does not have an effect
on the interpretation of the Convention, based on subsequent practice of its
States parties.98
Antigua and Barbuda, in its statement on behalf of the Alliance of Small Island States,
in 2021, reinforces the meaning attached to legal stability as expressed in 2020: “For
small island developing States, legal stability, security, certainty and predictability in
relation to our maritime zones are of paramount importance. As we stated last year,
this is achieved through the preservation of baselines and outer limits of maritime
zones measured therefrom and their entitlements”.99 Referring to the Declaration of
the Heads of State and Government of the Alliance of Small Island States, it noted
the following:
__________________
96 Statement of New Zealand in 2021 (see footnote 75 above), pp. 4 –5. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
97 Ibid., p. 4..
98 Statement of Belize, on behalf of the Alliance of Small Island States, in 2020, pp. 2 –3. Available
from https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
99 Statement of Antigua and Barbuda, on behalf of the Alliance of Small Island States, in 2021,
p. 2. Available from https://www.un.org/en/ga/sixth/76/summaries.shtml#19mtg .
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“This statement reflects [the Alliance’s] interpretation of a lack of an obligation
under [the Convention] to review or update baselines and outer limits once
deposited with the Secretary-General, and of the practice of many [small island
developing States] on this issue. This echoes the statement by the Heads of State
and Government of the Pacific Islands Forum in August, and the preliminary
observations in the first issues paper.100
Antigua and Barbuda goes on to reiterate the observations made by Belize on behalf
of the Alliance, in 2020, regarding the development of State practice regarding the
preservation of baselines and the existing extent of their maritime zones. 101 In its
statement on behalf of the Alliance of Small Island States in 2022, Antigua and
Barbuda refers again to the Declaration of the Heads of State and Government of the
Alliance of Small Island States of September 2021:
In that negotiated declaration, our [Alliance] Leaders affirmed that there is no
obligation under [the Convention] to keep baselines and outer limits of maritime
zones under review [or] to update charts or lists of geographical coordinates
once deposited with the Secretary-General …, and that such maritime zones and
the rights and entitlements that flow from them shall continue to apply without
reduction, notwithstanding any physical changes connected to climate change -
related sea-level rise. We are heartened to see that other States, including some
of the largest coastal States, have adopted a similar understanding of
international law, recognizing the need to ensure legal stability, security,
certainty and predictability.102
47. Asian States include similar references to legal stability in their statements.
48. For instance, Maldives, in its statement in 2020, refers to the interpretation of
the United Nations Convention on the Law of the Sea in the context of legal stability:
[O]ur interpretation of [the Convention] is that once a State deposits the
appropriate charts and/or geographic coordinates with the Secretary-General,
these entitlements are fixed and will not be altered by any subsequent physical
changes to a State’s geography as a result of sea-level rise. Baselines and
maritime entitlements remain consistent. Stability, certainty, equity and fairness
all require it.
… States are not prohibited under [the Convention] from maintaining previously
established baselines, and other limits of maritime zones measured from those
baselines, in order to preserve their maritime entitlements.
… Maldives also agrees with the observation of the first issues paper that there
is … State practice [of] freezing baselines and outer limits of maritime zones
and increasing opinio juris on these maritime entitlements.103
Maldives repeats this reasoning in its statement in 2021:
[W]e do not interpret [the Convention] to require regular updates to those
submissions. Once a State has deposited the relevant charts and maritime zones,
baselines and maritime entitlements are fixed and cannot be altered by any
subsequent physical changes to a State’s physical geography as a consequence
of sea-level rise. This interpretation is necessary to support the goals of stability,
__________________
100 Ibid., p. 2.
101 Ibid., pp. 2 –3.
102 Statement of Antigua and Barbuda, on behalf of the Alliance of Small Island States, in 2022, para. 4.
Available from https://www.un.org/en/ga/sixth/77/summaries.shtml (28th plenary meeting).
103 Statement of Maldives in 2020, pp. 4 –6. Available at
https://www.un.org/en/ga/sixth/75/summaries.shtml#13mtg .
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security, certainty and predictability as outlined in the first issues paper and
discussed in the report [of the Commission on its seventy-second session].104
49. Viet Nam, in its statement in 2021, refers explicitly to the issue of legal stability,
and implicitly to the way in which to interpret the United Nations Convention on the
Law of the Sea in order to ensure such stability: “The approach to address the
implications of sea-level rise should ensure the stability and security in international
relations, including the legal stability, security, certainty and predictability, without
involving the question of amending and/or supplementing [the Convention].” 105
50. Sri Lanka, in its statement in 2021, refers to the way the United Nations
Convention on the Law of the Sea can be interpreted to respond to the effects of sealevel
rise:
A fixed baseline approach to the establishment of the outer limits of maritime
zones meant that the maritime boundaries of States were permanent and their
baselines would remain unchanged even if coastal areas were inundated as a
result of sea-level rise. The United Nations Convention on the Law of the Sea
did not exclude the possibility of resorting to either ambulatory or fixed
baselines. Perhaps it was time for the Commission to examine whether or not
the Convention could be modified by mutual consent or based on the subsequent
practice of all States parties.106
51. Malaysia, in its statement in 2021, is also clear: “Malaysia shares the view [of]
the majority of States that maritime baselines, limits and boundaries should be fixed
in perpetuity regardless of sea-level rise”.107 Similarly, Thailand, in its statement in
2021, notes the following: “Thailand believes that in order to maintain peace, stability
and friendly relations among States, their rights in relation to maritime zones and
boundaries as guaranteed by [the United Nations Convention on the Law of the Sea]
must be protected.”108 Thailand repeats this assertion in its statement in 2022. 109
52. Indonesia, in its statement in 2021, also refers to legal stability:
[W]e concur that the principles of certainty, security and predictability and the
preservation of the balance of rights and obligations should be maintained.
… [C]harts or lists of geographical coordinates of baselines that have been
deposited with the Secretary-General pursuant to articles 16 (2) and 47 (9) of
[the United Nations Convention on the Law of the Sea] shall continue to be
relevant.
We believe that … maintaining existing maritime baselines and limits
corresponding to the principles of certainty, security and predictability … also
reflects the interests of many States in connection with the effects of sea -level
rise.110
__________________
104 Statement of Maldives in 2021, p. 3. Availab le at
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
105 Statement of Viet Nam in 2021. Available at https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg.
106 Statement of Sri Lanka in 2021. See A/C.6/76/SR.21, para. 111.
107 Statement of Malaysia in 2021, p. 3. Availab le at
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
108 Statement of Thailand in 2021, para. 5. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
109 Statement of Thailand in 2022, para. 7. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (28th plenary meeting).
110 Statement of Indonesia in 2021, p. 2. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
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In its statement in 2022, Indonesia refers, inter alia, to “the need for stability and
security in the law of the sea”.111
53. The Philippines, in its statement in 2021, notes the following:
The Philippines would caution against inference in favour of ambulatory
baselines, absent a showing of State practice and opinio juris on the matter. …
[P]roceeding on the basis of legal stability, security, certainty and predictability
in international law is a welcome approach. … [T]he principle of immutability
of borders …, in accordance with the principle of uti possidetis juris, has value
in this regard. An analogous principle could be considered in favour of
permanent baselines.112
54. Jordan, in its statement in 2021, considers that “any outcome … should take into
account legal certainty, equity and stability, and balance the legitimate interests of all
relevant States and the international community as a whole”.113
55. African States also include references to legal stability in their statements.
56. Sierra Leone, in its statement in 2021, includes the following reference to legal
stability: “We ... note with interest that the Study Group welcomed the suggestion
that the meaning of ‘legal stability’ … seems to suggest ‘the need to preserve the
baselines and outer limits of maritime zones’, in the views expressed by Member
States”.114 Egypt, in its statement in 2021, asserted that “maritime limits should be
fixed rather than ambulatory”.115 Algeria, in its statement in 2021, “welcomed the
fact that the Study Group on the topic had examined the practice of African States
regarding maritime delimitation and confirmed that the principles of international law
supported fixed baselines”.116
57. Latin American States also include references to legal stability in their
statements.
58. For instance, Cuba, in its statement in 2021, notes the following:
Cuba is aware that the United Nations Convention on the Law of the Sea does
not offer answers to the questions raised by the topic, because of the moment in
history when it was adopted. Nevertheless, it is essential to ensure unconditional
compliance with the provisions of the Convention concerning maritime limits
and boundaries, even when the latter undergo physical changes owing to sealevel
rise.117
In its statement in 2022, Cuba repeats these assertions and adds that, if baselines or
maritime boundaries were subject to change due to sea-level rise, “[t]his would imply
__________________
111 Statement of Indonesia in 2022, para. 17. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (29th plenary meeting).
112 Statement of the Philippines in 2021, pp. 2 –3. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#23mtg.
113 Statement of Jordan in 2021, p. 6. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#24mtg .
114 Statement of Sierra Leone in 2021, para . 13. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg .
115 Statement of Egypt in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg (Arabic only). See also
A/C.6/76/SR.20, para. 58.
116 Statement of Algeria in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg (Arabic only). See also
A/C.6/76/SR.22, para. 99.
117 Statement of Cuba in 2021, p. 4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg (Spanish only). See also
A/C.6/76/SR.21, para. 31.
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an additional expense that would be very difficult for small island States to assume,
in addition to the legal insecurity generated owing to the loss of natural resources
necessary for the economy of these States”.118
59. Chile, in its statement in 2021, explicitly refers to the meaning of legal stability:
Chile agrees that the principles of stability, security, certainty and predictability
must be applied in the analysis of the issues contained in the mandate [of the
Study Group], it being understood that, as expressed by the delegations of States
affected by sea-level rise, “legal stability” means the need to preserve the
baselines and outer limits of maritime zones.
… The concept of ambulatory baselines, if established, would be of particular
concern, and the immediate effect would be a loss of sovereignty and
jurisdictional rights for coastal and island States and a corresponding reduction
in their maritime zones.
… [I]f the baselines and the outer limits of maritime zones of a coastal or
archipelagic State have been duly determined in accordance with the United
Nations Convention on the Law of the Sea, there should be no requirement that
those baselines and outer limits be recalculated in the event of sea-level changes
that affect the geographical reality of the coastline.119
60. Argentina, in its statement in 2021, is similarly direct:
… [W]ith respect to the effects of sea-level rise on the boundaries of maritime
spaces, in terms of legal certainty it seems appropriate to consider that, if the
baselines and the outer limits of maritime spaces of a coastal or archipelagic
State have been duly determined in accordance with the requirements of the
United Nations Convention on the Law of the Sea, which also reflects customary
international law, there should be no requirement to readjust these baselines and
limits in the event of sea-level changes that affect the geographical reality of the
coastline.120
61. Costa Rica, in its statement in 2021, notes the following:
Costa Rica would like to highlight … the need to apply the principles of
stability, security, certainty and predictability in order to preserve the balance
of rights and obligations between coastal States and other States.
… Costa Rica welcomes the consideration [by the Study Group] of the judgment
of the [International Court of Justice] that served to establish the maritime
boundaries between Costa Rica and Nicaragua, using a moving delimitation line
in a segment that connects the coast with the fixed point of the start of the
maritime boundary. As this case shows, in some situations where the coastal
geomorphology is variable, a solution such as the one determined by the Court
in that specific case is an ideal alternative for providing security and stability to
the parties despite frequent variations in the land boundary terminus.121
__________________
118 Statement of Cuba in 2022, p. 4. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(27th plena ry meeting; Spanish only).
119 Statement of Chile in 2021, pp. 5 –6. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg (Spanish only). See also
A/C.6/76/SR.21, paras. 55–56.
120 Statement of Argentina in 2021, p. 3. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg (Spanish only). See also
A/C.6/76/SR.22, para. 32.
121 Statement of Costa Rica in 2021, pp. 2 –3. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#23mtg (Spanish only). See also
A/C.6/76/SR.23, paras. 13–14.
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62. European Member States also include references to legal stability in their
statements.
63. For instance, Iceland, in its statement on behalf of the Nordic countries
(Denmark, Finland, Iceland, Norway and Sweden) in 2021, refers to stabili ty, but in
more general terms:
[The United Nations Convention on the Law of the Sea] provides predictability
and stability, and its universal and unified character should be safeguarded and
strengthened. Like any other legal instrument, the Convention should be
interpreted in [the] light of changing circumstances. That said, it seems
premature at this juncture for the Nordic countries to pronounce on the precise
legal implications of sea-level rise in the context of [the Convention].122
64. The Kingdom of the Netherlands, in its statement in 2021, also refers to legal
stability:
The [Kingdom of the] Netherlands is guided by the notions of legal certainty,
stability and security while remaining firmly grounded in the primacy of the
[United Nations Convention on the Law of the Sea]. … [S]ome potential
solutions deserve more consideration. In particular, we would like to note that
the option of merely securing the outer limits of established maritime zones to
prevent States from losing maritime zones has not received much attention in
the [first issues paper].123
65. Italy, in its statement in 2021, directly refers to legal stability:
Italy would like to stress the importance of stability, security and legal certainty
with regard to baselines and maritime delimitation. … It is also important to
underline that any principle of permanency of baselines, which have been
established and deposited in accordance with international law, must refer solely
to sea-level rise induced by climate change and not to other circumstances,
including land accretion.124
66. Romania, in its statement in 2021, notes that “[t]he increasing challenges that
sea-level rise pose are beyond doubt, including from the perspective of ensuring
security and stability around the world”. It refers to the debate in the Study Group
regarding ambulatory versus fixed baselines: “our legislation could be interpreted as
favouring an ambulatory system of baselines, though a connection with the specific
case of sea-level rise is difficult to make, given the particular character of the Black
Sea as a semi-enclosed sea and less exposed to this phenomenon”. 125 It is more
explicit in its statement in 2022, stressing “that preserving the baselines and outer
limits of maritime zones is crucial to legal stability”.126
67. Germany, in its statement in 2022, refers to its 2022 submission, 127 in which “we
explain how we interpret the [rules under United Nations Convention on the Law of
the Sea] regarding the stability of baselines. In our view, a contemporary reading of
these [Convention] rules gives the coastal State the right to update its baselines when
__________________
122 Statement of Iceland, on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and
Sweden), in 2021, p. 5. Available from https://www.un.org/en/ga/sixth/76/summaries.shtml#19mtg.
123 Statement of the Kingdom of the Netherlands in 2021, pp. 5 –6. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg .
124 Statement of Italy in 2021, p. 4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg .
125 Statement of Romania in 2021, pp. 4 –5. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
126 Statement of Romania in 2022, p. 3. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(27th plenary meeting).
127 See footnote 62 above.
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the sea level rises or falls or the coastline moves but it does not require the coastal
State to do so”.128
68. The Czech Republic, in its statement in 2021, refers to legal stabil ity in more
general terms: “In order to contribute to legal stability, certainty and predictability in
dealing with these challenges, it is of paramount importance that the work of the
Commission and its Study Group on this topic proceed in strict adherence to the
existing legal regime of the law of the sea, in particular the 1982 [United Nations]
Convention on the Law of the Sea”.129 Slovenia also refers to the issue in its statement
in 2021: “The immense challenge of sea-level rise, relating to possible effects of sealevel
rise on baselines [and] maritime zones …, as well as on the exercise of sovereign
rights and jurisdiction, underline the demand for a multifaceted, in-depth approach
and new solutions where legal certainty and predictability should remain one of the
primary considerations.”130
69. Estonia, in its statement in 2021, includes clear references to legal stability in
connection with the solution of fixed baselines and outer limits, which can be based
on interpretation of the United Nations Convention on the Law of the Sea:
[W]e welcome the conclusion in the first issues paper that the aim of the Study
Group should be to find solutions to the challenges connected to sea-level rise
in the [Convention]. The need to preserve legal stability, security, certainty and
predictability in international relations has to be kept in mind. We are satisfied
that the Study Group has found possibilities to interpret the [Convention] in [a]
way that it corresponds to the need for the stability in inter -State relations.
We support the idea to stop updating notifications, in accordance with the
[Convention], regarding the baselines and outer limits of maritime zones
measured from the baselines and, after the negative effects of sea-level rise
occur, in order to preserve … States’ entitlements.131
70. The Russian Federation, in its statement in 2021, notes that “one of the key
issues in this respect is the question of baselines … [I]t is important to find a practical
solution that is aligned with [the United Nations Convention on the Law of the Sea],
on one hand, and reflects the concerns of States affected by sea-level rise, on the
other”.132
71. Cyprus, in its statement in 2021, notes the following:
[A]ffected coastal States should be entitled to designate permanent baselines
pursuant to article 16 of [the United Nations Convention on the Law of the Sea],
which would withstand any subsequent regression of the low-water line. This
view is in conformity with [the Convention] and aims at safeguarding coastal
States’ legal entitlements in [the] light of the ongoing, worrisome developments
generated by climate change.
__________________
128 Statement of Germany in 2022, p. 4. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(27th plenary meeting).
129 Statement of the Czech Republic in 2021, pp. 3 –4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
130 Statement of Slovenia in 2021, p. 4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
131 Statement of Estonia in 2021, p. 4. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg .
132 Statement of the Russian Federation in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg (Russian only). See also
A/C.6/76/SR.22, para. 93.
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Moreover, baselines must be permanent and not ambulatory so as to achieve
greater predictability ….
… [I]t is evident that the obligation under article 16 of [the Convention] for the
coastal State to show the baselines for measuring the breadth of the territorial
sea, or the limits “derived therefrom”, on charts or a list of geographical
coordinates of points is meant to establish legal security. No indication is
provided for that these charts are to be periodically revised. 133
Cyprus uses similar wording in its statement in 2022. 134
72. According to Greece, in its statement in 2021:
[P]redictability, stability and certainty, which are inherent to the [United
Nations Convention on the Law of the Sea] and guide its application, require
the preservation of baselines and of the outer limits of maritime zones, as well
as of maritime entitlements deriving therefrom, in accordance with the
[Convention]. … As rightly observed, the Convention imposes no obligation of
reviewing or recalculating baselines or the outer limits of maritime zones
established in accordance with its provisions.” 135
73. Croatia, in its statement in 2022, clearly states that it “holds the view that
baselines are fixed and once determined national maritime zones are not subject to
change, despite sea-level rise”.136
74. Bulgaria, in its statement in 2022, also refers to legal stability in connection with
the stability of baselines:
[The United Nations Convention on the Law of the Sea] does not contain a legal
obligation for States parties to regularly review and update their baselines and
the borders of their maritime zones, established in accordance with the
applicable rules of [the Convention]. Conclusions that suggest that a periodic
review should be carried out by States could potentially have a negative impact
on … relations between coastal States and may affect … stability in different
regions of the world.137
75. The European Union, in its statement in 2022, notes, inter alia, that “there is no
express obligation on States under the United Nations Convention on the Law of the
Sea to periodically review and update all the charts and coordinates [that] they have
drawn (or agreed) and duly published in accordance with the relevant provisions of
the Convention”.138
76. Furthermore, the United States of America, in its statement in 2022, notes the
following:
__________________
133 Statement of Cyprus in 2021, pp. 2 –3. Available from
https://www.un.org/en/ga/sixth/76/summaries.s html#22mtg.
134 Statement of Cyprus in 2022, pp. 1–3. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(28th plenary meeting).
135 Statement of Greece in 2021, pp. 4 –5. Available from https://www.un.org/en/ga/sixth/76/ilc.shtml
(statement II).
136 Statement of Croatia in 2022, p. 3. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(25th plenary meeting).
137 Statement of Bulgaria in 2022, p. 3. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(29th plenary meeting).
138 Statement of the European Union (in its capacity as observer; also on behalf of the candidate
countries Albania, Montenegro, North Macedonia and Serbia; the stabilization a nd association
process country Bosnia and Herzegovina; and, in addition, Georgia, the Republic of Moldova and
Ukraine) in 2022, para. 8. Available from https://www.un.org/en/ga/sixth/77/summaries.shtml
(26th plenary meeting).
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[T]he United States … has announced a new policy on sea -level rise and
maritime zones. Under this policy, which recognizes that new trends are
developing in the practices and views of States on the need for stable maritime
zones in the face of sea-level rise, the United States will work with other
countries toward the goal of lawfully establishing and maintaining baselines and
maritime zone limits and will not challenge such baselines and maritime zone
limits that are not subsequently updated despite sea-level rise caused by climate
change.139
3. Collective declarations by regional bodies
77. After the issuance of the first issues paper in 2020 and the debate on it in the
Commission in 2021, the most notable collective action by States was the Declaration
on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise,
issued by the 18 Pacific Islands Forum Leaders on 6 August 2021.140 The Declaration
contains important references to legal stability in relation to the United Nations
Convention on the Law of the Sea and sea-level rise. For example, the preamble
includes the following text:
Recalling … that the Convention was adopted as an integral package containing
a delicate balance of rights and obligations, and was prompted by the desire to
settle, in a spirit of mutual understanding and cooperation, all issues relating to
the law of the sea, and establishes, with due regard for the sovereignty of all
States, an enduring legal order for the seas and oceans,
Recognizing the principles of legal stability, security, certainty and
predictability that underpin the Convention and the relevance of these principles
to the interpretation and application of the Convention in the context of sealevel
rise and climate change,
…
Acknowledging that the relationship between climate change-related sea-level
rise and maritime zones was not contemplated by the drafters of the Convention
at the time of its negotiation, and that the Convention was premised on the basis
that, in the determination of maritime zones, coastlines and maritime features
were generally considered to be stable.
78. In the operative part of the Declaration, the Pacific Islands Forum Leaders:
Affirm that the Convention imposes no affirmative obligation to keep baselines
and outer limits of maritime zones under review nor to update charts or lists of
__________________
139 Statement of the United States in 2022, p. 2. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (27th plenary meeting). See also United
States, White House, “Roadmap for a 21st -century US-Pacific island partnership”, fact sheet,
29 September 2022: “Sea -level rise: The United States is adopting a new p olicy on sea-level rise
and maritime zones. This policy recognizes that new trends are developing in the practices and
views of States on the need for stable maritime zones in the face of sea -level rise, is mindful of
the Pacific Island Forum’s Declaration Preserving Maritime Zones in the Face of Climate
Change-related Sea-Level Rise, commits to working with Pacific island States and other
countries toward the goal of lawfully establishing and maintaining baselines and maritime zone
limits, and encourages other countries to do the same.”
140 See https://www.forumsec.org/2021/08/11/declaration -on-preserving-maritime-zones-in-the-faceof-
climate-change-related-sea-level-rise/. The Pacific Islands Forum is a regional organization
comprising 18 members: Australia, Cook Islands, Fiji, French Polynesia, Kiribati, Marshall
Islands, Micronesia (Federated States of), Nauru, New Caledonia, New Zealand, Niue, Palau,
Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.
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geographical coordinates once deposited with the Secretary-General of the
United Nations,
Record the position of Members of the Pacific Islands Forum that maintaining
maritime zones established in accordance with the Convention, and rights and
entitlements that flow from them, notwithstanding climate change-related sealevel
rise, is supported by both the Convention and the legal principles
underpinning it,
Declare that once having, in accordance with the Convention, established and
notified our maritime zones to the Secretary-General of the United Nations, we
intend to maintain these zones without reduction, notwithstanding climate
change-related sea-level rise,
Further declare that we do not intend to review and update the baselines and
outer limits of our maritime zones as a consequence of climate change-related
sea-level rise, and
Proclaim that our maritime zones, as established and notified to the Secretary-
General of the United Nations in accordance with the Convention, and the rights
and entitlements that flow from them, shall continue to apply, without reduction,
notwithstanding any physical changes connected to climate change-related sealevel
rise.
79. That Declaration was preceded, inter alia, by the Leaders Declaration adopted
at the Ninth Pacific Islands Leaders Meeting, on 2 July 2021. In paragraph 12 of this
Declaration, the Pacific Islands Leaders “jointly noted the importance of protecting
maritime zones established in accordance with [the United Nations Convention on
the Law of the Sea], and concurred to further discuss the issue of preserving maritime
zones, properly delineated in accordance with [the Convention, in the face of climate
change-related sea-level rise including at the multilateral level”.141
80. Following the adoption of the Declaration by the Pacific Islands Forum Leaders,
the Declaration of the Heads of State and Government of the Alliance of Small Island
States was adopted, on 22 September 2021.142 In paragraph 41 of the Declaration, the
leaders of the Alliance of Small Island States:
Affirm that there is no obligation under the United Nations Convention on the
Law of the Sea to keep baselines and outer limits of maritime zones under review
nor to update charts or lists of geographical coordinates once deposited with the
Secretary-General of the United Nations, and that such maritime zones and the
rights and entitlements that flow from them shall continue to apply without
reduction, notwithstanding any physical changes connected to climate changerelated
sea-level rise.
According to Antigua and Barbuda, in its statement on behalf of the Alliance of Small
Island States in 2021:
__________________
141 See footnote 59 above.
142 See https://www.aosis.org/launch-of-the-alliance-of-small-island-states-leaders-declaration/. The
Alliance of Small Island States is a regional organization comprising 39 members, from the
Caribbean, the Pacific, Africa, the Indian Ocean and South -East Asia: Antigua and Barbuda,
Bahamas, Barbados, Belize, Cabo Verde, Comoros, Co ok Islands, Cuba, Dominica, Dominican
Republic, Fiji, Grenada, Guinea -Bissau, Guyana, Haiti, Jamaica, Kiribati, Maldives, Marshall
Islands, Mauritius, Micronesia (Federated States of), Nauru, Niue, Palau, Papua New Guinea,
Saint Kitts and Nevis, Saint Luci a, Saint Vincent and the Grenadines, Samoa, Sao Tome and
Principe, Seychelles, Singapore, Solomon Islands, Suriname, Timor -Leste, Tonga, Trinidad and
Tobago, Tuvalu and Vanuatu.
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[The Declaration] reflects [the Alliance’s] interpretation of a lack of an
obligation under [the Convention] to review or update baselines and outer limits
once deposited with the Secretary-General, and of the practice of many [small
island developing States] on this issue. This echoes the statement by the Heads
of State and Government of the Pacific Islands Forum in August, and the
preliminary observations in the first issues paper .143
81. The Declaration by the Pacific Islands Forum Leaders was endorsed by further
two organizations: the Climate Vulnerable Forum144 and the Organization of African,
Caribbean and Pacific States. 145 The Dhaka-Glasgow Declaration of the Climate
Vulnerable Forum, of 2 November 2021, provides the following: “We, Heads of State
and Government, and high representatives, of the Climate Vulnerable Forum … call
on all States to support the principles outlined in the Pacific Islands Forum [Leaders’]
2021 Declaration on Preserving Maritime Zones in the Face of Climate Change -
related Sea-Level Rise”. 146 The Declaration of the Seventh Meeting of the
Organization of African, Caribbean and Pacific States Ministers in Charge of
Fisheries and Aquaculture, of 8 April 2022, provides the following: “We, the
Ministers in charge of fisheries and aquaculture from the Member States of the
Organization … [s]upport the 2021 Pacific Islands Forum [Leaders’] Declaration on
Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise”.147
B. Preliminary observations
82. In the light of the above comprehensive presentation of Member States’
submissions to the Commission, statements presented in the Sixth Committee and
collective positions as expressed in various international and regional declarations, a
number of preliminary observations can be made.
83. First, it is clear that, in these many submissions and statements, references to
the issue of legal stability, whether explicit or implicit – including to the solution of
fixed baselines and/or outer limits of maritime zones measured from them, as
examined in the first issues paper – are the most numerous. The next most numerous
are references to the need to interpret the United Nations Convention on the Law of
the Sea in such a manner as to respond to the effects of sea-level rise, mostly in the
sense that the Convention does not forbid the freezing of baselines. 148 It is obvious
that Member States consider these issues to be the most relevant to the aspects of the
__________________
143 See footnote 99 above.
144 Comprising 58 members: 27 members from Africa and the Middle East, 20 members from Asia
and the Pacific and 11 members from Latin America and the Caribbean. For further information,
see https://thecvf.org/members/.
145 Comprising 79 members from Africa, the Caribbean and the Pacific. For further information, see
https://www.oacps.org/.
146 See https://thecvf.org/our-voice/statements/dhaka -glasgow-declaration-of-the-cvf/.
147 See https://www.oacps.org/wp-content/uploads/2022/05/Declaration_ -7thMMFA_EN.pdf, p. 8.
148 As evidenced above, out of 69 statements delivered by 67 delegations in 2021 in the Sixth
Committee that referred to the topic, 25 referred to legal s tability, 20 to the solution of fixed
baselines, 11 to the Declaration on Preserving Maritime Zones in the Face of Climate Change -
related Sea -Level Rise (which touches upon the previous topics), and 11 to the need to interpret
the United Nations Convention on the Law of the Sea to favour fixed baselines. In 2022, out of
the 17 statements referring to the aspects of the law of the sea related to sea -level rise, 11
referred to the solution of fixed baselines and 9 referred to legal stability. The vast majorit y of
submissions also included such references.
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law of the sea related to sea-level rise. This interesting evolution of the focus of
Member States on these aspects has also been noted by legal scholars. 149
84. Second, the significance that Member States attach to legal stability – and
certainty, security and predictability – is concrete and pragmatic. With the exception
of a limited number of Member States, which refer in their statements to legal stability
as more general notion connected to the overall regime embodied in the United
Nations Convention on the Law of the Sea,150 the rest of the Member States that refer
to this issue in their submissions, statements and collective declarations made
following the issuance of the first issues paper consider legal stability as dedicated
to, and inherently linked to, the preservation of maritime zones as they were before
the effects of the sea-level rise, and the decision of the Member States affected by
sea-level rise not to update their notifications of coordinates and charts, thus fixing
their baselines even if the physical coast moves landward because of sea -level rise.
No States, even those that have national legislation providing for ambulatory
baselines, have contested the option of fixed baselines.
85. Third, it is interesting to note the progressive and remarkable extension of
awareness among States from various regions of the world of the need to find
solutions in the context of the law of the sea to the negative impact of sea-level rise
on coasts and maritime zones, especially the view of legal stability in connection with
the preservation of baselines and the outer limits of maritime zones measured from
those baselines. The Pacific States have consolidated their approach and State
practice, as evidenced by their submissions to the Commission, their statements in
the Sixth Committee and the adoption by the Pacific Islands Forum Leaders of the
Declaration on Preserving Maritime Zones in the Face of Climate Change-related
Sea-Level Rise in August 2021. The approach of these States was cross-regionally
confirmed by the views of the members of the Alliance of Small Island States, as
expressed in their submissions and statements, but also in the Declaration of the
Heads of State and Government of the Alliance of Small Island States, adopted in
September 2021. This is because the Alliance’s 39 members include not only those
from the Pacific (14 out of the 18 members of Pacific Islands Forum), but also those
from other regions: Africa (3), Indian Ocean (4), Caribbean (16) and South-East
Asia (1). Together, the Pacific Islands Forum and the Alliance of Small Island States
represent 43 members, of which 41 are parties to the United Nations Convention on
the Law of the Sea, comprising approximately 25 per cent of all parties to the
Convention.151 Furthermore, it is important to note the positions expressed by States
from other regions in favour of the preservation of baselines and the outer limits of
maritime zones measured from those baselines and the solution of fixed baselines.
These positions have been expressed with various nuances, both explicitly and
implicitly – stressing the absence of an obligation set forth by the United Nations
Convention on the Law of the Sea to update the baselines – by States from Asia
(Indonesia, Japan, Malaysia and Philippines), Latin America (Argentina, Chile,
Colombia and Costa Rica), Africa (Algeria, Egypt and Sierra Leone), Europe
__________________
149 See, for instance, Davor Vidas and David Freestone, “Legal certainty and stability in the face of
sea level rise: trends in the development of State practice and international law scholarship on
maritime limits and Boundaries”, in International Journal of Marine and Coastal Law , vol. 37,
2022, pp. 673–725; and Frances Anggadi, “What States say and do about legal stability and
maritime zones, and why it matters”, in International and Comparative Law Quarte rly, vol. 71,
No. 4 (October 2022), pp. 767–798.
150 Iceland, on behalf of the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), in
2021 (see footnote 122 above); Kingdom of the Netherlands, in 2021 ( see footnote 123 above);
Czech Republic, in 2021 (see footnote 129 above); and Jordan, in 2021 (see footnote 113 above).
151 See Vidas and Freestone, “Legal certainty and stability in the face of sea level rise” (see
footnote 149 above), pp. 714 –715.
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(Bulgaria, Croatia, Cyprus, France, Germany, Greece, Ireland, Netherlands
(Kingdom of the) and Romania) and North America (United States).
86. An explicit connection has been drawn by several States from various regions
of the world between the meaning of legal stability and the solution of preserving
maritime zones and fixing the baselines and the outer limits of maritime zones: Fiji,
in its statement, on behalf of Pacific Islands Forum, to the Sixth Committee, in
2021;152 Papua New Guinea (Pacific), in its statement in 2020;153 Federated States of
Micronesia (Pacific), in its statement in 2020;154 Antigua and Barbuda (Caribbean),
in its submission, in 2021;155 Romania (Europe), in its statement in 2021;156 Chile
(Latin America), in its statement in 2021;157 and Argentina (Latin America), in its
statement in 2021.158
87. This was the approach taken in the first issues paper. The observations made in
paragraph 104, subparagraphs (d), 159 (e)160 and (f)161, of that paper were confirmed by
the positions of Member States, as discussed above.
88. At the same time, the fact that sea-level rise and its effects were not perceived
as an issue that needed to be addressed in the United Nations Convention on the Law
of the Sea at the time of its negotiation162 is also reflected in the statements of Member
States,163 as is the need to interpret the Convention in such a manner as to respond to
the effects of sea-level rise, mostly in the sense that the Convention does not the
__________________
152 See footnote 70 above.
153 See footnote 83 above.
154 See footnote 86 above.
155 See footnote 46 above.
156 See footnote 125 above.
157 See footnote 119 above.
158 See footnote 120 above.
159 A/CN.4/740 and Corr.1, para. 104 (d): “The ambulatory theory/method regarding baselines and
the limits of maritime zones measured f rom them does not respond to the concerns expressed by
Member States that are prompted by the effects of sea -level rise, especially as regards the rights
of the coastal State in the various maritime zones, and the consequent need to preserve legal
stability, security, certainty and predictability”.
