A Call to Action: Registration of Baselines for Small Developing Island States

A. Faure October 15, 2011

 Introduction 

Sea level rise due to climate change will impact all coastal states. Coastal erosion and

inundation, and the associated destruction of property and infrastructure, will impose

enormous costs on governments, individuals, and ecosystems. However, none are so

vulnerable as small developing island states, many of which risk the loss of wide swaths, if

not the entirety, of their territory. Aside from the losses resulting from the submersion of land,

there is a risk that, following an interpretation of the United Nations Convention on the Law

of the Sea (UNCLOS), states’ exclusive economic zones (EEZ) and other maritime zones

will shrink as a result of sea level rise. If a low-lying island state loses so much of its territory

that it become uninhabitable—as may happen in time to Tuvalu and the Maldives, for

instance—then it risks losing rights to its entire EEZ.1 States have a sovereign right to exploit

the resources of the seabed, the subsoil, and the water column of their EEZ; thus, the loss of

part of all of a country’s EEZ means a corresponding loss in access to much-needed revenue

from fisheries and hydrocarbon resources. Especially in light of the fact that the majority of

small developing island states are victims of, and not contributors to, anthropogenic climate

change, this denial of EEZ resources hardly seems equitable.

                                                        1 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 561, art. 121 [hereinafter UNCLOS].

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Many authors have pointed out the inherent unfairness in such an interpretation of the

UNCLOS and have suggested legal remedies to what is called the “ambulatory baseline”2

problem. In contrast, this paper does not suggest potential legal mechanisms to address this

problem. Instead, this paper aims to highlight the urgency of establishing baselines, clarify

which island states have—and perhaps more importantly, which have not—deposited and

publicized baselines with the United Nations (UN), and indicate potential sources of financial

and technical assistance for countries seeking to establish baselines.

Baselines

Of all maritime boundaries contained in the UNCLOS, the baseline is supreme. This is

because all other boundaries—namely the limits of the internal waters, the territorial sea, the

contiguous zone, the exclusive economic zone, and the continental shelf—are defined relative

to it.3 Typically, the baseline follows the low-tide line along the coast; however, the

UNCLOS provides for the more complex situations of highly indented coastlines and

archipelagic states. Article 47 of the UNCLOS specifies that archipelagic islands may “draw

straight archipelagic baselines joining the outermost points of the outermost islands and

drying reefs” under certain conditions. Thus, even if an archipelagic state runs no risk of

becoming uninhabitable as a whole, the inundation of one of its low-lying islands serving as

an outermost point for establishing the baseline could suddenly drastically reduce the size of

the EEZ.

At the time of the Convention’s writing, the science of climate change was in its

nascent stages. As a result, the UNCLOS did not account for the possibility of sea level rise,

                                                        2 David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict, in PUBLICATIONS ON MARITIME BOUNDARY DISPUTES, SETTLEMENT PROCESSES, AND THE LAW OF THE SEA (Seoung Yong Hong & Jon M. Van Dyke eds., 2009). 3 Territorial waters extend to 12 nautical miles (nm) from the baseline, the contiguous zone to 24 nm, the EEZ to 200 nm, and the maximum limit of the continental shelf to 350 nm.

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and thus did not anticipate the problem of ambulatory baselines. However, since the baseline

is typically measured from the low-tide line or a set of coastal points, it will recede as sea

levels rise. Since other maritime limits are measured against the baseline (namely 12, 24, and

200 nautical miles for the territorial sea, contiguous zone, and EEZ, respectively), any sea

level rise will result in an inward contraction of the baseline, which in turn will cause the

EEZ to shrink in size. While it is unclear whether the UNCLOS intended for baseline

delimitations to be permanent once they are publicized and submitted to the UN, many

observers believe that baselines are supposed to move as the sea level rises.4

Submitting baseline data according to Article 47

Not all coastal states—and most crucially, not all low-lying island states—have yet

submitted their baselines. The more a state waits to formalize its boundaries through

submission to the UN, the smaller its maritime zones become relative to their current size.

