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Development Law Service Newsletter - May 2016 - #2

 

Out of sight, out of mind? Pragmatic actions in international law to address receding shorelines and the disappearance of island 

Rising sea levels and the increased occurrence of natural catastrophes, as well as the associated damage they cause to peoples and countries have raised difficult questions. Would basepoints – from which the outer limits of the exclusive economic zone (EEZ) of a coastal or island State are measured – have to shift with a receding shoreline? Does an atoll State lose its marine jurisdictional areas, such as the EEZ, if the State disappears under rising sea levels? These questions are no longer academic; they are being asked by, in particular, the Small Island Developing States of the Pacific (Pacific SIDS), which are concretely affected by these natural phenomena.

A related question is what happens if an island State is submerged to the extent that it is uninhabitable but its citizens continue to consider themselves as belonging to a self-governing entity even if they live elsewhere? The issue is vital to determining the former island State’s ability to continue utilizing the natural resources that occur within its EEZ.

Other pertinent questions could be: are there non-physical short-term to long-term adaptation and mitigation responses to climate change and its effects? Is there a legal adaptation or mitigation response to climate change and sea level rise?

Clearly, the 1982 United Nations Convention on the Law of the Sea (LOSC), often referred to as the constitution for the oceans, did not anticipate the possibility of climate change or islands disappearing as a result of sea level rise induced by climate change. Its provisions, therefore, do not provide concrete responses to this issue. Scholars and eminent international law experts, in attempting to interpret the meaning of the most relevant provisions of the LOSC on this issue have developed two main – and opposing – poles of thought. The first view is that the outer limits of the EEZ shift or ambulate with shifting basepoints i.e. the application of the ambulatory principle1. The opposite view is that marine jurisdictional claims, once established, remain valid2. Legal literature tending to support this latter view, considering that a former island State can continue to utilize national resources within its declared EEZ in the affirmative3, have referred to some interesting analogies such as the existence of the Order of St. John or the Knights of Malta4 as a self-governing entity even if it may not have all the attributes that constitute a State under international law5.

Relevant literature suggests that there are – or should be – legal and policy responses to the many questions raised in this context, while recent initiatives may provide possible pragmatic pathways. For example, the Development Law Service (LEGN) of the Legal Office of FAO teamed up with the Pacific Forum Fisheries Agency (FFA), through a project implemented in 2014 and 2015, to identify pragmatic responses. National and regional consultations conducted under the project with representatives of the Pacific SIDS confirmed the perception that the threats posed by climate change and related rising sea levels are not only a real threat to livelihoods but also to the very survival and existence of Pacific peoples. Moreover, there is a real concern that, if the vulnerable States of the Pacific were to vanish under rising sea levels, they will lose their economic rights and jurisdiction over vast maritime areas if action is not taken urgently.

The main solution proposed under the FAO/FFA Project is for the Pacific SIDS to finalize their maritime boundaries immediately, in particular the outer limits of their maritime jurisdictional areas, so that if the questions referred above are raised in the future, they will stand a better chance of having their claims acknowledged. The proposed solution – found in the document entitled “Securing the maritime jurisdictions of Pacific SIDS against climate change”6 (the Regional Strategy) – Calls for interrelated actions at the national, regional and global levels, as follows:

  • At the national level, the Pacific SIDS should: determine their baselines and negotiate and finalize maritime boundary agreements with neighbouring States and ratify such agreements; secure their baselines and resulting maritime boundaries and outer limits in domestic legislation; publicize baselines and limits derived from those baselines and deposit them with the UN in accordance with LOSC; enhance national capacity to address maritime boundaries issues;

  • At the regional level, the Pacific SIDS should ensure that: the completion of their baselines and maritime boundaries remain high priorities and that current regional initiatives and efforts to this end be encouraged and supported; regional declarations by various organizations and regional groupings reiterate that changes in sea level do not impact on the maritime jurisdictions of the Pacific SIDS; actions in support of securing maritime jurisdictions of the Pacific SIDS be factored into the work programmes of relevant regional organizations; efforts be made by regional organizations to ensure linkages and synergies with ongoing projects in the region to avoid duplication.

  • At the global level, the Pacific SIDS should ensure that awareness is raised on the issue of climate change impacts on their maritime jurisdictions and related matters in appropriate international fora.

A relevant and related regional action by the Pacific SIDS is the development of a Framework for Pacific Oceanscape7 (Oceanscape Framework) which catilyses action in support of the Pacific Islands Regional Oceans Policy to protect, manage and sustain the cultural and natural integrity of the ocean for present and future generations. Action 1B of Strategic Priority 1 of the Oceanscape Framework calls for regional action to fix baselines and maritime boundaries to ensure that the impact of climate change and sea level rise do not result in reduced jurisdiction of Pacific Islands States and Territories. The detailed actions in support of securing maritime jurisdictions of the Pacific SIDS of the Regional Strategy developed under the FAO/FFA Project will facilitate the achievement of Action 1B of the Strategic Priority 1.

