United Nations A/CN.

4/740
General Assembly Distr.: General
28 February 2020

Original: English

International Law Commission

Seventy-second session
Geneva, 27 April–5 June and 6 July–7 August 2020

Sea-level rise in relation to international law

First issues paper by Bogdan Aurescu and Nilüfer Oral, Co-Chairs
of the Study Group on sea-level rise in relation to international law

Contents
Page

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Inclusion of the topic in the Commission’s programme of work; consideration of the topic by
the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Debate in the Sixth Committee of the General Assembly; level of support for the topic from
the Member States and outreach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. Scientific findings and prospects of sea-level rise and relationship with the topic . . . . . . . . . . 14
IV. Previous references to the topic in the works of the Commission . . . . . . . . . . . . . . . . . . . . . . . . 16
V. Consideration of the topic by the International Law Association . . . . . . . . . . . . . . . . . . . . . . . . 17
VI. Purpose and structure of the issues paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Part One: General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
I. Scope and outcome of the topic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Issues to be considered by the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. Final outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
II. Methodological approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Part Two: Possible legal effects of sea-level rise on the baselines and outer limits of the
maritime spaces measured from the baselines, on maritime delimitations, and on the exercise
of sovereign rights and jurisdiction of the coastal State and its nationals, as well as on the
rights of third States and their nationals in maritime spaces in which boundaries or baselines
have been established . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
I. Possible legal effects of sea-level rise on the baselines and outer limits of the maritime
spaces that are measured from the baselines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

20-03200 (E) 170620

*2003200*
A/CN.4/740

A. Provisions of the United Nations Convention on the Law of the Sea on the role of
baselines in establishing maritime spaces and their outer limits . . . . . . . . . . . . . . . . . . . . . 23
B. Effects of the ambulation of the baseline as a result of sea-level rise . . . . . . . . . . . . . . . . 25
II. Possible legal effects of sea-level rise on maritime delimitations . . . . . . . . . . . . . . . . . . . . . . . . 43
III. Possible legal effects of sea-level rise on islands insofar as their role in the construction of
baselines and in maritime delimitations is concerned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
IV. Possible legal effects of sea-level rise on the exercise of sovereign rights and jurisdiction of
the coastal State and its nationals, as well as on the rights of third States and their nationals,
in maritime spaces in which boundaries or baselines have been established . . . . . . . . . . . . . . . 56
A. Maritime entitlements under international law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
B. Sea-level rise and sovereign rights and jurisdiction of the coastal State and its nationals,
and the rights and obligations of third States and their nationals in maritime zones . . . . . 63
Part Three: Possible legal effects of sea-level rise on the status of islands, including rocks,
and on the maritime entitlements of a coastal State with fringing islands, and legal status of
artificial islands, reclamation or island fortification activities as a response/adaptive
measures to sea-level rise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
I. Possible legal effects of sea-level rise on the status of islands, including rocks, and on the
maritime entitlements of a coastal State with fringing islands . . . . . . . . . . . . . . . . . . . . . . . . . . 69
II. Legal status of artificial islands, reclamation or island fortification activities under
international law as response/adaptive measures to sea-level rise . . . . . . . . . . . . . . . . . . . . . . . 76
Part Four: Observations and future programme of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
I. Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
II. Future programme of work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

2/80 20-03200
 A/CN.4/740

Introduction
I. Inclusion of the topic in the Commission’s programme of
work; consideration of the topic by the Commission
1. At its seventieth session (2018), the Commission decided to recommend the
inclusion of the topic “Sea-level rise in relation to international law” in its long -term
programme of work. 1
2. Subsequently, in its resolution 73/265 of 22 December 2018, the General
Assembly noted the inclusion of the topic in the long -term programme of work of the
Commission, and in that regard called upon the Commission to take into consideration
the comments, concerns and observations expressed by Governments during the
debate in the Sixth Committee.
3. At its 3467th meeting, on 21 May 2019, the Commission decided to include the
topic in its current programme of work. The Commission also decided to establish an
open-ended Study Group on the topic, to be co-chaired, on a rotating basis, by Mr.
Bogdan Aurescu, Mr. Yacouba Cissé, Ms. Patrícia Galvão Teles, Ms. Nilüfer Oral and
Mr. Juan José Ruda Santolaria.
4. At its 3480th meeting, on 15 July 2019, the Commission took note of the joint
oral report of the Co-Chairs of the Study Group. At a meeting on 6 June 2019, the Study
Group had considered an informal paper on the organization of its work containing a
road map for 2019 to 2021. The discussion of the Study Group had focused on its
composition, its proposed calendar and programme, and its methods of work.
5. At the same meeting, the Study Group had decided that, of the three subtopics
identified in the syllabus prepared in 2018, 2 it would examine the first – issues related
to the law of the sea – in 2020, under the co-chairpersonship of Mr. Aurescu and
Ms. Oral, and the second and third – issues related to statehood and issues related to
the protection of persons affected by sea-level rise – in 2021, under the
co-chairpersonship of Ms. Galvão Teles and Mr. Ruda Santolaria.
6. The Study Group had agreed that, prior to each session, the Co -Chairs would
prepare an issues paper, which would be edited, translated and circulated as an official
document to serve as the basis for the discussions and for the annual contribution of
the members of the Study Group. It would also serve as the basis for subsequent
reports of the Study Group on each subtopic. Members of the Study Group would
then be invited to put forward contribution papers that could comment upon, or
complement, the issues paper prepared by the Co-Chairs (by addressing, for example,
regional practice, case law or any other aspects of the subtopic). Recommendations
would be made at a later stage regarding the format of the outcome of the work of the
Study Group. At the end of each session of the Commission, the work of the Study
Group would be reflected in a substantive report, taking due account of the issues
paper prepared by the Co-Chairs and the related contribution papers by the members,
while summarizing the discussion of the Study Group. That report would be agreed
upon in the Study Group and subsequently presented by the Co -Chairs to the
Commission, so that a summary could be included in the annual report of the
Commission. 3

__________________
1
Official Records of the General Assembly, Seventy-third Session, Supplement No. 10 (A/73/10),
para. 369.
2
Ibid., annex B.
3
Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10),
paras. 270–271.

20-03200 3/80
A/CN.4/740

7. The Study Group had also examined and decided upon a number of other
organizational matters. 4

II. Debate in the Sixth Committee of the General Assembly;5

level of support for the topic from the Member States
and outreach
8. In the course of the debate in the Sixth Committee at the seventy-second session
of the General Assembly, in 2017, 15 States requested the inclusion of this topic in
the programme of work of the Commission, 6 while nine further delegations
mentioned, in their national statements, the importance of the problem. 7 During an
informal meeting held in New York on 26 October 2017, at the Permanent Mission of
Romania to the United Nations, representatives of the 35 States that attended showed
interest in the Commission embarking on the topic.
9. In the course of the debate in the Sixth Committee at the seventy -third session
of the General Assembly, in 2018, of 50 statements in which the topic was mentioned
following its inclusion by the Commission in its long-term programme of work:
26 welcomed that decision of the Commission and supported (explicitly or implicitly)

__________________
4
Ibid., paras. 272–273: “The Study Group also recommended that the Commission invite the
comments of States on specific issues that are identified in chapter III of the report of the
Commission. The possibility of requesting a study from the Secretariat of the United Nations was
discussed in the Study Group as well. The knowledge of technical experts and scientists will
continue to be considered, possibly through side events organized during the next sessions of the
Commission … [W]ith the assistance of the Secretariat, the Study Group will update the
Commission on new literature on the topic and related meetings or events that might be
organized in the next two years.”
5
See documents A/CN.4/713 (chap. II, sect. G), A/CN.4/724 (chap. II, sect. E) and A/CN.4/734
(chap. II, sect. D) containing the topical summaries prepared by the Secretariat of the discussions
held in the Sixth Committee of the General Assembly at its seventy -second, seventy-third and
seventy-fourth sessions, respectively. The debate in the Sixth Committee is reflected in the
summary records contained in documents A/C.6/72/SR.20 and 22 to 24, A/C.6/73/SR.20 to 24,
27, 29 and 30, and A/C.6/74/SR.23 to SR.31 and SR.33, which contain a summarized form of the
statements made by delegations. The full texts of the statements made by delegations
participating in the plenary debate are available from the United Nations PaperSmart portal, at
http://papersmart.unmeetings.org/en/ga/sixth.
6
Indonesia (A/C.6/72/SR.24, para. 126), Marshall Islands, on behalf of the Pacific small island
developing States (i.e., Fiji, Kiribati, Marshall Islands, Micronesia (Federated States of), Nauru,
Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu)
(A/C.6/72/SR.22, paras. 51–53), Micronesia (Federated States of) (A/C.6/72/SR.20, paras. 63–66),
Peru (A/C.6/72/SR.22, para. 116), Romania (on file with the Codification Division), and Tonga
(A/C.6/72/SR.20, para. 32).
7
Austria (on file with the Codification Division), Chile (on file with the Codification Division),
India (A/C.6/72/SR.22, para. 119), Israel (A/C.6/72/SR.24, para. 104), Malaysia (ibid.,
para. 115), New Zealand (ibid., para. 72), Republic of Korea (ibid., para. 99), Singapore (on file
with the Codification Division), and Sri Lanka (A/C.6/72/SR.23, para. 51).

4/80 20-03200
 A/CN.4/740

the inclusion of the topic in the current programme of work; 8 11 welcomed its
inclusion in the long-term programme of work; 9 6 expressed interest in the topic; 10
4 were against its inclusion; 11 1 delegation expressed certain reservations, without
expressing opposition as such; 12 1 delegation “took note of the suggestion to include”
the topic in the long-term programme of work; 13 and 1 delegation mentioned the topic
without qualifying its position. 14 It should be noted that the number of supportive
States was in fact higher than these figures, taking into account that a number of
statements were made on behalf of regional groups or bodies.
10. In addition to the expression of support or interest for/in the topic, or otherwise,
it is worth setting forth some considerations raised by Member States in the debate in
the Sixth Committee in 2018 that are of value for the present issues paper.
11. Member States expressed various views as to the State practice on the topic. For
example, Australia 15 encouraged the Commission to “draw on the substantial practice
of States in the Pacific region and elsewhere which had worked hard to define base
points, baselines and outer limits of their maritime zones, consistent with the United
Nations Convention on the Law of the Sea”. Denmark, speaking on behalf of the
Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) also referred to
State practice, which was “rapidly developing”. 16 To the contrary, Greece 17 – one of
the four Member States opposing the inclusion of this topic in the programme of work
of the Commission – wondered what such State practice was with regard to “the legal
implications of the above phenomenon, which [was] still in the process of developing
and evolving continuously”, considering that “[a] few sparse examples would not by
any means constitute a conclusive body of established practices.” It also referred to a
need for a “minimum threshold of available State practice, which would allow the
Commission to associate, according to its mandate, progressive development with

__________________
8
Australia (A/C.6/73/SR.23, para. 74), Canada (A/C.6/73/SR.22, paras. 65–66), Bahamas, on
behalf of the Caribbean Community (A/C.6/73/SR.20, para. 30), Colombia (A/C.6/73/SR.27,
para. 35), Fiji (A/C.6/73/SR.23, paras. 60–64), Gambia, on behalf of the African Group)
(A/C.6/73/SR.20, para. 28), Malawi (A/C.6/73/SR.24, para. 42), Marshall Islands, on behalf of
members of the Pacific Islands Forum (A/C.6/73/SR.20, paras. 40–43), Mauritius
(A/C.6/73/SR.21, para. 17), Mexico (A/C.6/73/SR.22, para. 23), Micronesia (Federated States
of) (ibid., para. 56–61), Monaco (A/C.6/73/SR.24, para. 46), New Zealand (A/C.6/73/SR.22,
paras. 4–6), Papua New Guinea (A/C.6/73/SR.23, paras. 33–36), Peru (A/C.6/73/SR.20,
para. 86), Poland (ibid., para. 99), Portugal (A/C.6/73/SR.21, para. 3), Romania
(A/C.6/73/SR.22, paras. 8–9), Samoa (A/C.6/73/SR.23, paras. 65-66), Seychelles
(A/C.6/73/SR.24, paras. 11–12), Slovenia (A/C.6/73/SR.21, para. 51), South Africa
(A/C.6/73/SR.23, para. 15), Tonga (A/C.6/73/SR.22, paras. 62–63), Viet Nam (A/C.6/73/SR.30,
para. 48), and Holy See (Observer) (A/C.6/73/SR.24, paras. 50–51).
9
Denmark, on behalf of the Nordic countries, namely Denmark, Finland, Iceland, Norway and
Sweden (A/C.6/73/SR.20, para. 57), Ecuador (A/C.6/73/SR.23, para. 18), El Salvador
(A/C.6/73/SR.24, para. 38), Estonia (A/C.6/73/SR.21, para. 58), Indonesia (A/C.6/73/SR.24,
para. 64), Israel (A/C.6/73/SR.23, para. 32), Republic of Korea (ibid., para. 71), Sierra Leone
(A/C.6/73/SR.22, para. 73), Togo (ibid., para. 103), United Kingdom of Great Britain and
Northern Ireland (ibid., para. 78), and Uruguay (A/C.6/73/SR.24, para. 32).
10
Brazil (A/C.6/73/SR.21, para. 43), China (A/C.6/73/SR.20, para. 68), Italy (ibid., para. 82),
Japan (A/C.6/73/SR.20, para. 101), Thailand (A/C.6/73/SR.22, para. 18), and Turkey (ibid.,
para. 26).
11
Cyprus (A/C.6/73/SR.23, paras. 48–51), Czech Republic (A/C.6/73/SR.21, para. 15), Greece
(ibid., para. 68), and Slovakia (ibid., para. 28).
12
United States of America (A/C.6/73/SR.29, para. 27).
13
Ukraine (A/C.6/73/SR.23, para. 37).
14
Permanent Court of Arbitration (A/C.6/73/SR.24, paras. 67–68).
15
Australia (A/C.6/73/SR.23, para. 75).
16
Denmark, on behalf of the Nordic countries (namely, Denmark, Finland, Iceland, Norway and
Sweden) (A/C.6/73/SR.20, para. 57).
17
Greece (A/C.6/73/SR.21, para. 68).

20-03200 5/80
A/CN.4/740

codification”. Failing that, the Commission risked embarking upon “an exercise of a
prevailing [de] lege ferenda character”. 18 Cyprus 19 – another of the four Member
States opposing the inclusion of this topic in the programme of work of the
Commission – recognized that “the rise in sea levels was already a fact whose
negative impact would only grow and whose legal effects would have to be c larified.
The best methodology to follow was for [States] to examine the effects of sea -level
rise in an inclusive manner on the basis of State practice”. The United States of
America 20 “questioned whether the issues of statehood and protection of persons a s
specifically related to sea-level rise were at a sufficiently advanced stage of State
practice” (meaning that this Member State does not however have the same
reservation as to the existence of State practice related to law of the sea issues in
relation to sea-level rise).
12. Canada, 21 which strongly supported the topic, emphasized that the consideration
of the three subtopics identified by the Commission in the 2018 syllabus “might lead
to the discussion of broader issues, which would unnecessarily comp licate the study
of the topic”. Hence, when considering the “possible legal effects of sea -level rise on
the status of islands, including rocks”, Canada took the nuanced view that the
Commission should indeed consider those potential effects, “without ente ring into a
complex debate regarding the specific characteristics of island status”.
13. Member States emphasized the need for the Commission to respect, in the
course of its work on the topic, the provisions of the United Nations Convention on
the Law of the Sea; a commitment that had already been clearly assumed by the
Commission in the 2018 syllabus: “This topic will not propose modifications to
existing international law, such as the 1982 [United Nations] Convention on the Law
of the Sea”. 22 China, 23 for example, expressed the hope that “the Commission would
fully take into consideration the provisions and spirit of the existing international law,
including the United Nations Convention on the Law of the Sea”. Cyprus 24 stressed
the indispensability of “fully respecting the letter and spirit of the Convention” in
conducting such work and of ensuring that the content of any further study would
fully comply with the Convention: “[a]ttempts to modify or undermine the
Convention would have adverse consequences”. Greece 25 also recommended that the
Commission “should preserve the integrity of the United Nations Convention on the
Law of the Sea”. Indonesia 26 stressed that “the deliberations [within the Commission]
must not undermine the existing regime on the law of the sea under the United Nations
Convention on the Law of the Sea”. Israel, 27 while encouraging “the examination of
the legal aspects of sea-level rise and related issues” and seeing value in mapping
“the key legal questions arising from it”, noted that in addressing the legal issues
related to sea-level rise “it would be prudent to address each issue according to the
legal framework applicable to it, rather than adopt an integrative approach” and “as
noted in the … syllabus, any output of the Study Group … should be based on the
application of existing principles of customary international law, rather than the
development of new legal principles or the modification of existing international
law”. New Zealand 28 considered that the topic reflected “the needs of States and the
__________________
18
Ibid.
19
Cyprus (A/C.6/73/SR.23, para. 49).
20
United States (A/C.6/73/SR.29, para. 27).
21
Canada (A/C.6/73/SR.22, paras. 65–66).
22
A/73/10, annex B, para. 14.
23
China (A/C.6/73/SR.20, para. 68).
24
Cyprus (A/C.6/73/SR.23, para. 50).
25
Greece (A/C.6/73/SR.21, para. 68).
26
Indonesia (A/C.6/73/SR.24, para. 64).
27
Israel (A/C.6/73/SR.23, para. 32).
28
New Zealand (A/C.6/73/SR.22, paras. 4–6).

6/80 20-03200
 A/CN.4/740

pressing concerns of the international community” as a whole, and stated that the
Government “had considered the international legal challenges presented by sea -level
rise and had confirmed its commitment to working with partners to ensure that, in the
face of changing coastlines, the current balance of rights and obligations under the
United Nations Convention on the Law of the Sea was preserved”.
14. Nevertheless, some Member States pointed out that the effects of sea -level rise
were not covered or regulated by the current international law, underlining that there
was a pressing need to fill in that lacuna. For example, Fiji 29 stressed that it was
concerned about sea-level rise in relation to international law “with regard to the
regulation of maritime entitlements, the delimitation of maritime zones and the right
of a coastal State to an extended continental shelf”. In that connection, Fiji was of the
view that a lacuna existed in international law to address the present implications of
rising sea levels on the law of the sea. The Observer for the Holy See 30 was of a
similar view: “The attention given by the Commission to that question would fill in a
lacuna in current international law and would prepare better those States and
communities directly concerned, as well as the international community as a whole,
to meet the challenges that faced them”. In its opinion, the efforts of the Commission
“should not be just an academic exercise but rather a pointed effort towards the
progressive development of international law”. The Republic of Korea, 31 after
expressing the view that the topic reflected “new developments in international law
and pressing concerns of the international community as a whole”, stated that
“[s]ea-level rise was an inter-generational issue, and the current generation must
accept its obligation to work to establish a legal system” for sea -level rise, and that
the issue “should be dealt with comprehensively from the perspective of lex ferenda,
not just lex lata”. Romania 32 also stated that “[i]t could be that the [Commission’s
work] identif[ied] areas where the law as it [stood was] not sufficient, prompting the
international community to take diligent and timely action in ensuring the adequate
regulatory framework”. Samoa 33 stressed the need for “progressive development” of
the topic. Slovenia 34 considered that there was an immediate need not only to analyse
the topic “from the perspective of international law”, but also to agree on possible
conclusions and recommendations for future action. South Africa 35 stressed that it
heard the “concerns raised in relation to whether State practice was at a sufficiently
advanced stage to warrant progressive development and codification”, but
international law was often accused of being too reacti ve and slow to address issues
and there was now “the opportunity to … deal [in a timely manner] with the legal
questions that [would] be created as a result [of] sea-level rise.”
15. The position expressed by the Federated States of Micronesia 36 was quite
comprehensive. It should be recalled that this Member State had put forward a
proposal dated 31 January 2018 for inclusion of a topic on the long -term programme
of work of the Commission entitled “Legal implications of sea -level rise”, 37 which
was taken into account when the 2018 syllabus was prepared. 38 In its statement during
the 2018 debate in the Sixth Committee, the Federated States of Micronesia

__________________
29
Fiji (A/C.6/73/SR.23, para. 62).
30
Holy See (Observer) (A/C.6/73/SR.24, paras. 50–51).
31
Republic of Korea (A/C.6/73/SR.23, para. 71).
32
Romania (A/C.6/73/SR.22, para. 8–9).
33
Samoa (A/C.6/73/SR.23, para. 66).
34
Slovenia (A/C.6/73/SR.21, para. 51).
35
South Africa (A/C.6/73/SR.23, para. 15).
36
Micronesia (Federated States of) (A/C.6/73/SR.22, paras. 56–61).
37
Document ILC(LXX)/LT/INFORMAL/1 of 31 January 2018 (on file with the Codification
Division).
38
A/73/10, annex B, para. 7.

20-03200 7/80
A/CN.4/740

mentioned five points related to the topic. 39 First, the Commission’s examination of
the topic in a Study Group was ideal, as it would allow for a comprehensive mapping
exercise of the relevant legal implications of sea-level rise in relation to the specific
issues identified by the syllabus. Second, States must participate actively in the work
of the Study Group, including by providing information on relevant State practice. 40
Third, while it was undeniable that sea-level rise raised serious issues of international
law with respect to small island developing States, sea-level rise was an issue of
relevance to the international community as a whole: 41 the fact that “over 100 States
from all the major geographical regions of the world – including coastal States and
landlocked countries, continental States and small island States, and developed and
developing countries – had spoken in favour of the Commission’s studying the
topic … was a testament to its relevance to the international community as a whole,
not just to a small group of particularly vulnerable States.” Fourth, the Federated
States of Micronesia acknowledged that the syllabus limited the scope of the topic,
so that “the Study Group would not consider the protection of the environment,
climate change per se, causation, responsibility, or liability; and would not propose
modifications of existing international law, including the United Nations Convention
on the Law of the Sea”. In the light of those limitations, the syllabus “should be
sufficient to address” the concerns of States with respect to the scope of the topic.
“The Study Group would discuss and map, but would not supplant, ongoing work in
existing legal forums, including intergovernmental treaty bodies”. The Federated
States of Micronesia “trusted that the Study Group would be able to conduct its work
in a careful and comprehensive manner”. Fifth, it stressed the urgency of addressing
the implications of sea-level rise on international law, given alarming scientific
findings: “The international law implications [of such sea -level rise] must be
examined in an objective and authoritative manner as soon as possible. The
Commission’s work [was] key to that endeavour and should begin with all urgency”.
16. The positions in 2018 of the four Member States that opposed the inclusion of
the topic in the programme of the Commission are based on the following arg uments
(besides those already mentioned above, mainly related to the issue of State practice).
Cyprus 42 expressed concerns about the “method used” and the “lack of prior
consultation with the Sixth Committee”, “overlap with other pre -existing work of the
International Law Association” and difficulties in agreeing a definition of statehood.
For the Czech Republic, 43 “the topic was predominantly scientific, technical and
political in character”, so “[i]t should be taken up by the relevant technical and
scientific bodies and an intergovernmental forum with a mandate to address the law
of the sea, in order to preserve the integrity of the law of the sea regime”. Greece 44
cited the lack of a “a conclusive body of established practices”. Lastly, for Slovakia, 45
the topic was not “at a sufficiently advanced stage in terms of State practice to permit
progressive development and codification”, and it was not sufficiently concrete or
__________________
39
Micronesia (Federated States of) (A/C.6/73/SR.22, paras. 56–61).
40
“This interaction should not be limited to statements in the Sixth Committee and the submissions
of national [c]omments to the Commission, but could also include briefings, interactive seminars,
and other informal modes of engagement.” (Statement of the Federated States of Micronesia.)
41
“As just one example, sea-level rise could alter maritime baselines and maritime bou ndaries,
which could in turn alter the entitlements of coastal States as well as landlocked countries under
the law of the sea to various maritime zones whose parameters are based on such baselines and
boundaries. As another example, sea-level rise could induce human migration, which is a matter
of concern for the international community as a whole, including States that are transition and
destination countries for such migrants. A mapping exercise of what international law currently
says about these and other illustrative scenarios will be of great use for the international
community as a whole.” (Statement of the Federated States of Micronesia.)
42
Cyprus (A/C.6/73/SR.23, paras. 49 and 51).
43
Czech Republic (A/C.6/73/SR.21, para. 15).
44
Greece (ibid., para. 58).
45
Slovakia (ibid., para. 28).

8/80 20-03200
 A/CN.4/740

feasible for progressive development and codification. Slovakia also took the view
that legal questions arising potentially from the sea-level rise fell within the scope of
the law of the sea, and “should primarily be addressed within the framework of the
United Nations Convention on the Law of the Sea”. There was thus “virtually no room
for the Commission to engage either in codification or progressive development”.
17. It should be recalled, first, that the proponents of the topic, the Co -Chairs of the
Study Group, have undertaken a series of outreach efforts in 2017, 2018 and 2019, as
set out below. Second, a large number of Member States, as evident from the
information given above, support the topic and have asked for its inclusion in the
programme of work of the Commission; the Commission, as subsidiary body of the
General Assembly, cannot ignore the demands by Member States to include a topic in
its programme of work. Third, as mentioned in the 2018 syllabus, the work of the
International Law Association is duly acknowledged, and will be taken into account;
however, the methodology of the Commission is specific and different to that of the
International Law Association. Fourth, from this perspective, the relevance of State
practice – where it exists – is obvious. At the same time, the syllabus is clear as to the
need to respond to the pressing needs of the international community, including through
progressive development, if necessary, and that has been acknowledged by many
Member States in their statements in the Sixth Committee. Fifth, as to the
“predominantly scientific, technical and political … character” 46 of the topic, it has to
be recalled that, in accordance with the syllabus, the Commission will examine the topic
on the premise that sea-level rise is a factual reality and is scientifically proven, 47 and
it will deal only “with the legal implications of sea-level rise” and not with “protection
of environment, climate change per se, causation, responsibility and liability”. 48 As is
clear from the syllabus, the topic is not limited to the study of the effects of sea -level
rise in relation to the law of the sea; on the contrary, it is complex and covers, in a
manner that takes account of interrelationships, various aspects of international law.
18. Last but not least, it is important to mention the position expressed by a number
of Member States regarding the crucial issue of stability and security in international
law in relation to the topic and to its outcome. For example, Australia, 49 recalling the
efforts by Member States in the affected regions to “define base points, baselines and
outer limits of their maritime zones, consistent with the United Nations Convention
on the Law of the Sea” and “to resolve outstanding maritime delimitations and make
extended continental shelf submissions”, underlined that States had thus sought “to
maximize the stability and clarity that the Convention brought to oceans governance
and maritime jurisdiction”. China 50 mentioned the need for the Commission to
maintain, to the extent possible, “the stability and predictability of the current legal
regime and provide legal guidance for the international community to address sea -
level rise appropriately”. Greece 51 stressed that the outcome of the Commission’s
work “should safeguard the entitlements to maritime zones, the stability of maritime
boundaries and the stability of relevant treaties”. Indonesia 52 recommended that the
issue “be approached with caution because of its sensitivity, particularly in relation
to the issues of borders and delimitation”. New Zealand 53 spoke in the same sense:
put simply, “the goal was to find a way, as quickly as possible, to provide certainty to
vulnerable coastal States that they would not lose their rights over their marine
resources and zones because of rising sea levels. As the Prime Minister of New
Zealand had said recently, coastal States’ baselines and maritime boundaries should

__________________
46
Czech Republic (ibid., para. 15).
47
A/73/10, annex B, paras. 1–4.
48
Ibid., para. 14.
49
Australia (A/C.6/73/SR.23, para. 76).
50
China (A/C.6/73/SR.20, para. 68).
51
Greece (A/C.6/73/SR.21, para. 68).
52
Indonesia (A/C.6/73/SR.24, para. 64).
53
New Zealand (A/C.6/73/SR.22, paras. 4–5).