Regardless of what solution, if any, is adopted, the first legal line of defense of a small island

state against the loss of its maritime zones will be to point to their established and publicized

baselines. To maximize and preserve their EEZs, small island states, as a very first step,

should register their baselines with the UN as soon as possible (if they have not already).

Archipelagic states must follow Article 47 of UNCLOS to legitimize their established

baselines. Article 47 holds that “[t]he archipelagic State shall give due publicity to such

charts or lists of geographical coordinates and shall deposit a copy of each such chart or list

with the Secretary-General of the United Nations.”5 The UN Division for Ocean Affairs and

the Law of the Sea (DOALOS) more specifically requests that the submitting country include

                                                        4 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 INT’L J. COASTAL & MARINE L. 263, 269 (2011). 5 UNCLOS, supra note 1, art. 47.

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the WGS-846 geodetic datum of the baseline coordinates. This information must be

accompanied by a note verbale or a letter from a representative of the country and must

unambiguously state the country’s intention to deposit and publicize its baseline. National

legislation and bilateral delimitation treaties (even if registered with the UN) are not

sufficient to count as “due publicity” under the UNCLOS.7 Subsequently, DOALOS

publicizes the coordinates and/or charts in the Law of the Sea Information Circular and the

Law of the Sea Bulletin. According to DOALOS, there is no requirement that due publicity

should be done through the Secretary-General of the UN, even though a deposit of charts and

geodetic datum and subsequent publicity by the Secretary-General will serve that purpose.8

However, it is unclear whether states that have created but not deposited charts and geodetic

datum have actually established delimitations that are legally binding upon other members to

the UNCLOS. In fact, certain scholars argue that maritime zone delimitations that have not

been deposited with the UN according to the UNCLOS procedures are probably not legally

binding upon other member states.9

In light of the above, it is informative to examine which developing island states have

formally deposited their baselines and which have not. The table below sets out a non-

exhaustive list of small developing island states and their status in terms of depositing

baseline information with the UN as of October 2011. The table is sorted in order of lowest to

greatest point above sea level, as an admittedly imperfect indicator of which countries may be

                                                        6 Division for Ocean Affairs and the Law of the Sea, Deposit and Due Publicity—Background Information, (Mar. 13, 2009), http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/backgroud_deposit.htm. 7 Id. 8 Email from Vladimir Jares, Senior Law of the Sea/Ocean Affairs Official, UN Division for Ocean Affairs and Law of the Sea, Apr. 25, 2011. 9 Clive R. Symmons & Michael W. Reed, Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea, 41 OCEAN DEVELOPMENT & INT’L LAW, 1, 97 (2010), available at http://www.informaworld.com/smpp /content~db=all~content=a919351173.

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most at risk from sea level rise.10 This set of islands is a subset of the members of the

Alliance of Small Island States (AOSIS) that—with the exceptions of the Cook Islands and

Niue—is limited to fully sovereign developing and least-developed countries.

Status of Submission of Baselines for Developing Island states11

Country Were baselines deposited with the UN

Secretary General?

Source Highest point above sea level (in meters)

Maldives* Yes Bulletin 41 2 Tuvalu***** No 5 Marshall Islands No 10 Niue***** No 60 Nauru Yes Bulletin 41 61 Bahamas Yes Bulletin 69 63 Kiribati***** No 81 Palau* Yes M.Z.N. 62. 2008.

LOS 24 June 2008 242

Barbados* No 336 Antigua and Barbuda No 402 Cook Islands*** No 658 Federated States of Micronesia**

No 791

Mauritius* Yes Bulletin 67 828 Grenada Yes Bulletin 71 840 Seychelles* Yes Bulletin 70 905 Trinidad and Tobago* Yes Bulletin 55 940 St. Lucia No 950 Tonga**** No 1,033 St. Kitts and Nevis No 1,156 St. Vincent and the Grenadines

No 1,234

Fiji* Yes Bulletin 66 1,324 Dominica No 1,447 Samoa No 1,857 Vanuatu Yes Bulletin 1 1,877 Cuba* Yes M.Z.N. 71. 2009.

