Climate Change and International Legal Reforms

Persisting Issues of Climate Change

• Climate change is no longer just an environmental challenge and it is beginning to unsettle the fundamental principles of international law itself.
• States have so far focused only on burden-sharing formulas and biophysical impacts, while deeper legal consequences remain entirely unaddressed.
• Three core pillars of international law face direct challenge
  • Permanent Sovereignty over Natural Resources (PSNR), 
  • Territorial basis of statehood, and 
  • Maritime zone boundaries.
• The fossil fuel phase-out debate, first raised at COP 28 and again at COP 30, is gaining momentum even outside formal negotiating agendas.
• The urgency of keeping global temperatures below 1.5°C is generating growing demand for a Fossil-Fuel Non-Proliferation Treaty to keep large reserves permanently underground.

Issues with International Law

• The 1933 Montevideo Convention established four criteria for statehood
  • territory, permanent population, government, and capacity to enter relations with other states. 
  • None of these criteria account for climate-induced territorial loss.
• Rising sea levels threaten to shift baselines (the legal expression of a coastline), correspondingly affecting territorial seas, contiguous zones, exclusive economic zones, and continental shelves.
• Small island states are declaring existing baselines as permanent, conflicting with the ambulatory baseline approach permitted under UNCLOS, which requires baselines to reflect actual coastal geography.
• Accepting either approach will require fundamental changes in UNCLOS interpretation, demanding urgent multilateral deliberation with enormous implications for resource rights and fishing zones.
• The 1951 Refugee Convention defines refugees based on persecution — climate displaced persons do not fit within this definition, leaving them without recognised legal status or protection.

Impact on State Sovereignty

• Permanent Sovereignty over Natural Resources (PSNR) is a foundational right historically representing developing countries’ resolve for economic independence, now facing pressure from global decarbonisation demands.
• Developing countries may accept limited obligations on PSNR as a common concern of mankind, but these must not be permanent and must not disregard interests of fossil-fuel-dependent economies.
• Rising sea levels threaten the physical existence of small island states, raising the unprecedented question of whether a state can survive the complete loss of its territory.
• The International Court of Justice in its advisory opinion stated that once a state is established, the disappearance of one of its constituent elements does not necessarily entail loss of statehood, though scholars have described this as a very modest legal claim.
• In 2023, the Pacific Islands Forum declared that international law does not contemplate the demise of small island states in the context of climate change-related sea level rise.

Issues Regarding Climate Refugees

• People displaced by sea level rise not only lose their homes but also lose all protections and benefits that accrued to them in their country of origin.
• Climate displaced persons do not qualify under the 1951 Refugee Convention as they are not fleeing persecution based on race, religion, nationality, or political opinion.
• The absence of a dedicated legal framework leaves millions of potential climate refugees in a legal vacuum with no recognised rights, status, or resettlement pathways.
• Expert Frank Biermann proposes a separate Protocol to the UNFCCC for the recognition, protection, and resettlement of climate refugees, creating an independent legal and political regime.

Way Forward

• UNFCCC’s COP forums must apply equitable principles addressing gaps in existing international law for vulnerable nations.
• Developed countries must provide climate finance and carbon-neutral technologies before imposing limits on sovereign resource rights.
• A Protocol to the UNFCCC must be negotiated for recognition and resettlement of climate refugees globally.
• States must urgently renegotiate UNCLOS rules on baselines and maritime zones affected by rising sea levels.
• Fundamentals of international law including PSNR, statehood, and maritime boundaries must be collectively renegotiated on priority.