20-03200 9/80
A/CN.4/740

not have to change because of human-induced sea level rise”. Papua New Guinea 54
also mentioned the prioritization of “securing maritime boundaries” in the region, while
the Permanent Court of Arbitration 55 quoted recent relevant case law, the Bay of Bengal
Maritime Boundary Arbitration (Bangladesh v. India): 56 “maritime boundaries, just
like land boundaries, must be”, in the words of the Tribunal, “stable and definitive to
ensure a peaceful relationship between the States concerned in the long term”. 57 Such
stability was deemed all the more essential “when the exploration and exploitation of
the resources of the continental shelf [were] at stake”. Tonga 58 considered it important
“to factor in interrelated topics and issues such as … security in the context of human
security, environmental security, and resource security, and … migration. It [was] also
crucial that … existing rights and entitlements of States [be] upheld, in particular
maritime boundary delimitation pursuant to the stipulations of the [Convention]”.
Taking into account those views, it is important for the Study Group to duly consider
the issue of preserving the legal stability and security at the very heart of the topic.
19. During the debate in the Sixth Committee at the seventy-fourth session of the
General Assembly, in 2019, 57 delegations – a larger number than in the previous
year – referred to the present topic in their interventions. Of that number,
49 delegations (some of them making statements on behalf of regional groups or
organizations) expressed support for the decision taken by the Commission to include
the topic in its current programme of work, 59 3 delegations noted the decision, 60
__________________
54
Papua New Guinea (A/C.6/73/SR.23, para. 34).
55
Permanent Court of Arbitration (A/C.6/73/SR.24, paras. 67–68).
56
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) , Case No. 2010-16, Award,
Permanent Court of Arbitration, 7 July 2014. Available at www.pca-cpa.org/en/cases/18.
57
Ibid., para. 216.
58
Tonga (A/C.6/73/SR.22, para. 63).
59
Argentina (A/C.6/74/SR.29, para. 35), Australia (ibid., paras. 87–88), Austria (A/C.6/74/SR.27,
para. 104), Bangladesh (A/C.6/74/SR.31, para. 49), Belarus (which mentioned that the topic merited
seriousness and also that “it was not a matter of interest to the entire international community”)
(A/C.6/74/SR.28, para. 22), Belize (A/C.6/74/SR.30, para. 68–71), Brazil (A/C.6/74/SR.29,
para. 80), Canada (A/C.6/74/SR.30, paras. 10–11), Colombia (ibid., paras. 113–114), Côte d’Ivoire
(A/C.6/74//SR.26, para. 121), Croatia (A/C.6/74/SR.25, para. 58), Cuba (ibid., para. 23), Ecuador
(A/C.6/74/SR.27, para. 38), Egypt (A/C.6/74/SR.30, para. 30), Estonia (ibid., paras. 61–62), Fiji, on
behalf of the Pacific small island developing States (namely, Fiji, Kiribati, Marshall Islands,
Micronesia (Federated States of), Nauru, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga,
Tuvalu and Vanuatu) (A/C.6/74/SR.27, paras. 78–79), Honduras (A/C.6/74/SR.26, paras. 94–95),
India (A/C.6/74/SR.29, para. 26), Indonesia (A/C.6/74/SR.31, para. 29), Ireland (A/C.6/74/SR.29,
para. 43), Israel (A/C.6/74/SR.24, para. 27), Italy (A/C.6/74/SR.28 para. 29), Jamaica
(A/C.6/74/SR.27, paras. 2–3), Japan (A/C.6/74/SR.26, para. 41, and A/C.6/74/SR.30, para. 34),
Lebanon (A/C.6/74/SR.30, para. 103), Liechtenstein (ibid., para. 95), Malaysia (ibid., para. 83),
Mexico (A/C.6/74/SR.29, para. 114), Micronesia (Federated States of) (ibid., paras. 89–92),
Netherlands (A/C.6/74/SR.28, para. 79), New Zealand (A/C.6/74/SR.26, paras. 86–89), Nicaragua
(A/C.6/74/SR.30, para. 131), Norway, on behalf of the Nordic countries (namely Denmark, Finland,
Iceland, Norway and Sweden) (A/C.6/74/SR.23, paras. 43–44), Papua New Guinea (A/C.6/74/SR.30,
paras. 18–21), Peru (A/C.6/74/SR.27, para. 64, and A/C.6/74/SR.31, para. 5), Philippines (ibid.,
para. 52, and A/C.6/74/SR. 31, para. 9), Poland (A/C.6/74/SR.29, para. 23), Portugal (ibid.,
para. 108), Republic of Korea (A/C.6/74/SR.30, para. 67), Romania (A/C.6/74/SR.28, paras. 14–15),
Sierra Leone, on behalf of the African Group (A/C.6/74/SR.23, para. 39), Sierra Leone
(A/C.6/74/SR.29, paras. 70–71), Singapore (A/C.6/74/SR.28, para. 61), Slovenia (A/C.6/74/SR.29,
paras. 145–146), Thailand (A/C.6/74/SR.24, para. 109, and A/C.6/74/SR.29, paras. 99–100), Turkey
(A/C.6/74/SR.29, para. 151), Tuvalu, on behalf of members of the Pacific Islands Forum with
permanent missions to the United Nations (A/C.6/74/SR.27, paras. 80–81), United Kingdom
(A/C.6/74/SR.23, para. 102), Viet Nam (A/C.6/74/SR.30, para. 40), Holy See (Observer)
(A/C.6/74/SR.31, para. 59).
60
China, which also expressed “hope that the Commission, with a full recognition of the
complexity of this topic, will thoroughly analyse various State practice across the spectrum as
well as related legal questions in order to produce objective, balanced and valuable outcomes”
(A/C.6/74/SR.27, paras. 126–127), France (A/C.6/74/SR.28, paras. 47–48) and Slovakia
(A/C.6/74/SR.28, para. 41).

10/80 20-03200
 A/CN.4/740

1 delegation reiterated the reservations it had expressed in 2018, but without

expressing opposition as such, 61 2 delegations continued to express opposition to the
inclusion of this topic in the programme of work of the Commission, 62 and 2 other
delegations continued to express opposition, but with nuances compared to the
positions expressed in 2018. 63
20. The majority of the delegations supporting the topic also supported the
establishment of the Study Group and the proposed division of work over the
following two years, with the three subtopics. One delegation 64 expressed concern
over the degree of transparency of the Study Group’s work and made the suggestion
that the Commission to appoint co-rapporteurs for the topic. The Co-Chairs believe
that the manner of work as set forth in the report of the Commission on its
seventy-first session (2019) 65 and in paragraph 6 above responds to the issues raised
regarding transparency.
21. On the substance of the topic, the positions expressed by the delegations in their
2019 statements were largely similar to those expressed in the previous year. For
example, some delegations touched upon the need for the Study Group to focus on
codification of customary law, while other delegations stressed that the effort of the
Commission should also concentrate on progressive development. Israel 66 reiterated
that “any product of the Study Group should be based on the application of existing
principles of customary international law, rather than on developing new legal
principles”. Cuba 67 emphasized that it was useful to discuss the topic “in order to
propose viable solutions between the changes occurring in the climate and the law of
the sea in force, reflected mainly in the United Nations Convention on the Law of the
Sea, as depositary of customary law”. Jamaica 68 stressed that “[p]roviding clarity on
the underlying general principles of international law and customary norms and
suggestions as to how the law [might] be progressively developed on various
issues … in relation to sea-level rise would be a welcome and valuable contribution
by the [Commission]”. The Republic of Korea 69 mentioned that, “to progressively
develop international law”, the topic should be dealt with comprehensively “from the
perspective of lex ferenda, rather than limit itself to lex lata”. Belize 70 also stated that
the Commission would need “to look beyond existing law and listen to the voices of
the most vulnerable States in its progressive development of international law”.
Estonia 71 was of the view that it was necessary “to consider unconventional
solutions”.
22. The positions in 2019 of the four Member States that had previously opposed
the inclusion of the topic in the programme of work of the Commission were as

__________________
61
United States, which mentioned that it continued to have concerns that the topic as proposed to
the Commission “did not meet two of the Commission’s criteria for selection of a new topic. In
particular, it questioned whether the issues of Statehood and protection of persons as spec ifically
related to sea-level rise were at a sufficiently advanced stage of State practice.” At the same
time, it also stated that “[a]s the Commission had moved the topic to its current programme of
work”, it considered it was appropriate that the Commiss ion chose to do so via a Study Group,
and that it has decided to focus its work during the 2020 session on issues related to the law of
the sea.” (See A/C.6/74/SR.24, para. 70, and A/C.6/74/SR.30, para. 126.)
62
Czech Republic (A/C.6/74/SR.28, para. 66) and Greece (ibid., paras. 56–57).
63
Cyprus (A/C.6/74/SR.30, para. 102), and Slovakia (A/C.6/74/SR.28, para. 41).
64
France (A/C.6/74/SR.28, paras. 47–48).
65
A/74/10, paras. 270–271.
66
Israel (A/C.6/74/SR.24, para. 27).
67
Cuba (A/C.6/74/SR.25, para. 23).
68
Jamaica (A/C.6/74/SR.27, paras. 2–3).
69
Republic of Korea (A/C.6/74/SR.30, para. 67).
70
Belize (A/C.6/74/SR.30, paras. 68–71).
71
Estonia (ibid., paras. 61–62).

20-03200 11/80
A/CN.4/740

follows. Greece 72 stated once again that “the matter [did] not lend itself for
codification at the present stage, as lack of State practice in addressing legal issues
related to sea-level rise and the ensuing lack of generally accepted rules [did] not
provide solid ground for such an endeavour”, and that it was concerned that the
consideration of the matter within that “uncertain context might call into question
cardinal and well-established law of the sea rules reflected in the United Nations
Convention on the Law of the Sea”. The Czech Republic 73 repeated that it was still of
the opinion that “the topic was predominantly scientific and technical in character. It
should therefore be taken up by the relevant technical and scientific bodies and
intergovernmental forums, with a mandate to address law of the sea issues”.
Slovakia 74 nuanced its previous opinion: it noted the inclusion of the topic in the
Commission’s programme of work and welcomed the agreement of the Study Group
“on its composition, methods and programme of work”, based on the three subtopics
identified in the syllabus. Cyprus 75 reiterated that the Commission “had no mandate
for codification, and that State practice was also insufficient. Any attempt to
modify … the Convention would have adverse consequences”. However, Cyprus also
expressed its support for the exercise “on potential effects of rising sea levels on
statehood and migration”.
23. At the same time, the essential issue of stability and security in international law
in relation to the present topic and to its outcome was stressed in 2019 with even more
vigour. Israel 76 mentioned that “it was critical that the work of the Commission and
the Study Group on the topic not upset or undermine the delicate balance achieved by
existing maritime border agreements, which meaningfully and significantly
contributed to increased regional and international stability”. Cuba 77 expressed hope
that the Commission would “take into consideration the letter and the spirit of existing
international law, including the United Nations Convention on the Law of the Sea, in
order to maintain its stability and predictability as far as possible”. New Zealand 78
referred to the global significance of the topic: “[a]ll States had an interest in
preserving the balance of rights and responsibilities under the Convention. It was also
in the interests of all States to ensure there was certainty regarding maritime zones,
to avoid potential disputes”. Jamaica 79 expressed hope “that the Commission’s work
on sea-level rise would spur the development of the international law on climate
change in a manner that supported security and stability and protected the most
vulnerable communities and States”. Norway, 80 speaking on behalf of the Nordic
countries (namely, Denmark, Finland, Iceland, Norway and Sweden), mentioned that
the Convention provided “predictability and stability. It was therefore a core priority
for the Nordic countries to safeguard and strengthen the Convention system. Those
considerations would guide their approach” to the Commission’s work and to the issue
in general. Romania 81 stressed that “it understood that the Study Group would
approach the subject matter without questioning the applicable legal regimes as
codified under the United Nations Convention on the Law of the Sea and would duly
take into consideration the need to maintain legal stability in intern ational law” in
relation to the topic and to its outcome. Greece 82 stressed the “principle of stability of

__________________
72
Greece (A/C.6/74/SR.28, paras. 56–57).
73
Czech Republic (ibid., para. 66).
74
Slovakia (ibid., para. 41).
75
Cyprus (A/C.6/74/SR.30, para. 102).
76
Israel (A/C.6/74/SR.24, para. 27).
77
Cuba (A/C.6/74/SR.25, para. 23).
78
New Zealand (A/C.6/74/SR.26, para. 89).
79
Jamaica (A/C.6/74/SR.27, paras. 2–3).
80
Norway (ibid., para. 87).
81
Romania (A/C.6/74/SR.28, paras. 14–15).
82
Greece (ibid., paras. 56–57).

12/80 20-03200
 A/CN.4/740

maritime boundaries which [could] not be affected by climate change and its effects”.
Poland 83 shared the view of the International Law Association tha t “any proposals in
[that] area should aim to facilitate orderly relations between States and, ultimately,
the avoidance of conflicts, bearing in mind that one of the principal motivations of
the [Convention] [was] to contribute to the maintenance of inter national peace and
security”. The Federated States of Micronesia 84 also mentioned “the preference in
international law for stability, certainty and orderly affairs” in connection with the
topic, while Thailand 85 stressed that “existing entitlements should be upheld in order
to maintain peace, stability and friendly relations among nations”. Canada 86
recommended that the Commission “take a cautious approach [on those matters] –
that favoured certainty and stability for the delimitation of maritime boundaries”.
Papua New Guinea 87 affirmed that, “[i]n order to foster legal certainty and stability,
facilitate orderly relations between States and avoid conflict, affected States should
be able to maintain existing entitlements to maritime zones in accordance with the
United Nations Convention on the Law of the Sea”. Estonia 88 mentioned the need to
“maintain legal certainty”, while Belize 89 underlined, inter alia, that the economies
of small island developing States “depended on the stability of baselines”. The United
States 90 “supported efforts to protect States’ maritime entitlements under the
international law of the sea” in a manner that was consistent “with the rights and
obligations of third States”. Those statements show, once again, how important it is
for the Study Group to duly consider the issue of preserving the legal stability and
security in relation to the topic.
24. The proponents of the inclusion of the present topic in the programme of work
of the Commission, the Co-Chairs of the Study Group, have undertaken a series of
outreach efforts both prior to and after the inclusion of the topic in the long -term
programme of work and in the current programme of work. The purpose of those
démarches was, first, to consult Member States on the feasibility of the inclusi on of
the topic in the programme of work (an effort that was welcomed by Member States),
and, second, to explain the progress of the work of the Commission on the topic, as
well as the proposed steps and methodology. At the same time, all the events
organized or attended by the said proponents were used to highlight the pressing need
for the Commission to receive as much as possible information on the relevant State
practice, in due time.
25. As already mentioned, the first such event, entitled “The legal effects of the
ocean/sea-level rise”, was organized in New York in October 2017, at the Permanent
Mission of Romania to the United Nations, and was attended by 35 States. 91 On
23 October 2018, the proponents of the inclusion of the topic in the programme of
work of the Commission attended a side event to the Sixth Committee, entitled
“Sea-level rise and implications for international law”, organized in New York by
New Zealand, Peru and the Alliance of Small Island States. A side event to the
seventy-first session of the Commission, entitled “The physical science of sea-level
rise”, was organized on 22 May 2019, in Geneva. On 7 June 2019, Bogdan Aurescu,
Co-Chair of the Study Group, attended the session of Working Party on Public
International Law of the Council of the European Union in Brussels upon the
invitation of the Council of the European Union, and presented the current work of
__________________
83
Poland (A/C.6/74/SR.29, para. 23).
84
Micronesia (Federated States of) (ibid., para. 90).
85
Thailand (ibid., paras. 99–100).
86
Canada (A/C.6/74/SR.30, para. 11).
87
Papua New Guinea (ibid., para. 19).
88
Estonia (ibid., para. 62).
89
Belize (ibid., para. 69).
90
United States (ibid., para. 127).
91
A/73/10, annex B, para. 6.

20-03200 13/80
A/CN.4/740

the Commission, focusing on the topic “Sea-level rise in relation to international

law”. On 4 September 2019, Mr. Aurescu, Ms. Galvão Teles and Ms. Oral attended
the conference “International law responses to challenges of the global environment”,
organized by the Romanian Branch of the International Law Association, the
Romanian Embassy in The Hague and Leiden University, and pres ented the status of
the work of the Commission on the present topic. On 4 October 2019, Bogdan
Aurescu presented the progress of the work of the Commission on the present topic
during a conference entitled “Sea-level rise and the impact on international law”
organized by the Fridtjof Nansen Institute in Oslo. On 29 and 30 October 2019,
respectively, Ms. Galvão Teles, Ms. Oral and Mr. Ruda Santolaria participated at the
event entitled “Sea-level rise and implications on international law”, co-organized in
New York, during the International Law Week, by New Zealand, Peru, Portugal,
Romania and Turkey with the support of the Alliance of Small Island States and the
Pacific Islands Forum, and the side event organized by the Asian -African Legal
Consultative Organization, entitled “The effects of changing baselines: a threat to the
maritime legal order?”. On 14 and 15 November 2019, Mr. Aurescu, Ms. Galvão
Teles, Ms. Oral and Mr. Ruda Santolaria participated in the Roundtable on Sea -level
Rise and the Law of the Sea, organized by the Centre for International Law of the
National University of Singapore. That event benefited from the participation of
representatives of States from the region, 92 other members of the Commission 93 and
representatives from academia, and occasioned an extensive exchange of views and
presentation of State practice information. On 10 December 2019, Ms. Oral attended
a side event to the twenty-fifth session of the Conference of the Parties to the United
Nations Framework Convention on Climate Change, on maritime boundaries and
climate change, organized in Madrid by the Pacific Community.
26. The Co-Chairs of the Study Group have also published papers related to the
topic. 94
27. In conclusion, it is highly important and relevant for the Study Grou p in its work
on the present topic to duly consider the issue of preserving legal stability, security,
certainty and predictability. This would also be in line with the general purpose of the
United Nations Convention on the Law of the Sea, whose preamble states that “the
codification and progressive development of the law of the sea achieved in this
Convention will contribute to the strengthening of peace, security, co -operation and
friendly relations among all nations in conformity with the principles of justice and
equal rights and will promote the economic and social advancement of all peoples of
the world, in accordance with the Purposes and Principles of the United Nations as
set forth in the Charter”.

III. Scientific findings and prospects of sea-level rise and

relationship with the topic
28. As already mentioned, the Commission will consider the present topic on the
premise that sea-level rise is a fact, already proved by the science. The various

__________________
92
Cambodia, Indonesia, Myanmar, Philippines, Singapore, Thailand and Viet Nam.
93
Mr. Mahmoud D. Hmoud and Mr. Nguyễn Hồng Thao. Mr. Kriangsak Kittichaisaree, former
member of the Commission, also attended.
94
Bogdan Aurescu, “The legal effects of the sea-level rise on the work programme of the UN
International Law Commission”, Romanian Journal of International Law, No. 20 (2018), pp. 72–81;
and Nilüfer Oral, “International law as an adaptation measure to sea -level rise and its impact on
islands and offshore features, International Journal of Marine and Coastal Law, vol. 34 (2019),
pp. 415–439.

14/80 20-03200
 A/CN.4/740

scientific data show that the phenomenon is already affecting a large number of
States, either directly or indirectly. According to the 2018 syllabus,
more than 70 States are or are likely to be directly affected by sea -level rise, a
group which represents more than one third of the States of the in ternational
community. Indeed, as is well known, this phenomenon is already having an
increasing impact upon many essential aspects of life for coastal areas, for
low-lying coastal States and small island States, and especially for their
populations. Another quite large number of States is likely to be indirectly
affected (for instance, by the displacement of people or the lack of access to
resources). Sea-level rise has become a global phenomenon and thus creates
global problems, impacting on the international community as a whole. 95
29. The awareness of the negative impact of sea-level rise is growing. The
phenomenon is mentioned in an increasing number of official documents; for
example, in paragraph 14 of the 2030 Agenda for Sustainable Development. 96 At the
same time, according to the Fifth Assessment Report of the Intergovernmental Panel
on Climate Change, this phenomenon is likely to accelerate in the future: the global
mean sea-level rise is likely to be between 26 and 98 cm by the year 2100. 97 As a
result, low-lying coastal areas and of islands will be permanently inundated. The
recent Intergovernmental Panel on Climate Change Special Report on the Ocean and
Cryosphere in a Changing Climate confirms that evolution. 98
30. According to the Panel’s Special Report, 99 680 million people (nearly 10 per
cent of the global population in 2010) live in low -lying coastal areas. Coastal areas
are home to approximately 28 per cent of the global population, including
approximately 11 per cent living on land less than 10 metres above sea level. 100
Approximately 65 million people live in small island developing States, 101 which are
especially at risk from sea-level rise. The Panel stated that it was virtually certain that
global mean sea level was rising and indicated (with high confidence) that it would
accelerate. 102 The Special Report has revised previous estimates of global mean sea
level rise projections by the end of 2100 to possibly being between 0.61 –1.10 metres
(medium confidence), depending on certain scenarios. 103
__________________
95
A/73/10, annex B, para. 1.
96
General Assembly resolution 70/1, para. 14 (see also A/73/10, annex B, para. 2): “Climate
change is one of the greatest challenges of our time and its adverse impacts undermine the ability
of all countries to achieve sustainable development. Increases in global temperature, sea level
rise, ocean acidification and other climate change impacts are seriously affecting coastal areas
and low-lying coastal countries, including many least developed countries and small island
developing States. The survival of many societies, and of the biological support systems of the
planet, is at risk.”
97
Intergovernmental Panel on Climate Change, Climate Change 2013: The Physical Science Basis.
Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel
on Climate Change (Cambridge, United Kingdom, Cambridge University Press, 2013), p. 25.
98
Intergovernmental Panel on Climate Change, The Ocean and Cryosphere in a Changing Climate:
A Special Report of the Intergovernmental Panel on Climate Change (forthcoming). The
“Summary for policymakers” was approved by the Panel’s Working Groups I and II at their
second joint session; report accepted by the Panel at its fifty-first session, held in Monaco, on
24 September 2019.
99
Intergovernmental Panel on Climate Change, “Sea level rise and implications fo r low-lying
islands, coasts and communities”, The Ocean and Cryosphere in a Changing Climate (see
previous footnote).
100
Intergovernmental Panel on Climate Change, “Framing and context of the report”, ibid., p. 77,
sect. 1.1.
101
Ibid.
102
Intergovernmental Panel on Climate Change, “Sea level rise and implications for low -lying
islands, coasts and communities”, ibid., pp. 334–335, sects. 4.2.2.1.1, and 4.2.2.2.
103
Ibid., p. 352, table 4.4.

20-03200 15/80
A/CN.4/740

31. Sea-level rise is not uniform, as it varies regionally. The Panel’s Fifth
Assessment Report indicated that, “[s]ince 1993, the regional rates for the Western
Pacific are up to three times larger than the global mean, while those for much of the
Eastern Pacific are near zero or negative”. 104 The Report also concluded that it was
very likely that there would be an increase in the occurrence of sea -level extremes in
some regions by 2100. 105 The Report further noted that some 70 per cent of the global
coastlines were projected to experience a relative sea-level change within 20 per cent
of the global mean sea-level change. 106 Risks related to sea-level rise, such as erosion,
flooding and salinization, are expected to significantly increase by the end of 2100
along all low-lying coasts without major additional adaptation efforts (the Report
attributed very high confidence to this assessment).
32. The relationship between these scientifically proven facts and the topic included
in the Commission’s programme of work was set forth in the syllabus: as mentioned
already, the Commission will only deal with “the legal implications of sea -level rise”,
and not with “protection of environment, climate change per se, causation,
responsibility and liability”. 107 Taking into account these limitations, it is however
important – as emphasized in the 2018 syllabus – for the law to be able to “contribute
to the endeavours of the international community to respond to [the] issues” 108
provoked by the phenomenon, and the topic “reflects … pressing concerns of the
international community as a whole”, 109 “to assist States in developing practicable
solutions in order to respond effectively to the issues prompted by sea -level rise”. 110
That objective was also highlighted by Member States in their statements in the Sixth
Committee, as evidenced above.

IV. Previous references to the topic in the works of

the Commission
33. The topic was tangentially referred to in the fourth report on the protection of
the atmosphere (A/CN.4/705, paras. 66–67), examined during the sixty-ninth session
of the Commission in 2017. As a result of the debates during the session, the
Commission decided to provisionally adopt, inter alia, a paragraph in the preamble 111
and another paragraph 112 where the sea-level rise issue is mentioned incidentally. On
that occasion, several members of the Commission, including the proponents of this

__________________
104
Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report.
Contribution of Working Groups I, II and III to the Fifth Assessment Report of the
Intergovernmental Panel on Climate Change (Geneva, 2014), sect. 1.1.4, p. 42.
105
Intergovernmental Panel on Climate Change, , Executive Summary, “Sea level change”, Climate
Change 2013: The Physical Science Basis (see footnote 97 above), p. 1140.
106
Ibid.
107
A/73/10, annex B, para. 14.
108
Ibid., para. 18.
109
Ibid., para. 25.
110
Ibid., para. 18.
111
“Aware also, in particular, of the special situation of low-lying coastal areas and small island
developing States due to sea-level rise”. Draft sixth preambular para. of the draft guidelines on
protection of the atmosphere, provisionally adopted by the Commission, Official Records of the
General Assembly, Seventy-second Session, Supplement No. 10 (A/72/10), p. 149, para. 66.
112
“When applying paragraphs 1 and 2, special consideration should be given to persons and groups
particularly vulnerable to atmospheric pollution and atmospheric degradation. Such groups may
include, inter alia, indigenous peoples, people of the least developed coun tries and people of
low-lying coastal areas and small island developing States affected by sea -level rise.” Para. 3 of
draft guideline 9 of the draft guidelines on protection of the atmosphere, provisionally adopted
by the Commission, ibid., p. 150, para. 66.

16/80 20-03200
 A/CN.4/740

topic, suggested that the issue of the sea-level rise be treated in a truly comprehensive
manner, as a matter of priority, as a separate topic of the Commission.
34. Sea-level rise was also mentioned incidentally in the commentary of the draft
articles on the protection of persons in the event of disasters, topic completed by the
Commission in 2016: 113 the draft articles were considered in the commentary to be
applicable to different types of “disasters”, 114 including with regard to “sudden-onset
events (such as an earthquake or tsunami) and to slow-onset events (such as drought
or sea-level rise), as well as frequent small-scale events (floods or landslides)”. 115

V. Consideration of the topic by the International

Law Association
35. The topic of sea-level rise was initially examined by the Committee on
Baselines under the International Law of the Sea of the International Law Association,
whose final report was considered at the Association’s Sofia Conference in 2012. 116
The 2012 report recognized “that substantial territorial loss resulting from sea -level
rise is an issue that extends beyond baselines and the law of the sea and encompasses
consideration at a junction of several parts of international law”. 117
36. As a consequence, the International Law Association established the Committee
on International Law and Sea Level Rise in 2012. That Committee decided to focus
its work on three main issue areas: the law of the sea; forced migration and human
rights; and issues of statehood and international security. An interim report of that
Committee, which was presented at the 2016 Johannesburg Conference, 118 focused on
issues regarding the law of the sea and migration/human rights. Another report was
considered at the 2018 Sydney Conference, which completed the Committee’s work
on law of the sea issues. The Committee recommended that th e International Law
Association adopt a resolution containing two “de lege ferenda” proposals. The report
and resolution 5/2018 adopted at the Sydney Conference partially endorsed these

__________________
113
Adopted by the International Law Commission at its sixty-eighth session, in 2016, and submitted
to the General Assembly as a part of the Commission’s report covering the work of that session,
Official Records of the General Assembly, Seventy-first Session, Supplement No. 10 (A/71/10),
para. 48.
114
Defined as “a calamitous event or series of events resulting in widespread loss of life, great
human suffering and distress, mass displacement, or large -scale material or environmental
damage, thereby seriously disrupting the functioning of society.” Draft art. 3, subpara. (a), of the
draft articles on the protection of persons in the event of disasters, ibid., para. 48, at p. 14.
115
Para. (4) of the commentary to draft art. 3, ibid., para. 49, at p. 23.
116
Final report of the Committee on Baselines under the International Law of the Sea in
International Law Association, Report of the Seventy-fifth Conference, Held in Sofia, August
2012, vol. 75 (2012), p. 385, at p. 424. That report stated that “the existing law of the normal
baseline applies in situations of significant coastal change caused by both territorial gain and
territorial loss. Coastal States may protect and preserve territory thro ugh physical reinforcement,
but not through the legal fiction of a charted line that is unrepresentative of the actual low -water
line.”
117
Resolution 1/2012, para. 7, ibid., p. 17.
118
Interim report of the Committee on International Law and Sea Level Ris e in International Law
Association, Report of the Seventy-seventh Conference, Held in Johannesburg, August 2016,
vol. 77 (2017), p. 842.

20-03200 17/80
A/CN.4/740

proposals, while maintaining their general conceptual orientation. 119 Furthermore, the
2018 report proposed 12 principles with commentary comprising the Sydney
Declaration of Principles on the Protection of Persons Displaced in the Context of
Sea Level Rise. 120 The mandate of the Committee was extended in order to continue
the study of the statehood question and other relevant issues of international law.