160 Ibid., para. 104 (e): “An approach responding adequately to these concerns is one based on the
preservation of baselines and outer limits of the maritime zones measured therefrom, as well as
of the entitlements of the coastal State; the [United Nations Convention on the Law of the Sea]
does not prohibit expressis verbis such preservation …. In any case, the obligation provided by
article 16 [of the Convention] to give due publicity to and deposit copies of cha rts and lists of
coordinates about baselines only refers to straight baselines (which are less affected by sea -level
rise) and not to normal baselines. Even in the case of straight baselines, the Convention does not
indicate an obligation to draw and notif y new baselines when coastal conditions change (or, as a
consequence, new outer limits of maritime zones measured from the baselines)”.
161 Ibid., para. 104 (f): “Consequently, nothing prevents Member States from depositing
notifications, in accordance with the Convention, regarding the baselines and outer limits of
maritime zones measured from the baselines and, after the negative effects of sea -level rise
occur, to stop updating these notifications in order to preserve their entitlements”.
162 As concluded in the first issues paper ( A/CN.4/740 and Corr.1, para. 104 (a)).
163 For instance, Tonga in 2021 (see footnote 90 above); Samoa, on behalf of the Pacific small island
developing States, in 2021 (see footnote 77 above); Antigua and Barbuda, on behalf of the
Alliance of Small Island States, in 2021 (see footnote 99 above); China in 2021 (available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg . Chinese only. See also
A/C.6/76/SR.20, para. 93); Cuba in 2021 (see footnote 117 above); Solomon Islands in 2021 (see
footnote 92 above); India in 2021 (available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#23mtg ) and 2022 (available from
https://www.un.org/en/ga/sixth/77/summaries.shtml , 26th plenary meeting); Indonesia in 2022 (see
footnote 111 above); and Federated States of Micronesia in 2020 (see footnote 86 above). The
preamble of the Declaration on Preserving Maritime Zones in the Face of Climate Change -
related Sea -Level Rise, issued by the Pacific Islands Forum Leaders on 6 August 2021, includes
a similar reference.
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forbid freezing the baselines. The first issues paper addressed the question as to
whether the provisions of the Convention could be interpreted and applied so as to
address the effects of sea-level rise on the baselines, outer limits of maritime zones
and entitlements in these zones.164 That analysis, which led to the above-mentioned
observations in paragraph 104, subparagraphs (d), (e) and (f), of the first issues paper,
was largely validated by the views of the Member States on the interpretation of the
Convention, as shown in the following paragraphs.
89. Although a large part of the doctrine has interpreted the United Nations
Convention on the Law of the Sea to the effect that the outer limits of the territorial
sea, contiguous zone and exclusive economic zone are ambulatory 165 – an
interpretation that was also mentioned during the debate in the Study Group in
2021 166 – the views of many States favour a rather different, more pragmatic
approach, in an attempt to respond to the concerns prompted by the negative effects
of sea-level rise.
90. France, in its submission to the Commission, in 2022, 167 points out the
following:
[The provisions of the United Nations Convention on the Law of the Sea] grant
coastal States room for manoeuvre when it comes to taking the initiative to
modify, or maintain declared data regarding baselines and limits of their
__________________
164 A/CN.4/740 and Corr.1, paras. 78 –80:
78. … Nevertheless, it is quite important to underline that the Convention does not
indicate expressis verbis that new baselines must be drawn, recognized (in accordance
with article 5) or notified (in a ccordance with article 16) by the coastal State when coastal
conditions change; the same observation is valid also with regard to the new outer limits
of maritime zones (which move when baselines move). Also, it should be noted that the
obligation under article 16 for the coastal State to show the baselines for measuring the
breadth of the territorial sea or the limits “derived therefrom” on charts (or a list of
geographical coordinates of points, specifying the geodetic datum), and to “give due
publicity t o such charts or lists of geographical coordinates” and to deposit copies of them
with the Secretary-General of the United Nations, applies only in the case of straight
baselines (art. 7), mouths of rivers (art. 9) and bays (art. 10). So, normal baselines are
exempted from this obligation.
79. The interpretation of the Convention to the effect that baselines (and, consequently,
the outer limits of maritime zones) have, generally, an ambulatory character does not
respond to the concerns of the Member Stat es prompted by the effects of sea -level rise and
the consequent need to preserve the legal stability, security, certainty and predictability.
The only express exception in the Convention to this ambulatory character – other than the
permanency of the continental shelf following the deposit with the Secretary -General of
the United Nations of charts and relevant information, including geodetic data, describing
its outer limits – is article 7, paragraph 2: “[w]here because of the presence of a delta and
other natural conditions the coastline is highly unstable, the appropriate points may be
selected along the furthest seaward extent of the low -water line and, notwithstanding
subsequent regression of the low-water line, the straight baselines shall remain effect ive
until changed by the coastal State in accordance with this Convention.” Although there
were notable attempts by scholars to argue in favour of the use of this provision to respond
to sea-level rise concerns in general, the overall view is that this tex t is only applicable to
situations where deltas are involved.
80. Another possible option suggested by scholars for using the existing provisions of the
Convention to address the effects of sea -level rise on the baselines is the interpretation of the
rules of article 7 referring to straight baselines. … In addition, the argument is made that it is
possible to use to this purpose article 7, paragraph 4, … and article 7, paragraph 5 …. But the
same authors concede that such solutions based on using the pro visions of the Convention
on straight baselines are not efficient when the sea -level rise is significant.
165 Ibid., para. 78.
166 A/76/10, paras. 270 –277.
167 See footnote 60 above.
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maritime zones. The Convention leaves it to coastal States to decide whether to
make modifications to this data, which means that so long as a coastal State does
not decide to make such modifications, the initially declared data remains in
force.
That is the case for normal baselines, under article 5 of the Convention, but also
for straight baselines, under article 16. Likewise, regarding maritime areas,
when reading articles 75 and 84 of the Convention, regarding the exclusive
economic zone and the continental shelf respectively we can make the same
observation.
At the same time, France advocates an interpretation of article 7, paragraph 2, as
being “applicable to situations resulting from sea-level rise, independently [of] the
presence of a delta”, thus proposing an even more ambitious approach than the first
issues paper.
91. Germany, in its submission, in 2022,168 goes in the same direction:
Germany commits … to work together with others to preserve their maritime
zones and the rights and entitlements that flow from them in a manner consistent
with the [United Nations Convention on the Law of the Sea], including through
a contemporary reading and interpretation of its intents and purposes…
Through such contemporary reading and interpretation, Germany finds that [the
Convention] allows for freezing of [baselines and outer limits of maritime
zones] once duly established, published and deposited … in accordance with the
Convention.
[The Convention] does not contain any explicit obligations to update [either]
normal baselines that have been marked (article 5 [of the Convention]) [or]
straight baselines that have been marked, published and deposited (article 16 …),
as well as no further obligation to update a State’s relevant charts and lists of
geographical coordinates with regard to the [exclusive economic zone]
(article 75 …) and the continental shelf (article 84 …).
However, Germany concludes [that] the concept of fictitious baselines [is]
already immanent within [the Convention], in particular when a coastline is
highly unstable due to the presence of “a delta and other natural conditions” [in
accordance with article 7, paragraph 2, of the Convention].
Since this provision has been translated as “delta or other natural conditions” in
several translations by [European Union member States], Germany suggests to
examine if a contemporary understanding of the provision could broaden the
scope of the exception pursuant to [article 7, paragraph 2, of the Convention]
and provide further legal certainty with regard to States freezing their baselines
and outer limits of maritime zones.
Germany commits to close multilateral coordination and cooperation at many
levels in order to arrive at such a contemporary interpretation, possibly by
working towards a “common understanding of the correct interpretation of the
relevant [Convention] provisions”, which could possibly be expressed and
endorsed by the States parties to [the Convention] in a [resolution of the Meeting
of States Parties] or by [United Nations] Member States in [a General Assembly]
resolution. We also support further discussions in the Sixth Committee of the
[General Assembly] with this aim.
__________________
168 See footnote 62 above.
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92. States take a similar line in their statements in the Sixth Committee. See, for
example, the statements of the following:
(a) Tuvalu, on behalf of the Pacific Islands Forum, in 2020; 169
(b) Fiji, on behalf of the Pacific Islands Forum, in 2021, referring to the
Declaration on Preserving Maritime Zones in the Face of Climate Change-related
Sea-Level Rise, issued by the Pacific Islands Forum Leaders in August 2021, as “a
good-faith interpretation” of the United Nations Convention on the Law of the Sea. 170
Similar statements on the Pacific Islands Forum Declaration have been made by the
following: Papua New Guinea, in 2021 and 2022, referring to the Declaration as “a
formal statement of Forum members’ view on how [the Convention] rules on
maritime zones apply in the situation of climate change-related sea-level rise”;171
New Zealand, in 2021 and 2022; 172 and Samoa, on behalf of Pacific small island
developing States, in 2022, noting the following:
As the Declaration makes clear, this approach is supported by [the
Convention] and its underlying principles. … [T]he Declaration does not
formally represent an extra-legal circumvention of [the Convention] or
the establishment of new international law. Because it is grounded on an
interpretation of the existing law of the sea as reflected in [the
Convention], States from outside the Pacific Islands Forum membership
are welcome to endorse and apply the approach of the Declaration,
including those that are not States parties to [the Convention]; 173
(c) Belize, on behalf of the Alliance of Small Island States, in 2020,
recalling that “the Vienna Convention on the Law of Treaties states that subsequent
practice [in] applying the treaty, which evinces parties’ agreement on the treaty
interpretation, shall be taken into account. This is particularly useful where the treaty
is silent on an issue, as the Convention is with the requirement to update coordinates
or charts”;174
(d) Antigua and Barbuda, on behalf of the Alliance of Small Island States,
in 2021, referring to the Alliance’s “interpretation of a lack of an obligation under
[the Convention] to review or update baselines and outer limits once deposited with
the Secretary-General”;175
(e) Samoa, on behalf of Pacific small island developing States, in 2021,
noting that “[i]t is important that [the Convention] is applied in such a way that
respects the rights and obligations in the Convention, including the rights and
entitlements of island States flowing from their maritime zones”; 176
(f) Maldives, in 2021, noting that “we do not interpret [the Convention] to
require regular updates to those submissions. … This interpretation is necessary to
support the goals of stability, security, certainty and predictability”;177
__________________
169 See footnote 69 above.
170 See footnote 70 above.
171 See footnotes 73 and 74 above.
172 See footnotes 75 and 76 above.
173 See footnote 82 above.
174 See footnote 98 above. Vienna Convention on the Law of Treaties (Vienna, 23 May 1969),
United Nations, Treaty Series, vol. 1155, No. 18232, p. 443 (see article 31, paragraph 3 ( b)).
175 See footnote 99 above.
176 See footnote 77 above.
177 See footnote 104 above.
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(g) Federated States of Micronesia, in 2020, affirming that “the
Convention … should be interpreted and applied in a manner that fosters legal
stability, security, certainty and predictability”;178
(h) Tonga, in 2021, noting that the Convention “must be interpreted and
applied in a way that respects the rights and sovereignty of vulnerable small island
States”;179
(i) Iceland, on behalf of the Nordic countries (Denmark, Finland,
Iceland, Norway and Sweden), in 2021, noting that “the Convention should be
interpreted in [the] light of changing circumstances”; 180
(j) Germany, in 2021, adopting the same approach as in its submission
to the Commission, in 2022;181
(k) Chile, in 2021, asserting that “the best approach for interpreting [the
Convention] is to give priority to the principles of international stability and the
peaceful coexistence of States”;182
(l) Sri Lanka, in 2021, noting that “[p]erhaps it was time for the
Commission to examine whether or not the Convention could be modified by mutual
consent or based on the subsequent practice of all States parties”; 183
(m) Estonia, in 2021, noting that “[w]e are satisfied that the Study Group has
found possibilities to interpret the [Convention] in [a] way that it corresponds to the
need for the stability in inter-State relations”;184
(n) Russian Federation, in 2021, stating that “it is important to find a
practical solution that is aligned with [the Convention], on one hand, and reflects the
concerns of States affected by sea-level rise, on the other”;185
(o) Solomon Islands, in 2021;186
(p) Spain, in 2021, noting that “it is essential to continue the work of the
Commission on this topic in a way that guarantees respect for and [the] integrity of
[the Convention] … and that, at the same time, allows us to identify special formulas
that take into consideration the extraordinary circumstances that several States,
especially … small island developing States, are suffering as a result of the process
of sea-level rise caused by climate change”;187 and
(q) Greece in 2021, asserting that, “[w]ith respect to the topic of sea -level
rise, the [Convention] provides the answers to the questions raised, within their
proper context”.188
93. It is noteworthy that there was no objection from any State, in their submissions
to the Commission or statements in the Sixth Committee, to the above-mentioned
interpretation of the United Nations Convention on the Law of the Sea.
__________________
178 See footnote 86 above.
179 See footnote 90 above.
180 See footnote 122 above.
181 Statement of Germany in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#21mtg . See also footnote 62 above.
182 See footnote 119 above.
183 See footnote 106 above.
184 See footnote 131 above.
185 See footnote 132 above.
186 See footnote 92 above.
187 Statement of Spain in 2021. Available from https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg.
188 See footnote 135 above.
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94. This pragmatic interpretation by States, which supports the approach proposed
in the first issues paper,189 in some cases goes even further than the first issues paper
by suggesting that article 7, paragraph 2, of the United Nations Convention on the
Law of the Sea is applicable to situations resulting from sea-level rise, independently
of the presence of a delta. Such an approach is welcome.
95. At the same time, the views of States, as expressed in their submissions and
statements following the issuance of the first issues paper, include only very few
references to the issue of the formation of customary law on the freezing of baselines
and outer limits of maritime zones. That issue was analysed in the first issues paper,
with the observation that “it is early to draw, at this stage, a definitive conclusion on
the emergence of a particular or regional customary rule (or even of a general
customary rule) of international law regarding the preservation of baselines and of
outer limits of maritime zones measured from the baselines”; although, at the time of
drafting of the first issues paper, the Co-Chairs were able to identify elements of
regional State practice, the existence of the opinio juris was not yet evident.190
96. Indeed, in their submissions and statements over the period 2020–2022, States
focus rather on interpretation of the United Nations Convention on the Law of the
Sea and on presentation of State practice. Views referring to the issue of the formation
of customary law are limited and quite cautious. For instance, Germany, in its
submission, in 2022, notes that it “commits to … work together with others to
preserve their maritime zones and the rights and entitlements that flow from them in
a manner consistent with the Convention, including through a contemporary reading
and interpretation of its intents and purposes, rather than through the development of
new customary rules”.191 The European Union, in its statement in 2022, notes the
following:
[T]he European Union and its Member States would suggest caution regarding
the consideration of regional State practices together with the respective opinio
juris in this context, because universally applicable provisions and principles
such as the [Convention] need to be applied in a uniform way in all regions of
the world …. [C]ertain possible emerging regional State practices regarding sealevel
rise should not lead to the recognition of a regional customary law of the
sea rule, and the European Union and its Member States would encourage the
Study Group to build on the State practice and consider the opinio juris accepted
by all the regions of the world before inferring the existence (or not) of an
established State practice or opinio juris.192
The Federated States of Micronesia, in its statement in 2022, notes the following:
[The Federated States of Micronesia] stresses that the Declaration [by the
Pacific Islands Forum Leaders in 2021] announces the Pacific Islands Forum
membership’s understanding and application of existing international law of the
sea. … [T]he Declaration is not formally meant to establish or announce new
regional customary international law. … For [the Federated States of]
Micronesia, even if we assume that the Declaration represents the formation or
announcement of new regional customary international law, the views of States
from outside the Pacific Islands Forum region have no bearing on whether such
new law can be developed for the region. As the Commission itself has pointed
out in its draft conclusions on the identification of customary international law,
such regional customary international law applies only to those States that
__________________
189 A/CN.4/740 and Corr.1, para. 104 (f).
190 Ibid., para. 104 (i).
191 See footnote 62 above.
192 See footnote 138 above.
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accept it and would not be opposable to States outside the region that do not
accept or apply such regional customary international law. 193
Similarly Papua New Guinea, in its statement in 2022, notes that the Declaration “is
not a formal statement on regional customary law and should not be misunderstood
or misconstrued as such”. 194 Antigua and Barbuda, in its statement on behalf of the
Alliance of Small Island States in 2021, notes that, “while we recognize that there
may not yet be sufficient State practice and opinio juris to make a conclusion that
there is a general customary rule concerning preservation of maritime zones, we think
that the trend is in that direction”.195 China, in its statement in 2021, is more cautious:
“Many countries believe that consistent State practice on sea -level rise has not been
formed and that overemphasizing regional practice may exacerbate the fragmentation
of legal rules.”196 Similar caution is expressed by Israel in its statement in 2021:
“Israel believes that given the limited State practice in this field – as acknowledged
by the Study Group itself – it is doubtful whether any conclusion regarding evidence
of existing binding rules of international law on the subject of sea-level rise could be
drawn at this juncture.”197 The Russian Federation, in its statement in 2021, expresses
the following view: “At this stage, there is no applicable rule of customary
international law, because of both the lack of recognition of the relevant practice as
legal obligation (opinio juris) and the insufficiency of the practice itself.” 198 Sri
Lanka, in its statement in 2021, expresses the view that “the Commission might be
able to develop the rules of customary international law in such a way as to lead to
the modification of the Convention with respect to the preferred approach for the
delimitation of maritime boundaries”. 199 The Co-Chairs wish to restate their
commitment to fully observing the mandate established when the topic was
introduced on the agenda of the Commission: work on the present topic will not lead
to proposals for modification of the Convention.
97. State practice regarding the preservation of maritime zones and/or the fixing of
baselines has become increasingly evident over the period 2020–2022 in the
submissions to the Commission and statements to the Sixth Committee of States from
various regions of the world. See, for example, the following: Federated States of
Micronesia, in its statement in 2020; 200 Belize, in its statement on behalf of the
Alliance of Small Island States in 2020; 201 Antigua and Barbuda, in its statement on
behalf of the Alliance of Small Island States in2021;202 Fiji, in the submission of the
Pacific Islands Forum in 2021; 203 New Zealand, in its submission in 2022 (in which
it also refers to the practice of the Cook Islands); 204 the United Kingdom, in its
submission in 2022;205 and the Kingdom of the Netherlands, in its submission in 2022
(in which it refers to the establishment of a “basic coastline”, which is preserved
through sand nourishment). 206 The Co-Chairs wish to thank Commission member
__________________
193 Statement of the Federated States of Micronesia in 2022, p. 3. Available from
https://www.un.org/en/ga/sixth/77/summaries.shtml (28th plenary meeting).
194 See footnote 74 above.
195 See footnote 99 above.
196 See footnote 163 above.
197 Statement of Israel in 2021, pp. 2 –3. Available from
https://www.un.org/en/ga/sixth/7 6/summaries.shtml#20mtg.
198 See footnote 132 above.
199 A/C.6/76/SR.21, para. 112 (see footnote 106 above).
200 See footnote 86 above.
201 See footnote 98 above.
202 See footnote 99 above.
203 See footnote 57 above.
204 See footnote 54 above.
205 See footnote 68 above.
206 See footnote 66 above.
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Mr. Bimal N. Patel for providing a paper on State practice in India, which was very
informative.
98. In conclusion, the following observations of a preliminary nature can be made:
(a) legal stability (and security, certainty and predictability) is viewed
among Member States as having a very concrete meaning, and has been linked to the
preservation of maritime zones through the fixing of baselines (and outer limits of
maritime zones measured from those baselines): in other words, States affected by
sea-level rise are not required to update their notifications of coordinates and charts,
resulting in their baselines being fixed even if the physical coast moves landward
because of sea-level rise. No States – not even those with national legislation
providing for ambulatory baselines – have expressed positions contesting the option
of fixed baselines;
(b) Member States point to the fact that when the United Nations
Convention on the Law of the Sea was being negotiated, sea-level rise and its effects
were not perceived as an issue that needed to be addressed by the Convention, and to
the need to interpret the Convention in order to respond to the effects of sea -level
rise. Most States take the view that this interpretation should be in the sense that the
Convention does not forbid the freezing of baselines. This approach is a pragmatic
one, which proposes a reading or interpretation of the Convention that allows for the
freezing of baselines once duly established, published and deposited. According to
this interpretation, the Convention contains no explicit obligation to update either
normal baselines or straight baselines that have been published and deposited, and no
further obligation to update a State’s relevant charts and lists of geographical
coordinates with regard to the exclusive economic zone and the continental shelf.
This interpretation of the Convention goes even further than the one proposed in the
first issues paper, since article 7, paragraph 2, of the Convention is considered to be
applicable to situations resulting from sea-level rise, independently of the presence
of a delta. There were no objections from any States, in their submissions to the
Commission or in their statements to the Sixth Committee, to this interpretation of
the Convention;
(c) the observations in paragraph 104 of the first issues paper were largely
upheld by Member States, with the nuances presented above.
III. Immutability and intangibility of boundaries
A. Boundaries and the principle of immutability
99. Oppenheim defined State boundaries as “the imaginary lines on the surface of
the earth which separate the territory of one [S]tate from that of another, or from
unappropriated territory, or from the open sea”. 207 In the Frontier Dispute
(Benin/Niger) case, the International Court of Justice stated t hat “a boundary
represents the line of separation between areas of State sovereignty, not only on the
earth’s surface but also in the subsoil and in the superjacent column of air”. 208
According to the International Court of Justice in Territorial Dispute (Libyan Arab
Jamahiriya/Chad), “[t]o ‘define’ a territory is to define its frontiers”.209 Nesi writes
that “[i]n contemporary international relations, the term ‘boundary’ means a line that
__________________
207 Robert Jennings and Arthur Watts, eds., Oppenheim’s International Law,, 9th ed., vol. 1, Peace
(Harlow, Longman, 1992), para. 226, at p. 661.
208 Frontier Dispute (Benin/Niger), Judgment, I.C.J. Reports 2005 , p. 90, at p. 142, para. 124.
209 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994 , p. 6, at
p. 26, para. 52.
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determines the extension of a [S]tate’s territorial sovereignty. A general definition of
the notion, which is applicable to both land and maritime delimitations, would refer
to boundaries as the ‘extreme limits of spatial validity of the legal norms of a
State’”.210 Nesi further observes that “[b]oundaries are fundamental in international
law because they define the limits of national jurisdiction and the important legal
consequences deriving from this fact”, 211 and that the “principle of the intangibility
of boundaries refers to the obligation that all [S]tates have to respect existing
delimitations in any circumstances, without implying their immutability”.212
100. The principle of the stability and finality of boundaries is well established in
international law.213 As underscored by International Court of Justice in the Temple
of Preah Vihear (Cambodia v. Thailand) case, “[i]n general, when two countries
establish a frontier between them, one of the primary objects is to achieve stability
and finality. This is impossible if the line so established can, at any moment, and on
the basis of a continuously available process, be called in question … Such a frontier,
so far from being stable, would be completely precarious”. 214 Likewise, in the
Territorial Dispute (Libyan Arab Jamahiriya/Chad) case, the Court underscored the
principle of the stability of boundaries, stating that “[o]nce agreed, the boundary
stands, for any other approach would vitiate the fundamental principle of the stability
of boundaries, the importance of which has been repeatedly emphasized by the
Court”.215 The Court reaffirmed this principle in the Territorial and Maritime Dispute
(Nicaragua v. Colombia) case.216
B. Uti possidetis juris and the intangibility of boundaries
101. The principle of the intangibility of frontiers, 217 deriving from the principle of
uti possidetis juris, is considered by many to be a well-established principle.218 Its
origins can be traced back to Roman law, but later it was adopted and developed
within the context of establishing boundaries during the decolonization period in
__________________
210 Giuseppe Nesi, “Boundaries”, in Research Handbook on Territorial Disputes in International
Law, Marcelo G. Kohen and Mamadou Hébié, eds. (Cheltenham, United Kingdom, and
Northampton, Massachusetts, Edward Elgar, 2018), pp. 193–233, at p. 197.
211 Ibid., p. 201. See also Malcolm N. Shaw, “ The heritage of States: the principle of uti possidetis
juris today”, British Year Book of International Law, vol. 67 (1996), pp. 75–154, at p. 77.
212 Nesi, “Boundaries” (see footnote 210 above), p. 229.
213 See Ibid., p. 227.
214 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June
1962: I.C.J. Reports 1962, p. 6, at p. 34.
215 Territorial Dispute (Libyan Arab Jamahiriya/Chad) (see footnote 209 above), p. 37, para. 72;
and Nesi, “Boundaries” (see footnote 210 above), p. 229.
216 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007, p. 832, at p. 861, para. 89.
217 Dirdeiry M. Ahmed, Boundaries and Secession in Africa and International Law: Challenging Uti
Possidetis (Cambridge, United Kingdom, Cambridge University Press, 2015), pp. 47–74.
218 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986 , p. 554, at
p. 565, para. 20; Frontier Dispute (Burkina Faso/Niger), Judgment, I.C.J. Reports 2013 , p. 44,
at. p. 73, para. 63. See also A/76/10, para. 261. Ahmed takes the position that, based on the
“clean slate” principle, there is no general rule of international law for newly independent States
“to respect pre-existing international frontiers in the event of a State succession”. Ahmed,
Boundaries and Secession (see footnote 217 above), p. 52. It should be noted that there is a
robust scholarly debate on whether uti possidetis is a rule of customary international law an d
whether it has actually served to preserve stability and avoid conflict. Suzanne Lalonde,
Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal and
Kingston, McGill-Queen ’s University Press, 2002); Mohammad Shahabuddin, “Postcolonial
boundaries, international law, and the making of the Rohingya crisis in Myanmar”, Asian Journal
of International Law, vol. 9, No. 2 (July 2019), pp. 334 –358; and Ahmed, Boundaries and
Secession (see footnote 217 above).
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Latin America in the nineteenth century and in Africa i n the twentieth century. Former
colonial administrative boundaries or divisions were turned into international
frontiers or boundaries. 219 The three core purposes of the uti possidetis principle are
to prevent the situation of res nullius, 220 to prevent conflict 221 and to preserve
stability.222
102. In addition to the decolonization process, the uti possidetis principle was applied
by the Commission of Rapporteurs in the case of the Åland Islands, between Finland
and Sweden, and adopted by the League of Nations Council in recommending that
the islands be awarded to Finland.223 In the context of State succession, following the
dissolution of the former Socialist Federal Republic of Yugoslavia, the Badinter
Arbitration Committee, in its third opinion, recognized uti possidetis – respect for
frontiers existing at the moment of independence – as a general principle applicable
beyond the decolonization context, where internal borders of federated states serve
as international borders. 224 While much of the scholarship and focus on uti possidetis
has been on Latin America and Africa, recent scholarship has criticized the absence
of discussion of uti possidetis in relation to postcolonial South Asia.225
103. The principle of uti possidetis has been invoked in arbitration cases 226 and
before the International Court of Justice.227 No doubt the most influential case is the
decision by the Chamber of the International Court of Justice in the Frontier Dispute
(Burkina Faso/Republic of Mali) case, in which the parties had agreed that the
settlement of the dispute must be “based in particular on respect for the principle of
the intangibility of frontiers inherited from colonization”. 228 The Court went on to
declare that the principle of uti possidetis was not limited to the process of
decolonization, but was a general principle that “has kept its place among the most
__________________
219 Frontier Dispute (Benin/Niger) (see footnote 208 above), p. 120, paras. 45–46. See also Giuseppe
Nesi, “Uti possidetis doctrine”, in Rüdiger Wulfrum, ed., Max Planck Encyclopedia of Public
International Law (Oxford, Oxford University Press, 2018).
220 Affaire des frontières Colombo -vénézuéliennes (Colombie contre Vénézuela) , Award of 24 March
1922, Reports of International Arbitral Awards, vol. I, pp. 223–298, at p. 228 (cited in Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
Judgment, I.C.J. Reports 1992 , p. 351, at pp. 387, para. 42).
221 See also the separate opinion of Judge ad hoc G. Abi-Saab in Frontier Dispute (Burkina
Faso/Republic of Mali) (see footnote 218 above), in which he describes the dual purpose of the
principle of uti possidetis; and the separate opinion of Judge Yusuf in Frontier Dispute ( Burkina
Faso/Niger) (see footnote 218 above).
222 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218), p. 565, para. 20.
223 Aaland Islands Question , report of the Commission of Rapporteurs, League of Nations Council
Doc B.7 21/68/106, 16 April 1921.
224 Alain Pellet, “The opinions of the Badinter Arbitration Committee: a second breath for the self -
determination of peoples”, European Journal of International Law , vol. 3, No. 1 (1992),
pp. 178–185, at p. 180; Shahabuddin, “Postcolonial boundaries” (see foot note 218 above); and
Peter Radan, The Break-Up of Yugoslavia and International Law (London and New York,
Routledge, 2002) (in which the author is critical of the reliance by the Badinter Commission ’s on
the application of the principle of uti possidetis in Frontier Dispute (Burkina Faso v. Mali) ).
225 Vanshaj Ravi Jain, “Broken boundaries: border and identity formation in postcolonial Punjab”,
Asian Journal of International Law, vol. 10, No. 2 (July 2020), pp. 261 –292; Radan, The Break-
Up of Yugoslavia and International Law (see footnote 224 above), pp. 118–134; and Shaw, “The
heritage of States” (see footnote 211 above), p. 105.
226 See Affaire des frontières Colombo -vénézuéliennes (Colombie contre Vénézuela) , Award of
24 March 1922 (see footnote 220 above).
227 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above); Kasikili/Sedudu
Island (Botswana/Namibia), Judgment, I.C.J. Reports 1999) , p. 1045; Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 303; Frontier Dispute (Benin/Niger) (see
footnote 208 above); and Frontier Dispute (Burkina Faso/Niger) (see footnote 218 above).
228 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), p. 564, para. 19.
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important legal principles” regarding territorial title and boundary delimitation at the
moment of decolonization.229
104. The Chamber also stressed that “[t]he essence of the principle lies in its primary
aim of securing respect for the territorial boundaries at the moment when
independence is achieved”.230 The notion of the freezing of the boundaries is vividly
depicted when the Chamber explains that “the principle of uti possidetis … applies
to the new State (as a State) not with retroactive effect, but immediately and from
that moment onwards. It applies to the State as it is, i.e., to the ‘photograph’ of the
territorial situation then existing. The principle of uti possidetis freezes the territorial
title; it stops the clock, but does not put back the hands”. 231 Stressing the interests of
“stability”, the Chamber resolved the apparent contradiction of uti possidetis with the
right of peoples in African States to self-determination by citing the “essential
requirement of stability in order to survive, to develop and gradually to consolidate
their independence in all fields”.232
105. The principle of respect for existing boundaries is reflected in a resolution of
the Organization of African Unity (OAU) adopted in 1964. 233 In that resolution,
member States reaffirm their strict respect for the principles laid down in article 3 (3)
of the OAU Charter,234 and “pledge themselves to respect the frontiers existing on
their achievement of national independence”. This text has been interpreted as a
recognition of the principle of uti possidetis juris. 235 In the Tunisia/Libyan Arab
Jamahiriya case, the International Court of Justice noted that the fact that the land
boundary between the Libyan Arab Jamahiriya and Tunisia dated from 1910 and had
survived two world wars exemplified the principle of respect for boundaries declared
in the 1964 OAU resolution. 236
__________________
229 Ibid., p. 567, para. 26 (cited in Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 , p. 659,
at p. 706, para. 151) .
230 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), p. 566, para. 23. See
also Shaw, “The heritage of States” (see footnote 211 above), p. 128.
231 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), p. 568, para. 30.
232 Ibid., p. 567, para. 25.
233 Resolution AHG/Res. 16(I), adopted by the First Ordinary Session of the Assembly of Heads of
State and Government of OAU, held in Cairo from 17 to 21 July 1964, entitled “Border disputes
among African States”, which includes the following in the preambl e: “Considering further that
the borders of African States, on the day of their independence, constitute a tangible reality”.
234 Charter of the Organizations of African Unity (Addis Ababa, 25 May 1963), United Nations,
Treaty Series, vol. 479, No. 6947, p. 39. Under article 3 (3), the member States solemnly affirm
and declare their adherence to the principles of “respect for the sovereignty and territorial
integrity of each State and for its inalienable right to independent existence”.
235 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), p. 565–566,
paras. 22–23. However, see the separate opinion of Judge Yusuf in Frontier Dispute (Burkina
Faso/Niger) (see footnote 218 above), in which he details the differences between the principle
of uti possidetis juris and the African principle of respect for boundaries as found in the OAU
resolution. See also Suzanne Lalonde, “The role of the uti possidetis principle in the resolution
of maritime boundary disputes”, in Sovereignty, Statehood and State Responsibility: Essays in
Honour of James Crawford, Christine Chinkin and Freya Baetens, eds. (Cambridge, United
Kingdom, Cambridge University Press, 2002), pp. 248–272, at p. 256; and Pierre -Emmanuel
Dupont, “Practice and prospects of boundary d elimitation in Africa: the ICJ judgment in the
Burkina Faso/Niger Frontier Dispute case”, Law and Prac tice of International Courts and
Tribunals, vol. 13, No. 1 (April 2014), pp. 103 –116.
236 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18, at
p. 65–66, para. 83–84. See also Shaw, “The heritage of States” (see footnote 211 above), p. 114; and
Dupont, “Practice and prospects of boundary delimitation in Africa” (see footnote 235 above).
