Categories: Marine Article 2

Introduction

Apart from the fabled demise of Atlantis, the world has never experienced the physical disappearance of a State. Certainly, States have come and gone as a result of conflict, conquest or politics continuously changing the geopolitical map of the world. However, with a few minor exceptions of volcanic islands and other areas emerging or disappearing, the geophysical map has remained constant over the past millennium. While not likely to change in the immediate future, in the medium-to-long term, it is widely believed that climate-change-induced sea-level rise will redraw the physical/geographical reality of the world. Whether a result of natural processes or anthropogenically induced or exacerbated, sea-level rise will radically alter coastlines and create new ocean areas, leading ultimately to human displacement and migration. Low-lying coastal areas and islands are extremely vulnerable to sea encroachment and, in some cases, the continued viability and actual existence of island States such as Tuvalu, Kiribati, the Marshall Islands and the Maldives may be at risk.

Since the advent of international concern about climate change in the late 1980s, much has been written about the implications of sea-level rise for the physical and legal status of maritime zones in general. Less has been written about the implications of a loss of maritime zones for the legal status of low-lying island States. While the reality of the disappearance of these States may not be imminent, consideration of the juridical dilemmas posed by sea-level rise in the context of the threat to low-lying island States may assist these States in designing appropriate adaptation responses. This article begins with a review of international rules relating to the establishment of maritime zones and their application in the case of sea-level rise, referred to here as “the baseline dilemma”. It then discusses the relevance of the baseline dilemma in the context of the possible inundation of island States by sea-level rise, referred to here as “the statehood dilemma”. It suggests a solution to the disappearing State issue on the basis of acceptance of a new category of statehood, the “deterritorialised State” and concludes that new rules of international law may be needed to provide stability, certainty and a future to disappearing States.

Maritime Entitlements and the Baseline Dilemma

International law relating to entitlement to maritime zones is set out in the 1982 Law of the Sea Convention (LOSC). All coastal States are entitled to certain maritime zones, to wit: internal waters, a territorial sea, an exclusive economic zone, a continental shelf and, where the geomorphological conditions exist, an extended continental shelf. Within each of these zones, States exercise varying degrees of sovereignty. Internal waters, as the term implies, are wholly under the jurisdiction and sovereignty of a State and may be equated, for present purposes, to a piece of territory. Within the territorial sea, a coastal State exercises complete sovereignty, subject only to a right of innocent passage for foreign ships. In the exclusive economic zone, a coastal State enjoys sovereign rights for the exploration and exploitation of living and non-living natural resources of the water column, while on the continental shelf, the State enjoys sovereign rights for the exploration and exploitation of the natural resources of the seabed and subsoil.5 Beyond the areas under national jurisdiction, the high-seas water column is subject to an open access regime in which all enjoy the “freedom of the high seas”. The deep seabed beyond national jurisdiction, known as “the Area”, is governed by the International Seabed Authority (ISA). 

While jurisdictional rights over the territorial sea, exclusive economic zone and continental shelf may differ, the outer boundary of each of these zones is measured from a common baseline. Except where otherwise provided in the LOSC, the normal baseline is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State. In the case of islands situated on atolls or of islands having fringing reefs, the baseline is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognised by the coastal State. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on the elevation may be used as the baseline for measuring the territorial sea. In other words, low-tide elevations within 12 nautical miles from the coast generate a territorial sea. In certain circumstances, “straight baselines” drawn in accordance with the specific rules set out in Article 7 may be used. Where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in the immediate vicinity, the method of straight baselines joining appropriate points (basepoints) may be employed in drawing the baseline. Basepoints used will generally include rocky or other prominent points unlikely to suffer from erosion. Although considerable contentious practice exists to the contrary, straight baselines must not depart to any appreciable extent from the general direction of the coast, and the areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. Straight baselines are not to be drawn to and from low-tide elevations unless lighthouses or similar installations which are permanently above sea level have been built on them, or unless otherwise generally accepted.