VI. Purpose and structure of the issues paper

37. The present issues paper is preliminary in nature, as will be the second issues
paper, to be presented by the Co-Chairs of the Study Group in 2021. The intention of
the Co-Chairs is to prepare, in the next quinquennium, consolidated issues papers
based on the substantive reports reflecting the work of the Study Group that will be
issued at the end of the Commission’s sessions (see paragraph 6 above).
38. The issues paper is divided into the introduction and four parts.
39. The introduction addresses certain general matters: the consideration of the
topic by the Commission; the positions of the Member States during the debates in
the Sixth Committee in the previous years; outreach undertaken by the Co -Chairs of
the Study Group; and scientific findings and prospects of sea-level rise, and the
relationship thereof to the topic. It also addresses the previous reference s to the topic
in the works of the Commission and the consideration of the topic by the International
Law Association.
40. Part One presents the scope and outcome of the topic, the issues to be considered
by the Commission, the final outcome to be reached, as well as the methodology to
be used by the Study Group.
41. Part Two deals with the possible legal effects of sea-level rise on the baselines
and outer limits of the maritime spaces measured from the baselines, on maritime
__________________
119
Final report of the Committee on International Law and Sea Level Rise, International Law
Association, Report of the Seventy-eighth Conference, Held in Sydney, 19–24 August 2018,
vol. 78 (2019), p. 866: (a) “proposing that States should accept that, once th e baselines and the
outer limits of the maritime zones of a coastal or an archipelagic State have been properly
determined in accordance with the detailed requirements of the 1982 Law of the Sea Convention,
that also reflect customary international law, these baselines and limits should not be required to
be readjusted should sea level change affect the geographical reality of the coastline”; and
(b) proposing “that, on the grounds of legal certainty and stability, the impacts of sea level rise
on maritime boundaries, whether contemplated or not by the parties at the time of the negotiation
of the maritime boundary, should not be regarded as a fundamental change of circumstances”
(ibid., pp. 866 and 895, respectively). For the text of resolution 5/2018, see ibid., p. 29: “The
78th Conference of the International Law Association, held in Sydney, Australia, 19–24 August
2018: … ENDORSES the proposal of the Committee that, on the grounds of legal certainty and
stability, provided that the baselines and the outer limits of maritime zones of a coastal or an
archipelagic State have been properly determined in accordance with the 1982 Law of the Sea
Convention, these baselines and limits should not be required to be recalculated should sea level
change affect the geographical reality of the coastline; ENDORSES ALSO the Committee’s
proposal that the interpretation of the 1982 Law of the Sea Convention in relation to the ability
of coastal and archipelagic States to maintain their existing lawful maritime entitlemen ts should
apply equally to maritime boundaries delimited by international agreement or by decisions of
international courts or arbitral tribunals; CONFIRMS that the Committee’s recommendations
regarding the maintenance of existing maritime entitlements are conditional upon the coastal
State’s existing maritime claims having been made in compliance with the requirements of the
1982 Law of the Sea Convention and duly published or notified to the Secretary -General of the
United Nations as required by the relevant provisions of the Convention, prior to physical
coastline changes brought about by sea level rise”.
120
Final report of the Committee on International Law and Sea Level Rise, ibid., pp. 897 ff., and
resolution 6/2018, annex, ibid., p. 33.

18/80 20-03200
 A/CN.4/740

delimitations, and on the exercise of sovereign rights and jurisdiction of the coastal
State and its nationals, as well as on the rights of third States and their nationals in
maritime spaces in which boundaries or baselines have been established. It also
includes the possible legal effects of sea-level rise on islands insofar as their role in
the construction of baselines and in maritime delimitations is concerned.
42. Part Three covers possible legal effects of sea-level rise on the status of islands,
including rocks, and on the maritime entitlements of a coastal State with fringing
islands. It also deals with the legal status of artificial islands, reclamation or island
fortification activities as a response/adaptive measures to sea-level rise.
43. Part Four presents observations and the future programme of work.

Part One: General

I. Scope and outcome of the topic
44. The present topic concerns the issue of “Sea-level rise in relation to international
law”. In accordance with the 2018 syllabus, the Study Group will examine the
possible legal effects or implications of sea-level rise in three main areas: (a) law of
the sea; (b) statehood; and (c) protection of persons affected by sea -level rise. 121 The
syllabus also indicates that “[t]hese three issues reflect the legal implications of
sea-level rise for the constituent elements of the State (territory, population and
Government/statehood) and are thus interconnected and should be examined
together”. 122
45. The 2018 syllabus also sets out the limits of action by the Study Group on the
present topic. It emphasizes that the topic “does not deal with protection of
environment, climate change per se, causation, responsibility and liability”, and that
it “does not intend to provide a comprehensive and exhaustive scoping of the
application of international law to the questions raised by sea-level rise, but to outline
some key issues” in the above-mentioned three areas. 123 The 2018 syllabus is also
clear as to the fact that these “three areas to be examined should be analysed only
within the context of sea-level rise notwithstanding other causal factors that may lead
to similar consequences”. 124 Another clear limit set forth by the syllabus is that “[t]his
topic will not propose modifications to existing international law, such as [the
Convention]”. 125 At the same time, the syllabus does not exclude that, in relation to
the topic, “[o]ther questions may arise in the future requiring analysis”. 126
46. Lastly, while the United Nations Convention on the Law of the Sea is the
principal source of codified law for the purposes of the present paper, this is without
prejudice to the position of States that have not ratified the Convention.

A. Issues to be considered by the Commission

47. As already mentioned, the Study Group will examine the p ossible legal effects
or implications of sea-level rise in three main areas: (a) law of the sea; (b) statehood;
and (c) protection of persons affected by sea-level rise.

__________________
121
A/73/10, annex B, para. 12.
122
Ibid., para. 13.
123
Ibid., para. 14.
124
Ibid.
125
Ibid.
126
Ibid.

20-03200 19/80
A/CN.4/740

48. On the law of the sea, the issues to be examined are listed in the 2018 syllabus
as follows: (a) possible legal effects of sea-level rise on the baselines and outer limits
of the maritime spaces that are measured from the baselines; (b) possible legal effects
of sea-level rise on maritime delimitations; (c) possible legal effects of sea-level rise
on islands insofar as their role in the construction of baselines and in maritime
delimitations is concerned; (d) possible legal effects of sea-level rise on the exercise
of sovereign rights and jurisdiction of the coastal State and its nationals in maritime
spaces in which boundaries or baselines have been established, especially regarding
the exploration, exploitation and conservation of their resources, as well as on the
rights of third States and their nationals (for example, innoc ent passage, freedom of
navigation and fishing rights); (e) possible legal effects of sea -level rise on the status
of islands, including rocks, and on the maritime entitlements of a coastal State with
fringing islands; and (f) the legal status of artificial islands, reclamation or island
fortification activities under international law as a response/adaptive measures to
sea-level rise. 127
49. On statehood, the issues to be examined are listed in the 2018 syllabus as
follows: (a) analysis of the possible legal effects on the continuity or loss of statehood
in cases where the territory of island States is completely covered by the sea or
becomes uninhabitable; (b) legal assessment regarding the reinforcement of islands
with barriers or the erection of artificial islands as a means to preserve the statehood
of island States against the risk that their land territory might be completely covered
by the sea or become uninhabitable; (c) analysis of the legal fiction according to
which, considering the freezing of baselines and the respect of the boundaries
established by treaties, judicial judgments or arbitral awards, the continuity of
statehood of the island States could be admitted due to the maritime territory
established as a result of territories under their sov ereignty before the latter become
completely covered by the sea or uninhabitable; (d) assessment of the possible legal
effects regarding the transfer – either with or without transfer of sovereignty – of a
strip or portion of territory of a third State in favour of an island State whose terrestrial
territory is at risk of becoming completely covered by the sea or uninhabitable, in
order to maintain its statehood or any form of international legal personality; and
(e) analysis of the possible legal effects of a merger between an island developing
State whose land territory is at risk of becoming completely covered by the sea or
uninhabitable and another State, or of the creation of a federation or association
between them, regarding the maintenance of statehood or of any form of international
legal personality of the island State. 128
50. On the protection of persons affected by sea-level rise, the issues to be examined
are listed in the 2018 syllabus as follows: (a) the extent to which the duty of States to
protect the human rights of individuals under their jurisdiction applies to
consequences related to sea-level rise; (b) whether the principle of international
cooperation may be applied to help States cope with the adverse effects of sea -level
rise on their population; (c) whether there are any international legal principles
applicable to measures to be taken by States to help their population to remain in situ,
despite rising sea levels; (d) whether there are any international legal principles
applicable to the evacuation, relocation and migration abroad of persons owing to the
adverse effects of sea-level rise; and (e) possible principles applicable to the
protection of the human rights of persons who are internally displaced or who migrate
owing to the adverse effects of sea-level rise. 129

__________________
127
Ibid., para. 15.
128
Ibid., para. 16.
129
Ibid., para. 17.

20/80 20-03200
 A/CN.4/740

B. Final outcome

51. According to the 2018 syllabus, the Study Group will perform “a mapping
exercise of the legal questions raised by sea-level rise and its interrelated issues …
This effort could contribute to the endeavours of the international community to
respond to these issues and to assist States in developing practicable solutions in order
to respond effectively to the issues prompted by sea-level rise.” 130
52. The 2018 syllabus indicates that the final outcome will be a final report of the
Study Group, accompanied by a set of conclusions on its work. After the presentation
of the final report, “it could be considered whether and how to pursue further the
development of the topic or parts of it within the Commission or other [forums]”. 131

II. Methodological approach

53. According to the 2018 syllabus, the Study Group will analyse the existing
international law, including treaty and customary international law, in accordance
with the mandate of the Commission, which is to undertake progressive development
of international law and its codification. 132 The work of the Study Group will be
based, using a systemic and integrative approach, on the practice of States,
international treaties, other international instruments, judicial decisions of
international and national courts and tribunals, and the analyses of scholars. 133 Other
organizational matters were addressed in chapter X of the 2019 annual report of the
Commission 134 and in paragraph 5 above.
54. The Co-Chairs also acknowledge the valuable contributions of the members of
the Commission received in the process of drafting the present paper. After the
circulation of the issues paper, “[m]embers of the Study Group will then be invited to
put forward contribution papers that could comment upon, or complement, the issues
paper prepared by the Co-Chairs (by addressing, for example, regional practice, case
law or any other aspects of the subtopic)”. 135 However, upon request of the Co-Chairs,
in order to facilitate information on State practice, a number of members of the
Commission kindly offered to prepare such contributions in advance, prior to the
finalization of the present paper. The Co-Chairs would like to express their
appreciation to Mr Nguyễn Hồng Thao for his valuable paper on State practice in the
Asia-Pacific region. 136
55. As is well known, State practice is essential for the work of the Commission,
and especially for the work of the Study Group on the present topic. The Co -Chairs
would like to express their deep gratitude to those Member States that responded to
the request by the Commission for such practice in chapter III of the 2019 annual

__________________
130
Ibid., para. 18.
131
Ibid., para. 26.
132
Ibid., para. 18.
133
Ibid., para. 20.
134
A/74/10, paras. 263–273.
135
Ibid., para. 270.
136
On file with the Codification Division.

20-03200 21/80
A/CN.4/740

report of the Commission, 137 either directly to the Commission 138 or through
organizations such as the Asian-African Legal Consultative Organization 139 (to which
the Co-Chairs are also very grateful).

Part Two: Possible legal effects of sea-level rise on the

baselines and outer limits of the maritime spaces measured
from the baselines, on maritime delimitations, and on the
exercise of sovereign rights and jurisdiction of the coastal
State and its nationals, as well as on the rights of third
States and their nationals in maritime spaces in which
boundaries or baselines have been established
56. As a result of sea-level rise, the coastal configuration of a State and, as a
consequence, its baselines may change. The importance of baselines lies in the rule
that, in accordance with the United Nations Convention on the Law of the Sea, the
outer limits of the maritime spaces of a State, with some exceptions as will be shown
below, are measured from the baselines.
57. As a further result, the relevant points that were used or are intended to be used
for establishing a maritime boundary, either by agreement or by adjudi cation, may
also change.
58. In both cases mentioned above, the role of islands might be of relevance, either
as they are integrated in the baseline, if they are part of the coastal configuration, or,
in the case of maritime delimitations, as relevant points used for drawing the
delimitation line(s) and/or as relevant or special circumstances.

__________________
137
Ibid., paras. 31–33:
“31. The Commission would welcome any information that States, international organizations
and the International Red Cross and Red Crescent Movement could provide on their practice and
other relevant information concerning sea-level rise in relation to international law.
“32. At the seventy-second session (2020), the Study Group will focus on the subject of sea -level
rise in relation to the law of the sea. In this connection, the Commission would appreciate
receiving, by 31 December 2019, examples from States of their practice that may be relevant
(even if indirectly) to sea-level rise or other changes in circumstances of a similar nature. Such
practice could, for example, relate to baselines and where applicable archipelagic baselines,
closing lines, low-tide elevations, islands, artificial islands, land reclamation and other coastal
fortification measures, limits of maritime zones, delimitation of maritime boundaries, and any
other issues relevant to the subject. Relevant materials could include: (a) bil ateral or multilateral
treaties, in particular maritime boundary delimitation treaties; (b) national legislation or
regulations, in particular any provisions related to the effects of sea -level rise on baselines and/or
more generally on maritime zones; (c) declarations, statements or other communications in
relation to treaties or State practice; (d) jurisprudence of national or international courts or
tribunals and outcomes of other relevant processes for the settlement of disputes related to the
law of the sea; (e) any observations in relation to sea-level rise in the context of the obligation of
States parties under the United Nations Convention on the Law of the Sea to deposit charts
and/or lists of geographical coordinates of points; and (f) any other r elevant information, for
example, statements made at international forums, as well as legal opinions, and studies.
“33. The Commission would further welcome receiving in due course any information related to
statehood and the protection of persons affected by sea-level rise, as outlined in the syllabus of
the topic, both of which will be considered by the Study Group during the seventy -third session
(2021) of the Commission.”
138
Croatia, Maldives, Micronesia (Federated States of), the Netherlands, Romania, Singapore,
United Kingdom, United States, and Pacific Islands Forum.
139
Iraq, Qatar and Syrian Arab Republic.

22/80 20-03200
 A/CN.4/740

59. At the same time, the most important aspect related to the possible effect of sea -
level rise on maritime spaces and maritime delimitations refers to the entitleme nts, in
accordance with the legal regime(s) provided by the Convention, of the coastal
State(s) and, as the case may be, of the third States.

I. Possible legal effects of sea-level rise on the baselines and

outer limits of the maritime spaces that are measured from
the baselines
A. Provisions of the United Nations Convention on the Law of the Sea
on the role of baselines in establishing maritime spaces and their
outer limits

60. According to article 5 of the Convention, “[e]xcept where otherwise p rovided

in this Convention, the normal baseline … is the low -water line along the coast as
marked on large-scale charts officially recognised by the coastal State”. Straight
baselines are defined under article 7, paragraph 1: “[i]n localities where the coa stline
is deeply indented and cut into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight baselines joining appropriate points may
be employed in drawing the baseline from which the breadth of the territor ial sea is
measured.” The drawing of straight baselines must follow the conditions provided for
under article 7, paragraphs 3 to 6. For the present topic, article 7, paragraph 4, is of
relevance, since it allows baselines to be drawn to and from low-tide elevations only
when “lighthouses or similar installations which are permanently above sea level have
been built on them or … in instances where the drawing of baselines to and from such
elevations has received general international recognition”. Article 7, paragraph 2, 140
which deals with the situation of a coastline that is highly unstable because of the
presence of a delta and other natural conditions, is also of interest for the present
topic, and will be discussed below.
61. Other provisions of the Convention related to baselines and relevant to the
present topic are those referring to reefs (article 6: “[i]n the case of islands situated
on atolls or of islands having fringing reefs, the baseline for measuring the breadth of
the territorial sea is the seaward low-water line of the reef, as shown by the
appropriate symbol on charts officially recognized by the coastal State”), mouths of
rivers (article 9: “[i]f a river flows directly into the sea, the baseline shall be a straight
line across the mouth of the river between points on the low-water line of its banks”),
bays (article 10, paragraph 4: “[i]f the distance between the low -water marks of the
natural entrance points of a bay does not exceed 24 nautical miles, a closing line may
be drawn between these two low-water marks, and the waters enclosed thereby shall
be considered as internal waters”; and article 10, paragraph 5: “[w]here the distance
between the low-water marks of the natural entrance points of a bay exceeds
24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the
bay in such a manner as to enclose the maximum area of water that is possible with a
line of that length”), low-tide elevations (article 13, paragraph 1: “[w]here a low -tide
elevation is situated wholly or partly at a distance not exceeding the breadth of the
territorial sea from the mainland or an island, the low-water line on that elevation
may be used as the baseline for measuring the breadth of the territorial sea”) and
__________________
140
“Where because of the presence of a delta and other natural conditions the coastline is highly
unstable, the appropriate points may be selected along the furthest seaward extent of the low-
water line and, notwithstanding subsequent regression of the low -water line, the straight
baselines shall remain effective until changed by the coastal State in accordance with this
Convention.”

20-03200 23/80
A/CN.4/740

archipelagic baselines (article 47, paragraph 1: “[a]n archipelagic State may draw
straight archipelagic baselines joining the outermost points of the outermost islands
and drying reefs of the archipelago provided that within such baselines are included
the main islands and an area in which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1”; article 47, paragraphs 2 to 9,
sets forth the conditions for establishing such baselines).
62. In practice, the baseline may be drawn by the coastal State using a combination
of the methods presented in articles 3 to 7 and 9 to 13, as provided for by article 14
of the Convention (“[t]he coastal State may determine baselines in turn by any of the
methods provided for in the foregoing articles to suit different conditions”). 141
63. Internal waters are provided for under article 8, paragraph 1: “waters on the
landward side of the baseline of the territorial sea form part of the internal waters of
the State”. Article 8, paragraph 2, 142 is also of interest for the present topic, and will
be discussed below in chapter IV of the present Part.
64. At the same time, the breadth and the outer limits of territorial seas are provided
for by the Convention in article 3 (“[e]very State has the right to establish th e breadth
of its territorial sea up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention”) and article 4 (“[t]he outer
limit of the territorial sea is the line every point of which is at a distan ce from the
nearest point of the baseline equal to the breadth of the territorial sea”).
65. The breadth and the outer limits of contiguous zones are established in article 33
of the Convention: “[t]he contiguous zone may not extend beyond 24 nautical mil es
from the baselines from which the breadth of the territorial sea is measured”.
66. The breadth of exclusive economic zones is set forth in article 57 of the
Convention: “[t]he exclusive economic zone shall not extend beyond 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured”.
67. The outer limits of the continental shelf are regulated under article 76 of the
Convention. According to article 76, paragraph 1, “[t]he continental shelf of a coastal
State comprises the sea-bed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to the outer
edge of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance ” (emphasis added).
Under article 76, paragraph 2, “[t]he continental shelf of a coastal State shall not

__________________
141
See David D. Caron, “When law makes climate change worse: rethinking the law of baselines in
light of a rising sea level”, Ecology Law Quarterly, vol. 17 (1990) p. 621, at p. 633: “[T]he
‘normal’ baseline is the low water mark along the coast. To make this baseline continuous,
‘closing lines’ may be used across the mouths of rivers or the entrances to bays if the distance
between the low water marks of the natural entrance points to the bay does not exceed twenty -
four nautical miles. Although the low water mark is the ‘normal’ baseline, it often may not be the
baseline normally encountered because of the just-mentioned special features or because of some
other exception. The major exception to the combination of the low water mark and closing lines
is the use of straight baselines following the general direction of a deeply indented coast or
joining the outermost points of an archipelagic State.”
142
“Where the establishment of a straight baseline in accordance with the method set forth in article
7 has the effect of enclosing as internal waters areas which had not previously been considered as
such, a right of innocent passage as provided in this Convention shall exist in those waters.”

24/80 20-03200
 A/CN.4/740

extend beyond the limits provided for in paragraphs 4 to 6”. Article 76, paragraph 4 143
sets forth the way in which the coastal State establishes the outer edge of the
continental margin, which is necessary given the alternative provisions in article 76,
paragraph 1, concerning the outer limits of the continental shelf. Article 76,
paragraph 5, is also important: “[t]he fixed points comprising the line of the outer
limits of the continental shelf on the sea-bed, drawn in accordance with
paragraph 4 (a) (i) and (ii), either shall not exceed 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured or shall not exceed
100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth
of 2,500 metres” (emphasis added). Article 76, paragraph 6, provides an exception:
“[n]otwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit
of the continental shelf shall not exceed 350 nautical miles from the baselines from
which the breadth of the territorial sea is measured”. Article 76, paragraph 7, sets
forth the way in which a coastal State shall delineate the outer limits of the continental
shelf where the shelf extends beyond the 200 nautical miles from the baselines (“by
straight lines not exceeding 60 nautical miles in length, connecting fixed points,
defined by co-ordinates of latitude and longitude”). Article 76, paragraph 8, is also of
interest for our topic, since it provides that when a coastal State intends to establish
the outer limits of its continental shelf beyond 200 nautical miles from the baselines,
it is required to submit information to the Commission on the Limits of the
Continental Shelf – set up under annex II to the Convention – which “shall make
recommendations to coastal States on matters related to the establishment of the outer
limits of their continental shelf”, and also provides that the shelf limits “established
by a coastal State on the basis of these recommendations shall be final and binding”
(emphasis added). Last but not least, article 76, paragraph 9, is also relevant to the
present topic: “[t]he coastal State shall deposit with the Secretary -General of the
United Nations charts and relevant information, including geodetic data, permanently
describing the outer limits of its continental shelf” (emphasis added).

B. Effects of the ambulation of the baseline as a result of sea-level rise

68. In the case of a normal baseline where, owing to the permanent inundation of
coastal areas, the low-water line moves in a landward direction, thus changing the
configuration of the coast, if a new baseline is to be drawn, its position will also move
landward from the position of the previous baseline.
69. In the case of a straight baseline, if the points 144 used to draw the baseline are
permanently inundated due to sea-level rise, then, where a new baseline is to be
drawn, the position of the new baseline will likewise be landward compared to the
previous one.

__________________
143
“(a) For the purposes of this Convention, the coastal State shall establish the outer edge of the
continental margin wherever the margin extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by either:
“(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points
at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance
from such point to the foot of the continental slope; or
“(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than
60 nautical miles from the foot of the continental slope.
“(b) In the absence of evidence to the contrary, the foot of the continental slope shall be
determined as the point of maximum change in the gradient at its base.”
144
Such as islands or, as set forth in article 7, paragraph 4, of the Convention, low -tide elevations
on which lighthouses or similar installations that are permanently above sea level have been built
or in instances where the drawing of baselines to and from such elevations has received general
international recognition.

20-03200 25/80
A/CN.4/740

70. The same landward repositioning of the baseline will occur in the case of the
permanent inundation of the points used to draw the baseline in the case of reefs
(regulated by article 6 of the Convention), mouths of rivers (art. 9), bays (art. 10),
low-tide elevations (art. 13) and archipelagic baselines (art. 47), as set out in section A
above.
71. If a new baseline is drawn in a landward position (compared to the position of
the previous baseline), then the seaward limits of the various maritime spaces that are
measured from the baseline also move in the same direction. Based on the Convention
rules presented in section A of the present chapter, this is the case for the territorial
sea, the contiguous zone and the exclusive economic zone. In the case of the internal
waters, depending on the effect of the sea-level rise on the configuration of the coast,
their surface will either be maintained (mainly in the case of normal baselines) or
reduced (in the case of straight baselines).
72. In the case of the continental shelf, the Convention provides for the permanency
of the outer limits of the continental shelf in article 76, paragraph 9, which provides
that the “coastal State shall deposit with the Secretary -General of the United Nations
charts and relevant information, including geodetic data, perm anently describing the
outer limits of its continental shelf”. There are, of course, Convention rules providing
for the representation of the baselines and limits of maritime spaces on charts (or,
alternatively, lists of geographical coordinates of points, specifying the geodetic
datum) and for their publicity: see article 16 regarding the territorial sea, article 47,
paragraphs 8 and 9, regarding the archipelagic waters and article 75 regarding
exclusive economic zones. But none of these norms provide for the permanent
character of the limits of these maritime zones. That means that, in the case of the
continental shelf, once the coastal State deposited the “charts and relevant
information, including geodetic data” describing the outer limits of its contine ntal
shelf, this description is permanent and cannot be replaced with another one. So, the
outer limits of the continental shelf cannot be affected, as a rule, by the effects of sea -
level rise on the baselines, provided that the coastal State deposited the respective
charts and information. 145
73. The question arises of what happens where the coastal State did not deposit the
charts and relevant information, including geodetic data describing the outer limits of
its continental shelf. Since in this case the permanency of the outer limits of the
continental shelf is not ensured, it means that these limits may be changed, including
as an effect of sea-level rise in those instances when such limits are dependent on the
position of the baselines. Indeed, article 76, paragraph 1, of the Convention provides
that the continental shelf is measured from the baseline to the outer edge of the
continental margin or to a distance of 200 nautical miles from the baselines from
which the territorial sea is measured. In addition, according to article 76, paragraph 5,
the outer limits of the continental shelf can be up to 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured or up to
100 nautical miles from the 2,500 metre isobath. Therefore, where the coastal State
did not “deposit with the Secretary-General of the United Nations charts and relevant
information, including geodetic data, permanently describing the outer limits of its
continental shelf”, the seaward limit of the continental shelf will not be impacted by
the movement of the baseline only where this outer limit is fixed on the basis of the
outer edge of the continental margin rule or on the 2,500 metre isobath rule.
74. Another provision regulating the permanency of the oute r limits is article 76,
paragraph 8, which provides that, when a coastal State intends to establish the outer
limits of its continental shelf beyond 200 nautical miles from the baselines, the shelf
__________________
145
See, for instance, David D. Caron, “When law makes climate change worse” (footnote 141
above), pp. 634–635.

26/80 20-03200
 A/CN.4/740

limits established by a coastal State on the basis of the recommendations of the

Commission on the Limits of the Continental Shelf are final and binding. Thus, sea -
level rise effects upon the baselines can no longer affect these limits once they are
fixed in accordance with that provision of the Convention.
75. So, following the implementation of the above-mentioned provisions of the
Convention, the outer limits of the continental shelf are permanent, but the outer
limits of the exclusive economic zone are not. If, owing to the effects of sea -level rise
on the baselines, a new baseline is drawn in a position more landward, the outer limits
of the exclusive economic zone also move landward. The Convention does not
provide for the coincidence of the outer limits of the continental shelf and the ones of
the exclusive economic zone. In theory, such a difference may exist, but in practice,
in the vast majority of cases, the outer limits of the continental shelf and the ones of
the exclusive economic zone coincide. So, there might be situations when the water
surface above a portion of the continental shelf belongs to the high seas. The legal
regime of the high seas is quite different from that of the continental shelf (and of the
exclusive economic zone) as far as the entitlements of the coastal State go, especially
the “sovereign rights for the purpose of exploring it and exploiting its natural
resources”, 146 while the legal regime of the exclusive economic zone is rather similar
to that of the continental shelf. Such a situation may create difficulties for the coastal
State in exercising its rights in relation to the continental shelf, and therefore should
be avoided (as discussed below in chapter IV of the present Part). This is one more
argument in favour of maintaining the baselines and the outer limits of maritime zones
measured therefrom.
76. In general, if the baselines and the outer limits of the various maritime spaces
move landward, this means that the legal status and legal regime of the maritime
zones change: for example, part of the internal waters becomes terri torial sea, part of
the territorial sea becomes contiguous zone and/or exclusive economic zone, and part
of the exclusive economic zone becomes high seas, 147 with implications for the
specific rights of the coastal State and third States, and their nationals (innocent
passage, freedom of navigation, fishing rights etc.). 148 Sea-level rise also poses a risk
to an archipelagic State’s baselines. As a result of the inundation of small islands or
drying reefs, the existing archipelagic baseline could be impacted, r esulting in the
loss of archipelagic State status of baselines if the water to the area of land ratio
exceeds 9:1. In addition, it could result in an appreciable departure from the general
configuration of the archipelago and affect the distance/percentage criterion for the
archipelagic baselines, regulated under article 47, paragraph 2, of the Convention. 149
77. These implications will be examined below, in chapter IV of the present Part. For
the purposes of the present chapter, it suffices to note that such implications affect legal
__________________
146
United Nations Convention on the Law of the Sea, art. 77, para. 1.
147
And part of the continental shelf becomes part of the international seabed where the coastal State
did not deposit with the Secretary-General of the United Nations charts and relevant information,
including geodetic data, permanently describing the outer limits of its continental shelf, meaning
that the seaward limit of the continental shelf moves along with the move of the baseline (with
the exception of the cases when this outer limit is fixed on the basis of the outer edge of the
continental margin rule or on the 2,500 metre isobath rule).
148
See, for example, Sarra Sefrioui, “Adapting to sea level rise: a law of the sea perspective”,
Gemma Andreone (ed.), The Future of the Law of the Sea (Springer International, 2017),
pp. 3-22, at pp. 10 and 16 (“by applying the ambulatory baseline approach and if baselines are
not marked on large-scale charts, navigation charts would not be precise in determining the
maritime limits and boundaries and ships would not know exactly in which zone they navigate
and to which rights they are subject (right of innocent passage, fishing rights, etc.)”).
149
See, for example, Stuart Kaye, “The Law of the Sea Convention and sea level rise after the South
China Sea Arbitration”, International Law Studies Series, US Naval War College, vol. 93 (2017),
p. 423, at pp. 433–436.