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C. Application of the principle of uti possidetis to maritime boundaries
106. Distinctions have been made between land and maritime boundaries, in
particular as to their respective foundation or creation. 237 Nesi observes that a general
definition of the notion of a boundary, “which is applicable to both land and maritime
delimitations, would refer to boundaries as the ‘extreme limits of spatial validity of
the legal norms of a State’”.238 In the Frontier Dispute (Burkina Faso/Republic of
Mali) case, the Chamber of the International Court of Justice stated that “the effect
of any judicial decision rendered either in a dispute as to attribution of territory or in
a delimitation dispute, is necessarily to establish a frontier”; the same reasoning
would seem to apply to maritime delimitation, where the objective is to establish a
frontier or boundary.239
107. The principle of uti possidetis, however, has had limited application in relation
to maritime boundaries. 240 The issue was raised in the Case concerning the
delimitation of maritime boundary between Guinea-Bissau and Senegal. 241 While
both parties recognized the principle of uti possidetis in general, their views diverged
on its application to maritime boundaries. Guinea -Bissau argued against the
application of uti possidetis to maritime boundaries, as this was an area of recent
development, whereas Senegal was of the view that it did apply.242 The question was
not directly addressed by the Tribunal’s determination that the convention in question
did not create a maritime boundary. 243 However, as highlighted by Shaw, “[t]he
Tribunal also emphasized that the Arbitration Agreement signed between Guinea-
Bissau and Guinea in 1983 in order to settle that particular dispute incorporated an
express reference to the 1964 OAU resolution accepting colonial boundaries. Since
that dispute was a maritime dispute, the Tribunal concluded that both parties had
__________________
237 Lalonde, “The role of the uti possidetis principle”, in Chinkin Baetens, eds., Sovereignty, Statehood
and State Responsibility (see footnote 235 above); Nesi, “Boundaries” (see footnote 210 above),
p. 196; Marcelo Kohen, “Conclusions”, in Droit des frontières internationales – The Law of
International Boundaries, Société française pour le droit international (Paris, Editions A. Pedone,
2016), pp. 311–319, at pp. 317–318; and Alberto Alvarez-Jimenez, “Boundary agreements in the
International Court of Justice ’s case law, 2000–2010”, European Journal of International Law ,
vol. 23, No. 2 (2012), pp. 495–515.
238 Nesi, “Boundaries” (see footnote 210 above), p. 197.
239 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), p. 563, para. 17. However,
Snjólaug Árnadóttir expresses the view that there is “an inherent difference between boundaries
delimiting land territory and those delimiting maritime zone s”. Snjólaug Árnadóttir, “Termination of
maritime boundaries due to a fundamental change of circumstances” Utrecht Journal of International
and European Law, vol. 32, No. 83 (September 2016), pp. 94–111, at pp. 104–105. See also Lucius
Caflisch, “The delimitation of marine spaces between States with opposite or adjacent coasts”, in A
Handbook on the New Law of the Sea, René-Jean Dupuy and Daniel Vignes, eds. (Dordrecht, Boston
and Lancaster, Martinus Nijhoff, 199 1), pp. 425–499, at. p. 426.
240 Dispute between Argentina and Chile concerning the Beagle Channel, Decision of 18 February
1977, Reports of International Arbitral Awards, vol. XXI, pp. 53 –264 (the Tribunal rejected
Argentina ’s invocation of the principle of uti possidetis on the grounds that the principle had
been replaced by the Boundary Treaty of 1881); Case concerning the delimitation of maritime
boundary between Guinea-Bissau and Senegal, Decision of 31 July 1989, Reports of
International Arbitral Awards, vol. XX, pp. 119–213; Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (see footnote 229
above); and Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening) (see footnote 227 above).
241 Case concerning the delimitation of maritime boundary between Guinea -Bissau and Senegal (see
footnote 240 above), pp. 144–145, para. 64.
242 Guinea-Bissau further challenged the automatic rule of State succession, arguing instead for the
principle of tabula rasa.
243 Case concerning the delimitation of maritime boundary between Guinea -Bissau and Senegal (see
footnote 240 above), p. 148, para. 75.
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accepted that the principle of respect for colonial boundaries applied also to maritime
boundaries”.244
108. In the same case, Judge Bedjaoui penned his well -known dissent, 245 which
included his response to the view of Senegal that maritime boundaries did not
constitute frontiers. He made clear his view that maritime boundaries were real
boundaries:
Sur ce point, j’estime que les délimitations maritimes donnent lieu à l ’existence
de “frontières” véritables. L’étendue des compétences de l’Etat est sans doute
différente pour les limites maritimes par rapport aux frontières terrestres. Mais
cette différence est de degré non de nature, même si certaines limites maritimes
ne “produisent” pas une exclusivité et une plénitude de compétence étatique .246
109. In Land and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), because of the colonial history of the Gulf of Fonseca, the Chamber
examined the legal situation of the waters of the Gulf in 1821 at the time of succession
from Spain. However, it found that no evidence had been presented by the parties of
the application of the principle of uti possidetis by analogy with the case of the
land. 247 The only part where the Chamber found an implicit application of uti
possidetis to the Gulf waters was in relation to the part of the Gulf between Honduras
and Nicaragua that had been delimited in 1900. The Chamber was of the view that
the Mixed Commission responsible for that delimitation “simply took it as axiomatic
that ‘there belonged to each State that part of the Gulf or Bay of Fonseca adjacent to
its coasts’ … A joint succession of the three States to the maritime area seems in these
circumstances to be the logical outcome of the principle of uti possidetis juris
itself”.248 According to Shaw, “[i]n other words, the doctrine applied to what were in
effect maritime boundaries, but in the special circumstances of that bay did so not in
the form of a division of waters but rather by way of joint sovereignty over them by
the three coastal States”.249
110. In the Nicaragua v. Honduras case, Honduras had argued that the principle of
uti possidetis juris applied to both land and maritime areas in the case. 250 The
International Court of Justice found that Honduras had failed to make a persuasive
case overall for the application of the uti possidetis principle.251 Nonetheless, the
Court did not preclude its application in maritime delimitation, stating that “the uti
possidetis juris principle might in certain circumstances, such as in connection with
historic bays and territorial seas, play a role in a maritime delimitation”. 252 The Court
further observed that “Nicaragua and Honduras as new independent States were
entitled by virtue of the uti possidetis juris principle to such mainland and insular
__________________
244 Shaw, “The heritage of States” (see footnote 211 above), p. 127.
245 Case concerning the delimitation of maritime boundary between Guinea-Bissau and Senegal (see
footnote 240 above), dissenting opinion of Judge Bedjaoui, p. 154.
246 Ibid., pp. 162–163, para. 22.
247 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(see footnote 220 above), p. 589, para. 386.
248 Ibid., pp. 601–602, para. 405.
249 Shaw, “ The heritage of States” (see footnote 211 above), p. 128.
250 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) (see footnote 229 above). In the Cameroon v. Nigeria land and
maritime delimitation case, Cameroon had also a rgued for the application of uti possidetis. The
Court did not address the arguments advanced by Cameroon in finding that the Anglo-German
Agreement of 11 March 1913 was applicable. Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening ) (see footnote 227 above),
p. 412, para. 217.
251 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) (see footnote 229 above), p. 728, para. 232.
252 Ibid., p. 728, para. 232.
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territories and territorial seas which constituted their provinces at independence”. 253
However, there was no evidence the Spanish Crown had divided its maritime
jurisdiction between the colonial provinces of Nicaragua and Honduras even within
the limits of the territorial sea.254 The Court did not address the claim by Honduras in
relation to the continental shelf.
D. Preliminary observations
111. In conclusion, the following observations of a preliminary nature can be made:
(a) the function of boundaries is to demarcate the extent of the State’s
sovereignty and jurisdiction, which extends beyond its land territory and includes the
maritime space. The principle of stability of and respect for existing boundaries – that
is, their immutability – is a rule of customary international law. The same principle
of stability of and respect for existing boundaries would apply to maritime
boundaries, which share the same function of demarcating the extent of the
sovereignty and the sovereign rights of a State. Concerns regarding preservation of
the stability of boundaries would equally apply to maritime boundaries, which, if
questioned, could create conflictual situations among States over maritime territory
that had been settled by treaty or otherwise;
(b) the principle of the intangibility of boundaries, as developed under the
principle of uti possidetis, is considered a general principle of law beyond application
to the traditional decolonization process and is a rule of customary international law.
For the purposes of the present paper, it is relevant, first, because its overriding
purpose is to preserve stability and avoid conflict should boundaries be questioned.
Second, uti possidetis provides an example under international law of the “freezing”
of pre-existing boundaries in the interests of preserving stability and preventing
conflict. The same approach could be applied to baselines or the outer limits of
maritime zones, also in the interests of preserving stability and preventing conflict;
(c) in relation to sea-level rise and maritime boundaries, the main
preliminary observation is not so much the application of uti possidetis to existing
maritime boundaries because of the impact of sea-level rise impact, but rather the
importance accorded to ensuring continuity of pre-existing boundaries in the interests
of stability and preventing conflict.
IV. Fundamental change of circumstances (rebus sic stantibus)
A. Submissions of Member States to the Commission and statements
by Member States in the Sixth Committee of the General Assembly
112. The issue whether sea-level rise represents a fundamental change of
circumstances, in the context of article 62, paragraph 2 (a), of the 1969 Vienna
Convention on the Law of Treaties, that might be invoked as a ground to terminate
maritime boundary agreements was examined in the first issues paper. 255 While some
members of the Study Group noted that maritime treaties and adjudicated boundaries
should be final, other members commented that additional study was necessary. A
summary of the general exchange of views of the Study Group on this issue is to be
found in the annual report of the Commission. 256 In the first issues paper, reference
__________________
253 Ibid., p. 729, para. 234.
254 Ibid.
255 A/CN.4/740 and Corr.1, paras. 114–140.
256 A/76/10, para. 281.
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is made to the numerous statements made by Member States in the Sixth Committee,
and their submissions to the Commission, in which they assert that sea-level rise
should not affect maritime boundaries fixed by treaty or that there is a need to
maintain the stability of existing maritime boundary agreements. 257
113. Austria, in its statement in 2021, notes that it “would welcome further study in
regard to the applicability of article 62 [of the Vienna Convention on the Law of
Treaties] to the phenomenon of sea-level rise”.258 Israel notes that it “continues to
study and consider this important discussion on the interministerial level, as it is of
great relevance to the entire topic of sea-level rise, and we look forward to weighing
in on this debate at a future date”.259 A number of States also have expressed the view
that a fundamental change of circumstances would not apply to treaties establishing
maritime boundaries: Antigua and Barbuda, 260 Columbia, 261 Cyprus, 262 France, 263
Greece,264 Ireland,265 Maldives,266 Philippines,267 Poland,268 Singapore,269 Thailand270
and United States.271
114. To date, no State has expressed the view that the rule of fundamental change of
circumstances, as codified in article 62, paragraph 1, of the Vienna Convention on
the Law of Treaties, would apply to maritime boundaries as a result of sea-level rise.
It should be noted also, that, in general, there are very few examples of State practi ce
whereby article 62 has been invoked to unilaterally terminate a treaty,272 and virtually
__________________
257 Submission of Maldives, p. 9 (available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms ;
see A/CN.4/740 and Corr.1, para. 122); sub mission of the Pacific Islands Forum in 2019, p. 3
(available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms ; see A/CN.4/740 and Corr.1,
para. 123); submission of the United States in 2020, p. 1 (available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms ; see A/CN.4/740 and Corr.1, para. 125);
statements of Greece in 2018 and 2019 ( A/C.6/73/SR.21, para. 68, and A/C.6/74/SR.28,
paras. 56–57; see A/CN.4/740 and Corr.1, para. 128); statement of New Zealand
(A/C.6/73/SR.22, para. 5; see A/CN.4/740 and Corr.1, para. 130); and statement of Israel
(A/C.6/74/SR.24, para. 27; see A/CN.4/740 and Corr.1, para. 131).
258 Statement of Austria in 2021. Available fr om
https://www.un.org/en/ga/sixth/76/summaries.shtml#22mtg .
259 Statement of Israel in 2021 (see footnote 197 above).
260 Submission of Antigua and Barbuda (see footnote 46 above).
261 Submission of Columbia (see footnote 53 above).
262 Submission of Cyprus (see footno te 133 above).
263 Submission of France (see footnote 60 above).
264 Statement of Greece in 2021 (see footnote 135 above).
265 Submission of Ireland (see footnote 65 above).
266 Submission of Maldives (see foot note 257 above).
267 Statement of the Philippines in 2021 (see footnote 112 above).
268 Submission of Poland (see footnote 67 above), in which it states that it “does not consider
modifying of maritime boundary treaties due to sea -level rise for now”.
269 Statement of Singapore in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg . In that statement, Singapore expresses
the view that, “in general, maritime boundary delimitation treaties and the decisions of
international courts or tribunals should not be easily reopened”, while acknowledging that “each
treaty needs to be interpreted in accordance with its terms in their context and in the light of its
object and purpose and surrounding circumstances”.
270 Statement of Thailand in 2021 (see footnote 108 above).
271 Submission of the United States in 2022. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
272 Examples of States invoking the rule of rebus sic stantibus to terminate or withdraw from treaties
that predate the Vienna Convention on the Law of Treaties are examined in Snjólaug Árnadóttir,
Climate Change and Maritime Boundaries: Legal Consequences of Sea Level Rise (Cambridge,
United Kingdom, Cambridge University Press, 2021), pp 171 –172.
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none where international courts or tribunals have applied it.273 Indeed, the situation
does not seem to have changed much since Lauterpacht wrote that the “practice of
States shows few examples of actual recourse to the doctrine rebus sic stantibus, and
probably no examples of its recognition by States against whose treaty rights it has
been invoked”.274
B. Development of the rule of fundamental change of circumstances
115. Fundamental change of circumstances (rebus sic stantibus) is a general rule of
international law that has been codified in article 62 of the Vienna Convention on the
Law of Treaties. Article 62, paragraph 1, provides the following:
A fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by
the parties, may not be invoked as a ground for terminating or withdrawing from
the treaty unless:
(a) The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations
still to be performed under the treaty.
116. The threshold is high, as States may invoke a fundamental change of
circumstance only if the circumstances that existed at the time that the treaty was
made formed an “essential” basis of the consent of the parties and the change in
circumstances has the effect of “radically” transforming the obligations to be
performed by the parties. However, even should there be a fundamental change of
circumstances in accordance with article 62, paragraph 1, under paragraph 2, that
change may not be invoked by a party “as a ground for terminating or withdrawing
from a treaty … if the treaty establishes a boundary”.
117. During its eighteenth session, the Commission adopted draft article 59 on
fundamental change of circumstances. 275 The adopted draft article included
paragraph 2 (a), excluding the invocation of fundamental change of circumstances as
a ground for terminating or withdrawing from a treaty establishing a boundary. The
draft articles were later adopted, in 1969, as the Vienna Convention on the Law of
Treaties.
118. As reflected in the commentaries, the Commission agreed to exclude treaties
establishing a boundary in order to prevent situations of conflict, “because otherwise
the rule [of fundamental change of circumstances], instead of being an instrument of
__________________
273 See Julia Lisztwan, “Stability of maritime boundary agreements”, Yale Journal of International Law,
vol. 37, No. 1 (Winter 2012), pp. 153–200, at pp. 181 and 185; Fisheries Jurisdiction (United
Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973 , p. 3; and Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7. However, the
European Court of Justice did find that the political and economic changes in former Yugoslav
republics created a fundamental change in circumstances. European Court of Justice , A. Racke
GmbH & Co. v. Hauptzollamt Mainz, Case No. C-162/96, Judgment, 16 June 1998, para. 55.
274 Hersch Lauterpacht, The Function of Law in the International Community (Oxford, Clarendon,
1933) p. 270. Lauterpacht also discusses the case of Bremen (Free Hansa City of) v. Prussia,
German Staatsgerichtshof, 29 June 1925, in which the court recognized the principle of rebus sic
stantibus but did not deem it applicable to the case. Ibid., pp. 277–279; and Annual Digest of
Public International Law Cases, vol. 3 (Cambridge, United Kingdom, Cambridge University
Press, 1929), pp. 352–354.
275 “Yearbook … 1966, vol. II, document A/6309/Rev.1, Part II, p. 177, para. 38, at p. 184.
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peaceful change, might become a source of dangerous frictions”, 276 and to safeguard
the stability of boundaries in order to promote peace and security in the international
community.277
119. Moreover, the same concerns were expressed by States during the negotiations
of the Vienna Convention on the Law of Treaties. For example, specifically on the
exclusion of boundary treaties, Poland stated the following:
“[T]he Polish delegation considered that the present formulation of article 59
reconciled two conflicting elements, the dynamics of international life and the
stability that was essential in every legal order. While it might be argued that
stability was not an end in itself, it was nevertheless the most important factor
in the case of treaties establishing boundaries. The problem of boundaries was
closely connected with the most fundamental rights of States. It was for that
reason that the Polish delegation maintained that no treaty establishing a
boundary could be open to unilateral action on the ground of a fundamental
change of circumstances.278
120. It can be concluded that the fundamental interest of ensuring stability of
boundaries with a view to preserving peaceful relations was an object and purpose of
article 62, paragraph 2, of the Vienna Convention on the Law of Treaties. The same
interest would apply to ensuring the stability of maritime boundaries and preserving
peaceful relations among States. There are still many disputed maritime boundaries,
and the prospect of adding new ones from boundaries that were settled would seem
to undermine the interest of ensuring stability under the Convention.
C. Case law and application of the rule of fundamental change of
circumstances to maritime boundaries
121. Past cases have also demonstrated that courts and tribunals are reluctant to apply
fundamental change of circumstances to terminate a treaty. For example, the
International Court of Justice did not accept a claim by Iceland of fundamental change
of circumstances based on changes in fishing techniques and law as grounds to
terminate the compromissory clause between it and the United Kingdom.279 Likewise,
the Court did not accept the argument by Hungary for the application of article 62 of
the Vienna Convention on the Law of Treaties as grounds for termination of its treaty
with Czechoslovakia. The Court underscored the concerns of stability under the
Convention, observing that “[t]he negative and conditional wording of [a]rticle 62 of
__________________
276 Ibid., p. 259, paragraph (11) of the commentary to draft article 59. See also submission of
Maldives (see footnote 257 above).
277 Árnadóttir, “Termination of maritime boundaries” (see footnote 239 above), pp. 101–102. In
support of excluding boundaries, the Commission referred to Permanent Court of In ternational
Justice, Case of the Free Zones of Upper Savoy and the District of , Order , 19 August 1929,
P.C.I.J. Series A, No. 22 (Árnadóttir, ibid., pp. 103–104). See also submission of Maldives (see
footnote 257 above), pp. 20–21, citing Yearbook … 1966, vol. II, document A/6309/Rev.1, Part II,
p. 259, paragraph (11) of the commentary to draft article 59 .
278 Official Records of the United Nations Conference on the Law of Treaties, Second Session,
9 April–22 May 1969, Summary Records of the Plenary Meetings and of the Meetings of the
Committee of the Whole (A/CONF.39/11/Add.1), 22nd plenary meeting, p. 117, para. 14. States
also expressed concern that the ex clusion of treaties establishing boundaries would constitute
endorsement of a number of colonial and unequal treaties concluded in the past, and runs counter
to the right of self-determination. See, for example, the statement of Afghanistan, ibid., p. 118,
para. 19.
279 Iceland did not appear in the jurisdictional proceedings. Iceland had raised the principle of
fundamental change of circumstance in a letter dated 29 May 1972 from the Minister for Foreign
Affaires of Iceland to the Registrar of the Court. Fisheries Jurisdiction (United Kingdom v.
Iceland), Jurisdiction of the Court (see footnote 273 above).
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the Vienna Convention on the Law of Treaties is a clear indication moreover that the
stability of treaty relations requires that the plea of fundamental change of
circumstances be applied only in exceptional cases”. 280
122. The question as to whether article 62, paragraph 2, applies to maritime
boundaries, was examined in two cases, already addressed in the first issues paper:
the 1978 judgment of the International Court of Justice in the Aegean Sea Continental
Shelf (Greece v. Turkey) case, 281 and the Bay of Bengal Maritime Boundary
Arbitration (Bangladesh v. India).282 Most recently, in Maritime Delimitation in the
Indian Ocean (Somalia v. Kenya), the Court observed “that boundaries between
States, including maritime boundaries, are aimed at providing permanency and
stability”.283 Moreover, the dominant view of writers does not support the application
of fundamental change of circumstances (rebus sic stantibus) to maritime boundary
treaties.284 Thus, in reality the issue is more theoretical than likely to occur.
123. It is evident the objective and purpose article 62, paragraph 2 (a), is to prevent
conflict and preserve the stability of boundaries. To recognize sea-level rise as a
fundamental change of circumstance within the meaning of article 62 would produce
the contrary outcome. By allowing States to unilaterally terminate or withdraw from
existing treaties for maritime boundaries would instigate new disputes where they
had been resolved peaceably by agreement of the parties. Given the widespread
impact of sea-level rise, this would also threaten the stability of international relations
in many parts of the world.
124. Moreover, given the very high threshold for invoking article 62, the question
can also be raised as to whether sea-level rise would fulfil these cumulative conditions
to allow a party to unliterally terminate an otherwise valid boundary agreement.
Article 62 requires that “the facts, knowledge, or legal regime, the change of which
is invoked as grounds for termination, existed at the time the treaty was concluded;
the parties did not foresee a change in those circumstances”. 285 As one author
remarks, “the [S]tate would need to demonstrate both that the coastal geography at
the time the agreement was concluded was a basis for its consent and that the [S]tate
could not reasonably have anticipated changes in that coastal geography”.286
__________________
280 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) (see footnote 273 above), p. 65, para. 104.
281 Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978 , p. 3, at pp. 35 –36, para. 85. See
also A/CN.4/740 and Corr.1, para. 118.
282 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India ), Case No. 2010 -16,
Permanent Court of Arbitration, Award, 7 July 2014, p. 63, paras. 216 –217. Available from
www.pca-cpa.org/en/cases/18. See also A/CN.4/740 and Corr.1, para. 120.
283 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment, I.C.J. Reports 2021 ,
p. 206, at p. 263, para. 158.
284 Lisztwan, “Stability of maritime boundary agreements” (see footnote 273 above), pp. 184–199.
The author refers to the statement of the United States delegation at the negotiations of the then
draft article 59 on the fundamental change of circumstances, in which it quoted Oppenheim ’s
definition of boundaries, noting that, “[b]y inference, the United States delegation also viewed
boundaries as encompassing land and ma ritime delimitations”. Ibid., p. 188. See also Kate Purcell,
Geographical Change and the Law of the Sea (Oxford, Oxford University Press, 2019), pp. 253 –254;
and Jenny Grote Stoutenburg, “Implementing a new regime of stable maritime zones to ensure the
(economic) survival of small island States threatened by sea -level rise”, International Journal of
Marine and Coastal Law, vol 26, No. 2 (January 2011), pp. 263 –311, at p. 280. However,
Árnadóttir is of the view that maritime boundaries are not excluded from article 62, paragraph 2.
Árnadóttir, Climate Change and Maritime Boundaries (see footnote 272 above), pp. 209–219.
285 Lisztwan, “Stability of maritime boundary agreements” (see footnote 273 above), citing Oliver J.
Lissitzyn, “Treaties and changed circumstances ( rebus sic stantibus)”, American Journal of
International Law, vol. 61, No. 4 (October 1967), pp. 895 –922, at p. 912, para. 5 (“A change in
circumstances may be invoked even if it was not ‘unforeseen’ in the absolute sense”).
286 Lisztwan, “Stability of maritime boundary agreements” (see footnote 273 above), p. 184.
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D. Preliminary observations
125. In conclusion, the following observations of a preliminary nature can be made:
(a) many States in the Sixth Committee have expressed the clear position
that sea-level rise should affect neither maritime boundaries fixed by treaty nor the
need to maintain the stability of existing maritime boundary agreements. This view
was reiterated by several States in their submissions to the Commission. To date, no
State has expressed the view that the principle of fundamental change of
circumstances, as codified in article 62, paragraph 1, of the Vienna Convention on
the Law of Treaties, would apply to maritime boundaries as a result of sea-level rise;
(b) the history of article 62, paragraph 2 (a), of the Vienna Convention on
the Law of Treaties, under which treaties establishing boundaries are excluded from
application of the principle of fundamental change of circumstances to terminate or
suspend a treaty, shows that its objective and purpose was the maintenance of the
stability of boundaries in the interests of peaceful relations. The same objective, of
maintaining stability in the interests of peaceful relations and avoiding conflict,
would clearly apply to maritime boundaries. The possibility of a State unilaterally
invoking sea-level rise as a fundamental change of circumstances to terminate an
existing treaty would create a risk of conflict and disturbance of international
relations. The widespread impact of sea-level rise could create many new disputes
among States over settled maritime boundaries. Such a scenario would not be in the
interests of preserving stability and peaceful relations;
(c) in practice, there are few examples of treaties being terminated or
suspended as a result of a fundamental change of circumstances, whether before or
after the adoption of the Vienna Convention on the Law of Treaties. Likewise, the
International Court of Justice has not applied the principle when requested by States,
on the basis of concerns of ensuring stability under the Convention. There is no clear
evidence that maritime boundaries were intended to be excluded from article 62,
paragraph 2 (a). On the contrary, in three cases that have raised this issue, the Court
has consistently concluded that article 62, paragraph 2 (a), does apply to maritime
boundaries, in the interests of the stability of boundaries;
(d) the objective of preserving the stability of boundaries and peaceful
relations under article 62 would equally apply to maritime boundaries, as under lined
by the Court and arbitral tribunal in three cases addressing this issue.
V. Effects of the potential situation whereby overlapping
areas of the exclusive economic zones of opposite coastal
States, delimited by bilateral agreement, no longer overla p,
and the issue of objective regimes;287 effects of the situation
whereby an agreed land boundary terminus ends up being
located out at sea; judgment of the International Court of
Justice in the Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean (Costa Rica v. Nicaragua) case
126. According to the 2021 annual report of the Commission:
Some members suggested that the Study Group take into account the possible
situation where, as a result of sea-level rise and a landward shift of the coastline,
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287 The Co-Chairs wishes to thank Professor Ion Galea, Faculty of Law, University of Bucharest, for
his contribution to this part of the present chapter.
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the bilaterally-agreed delimitation of overlapping areas of exclusive economic
zones of opposite coastal States no longer overlapped, as such a situation would
result in States being trapped in an unreasonable legal fiction. Support was
expressed for the examination of this hypothesis, including from the angle of
concepts from the law of treaties, like obsolescence or the supervening
impossibility of performance of a treaty.288
…
It was noted that the matter [as to whether maritime agreements establishing
boundaries and fixing limits were binding upon all States] needed to be further
examined, including from the perspective of objective regimes in international
law. It was also suggested that the Study Group examine the issue of the
consequences for a maritime boundary if an agreed land boundary terminus
ended up being located out at sea because of sea-level rise.289
Furthermore, “it was also deemed important to consider the judgment rendered by
the International Court of Justice in the Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean (Costa Rica v. Nicaragua) case in which the Court used a
moving delimitation line for maritime delimitation”.290
127. These issues were not covered by Member States in their submissions to the
Commission or statements to the Sixth Committee over the period 2020–2022.
128. According to the doctrine, “[w]hen the coastal State has a maritime delimitation
agreement with an opposite or adjacent State, … [i]f the total area exceeds 400
nautical miles after the coast retreats, a new area of high seas is created”. 291
129. The scenario under consideration presupposes that the delimitation was effected
through a treaty between States with opposite coasts (hereinafter referred to as the
“delimitation treaty”). In any case, the considerations below may apply only to the
notion of the exclusive economic zone. In the case of the continental shelf, nothing
prevents States from extending their continental shelf to limits beyond 200 nautical
miles, in accordance with article 76 of the United Nations Convention on the Law of
the Sea and the procedure for which it provides; at the same time, the maximum limit
of 350 nautical miles must not be exceeded.
130. A first question to be answered is whether the delimitation treaty can be affected
by the “supervening impossibility of performance”, under article 61 of the Vienna
Convention on the Law of Treaties. According to that article, “[a] party may invoke
the impossibility of performing a treaty as a ground for terminating or withdrawing
from it if the impossibility results from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty”. This article reflects
customary international law.292
__________________
288 A/76/10, para. 277.
289 Ibid., para. 281.
290 Ibid., para. 272. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v.
Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),
Judgment, I.C.J. Reports 2018 , p. 139.
291 Sarra Sefrioui, “Adapting to sea -level rise: a law of the sea perspective”, in The Future of the
Law of the Sea, Gemma Andreone, ed.) (Cham, Springer International, 2017), pp. 3 –22, at p. 10),
citing Lisztwan, “Stability of maritime boundary agreements” (see footnote 273 above), p. 176.
292 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (see footnote 273 above), p. 38, para. 46. See
also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 16,; and Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the
Court (see footnote 273 above), p. 18, para. 36.
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131. The Commission, in its commentary to the draft articles on the law of treaties,
explained the following: “State practice furnishes few examples of the termination of
a treaty on this ground. But the type of cases envisaged by the article is the
submergence of an island, the drying up of a river or the destruction of a dam or
hydro-electric installation indispensable for the execution of a treaty.”293 The Special
Rapporteur on the topic, Sir Humphrey Waldock, also provided similar examples,
including the destruction of a railway by an earthquake, and the destruction of a plant,
installations, a canal or a lighthouse.294
132. According to the doctrine, only a “material” impossibility (not a “legal”
impossibility) triggers the application of article 61.295 Nevertheless, the International
Court of Justice left the issue open in the Gabčíkovo-Nagymaros Project case.
Hungary contended that the essential object of a 1997 treaty establishing a
hydropower plant on the River Danube was “an economic joint investment which was
consistent with environmental protection and which was operated by the two
contracting parties jointly” and that it had permanently disappeared. The Court held
that “[i]t is not necessary for the Court to determine whether the term ‘object’ in
[a]rticle 61 can also be understood to embrace a legal régime as in any event, even if
that were the case, it would have to conclude that in this instance that régime had not
definitively ceased to exist”.296
133. Thus, if, in the case of a delimitation treaty, the overlapping entitlements over
maritime areas were to be interpreted as a physical object (the “contact” between the
entitlements of the two States), it may be argued that the parties could invoke
article 61 if their entitlements in the respective areas disappear because of sea-level
rise (a situation which is comparable to the submergence of an island). If the
delimitation treaty is interpreted as establishing a legal regime, then it may be argued
that article 61 does not apply, since this article is applicable only when “a physical
object” indispensable for the execution of the treaty disappears. However, as noted
by the International Court of Justice (see previous paragraph), even if so, the legal
regime provided by that treaty continues to exist, since a maritime delimitation is a
legal act.
134. In any case, both the Commission and the Special Rapporteur emphasize that
the application of article 61 is not “automatic”: the parties have a “right to invoke”
the supervening impossibility of performance as a ground for terminating the
treaty,297 which means that following that invocation the parties still have to agree on
the termination of the treaty.
135. A second question to be answered is whether a treaty can be affected by the
“desuetude” or “obsolescence”. The exclusion of desuetude and obsolescence as
grounds for terminating treaties in the Vienna Convention on the Law of Treat ies was
intentional on the part of the Commission: “while ‘desuetude’ or ‘obsolescence’ may
be a factual cause of the termination of a treaty, the legal basis of such termination,
__________________
293 Yearbook … 1966, vol. II, document A/6309/Rev.1, p. 256, paragraph (2) of the commentary to
draft article 58.
294 Yearbook … 1963, vol. II, documents A/CN.4/156 and Add.1–3, p. 79, paragraph (5) of the
commentary to draft article 21.
295 Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden
and Boston, Martinus Nijhoff, 2009), p. 755, para. 4.
296 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (see footnote 273 above), pp. 63–64, para. 103.
297 Yearbook … 1966, vol. II, document A/6309/Rev.1 , p. 256, paragraph (5) of the commentary to
draft a rticle 58; and Yearbook … 1963, vol. II, documents A/CN.4/156 and Add.1–3, p. 78,
paragraph (2) of the commentary to draft article 21.
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when it occurs, is the consent of the parties to abandon the treaty, which i s to be
implied from their conduct in relation to the treaty”.298
136. Desuetude is understood by the Special Rapporteur, Sir Gerald Fitzmaurice, to
be “failure by both or all the parties over a long period to apply or invoke a treaty, or
other conduct evidencing a lack of interest in it”, which “may amount to tacit
agreement to by the parties to disregard the treaty, or to treat it as terminated”. 299
Obsolescence refers to the “impossibility of applying a treaty due to the
disappearance of a legal situation which constituted one of its essential conditions”.300
Thus, obsolescence deals with the legal impossibility of applying a treaty. Examples
offered in the doctrine include the references to “enemy state” in the Charter of the
United Nations.301 In practice, Austria, in 1990, notified the other States parties to
the State Treaty of 15 May 1955 (France, Union of Soviet Socialist Republics, United
Kingdom and United States) that military and aviation clauses in the treaty had
became obsolete, and the other parties replied by consenting to this notification. 302
Thus, it may also be argued that the partial termination of the treaty took place by the
consent of the parties.
137. It therefore appears that obsolescence could occur in the case of a delimitation
treaty, as a “legal impossibility” to perform, if the following conditions were met:
(a) a change in the legal framework that rendered the treaty inapplicable (this would
imply that the rights and entitlements of States over the maritime areas that
overlapped would disappear); and (b) the parties agreed on such inapplicability (or
at least one party invoked obsolescence and the others did not object). However, this
would require the entire United Nations Convention on the Law of the Sea to become
obsolete, which seems highly improbable. The change of baselines of some States, or
even many, does not render that entire Convention obsolete.
138. A third question to be answered is whether the delimitation treaty can affect the
rights of third States. It could be argued that a delimitation treaty represents an
“objective regime”, a “territorial treaty”, which is opposable to third States and has
erga omnes effects.
139. The Vienna Convention on the Law of Treaties does not deal with treaties
establishing objective regimes. However, in 1960, the Special Rapporteur Sir Gerald
Fitzmaurice, recognized the following:
[T]he instruments governing the use of such international rivers as the Rhine,
Danube, and Oder, and such seaways as the Suez and Panama Canals, the sounds
and belts, and the Dardanelles and Bosphorus, to take some of the more
prominent cases, have all come to be accepted or regarded as effective erga
omnes, and this of course is still more so as regards the question whether they
confer universally available rights of passage.303
140. At the same time, the Special Rapporteur argued that, in the case of objective
regimes, all States have a duty to recognize and respect situations of law or of fact
__________________
298 Yearbook … 1966, vol. II, document A/6309/Rev.1 , p. 237; and Marcelo G. Kohen, “ Desuetude
and obsolescence of treaties”, in The Law of Treaties Beyond the Vienna Convention , Enzo
Cannizzaro, ed. (Oxford, Oxford University Press, 2011), pp. 350 –359, at p. 351.
