Climate change damage in the South Pacific is a problem for all small island developing states, including Tuvalu. These island states may become uninhabitable within the foreseeable future. What about the maritime boundaries and maritime claims of the former (Tuvalu) sea territory, which options do Tuvaluans have here? Does a disappearing Tuvalu have international repercussions?
Tuvalu (formerly the Ellice Islands) comprises a cluster of nine islands, plus islets, located in the southwestern Pacific Ocean just south of the Equator. These remote atolls are situated about 1,050 km (650 mi) of Suva, Fiji, and 4,000 km (2,500 mi) of Sydney, Australia. Tuvalu has a coastline of 24 km (15 mi). As a rather small archipel Tuvale possesses considerable maritime claims on fishing grounds and natural resources in the Exclusive Economic Zone (EEZ) and continental shelf.
Tuvalu is an independent constitutional monarchy. The head of state is the British monarch, whose representative on the islands is the governor-general, a Tuvaluan who has the power to convene and dissolve parliament. In 2000 Tuvalu was admitted to the United Nations. Tuvalu has ratified the United Nations Convention on the Law of the Sea and the Convention entered into force for Tuvalu at 8 January 2003.
It is not clear under UNCLOS whether sea level rise will cause loss of territory, or whether baselines of an archipelago (articles 47 and 48 UNCLOS) could be frozen to ensure that states like Tuvalu will not lose territory. If Tuvalu has become uninhabitable, the island will be considered as a "rock" according to international law of the sea. As a consequence, Tuvalu will lose its (maritime claims in the) Exclusive Economic Zone (EEZ) and continental shelf (article 121 paragraph 3 UNCLOS). The territorial sea is the only remaining sea territory.
If Tuvaluans emigrate as environmental refugees to another country, they will be inhabitants of this country and they will lose their former maritime claims, simply because Tuvalu does not exist anymore as a territorial sovereign state. Tuvalu's former sea-territory will be part of the high seas under UNCLOS.
As far as the continental shelf is concerned, in some cases it exceeds the EEZ, the Tuvaluans will have claims to it under UNCLOS if they manage to purchase territory somewhere else.
UNCLOS has no provision on the changing maritime boundaries due to climate change. To implement a new 'standstill' provision on remaining maritime claims on sea territory just before sea level rise might be a difficult operation, as is amending a treaty anyway -- for instance consent of all ratifying states of UNCLOS will be one of the conditions.
Prof. mr. A.H.A. Soons (Netherlands Institute for the Law of the Sea) argues that a merger with another country is another option. The newly 'merging' state will still have a claim on the territorial sea and continental shelf of the inhabitable or disappeared island, on historical grounds. Theoretically, even the Netherlands or India might be the lucky candidate for 'merging' state. Giving back an island such as Tuvalu to the ocean due to sea level rise and climate change is one thing, giving up former sea territory is even worse.
A selection of relevant publications from the Peace Palace Library collection
- Boom, K., "The Rising Tide of International Climate Litigation: an Illustrative Hypothetical of Tuvalu v Australia", in S.A. Randall and E.A. Kronk (eds.), Climate Change and Indigenous Peoples: the Search for Legal Remedies, Cheltenham, Elgar, 2013, pp. 409-438.
- Joyau, M., "Tuvalu ou l'infortune de mer", Annuaire de droit maritime et océanique, 26 (2008) pp. 175-189.
- Soons, A.H.A., "The Effects of a Rising Sea Level on Maritime Limits and Boundaries", Netherlands International Law Review, 37 (1990), No. 2, pp. 207-232.