20-03200 27/80
A/CN.4/740

stability, security, certainty and predictability, as well as the balance of rights between
the coastal State and third States in these maritime zones, as emphasized by the Member
States in their statements to the Sixth Committee (see paragraphs 18 and 23 above).
78. The question is whether the provisions of the Convention could be interpreted
and applied so as to address those effects of sea-level rise on the baselines, outer
limits of maritime zones and entitlements in these zones. International law scholars
dealing with the topic observe that the Convention was drafted at a time when sea -
level rise was not perceived as a problem that needed to be addressed by the law of
the sea. The only provisions expressly referring to perman ency are those related to
continental shelf (already addressed above) and the regulation in article 7,
paragraph 2, of the situation on a coastline that is highly unstable because of the
presence of a delta and other natural conditions (which will be discu ssed below). This
has led to the Convention being interpreted to the effect that the outer limits of the
territorial sea, contiguous zone and exclusive economic zone are ambulatory. 150
Nevertheless, it is quite important to underline that the Convention does not indicate
expressis verbis that new baselines must be drawn, recognized (in accordance with
article 5) 151 or notified (in accordance with article 16) by the coastal State when
coastal conditions change; the same observation is valid also with regard to t he new
outer limits of maritime zones (which move when baselines move). 152 Also, it should
be noted that the obligation under article 16 for the coastal State to show the baselines
for measuring the breadth of the territorial sea or the limits “derived there from” on
charts (or a list of geographical coordinates of points, specifying the geodetic datum),
and to “give due publicity to such charts or lists of geographical coordinates” and to
deposit copies of them with the Secretary-General of the United Nations, applies only
in the case of straight baselines (art. 7), mouths of rivers (art. 9) and bays (art. 10).
So, normal baselines are exempted from this obligation. 153

__________________
150
See, for instance, David D. Caron, “When law makes climate change worse” (footnote 141
above), pp. 635–636: “the 1982 Convention appears to provide that … t he outer boundary of the
exclusive economic zone, the contiguous zone, and the territorial sea are ambulatory in that they
will move with the baselines from which they are measured. Apparently, the conference of
experts who met throughout the decade of the 1970’s did not anticipate that there could be a
significant global regression of coastlines”.
151
Under article 5, “the normal baseline for measuring the breadth of the territorial sea is the low -
water line along the coast as marked on large-scale charts officially recognised by the coastal
State” (emphasis added), meaning that the coastal State has to mark the low-water line on such
charts and to recognize them officially in order for a new baseline to be assumed.
152
See, for example, Rosemary Rayfuse, “International law and disappearing States: utilising
maritime entitlements to overcome the statehood dilemma”, University of New South Wales Law
Research Paper No. 52 (2010), p. 3; Alfred H.A. Soons, “The effects of a rising sea level on
maritime limits and boundaries”, Netherlands International Law Review, vol. 37 (1990), pp. 207–
232, at pp. 216–218; Caron, “When law makes climate change worse” (footnote 141 above),
p. 634: “[The Third United Nations Conference on the Law of the Sea] does not expressly provide
that boundaries shall move with the baselines. It does do so, however, by negative implication .”
153
A number of authors, such as Clive Schofield and David Freestone (“Options to protect
coastlines and secure maritime jurisdictional claims in the face of global sea level rise”, in
Michael B. Gerrard and Gregory E. Wannier (eds.), Threatened Island Nations: Legal
Implications of Rising Seas and a Changing Climate (Cambridge, Cambridge University Press,
2013), pp. 141–165, (from which the following citations are used)), suggest, based on the
language of article 5 of the Convention (which mentions the “low-water line along the coast as
marked on large-scale charts officially recognised by the coastal State” (emphasis added)), that
“the key requirement is that the chart be recognized by the coastal States”. In this case, “if States
do not update their charts to reflect the loss of land territory or basepoints”, they can freeze their
baselines. However, they note that “a policy of not updating charts would pose potential dangers
to seafarers as official charts become more and more inaccurate over time. A dual charts system
of official charts for maritime jurisdictional purposes and navigational charts, however, could
resolve this problem.” Ibid., pp. 21–22 (emphasis added.)

28/80 20-03200
 A/CN.4/740

79. The interpretation of the Convention to the effect that baselines (and,
consequently, the outer limits of maritime zones) have, generally, an ambulatory
character does not respond to the concerns of the Member States prompted by the
effects of sea-level rise and the consequent need to preserve the legal stability,
security, certainty and predictability. The only express exception in the Convention
to this ambulatory character – other than the permanency of the continental shelf
following the deposit with the Secretary-General of the United Nations of charts and
relevant information, including geodetic data, describing its outer limits – is article 7,
paragraph 2: “[w]here because of the presence of a delta and other natural conditions
the coastline is highly unstable, the appropriate points may be selected along the
furthest seaward extent of the low-water line and, notwithstanding subsequent
regression of the low-water line, the straight baselines shall remain effective until
changed by the coastal State in accordance with this Convention.” Although there
were notable attempts by scholars to argue in favour of the use of this provision to
respond to sea-level rise concerns in general, 154 the overall view is that this text is
only applicable to situations where deltas are involved. 155
80. Another possible option suggested by scholars for using the exi sting provisions
of the Convention to address the effects of sea-level rise on the baselines is the
interpretation of the rules of article 7 referring to straight baselines. It is argued that
[u]nlike normal baselines, where the rising sea levels can inf luence any part of
the baseline, straight baselines are only vulnerable to change at the points that
anchor the straight baselines to the land. Even if there is some advance of the
low-water line landward at some of these points, there is no limit on the l ength
of lines that can be drawn in straight baseline systems. Thus, the existing line
could simply be extended to reach the new low-water line.
It will be generally true that those straight baselines drawn between points
established on rocks on coasts will not be significantly affected by rising sea
levels. 156
In addition, the argument is made that it is possible to use to this purpose article 7,
paragraph 4, which allows for baselines to be drawn to and from low -tide elevations
on which lighthouses or similar installations that remain permanently above sea level
have been built or in instances where such baselines have received general
international recognition (“Thus, in cases where former islands were still visible at
low tide, and the State’s prior system of straight baselines had achieved international
recognition, nothing would change”), 157 and article 7, paragraph 5, under which
“account may be taken, in determining particular baselines, of economic interests
peculiar to the region concerned, the reality and the importance of which are clearly
__________________
154
See Victor Prescott and Eric Bird, “The influence of rising sea levels on baseli nes from which
national maritime claims are measured and an assessment of the possibility of applying
article 7 (2) of the 1982 Convention on the Law of the Sea to offset any retreat of the baseline”,
in Carl Grundy-Warr (ed.), International Boundaries and Boundary Conflict Resolution,
Proceedings of the 1989 IBRU Conference (Durham, University of Durham, 1990), p. 279,
quoted by Caron “When law makes climate change worse” (footnote 141 above), p. 635; as well
as Samuel Pyeatt Menefee, “‘Half seas over’: The impact of sea level rise on international law
and policy”, UCLA Journal of Environmental Law and Policy (1990), pp. 175–218, at p. 205.
155
The text of article 7, paragraph 2, had at its basis a proposal by Bangladesh, which u nderwent a
lot of changes during the negotiations. If at some point the text included the wording “delta or
other natural conditions”, in the end it was agreed in the current shape (“delta and other natural
conditions”), which clearly restricts its application to situations were a delta is present (although
some authors point to the fact that the Russian version of the Convention includes the word “or”
instead of “and”). See, e.g., Prescott and Bird, “The influence of rising sea levels on
baselines …” (see previous footnote), pp. 288–291.
156
Ibid., p. 292, quoted by Menefee, “‘Half seas over’” (see footnote 154 above), p. 206.
157
Menefee, “‘Half seas over’” (see footnote 154 above), p. 207.

20-03200 29/80
A/CN.4/740

evidenced by long usage”, which “arguably provides for retention of baselines

connecting certain points overtaken by sea-level rise”. 158 But the same authors
concede that such solutions based on using the provision s of the Convention on
straight baselines are not efficient when the sea-level rise is significant. 159
81. The Committee on Baselines under the International Law of the Sea of the
International Law Association, in its final report adopted by the Sofia Confe rence in
2012, concluded that “the normal baseline is ambulatory” and that consequently “if
the legal baseline changes with human-induced expansions of the actual low-water
line to seaward, then it must also change with contractions of the actual low -water
line to landward”. 160 It also stated that “the existing law of normal baseline applies in
situations of significant coastal change caused by both territorial gain and territorial
loss. Coastal States may protect and preserve territory through physical
reinforcement, but not through the legal fiction of a charted line that is
unrepresentative of the actual low-water line”. 161
82. Such a position does not respond to the concerns of the Member States impacted
by sea-level rise or the need to preserve the legal stability, security, certainty and
predictability. That is why the International Law Association, at its 2018 Conference,
endorsed a proposal of its Committee on International Law and Sea Level Rise on
this issue, by means of resolution 5/2018, which reads that, “on the grounds of legal
certainty and stability, provided that the baselines and the outer limits of maritime
zones of a coastal or an archipelagic State have been properly determined in
accordance with the 1982 Law of the Sea Convention, these baselines and limits
should not be required to be recalculated should sea level change affect the
geographical reality of the coastline”. 162 This resolution also confirmed that “the
Committee’s recommendations regarding the maintenance of existing maritime
entitlements are conditional upon the coastal State’s existing maritime claims having
been made in compliance with the requirements of the 1982 Law of the Sea
Convention and duly published or notified to the Secretary-General of the United
Nations as required by the relevant provisions of the Convention, prior to physical
coastline changes brought about by sea level rise.” 163
83. As discussed above, there is a strong degree of convergence in the positions
expressed by the Member States in the submissions to the Commission in response to
the request for State practice and in their statements before the Sixth Committee as to
the need for preserving legal stability, security, certainty and predictability in
connection with the present topic. They also provide clear e xamples of State practice
that, on one hand, refer to the establishment of fixed baselines (and outer limits of
maritime zones) and, on the other hand, physical protection of their coasts against
sea-level rise effects (the issue of the legal aspects of ph ysical protection will be
examined below in Part Three).
84. For example, in its submission to the Commission, Maldives clearly states that:
once a State has determined the extent of its maritime entitlements in accordance
with [the Convention] and deposited the appropriate charts and/or geographic
coordinates with the … Secretary-General, as the Maldives has done, these
entitlements are fixed and will not be altered by any subsequent physical
changes to a States’ geography as a result of sea-level rise. The Maldives takes
__________________
158
Ibid.
159
Ibid.
160
Final report of the Committee on Baselines under the International Law of the Sea (see
footnote 116 above), pp. 422 and 426.
161
Ibid., p. 424.
162
International Law Association, resolution 5/2018 (see footnote 119 above).
163
Ibid.

30/80 20-03200
 A/CN.4/740

this view for two key reasons: (a) this position is most consistent with the
principles of stability and certainty of international law; and (b) the
considerations of equity and fairness require that [small island developing
States’] maritime entitlements are protected, especially given the particular
vulnerability of [small island developing States] to climate change.
…
Maritime entitlements determined in accordance with [the Convention] must
remain stable regardless of sea-level rise. … The principles of stability and
certainty of international law require that maritime entitlements should not be
affected by sea-level rise. 164
Maldives has also undertaken “coastal fortification efforts in an attempt to try and
protect islands and communities from rising sea levels”, 165 which “displays Maldives’
commitment to preserving its land territory as well as its maritime entitlements,
despite the high costs and technical challenges associated with such projects”. 166
85. The Federated States of Micronesia, in its submission to the Commission, while
aligning itself with the comments made by the Pacific Islands Forum in its submission
to the Commission (see below), also submitted a copy of a set of observations
included by Micronesia in its 24 December 2019 deposit with the Secretary-General
of the United Nations of charts and lists of geographical coordinates of points for the
Federated States of Micronesia in compliance with article 16, paragraph 2, and
article 75, paragraph 2, of the Convention. In these observations, the Federated States
of Micronesia “states its understanding that it is not obliged to keep under review the
maritime zones reflected in the present official deposit of charts and lists of
geographical coordinates of points, delineated in accordance with [the Convention],
and that the Federated States of Micronesia intends to maintain these maritime zones
in line with that understanding, notwithstanding climate change-induced sea-level
rise”. 167
86. The Pacific Islands Forum, in its submission to the Commission on behalf of its
member States, 168 which is relevant for evidencing the regional State practice,
emphasizes that
[p]reservation of existing maritime zones and the entitlements that flow from
them is essential. As early as 2010, [Pacific Islands Forum] Leaders committed
to preserving [Forum] Members’ existing rights stemming from maritime zones
in the face of sea-level rise. 169
…
__________________
164
Submission of Maldives, forwarded through note verbale No. 2019/UN/N/50 of 31 December
2019 to the United Nations, p. 9. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
165
Ibid., p. 8: “The most prominent example of this is the construction of the artificial island,
Hulhumalé, which has been constructed next to the capital Malé. The island has been built at
2.1m above sea level (60cm higher than the normal island elevation of 1.5m) in order to take into
account future sea-level rise.”
166
Ibid.
167
Submission of the Federated States of Micronesia, forwarded through note verbale No. FSMUN
058-2019 of 27 December 2019 to the United Nations.
168
I.e., Australia, Fiji, Kiribati, Marshall Islands, Micronesia (Federated States of) , Nauru, New
Zealand, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.
169
Submission of the Pacific Islands Forum, forwarded through letter of 30 December 2019 of the
Permanent Representative of Tuvalu to the United Nations, on behalf of the Pacific Islands
Forum members, p. 2 (available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms), quoting
Cristelle Pratt and Hugh Govan, “Our sea of islands, our livelihoods, our Oceania – Framework
for a Pacific Oceanscape: a catalyst for implementation of ocean policy” (2010) (available at
www.forumsec.org/wp-content/uploads/2018/03/Framework-for-a-Pacific-Oceanscape-2010.pdf).

20-03200 31/80
A/CN.4/740

At their August 2019 meeting in Tuvalu, [Pacific Islands Forum] Leaders

also committed all [its] Members to a collective effort, including to develop
international law, with the aim of ensuring that once a [Forum] Member’s
maritime zones are delineated in accordance with [the Convention], that
Members’ maritime zones could not be challenged or reduced as a result of sea-
level rise and climate change. 170
[Pacific Islands Forum] Members also favour stable maritime zones for
practical reasons. Acquiring baseline data, and then generating and declaring
baselines and the outer limits of maritime zones, requires substantial time and
resources. This reality precludes regular review, which in any event is not
required under [the Convention], as it is the responsibility of the coastal State
to mark or to show baselines and establish outer limits of maritime zones,
including via “large-scale charts officially recognised by the coastal State”.
Regular review would impose a significant burden on States, is administratively
costly and disruptive, and leads to more uncertainty about maritime zones and
their entitlements. This would defeat an important purpose of [the
Convention]. 171
…
[Pacific Islands Forum] Members have also pursued stability of maritime
zones through defining the outer limits of their continental shelves beyond
200 nautical miles and reference to neutral decision making processes under [the
Convention]. [Forum] Members have made ten submissions to the Commission
on the Outer Limits of the Continental Shelf (CLCS). 172 It is important to note
in this context that article 76 (8) of [the Convention] provides that the outer
limits of the continental shelf established by a coastal State on the basis of CLCS
recommendations shall be final and binding. 173
…
Recently, State practice from among [Pacific Islands Forum] Members has
shifted from using nautical charts as the sole or primary method to show the
location of the normal, strait, or archipelagic baseline and the outer limits of
maritime zones to the use of geographic coordinates specifying points on the
baseline and outer limits. … Describing baselines and maritime zone limits in
this way is more accurate and certain with regard to the rights and
responsibilities of coastal and third States. 174
87. The elements of State practice outlined in submissions by Qatar to the Co -Chairs
of the Study Group through the Asian-African Legal Consultative Organization 175 (see
paragraph 55 above), show that this State is also concerned with the effects of sea -
level rise and, in order to cope with it, it undertook a series of researches, studies and
__________________
170
Ibid., quoting communiqué of the Fiftieth Pacific Islands Forum, held in Funafuti, Tuvalu from
13 to 16 August 2019, document PIF(19)14 (available at www.forumsec.org/wp-content/uploads/
2019/08/50th-Pacific-Islands-Forum-Communique.pdf); Palau Declaration on “The Ocean: Life
and Future”: Charting a course to sustainability (1 August 2014). Available at www.hokulea.com/
wp-content/uploads/2016/08/Palau-Declaration-on-The-Ocean-Life-and-Future.pdf.
171
Ibid.
172
Australia (15 November 2004); Cook Islands (16 April 2009); New Zealand (19 April 2006); Fiji
(20 April 2009); Micronesia (Federated States of), Papua New Guinea and Solomon Islands
(5 May 2009); Palau (8 May 2009); Tonga (11 May 2009); France, New Zealand and Tuvalu
(7 December 2012); Kiribati (24 December 2012); Micronesia (Federated States of) (30 August
2013).
173
Submission of the Pacific Islands Forum (see footnote 169 above), pp. 3–4.
174
Ibid., p. 4.
175
On file with the Codification Division.

32/80 20-03200
 A/CN.4/740

plans for physically protecting its coast, as well as “planting of more than 100,000
mangrove seedlings” and planning infrastructure to address the possibility of sea -
level rise in the future. Similar information is included in the submission, also through
the Asian-African Legal Consultative Organization, from the Syrian Arab Republic.
In the submission forwarded by Singapore to the Commission, it is mentioned that:
[a]t the national level, we have embarked on a nation -wide strategy to protect
Singapore against the threat of sea-level rise … We are also developing long-
term strategies to protect Singapore’s coasts from rising sea levels. Coastal
protection measures include engineered solutions such as building sea walls and
dykes, and are complemented by nature-based solutions such as active
mangrove restoration. … This comprehensive effort to build up our coastal
defences island-wide could cost S$100 billion or more over the next 50 to
100 years. 176
88. The submission of the United Kingdom to the Commission emphasizes that “the
legislation establishing the [country’s] Territorial Sea … provides for ambulatory
baselines” in accordance with the Convention. 177 In its submission to the Commission,
the Netherlands reports that it also uses an ambulatory baselines system. 178 The
Netherlands reports on the physical protection measures on its coast, which have
effects on the baselines and the outer limits of its maritime zones (including by
moving them seaward). 179 Romania, in its submission to the Commission, informs
that its domestic legislation 180 includes a provision according to which “[i]n case of
objective evolutions due to influence the points between which the straight baselines
are drawn, the coordinates of the new points are established through Governmental
Decision”, which may be interpreted as setting forth an ambulatory baselines system
(although the connection between this provision and sea-level rise is highly
improbable since the Black Sea is a semi-enclosed sea, less exposed to this
phenomenon). 181 The United States, in its submission to the Commission, reports that:

__________________
176
Submission of Singapore, forwarded through note verbale No. SMUN 054/2020 of 5 February 2020
to the United Nations, paras. 6–7. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
177
Submission of the United Kingdom of Great Britain and Northern Ireland, forwarded through
note verbale No. 007/2020 of 10 January 2020 to the United Nations. Available from
https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
178
Submission of the Netherlands, forwarded through note verbale No. DC2-0566 of 27 December 2019
to the United Nations, p. 3 (available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms): “The
southern North Sea is a relatively shallow sea with a dynamic seabed behaviour. The normal
baselines are created from the low water line along the coast, relative to the Lowest Astronomical
Tidal chart datum as published in the official charts. Du e to a high re-survey frequency and a
dynamic seabed, the low water line has a dynamic behaviour. Additionally, low tide elevations
within the distance of the 12 NM appear and disappear, causing further changes to the
determination of the normal baselines. When such a change occurs at a distance exceeding
0.1 NM, the normal baselines are adjusted accordingly. When a Notice to Mariners or New
Edition of a Chart is published, the newly adjusted normal baselines and associated Territorial
Sea boundaries are published.” (emphasis added.)
179
Ibid.: “As the Netherlands is largely situated under mean sea level, coastal defence is very
important. In recent years, various major projects were undertaken which had a large impact on
the baselines of the Dutch coast. The first … is the construction of Maasvlakte 2, an extension to
the Rotterdam harbour which was built on land that was reclaimed from the North Sea. As a
result of this construction the outer limit of the territorial sea was extended almost three miles.
The second project … which had effect on the baselines of the Netherlands is the Sand engine or
Sand Motor (‘Zandmotor’ in Dutch). Close to the city of The Hague, a large amount of sand was
put on the beach and in front of it, extending almost one kilometre f rom the original coastline.”
180
Art. 2, para. 3, of Law No. 17/1990 concerning the Legal Regime of the Internal Waters, the
Territorial Sea and the Contiguous Zone of Romania.
181
Submission of Romania, forwarded through note verbale No . 84 of 9 January 2020 to the United
Nations. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.

20-03200 33/80
A/CN.4/740

[u]nder existing international law, coastal baselines are generally ambulatory,

meaning that if the low-water line along the coast shifts (either landward or
seaward), such shifts may impact the outer limits of the coastal State’s maritime
zones.
The United States conducts routine surveys of its coasts and evaluates potential
resulting changes to its baselines. For shifts other than de minimis ones (i.e., shifts
that are greater than 500 metres), an interagency baseline committee reviews and
approves any changes to the U.S. baselines. In these instances, any associated changes
to the outer limits of maritime zones are also made on official charts. The baseline
committee also reviews and approves closing lines, such as those drawn across the
mouths of bays and rivers. 182
89. The statements of Member States in the Sixth Committee on the present topic
are also indicative of State practice. (The present paper has already set forth the
statements emphasizing the support of Member States for legal stability and security
in relation to the present topic, and they will not be repeated.) All statements tackling
the issue of baselines (and limits of maritime zones) have advocated for the solution
of fixed baselines and/or maintaining the position of maritime zones/the maritime
entitlements, while no statement was in favour of an ambulatory system. Some
statements also reported the measures taken or planned by the respective States for
the physical protection of their coast, which are also intended to preserve the baselines
and the consequent outer limits of the maritime zones measured from the baselines.
90. In its 2018 statement, 183 Australia recommended that the Commission “draw on
the substantial practice of the States in the Pacific region and elsewhere which have
worked hard to define base points, baselines and outer limits of their maritime zones,
consistent with the United Nations Convention on the Law of the Sea”.
91. The statement of Belize 184 in 2019 was in favour of fixed baselines: “Moving
towards the adoption of fixed baselines was consistent with existing international law.
A number of small island developing States had defined their baselines, in accordance
with the language of article 5 of the Convention, as those ‘marked on large-scale
charts officially recognized by the coastal State’”. Belize itself continued to recognize
the relevance of official maritime charts in determining the exact placement of its
baselines. “If official maritime charts, and not the actu al low-water line, could serve
as conclusive evidence of baselines, then legal baselines would shift only when their
positions were updated on those charts. That practice gave coastal States greater
agency in maintaining their maritime entitlements”. Fixed baselines were the next
step down the path that State practice had already begun to walk.
92. In its 2019 statement, Papua New Guinea 185 reported that it had submitted on
4 April 2019 its revised Maritime Boundaries Delimitation Charts and List of
Geographical Coordinates to the Secretary-General of the United Nations and
stressed, in that connection, that “affected States should be able to maintain existing
entitlements to maritime zones”, notwithstanding sea-level rise. Cuba declared in its
2019 statement 186 that the 2017 State Plan to Tackle Climate Change comprised
measures for combating and/or mitigating the impact of the loss of shorelines caused
by rising sea levels, including the reinforcement of some coastal areas, and that

__________________
182
Submission of the United States, forwarded through note verbale of 18 February 2020 to the
United Nations, pp. 1–2. Available from https://legal.un.org/ilc/guide/8_9.shtml#govcoms.
183
Australia (A/C.6/73/SR.23, para. 76).
184
Belize (A/C.6/74/SR.30, para. 70).
185
Papua New Guinea (ibid., para. 19).
186
Cuba (A/C.6/74/SR.25, para. 23).

34/80 20-03200
 A/CN.4/740

“modifying baselines” would have a negative impact on small island developing

States, not to mention the respective legal insecurity.
93. In its 2018 statement, New Zealand 187 stated that “[a]s the Prime Minister of
New Zealand had said recently, coastal States’ baselines and maritime boundaries
should not have to change because of human-induced sea level rise”. In its 2019
statement, New Zealand 188 stated that it “was committed to working with partners to
ensure that, in the face of changing coastlines, the maritime zones of coastal Sta tes
were protected”. It also recalled that at the Pacific Islands Forum Leaders’ Meeting
in Tuvalu in August 2019, the leaders had made a strong commitment to a “collective
effort, including to develop international law, with the aim of ensuring that once a
Forum member’s maritime zones [were] delineated in accordance with the
[Convention], they could not be challenged or reduced as a result of sea-level rise and
climate change”.
94. Jamaica, 189 in its 2019 statement, mentioned the proposals made in the
International Law Association’s 2018 report, according to which the baselines and the
outer limits of maritime zones should be maintained and need not be recalculated
should sea-level changes affect the geographical reality of the coastline. It recalled
the declaration made by the Polynesian Leaders Group on 16 July 2015 (Taputapuatea
Declaration on Climate Change 190), and the March 2018 declaration by eight Pacific
Island leaders (the Delap Commitment on “Securing Our Common Wealth of
Oceans – reshaping the future to take control of the fisheries”), 191 which “call for the
acceptance of defined baselines in perpetuity irrespective of the possible implications
of sea-level rise”. Jamaica also reported that it had undertaken extensive work to
address coastal erosion.
95. Fiji, speaking on behalf of the Pacific small island developing States (namely
Kiribati, Micronesia (Federated States of), Nauru, Palau, Papua New Guinea, Samoa,
Solomon Islands, Tonga, Tuvalu, Vanuatu and his own country), 192 also recalled in its
2019 statement the Pacific Islands Forum Leaders’ Meeting in Tuvalu in August 2019
and called “on other Member States to recognize the need to retain maritime zones
and the entitlements derived therefrom once such zones had been delineated in
accordance with the Convention”. The 2019 statement of Tuvalu, speaking on behalf
of members of the Pacific Islands Forum with permanent missions to the United
Nations, 193 was in a similar vein: mentioning the call of the Tuvalu meeting of August
2019, it stressed that States in the Pacific aimed to ensure that their maritime zones
and the entitlements flowing from those zones were not “challenged or reduced as a
result of sea-level rise”, and called “on Member States to recognize the need to retain
maritime zones and the entitlements derived therefrom once such maritime zones had
been delineated in accordance with the Convention”.
96. Thailand 194 also expressed the view in its 2019 intervention that “existing
entitlements should be upheld in order to maintain peace, stability and friendly
relations among nations … The rights of Member States in relation to maritime zones
and boundaries established pursuant to by the United Nations Convention on the Law
of the Sea must be protected.”

__________________
187
New Zealand (A/C.6/73/SR.22, para. 5).
188
New Zealand (A/C.6/74/SR.26, para. 87).
189
Jamaica (A/C.6/74/SR.27, paras. 2–3).
190
Available at www.samoagovt.ws/wp-content/uploads/2015/07/The-Polynesian-P.A.C.T.pdf.
191
Available at www.pnatuna.com/sites/default/files/Delap%20Commitment_2nd%20PNA%
20Leaders%20Summit.pdf.
192
Fiji (A/C.6/74/SR.27, paras. 78–79).
193
Tuvalu (ibid., paras. 80–81).
194
Thailand (A/C.6/74/SR.24, paras. 99–100).

20-03200 35/80
A/CN.4/740

97. Canada, 195 in its 2019 statement, recommended that the Commission follow a
cautious approach on the ambulatory method related to baselines and the outer limits
of maritime zones measured from baselines, an approach that supported certainty and
stability. In its 2019 statement, the United States 196 stressed that it “supported efforts
to protect States’ maritime entitlements under the international law of the sea” in a
manner that was consistent “with the rights and obligations of third States. Such
efforts could include coastal reinforcement, for ex ample through the construction of
sea walls; coastal protection and restoration; and maritime boundary agreements.”
The United States was also supportive of efforts by States to delineate and publish
“the limits of their maritime zones in accordance with the United Nations Convention
on the Law of the Sea”. 197 A similar statement is included in the submission of the
United States to the Commission. 198
98. The contribution paper on State practice in the Asia-Pacific region (as
mentioned in paragraph 54 above), received by the Co-Chairs of the Study Group
from Mr Nguyễn Hồng Thao, member of the Commission, also provides valuable
information on State practice. It indicates that a number of physical protection
measures were taken by States in that region. For example, Australia adopted in 2008
a plan for the mitigation of and adaptation to climate change, which developed a
portfolio of potential approaches and options, including coastal embankment

__________________
195
Canada (A/C.6/74/SR.30, para. 11).
196
United States (ibid., para. 127).
197
The United States practice following United States domestic case law related to the Submerged
Lands Act of 1953 seems to also support the stability of the baselines. According to Caron,
“When law makes climate change worse” (footnote 141 above), p. 646, “The Submerged Lands
Act addressed the question of federal versus states’ rights in the offshore seabed through a
quitclaim by the United States to the several states of the lands underlying the waters within
three miles of the coastline. … In 1965 in United States v. California, the U.S. Supreme Court
held that the line delimiting inland waters was to be determined in accordance with the 1958
Convention on the Territorial Sea and the Contiguous Zone. By doing so, the Court rendered
ambulatory the baseline described in the Submerged Lands Act. Given that title to valuable
offshore oil reserves would move with this ambulatory baseline, litigation was inevitable
particularly in the case of Louisiana where the shoreline of the soft silt -like delta of the
Mississippi River constantly shifts. In 1969 in United States v. Louisiana, the Court stated that,
because in its view the Submerged Lands Act refers the Court to the 1958 Convention, the Court
could not accept Louisiana’s argument that the Court should adopt a fi xed rather than ambulatory
line. Justice Black wrote in dissent that: ‘… [Adoption of a fixed boundary would] put a stop to
eternal litigation and help relieve this Court of the heavy burden repeatedly brought upon us to
make decisions none of us have the time or competence to make’. To avoid such ‘interminable
litigation,’ the federal government and Louisiana in effect froze the boundary by entering into a
special boundary agreement - although even with the agreement, a final decree was not entered
until 1981. As a general solution to the possibility of such interminable litigation with other
states, legislation has been proposed in both the House and the Senate authorizing the federal
government to enter into seabed boundary agreements with the several sta tes and setting forth a
process whereby such boundaries may become immovable. ” (Emphasis added.)
198
Submission of the United States (see footnote 182 above): “The United States recognizes that
sea-level rise may lead to increases in inundation and coastal erosion, which may result in
changes to baselines and the corresponding limits of a coastal State’s maritime zones. In this
regard, the United States supports efforts to protect States’ maritime zones in a manner that is
consistent with the rights and obligations of other States. Such efforts could include physical
measures for coastal reinforcement, such as the construction of seawalls, and coastal ecosystem
protection and restoration. The United States also supports States’ negotiation and conclusion of
maritime boundary agreements, as well as the delineation and publication of the limits of their
maritime zones in accordance with international law as reflected in the Convention.”