However, with the exception of deltaic baselines provided for in Article 7(2) and the outer boundary of the extended continental shelf which is arguably permanently fixed by operation of Article 76(9), the LOSC does not indicate whether the outer boundary of maritime zones moves as baselines – or the low-water mark on which they are based – move. Rather, the question is left to be dealt with by negative implication based on textual interpretation. Commentators such as Freestone, Alexander, Caron and Soons have therefore concluded that outer boundaries of the territorial sea, contiguous zone, and exclusive economic zone must, as a result of this negative implication, be ambulatory. The difficulty with the theory of ambulatory baselines is immediately apparent. Applying the ambulatory theory, if the baseline moves the outer boundary of the zone moves. All coastlines will be affected by sea-level rise. It therefore follows that the maritime entitlements of all States will also be affected by sea-level rise. Of particular concern, permanent inundation of low-tide elevations and fringing reefs which had been within 12 nautical miles of shore will result in significant loss of width of all maritime zones. Even greater shifts will occur in the case of islands. While an island can generate all maritime zones, “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. Thus, once rendered uninhabitable by sea-level rise (or other environmental degradation), uninhabitable islands will, prima facie, lose their exclusive economic zone and their continental shelf. Should the island disappear entirely, it will lose its territorial sea as well. Apart from the uncertainty as to the location of maritime boundaries and zones thus created, as Khadem puts it: “changes of this magnitude could provide a fertile source of inter-State conflict and spark disputes over navigation rights and, more particularly, sovereignty rights to living and non-living resources”.

Admittedly, States might seek to reinforce baseline and basepoint features to preserve them from inundation or erosion by wave action. According to Soons, artificial conservation of coastline and islands through construction of shoreline protection, reinforcement and sea defences, is fully permitted under international law. He argues that a natural feature thus enforced should not, by virtue of that reinforcement, lose its status as a base point even if the natural feature itself is no longer above water. However, as he notes, both the costs and the technical challenges associated with such projects may prove insurmountable. As Caron notes, artificial conservation of baselines for the purpose of preserving maritime entitlements leads inexorably to economic inefficiency and waste, potentially diverting assets from the more pressing task of funding more appropriate and effective climate change mitigation and adaptation activities that will allow a State to continue to develop sustainably. One argument raised to rebut the ambulatory interpretation suggests that the practical effect of marking the low-water line on a chart as required by Article 5 may be to “fix” that baseline against coastal regression and the claims of other States, at least until such time as new charts are produced. However, as Caron notes, this is a practical matter which does not resolve the legal question of whether the LOSC intended baselines to be fixed or ambulatory in the case of coastal regression. Indeed, except for the two specific cases already referred to and positively addressed in the LOSC (deltaic baselines and the limits of the outer continental shelf), the issue of the effect of coastal regression on the location of baselines and the delimitation of maritime zones does not appear to have been in the contemplation of the drafters of the LOSC.

Resolving the Baseline Dilemma

Hindsight is always 20/20. With hindsight it is easy to suggest that the LOSC negotiators should have considered the effects of sea-level rise on the legal regime they were crafting and provided rules covering its eventuality. That the issue was not considered in the 1970s is, however, no reason not to consider it now, in light of changing circumstances and the increasing evidence of both real and projected global sea-level rise, the effects of which will be felt on coastlines everywhere. Two different sets of options for dealing with the effects of sea-level rise on maritime entitlements currently exist. One set relates to actions taken in accordance with existing law, while the other relates to the development of new rules of international law. With respect to existing rules, Hayashi suggests three possibilities. First, States could take greater advantage of the rules on straight baselines by, for example, building lighthouses and other installations on low-tide elevations to enable them to be used as basepoints, or by simply interpreting the provision on unstable coasts to draw straight baselines in new areas. Once drawn and publicised, these baselines would not move regardless of what happened to the low-water line. Second, States could move to permanently establish the outer limits of their continental shelf for both the 200 nautical mile limit and any extended shelf. Since these limits are described in the LOSC as “permanent”, the recession of baselines due to sea-level rise would have no effect on the breadth of the continental shelf. This would be particularly important in the case of small islands which become submerged or uninhabitable and would, under current rules, lose their continental shelf and exclusive economic zone. Third, States could protect many of their maritime entitlements by definitively delimiting their maritime boundaries in bilateral treaties with opposite and adjacent States. Although international law recognises that a treaty may become void by reason of a fundamental change of circumstances, the operation of that rule is expressly excluded in the case of a treaty which establishes a boundary.

Each of the approaches identified above has limited application. A number of commentators have suggested the need for the explicit rejection of the ambulatory theory of baselines and the adoption of new positive rules of customary or conventional international law freezing either baselines or the outer limits of maritime zones, or both. New rules, they argue, are necessary to counter the potential for economic waste, instability and conflict that the assumption of the ambulatory theory implies. Caron suggests a rule that would permanently fix the boundaries of all maritime zones on the basis of presentably accepted baselines. Such a rule, he argues, limits of maritme zones “where they were located at a certain moment in accordance with the general rules in force at the time”.

