International and Comparative Law

Sea Level Rise and International Law:
Assessing Its Impacts on the Americas

American University Washington College of Law held a conference on July 26-27 with eminent experts on environmental law, law of the sea, and human rights to make an assessment of the impact of sea level rise on the Americas. The conference was organized by AUWCL’s Center for Human Rights and Humanitarian Law and International Law Student Association, in cooperation with the Academia Brasileira de Direito Internacional, the Permanent Mission of Belize to the United Nations, the Sociedad Latinoamericana de Derecho del Mar, and the Universidad de Chile. 

On the first day of the conference, Professor of Law and Dean Emeritus Claudio Grossman introduced the topic by highlighting that sea level rise poses a threat to life everywhere as almost 70 states will be affected by sea level rise, according to current data. He stressed that the issue of sea level rise under international law is of crucial importance to the existence of humanity. The Human Rights Council has noted the worse effect of climate change will be on the enjoyment of human rights of indigenous populations which depend on the sea for their subsistence.

Jean Michel Arrighi, the Secretary of Legal Affairs of the OAS General Secretariat, moderated the discussion on the first day of the conference. He framed the discussion by laying out the evolution and contributions of Latin American states in the development and codification of the law of the sea since the very earliest steps of the Inter-American system.

Excellency Bogdan Aurescu, Minister of Foreign Affairs of Romania, Co-Chair of the Study Group on Sea-Level Rise in Relation to International Law, said that sea level rise became part of the International Law Commission (ILC)’s work as it has been scientifically proved that it is occurring and affecting humans. The second reason for introduction of this topic was due
to requests of UN member-states affected by sea level rise. The first issues paper discusses the topic of baselines, possible legal effects of sea level rise on the baselines, and outer limits of the maritime spaces that are measured from the baselines. One of the paper’s main observations was that the ‘ambulatory theory’ does not respond to the concerns expressed on sea level rise by the member states affected by it.

Prof. Nilüfer Oral, Director of the Center of International Law of the National University of Singapore and Co-Chair of the Study Group on Sea Level Rise in Relation to International Law, reminded that the UNCLOS pre-dates the climate change era. The ILC is working on highlighting the issues that need attention, and the position of States are important as they are the actors directly exposed to the phenomenon of rising sea levels.

Amb. Carlos Fuller, Ambassador of Belize to the United Nations, discussed the impact of climate change and sea level rise on Belize. He highlighted that in Belize temperatures have already risen substantially, at ca. 1 degree Celsius. This strong temperature rise has had an
extensive impact on agriculture, such as sugarcane production and forestry. Water supply is threatened because of less rainfall and saltwater intrusion into the mainland. In addition to agriculture, tourism is also suffering, because of the erosion of beaches and decline in coral reefs.

Ms. Rosemarie Cadogan, Former Legal and Policy Analyst at the Commonwealth Secretariat, discussed the sea level rise and maritime delimitation in the Eastern Caribbean, where she compared Pacific and South-Pacific regions. She noted that when an average person is asked about the effects of climate change, they would refer to natural catastrophic events. She inquired when will climate change attain the level of importance in public opinion so that it would really matter in policy making. In her opinion, in light of the substantial international discussions about climate change related issues and emerging case law from international tribunals, it should be easy to establish the nexus between boundary delimitation, climate
change and sea level rise to complete baseline and border delimitations and related processes that are still pending.

Prof. Wagner Menezes, Associate Professor at the University of Sao Paulo, discussed the approach of the Latin American countries on the issue of sea level rise. UNCLOS establishes the duty of the States to protect and preserve the marine environment. The 1992 Convention on Climate Change recognized that climate change was affected by increased human activities, and a rise in greenhouse gas emissions. The 2015 Paris Climate Convention acknowledged that climate change is a common concern of humanity. At the UN Ocean
conference of July 2022, States shared their alarm at the rise of sea level and decrease in polar ice covers and its effects on oceans as one of the greatest challenges of contemporaneity calling for an action to address the rising sea levels.

On the second day of this conference, focus was on the legal framework with respect to sea level rise and how it affects areas of international law other than the law of the sea.

Prof. Patrícia Galvão Teles, Associate Professor at the Autonomous University of Lisbon, discussed protection of persons affected by sea level rise. There is no dedicated legal
framework or distinct legal status for people affected by sea level rise. The sea level rise per se does not violate human rights but it can influence enjoyment of many human rights, including right to life, access to justice, right to food, right to housing, etc. In terms of refugee law, people affected by sea level rise are described as climate refugees, but the existing legal
instruments do not cover climate refugees.

Prof. Juan José Ruda Santolaria, Professor of Law at the Pontificia Universidad Católica del Perú, discussed about reflections of statehood with respect to sea level rise, which is a multidimensional global phenomenon that has its own characteristics in different regions of
the world. It has direct and indirect impact on all regions although it is of an existential nature for low level lying areas. He discussed that preservation of maritime rights is closely linked to the definition of statehood. The displacement of persons also raises questions about nationality and citizenship.

Prof. María Teresa Infante, Professor at the Instituto de Estudios Internacionales in Chile, discussed several legal issues with respect to sea level rise. She said that the law of the sea should be further developed. The recent UN Ocean Conference recognized that climate change is one of the biggest challenges of our time. She opined that more creative ideas should be developed for preservation of maritime zones.

 Prof. Sean Murphy, Professor of International Law at the George Washington University Law School, said that international law may be an adequate tool for some issues faced by sea level rise. The maritime space was thought to be in some ways dependent on the land space. The drawing and fixing of various baselines and other delimitations of bays, mouths of rivers, etc. are established in relation to the physical coast. The idea that baselines may move because rise of sea level is problematic because for some countries their baselines may move a considerable distance in a way that pulls in their maritime zones.

Prof. Charles Jalloh, Professor of Law at Florida International University, discussed the comparative approach to the legal implications of sea level rise on the Americas and Africa. Climate change has been impacting different parts of the world differently. Countries like Egypt, Mozambique, and Nigeria are worst affected countries in Africa with respect to climate change on several criteria including the number of people affected. For the continent of Africa, there is a particular vulnerability considering the level of development. The Asia- Pacific states are active on the issue of sea level rise, in contrast to the African Union, where much work needs to be done. The American  organizations have also been very active, possibly due to the high impact of climate change on Caribbean and Latin American countries.