36/80 20-03200
 A/CN.4/740

projects, 199 while Singapore estimated in August 2019 that arou nd US$ 100 billion or
more may be needed over the long term to protect Singapore against rising sea levels;
building polders to protect the coastline or reclaiming offshore islands are suggested
engineering solutions to address the problem. 200 Tonga developed the Joint Action
Plan on climate change and disaster risk management 2010–2015, followed by a
second for 2018–2028, 201 which provides, inter alia, for strengthening of the coastal
infrastructure. The Viet Nam National Climate Change Strategy 2011 and its N ational
Action Plan to Respond to Climate Change 2012 recommended the strengthening and
elevation of coastal embankments nationwide. 202 Bangladesh launched the National
Adaptation Programme of Action in 2005 and its Climate Change Strategy and Action
Plan 2009, providing for a 10-year programme running until 2018 to meet the
challenge of climate change, including sea-level rise. 203
99. According to Mr. Nguyễn Hồng Thao’s study, the States in this region are not
pursuing policies to change – as an effect of sea-level rise – fixed baselines or national
laws on maritime zones as set out in accordance with the Convention, but, on the
contrary, favour geoengineering or land reclamation work to consolidate their fixed
basepoints and maintain baselines and maritime zones established in accordance with
the Convention. According to the study, for Pacific Island Countries, the rate of
notification of geographical coordinates of their respective maritime zones to the
Secretariat of the United Nations before 2010 was slow. However, in the context of
acknowledging the risk of sea-level rise, some States officially notified or
reconfirmed their claims to maritime baselines and zones. 204 In 2011, Fiji, Nauru and
Palau declared information about their baselines, archipelagic basel ines, or the outer
limits of their exclusive economic zones in accordance with the Convention. 205 In
__________________
199
Nicole Gurran et al., “Planning for climate change adaptation in Coastal Australia: State of
practice”, Report No. 4 for the National Sea Change Taskforce (University of Sydney, Sydney,
November 2011), available at www.aph.gov.au/DocumentStore.ashx?id=f3395f51-b8a5-4e55-
af57-85189e6e2da0 (last accessed on 31 March 2020); Antarctic Climate and Ecosystems
Cooperative Research Centre, “Position analysis: Climate change, sea -level rise and extreme
events: impacts and adaptation issues” (2008), pp. 15 –17, available at www.cmar.csiro.au/
sealevel/downloads/SLR_PA.pdf (last accessed on 31 March 2020).
200
Singapore, Prime Minister’s Office, “National Day Rally 2019: PM Lee Hsien Loong delivered
his National Day Rally speech on 18 August 2019 at the Institute of Technical Education College
Central”, 18 August 2019, available at www.pmo.gov.sg/Newsroom/National-Day-Rally-2019
(last accessed on 31 March 2020); Chang Ai-Lien, “National Day Rally 2019: $100 billion
needed to protect Singapore against rising sea levels”, The Straits Times, 18 August 2019,
available at www.straitstimes.com/singapore/national-day-rally-2019-100-billion-needed-to-
protect-singapore-against-rising-sea-levels (last accessed on 31 March 2020).
201
Tonga, “Joint National Action Plan 2 on Climate Change and Disaster Risk Management 2018 –
2028”. Available at https://www.preventionweb.net/files/60141_tongajnap2final.pdf
(last accessed on 31 March 2020).
202
Philip Gass, Hilary Hove and Jo-Ellen Parry, Review of Current and Planned Adaptation Action:
East and Southeast Asia, (International Institute for Sustainable Development, 2011), p. 194.
Available from www.iisd.org/project/review-current-and-planned-adaptation-action-developing-
countries-supporting-adaptation (last accessed on 31 March 2020).
203
Bangladesh, Bangladesh Climate Change Strategy and Action Plan 2009 (Ministry of
Environment and Forests, Dhaka, 2009). Available at www.iucn.org/downloads/bangladesh
_climate_change_strategy_and_action_plan_2009.pdf (last accessed on 31 March 2020).
204
Kaye, “The Law of the Sea Convention and sea level rise after the South China Sea Arbitration”
(see footnote 149 above), pp. 443-444: “[S]ome States are already taking steps to prepare for sea
level rise by designating not just new archipelagic waters, an action taken in the past five years
by Kiribati, the Marshall Islands and Tuvalu, but also by designating the outer edges of their
EEZs”.
205
Emily Artack and Jens Kruger, “Status of maritime boundaries in Pacific Island countries”, 9th SPC
Heads of Fisheries Meeting, 6-12 March 2015, working paper No. 11, para. 13. Available at
http://star.gsd.spc.int/meeting_docs/presentations/Session2b -4_Outer%20limits%20of%20
maritime%20zones_ArtackE.pdf (last accessed on 31 March 2020).

20-03200 37/80
A/CN.4/740

2013, Tuvalu deposited the lists of geographical coordinates as contained in the

Declaration of Territorial Sea Baselines 2012, 206 the Declaration of Archipelagic
Baselines 2012, 207 the Declaration of the Outer Limits of the Territorial Sea 2012, 208
the Declaration of the Outer Limits of the Exclusive Economic Zones 2012, 209 and
the Declaration of the Outer Limits of the Continental Shelf 2012. 210 The Cook Islands
and Niue also declared information on their baselines and maritime zones to the
United Nations, while Papua New Guinea, Solomon Islands and Vanuatu have
declared only their archipelagic baselines. On 18 March 2016, the Marshall Islands
renewed its 1984 Maritime Zones Declaration Act in the context of sea-level rise. 211
According to Mr. Nguyễn Hồng Thao’s study, the new Australian Seas and Submerged
Lands (Territorial Sea Baseline) Proclamation 2016 is not intended to effect any
substantive changes to the baselines defined in the previous proclamation made in
2006. 212 On 7 April 2016, the Secretariat notified of the deposit of a list of
geographical coordinates of points concerning the straight baselines for measuring
the breadth of the territorial sea of Bangladesh. 213 China declared the straight
baselines of territorial sea adjacent to Diaoyu Dao and its affiliated islands on
10 September 2012. 214 Mr. Nguyễn Hồng Thao’s study also mentions that certain
archipelagic States did not intend to change archipelagic baselines i n response to the
impact of sea-level rise: that is the case of both Indonesia and the Philippines in their
new declarations on their archipelagic baselines. The study concludes that there is a
trend of maintaining permanent baselines defined in accordance with the Convention,
notwithstanding sea-level rise.
100. In connection with the notification in accordance with the Convention of
baselines and outer limits of maritime zones, the survey and research kindly
performed by the Secretariat of the Commission 215 show that such notifications 216 by
the parties (and one non-party) to the Convention are short and do not usually include
explanations of the reasons for which they replace previous notifications, if such
previous notifications exist. The survey shows that none of the maritime zone

__________________
206
Declaration of Territorial Sea Baselines (2012). Available at www.un.org/Depts/los/LEGISLATION
ANDTREATIES/PDFFILES/tuv_declaration_territorial_sea_baselines2012_1.pdf (last accessed on
31 March 2020).
207
Available from www.ecolex.org/fr/details/legislation/declaration -of-archipelagic-baselines-2012-
ln-no-7-of-2012-lex-faoc126507/.
208
Available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/tuv_declaration_
outer_limits_territorial_sea2012_1.pdf.
209
Available from www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/TUV.htm.
210
Available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/tuv_declaration
_outer_limits_continental_shelf2012_1.pdf.
211
Marshall Islands, Republic of the Marshall Islands Maritime Zones Declaration Act 2 016.
Available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/
mhl_mzn120_2016_1.pdf (last accessed on 31 March 2020).
212
Australia, Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2016. Available
from www.legislation.gov.au/Details/F2016L00302/Explanatory%20Statement/Text
(last accessed on 31 March 2020).
213
Maritime Zone Notification No. MZN.118.2016.LOS of 7 April 2016. Available at www.un.org/
Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/mzn118.pdf (last accessed
31 March 2020). The notification of Bangladesh in 2015 replaced Sections 3 and 5 of the
Territorial Waters and Maritime Zones Act of 1974 (ibid.).
214
China, Statement of the Government of the People’s Republic of China on the straight baselines
of territorial sea of Diaoyu Dao and its affiliated islands of 10 September 2012. Available at
www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/chn_mzn89_2012_
e.pdf (last accessed on 31 March 2020). The base points are defined at the outermost points at
the lowest low water line of reef islands at the moment of declaration.
215
On file with the Codification Division.
216
Usually received by means of notes verbales and circulated by the Division for Ocean Affairs
and the Law of the Sea as maritime zone notifications.

38/80 20-03200
 A/CN.4/740

notifications circulated before 26 November 2019 217 (the date when the survey was
finalized) appear to contain express reference to sea-level rise or climate change, or
include the documents on which the maritime zone notifications are based. Under
these circumstances, the recent notification by the Federated States of Micronesia
effected on 24 December 2019, which was joined by observations expressly linking
the notification to sea-level rise, is a model to be followed by other interested States.
It is useful for the States concerned to make public statements about the reasons for
their respective notifications. Official submissions to the Commission in response to
its request for State practice contained in chapter III of the 2019 a nnual report are
also extremely helpful in this regard, since they can explain when such deposits of
data with the United Nations are linked to sea-level rise and are therefore strongly
encouraged.
101. The survey and research by the Secretariat of the Co mmission 218 also show that
there are, however, some communications objecting to the notifications of other
States; the objections relate to a lack of accuracy of the method of drawing baselines
or of certain baseline points vis-à-vis the requirements of the Convention (although
they do not refer to sea-level rise either). It is also noted that the legislation
accompanying notifications is a publicly available source of information with respect
to baselines, as it may indicate that a State implements ambulator y baselines through
its domestic legislation. 219
102. The practice of regional organizations is also relevant to State practice; it
indicates the same trend evidenced above. The 2010 Framework for a Pacific
Oceanscape – “Our sea of islands, our livelihoods, our Oceania” – calls upon States
to address their baselines that are highly vulnerable due to sea-level rise “through
concerted regional unity and diplomatic efforts that advocates for the permanent

__________________
217
According to the survey by the Secretariat, as of 26 November 2019, the Division for Ocean
Affairs and the Law of the Sea had published Maritime Zone Notifications pertaining to deposits
by 82 States: by 61 States relating to article 16 on the territorial sea, by 43 States relating to
article 75 on the exclusive economic zone, by 29 States relating to articles 76 and 84 on the
continental shelf, and by 14 States relating to article 47 on archipelagic baselines. For a more
recent status of deposits as of 31 March 2020, see the Note by the Secretariat on the practice of
the Secretary-General in respect of the deposit of charts and lists of geographical coordinates of
points under the United Nations Convention on the Law of the Sea (doc. SPLOS/30/12, para. 12).
218
See footnote 215 above.
219
For example, the survey shows that the maritime zone notifications of Vanuatu pertain only to
the exclusive economic zone and the continental shelf, but the country’s Maritime Zones Act
2010 does include information on the coordinates of the baselines for measuring the territorial
sea, which are based on historical coordinates of British Admiralty Charts. Legislation submitted
along with the notification of Bangladesh provides that the baseline “consists of straight and
normal baselines that join the outermost points of the lowest water line, islands and reefs along
the coast as marked on the large scale charts published or, as the case may be, notified from time
to time by the Government of the People’s Republic of Bangladesh”. In the case of the Finnish
legislation relating to the maritime zone notification, the anticipation of change is time bound,
providing that the information regarding the base points of the outer limits of the internal waters
will be valid from 1995 to 2024. The German Proclamation referenced in its maritime zone
notification states that baselines have “been drawn on the proviso that they are subject to
pertinent agreements with the neighbouring States concerned in each case” and that the
“coordinates are given on the proviso that they are subject to a more precise calculation by the
Federal Ministry of Transport (if and where appropriate) using the latest methods”. The
Netherlands has produced legislation for the “extension” of the territorial sea, providing a new
set of baseline coordinates in conjunction with this exercise. As an example of unilateral
amendment to baseline information, the note accompanying the deposit of maritime zone
information by Kenya in 2005 explicitly provided that “the Proclamation, the first and second
schedules attached thereto, together with the illustrative map deposited herewith constitute an
adjustment to and are in replacement of the Proclamation made by the President of the Republic
of Kenya on 28 February 1979”.

20-03200 39/80
A/CN.4/740

establishment of declared baselines and maritime zones”. 220 The Palau Declaration on
“The Ocean: Life and Future” of 2014 called, in its paragraph 10, “for strengthened
regional efforts to fix baselines and maritime boundaries to ensure that the impact of
climate change and sea level rise does not result in reduc ed jurisdiction”. 221 On
16 July 2015, Polynesian Leaders Group (Samoa, Tonga, Tuvalu and the Cook
Islands, Niue, French Polynesia and Tokelau), issued the Taputapuatea Declaration
on Climate Change underlining the importance of the exclusive economic zones f or
Polynesian Island States and Territories, whose area is calculated according to
emerged lands, and permanently established baselines in accordance with the
Convention, without taking into account sea-level rise. 222 On 2 March 2018, in
Majuro, the Delap Commitment on “Securing our common wealth of oceans –
reshaping the future to take control of the fisheries” 223 was signed by eight Pacific
island leaders attending the second Leaders’ Summit of the Parties to the Nauru
Agreement. 224 Those leaders, in paragraph 8 of the Commitment, agree “[t]o pursue
legal recognition” that “the defined baselines established under the United Nations
Convention on the Law of the Sea … remain in perpetuity irrespective of the impacts
of sea level rise”. A communiqué of the Fiftieth Pacific Islands Forum, held in
Funafuti from 13 to 16 August 2019, reaffirmed the importance of preserving its
members’ existing rights stemming from maritime zones in the face of sea -level rise.
The Forum leaders committed to a collective effort, includi ng the development of
international law, with the aim of ensuring that, once a Forum member’s maritime
zones were delineated in accordance with the Convention, that the member’s maritime
zones could not be challenged or reduced as a result of sea-level rise and climate
change. 225
103. It is worth mentioning that, after analysing some of the declarations of regional
bodies mentioned above, the Committee on International Law and Sea Level Rise, in
its final report to the 2018 Sydney Conference of the Internatio nal Law Association,
concluded that:
there is at least prima facie evidence of the development of a regional State
practice in the Pacific islands – many of which are the most vulnerable to losses
of territory and, consequently, baseline points from sea level rise. The Pacific
island States would of course be among those “States whose interests are
specially affected”, a significant attribute regarding the establishment of a
general practice in the formation of a new rule of customary international law …
The emergence of a new customary rule will require a pattern of State practice,
as well as opinio juris. 226
104. In concluding the present chapter, the following observations of preliminary
nature can be made:
__________________
220
Pratt and Govan, “Our sea of islands, our livelihoods, our Oceania – Framework for a Pacific
Oceanscape: a catalyst for implementation of ocean policy” (see footnote 169 above), p. 32.
221
See footnote 170 above.
222
Polynesian Leaders Group, Taputapuatea Declaration on Climate Change. Availa ble at
www.samoagovt.ws/wp-content/uploads/2015/07/The-Polynesian-P.A.C.T.pdf.
223
Delap Commitment on “Securing our common wealth of oceans – reshaping the future to take
control of the fisheries”, available at www.pnatuna.com/sites/default/files/Delap%20
Commitment_2nd%20PNA%20Leaders%20Summit.pdf. The declaration was signed by the
Heads of State, or their representatives, of Kiribati, the Marshall Islands, the Federal States of
Micronesia, Nauru, Palau, Papua New Guinea, Solomon Islands and Tuvalu.
224
Nauru Agreement concerning Cooperation in the Management of Fisheries of Common Interest
(Nauru, 11 February 1982), available from www.ecolex.org/details/treaty/nauru-agreement-
concerning-the-cooperation-in-the-management-of-fisheries-of-common-interest-tre-002025/.
225
Communiqué of the Fiftieth Pacific Islands Forum (see footnote 170 above), paras. 25–26.
226
Final report of the Committee on Baselines under the International Law of the Sea (see
footnote 116 above), p. 887.

40/80 20-03200
 A/CN.4/740

(a) At the time of the negotiation of the United Nations Convention on the
Law of the Sea, sea-level rise and its effects were not perceived as an issue that needed
to be addressed. The Convention was thus interpreted as prescribing an ambulatory
character for baselines and the outer limits of the maritime zones measured therefrom,
with the exception of the permanency of the continental shelf seaward limits and of
coastlines that are highly unstable because of the presence of deltas and other natural
phenomena (a situation that allows for the use of a straight baseline);
(b) These two exceptions (and especially the latter) show that the spirit of the
Convention was not rigid in cases where it was possible to foresee the occurrence of
natural conditions that could affect legal stability, security, certai nty and
predictability. The permanency of the continental shelf is also an indication of
concern manifested in the Convention for ensuring stability, taking into account the
importance of preserving the entitlements of the coastal State in this maritime zo ne
(especially when the exploitation of natural resources is at stake). The problem was
that, at the time of the drafting of the Convention, sea-level rise was not perceived as
an issue necessary to be addressed by the law of the sea;
(c) These two exceptions cannot be used, however, to address the effects of
sea-level rise (neither by an extensive interpretation, nor by analogy); nor can the use
of straight baselines (as suggested by some scholars) be efficient when there is a
substantial rise in sea level;
(d) The ambulatory theory/method regarding baselines and the limits of
maritime zones measured from them does not respond to the concerns expressed by
Member States that are prompted by the effects of sea-level rise, especially as regards
the rights of the coastal State in the various maritime zones, and the consequent need
to preserve legal stability, security, certainty and predictability;
(e) An approach responding adequately to these concerns is one based on the
preservation of baselines and outer limits of the maritime zones measured therefrom,
as well as of the entitlements of the coastal State; the Convention does not prohibit
expressis verbis such preservation (see paragraph 78 above). In any case, the
obligation provided by article 16 to give due publicity to and deposit copies of charts
and lists of coordinates about baselines only refers to straight baselines (which are
less affected by sea-level rise) and not to normal baselines. Even in the case of straight
baselines, the Convention does not indicate an obligation to draw and notify new
baselines when coastal conditions change (or, as a consequence, new outer limits of
maritime zones measured from the baselines); 227
(f) Consequently, nothing prevents Member States from depositing
notifications, in accordance with the Convention, regarding the baselines and outer
limits of maritime zones measured from the baselines and, after the negative effects
of sea-level rise occur, to stop updating these notifications in order to preserve their
entitlements;
(g) As evidenced by the submissions by Member States to the Commission in
response to the request included in chapter III of its 2019 annual report, the statements
of the delegations of Member States before the Sixth Committee, and the official
declarations of regional bodies, there is a body of State practice under development
regarding the preservation of baselines and of outer limits of maritime zones
measured from the baselines. That State practice relates to the establishment of fixed
baselines and outer limits of maritime zones measured from the baselines, on the one

__________________
227
See footnote 153 above, referring to Schofield and Freestone, “Options to protect coastlines and
secure maritime jurisdictional claims in the face of global sea level rise” .

20-03200 41/80
A/CN.4/740

hand, by “freezing” the notifications and, on the other, by ensuring physical

protection of their coasts against the effects of sea-level rise; 228
(h) Information on such State practice was available to the Co-Chairs of the
Study Group for the Pacific, Asian (mainly South -East Asian) and (to some extent)
North American regions, alongside some indicating a similar trend for the Caribbean.
Unfortunately, there were no submissions received by the Commission from Africa
or Latin America, although the effects of sea-level rise also affect these regions. A
very limited number of submissions from European States indicate that their national
legislation provides for the obligation or possibility to apply an ambulatory baselines
system; at the same time, the absence, for the time being, of submissions from these
regions does not necessarily imply the lack of similar State practice;
(i) Based on the above, it is early to draw, at this stage, a definitive conclusion
on the emergence of a particular or regional customary rule (or even of a general
customary rule) 229 of international law regarding the preservation of baselines and of
outer limits of maritime zones measured from the baselines. Prima facie, based on
the available data as set forth above, the application of the requirements provided by
the Commission’s conclusions on identification of customary international law
(2018) 230 in conclusions 4 to 8 (and 16) for the material element of the c ustom, it can
be concluded that – at least for the Pacific and South-East Asia regions – there is State
practice (supported by practice of international organizations), 231 which: includes
both physical and verbal acts, 232 as well as inaction; 233 has the form of diplomatic acts
and correspondence, conduct in connection with resolutions adopted by an
international organization or at an intergovernmental conference, conduct in
connection with treaties, executive conduct, including operational conduct “on the
ground”, and legislative and administrative acts; 234 and is widespread and
__________________
228
As to the international jurisprudence, it was argued by some scholars (see Katherine J Houghton
et al., “Maritime boundaries in a rising sea”, Nature Geoscience, vol. 3 (2010), pp. 813–816) that
the International Court of Justice accepted the flexible baselines concept, because in the
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) the Court decided that the starting point of the maritime boundary
between the two States, as established by geographic coordinates by a bilateral commission in
1962 on the basis of the arbitral award rendered by the King of Spain in 1906 , was no longer in
the mouth of the Coco River (due to the accumulation of sediments and the general evolution of
the ocean currents) and could no longer be an appropriate base point. The Court, however,
decided to establish the starting point of the maritime boundary at 3 nautical miles off the point
established in 1962. This means that, eventually, the Court gave effect to that point which no
longer corresponded to the actual geography of the coast. Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgment,
I.C.J. Reports 2007, p. 659.
229
The character of the potential customary rule depends on the availability of the evidence of State
practice: it can stay regional if confined (only) to the Pacific and South-East Asia, or, if
confirmed for other regions as well and depending on the number of States involved, it can be
general or particular (including “thematic” – meaning that it is linked to the specific issue of
sea-level rise and it applies among a limited number of States).
230
General Assembly resolution 73/203 of 20 December 2018. The draft conclusions adopted by the
Commission and the commentaries thereto are reproduced in A/73/10, paras. 65–66.
231
Conclusion 4, para. 2. See in the present paper, above, for the practice of international
organizations taking the form of declarations/statements.
232
Conclusion 6, para. 1. See in the present paper, above, for State practice under the form of
statements (submissions to the Commission and statements in the Sixth Committee) and physical
protection activities for the coasts.
233
Conclusion 6, para. 1. Inaction to the sense that States are not willing to renew their baselines (or
to deposit new charts or lists of coordinates) after their initial notification, following the
modification of coastal configuration because of sea-level rise.
234
Conclusion 6, para. 2. Notifications (deposit of data) to the Secretary-General of the United Nations,
in conformity with the United Nations Convention on the Law of the Sea, of physical protection
activities for the coasts and the adoption of legislation regarding baselines and maritime zones.

42/80 20-03200
 A/CN.4/740

representative among the States of these regions, as well as consistent. 235 It is more
and more frequent. 236 Nevertheless, the existence of the opinio juris is not yet that
evident, although the general reliance of the conduct 237 of the respective States in
their practice (as mentioned) on the grounds of legal stability and security is an
indication in that sense. In order for a definitive conclusion to be possible, more
submissions by Member States to the Commission in response to the request included
in chapter III of its 2019 annual report are needed.

II. Possible legal effects of sea-level rise on

maritime delimitations
105. When the specific geographic configuration does not allow for the outer limits
of the maritime zones of the coastal States to be established to the maximum extent
allowed by the United Nations Convention on the Law of the Sea, maritime
delimitations are effected either by treaty as a result of negotiations or by
adjudication. 238
106. The Convention provides for different rules for delimitation of maritime zones:
for the delimitation of the territorial sea between States with adjacent or opposite
coasts, article 15 establishes the method of equidistance (for adjacent coasts ) or
median line (for opposite coasts), while, for the delimitation of exclusive economic
zones and continental shelf, articles 74, paragraph 1, and 83, paragraph 1, provide for
a delimitation “effected by agreement on the basis of international law, as re ferred to
in Article 38 of the Statute of the International Court of Justice, in order to achieve
an equitable solution”.
107. The method of maritime delimitation of exclusive economic zones and
continental shelf used by international courts and tribunals varied over time, but was
crystallized by the International Court of Justice, most recently in its unanimous
judgment in the Maritime Delimitation in the Black Sea case in 2009, where the Court
indicated that a three-stage approach was appropriate. 239
108. According to the Court, the first stage is to establish a provisional delimitation
line that is either an equidistance line for adjacent coasts or median line for opposite
coasts. 240 According to paragraph 117 of the judgment, which is of relevance to our
topic, “[e]quidistance and median lines are to be constructed from the most
appropriate points on the coasts of the two States concerned, with particular attention
being paid to those protuberant coastal points situated nearest to the area to the
delimited”. 241 In the construction of a provisional equidistance line between adjacent
States, “the Court will have in mind considerations relating to both Parties’ coastlines
when choosing its own base points for this purpose. The line thus adopted is heavily
dependent on the physical geography and the most seaward points of the two

__________________
235
Conclusion 8, para. 1. The practice is uniform (it refers to freezing baselines and outer limits of
maritime zones and physical protection for the coasts).
236
Conclusion 8, para. 2 (“Provided that the practice is general, no particular duration is required.”).
237
Conclusion 10, para. 2.
238
Kaye, “The Law of the Sea Convention and sea level rise after the South China Sea Arbitration”
(see footnote 149 above), pp. 433–436.
239
Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2 009,
p. 61, at pp. 101–103, paras. 115–122; Sean D. Murphy, International Law relating to Islands
(Boston, Brill, 2017), p. 228; Nilüfer Oral, “Case concerning Maritime Delimitation in the Black
Sea (Romania v. Ukraine) Judgement of 3 February 2009”, International Journal of Marine and
Coastal Law, vol. 25 (2010), p. 115, at p. 139.
240
Maritime Delimitation in the Black Sea (see previous footnote), p. 101, para. 116.
241
Ibid., para. 117 (emphasis added).

20-03200 43/80
A/CN.4/740

coasts”. 242 In stage two, the Court will “consider whether there are factors calling for
the adjustment or shifting of the provisional equidistance line in order to achieve an
equitable result”. 243 And last but not least, paragraph 122 presents the third stage,
where the Court is to verify if the line (a provisional eq uidistance line which may or
may not have been adjusted by taking into account the relevant circumstances) does
not, as it stands, lead to an inequitable result. 244
109. Since this method is of relevance not only for adjudicated maritime
delimitations, but also for those effected by agreement and since, in drawing the
equidistance/median line, an important role is played by “the most appropriate points
on the coasts of the two States concerned”, 245 especially the “protuberant coastal
points”, 246 the question is what is the legal impact, if any, of the inundation of these
points by sea-level rise. Such points could be low-tide elevations (if they are located
within the territorial sea) 247 or fringing reefs; 248 in the case of ports, the sea-level rise
may transform them into off-shore installations and, if remedial constructions are
undertaken, they may change into artificial islands. 249 (The specific issue of the
possible legal effects of sea-level rise on islands insofar as their role in maritime
delimitations is concerned will be examined in the following chapter of the present
Part, although the same conclusions apply.)
110. This important question is valid not only for effected maritime delimitations,
but also for existing claims regarding the entitlement to maritime s paces in the case
of future maritime delimitations.
111. As in the case of the possible legal effects of sea-level rise on baselines and the
outer limits of maritime zones measured therefrom, and in the case of examining the
possible legal effects of sea-level rise on maritime delimitations, a key approach
should be to favour the preservation of legal stability, security, certainty and
predictability, as emphasized by the Member States in their statements before the
Sixth Committee (see paragraphs 18 and 23 above), which is also in line with the
general purpose of the United Nations Convention on the Law of the Sea, stated in its
preamble, to “contribute to the strengthening of peace, security, co -operation and
friendly relations among all nations in conform ity with the principles of justice and
equal rights and will promote the economic and social advancement of all peoples of
the world, in accordance with the Purposes and Principles of the United Nations as
set forth in the Charter”.
112. In any case, bringing into question effected maritime delimitations would create
uncertainty and legal insecurity, and increase the risk of disputes if States were to
renegotiate their maritime boundaries. In the case of the existing claims regarding the
__________________
242
Ibid. (emphasis added).
243
Ibid., para. 120. “The Court has also made clear that when the line to be drawn covers several
zones of coincident jurisdictions, ‘the so-called equitable principles/relevant circumstances
method may usefully be applied, as in these maritime zones this method is also suited to
achieving an equitable result’”.
244
Ibid., p. 103, para. 122.
245
Ibid.
246
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see footnote 56 above),
para. 211.
247
Schofield and Freestone, “Options to protect coastlines and secure maritime jurisdictional claims
in the face of global sea level rise” (see footnote 153 above), p. 146; Caron, “When law makes
climate change worse” (see footnote 141 above), p. 637.
248
Caron, “When law makes climate change worse” (see footnote 141 above), p. 637.
249
According to article 11 of the United Nations Convention on the Law of the Sea: “For the
purpose of delimiting the territorial sea, the outermost permanent harbour works which form an
integral part of the harbour system are regarded as forming part of the coast. Off -shore
installations and artificial islands shall not be considered as permanent harbour works”. See
Menefee, “‘Half seas over’” (see footnote 154 above), pp. 209–210.