299 Yearbook … 1957, vol. II, document A/CN.4/107 , p. 28, paragraph 3 of draft article 15.
300 Kohen, “Desuetude and obsolescence of treaties” (see footnote 298 above), p. 358.
301 Ibid.
302 State Treaty for the Re-establishment of an Independent and Democratic Austria (Vienna, 15 May
1955), Federal Gazette, vol. 39 (1955), No. 152, p. 725 (English text at p. 762).
303 Yearbook … 1960, document A/CN.4/130, p. 92, para. 52.
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established under lawful and valid international treaties embodying “international
regimes or settlements”.304
141. The question of “territorial” treaties appeared before the Commission on the
occasion of the works related to the succession of States in respect of treaties. In its
commentary to the draft articles on succession of states in respect of treaties, the
Commission noted the following: “Both in the writings of jurists and in State practice
frequent reference is made to certain categories of treaties, variously described as of
a ‘territorial’, ‘dispositive’, ‘real’ or ‘localized’ character, as binding upon the
territory affected notwithstanding any succession of States.” 305 The Commission
included in this category treaties establishing a boundary – which include
delimitation treaties306 – as well as “other territorial treaties”, in what would become
articles 11 and 12 of the 1978 Vienna Convention on the Succession of States in
respect of Treaties.307 The International Court of Justice confirmed the customary
character of article 12 in the GabčíkovoNagymaros Project case.308
142. The interpretation of the word “boundary” to cover maritime boundaries was
reinforced in the Aegean Sea Continental Shelf case.309 In this case, the International
Court of Justice interpreted the term “territorial status” to cover also the issues of
delimitation of the continental shelf.310 It can be noted, in this context, that States
parties to the United Nations Convention on the Law of the Sea are obliged to give
“due publicity” to charts or lists of geographical coordinates of the outer limit lines
of the exclusive economic zone (art. 75, para. 2) and of the outer limit lines of the
continental shelf and the lines of delimitation (art. 84, para. 2), and to deposit a copy
of each such chart or list with the Secretary-General of the United Nations.
143. The hypothesis whereby an agreed land boundary terminus ends up being
located out at sea has been flagged by the doctrine. For instance, Samuel Pyeatt
Menefee refers to the situation whereby “land boundaries between two [S]tates …
become flooded by rising sea levels. Do these remain the same, although submerged,
or would the onslaught of the oceans trigger the necessity for a new boundary
agreement?”311 Referring to article 15 of the United Nations Convention on the Law
of the Sea,312 he goes on:
The initial wording suggests problems in retaining an old land boundary if the
[S]tates involved are not equally affected by the rise in sea level. At the same
__________________
304 Ibid., p. 97, paras. 68–70.
305 Yearbook … 1974, vol I (Part One), document A/9610/Rev.1 , p. 174, para. 85, at p. 196,
paragraph (1) of the commentary to draft article 12.
306 Idem, p. 199, paragraph (10) of the commentary to draft article 12.
307 Vienna Convention on Succession of States in Respect of Treaties (Vienna, 23 August 1978),
United Nations, Treaty Series, vol. 1946, No. 33356, p. 3.
308 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (see footnote 273 above), p. 72, para. 123.
309 Aegean Sea Continental Shelf (see footnote 281 above), pp 35 –36. para. 85: “Whether it is a land
frontier or a boundary line in the continental shelf that is in question, the process is essentially
the same, and inevitably involves the same element of stability and permanence, and is subject to
the rule excluding boundary agreements from fundamental change of circumstances.”
310 Ibid., p. 32, para. 77.
311 Samuel Pyeatt Menefee, “‘Half seas over’: the impact of sea-level rise on international law and policy”,
UCLA Journal of Environmental Law and Poli cy, vol. 9, No. 2 (1991), pp. 175–218, at p. 210.
312 Article 15, on “Delimitation of the territorial sea between States with opposite or adjacent
coasts”, reads as follows: “Where the coasts of two States are opposite or adjacent to each other,
neither of the two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the nearest points
on the baselines from which the breadth of the territorial seas o f each of the two States is
measured. The above provision does not apply, however, where it is necessary by reason of
historic title or other special circumstances to delimit the territorial seas of the two States in a
way which is at variance therewith.”
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time, one could expect an argument based on ‘historical title or other special
circumstances’ by any [S]tate gaining advantage by retaining the old land
boundaries. A similar argument is that the doctrine of changed circumstances is
not usually held to apply in boundary matters and the former (dry land)
territorial agreement would therefore apply, constituting an “agreement between
them to the contrary”.313
144. Indeed, boundary treaties are explicitly excluded under article 62, paragraph 2,
of the Vienna Convention on the Law of Treaties from termination as a result of a
change of circumstances: “[a] fundamental change of circumstances may not be
invoked as a ground for terminating or withdrawing from a treaty ... if the treaty
establishes a boundary”. The fact of an agreed land boundary terminus ending up
being located out at sea or even of a segment of an agreed land boundary being
inundated does not affect the validity of the treaty establishing that land boundary. A
different approach would affect the legal stability of the boundary and of its regime.
145. In the Nicaragua v. Honduras case, Nicaragua, noting the highly unstable nature
of the mouth of the River Coco at the Nicaragua-Honduras land boundary terminus,
asserted that fixing base points on either bank of the river and using them to construct
a provisional equidistance line would be “unduly problematic”. 314 As noted by
Sefrioui:
In this case, if the [d]elta shifted landward, it would actually lead to the baseline
more closely following the overall shape of the coastline. The [International
Court of Justice] held that ‘[g]iven the close proximity of these base points to
each other, any variation or error in situating them would become
disproportionately magnified in the resulting equidistance line’. 315 The land
boundary along the Rio Coco ends in a prominent delta – Cape Gracias a Dios
– created by sediment transported down the river. The parties to the case agreed
that the sediment transported by the River Coco has ‘caused its delta, as well as
the coastline to the north and south of the Cape, to exhibit a very active morphodynamism’.
316 The Court has underlined that ‘continued accretion at the Cape
might render any equidistance line so constructed today arbitrary and
unreasonable in the near future’.317 Therefore, the Court could not determine
any base point for the construction of the equidistance line and concluded that
‘where … any base points that could be determined by the Court are inherently
unstable, the bisector method may be seen as an approximation of the
equidistance method’.318
In this way, the Court found a practicable legal solution to overcome the instability
of the baseline and of the base points.
146. In the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa
Rica v. Nicaragua) case, 319 the International Court of Justice used a moving
delimitation line for maritime delimitation, thus making a further step after the
__________________
313 Menefee, “ ‘Half seas over ’” (see footnote 311 above), p. 210.
314 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) (see footnote 229 above), p. 741, para. 273. See also Sefrioui,
“Adapting to sea level rise” (see footnote 291 above), p. 17.
315 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) (see footnote 229 above), p. 742, para. 277.
316 Ibid.
317 Ibid.
318 Ibid., p. 746, para. 287. Sefrioui, “Adapting to sea level rise” (see footnote 291 above), pp. 10–11.
319 Maritime Delimitation in the Caribbean Sea and in the Pacific Ocean (Costa Rica v. Nicaragua)
and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (see
footnote 290 above).
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solution found in the above-mentioned Nicaragua v. Honduras case. In its statement
before the Sixth Committee in 2021, Costa Rica refers to this judgment:
Costa Rica would like to highlight the need to apply the principles of stability,
security, certainty and predictability …. Costa Rica welcomes the consideration
[by the Study Group] of the judgment of the Court that served to establish the
maritime boundaries between Costa Rica and Nicaragua, using a moving
delimitation line in a segment that connects the coast with the fixed point of the
start of the maritime boundary. As this case shows, in some situations where the
coastal geomorphology is variable, a solution such as the one determined by the
Court in that specific case is an ideal alternative for providing security and
stability to the parties despite frequent variations in the land boundary
terminus.320
Indeed, according to the Court in its judgment:
The Court observes that, “since the starting-point of the land boundary is
currently located at the end of the sandspit bordering the San Juan River where
the river reaches the Caribbean Sea …, the same point would normally be the
starting-point of the maritime delimitation. However, the great instability of the
coastline in the area of the mouth of the San Juan River, as indicated by the
Court-appointed experts, prevents the identification on the sandspit of a fixed
point that would be suitable as the starting-point of the maritime delimitation.
It is preferable to select a fixed point at sea and connect it to the starting-point
on the coast by a mobile line. Taking into account the fact that the prevailing
phenomenon characterizing the coastline at the mouth of the San Juan River is
recession through erosion from the sea, the Court deems it appropriate to place
a fixed point at sea at a distance of 2 nautical miles from the coast on the median
line.321
This is a concrete solution found by the Court to overcome the “great instability of
the coastline”, characterized by “recession through erosion from the sea”, and thus
the instability of the baseline and of the base points.
147. In conclusion, the following observations of a preliminary nature can be made:
(a) in the potential situation whereby the overlapping areas of the exclusive
economic zone of opposite coastal States, delimited by bilateral agreement, no longer
overlap, the “supervening impossibility of performance”, under artic le 61 of the
Vienna Convention on the Law of Treaties, can be invoked only if the contact
between the overlapping entitlements of the two States is interpreted to be the
physical object that disappeared. At the same time, the legal regime can continue,
since the delimitation is a legal act and, at any rate, the application of article 61 is
not automatic. As shown above, neither can desuetude or obsolescence be invoked to
terminate the treaty. At the same time, it could be argued that a delimitation treaty
represents an “objective regime”, a “territorial treaty”, which is opposable to third
States.
(b) the fact of an agreed land boundary terminus ending up being located
out at sea or even of a segment of an agreed land boundary being inundated does not
affect the validity of the treaty establishing that land boundary. A different approach
would affect the legal stability of the boundary and of its regime.
__________________
320 Statement of Costa Rica in 2021 (see footnote 121 above).
321 Maritime Delimitation in the Caribbean Sea and in the Pacific Ocean (Costa Rica v. Nicaragua)
and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (see
footnote 290 above), p. 173, para. 86.
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(c) the International Court of Justice, in its recent jurisprudence (Nicaragua v.
Honduras and Costa Rica v. Nicaragua), has found concrete and practicable legal
solutions to overcome the instability of the baseline and of the base points: using a
fixed point at sea for the start of the maritime boundary might be interpreted as
similar to fixing the baseline for the purposes of ensuring the stability of the maritime
zones measured from it.
VI. Principle that “the land dominates the sea”
A. Development of the principle that “the land dominates the sea”
148. The well-known principle of international law that “the land dominates the sea”
is a judicial creation famously articulated by the International Court of Justice in its
1969 North Sea Continental Shelf case.322 The Court applied this principle to the
continental shelf on the grounds that “the land is the legal source of the power which
a State may exercise over territorial extensions to seaward”, especially in the case of
stretches of submerged land.323 It indicated that the starting point for determining any
maritime entitlement is the coast.324 The principle that “the land dominates the sea”
has since been applied in a number of cases concerning the delimitation of the
continental shelf,325 the exclusive economic zone and islands. 326 The concept dates
back to the 1909 arbitration in the Grisbådarna case, in which the arbitral tribunal
referred to the fundamental principles of the law of nations, “ tant ancien que
moderne” (“both ancient and modern”), according to which “ le territoire maritime
est une dépendance nécessaire d’un territoire terrestre” (“maritime territory is an
essential appurtenance of land territory”).327 The concept was later highlighted in the
Fisheries Case (United Kingdom v. Norway), in which the Court took into
consideration “the close dependence of the territorial sea upon the land domain. It is
the land which confers upon the coastal State a right to the waters off its coasts”. 328
Notably, the principle that “the land dominates the sea”, despite its wide acceptance
and application by the Court and tribunals, has not been codified. There is no mention
__________________
322 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969 , p. 3.
323 Ibid., p. 51, para. 96.
324 Ibid. See also Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, I.C.J. Reports 2001 , p. 40, at p. 97, para. 185.
325 Delimitation of the Maritime Boundary in the Gulf of Maine Area , Judgment, I.C.J. Reports 1984, p. 246,
at p. 312, para. 157; Aegean Sea Continental Shelf (see footnote 281 above), p. 36, para. 86; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (see footnote 324 above), p. 97,
para. 185; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean
Sea (Nicaragua v. Honduras) (see footnote 229 above), pp. 696 and 699, paras. 113 and 126;
Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J. Reports 2009, p. 61, at p. 89,
para. 77; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see footnote 282
above), p. 172, para. 279; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236
above), p. 61, para. 73; and Delimitation of the maritime boundary in the Bay of Bengal
(Bangladesh/Myanmar), Judgment, ITLOS Reports 2012 , p. 4, at. p. 56, para. 185.
326 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (see footnote 324
above), p. 97, para. 185.
327 Affaire des Grisbådarna (Norvège, Suède), Award of 23 October 1909, Reports of International
Arbitral Awards, vol. XI, pp. 155–162, at. p. 159. See also Bing Bing Jia, “The principle of the
domination of the land over the sea: a historical perspective on the adaptabil ity of the law of the
sea to new challenges”, German Yearbook of International Law, vol. 57, 2014, pp. 63–94, at p. 69.
328 Fisheries Case, Judgment of December 18th 1951: I.C.J. Reports 1951 , p. 116, at p. 133.
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of the principle in the four 1958 Geneva Conventions329 or in the 1982 the United
Nations Convention on the Law of the Sea.
149. While the land is the source of maritime entitlements, the International Court of
Justice has clarified that it is not the land mass itself that is the basis of entitlement
to continental shelf rights: “The juridical link between the State’s territorial
sovereignty and its rights to certain adjacent maritime expanses is established by
means of its coast. The concept of adjacency measured by distance is based entirely
on that of the coastline, and not on that of the landmass.” 330 The Court reiterated this
concept in the Qatar and Bahrain case, recalling that “[i]n previous cases the Court
has made clear that maritime rights derive from the coastal State’s sovereignty over
the land, a principle which can be summarized as ‘the land dominates the sea’”.331 In
2009, in the Maritime Delimitation in the Black Sea case, the Court stated the
following: “The title of a State to the continental shelf and to the exclusive economic
zone is based on the principle that the land dominates the sea through the projection
of the coasts or the coastal fronts.”332
B. Principle of natural prolongation
150. Notably, in relation to the continental shelf, the doctrine of “natural
prolongation” also emerged parallel to the principle that “the land dominates the sea”,
as articulated by the International Court of Justice in the North Sea Continental Shelf
cases: “the rights of the coastal State in respect of the area of continental shelf that
constitutes a natural prolongation of its land territory into and under the sea exist ipso
facto and ab initio, by virtue of its sovereignty over the land, and as an extension of
it in an exercise of sovereign rights for the purpose of exploring the seabed and
exploiting its natural resources”.333
151. In contrast to the principle that “the land dominates the sea”, the principle of
natural prolongation was codified, in article 76, paragraph 1, of the United Nations
Convention on the Law of the Sea. However, the application of the principle of natural
prolongation in the delimitation of the respective claims of coastal States over the
continental shelf by courts and tribunals diminished, despite its broad acceptance by
States, in favour of the distance criterion. In the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) case, both parties had asserted that the principle of natural
prolongation should be applied in the delimitation of their respective continental
shelves. As the International Court of Justice observed, “for both [p]arties it is the
concept of the natural prolongation of the land into and under the sea which is
__________________
329 Convention on the High Seas (Geneva, 29 April 1958), United Nations, Treaty Series, vol. 450,
No. 6465, p. 11; Convention on the Continental Shelf (Geneva, 29 April 1958), ibid., vol. 499,
No. 7302, p. 311; Convention on the Territorial Sea and the Contigu ous Zone (Geneva, 29 April
1958), ibid., vol. 516, No. 7477, p. 205; and Convention on Fishing and Conservation of the
Living Resources of the High Seas (Geneva, 29 April 1958), ibid., vol. 559, No. 8164, p. 285.
330 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p. 13, at p. 41,
para. 49.
331 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (see footnote 324
above), p. 97, para. 185. See also Aegean Sea Continental Shelf (see footnote 281 above), p. 36,
para. 86.
332 Maritime Delimitation in the Black Sea (Romania v. Ukraine) (see footnote 325 above), p. 89,
para. 77.
333 North Sea Continental Shelf (see footnote 322 above), p. 22, para. 19. See also Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above). Both parties invoked the concept in
the following terms (ibid., pp. 29 –30): “The concept of the continental shelf as the natural
prolongation of the land territory into and under the sea is fundamental to the juridical concept of
the continental shelf and a State is entitled ipso facto and ab initio to the continental shelf which
is the natural prolongation of its land territory into and under the sea.”
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commanding. Where they differ in this respect is … as to the meaning of the
expression ‘natural prolongation’”.334 The United Nations Convention on the Law of
the Sea had not yet been adopted at the time of the judgment and neither State was
party to the 1958 Convention on the Continental Shelf, meaning that the Court was
to apply the rules and principles of international law. The Court decided not to apply
the well-accepted principle of natural prolongation, as both the Libyan Arab
Jamahiriya and Tunisia derived continental shelf title from a natural prolongation
common to both territories, despite the parties presenting geological information
otherwise. Instead, the Court found that “the ascertainment of the extent of the areas
of shelf appertaining to each State must be governed by criteria of international law
other than those taken from physical features”.335 While it had recognized in 1969
that natural prolongation was a concept of customary international law, 336 the Court
relied on equitable principles: “the two considerations – the satisfying of equitable
principles and the identification of the natural prolongation – are not to be placed on
a plane of equality”.337 The Court essentially shifted the approach from one relying
on geomorphology to ultimately apply the distance criterion under articles 76 and 83
of the then draft United Nations Convention on the Law of the Sea as “new accepted
trends”.338
152. In the Libyan Arab Jamahiriya/Malta case, the International Court of Justice,
referring to the above-mentioned decision in the Tunisia/Libyan Arab Jamahiriya
case, abandoned the application of the principle of natural prolongation in favour of
the distance criterion, taking into account as a relevant circumstance the close link
between rights of the coastal State over the continental shelf and the exclusive
economic zone.339 Some years later, the International Tribunal for the Law of the Sea
rejected the argument of Bangladesh to apply natural prolongation as the primary
criterion in establishing entitlement to the continental shelf beyond 200 nautical
miles: “The Tribunal finds it difficult to accept that natural prolongation …
constitutes a separate and independent criterion a coastal State must satisfy in order
to be entitled to a continental shelf beyond 200 [nautical miles].”340 Bing Bing Jia
observed that “[t]he current regime of the continental shelf seemingly operates
independently of the principle [that ‘the land dominates sea’]”, the practice in that
area having “[rid] itself of the element of natural prolongation”. 341
153. These are examples where the International Court of Justice has not applied
well-established and recognized principles that had broad acceptance by States or
were codified, such as the principle of natural prolongation, for reasons of pragmatism
and equity. A similar approach could be considered in regard to the application of the
principle that “the land dominates the sea” in relation to sea -level rise and solutions
such as the preservation of baselines or outer limits. The principle that “the land
__________________
334 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above), p. 44, para. 38.
335 Ibid., p. 58, para. 67.
336 Ibid., p. 46, para. 43.
337 Ibid., p. 47, para. 44.
338 Ibid., pp. 48–49, paras. 47–48.
339 Continental Shelf (Libyan Arab Jamahiriya/Malta ) (see footnote 330 above), p. 33, para. 33, and
pp. 46–47, paras. 61–62. See also Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 624; and Delimitation of the maritime boundary in the Bay of
Bengal (Bangladesh/Myanmar) (see footnote 325 above), p. 114, para. 437. In the subsequent case
against India, before the Permanent Court of Arbitration, Bangladesh withdrew its argument for
the application of natural prolongation as a criterion for the continental shelf beyond 200 nautical
miles. Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see footnote 282
above), p. 131, para. 439.
340 Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar) (see
footnote 325 above), p. 113, para. 435.
341 Bing Bing Jia, “The principle of the domination of the land over the sea” (see footnote 327
above), p. 76.
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dominates the sea” is a purely judicial creation and has not been codified. Soons has
dismissed the views of authors who see that principle as a possible barrier to the
preservation of existing maritime zones, stating that he does not find such arguments
convincing:
I think these authors confuse the meaning of a legal maxim with the underlying
legal rules themselves. They seem to argue: you cannot change the law, because
it is the law. “The land dominates the sea” is a maxim, it is a summary of what
some positive legal rules (on baselines and perhaps on the extent of maritime
zones) currently provide. But circumstances can change, and so will the law; law
is inherently adapting to the requirements of developments in society. So, if the
rules on baselines change, perhaps the maxim will in the future be worded
differently, but I am not even sure that is really needed.342
Likewise, Nguyen, while recognizing the role of the principle that “the land
dominates the sea” as the basis for maritime entitlements, is of the view that it “does
not go against the maintenance of maritime baseline and limits”.343
C. Exception of “permanency” and the continental shelf
154. The finality and permanency of the limits of the continental shelf under
article 76, paragraphs 8 and 9, of the United Nations Convention on the Law of the
Sea is an example of where the principle that “the land dominates the sea” does not
apply. It demonstrates a flexible application of the principle that “the land dominates
the sea”. The continental shelf is measured from the baselines from which the breadth
of the territorial sea is measured, as is case for the other maritime zones. If the
baseline moves landward, the boundaries of the continental shelf should therefore be
affected. However, if the required conditions are met, as provided for under article 76,
a landward shift of the baseline would have no impact on the boundaries of the
continental shelf, which remain fixed or permanent. This shows that the principle that
“the land dominates the sea” is not absolute and, under certain circumstances, is not
always applied. Indeed, an underlying presumption of permanency of maritime zones
in general can be inferred from the observation by the International Court of Justice
in the Jan Mayen case that “the attribution of maritime areas to the territory of a State,
which, by its nature, is destined to be permanent, is a legal process based solely on
the possession by the territory concerned of a coastline”.344
D. Preliminary observations
155. In conclusion, the following observations of a preliminary nature can be made:
(a) the principle that “the land dominates the sea” is a judicial construction
that was developed in relation to the continental shelf and the extension of the
sovereign rights coastal State. As stated by the International Court of Justice, “the
land is the legal source of the power which a State may exercise over territorial
extensions to seaward”.345 It is a rule of customary international law, and has been
codified in neither the 1958 Geneva Conventions nor the United Nations Convention
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342 Alfred Soons, “Remarks by Alfred Soons” (in Patrícia Galvão Teles, Nilüfer Oral et al., remarks
on “Addressing the law of the sea challenges of sea -level rise”), American S ociety of
International Law Proceedings , vol. 114 (2020), pp. 389–392, at p. 392.
343 Nguyen Hong Thao, “Sea-level rise and the law of the sea in the Western Pacific region”, 13 Journal of
East Asia and International Law, vol. 13, No. 1 (May 2020), pp. 121–142, at p. 139.
344 Maritime Delimitation in the Area between Greenland a nd Jan Mayen, Judgment, I.C.J. Reports
1993, p. 38, at p. 74, para. 80.
345 North Sea Continental Shelf (see footnote 322 above), p. 51, para. 96.
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on the Law of the Sea. Maritime entitlements do not derive from the land mass per
se, but from the sovereignty exercised by the State over the coastline. The
determination of the extent of maritime boundaries is not a mathematical equation
based on the size of the land territory. The Court has stated that the application of
equitable principles is paramount, and has discarded the use of natural prolongation
for this reason. The preservation of existing maritime boundaries and entitlements in
the face of sea-level rise could be considered to be an equitable principle and could
operate as an exception to the principle that “the land dominates the sea”;
(b) while the principle that “the land dominates the sea” has had wide
acceptance and application by courts and tribunals, as well as States, it is not an
absolute rule, for two reasons:
(i) first, the principle of the natural prolongation of the continental shelf,
which developed in parallel to the principle that “the land dominates the sea”,
is an example of an exception to existing principles of international law being
made for pragmatic reasons and in order to achieve an equitable solution. An
analogous approach could be applied in relation to sea-level rise and the
preservation of existing baselines. The rigid application of the principle that “the
land dominates the sea” would not provide a solution to the inequitable outcome
of many States losing existing maritime entitlements because of sea-level rise.
Instead, that principle should be assessed in the light of equity and other
principles, such as the stability of boundaries, which is also a recognized rule of
customary rule. This would be analogous to the Court ’s approach in replacing
the codified and customary rule of natural prolongation with that of the
emerging trend of the distance criterion under the United Nations Convention
on the Law of the Sea;
(ii) second, if the necessary conditions are met, as provided for under the
Convention, the permanent character of the outer limits of the continental shelf
would mean that they would remain fixed in case of a landward shift of the
baseline. This is an example of where the principle that “the land dominates the
sea” does not apply, meaning, therefore, that it is not absolute. In other words,
the freezing of baselines and the outer limits of the other maritime zones is not
inconsistent with the principle that “the land dominates the sea”. There are
examples in international law to support a flexible interpretation of the principle
that “the land dominates the sea” that would allow for the preservation of
baselines or the outer limits of maritime zones.
VII. Historic waters, title and rights
A. Development of the principle of historic waters, title and rights
156. The origin of the concept of historic waters and rights lies in the development
of the notion of historic bays and gulfs.346 The subject of historic bays was addressed
early on in the Conference for the Codification of International Law in 1930. In the
__________________
346 The issue of the possible application of historic waters and historic title was raised by a member
of the Study Group on sea-level rise in relation to international law at a meeting during the
seventy-second session of the Commission, in 2021. The member stated that by taking into
account the specific maritime areas of States affect by sea -level rise and considering their
individual relationship with tho se maritime areas, historic titles could potentially be established,
and that further exploration of historic titles to preserving maritime entitlements in the light of
sea-level rise was warranted in any case . The history of the development of the princip le of
historic waters and title is detailed in the study, prepared by the Secretariat in 1962, into the
juridical regime of historic waters, including historic bays ( Yearbook … 1962, vol. II, document
A/CN.4/143, p. 1).
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Commission’s draft articles concerning the law of the sea, only a brief reference is
made in the commentary explaining the exclusion of historic bays from draft
article 7.347 At the request of the General Assembly, the Secretariat, in 1962, prepared
a study on the juridical regime of historic waters, including historic bays. 348 The
Commission, at its fourteenth session, also in 1962, decided to include the topic of
juridical regime of historic waters, including historic bays, in its programme of work,
following a request from the General Assembly. 349 However, the Commission
ultimately decided not to place the topic on its active work programme. 350
157. There is limited reference to historic waters or title in the 1958 Convention on
the Territorial Sea and the Contiguous Zone and in the 1982 the United Nations
Convention on the Law of the Sea. Neither Convention provides any definition of
historic waters or title. Moreover, no express reference is made to historic rights. In
sum, there is limited codification of the regime of historic waters and title. The la ck
of a definition or regime for historic waters or historic titles was noted by the
International Court of Justice in the Continental Shelf (Tunisia/Libyan Arab
Jamahiriya) case,351 and reiterated in Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), noting that they were regulated by
general rules of international law.352
158. The study prepared by the Secretariat remains the most comprehensive, and it is
relied upon by courts and tribunals. 353 According to the study, the term “historic
rights” goes beyond “historic bays”:
Historic rights are claimed not only in respect of bays, but also in respect of
maritime areas which do not constitute bays, such as the waters of archipelagos
and the water area lying between an archipelago and the neighbouring mainland;
historic rights are also claimed in respect of straits, estuaries and other similar
bodies of water. There is a growing tendency to describe these areas as “historic
waters”, not as “historic bays”.354
159. The Secretariat highlighted three factors that must be taken into consideration
in determining whether a State has acquired an historic title to a maritime area:
First, the State must exercise authority over the area in question in order to
acquire [an] historic title to it. Secondly, such exercise of authority must have
continued for a considerable time; indeed it must have developed into a usage.
More controversial is the third factor, the position which the foreign States may
have taken towards this exercise of authority. Some writers assert that
__________________
347 Yearbook … 1956, vol II, document A/3159, p. 269.
348 Yearbook … 1962, vol. II, document A/CN.4/143 , p. 1. See Official Records of the United
Nations Conference on the Law of the Sea, Geneva, 24 February –27 April 1958, vol. II, Plenary
Meetings, document A/CONF.13/L.56 resolution VII, p. 145. The initial proposal for a study on
the regime of historical bays and waters was made by India and Panama. See also Myron H.
Nordquist et al., eds., United Nations Convention on the Law of the Sea 1982: A Commentary ,
vol. II (Dordrecht, Martinus Nijhoff, 1993), p. 118, para. 10.5 (e).
349 See Yearbook … 1967 , vol. II, document A/CN.4/L.119, p. 341, para. 14; and General Assembly
resolution 1686 (XVI) of 18 December 1961.
350 Yearbook … 1977, vol. II, p. 129, para. 109.
351 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above), pp. 73–74, para. 100.
352 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(see footnote 220 above), pp. 588 –589, para. 384.
353 Official Records of the United Nations Conference on the Law of the Sea, Geneva, 24 February –
27 April 1958, vol. I, Preparatory Documents, document A/CONF.13/1.
354 Yearbook … 1962, vol. II, document A/CN.4/143 , p. 5, para. 29 (citing Official Records of the
United Nations Conference on the Law of the Sea, Geneva, 24 February –27 April 1958, vol. I,
Preparatory Documents, document A/CONF.13/1, p. 2, para. 8).
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acquiescence of other States is required for the emergence of an historic title;
others think that absence of opposition by these States is sufficient.355
B. Case law and application of the principle of historic waters, title
and rights
160. Historic waters, title and rights have been addressed in several international
cases related to maritime delimitation. In the 1910 North Atlantic Coast Fisheries
Arbitration between the United Kingdom and the United States, the Tribunal of the
Permanent Court of Arbitration recognized the existence of “historic bays”, although
rejected the claim by the United States in the case. 356 In 1917, the Central American
Court of Justice declared the Gulf of Fonseca to be an historic bay. 357 The
International Court of Justice, in the 1951 Fisheries Case (United Kingdom v.
Norway) case, defined “historic waters” as “waters which are treated as internal
waters but which would not have that character were it not for the existence of an
historic title”. 358 In Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), the Chamber recalled that definition
with reference to the Gulf of Fonseca, noting that – “historic waters” were generally
understood to mean “waters which are treated as internal waters but which would not
have that character were it not for the existence of an historic title”. 359 On the basis
of the 1917 judgement of the Central American Court of Justice, the Chamber
determined the following:
[T]he Gulf waters, other than the 3-mile maritime belts, are historic waters and
subject to a joint sovereignty of the three coastal States. … The reasons for this
conclusion, apart from the reasons and effect of the 1917 decision of the Central
American Court of Justice, are the following: as to the historic character of the
Gulf waters, the consistent claims of the three coastal States, and the absence of
protest from other States. As to the character of rights in the waters of the Gulf:
those waters were waters of a single-State bay during the greater part of their
known history.360
161. In the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the
International Court of Justice recognized that “[h]istoric titles must enjoy respect and
be preserved as they have always been by long usage”. 361 However, the Court did not
recognize as historic rights activities that did not lead to “the recognition of an
exclusive quasi-territorial right”. 362 In the Eritrea/Yemen arbitration, Eritrea and
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355 Yearbook … 1962, vol. II, document A/CN.4/143, p. 13, para. 80. For comprehensive explanation
of the three elements of historic title, see ibid., pp. 13–19, paras. 80–132.
356 The North Atlantic Coast Fisheries Case (Great Britain/United States of America), Award of
7 September 1910, Case No. 1909-01, Permanent Court of Arbitration, United Nations, Reports of
International Arbitral Awards, vol. XI, p. 167 (see also https://pca-cpa.org/en/cases/74).
357 Central American Court of Justice, El Salvador v. Nicaragua, Judgment of 9 March 1917,
American Journal of International Law , vol, 11, No. 3 (July 1917), pp. 674 –730.
358 Fisheries Case (see footnote 328 above), pp. 130. See also the dissenting opinion of Sir Arnold
McNair, ibid., pp. 158–185, at p. 184; the dissenting opinion of Judge J. E. Read, ibid., pp. 186–206,
at pp. 194–195; and Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern
Re-Appraisal (Leiden and Boston, Martinus Nijhoff, 2008).
359 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening)
(see footnote 220 above), p. 588, para. 384.
360 Ibid., p. 601, paras. 404–405.
361 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above),pp. 73–74,
para. 100. See also Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening) (see footnote 220 above), pp. 588–589, para. 384.
362 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (see footnote 324
above), p. 112, para. 236. Bahrain had claimed its pearling or fishing activities as historic rights.
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Yemen requested the arbitral tribunal to decide questions of territorial sovereignty
over disputed islands in the Red Sea in accordance with applicable international law
principles, rules and practices including historic titles. The arbitral tribunal concluded
that “[i]n the end neither [p]arty has been able to persuade the Tribunal that the history
of the matter reveals the juridical existence of an historic title, or of historic titles, of
such long-established, continuous and definitive lineage to these particular islands,
islets and rocks as would be a sufficient basis for the Tribunal’s decision”.363
162. A number of cases also assessed historic rights as a relevant circumstance or
equitable criterion. In the Gulf of Maine case, the Chamber of the International Court
of Justice found that the scale of historic fishing activities did not constitute a relevant
circumstance or equitable criterion in determining the course of the third segment of
the delimitation line. 364 Likewise, the arbitral tribunal in Barbados/Trinidad and
Tobago did not accept that the claim of Barbados to historic fishing activities in the
waters off Trinidad and Tobago warranted the adjustment of the maritime boundary,
with the following caveat: “This does not, however, mean that the argument based
upon fishing activities is either without factual foundation or without legal
consequences.” 365
163. More recently, the arbitral tribunal in the South China Sea case noted the
following:
The term “historic rights” is general in nature and can describe any rights that a
State may possess that would not normally arise under the general rules of
international law, absent particular historical circumstances. Historic rights may
include sovereignty, but may equally include more limited rights, such as fishing
rights or rights of access, that fall well short of a claim of sovereignty.366
Citing the 1962 study by the Secretariat, the arbitral tribunal observed the following:
[T]he process for the formation of historic rights in international law … requires
the continuous exercise of the claimed right by the State asserting the claim and
acquiescence on the part of other affected States. Although the [study by the
Secretariat] discussed the formation of rights to sovereignty over historic
waters, … historic waters are merely one form of historic right and the process
is the same for claims to rights short of sovereignty. 367
164. The South China Sea tribunal also held that historic rights that were at variance
with the maritime zones stipulated under the United Nations Convention on the Law
of the Sea were superseded by that Convention,368 and that the formation of historic
rights after the Convention’s entry into force would the same three elements with
__________________
363 Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen) , Award of 9 October 1998,
Reports of International Arbitral Awards, vol. XXII, pp. 209–332, at p. 311, para. 449.
