Spotlighting International Law Commission Study on Sea-Level Rise, Sixth Committee Speakers Urge that Maritime Regime Reflect Reality of Climate Threat
In lieu of International Law Week - rendered impossible due to COVID‑19 - the Sixth Committee (Legal) heard oral reports from the Chair‑Designate and the Secretary of the International Law Commission today, as delegates, praising the Commission’s adaptation of work methods around the pandemic’s limitations, spotlighted the importance of its recent issuance of the first issues paper on sea‑level rise in relation to international law.
Mahmoud D. Hmoud (Jordan), Chair‑Designate of the International Law Commission, noting the postponement of the Commission’s seventy‑second session until 2021, described the considerable amount of work done by Commission members during intersessional periods. The detail and complexity of the legal issues considered required these individuals to do considerable preparation in their private time without remuneration. Despite this, the Commission held multiple virtual meetings this year to coordinate possible informal intersession work, he said, adding that its members will continue to exchange ideas until they next meet in Geneva on 26 April 2021. He also highlighted recent discussions on the recent issuance of the first issues paper on sea‑level rise in relation to international law.
Huw Llewellyn, the Commission’s Secretary, detailed potential alternative working methods – including using an authorized virtual platform - if the Commission is unable to meet in person in 2021 due to ongoing effects of the pandemic. However, he also said that for the Codification Division of the United Nations Office of Legal Affairs to host these virtual platforms, it would require additional staff, as that work fell outside of the Division’s normal skill set.
In the ensuing debate, many delegates, thanking the Commission for its efforts to continue work despite the obstacles arising from the COVID‑19 pandemic, called attention to the first issues paper on sea‑level rises and highlighted its relevance to current circumstances and the need to ensure the progressive development of international maritime law.
Underscoring the need for such development was the representative of Fiji, speaking for the Pacific small island developing States, who said that such States are already experiencing limited access to freshwater and food supplies as a result of saltwater intrusion and coastal erosion. International law must develop to ensure that maritime zones are delineated in accordance with the United Nations Convention on the Law of the Sea and are not challenged or reduced due to sea‑level rise induced by climate change.
Belize’s representative, speaking for the Alliance of Small Island States, echoed these concerns by pointing out that rising seas threaten not only physical structures, but also food security, health, education and unique cultures and livelihoods. This radical, relentless change to oceans was not contemplated when the Convention was being drafted in the 1970s and 1980s.
The representative of Tuvalu, speaking for the Pacific Islands Forum, also illustrated the urgent need for international law to develop on this issue, emphasizing that the primary concern must be to preserve security, certainty and stability. Entitlements from maritime zones must not be challenged, he stated, emphasizing that “maritime boundaries enjoy the same stability as any other boundaries”.
The representative of the Maldives summed up the existential concerns of many small island and low‑lying States, underscoring that the threat posed by sea‑level rise cannot be solved by these States alone. International law must intervene. Artificial adaptation measures such as sea‑walls and beach replenishment are unsustainable, incredibly costly and have been hindered by the COVID‑19 pandemic. Calling on the international community to pursue a progressive legal solution to sea‑level rise, he added: “For countries like ours, the impacts of sea‑level rise are no longer the future, but are our lived reality.”
The Sixth Committee will next meet at 3 p.m. on Friday, 6 November, to begin consideration of the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law and to hear requests for observer status.
International Law Commission
MAHMOUD D. HMOUD (Jordan), Chair‑Designate of the International Law Commission, speaking via video link, noted that International Law Week would have been the centerpiece of the Sixth Committee’s session, said it has not been possible this year for the Commission to hold its seventy‑second session or adopt a report. Recalling General Assembly decision 74/566 of 12 August, which postponed the Commission’s seventy-second session until 2021, he outlined the typical working methods of the Commission. In intersessional periods, its members exchange ideas, consult each other and academic institutions and other expert bodies, whether in‑person, by email, in writing or by telephone. The detail and complexity of the legal issues addressed by the Commission, and the thoroughness with which they are researched and considered, are such that the members necessarily have to do considerable preparation, he said.
