ICJ climate opinion & Small Island States’ rights

On July 23, the International Court of Justice issued an advisory opinion on the “Obligations of States in respect of Climate Change.” The proceedings grew out of a 2023 resolution by the United Nations General Assembly requesting such an opinion. The process was driven by the Pacific small island State of Vanuatu, which put together a coalition of over 100 co-sponsors for the resolution. 

The primary focus of the 132-page decision was on defining national obligations to address climate change under international law, and the legal consequences of the failure to meet these obligations. However, within the recesses of the opinion, the Court also spoke to the rights of coastal States, including island nations, in a climate-imperiled world. The focus of this article will be on why these holdings may be important to the economic and statehood interests of vulnerable Small Island Developing States (SIDS) in the future. 

The threats posed to small island states in a warming world

Thirty-nine nations are classified by the United Nations as Small Island Developing States (SIDS), with most of these countries concentrated in the South Pacific and Caribbean regions. SIDS are home to 70 million people. While responsible for only approximately 1% of the world’s greenhouse gas emissions, SIDS are on the frontlines of climate change due to high proportions of populations and infrastructure concentrated in coastal areas, as well as economic, technological, social and ecological barriers to adaptation. The populations of SIDS confront rising sea levels, leading to economic losses and population displacement, devastation from climate-related violent weather events, agricultural losses, and an increasing incidence of serious climate-linked diseases.  

In the longer term, projected levels of climate change, especially in the context of sea level rise, could prove devastating for SIDS. Rising sea levels could contaminate groundwater aquifers through saltwater intrusion, imperiling access to water for human consumption and agricultural production. Rising waters could also devastate critical infrastructure in many low-lying atolls. This could ultimately render many islands, including virtually all atolls, uninhabitable by the mid-21st century. Additionally, inundation could result in “the physical destruction” of a number of islands within fifty years, including Tuvalu, Kiribati, the Marshall Islands, and the Maldives. 

Beyond the tragedy that climate change may engender for many citizens of these islands, it could also imperil both the economic future, and even the statehood, of many SIDS. 

Some of the most important interests of coastal and island States are the rights accorded to them in “Exclusive Economic Zones” (EEZs) under the United Nations Convention on the Law of the Sea (UNCLOS). EEZs, which extend to 200 nautical miles from prescribed baselines (Article 57), imbue States with sovereign rights to exploit both living and non-living resources. The baseline is usually the ”low-water line along the coast as marked on large-scale charts officially recognized by the coastal States (Article 5).

 In the case of SIDS, EEZs are, on average, twenty-eight times larger than their land masses, and are their “most valuable national asset,” including valuable economic resources such as fisheries. For example, the small island archipelago of Kiribati, with a population of only 136,000, has the twelfth largest EEZ in the world, encompassing approximately 3.5 million square kilometers. Overall, the EEZs of SIDS represent approximately 30% of ocean space. 

However, climate change could imperil SIDS’ EEZ interests in the future in two ways directly linked to sea level rise. First, if the baselines from which EEZs under UNCLOS are measured move as a consequence of sea level rise, some legal experts argue that it will necessitate adjusting the EEZs of States.  This could undermine the economic interests of some SIDS and engender conflicts with other States. 

Moreover, some legal scholars contend that SIDS could see their very rights to EEZs extinguished if rising sea levels cover all, or large proportions, of their land. This is because rising seas could render SIDS economically unviable and necessitate abandonment, as would obviously also be the case with complete inundation. Two legal theories support this proposition. The Montevideo Convention on the Rights and Duties of States of 1933 is recognized as codifying the customary international legal principles defining statehood. The treaty outlines four qualifications for Statehood, all of which must be fulfilled. This includes “a permanent population” and “a defined territory.” Abandonment of a land mass because of rising sea levels would arguably nullify these qualifications. Some scholars contend that this “means no state, and therefore no national EEZ rights.” Moreover, Article 123 of UNCLOS provides that an island territory that “cannot sustain human habitation or economic life of [its] own shall have no [EEZ].” 

The potential loss of statehood could also have other serious implications for SIDS. Only States can invoke the jurisdiction of the International Court of Justice, or legitimately use force. Also, a stateless population might find it more difficult under pertinent principles of international law to engage in en masse relocation. 

It is this context that the International Court of Justice’s holdings on this topic in its advisory opinion on climate change are important to scrutinize.

The rights of vulnerable coastal/island states in a warming world

In addressing the obligations of States in terms of sea level rise, the Court initially observed that many participants in the proceeding argued that this phenomenon shouldn’t diminish the rights of States, including “maritime delimitations and statehood.” The Court noted that sea level rise would have particularly adverse impacts on the interests of small island States and low-lying coastal States, and this was closely related to “the right to self-determination.”

The Court noted that Article 16 of UNCLOS required Parties to establish and publicize charts or lists showing the outer limits of their maritime zones vis-à-vis coastal baselines, including their respective EEZs. It concluded that there is no provision in UNCLOS to update this information. And thus by extension, the Court held that States would not be obligated to do so should climate-related sea level rise result in shifting baselines that could potentially diminish EEZ rights. It also noted that this position was consistent with a growing international consensus, including in venues such as the International Law Commission, which is charged by the United Nations with helping to codify and progress the development of international law.

The Court also addressed the threat that rising sea levels could imperil the territorial integrity, “and thus the very Statehood” of small island States in the future. Some participants in the proceedings contended that there should be “a strong presumption” of continued statehood even in the face of complete loss of State territory and population displacement. While freighted in somewhat cautious language, the Court largely embraced this position, concluding that “once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.” The Court did not cite any legal authority for this proposition. However, it could be argued that it’s consistent with instances of “deterritorialized States” asserting interests in international fora, including governments-in-exile and “functional sovereignty” exercised by Taiwan and the European Union. 

Of course, it needs to be emphasized that the Court’s opinion is subject to some significant limitations. Advisory opinions of the ICJ, in contrast to “judgments” rendered by the Court, are usually not legally binding. However, such opinions often carry great sway with the international community and contribute to the progressive development of international law. Moreover, many important States, including in the context of maritime issues, such as the United States, China, and Russia do not accept the jurisdiction of the ICJ. 

Thus, the actual rights of SIDS in a climate-imperiled future remain very much “yet to be determined.” However this decision should certainly provide support for positions that could preserve critical economic and territorial interests of these nations. Further undermining the interests of countries least responsible, and most vulnerable, to climate change, would constitute a colossal injustice. The world can do better.

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