364 Delimitation of the Maritime Boundary in the Gulf of Maine ( see footnote 325 above), p. 342,
para. 237.
365 Arbitration between Barbados and the Republic of Trinidad and Tobago , Case No. 2004-02,
Permanent Court of Arbitration, Award, 11 April 2006, p. 84, para. 272. Available from
https://pca-cpa.org/en/cases/104. However, the arbitral tribunal found that it did not have
jurisdiction to make an award establishing a right of access for Barbadian fishers to flying fish
within the exclusive economic zone of Trinidad and Tobago, by virtue of article 297, paragraph 3 (a),
of the United Nations Convention on the Law of the Sea ( ibid., p. 87, para. 283).
366 South China Sea Arbitration between the Philippines and the Peoples ’ Republic of China, Case
No. 2013-19, Permanent Court of Arbitration, Award, 12 July 2016, p. 96, para. 225. Available
from https://pca-cpa.org/en/cases/7.
367 Ibid., p. 113, para. 265.
368 Ibid., p. 103, para. 246.
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respect to historic rights would apply. A number of scholars have written on the issue
of historic rights in the South China Sea case and the decision of the tribunal.369
C. State practice
165. In terms of State practice regarding claims to historic rights and historic waters,
Zou and the Chinese Society of International Law cite the following: an agreement
between India and Sri Lanka on the boundary in historic waters between the two
countries, on 26 June 1974; 370 Territorial Waters and Maritime Zones Act, 1976, of
Pakistan;371 Maritime Zones Law, 1976, of Sri Lanka, providing for the declaration
of the territorial sea and other maritime zones of Sri Lanka and all other matters
connected therewith or incidental thereto; 372 a presidential proclamation of
15 January 1977, of Sri Lanka, claiming that “the historic waters in the Palk Bay and
Palk Strait shall form part of the internal waters of Sri Lanka”, and “the historic waters
in the Gulf of Mannar shall form part of the territorial sea of Sri Lanka”;373 the Law
on the State Boundary of the former Union of Soviet Socialist Republics, which
entered into force on 1 March 1983, providing that the waters of bays, inlets, coves,
and estuaries, sea and straits, historically belonging to the Union, were relegated to
internal waters of the Union;374 and Oceans Act of 1996 in Canada.375
__________________
369 Robert Beckman, “UNCLOS Part XV and the South China Sea”, in The South China Sea Disputes
and Law of the Sea, S. Jayakumar, Tommy Koh and Robert Beckman, eds. (Cheltenham, Edward
Elgar, 2014), pp. 229–264, at pp. 260–261; Stefan Talmon, “The South China Sea arbitration: is
there a case to answer?”, in The South China Sea Arbitration: A Chinese Perspective , Stefan
Talmon and Bing Bing Jia, eds. (Oxford, Hart Publishing, 2014), pp. 15 –79, at. p. 51; Keyuan
Zou, “Historic rights in the South Chi na Sea” in UN Convention on the Law of the Sea and the
South China Sea, Shicun Wu, Mark Valencia, and Nong Hong, eds. (London, Routledge, 2015),
pp. 239–250; Clive R. Symmons, “Historic waters and historic rights in the South China Sea: a
critical appraisal” in ibid., pp. 191–238, at pp. 195–196 (see also Clive R. Symmons, “First
reactions to the Philippines v China arbitration award concerning the supposed historic claims of
China in the South China Sea”, Asia-Pacific Journal of Ocean Law and Policy , vol. 1, 2016,
pp. 260–267); Sreenivasa Rao Pemmaraju, “ The South China Sea arbitration ( The Philippines v.
China): assessment of the award on jurisdiction and admissibility ”, Chinese Journal of
International Law, vol 14, No. 2 (June 2016), pp. 265 –307, at pp. 293–294, para. 54; Sophia
Kopela, “Historic titles and historic rights in the law of the sea in the light of the South China Sea
arbitration”, Ocean Development and International Law, vol. 48, No. 2 (2017), pp. 188–207;
Yoshifumi Tanaka, “ Reflections on historic rights in the South China Sea arbitration (merits)”,
International Journal of Marine and Coastal Law, vol 32, 2017, pp. 458–483, at pp. 474–475;
Andrea Gioia, “Historic titles”, in Wulfrum, ed., Max Planck Encyclopedia of Public International
Law (see footnote 219 above), para. 21; Chinese Society of International Law, “ The South China
Sea arbitration awards: a critical study”, Chinese Journal of International Law, vol. 17, No. 2
(June 2018) , pp. 207–748; and Clive R. Symmons, Historic Waters and Historic Rights in the
Law of the Sea: A Modern Reappraisal, 2nd ed. (Leiden, Brill Nijhoff, 2019), pp. 1 –3.
370 Zou, “Historic rights in the South China Sea” (see footnote 369 above), p. 242.
371 Chinese Society of International Law, “ The South China Sea arbitration awards”: a critical study”
(see footnote 369 above), p. 443, para. 488.
372 Zou, “Historic rights in the South China Sea” (see footnote 369 above), p. 242.
373 Chinese Society of International Law, “ The South China Sea arbitration awards” (see footnote 369
above), pp. 443–444, para. 488.
374 Zou, “Historic rights in the South China Sea” (see footnote 369 above), p. 242.
375 Chinese Society of International Law, “ The South China Sea arbitration awards” (see footnote 369
above), pp. 443–444, para. 488.
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D. Application to sea-level rise
166. A number of scholars have delved into the potential application of historic rights
and historic waters to sea-level rise.376 For example, Caron suggested that historic
rights could be one way in which States freeze their maritime boundaries. However,
he also acknowledges that the assertion of historic rights is more easily contested than
the location of a baseline.377 Soons examines claims of historic rights as a means of
maintaining maritime entitlements:
A coastal State could maintain the outer limits of its territorial sea and of its
[exclusive economic zone] where they were originally located before significant
sea level rise occurred. As a consequence, the breadth of its territorial sea would
gradually become more than 12 [nautical miles] (or a territorial sea enclave
would exist where a former island had disappeared), and the outer limit of its
[exclusive economic zone] would be located ever further than 200 [nautical
miles] from the baseline (or, in an extreme case of a submerged island, the
[exclusive economic zone] could become an enclave in the high seas). 378
Soons cautions the following, however:
Such claims must be distinguished from claims to historic waters. … Historic
waters can be defined as waters over which the coastal State, in deviation of the
general rules of international law, has been exercising sovereignty, clearly and
effectively, without interruption and during a considerable period of time, with
the acquiescence of the community of States. Such areas are governed by the
regime of maritime internal waters.379
167. Although Soons accepts the theoretical possibility of using historic rights regime
as a way to preserve existing maritime entitlements, he argues that such a solution
would result in varying outcomes for different States as it “would involve assessing
each individual claim by a coastal State in the light of the particular circumstances
and conduct of that State, and the reactions of other interested States over a period of
__________________
376 David D. Caron, “When law makes climate change worse: rethinking the law of baselines in light
of a rising sea level”, Ecology Law Quarterly, vol. 17, No. 4, 1990, pp. 621–653, at pp. 650–651;
Frances Anggadi, “Establishment, notification, and maintenance: the package of State practice at
the heart of the Pacific Islands Forum Declaration on Preserving Maritime Zones ”, Ocean
Development and International Law, vol. 53, No. 1, 2022, pp. 19–36, at p. 22; Karen Scott,
“Rising seas and Pacific maritime boundaries”, Australian Institute of International Affairs,
3 September 2018; Vladyslav Lanovoy and Sally O’Donnell, “Climate change and sea-level rise:
is the United Nations Convention on the Law of the Sea up to the task?”, International Community
Law Review, vol. 23, No. 2–3 (June 2021), pp. 133–157, pp. 137 and 139; and Egdardo Sobenes
Obregon, “Historic waters regime: a potential legal solution to sea -level rise”, International
Journal of Maritime Affairs and Fisheries , vol. 7, No. 1 (June 2015), pp. 17 –32.
377 Caron, “When law makes climate change worse” (see footnote 376 above), pp. 650–651.
378 Alfred H.A. Soons, “The effects of sea -level rise on baselines and outer limits of maritime
zones”, in New Knowledge and Changing Circumstances in the Law of the Sea , Thomas Heidar,
ed. (Leiden and Boston, Brill Nijhoff, 2020), pp. 358 –381, at p. 372.
379 Ibid., pp. 372–373.. See also Eric Bird and Victor Prescott, “ Rising global sea levels and national
maritime claims”, Marine Policy Reports, vo. 1, No. 3, 1989; and David Freestone and John
Pethick, “Sea-level rise and maritime boundaries: international implications of impacts and
responses”, in World Boundaries, vol. 5, Maritime Boundaries, Gerald Blake, ed. (London and
New York, Routledge, 1994), pp. 73 –90.
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time”, and would result in unequal outcomes in response to the problem of sea -level
rise, which requires a general solution capable of protecting the rights of all Sta tes.380
E. Preliminary observations
168. Historic waters, title and rights are acquired by a State through long usage and
through recognition by other States. They are waters, title or rights to which a State
would not otherwise be legally entitled. In other words, it is a principle that preserves
long-standing rights exercised by a State over a maritime area. It has also been
considered as a relevant circumstance for maritime delimitation. There is doctrinal
support that an analogous principle or rule could be applied to preserve existing
maritime zones and entitlements that may disappear as a result of sea-level rise.
169. In conclusion, the following observation of a preliminary nature can be made:
the principle of historic waters, title or rights provides an example of the preservation
of existing rights in maritime areas that would otherwise not be in accordance with
international law.
VIII. Equity
A. Statements by Member States in the Sixth Committee of the
General Assembly
170. The issue of equity has been raised by a number of States in relation to sea -level
rise in their comments in the Sixth Committee and in their submissions in response
to the request by the Commission. Antigua and Barbuda, in its submission to the
Commission, highlights the importance of equity in relation to determining rights on
maritime areas and boundaries decided by international adjudication, recalling the
statement by the arbitral tribunal in the Barbados/Trinidad and Tobago that
“[c]ertainty, equity and stability are thus integral parts of the process of
delimitation”,381 and observes that challenging existing maritime boundaries would
be inequitable. 382
171. Maldives, in its submission to the Commission, includes several references to
equity. For example, it observes that “considerations of equity and fairness require
that [small island developing States’] maritime entitlements are protected, especially
given the particular vulnerability of [those States] to climate change”. 383 Maldives
also expresses the following view:
[C]onsiderations of fairness and equity mean that it is critically important that
international law operates to maintain [small island developing States’] existing
maritime entitlements, as established under [the United Nations Convention on
__________________
380 Soons, “The effects of sea-level rise” (see footnote 378 above), p. 373. See also Alfred H.A. Soons,
“The effects of a rising sea level on maritime limits and boundaries” , Netherlands International Law
Review, vol. 37, No. 2 (August 1990), pp. 207–232, at pp. 223–226. The following articles raise
potential matters that would need to be addressed if the proposal of freezing maritime spaces were to
be adopted (although these articles do not specifically mention historic titles or rights): Vincent P.
Cogliati-Bantz, “Sea-level rise and coastal States’ maritime entitlements”, Journal of Territorial and
Maritime Studies, vol. 7, No. 1 (Winter/Spring 2020), pp. 86–110, at pp. 95–96; Clive Schofield, “A
new frontier in the law of the sea? Responding to the implications of sea-level rise for baselines,
limits and boundaries”, in Frontiers in International Environmental Law: Oceans and Climate
Challenges – Essays in Honour of David Freestone, Richard Barnes and Ronán Long, eds. (Leiden,
Brill Nijhoff, 2021), pp. 171–193, at pp. 188–191.
381 Arbitration between Barbados and Trinidad and Tobago (see footnote 365 above), p. 74, para. 244.
382 Submission of Antigua and Barbuda (see footnote 46 above).
383 Submission of Maldives (see footnote 257 above).
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the Law of the Sea]. A failure to do so would result in inequitable and unfair
treatment of [small island developing States] such as Maldives, who would be
disproportionately affected by any change to their maritime entitlements,
notwithstanding that they have contributed virtually nothing to the climate
crisis.384
172. The Islamic Republic of Iran, in its statement in the Sixth Committee in 2021,
in relation to sea-level rise and possible changes to baselines and outer limits of
maritime zones, expresses the view “that any change in lines shall be based on
principles of equity and fairness”. 385 The Philippines observes that “[e]cological
equity as a principle is key: no State should suffer disproportionately from effects of
climate change affecting all”. 386 According to Singapore, “the principle of equity
could be particularly relevant when considering the impact of climate change-induced
sea-level rise on the development needs of small island developing States”, and that
such considerations may operate differently depending on “the extent to which the
interests of third States and the freedom of navigation are engaged”.387 The Federated
States of Micronesia emphasizes the following:
[T]he core notion under existing relevant international law that the rights and
entitlements that flow from maritime zones that are originally established by a
coastal State must never be reduced solely on the basis of climate change-related
sea-level rise. In our view, the preservation of maritime zones and the rights and
entitlements that flow from them is the most suitable and equitable approach in
order to achieve that goal.388
B. Equity in general
173. Cottier notes that equity “has been a companion of the law ever since rule-based
legal systems emerged. It offers a bridge to justice where the law itself is not able to
adequately respond. Equity essentially remedies legal failings and shortcomings”. 389
The well-known trio of functions of equity are equity infra legem, equity praeter
legem and equity contra legem.390 Equity infra legem is a method of interpreting and
adapting the applicable law to the specific circumstances of the case using elements
__________________
384 Ibid.
385 Statement of the Islamic Republic of Iran in 2021. Available from
https://www.un.org/en/ga/sixth/76/summaries.shtml#20mtg.
386 Statement of the Philippines in 2021 (see footnote 112 above).
387 Statement of Singapore in 2021 (see footnote 269 above).
388 Statement of the Federated States of Micronesia in 2021 (see footnote 78 above).
389 Thomas Cottier, Equitable Principles of Maritime Boundary De limitation: The Quest for
Distributive Justice in International Law (Ca mbridge, Unit ed Kingdom, Ca mbridge
University Press, 2015), p. 8. See also Francesco Francioni, “Equity in international law”, in
Wulfrum, ed., Max Planck Encyclopedia of Public International Law (see footnote 219 above),
updated November 2020.
390 Michael Akehurst, “Equity and general principles of law”, International and Comparative Law
Quarterly, vol. 25, No. 4 (October 1976), pp. 801 –825.
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of reasonableness, flexibility, fairness, judgment and individualized justice. 391 It
allows a judge a certain amount of discretion to apply the law to individual cases with
different circumstances.392As the International Court of Justice stated in the Fisheries
Jurisdiction (United Kingdom v. Iceland) case, citing the North Sea Continental Shelf
cases, “[i]t is not a matter of finding simply an equitable solution, but an equitable
solution derived from the applicable law”. 393 According to Francioni, the Court’s
decision in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case was the
“high-water mark in the development of a concept of equity praeter legem endowed
with its autonomous normativity”.394 Equity contra legem enables departure from
strict positive law.395
174. Equity is considered to be included generally as part of Article 38,
paragraph 1 (c), of the Statute of the International Court of Justice, and included
specifically under Article 38, paragraph 2, under which the Court may decide a case
ex aequo et bono if the parties agree thereto.396 As examples of equity, Cottier cites
“the principle of proportionality, of good faith, and the protection of legitimate
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391 Frontier Dispute (Burkina Faso/Republic of Mali) (see footnote 218 above), pp. 567 –568,
para. 28; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Reparations, 9 February 2022, General List No. 116. In the latter case, in a separate
opinion, Judge Robinson observed the following: “When the Court applies the p rinciple of
equitable considerations, it is applying equity intra legem, equity within the law … the elements
of the principle of equitable considerations are reasonableness, flexibility, judgment,
approximation and fairness. Consequently, the Court ’s finding that it may form an appreciation
of the extent of damage is nothing but an illustration of the principle of equitable considerations,
which allows for reasonableness and judgment … and flexibility” (para. 31). See also Catharine
Titi, The Function of Equity in International Law (Oxford, Oxford University Press, 2021), p. 73
(“Equity as a corrective and as individualised justice aims to adjust the law to the particular
factual situation not in order to reject the general law but in order to avert an inju stice”);
Francioni, “Equity in international law” (see footnote 389 above), para. 7; and Akehurst, “ Equity
and general principles of law” (see footnote 390 above), p. 801.
392 Werner Scholtz, “Equity” in The Oxford Handbook of International Environmental Law, 2nd ed.,
Lavanya Rajamani and Jacqueline Peel, eds. (Oxford, Oxford University Press, 2021), pp. 335 –350.
393 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974 , p. 3,
at p. 33, para. 78. See also North Sea Continental Shelf (see footnote 322 above), p. 46, para. 85.
394 Francioni, “Equity in international law” (see footnote 389 above), para. 15.
395 For example, in Cameroon v. Nigeria : “The Court notes, however, that now that it has made its
findings that the frontier in Lake Chad was delimited long before the work of the [Lake Chad
Basin Commission] began, it necessarily follows that any Nigerian effectivités are indeed to be
evaluated for their legal consequences as acts contra legem.” Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening ) (see
footnote 227 above), p. 351, para. 64; and Robert Kolb, International Court of Justice (Oxford,
Hart Publishing, 2013), p. 365.
396 Francioni, “ Equity in international law” (see footnote 389 above).
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expectations and more particularly of estoppel and acquiescence, the doctrine of
abuse of rights”.397
175. In the North Sea Continental Shelf cases, the International Court of Justice stated
that the rule of equity means that its judicial decisions “must by definition be just,
and therefore in that sense equitable”.398 In the Tunisia/Libyan Arab Jamahiriya case,
the Court stated that “[e]quity as a legal concept is a direct emanation of the idea of
justice. The Court whose task is by definition to administer justice is bound to apply
it”.399 The Court also stated that the “result of the application of equitable principles
must be equitable”.400
176. The principle of equity has also developed in other disciplines of law, such as
the law of the sea, environmental law, human rights law and investment law. However,
for the purpose of the present report, the focus will be on equity as relevant to sea -
level rise, in the context of the law of the sea, in rela tion to maritime boundaries and
entitlements.
C. Equity and the law of the sea
177. There are numerous references to equity in the United Nations Convention on
the Law of the Sea. For example, “the equitable and efficient utilization of their
resources” and “the realization of a just and equitable international economic
order”;401 the resolution “on the basis of equity” of conflicts between the interests of
the coastal State and any other State when the Convention does not attribute rights or
jurisdiction to either;402 the enjoyment by landlocked States403 and by geographically
disadvantaged States of their rights “on an equitable basis”404 the delimitation of the
maritime boundaries of the exclusive economic zone405 and the continental shelf406 by
means of “an equitable solution”; the “equitable sharing of financial and other
economic benefits derived from activities in the Area”;407 and the transfer of marine
__________________
397 Cottier, Equitable Principles of Maritime Boundary Delimitations (see footnote 426 above),
p. 14. See, for example, Cayuga Indian Claims, Great Britain v United States, Award, (1955),
Reports of International Arbitral Awards VI 173, (1926) 20 Asian Journal of International Law
574, 22nd January 1926, Arbitral Tribunal (Great Britain -United States 1910); Case Relating to
the Diversion of the Water From the Meuse ; Russian Claim for Interest on Indemnities (Damages
Claimed by Russia for Delay in Payment of Compensation Owed to Russians Injured During the
War of 1877-1878), Russia v Turkey, Award, (1961) Reports of International Arbitral Awards XI
421, ICGJ 399 (PCA 1912), (1912) 1 HCR 547, 11th November 1912, Permanent Court of
Arbitration [PCA]; Orinoco Steamship Company Case, United States v Venezuela, Award, (1961)
Reports of International Arbitral Awards XI 227, (1961) Reports of International Arbitral
Awards XI 237, ICGJ 402 (PCA 1910), (1910) 1 HCR 228, 25th October 1910, Permanent Court
of Arbitration [PCA]; Norwegian Shipowners’ Claims, Norway v United States, Award, (1948)
Reports of International Arbitral Awards I 307, ICGJ 393 (PCA 1922), (1932) 1 I.L.R. 189,
(1919-1922) ADIL 189, (1932) 2 Hague Rep 69, 13th October 1922, Permanent Court of
Arbitration [PCA]; Eastern Extension, Australasia and China Telegraph Company Limited (Great
Britain) v United States, (1955) Reports of International Arbitral Awards VI.
398 North Sea Continental Shelf (see footnote 322 above), p. 48, para. 88.
399 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above), p. 60, para. 71.
400 Ibid., p.59, para. 70.
401 United Nations Convention on the Law of the Sea, preamble.
402 Ibid., article 59.
403 Ibid., article 69.
404 Ibid., article 70.
405 Ibid., article 74, paragraph 1.
406 Ibid., article 83, paragraph 1.
407 Ibid., article 140.
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technology.408 However, it is in the field of maritime delimitation where equity and
equitable principles have flourished.409
178. The arbitral tribunal in Barbados/Trinidad and Tobago observed that, “[s]ince
the very outset, courts and tribunals have taken into consideration elements of equity
in reaching a determination of a boundary line over maritime areas”. 410 The role of
equity in relation to maritime delimitation was core to the landmark decision by the
International Court of Justice in the 1969 North Sea Continental Shelf cases, in which
the Court decided that “delimitation is to be effected by agreement in accordance with
equitable principles, and taking account of all the relevant circumstances”. 411 Equity
has since been applied to all cases concerning maritime delimitation. 412 Jennings
wrote that “the process of delimitation involves both law and equity”, an d that “law
and equity working together should serve the ends of justice by introducing
flexibility, adaptability, and even limitations upon the application and meaning of
legal rules”.413
179. The International Court of Justice and tribunals have consistently rejected
recognizing any single method of delimitation, preferring instead equity, as was first
articulated by the Court in the North Sea Continental Shelf cases, in which it declared
that “delimitation is to be effected by agreement in accordance with equitable
principles, and taking account of all the relevant circumstances”, 414 despite the
codification of the equidistance method in the 1958 Convention on the Territorial Sea
and the Contiguous Zone. The equity method was subsequently codified in the United
Nations Convention on the Law of the Sea, in article 83, paragraph 1, for the
continental shelf and article 74, paragraph 1, for the exclusive economic zone, each
providing that the objective of maritime delimitation is to achieve an equitable
solution. In the Tunisia/Libyan Arab Jamahiriya case, the Court articulated an
“outcome” approach, whereby it was not the strict application of specific equitable
principles but the equitable outcome that mattered:
It is, however, the result which is predominant; the principles are subordinate to
the goal. The equitableness of a principle must be assessed in the light of its
usefulness for the purpose of arriving at an equitable result. It is not every such
principle which is in itself equitable; it may acquire this quality by reference to
the equitableness of the solution. The principles to be indicated by the Court
have to be selected according to their appropriateness for reaching an equitable
result. 415
A similar view was expressed by the International Tribunal for the Law of the Sea in
the 2012 Bangladesh/Myanmar case, in which it stated that “[t]he goal of achieving
__________________
408 Ibid., article 266, paragraph 3.
409 Cottier, Equitable Principles of Maritime Boundary Delimitations (see footnote 389 above), p. 4.
410 Arbitration between Barbados and Trinidad and Tobago (see footnote 365 above), p. 70,
para. 229.
411 North Sea Continental Shelf (see footnote 322 above), p. 53, para. 101.
412 See, for example, Continental Shelf (Libyan Arab Jamahiriya/Malta ) (see footnote 330 above),
pp. 51–52, para. 70.
413 Robert Y. Jennings, “Equity and equitable principles”, Annuaire Suisse de Droit International ,
vol. XLII (1986), pp. 27–38, at p. 36; and Robert Y. Jennings, “The principles governing marine
boundaries”, in Staat und Völkerrechtsordnung, Kay Hailbronner, Georg Ress and Torsten Stein,
eds. (Berlin, Springer, 1989), pp. 397–408, at p. 400. See also Barbara Kwiatkowska, “Equitable
maritime boundary delimitation, as exemplified in the work of the International Court of Justice
during the presidency of Sir Robert Yewdall Jennings and beyond”, Ocean Development and
International Law, vol 28, No. 2 (1997), pp. 91–145, at p. 101.
414 North Sea Continental Shelf (see footnote 322 above), p. 53, para. 101.
415 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above), p. 59, para. 70.
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an equitable result must be the paramount consideration guiding the action of the
Tribunal in this connection”. 416
180. The process of achieving the equitable result has been crystallized in the three -
step method of delimitation recognized by the International Court of Justice in the
Maritime Delimitation in the Black Sea case.417 It begins with the identification of the
relevant coastal area to be delimited and the drawing of a provisional equidistance
line.418 Equitable considerations are applied to determine whether the provisional
equidistance line needs to be adjusted to achieve an equitable solution. Relevant
circumstances could be geographic and non-geographic. Geographic factors include
the general configuration of the coasts of the States, the presence of any unusual or
special features, reasonable proportionality of the coastal line and any “cut -off”
effect.419 Other considerations raised have been the general geographical context in
which the delimitation is to be effected,420 such as the enclosed nature of the sea421 or
the concavity of a gulf. 422 In practice, geographic circumstances have played a
dominant part in cases in which the court or tribunal has made adjustments to the
provisional equidistance line.
181. Among the non-geographic and socioeconomic relevant circumstances
considered by the International Court of Justice are past conduct of the parties, such
as hydrocarbon licensing practice,423 historic fishing rights,424 fishing activities,425 oil
and gas concessions,426 possible third-State claims,427 existing delimitations already
effected in the region, 428 security and defence concerns, 429 naval patrols, 430 and
economic disparity. 431 However, in practice, these circumstances have not been
applied. Indeed, the Chamber in the Gulf of Maine case set a high threshold for
non-geographic factors such as fisheries activities, navigation, defence, petroleum
exploration and exploitation, stating the scale of such activities “cannot be taken into
account as a relevant circumstance or … equitable criterion to be applied in
determining the delimitation line” unless the result should be revealed as “likely to
entail catastrophic repercussions for the livelihood and economic well -being of the
population of the countries concerned””432 This high threshold of having catastrophic
__________________
416 Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar ) (see
footnote 325 above), p. 67, para. 235.
417 Maritime Delimitation in the Black Sea (Romania v. Ukraine) (see footnote 325 above),
pp. 101–103, paras. 115–122.
418 Ibid.
419 See North Sea Continental Shelf (see footnote 322 above).
420 See Continental Shelf (Libyan Arab Jamahiriya/Malta) (see footnote 330 above).
421 See Maritime Delimitation in the Black Sea (Romania v. Ukraine) (see footnote 325 above).
422 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening) (see footnote 227 above). However, the Court did not find it to
be relevant: ibid., pp. 445–446, para. 297.
423 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above).
424 Ibid., pp. 76–77, para. 105.
425 See Maritime Delimitation in the Black Sea (Romania v. Ukraine) (see footnote 325 above).
426 Ibid. In Cameroon v. Nigeria, the Court did not consider the oil practice of the parties to be a
relevant circumstance. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening) (see footnote 227 above), pp.447–448, para. 304.
427 See Continental Shelf (Libyan Arab Jamahiriya/Malta) (see footnote 330 above).
428 See Maritime Delimitation in the Black Sea (Romania v. Ukraine) (see footnote 325 above).
429 Ibid.
430 Ibid.
431 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above); and Continental
Shelf (Libyan Arab Jamahiriya/Malta) (see footnote 330 above), p. 41, para. 50.
432 Delimitation of the Maritime Boundary in the Gulf of Maine Area (see footnote 325 above ),
p. 342, para. 237.
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consequences would clearly apply to sea-level rise for many States should their
maritime boundaries be reduced or changed as a result.
182. In the third and final step of the maritime delimitation process, the court or
tribunal verifies whether there is a marked disproportion between the ratio of the
respective coast lengths and the relevant maritime areas of the coastal States in
relation to the provisional delimitation line drawn. 433 In practice, the court or tribunal
has rarely adjusted the provisional equidistance line.
D. Preliminary observations
183. In conclusion, the following observations of a preliminary nature can be made:
(a) equity plays different functions in law. However, the notion of justice is
core: as stated by the International Court of Justice, equity is “a direct emanation of
the idea of justice”. Equity provides for methods of interpretation and allows for
flexibility to ensure justice where strict application of rules may produce inequitable
results. Indeed, this is also at the foundation of the preference of the Court and of
tribunals for the application of equitable principles in lieu of established methods of
delimitation such as equidistance. For the purposes of maritime delimitation, the
overarching objective is to achieve an equitable solution through the application of
equitable principles or relevant circumstances. As addressed in chapter VI, achieving
an equitable result had priority over the principle of natural prolongation in the
Tunisia/Libyan Arab Jamahiriya case;434
(b) the United Nations Convention on the Law of the Sea includes many
references to equity, and equity is integral to the interpretation and application of the
Convention. Considerations of the inequitable impact of sea -level rise on particularly
vulnerable countries, such as small island developing States and low-lying coastal
developing States, should also be considered when assessing the le gal impact of sealevel
rise on maritime zones and associated entitlements of these States and when
considering potential solutions, especially as the loss of maritime entitlements will
result in catastrophic consequences for many of these States;
(c) the potential significant loss of maritime entitlements due to sea-level
rise if the baseline shifts landward, or if islands are rendered unable to sustain human
habitation or an economic life of their own, would constitute an inequitable outcome
and would not fulfil the notions of justice under international law. The preservation
of existing maritime entitlements, on the other hand, would prevent potentially
catastrophic consequences and provide for an equitable outcome, as mandated under
the United Nations Convention on the Law of the Sea and international law;
(d) equity, as a method under international law for achieving justice, should
be applied in favour of the preservation of existing maritime entitlements, the loss of
which would result in catastrophic consequences for the most vulnerable States.
__________________
433 Stephen Fietta and Robin Cleverly, A Practitioner ’s Guide to Maritime Boundary Delimitation
(Oxford, Oxford University Press, 2016), p. 93.
434 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (see footnote 236 above), pp. 46–47, para. 44.
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IX. Permanent sovereignty over natural resources
A. Development of the principle of permanent sovereignty over
natural resources
184. The assertion by Antigua and Barbuda, in its submission to the Commission in
2021, that “[a]mbulatory baselines would violate State sovereignty and the principle
of permanent sovereignty of people and States over their natural wealth and
resources” 435 underscores the important relationship between sovereignty and the
preservation of existing rights of coastal States over their marine natural resources
lawfully established. Permanent sovereignty over natural resources emerged as a
fundamental principle of decolonization together with the principle of selfdetermination.
It served as a foundation stone for economic development, especially
for developing countries. 436 Economic independence, self-determination and
development were key issues for the developing world, and an integral component
was the principle of permanent sovereignty over natural resources. 437
185. There have been a plethora of General Assembly resolutions invoking the right
of permanent sovereignty over natural resources. The essence of those adopted in the
period between the 1950s and 1970s was to secure economic rights for and the
development of developing countries. 438 Schrijver, in his extensive study of the
principle of permanent sovereignty of natural resources, observes two roots for the
principle: first, permanent sovereignty as a part of the movement to strengthen the
political and economic sovereignty of the newly independent States and, second, a
part of the development of the principle of self-determination.439
186. During the 1950s, the General Assembly adopted a series of resolutions
concerning permanent sovereignty over natural resources. 440 In 1958, the General
__________________
435 Submission of Antigua and Barbuda (see footnote 46 above).
436 Nico Schrijver, “Fifty years permanent sovereignty over natural resources: the 1962 UN Declaration
as the opinio iuris communis” in Marc Bungenberg and Stephan Hobe (eds.), Permanent Sovereignty
over Natural Resources (Springer, 2015), p. 16; Nico Schrijver, Sovereignty over Natural Resources:
Balancing Rights and Duties (Cambridge, United Kingdom, Cambridge University Press, 1997).
437 For a detailed history of the development of the principle of permanent sovereignty over national
resources see, Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties .
438 Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties, pp. 82-118.
439 Schrijver, “Fifty years permanent sovereignty over natural resources …”, p. 16. See also Stephan Hobe,
“Evolution of the principle on permanent sovereignty over natural resources from soft law to a
customary law principle?” in Bungenberg and Hobe, Permanent Sovereignty over Natural Resources,
p. 3. See also Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,
Written Statement of Mauritius (1 March 2018), p. 220; See also Legal Consequences of the Separation
of the Chagos Archipelago from Mauritius in 1965, Written Statement of the African Union, para. 242;
See also separate opinion of Judge Cançado Trindade; Portugal also invoked the right to selfdetermination
and permanent sovereignty over natural resources in East Timor (Portugal v. Australia),
Judgment, I.C.J. Reports 1995, p. 90. See also the dissenting opinion of Judge Weeramantry, stating “I
would reaffirm the importance of the right of the people of East Timor to self -determination and to
permanent sovereignty over natural resources …” p. 204.
440 General Assembly resolution 523 (VI) of 12 January 1952 on “Integrated economic development
and commercial agreements”, followed by resolution 626 (VII) of 21 December 1952, which i n
paragraph 3 of its preamble declared “the right of peoples freely to use and exploit their natural
wealth and resources is inherent in their sovereignty and is in accordance with the Purposes and
Principles of the Charter of the United Nations”. This was followed by General Assembly
resolutions 837 (IX) of 14 December 1954 “Recommendations concerning international respect
for the right of peoples and nations to self -determination” (request to the Commiss ion on Human
Rights to complete its work on self -determination); 1314 (XIII) of 12 December 1958,
“Recommendations concerning international respect for the right of peoples and nations to self -
determination”, which in its preamble stated “Noting that the right of peoples and nations to self -
determination as affirmed in the two draft Covenants completed by the Commission on Human
Rights includes ‘permanent sovereignty over their natural wealth and resources ’”.
