International Law and Litigation on Climate Change

Facts and Figures

Global warming reaching 1.5ºC in the near-term would cause unavoidable increases in multiple climate
hazards and present multiple risks to ecosystems and humans. Global warming of 1.5ºC and 2ºC will be
exceeded during the 21st century unless deep reductions in carbon dioxide (CO2) and other greenhouse gas
emissions occur in the coming decades. Artic seems to be warming nearly four times faster than the rest of
the world. Sea level rise up to 1 meter under the very high emissions scenario, possibly approaching 2
meters by 2100 and 5 meters by 2150.
Law is indeed the most effective way to induce human behavior, even more than other governmental
mechanisms.
Possible solutions
Reduction of GHG emissions: (1) reductions of fossil fuel combustion by stationary and mobile sources (…)
The international climate change regime started in the 90’s. they stated that climate change was real, and
something was needed to be done. The first agreement was UNFCCC in 1992 followed by Kyoto-protocol in
1997 – emissions 2008-2020 (all the countries needed to reduce emissions being the first compliance period
being a 5%; and on the second an average of 18%) and the Paris Agreement in 2015. Iceland has never
reached any objective of the Kyoto-protocol. Therefore, the Paris Agreement had a very different
methodology.
National legal regimes (EU): the flood wave. They have decided to be the global leaders regarding
sustainability. It is a package of all the sustainable regulations to be applied. Through the flood wave,
business will have to disclosure more information than before, being that the main principle of the Paris
Agreement.
The Conference of the Parties (COP) is the supreme decision-making body of the Convention. All States that
are Parties to the Convention are represented at the COP, at which they review the implementation of the
Convention and any other legal instruments that the COP adopts and take decisions necessary to promote
the effective implementation of the Convention, including institutional and administrative arrangements.
The more debated topic in this conference is whether and how climate change regulations shall be followed
and addressed.
The Paris Agreement is a legally binding international treaty on climate change. It was adopted by 196
Parties at COP 21 in Paris, on 12 December 2015 and entered into force on 4 November 2016. Its goal is to
limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels. To
achieve this long-term temperature goal, countries aim to reach global peaking of greenhouse gas emissions
as soon as possible to achieve a climate neutral world by mid-century. Now countries can act as they want to
under a few norms. Trump exited the Paris Agreement ☹
The goals of the Paris Agreement is (art.2.1) hold temperature increase well below 2º, adaptation and
financial flow (mostly duties of richer countries and global cooperation on climate resilience). Art.2.2.
implementation of the agreement will reflect equity and the principle of common but differentiated
responsibilities and respective capabilities in the light of different countries liabilities.
The temperature goal goes further than previous goals. Holding the increase in the global average
temperature to well below 2ºC above pre-industrial levels and pursuing efforts to limit the temperature
increases to 1.5ºC. This result of a political compromise.
Legal nature of the Paris Agreement: innovative approach to implementation of legal duties and political
interplay – bottom-up vs top-down. There is no duty regarding actions to be implemented. It is more about
principles: there is no enforce mechanism, therefore, if countries do not well, they would only be shamed.
The conclusion was that there is no way to enforce the provisions, thus countries can do as they seem fit.
The clockwork of the Paris Agreement: (1) new NDC’s every 5 years, (2) disclosure of information regarding
efforts and results, (3) review of NDC’s and (4) global stock takes every 5 years. The Nationally Determined
Contributions (NDCs) are general duties of ambitious efforts (see art.3: As nationally determined
contributions to the global response to climate change, all Parties are to undertake and communicate
ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose of this
Agreement as set out in Article 2. The efforts of all Parties will
represent a progression over time, while recognizing the need
to support developing country Parties for the effective
implementation of this Agreement). There is a duty to
prepare, communicate and maintain successive NDCs.
Parties have a lot of scope to implement their goals,
including which greenhouse gases, sources and receivers are covered by their NDCs. This makes comparison
between parties complicated.
NCDs Examples
- Iceland: Iceland is committed to a target of 55 per cent net reduction of greenhouse gas emissions
by 2030 compared to 1990, acting jointly with the European Union and its Member States and
Norway to achieve this target, within the framework of their climate cooperation agreement.
