Climate risks must prompt international legal reforms

So far, states have focused on addressing climate change’s biophysical impacts and finding burden-sharing formulae that avoid serious socio-economic harm to developing and least-developed countries. The grave consequences of climate change are likely to prompt a renegotiation of some of the fundamentals of international law, including permanent sovereignty over natural resources (PSNR), requirement of territory for statehood, and unsettling of maritime zones.

The principle of PSNR is a fundamental right of states and peoples, which represents the resolve of developing countries to attain economic independence. Under the PSNR, a state has the right to extract fossil fuels above and below ground. The urgency to restrict global average temperature below 1.5° Celsius is giving rise to the demand among many states, scholars and policymakers to phase out fossil fuel. Scholarly writings increasingly support a Fossil-Fuel Non-Proliferation Treaty to keep large swathes of fossil fuels that remain in the ground

The issue of fossil fuels, first raised at COP 28 and again at COP 30 — even outside the formal agenda — highlights growing momentum for a phase-out. The developing countries may accept limited obligations impinging on PSNR towards a common concern of mankind but these must not be permanent or disregard the interests of high fossil-fuel-dependent nations. The limited obligations should be accompanied by developed countries providing sufficient finance and transferring carbon-neutral ‘best available technologies’ to developing nations

Climate change and territory

International law specifies that territory is a necessary prerequisite for statehood. The 1933 Montevideo Convention in Uruguay established the four criteria of statehood — territory, permanent population, government, and the capacity to enter into relations with another state — as the benchmark for state recognition. Sea-level rise (SLR) threatening small island states poses the question of their continued statehood. Although the presumption of state continuity is unquestionably part of customary international law, several states are not categorical about its application to SLR. The International Court of Justice, in its advisory opinion, has said that once a state is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood. Scholars have described the ICJ’s opinion on this aspect as a very modest legal claim.

In 2023, the Pacific Islands Forum (PIF) declared that international law does not contemplate its demise in the context of climate change-related SLR. Even the Montevideo Convention does not mention how much territory is to be lost to lose statehood. James Crawford, an authority on creation of state, is of the view that while a state must possess territory, there is no rule specifying a minimum size. Despite these arguments and legal claims, statehood generally remains precarious and often borderline.

The unprecedented risks to be faced by small-island states must prompt the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) to use the forum of the Conference of the Parties (COP) to apply equitable principles, addressing gaps in existing law beyond strict legal rules

Climate change-induced migration

In international law, the status of people who are likely to move to another country in the context of SLR is unclear. Such people also lose protections and benefits which accrued to them in their own country. The 1951 Refugee Convention defines a refugee as someone who moves to another country, or is unwilling to seek protection from their country of nationality, due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. As climate refugees do not fit in the 1951 ambit, Frank Biermann, an expert on Earth System Governance, suggests a separate independent legal and political regime created under a Protocol to the UNFCCC on the recognition, protection and resettlement of climate refugees. Such a protocol could build on the political support from almost all countries as parties to the UNFCCC and the Paris Agreement.

Unsettling of maritime zones

SLR is likely to unsettle baseline (the legal expression of coast), which will correspondingly affect other maritime zones such as territorial sea, contiguous zone, exclusive economic zone and continental shelf. The adverse scenario has prompted an increasing number of states, especially Pacific Island states and the other small island states to declare the existing baselines as permanent, which means that coastal states do not need to adapt to their existing baseline due to SLR.

This approach is at odds with another approach which a state is permitted under the United Nations Convention on the Law of the Sea (UNCLOS) to adopt (ambulatory baseline) in the context of SLR. Accepting either of these approaches would require changes in the interpretation of UNCLOS rules.

Thus, climate change-induced risks posed to the international legal order need to be renegotiated by the states on a priority basis.

Anwar Sadat is an Associate Professor in International Environmental Law at the Indian Society of International Law, New Delhi