44/80 20-03200
 A/CN.4/740

entitlement to maritime spaces for future maritime delimitations, it is difficult to

imagine how a State would be obliged to renounce or diminish such claims:
ultimately, the maritime boundaries will be effected either by negotiations in the form
of a treaty (which is the result of a compromise between the parties), or by
adjudication (which is the result of the application of the delimitation methods).
113. It is worth noting in this respect that the Committee on International Law and
Sea Level Rise, in its final report prepared for adoption by the 2018 Sydney
Conference of the International Law Association, put forward the following proposal:
“on the grounds of legal certainty and stability, the impacts of sea level rise on
maritime boundaries, whether contemplated or not b y the parties at the time of the
negotiation of the maritime boundary, should not be regarded as a fundamental change
of circumstances”. 250 Resolution 5/2018, adopted at the Sydney Conference included
the following text, which departed from the proposal of the Committee, but had the
same objective:
The 78th Conference of the International Law Association, held in Sydney,
Australia, 19–24 August 2018:
…
ENDORSES ALSO the Committee’s proposal that the interpretation of the
1982 Law of the Sea Convention in relation to the ability of coastal and
archipelagic States to maintain their existing lawful maritime entitlements
should apply equally to maritime boundaries delimited by international
agreement or by decisions of international courts or arbitral tribu nals;
CONFIRMS that the Committee’s recommendations regarding the
maintenance of existing maritime entitlements are conditional upon the coastal
State’s existing maritime claims having been made in compliance with the
requirements of the 1982 Law of the Sea Convention and duly published or
notified to the Secretary-General of the United Nations as required by the
relevant provisions of the Convention, prior to physical coastline changes
brought about by sea level rise. 251
114. The issue whether sea-level rise represents a fundamental change of
circumstances that might be invoked in order to question effected maritime
delimitations was also examined by the Committee. Despite the fact that, in its final
report to the Sydney Conference, the Committee considered that “the interests of the
international community would at this stage not be best served by a proposal
undermining existing negotiated and established maritime boundaries”, the
Committee “took the view that it did not need to come to a determination as t o whether
it considered Article 62(2) of the 1969 Vienna Convention to apply to maritime
boundaries”. 252 But this question needs a clear answer.
115. The 1969 Vienna Convention on the Law of Treaties, 253 after defining the
fundamental change of circumstances (or rebus sic stantibus) in article 62,

__________________
250
Final report of the Committee on International Law and Sea Level Rise (see footnote 119 above),
p. 895.
251
International Law Association, Report of the Seventy-eighth Conference (see footnote 119
above), pp. 29–30.
252
Final report of the Committee on International Law and Sea Level Rise (see footnote 119 above),
p. 866.
253
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969), United Nations, Treaty
Series, vol. 1155, No. 18232, p. 331.

20-03200 45/80
A/CN.4/740

paragraph 1, 254 mentions in article 62, paragraph 2, that, “[a] fundamental change of
circumstances may not be invoked as a ground for terminating or withdrawing from
a treaty: … If the treaty establishes a boundary”.
116. The Committee on International Law and Sea Level Rise examined the issue of
whether article 62, paragraph 2, is applicable to maritime boundaries; it reviewed the
literature in favour and against the application thereof, and even invoked the debates
of the Commission when working on the draft articles on the law of treaties between
States and international organizations or between international Organizations, 255
which seemed to infer that the Commission considered that maritime boundaries other
than territorial sea boundaries might not fall within the boundary exclusion of
article 62, paragraph 2 (a), thus leaving the question open for maritime boundaries
beyond the territorial sea. 256
117. However, the international jurisprudence assimilated maritime boundaries to the
boundaries referred to in article 62, paragraph 2, of the 1969 Vienna Convention.
118. The 1978 judgment of the International Court of Justice in th e Aegean Sea
Continental Shelf (Greece v. Turkey) case states clearly: “Whether it is a land frontier
or a boundary line in the continental shelf that is in question, the process is essentially
the same, and inevitably involves the same element of stabilit y and permanence, and
is subject to the rule excluding boundary agreements from fundamental change of
circumstances”. 257
119. It results that States cannot invoke article 62, paragraph 2 (a), of the 1969 Vienna
Convention on the Law of Treaties in order to unilaterally terminate or to withdraw
from a maritime boundary treaty, including because of sea-level rise. At any rate, sea-
level rise cannot be assimilated with a fundamental change of circumstances, since it
is not a sudden phenomenon and it cannot be claimed that it could not be foreseen
(see the definition of the fundamental change of circumstances in article 62,
paragraph 1), at least after the 1980s, when the international community started to be
aware of it. 258
120. The award in the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v.
India) also clearly states that, “maritime delimitations, like land boundaries, must be
stable and definitive to ensure a peaceful relationship between the States concerned
in the long term”, as well as referring specifically to climate change and its effects
(which include sea-level rise): “[i]n the view of the Tribunal, neither the prospect of
climate change nor its possible effects can jeopardize the large number of settled
maritime boundaries throughout the world. This applies equally to maritime

__________________
254
“A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked
as a ground for terminating or withdrawing from the treaty unless:
(a) The existence of those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty; and
(b) The effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.”
255
Yearbook of the International Law Commission, 1982, vol. II (Part Two), para. 63.
256
Final report of the Committee on International Law and Sea Level Rise (see footnote 119 above),
pp. 889–890.
257
Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 3, at pp. 36–37, para. 85.
258
The 2018 final report of the Committee on International Law and Sea Level Rise (see
footnote 119 above), pp. 891–892, also invokes as an argument in favour of the stability of
maritime boundaries articles 11 and 12 of the Vienna Convention on Succession of States in
respect of Treaties (Vienna, 23 August 1978, United Nations, Treaty Series, vol. 1946,
No. 33356, p. 3).

46/80 20-03200
 A/CN.4/740

boundaries agreed between States and to those established through international

adjudication”. 259
121. But beyond legal interpretation of various treaties and jurisprudence, it is highly
relevant to discuss the positions expressed by the Member States in the submissions
to the Commission in response to the request for such practice, as included in
chapter III of the 2019 annual report of the Commission, and in their statements
before the Sixth Committee. They converge, to a large extent, as far as the need for
preserving legal stability, security, certainty and predictability of maritime
delimitations in connection with the present topic. They also represent a form of State
practice regarding maritime delimitations in relation to sea-level rise.
122. For example, Maldives is very clear in its submission to the Commission. It
mentions that it “considers that sea-level rise does not have any effect on maritime
boundaries between two States when they have been fixed by a treaty. Maritime
boundary treaties, such as those that Maldives has negotiated, are binding under the
rule of pacta sunt servanda, and sea-level rise does not constitute a fundamental
change of circumstances that would allow termination or suspension of such
treaties”. 260 At the same time, it stresses that
it should be recognized that international law more generally also emphasizes
the importance of certainty and stability in relation to the delineation of
international borders and boundaries. For example, the 197 8 Vienna Convention
on Succession of States in Respect of Treaties recognises a special regime for
boundaries. It provides in Article 11 that succession of a State does not affect a
boundary established by a treaty, or obligations and rights established by a treaty
and relating to the regime of a boundary. 261
At the very least, those maritime boundary treaties that define the
boundary by precise geographic coordinates, like those the Maldives entered
into, should remain stable. As opposed to the use of more vague expressions like
“the median line,” which could shift over time due to coastal erosion,
geographic coordinates remain the same regardless of changes in coastal
geography that could be induced by sea-level rise. Under the rule of pacta sunt
servanda, a performance of those treaties in good faith would require
maintaining the maritime boundary as defined by the precise coordinates in the
treaty, regardless of sea-level rise. 262
When elaborating the draft articles that served as the basis for the adopti on
of the [Vienna Convention on the Law of Treaties], the International Law
Commission … never provided a clear definition of the term “boundary,” but
according to the [Commission]’s report to the General Assembly, the clause
“embrace[s] treaties of cession as well as delimitation treaties,” without any
qualifier.” 263
Moreover, maritime boundary treaties typically do not contain termination
provisions, demonstrating that States view such delimitation treaties as permanent.

__________________
259
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see footnote 56 above),
p. 63, paras. 216–217.
260
Submission of Maldives (see footnote 164 above), p. 9.
261
Ibid., p. 12.
262
Ibid., p. 19.
263
Ibid., pp. 20–21, quoting Yearbook of the International Law Commission 1966, vol. II, p. 259,
para. (11).

20-03200 47/80
A/CN.4/740

Some treaties make this purpose explicit … In sum, maritime boundary treaties are
widely considered as requiring the same level of stability as land boundaries. 264
It adds that the rebus sic stantibus principle
must be exercised within a reasonable time after the date of the occurrence or
completion of the alleged essential change of circumstances”. Failure to comply
with this condition would estop the State from invoking the doctrine. The
phenomenon of the sea-level rise has been publicly known since at least the late
1980s. 265
Such reasoning includes valid arguments supporting the preservation of maritime
delimitations in the face of sea-level rise.
123. The Pacific Islands Forum, in its submission to the Commission on behalf of its
member States, which is relevant for evidencing the regional State practice,
emphasizes that:
Members have undertaken a sustained effort to conclude, where necessary,
maritime boundary agreements in the region. Maritime boundaries play an
important role in promoting stability in the face of sea lev el rise, recognising
the unique status of boundary treaties under the Vienna Convention on the Law
of Treaties. Recent practice in maritime boundary agreements negotiated by
[Pacific Islands Forum] Members include the description of boundary lines by
reference to geographic coordinates, which also promotes stability and
certainty. 266
124. Singapore, in its submission to the Commission, listed a number of delimitation
treaties. 267 It is useful to observe that one of these treaties, the 1995 Agreement
between Malaysia and Singapore to delimit precisely the territorial waters boundary
in accordance with the Straits Settlement and Johore Territorial Waters Agreement
1927, 268 provides in its article 2, entitled “Finality of boundary”, that “[t]here shall be
no alteration to the territorial waters boundary as defined in Article 1”, meaning that
the respective boundary is permanent.
125. The United Kingdom emphasized in its submission to the Commission “the
legislation establishing the [United Kingdom]’s Exclusive Econom ic Zone which is
defined by fixed coordinates as agreed in bilateral Maritime Boundary Delimitation
Treaties with neighbouring countries”. 269 In its submission, the United States
expressed its position that it “generally considers maritime boundaries establi shed by
treaty to be final. A maritime boundary established by treaty would not be affected by
any subsequent changes to the baseline points that may have contributed to the
construction of a maritime boundary, unless the treaty establishing the boundary
provides otherwise.” 270
126. Romania, in its submission, informs the Commission of a provision of the Treaty
between Romania and Ukraine on the Romanian-Ukrainian State Border Regime,
__________________
264
Ibid., p. 23, quoting the Agreement on the Extension of the 1974 Continental Shelf Boundary
between the two Countries in the Andaman Sea and the Indian Ocean (New Delhi, 14 January
1977, United Nations, Treaty Series, vol. 1208, No. 19475, p. 161), between India and Indonesia.
265
Ibid., p. 25.
266
Submission of the Pacific Islands Forum (see footnote 169 above), p. 3.
267
Submission of Singapore (see footnote 176 above).
268
Agreement between Malaysia and Singapore to delimit precisely the territorial waters boundary
in accordance with the Straits Settlement and Johore Territorial Waters Agreement 1927
(Singapore, 7 August 1995), International Maritime Boundaries, Jonathan I. Charney and Lewis
M. Alexander (eds.) (The Hague, Martinus Nijhoff, 2004), vol. III, p. 2351.
269
Submission of the United Kingdom (see footnote 177 above), p. 2.
270
Submission of the United States (see footnote 182 above), p. 2.

48/80 20-03200
 A/CN.4/740

Collaboration and Mutual Assistance on Border Matters, of 2003, 271 which reads as
follows: “If objective modifications due to natural phenomena which are not related
to human activities and that make it necessary for these coordinates to be changed are
noticed, the Joint Commission shall conclude new protocols.” 272 As mentioned above,
the Black Sea is a semi-enclosed sea, less exposed to sea-level rise, so it is highly
improbable that the aforementioned provision is connected with this phenomenon.
127. The statements of Member States in the Sixth Committee on the present topic
are also indicative of State practice. (The present paper has already presented the
statements emphasizing the support of Member States for legal stability and security
in relation to the topic.) All statements tackling the issue of maritime delimitations
have advocated for maintaining them as such, while no statement was made in favour
of their modification because of sea-level rise.
128. In its statement before the Sixth Committee in 2018, Greece 273 underlined that
the outcome of the Commission’s work should safeg uard “the stability of maritime
boundaries and the stability of relevant treaties”. In its 2019 statement, 274 it
emphasized the “importance of preserving … the principle of stability of maritime
boundaries which cannot be affected by climate change and its e ffects, as clearly
affirmed in the Permanent Court of Arbitration in the Bay of Bengal Maritime
Boundary Arbitration Award (Bangladesh v. India, Award July 7, 2014, par. 217)”.
129. In its 2018 statement in the Sixth Committee, Indonesia 275 recommended that
the issue be “approached with caution because of its sensitivity, particularly in
relation to the issues of borders and delimitation”. In its 2019 statement, Thailand 276
stressed that “a fundamental change of circumstances should not be invoked in
relation to maritime boundaries” in order for a State to terminate or withdraw from
such an agreement.
130. New Zealand, 277 in its 2018 statement recalled a statement of its Prime Minister
which said that New Zealand firmly believed that “coastal States’ maritime
boundaries should not have to change because of human-induced sea level rise”.
Papua New Guinea, 278 in its 2018 statement, recalled, inter alia, the Pacific Islands
Forum leaders’ priority of securing maritime boundaries. In its 2019 statement, 279 it
stressed that the ability “to maintain existing maritime entitlements” should also
apply to “maritime boundaries as delimited by agreement between States or by
decisions of international courts or arbitral tribunals”. Tonga, 280 in its 2018 statement,
indicated that it was also crucial, when undertaking the study of the topic, “to respect
the existing rights and entitlements of States, in particular with regard to maritime
boundary delimitation pursuant to the United Nations Convention on the Law of the
Sea”.
131. In its 2019 statement, Israel 281 stressed that the work of the Commission and the
Study Group on this matter should not “upset or undermine the delicate balance
achieved by existing maritime border agreements, which meaningfully and
__________________
271
Treaty between Romania and Ukraine on the Romanian-Ukrainian State Border Regime,
Collaboration and Mutual Assistance on Border Matters (Cernauti, 17 June 2003), United
Nations, Treaty Series, vol. 2277, No. 40547, p. 3.
272
Submission of Romania (see footnote 181 above), p. 3.
273
Greece (A/C.6/73/SR.21, para. 68).
274
Greece (A/C.6/74/SR.28, paras. 56–57).
275
Indonesia (A/C.6/73/SR.24, para. 64).
276
Thailand (A/C.6/74/SR.29, para. 100).
277
New Zealand (A/C.6/73/SR.22, para. 5).
278
Papua New Guinea (A/C.6/73/SR.23, para. 34).
279
Papua New Guinea (A/C.6/74/SR.30, para. 19).
280
Tonga (A/C.6/73/SR.22, para. 63).
281
Israel (A/C.6/74/SR.24, para. 27).

20-03200 49/80
A/CN.4/740

significantly contributed to increased regional and international stability and positive

cooperation”.
132. Cuba 282 mentioned in its 2019 statement that “modifying … maritime
boundaries” would have a negative impact “on small island developing States” not to
mention the respective legal insecurity. Jamaica 283 recalled in its 2019 statement the
findings of arbitral tribunal in the Bay of Bengal case according to which “maritime
delimitation is not dependent on what may likely occur in the future”.
133. Last, but not least, the research on treaty practice kindly undertaken by the
Secretariat of the Commission 284 was very helpful also on the issue of maritime
delimitations in relation to sea-level rise. That research, based on a review of treaties
and international agreements registered or filed and recorded with the Secretariat of
the United Nations and published in the United Nations Treaty Series database,
included: a search of approximately 250 treaties relating to maritime delimitation,
based on the keywords in their title (“bay delimitation”, “exclusive economic zone”,
“continental shelf”, “maritime border/boundary/delimitation zone”, “outer limit”,
“sea level” or “territorial sea/territorial waters”); a full-text search of treaties
containing the words “base line”, “sea level” and “adjustment”, which involved over
3,000 treaties; and a search of treaties listed in the database of the Division for Ocean
Affairs and the Law of the Sea of the United Nations Office of Legal Affairs.
134. The above-mentioned search in the database of the approximately 250 treaties
relating to maritime delimitation, based on the keywords in their title, revealed that
most of them, with a few exceptions, do not include provisions on amendments.
Although this would not prevent the parties from amending the agreements
concluded, the practice of States as reflected in the instruments considered tends to
demonstrate that they have not anticipated amending maritime delimitation treaties.
On the contrary, a number of these treaties expressly include provision s on the
permanent character of the respective maritime delimitation.
135. Among the few exceptions, the following agreements can be noted. The Treaty
between Argentina and Uruguay concerning the Río de la Plata and the Corresponding
Maritime Boundary provides in article 46 that, “[i]f Martin Garcia Island becomes
joined to another island in the future, the corresponding boundary shall be drawn
following the outline of Martin Garcia Island yielded by chart H -118 referred to in
article 41”. 285 The Agreement between Australia and Indonesia concerning Certain
Boundaries between Papua New Guinea and Indonesia provides in article 1: “The
boundary between Papua New Guinea and Indonesia on the island of New Guinea
(Irian) shall be more precisely demarcated as follows: …(b) From the point of the
most northerly intersection of the meridian of Longitude 141° East with the waterway
(“thalweg”) of the Fly River (at present located at Latitude 6° 19’ 24” South) the
boundary lies along that waterway to the point of its most southerly intersection”. 286
The Agreement on Maritime Delimitation between France and New Zealand (on
behalf of the Cook Islands) provides in article 3 that “If new surveys or resulting
charts and maps should indicate that changes in the base points co -ordinates are
sufficiently significant to require adjustments of the maritime boundary, the Parties
agree that an adjustment will be carried out on the basis of the same principles as
those used in determining the maritime boundary, and such adjustments shall b e

__________________
282
Cuba (A/C.6/74/SR.25, para. 23).
283
Jamaica (A/C.6/74/SR.27, paras. 2–3).
284
On file with the Codification Division.
285
Treaty concerning the Río de la Plata and the corresponding maritime boundary (Montevideo,
19 November 1973), United Nations, Treaty Series, vol. 1295, No. 21424, p. 293.
286
Agreement concerning certain boundaries between Papua New Guinea and Indonesia (Jakarta,
12 February 1973), ibid., vol. 975, No. 14124, p. 3.

50/80 20-03200
 A/CN.4/740

provided for in a Protocol to this Agreement”. 287 The Exchange of Notes between
France and Tuvalu constituting an Agreement concerning a Provisional Maritime
Delimitation between the Two Countries provides that: “The Ministry of Foreign
Affairs has the further honour to agree to the Embassy's proposal that, as an interim
measure pending the availability of charts definitively fixing maritime boundaries,
both countries will acknowledge the principle of the equidistant line as a reference
limit”. 288 The Convention on the Delimitation of Economic Zones between France and
Tonga provides that: “Article 1. The delimitation line between the economic zone of
the French Republic off the coast of Wallis and Futuna and the exclusive economic zone
of Tonga shall be the median line or line of equidistance. … Article 3. … (C) The
necessary technical corrections to bring these data up to date may be made subsequently
by exchange of letters”. 289 The Treaty between the Solomon Islands and Vanuatu
concerning their Maritime Boundaries provides in article 5 that, “[i]n the event that
new surveys reveal significant adjustments to the location of base point coordinates
that require adjustments of the maritime boundary, the Parties shall consult with the
view to agreeing upon any necessary adjustment to the line described in Article 1,
applying the same principles as those used in determining the maritime boundary, and
such adjustments shall be provided for in a Protocol to this Agreement.” 290
136. Among the treaties that expressly include provisions on the permanent character
of the respective maritime delimitation, the following agreements can be noted. The
Treaty between Australia and Papua New Guinea concerning Sovereignty and
Maritime Boundaries in the Area between the Two Countries, including the Area
Known as Torres Strait, and Related Matters provides in article 3, paragraph 2, that
“The territorial seas of the islands specified in sub-paragraph 1 (a) of Article 2 of this
Treaty shall not extend beyond three miles from the baselines from which the breadth
of the territorial sea around each island is measured. Those territorial seas shall not
be enlarged or reduced, even if there were to be any change in the configuration of a
coastline or a different result from any further survey”. 291 The Agreement between
Australia and Indonesia Establishing Certain Seabed Boundaries in the Area of the
Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, provides
in its preamble: “Resolving, as good neighbours and in a spirit of co -operation and
friendship, to settle permanently the limits of the areas referred to in the preceding
paragraph within which the respective Governments shall exercise sovereign rights
with respect to the exploration of the seabed and the exploitation of its n atural
resources”. 292 The Treaty on the State Border between Croatia and Bosnia and
Herzegovina provides in article 4, paragraph 1, that, “[t]he Parties have agreed that
the State border remains within the mutually defined coordinates, regardless of the

__________________
287
Agreement on Maritime Delimitation (Rarotonga, 3 August 1990), ibid., vol. 1596, No. 27949,
p. 391.
288
Exchange of Notes constituting an Agreement concerning a Provisional Maritime Delimitation
between the Two Countries [France and Tuvalu] (Suva, Fiji, 6 August 1985, and Funafuti,
Tuvalu, 5 November 1985), ibid., vol. 1506, No. 25964, p. 35, at p. 37.
289
Convention on the Delimitation of Economic Zones (Nuku’Alofa, 11 January 1980),
ibid., vol. 1183, No. 18960, p. 347.
290
Treaty between the Solomon Islands and the Republic of Vanuatu concerning their Maritime
Boundaries (Motalava, 7 October 2016), available at www.un.org/Depts/los/LEGISLATIONAND
TREATIES/PDFFILES/TREATIES/slb_vut_wsm_2016.pdf. This treaty is interesting since it was
concluded quite recently between States in the Pacific likely to be affected by sea -level rise.
291
Treaty concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries
[Australia and Papua New Guinea], including the Area Known as Torres Strait, and Related
Matters (Sydney, 18 December 1978), United Nations, Treaty Series, vol. 1429, No. 24238, p. 207.
292
Agreement between Australia and Indonesia establishing certain seabed boundaries in the area of
the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971 (1972),
ibid., vol. 974, No. 14123, p. 319.

20-03200 51/80
A/CN.4/740

man-made or natural changes in the terrain”. 293 The Agreement between India and
Indonesia on the Extension of the 1974 Continental Shelf Boundary between the Two
Countries in the Andaman Sea and the Indian Ocean provides that: “And resolving,
as good neighbours and in a spirit of cooperation and friendship, to settle permanently
the limits of the areas referred to in the preceding paragraph within which the
respective Governments shall exercise sovereign rights” 294 (similar preamble
provisions related to the will of the parties to settle permanently their delimitation
can be found also in the Agreement on the Delimitation of Seabed Boundary between
India and Thailand in the Andaman Sea, 295 the Agreement between Indonesia and
Papua New Guinea concerning the Maritime Boundary between the Republic of
Indonesia and Papua New Guinea and Cooperation on Related Matters, 296 the
Agreement on the Delimitation of the Maritime Boundary between Burma and
Thailand in the Andaman Sea, 297 the Treaty between Papua New Guinea and Solomon
Islands concerning Sovereignty, Maritime and Seabed Boundaries between the Two
Countries, and Co-operation on Related Matters, 298 the Muscat Agreement on the
Delimitation of the Maritime Boundary between Pakistan and Oman, 299 the Treaty on
the Delimitation of Marine and Submarine Areas, between the Bolivarian Republic of
Venezuela and Trinidad and Tobago 300). The Agreement between Mauritius and
Seychelles on the Delimitation of the Exclusive Economic Zone between the Two
States provides in article 5 that, “[t]he two States shall cooperate with each other
whenever necessary in order to maintain the existing basepoints between the two
States”. 301 The Treaty to Resolve Pending Boundary Differences and Maintain the Rio
Grande and Colorado River as the International Boundary between Mexico and the
United States of America provides in article V that, “[t]he Contracting States agree to
establish and recognize their maritime boundaries in the Gulf of Mexico and in the
Pacific Ocean in accordance with the following provisions: … These maritime
boundaries … shall be recognized as of the date on which this Treaty enters into force.
They shall permanently represent the maritime boundaries between the two
Contracting States”. 302 The International Boundary Treaty between Yemen and Saud i
Arabia provides in article 2 that “The definitive and permanent boundary line between
the Republic of Yemen and the Kingdom of Saudi Arabia shall be established as
__________________
293
Treaty on the State Border between Croatia and Bosnia and Herzegovina (Sarajevo, 30 July
1999), available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/
TREATIES/HRV-BIH1999SB.PDF.
294
See footnote 264 above.
295
Agreement on the Delimitation of Seabed Boundary between the Two Countries [India and
Thailand] in the Andaman Sea (New Delhi, 22 June 1978), ibid., vol. 1122, No. 17433, p. 3.
296
Agreement between Indonesia and Papua New Guinea concerning the Maritime B oundary
between the Republic of Indonesia and Papua New Guinea and Cooperation on Related Matters
(Jakarta, 13 December 1980), International Maritime Boundaries, Jonathan I. Charney and Lewis
M. Alexander (eds.) (Dordrecht, Martinus Nijhoff, 1993), vol. I, p. 1045.
297
Agreement on the Delimitation of the Maritime Boundary between the Two Countries [Burma
and Thailand] in the Andaman Sea (Rangoon, 25 July 1980), United Nations, Treaty Series,
vol. 1276, No. 21069, p. 447.
298
Treaty between Papua New Guinea and Solomon Islands concerning Sovereignty, Maritime and
Seabed Boundaries between the Two Countries, and Co -operation on Related Matters (Port
Moresby, 25 January 1989), International Maritime Boundaries, vol. I (see footnote 296 above),
p. 1162.
299
Muscat Agreement on the Delimitation of the Maritime Boundary between Pakistan and Oman
(Muscat, 12 June 2000), United Nations, Treaty Series, vol. 2183, No. 38455, p. 3.
300
Treaty on the Delimitation of Marine and Submarine Areas (Caracas, 18 April 1990), United
Nations, Treaty Series, vol. 1654, No. 28463, p. 293.
301
Agreement between Mauritius and Seychelles on the Delimitation of the Exclusive Economic
Zone between the Two States (Port Louis, 29 July 2008), ibid., vol. 2595, No. 46169, p. 225.
302
Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado
River as the International Boundary between the United Mexican States and the United States of
America (Mexico City, 23 November 1970), ibid., vol. 830, No. 11873, p. 56.