- Japan: Japan aims to reduce its greenhouse gas emissions by 46 percent in fiscal year 2030 from its
fiscal year 2013 levels, setting an ambitious target which is aligned with the longterm goal of
achieving net-zero by 2050. Furthermore, Japan will continue strenuous efforts in its challenge to
meet the lofty goal of cutting its emission by 50 percent.
- Brazil: commitment to reduce its greenhouse gas emissions in 2025 by 37%, compared with 2005.
Additionally, Brazil commits to reduce its emissions in 2030 by 50%, compared with 2005. Brazil ́s
commitments also include a long-term objective to achieve climate neutrality by 2050.
- Azerbaijan: By 2030 the Republic of Azerbaijan targets 35% reduction in the level of greenhouse gas
emissions compared to 1990/base year as its contribution to the global climate change efforts.
New NDCs every 5 years: Art. 4(9) – Each Party shall communicate a nationally determined contribution
every five years in accordance with decision 1/CP21 and any relevant decisions of the Conference of the
Parties serving as the meeting of the Parties to this Agreement and be informed by the outcomes of the
global stocktake referred to in Article 14. Reflects the agreement's fundamental philosophy of continuous
progress in the policies and actions of the parties in climate matters. Always welcome to enhance level of
ambitions by adjusting existing NDCs. Can it be concluded that the parties are not allowed to set themselves
unchanged or weak goals in the new national contribution?
Disclosure – Transparency: parties work in the open and information about policies, actions and their results
is public, understandable, and easily accessible. Has a key meaning in increasing trust and confidence
between parties and facilitating decision-making. Creates peer pressure: naming and shaming
Global stocktake: 14. gr. - COP takes stock of the implementation of the PA to assess progress (“Global
stocktake“). First 2023 and then every 5 years. Based on best available information and science.
Agreement to act jointly  Art. 4(16-18): Parties, including regional economic integration organizations and
their member States, can reach an agreement to act jointly to determine NDCs. Terms of the agreement,
including the emissions level allocated to each Party, is communicated alongside their NDCs. Each party is
responsible for its own contribution. Iceland and Norway have an agreement with the EU.
Performance monitoring: Evaluation committees of expert’s reviews information submitted by parties (Art.
13(11)). The purpose is to assist the parties to fulfill their obligations. A special multinational process to
discuss the results of the review committees. Expert committee on non-compliance (Article 15(1)). They
usually take the bigger companies and monitor them whether they fulfill the objectives.
Adaptation: along with mitigation efforts, it is necessary to take measures to adapt society to climate
change. The projects overlap in various ways (e.g., Article 7(4)) but are also different. Article 7 is open and
general and includes encouragement and guidance but not specific commitments.
Loss and Damage: Harms from climate change that exceeds adaptive capacity• Whether and how the
international climate change treaty regime should deal with loss and damage, in particular when suffered by
countries that have contributed relatively little to climate change, remains a highly disputed issue. Art. 8 -
Warsaw International Mechanism.
Avenues for litigations
Legal basis for claims against States: specific rights such as the duty to respect human rights on the basis of
the constitution, domestic law and international obligations; tort law which is the duty to take preventive
measures to prevent risk or harm; and public law, which are the general obligations to satisfy the
requirements of law, for instance, under climate acts.
Under domestic litigation there can be individuals or the private sector vs state actors or public or private
actor’s vs corporate actors.
- Massachusetts vs Environmental Protection Agency/EPA (US Supreme Court, 2007): (1) diffuse and
generalized harms, numerous contributors, and long timeframes would not necessarily defeat
litigants’ standing to press claims grounded in climate change; (2) the EPA could not use the
complexity and asserted uncertainty of climate change science as a shield for inaction; (3) laws of
general applicability, adopted without the specific intent to address climate change, can be
interpreted to encompass climate change.
- Urgenda Foundation vs Netherlands: The Dutch climate policy goals were codified in the Dutch
Climate Act. District Court (2015) and Court of Appeal (2018) agreed that the state has an obligation
to reduce emissions by 25% (the SC confirmed the earlier decision by denying that there was a basis
for an appeal to the SC). The conclusion was: the policy of the Dutch state is not sufficient for the
state to protect the rights discussed in articles 2 and 8 of MSE; the state is obliged to respond to
imminent danger due to climate change on the basis of articles 2 and 8 of MSE and the
precautionary principle and international climate commitment; and an international problem, but
each country is responsible for its own part.
