NEW YORK -- Global sea level rise has put a handful of nations at risk of extinction -- small island states in the Pacific and Indian oceans. But this week, a collection of international lawyers and politicians have begun work to ensure that doesn't happen.
They can't prevent what many scientists see as the physical inevitability: a rise in ocean levels of 1 to 2 meters (3 to 6 feet) by 2100, even if all greenhouse gas emitting into the atmosphere were to cease tomorrow. Rather, they are exploring ways to use existing formal and informal rules that would allow many nations to continue as legal entities entitled to ocean fishing and mineral exploration rights, even if their entire populations were forced to relocate elsewhere.
The tiny nations of the Marshall Islands, Tuvalu, Kiribati and more are among those at most risk in the Pacific. These atoll nations are among the lowest-lying in the world, and should their archipelagos not completely submerge, it's likely that rising sea levels and extreme saltwater flooding will permanently damage freshwater supplies and destroy agriculture, making them uninhabitable. The Maldives and Seychelles in the Indian Ocean face the same risks.
But at a three-day discussion on their legal options at Columbia University, wrapping up today, scholars are pointing out ways that these states can still maintain an identity and international legal authority, even as they lose all their habitable territory.
"It's important to maintain a government that can defend its interests in the international arena," advised international law expert Jenny Grote Stoutenburg of the University of California, Berkeley.
Creating a new field of law
Conceived last year by the government of the Marshall Islands, this week's three-day seminar on "Legal Implications of Rising Seas and a Changing Climate" is the first to gather experts together to develop a formal body of knowledge that can guide the most vulnerable nations, should their worst fears become reality.
Hosted by Columbia Law School, the event drew hundreds of international law experts, maritime lawyers, government officials and diplomats from distant island states and representatives from the United States, Australia, South Korea and more. The United Nations has yet to take up the sensitive topic, but the large number of U.N. officials participating in the talks suggested that the world body eventually will.
"There's been a certain amount of academic discourse on some of these issues, and certainly at the U.N. climate negotiations there is some talk of them, but the General Assembly hasn't taken any action on these questions," noted Michael Gerrard, head of the Center for Climate Change Law at Columbia Law School.
The questions are serious ones, and at the same time intellectually interesting.
What happens to the people forced to relocate, and what is their citizenship status? Do their governments survive, and if so, do they retain their full seats at the United Nations, even though they have no habitable land to control? And do they still control the fisheries and mineral rights to the surrounding seas they now enjoy, or do those become international waters?
Nations have disappeared before. After the fall of the Berlin Wall, the governments of both Czechoslovakia and the German Democratic Republic were dissolved, and both states instantly lost their U.N. memberships. Those were special cases, but they were highlighted here as examples of how a country could simply cease to exist should it fail to keep up any of the trappings of a state, let alone lose all or most of its landmass.
Some in attendance argued that they shouldn't be discussing these issues at all, and instead should focus attention on obtaining new binding greenhouse gas emissions reduction commitments from the world's largest emitters.
But between the hand-wringing, vulnerable nations did get some valuable advice that could help them remain U.N. member states, with legal defined ocean territories and allotted resource exploitation rights, all while they maintain sovereign government status.
Developing low-tide baselines
The first step, experts say, is to clearly define their coastlines as they exist today, by establishing the legal "baselines" as defined by the U.N. Convention on the Law of the Sea. And that is something that these threatened island states can do unilaterally.
Baselines can either be defined as the coastline at low tide, roughly detailed on a map, or as a set of fixed geographic points measured by government cartographers. They are used to measure the fully sovereign ocean territory that extends from them and the Exclusive Economic Zones (EEZ).
The Law of the Sea allows for both options, with possible consequences for choosing either method -- if your baselines are geographic points and your coastline expands, you either have to get approval for remeasurement or see your territorial sea and ocean economic zone shrink. Likewise, if the baseline is the low-tide mark, then your territorial sea shrinks as your coastline erodes.
