Projecting Change

This chapter looks at debates over whether the charted or ‘actual’ low-water line constitutes the normal baseline in commentary considering the implications of climate-related coastal change for maritime jurisdiction. It suggests that there has been some conflation of legal lines with the geographical objects by reference to which they are constructed or described. This seems to have encouraged the attribution of the natural variability of features of the coastal environment to both cartographic constructs and legal limits. The chapter revisits the text and drafting history of UNCLOS and the 1958 Conventions to explain why the identification of natural objects and qualities with either or both cartographic and legal constructs misunderstands the role of charted geographical features in the law.

UNCLOS and the ‘Ambulatory Thesis’

This chapter introduces David Caron’s influential argument that Articles 7(2) and 76(9) of UNCLOS ‘negatively imply’ that baselines and the zonal limits measured from them are, as a general rule, ambulatory. It points to two important differences between these provisions neglected by Caron’s analysis. It explains why it is necessary to revisit Articles 7(2) and 76(9) with a view to determining the ordinary meaning of their terms in context and in light of the treaty’s object and purpose—the project of the following two chapters. Caron’s argument is premised on a problematic interpretation of the relevant provisions and UNCLOS more broadly.

The Permanent Limits of the Continental Shelf

This chapter traces the development of the regime of the continental shelf. It challenges the claim that UNCLOS Article 76(9) exceptionally secures the limits of the continental shelf against subsequent coastal change. The permanence of the outer limits of the continental shelf was intended to preserve an area of the seabed beyond national jurisdiction as the common heritage of mankind. The law also provides that the limits of the continental shelf beyond 200 nautical miles (M), which are not defined by distance from the coast, are ‘final and binding’. Neither Article 76(9) nor any other element of the regime of the continental shelf can be said to imply the ambulatory character of baselines and the zonal limits measured from them. Indeed, the requirement to permanently establish the limits of the continental shelf implies that the coastal State is ordinarily permitted rather than required to revise established maritime limits.

Conclusion

This Conclusion brings together the results of the preceding analyses in an account of the limited legal significance of geographical change for maritime jurisdiction. It considers some final instances of State practice that may appear to support the ambulatory thesis. It is demonstrated that while the relevant practice is not unlawful, it does not show that maritime limits must be adjusted in response to geographical change under international law. More broadly, geographical change, including climate-related change, does not threaten the ‘legal order of the seas and oceans’ in the manner that some recent commentary on the implications of climate change for maritime jurisdiction suggests. The existing law does not provide for ambulatory maritime limits or condition continuing entitlement to maritime space on geographical circumstances remaining unchanged. States wishing to retain established entitlement to maritime space and unilaterally established maritime limits in the event of coastal change are permitted to so, unless they no longer possess territorial sovereignty over coastal land (which also depends on whether they intend to give it up). International boundaries, including maritime boundaries, may be fixed or ambulatory, but unless there is clear evidence that an ambulatory boundary was intended, there will be a presumption that established boundaries will not shift with subsequent changes to either the coast or territorial sea baselines. The law was not developed in ignorance of the changeability of coastal geography but makes use of geography in ways that do not leave sovereignty, sovereign rights, or legal limits and boundaries vulnerable to the vicissitudes of nature. The role of geography in the law of the sea contributes to rather than undermines the stability of a spatial and functional division of State rights in the sea. In this regard, it is not necessary to amend the existing law in response to the impacts of climate-related change on the oceans and coasts; instead, it is important to better understand it.

Conditions over Time

This chapter considers what may be the most influential assumption underlying the ambulatory thesis—a belief that the conditions set out in the baselines provisions require satisfaction on a continuing basis. The same assumption is at work in claims that geographical change will precipitate a loss of entitlement to maritime space where such entitlement appertains to a feature defined in geographical terms—e.g. an island or archipelago. This (implicit) line of reasoning raises broad questions relating to intertemporality, which Max Huber’s distinction between the creation and subsistence of rights helps to both clarify and answer. This chapter explores a legal distinction between the creation and continuing existence of entitlement to maritime space and the construction and subsistence of maritime limits and boundaries. It also considers the conditions in which territorial sovereignty and statehood may be lost, offering a new analysis of the significance of effectiveness in this context.