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Assembly established the Commission on Permanent Sovereignty over Natural
Resources, which was followed by the adoption by the General Assembly of the
Declaration on Permanent Sovereignty over Natural Resources. 441 The preamble
included the “recognition of the inalienable right of all States freely to dispose of
their natural wealth and resources in accordance with their national interests, and on
respect for the economic independence of States”. Article I, paragraph 1, declared,
“[t]he right of peoples and nations to permanent sovereignty over their natural wealth
and resources must be exercised in the interest of their national development and of
the well-being of the people of the State concerned.” Some decades later, the
International Court of Justice recognized the principle of permanent sovereignty over
natural resources, as enshrined in General Assembly resolution 1803 (XVII), as a
principle of customary international law.442
187. The integral link between economic development and the right to exercise
permanent sovereignty over natural resources developed over the next series of
General Assembly resolutions. 443 In 1964, the first meeting of the United Nations
Conference on Trade and Development (UNCTAD) adopted a set of principles to
guide trade relations, 444 of which principle 3 provided: “Every country has the
sovereign right freely to trade with other countries, and freely to dispose of its natural
resources in the interest of the economic development and well -being of its own
people.”445 Notably, in its resolution 2158 (XXI), adopted on 25 November 1966 by
a vote of 104 for, 0 against, with 6 abstentions, the General Assembly reaffirmed the
“inalienable right of all countries to exercise permanent sovereignty over their natural
__________________
441 General Assembly resolutio n 1803 (XVII) of 14 December 1962.
442 However, the Court denied the claim of Uganda that the Democratic Republic of the Congo had
violated its right to permanent sovereignty over its natural resources, as the resolution did not
contain anything to suggest it would apply to looting, pillage and exploitation of natural resources
by the military of another State. Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda) (see footnote 424 above), para 244. Judge Koroma, in his
separate declaration, disagreed with t his view stating “in my view, the exploitation of the natural
resources of a State by the forces of occupation contravenes the principle of permanent
sovereignty over natural resources, as well as the Hague Regulations of 1907 and the Fourth
Geneva Convention of 1949” as well as noting that both were parties to the African Charter on
Human and Peoples’ Rights of 1981 that provided “In no case shall a people be deprived” of their
right “to freely dispose of their wealth and natural resources” (Separate decla ration of Judge
Koroma, ibid., pp. 289-290); See also Legal Consequences of the Separation of the Chagos
Archipelago from Mauritius in 1965 , Written Statement of the African Union (1 March 2018),
paras. 102 and 242.
443 General Assembly resolution 1515 (XV) of 15 December 1960 on “Concerted action for economic
development of economically less developed countries” , which in paragraph 5 reads:
“Recommends further that the sovereign right of every State to dispose of its wealth and its
natural resources should be respected in conformity with the rights and duties of States under
international law”; General Assembly resolution 1803 (XVII) of 14 December 1962 on
“Permanent sovereignty over natural resources”, paragraph 1, which stated: “The right of peoples
and nations to permanent sovereignty over their natural wealth and resources must be exercised in
the interest of their national development and of the well-being of the people of the State
concerned”; General Assembly resolution 2158 (XXI) of 25 November 1966 on “Permanent
sovereignty over natural resources”, which in paragraph 1 reads: “Reaffirms the inalienable right
of all countries to exercise permanent sovereignty over their natural resources in the interest of
their national development.”
444 General and Special Principles to govern international trade relations and trad e policies
conducive to development, Proceedings of the United Nations Conference on Trade and
Development, Geneva, 23 March –16 June 1964, vol. I, Final Act and Report (E/CONF.46/141,
Vol. I; United Nations publication, Sales No.: 64.II.B.11), annex A.I.1.
445 As Schrijver describes the adopted text was initially contested by developed countries represented
in the B group [Group B: Western Europe a by ninety -four votes to four (Australia, Canada, the
UK and the USA), with eighteen abstentions (Group B countr ies plus Cameroon, Nicaragua, Peru
and South Africa) and other industrialized countries with a market economy] who did, however,
agree to the text, which was adopted. Schijver, Sovereignty over Natural Resources: Balancing
Rights and Duties, p. 84.
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resources in the interests of their national development”. There was no opposition to
such right being “inalienable”.446
188. The principle of permanent sovereignty over natural resources was also adopted
in the International Covenant on Civil and Political Rights,447 the Vienna Convention
on Succession of States in Respect of Treaties,448 the African Charter of Human and
Peoples’ Rights (1986) 449 and Protocol to the Pact on Security, Stability and
Development in the Great Lakes Region against the Illegal Exploitation of Natural
Resources. 450 It is also reflected in instruments related to conservation of natural
resources such as Principle 21 of Declarat ion of the United Nations Conference on
the Human Environment,451 Principle 2 of the Rio Declaration on the Environment
and Development,452 African Convention on the Conservation of Nature and Natural
Resources,453 1982 World Charter for Nature,454 2002 Johannesburg World Summit
on Sustainable Development, 455 and the 2012 Rio+20 Conference on Sustainable
Development.456 The first issues paper also outlined the economic importance to the
livelihoods of developing States, especially the small island developing States.457
B. Definition of permanent sovereignty
189. According to Brownlie, “Loosely speaking, permanent sovereignty is the
assertion of the acquired rights of the host State which are not defeasible by contract
__________________
446 General Assembly resolution 3171 of 17 December 1973 also referred to the “inalienable right of
each State to the full exercise of national sovereignty over its natural resources” and that this had
been “repeatedly recognized by the international community in numerous resolutions of various
organs of the United Nations.” (see Zhifeng comments on the opposition to “inalienable”);
General Assembly resolution 41/128 on “Declaration on the Right to Development” of
4 December 1986, which stated the “right to development is an inalienable right” and such right to
development “implies the full realization of the right of people ’s to self-determination which
includes … the exercise of their inalienable right to full sovereignty overall their natural wealth
and resources” (emphasis added).
447 Article 1, paragraph 2, which also states that, “In no case may a people be deprived of its own
means of subsistence”. International Covenant on Civil and Political Rights (New York,
16 December 1966), United Nations, Treaty Series, vol. 999, No. 14668, p. 171.
448 Article 13 provides the following: “Nothing in the present Convention shall affect the principles
of international law affirming the permanent so vereignty of every people and every State over its
natural wealth and resources.”
449 African Charter on Human and Peoples ’ Rights (Nairobi, 27 June 1981), United Nations, Treaty
Series, vol. 1520, No. 26363, p. 217 , art. 9.
450 Protocol to the Pact on Security, Stability and Development in the Great Lakes Region against the
Illegal Exploitation of Natural Resources, 30 November 2006.
451 Declaration of the United Nations Conference on the Human Environment , Stockholm, 16 June
1972 (A/CONF.48/14 and Corr.1).
452 4 June 1992, in Report of the United Nations Conference on Environment and Development
(A/CONF.151/26/Rev.1(Vol.I)), Annex I.
453 African Convention on the Conservation of Nature and Natural Resources (with annexed list of
protected species), United Nations, Treaty Series , vol. 1001, 1968, p. 3.
454 General Assembly resolution 37/7, the preamble of which solemnly invited Member States, in
the exercise of their permanent sovereignty over their natural resources, to conduct their
activities in recognition of the supreme importance of protecting natural systems, maintaining
the balance and quality of nature and conser ving natural resources, in the interests of present and
future generations.
455 A/CONF.199/20, in which States declare “We strongly reaffirm our commitment to the Rio
principles”, Report of the World Summit on Sustainable Development, p. 8.
456 A/CONF.216/L.1, Reaffirming the principles of the Rio Declaration on Environment and
Development, para 15.
457 First issues paper, para. 181.
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or, perhaps, even by international agreement.”458 Hossain writes that “At the core of
the concept of permanent sovereignty is the inherent and overriding right of a state to
control and dispose of the natural wealth and resources in its territory for the benefit
of its own people.” 459 According to Cullinan, “[t]he doctrine of permanent
sovereignty over natural resources … recognizes that all states have the inalienable
right to dispose of their natural wealth and resources in accordance with their national
interests and is one of the most fundamental doctrines in international environmental
law.”460 Sanita van Wyk writes “terms such as ‘permanent’, ‘full’ or ‘inalienable’ are
often used when referring to the state’s sovereignty over natural resources. … the
right to permanent sovereignty over natural resources does not need to be secured by
a treaty or a contract.”461 And “the term ‘inalienable’ is understood to denote exactly
the same characteristics as the term ‘permanent’ or ‘full’ when used in conjunction
with the phrase ‘the principle of sovereignty over natural resources’. In other words,
the “rights that are awarded to a state in terms of [permanent sovereignty over natural
resources] can never be taken from that state.”462
C. Permanent sovereignty over marine resources
190. An early act of claiming permanent sovereignty over marine natural resources is
the 1945 Truman Proclamation on the Continental Shelf, in which the United States
extended its sovereign rights of over the natural resources of its continental shelf. 463
This was followed with the 1952 Declaration of Santiago on the Maritime Zone by
Chile, Ecuador and Peru.464 Since then the right of permanent sovereignty over natural
resources in the marine environment has been recognized in a number of General
Assembly resolutions. These include General Assembly resolution 2692 (XXV) of
1970, which recognized “the necessity for all countries to exercise fully their rights
so as to secure the optimal utilization of their natural resources, both land and marine”
(emphasis added); General Assembly resolution 3016 (XXVII) of 18 December 1973
on the “Permanent sovereignty over natural resources of developing countries”, which
emphasized “the great importance for the economic progress of all countries,
especially the developing countries, of their fully exercising their rights so as to
secure the maximum yield from their natural resources, both on land and in their
coastal waters”. It also reaffirmed “the right of States to permanent sovereignty over
all their natural resources, on land within their international boundaries as well as
those found in the seabed and subsoil thereof within their national jurisdiction and in
the superjacent waters”. General Assembly resolution 3171 (XXVIII) of 17 December
1973, which strongly reaffirmed “the inalienable rights of States to permanent
__________________
458 Ian Brownlie, “Legal status of natural resources in international law”, Collected Courses of the
Hague Academy of International Law , vol. 162 (1979), pp. 255–271, at pp. 270–271.
459 Kamal Hossain, “Introduction” in Kamal Hossain and Subrata Roy Chowdhury (eds.), Permanent
Sovereignty over Natural Resources in International Law: Principle and Practice (London,
Pinter, 1984), p. xiii.
460 Cormac Cullinan, “Earth jurisprudence” in Lavanya Rajamani and Jacqueline Peel (eds.), The
Oxford Handbook of International Environme ntal Law (Oxford, Oxford University Press, 2021),
p. 246.
461 Sanita van Wyk, The Impact of Climate Change Law on the Principle of State Sovereignty Over
Natural Resources (Baden Baden, Nomos Verlag, 2017), pp. 73-74. See also Subrata Roy
Chowdhury, “Permanent sovereignty over natural resources: substratum of the Seoul
Declaration” in Paul de Waart, Paul Peters and Erik Denters (eds.), International Law and
Development (1988).
462 Van Wyk, The Impact of Climate Change Law on the Principle of State Sovereignty Over Natural
Resources (see previous footnote), pp. 75 -76.
463 Executive Order 9633 of September 28, 1945, 10 Fed. Reg. 12,305 (1945).
464 Chile, Ecuador and Peru Declaration on the Maritime Zone, signed at Santiago on 18 August 1952,
United Nations, Treaty Series, vol. 325, No. 1006.
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sovereignty over all their natural resources, on land within their international
boundaries as well as those in the seabed and the subsoil thereof within their national
jurisdiction and in the superjacent waters”.465 The principle of permanent sovereignty
over natural resources also featured prominently in the Declaration on the
Establishment of a New International Economic Order adopted by the General
Assembly in 1974,466 which described it as an “inalienable right” .467
191. In relation to the law of the sea, Schrijver observes how developing countries in
becoming independent “have broadened the scope of [permanent sovereignty over
natural resources] by claiming exclusive rights over the natural resources of the sea
in waters adjacent to their coast. To a considerable extent these claims have been
accepted and recognized in the modern law of the sea.” 468 Permanency is also an
integral aspect of the regime of the continental shelf under article 76 of the United
Nations Convention on the Law of the Sea if all the conditions are met. Moreover, it
is well accepted that the coastal State rights over the continental shelf exist ipso facto
and ab initio. Moreover, if the outer limits of the continental shelf are permanent, this
would logically mean that the coastal State has permanent sovereign rights over its
resources. Permanent sovereignty over the natural resources would equally apply to
the exclusive economic zone and territorial sea in the situation of where States risk
losing such rights outside their own volition. Such loss, as a result of imposing a legal
requirement to move the baseline landward under the United Nations Convention on
the Law of the Sea because of sea-level rise, would arguably result in a violation of
the inalienable or permanent character of the principle.
D. Preliminary observations
192. The principle of permanent sovereignty over natural resources is a principle of
customary international law as recognized by the International Court of Justice and
expressed in multiple General Assembly resolutions, as well as recognized in binding
international instruments. It was critical to the decolonization process and the
achievement of self-determination. The permanent sovereignty over natural resources
is inherent to the sovereignty of the State (see General Assembly resolution 626 (VII)
of 21 December 1952) and is inalienable, meaning that States cannot be deprived of
it against their volition. Moreover, it is integral to the social and economic rights of
developing States. The principle of permanent sovereignty over natural resources
applies equally to marine resources, as reflected in numerous General Assembly
resolutions. It applies ipso facto and ab initio over the coastal State’s continental
shelf.
__________________
465 Emphasis added. See also Proceedings of the United Nations Conference on Trade and
Development, Third session, Principle XI of Res. 46 (III), 18 May 1972, which states. “Coastal
States have the right to dispose of marine resources within the limits of their national jurisdiction,
which must take duly into account the development and welfa re needs of their peoples.” (p. 60).
Emphasis added.
466 General Assembly resolution S-6/3201, Declaration on the Establishment of a New International
Economic Order, adopted 1 May 1974 in paragraph 4 (e) provides “Full permanent sovereignty of
every State over its natural resources and all economic activities. In order to safeguard these
resources, each State is entitled to exercise effective control over them and their explo itation with
means suitable to its own situation, including the right to nationalization or transfer of ownership
to its nationals, this right being an expression of the full permanent sovereignty of the State. No
State may be subjected to economic, politi cal or any other type of coercion to prevent the free and
full exercise of this inalienable right.”
467 General Assembly resolution 3281 (XXIX), “Charter of Economic Rights and Duties of States ”, of
12 December 1974, stating the right of every State to freely exercise full permanent sovereignty
over its natural resources.
468 Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties , p. 214.
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193. Many of the States that are or will be adversely impacted by sea-level rise are
developing States whose livelihoods and economies rely heavily on marine natural
resources. The landward shift of baselines or the possible loss, through loss of islands,
of their capacity to sustain human habitation or an economic life of their own risks
the loss of valuable marine natural resources critical to their economies and economic
development as outlined in the first issues paper (paras. 179–183). If these States were
to lose these entitlements outside of their own volition, this could be a violation of
their “inalienable rights” inherent their sovereignty, as recognized by States. The
principle of permanent sovereignty over natural is also consistent with the solution of
legal preservation of maritime zones and the natural resources as way to prevent the
loss of existing entitlements.
194. In conclusion, the following observations of a preliminary nature can be made:
(a) the principle of permanent sovereignty over natural resource is a rule of
customary international law according to which a State cannot be deprived of its
inherent and inalienable sovereign right over its natural resources, including marine
resources;
(b) the loss of marine natural resources important for the economic
development of States as a result of sea-level rise would be contrary to the principle
of the permanent sovereignty over natural resources. Whereas, the legal and practical
solution of the preservation of existing maritime entitlements would also be in lin e
with this principle.
X. Possible loss or gain by third States
195. The first issues paper included an examination in some detail of the possible
consequences on the rights and obligations of States in maritime zones in the case of
a landward shift of the baseline resulting in a landward shift of the maritime zones.469
It concluded the following: “Overall, third States stand to benefit from these changes,
but at the expense of the coastal State.”470 However, while no State raised this issue,
the present chapter contains an examination in greater detail, at the request of the
Study Group at the seventy-second session of the Commission, of the possible
benefits and losses to third States resulting from any landward shift of a new baseline
in the case of an ambulatory baseline that is adjusted.
196. As stated in the first issues paper, “if the baselines and the outer limits of the
various maritime spaces move landward, this means that the legal status and legal
regime of the maritime zones change: for example, part of the internal waters becomes
territorial sea, part of the territorial sea becomes contiguous zone and/or exclusive
economic zone, and part of the exclusive economic zone becomes high seas, with
implications for the specific rights of the coastal State and third States, and their
nationals (innocent passage, freedom of navigation, fishing rights, etc.). Sea-level rise
also poses a risk to an archipelagic State’s baselines”.471 Each of these scenarios is
examined below.
A. Part of the internal waters becomes territorial sea
197. Internal waters are those that lie on the landward side of the baselines from
which the territorial sea and other maritime zones are measured, as codified in
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469 A/CN.4/740 and Corr.1, paras. 172–190.
470 Ibid., para. 190 (g).
471 Ibid., para. 76.
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article 5 of the 1958 Convention on the Territorial Sea and the Contiguous Zone and
article 8 of the 1982 the United Nations Convention on the Law of the Sea, with the
exception of archipelagic waters. 472 However, neither instrument provides for the
rights and obligations of States in internal waters, an area that is firmly under the
sovereignty of the coastal State, in which it has full prescriptive and enforcement
jurisdiction, civil and criminal, over foreign-flagged vessels and all other activities,
notwithstanding the debate over rights of access to ports. 473
198. The landward shift of the baseline where part of the internal waters of the coastal
State becomes part of the territorial sea would result in foreign-flagged vessels
gaining the right, under customary international law, of innocent passage in the
territorial sea. The one exception is in the case provided for under article 8,
paragraph 2, of the United Nations Convention on the Law of the Sea, whereby the
establishment by the coastal State of a straight baseline has the effect of enclosing as
internal waters areas which had not previously been considered as such. In this case,
foreign vessels have the right of innocent passage.
199. The right of innocent passage, as defined in articles 19 and 45 of the United
Nations Convention on the Law of the Sea, apply to both merchant and military
vessels and, in certain straits used for international navigation, may not be
suspended. 474 In short, if part of the internal waters were to become part of the
territorial sea, foreign-flagged vessels would benefit from broader unimpeded
navigational rights and the coastal State would, in contrast, lose some of its
prescriptive and enforcement rights as provided for under the Convention and under
the rules of international law. Nonetheless, foreign-flagged vessels engaged in
innocent passage would still have to comply with the rules and regulations of the
coastal State on the safety of navigation and protection of the marine environment,
such as those on the use of sea lanes, traffic separation schemes 475 and requirements
for foreign nuclear-powered ships and ships carrying nuclear or other inherently
dangerous or noxious substances to carry documents. 476
B. Part of the territorial sea becomes part of the contiguous zone
200. The contiguous zone, as provided for in article 33 of the United Nations
Convention on the Law of the Sea, which may be established by a coastal State, is a
belt of waters extending up to 24 nautical miles from the baselines from which the
breadth territorial sea is measured. In the contiguous zone, the coastal State may
exercise not sovereign rights, but the control necessary to prevent infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea, and to punish infringements of such laws and regulations committed
within its territory or territorial sea. Article 33 of the Convention is considered to
__________________
472 Article 49 of the United Nations Convention on the Law of the Sea provides that archipelagic
waters are those “waters enclosed by the archipelagic baseline drawn in accordance with
article 47”.
473 See Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal
Waters and the Territorial Sea (Berlin, Heidelberg and New York ; Springer; 2006), pp. 45–114.
The author provides an overview of the debate, noting the decisions of the International Court of
Justice in which the Court recognized that the coastal State, by virtue of its sovereignty, could
regulate access to its ports (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986 , p. 14, at
pp. 21–22, para. 21; and Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening) (see footnote 220 above), pp. 382–383, para. 35). See also the United
Nations Convention on the Law of the Sea, article 211, paragraph 3.
474 See Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949 , p. 4.
475 United Nations Convention on the Law of the Sea, article 22.
476 Ibid., article 23.
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codify customary international law.477 According to the International Court of Justice
in its judgment in the Alleged Violations (Nicaragua v. Columbia) case, the
contiguous zone of one coastal State may overlap with the exclusive economic zone
of another State, given the different nature of the respective zones. 478 Consequently,
the landward movement of the contiguous zone of one State that overlaps with the
exclusive economic zone of another State would benefit both States where the overlap
disappears.
C. Part of the territorial sea becomes part of the exclusive
economic zone
201. The coastal State enjoys sovereign rights over the exclusive economic zone,
which is a zone beyond and adjacent to the territorial sea that, cannot extend beyond
200 nautical miles from the baselines from which the breadth of the territorial sea is
measured. 479 Specifically, the coastal State has sovereign rights in the exclusive
economic zone for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy
from the water, currents and winds. 480Among the other rights and duties that the
coastal State has in the exclusive economic zone, as provided for in the United
Nations Convention on the Law of the Sea, it has jurisdiction with regard to the
establishment and use of artificial islands, installations and structures; marine
scientific research; and the protection and preservation of the marine environment. 481
In addition, the coastal State has the exclusive right to construct and to authorize and
regulate the construction, operation and use of artificial islands, installations and
structures, although due notice must be given of the construction of such islands,
installations and structures.482
202. Third States have an important entitlement in the exclusive economic zone that
does not apply in the territorial sea. The coastal State must give other States access
to the surplus of the allowable catch in its exclusive economic zone that it does not
have the capacity to harvest, subject to the conditions enumerated in the United
Nations Convention on the Law of the Sea. 483 Consequently, the shifting of the
territorial sea to the exclusive economic zone would potentially create a right of
access for third-party States to living natural resources where no such entitlement
existed previously.
203. In addition, while coastal States have the right to regulate, authorize and conduct
marine scientific research in their exclusive economic zone and on their continental
shelf, the requirement for them to grant consent for such research applies “in normal
circumstances” only.484 Such a qualification does not exist in the case of the territorial
sea. For purposes of the present paper, without engaging in a detailed analysis as to
what “normal circumstances” entail, it can be asserted that there is a slight benefit to
third States when part of the territorial sea becomes part of the exclusive economic
__________________
477 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v.
Colombia), Judgment, 21 April 2022, General List No. 55, para. 164.
478 Ibid., paras. 160–161.
479 United Nations Convention on the Law of the Sea, article 57,
480 Ibid., article 56, paragraph 1 (a).
481 Ibid., article 56, paragraph 1 (b) and (c).
482 Ibid., article 60, paragraphs 1 –3.
483 Ibid., article 62.
484 Ibid., article 246.
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zone, as they cannot be denied consent to conduct marine scientific research absent
“abnormal” circumstances.
204. The greatest benefit to third States in the case of part of the territorial sea
becoming part of the exclusive economic zone concerns the acquisition of the freedom
of navigation and overflight in the area, and the right to lay submarine cables and
pipelines.485 The gains would be significant, as third States would have the freedom
of overflight for aircraft in an area in which even the right of innocent passage was
not recognized. Ships would enjoy most aspects of freedom of navigation as on the
high seas, but not all. In both the exclusive economic zone and the high seas, however,
the exercise of freedom of navigation is subject to the obligation to show due regard
for the interests of other States.486
205. However, the rights of foreign-flagged vessels to freedom of navigation in the
exclusive economic zone of another State are not identical to their rights to freedom
of navigation in the high seas. For example, in the M/V “Virginia G” prompt release
case, the International Tribunal for the Law of the Sea decided that regulation by a
coastal State of bunkering of foreign vessels fishing in its exclusive economic zone
is among those measures that the coastal State may take in its exclusive economic
zone to conserve and manage its living resources under article 56 of the United
Nations Convention on the Law of the Sea, and that such bunkering is not part of the
freedom of navigation of the foreign-flagged vessel. 487 Consequently, the coastal
State retains both prescriptive and enforcement jurisdiction over bunkering activities
if its law has expressly subjected such activities to its regulations on the conservation
of fisheries. It remains to be seen whether the same would apply to coastal State law
regulating the protection of the marine environment in general, such as in the case of
marine protected areas.
206. Under article 73 of the United Nations Convention on the Law of the Sea, the
coastal State has relatively broad enforcement competence: “The coastal State may,
in the exercise of its sovereign rights to explore, exploit, conserve and manage the
living resources in the exclusive economic zone, take such measures, including
boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure
compliance with the laws and regulations adopted by it in conformity with this
Convention.”488
207. In contrast to the broad and exclusive enforcement competence of coastal States
under article 73 of the United Nations Convention on the Law of the Sea, their
enforcement competence in relation to violations committed by foreign-flagged
vessels in the exclusive economic zone is limited. First, the coastal State may request
information from the foreign-flagged vessel only where there are clear grounds for
believing that, while navigating in the exclusive economic zone, the vessel committed
a violation of applicable international rules and standards for the prevention,
reduction and control of pollution from vessels, or of laws and regulations adopted
by the coastal State in accordance with and giving effect to such international rules
and standards. Second, the coastal State may undertake physical inspection of the
__________________
485 Ibid., article 58. See also ibid., para. 87.
486 See Rolf Einar Fife, “Obligations of ‘due regard’ in the exclusive economic zone: their context,
purpose and State practice”, International Journal of Marine and Coastal Law, vol. 34, No. 1
(February 2019), pp. 43–55.
487 M/V “Virginia G” (Panama/Guinea -Bissau), Judgment, ITLOS Reports 2014 , p. 4, at p. 69,
para. 217. See also Bernard H. Oxman and Vincent P. Cogliati -Bantz, “ The M/V “Virginia G”
(Panama/Guinea-Bissau)”, American Journal of International Law , vol. 108, No. 4 (October
2014), pp. 769–775.
488 See M/V "SAIGA” (Saint Vincent and the Grenadines v. Guinea), Prompt release, Judgment,
ITLOS Reports 1997 , p. 16, in which t he application of article 73 to the arrest and detention of a
bunkering vessel is addressed.
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vessel only if the violation results in a substantial discharge causing or threatening
significant pollution of the marine environment, and only if the foreign-flagged vessel
has refused to give information, or the information supplied by the vessel is
manifestly at variance with the evident factual situation, and the circumstances of the
case justify such inspection. In other words, the coastal State has significantly limited
competence to exercise its enforcement powers for violations of its laws and
regulations when committed in its exclusive economic zone. 489
D. Part of the exclusive economic zone becomes part of the high seas
208. In the high seas, all vessels enjoy the long-standing customary right of freedom
of the high seas, which comprises freedom of navigation, freedom of overflight,
marine scientific research, freedom to lay submarine cables and pipelines, freedom to
construct artificial islands and other installations permitted under international law,
freedom of fishing and freedom of scientific research.490 In the high seas, the flag
State has exclusive jurisdiction over ships under its flag. Absent consent, no other
State may board, inspect, detain or otherwise interfere with its freedom of navigation.
However, warships on the high seas may board a vessel without the consent of the
flag State if there are reasonable grounds for suspecting that the vessel is engaged in
piracy, the slave trade or (if the warship has jurisdiction under article 109)
unauthorized broadcasting, or that the ship is without nationality or, though flying a
foreign flag or refusing to show its flag, the ship is, in reality, the same nationality as
the warship.491 The right of hot pursuit also operates as an exception to the exclusive
jurisdiction of the flag State on the high seas if the necessary conditions are
fulfilled.492
209. In the case of part of the exclusive economic zone becoming part of the high
seas, third States would gain significant rights of freedom of the high seas at the
expense of the coastal State. An area that was once under the exclusive jurisdiction
of the coastal State regarding the adoption of rules and legislation for the protection
of the marine environment and the conservation of living resources would become an
area subject only to the exclusive jurisdiction of the flag State.
210. The high seas are also considered to be a global commons in which all States
have an interest and obligations erga omnes apply.493 So the question should also be
posed as to the benefit or loss that would accrue to the international community if an
area that was once under the prescriptive and enforcement competence of the coastal
State is fragmented into the multiplicity of flag States with significant differences in
relation to navigational safety, protection of the marine environment and conservation
of marine living resources. Indeed, this very concern of fragmentation and the
governance gap in the high seas are reasons why States are in the process of
negotiating an internationally legally binding instrument for the conservation and
sustainable use of biological diversity in areas beyond national jurisdiction. 494
__________________
489 Ibid., article 220, paragraph 2.
490 Ibid., article 87.
491 Ibid., article 110. In general, see Efthymios Papastavridis, The Interception of Vessels on the High
Seas, Contemporary Challenges to the Legal Order of the Oceans (Oxford, Hart, 2013); and
Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge, United Kingdom,
Cambridge University Press, 2009).
492 United Nations Convention on the Law of the Sea, article 111.
493 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion ,
1 February 2011, ITLOS Reports 2011, p. 10, at p. 59, para. 180.
494 See General Assembly resolution 72/249 of 24 December 2017.
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E. Loss of the archipelagic baseline
211. As discussed in the first issues paper, sea-level rise could affect the right of an
archipelagic State to maintain its archipelagic straight baseline in case of
submergence of the outermost islands or drying reefs that constitute the basis of its
baseline, meaning that it would no longer meet the requirements of article 47 of the
United Nations Convention on the Law of the Sea. This vulnerability is not
theoretical, but is a genuine risk that several of the 22 archipelagic States are facing. 495
For example, in Indonesia, the National Research and Innovation Agency has
projected that at least 115 of the State’s islands will be under water by 2100.496
212. The sovereignty of an archipelagic State over its archipelagic waters extends to
its airspace and to the seabed and subsoil, similar to the territorial sea of a coastal
State. Foreign-flagged vessels have innocent passage rights, except where the
archipelagic State designates sea lanes and air routes thereabove, suitable for the
continuous and expeditious passage of the foreign ships and aircraft through or over
its archipelagic waters.497
213. Each island that makes up the archipelagic State, if entitled under article 121 of
the United Nations Convention on the Law of the Sea, may be in a situation to
establish new baselines for measuring individual territorial seas, exclusive economic
zones and continental shelves. Depending on the archipelago, this could result in the
emergence of areas of high seas in what were archipelagic waters over which the
archipelagic State once exercised sovereignty or sovereign rights. In all cases, the
archipelagic State would stand to lose more rights than third States would gain.498
F. Preliminary observations
214. In conclusion, the following observations of a preliminary nature can be made:
(a) in cases where the baseline or outer limits of the baseline move
landward, third States stand to gain additional rights overall to those to which they
would otherwise be entitled. These include gaining innocent passage rights in waters
that were previously internal waters and now formed part of the territorial sea of the
coastal State. In the case of the contiguous zone, a landward shift that reduces any
overlap between those of two opposite coastal States would be beneficial to both. In
cases where the territorial sea becomes part of the exclusive economic zone, third
States will possibly gain access to any surplus of the allowable catch of the coastal
State that the latter does not have the capacity to harvest. A slight benefit may also
accrue to third States since, in the exclusive economic zone, the coastal State is
required “under normal circumstances” to grant au thorization for marine scientific
research to third States. A much broader right of unimpeded navigation is the greatest
gain for third States if part of the territorial sea becomes part of the exclusive
economic zone, which is akin to freedom of navigation in the high seas, but with
some limitations. Likewise, third States would gain additional rights especially if the
exclusive economic zone becomes part of the high seas in cases where archipelagic
States lose their archipelagic baselines as a result of the inundation of outermost
__________________
495 See David Freestone and Clive Schofield, “ Sea-level rise and archipelagic States: a preliminary
risk assessment”, Ocean Yearbook Online, vol. 35, No. 1 (July 2021), pp. 340–387. The authors
point to examples such as Bahamas, Comoros, Fiji, Grenada, Indonesia, Jamaica, Kiribati,
Maldives, Marshall Islands, Mauritius (Chagos archipelago), Papua New Guinea, Philippines, Sao
Tome and Principe, Seychelles, So lomon Islands and Tuvalu.
496 Dita Liliansa, “Sea-level rise may threaten Indonesia’s status as an archipelagic country” The
Conversation, 19 January 2023.
497 United Nations Convention on the Law of the Sea, article 53.
498 See Freestone and Schofield, “Sea -level rise and archipelagic States” (see footnote 495 above).
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islands or drying reefs, thus no longer fulfilling the requirements of article 47 of the
United Nations Convention on the Law of the Sea;
(b) however, as observed in the first issues paper, these gains are at the
considerable expense of the coastal State. These aspects are outlined in detail in the
first issues paper. Consideration should also be given to equity where one party stands
to gain significantly more than another for circumstances that are not caused by the
coastal State. Such changes in maritime entitlements do bring the risk of creating
uncertainty, instability and the possibility of disputes. The preservation of existing
rights and obligations – in other words, maintaining the status quo of maritime
entitlements established in accordance with international law and the Convention –
would not result in any loss to either party.