In assessing these approaches, it is important to appreciate the different legal ramifications that result from a permanent fixing of baselines versus a permanent fixing of the outer limits of maritime zones. It will be recalled that baselines serve as the interface between a State’s internal waters, over which it has total sovereignty, and its territorial sea and exclusive economic zone where the exercise of sovereignty is modified by the right of innocent passage or the freedom of navigation. If the baseline is fixed, any new ocean areas created as a result of sea-level rise will lie to the landward of the baseline and become internal waters. The legal status of the newly submerged area will be no different than when it was dry land. If only the outer limits of the maritime zones are fixed then, as the sea level rises the baselines will move, thus expanding the breadth of the territorial sea or exclusive economic zone, thereby diminishing a State’s jurisdiction over the newly submerged area. Hayashi concludes that the former approach is the preferable, not only as a matter of fairness, but because it does not involve the need to amend the rules on the breadth of the territorial sea and the exclusive economic zone. Freezing of baselines would, in any event, by necessary implication, have the effect of freezing the outer limits of maritime zones as well. A final consideration relates to the time from which baselines are to be frozen. Various options exist, ranging from the date of entry into force of the LOSC, either in general or for the individual State, to the date on which the established baselines are publicised on the relevant charts and deposited with the Secretary General of the United Nations as required by Article 16 of the LOSC. Hayashi’s preference is for the latter, on the basis that it is both consistent with explicit LOSC obligations and will help to encourage those States which have not yet done so to establish their baselines.

Of course, freezing baselines would not resolve all disputes over entitlement to and delimitation of maritime zones. Like the freeze on disputed sovereignty claims in Antarctica, a freeze of declared baselines would not necessarily imply acceptance of disputed claims, leaving pre-existing disputes over the status of rocks and islands or the location and legitimacy of straight baselines in limbo until resolved through the normal processes. However, pending resolution of any such outstanding disputes, a freezing of baselines and the associated outer limits of all maritime zones accepted at the relevant moment – whenever that might be – would be consistent with, and would significantly assist in, the promotion and achievement of the LOSC objectives of peace, stability, certainty, fairness and efficiency in ocean governance. As Caron suggests, freezing of baselines would also be a valuable climate change adaptation strategy in that resources could be directed to substantive adaptation needs rather than the artificial preservation of baselines merely for the purpose of preserving maritime entitlements; new wetlands and coastal ecosystems could be created to replace those lost to rising seas thereby assisting in the relocation and conservation of species and habitats under threat; and the prime asset of many coastal States, in particular of small-island and developing States would be preserved. Procedural options for achieving the adoption of these new rules are also many and varied. Adoption of new rules through the normal process for the development of customary international law is probably both too slow and too impractical, particularly given that some States may physically disappear before sufficient practice and opinio juris is accumulated. This is not to suggest that States should not consider modifying their practice and opinio juris accordingly, but rather that more expeditious mechanisms should also be sought. Hayashi identifies a range of more immediate mechanisms which might include formal amendment of the relevant LOSC provisions, de facto amendment of the LOSC by a decision of the Meeting of the States Parties, or adoption (either by a separate diplomatic conference38 or by UN General Assembly resolution) of a supplementary agreement on implementation of the relevant LOSC provisions. Ultimately, either of the latter two suggestions may prove the most workable and have the benefit of involving all States, not just the parties to the LOSC.

The Statehood Dilemma

Even assuming agreement on a rule freezing baselines and the outer limits of maritime zones, however, this does not entirely dispose of the problem of maritime zones in the context of disappearing small-island States. Only States are entitled to claim maritime zones. Thus, the existence of maritime zones depends on the existence of a State. The traditional international law criteria for statehood include the fundamental requirements of territory and a permanent population. As the territory of a threatened island State disappears beneath the waves, the criteria of territory will no longer be met and the claim to statehood will fail. Of course, disappearance is most likely to be a gradual process with the territory being rendered uninhabitable and the population having fled long before the territory’s total physical disappearance. In this case, too, the criteria for statehood will cease to be met from the time of evacuation and the State will cease to exist. The now former State’s maritime zones and boundaries will therefore lapse, reverting either to the high seas and the Area or, where geographical conditions permit, to areas under the jurisdiction of neighbouring States.

