INTRODUCTION

The end of the Ice Age saw a massive rise in the sea level and ever since then, the sea level
has constantly been on the rise, with its detrimental effects becoming visible now more than
ever. Global mean sea level had risen up to approximately 20 cm by 2010, and is further on
the rise.1 Melting of ice caps due to global warming and the ‘greenhouse effect’ have had a
substantial impact on the rise in sea level. 2 In comparison to the commonly petrifying
geophysical phenomena such as hurricanes, tornadoes, cyclones, volcanic eruption, etc.,
contemporary rates of rise in sea level appear almost benign. However, this is far from
reality.

The rising sea level is significant because of its potential to alter ecosystems and habitats in
coastal regions, where an ever-increasing percentage of the population resides. Rising sea
levels also have various implications in both international and municipal law. Though the
scope of the impact of rise in sea level may primarily seem to be a ‘law of the sea’ issue,
substantial loss of territory as a result of rise in sea level is a much broader issue, mired in
laws relating to the status of climate refugees, access to resources, international peace and
security, concerns of statehood, national identity, etc. However, the scope of this paper is
restricted to analysing the rise in sea level with respect to territorial sovereignty and in the
context of the importance of a State preserving its territory when faced with obligations under
various treaties which are being called into question with an emerging custom.

TERRITORIAL SOVEREIGNTY AND RISE IN SEA LEVEL

The principle of territorial sovereignty implies that a State exercises full and exclusive
authority over its territory.3 The ethos of the concept lies in the notion of title. The word
‘title’ encompasses both the evidence which may help establish the actual existence of a
right, and the source of that right. 4 Currently, the area of ‘territorial sea’ that a state can claim
comes from the provisions of United Nations Convention on the Law of the Sea (UNCLOS)
which codify customary international law (CIL). UNCLOS gives every state the right to

1
Intergovernmental Panel on Climate Change, Report on Sea Level Change, Contribution of WG I to AR5, n.12,
at 1150.
2
J.G. Titus, The Causes and Effects of Sea Level Rise 1, in IMPACT OF SEA LEVEL RISE ON SOCIETY 104-125
(H.G. Wind, ed., 1987).
3
The S. S. Lotus (France. v. Turkey) Judgment, 1927 P.C.I.J. (ser. A) No.10, at 18 (Sep. 7).
4
Land, Island and Maritime Frontier (El Salvador/Honduras), Judgment, 1992 I.C..J Rep. 351, p.351, 388.
claim ‘territorial sea’ up to 12 nautical miles from its baseline. 5 The baseline considered for
this purpose is the ‘normal baseline’.6 The state has complete territorial sovereignty over this
area. With a rise in sea level, the baselines are bound to move inwards and with that, the outer
limit of the ‘territorial sea’ would also move inwards. The same is also applicable to
exclusive economic zones and contiguous zones.7 This results in the contraction of the area
over which the state can claim sovereignty or other limited rights.

Territorial sovereignty comes with a positive right where the state has complete authority and
jurisdiction with respect to its territory. This cannot be interfered with by other states and the
same applies to ‘territorial sea’. With the inward shift of the territorial sea, states will lose
their authority over certain areas which would have previously been under their control.
Moreover, if the territorial sea shifts inwards along with other exclusive zones of states, it
would primarily pose a large problem to the under-developed countries.

Before 1960, the concept of exclusive economic zones did not exist and a state’s rights were
limited to the ‘territorial sea’, which used to be substantially less than 12 nautical miles. This
used to be beneficial for the developed states who could exploit these parts of the sea for their
natural resources using their technology while the under-developed and developing states had
to restrict themselves to resources found in their territorial sea due to lack of technology. 8
Developed states prospered since the only restriction they had was the limits of territorial sea
of other states and their technology allowed them to exploit the other parts of the sea
effectively. Similarly, the under-developed states were prisoners of their own ineffective and
poor-grade technology which left them with the ability to exploit only their territorial sea.
Therefore, if with the rise in sea level, the territorial sea and EEZ contracts, the developed
states, even though will lose territory of their own, will gain substantial additional common
sea to exploit which was previously under the EEZ of various states. The under-developed
states after losing their exclusive rights to such territories will not be able to compete with the
developed states’ technologies in regaining access to these lost resources.

Similarly archipelagic states could also face a problem wherein their water to land ratio,
which is used in calculating their territorial zones and baselines, 9 may be severely affected
5
United Nations Convention on the Law of the Sea art. 3, Dec. 10, 1982, 1833 U.N.T.S. 397.
6
Id., art. 5..
7
Id., art. 5.
8
MICHAEL AKEHURST, MODERN INTRODUCTION TO INTERNATIONAL LAW 179 (Peter Malanczuk, 7th ed. 1997)
9
United Nations Convention on the Law of the Sea art. 47, Dec. 10, 1982, 1833 U.N.T.S. 397.
leading to a substantial territorial loss. Most of these archipelagic states are either developing
or under-developed and will have to face similar consequences at the hands of the developed
states. Therefore, the protection of coastal states’ territorial sovereignty becomes an issue of
utmost importance, especially for under-developed and developing states.

