The Threat of a Rising Sea Level: Saving Statehood through the Adoption of Uti

Climate change has several adverse effects. One of these is ‘sea level rise’, which threatens two key requirements of statehood as stipulated by the declaratory theory of statehood and subsequently listed in the Montevideo Convention on the Rights and Duties of States. These are a defined territory and a permanent population. The focus of this paper is the implications of the rising sea level on the maritime boundaries, land territory and populations residing in small lowlying island nations. The central argument is that a rising sea level impugns the statehood of small low-lying island nations whose maritime boundaries are determined by ambulatory baselines. It further argues that a consistent rise in sea level may submerge small island nations, leading to their extinction. It concludes by proposing the principle of uti possidetis juris as a panacea to the retention of statehood of small island nations threatened by sea level rise.

temperature differs from day to day. 14 However, daily temperature fluctuations should be differentiated from changes in the global average temperature year after year. The numerous consequences of global warming such as desertification, droughts and floods affect different states and people disproportionately, more so, developing states. 15 Africa, which contributes less than five percent of the global CO 2 emissions, is the continent that is significantly affected by the effects of climate change. 16 Statistics indicate that over 50 percent of the states most affected by the exposure to climate change are Sub-Saharan coastal African states such as Egypt, Equatorial Guinea and Guinea Bissau. 17 Experts predict that Africa will experience an average temperature rise of up to 4 degrees celcius in this twentyfirst century. 18 Africa's vulnerability to the consequences of climate change is a result of its high dependency on agriculture, which is thoroughly affected by fluctuations in the climate. 19 This paper will focus on the effects of global warming on seas.
Global warming has several effects on seas. Of concern to this paper is the rise in sea level. This is through two mechanisms: thermal expansion of ocean and surface waters, commonly referred to as the steric effect and the melting of glaciers and ice-sheets around the world but mainly at the Poles. 20 The Arctic region is experiencing a downward trajectory in its ice cover. 21 In fact, ice at the Arctic is melting and disappearing at an accelerated rate. 22 Consequently, the IPCC estimates a rise of approximately 0.38 to 0.59 metres in sea level by 2100. 23 14 Borroughs W, Climate change: A multidisciplinary approach, IX. 15 May R, The Britannica guide to climate change: An unbiased guide to the key issue of our age, IX. 16 African Union Commission, Agenda 2063: The Africa we want, 2015, 5. 17 United States Agency International Development, The intersection of global fragility and climate risks, 2018, 11-12. 18 African Union, African strategy on climate change (draft), 2014, 4. 19 Krampe F and Aminga V, 'The need for an African Union special envoy for climate change and security' Stockholm International Peace Research Institute, 7 February 2019 -<https://www.sipri. org/commentary/essay/2019/need-african-union-special-envoy-climate-change-and-security> on 27 December 2019.
Strathmore Law review, auguSt 2020 African coastal states and islands will bear the brunt of the rise in sea level. The rise in sea level expected along Africa's coastlines is expected to be 10 percent higher than the global average rise. 24 This rise is expected to be higher in southern Africa where a sea-level rise of 0.3 metres by 2050 has been projected. 25 In fact, it is because of these effects that African island states joined their counterparts from other parts of the world to form the Alliance of Small Island States (AOSIS). 26 The primary objective of AOSIS, since its inception, has remained climate change. 27 The challenges facing the fight against climate change are briefly addressed since they lead to the propagation of its effects such as sea level rise, which is the core of this paper. Climate change has proven to be one of the most divisive and polarising issues facing the field of International Environmental Law since it evidently results from two competing interests. One is economic growth and development and the other is environmental conservation and preservation. 28 Therefore, tackling climate change is viewed as tantamount to fighting capitalism and economic development. This is why the United Nations Framework Convention on Climate Change (UNFCCC) contains no enforcement mechanisms. 29 Furthermore, UNFCCC's subsequent agreements such as the Paris Agreement have similarly attracted substantial opposition. 30 These laws have failed to curb climate change since the majority of the largest emitters of GHGs are not interested in fulfilling their obligations under those laws. 31 There is also a challenge experienced in collecting information despite having modern observation mechanisms and instruments. 32  This paper assesses how the threats posed by the rising sea level necessitate the innovative application and modification of legal principles in order to ensure stability of the global order in two ways: ensuring certainty of maritime boundaries and safeguarding the statehood of the island nations affected. Part II of this paper narrows down to the effects of sea level rise on the statehood of small low-lying island nations. It does so by examining how sea level rise affects the features of statehood espoused by the declaratory theory of statehood and the Montevideo Convention on Rights and Duties of States. It analyses the interplay between the rising sea level, on one hand; and a defined territory and permanent population of member states of the AOSIS, on the other hand. Part III makes a case for the adoption of fixed baselines through modification of the principle of uti possidetis juris as an adaptation mechanism to preserve the statehood of the island states affected. Part IV highlights the implementation challenges that may face the recommendations offered and contains the conclusion of the paper.