LOS 8 June 2009 1,974

Sao Tome and Principe Yes Bulletin 1; Bulletin 37

2,024

Jamaica Yes Bulletin 32; Bulletin 34

2,256

Solomon Islands** No 2,335 Comoros No 2,360 Haiti No 2,680

                                                        10 Many of these nations are archipelagos; these countries may include both islands with relatively high peaks as well as very low-lying, flat islands, whose submersion could still contribute to a large loss in maritime zones. 11 Please note that this information is only as accurate as that shared by DOALOS on its website, the Law of the Sea Information Circulars, and the Law of the Sea Bulletins.

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Cape Verde Yes Bulletin 26; Bulletin 55

2,829

Timor-Leste No 2,963 Dominican Republic Yes Bulletin 65 3,098 Papua New Guinea** Yes Bulletin 50 4,509 Number that have not deposited baseline information with the UN: 18

Note: MZN = Maritime Zone Notification; Bulletin = Law of the Sea Bulletin.

* These countries have made submissions to the Commission on the Limits of the Continental Shelf (CLCS) pursuant to Article 76 of UNCLOS. ** The Solomon Islands, Federated States of Micronesia, and Papua New Guinea have made submissions to the CLCS pursuant to Article 76 of the UNCLOS. While these data were not published in the Law of the Sea Bulletin or the Law of the Sea Information Circular, a detailed chart was submitted showing baselines, the 200 nm limit from the baseline, and the limits of the continental shelf for all three countries. The chart is publicly available on the DOALOS website.12 The Solomon Islands has also publicized its national legislation on baselines online.13 However, these actions do not qualify as “an act of deposit” under UNCLOS. *** The Cook Islands has made a submission to the CLCS pursuant to Article 76 of UNCLOS. While these data were not published the Law of the Sea Bulletin or the Law of the Sea Information Circular, a detailed chart was submitted showing baselines, the 200 nm limit from the baseline, and the limits of the continental shelf for the Cook Islands. This chart is available on the DOALOS website.14 Furthermore, the South Pacific Applied Geosciences Commission (SOPAC) indicates on its website that the Cook Islands have established their baselines.15 **** Tonga has made a partial submission to the CLCS pursuant to Article 76 of UNCLOS. In its partial submission, Tonga indicated that it had prepared geodetic baseline information from which its maritime limits were measured. However, this information was not published in the Law of the Sea Bulletin or the Law of the Sea Information Circular, nor is it available on the DOALOS website. ***** SOPAC indicates on its website that the baselines for Kiribati, Niue, and Tuvalu have been established, but this information does not appear on the DOALOS website, or in the Law of the Sea Bulletins or Information Circulars.16

Of these thirty-four archipelagic states, a little more than half (eighteen total) have not

yet submitted baseline information to the UN; nine of these are among the twelve “lowest”

countries (as measured by the highest point above sea level). In particular, Tuvalu and the

Marshall Islands are only meters above sea level, but they have not yet formally submitted

and publicized their baseline data with the UN.                                                         12 Commission on the Limits of the Continental Shelf, Division for Ocean Affairs and the Law of the Sea, Submissions to the Commission: Joint Submission by the Federated States of Micronesia, Papua New Guinea and the Solomon Islands, Aug. 20, 2009, http://www.un.org/Depts/los/clcs_new/submissions_files/submission_fmpgsb_32_2009.htm. 13 Solomon Islands, Chapter 95, Delimitation of Marine Waters, May 2003, http://www.vanuatu.usp.ac.fj/pacific law materials/Solomon_Islands_legislation /Solomons_Delimitation_Marine_Waters.html. 14 Commission on the Limits of the Continental Shelf, Division for Ocean Affairs and the Law of the Sea, Submissions to the Commission: Submission by the Cook Islands, Aug. 20, 2009, http://www.un.org/Depts/los/clcs_new/submissions_files/submission_cok_23_ 2009.htm 15 Secretariat of the Pacific Community, South Pacific Applied Geosciences Commission, Pacific Islands Regional Maritime Boundaries Project, Nov. 27, 2009, http://www.sopac.int/tiki-index.php?page=Pacific%20Island%20Regional% 20Maritime%20Boundaries%20Project. 16 Id.