EMERGING CUSTOM AND TREATY OBLIGATIONS

Custom is one of the primary sources of international law. 10 As per the report by the
International Law Association Committee (ILAC) on Sea level rise and international law,
there is an emerging custom with regard to the fixing of maritime boundaries so that the shift
in actual baselines from the rise in sea level does not alter them. 11 This paper does not seek to
establish or refute this but works with the assumption that such a custom is emerging. It seeks
to analyse the implications for the pre-existing treaty obligations of States in the case that
such custom solidifies. The ILAC suggests ‘subsequent practice’ as a way of modification to
the treaties under which obligations may be contrary to the new customary norm. 12 However,
‘subsequent practice’ requires practice of all states to modify the treaties. 13 As aforesaid,
since the developed states are likely to benefit from contraction of maritime territories, their
consent to such practice is unlikely.

This leads to the question of whether a subsequently developed customary norm can modify
the obligations of a pre-existing treaty without a formal change in the same. This, unlike
subsequent practice, does not require consent of all states, but only the relevant ones. 14 There
is lack of consensus between scholars on this contention. There have been arguments that
treaties like UNCLOS and other bilateral treaties, which determine the boundaries between
states should not be altered without adherence to set procedures. The same has gathered
support from the Vienna Convention on the Law of Treaties (VCLT) which has a special
provision that protects boundary treaties from being terminated even in extreme situations
such as those of ‘fundamental change in circumstances’. 15 However, in the author’s opinion,

10
Statute of International Court of Justice, art 38(1)(b), Apr. 18, 1946, 33 U.N.T.S. 993
11
ILAC Rep., supra note 8, at 16.
12
ILAC Rep., supra note 8, at 18.
13
Documents of the Sixty-Fifth Session, [2013], Georg Nolte (Special Rapporteur), First report on subsequent
agreements and subsequent practice in relation to treaty interpretation 2(1) Y.B. Int’l L. Comm’n 71, U.N.
Doc. A/CN.4/660.
14
North Sea Continental Shelf (Ger. v. Den.), Merits, Judgment, 1969 I.C.J. Rep. 3, (Feb. 20).
15
United Nations, Vienna Convention on Law of Treaties art. 62(2)(a), May 23, 1969, 1155 U.N.T.S. 331.
in the current scenario, the emerging custom has the power to modify the obligations under
treaties without a formal change.

There have been various instances where custom has trumped treaty such as in the case of the
abrogation of the capitulatory treaties on the basis of development of the customary norm of
sovereignty.16 It may also be noted that treaty preceding UNCLOS did not provide for EEZs
but took everything other than territorial sea as high seas.17 When the drafting of UNCLOS
began, a new custom was developing, granting every state an EEZ up to 200 nautical miles
from their baselines. Subsequently, this was incorporated in UNCLOS. However, states had
begun to practice this long before UNCLOS came into force. Further, although it violated the
provisions of ‘the convention on the High seas’ which was still in force, the same was not
seen as illegal in light of the new customary norm. This has been viewed by various scholars
to be evidence of a subsequent custom modifying the obligations under existing treaties.18

Similarly, in the given scenario, with the emergence of a new customary norm wherein the
states may fix their baselines and a rise in sea level would thus not change their maritime
boundary, the same, even though a violation of UNCLOS, should be interpreted
harmoniously with the new custom and the obligations should be modified to respect the
custom and the states’ such acts should not be held violative of any treaty obligations. States
should also attempt to make a formal change in UNCLOS to codify this. Nevertheless, in the
meanwhile, assuming this customary norm crystallises, states should not be stopped from
fixing their boundaries. Another reason for subsequent customary norms to modify treaty
obligations, as also seen from this specific instance, is to limit the powers in a handful of
states and make treaties more forthcoming to the general needs of the entire world.

CONCLUSION

This emerging custom of fixing of maritime boundaries has both advantages and
disadvantages. The major advantage as discussed in this paper includes the states being able
to retain sovereignty over their current territories without having to forego any part of the

16
Letter from Said Halim, Minister for Foreign Affairs, to Henry Morgenthau, U.S. Ambassador to the Ottoman
Empire (Dec. 5, 1914), reprinted in U.S. DEP'T. OF STATE, PAPERS RELATING TO THE FOREIGN
RELATIONS OF THE UNITED STATES WITH THE ADDRESS OF THE PRESIDENT TO CONGRESS
DECEMBER 7, 1915, at 1302, 1302 (1924).
17
United Nations Convention on the High Seas arts. 1, 2, Apr. 29, 1958, 450 U.N.T.S. 11.
18
OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 77-78 (1991).
territory in the case of a rise in sea level. However, the major disadvantage would be that, as
discussed, the same would prima facie be violative of UNCLOS.

However, in any case, this situation presents yet another opportunity to answer the highly
debated hierarchy between custom and treaty. Moreover, with the majority of states’ interests
tied with this, there is a pressing need in the international community to come up with a
definitive answer conclusively. This situation also represents yet another ever-lasting concern
of the third world’s practical equality in international law. The rise in sea level therefore
poses a large concern for not only matters under environment law but various other fields of
study. Whereas multiple steps are being taken to reduce the rise in sea level, it seems the
development in public international law is not expeditious as the International Law
commission took up this matter as late as in 2019 whereas the same has been a grave concern
since the last two decades.