- Greenpeace Nordic Association vs Ministry of Petroleum and Energy: The Norwegian government
awarded ten exploration and production licenses to energy companies under the Norwegian
Petroleum Act. Alleged violation of the Norwegian Constitution (Article 112) and Articles 2 and 8 of
the ECHR. Decisions to award licenses were upheld but the Court of Appeal concluded that
international agreements: “contribute to clarifying what is an acceptable tolerance limits and
appropriate measures” and “could therefore be an important element in the overall assessment” of
 whether government conduct complies with Article 112. Supreme Court, however, raised the
standard for judicial review to cases where the duty under article 112 was grossly neglected and
used a contemporaneous interpretation of article 112.
Under international litigation the aim is to protect human rights avenue for groups and individuals, solve
dispute settlement entailing binding decisions in contentious cases and advisory proceedings (advisory
jurisdiction on international courts and tribunals to clarify international law on climate change).
The basis for Jurisdiction is: (1) consent (special agreement or compulsory jurisdiction, such as ICJ optional
clause), (2) mandatory dispute settlement rare in IEL treaties (benefit of bringing disputes under the regime
of human rights or law of the sea), (3) fragmentation and (4) cluster-litigation (Swordfish Case brought
simultaneously in the WTO under GATT and in the ITLOS under UNCLOS).
The litigation bodies under the human rights avenue are European Court of Human Rights, Human Rights
Council, Inter-American Court of HR and African Court on Human and People’s Rights. The most relevant
rights are, for instance, right to life, right to respect for private and family life, right to healthy environment
and rights of the child. Because of these, the substantive obligations on state are to protect human rights
from climate-related harms, mitigate climate change by regulating GHG emissions, cooperate internationally,
address the transboundary impacts of climate change, ensure that human rights are safeguarded in all
mitigation and adaptation activities.
- Sacchi et al. v. Argentina et al. UN Committee on the Rights of the Child 2021: Sixteen children filed a
petition alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the
UN Convention on the Rights of the Child by making insufficient cuts to greenhouse gases and failing
to encourage the world’s biggest emitters to curb carbon pollution. The claim was rejected as
inadmissible because of failure to exhaust local remedies. The Committee accepted that States are
legally responsible for the harmful effects of emissions originating in their territory on children
outside their borders. The fact that all states are causing climate change does not absolve states of
individual responsibility to reduce their own share of emissions. The Committee also found that the
youth are victims of foreseeable threats to their rights to life, health, and culture.
There are advisory proceedings to clarify the law on climate change for instance, obligation to protect the
marine environment, loss of statehood and rights of displaced persons. Advisory jurisdiction:
- Article 65.2 of the Statute of the International Court of Justice (ICJ): the court may give an advisory
opinion on any legal question at the request of whatever body may be authorized by or in
accordance with the Charter of the UN to make such a request.
- Article 138 of the Rules of the International Tribunal for the Law of the Sea (ITLOS): the tribunal may
give an advisory opinion on a legal question if this is provided for by an international agreement
related to the purposes of the Convention.
Contentious Inter-State Disputes:
UNFCCC Article 14. Settlement of Disputes: (1) In the event of a dispute between any two or more
Parties concerning the interpretation or application of the Convention, the Parties concerned shall
seek a settlement of the dispute through negotiation or any other peaceful means of their own
choice. (2) When ratifying, accepting, approving or acceding to the Convention, or at any time
thereafter, a Party which is not a regional economic integration organization may declare in a
written instrument submitted to the Depositary that, in respect of any dispute concerning the
interpretation or application of the Convention, it recognizes as compulsory ipso facto and without
 special agreement, in relation to any Party accepting the same obligation: (a) Submission of the
dispute to the International Court of Justice; and/or (b) Arbitration in accordance with procedures to
be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration. (5)
Subject to the operation of paragraph 2 above, if after twelve months following notification by one
Party to another that a dispute exists between them, the Parties concerned have not been able to
settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be
submitted, at the request of any of the parties to the dispute, to conciliation. (6) A conciliation
commission shall be created upon the request of one of the parties to the dispute. The commission
shall be composed of an equal number of members appointed by each party concerned and a
chairman chosen jointly by the members appointed by each party. The commission shall render a
recommendatory award, which the parties shall consider in good faith.