Once considered an almost fanciful scenario, the reality of increasingly severe ocean encroachment causing loss of landmass and potable water and rendering islands uninhabitable is already blamed for the displacement of at least two populations. In 2006, the residents of Lohachara island in the Bay of Bengal moved to a nearby island to escape their rapidly disappearing island. In 2007, residents of Papua New Guinea’s Cateret Islands were evacuated to nearby Bougainville. While these relocations have been intra-State, the problem of the disappearing State requires consideration of the effects of what will ultimately be the wholesale relocation of the entire population of a State; an issue which has concerned governments of vulnerable island States such as Tuvalu, Kiribati and the Maldives since the 1980s. While the possibility of “disappearing” States has been recognised since the late 1980s, the issue has thus far been dealt with predominantly as one involving “climate” or “environmental refugees” requiring relocation to protect them from the rising waters. This focus on “environmental refugees” has, however, been heavily criticised as lacking in intellectual, theoretical and empirical rigour and as a distraction from the real issues of mitigation and adaptation to climate change, poverty eradication, sustainable development and conflict resolution. Indeed, far from protecting the rights of persons displaced due to sea-level rise, the use of the essentially negative concepts of refugee and forced migration law serves only to conclusively disempower the persons being displaced. A solution which protects the rights and interests of disappearing States and their citizens while respecting the competing rights and interests of other States is needed. This requires resolution of the statehood dilemma.

Resolving the Statehood Dilemma

One possible resolution to the statehood dilemma, alluded to by Soons, is for the disappearing State to acquire new territory from a distant State by treaty of cession. Sovereignty over the ceded land would transfer in its entirety to the disappearing State which would then relocate its population to the new territorial location. The continued existence of the State would now be secured in accordance with traditional rules of international law. The pre-existing maritime zones of the State would continue to inure to the relocated State regardless of geographical proximity in the same way that any State currently claims maritime zones in respect of oceanic islands forming a part of its territory. From a legal perspective, the acquisition of title to and sovereignty over new territory by purchase and/ or treaty of cession undoubtedly represents the most straightforward and appealing solution. However, from a practical perspective it is difficult to envisage any State now agreeing, no matter what the price, to cede a portion of its territory to another State unless that territory is uninhabited, uninhabitable, not subject to any property, personal, cultural or other claims, and devoid of all resources and any value whatsoever to the ceding State. The political, social and economic ramifications of ceding valued and/or inhabited territory may simply exceed the capacities – and courage – of existing governments.

Another alternative, suggested but not elaborated on by both Soons and Caron, is for the disappearing State to merge, possibly into some form of federation, with another State. The population of the disappearing State would then be physically relocated within the territory of the other “host” State. Again, pre-existing maritime zones would continue to remain effective. However, these zones would now inure to the “host” State. At the domestic level, international human rights law and the rules relating to internal self determination would provide protections for the relocated population within the “host” State. At the international level, however, it would be the “host” State which would represent their interests. In other words, the disappearing State would cease to exist and have no further say in the exploitation and management of its former maritime zones. 

While this, too, may seem like a straightforward, pragmatic and legally sound solution to the problem of disappearing States, the rationale for and manner in which such a merger would take place also give rise to a number of concerns. A merger of this type would ultimately require the absorption and relocation by the “host” State of the total population of the disappearing State. States have already shown their unwillingness to engage in such wholesale population absorptions. When, in 2001, Tuvalu approached Australia and New Zealand about the possibility of taking its population in the case of total loss of its territory, Australia flatly refused, while New Zealand agreed only to a 30 year immigration programme to accept up to 75 Tuvaluans per year who must be “of good character and health, have basic English skills, have a job offer in New Zealand, and be under 45 years of age”. With a current Tuvaluan population of approximately 11,000, this still leaves nearly 9000 people to find resettlement elsewhere. Moreover, the equity and fairness of a solution that requires those who are least to blame for climate change being obliged to relinquish jurisdiction and control over their vast and potentially extremely lucrative maritime zones to States who may well be among those most to blame for climate change must be questioned. To echo the words of the International Court of Justice in the Gulf of Maine case, “a legitimate scruple lies rather in concern lest the overall result … should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”.

Ultimately, a more equitable solution may lie in recognition of a new category of State; the deterritorialised State. While a full analysis of this issue is beyond the scope of this paper, the following sections outline the precedential basis for, and the rationale and parameters of, the concept of deterritorialised State. Application of the concept is then examined in the context of disappearing island States and the management of their maritime zones. It should be emphasised that nothing proposed here is intended to suggest a new category of international personality available to peoples, however defined, raising current or future self determination claims in the context of existing States. The following discussion focuses solely on possible options for island States whose territory will become wholly uninhabitable as a result of sea-level rise.

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