Helga Law Journal - 01.01.2021, Blaðsíða 60

Helga Law Journal Vol. 1, 2021
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Dr. Snjólaug Árnadóttir
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their establishment. However, the stability afforded to straight baselines at highly
unstable deltaic coastlines seems to be provisional.
UNCLOS article 7(2) provides that:
Where because of the presence of a delta and other natural conditions
the coastline is highly unstable, the appropriate points may be selected
along the furthest seaward extent of the low-water line and,
notwithstanding subsequent regression of the low-water line, the straight
baselines shall remain effective until changed by the coastal State in
accordance with this Convention.
The phrase ‘until changed by the coastal State in accordance with this
Convention’ suggests that States, relying on straight baselines along highly unstable
coastlines, are under an obligation to adjust such baselines when coastlines change.
As explained by Soons, this reference to subsequent change indicates that States
do not have discretionary powers in this regard.58 Likewise, Churchill and Lowe
have asserted that ‘article 7(2) does, of course, require a State eventually to change
its baselines’.59 Indeed, it seems unlikely that States would ever update straight
baselines, following the regression of the low-water line, unless they were obligated
to do so.
UNCLOS article 7(2) applies to coastlines that are unstable due to deltas and
other natural conditions and the reference to ‘other natural conditions’ might be
interpreted so as to include instability resulting from sea level rise and other
foreseeable changes. Such an approach has been promoted as a method for
stabilizing otherwise ambulatory maritime limits.60 Brown has noted that the
precise scope of UNCLOS article 7(2) is unclear because the provision does not
settle ‘[w]hat degree of change over what period of time would be considered to
constitute a high degree of instability’.61 UNCLOS article 7(2) was meant to be a
narrow exception, designed to deal with the exceptional circumstances at the
Bengal delta62 and not large-scale changes to coastal geography, such as the
complete submergence of islands. Yet, the provision is not explicitly limited to
such circumstances so it might conceivably be used to afford stability to coastlines
affected by sea level rise. Still, the co-chairs of the ILC’s Study Group on sea level
rise have considered this possibility and concluded that it cannot prevent the
destabilising effects of substantial sea level rise.63

58 Alfred H A Soons (n 27) 220.
59 Robin R Churchill and Alan V Lowe, The Law of the Sea, 3rd edition (Juris Publishing 1999) 38.
60 Moritaka Hayashi ‘Sea Level Rise and the Law of the Sea: Legal and Policy Options’ in Proceedings
of International Symposium on Islands and Oceans (Ocean Policy Research Foundation 2009) 79.
61 ILA Baselines Committee, ‘Conference Report Washington 2014’ (ILA 2014) referring to Edward
Duncan Brown, The International Law of the Sea, vol I (Dartmouth 1994) 27.
62 See Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (2014) 167 ILR 1, para 237 referring
to hearing transcript, 117, paras 1 and 16.
63 UN Doc A/CN.4/740 (n 29) para 79.
Convention.’53 In Nicaragua v Colombia, the ICJ referred to Nicaragua’s failure to
notify the UNSG of the location of base points, in accordance with UNCLOS
article 16(2) and found that, for that reason, the relevant area would have to be
‘determined only on an approximate basis’.54 Therefore, it may be concluded that
failure to deposit charts and coordinates with the UNSG affects the right to rely
upon certain maritime limits.
Baselines, and derived outer limits (with the exception of the outer limits of
the continental shelf), will shift either automatically in accordance with physical
changes to coastlines or through mandatory adjustments enacted by coastal
States.55 Coastal States have an obligation to display maritime limits on charts or
lists of coordinates and even though there is no explicit obligation to submit such
data regarding the normal baseline to the UNSG, UNCLOS article 5 clearly
assumes that normal baselines are displayed on officially recognised charts.
UNCLOS provisions concerning the entitlement to maritime zones, breadth of
maritime zones and obligation to display maritime limits apply on a continuing
basis and, therefore, there must be an obligation to reflect changes to ambulatory
limits on relevant charts. Inaction may lead to de facto stable limits but only tentative
stability because limits can always be challenged by other States if not in
conformity with the applicable law. When challenged and if the charted line proves
inaccurate, courts and tribunals resort to the actual low-water line.56
According to this, unilaterally declared maritime limits usually become
unenforceable when essential coastal geography changes. However, States can rely
on outdated maritime limits and hope they go unchallenged, which can even lead
to tacit acceptance as explained in Chapter 3. Yet, this comes at the risk of falling
back to the mean low-water line,57 in which case a moderate claim to straight or
archipelagic baselines in light of the changed coastline would be more beneficial
for the coastal State.
2.2 Straight Baselines at Highly Unstable Deltaic Coastlines
UNCLOS article 7(2) forms an exception to the general rule that all baselines
become unopposable as soon as they cease to satisfy the requirements essential for

53 UNCLOS: Meeting of States Parties `Practice of the Secretary-General in respect of the deposit of
charts and/or lists of geographical coordinates of points under the United Nations Convention on the
Law of the Sea' (13 April 2020) UN Doc SPLOS/30/12, para 16.
54 Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624, para 35
and Award in the arbitration regarding the delimitation of the maritime boundary between Guyana and
Suriname (Guyana v Suriname) (2007) XXX RIAA 1, para 159.
55 David D Caron, (n 22) 9.
56 See Nicaragua v Colombia (n 54) para 35 and Award in the arbitration regarding the delimitation of
the maritime boundary between Guyana and Suriname (Guyana v Suriname) (2007) XXX RIAA 1, para
396.
57 UNCLOS article 5 is generally understood as referring to ‘the mean low-water line along the coast’.
See Ashley Roach and Robert W Smith, ‘Straight Baselines: The Need for a Universally Applied Norm’
(2000) 31 Ocean Development and International Law 47, 50.