He also highlighted the work of the Special Rapporteurs and Co‑Chairs of the study group, who spend several months researching, drafting and preparing their reports or issues papers. In that regard, he noted: “It is perhaps not well understood that the members of the International Law Commission are part‑time and unremunerated.” The Commission members are university professors, legal practitioners, either private or governmental, judges, and current or retired diplomats or other government officials, who carry out the considerable intersessional work in their private time. As such, the Commission can only advance the topics before it in the formal sense, through debate, deliberations in the Drafting Committee and Study Group and decisions taken on the basis of those deliberations, when it is in session, and through the annual report of its session to the General Assembly, he pointed out.
Turning to the actions of the Bureau designate of the Commission, he noted that it has held multiple virtual meetings since March this year to consider questions relating to the postponement of the seventy‑second session and to coordinate the possibilities for informal intersessional work. The Bureau designate also convened a meeting of what is known as the “enlarged Bureau” – which comprises the five Bureau members plus the Special Rapporteurs of the Commission and one of the Co‑Chairs of the Study Group on Sea‑Level Rise in relation to International Law, on 19 August. Through these consultations, the Co‑Chairs updated the enlarged Bureau on their consultations since the issuance of the first issues paper on Sea‑Level Rise in relation to International Law, dealing with the possible implications for the law of the sea. The Commission will hold informal interactions with Sixth Committee delegates tomorrow, he said, and the exchange of ideas among the members of the Commission will continue until its next session, scheduled to begin in Geneva on 26 April 2021.
HUW LLEWELLYN, Secretary of the International Law Commission, delivering an oral report, discussed the Commission’s potential working methods for 2021 if the body is not able to meet in person for its seventy‑second session due to ongoing effects of the COVID‑19 pandemic. The three primary means available are virtual meetings, hybrid meetings and flexibility in the dates of the session. He said that, if in‑person meetings are possible, they would likely be subject to the same health and safety mitigation measures as are current meetings at Headquarters. However, no reduction in the Commission’s number of meetings during an in‑person session is expected.
Noting that multilingualism is an essential part of the Commission’s work, he said that simultaneous interpretation into the six official languages of the United Nations would be possible for virtual meetings of the Commission via either the Interprefy platform or another authorized virtual platform. However, this format would have several drawbacks, including: reduced meeting time due to two‑hour time limits on interpretation; a lack of summary records; the inability of virtual meetings to replicate the close and dynamic interaction necessary for the Drafting Committee to function effectively; and the 16 hours of time difference spanning the Commission’s members. He added that hosting these virtual platforms requires additional staff and, for the Codification Division, poses a non‑legal challenge outside of the Division’s prior experience or normal skill set.
The representative of Tuvalu, speaking for the Pacific Islands Forum, recalled that the Forum noted the great threats to securing the Blue Pacific and was calling for collective efforts to be made to ensure their maritime zones - as laid out by maritime laws, including the United Nations Convention on the Law of the Sea - could not be reduced or challenged due to sea‑level rise. Negotiations must be concluded to preserve Members’ existing rights. The Commission should examine the implications of sea‑level rise “as a matter of emergency”. He welcomed the first issues paper by the open‑ended Study Group on sea‑level rise, which addresses such concerns.
The overarching concern must be to preserve security, certainty, and stability, he continued. Over time, this carefully packaged set of rights can contribute to the preservation of baselines and the outer limits of maritime zones as measured from baselines. He concurred with the report’s observation that sea‑level rise cannot be invoked in connection with the Vienna Convention on the Law of the Treaties. “Maritime boundaries enjoy the same stability as any other boundaries,” he emphasized. International law should not further impact those who are already substantially – even existentially - affected by sea‑level rise. Entitlements from maritime zones must not be challenged, as any will risk creating uncertainty or sparking a dispute.
The representative of Belize, speaking for the Alliance of Small Island States, welcomed the first issues paper on the law of the sea produced by two of the Co‑Chairs of the study group. “We are 39 small island and low‑lying developing States that are deeply reliant on the ocean,” she said, noting that their fishing, tourism and transportation industries make heavy use of the maritime zones allocated to them under the United Nations Convention for the Law of the Sea. Rising seas threaten not only physical structures but economies, food security, health, education prospects, as well as unique cultures and livelihoods. Emissions are not being reduced fast enough to prevent a significant increase in global temperatures and the resulting sea‑level rise current projections place the globe on track for at least three degrees Celsius of warming which could lead to over one metre of sea‑level rise by 2100.
