Climate justice and climate change in the face of rising sea levels and global warming have, for decades now, existed as urgent and profoundly important topics for study in international law. It is only with the sudden coming of age, through the experience of a global pandemic, and the mounting pressure from states and intergovernmental scientific bodies, of the institutions of international law in the last year, that climate change and its implications for international law are now well and truly under the limelight. An important part of this coming of age for climate change and adaptation laws is through the adoption, by the International Law Commission, of the topic “Sea-level Rise in Relation to International Law” for its program of work. A second part of the coming of age for climate change in international law is through the route of international courts and tribunals. States parties have brought three separate requests for Advisory Opinions before international courts and tribunals in this past year, creating an important judicial space for the obligations of states to respond to climate change related situations.

In this post, I argue that these two developments in 2023, have created the momentum required for the topic climate change and sea level rise to escape from the liminalities of the vocabulary of mainstream international law where they have existed as exceptions to the accepted idea of state responsibility, human vulnerability, legal stability, and to instead find expression within the newly reopened context of “core” international law, such as the creation of states in international law, theories of recognition, state responsibility, law of the sea, and the multiple and often overlapping treaty regimes that govern each of these areas.

At its 70^th Session in 2018, the ILC recommended that the UNGA Resolution 73/265 of December 2018 on sea level rise be adopted as a topic for a study by the ILC. The ILC, which turns 75 in 2024 has tabled for its 2024 session, the syllabus and sub-topics on sea level rise in relation to its effects on statehood and sovereignty on the one hand and its effects on vulnerabilities and fragilities created on people by sea level rise. Interestingly and for the purposes of the argument I suggest here, on moving from the liminal to the limelight, it is astonishing to note how quickly the ILC adopted this topic of study – perhaps the quickest adoption in the Commission’s history. States voted quickly and in a landslide vote, to support the adoption of the topic, clearly showing that in their own national, regional and international experiences, its importance, and centrality to the construction of other related areas of international legal obligations, could no longer be denied.

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion from the Commission of Small Island States on Climate Change and International Law (COSIS-CCIL), on the obligations of states parties to the United Nations Convention on the Law of the Sea with respect to climate change. COSIS-CCIL membership includes Niue, Palau, St. Lucia, Antigua and Barbuda, Tuvalu and Vanuatu.

Soon after, on 9 January 2023, Chile and Colombia jointly filed an application for an advisory opinion before the Inter-American Court of Human Rights, seeking clarity on the legal obligations on states parties to the American Convention on Human Rights to respond to the climate emergency in the individual and collective capacities.

Three months later, on 29 March 2023, a long debated resolution A/RES/77/276 to request an advisory opinion of the International Court of Justice ‘on the obligations of states in respect of climate change’ was adopted by the United Nations General Assembly.

In addition, the European Court of Human Rights has under hearing, three contentious cases on various aspects of the legal obligations of states parties to the (European) Convention on Human Rights and Fundamental Freedoms. The construction of these events, while unrelated, and stemming from independent motivations to approach the courts in question, certainly creates an undeniable structure for viewing the subject matter for consideration before international courts and tribunals in 2023. Elsewhere, I am working on a symposium on the importance of these advisory opinions for states in the Global South. Has the state practice already changed appreciably to now create new customary international law obligations that have rapidly developed in such areas as legal sovereignty (new state practice on recognition theories that may diverge from the requirement of physical territory to establish statehood, as the Falepili Union Treaty  between Australia and Tuvalu might suggest)? Is there room to stretch the grammar of state responsibility to include protection of persons in the event of slow-onset, imminent disaster created by sea level rise? What will be the state practice repercussions of reopening the conversation on legal stability in the ILC’s study? These are only some of the many possibilities that confront us as we await the outcome of the work of the ILC and the courts in 2024.

It has been argued that critical methodologies for constructing a narrative to showcase the gaps in international law do so by searching the silences of the extant positivist framework; they do so by rephrasing the story in terms of its situatedness and urge us to view the liminal as an inevitable aspect of the mainstream. So too for the liminalities and the disciplinary precarity that the ILC’s study group forces us to consider. In reopening the conversation on establishing baselines, uti possidetis, permanent sovereignty over natural resources, on the requirement of physical territory to construct legal statehood, the conversations are urging us to include the inevitabilities associated with sea level rise as part of the language of mainstream international law. This is a vindication of critical methodology.

Koskenniemi has advised moderation and dismisses the radical possibility that the fundamental grammar of international law is flexible enough to accommodate the constantly changing vocabulary. The magical expanding and simultaneous closing of state practice, for Koskenniemi, are simply the destiny of international law.

“For it is impossible to prove that a rule, principle or doctrine (in short, an argument) is both concrete and normative simultaneously. The two requirements cancel each other. An argument about concreteness is an argument about the closeness of a particular rule, principle or doctrine to state practice. But the closer to state practice an argument is, the less normative and the more political it seems….Different doctrinal and practical controversies turn on transformations of this dilemma. It lies behind such dichotomies as “positivism/naturalism”, “consent/justice”, “autonomy/community”, “process/rule”, etc., and explains why these and other oppositions keep recurring and do not seem soluble in a permanent way. They recur because it seems possible to defend one’s legal argument only by showing either its closeness to, or its distance from, state practice. They seem insoluble because both argumentative strategies are vulnerable to what appear like valid criticisms, compelled by the system itself.” (Martti Koskenniemi, The Politics of International Law, European Journal of International Law, Volume 1, Issue 1, 1990, Pages 4–32, https://doi.org/10.1093/oxfordjournals.ejil.a035781)