Helga Law Journal - 01.01.2021, Blaðsíða 55

Helga Law Journal Vol. 1, 2021
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Dr. Snjólaug Árnadóttir
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they may lead to loss of maritime entitlements, and even loss of statehood.21 These
changes will affect the classification of coastal features all over the world, reducing
islands to rocks, low-tide elevations or fully submerged features. Moreover,
baselines generally fluctuate to reflect changes to relevant coastal geography de lege
lata; they recede landward with receding coastlines and extend seawards in case of
land accretion or the creation of new, naturally formed islands.22 Thus, coastal
changes will affect new maritime claims, but not necessarily all pre-existing
entitlements.
States have tried to strengthen their maritime claims by reinforcing their
coasts and building artificial islands. Artificial conservation of coastlines is
permissible under existing international law and this method can serve to protect
entitlements extending from naturally formed coastlines.23 However, an
international tribunal has ruled that artificial islands cannot generate maritime
entitlements.24 Shoreline protection is arguably the most reliable option, under
existing international law, for securing unilateral maritime limits against
fluctuations. Yet, artificial conservation of the coastline is very expensive25 and it
may be more beneficial for the global community to invest in climate change
mitigation and adaptation activities instead of preservation of maritime limits.26
Leading scholars have put forth proposals to stabilize maritime limits to
prevent the fluctuation of maritime limits.27 The International Law Commission
(ILC) decided, on 21 May 2019, to establish an open-ended Study Group on the
topic of sea level rise. 28 The ILC has, at the time of writing, published one report
with preliminary observations of the Study Group’s co-chairs and issued examples
from State practice. The State practice is too disperse to support the formation of
a customary rule but the co-chairs seem open to the possibility of allowing States

21 Rosemary Rayfuse, ‘Chapter 6: Climate Change and the Law of the Sea’ in Rosemary Rayfuse and
Shirley Scott (eds) International Law in the Era of Climate Change, 147, 152. See also Emily Crawford
and Rosemary Rayfuse ‘Chapter 10: Climate Change and Statehood’ in Rosemary Rayfuse and Shirley
Scott (eds) International Law in the Era of Climate Change, 243, 249.
22 David D Caron, ‘Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic
Boundaries: A Proposal to Avoid Conflict’ in Seoung-Yong Hong and Jon M Van Dyke (eds) Maritime
Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus Nijhoff 2008) 1, 2.
23 See Alfred H A Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990)
37 (2) Netherlands International Law Review 207, 216-218, 222.
24 South China Sea (n 7) para 305.
25 Alfred H A Soons (n 23) 222.
26 See David D Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in
Light of a Rising Sea Level’ (1990) 17 (4) Ecology Law Quarterly 621, 639-640.
27 See, e.g., Davor Vidas, David Freestone and Jane McAdam (eds) International Law and Sea Level Rise
(Brill 2019) 32; David D Caron, (n 22) 12, 14; Jonathan Lusthaus, ‘Shifting Sands: Sea Level Rise,
Maritime Boundaries and Inter-state Conflict’ (2010) 30 (2) Politics 113, 117; Alfred H A Soons (n 23)
225; Rosemary Rayfuse, ‘International Law and Disappearing States: Utilising Maritime Entitlements
to Overcome the Statehood Dilemma’ (2010) 52 University of New South Wales Faculty of Law,
Research Paper Series, 1, 5-7.
28 GAOR, ‘Report of the ILC on the Work of its Seventy-First Session’ (29 April-7 June and 8 July-9
August 2019) UN Doc A/74/10, para 265.
at high-tide and sustain human habitation or economic life.9 Coastal features that
do not meet these requirements can still generate territorial sea entitlements, i.e. if
they qualify as rocks,10 but only if they are above water at low-tide and less than
12 nm from the nearest island or mainland.11 Low-tide elevations that are situated
beyond the breadth of the territorial sea from a mainland or an island generate no
maritime entitlements.12 Furthermore, States cannot claim sovereignty over low-
tide elevations or submerged land territory.13 Conditions to generate maritime
claims may be clearly satisfied when first presented but climate-related changes to
the coastline are tearing at the foundations of such claims and consequently, their
enforceability. Anthropogenic sea level rise hit a new high in the years between
2006-2015, when average, global sea levels rose by 3.6 mm per year.14 The trend is
continuing15 and sea levels are expected to rise by up to 0.87 metres worldwide by
2100 if global warming increases by 2°C from pre-industrialised levels.16
Additionally, the instability and melting of ice sheets in the Polar Regions may
cause a further rise of several metres.17 Climate change will also exacerbate coastal
erosion, flooding and salinization and these changes threaten all low-lying coasts.18
Some areas will experience significant deviations from the average predictions (up
to 30%), making sea level rise, and other climate-related changes (such as extreme
weather events), more severe in those parts of the world.19 These changes will
affect the living conditions of at least 300 million people by 2050.20 Furthermore,

9 See UNCLOS article 121.
10 UNCLOS article 121(3).
11 UNCLOS article 13.
12 UNCLOS article 13(2).
13 South China Sea (n 7) para 309.
14 IPCC, ‘2019: Summary for Policymakers’ in Hans-Otto Pörtner, Debra Roberts, Valérie Masson-
Delmotte, Panmao Zhai, Melinda Tignor, Elvira Poloczanska, Katja Mintenbeck, Andrés Alegría,
Maike Nicolai, Andrew Okem, Jan Petzold, Bard Rama, Nora Weyer (eds) IPCC Special Report on the
Ocean and Cryosphere in a Changing Climate, para A.3.1.
15 Ibid, para A.3.2.
16 IPCC, ‘2018: Summary for Policymakers’ in Valérie Masson-Delmotte, Panmao Zhai, Hans-Otto
Pörtner, Debra Roberts, James Skea, Priyadarshi Shukla, Anna Pirani, Wilfran Moufouma-Okia,
Clotilde Péan, Roz Pidcock, Sarah Connors, J B Robin Matthews, Yang Chen, X Zhou, Melissa Gomis,
Elisabeth Lonnoy, Tom Maycock, Melinda Tignor, and Tim Waterfield (eds) Global Warming of 1.5°C.
An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and
related global greenhouse gas emission pathways, in the context of strengthening the global response
to the threat of climate change, sustainable development, and efforts to eradicate poverty, para B.2.1.
17 Ibid, para B.2.2.
18 Michael Oppenheimer and Bruce Glavovic (coordination lead authors) ‘2019: Sea Level Rise and
Implications for Low-Lying Islands, Coasts and Communities’ in IPCC Special Report on the Ocean
and Cryosphere in a Changing Climate (n 14) 324.
19 IPCC, ‘2019: Summary for Policymakers’ (n 14) para A 3.4.
20 Scott Kulp and Benjamin Strauss, ‘New elevation data triple estimates of global vulnerability to sea-
level rise and coastal flooding’ (2019) 10 Nature Communications, 1, 3.