Such a radical and relentless change to oceans, she pointed out, was not contemplated when the Convention was being drafted in the 1970s and 1980s. The first issues paper calls attention to the fact that States were as likely to gain territory through accretion as they were to lose it through erosion. Nothing prevents Member States from depositing geographic coordinates or large‑scale charts concerning baselines and limits of maritime zones measured from base lines in accordance with the Convention and then not updating those coordinates or charts in order to preserve their entitlements. Many small island and low‑lying States have taken political and legislative measures to preserve their baselines and the existing extent of their maritime zones through domestic legislation, maritime boundary agreements and deposit of charts or coordinates. This State practice made in the context of climate change and consistently rising sea levels should be most relevant to the consideration of the study group, she said.
The representative of the United States took note of reports drafted last spring by the various Special Rapporteurs, as well as the Chairs of the sea‑level rise Working Group. “To comment on those projects now would be premature,” he stressed, adding this should not be regarded as indicative of his country’s position on any aspect of those reports. He also highlighted a modest proposal for procedural work that might be accomplished virtually. There is some confusion about the range of the Commission’s work products, which in the past two decades has included draft articles, principles, conclusions, guides and guidelines, he observed. The International Law Commission should consider drafting a practice guide for the selection of the framework of its work products. This guide could detail the criteria for the selection of a particular work product framework, the types of provisions that may be included within that framework, and what the legal implications of the framework choice might be, he said.
The representative of Papua New Guinea, associating himself with the Alliance of Small Island States, the Pacific Islands Forum and Pacific small island developing States, said that the work of the Study Group on sea‑level rise with respect to international law was of critical importance to his country. He welcomed the first issues paper, specifically concurring with its finding that the ambulatory theory regarding baselines and the limits of maritime zones measured from such baselines does not respond to the need to preserve legal stability, security, certainty and predictability. As an archipelagic State, the need to preserve the legal stability of maritime zones as well as archipelagic waters is of paramount importance, he said. The Convention on the Law of the Sea, to which his State is a party, provides a careful balancing of rights in this regard, including with respect to sea lanes and air routes. “Jurisdictional uncertainty could lead to issues with enforcement and potential conflict in our geographical region,” he emphasized, adding that he looks forward to the Study Group’s addressing issues such as Statehood and the protection of persons affected by sea‑level rise in the future.
The representative of Chile, acknowledging the negative impact that the COVID‑19 pandemic has had on the work of the International Law Commission and the Sixth Committee, stressed the need to overcome related procedural problems and continue to work towards promoting the progressive development of international law. The pandemic has had a significant effect on many areas of human activity and, therefore, on the legal elements involved in those activities. To provide delegates with the information they need for a proper debate on these issues, Chile organized a parallel event on 16 October to analyze legal aspects and questions emerging from the pandemic. He called on the Sixth Committee, as the legal community of the United Nations, to analyze the pandemic’s impact on, inter alia, peace and security, international trade law, intellectual property law, international maritime law and international humanitarian law.
The representative of Fiji, speaking for the Pacific small island developing States, and associating himself with the Alliance of Small Island States and the Pacific Islands Forum, said that the first issues paper sets a strong foundation for an in‑depth discussion on sea level rise. Citing the intergovernmental panel on climate change, he noted that sea levels will continue to rise on average by one metre by 2100, with certain regions of the world likely to experience sea‑level rise sooner and more extensively than other regions. Despite best efforts, the low‑lying small island States within the Pacific region are currently the most vulnerable to sea‑level rise and are already experiencing limited access to freshwater and food supplies as a result of saltwater intrusion and coastal erosion. Further, sea‑level rise will continue to bring destruction, displacement and instability in the future, he predicted.
Spotlighting the adverse impacts of climate change and sea‑level rise on sustainable development in Pacific island communities, he said that the inclusion of the topic into the International Law Commission’s programme of work provides an opportunity to identify priorities and concerns. It is necessary to pose serious legal questions regarding the regulation of maritime entitlements, delimitation of maritime zones and the rights of coastal States to an extended continental shelf. His bloc is committed to a collective effort to develop international law to ensure that the maritime zones of specific member States are delineated in accordance with the Convention on the Law of the Sea and that these cannot be challenged or reduced as a result of sea level rise and climate change, he said.