Dispute Settlement under the Paris Agreement: Article 24 – The provisions of Article 14 of the
Convention on settlement of disputes shall apply mutatis mutandis to this Agreement.
Compulsory Jurisdiciton under Article 36(2) of the ICJ Statute: The States parties to the present
Statute may at any time declare that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court
in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international
law; (c) the existence of any fact which, if established, would constitute a breach of an international
obligation; (d) the nature or extent of the reparation to be made for the breach of an international
obligation.
UNCLOS: Compulsory Dispute Settlement; ICJ, ITLOS or arbitral tribunals have jurisdiction over
disputes concerning pollution of the marine environment for 197 parties to UNCLOS ; Art 280.
Settlement of disputes by any peaceful means chosen by the parties; Greenhouse gas emission =
pollution of the marine environment? The Paris Agreement and NDCs potentially relevant for
interpreting relevant UNCLOS provisions?
Pollution of the Marine Environment (UNCLOS article 1.1.4): pollution of the marine
environment means the introduction by man, directly or indirectly, of substances or energy
unto the marine environment, including statuaries, which results or is likely to result in such
deleterious effects as harm to living resources and marine life, hazards to human health,
hindrance to marine activities, including fishing and other legitimate uses of the sea,
impairment of quality for use of sea water and reduction of amenities.
UNCLOS Obligations Relating to Pollution: • Art. 192. States have the obligation to protect and preserve the
marine environment. • Art. 194(1). States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine
environment from any source • Art. 194(2). States shall take all measures necessary to ensure that activities
under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and
their environment, and that pollution arising from incidents or activities under their jurisdiction or control
does not spread beyond the areas where they exercise sovereign rights. • Art. 194(5) Includes measures that
are necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted,
threatened, or endangered species and other forms of marine life.
Relevance of International Rules and Standards
 - UNCLOS Art. 207. Pollution from Land-Based Sources. – States shall adopt laws and regulations to
prevent, reduce and control pollution of the marine environment from land-based sources, including
rivers, estuaries, pipelines, and outfall structures, considering internationally agreed rules, standards
and recommended practices and procedures.
- UNCLOS Art. 212. Pollution from or through the Atmosphere. – States shall adopt laws and
regulations to prevent, reduce and control pollution of the marine environment from or through the
atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or
vessels or aircraft of their registry, considering internationally agreed rules, standards and
recommended practices and procedures and the safety of air navigation.
UNCLOS Art. 192 According to the South China Sea Award: Article 192 thus entails the positive obligation to
take active measures to protect and preserve the marine environment, and by logical implication, entails the
negative obligation not to degrade the marine environment. The corpus of international law relating to the
environment, which informs the content of the general obligation in Article 192, requires that States “ensure
that activities within their jurisdiction and control respect the environment of other States or of areas
beyond national control.” Thus States have a positive “‘duty to prevent, or at least mitigate’ significant harm
to the environment when pursuing large-scale construction activities.”
Duty to Protect Fragile Ecosystems (South China Sea Award): Article 192 imposes a due diligence obligation
to take those measures “necessary to protect and preserve rare or fragile ecosystems as well as the habitat
of depleted, threatened or endangered species and other forms of marine life.” Therefore, in addition to
preventing the direct harvesting of species recognized internationally as being threatened with extinction,
Article 192 extends to the prevention of harms that would affect depleted, threatened, or endangered
species indirectly through the destruction of their habitat [...] failure to take measures to prevent these
practices would constitute a breach of Articles 192 and 194(5).
UNCLOS Choice of Procedure (Art. 287): 1. A State shall be free to choose, by means of a written declaration,
one or more of the following means for the settlement of disputes concerning the interpretation or
application of this Convention: (a) ITLOS; (b) ICJ; (c) an arbitral tribunal constituted in accordance with Annex
VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories
of disputes specified therein. 4. If the parties to a dispute have accepted the same procedure for the
settlement of the dispute, they must use that procedure unless otherwise agreed. 5. If the parties to a
dispute have not accepted the same procedure, their dispute may only be submitted to arbitration in
accordance with Annex VII, unless the parties otherwise agree.