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Whether baselines remain ambulatory or become legally “fixed” at some point in the

future, the optimal strategy for low-lying island states will be to have legitimate and widely-

shared baselines to point to in the event of a dispute over their zones. If a small island state

wishes to make a claim regarding the extent of its EEZ, it will benefit that state to be able to

make the largest possible claim; the earlier the state registers its baselines, the larger its claim

will be. If a state’s baselines, after publication, remain uncontested, its claim to a certain area

will be even more strengthened. If, to the contrary, a neighboring state challenges the

published baselines, this, too, may serve a useful purpose: it could clarify claims over

maritime zones and lead to the creation of a bilateral maritime boundary agreement, whose

boundaries are permanent under the Vienna Convention.

Even states that are currently embroiled in delimitation disputes should publish their

contested baseline data pending a settlement. The contested limit can always be settled and

adjusted later, and rapid publication will freeze the uncontested parts of the maritime

boundaries in a manner more advantageous to the island state. If a state waits too long to

formalize its maritime boundaries, increasing sea levels will cause baselines (and therefore

other maritime boundaries) to retreat inwards, and the total EEZ area will be smaller.

Resources to help establish baselines

The creation of baselines according to the provisions of the UNCLOS requires a

certain level of technical expertise and sufficient sources of funding. Unfortunately, those

countries for which establishing baselines is most critical are also among those that lack the

resources to do so. Some of the countries listed in the table above may already have

determined their baselines, but have yet to formally submit them to the United Nations; for

instance, there are indications that baselines for Kiribati, Niue, Tuvalu, the Cook Islands, and

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the Solomon Islands have already been created.17 For these countries, legitimizing their

baselines will be largely an administrative process. However, other countries may still need

to carry out significant technical work to delimit their baselines and other maritime zones.

Various technical, financial, and educational resources exist to aid small island states

legitimize their baselines. The list below identifies various sources of assistance that could be

a starting point for small developing island states (or others) in formalizing their claims over

maritime zones. It should be noted that these resources all largely aim to help establish the

limits of the continental shelf, which is not an objective for all low-lying island states; some

do not have a continental shelf that extends beyond 200 nm. However, the establishment of a

baseline is a prerequisite for delimiting all other maritime boundaries, so it is probable that

developing island states could nonetheless apply for assistance to establish their baselines

through these funds.

• The Commission on the Limits of the Continental Shelf (CLSC) may provide scientific and technical assistance to states preparing for submission.18 Mauritius and the Seychelles, for instance, have informally taken advantage of this resource.19 However, it is possible that the CLSC will only provide assistance to those states intending to claim a continental shelf limit beyond 200 nm, so this may not be a resource for all developing island states.

• The UN Division for Ocean Affairs and the Law of the Sea (DOALOS) provides training courses and fellowships for representatives of developing nations, with a view in particular to helping these countries in their submissions to the CLSC.20 The DOALOS also provides a directory of sources of national expertise, training, or other services related to maritime delimitation in various countries, which could provide useful contacts (though it has not been updated since 2008). On its website, DOALOS also shares a list of many publicly available scientific databases relevant to preparing a submission to the CLCS, including sources like the British Oceanographic Data Centre and the Japan Agency for Marine-Earth Science and Technology, among

                                                        17 See Secretariat of the Pacific Community, supra note 15. 18 Commission on the Limits of the Continental Shelf, Division for Ocean Affairs and the Law of the Sea, Advice and Assistance to States, Apr. 8, 2009, http://www.un.org/Depts/los/clcs_new/commission_advice.htm 19 Edwin Egede, Compliance with Article 76 of the Law of the Sea Convention (LOSC) 1982: A Burden for Developing States—An African Perspective, IHO/IAG Advisory Board on the Law of the Sea Conference, Oct. 25-27, 2010 (2010), available at http://works.bepress.com/edwin_egede/11. 20 Division for Ocean Affairs and the Law of the Sea, Technical Assistance Provided by the DOALAS, July 21, 2010, http://www.un.org/Depts/los/TechAsst.htm.

