Ginger Without Borders

[This blog series was originally posted on the now-defunct website of American University, Washington College of Law’s Law and International Development Society in July 2020.]

Under existing international law, a State is allowed to maintain existing maritime entitlements through artificial means, provided the state does not attempt to increase the rights derived by the landmass. As a result, States are devoting significant resources to reinforce islands and save their “island” status from declassification because of sea level rise. For example, Singapore projects it will probably spend roughly S$ 100 billion (USD 72 million) over the next one hundred years to fortify its coasts, while Hong Kong plans to spend USD 79 billion on a vast land reclamation project.

Additionally, many coastal and island states are needing to devote more resources to curing the damage from increasingly devastating climate-change-induced-weather events. Studies show that as climate change heats up the oceans, storms are becoming more common, more intense, and more long-lasting. For the small Caribbean island of Dominica, Tropical Storm Erika in 2015 destroyed an estimated ninety percent of the county’s GDP. Two years later, Hurricane Maria caused another estimated $930.9 million in damages. Now the country is devoting significant resources to both rebuild and become the first ‘hurricane proof’ country.

Both artificial reinforcement and repairing damage from increasingly devastating climate-change-induced-weather events carry significant price-tags. Given this, could there be an international obligation for developed States to assist in funding the fortification of developing State’s coastlines? Considering the emerging climate justice field and the obligations established by international agreements that address climate inequality, the international community has a duty to financially assist developing States where possible.

Addressing Inequality Through the Climate Justice Movement

In the past decade, the emerging field of “climate justice” has risen in importance for the international community. “Climate justice” means rectifying the inequality caused by the unequal distribution of the benefits and damages related to climate change. Specifically, the States who produce the least CO2 per capita are facing significant harms from climate change, but these States are not developed enough to respond adequately. Consequently, proponents of “climate justice” argue that the developed States who contribute the most CO2 per capita should assist the developing States in need. To this end, in 2013, the COP established the Warsaw International Mechanism for Loss and Damages associated with Climate Change Impacts (WIM), wherein particularly vulnerable developing countries can seek assistance from the international community. However, the WIM has faced significant issues, and it is unclear whether the Mechanism will be successful in its mission without significant changes.

International Agreements which Establish a Duty to Provide Financial Assistance

In 2012, at the UN Conference on Sustainable Development (also known as Rio+20), the international community launched the process of developing the Sustainable Development Goals (SDGs). The final outcome document – the Future We Want – takes note of the particular vulnerability of Small Island Developing States, particularly “their small size, remoteness, narrow resource and export base, and exposure to global environmental challenges and external economic shocks, including a large range of impacts from climate change and potentially more frequent and intense national disasters.” Of the seventeen goals included in the SDGs, at least fourteen are impacted by climate change and sea-level rise. Consequently, in order to successfully meet the SDGs by 2030 as planned, developed States must assist developing States in meeting the 231 SDG indicators.

Article 55 of the UN Charter states the UN “shall promote … solutions of international economic, social, health, and related problems.” Article 56 continues, “All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” To this end, Member States of the UN should work together to assist developing States in fortifying their coastal regions, in order to maintain the economic and social wellbeing of those who will be significantly affected by sea-level rise.

Moreover, the Paris Agreement addresses the importance of financially assisting vulnerable States in Article 6, paragraph 6. Specifically, the Article specifies that the proceeds from the mechanism for mitigation of greenhouse gas emissions – established in Article 6, paragraph 4 – shall be used to assist developing States in adapting to the consequences of climate change, which includes sea-level rise. Additionally, multiple articles within the UN Declaration of Human Rights request that States voluntarily assist one another to help preserve basic human rights. Lastly, in the UN Convention of the Law of the Sea, various Articles mention voluntarily assisting developing States in implementing the provisions included in the Convention.

Conclusion

Sea-level rise will have a significant impact on States, and subsequently will result in a severe impact on basic human rights of the peoples living in areas impacted. Considering all of the above, developed States should assist developing States in countering the effects of sea-level rise and in recovering from natural disasters – which ultimately will help preserve basic human rights. Those who contributed the least to climate change should not suffer the most.