An immediate observation of the actions identified in the Regional Strategy is that they seem rather ordinary in comparative terms and represent what is expected of coastal and island States, or any State for that matter, in order to clarify the outer limits of territorial or jurisdictional boundaries. Indeed, the most dramatic characteristic of the Regional Strategy could very well be its title which boldly proclaims that it will secure the maritime jurisdictions of the Pacific SIDS against climate change.

However, by committing to undertake, in a systematic manner, the actions ordinarily expected of coastal States, the Pacific SIDS are deliberately seizing the considerable control accorded to them by the LOSC over the process of determining their jurisdictional boundaries which they consider is a means of securing their futures in the face of the impacts of climate change and sea level rise. Indeed, the Pacific SIDS appear to have taken the position that once the coastal State has declared its boundaries, and leaving aside situations where there has been a protest, these boundaries will remain valid until changed by the coastal State, regardless of whether climate change and sea level rise reduces or completely submerges the land mass. This view is confirmed in the Oceanscape Framework which calls for a “regional effort to fix baselines and maritime boundaries to ensure the impact of climate change and sea-level rise does not result in reduced jurisdiction”8. Thus, in both the Regional Strategy and the Oceanscape Framework, the Pacific SIDS adopt a “no-regrets” approach whereby States are encouraged to “take actions that can be justified from economic, and social, and environmental perspectives whether natural hazard events or climate change (or other hazards) take place or not”9.

Most of the analyses and proposed mitigation responses to climate change and related rising sea levels have focused on tangible physical threats and propose related technical solutions. Unfortunately, the majority of these proposed solutions are technologically challenging and cost prohibitive for many countries, in particular the Pacific SIDS and other atoll States. Soft and indirect responses understandably have not been explored in depth by the Pacific SIDS in the past. The Regional Strategy highlights the need to pay attention to soft and indirect solutions and demonstrates the feasibility, as well as the potency, of solutions that can be implemented immediately, under existing international legal frameworks, and could have lasting positive impacts for the survival of island peoples and States.


1. For a brief explanation of the principle of ambulatory baselines see Clive H. Schofield, Against a rising tide: ambulatory baselines and shifting maritime limits in the face of sea level rise, (Paper presented at the Proceedings of International Symposium on Islands and Oceans, Akasaka, Tokyo, 22-23 January 2009).
2. See for example Hayashi Moritaka, “Islands’ Sea Areas: Effects of a Rising Sea Level”, Review of Island Studies, June 10, 2013. Translated from “Shima no kaiiki to kaimen jōshō”.
3. Rosemary Rayfuse, “International Law and Disappearing States; Utilising Maritime Entitlements to Overcome the Statehood Dilemma” University of New South Wales Faculty of Law Research Series No. 52, 2010.
4. The Order of St. John are formally referred to as the Sovereign Order of the Military Hospitaller Order of St John of Jerusalem, of Rhodes and of Malta. See the official website of the Knights of Malta: www.orderofmalta.int, See also, Costas M Constantinou, “Irregular States or the Semiotices of Knight Errantry”‟, 17 Revue International de Sémiotique Juridique (2004) 229-244.
5. Rosemary Refuse 2010 supra. See also inter alia, Lilian Yamamota and Miguel Estaban, Atoll Islands and Climate Change: disappearing States? 2012 - unu.edu/publications; Jacquelynn Kittel, The Global “Disappearing Act”: How Island States Can Maintain Statehood In The Face Of Disappearing Territory, 2014 MICH. ST. L. REV. 1207; digitalcommons.law, Achim Maas and Alexander Carius, Territorial Integrity and Sovereignty: Climate Change and Security in the Pacific and Beyond, 2010 - https://www.adelphi.de.
6. In FAO, Report of the second Regional Workshop on Strategies and Capacity Building in Pacific SIDSto Address Climate Change Impacts on Jurisdictional Claims.
7. Framework for Pacific Oceanscape - www.forumsec.org.
8. Action 1B of the Oceanscape Framework.
9. Paul B. Siegel and Steen Jorgensen, No Regrets Approach to Increased Resilience and Climate Change Justice: Toward a Risk Adjusted Social Protection Floor, International Conference: Social Protection for Social Justice, UK, 13 -15 April 2011 - https://www.ids.ac.uk/files/dmfile/SiegelJorgensen

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