Sea Level Rise and Shifting Maritime Limits: Stable Baselines as a Response to Unstable Coastlines

• Author: Signe Veierud Busch
• Pages: 76-96

174

Arctic Review on Law and Politics

Vol. 9, 2018, pp. 174–194

*Correspondence to: Signe.busch@uit.no

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Citation: S.V. Busch. ‘‘Sea Level Rise and Shifting Maritime Limits: Stable Baselines as a Response to Unstable Coastlines”

Arctic Review on Law and Politics, Vol. 9, 2018, pp. 174–194. http://dx.doi.org/10.23865/arctic.v9.1162

Sea Level Rise and Shifting Maritime

Limits: Stable Baselines as a Response

to Unstable Coastlines

Signe Veierud Busch*

KG Jebsen Centre for the Law of the Sea, UiT the Arctic University of Norway

Abstract

It is a long known f act that climate change w ill result i n sea level rise an d dramatica lly changed

coastline s for a number of coastal States , and the physical conseq uences of sea level rise are mos t

likely unavo idable for several coa stal States due to t heir geogra phical locatio n, size and

topography. It is hig hly debatable whether t he Law of the Sea Convention is e quipped for dealing

with the c urrent cha llenges of sea le vel rise and ma ritime li mits, and it may b e argued that its

rule of ambu latory baseli nes may contri bute to loss of territo ry, relocation of mar itime zones ,

uncertainty and instability.

This ar ticle investigates t he current status of t he law regulating ma ritime limits wh ich may be

affecte d by sea level rise, and argues that the be st solution is to adapt the law with in the current

legal fra mework of the Law of t he Sea, by under taking a l iberal inte rpretation of t he already

existi ng provisions of t he LOSC, instead of invoking t he amendment procedures of t he LOSC,

a new supplementar y agreement or cre ating new customa ry law. In particu lar, the article e xplores

the option of re -interpreting t he law of baselines i n Article 7, offering a n adapting meas ure that

mitigates t he climate change effe cts on sea level ri se. It is argued t hat a liberal interpr etation of

the LOSC ca n contribute to inc reased stabil ity and jur idical protec tion of the mar itime

entitlements fo r some of the States sufferi ng the consequences of sea level r ise.

Keyword s: baselines, sea level rise, a mbulatory limits, d elta baselines, stability,

adaptation, climat e change, LOSC, vulnerable Sta tes, small island States, unst able

coastline, straight baselines

Responsible Editor: Øyvind Ravna, UiT - The Arctic University of Norway,

Tromsø, Norway.

Received: Februar y 2018; Accepted: May 2018; Published: June 2018

Sea Level Rise and Shifting Maritime Limits

175

1. Introduction

For three decades, scientists have warned us of climate change, global warming and

sea level rise.1 In its fth report, the Intergovernmental Panel for Climate Change

(IPCC) estimated a sea level rise from the 1986 level to between 26 and 82 centime-

tres by the end of this century.2 In addition, regional sea level changes will differ

substantially from the global average.3

For low-lying coastal States, the consequences of such a rise in sea level will be

catastrophic. It is estimated that a one-metre sea level rise will ood territory that is

presently home to more than 60 million people.4 A one-metre sea level rise will sub-

merge approximately fteen percent of Bangladesh and displace more than seven

million inhabitants in the Mekong delta area of Vietnam alone.5 The low-lying areas

that are not entirely submerged will be particularly vulnerable to periodic ooding

and exposed to extreme weather conditions; saline intrusion will affect agricultural

land and contaminate freshwater sources.6 Low-tide elevations, reefs, rocks and

low-lying islands may be ooded or damaged by erosion. Small island States may

partially or fully disappear due to sea level rise, or they may be rendered uninhabit-

able. The changing coastline affects the location of a number of maritime limits.

National boundaries may be affected, and in certain instances particularly vulnerable

States risk losing land territory that is the basis for their existence.7

Ever since the IPCC issued its rst report in 1990, legal scholars have pointed

tothe insufciencies of the Law of the Sea Convention (LOSC)8 as regards the law

onbaselines, and have called for a change.9 Amongst others, Caron10 and Soons11

published their research on the effect that sea level rise would have on maritime

boundaries.12 They observed that the legislation concerning the establishment of the

different maritime limits was in no shape to tackle the expected sea level rise, and

they expressed concern about how the law of the sea could adapt to the changes.

They called for change, either by means of amending the rules of the LOSC, a new

supplementary agreement, or new customary law.

Close to thirty years later, the same questions are raised, and the same arguments

made. The legal framework remains unchanged. This article sets out to discuss the

current status of the laws on maritime limits that may be affected by sea level rise and

focuses on measures that may be taken within the current legal framework to adapt

to sea level rise, instead of calling for amendments or a new supplementary agree-

ment, or creating new customary law. More concretely, the question raised is whether

we can adapt to sea level rise by means of re-interpreting the law on baselines, and in

particular Article 7(2) of the LOSC on delta baselines.

In the following, I will rst briey discuss the issue of sea level rise in connection

with maritime boundaries. Next, I will discuss the consequences of sea level rise for

particularly vulnerable States, before I discuss the scope of the application and inter-

pretation of Article 7. I will discuss the extent to which more stable baselines can be

the appropriate response to unstable coastlines.