Clive Schofield * and David Freestone **

Transcription

1 Holding Back the Waves: Options to Secure Maritime Jurisdictional Claims in the Face of Sea Level Rise Clive Schofield * and David Freestone ** *Australian National Centre for Ocean Resources and Security (ANCORS) ** The George Washington University Law School

2 Internal waters Territorial Sea Baseline Maritime Jurisdiction Zones 12 M Contiguous zone Territorial sea 12 M Continental Shelf Sea-bed, Subsoil, Sedentary Species Exclusive Economic Zone (EEZ) Water Column, Sea-bed, Subsoil 200 M (Extended Continental Shelf) High Sea The Area Sea Level madeandi@ugm.ac.id 2008 Shelf Upper Slope Plateu or Terrace Lower Slope Rise Deep Ocean

3 Claims measured from where? According to UNCLOS 82 B archipelagic Mouth of a river reefs straight bay Normal (Art. 5) Reefs (Art. 6) Straight (Art. 7) Mouths of rivers (Art. 9) Bays (Art. 10) Ports and roadstead (Art. 11 and 12) Combination of methods Archipelagic (Art. 47) normal A

4 Normal Baselines LOSC, Article 5 Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State. In effect a state s default baseline BUT what is low-water line

5 The Meaning of the Low-water Line Low water line dependent on choice of vertical datum Vertical datum = level of reference for vertical measurements (depths, height of tide, elevations) the zero line Many options Lowest Astronomical Tide (LAT) recommended for charts by the International Hydrographic Organization (IHO)

6 Chart Datum: A Very Low Low Water Line

7 Dynamic Coasts It has long been understood that coastlines move over time not all negative: Deposition as well as Erosion Extreme example: McDonald Island

8 Remote Sensing: McDonald Island QuickBird image - 9 April 2003 Multi-pan merge (0.37m pixels) Aerial photo 1 March 1980

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11 Sea Level Rise IPCC AR4 estimate: m by 2100 Conservative methodology The wild cards: destabilisation, break up and melting of Greenland and Antarctic ice sheets How much and how quickly Spatial and temporal variability Uneven impacts

12 Modified from WBGU and Archer, 2006

13 Potential Impacts Seaward impacts: Changes to baselines and maritime limits Landward impacts: Coastal areas less habitable

14 Ambulatory baselines - shifting maritime limits Normal baselines (low-water line - LAT) Salient basepoints along baselines Maritime claim limits using the envelop of arcs method

15 Ambulatory baselines and shifting maritime limits IMPACTS: Extent and limits of maritime claims Enforcement issues Jurisdictional uncertainty Potential for conflict Loss of jurisdiction over valuable marine resources

16 Uneven Impacts - Baselines, basepoints and maritime limits

17 Implications for Islands The Regime of Islands provides for two types of islands: Islands capable of extended maritime claims Rocks that cannot sustain human habitation or economic life of their own cannot Question: If sea level rises and an island is rendered uninhabitable should it be reclassified as a rock?

18 Islands versus Rocks If an island capable of making EEZ and continental shelf claims and no maritime neighbours within 400 nautical miles: 200nm Area of 125,664nm 2 (431,014km 2 ) If a rock, incapable of generating EEZ and continental shelf claims a territorial sea of 452nm 2 (1,550km 2 )

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20 Response Options Physical Responses Retreat Defend with engineering Hard Soft Legal and Policy Response Options

21 Retreat Planned retreat and relocation Netherlands, UK Cateret Islands, Papua New Guinea South Talpatty/New Moore

22 Holding the Line Holding the Line Sea defences and engineering works Interruptions to sediments supply and unintended consequences Appropriate for critical basepoints Example: Okinotorishima Unrealistic elsewhere?

23 Okinotorishima: Maritime Claims

24 Okinotorishima: Extended Continental Shelf

25 Okinotorishima

26 Okinotorishima

27 Okinotorishima

28 Tuvalu and Sea- Level Rise

29 Tuvalu and Sea- Level Rise Physical defences unrealistic? Fanafuti 54kms of sea defences required to protect 2.5km 2 of land

30 Legal and Policy Options Lowest astronomical tide Choice of chart Use of other types of baseline Declaring and fixing baselines Fixing Maritime Limits Delimiting maritime boundaries

31 Legal Responses Fixing Baselines: Choice of Chart The last part of Article 5 states that the normal baseline is the low water line as shown on: large-scale charts officially recognised by the coastal State Choice of chart left up to the coastal State May then be a difference between the low water line shown on the chart and reality?

32 Fixing Ambulatory Baselines on Unstable Coasts The drafters of the Convention did not anticipate sea level rise But Bangladesh Exception for unstable coasts may be more widely used: Where because of... natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the lowwater 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 (Article 7(2))

33 Fixing Limits and Boundaries Various types of straight line baselines Connection to the low water line still required Agreed maritime boundaries remain fixed even if baselines regress The outer limits of the continental shelf may also be fixed as final and binding

34 Conclusions Modern estimates of >1.3 metres by 2100 Will be episodic and variable Legal implications of, and responses to, of SLR identified by earlier writers two decades ago Some agreed boundaries are fixed by treaty and after CSC rulings International treaty action unlikely Rely on flexibility of State Practice and customary law

35 ththank T Thank you!