UNCLOS Jurisdiction (Art. 288): 1. A court or tribunal referred to in article 287 shall have jurisdiction over any
dispute concerning the interpretation or application of this Convention which is submitted to it in
accordance with this Part. – South China Sea Arbitration. 2. A court or tribunal referred to in article 287 shall
also have jurisdiction over any dispute concerning the interpretation or application of an international
agreement related to the purposes of this Convention, which is submitted to it in accordance with the
agreement. 4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.
Use of Scientific Evidence in International Litigation: scientific evidence can seem cryptic to non-experts.
Particular attention generally paid to reports and findings of international bodies. Different methods
available to decipher such evidence: experts or assessors can assist courts and tribunals; expert scientists can
appear as agents, counsel, or representatives; Courts and tribunals can arrange for enquiries to be carried
out; Courts and tribunals can go on site visits; experts can sit as arbitrators in arbitral proceedings, with a
right to vote.
Experts and Assessors: parties may call experts and the ICJ may do this propriu motu. Experts do not have
the right to vote – Articles 63 and 67 of the Rules of the ICJ. The ICJ can appoint assessors, who differ from
experts insofar as they can sit with the Court during judicial deliberations, although without a vote – Article
30(2) of the Statute of the ICJ and articles 9 and 21(2) of the Rules of the ICJ. States have the right to request
that at least two experts sit with any court or tribunal having jurisdiction over a dispute under UNCLOS
section 2 (if it involves scientific or technical matters) and the relevant court or tribunal may decide this
proprio motu (UNCLOS Article 289). Arbitrators can have the right to vote, e.g. Kishenganga arbitration.
Expert Scientists as Agents, Counsel or Representatives. For example, in Gabčíkovo-Nagymaros and Pulp
Mills. Argentina and Uruguay used experts as counsel in Pulp Mills but the ICJ declared that it ‘would have
found it more useful had they been presented by the Parties as expert witnesses under Articles 57 and 64 of
the Rules of Court, instead of being included as counsel in their respective delegations.’ Experts providing
evidence in judicial proceedings should appear as experts or witnesses, rather than as counsel, so that the
opposing party and the Court could question them.
Enquiries and Site Visits: The ICJ can have enquiries carried out under Article 67(1) of the Rules of the ICJ – A
specialist committee can be tasked with gathering scientific data on a particular question and reporting back
to the court or tribunal. This was done, for example, in the Trail Smelter Arbitration (United States/Canada,
1941) where two technical consultants were given specific tasks; – The tribunal went on a site visit to assess
coastal geography in Bangladesh v India (arbitral award 2014). The ICJ may go on site visits, propriu motu, as
per Article 66 of the Rules of the ICJ.
Protection of the Marine Environment
Pollution: – UNCLOS Article 1(1)(4) “Pollution of the marine environment” means the introduction by man,
directly or indirectly, of substances or energy into the marine environment, including estuaries, which results
or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human
health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of
quality for use of sea water and reduction of amenities.
Generality and Comprehensiveness of UNCLOS: Art. 192. General obligation: States have the obligation to
protect and preserve the marine environment. Art. 194(3) The measures taken pursuant to this Part shall
deal with all sources of pollution of the marine environment. Art. 194(5) Includes measures that are
necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened,
or endangered species and other forms of marine life.
Relevance of International Rules and Standards:
- UNCLOS Art. 207. Pollution from Land-Based Sources. – States shall adopt laws and regulations to
prevent, reduce and control pollution of the marine environment from land-based sources, including
rivers, estuaries, pipelines, and outfall structures, taking into account internationally agreed rules,
standards and recommended practices and procedures.
- UNCLOS Art. 212. Pollution from or through the Atmosphere. – States shall adopt laws and
regulations to prevent, reduce and control pollution of the marine environment from or through the
atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or
vessels or aircraft of their registry, taking into account internationally agreed rules, standards and
recommended practices and procedures and the safety of air navigation.
 - UNCLOS Art. 192 According to the South China Sea Award ‘Article 192 thus entails the positive
obligation to take active measures to protect and preserve the marine environment, and by logical
implication, entails the negative obligation not to degrade the marine environment. The corpus of
international law relating to the environment, which informs the content of the general obligation in
Article 192, requires that States “ensure that activities within their jurisdiction and control respect
the environment of other States or of areas beyond national control.” Thus States have a positive
“‘duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-
scale construction activities.”’