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others.21 Included in this list is the U.S. National Oceanic and Atmospheric Administration (NOOA), which shares extensive geophysical data; for instance, NOOA’s website can be used to generate free, custom coastline charts22 and grids23 that may be of use in determining baseline points.

• In 2000, the UN General Assembly established a trust fund “for the purpose of facilitating the preparation of submissions to the Commission on the Limits of the Continental Shelf for developing States, in particular the least developed countries and small island developing States, and compliance with article 76 of the United Nations Convention on the Law of the Sea.”24 This DOALOS-administered trust fund provides training and technical assistance (including obtaining data and finalization of submission data) to developing countries that apply for support.25

• Moreover, some developing countries have obtained bilateral assistance from developed countries in making submissions to the CLSC. The Commonwealth has also in the past provided legal and technical assistance to certain developing countries, including Mauritius and the Seychelles.26

• The United Nations Environment Programme (UNEP), in cooperation with Norway (GRIP-Arendal), established the UNEP Shelf Programme to assist developing countries in preparing their submissions to the CLSC. The Programme boasts a free one-stop-shop, which provides an inventory of marine geophysical and geological data as well as advisory support.27

• Island states in the Pacific have recourse to the South Pacific Applied Geosciences Commission (SOPAC).28 This is an entity funded by the governments of various

                                                        21 Division for Ocean Affairs and the Law of the Sea, Lists of Websites of Organizations, Data/Information Portals and Data Holders Where General Information, and Publicly Available Scientific and Technical Data Can Be Accessed That May Be Relevant to the Preparation of Submissions to the Commission, June 22, 2009, http://www.un.org/Depts/los/clcs_new/sites_on_data_info.htm. 22 National Atmospheric and Oceanic Administration, National Geophysical Data Center, Division for Ocean Affairs and the Law of the Sea, Coastline Extractor, http://www.ngdc.noaa.gov/mgg/coast. 23 National Atmospheric and Oceanic Administration, National Geophysical Data Center, ETOPO1 Global Relief Model, http://www.ngdc.noaa.gov/mgg/global/global.html. 24 Commission on the Limits of the Continental Shelf, Division for Ocean Affairs and the Law of the Sea, Trust Fund for the Purpose of Facilitating the Preparation of Submissions to the Commission on the Limits of the Continental Shelf for Developing States, in Particular the Least Developed Countries and Small Island Developing States, and Compliance with Article 76 of the United Nations Convention on the Law of the Sea, Dec. 11, 2009, http://www.un.org/Depts/los/clcs_new/trust_fund_article76.htm. 25 Id. 26 Egede, supra note 19, at 14. See Commonwealth Secretariat, Commonwealth Assists Solomon Islands, Seychelles Confirm Offshore Limits (July 25, 2007), http://www.thecommonwealth.org/news /166918/250707solomonislands.htm; Commonwealth Secretariat, Small States Seek to Benefit From Offshore Resources (July 11, 2008), http://www.thecommonwealth.org/news/181475/ 110708continental_shelf.htm. 27 UNEP Shelf Programme, 2009, http://www.continentalshelf.org/onestopdatashop.aspx. 28 Member countries are American Samoa, Australia, Cook Islands, Federated States of Micronesia, Fiji Islands, France, French Polynesia, Guam, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Northern Mariana Islands, Palau, Papua New Guinea, Pitcairn Islands, Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, United States of America, Vanuatu and Wallis and Futuna.

