Sea-level rise and submerged land territory: a study of the legal establishment of substitute artificial islands to sustain statehood and maritime zones of small island developing states.

Abstract

Climate change and its consequence of rising sea levels threaten the existence of many Small Island Developing States (SIDS) across the globe. Sea-levels are rising at an inordinate pace, and international law has not yet adapted to mitigate the effects thereof. SIDS are particularly vulnerable to the effects of sea-level rise as a result of their remote locations and low-lying island composition. As such, SIDS may become uninhabitable or wholly submerged within the century. Therefore, SIDS are currently fighting for survival physically and legally. The extinction of SIDS by way of rising sea levels is an eventuality we have not seen in international law, and as such, no precedent exists for this situation. A physical remedy exists for the survival of SIDS, including the creation of artificial islands to house their population so that they are more resilient to rising sea levels. However, this physical remedy does not account for the legal consequences of sea-level rise for SIDS under international law. Sea-level rise presents challenges for SIDS within international law that include (i) continuity of statehood, (ii) the maintenance of maritime zones and the outer limits thereof, and (iii) the use of artificial islands as substitute island territory. These three issues, transversing international law and the law of the sea, are the focal points of this study. These issues are analysed to determine whether SIDS may maintain their statehood and maritime zones despite submerging island territory. The study then examines the legality of using artificial islands to substitute submerged natural island territory. The study concludes by proposing a new negotiating text for a Convention that establishes substitute artificial islands in place of submerged or uninhabitable island territory and the maintenance of statehood and maritime zones despite rising sea levels. This recommendation is based upon the understanding that certainty and stability of SIDS in international law is in the interests of fairness and equity.