i. The Concept of Statehood
States are the primary subjects of international law. They enjoy an international legal personality to the fullest extent possible compared to other entities such as intergovernmental bodies. 34 This paper's argument is pegged on the declaratory theory of statehood which treats the creation of states as a matter of fact and not law. 35 Its proponents inter alia include Kunz, Moore and Briggs. 36 It stipulates that an entity only acquires the status of a state when it meets certain characteristics of statehood. These include a permanent population, a defined territory, a government and a capacity to enter into relations with other states. 37 This list is neither exhaustive nor immutable. 38 However, it leads to the 33 Nanda V and Pring G, International environmental law and policy for the 21 st century, 425. Strathmore Law review, auguSt 2020 conclusion that despite there being no universally-accepted definition of a state, the characteristics of a state are well-settled. 39 These characteristics have been adopted by the Montevideo Convention on the Rights and Duties of States (hereinafter 'Montevideo Convention'). 40 This convention is a regional treaty among Central and South American states and has 16 state parties. 41 However, it is widely recognised also as a restatement of customary international law with regard to the norms of statehood. 42 These features are all pegged on the notion of territorial effectiveness. 43 The other parallel theory of statehood, the constitutive theory, stipulates that entities only become states when they are recognised as such by alreadyexisting states. 44 This theory maintains that it is only by recognition that an entity acquires an international legal personality and can therefore participate in international law. 45 Recognition is referred to as the juristic baptism of an entity into statehood. 46 However, the declaratory theory treats recognition simply as an act of goodwill that does not affect the legal status of an entity. The Montevideo Convention explicitly maintains that the creation and existence of a state is independent of recognition by other states. 47 Numerous criticisms have been levelled against the constitutive theory. First, and most significant, is the fact that recognition by already-existing states is deemed to be an extremely subjective condition since it is based entirely on states' discretion. 48 This is compounded in instances where some states recognise while others refuse to recognise an entity as a state. A problem emerges as to the number of recognitions that are required for an entity to be validly recognised as a state. This results in uncertainties with regard to which entities can universally 39 Hillier T, Sourcebook on public international law, Cavendish Publishing Limited, London, 1998, 181.  Strathmore Law review, auguSt 2020 be regarded as states. In addition to this, entities not recognised may still exercise state authority over their citizens. 49 The declaratory theory is not free of defects. Its major criticism lies in instances where an entity has been recognised as a state without fulfilling the four conditions it espouses. 50 For instance, the Democratic Republic of Congo was admitted into the United Nations (UN) in 1960 despite not having an effective government. 51 This is further compounded by the hypocrisy showcased by states when they use different criteria for different states. 52 Finally, states that have fulfilled the requirements stipulated by this theory do not acquire international rights and obligations in the international arena until they are recognised. 53 In the early twentieth century, the declaratory theory gained overwhelming approval by international law scholars and state practice due to its objective nature. 54 Nonetheless, towards the end of the century, it lost its appeal to the UN collective recognition mechanism owing to the criticisms highlighted above. This collective recognition mechanism maintains that when an entity is admitted to the membership of the UN, in accordance with Article 4 of the Charter of the UN, it becomes a state and as such its statehood cannot be subject to challenge. 55 However, this mechanism is as subjective as the constitutive theory since it is discretionary and highly politicised. 56 Despite the criticisms, this paper maintains its reliance on the declaratory theory of statehood based on numerous reasons. First, the concept of statehood is inseparable from territory. In fact, states have occasionally been described as territorial entities. 57 Territory is, therefore, a precondition for any entity to be recognised as a state. For instance, attempts to recognise certain entities such as the Sovereign Military Order of St Joseph of Jerusalem, Rhodes and Malta as states have been futile. 58 This is due to the fact that these entities have no 49 Worster W, 'Law, politics and the conception of the state in state recognition theory', 120. Strathmore Law review, auguSt 2020 territory under their control. However, they have been accorded international legal personality, which is lower than statehood.

