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Protecting your territory from rising seas

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20 July 2009 14:15

Professor Stuart Kaye is Director, Asia-Pacific Centre for Military Law at the University of Melbourne.

Sea level rise is much discussed in the media, with speculation that whole countries might vanish beneath the sea in the course of the next century. As maritime jurisdiction in international law is determined by sovereignty over land, the submergence of features is potentially a matter of great significance, as it might conceivably lead to a loss of jurisdiction over fishing grounds or offshore oil and gas deposits.

The United Nations Convention on the Law of the Sea provides for zones of jurisdiction in the ocean surrounding land. Land is defined as any natural feature clear of the water at high tide. All land generates at least a territorial sea, which can be up to 12 nautical miles wide. In addition, if the land is a rock 'capable of habitation' or with an 'economic life of its own' it may generate an exclusive economic zone (EEZ) of up to 200 nautical miles width and a continental shelf that may, in certain circumstances, extend even further. 

To put this in perspective, a small remote island, capable of human habitation, may generate an EEZ of over 400,000 square kilometres, in which the coastal state would have exclusive jurisdiction over fisheries and offshore mining. In theory, this makes sea level rise a significant economic concern for states.  

Contemporary state practice gives some clues as to how states might react to the inundation of land, and the accompanying loss of offshore jurisdiction. There are many small islands and rocks which states claim generate an EEZ, which from a more objective point of view might be questioned as meeting the criteria under the Law of the Sea Convention.

For example, the Philippines has claimed Scarborough Reef, in the South China Sea, and has reportedly indicated it generates an EEZ. As can be seen the feature is extremely small, and not conducive to human habitation. Japan asserts almost the maximum possible EEZ from Okinotorishima, which consists of three tiny rocks surrounded by shields of concrete and breakwaters, designed to ensure the status of the feature as land is not lost by a rising sea level or tropical typhoon. 

Japan asserts the feature is capable of human habitation by virtue of the research platform it has constructed, although China has rejected its claim. Similarly, Tonga claims the Minerva Reefs in the South Pacific, and has indicated the features are not merely land but are capable of human habitation, citing the survival of a party of Tongan shipwrecked sailors who lived on the Reefs for a period of weeks. 

Tonga’s claim to an EEZ does not appear to have been accepted by Fiji or New Zealand, who would each have a maritime boundary with a Minervan EEZs. As can be seen from this photograph of tourists visiting the Reefs, the more fundamental question of being clear of the water at high tide seems problematic in this case.

State practice in respect of small features like these is questionable at international law, yet aside from the United States, which has maintained a unit in the State Department to investigate and progress such claims, few states have protested claims of low-lying features as land or as being capable of human habitation or having an economic life of their own. 

For example, there does not appear to be any record of Australian protest in respect of any feature’s status as land, or a feature’s generation of an EEZ. This would suggest that were sea levels to rise, states would continue to make claims, albeit highly questionable ones, to territory and continue to assert maritime jurisdiction in much the same fashion they do now. Some small comfort perhaps to those low lying states that face inundation if sea level rise becomes a reality.

Photo by Flickr user setev, used under a Creative Commons license.

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