Impact of Sea-level Rise on Baselines and Islands: Theoretical and Practical Concerns for the South China Sea Dispute and Disputes in the Asia-Pacific Region


Grant Data
Project Title
Impact of Sea-level Rise on Baselines and Islands: Theoretical and Practical Concerns for the South China Sea Dispute and Disputes in the Asia-Pacific Region
Principal Investigator
Professor Lando, Massimo Fabio   (Principal Investigator (PI))
Duration
30
Start Date
2022-09-01
Amount
392012
Conference Title
Impact of Sea-level Rise on Baselines and Islands: Theoretical and Practical Concerns for the South China Sea Dispute and Disputes in the Asia-Pacific Region
Keywords
Climate change, Sea-level rise, Baselines, Islands, South China Sea
Discipline
Law
Panel
Humanities & Social Sciences (H)
HKU Project Code
21604722
Grant Type
Early Career Scheme (ECS) 2022/23
Funding Year
2022
Status
On-going
Objectives
1. The incumbent disappearance of small island States and the retreat of coastlines urges us to understand the legal underpinnings of sea-level rise and its implications on the established law of the sea. This project’s main objective is to further that understanding. This objective can be subdivided into the aims listed below.2. Advance our theoretical understanding of the law of the sea: although the modern law of the sea has been mostly codified by UNCLOS, sea-level rise urges re-assessing certain of its fundamental notions. UNCLOS’ architecture of maritime zones depends on the notion of ""baseline"", because from baselines States measure the breadth of territorial seas, Exclusive Economic Zones (EEZs) and continental shelves. Under Article 121 UNCLOS, maritime zones also appertain to islands. Therefore, the notion of ""island"" is another premise on which UNCLOS’ maritime zones depend. Both notions are customary, binding even non-parties to UNCLOS. Sea-level rise will result both in the complete or partial submersion of island features, and in changes in the shape of coastlines and, thus, relevant baselines. UNCLOS negotiators did not appreciate the changes likely resulting from climate-change-driven sea-level rise, as they had limited understanding of such issues. Tension exists between UNCLOS’ notions of ""baseline"" and ""islands"" and the reality of rising sea levels. This project will explore re-thinking these notions owing to sea-level rise, advancing our understanding of basic concepts of law of the sea through a doctrinal lens.3. Baselines: baselines are the foundation of allocating maritime space under UNCLOS. According to scholars and the International Law Association’s Committee on Baselines, baselines are ambulatory. As the ""baseline"" is considered an established concept of international law, scholars have shown little interest in it since UNCLOS’ adoption. Sealevel rise requires re-considering this view. Because of sea-level rise, States have begun openly to contradict the understanding of baselines as ambulatory, by declaring them to be permanent. This project aims to re-visit the notion of ""baseline"" based on the State practice, meaning how States conduct themselves internationally, stemming from sealevel rise. The project will ascertain if the notion of ""baseline"" under UNCLOS has given way to a new, customary notion of ""baseline"", which also requires considering whether later customary rules can override UNCLOS treaty rules.4. Islands: the legal definition of ""islands"" has been most contentious since UNCLOS’ adoption. This level of contention originates from the recognition, under Article 121 UNCLOS, that ""islands"" have not only a 12-nautical-mile territorial sea, but also a 200- nautical-mile EEZ. Disputes have arisen where States have claimed that maritime features were ""islands"" while others doubted that they met the criteria of Article 121: (i) naturally-formed, (ii) above water at high tide, (iii) capable of sustaining human habitation or an economic life of their own. Sea-level rise impacts all three criteria. Due to sea-level rise, States have conducted engineering works to fortify islands and prevent their disappearance. Unsurprisingly, States support such works as lawful in international law, which scholars have not criticised. However, the use of artificial ways to prevent island submersion seems inconsistent with UNCLOS’ requirement that islands are formed naturally. This project will analyse this question, improving our understanding of a fundamental concept of the law of the sea.5. Advance our understanding of the South China Sea dispute: among the most contentious issues relating to the South China Sea, one finds the practice of several States to undertake land reclamation works around small maritime features to claim their status as islands. Potential changes in the definition of ""island"" under international law resulting from the State’s practice to fortify existing islands may have implications for maritime features in the South China Sea. This project will explore these implications, to assess the legal foundation of existing maritime claims in the South China Sea and the impact of sea-level rise on those claims and on the arbitral award in the Philippines v. China case. This project will use other examples of coastal management as a comparison, such as fortifications by the Netherlands and other States to prevent loss of territory to the sea.6. Advance our understanding of Asia-Pacific State practice: beyond the South China Sea dispute, sea-level rise will impact several other States, especially archipelagic and island States, throughout the Asia-Pacific region. The focus of this project on State practice concerning coastal management will foster a deeper understanding of the legal position of interested States in the region. Although sea-level rise is a global issue, localised approaches to countering it are legally possible. These approaches could include the development of local customary rules of international law and regional co-operation. Understanding these approaches can have practical benefits. For example, it could be useful in on-going or prospective litigation (domestic and international) on sea-level rise. Understanding the practice of other States may also be useful for a State to develop its approach to negotiating common solutions to sea-level rise.