Dear Alex and int-boundary friends,

Thanks for your reminder about article 76.

I feel that the problem can be properly addressed by 
making a clear distinction between entitlement over and 
delimitation of maritime spaces. Let me build my case 
from its foundations:

From an entitlement perspective, I stand behind each 
of the statements made in my message. Since land is the 
source of rights over the sea, an island that no longer 
can sustain habitation or that no longer has an economic 
life of its own is not entitled to an exclusive economic 
zone or to a continental shelf. Submarine elevations, 
which might have been islands in the recent past or in 
geological time, cannot generate rights over any maritime 
spaces.

From a delimitation perspective, either in the form of the 
determination of a unilateral outer limit or in the form 
of an international boundary between States, juridical 
title to a maritime space is clearly a pre-requisite. If 
title to generate a maritime space is not demonstrated, 
delimitation has no legal foundation. Delimitation can 
not be performed in a retroactive or extemporaneous manner.

The true test arises as a result of a natural change on an 
island over time, which also has a consequent impact on its 
changing juridical status. If legal title has been demonstrated 
and delimitation has followed as a result, the outer limit or 
the international boundary will be final and binding on that 
coastal State or the States Parties to the boundary agreement.
These outer limit and boundary will be in force for the State 
or States Parties to the agreement as long as the legislation 
or treaties remain also in force.

It is interesting to point out, however, that these limits 
and boundaries are not binding on other States per se as a 
result of those delimitations automatically. Acquiescence 
to the outer limit or to an international boundary by other 
States over a period, often difficult to determine with 
precision, is required to warrant the full stability and 
permanence of those limits and boundaries.

But time has a double effect in this process. Time becomes not 
only an important element to consider potential acquiescence 
by other States, it is also an important element vis-à-vis 
the natural change of an island. Other States could submit a 
protest to a State for a given piece of legislation or to both 
Parties to a boundary agreement if they felt that there was no 
juridical basis for the acquisition of title over a given maritime 
space. There are multiple instances of protests against baselines 
or international maritime agreements, for example. Certain kinds 
of loss of title over maritime spaces can occur of course as a 
result of a natural and juridical change from an island/island 
to an island/rock or due to its outright disappearance.

Perhaps it is precisely as a result of the above considerations 
that a number of coastal and island States have paid particular 
attention to the well-being of at least some of their most 
critical islands notwithstanding the effects of coastal erosion, 
loss of reef habitat, pollution and, yes, sea-level rise.

The issue of activities over maritime spaces is simpler in my 
mind.  As long as a State exercises jurisdiction over a given 
maritime space, it is entitled to carry out in it any of the 
activities contemplated in international law. Entitlement and 
delimitation are the key factors.

Sincerely,

Galo Carrera

> Just read your reaction on baselines. Was wondering how you 
> consider articles 76(8) and (9) of the LOS Convetion fit into 
> this, as continental shelf boundaries are final and binding 
> and permanently described? There is of course also the issue 
> of existing acvities on the shelf/EEZ/territorial sea, how do 
> you deal with these if the EEZ/shelf/territorial sea no 
> longer are there? Best wishes,