Legal effects of Sea Level Rise
The lines surrounding the coast are changing due to climate change, thus this generates that states may lose
all their land.
Maritime entitlements
Unilateral Limits: baselines and outer maritime limits  there are some rules on maritime limits, such as: the
normal baselines (under UNCLOS article 5) are the low-water line along the coast; the straight baselines
(under UNCLOS article 7) are straight baselines joining the outermost points where the coastline is deeply
intended and cut into, or if there is a fringe of islands along the coast in its immediate vicinity (highly
unstable deltaic coastlines); and the archipelagic baselines (under UNCLOS article 47) which are straight lines
joining the outermost points of the outermost islands and drying reefs if the ratio of water to land within the
lines is between 1 to 1 and 9 to 1; outer maritime limits are at a fixed distance from baselines (exceptions,
outer continental shelf limits beyond 200nm).
What happens when the coastlines recede? There are the ambulatory baselines: according to the ILA
Baselines Committee, the normal baseline is ambulatory and if the legal baseline changes with human-
induced expansions of the actual low-water line to seaward, then it must also change with contractions of
the actual low-water line to landward. 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.
The theory of ambulatory baselines is a conclusion drawn from UNCLOS article 7.2 and 76.8. This happens
because normal baselines fluctuate (also archipelagic baselines) and, since straight baselines at highly
unstable deltaic coastlines remain effective until changed by the coastal State, notwithstanding subsequent
regression of low-water line. Thus, outer maritime limits fluctuate: final and binding continental shelf limits if
established in accordance with recommendations of the CLCS. There is an obligation to deposit charts or lists
of coordinates with the UN Secretary-General.
Artificial Conservation? South China Sea Award: ‘As a matter of law, human modification cannot change the
seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-
tide elevation under the Convention, regardless of the scale of the island or installation built atop it.’ ‘In
some cases, it would likely no longer be possible to directly observe the original status of the feature, as the
contours of the reef platform have been entirely buried by millions of tons of landfill and concrete. In such
circumstances, the Tribunal considers that the Convention requires that the status of a feature be
ascertained on the basis of its earlier, natural condition, prior to the onset of significant human
modification.’
Proposals De Lege Ferenda Concerning Unilateral Limits: a) Coastal States maintain (or ‘freeze’) existing
baselines, established under UNCLOS, notwithstanding physical changes in the coastline and basepoints
through SLR; b) Coastal States maintain existing defined outer limits of maritime zones measured from
baselines, notwithstanding physical changes in the coastline and basepoints brought about by sea level rise.
Both proposals constitute a derogation from UNCLOS. Proposals should seek to minimize proposed changes
to UNCLOS, reduce legal uncertainties, facilitate orderly relations between States and avoid conflict.
Can/Should All Maritime Limits be Frozen? Majority of state practice and legal authorities in favour of the
theory of ambulatory baselines. Principles of equity and climate justice in favour of freezing the limits.
Growing state practice endorsing the freezing of maritime limits. What options are available for changing the
law? Maybe changing the customary law.
Bilateral Limits: maritime boundaries  UNCLOS article 15 – Neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territorial sea beyond the median/equidistance line.
UNCLOS articles 74 and 83 – Delimitation of the [exclusive economic zone/continental shelf] shall be
effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable solution. Three-step equidistance/relevant
circumstances method or angle-bisector.
Effect of Sea Level Rise on Bilateral Maritime Boundaries: Potential effect on the delimitation process:
selection of basepoints, adjustment of provisional lines and fluctuating boundary-segments. Potential effect
on settled maritime boundaries: fluctuations of maritime boundaries and termination, suspension, or
revision of maritime boundaries.
Termination of Maritime Boundaries: Rebus Sic Stantibus and VCLT Article 62. A fundamental unforeseen
change of circumstances may not be invoked as a ground for terminating, suspending, or withdrawing from a
treaty unless: the circumstances constituted an essential basis; ongoing obligations are radically
transformed. A fundamental change may not be invoked: if the treaty establishes a boundary and if it results
from a breach by the party invoking it.
Termination of Maritime Boundaries due to Sea Level Rise?