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countries, including USAID and several UN agencies.29 SOPAC has developed the Pacific Islands Regional Maritime Boundaries Information System (PIRMBIS) to compile data about the coastlines and low-water lines of Pacific islands. PIRMBIS can be used to generate maritime boundary points in a manner tailored to the specific needs of archipelagic states. SOPAC has been working since 2004 to establish and verify baselines for its members and has conducted a number of regional trainings.30

• Since 2008, the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organisation (UNESCO), in collaboration with UNEP/GRIP-Arendal and the New Economic Partnership for African Development (NEPAD), have been working on building capacity within African countries to encourage the delineation of the outer limits of the continental shelf. To date, this has primarily consisted of high-level workshops.31

Addressing the problem of sovereignty

A traditional principle of the international law of the sea is that a state has rights over

its maritime zones precisely because it has coastal land; as the International Court of Justice

has phrased it, “the land dominates the sea.”32 Extrapolating from this principle, a state that

becomes submerged would then lose all its rights over the EEZ and any extension of the

continental shelf. In fact, the conventional understanding is that a state, if it becomes

submerged, could lose its very statehood.

This conception of state sovereignty is outdated and should be discarded.

International laws establish that the physical components of a coastal state include a                                                         29 Donors include Australia, Fiji Islands, Canada, France, Ireland, Japan, New Zealand, USAID / Office of US Foreign Disaster Assistance, Taiwan, the United Kingdom, the Commonwealth Secretariat, the European Union, and certain UN agencies. Secretariat of the Pacific Community, South Pacific Applied Geosciences Commission, Sopac Overview, http://www.sopac.org/index.php/sopac-overview. 30 Secretariat of the Pacific Community, South Pacific Applied Geosciences Commission, Pacific Islands Regional Maritime Boundaries, http://www.sopac.org/index.php/pacific-islands-regional-maritime-boundaries. 31 Intergovernmental Oceanographic Comission, UNESCO, Contribution of UNESCO/IOC to the Report of the Secretary General to the 65th Session of the General Assembly on Oceans and the Law of the Sea 9, Jan. 2010. 32 North Sea Continental Shelf (Ger./Den.), Judgment, I.C.J. Reports 1969, 52; Interview with Rüdiger Wolfrum, Justice, International Tribunal for the Law of the Sea, in New Haven, Conn. (Feb. 21, 2011). President Harry Truman, Policy of the United States With Respect to the Natural Resources of the Sub Soil and Sea Bed of the Continental Shelf, Exec. Order No. 9633, 10 Fed. Reg. 12,305 (Sept. 28, 1945) (“[s]ince the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it . . . .”), available at http://www.oceancommission.gov/documents/gov_oceans/truman.pdf.

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country’s airspace, a territorial sea of up to 12 nm, a contiguous zone up to 24 nm from shore,

an EEZ of up to 200 nm, and, in some cases, a continental shelf up to the continental

margin.33 Denying a state its sovereignty because its land becomes submerged due to climate

change is not simply unjust, but, in light of the emerging modern understanding of

sovereignty, it is also arbitrary. Submerged land still exists beneath the water, and, in this

modern view, still belongs to the state. Denying statehood because of submersion leads to

strange results: an increasingly submerged island state would remain a fully sovereign state

until the very last viable piece of land disappears beneath the waves, and then the state—and

all its maritime zones—would suddenly vanish. If seismic activity were to thrust previously

submerged land back into open air, by this logic, would it again become a sovereign state? In

this sense, the traditional conception of sovereignty leads to absurd results when it is tested

by the reality of gradually disappearing island states. Furthermore, when a state is accepted as

such by the United Nations, the international community must recognize its sovereignty; as

Professor Roy Lee points out, nowhere in the United Nations Charter is there any provision

relating to the loss of statehood due to rising waters. Accordingly, a more sophisticated

understanding of the physical components of a state and its relationship to sovereignty—one

that does not depend on sea levels–should be adopted.

In the absence of such a reconceptualization, a number of creative proposals have

been made to resolve the problems of ambulatory baselines and the threat they currently pose

to state sovereignty. Some academics, such as Professor Rosemary Rayfuse, have discussed

the option of threatened islands to purchase new territories from other states to transfer their

populations and continue on as sovereign states.34 This would improve the ability of an island

                                                        33 This is pointed out prominently by Professor Roy Lee, in Permanency of Statehood of Small Island States (Apr. 4, 2011) (unpublished). 34 Rosemary Rayfuse, International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma 10 (University of New South Wales Faculty of Law Research Series, Working Paper No. 52, 2010).