ii. The Rise in Sea Levels and its Effect on Statehood
The rise in sea level threatens the very core of the declaratory theory. The following sub-parts of this paper analyse how the rise in sea level may affect the territory of states and the populations residing in them. Without either of the two, this paper suggests that an entity cannot be a state so properly called. Finally, the relegation of the declaratory theory may imply that a state remains a state despite the non-existence of a defined territory and population. This may consequently trivialise the magnitude of the threat that coastal and lowlying island states face and so the measures the international community may undertake will not be sufficient.
It has been widely acknowledged that the rise in sea level is a reality. However, the rate and level of this rise is shrouded in uncertainty due to the interplay between the many factors involved. 59 As indicated in the Introduction, the IPCC estimates a sea-level rise of between 0.38 to 0.59 metres by 2100. However, there are contrary opinions that estimate that the sea will rise by not less than one metre by the year 2100. 60 The rise of the sea by a couple of feet is sufficient to inundate many low-lying areas, coastal wetlands and islands. 61 A rise of the sealevel by one metre is sufficient to flood Guyana, inundate thousands of acres in Louisiana and cause the relocation of New Orleans as well as submerge fifteen percent of Bangladesh. 62 Low-lying island nations such as the Maldives, whose highest point is 3.5 metres, would suffer just as Bangladesh. 63 a. Rise in sea-level and defined territory Strathmore Law review, auguSt 2020 Nations Convention on Law of the Sea (UNCLOS) defines islands as natural areas of land engulfed by water but always above the water at high tide. 65 An island that is capable of sustaining human habitation or economic life on its own legally generates a territorial sea, a contiguous zone, an exclusive economic zone (EEZ) as well as a continental shelf. 66 Islands such as Kiribati, Tuvalu and the Maldives whose average height is between 1 to 1.5 metres are vulnerable to the rise in sea level. 67 The reality of submersion of islands is best illustrated by the gradual sinking of Ghoramara Island in India due to several reasons, among them, the sea-level rise. 68 When an island is submerged, the state loses its territory. It has no defined territory as required by the Montevideo Convention. The effective control of territory is the crux of any state since the central concept of territorial sovereignty is founded upon it. 69 In the absence of a defined territory, a 'state' cannot exercise any sovereignty. The uncertainty caused by changing baselines on the maritime boundaries of a state is a threat to the statehood of a state. The International Court of Justice (ICJ) observes that it is not mandatory for the land boundaries of a state to be fully delimited. 70 The absolute certainty of a state's boundaries is not a requirement for statehood. 71 However, it is mandatory that the state maintains consistent and effective control of a substantial portion of the territory. Small low-lying islands are concerned by the fact that the rise in sea level affects their whole territory, either under partial or full submersion. This would translate into uncertainty over territory and, hence, loss of effective control and sovereignty over substantial portions of what previously amounted to their territory.