52/80 20-03200
 A/CN.4/740

follows ...”; 303 the International Boundary Agreement between Yemen and Oman
provides in article 3 that, “[t]his demarcation of the land and maritime boundary line
separating the two countries shall be considered final and definitive”. 304 The
Agreement on the Delimitation of the Maritime Boundary between Oman and Yemen
provides in article 1, paragraph 3, that, “[t]his demarcation shall be considered final
and definitive”. 305 This list is not exhaustive. The number of treaties providing for the
permanent delimitation of maritime boundaries is much higher than the number of
those containing provisions allowing for adjustments.
137. At the same time, the above-mentioned broader full-text search in the United
Nations Treaty Series database did not reveal any treaty providing for the explicit
adjustment of a maritime delimitation as a consequence of sea -level rise.
138. This overview of conventional practice reinforces the general conclusion, which
can be drawn after studying the submissions to the Commission and the statements
by Member States before the Sixth Committee, that there is a large body of Stat e
practice favouring legal stability, security, certainty and predictability of the maritime
delimitations effected by agreement or by adjudication.
139. As to the existing claims to the entitlement to maritime spaces in the case of
future maritime delimitations, the situation is less clear as to the relevant State
practice: there are no specific references in the submissions to the Commission or in
the statements by Member States before the Sixth Committee, with the exception of
general remarks regarding the need to preserve the entitlements. As mentioned
already, it is difficult to imagine how a State can be obliged to renounce to or diminish
such claims; ultimately, the maritime delimitation will be effected either by
negotiations in the form of a treaty (so, it will be the result of a compromise between
the parties), or by adjudication (so it will be the result of the application by the
respective jurisdiction of the delimitation method).
140. As to how an international court or tribunal might take into account such claims
when resolving a dispute pertaining to a maritime delimitation, International Law
Association resolution 5/2018, adopted by the Sydney Conference, can be recalled,
wherein the Conference
CONFIRMS that the Committee’s recommendations regarding the maintenance
of existing maritime entitlements are conditional upon the coastal State’s
existing maritime claims having been made in compliance with the requirements
of the 1982 Law of the Sea Convention and duly published or notified to the
Secretary-General of the United Nations as required by the relevant provisions
of the Convention, prior to physical coastline changes brought about by sea level
rise.
This might infer that an international court or tribunal should take into account such
claims made in accordance with the United Nations Convention on the Law of the
Sea before the coastal conditions had been affected by sea-level rise (meaning that it
is supposed to effect the delimitation using the base points upon which the claim was
based before sea-level rise effects). Nevertheless, courts and tribunals are not bound
by the claims of the parties when solving the dispute between them. At the same time,
it should also be recalled that the Tribunal in the Bay of Bengal Maritime Boundary

__________________
303
International Boundary Treaty between Yemen and Saudi Arabia (Jeddah, 12 June 2000), ibid.,
vol. 2389, No. 43167, p. 203.
304
International Boundary Agreement between Yemen and Oman (Sana’a, 1 October 1992),
available at www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/
OMN-YEM1992IB.PDF.
305
Agreement on the Delimitation of the Maritime Boundary between Oman and Ye men (Muscat,
14 December 2003), ibid., vol. 2309, No. 41170, p. 249.

20-03200 53/80
A/CN.4/740

Arbitration (Bangladesh v. India) stated that the “issue is not whether the coastlines
of the Parties will be affected by climate change in the years or centuries to come. It
is rather whether the choice of base points located on the coastline and reflecting the
general direction of the coast is feasible in the present case and at the present time.” 306
This statement might infer that what can be taken into account in an adjudication on
a maritime delimitation dispute is the reality on the ground at the moment of effecting
the delimitation by the court or tribunal, that is after the sea -level rise affected the
coast and its base points used in delimitation, and not the claims based on the former
reality of the coast before sea-level rise produced its effects. This matter still needs
attention within the Study Group.
141. In concluding the present chapter, the following observation of a preliminary
character can be made:
(a) Bringing into question effected maritime delimitations would create legal
uncertainty, insecurity, and would lead to disputes prompted by the frequent
renegotiation of the maritime boundaries;
(b) Consequently, in order to preserve legal stability, security, certainty and
predictability, it is necessary to preserve existing maritime delimitations, either
effected by agreement or by adjudication, notwithstanding the coastal changes
produced by sea-level rise;
(c) Sea-level rise cannot be invoked in accordance with article 62,
paragraph 2, of the 1969 Vienna Convention on the Law of Treaties, as a fundamental
change of circumstances for terminating or withdrawing from a treaty which
established a maritime boundary, since maritime boundaries enjoy the same regime
of stability as any other boundaries. The international jurisprudence is clear in this
respect;
(d) The submissions by Member States to the Commission in response to its
request for State practice, and their statements before the Sixth Committee represent
a form of State practice supporting the preservation of existing maritime
delimitations, irrespective of the effects of sea-level rise;
(e) These conclusions are reinforced by the results of the research on the
maritime delimitation treaties in the United Nations Treaty Series and Division for
Ocean Affairs and the Law of the Sea databases, 307 which show that most of them,
with a few exceptions, do not include provisions on amendments, so the parties have
not anticipated amending these treaties; on the contrary, a number of these treaties
expressly include provisions on the permanent character of the respective maritime
delimitation. Nevertheless, the survey showed that no treaty registered or filed and
recorded with the Secretariat of the United Nations provides for an explicit adjustment
of a maritime delimitation as a consequence of sea-level rise;
(f) From the above, it is clear that the State practice generally supports the
preservation of existing maritime delimitations, either effected by agreement or by
adjudication, notwithstanding the coastal changes produced subsequently by sea -level
rise. As to the issue of existing claims to the entitlement to maritime spaces in the
case of future maritime delimitations, further reflection is needed within the Study
Group;
(g) A similar conclusion can be drawn for maritime delimitations as in the
case of the discussion contained in paragraph 104 above on the emergence of a
customary rule of international law regarding the preservation of baselines and outer
__________________
306
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see footnote 56 above),
p. 62, para. 214 (emphasis added).
307
See footnote 284 above.

54/80 20-03200
 A/CN.4/740

limits of maritime zones measured therefrom. There is a clear State practice regarding
the preservation of effected maritime delimitations and of maritime boundaries, which
generally meets the requirements under conclusions 4 to 8 (and 16) of the
Commission’s conclusions on identification of customary international law of 2018
for the material element of the custom. Such State practice is supported by practice
of international organizations; 308 includes both physical and verbal acts, 309 as well as
inaction; 310 has the form of, inter alia, conduct in connection with treaties; 311 and is
widespread and representative among States, as well as consistent. 312 It is more and
more frequent. 313 Nevertheless, the existence of the opinio juris is not yet that evident,
although the general reliance of the conduct 314 of the respective States in their practice
(as mentioned) on the grounds of legal stability and security is an indication in that
sense. In order for a definitive conclusion to be possible, more submissions by
Member States to the Commission in response to the request included in chapter III
of its 2019 annual report are needed.

III. Possible legal effects of sea-level rise on islands insofar as

their role in the construction of baselines and in maritime
delimitations is concerned
142. The present chapter complements, and should be read together with, the
previous two chapters; its existence results from the structure suggested by the 2018
syllabus in its paragraph 15, 315 which presents the issues related to the legal
implications sea-level rise to be analysed. The conclusions of the previous two
chapters are equally valid for the present one.
143. The partial or full inundation of islands because of sea-level rise also has
consequences on baselines and/or on maritime delimitations.
144. When an island is located in proximity to the coast and forms part of the coastal
configuration of the respective State, it may be used as a base point o r it may generate
more base points for the baseline or for effecting the maritime delimitations.
145. If an island was used to contribute to the drawing of the baseline, the latter may
also be affected (for example, when the island was an anchor point of a straight
baseline). 316 In cases where the respective island disappears entirely, then its
territorial sea can be lost as well, which will be discussed in Part Three below. 317
146. At the same time, islands situated on atolls or that have fringing reefs can u se
the low-water marks of reefs as baselines (art. 6 of the United Nations Convention on

__________________
308
Conclusion 4, para. 2. See above in the present paper the practice of international organizations
under the form of declarations/statements.
309
Conclusion 6, para. 1. See above in the present paper State practice under the form of statements
(submissions to the Commission and statements in the Sixth Committee).
310
Conclusion 6, para. 1. Inaction to the sense that States are not willing to terminate or withdraw
from maritime delimitation treaties establishing maritime boundaries, including on the ground of
fundamental change of circumstances because of sea-level rise, or to modify such
treaties/boundaries (by not providing modification clauses in the treaties).
311
Conclusion 6, para. 2. Inclusion in the texts of treaties of provisions setting forth the permanent
character of the maritime delimitation effected by means of that treaty.
312
Conclusion 8, para. 1. The practice is uniform (it refers to the preservation of maritime
delimitation treaties/maritime boundaries established by those treaties).
313
Conclusion 8, para. 2 (“Provided that the practice is general, no particular duration is required.”).
314
Conclusion 10, para. 2.
315
A/73/10, annex B.
316
Caron, “When law makes climate change worse” (see footnote 141 above), p. 637.
317
Rayfuse, “International law and disappearing States” (see footnote 152 above), p. 3.

20-03200 55/80
A/CN.4/740

the Law of the Sea). These insular features are particularly vulnerable to a rising sea
level and can easily become permanently inundated, which results in the loss of the
baseline.
147. Its permanent inundation may therefore also mean that it can no longer be used
to generate base points for maritime delimitation. There is an exception where the
inundation transforms it into a low-tide elevation located within the territorial sea,
when it might still be used as a base point (in such a case, the issue of the legality of
the possible measures taken by the respective State to preserve its status of island or
its emergence above water at low tide appears, which will be exam ined in the next
chapter). 318
148. Furthermore, in maritime delimitations, islands may represent relevant or
special circumstances that, in the framework of the method of maritime delimitation
developed and consolidated by the international courts and tribunals, including by the
International Court of Justice, may lead to an adjustment of the provisional
equidistance line in order to produce an equitable result. The practice of international
courts and tribunals, including the International Court of Justice, shows that they may
decide not to take into account very small islands or not to give them full potential
entitlement to maritime zones, such as enclaving islands (in case such an approach
had a disproportionate effect upon the delimitation line). 319 The partial permanent
inundation and/or its reclassification as a rock (as defined by article 121, paragraph 3,
of the United Nations Convention on the Law of the Sea) or a low -tide elevation, or
the full permanent inundation (disappearance) of an island may resu lt in the decision
to no longer consider that island as a relevant or special circumstance in this phase of
the application of the maritime delimitation method mentioned above.

IV. Possible legal effects of sea-level rise on the exercise of

sovereign rights and jurisdiction of the coastal State and its
nationals, as well as on the rights of third States and their
nationals, in maritime spaces in which boundaries or
baselines have been established
149. Maritime zones under international law have evolved over time. During the
period before the 1958 Geneva Conventions, customary international law recognized
internal waters, territorial sea 320 and high seas. The first round of codification of the
law of the sea resulted in the adoption of the four 1958 Genev a Conventions, 321
considered to reflect customary international law at the time. The Conventions, in
addition, codified the sovereign rights of the coastal State to a continental shelf and
contiguous zone. The most significant expansion of maritime zones was introduced
by the 1982 United Nations Convention on the Law of the Sea, which created the new
maritime zones of archipelagic waters, exclusive economic zone, extended
continental shelf, and the Area.

__________________
318
Sefrioui, “Adapting to sea-level rise” (see footnote 148 above), p. 12.
319
See Maritime Delimitation in the Black Sea (footnote 239 above), p. 122, para. 185.
320
During the 1930 Hague Codification Conference there was discussion on special zones beyond
the territorial sea. Conference for the Codification of International Law, annex 10, Report of the
Second Committee: Territorial Sea (1930).
321
Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958), United
Nations, Treaty Series, vol. 516, No. 7477, p. 205; Convention on the High Seas (Geneva,
29 April 1958), ibid., vol. 450, No. 6465, p. 11; Convention on the Continent al Shelf (Geneva,
29 April 1958), ibid., vol. 499, No. 7302, p. 311; Convention on Fishing and Conservation of the
Living Resources of the High Seas (Geneva, 29 April 1958), ibid., vol. 559, No. 8164, p. 285.

56/80 20-03200
 A/CN.4/740

150. Each of these zones confer upon the coastal State and its nationals a set of rights
and obligations. In addition, in these zones, third party States and their nationals also
enjoy certain rights. As each of these zones is measured from the baseline from which
the territorial sea is determined, any change or loss of the baseline could result in
changes and, in some cases, reductions or even, in extreme cases, complete loss of
maritime entitlements. Such changes will necessarily impact the exercise of sovereign
rights and jurisdiction of the coastal State in these maritime zones and affect the rights
of third States and their nationals.
151. A total of 168 States have ratified the United Nations Convention on the Law of
the Sea. 322 And while there remain a number of non-Parties, it would be fair to
conclude that these maritime zones are part of customary international law. 323
However, the present chapter will not address the process, the manner, nor the criteria
for establishing any maritime zone, especially in the case where there are overlapping
boundaries. It will begin by explaining different aspects of the sovereign rights and
jurisdiction of the coastal State and its nationals and the rights of third States and their
nationals in relation to each maritime entitlement as provided for under the
Convention, and the possible consequences to these entitlements in the case of
shifting of baselines and outer limits of maritime zones owing to sea -level rise.

A. Maritime entitlements under international law

152. The coastal State exercises sovereignty over its internal waters and its territorial
sea, including the seabed, subsoil and airspace above. Internal waters are described
as the waters that lie in the landward side of the baseline of the territorial sea. 324 Here
the coastal State exercises complete prescriptive and enforcement jurisdiction.
153. In the territorial sea, the coastal State exercises sovereignty that is limited by
the right of innocent passage rights of foreign vessels that is customary internatio nal
law. The right of innocent passage is codified in both the Convention on the Territorial
Sea and the Contiguous Zone 325 and the United Nations Convention on the Law of the
Sea (Part II, sect. 3, arts. 17–32). The right of innocent passage means that coastal
State cannot hamper the passage of a foreign vessel 326 that is not “prejudicial to the
peace, good order or security of the coastal State”. 327 The coastal State cannot exercise
__________________
322
Information obtained from the United Nations Treaty Collection Depositary, available at
https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI -6&chapter=
21&Temp=mtdsg3&clang=_en. Fourteen States have signed but not ratified the Convention
(Afghanistan, Bhutan, Burundi, Cambodia, Central African Republic, Columbia, Democratic
People’s Republic of Korea, El Salvador, Ethiopia, Iran (Islamic Republic of), L ibya,
Liechtenstein, Rwanda and United Arab Emirates).
323
This is without prejudice to positions taken by non -Parties regarding applicable provisions of the
United Nations Convention on the Law of the Sea.
324
Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958), United
Nations, Treaty Series, vol. 516, No. 7477, p. 205, at art. 5, para. 1. Note that article 8,
paragraph 1, of the United Nations Convention on the Law of the Sea provides for the exception
of archipelago States as provided for in Part IV.
325
States that are not parties to the United Nations Convention on the Law of the Sea but have
either signed or ratified the Convention on the Territorial Sea and the Contiguous Zone are:
Columbia (signed on 29 April 1958), Israel (ratified on 6 September 1961), the United States
(ratified on 12 April 1961) and the Bolivarian Republic of Venezuela (ratified on 15 August
1961) (status as of 5 February 2020).
326
Convention on the Territorial Sea and the Contiguous Zone, art. 15, a nd United Nations
Convention on the Law of the Sea art. 24, para. 1. According to the latter Convention, the duties
of the coastal State include imposing requirements that have the practical effect of denying or
impeding passage.
327
Convention on the Territorial Sea and the Contiguous Zone, art. 14, para. 4, and the United
Nations Convention on the Law of the Sea, art. 19, para. 1.

20-03200 57/80
A/CN.4/740

criminal jurisdiction, 328 including any investigation or arrest of a person on bo ard a

foreign vessel, 329 or exercise civil jurisdiction 330 or impose any levy for passage. 331 In
internal waters, the coastal State can exercise these rights over foreign ships and their
nationals.
154. As codified for the first time under article 21 of the United Nations Convention
on the Law of the Sea, the coastal State has jurisdiction to adopt laws that conform
with the Convention and international law for: the safety of navigation and the
regulation of maritime traffic; the protection of navigational aids a nd facilities and
other facilities or installations; the protection of cables and pipelines; the
conservation of the living resources of the sea; the prevention of infringement of
fisheries laws and regulations of the coastal State; the preservation of the environment
and the prevention, reduction and control of pollution; marine scientific research and
hydrographic survey; and the prevention of infringement of customs, fiscal, sanitary
or immigration laws of the coastal State (art. 21, para. 1). The coasta l State may also
establish traffic separation schemes in accordance with the conditions enumerated in
article 22, paragraph 3. Foreign vessels are required to abide by these laws and
regulations of the coastal State. Foreign submarines 332 and other underwater vehicles
must navigate on the surface and show their flag. 333
155. In the contiguous zone, which was first codified under the Convention on the
Territorial Sea and the Contiguous Zone 334 and then under the United Nations
Convention on the Law of the Sea (art. 33), the coastal State can exercise “control”
to “prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea” and to “punish infringement of the
above laws and regulations committed within its territory or territorial sea”.
156. Archipelagos have also been a long-standing subject matter of international law
dating back to the 1930 Hague Conference and were addressed by the Commission
but ultimately omitted from its final set of draft articles. 335 The 1958 Geneva
Conventions did not include any provisions on archipelagos. It was the United
Nations Convention on the Law of the Sea that for the first time recognized a separate
regime for archipelagos, including the status of the archipelagic State (art. 46 (a)) and
archipelagic straight baselines (art. 47). Accordingly, the breadth of the territorial sea,
the contiguous zone, the exclusive economic zone and the continental shelf are all
measured from the archipelagic straight baseline under article 48. The new zone of
__________________
328
The Convention on the Territorial Sea and Contiguous Zone did not adopt the language
suggested in the decision of the Permanent Court of International Justice in the Lotus case
(France v. Turkey) against the exclusive penal jurisdiction of the flag State. Case of the S.S.
“Lotus”, France v Turkey, Judgment No. 9, 7 September 1927, P.C.I.J. Reports 1928, Series A,
No. 10.
329
Convention on the Territorial Sea and the Contiguous Zone, art. 19, and United Nations
Convention on the Law of the Sea, art. 27. Both the Conventions provide exceptions as to when
the coastal State may exercise criminal jurisdiction on board a foreign ves sel in its territorial sea,
mutatis mutandis.
330
Convention on the Territorial Sea and the Contiguous Zone, art. 20; United Nations Convention
on the Law of the Sea, art. 28.
331
Convention on the Territorial Sea and the Contiguous Zone, art. 20 United Nations Convention
on the Law of the Sea, art. 26.
332
Convention on the Territorial Sea and the Contiguous Zone, art. 14, para. 6.
333
United Nations Convention on the Law of the Sea, art. 20.
334
Lloyd C. Fell, “Comment, Maritime contiguous zones”, Michigan Law Review, vol. 62 (1964),
pp. 848–864.
335
Draft articles concerning the law of the sea and commentaries thereto, Yearbook of the
International Law Commission 1956, vol. II, document A/3159, p. 256, at p. 270. For an
overview of the pre-1982 United Nations Convention on the Law of the Sea developments, see
also Sophia Kopela, Dependent Archipelagos in the Law of the Sea (Leiden, Martinus Nijhoff,
2013), pp. 11–24.

58/80 20-03200
 A/CN.4/740

archipelagic waters lies within the waters enclosed by the archipelagic baselines. 336
The archipelagic State exercises sovereignty over the archipelagic waters, regardless
of the depth or distance from the coast, the seabed, subsoil and airspace above (art. 49,
paras. 1 and 2). This means that the archipelagic State exercises sovereignty over a
very broad expanse of maritime space.
157. Archipelagic waters are governed by a special regime that has similarities and
differences from the regime of the territorial sea. 337 Similar to the territorial sea,
foreign ships are granted the right of innocent passage in archipelagic waters, which
can only be suspended if necessary for security reasons (art. 25, para. 3 (territorial
sea) and art. 52 (archipelagic waters)). However, there are also important differences
between the two regimes, relevant especially for third States.
158. The right of overflight over archipelagic waters is recognized (it does not exist
for innocent passage in the territorial sea). Moreover, the United Nations Convention
on the Law of the Sea recognized a new passage regime of archipelagic sea lanes and
air routes, which the archipelagic State may designate with the approval of
International Maritime Organization (art. 53). 338 Such passage, akin to transit passage
for straits used for international navigation in article 36 of the Convention, is defined
as “the rights of navigation and overflight in the normal mode solely for the purpose
of continuous, expeditious and unobstructed transit passage from one part of the high
seas or exclusive economic zone to another part of the high seas or exclusive
economic zone” (art. 53, para. 3). Foreign ships and aircraft are ensured the right of
archipelagic sea lanes and air routes passage (art. 53, para. 2). Importantly, even if
the archipelagic State does not designate archipelagic sea lane or air routes, foreign
States and, under certain circumstances, third States may still exercise such passage
rights in “routes normally used for international navigation” (art. 53, para. 12),
presumably referring to waters that were previously subject to the high seas passage.
Notably missing is any reference to overflight. 339 Indonesia is the first and only
archipelagic State that has established a system of partial archipelagic sea lanes under
the International Maritime Organization. 340
159. Third States also have certain non-navigational rights in the archipelagic waters
under paragraph 1 of article 51. The archipelagic State must respect existing
agreements and also respect traditional fishing rights and other legitimate activities
of the immediately adjacent neighbouring States.
160. The legal regime of the continental shelf was first codified in the Convention
on the Continental Shelf 341 and then subsequently in the United Nations Convention
__________________
336
Article 50 provides that the archipelagic State may draw closing lines to delimit its internal
waters as provided in articles 9, 10 and 11 of the Convention.
337
For a detailed overview see Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law
of the Sea (Dordrecht, Martinus Nijhoff, 1995).
338
Article 53, paragraph 9, refers to the “competent international organization” which is understood
to mean the International Maritime Organization. See Tullio Treves, “The law of the sea
“system” of institutions”, Max Planck Institute Year Book of International Law Online (1994),
p. 325, at pp. 328–329.
339
Munavvar, Ocean States … (see footnote 337 above), p. 171.
340
According to International Maritime Organization resolution MSC.71(69), adopted on 19 May
1998, a partial archipelagic sea lane is one “which does not meet the requirement to include all
normal passage routes and navigational channels as required by UNCLOS”. International
Maritime Organization resolution MSC.71(69) of 19 May 1998, “Adoption of amendments to the
general provisions on ships’ routeing (resolution A.572(14) as amended)”, annex, para. 2.2.2.
341
States that are not parties to the United Nations Convention on the Law of the Sea but have
either signed or ratified the Convention on the Continental Shelf are: Columbia (ratified on
8 January 1962), Israel (ratified on 6 September 1961), Peru (signed on 31 October 1958), the
United States (ratified on 12 April 1961) and Venezuela (Bolivarian Republic of) (ratified on
15 August 1961) (status as of 5 February 2020).

20-03200 59/80
A/CN.4/740

on the Law of the Sea. The coastal State exercises sovereign rights for the purpose of
exploring it and exploiting its natural resources, as codified in article 2 of the
Convention on the Continental Shelf, which is to be found mutatis mutandis in
article 77 of the United Nations Convention on the Law of the Sea. 342 The
International Court of Justice recognized these rights as an inherent rights of the
coastal State: “the most fundamental of all the rules of law relating to the continental
shelf”, “namely that the rights of the coastal State in respect of the area of continental
shelf … exist ipso facto and ab initio, by virtue of its sovereignty over the land, and
as an extension of it in an exercise of sovereign rights for the purpose of exploring
the seabed and exploiting its natural resources”. 343 The coastal State enjoys
sovereignty rights to explore and exploit its natural resources that includes mineral
and other non-living resources of the seabed and subsoil, as well as living resources
belonging to sedentary species (art. 73). 344
161. The exercise of sovereign rights over the continental shelf by the coastal State
is limited, however, by the exercise of rights of other States in the superjacent waters
and airspace above. 345 The Convention on the Continental Shelf recognizes the right
of the coastal State to construct and maintain or operate on the continental shelf
installations and other devices and establish safety zones together with certain
obligations (art. 5, paras. 2–8). The United Nations Convention on the Law of the Sea
goes further and, in article 80, applies mutatis mutandis the rights of artificial islands,
installations and structures on the continental shelf regarding the exclusive economic
zone to the continental shelf. In addition, the United Nations Convention on the Law
of the Sea gives the coastal State the exclusive right to authorize and regulate drilling
on the continental shelf for all purposes (art. 81). It also preserves the rights of the
coastal State to exploit the subsoil by means of tunnelling, irrespective of the depth
of water above the subsoil. 346 Certain rights of third States are also protected such as
the freedom to lay submarine cables and pipelines. 347
162. The United Nations Convention on the Law of the Sea introduced the possibility
for coastal States to extend their continental shelf beyond 200 nautical miles, if certain
conditions are met, including the requirement to make a submission to the
Commission on the Limits of the Continental Shelf (art. 76, para. 8). An important
difference between the continental shelf within the 200 nautical mile limit and that of
the extended continental shelf is the obligation of the coastal State to make payments
or contributions in kind to the authority of the Area in accordance with the conditions
outlined in article 82. However, developing States that are net importers of mineral
resources produced from the continental shelf are exempted from such obligation
(art. 82, para. 3).
163. The Area, defined as the seabed and ocean floor and subsoil that lies beyond the
limits of national jurisdiction (art. 1, para. 1 (1)), which in practice would mean the
maritime space that lies beyond the outer limits of the continental shelf of the coastal
State, is one of the significant innovations of the United Nations Convention on the
Law of the Sea. The Area and its resources are exclusively subject to the regime of

__________________
342
See footnote 146 above.
343
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, at p. 22, para. 19.
344
Article 77, paragraph 4, defines sedentary species as “organisms which, at the harvestable stage,
either are immobile on or under the sea-bed or are unable to move except in constant physical
contact with the sea-bed or the subsoil”.
345
Convention on the Continental Shelf, art. 3; United Nations Convention on the Law of the Sea,
art. 78, para. 1.
346
Art. 85: “This Part does not prejudice the right of the coastal State to exploit the subsoil by
means of tunnelling, irrespective of the depth of water above the subsoil.”
347
Convention on the Continental Shelf, art. 4, which provides that the coastal State “may not
impede the laying or maintenance of submarine cables or pipelines on the continental shelf”.

60/80 20-03200
 A/CN.4/740

the common heritage of mankind (art. 136). While the concept of the common
heritage of mankind was not new at the time it was adopted, the detailed regime under
Part XI (art. 137, para. 2) and the Agreement relating to the Implementation of
Part XI 348 were new to international law. The Area is a maritime zone over which no
State can claim sovereignty over any part nor appropriate any of its resources
(art. 137, para. 1). The meaning of “resources” is limited to “solid, liquid or gaseous
mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic
nodules” (art. 133). However, unlike the high seas, the common heritage of mankind
regime provides a detailed legal framework for decision-making, management and
the sharing of monetary benefits from activities in the Area.
164. A key aspect of the new regime was to take management and decision-making
authority from individual States, transferring all authority to the International Seabed
Authority, which is composed ipso facto of all State Parties to the United Nations
Convention on the Law of the Sea (art. 156, para. 2). Only the Authority, which is
composed of State Parties, can act on behalf of humankind (art. 137, para. 2). Part XI
further established the creation of the Enterprise – the organ of the International
Seabed Authority responsible for carrying out the activities in the Area (art. 170). The
common heritage of mankind regime in the Area includes a benefit -sharing system
implemented through a mechanism for the sharing of the net proceeds of mining
activities undertaken in the Area. 349 Subsequently, the common heritage of mankind
regime under Part XI was modified by the Agreement relating to the Implementation
of Part XI adopted in 1994. In particular, changes were made to the provisions of
Part XI on revenue-sharing and technology transfer between developed and
developing States. 350
165. Marine scientific research in the Area is also to be carried out exclusively for peaceful
purposes and for the benefit of humankind as a whole, in accordance with Part XIII of the
United Nations Convention on the Law of the Sea on marine scientific research (art. 143).
166. The exclusive economic zone is one of the new maritime zones created by the
United Nations Convention on the Law of the Sea. The concept of the exclusive
economic zone is closely related to the emergence of New International Economic
Order and the desire of developing countries in the then -emerging post-colonial
period to safeguard their rights over their natural resources, including marine
resources necessary for food security and development. 351 The principle of permanent
__________________
348
Agreement relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea of 10 December 1982 (New York, 28 July 1994), United Nations, Treaty Series,
vol. 1836, No. 31364), p. 3.
349
Art. 13 of annex III.
350
Robin Churchill and Vaughan Lowe, The Law of the Sea, 3rd ed. (Manchester, Manchester
University Press, 1999), p. 244. Other changes made included the system of financing of the
activities of the enterprise. Under the implementing agreement, States are no longer required to
finance mine sites or any activities of the enterprise (Agreement relating to the Implementation
of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, annex,
sect. 2, para. 3).
351
Rama Puri, “Evolution of the concept of exclusive economic zone in UNCLOS III: India’s
contribution”, Journal of the Indian Law Institute, vol. 22 (1980), pp. 497–525. The author
discusses the historical background of the exclusive economic zone. See also Jenny Grote
Stoutenburg, Disappearing Island States in International Law (2015), pp. 122–125. The genesis of
the exclusive economic zone came from Kenya during a meeting of the Asian -African Legal
Consultative Organization in 1971 (Asian-African Legal Consultative Organization, Report of the
12th Session held in Colombo from 18th to 27th January, 1971, p. 244), and was also taken up by
the Organization of African Unity (OAU Declaration on the issues of the law of the sea, Council
of Ministers resolution 289 (XIX), May 1973). See R.R. Churchill and A.V. Lowe, The Law of the
Sea, 2nd ed. (Manchester, Manchester University Press, 1988), p. 133; David Attard, The
Exclusive Economic Zone in International Law (Oxford, Clarendon Press, 1987), pp. 20–26; Maria
Gavouneli, Functional Jurisdiction in the Law of the Sea (Leiden, Martinus Nijhoff, 2007), p. 61.

