Dear Colleagues,

I am glad to see such an engaging discussion on this list of what may be a "sleeping giant" of an issue for boundaries and sovereignty over the coming decades.

Clive has noted the view that basepoints and baselines may be "ambulatory" (a view generally shared by David Caron in his forthcoming article on the issue, http://works.bepress.com/david_caron/39/).  David Anderson, quite rightly in my view, points to Article 7.2 of UNCLOS, which allows a coastal state to fix permanent straight baselines even where a coastline is "highly unstable" owing to "the presence of a delta and"--critically--"other natural conditions."  Climate change may be anthropogenic, but sea level rise remains, in my view (and in the view of many small island countries), a "natural condition" for these purposes.  Similarly, Article 76.9 makes the deposit of the description of the outer limit of the continental shelf "permanent"--presumably even if such a shelf was generated by an elevation that may no longer be capable of human habitation owing to sea level rise.  My advice for island countries and coastal states worried about the effect of sea level rise on the
ir maritime boundaries would thus be to fix your baselines and make your continental shelf claims as soon as possible.  I cannot agree that doing so would constitute an "abuse of right" given that these small islands bear practically no responsibility for the sea level rise that threatens their very existence.

On a tangentially related note, those of you in or near New York for this coming week might be interested in attending an event on the evening of Monday November 17.  We will be kicking off a General Assembly resolution being put forward by the Pacific small island countries (though co-sponsored by some 55+ countries in total, including the EU and Canada) that would, under Article 11.3 of the UN Charter, call the Security Council's attention to the threats to international peace and security likely posed by climate change and invite the Security Council to take appropriate measures in response.  The draft resolution is numbered A/63/L.8 for those interested and savvy enough with ODS to track it down.  Those interested in attending this event on Monday should contact me directly and I will be happy to share the invitation.

Regards,

Peter Prows
Briscoe Ivester & Bazel LLP
San Francisco

&

Adviser to the Permanent Mission of Palau to the United Nations

----- Original Message -----
From: DAVID ANDERSON <[log in to unmask]>
Date: Friday, November 14, 2008 3:05 am
Subject: Re: Maintaining the higher ground v. Stemming the Tide
To: [log in to unmask]


