Helga Law Journal - 01.01.2021, Blaðsíða 72

Helga Law Journal Vol. 1, 2021
74
Dr. Snjólaug Árnadóttir
75
Normal baselines fluctuate in accordance with changing coastlines because
they correlate to the actual low-water line along coastlines and so too must the
derived outer limits. Straight baselines also change to reflect receding coastlines
because they must continuously meet relevant requirements of UNCLOS.
Therefore, unilateral baselines and derived limits generally cannot be stabilised
except through artificial conservation of the coastline. However, straight baselines
at highly unstable deltaic coastlines maintain provisional stability when the low-
water line recedes and the outer limits of the continental shelf beyond 200 nm can
be permanently described in accordance with UNCLOS article 76(8) and (9). To
acquire these levels of stability States must establish straight baselines in
accordance with UNCLOS article 7(2) and follow the procedural requirements of
UNCLOS articles 76(8) and (9). It is noteworthy that the stability afforded to
straight baselines under article 7(2) is only available to coastlines that are highly
unstable due to the presence of a delta and other natural conditions and that States
must eventually adjust these baselines so that they conform to UNCLOS.
All baselines (excluding normal baselines) and outer maritime limits must be
given due publicity in accordance with UNCLOS articles 16, 47(9), 75, 76(9) and
84, which includes submitting relevant data to the UNSG. This is a necessary step
for establishing the permanence of continental shelf limits beyond 200 nm.
Furthermore, this is an important step for making unilateral maritime limits
opposable to other States, particularly if the maritime limits are excessive or if they
become inconsistent with UNCLOS due to changes in relevant coastal geography.
Such limits can become opposable to other States on the basis of acquiescence if
no protests are raised following due publication. Therefore, unilateral limits can be
stabilised on the basis of tacit acceptance from other States but changing coastal
geography will give rise to new challenges and it may be very difficult to prove tacit
acceptance of normal baselines because these are not given due publicity with the
UNSG. As with bilateral boundaries, this stability is dependent on a form of
consent.
What sets bilateral boundaries apart from unilateral limits is the obligation to
delimit boundaries through an agreement or other peaceful means. This means
that an arrangement is created that essentially relies on the consent of sovereign
States, which carries with it binding force. Bilateral boundaries possess a level of
stability unattainable for unilateral limits and they generally remain inviolable as
coastlines change. However, two exceptions can threaten the stability of bilateral
maritime boundaries. First, certain maritime boundaries may be subject to
termination by reference to a fundamental change of circumstances, but only if the
changes are not anticipated in the delimitation process. Therefore, States would be
well advised to consider sea level rise and coastal erosion when delimiting bilateral
maritime boundaries and provide for such changes by express or implied terms.
Second, circumstances may change and give rise to new claims from third States
to areas subject to previously settled maritime boundaries. Such boundaries would
not be opposable to third States under the pacta tertiis principle.
Principle 9 for unilateral declarations.134 Bilateral maritime boundaries can be
‘perfectly valid and binding on the treaty level’ but contrary to international law
‘when the relations between the parties and a third State are taken into
consideration’.135 Consequently, ‘[i]t is … not uncommon in maritime boundary
agreements for the parties to agree that they will negotiate with third parties in the
future on potentially overlapping jurisdiction’.136 Moreover, maritime boundaries
can be contested by third States when their rights are infringed,137 regardless of
whether the constituting arrangement anticipates such action.138
UNCLOS article 311(3) affirms that, although States may generally derogate
from UNCLOS provisions in bilateral agreements, such agreements may not
violate basic principles of UNCLOS or affect rights attributed to third States. In
fact, boundary agreements that violate the land dominates the sea principle, or the
rights of third States, might be seen as nullities.139 At any rate, treaties cannot create
obligations for States without their consent140 and decisions of the ICJ have ‘no
binding force except between the parties and in respect of that particular case’.141
This means that the stability of bilateral maritime boundaries, whether established
through agreements or judicial decisions, may be threatened if changes to relevant
coastal geography lead to a violation of the land dominates the sea principle142 or
creation of new rights for third States.
5 Conclusion
This article has explored the effects that coastal changes have on maritime
entitlements, and explained what States can do to minimize fluctuations of limits
de lege lata through unilateral claims, acquiescence and bilateral arrangements.
Changing coastal geography is bound to have an impact on maritime entitlements
under UNCLOS because of the inherent link with land territory, specifically the
coastal front. Yet, the limits and boundaries demarcating the extent of maritime
entitlements can be stabilised in some instances, justifying a departure from a strict
reading of UNCLOS provisions governing maritime limits.

134 See UN Doc A/CN.4/SER.A/2006/Add.1 (Part 2) (n 87) para 176.
135 Burkina Faso/Republic of Mali (n 109) para 47.
136 Cissé Yacouba and Donald McRae, ‘The Legal Regime of Maritime Boundary Agreements’, in
David A Colson and Robert W Smith (eds) International Maritime Boundaries, vol V (Martinus Nijhoff
2005) 3281, 3298.
137 Ibid, 3297.
138 See more about potential effects for third States in Julia Lisztwan (n 96) 176-177.
139 See Geoffrey Marston (n 34) 156.
140 VCLT article 34.
141 Article 59 of the ICJ Statute.
142 For details on the implications of the land dominates the sea principle, see Snjólaug Árnadóttir,
'The Impact of Sea Level Rise on Maritime Limits: A Grotian Moment in the Law of the Sea?' (2021)
42 (2) 276-302.