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