b. Rise in sea level vis-à-vis permanent population
This sub-part addresses the impact of sea-level rise on the second criterion of statehood that is a concern of this paper, which is a permanent population.

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It is widely accepted that there is no stipulated minimum number of people that a state should have. 72 Further, a population of such state does not have to be homogenous in terms of ethnicity, race, linguistics or religion. 73 However, it has to be a settled population. 74 It does not also need to hold the nationality of such state. 75 The only condition is that their residence should be characterised by some degree of permanence. 76 Sea level rise will inundate the coasts of many small low-lying islands and that will result in their flooding and submersion. 77 This is catastrophic to the communities that live on the islands. It is estimated that about 60 million people live along the coasts of different countries. 78 The rise in sea water, which is salty, will negatively interfere with the supply of fresh water in low-lying islands. 79 This will affect the agricultural lands on these islands. 80 Finally, this rise will result in more incidences of extreme events such as storms closer to the human habitations. 81 These effects make these island states uninhabitable. Subsequently, the residents of these islands will be displaced and compelled to migrate from their current locations since this may be the only adaptive rational strategy that they will have. 82 As a result of the effects highlighted in the previous paragraph, islands cannot support human existence on their own. Any island that loses its capacity to support human habitation and economic life on its own ceases to be an island and is in turn reclassified as a rock. 83 Such rocks cannot generate maritime zones such as an EEZ or continental shelf. 84 The United Kingdom (UK) voluntarily reclassified Rockall from island to rock status. 85 They subsequently lost 60 thousand square nautical miles of a fishery zone. 86 On a positive note, 72 Shaw M, International law, 199. Liechtenstein has a population of less than forty thousand people.  reclassification may be advantageous in the resolution of certain maritime disputes, particularly those concerning the Spratly Islands in the South China Sea. 87 Reclassification of these islands to mere rocks would greatly reduce their ability to generate claims to extended maritime jurisdiction and, consequently, reduce the scope of the dispute. 88 From the above scenarios it is beyond doubt that the notion of statehood according to the declaratory theory is under threat since two of its core characteristics are under attack. A literal interpretation of Article 1 of the Montevideo Convention indicates that all the four features of statehood must be fulfilled due to the use of the conjunction 'and'. This Article renders all the limbs conjunctive. 89 Therefore, the declaratory theory is insufficient in addressing the statehood of states affected by climate change. The constitutive theory also falls short of accommodating the statehood of states affected by climate change.

III. The Shortcomings of Ambulatory Baselines as a Solution: The Case for Fixed Baselines through Uti Possidetis Juris
One of the notable achievements of UNCLOS is the establishment of a framework that determines the limits of claims to maritime jurisdiction by coastal states and islands. Baselines are the starting line for the measurement of maritime zones offshore as well as the demarcation between internal waters and the maritime zones. 90 Internal waters are those on the landward side of the baseline while maritime zones are waters located on the seaward side of the baselines. 91 Baselines are crucial in the determination of national claims to different maritime zones since the limits of the territorial sea, the contiguous zone, the EEZ and the continental shelf are measured from them. 92 Baselines also play a critical role in delimitation of maritime zones between states with either opposite or adjacent coasts since they form the basis of the equidistance 87 Schofield C, 'Holding back the waves: Sea level rise and maritime claims', 598. There are two main types of baselines: normal baselines and straight baselines. 95 The UNCLOS establishes normal baselines as the default baselines. 96 They are the predominant type of baselines globally. 97 Straight baselines are employed inter alia where the coastline of a state is deeply indented and are, therefore, the exception. 98 Normal baselines are positioned at the low-water line, which is determined by the vertical datum along the coast of a state. 99 These baselines can also be determined by low-tide elevations, which are land masses above water at low-tide but are submerged during high-tide. 100 States have unilateral discretion to determine the low-water mark on which to draw their baselines since the UNCLOS is silent on the specific vertical datum for the low-water line. 101 The baselines threatened by a rise in sea level are those that are founded upon the following geographic features: low-tide elevations, fringing reefs and islands. 102 There are two schools of thoughts regarding the effects of a rise in sea level on the baselines. One school favours ambulatory baselines while the other supports fixed baselines. Article 13, United Nations convention on law of the sea, defines low-tide elevations as natural areas of land above water at low tide but submerged at high tide.