Charting Change

This chapter further examines the relationship between cartography and the role of geography in the law. It explores a line of reasoning that has not been developed in the existing literature, though it is of clear relevance to the question of the implications of geographical change for maritime jurisdiction. The role of nautical charts in delimitation suggests the relevance of the practice of regularly updating such charts to increase their accuracy and respond to coastal change. This chapter asks whether this implies an obligation to adjust maritime limits or boundaries accordingly. It concludes that this is not the case. Examining the legal relevance of the accuracy and currency of geographical information, it explains why new charts and other evidence of either inaccuracy in the geographical information relied upon for delimitation or subsequent geographical change will not invalidate or require the revision of established limits and boundaries.

Principles and Presumptions in an Assessment of Boundary Fluidity

This chapter argues that the question of the implications of geographical change for international boundaries is properly answered by an interpretation of the boundary treaty, award, or decision in the particular case. Emphasizing the difference between the finality of the agreements or decisions establishing a boundary and the question of whether the boundary they establish is ambulatory, it seeks to clarify the legal principles and presumptions informing the latter enquiry. The chapter explains how and why the implications of geographical change for international boundaries may vary, examining both maritime and land boundaries in this regard. It interrogates and qualifies the familiar claim that a ‘rule of accretion’ governs geographical change in the case of river boundaries, which has been drawn on analogically in some versions of the ambulatory thesis. The principle of stability has an important bearing upon an assessment of the implications of geographical change for interstate boundaries.

Article 7(2) and the Special Case of Deltaic Coasts

This chapter provides a detailed analysis of UNCLOS Article 7(2), which provides that ‘notwithstanding subsequent regression of the low-water line’ straight baselines on deltaic coasts ‘shall remain effective until changed by the coastal State in accordance with [UNCLOS]’. Examining the treaty text, drafting history, and relevant State practice, the chapter challenges the idea that Article 7(2) exceptionally ‘fixes’ baselines that would otherwise shift with the coast. It is suggested that an alternative reading is more consistent with the ordinary meaning of Article 7(2) in context and in light of UNCLOS’s object and purpose. Turning to the drafting history for confirmation, however, reveals a surprising disjunction between (a) the proposals on which Article 7(2) is widely understood to be based, and (b) the meaning and effect of that provision. This has consequences in terms of what Article 7(2) can be said to imply about the fluidity of baselines.

Geography in the Law of the Sea

This chapter examines the role of geography in the law as a logically prior step to an investigation of the implications of geographical change for maritime jurisdiction. It draws out the symbolic and functional value of geography in the law of the sea, which is connected to the grounding of maritime entitlement in the ‘fact’ of territorial sovereignty over coastal land. This study challenges the idea that geography has or should have a highly determinative role in the construction of maritime limits in order to guard against the excesses of the coastal State. It also challenges the characterization of geographical factors as ‘objective’ considerations to be preferred over ‘subjective’ considerations in both unilateral and bilateral delimitation. The chapter examines the role of geography in connection with entitlement to maritime space, maritime limits, and international maritime boundaries, paying particular attention to the legal regime of the continental shelf.

Introduction

The question of the implications of geographical change for maritime jurisdiction has taken on a new urgency in view of the present and projected impacts of climate change on the coastal and marine environment. However, this introductory chapter argues that climate-related change is properly located within a broader category of geographical change of potential significance for entitlement to maritime space and maritime limits and boundaries. The existing literature has emphasized the novelty of climate-related change, concluding that the law as it stands is ill equipped to respond to this phenomenon and even exacerbates its harms. This chapter recalls that an awareness of the dynamic character of the coastal environment has accompanied the development of a legal order that gives coastal geography a key role in connection with entitlement to maritime space and its spatial specification. It outlines the book’s central arguments, which are grounded in a close analysis of the existing law.