Rising Seas, Receding Coastlines, and Vanishing Maritime Estates and Territories: Possible Solutions and Reassessing the Role of International Law

in International Community Law Review
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Abstract

This article probes the role of international law, (namely, the international law of the sea, the international rules on statehood, and international environmental law) in providing a legal and normative framework to help countries respond to the challenges brought about by sea level rise. It is noted that possible solutions can operate at two levels – first, by re-engineering existing international rules to secure continuance of the rights and privileges guaranteed under existing international law, and second, by bringing to the fore the need to develop international rules on integrated coastal zone management to facilitate the implementation of coastline armouring. The central argument here is that while new rules and principles of international law are required at both levels, the emphasis should, as a first step, be on rule development vis-à-vis integrated coastal zone management.

Rising Seas, Receding Coastlines, and Vanishing Maritime Estates and Territories: Possible Solutions and Reassessing the Role of International Law

in International Community Law Review

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References

56

Schofieldsupra note 50 p. 33.

83

Caronsupra note 8 p. 9.

90

Caronsupra note 8 p. 2. See also ibid. p. 9 (stating that when the baseline anchor is submerged the baseline will have to be redrawn based on valid exposed baselines points and the ocean boundary that was generated from the previous baseline will also have to be redrawn based on the new baseline).

91

Leva and Moritasupra note 84 p. 18. See also ibid. p. 9. Jenny Grote Stoutenburg “Implementing a New Regime of Stable Maritime Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise” 26 The International Journal of Marine and Coastal Law (2011) pp. 263 269. The United States Supreme Court has had several occasions to deliberate on this aspect. For instance see United States v. Louisiana et al. (Louisiana Boundary Case) 394 u.s. 11 (1960) (the factual matrix revolved around certain offshore oil reserves near the Mississippi River Delta. In line with the 1958 Convention the Court interpreted baselines to be ambulatory. It was held that “[t]he term ‘coast line’ as used to determine the three-mile grant of submerged lands has been held to mean the modern ambulatory coast line . . .”).

92

Leva and Moritaibid. p. 20.

93

Stoutenburgsupra note 91 p. 268.

98

Schofield“Shifting Limits?”supra note 50 p. 409. It is pointed out that if an island has no maritime neighbours within 400 nautical miles it can generate 431014 square kilometers of territorial sea eez and continental shelf rights. On the other hand if it is considered to be a mere “rock” incapable of generating eez and continental shelf rights it can still create a territorial sea of 1550 square kilometers. The voluntary reclassification of Rockall by United Kingdom from full “island” to “rock” resulted in a loss of around 60000 square nautical miles of fishery zone.

99

Freestone and Pethicksupra note 47 p. 79.

105

Stoutenburgsupra note 91 p. 275. The author argues that both the baselines and the outer limits of the different maritime zones need to be permanently fixed. If only the outer limits of the different maritime zones were fixed and the baselines were allowed to ambulate it will harshly impact the archipelagic states as they may not be able to comply with the archipelagic baseline rules which stipulate a specific water-to-land ratio and a maximum allowable length for the archipelagic straight baselines.

108

Stoutenburgsupra note 91 pp. 269 270.

111

Lisztwansupra note 13 p. 170.

112

Schofield“Shifting Limits?”supra note 50 p. 413.

113

Stoutenburgsupra note 91 pp. 275 276 (arguing that in such cases the coastal state only continues to retain sovereignty over the territory which has presently become submerged).

116

Stoutenburgsupra note 91 p. 280. See also Aegean Sea Continental Shelf Judgment I.C.J. Reports 1978 p. 3 para 85. The case is essentially equating a maritime boundary agreement with those establishing land frontiers and stating that it “is subject to the rule excluding boundary agreements from fundamental change of circumstances”.

118

Schofield“Shifting Limits?”supra note 50 p. 416.

119

Rayfusesupra note 20 pp. 8 9 (describing the relocation of Icelanders in what is now southern Manitoba and their ultimate integration into Canada). See also Schofield “Shifting Limits?” ibid. p. 415.

120

Rayfuseibid. p. 12.

125

Alex Kirby“Islands disappear under rising seas”BBC News14 June 1999. See also Pacific at Risk: Our Islands Our Lives available <http://www.sprep.org/att/publication/000142_Pacific_at_Risk.pdf>.

128

Rayfusesupra note 20 p. 6.

130

Rayfusesupra note 20 p. 10. The author refers to the Sovereign Order of the Military Hospitaller Order of St John of Jerusalem of Rhodes and of Malta (or the Order of St John or the Knights of Malta. Having lost its territory when rejected from Malta by Napoleon in 1798 it has historically been considered a sovereign international subject and is recognised by a large number of states. It also enjoys the rights of active and passive legation treaty making and membership of international organizations. As well the Papal See was recognized as a state despite possessing no territory between 1870 when it was annexed by Italy. Ibid.

132

Rayfusesupra note 20 pp. 10 11.

133

Ibid. p. 11.

135

In 2001Tuvalu approached Australia and New Zealand with a request to accommodate its population. While Australia refused New Zealand agreed to a 30-year immigration program under which 75 Tuvaluans are accepted per year provided they are of good character and health less than 45 years of age possess English language skills and must have a job offer in New Zealand. However the offer is completely inadequate given that Tuvalu has a population of approximately 11000. See Rayfuse supra note 20.

139

Oliversupra note 136 p. 238.

140

Rayfusesupra note 20.

145

Ibid. p. iii.

146

Ibid. p. 1.

147

Ibid. pp. 311–312.

148

Ibid. p. 7.

159

Gagainsupra note 75 p. 119. Simon Gardner New Maldives Island Rises from the Depths available <http://rense.com/general60/newmaldivesisland.htm>.

189

Cicin-Sain and Knechtsupra note 167 pp. 67–117.

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