Therefore, the core question is to establish whether the baselines, from which are measured the maritime zones attributed by UNCLOS to the coastal States, shall be ambulatory, following thus the possible changes of the coastline, or if they shall stay fixed, regardless those changes. The legal gap on this question requires a preliminary reflection on its various extensions in order to draw the main challenges likely to arise as well as some possible elements of a solution.
Depending on the coastal geography, sea level rise can have impacts ranging from an immersion of some centimeters with insignificant consequences to the disappearance of entire islands and island States. Therefore, the sea level rise phenomenon, whose intensity’s geographical and timing distribution is hard to forecast, may have huge legal, political, security, environmental and economic effects.
What would happen to the natural resources located in the EEZ of an island or an island State likely to disappear partially or entirely, especially in the case of small islands developing States possessing considerable oceanic spaces under their national jurisdiction? What about the “final and binding” limits of the continental shelf as defined in UNCLOS article 76 §8? A State’s EEZ or territorial waters’ limits may be ambulatory but not its continental shelf’s, even if these zones are measured from the same points? What would happen to maritime borders negotiated during decades or established by an international court’s decision -supposed to be a guarantee of security and stability- if the geographical data that generated those borders were to be altered, as it could become the case with Bangladesh or Asia-Pacific small island States? Put another way, couldn’t the modification of the borders’ environmental and geographical context lead to the invalidation of the basis of an international justice decision establishing them, when, moreover, these decisions are supposed to be final and mandatory? What would be, for instance, the reaction of the U.S. and Cuba regarding their common maritime borders if Florida’s swamps were to be submerged further to a 1, 5 meter rise of the sea level? The security implications of such a possibility are already questioned in the U.S., suggesting that this issue could be raised in the future.
These numerous questionings also challenge some UNCLOS core principles such as, for instance, domination of land over the sea, equity, or common heritage of mankind. Are these principles likely to become obsolete as a result of sea level rise? Should we rethink them due to the inexorably changing context in which they were adopted? What would be the consequences of challenging those principles?
Followed to the letter, domination of land over the sea would mean a ceaseless shifting of maritime borders depending on the retreat of the coastline. Is this conceivable? Is this desirable? Is this simply possible if we take into consideration all the regulations and maritime activities relying on borders’ stability at a global scale? If not, what would be the consequences of the disrespect of this principle?
Similarly, equity and common heritage of mankind, two principles which resulted from the will to avoid an uncontrolled -and therefore unfair- exploitation of the oceans and to consider landlocked States’ interests, could also be challenged by sea level rise. Indeed, could they be used by landlocked and developed States in order to claim rights on the maritime areas previously under the national jurisdiction of totally of partially submerged States? If yes, what would happen to people affected by the loss of territory? After their land, would they also lose their rights on the wealth generated by what used to be their maritime domain and enabled them to live? Doesn’t international community have a moral duty towards a country like the Maldives, who is responsible for 0,003% of the global CO2 emissions but is among the first potential victims of the sea level rise?
Here are many questionings, various but interlinked, raised by a same phenomenon likely to affect the world in the next decades and challenging the interpretation of notions like legality, equity, justice or the benefit of mankind, all essential components of UNCLOS. To most of these questions there is not any answer yet. Nevertheless, considering the large range of impacts and possible scenarios caused by a rise of the sea level, it seems necessary to get down to basics: the solution should, just as UNCLOS, be preventive, global, and compromise with political, security, environmental, economic and moral considerations, while emanating from the principles and objectives of the Convention as stated in its preamble. This represents both a challenge and an opportunity to prove and improve the structural nature of UNCLOS’ durability and adaptability towards the new challenges that will ineluctably continue to arise given a context in which human activities tend more and more to move at sea, and, therefore, require an efficient and adapted global legal framework able to regulate them.
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-DASGUPTA Susmita, LAPLANTE Benoît, MEISNER Craig WHEELER David and YAN Jianping, “The Impact of Sea Level Rise on Developing Countries: A Comparative Analysis”, World Bank Policy Research Working Paper 4136, February 2007, 51 p.
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-VEITAYAKI Joeli, MANOA Pio and RESTURE Alan, “Addressing Climate Change and Sea Level Rise in the Pacific Islands”, Kagoshima University Research Center for Pacific Islands Occasional Papers, No. 47, 2007, pp. 1-17.