XI. Nautical charts and their relationship to baselines,
maritime boundaries and the safety of navigation
215. During the discussions of the Study Group at the seventy-second session of the
Commission, in 2021, the issue of navigational charts was raised. A view was
expressed that updating them was important in the interests of navigational safety,
while another view maintained that the potential dangers to navigation might be rather
exceptional given that the coast receded landward in case of sea-level rise and that
satellite technology was more accessible than ever. Support was expressed for the
proposal made by the Co-Chairs that the issue of navigational charts could be subject
to additional study. For example, such study could examine the different functions of
navigational charts as required under the rules of the International Hydrographic
Organization and of the charts that are deposited with the Secretary-General of the
United Nations for purposes of registration of maritime zones. 499
A. Submissions of Member States to the Commission
216. The Kingdom of the Netherlands, in its submission to the Commission in 2022,
provides information on its practice:
The Netherlands Hydrographic Office (part of the Ministry of Defence), which
is responsible for the publication of accurate and up-to-date nautical charts, has
a risk-based resurvey plan. This plan divides the Dutch part of the North Sea in
pieces with a resurvey frequency between 2 and 25 years. The part of the North
Sea near the coastline falls under the responsibility of the Ministry of
Infrastructure and Water Management and is monitored even more frequently
for coastal defence purposes. The results of the surveys of both Ministries are
combined and published in the official charts, issued by the Netherlands
Hydrographic Office. … On average, the maritime limits of the [Kingdom of
the] Netherlands change 1–2 times per year. These changes are not deposited
with the Secretary-General of the United Nations on a regular basis. 500
217. Colombia, in its submission to the Commission, notes that “[i]t might be
considered that the coastal State in question should take into account the need to
update the relevant information (nautical charts) to reflect current conditions in order
to ensure, in particular, the safety of navigation for the exercise of the right of
innocent passage and for access to inland waters and ports”. 501 Estonia expressed
support for “the idea to stop updating notifications, in accordance with the [United
__________________
499 A/76/10, para. 276.
500 See footnote 66 above.
501 See footnote 53 above.
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Nations Convention on the Law of the Sea], regarding the baselines and outer limi ts
of maritime zones measured from the baselines and, after the negative effects of sea -
level rise occur, in order to preserve … States’ entitlements”.502
218. France, in its submission in response to the request of the Study Group, notes
that the United Nations Convention on the Law of the Sea “does not provide for an
obligation to update the charts and lists of geographical coordinates, once published
pursuant to its provisions. The navigational charts are prepared and published, as
necessary, by the French Naval Hydrographic and Oceanographic Service, under
guidelines set by the International Hydrographic Organization.”503
219. Germany, in its submission, expresses its view as follows:
[The United Nations Convention on the Law of the Sea] does not contain any
explicit obligations to update [either] normal baselines that have been marked
([a]rticle 5 …) [or] straight baselines that have been marked, published and
deposited ([a]rticle 16 …), as well as no further obligation to update a State ’s
relevant charts and lists of geographical coordinates with regards to the
[exclusive economic zone] ([a]rticle 75 …) and the continental shelf
([a]rticle 84 …).” 504
Moreover, in direct response to the request from the Commission on practice,
Germany replies as follows: “The maritime boundary charts still reflect the
proclamations of 1994. New editions of the latest nautical charts, particularly the
detailed large-scale charts, are published regularly. However, changes in the maritime
boundaries in these charts only affect the normal baselines (0-metre depth contour)
in the areas for which no straight baselines have been defined.” 505
220. Ireland, in its submission to the Commission, states the following:
[C]oastal States are not required by the [United Nations Convention on the Law
of the Sea] to deposit details of normal baselines with the Secretary-General as
the low water line along the coast may be established from the relevant official
large-scale charts, being nautical charts produced to the relevant international
standard, suitable and reliable for navigation. Ireland understands that the
rationale for the obligations under the Convention to deposit details of straight
baselines with the Secretary-General and otherwise to give them due publicity
is that these baselines may not be marked on the relevant nautical charts, in
which case they could not be ascertained.506
221. Morocco, in its submission to the Commission in 2022, indicates the following:
The navigational charts used to determine the baselines and outer limits of the
exclusive economic zone and the continental shelf are updated periodically, in
keeping with the standards of the International Hydrographic Organization. …
[A]s part of the project to extend its continental shelf (preliminary dossier),
Morocco had updated base points and baselines along its entire Atlantic
seaboard, in 2015–2016, on the basis of new reference nautical charts published
by the French Naval Hydrographic and Oceanographic Service … and the
United Kingdom Hydrographic Office.507
222. New Zealand, in its submission, responds as follows:
__________________
502 See footnote 131 above.
503 See footnote 60 above.
504 See footnote 62 above.
505 Ibid.
506 See footnote 65 above.
507 Submission of Morocco. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms
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On 8 March 2006 … New Zealand deposited with the United Nations Secretary -
General [10] nautical charts showing the baselines from which the breadth of
the territorial sea is measured, together with the outer limits of its territorial sea
and its exclusive economic zone ….
New Zealand has not updated this maritime zone submission since it was
submitted. In the event that New Zealand experiences coastal regression as a
result of climate change-related sea-level rise, New Zealand does not intend to
update its notification of 8 March 2006.
The charts that New Zealand deposited with the Secretary-General in 2006 are
not used by mariners for navigation purposes. New Zealand’s government
agency Land Information New Zealand produces official nautical charts for safe
navigation in New Zealand’s [exclusive economic zone]. These charts are
updated regularly based on the latest topographic and hydrographic data
obtained by [Land Information New Zealand] and are freely available to all
mariners on [its] website. 508
223. The Philippines, in its submission, notes the following:
The updating of charts due to coastal changes is done as soon as possible for
purposes of navigational safety and coastal zone management. The updating and
publication of baselines for areas under the Regime of Islands can also be done
as part of the mapping and charting mandates of the national mapping agency,
which in the Philippines is the National Mapping and Resource Informat ion
Authority …, and pursuant to relevant provisions of RA 9522 and [a]rticles 5, 6
and 7 of [the United Nations Convention on the Law of the Sea]. However,
absent clear legal guidance on the matter, [the Authority] would seek the
concurrence of relevant authorities before publishing such changes.509
224. Poland, in its submission, informs the Commission that, “[a]s regards the charts,
the Hydrographic Office of the Polish Navy, responsible, inter alia, for preparing and
publishing of nautical charts, has not found it necessary to amend relevant nautical
charts due to sea-level rise for now.” 510
225. The United Kingdom, in its submission in 2022, advises the following:
The [United Kingdom Hydrographic Office] publishes Admiralty Standard
Nautical Charts and Electronic Navigational Charts, on various scales and levels
of detail, of areas around the world. Updates are published weekly.
In relation to [the United Kingdom] in particular, the frequency of surveys and
of updates to these charts is likely to depend to some extent on the nature of the
coast. For example, charts of areas with shifting sandbanks, extensively used for
navigation, may be updated as often as weekly. Charts of hard, rocky coastlines
may not need to be update[d] for years. Not all changes to charts will necessarily
be relevant to the location of baselines. [United Kingdom] [t]erritorial [s]ea,
[c]ontinental [s]helf and exclusive economic zone limits are shown on these
charts.511
226. The United States, in its submission in 2022, explains the following:
The United States agency responsible for charts depicting the limits of its
maritime zones is the National Oceanic and Atmospheric Administration ….
[The Administration] updates its suite of nautical chart products based upon new
__________________
508 See footnote 54 above.
509 See footnote 58 above.
510 See footnote 67 above.
511 See footnote 68 above.
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source as it is received. The prioritization of chart updates is based upon the
criticality of the new source and resources available to action this new source .
The [United States] [b]aseline and [m]aritime [l]imits are updated on [the
Administration’s] charts as changes are noted from incoming source[s] and
when those changes are reviewed by the [United States] Baseline Committee. 512
227. Samoa, in its statement in the Sixth Committee on behalf of the Pacific small
island developing States in 2021, notes the following:
The … Declaration on Preserving Maritime Zones in the Face of Climate
Change-related Sea-Level Rise [issued by the Pacific Islands Forum Leaders on
6 August 2021] affirms that once Pacific islands have established and notified
their maritime zones to the Secretary-General … such maritime zones and the
rights and entitlements that flow from them shall not be reduced irrespective of
the physical effects of climate change-related sea-level rise …. States [p]arties
of [the United Nations Convention on the Law of the Sea] are not obligated to
update their maritime zone coordinates or charts once deposited with the …
Secretary-General.513
Antigua and Barbuda, in its statement in the Sixth Committee on behalf of Alliance
of Small Island States in 2021, reiterates that position.514
228. In addition, in its statement in the Sixth Committee in 2021, Cyprus expresses
the view that the obligation under article 16 of the United Nations Convention on the
Law of the Sea for the coastal State to show the baselines for measuring the breadth
of the territorial sea, or the limits “derived therefrom”, on charts or a list of
geographical coordinates of points is meant to establish legal security, and that no
indication is provided for that these charts are to be periodically revised. 515
B. Purpose of nautical charts under international law
229. For purposes of determining the limits of the territorial seas, articles 5 and 6 of
the United Nations Convention on the Law of the Sea reflect a limited function for
nautical charts “officially recognized by the coastal State”, which is for the purpose
of measuring the breath of the territorial sea. No other function for the baseline is
mentioned. The Virginia Commentaries explain that the term “officially recognized
by the coastal State” “implies that the charts in question do not have to be produced
by the coastal State”, which may adopt charts produced by foreign hydrographic
services.516 This is indeed the practice of many States. It is also an indication that the
use of nautical charts for the purposes of drawing baselines does not mean that the
coastal State has an obligation to update those charts for the purposes of safety of
navigation. This means that the two functions of nautical charts are distinct, as
discussed in greater detail below.
230. Under the International Convention for the Safety of Life at Sea,517 a “nautical
chart” (or “nautical publication”) is defined as “a special -purpose map or book, or a
specially compiled database from which such a map or book is derived, that is issued
officially by or on the authority of a Government, authorized Hydrographic Office or
__________________
512 See footnote 271 above.
513 See footnote 77 above.
514 See footnote 99 above.
515 See footnote 133 above.
516 Nordquist et al., eds., United Nations Convention on the Law of the Sea 1982: A Commentary ,
vol. II (see footnote 348 above), p. 90, para. 5.4 (d).
517 Internation al Convention for the Safety of Life at Sea, 1974 (London, 1 November 1974), United
Nations, Treaty Series, vol 1184, No. 18961, p. 2.
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other relevant government institution and is designed to meet the requirements of
marine navigation”. 518 The principal function of nautical charts is for safety of
navigation.519 Since 2000, IMO has been promoting the use of electronic chart display
and information systems, with official electronic navigational charts. The
International Convention for the Safety of Life at Sea, which is the principal global
instrument for the safety of navigation, provides for a set of obligations concerning
nautical charts and the safety of navigation. According to regulation V/9 of the
Convention, contracting Governments are required to ensure that hydrographic
surveying is carried out, as far as possible, adequate to the requirements of safe
navigation; to prepare and issue nautical charts, sailing directions, lists of lights, tide
tables and other nautical publications, where applicable, satisfying the needs of safe
navigation; to promulgate notices to mariners in order that nautical charts and
publications are kept, as far as possible, up to date; and to provide data management
arrangements to support these services. 520 There is no mention of updating of
baselines as part of the obligation to update charts for the purposes of ensuring the
safety of navigation.
231. The different functions of nautical charts are illustrated by the practice of the
United States. The National Oceanic and Atmospheric Administration, which is the
officially recognized charting agency of the United States, depicts on its nautical
charts not the actual baseline, but the official limits of national jurisdiction. 521 The
baseline is determined not by that Administration, but by the United States Baseline
Committee, which is chaired by the United States Department of State.522 Westington
and Slagel note the following: “Since the nautical chart is a document compiled from
many sources of information and is designed for safe and efficient navigation,
supplemental information, such as a hydrographic or topographic survey, is critical
to precisely determine the baseline from which the [United States] maritime limits
are measured.”523
232. This separation of function of nautical charts is also supported by the Division
for Ocean Affairs and the Law of the Sea, of the Office of Legal Affairs, which is the
substantive unit of the United Nations Secretariat responsible for the custody of charts
and lists of geographical coordinates deposited in accordance with the United Nations
Convention on the Law of the Sea.524 In its Handbook on the Delimitation of Maritime
Boundaries, and in relation to the low-water line, the Division states as follows: “The
low-water line along the coast is a fact irrespective of its representation on charts.
The maritime zones claimed by the coastal State exist even if no particular low-water
line has been selected or if no charts have been officially recognized.” 525 There is no
mention of the use of the baseline for the purposes of navigational safety. The
__________________
518 Ibid., annex, chapter V, regulation 2, paragraph 2 (as amended in IMO, resolution MSC.99(73) of
5 December 2000, para. 7, at p. 117).
519 Meredith A. Westington and Matthew J. Slagel, “U.S. maritime zones and the determination of
the national baseline”, National Oceanic and Atmospheric Administration (2007), p. 4. The
authors explain as follows: “The nautical chart i s constructed to support safe navigation; its
general purpose is to inform the mariner of hazards and aids to navigation as well as the limits of
certain regulatory areas.”
520 International Convention for the Safety of Life at Sea, annex, chapter V, regu lation 9 (as
amended in IMO, resolution MSC.99(73) of 5 December 2000, para. 7, at pp. 121 –122). See also
the submission by IMO to the Commission; available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
521 Westington and Slagel, “U.S. maritime zones” (see footnote 519 above), p. 1.
522 Ibid., p. 2.
523 Ibid., p. 13.
524 Handbook on the Delimitation of Maritime Boundaries (United Nations publication, 2000), p. 11,
para. 65..
525 Ibid., p. 4, para. 19.
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independence of the low-water line (which is to be used for the baseline) from the
chart would indicate this.
233. An important element that must be considered in assessing the obligations of
States is that not all Governments have the capacity to produce their own nautical
charts. This element is reflected in the use of the term “officially recognized by the
coastal State” and is explained in the authoritative Virginia Commentaries. 526 In
practice, those States that do not have their own capability to develop nautical charts
will use the nautical charts prepared by hydrographic offices of other States. This
means that the updating of charts will depend upon the capacity of those Governments
to provide data to the Governments preparing such nautical charts. This was
recognized by the IMO Assembly, which in 2004 adopted a resolution in which it
invited member Governments to cooperate in the collection and dissemination of
hydrographic data with other Governments having little or no hydrographic
capability.527 As noted in its submission to the Commission, IMO “has continuously
encouraged Governments, in particular coastal States, to develop or improve their
hydrographic capabilities and consider becoming members of the [International
Hydrographic Organization], and provided technical assistance to its [m]ember
States, as and when requested in cooperation with [that Organization].” 528
234. If not all Governments are able to provide the hydrographic services necessary
to produce and update charts, it would be unreasonable to impose an obligation to
resurvey their baselines and update nautical charts. The use of the qualified language
“as far as possible” in regulation V/9 of the International Convention for the Safety
of Life at Sea constitutes recognition of the differing capabilities of its contracting
Governments.
C. Information provided by the International Hydrographic
Organization and the International Maritime Organization
235. In response to the request from the Commission, in 2022, the International
Hydrographic Organization and IMO kindly provided information. According to the
submission of the former:
The International Hydrographic Organization … is the intergovernmental
international organization whose principal aim is to ensure that all the world’s
oceans, seas and navigable waters are properly surveyed and charted. The work
is done by bringing together the national agencies responsible for the conduct
of hydrographic surveys, the production of nautical charts and related
publications, and the distribution of [m]aritime [s]afety [i]nformation … in
accordance with the requirement set out in the International Convention for the
Safety of Life at Sea … and other international regulations. 529
236. IMO, in its submission, lays out the obligations of contracting Governments
under regulation V/9 of the International Convention for the Safety of Life at Sea to
maintain hydrographic services and products. In particular, contracting Governments
are required to cooperate in carrying out, as far as possible, a range of nautical and
hydrographic services, in the manner most suitable for the purpose of aiding
navigation. These services include ensuring that hydrographic surveying is carried
__________________
526 Nordquist et al., eds, United Nations Convention on the Law of the Sea 1982: A Commentary (see
footnote 348 above), p. 90, para. 5.4 (d).
527 Submission of IMO to the Commission (see footnote 520 above), para. 1.
528 Ibid.
529 Submission of the International Hydrographic Organization to the Commission, p. 1. Available
from https://legal.un.org/ilc/guide/8_9.shtml#govcoms .
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out, as far as possible, adequate to the requirements of safe navigation; promulgating
notices to mariners in order that nautical charts and publications are kept, as far as
possible, up to date; and preparing and issuing nautical charts, sailing directions, lists
of lights, tide tables and other nautical publications, where applicable, satisfying the
needs of safe navigation. 530 In addition, at its twenty-third session, in 2004, the IMO
Assembly invited Governments, in addition to their existing obligations under
regulation V/9: to promote the use of electronic chart display and information
systems; to cooperate, as appropriate, in the collection and dissemination of
hydrographic data with other Governments having little or no hydrographic
capability; to promote support for Governments that might require technical
assistance; and establish hydrographic offices where they did not exist, in
consultation with the International Hydrographic Organization.531
237. The International Hydrographic Organization is a consultative and technical
organization. Its current membership stands at 98 member States and 55 non-member
States.532 The latter States do not have national hydrographic offices. Consequently,
these States do not have the capacity or capability to conduct their own hydrographic
surveys. 533 This is why an important objective of the Organization is to provide
technical assistance and capacity-building to Governments. The object of the
Organization includes the promotion of the use of hydrography for the safety of
navigation and for all other marine purposes. 534 These include supplementary
purposes, as the Organization explains in its submission:
Although safety of navigation remains a major driver for the [Organization],
hydrographic products and services support all activities associated with the
oceans, seas, and navigable waters. As accurate depth data (bathymetry) and
sea-level data is essential to the generation of nautical charts and publications
and the substantiation of the … claims [under the United Nations Convention
on the Law of the Sea] of coastal States to maritime territory and resources,
hydrography is essential in helping coastal states protect their maritime zones
and populations in the face of sea-level rise. All coastal States should be
encouraged to ensure that their seas and coastal areas are properly surveyed and
charted. This will directly allow them to protect their maritime rights, [and]
mitigate and adapt to the impacts of climate change and displaced persons. 535
238. The International Hydrographic Organization notes the various adverse
consequences of sea-level rise on countries, including “altering access to food,
increasing the impact of storms and storm surges [and] displacing populations”. It
observes that data on physical features of the ocean can used in efforts to mitigate
and adapt to the negative impact of sea-level rise.536 The Organization explains that,
recognizing the importance of such hydrographic information, its member States
agreed in 2020 to include a goal in its Strategic Plan “targeting the increased use of
hydrographic data beyond the traditional charts”.537
__________________
530 Submission of IMO (see footnote 520 above), p. 1.
531 Ibid.
532 International Hydrographic Organization, Yearbook: 9 March 2023 (Monaco, 2023), pp. 5–9.
533 This point was highlighted by authors who wrote that Poland had “limited technical capabilities” and did
not have an up-to-date set of geographic data on the Baltic Sea that established the maritime boundary of
the State. Cezary Specht and others, “A new method for determining the territorial sea baseline using an
unmanned hydrographic surface vessel”, Journal of Coastal Research, vol. 35, No. 4 (July 2019),
pp. 925–936, at p. 926.
534 International Hydrographic Organization, “Strategic Plan for 2021–2026)”, November 2020, p. 1.
535 Submission of the International Hydrographic Organization (see footnote 529 above), para. 2.
536 Ibid., para. 15.
537 Ibid., para. 16.
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239. There are two key points to be deduced from the information provided by the
International Hydrographic Organization. The first point is that nautical charts and
hydrographic services support the claims of coastal States to maritime territory and
resources and help to protect these zones and their population. The second point, as
demonstrated by the use of the verb “encourage”, is that there is no obligation for all
coastal States to survey and chart their seas and coastal areas. Such an obligation
would be difficult to impose, given that many coastal States lack such capacity.
Moreover, while the Organization includes as one of its objectives to assist with
mitigation of and adaptation to the negative impact of sea-level rise, there is no
mention of any objective to ensure the resurveying and updating of bathymetry for
baselines used for maritime boundaries in relation to the safety of navigation.
240. The International Hydrographic Organization is also actively engaged in
providing digital navigation support in the context of the requirements under the
International Convention for the Safety of Life at Sea to enhance the safety of
navigation, and the implementation of “e-navigation”, led by IMO. Since easy access
to standardized high-quality digital geospatial information is required, the
International Hydrographic Organization has continued to work on products including
one called “S-121”, on maritime limits and boundaries, whose purpose is to provide
support to the Division for Ocean Affairs and the Law of the Sea regarding deposit
requirements. In addition, the product is to provide the clarity necessary for good
governance by: (a) providing coordinate-based spatial representations of maritime
limits and boundaries that are accurate, reliable and easy to interpret; (b) facilitating
States parties’ obligation under the United Nations Convention on the Law of the Sea
to deposit their outer limits of maritime zones, together with the lines of delimitations
(marine boundaries) with the Secretary-General of the United Nations through the
Division of Ocean Affairs and the Law of the Sea. Thus, “S -121 supports ocean
governance in the context of sea-level rise by supporting legal procedures through the
provision of output that is legally readable, targeted to the issues and provides
historical information and source validation.”538 There is no mention of baselines in
the Organization’s submission, only a reference to the “outer limits of maritime
zones”.
241. Moreover, IMO and the International Hydrographic Organization have, in
collaboration, undertaken 11 capacity-building activities to improve hydrographic
services and the production of nautical charts between 2012 and 2018. They were
mostly regional activities in the Pacific, Asia, Latin America and Eastern Europe,
with some national activities focusing on the Sudan and Kenya in the Africa region. 539
Three activities were delivered under the United Nations “Delivering as one”
initiative, whereby common technical cooperation activit ies were identified and
delivered as part of a joint initiative on capacity-building matters by the International
Hydrographic Organization, IMO, the Intergovernmental Oceanographic
Commission, the World Meteorological Organization, the International Association
of Marine Aids to Navigation and Lighthouse Authorities, the International Atomic
Energy Agency and the International Federation of Surveyors. 540
__________________
538 Ibid., paras. 9–10.
539 Submission of IMO (see footnote 520 above), p. 2.
540 Ibid.
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D. Survey by the Division for Ocean Affairs and the Law of the Sea,
Office of Legal Affairs, of charts or lists of geographical
coordinates deposited with the Secretary-General
242. In response to the request of the Commission, 541 the Division for Ocean Affairs
and the Law of the Sea of the Office of Legal Affairs conducted a survey of charts or
lists of geographical coordinates deposited with the Secretary-General of the United
Nations that had been modified or updated during the period from 1990 to the present,
and any additional explanatory information. The Division notes that the United
Nations Convention on the Law of the Sea does not explicitly address the
“modification or updating” of deposits made. The Division reports that the first
deposit with the Secretary-General under the Convention was made in March 1995,
and that, in September 2022, a total of 86 coastal States had made a total of 157
deposits to the Secretary-General. Of the 86 depositing States, 17 made subsequent
deposits (that is, later deposits for the same region and under the same articles of the
Convention).542 Of these, 16 States conveyed their intention to supersede an earlier
deposit, in part or fully, indicating whether an earlier deposit should be considered
superseded.
243. The Division highlights that in discharging its mandate concerning deposits
under the United Nations Convention on the Law of the Sea, the Secretariat carries
out a review of the deposited charts or lists of geographical coordinates of points with
a view to ascertaining whether they correspond to the stated intention of the
depositing State and meet the requirements specified in the Convention. The
Secretariat is not mandated, however, to make any determination as to the conformity
of the deposited material with the relevant provisions of the Convention. The
Secretariat is also not mandated to determine whether the new charts and lists of
geographical coordinates of points amount to a “modification or update” of any charts
and lists deposited earlier.
244. The Division clarifies as follows:
Given the international nature of an act of deposit of charts and/or lists, it is
expected that such an act would be effected in the form of a note verbale or a
letter from a person who is considered a representative of the coastal State
addressed to the Secretary-General. In virtue of their functions, such persons
can be any of the following: a Head of State; a Head of Government; a minister
for foreign affairs; or a permanent representative or a permanent observer to the
United Nations.543
In other words, the deposit of charts and/or lists is not done by the technical offices
of the coastal State, such as the hydrographic office, as it is a legal act, not a technical
one.
__________________
541 A/77/10, para. 27 (a).
542 Belgium, Brazil, Chile, Cook Islands, Fiji, France, Iraq, Japan, Lebanon, Madagascar, Nicaragua,
Norway, Samoa, Seychelles, Spain, Tuvalu and United Arab Emirates.
543 SPLOS/30/12, para. 16.
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E. Preliminary observations
245. A number of States provided information on their practice and views concerning
nautical charts in relation to maritime boundaries. Few States reported that they
update charts regularly or periodically and most States indicated their view and
practice that there is no requirement to update nautical charts under the United
Nations Convention on the Law of the Sea in relation to baselines. No statement was
made by any State indicating the view that an obligation exists under the Convention
or international law to survey their baselines periodically, update the nautical charts
and deposit the updated charts with the Secretary-General.
246. As explained by IMO and the International Hydrographic Organization, nautical
charts are used principally for the purposes of safety of navigation, as provided for
under the International Convention for the Safety of Life at Sea. However, the
International Hydrographic Organization explains that hydrographic services and
products can fulfil supplementary functions, including providing support in
substantiating maritime zones, helping States to protect their maritime zones and
population and supporting adaptation to the impact of sea-level rise. The information
provided by the International Hydrographic Organization does not indicate any
practice or obligation under the International Convention for the Safety of Life at Sea
to the effect that baselines are relevant to the safety of navigation and must be
depicted or updated on nautical charts. In other words, there are two different uses
for nautical charts: for the safety of navigation, and for supplementary functions, such
as indicating maritime zones. For example, the practice of the United States is not to
show the baseline on the nautical charts prepared by the National Oceanic and
Atmospheric Administration. This is supported by the Handbook on the Delimitation
of Maritime Boundaries, prepared by the Division for Ocean Affairs and the Law of
the Sea of the Office of Legal Affairs, according to which the “low-water line along
the coast is a fact irrespective of its representation on charts”. There is no evidence
of general practice among States of updating their baselines on their nautical charts
for the purposes of the safety of navigation. In the survey conducted by the Division,
States did not indicate their reasons for adjusting their baselines.
247. Nautical charts are developed by national hydrographic offices. However, both
IMO and the International Hydrographic Organization recognize that not all
Governments have the capacity to establish hydrographic offices or to undertake
hydrographic surveys. Many States do not have hydrographic offices and do not
produce their own nautical charts. This concept is reflected in articles 5 and 6 of the
United Nations Convention on the Law of the Sea, in which reference is made to
charts that are “officially recognized by the coastal State”. It would thus seem
unreasonable to impose an obligation on States to conduct hydrographic surveys and
update nautical charts, and there is no support in the instruments or in practice to do so.
248. These preliminary observations support a plain reading of article 5 of the Unit ed
Nations Convention on the Law of the Sea, whereby the normal baseline is used only
for measuring the breadth of the territorial sea, and, as stated in the first issues paper,
“the Convention does not indicate expressis verbis that new baselines must be
drawn”.544 The updating of charts for the purposes of the safety navigation is separate
from the updating of charts and lists of coordinates concerning baselines and maritime
zones under the Convention and international law in relation to maritime zones.
__________________
544 A/CN.4/740 and Corr.1, para. 78.
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249. In conclusion, the following observations of a preliminary nature can be made:
(a) nautical charts are principally used for the purposes of the safety of
navigation, and the depiction of baselines or maritime zones is a supplementary
function;
(b) there is no evidence of general practice among States of updating their
baselines on their nautical charts for the purposes of the safety of navigation under
the United Nations Convention on the Law of the Sea or international law;
(c) there is no evidence of State practice in support of the view that an
obligation exists under the Convention or other sources of international law to
regularly revise charts for the purposes of updating baselines or maritime zones.
XII. Relevance of other sources of law
250. In the Commission’s 2021 annual report,545 it was suggested by the members of
the Study Group that, beyond the United Nations Convention on the Law of the Sea
and the 1958 Geneva Conventions:546
[T]he Study Group would examine other sources of law – relevant multilateral,
regional and bilateral treaties or other instruments relating, for example, to
fisheries management or the high seas that define maritime zones, or the 1959
Antarctic Treaty and its 1991 Protocol on Environmental Protection, the IMO
treaties defining pollution or search and rescue zones, or the 2001 Convention
on the Protection of the Underwater Cultural Heritage, …, as well as the
regulations of relevant international organizations such as the International
Hydrographic Organization. The purpose of this examination would be to
determine the lex lata in relation to baselines and maritime zones, without
prejudice to the consideration of the lex ferenda or policy options. It would also
aim at assessing whether these instruments permit or require (or not) the
adjustment of baselines in certain circumstances, and whether a change of
baselines would entail a change of maritime zones.
251. Member States did not refer specifically in their submissions and interventions
to certain treaties that they consider of relevance to be further examined. It can be
noted that the Alliance of Small Island States expressed in its 2021 statement certain
reservations to the need to embark on such an analysis: “We are interested in
understanding how the 1958 Geneva Conventions …, which were negotiated when
many of the [small island developing States] were under colonial administration, are
relevant to our interpretation of the law of the sea under the present circumstances”.
The United States, in its 2021 statement, was also very direct: “We query whether
other sources of law identified by the Study Group could override or alter such
universally accepted provisions reflected in [the United Nations Convention on the
Law of the Sea]”.
252. The Antarctic Treaty of 1959 547 does not contain references to baselines or
maritime zones (with the exception of high seas). Article IV of the Treaty contains
only references to rights of, claims to or bases of claims to “territorial sovereignty in
__________________
545 A/77/10, para. 294 (a).
546 In fact, already examined in the first issues paper.
547 The Antarctic Treaty (Washington, 1 December 1959), United Nations, Treaty Series, vol. 402,
No. 5778, p. 71.
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Antarctica”. 548 Only on the remote possibility that, after a future hypothetical
termination of the Treaty, some States would have territorial sovereignty over (parts
of) Antarctica, could the issue of baselines and maritime zones and, consequently, of
their relation to sea-level rise arise. Article VI, which establishes the area of
application of the Treaty, sets forth that “nothing in the present Treaty shall prejudice
or in any way affect the rights, or the exercise of the rights, of any State under
international law with regard to the high seas within that area”. Taking into account
the current legal regime of Antarctica, it is quite clear that this provision has no effect
on the present topic.
253. Neither the 1991 Protocol on Environmental Protection to the Antarctic
Treaty,549 nor the 1972 Convention for the Conservation of Antarctic Seals550 include
references to baselines or maritime zones. The 1980 Convention on the Conservation
of Antarctic Marine Living Resources551 does not contain any reference to baselines
or maritime zones either. Article IV of that Convention contains a similar text to
article IV of the Antarctic Treaty552 and a reference to article VI thereof. The same
conclusion can therefore be drawn as for the Antarctic Treaty. Furthermore, article XI
of the Convention on the Conservation of Antarctic Marine Living Resources
provides that:
The Commission [for the Conservation of Antarctic Marine Living Resources,
created by the Convention on the Conservation of Antarctic Marine Living
Resources] shall seek to cooperate with Contracting Parties which may exercise
jurisdiction in marine areas adjacent to the area to which this Convention applies
in respect of the conservation of any stock or stocks of associated species which
occur both within those areas and the area to which this Convention applies,
with a view to harmonizing the conservation measures adopted in respect of
such stocks.
__________________
548 Art. IV: “1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciat ion by
any Contracting Party of previously asserted rights of or claims to territorial sovereignty in
Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to
territorial sovereignty in Antarctica which it may have whe ther as a result of its activities or
those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting
Party as regards its recognition or non -recognition of any other State ’s right of or claim or basis
of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the
present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to
territorial sovereignty in Antarctica or create any rights of sovereignty i n Antarctica. No new
claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be
asserted while the present Treaty is in force.”
549 Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 4 October 1991), Un ited
Nations, Treaty Series, vol. 2941, annex A, No. 5778, p. 3.
550 Convention for the Conservation of Antarctic Seals (London, 1 June 1972), ibid., vol. 1080,
No. 16529, p. 172.
551 Convention on the Conservation of Antarctic Marine Living Resources (C anberra, 20 May 1980),
ibid., vol. 1329, No. 22301, p. 47.
552 Article IV: “1. With respect to the Antarctic Treaty area, all Contracting Parties, whether or not
they are Parties to the Antarctic Treaty, are bound by Articles IV and VI of the Antarctic Tr eaty
in their relations with each other. 2. Nothing in this Convention and no acts or activities taking
place while the present Convention is in force shall: (a) constitute a basis for asserting,
supporting or denying a claim to territorial sovereignty in the Antarctic Treaty area or create any
rights of sovereignty in the Antarctic Treaty area; (b) be interpreted as a renunciation or
diminution by any Contracting Party of, or as prejudicing, any right or claim or basis of claim to
exercise coastal state jurisdiction under international law within the area to which this
Convention applies; (c) be interpreted as prejudicing the position of any Contracting Party as
regards its recognition or non -recognition of any such right, claim or basis of claim; (d) affec t
the provision of Article IV, paragraph 2, of the Antarctic Treaty that no new claim, or
enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while
the Antarctic Treaty is in force.”
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This text does not distinguish to which “marine areas adjacent to the area to which
this Convention applies” it refers. Since the Antarctic Treaty excludes any territorial
sovereignty over Antarctica, the continent does not have maritime zones. As to the
maritime zones of the adjacent States, the stability (fixing) of baselines would not
affect the implementation area of the Convention, nor would a landward adjustment
of baselines and of outer limits of maritime zones because of sea-level rise, where the
respective States applied the ambulatory rule.
254. Analysis of IMO treaties regarding pollution or search and rescue zones has
given the following conclusions. The International Convention for the Prevention of
Pollution from Ships of 1973, as modified by the Protocol of 1978 relating thereto
and by the Protocol of 1997, 553 does not include references to maritime zones.
Article 3, paragraph 2, of the 1973 Convention mentions that, “[n]othing in the
present Article shall be construed as derogating from or extending the sovereign rights
of the Parties under international law over the sea-bed and subsoil thereof adjacent to
their coasts for the purposes of exploration and exploitation of their natural
resources”, but this provision has no relevance as to the permission or requirement
(or otherwise) to adjust the baselines, or to the situation where a change of baselines
would entail a change of maritime zones.
255. Annex I, entitled, “Regulations for the prevention of the poll ution by oil”, to the
1973 Convention includes a reference to baselines:
Regulation 1. Definitions
…
(9) ‘Nearest land’. The term ‘from the nearest land’ means from the baseline
from which the territorial sea of the territory in question is established in
accordance with international law, except that, for the purposes of the present
Convention ‘from the nearest land’ off the north eastern coast of Australia shall
mean from a line drawn from a point on the coast of Australia [defined by certain
coordinates specified in the text].