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i. Ambulatory Baselines
When features from which baselines are founded upon disappear or are submerged, the baselines must move, and any maritime boundary that has been generated from it must be redrawn from a new baseline. 103 Therefore, the baseline also shifts accordingly. Consequently, this leads to an advancement or recession of the maritime boundaries. 104 The UNCLOS does not expressly provide for the shifting nature of baselines. However, David Caron avers that it is implicitly provided for in Article 7(2) which states that straight baselines may be changed by coastal states in accordance with the UNCLOS, and so he concludes that the outer demarcations of the territorial sea, contiguous zone and the EEZ are shifting in nature. 105 The ICJ implicitly upheld this position when it declined to consider a certain point along the mouth of River Coco as the basis for the Honduran baseline since it no longer reflected the physical geographic reality. 106 The higher the rise in sea level, the larger the shift in the baselines and, consequently, the greater the uncertainty with regard to maritime boundaries. 107 The implications of this legal uncertainty call for renegotiation of maritime boundary agreements to ensure that they correspond with current geographic realities. 108 History demonstrates that uncertainty and modification of boundaries is one of the recipes for inter-state conflicts. 109 These conflicts will be further enhanced by the fact that any change in maritime boundaries, especially between opposite and adjacent states, will affect the rights and duties of these states particularly with regard to the exploitation of valuable ocean resources. 110 Any doubt as to the ownership of living and non-living resources will form grounds for inter-state disputes.
The second effect is the alteration of the legal status of maritime zones. 111 This means that the legal status of the maritime zones effectively changes. For instance, part of the territorial sea becomes internal waters, part of the contiguous zone becomes part of the territorial sea while part of the EEZ becomes the high seas. 112 This creates a complex web of confusion and mayhem in the legal order governing the sea and particularly activities such as innocent passage, fishing rights and the freedom of navigation. Failure to reflect this shift of the baseline on large-scale or navigational charts would act as an impediment to the freedom of navigation. 113 This arises from the ambulatory nature of baselines, which, in effect, means that maritime zones derived from the baselines are shifting as well.
Thirdly, states whose baselines and subsequent maritime zones are pegged on geographic features that are threatened by the rise in sea level may set aside huge sums of money and resources to maintain these features artificially. 114 This is meant to protect the baselines, which, consequently, leads to the maintenance of the valuable maritime zones derived from such baseline. These valuable zones contain key ocean-based resources such as fisheries and minerals, which states want to retain under their sovereignty. 115 The costs of this are very high. For instance, Japan committed 240 million US dollars to protect Okinotorishima (two rocks) from high tide. 116 The country spent this money constructing blocks of steel and concrete around Okinotorishima. 117

ii. Fixed Baselines
Fixed baselines are baselines which, once determined and cartographically reflected on large-scale charts, do not change until these charts are redrafted irrespective of the physical reality. 118 States are obliged to show the position of their baselines on large-scale charts or alternatively provide geographical coordinates. 119 These charts or coordinates must be publicised and deposited with the UN Secretary General. 120 The implication of fixed baselines is fixed maritime zones. The UNCLOS arguably fixes the outer limit of the continental shelf. 121 This is because of the amount of investment made by states in the continental shelf. Furthermore, demarcation of the continental shelf requires huge amounts of resources due to its nature and any resultant survey caused by the shift in the physical baseline would just be as costly. 122 Fixed baselines, just like fixed land frontiers, bring about certainty over boundaries. 123 This clarity ensures that the boundaries of a state, whether land or maritime, are easily identifiable. Consequently, the authority entitled to exercise sovereignty or other rights in a zone is known. A boundary system that is readily ascertainable brings about stability in the expectations of all the parties involved. 124 The ICJ emphasises that one of the core objects of boundaries is to attain finality and stability. 125 This stability brings about peaceful relationships between states and the avoidance of unnecessary conflicts. 126 Proponents of fixed baselines argue that baselines should not advance or recede as a result of geographic realities such as sea level rise. 127 Fixed maritime boundaries will serve to boost states' adaptation mechanisms to climate change. Rather than spending great resources to try to preserve their baselines, states may divert these resources to sustainable methods of responding to climate change. 128 Low-lying island nations under threat from climate change would be better off appropriating funds to save their citizens from the negative effects of climate change than spending substantial amounts of resources to preserve their baselines. For instance, the Maldives spent resources constructing an artificial island, Hulhumale Island, as an adaptation measure to sea level rise. 129 Hulhumale Island has been christened the 'modern Noah's Ark.' 130 Therefore, the concept of fixed baselines would be instrumental in promoting this.