Rosemary Rayfuse, a legal professor at the University of New South Wales, pointed out that currently, almost all Pacific island nations define coastal baselines in their own domestic laws as the low-tide mark. Thus, should the islands cease to exist, so does any claim to territorial sea and EEZ, even according to their own laws. Governments should work to fix this immediately, she said.
"Every coastal state should be ensuring maritime boundary delimitation agreements have been established, and not only that they have these treaties in place but that these treaties define their boundaries in terms of geographical coordinates," Rayfuse said. This applies not only to claims filed at the United Nations but also to bilateral treaties, such as the one Tuvalu completed with France to establish the boundaries between their maritime claims in the Pacific, she added.
The Law of the Sea also allows countries to claim rights to the seafloor beyond their 200-nautical-mile EEZ so long as they can prove that this "extended continental shelf" is part of the natural slope of dry land formations. Rayfuse and others recommend that nations at threat of vanishing should do this immediately since, under international law, those claims are permanent once approved.
Following the precedent of Malta
To further buffer their claims, island states might consider establishing artificial islands or permanent installations that could potentially house a small number of "caretakers," several lawyers suggested.
Japan has attempted to do this with platforms and an installation at the remote Okinotorishima, but Law of the Sea experts agree that this is illegal, as Okinotorishima is not an island but a rock, incapable of sustaining life. But should the Maldives, Tuvalu and all others build up similar stations on top of what once where fully habitable islands, other nations may be compelled to accept this, especially since the territorial losses will have occurred from man-made climate change.
There are also models for the governments to maintain themselves as sovereign entities capable of administering these territorial claims, which cover millions of square miles of ocean and harbor some of the richest fisheries and seabed mineral reserves on Earth.
One frequently cited example that came up in the discussion is the Order of Malta.
It's a Catholic religious order that once governed the island of Malta in the Mediterranean Sea until it was expelled by Napoleon's invading army. Today, the Order of Malta mostly engages in charity work from Rome. Though it has no territory to call home, nor does it claim any, to this day, the order is still treated as a sovereign political entity, conducting bilateral relations with more than a hundred countries and enjoying official observer status at the United Nations.
Maxine Burkett at the University of Hawaii's Richardson School of Law proposed a new type of international status for governments that have lost territory, one she terms "nation ex situ." The displaced population could organize the offices and functions of their displaced government, under a type of informal "trusteeship" that they run with the financial backing of a host government.
Migration remains the toughest problem
Nation ex situ "is a status that allows for the continued existence of a sovereign nation afforded all the rights and benefits amongst the family of nations in perpetuity," Burkett explained. "In practice, this would require the creation of a new kind of government framework that could exercise authority over a diffuse people."
So the representatives of Micronesia, Marshall Islands, Seychelles and others will come away with some useful advice and some semblance of hope as the discussion at Columbia University winds down this afternoon.
It's possible for them to continue functioning as governments without territory. And they could maintain legal control over the rich ocean resources that now surround their far-flung islands fully on their own initiative, though they may require substantial outside financial assistance to complete the work.
What seems to be an open question, however, is where the displaced citizens themselves will end up. Among all the topics discussed, migration was the most contentious and painful.
"Resettlement is an extremely unpopular solution," noted Kingston University professor Brad Blitz. Multiple representatives of small island states immediately nodded in agreement, pointing out that the thought of losing their beautiful tropical islands was almost too much for some of their people to bear.
It's widely assumed that the displaced will be moved to Australia, New Zealand, Canada or the United States -- thousands of Marshall Islanders have already settled in Arkansas, and Australia and New Zealand regularly accept migrants from Pacific island states.
Migration to these nations would almost certainly mean a radical transformation in the lives of the affected populations. Though preparations for relocation must be made if these islands will inevitably be lost, diplomats from the tropical nations under discussion still largely don't want to contemplate it, even if they must.
"It's the recognition of a big failure," said Marshall Islands U.N. Ambassador Phillip Muller.
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