This definition is relevant to the rules set forth in that annex, by which any discharge
into the sea of oil or oily mixtures from ships shall be prohibited except when a
number of conditions are met, including the one that the oil “tanker is more than 50
nautical miles from the nearest land”554 or the “400 tons gross tonnage and above
other than an oil tanker” ship “is more than 12 nautical miles from the nearest land”. 555
Similar references are included in regulation 10 in the annex (“[t]he discharge is made
as far as practicable from the land, but in no case less than 12 nautical miles from the
nearest land”)556 and regulation 15 (“within 50 miles from the nearest land”).557 Other
such references can be found in annex II, entitled “Regulations for the control of
pollution by noxious liquid substances in bulk”: under those regulations, the
discharge of such substances is prohibited, but it can be permitted when a number of
conditions are met, including the one that the “discharge is made at a distance of not
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553 International Convention for the Prevention of Pollution from Ships, 1973 (London, 2 November
1973), United Nations, Treaty Series, vol. 1340, No. 22484, p. 184; Protocol of 1978 relating to
the International Convention for the Prevention of Pollution from Ships, 1973 (London,
17 February 1978), ibid., vol. 1340, No. 22484, p. 61; Protocol of 1997 to amend the
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto (London, 26 September 1997), United Nations, Juridical
Yearbook 1997 (Sales No. E.02.V.1), p. 300.
554 Regulation 9, “Control of discharge of oil”, para. 1 (a) (ii).
555 Ibid., para. 1 (b) (ii).
556 Regulation 10, “Methods for the prevention of oil pollution from ships while operating in special
areas”, para. 3 (a) (iii) (emphasis added).
557 Regulation 15, “Retention of oil on board”, para. 5.
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less than 12 nautical miles from the nearest land and in a depth of water of not less
than 25 metres”.558 Annex IV, entitled “Regulations for the prevention of pollution
by sewage from ships”, also includes the same definition as presented in annex I and
used for the other annexes, as well as references to “nearest land” in regulation 8,
entitled, “Discharge of sewage” (“a distance of more than four nautical miles from
the nearest land”, “a distance of more than 12 nautical miles f rom the nearest
land”).559 Annex V, entitled “Regulations for the prevention of pollution by garbage
from ships”, repeats the definition of the “nearest land” and includes references
thereto in regulation 3, “Disposal of garbage outside special areas” (“if the distance
from the nearest land is less than: (i) 25 nautical miles …; (ii) 12 nautical miles …”;
“as far as practicable from the nearest land but in any case is prohibited if the distance
from the nearest land is less than 3 nautical miles”),560 as well as in regulation 5,
“Disposal of garbage within special areas” (“not less than 12 nautical miles from the
nearest land”).561
256. The “nearest land” is defined as the “baseline … established in accordance with
international law”.562 The analysis of the provisions of International Convention for
the Prevention of Pollution from Ships shows that this instrument does not require the
adjustment of baselines in certain circumstances. At the same time, ambulatory
baselines would not affect the implementation of this Convention (since the baseline
is the mark for measuring the distances set forth in the Convention), while the option
of fixed baselines, although not affecting the implementation of the Convention,
would mean that the coastline (which recedes in case of sea-level rise) would be at a
greater distance from the (frozen) baseline and consequently from the limit of the area
beyond which the discharge of oil, noxious liquid substances, sewage and garbage is
permitted in accordance with the strict conditions established by the Convention.
Accordingly, from the perspective of the protection of coastal environment (and land
territory of the coastal State) from pollution from ships, the option of fixed baselines
produces a more favourable effect in terms of fulfilling (at least part of) the object
and purpose of the Convention, as reflected in the preamble of the Convention: “the
need to preserve the human environment in general and the marine environment in
particular”.
__________________
558 Regulation 5, “Discharge of noxious liquid substances”, paras. 1 (c), 2 (e), 3 (e), 4 (c), 7 (c),
8 (e), and 9 (e). Paragraph 4 (c) alone does not include the reference to “the depth of water of not
less than 25 metres”.
559 Regulation 8, “Discharge of sewage”, para. 1 (a): “(1) Subject to the provisions of Regulation 9
of this Annex, the discharge of sewage into the sea is prohibited, except when: ( a) The ship is
discharging comminuted and disinfected sewage using a system approved by the Administration
in accordance with Regulation 3 (l) (a) at a distance of more than four nautical miles from the
nearest land, or sewage which is not comminuted or di sinfected at a distance of more than 12
nautical miles from the nearest land …”.
560 Regulation 3, “Disposal of garbage outside special areas”, para. 1 (b): “The disposal into the sea
of the following garbage shall be made as far as practicable from the ne arest land but in any case
is prohibited if the distance from the nearest land is less than: (i) 25 nautical miles for dunnage,
lining and packing materials which will float; (ii) 12 nautical miles for food wastes and all other
garbage including paper prod ucts, rags, glass, metal, bottles, crockery and similar refuse”; and
para. 1 (c): “Disposal into the sea of garbage specified in sub -paragraph (b)(ii) of this Regulation
may be permitted when it has passed through a comminuter or grinder and made as far as
practicable from the nearest land but in any case is prohibited if the distance from the nearest
land is less than 3 nautical miles”.
561 Regulation 5, “Disposal of garbage within special areas”, para. 2 (b): “Disposal into the sea of
food wastes shall be made as far as practicable from land, but in any case not less than 12
nautical miles from the nearest land.”
562 Annex I, regulation 1, para. 2, and annex V, para. 2.
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257. The 1969 International Convention relating to Intervention on the High Seas in
Cases of Oil Pollution Casualties563 – also an IMO instrument – includes references
to the high seas. Its preamble includes references to “the need to protect the interests
of their peoples against the grave consequences of a maritime casualty resulting in
danger of oil pollution of sea and coastlines” and “measures of an exceptional
character to protect such interests might be necessary on the high seas and that these
measures do not affect the principle of freedom of the high seas”. In addition,
article 1, paragraph 1, provides that:
Parties to the present Convention may take such measures on the high seas as
may be necessary to prevent, mitigate or eliminate grave and imminent danger
to their coastline or related interests from pollution or threat of pollution of the
sea by oil, following upon a maritime casualty or acts related to such a casualty,
which may reasonably be expected to result in major harmful consequences.
In the case of an ambulation of baselines, following sea-level rise, the maritime zones
(territorial sea, exclusive economic zone) of the coastal States would remain the
same, while the high seas would extend in surface. It is difficult to assess in exact
terms to what extent an extension of the surface of the high seas would impact upon
the obligations of the coastal State as provided for in the Convention, but, in principle,
since the surface is larger, the efforts of the coastal State to intervene would be
greater. In the case of fixed baselines, decided as a measure to respond to the effects
of sea-level rise, there is no change in the position of (limits of) maritime zones and
high seas (nor in the latter’s surface), so there is no alteration to the regime set forth
in the Convention, while coastlines will be physically at a greater distance from the
place of pollution, a situation which produces a more favourable effect in terms of
fulfilling of the object and purpose of the Convention.
258. The 1972 Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter,564 another IMO instrument, does not distinguish between
various maritime zones, with few exceptions: according to article III, paragraph 3,
sea means “all marine waters other than the internal waters of States”; article VII,
paragraph 1 (b), includes a mention of “vessels and aircraft loading in its territory or
territorial seas matter which is to be dumped”. An ambulation of the baselines would
have as effect the change in position of both internal wa ters and territorial sea of the
coastal State, which would have an impact upon the location of the loading of the
matter to be dumped: locations that used to be in the territorial sea may, after
ambulation, be in the exclusive economic zone, with the consequence of diminishing
the jurisdiction of the coastal State, which, according to the Convention, has to apply
measures to vessels and aircraft loading in territorial sea. The option of fixed
baselines does not change the position of maritime zones and consequently does not
affect the implementation of the Convention.
259. The 1990 International Convention on Oil Pollution Preparedness, Response and
Cooperation 565 – also an IMO instrument – includes references to “coastline”
(preamble and art. 2, para. 2), “coastal State” (e.g., art. 4), but no reference to
baselines or maritime zones.
__________________
563 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties (Brussels, 29 November 1969), United Nations, Treaty Series, vol. 970, No. 14049, p. 211.
564 Convention on the Prevention of Marine Pollution by Dumpi ng of Wastes and Other Matter
(London, Mexico City, Moscow and Washington, 29 December 1972), United Nations, Treaty
Series, vol. 1046, No. 15749, p. 120.
565 International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990
(London, 30 November 1990), United Nations, Treaty Series, vol. 1891, No. 32194, p. 51.
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260. The 2000 Protocol on Preparedness, Response and Co-operation to Pollution
Incidents by Hazardous and Noxious Substances, 566 another IMO instrument, refers
to “marine environment” and “coastline”, but it does not include any reference to
baselines and maritime zones.
261. The 2001 International Convention on the Control of Harmful Anti -fouling
Systems on Ships, 567 also an IMO instrument, refers to “marine environment”
(preamble) and “sea-bed and subsoil thereof adjacent to the coast over which the
coastal State exercises sovereign rights for the purposes of exploration and
exploitation of their natural resources” (art. 2, para. 1), but makes no other reference
to baselines or maritime zones.568
262. The 2004 International Convention for the Control and Management of Ships ’
Ballast Water and Sediments, 569 another IMO treaty, includes a reference to
“exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast
over which the coastal State exercises sovereign rights for the purposes of exploration
and exploitation of its natural resources” (art. 1, para. 1), “waters under the
jurisdiction of [a] Party” (e.g., art. 3, para. 2, and art. 6), but no other reference to
baselines or maritime zones, 570 with the exception of a reference to high seas in
paragraph 4 of regulation A-3, “Exceptions” (contained in the annex to the
Convention). Regulation B-4, entitled “Ballast water exchange”, includes references
to the “nearest land” (“at least 200 nautical miles from the nearest land” and “at least
50 nautical miles from the nearest land” (paras. 1.1 and 1.2, respectively)). The
reasoning set forth above (para. 228 above) in connection with the similar provisions
of the International Convention for the Prevention of Pollution from Ships is thus also
applicable here.
263. The Hong Kong International Convention for the Safe and Environmentally
Sound Recycling of Ships, 2009, 571 also an IMO treaty, includes no references to
baselines and maritime zones.
264. The 1979 International Convention on Maritime Search and Rescue, 572 a further
IMO treaty, contains no reference to baselines. It includes, like other IMO treaties, a
no prejudice provision 573 in relation to the (then future) the United Nations
__________________
566 Protocol on Preparedness, Response and Co -operation to pollution Incidents by Hazardous and
Noxious Substances (London, 15 March 2000), IMO, OPRC–HNS Protocol, London, 2002.
567 International Convention on the Control of Harmful Anti -fouling Systems on Shi ps (London,
5 October 2001), IMO document AFS/CONF/26, annex.
568 Article 15 states that, “[n]othing in this Convention shall prejudice the rights and obligations of
any State under customary international law as reflected in the United Nations Convention on the
Law of the Sea.”
569 International Convention for the Control and Management of Ships ’ Ballast Water and Sediments
(London, 13 February 2004), IMO document BWM/CONF/2004, annex.
570 Article 16 states that, “[n]othing in this Convention shall preju dice the rights and obligations of
any State under customary international law as reflected in the United Nations Convention on the
Law of the Sea.”
571 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of
Ships, 2009 (Hong Kong, China, 15 May 2009), International Maritime Organization, document
SR/CONF/45, annex.
572 International Convention on Maritime Search and Rescue (Hamburg, 27 April 1979), United
Nations, Treaty Series, vol. 1405, No. 23489, p. 97.
573 Art. II: “(1) Nothing in the Convention shall prejudice the codification and development of
the law of the sea by the United Nations Conference on the Law of the Sea convened
pursuant to resolution 2750 (XXV) of the General Assembly of the United Nations ’
nor the present or future claims and legal views of any State concerning the law of
the sea and the nature and extent of coastal and flag State jurisdiction.
(2) No provision of the Convention shall be construed as prejudicing obligations or
rights of vessels provided for in other international instruments.”
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Convention on the Law of the Sea. The annex thereto refers to notions like “Search
and rescue region”, which is “an area of defined dimensions within which search and
rescue services are provided” (para. 1.3.1), which “shall be established by agreement
among Parties concerned” (para. 2.1.4); paragraph 2.1.7 specifies that “[t]he
delimitation of search and rescue regions is not related to and shall not prejudice the
delimitation of any boundary between States”. Chapter 3, entitled “Cooperation”, of
the annex includes a number of references to the permission to be granted by a party
for rescue units of other parties to enter the former’s territorial sea. Neither the
ambulation of baselines, nor the option of fixed baselines affect the implementation
of the Convention since the reference therein is to “territorial sea” and not to the coast
(even if in the case of ambulation, the territorial sea “moves” landward, while the
option of fixed baselines “maintains” the territorial sea within the same coordinates).
265. The 2001 Convention on the Protection of the Underwater Cultural Heritage 574
of the United Nations Educational, Scientific and Cultural Organization includes in
article 1, paragraph 5, a reference to “area” as “the seabed and ocean floor and subsoil
thereof, beyond the limits of national jurisdiction”, while articles 11 and 12 set forth
the obligation of States parties to report, notify and protect underwater cultural
heritage in the Area. Article 3 includes a no prejudice provision575 in relation to the
United Nations Convention on the Law of the Sea. Articles 7 to 10 include references
to maritime zones and the obligations of States parties under the Convention in
relation to each such zone. Article 7 refers to internal waters, archipelagic waters and
territorial sea; article 8 to the contiguous zone and articles 9 and 10 to reporting,
notifying of and protecting underwater cultural heritage in the exclusive economic
zone and on the continental shelf. Article 29, on “Limitations to geographical scope”,
regulates the possibility for States parties to make a declaration at the time of
ratifying, accepting, approving or acceding to this Convention, “that this Convention
shall not be applicable to specific parts of its territory, internal waters, archipelagic
waters or territorial sea”, and provides that such States parties shall “promote
conditions under which this Convention will apply to the areas specified in its
declaration”. Since the legal regime applicable is different depending on the maritime
zone where the location of a discovery of underwater cultural heritage is, an
ambulatory system of baselines in case of sea-level rise could result in the change of
the maritime zone of the mentioned location and, consequently, of the legal regime
to be applied, while the option of fixed baselines has the advantage of ensuring the
legal stability of the regime under the Convention.
266. As to the treaties relating to fisheries management, the instruments listed were
examined.
267. The World Trade Organization 2022 Agreement on Fisheries Subsidies 576
includes a reference to the jurisdiction of a coastal member or a coastal nonmember577
and to the exclusive economic zone.578 Article 11, paragraph 2 (b), refers
__________________
574 Convention on the Protection of the Underwater Cultural Heritage (Paris, 2 November 2001),
United Nations, Treaty Series, vol. 2562 – Part I, No. 45694, p. 3.
575 “Nothing in this Convention shall prejudice the rights, jurisdiction and duties of States under
international law, including the United Nations Convention on the Law of the Sea. This
Convention shall be interpreted and applied in the co ntext of and in a manner consistent with
international law, including the United Nations Convention on the Law of the Sea.”
576 Agreement on Fisheries Subsidies (Geneva, 17 June 2022), World Trade Organization document
WT/MIN(22)/33–WT/L/1144, annex.
577 Art. 5, para. 1: “No Member shall grant or maintain subsidies provided to fishing or fishing related
activities outside of the jurisdiction of a coastal Member or a coastal non -Member and outside the
competence of a relevant [Regional Fisheries Management Organization or Arrangement].”
578 Art. 8, para. 1 (b) (i), footnote 14: “The term ‘shared stocks ’ refers to stocks that occur within the
[exclusive economic zones] of two or more coastal Members, or both within the [exclusive
economic zone] and in an area beyond and adjacent to it.”
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to “territorial claims or delimitation of maritime boundaries”. 579 A landward
ambulatory baseline because of sea-level rise could have as a consequence that a
certain fish stock that used to be in the exclusive economic zone of a State could end
up outside that maritime zone or that State’s jurisdiction, while a fixed baseline has
the advantage of preserving the maritime zones within the same coordinates, thus
preserving the respective fish stocks and the legal stability of the regime under the
Convention.
268. The 1966 International Convention for the Conservation of Atlantic Tunas580
defines in article I the “area to which this Convention shall apply” as “all waters of
the Atlantic Ocean, including the adjacent Seas”, and includes a reference to
territorial sea in article IX, by which the parties commit to setting up “a system of
international enforcement to be applied to the Convention area except the territorial
sea and other waters, if any, in which a State is entitled under international law to
exercise jurisdiction over fisheries” (para. 3). A landward ambulatory baseline
because of sea-level rise could have as a consequence that the area of water to which
such a system of enforcement would apply expands to areas formerly within the
territorial sea and “other waters, if any, in which a State is entitled under international
law to exercise jurisdiction over fisheries”. While from the perspective of the legal
regime set forth by the Convention this situation may be seen as an advantage, it
might not be the same from the perspective of the coastal State. In the case of fixed
baselines, the maritime zones remain within the same coordinates, so the enforcement
system mentioned continues to be implemented in the same area as before sea -level
rise.
269. The 1978 Convention on Cooperation in the Northwest Atlantic Fisheries 581
refers to exclusive economic zones, to coastal State (defined in article I (c), as “a
Contracting Party having an exclusive economic zone within the Convention Area”,
which is defined by geographic coordinates in article IV), to “conservation and
management of fishery resources and their ecosystems within areas under the
jurisdiction of that coastal State” (art. VII, para. 10 (b)). It also includes a no prejudice
provision582 in relation to the United Nations Convention on the Law of the Sea. A
similar assessment, adapted to the specificity of this Convention, as to the
International Convention for the Conservation of Atlantic Tunas, analysed above, is
valid for this one as well.
270. The 1993 Agreement for the Establishment of the Indian Ocean Tuna
Commission 583 has no explicit references to baselines and maritime zones, but
includes, in its article XVI on “Coastal States’ rights”, a no prejudice provision: “This
Agreement shall not prejudice the exercise of sovereign rights of a coastal state in
accordance with the international law of the sea for the purposes of exploring and
__________________
579 “A panel established pursuant to Article 10 of this Agreement shall make no findings with
respect to any claim that would require it to base its findings on any asserted territorial claims or
delimitation of maritime bounda ries.”
580 International Convention for the Conservation of Atlantic Tunas (Rio de Janeiro, 14 May 1966),
United Nations, Treaty Series, vol. 673, No. 9587, p. 63.
581 Convention on Cooperation in the Northwest Atlantic Fisheries (Ottawa, 24 October 1978), ibid.,
vol. 1135, No. 17799, p. 369. For the consolidated version, see Northwest Atlantic Fisheries
Organization, Convention on Cooperation in the Northwest Atlantic Fisheries , Halifax, Canada, 2020.
582 Art. XXI, para. 2: “Nothing in this Convention shall prejudice t he rights, jurisdiction and duties
of Contracting Parties under the 1982 Convention or the 1995 Agreement [for the
Implementation of the Provisions of the United Nations Convention on the Law of the Sea of
10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks]. This Convention shall be interpreted and applied in the context
of and in a manner consistent with the 1982 Convention and the 1995 Agreement.”
583 Agreement for the Establishment of t he Indian Ocean Tuna Commission (Rome, 25 November
1993), United Nations, Treaty Series, vol. 1927, No. 32888, p. 329.
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exploiting, conserving and managing the living resources, including the highly
migratory species, within a zone of up to 200 nautical miles under its jurisdiction.”
That provision makes implicit reference to the baselines from which this distance is
usually measured. In the case of a landward ambulatory baseline because of sea -level
rise, the outer limit of this zone of 200 nautical miles would also move landward, thus
possibly leaving species previously under the jurisdiction of the coastal State outside
it. In the case of a fixed baseline, the respective zone remains within the same
parameters and the regime provided by the Convention enjoys legal stability.
271. The 2003 Convention for the Strengthening of the Inter-American Tropical Tuna
Commission Established by the 1949 Convention between the United States of
America and the Republic of Costa Rica584 includes in its preamble a reference to “the
sovereign rights of coastal States for the purpose of exploring and exploiting,
conserving and managing the living marine resources within areas under national
jurisdiction as provided for in [the United Nations Convention on the Law of the Sea],
and the right of all States for their nationals to engage in fishing on the high seas in
accordance with [that Convention]”. It also has a no prejudice provision in article V:
1. Nothing in this Convention shall prejudice or undermine the sovereignty or
sovereign rights of coastal States related to the exploration and exploitation,
conservation and management of the living marine resources within areas under
their sovereignty or national jurisdiction as provided for in [the United Nations
Convention on the Law of the Sea], or the right of all States for their nationals
to engage in fishing on the high seas in accordance with [the United Nations
Convention on the Law of the Sea].
2. The conservation and management measures established for the high seas and
those adopted for areas under national jurisdiction shall be compatible, ….
Article XVII also mentions that, “[n]o provision of this Convention may be
interpreted in such a way as to prejudice or undermine the sovereignty, sovereign
rights, or jurisdiction exercised by any State in accordance with international law, as
well as its position or views with regard to matters relating to the law of the sea.”
Article XX, paragraph 3, sets forth that, “each Party shall take such measures as may
be necessary to ensure that vessels flying its flag do not fish in areas under the
sovereignty or national jurisdiction of any other State in the Convention Area without
the corresponding license, permit or authorization issued by the competent authorities
of that State” Article XXIII, paragraph 1, refers to the support to be granted to
developing States “to enhance their ability to develop fisheries under their respective
national jurisdictions and to participate in high seas fisheries on a sustainable basis”
There are no other references in this Convention to baselines and maritime zones.
Based on the above, this Convention does not therefore require the adjustment of
baselines in certain circumstances, but a change of baselines would entail a change
of position of maritime zones (“areas under sovereignty or national jurisdiction”),
which would result in a change to the regime applicable, while fixed baselines would
ensure the legal stability of the implementation of the Convention.
272. A review of the 13 sustainable fisheries partnership agreements concluded by
the European Commission on behalf of the European Union with non-European Union
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584 Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established
by the 1949 Convention between the United States of America and the Republic of Costa -Rica
(Washington, 14 November 2003), Treaties and Other International Acts , Series 16 -325.1.
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countries585 (out of which 9 are tuna agreements586 and 4 are mixed agreements)587
revealed the conclusions below. (The analysis below is presented in a more detailed
way for the first three agreements, selected as examples, while for the rest it is
presented in a more concise manner, since their provisions are quite similar.)
273. The 2006 Fisheries Partnership Agreement with Cabo Verde588 mentions that the
latter “exercises its sovereign rights or jurisdiction over a zone extending up to 200
nautical miles from the baselines in accordance with the United Nations Convention
on the Law of the Sea” (preamble), but the area where the Agreement applies is
defined as “the territories in which the Treaty establishing the European Community
applies, under the conditions laid down in that Treaty, and … to the territory of Cape
Verde” (art. 10), which is quite imprecise. At the same time, article 2 (c) mentions
that, “‘Cape Verde waters’ means the waters over which Cape Verde has sovereignty
or jurisdiction” and chapter 2 of the annex to the implementing Protocol mentions
that “Community vessels may carry out fishing activities … beyond 12 nautical miles
from the baselines”. This means that, in the case of a landward ambulatory baseline
because of sea-level rise, the fishing area also moves landward, while in the case of
fixed baselines the fishing area remains within the same coordinates, thus staying at
a greater distance from the coast.
274. The 2007 Fisheries Partnership Agreement with Côte d’Ivoire has similar
provisions.589 For instance, article 2 (c) defines “Côte d’Ivoire’s fishing zone” as “the
waters over which, as regards fisheries, Côte d’Ivoire has sovereignty or jurisdiction”,
while the area to which the Agreement applies is defined in similar terms as in the
Cabo Verde agreement cited above. Chapter 2 of the annex to the implementing
Protocol contains an almost identical text: “Community vessels may carry out fishing
activities in waters beyond 12 nautical miles from the base lines in the case of tuna
seiners and surface longliners.” The same reasoning as set forth above is thus valid.
275. Similar provisions are included in the 2016 Fisheries Partnership Agreement
with the Cook Islands: 590 the recognition in the preamble of the fact that “Cook
Islands exercises its sovereign rights or jurisdiction over a zone extending up to 200
nautical miles from the baseline in accordance with the United Nations Convention
on the Law of the Sea”, the definition of the Cook Islands “fishery waters” as “the
waters over which the Cook Islands have sovereign rights or fisheries jurisdiction”
(art. 1 (f)); and the same definition of the area of application by reference to the
territory of European Union and the Cook Islands (art. 10). Chapter I, section 2,
paragraph 1, of the annex to the implementing Protocol refers to the fishing areas:
“Union vessels … shall be authorised to engage in fishing activities in the Cook
Islands’ fishing areas, meaning the Cook Islands’ fishery waters except protected or
prohibited areas. The coordinates of the Cook Islands’ fishery waters and of protected
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585 See https://oceans-and-fisheries.ec.europa.eu/fisheries/international -agreements/sustainablefisheries-
partnership -agreements-sfpas_en.
586 Concluded with Cabo Verde, the Cook Islands, Côte d ’Ivoire, Gabon, the Gambia, Mauritius, Sao
Tome and Principe, Senegal and Seychelles. These agreements allow European Union vessels to
pursue migrating tuna stocks as they move along the shores of Africa and through the Indian Ocean.
587 Concluded with Guinea-Bissau, Mauritania and Morocco, and Greenland. These agreements
provide access for European Union vessels to a wide range of fish stocks in the partner country ’s
exclusive economic zone.
588 Fisheries Partnership Agreement between the European Community and the Republic o f Cabo
Verde (Brussels, 19 December 2006), Official Journal of the European Union, L 414, p. 3.
589 Fisheries Partnership Agreement between the European Community and the Republic of Côte
d’Ivoire on fishing in Côte d’Ivoire’s fishing zones for the period from 1 July 2007 to 30 June
2013 (Brussels, 12 February 2008), ibid., L 48, p. 41.
590 Sustainable Fisheries Partnership Agreement between the European Union and the Government
of the Cook Islands (Brussels, 29 April 2016), ibid., L 131, p. 3.
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areas or closed fishing areas shall be communicated by the Cooks Islands to the Union
…”. The same reasoning as laid out above is applicable.
276. Similar provisions can be found in the other Fisheries Partnership Agreements,
with certain nuances. For instance, in the annex to the 2021 implementing Protocol
of Fisheries Partnership Agreement concluded in 2007 with Gabon, 591 chapter 1,
section 2, states that:
2.1. The coordinates of the Gabonese fishing zone covered by this Protocol are
set out in Appendix 1. Before the start of the provisional application of this
Protocol, Gabon shall inform the Union of the geographical coordinates of the
baselines of the Gabonese fishing zone and of all zones which are closed to
navigation and fishing.
2.2. Union vessels may not engage in fishing activities within a band of 12
nautical miles from the baselines.
…
The same reasoning as set forth above is applicable. Another Agreement, concluded
in 2021 with Greenland (and Denmark), 592 provides that the “Parties hereby
undertake to secure continued sustainable fishing in the Greenlandic [exclusive
economic zone] in line with [the United Nations Convention on the Law of the Sea]
provisions” (art. 3, para. 1); in the annex to the Protocol implementing the
Agreement, 593 chapter I, paragraph 3, regulates the fishing zone: the exclusive
economic zone and the baselines are defined by reference to domestic legislation,
while “the fishery shall take place at least 12 nautical miles off the baseli ne”. Again,
the same reasoning as noted above is applicable.
277. Similar provisions can be found in the Fisheries Partnership Agreements
concluded in 2007 with Guinea-Bissau (implementing Protocol from 2019), 594
Mauritania (2021 Agreement and implementing Protocol), 595 Mauritius (2012
Agreement and 2017 Protocol), 596 Morocco (2019 Agreement and implementing
__________________
591 Fisheries Partnership Agreement between the Gabonese Republic and the European Community
(Luxembourg, 16 April 2007), ibid., L 109, p. 1, and Implementing Protocol to the Fisheries
Partnership Agreement between the Gabonese Republic and the European Community ( 2021–
2026) (Brussels, 29 June 2021), ibid., L 242, p. 5.
592 Sustainable Fisheries Partnership Agreement between the European Union, of the one part, and
the Government of Greenland and the Government of Denmark, of the other part (Brussels,
22 April 2021), ibid., L 175, p. 3.
593 Protocol Implementing the Sustainable Fisheries Partnership Agreement between the European
Union, of the one part, and the Government of Greenland and the Government of Denmark, of
the other part (Brussels, 18 May 2021 ), ibid., p. 14.
594 Fisheries Partnership Agreement between the European Community and the Republic of Guinea -
Bissau for the period 16 June 2007 to 15 June 2011 (Brussels, 4 December 2007), ibid., L342,
p. 5, and Protocol on the implementation of that Agr eement (Brussels, 15 June 2019), ibid.,
L 173, p. 3. The annex to the Protocol provides in chapter I, paragraph 2, that “The baselines
shall be defined by national legislation.”
595 Partnership Agreement on sustainable fisheries between the European Union and the Islamic
Republic of Mauritania (Brussels, 15 November 2021), ibid., L 439, p. 3, and Protocol
implementing that Agreement, ibid., p. 14. In accordance with appendix 1 to annex III of that
Protocol, the Mauritanian fishing zone is defined by geograp hic coordinates, so the ambulation
or fixing of baselines can have no effect on this fishing zone.
596 Fisheries Partnership Agreement between the European Union and the Republic of Mauritius
(Brussels, 21 December 2012), ibid., L 79, p. 3, and Protocol s etting out the fishing opportunities
and the financial contribution provided for by the Fisheries Partnership Agreement between the
European Union and the Republic of Mauritius (Brussels, 23 October 2017; no longer in force),
ibid., L 279, p. 3. The annex to the Protocol defines, in chapter I, paragraph 2, “Mauritius
waters” “as beyond 15 nautical miles from the baselines”.
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Protocol),597 São Tome and Principe (2007 Agreement and 2019 Protocol), 598 Senegal
(2014 Agreement and 2019 Protocol), 599 Seychelles (2020 Agreement and
Protocol),600 and the Gambia (2019 Agreement and Protocol).601
278. The conclusion of this analysis is that these fisheries agreements concluded by
European Union with 13 States do not require the adjustment of baselines, although
they do not forbid such adjustment. As already mentioned above, a change of
baselines entails a change of maritime zones, but it affects the implementation of the
agreements: in the case of a landward ambulatory baseline because of sea-level rise,
the fishing area also moves landward. In the case of the application of fixed baselines,
the fishing area remains within the same coordinates, thus staying at a greater distance
from the coast. At the same time, in the specific cases of those agreements that define
the fishing zones by geographic coordinates expressly mentioned in the text, the
ambulation or fixing of baselines can have no effect on this fishing zone.
279. The reading of the regulation B-440, entitled, “International boundaries and
national limits” of the International Hydrographic Organizat ion,602 which presents, in
a descriptive manner, the various maritime zones and other notions/concepts related
to them, including baselines and limits of maritime zones, did not reveal any reference
to a permission or requirement (or not) of the adjustment of baselines in certain
circumstances.
280. In conclusion, as observations of a preliminary nature, sources of law other than
the United Nations Convention on the Law of the Sea, as examined in the present
chapter, are of very limited, if any, relevance.
__________________
597 Sustainable Fisheries Partnership Agreement between the European Union and the Kingdom of
Morocco (Brussels, 14 January 2019), ibid., L 77, p. 8, and Protocol on the implementation of
that Agreement, ibid., p. 18. The Agreement defines the fishing zone by coordinates.
598 Fisheries Partnership Agreement between the Democratic Republic of São Tomé and Príncipe
and the European Community (Brussels, 23 July 2007), ibid., L 205, p. 36, and Protocol on the
implementation of that Agreement (Brussels, 19 December 2019), ibid., L 333, p. 3. Chapter I,
paragraph 2, of the annex to the Protocol defines the fishing zone by reference to exclusive
economic zone of Sao Tome and Principe, “with the exception of areas reserved for small‐scale
and semi-industrial fishing”, and mentions that “the coordinates of the [exclusive economic
zone] shall be those notified to the United Nations on 7 May 1998”.
599 Agreement on a Sustainable Fisheries Partnership between the European Union and the Republic
of Senegal (Luxembourg, 8 October 2014), ibid., L 304, p. 3, and Protocol on the implementation
of that Agreement (Brussels, 14 November 2019), ibid., L 299, p. 13. The annex to the Protocol
defines, in chapter I, paragraph 2, the “Senegalese fishing zones” as “those parts of Senegalese
waters in which Senegal authorises Union fishing vessels to carry out fishing activities”, and
mentions that “[t]he geographical coordinates of the Senegalese fishing zones and the baselines
shall be communicated to the Union … in accordance with Senegalese legislation” .
600 Sustainable Fisheries Partnership Agreement between the European Union and the Republic of
Seychelles (Brussels, 20 February 2020), ibid., L 60, p. 5, and Protocol on the implementation of
that Agreement, ibid., p. 15. According to the Agreement, art icle 2 (e), “the Seychelles fishing
zone” means “the part of the waters under the sovereignty or jurisdiction of Seychelles, in
accordance with the Maritime Zones Act and other applicable laws of Seychelles …”.
601 Sustainable Fisheries Partnership Agreeme nt between the European Union and the Republic of
the Gambia (Brussels, 31 July 2019), ibid., L 208, p. 3, and Protocol on the implementation of
that Agreement, ibid., p. 11. The annex to the Protocol defines in chapter I, paragraphs 2 and 3,
the Gambian fishing zone by “geographic coordinates”, which shall be notified by the Gambian
authorities to the Union services, together with “the geographical coordinates of the Gambian
baseline” and of “zones closed to shipping and fishing”.
602 International Hydrographic Organization, Regulations of the IHO for International (Int) Charts
and Chart Specifications of the IHO, ed. 4.8.0 (Monaco, 2018), pp. 265 –268. Available at
https://iho.int/iho_pubs/standard/S -4/S4_V4-8-0_Oct_2018_EN.pdf
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XIII. Future work of the Study Group
281. In 2024, the Study Group will revert to the subtopics of issues related to
statehood and those related to the protection of persons affected by sea-level rise. In
2025, the Study Group will then seek to finalize a substantive report on the topic as a
whole by consolidating the results of the work undertaken.