Fixed baselines have gained favour under international law. The Vienna Convention on the Law of Treaties (VCLT) allows states to terminate or withdraw from a treaty or agreement due to the concept of fundamental change in circumstance. 131 However, Article 62(2) of the VCLT provides that fundamental change in circumstance cannot be grounds for terminating a treaty or agreement that establishes a boundary. The sanctity of boundary agreements is well protected under international law. The ICJ has authoritatively upheld this provision, stating that, for the sake of stability, certainty and permanence, agreements on boundaries fall within the exception in Article 62(2) of the VCLT. 132

iii. A Case for Uti Possidetis Juris
Africa's ocean territory is thrice the size of its land mass. 133 It is therefore prudent that Africa is at the forefront in climate change mitigation and adaptation. Aspiration 1 of Agenda 2063 maintains that Africa will strive to have a unified stand on climate change. 134 Agenda 2063 mandates African states to implement climate change adaptation mechanisms urgently. However, the Draft African Union Strategy on Climate Change does not incorporate any adaptation mechanisms that African states can undertake with regard to the rise in sea level. 135 This is a result of the technical nature of climate change. Literature indicates that Africa lacks both the technological and knowledge systems to adequately address the effects of sea level rise. 136 This paper disputes this allegation as unfounded by providing a recommendation that has been widely used in the African context as one of the mechanisms for sea level rise adaptation.
in the colonisation arena, it was relied upon during the disintegration of former communist federations such as Yugoslavia and the Soviet Union. 145 This paper, therefore, calls for its further modification to save the statehood of islands whose boundaries are threatened by climate change. The proposed modification lies in the fact that the territorial boundaries that this principle seeks to save are those that currently appear on the large-scale charts deposited by states to the UN in accordance with Article 16 of the UNCLOS, rather than the independence borders.
Uti possidetis juris brings about certainty, predictability and stability of boundaries. It also serves to prevent conflicts over boundaries. Uti possidetis juris has been crucial in solving boundaries issues during decolonisation and state succession. 146 This paper proposes the incorporation of uti possidetis juris as an adaptation mechanism to the rise in sea level. It hails uti possidetis juris as the panacea for retaining the statehood of islands that have not been fully submerged but which may have lost their capacity to support human populations on their own. 147 These are islands that may be in a position to cater for human population but with assistance from other states or territories. It recommends that uti possidetis juris be applied to maintain the maritime boundaries as they currently are according to the large-scale charts deposited with the UN Secretary General. These charts reflect the position of the baselines and the maritime boundaries irrespective of the geographical reality. 148

i. Challenges
The first challenge is conceptual. Proponents of the constitutive theory of statehood may find it difficult to accept this recommendation since they take into account recognition as the only criterion for statehood. They may argue that since we have had instances where governments have been recognised while in exile, states can also be recognised as such. International law does not cater for the extinction of statehood through means other than state succession. This