Law of the Sea not equipped for climate change refugees

Guest blog by: Dr. Francesca Galea, International maritime lawyer


By Dr. Francesca Galea, International maritime lawye

Sea level rise is threatening low lying islands around the world, but even more is at stake than the landmass they live on. Current international treaties do not recognise these threatening realities and offer no means of security to the livelihood of mankind in the face of changes that are already underway.

In 1988 the United Nations General Assembly addressed the issue of climate change for the first time and adopted resolution 43/53, which declared the climate to be the ‘common concern of mankind’. Whilst in the past there have been uncertainties on the reality of change in climate contributed by human activities, today climate change has been acknowledged as a significant threat to international human security, including the health, livelihood and well-being of all present and future generations.

There are eleven islands which within this century will most certainly suffer inundation or partial disappearance. These include: Kiribati, Maldives, Seychelles, Torres Strait Islands, Tegua, Solomon Islands, Micronesia, Palau, Carteret Islands, Tuvalu and Bangladesh. The total population of all these lands estimates to over one hundred and fifty seven million inhabitants.

The current international legal framework of the United Nations Law of the Sea Convention 1982 (UNCLOS) does not envisage these happenings and is not equipped to cater for these new realities. In this current legal vacuum the following questions arise: Will these submerged islands still be considered as existing States in terms of international law? Will the citizens of these lost lands retain their citizenship? Should they be relocated in other countries as ‘migrants’? What obligations does the international community have in respect of other States who have lost their land?

The term ‘climate change refugee’ has been more frequently coined, in relation to recent natural catastrophes affecting all parts of the world. The United Nations has in 2005 declared that the approximately one hundred residents of Tegua, part of the Torres Strait Islands located in the South Pacific were the first climate change refugees. Legally however there is no such concept as a ‘climate change refugee’. Furthermore, there are difficulties in characterizing climate change with the necessary element of ‘persecution’ found in the definition of a refugee. The Refugee Convention does not cover victims of natural disasters, no matter how devastating the natural disaster is. Thus the term ‘climate change refugee’ exists solely in descriptive form, and there is no legal instrument which recognises this new reality.

In this light, the establishment of ocean cities and the adaptation to new ways of living on the ocean are a means to provide the necessary refuge to climate change refugees. Mobile or fixed floating societies are more resistant to climate change than land-based civilizations, particularly when fighting rising sea-levels. The threat of an ice age is more disastrous than global warming and should such ice age come to be, it would be easier to move people towards the equator if they lived on artificial islands instead of the mainland. Artificial structures would serve as flexible solutions since they can move in response to a natural disaster without losing all that has been built.

With these realisations there is a sense of urgency to start constructing the future now before severe changes due to climatic conditions will occur. Governments should be encouraged to incentivise law and policy which aims at creating conscious entrepreneurship opportunities linked with sustainable ways of utilising ocean space. The ocean we rely on is fragile and we are entrusted with the great responsibility of being its custodians. Sustainability must become the primary concern of all with more persistence than it ever was before.

The role of the law of the sea will be essential to address these pressing issues. The concept of the ‘safeguard’ of the current environment has changed to one of ‘survival’ of the human race post the era of the inevitable climate change apocalypse.

Interested to find out more? Read the dissertation Artificial Islands in The Law of the Sea