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state to retain its maritime zones, keeping title in much the same way as faraway states have

title over the zones of their overseas territories.35 The merger of small island states within

larger neighbors has also been floated as a potential remedy to loss of sovereignty.36 The

maritime zones would become part of the larger neighboring nation, but their very existence

could be used to induce larger neighbors to take in the population of a small island state.37

A first step to securing island state sovereignty, however, would be to freeze baselines

in their current positions. Professor Rayfuse indicates that this could be carried out in one of

three ways: (i) developing new norms of customary international law through continuous and

open use of maritime zones even after baselines have moved, (ii) amending the UNCLOS, or

(iii) adding a protocol to the UNFCCC.38 Other experts argue that a partial freeze of baselines

can already be achieved under existing international laws, namely by establishing the limits

of their continental shelf39 and/or entering into international maritime boundary agreements

with neighboring states (as boundary delimitation treaties are permanent under international

law).40

                                                        35 This may appear to be an unlikely solution, but it is one that has been contemplated by at least one small island state: in 2008, the President of the Maldives famously announced the creation of a fund to help purchase land somewhere in India, Sri Lanka, or Australia in order to ultimately relocate the country. Randeep Ramesh, Paradise Almost Lost: Maldives Seek to Buy a New Homeland, THE GUARDIAN, Nov. 10, 2008, available at http://www.guardian.co.uk/environment/2008/nov/10/maldives-climate-change. 36 See, e.g., David D. Caron, When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level, 17 ECOLOGY L.Q. 621, 1990; Rayfuse, supra note 14, at 11. 37 This might be unrealistic in practice: Tuvalu, when it approached Australia about taking in its population, was met with a complete refusal, and New Zealand only agreed to allow the immigration of a very restricted set of Tuvaluans. Rayfuse, supra note 34, at 11. 38 Rosemary Rayfuse, Remarks at the Threatened Island Nations Conference at Columbia Law School (May 23, 2011). 39 Article 76(9) of the UNCLOS allows states to deposit data with the United Nations Secretary-General “permanently describing the outer limits of its continental shelf39” (emphasis added).39 The inclusion of the word “permanently” suggests that even if baselines were to recede, the continental shelf delimitation would remain fixed. 40 Article 62(2)(a) of the Vienna Convention on the Law of Treaties precludes any change in such treaties even if there is a “fundamental change of circumstances.” In other words, if two parties enter into a bilateral agreement regarding their maritime boundaries, those boundaries can be regarded as permanent even if the baselines of one or both parties recede significantly

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Ultimately, whatever practical or legal scenario is adopted, island states must urgently

establish their baselines and other maritime zones if they have not done so already. No matter

what, the best strategy for small island states will be to have legitimate and publicized

baselines registered with the UN as early as possible. This will give these states sovereignty

over the greatest possible area of maritime zones and will enhance their credibility in the

event of any future territorial challenge. There is no time to lose.

Conclusion

Conceptions of sovereignty should be revised to accommodate a more complex

construct of sovereignty in the twenty-first century. However, regardless of which legal

scenario occurs with respect to sea level rise and sovereignty, island states will stand the best

chance of maximizing their maritime claims if they register their baseline data as early as

possible. The optimal strategy for all small island states is to delineate and submit baselines

to the United Nations as rapidly as feasible, even if they are currently involved in maritime

boundary disputes. If the states wait until sea levels have risen, baselines will have contracted

inward, resulting in a smaller EEZ and a concomitant loss in mineral and fisheries

exploitation rights. In other words, EEZs will never be as big as they are at current sea levels,

and formalizing baselines in the present is a risk-mitigation strategy to ensure that states

retain control over the largest areas as possible. Accordingly, this paper exhorts small

developing island states—particularly the eighteen states identified as not having formally

submitted their baseline data—to publicize their maritime claims with the UN as quickly as

possible. To help in this process, this paper suggests potential sources of funding or technical

assistance concerned with delimiting maritime zones.