The representative of the Federated States of Micronesia, associating himself with the Alliance of Small Island States, Pacific Islands Forum and the Pacific small island developing States, welcomed the Commission’s first issues paper on sea‑level rise in relation to international law. While the Commission, as a whole, has yet to formally consider the paper, it is a major achievement that provides an authoritative survey of the implications of sea‑level rise for the international law of the sea. The Convention on the Law of the Sea does not contemplate the phenomenon of sea‑level rise, and does not contemplate how States can preserve their maritime zones – and the rights flowing from them – in perpetuity despite changes in sea level. The Commission’s work in this area is necessary to foster legal stability, security and predictability. To this end, he added his support for the Commission’s formal consideration of opinio juris on maritime entitlements. Earlier this year, the Federated States of Micronesia deposited its chart of geographic coordinates and map of maritime zones to the Secretary‑General, along with written observations underscoring that his country has been especially affected by sea‑level rise induced by climate change. These observations also pointed out that the Federated States of Micronesia intends to maintain maritime zones notwithstanding this phenomenon and he encouraged other States to submit similar statements to the Secretary‑General.
The representative of Maldives, associating himself with the Alliance of Small Island States, said: “For countries like ours, the impacts of sea‑level rise are no longer the future, but are our lived reality.” That threat cannot be solved by the adaptation efforts of small island States alone; it is a problem requiring the intervention of international law. Although the Maldives has already implemented projects building sea‑walls, undertaking beach replenishment and revetments, those artificial measures to preserve coastal areas and islands cannot be a sustainable solution for developing States vulnerable to sea‑level rise. Such measures are incredibly costly and the COVID‑19 pandemic has further impeded his country’s ability to make further adaptation measures. This is not a problem specific to the Maldives, he noted, calling on the international community to pursue a progressive legal solution to sea‑level rise. Highlighting the first issues paper’s observations, he added that there is a State practice of freezing baselines and outer limits of maritime zones and increasing opinio juris on these maritime entitlements.
The representative of Tonga, aligning himself with the Pacific Islands Forum and the Alliance of Small Island States, pointed to emerging issues of international law, namely climate change and its ensuing implications of sea‑level rise. With the accelerated rate of sea‑level rise projected over the next 20 years, increased by about the same amount which took 60 years to occur, it is threatening us from all angles, he said. Recalling that Pacific leaders have consistently echoed the need for urgent climate action in their annual meetings for at least the last 30 years, he underscored that the baselines which determine Tonga’s territorial boundaries, once established under the United Nations Convention on the Law of the Sea, should remain unchanged despite the effects of sea‑level rise. “Our sovereignty must not be compromised to that effect,” he asserted.
The representative of Turkey, highlighting challenges facing the international community, said: “It is unfortunately all too clear by now that the COVID‑19 pandemic will define this era.” The International Law Commission was one of many bodies within the United Nations whose work was affected by the pandemic, making this year’s session not possible. On the other hand, she acknowledged the imperative to preserve the highly technical complex needed for the Commission to carry out its work in order to keep giving comprehensive legal analyses. Even though it was not possible to have International Law Week in the traditional format, Member States still had the opportunity to engage informally with Commission members, including the topic of sea‑level rise in relation to international law. The COVID‑19 pandemic demonstrated more clearly than ever the urgent need to strengthen international cooperation and multilateralism, she stressed, calling on Member States to strengthen international law and make sure that the global community’s response to future pandemics will be more effective and coordinated.
The representative of the Solomon Islands, aligning herself with the Alliance of Small Island States, Pacific Islands Forum and the Pacific small island developing States, said that while COVID‑19 has disrupted millions of lives, the international community must not lose sight of climate change and sea‑level rise. Offshore fisheries remain the largest income‑generating sector in her country. The continued growth and prosperity of the country’s fisheries depend on existing maritime zones. Therefore, uncertainty about maritime boundaries would negatively affect sustainable development projects and conservation initiatives as well. Solomon Islands is made up of nearly 1,000 islands, which are mostly low‑lying islands, atolls and reefs that are highly vulnerable to sea‑level rise. “Our people continue to be displaced,” she said, calling attention to the loss of five islands. The Convention on the Law of the Sea does not adequately consider rapidly rising sea levels, she pointed out, adding that this ambiguity was underscored in the Issues Paper. More recent State practice made in the context of climate change and consistently rising sea levels is more relevant to the consideration of the study group, she underscored.
Also speaking today were the representatives of Sierra Leone (also speaking for the African Group), Singapore, El Salvador, Russian Federation, New Zealand, Japan, Viet Nam, Cyprus, United Kingdom, Portugal, Republic of Korea, India and Armenia.