> Dear Colleagues,
> In his valuable contribution to this interesting discussion, Clive 
> Schofield 
> refers to the drafters of the LOS Convention and wonders whether they 
> 
> anticipated sea-level rise and instability when adopting Article 5 on 
> normal 
> baselines. I cannot recall today's concerns over sea level rise being 
> 
> expressed in the mid-1970s, but we were concerned very much with 
> questions 
> of instability. For example, the terms of article 7(2) were the result 
> of 
> long discussions about unstable deltas. Instability was also discussed 
> 
> whilst we were formulating Article 6 on reefs - the provision now most 
> 
> relevant in the context of the Maldives. Reverting to Article 5, it 
> has a 
> long pedigree. It was taken over from Article 3 of the Geneva 
> Convention on 
> the Territorial Sea & Contiguous Zone of 1958, based on the proposals 
> of the 
> International Law Commission. The latter were informed by the work of 
> the 
> League of Nations Conference of 1930 in Sub-Committee No.II, which 
> first 
> formulated the low-water line rule and, interestingly, added following 
> 
> clarification: "..."the line of low-watermark is that indicated on the 
> 
> charts used by the Coastal State, provided the latter line does not 
> appreciably depart from the line of mean low-water spring tides." The 
> 
> proviso was stated to be "[i}n order to guard against abuse." The 
> proposals 
> were not adopted in 1930, of course, and the ILC decided in 1956 not 
> to 
> retain the proviso on the grounds that Governments were hardly likely 
> "to 
> shift the low-water lines on their charts unreasonably." The proviso 
> was not 
> introduced into the TS Convention in 1958; but in the LOS Convention, 
> 
> Article 300 is headed good faith and abuse of rights, so the proviso 
> from 
> 1930 is applied to the whole Convention.
> Kind regards to all,
> David Anderson
> 
> 
> ----- Original Message ----- 
> From: "Clive Schofield" <[log in to unmask]>
> To: <[log in to unmask]>
> Sent: Thursday, November 13, 2008 11:13 PM
> Subject: Re: [INT-BOUNDARIES] Maintaining the higher ground v. 
> Stemming the 
> Tide
> 
> 
> > Dear Colleagues,
> >
> > Certainly this topic has stimulated an excellent and wide ranging 
> debate 
> > (thanks all - its a great illustration of what this list is all 
> about). In 
> > a sense, though, the discussions on buying/leasing territories in 
> order to 
> > meet the threat of the total inundation of a State, interesting as 
> it is, 
> > is not the most pressing issue.
> >
> > If the predictions of sea-level rise of c.59cm by the end of the 
> century 
> > are to be believed (and I take on board Victor's note of caution 
> regarding 
> > the uncertainties related to such predictions), then we are not 
> looking 
> > any any total inundations of coastal States anytime soon. Instead, 
> we have 
> > a more pressing concern regarding certain insular features, critical 
> as 
> > basepoints for the generation of expansive maritime jurisdictional 
> claims 
> > potentially having to be reclassified from island (or rock) to 
> low-tide 
> > elevation and ultimately simply to a sub-surface feature with 
> consequent 
> > impacts on the capacity of the feature/basepoint in question to 
> generate 
> > claims to maritime jurisdiction.
> >
> > In any case, as has been pointed out, it is conceivable that a 
> threatened 
> > State to 'buid-up', protect or reclaim around at least one (the 
> highest?) 
> > feature and thus preserve at least some territory above high-water 
> in 
> > order to at least technically fulfil the territorial component 
> necessary 
> > for Statehood.
> >
> > But what would be the point of this, as Irini notes, unless the 
> > entitlement to maritime zones as originally claimed from then above 
> 
> > high-tide features remains?
> >
> > One thought on this related to normal baselines. As many of you will 
> know 
> > very well Normal baselines are governed by Article 5 of the UN 
> Convention 
> > on the Law of the Sea which provides that:
> >
> > "Except where otherwise provided for in this Convention, the normal 
> 
> > baseline for measuring the breadth of the territorial seais the 
> low-water 
> > line along the coast as marked on large-scale charts officially 
> recognized 
> > by the coastal State"
> >
> > It has long been accepted that coastlines are dynamic so that as 
> > deposition or erosion occurs so the normal baseline will change and 
> this 
> > can have knock-on effects on the outer limits to maritime zones from 
> such 
> > normal baselines. Thus the normal baseline and maritime limits 
> measured 
> > from such baselines have been termed "ambulatory" (see Reed, "Shore 
> and 
> > Sea Boundaries").
> >
> > As a solution (of sorts) to the problem of sea-level rise and the 
> > potential dissappearance of critical basepoints and associated 
> maritime 
> > claims I would suggest emphasising the latter part of Article 5: 
> that is 
> > the low-water line "as marked on large-scale charts officially 
> recognized 
> > by the coastal State."
> >
> > It seems that the choice of chart, and thus low-water line/normal 
> > baseline, is left up to the coastal State. The coastal State is 
> therefore 
> > at liberty to choose a chart advantageous to it. Could not a coastal 
> State 
> > threatened by sea-level rise opt to "officially recognize" a chart 
> showing 
> > the threatened feature(s) in their above high-tide state pior to the 
> 
> > advent of sea-level rise?
> >
> > Admittedly, there might well be a tension between the officially 
> > recognised chart and (increasingly) reality but most of the legal 
> > authorities I've read seem to suggest that it is the chart that is 
> the 
> > legal document on which we should rely. In any case, it does seem to 
> me 
> > that the drafters of the Convention certainly did not anticipate 
> sea-level 
> > rise and imagined that there would be a degree of stability 
> associated 
> > with normal baselines.
> >
> > Such a scenario (retained maritime entitlements despite sea-level 
> rise) 
> > would at least give the States involved something to bring to the 
> table in 
> > negotiations to accommodate their refugee populations.
> >
> > Ultimately, however, I guess that the usefulness of such a policy 
> would 
> > turn on whether other States would be willing to recognise (or 
> continue to 
> > recognise) claims made from "territory" that once was above 
> high-water 
> > level but no longer is.
> >
> > Best regards all,
> >
> > Clive