- Exclusion of treaties establishing - Radical transformation of obligations due
boundaries to submergence of territory
- Territorial vs non-territorial boundaries - Maritime boundaries may also become
- Non-explicit essential basis unenforceable against third states and/or
- Foreseeability of sea level rise mutually revised

Displaced persons and statehood

ILA Committee on International Law and Sea Level Rise was established in 2014 and has published several
reports and resolutions. Mandate: study the possible impacts of sea-level rise and the implications under
international law of the partial and complete inundation of state territory, or depopulation thereof, in
particular of small island and low-lying states; [and] develop proposals for the progressive development of
international law in relation to the possible loss of all or of parts of state territory and maritime zones due to
sea-level rise, including the impacts on statehood, nationality, and human rights. The conclusion would be
that all states need to actualize its marital limits. Considering that states want to keep their lines and
territory it would be easier to change the laws regarding this maritime limit than building walls to maintain
the territory.
The International Law Commission is the legal body of the UN that has drafted all the key treaties. It is the
body that usually discusses all the possible questions that states may have. The topic sea-level rise in relation
to international law was added to the ILC’s long-term programme of work in December 2018. They
established a Study Group regarding the matter.
The principles that have been highlighted regarding the people displaced in the context of sea level rise:
- Displacement means (under the ILA Lopud Principles) the movement within a State and/or across
international borders of persons who are forced or obliged to leave their homes or places of habitual
residence due to sudden-onset natural hazards and/or slower, cumulative pressures occurring in the
context of sea level rise.
- Persons displaced across borders in the context of sea level rise are not recognized as refugees
unless, in an individual case, elements of persecution are present.
- Current legal instruments do not explicitly address the movement of persons across borders in
anticipation of future climate change-related harm.
The Sydney Declaration of Principles on the protection of persons displaced in the context of Sea Level Rise:
South American states did the Montevideo Convention on
Rights and Duties of States in 1933 (it is not a universal treaty
and therefore should not directly apply to European states),
which states that in order to be considered a state it must have
permanent population (there is no require in the size), a defined
territory (borders can move), effective government and capacity
to enter into relations with other states. Additional
requirements would be recognition by other states of the
statehood.
Additional substantive requirements that states have asked: European Guidelines on Recognition of New
States in Eastern Europe and the Soviet Union (1991)  respect for the provisions of the UN Charter
especially with regard to the rule of law, democracy and human rights; guarantees for the rights of ethnic
and national groups and minorities; respect for the inviolability of all frontiers which can only be changed by
peaceful means and by common agreement; acceptance of all relevant commitments with regard to
disarmament and nuclear nonproliferation as well as to security and regional stability; commitment to settle
by agreement including where appropriate by recourse to arbitration, all questions concerning State
succession and regional disputes.
The recognition can be declaratory (recognition has no legal effect) or constitutive (recognition is imperative
for statehood). Both are theories, and some states do not really wait for recognition by other states to start
its own work.
EU Memorandum Concerning UN Security Council Resolution 1244: Generally, once an entity has emerged
as a state in the sense of international law, a political decision can be taken to recognize [sic] it.” This reflects
the general understanding that recognition itself is not a formal requirement of statehood. Rather,
recognition merely accepts a factual occurrence. Thus, recognition is “declaratory” as opposed to
“constitutive”.
Kosovo declared in 2008 all the above requirements to be considered an independent state. However, does
that make Kosovo a state itself? Even if objectively the requirements are fulfilled, by the end recognition is
key.
Issues Raised by the ILA Committee: Emphasis on the specific and unprecedented legal situation caused by
sea level rise – Different from other instances of lost statehood?; Ability to exist in a particular location and
perform the core functions of a State – Exposure to the sovereignty of other States; Importance of
underlying reasons for requiring specific legal approaches – fundamental justice and fairness; – self-
determination of peoples; – legal stability, certainty and predictability to avoid conflicts and maintain peace
and security; The role of other States and the international community at large.
Solutions  (1) artificial conservation of territory (only a temporary solution; financial implications hardly be
manageable for most affected island and archipelagic States), (2) lease or land purchase (can states move
territory?; temporary or permanent rights?), (3) cession of territory (incentive for ceding State?) and (4)
federation or confederation of states/condominium.