20-03200 61/80
A/CN.4/740

sovereignty over natural resources was also part of the New International Economic
Order, which included the natural resources in the seabed and subsoil under the
national jurisdiction of States and in the superjacent waters as recognized by the
General Assembly. 352
167. In the exclusive economic zone, the coastal State has sovereign rights to explore,
exploit, conserve and manage the natural resources, both living and non -living, of the
waters superjacent to the seabed, the seabed and subsoil, establish and us e artificial
islands, installations and structures, protect and preserve the marine environment,
conduct marine scientific research and exercise other rights and duties provided u nder
the Convention (art. 56).
168. The coastal State also has the exclusive competence to determine the total
allowable catch of the living resources in its exclusive economic zone in accordance
with the conditions specified under the Convention (art. 61), as well as the obligation
to ensure that living resources in the exclusive economic zone are not endangered
through the taking of proper conservation and management measures based on the
best scientific evidence (art. 61, para. 2).
169. The Convention recognizes certain rights of third States and their nationals in
the exclusive economic zone of another State, in particular access to the surplus living
resources that the coastal State lacks the capacity to harvest (art. 62, para. 2). Third
States and their nationals, in addition, have the right of high seas navigation and
overflight, the right to lay submarine cables and pipelines, and the right to engage in
other internationally recognized lawful uses of the sea related to these freedoms as
provided under article 87 and other provisions of the Convention (art. 58, para. 1).
However, States must have due regard to the rights and duties of the coastal State and
are under a duty to comply with the laws and regulations thereof (art. 58, para. 3).
The obligations of flag States in relation to illegal, unreported and unregulated fishing
activities in the exclusive economic zone of another State was examined in detail by
the International Tribunal for the Law of the Sea in its advisory opinion in case
No. 21. 353
170. While foreign flagged vessels are entitled to exercise freedom of navigati on
rights in the exclusive economic zone of another State under article 58 of the United
Nations Convention on the Law of the Sea, the coastal State is also given some limited
prescriptive and enforcement rights that would not apply to the high seas. Under
paragraph 5 of article 211 of the Convention, the coastal State may adopt laws and
regulations for the prevention, reduction and control of pollution from vessels
conforming with and giving effect to generally accepted international rules and
standards established under the competent international organization (the
International Maritime Organization) or a general diplomatic conference. Moreover,
the coastal State is also given enforcement competence against foreign vessels for the
violation of such laws and regulations committed in its exclusive economic zone when
it is voluntarily in its port (art. 20, para. 1). In addition, in the case of clear grounds
for believing that a foreign vessel has violated the applicable international rules and
standards for the prevention, reduction and control of vessel sources of pollution or
the laws of the coastal State giving effect to such international rules and standards,
the coastal State may demand information from the vessel (art. 220, para. 3). Where
such violation results in or threatens substantial pollution of the marine environment
and the foreign vessel refused to provide the requested information or the information
provided is manifestly inconsistent with the evidence, the coastal State can undertake
__________________
352
General Assembly resolution 3016 (XXVII) of 18 December 1972 on permanent sovereignty over
natural resources of developing countries, para. 1.
353
Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory
Opinion, 2 April 2015, ITLOS Reports 2015, p. 4.

62/80 20-03200
 A/CN.4/740

physical inspection of the vessel (board it) (art. 220, para. 5). Furthermore, the coastal
State can actually detain a foreign flagged vessel where there is clear objective
evidence that such violation is resulting in a discharge causing major damage or threat
of major damage to the coastline or other interests of the coastal State (art. 220,
para. 6). None of these rights would be available to the coastal State against foreign
flagged vessels in the high seas.
171. The principle of the freedom of the seas is embedd ed in the history of modern
international law and the famous treatise of Hugo Grotius Mare Liberum. 354 It has
been codified in both the Convention on the High Seas 355 and the United Nations
Convention on the Law of the Sea. The scope of freedom of navigation h as evolved
over time. 356 Both the Convention on the High Seas (art. 2) and the United Nations
Convention on the Law of the Sea (art. 87, para. 1) provide for the freedom of
navigation, overflight, fishing and the laying of submarine cables and pipelines. In
addition, the latter expressly lists the freedom to construct artificial islands and other
installations (art. 87, para. 1 (d)), as well as the freedom to conduct scientific research
subject to Parts VI and XIII of the Convention (art. 87, para. 1 (f)). Th e exercise by
States of the right of freedom of the high seas is subject to limitations under both the
1958 Conventions and 1982 Convention. Such freedoms must be exercised with
“reasonable regard” or “due regard” for the interests of other States and for the rights
under this Convention with respect to activities in the Area. 357

B. Sea-level rise and sovereign rights and jurisdiction of the coastal

State and its nationals, and the rights and obligations of third
States and their nationals in maritime zones

172. There are different situations in which sea-level rise can affect maritime
entitlements. One is in the ambulatory baseline scenario, as discussed in Part Two,
where the baseline shifts landward due to the inundation of base points. In that case,
the maritime zones will also shift landward. Another situation is when a maritime
feature, in particular a fully entitled island under article 121 disappears in part or
entirely. 358 In that case, maritime entitlements may be reduced or completely
disappear. The extent of change or loss of maritime entitlements will vary, but in some
cases could be significant, especially in the case of baselines drawn from small island
features susceptible to disappearing due to rising sea levels. For example, in the case
of the loss of an island that is located 24 nautical miles from a baseline, the territorial
sea could decrease by 1500 km 2. 359
173. As outlined above in Part Two, any shifting landward of established maritime
zones would mean that part of the territorial sea would become part of the coastal
__________________
354
Hugo Grotius (de Groot), Mare Liberum (1609).
355
States that are not parties to the United Nations Convention on the Law of the Sea, but have
either signed or ratified the Convention on the Territorial Sea and the Contiguous Zone are:
Columbia (signed on 29 April 1958), Israel (ratified on 6 September 1961), the United Stat es
(ratified 12 April 1961) and the Bolivarian Republic of Venezuela (ratified on 15 August 1961)
(status as of 5 February 2020).
356
For an overview of the evolution of the regime of high seas freedoms, see Nilüfer Oral,
“Freedom of the high seas or protection of the marine environment? A false dichotomy”, in Harry
N. Scheiber, Nilüfer Oral and Moon-Sang Kwon (eds.), The 50-Year Legacy and Emerging Issues
for the Years Ahead (Leiden, Brill, 2018), pp. 331–353.
357
Convention on the High Seas, art. 2; United Nations Convention on the Law of the Sea, art. 87,
para. 2.
358
Sefrioui, “Adapting to sea-level rise” (see footnote 148 above).
359
A.H.A. Soons, “An ocean under stress: Climate change and the law of the sea”: Addendum to
“Climate Change: Options and duties under international law”, Mededellingen van de Koninklijke
Nederlandse Verenigling voor International Recht, vol. 145 (2018), pp. 71–120, at p. 101.

20-03200 63/80
A/CN.4/740

State’s internal waters, part of the territorial sea would become part of the exclusive
economic zone and part of the exclusive economic zone would become part of the
high seas. The status of the continental shelf and the extended continental shelf would
be preserved if the conditions of paragraph 9 of article 76 have been fulfilled.
174. The shifting of the legal classification of a maritime zone wo uld directly impact
the associated sovereignty and jurisdiction rights of the coastal State and those of
third States in these zones as outlined below.
175. The transition of part of the territorial sea to part of the internal waters would
benefit the coastal State by according it complete prescriptive and enforcement
jurisdiction over foreign flagged vessels, including rights to exercise criminal and civil
jurisdiction. The rights of the coastal State in the seabed and subsoil in the territorial
sea would not be altered. Due attention should be paid to the application of article 8,
paragraph 2, of the United Nations Convention on the Law of the Sea, which is an
indication that the Convention was drafted by taking into account the concern of
preserving the regimes of maritime zones, and thus the stability of the law of the sea.
176. Foreign flagged vessels would lose their innocent passage rights. Overflight
rights, however, would not be affected as there is no innocent passage right of
overflight for foreign aircraft. By contrast, any change to the baseline that would
transform part of the territorial sea to the exclusive economic zone could impact the
regime of the seabed and subsoil, making them part of the continental shelf of the
coastal State. In that case, the main beneficiary would be third States and their
nationals, who would be entitled to lay underwater cables and pipelines subject to the
conditions laid out in article 79 of the United Nations Convention on the Law of the
Sea, which in the territorial sea required the consent of the coastal State.
177. There is also the possibility that part of the territorial sea could become part of
the exclusive economic zone. In that case, the coastal State would have significantly
restricted sovereignty rights and jurisdiction over navigation of third States and their
nationals, losing the rights enumerated under article 21 of the United Nations
Convention on the Law of the Sea, including the right to establish sea lanes and traffic
separation schemes. By contrast, third States and their nationals would be entitled to
exercise the rights of freedom of navigation, although subject to the limitations
imposed under the United Nations Convention on the Law of the Sea in the exclusive
economic zone and case law.
178. If the outer boundaries of the continental shelf were to shift landward as a result
of a change in the baseline from which the breadth of the territorial sea is measured
under the Convention, this could have consequences for the coastal State in the
exercise of its rights to explore and exploit natural resources. However, that scenario
seems unlikely in the light of paragraph 9 of article 76 of the Convention providing
for permanency, as discussed in Part Two. Furthermore, an important reason for the
insertion of paragraph 9 in article 76 was to ensure the certainty of the boundary of
the Area 360 and protect the costly investments by States in their continental shelves. 361
However, the question is whether islands that disappear due to sea-level rise or
become rocks under paragraph 3 of article 121 of the Convention, as discussed in Part
Three above, could lose their entitlement to a continental shelf. If so, this would mean
that large swathes of continental shelf would become part of the Area and subject to
the common heritage of mankind regime.
179. The shifting of an area of continental shelf over which a coastal State exercised
sovereign rights and jurisdiction to the regime of the Area under the Convention
would have a significant impact for third States and their nationals. Offshore licensing
__________________
360
Ibid., p. 100.
361
Ibid.

64/80 20-03200
 A/CN.4/740

jurisdiction for exploration and exploitation of natural resources, in particular

non-living resources, in the continental shelf that exclusively belonged to the coastal
State could be extinguished. This could call into question the continuation of existing
agreements with third States and their nationals. In all cases, the situation would be
one of legal and economic uncertainty. Moreover, all State parties to the Convention
would be subject to the regime of the common heritage of mankind.
180. The shifting of part of the exclusive economic zone to the high seas would bring
about significant changes to the sovereign rights and jurisdiction of the coastal State
and its nationals. In particular, such change could have major consequences
depending on the degree of reduction of maritime entitlements. According to scholars,
the potential loss in area could be, at the extreme, as much as 431,000 km 2 in the case
of the loss of an island located more than 400 nautical miles away, or 215,000 km 2
loss of marine space if the island was located 200 nautical miles from the remaining
baseline. 362 Many small island developing States and other developing countries with
low-lying coastal areas susceptible to sea-level rise could find themselves in that
situation.
181. The change of the exclusive economic zone of a coastal State to the regime of
the high seas would mean that the coastal State would lose an array of significant
sovereign rights to explore, exploit, conserve and manage valuable natural resources.
The impact to the coastal State is exemplified in relation to fisheries activities. For
example, under article 62 of the United Nations Convention on the Law of the Sea,
the coastal State is required to determine its capacity to harvest the living resources
of the exclusive economic zone. In the case it cannot harvest the entire allowable
catch, other States must be given access to the surplus of the allowable catch. Many
developing States obtain important revenue from such fisheries acce ss agreements.
For example, it is estimated that the independent Pacific Island Countries total access
fee payments in 2014 amounted to approximately US$ 340,285,572. 363 Overall,
fisheries exports account for 94.7 per cent of total exports of the Federated S tates of
Micronesia, 81.9 per cent for the Cook Islands, 73 per cent for Palau, 61.5 per cent
for Samoa, 23.8 per cent for Tonga, and 20 per cent for Solomon Islands. 364 Likewise,
other places, such as African coastal States, derive important economic benefi ts from
fisheries access agreements, especially with the European Union. The European
Union has concluded sustainable fisheries partnership agreements with 15 African
States. 365
182. In the exclusive economic zone, the coastal State also exercises important
prescriptive and enforcement jurisdiction for the conservation of natural resources,
and the protection and preservation of the marine environment, which would be lost
if parts, or all, of the exclusive economic zone were to become high seas. For example,
the International Tribunal for the Law of the Sea in the Virginia G. prompt release
case found that the coastal State could regulate bunkering activities in its exclusive
economic zone that would otherwise be part of the freedom of navigation under

__________________
362
Ibid., p. 101.
363
Robert Gillett and Mele Ikatonga Tauati, “Fisheries of the Pacific Islands: Regional and national
information”, FAO Fisheries and Aquaculture Technical Paper No. 625 (Apia, 2018), p p. 36–37.
Available at http://www.fao.org/3/I9297EN/i9297en.pdf.
364
Sustainability Impact Assessment (SIA) of the EU-ACP Economic Partnership Agreements –
Pacific Region: Fisheries (May 2007). Available at https://trade.ec.europa.eu/doclib/docs/
2007/march/tradoc_133938.pdf, p. 146.
365
Eric Pichon, “The African Union’s blue strategy”, European Parliamentary Research Service
(March 2019). Available at www.europarl.europa.eu/RegData/etudes/ATAG/2019/635574/
EPRS_ATA(2019)635574_EN.pdf.

20-03200 65/80
A/CN.4/740

article 56, paragraph 1, if the laws were related to the conservation and management
of marine living resources under article 56 of the Convention. 366
183. There is also a growing number of marine protected areas that have been
established in exclusive economic zones. One example from the South Pacific, an
area especially at risk from sea-level rise, is the Palau National Marine Sanctuary,
designated by Palau in 2015, that took effect on 1 January 2020 and covers 80 per
cent of its national waters. All extractive activities such as fishing and mining are
prohibited. 367 In 2017, the Federated States of Micronesia placed approximately
10 per cent of its 200-mile exclusive economic zone, an area that covers more than
1.3 million square miles, under conservation measures. 368 In 2017 the Cook Islands
established Marae Moana – one of the largest marine reserve areas in the world. 369 In
2006, Kiribati established the Phoenix Islands Protected Area, which constitutes
11.34 per cent of its exclusive economic zone. It was inscribed o n the World Heritage
List in 2010. 370 A shift of any part of these areas to the high seas would mean that the
coastal State would not be able to maintain the integrity of these marine protected
areas and the responsibility to protect and protect the marine e nvironment would fall
to the exclusive jurisdiction of the flag State. 371
184. In the exclusive economic zone, the coastal State also has jurisdiction to
establish and use artificial islands, installations and structures (arts. 56 and 60) that
includes the exclusive right to construct, authorize and regulate the construction,
operation and use of artificial islands, installations and structures, as well as with
regard to customs, fiscal, health, safety and immigration laws and regulations.
Moreover, according to the Convention, the coastal State is entitled to establish safety
zones around such artificial islands, installations and structures, not to exceed a
distance of 500 metres around them (art. 60, para. 5).
185. In addition, in those areas that become part of the high seas, the coastal State
would lose certain regulatory and enforcement rights against foreign vessels that it
enjoyed to prevent, reduce and control vessel sources of pollution in its exclusive
economic zone as recognized under articles 211 and 220 of the Convention and
outlined in paragraph 170 above.
186. The transformation of the exclusive economic zone of a coastal State to high
seas would benefit third States and their nationals, who would be able to exercise
freedoms of the high seas, including freedom to fish and exploit other natural
__________________
366
M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, p. 4, at p. 69,
para. 217. The Tribunal stated: “The Tribunal is of the view that the regulation by a coastal State
of bunkering of foreign vessels fishing in its exclusive economic zone is among those measures
which the coastal State may take in its exclusive economic zone to conserve and manage its
living resources under article 56 of the Convention read together with article 62, paragraph 4, of
the Convention. This view is also confirmed by State practice which has developed after the
adoption of the Convention.”
367
Palau, Marine Sanctuary Act, RPPL No. 9-49 2015. Available at www.paclii.org/cgi-bin/sinodisp/
pw/legis/num_act/msrn9492015252/msrn9492015252.html?stem=&synonyms=&query=sanctuary.
368
Federated States of Micronesia, Congressional Act No. 19-167 to amend title 24 of the Code of
the Federated States of Micronesia, 18 April 2017. Available at www.paclii.org/fm/indices/legis/
public_laws_19.html. See also Atlas of Marine Protection at www.mpatlas.org/mpa/sites/68808202/.
369
Cook Islands, Marae Moana Act 2017 (No. 10 of 2017). The exclusive economic zone measures
408,250 km 2 (157,630 square miles). See Atlas of Marine Protection at http://mpatlas.org/mpa/
sites/7704395/.
370
Decision 35 COM 8B.60 (2010) of the World Heritage Committee of the United Nations
Educational, Scientific and Cultural Organization. See https://whc.unesco.org/en/list/1325/.
371
Subject to the possibility that States will adopt an internationally legally binding instrument on
the conservation and sustainable use of biological diversity in areas beyond national jurisdiction,
currently under negotiation pursuant to General Assembly resolution 72/249 of 24 December
2017.

66/80 20-03200
 A/CN.4/740

resources. Likewise, foreign vessels would no longer have to comply with the rules
and regulations adopted by the coastal States under articles 211 and possible
enforcement measures under article 220 of the Convention. However, such freedoms
would be subject to other obligations under existing regional and international
agreements, as well as obligations under international law.
187. Rising sea levels could affect existing archipelagic waters that have bee n drawn
from archipelagic straight baselines and a complicated calculation of land -to-water
ratio measured from the islands and drying reefs. 372 If an archipelagic State were to
lose the right to use archipelagic straight baselines, this would mean the possi ble
reduction or even loss of its archipelagic waters. The consequences would vary
depending on the archipelago, but in general this could require the redrawing of
baselines around individual islands using the normal low -water line under article 5 of
the Convention, reefs under article 6 or a straight baseline under article 7 in the case
of groups or fringes of islands.
188. Maldives has raised this concern in its submission to the Commission stating
that having to redraw archipelagic baselines due to base points being submerged could
result in a significant decrease in the size of its maritime zones. 373 Kiribati is another
example of an archipelagic State at risk. It took some twenty years to construct the
limited archipelagic baselines around its capital Tarawa, but sea-level rise could
inundate drying reefs used in the archipelagic State’s calculation. 374 There are some
twenty-two States that have claimed such archipelagic status and use archipelagic
straight baselines. 375
189. With regard to the impact on third States and their nationals, traditional rights,
those by prior agreement and other legitimate interests enjoyed by immediately
adjacent neighbouring States would not be impacted, as these would have been
preserved in accordance with paragraph 6 of article 47. However, in the case of
archipelagic waters became areas of exclusive economic zones or high seas, an
entirely different regime would apply for the navigational rights of foreign flagged
ships and aircraft. Third States and their nationals would bene fit from freedom of
navigation and overflight rights in those areas that were once archipelagic waters.
190. In concluding the present Part, the following observations of a preliminary
nature can be made:
(a) With the exception of the situation where part of the territorial sea becomes
part of the internal waters, the landward movement of the baseline and the outer limits
of maritime zones would result in the coastal State losing sovereignty and jurisdiction
rights over regulating the navigation of third States and their nationals;
(b) If the territorial sea becomes part of the exclusive economic zone, the
coastal State would have significantly restricted sovereignty rights and jurisdiction
__________________
372
Final report of the Committee on International Law and Sea Level Rise (see footnote 119 above),
p. 881.
373
Submission of Maldives (see footnote 164 above), p, 14.
374
Kaye, “The Law of the Sea Convention and sea level rise after the South China Sea Arbitration”
(see footnote 149 above), p. 435 (citing Victor Prescott and Clive Schofield, Maritime Political
Boundaries of the World, 2nd ed. (Leiden, Martinus Nijhoff, 2004), p. 176).
375
For an analysis of some claims (United States State Department), see Kevin Baumert and Brian
Melchoir, “The Practice of archipelagic States: a study of studies”, Ocean Development and
International Law, vol. 46 (2015), pp. 60–80. The States are Antigua and Barbuda, the Bahamas,
Cabo Verde, the Comoros, the Dominican Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati,
Maldives, the Marshall Islands, Mauritius, Papua New Guinea, the Philippines, Saint Vincent and
the Grenadines, Sao Tome and Principe, Seychelles, Solomon Islands, Trinidad and Tobago,
Tuvalu and Vanuatu. See final report of the Committee on Baselines under the International Law
of the Sea (see footnote 116 above), pp. 188–191, appendix 3.

20-03200 67/80
A/CN.4/740

over navigation of third States and their nationals, including the right to establish sea
lanes and traffic separation schemes. The practical consequences would mean that the
coastal State would have to modify internal rules and regulations. The coastal State
would essentially lose the ability to take measures to provide for safety of navigation
in areas in which it was previously able to do so. However, third States and their
nationals would be entitled to exercise the rights of freedom of navigation, but subject
to the limitations imposed under the United Nations Convention on the Law of the
Sea and resulting from the case law;
(c) The loss of maritime entitlements related to the continental shelf in either
the case where the conditions of permanency have not been met or in the case of the
complete inundation of a fully entitled island would result in significant consequences
to the coastal State should the respective area become part of the Area and subject to
the regime of the common heritage of mankind. This could mean the loss of valuable
offshore revenue from natural resources that are being exploited, and call into
question the continuation of contracts with private companies in relation to the
exploration and/or exploitation of natural resources. Likewise, the existing interests
and rights of third States and their nationals would be called into question;
(d) Without question, the greatest loss in terms of rights of the coastal State
and its nationals comes from the loss of maritime entitlements related to the exclusive
economic zone should it become part of the high seas. In particular, developing States
that derive important revenue from the natural resources, in particular living
resources, in their exclusive economic zones could lose at least parts of this. In some
cases, even a relatively small loss could have important developmental
consequences. 376 Moreover, questions arise as to the status of fisheries access
agreements for surplus fishing capacity of developing States should such agreements
cover areas that become part of the high seas;
(e) The process of technically and legislatively establishing maritime zones
takes time and comes with costs. This means that any subsequent changes to baselines
due to sea-level rise would require the coastal State to expend additional time and
money for technically and legislatively redrawing zones. This process could be
further complicated in the case of having to renegotiate boundary agreements with
third States, which often take a lot of time to negotiate; 377
(f) In addition, a question arises as to what would be the effe ct on other
agreements, such as licences for other economic activities in the exclusive economic
zone, such as offshore windfarms or for fisheries access agreements in the exclusive
economic zone. Would such agreements continue? Would they be subject to
renegotiation? Would third States automatically be entitled to exercise their rights in
the transformed zone? The issue of pacta sunt servanda has been discussed in Part
Two;
(g) Overall, third States stand to benefit from these changes, but at the expense
of the coastal State. As stated throughout the present issues paper and expressed by
many States, such changes in maritime entitlements do bring the risk of creating
uncertainty, instability and the possibility of disputes. Consequently, in order respond
__________________
376
Samantha D. Farqhar, “When overfishing leads to terrorism: the case of Somalia”, Journal of
International Issues, vol. 21 (2017), pp. 68–77. It should be borne in mind that the emergence of
piracy off the coast of Somalia is in part attributed to the loss owing to illegal fishing of fishing
resources for local fishermen, who then turned to piracy.
377
For example, the Agreement between the Philippines and Indonesia concerning the Delimitation
of the Exclusive Economic Zone Boundary (to delimit their overlapping exclusive economic
zone boundaries), ratified in 2019, took twenty years of negotiation. The agreement was signed
23 May 2014 and ratified by both States on 1 August 2019. Philippines, Senate Resolution
No. 1048, adopted on 3 June 2019.

68/80 20-03200
 A/CN.4/740

adequately to the imperative need of preserving the stability and predictability, as

well as maintaining the existing balance between the rights of the coastal State and
the rights of third States, the best option would be the preservation of maritime
entitlements.

Part Three: Possible legal effects of sea-level rise on the

status of islands, including rocks, and on the maritime
entitlements of a coastal State with fringing islands, and
legal status of artificial islands, reclamation or island
fortification activities as a response/adaptive measures to
sea-level rise
I. Possible legal effects of sea-level rise on the status of islands,
including rocks, and on the maritime entitlements of a
coastal State with fringing islands
191. The role, status and entitlements of low-tide elevations, islands and other
offshore features, including artificial islands, have been a long -standing subject of
international law. 378 During the 1930 Hague Codification Conference, the subject
matter of islands was discussed alongside the key issue of the breadth of the territorial
sea. 379 While the Conference failed to agree upon the breadth of the territorial sea, it
did adopt a definition of an island that would remain influential until present times.
The definition entailed three elements: (a) naturally formed area of land;
(b) surrounded by water; and (c) permanently above the high tide mark. 380 However,
there was no agreement on any of the entitlements of an island to a territorial sea. 381
The 1956 draft articles of the Commission had qualified the third element of the
definition with “in normal circumstances is permanently above high-tide mark”. 382

__________________
378
Gilbert Gidel, Le droit international public de la mer: le temps de paix (Etablissements
Mellottée, Châteauroux, 1932–1934); Clive R. Symmons, The Maritime Zones of Islands in
International Law (The Hague, Martinus Nijhoff 1979; Janusz Symonides “The legal status of
islands in the new law of the sea”, Hugo Caminos (ed.), Law of the Sea (Taylor and Francis,
2001), pp. 115–134. For a legislative history of Part VIII of the United Nations Convention on
the Law of the Sea, see The Law of the Sea: Régime of Islands – Legislative History of Part VIII
(Article 121) of the United Nations Convention on the Law of the Sea (United Nations
publication, Sales No. E.87.V.11). See also Barbara Kwiatkowski and Alfred H.A. Soons,
“Entitlement to maritime areas of rocks which cannot sustain human habitation or economic l ife
of their own”, Netherlands Yearbook of International Law, vol. 21 (1990), pp. 139–181; Murphy,
International Law Relating to Islands (footnote 239 above).
379
See “Conference on the Codification of International Law, 13 March 1930, The Hague”, American
Journal of International Law, vol. 24 (1930), Supplement: Official Documents, pp. 34 ff., Point V
(Territorial waters around islands) and Point VI (Definition of an island).
380
Ibid.
381
Ibid.
382
Draft art. 11 of the draft articles concerning the law of the sea, Yearbook of the International Law
Commission 1956, vol. II, document A/3159, p. 256, at p. 257 (emphasis added). For a
comprehensive overview of islands under the law of the sea, see Murphy, International Law
Relating to Islands (footnote 239 above).

20-03200 69/80
A/CN.4/740

However, this was not adopted by either the 1958 Convention or the 1982 Convention,
both of which retained the definition of the 1930 Hague Codification conference. 383
192. Under the Convention on the Territorial Sea and the Contiguous Zone, islands
generated a territorial sea (art. 10, para. 2) 384 and, under the Convention on the
Continental Shelf, a continental shelf (art. 1). During the Third United Nations
Conference on the Law of the Sea, there were differences of views, however, as to
whether islands should be entitled to the full slate of maritime entitlements. 385 Gidel,
during the 1930 Hague Codification Conference, had rejected any blanket entitlement
of an island to a territorial sea, expressing the view that any such entitlement should
be based on some criterion of occupation by humans of the island. His view was
ultimately reflected in paragraph 3 of article 121 of the United Nations Convention
on the Law of the Sea which provides that “[r]ocks which cannot sustain human
habitation or economic life of their own” are precluded from having an exclusive
economic zone or continental shelf. That provision created a new category of islands
referred to as “rocks”, that did not exist previously under t he 1958 Geneva
Conventions. 386
193. Article 121 of the Convention essentially creates two categories of islands: those
fully entitled to all maritime entitlements (para. 2), and rocks that are not entitled to
an exclusive economic zone or continental shelf, implicitly entitled solely to a
territorial sea and possibly a contiguous zone (para. 3). The key distinguishing
elements are whether the feature can “sustain human habitation or economic life of
their own”. These two elements have been the subject of muc h scholarly debate. 387
__________________
383
Convention on the Territorial Sea and the Contiguous Zone art. 10, para. 1; United Nations
Convention on the Law of the Sea, art. 121, para. 1. The reference to “under normal
circumstances” was removed at the request of the delegation of the United States during the
Third United Nations Conference on the Law of the Sea. See Symmons, The Maritime Zones of
Islands in International Law (footnote 378 above), p. 43 (cited by Prescott and Schofield,
Maritime Political Boundaries of the World (see footnote 374 above), p. 60).
384
The 1956 draft articles concerning the law of the sea adopted by the Commission also recognized
islands as having territorial seas. Draft art. 10, Yearbook of the International Law Commission
1956, vol. II, document A/3159, p. 256, at p. 257.
385
Murphy, International Law Relating to Islands (footnote 239 above), pp. 56–61; Prescott and
Schofield, Maritime Political Boundaries of the World (see footnote 374 above), pp. 61–81.
386
Draft article 11 of the Commission’s draft articles concernin g the law of the sea refers to “drying
rocks and drying shoals” for purposes of serving as base points only. Yearbook of the
Commission on International Law 1956, vol. II, document A/3159, p. 256, at p. 257. See Murphy,
International Law Relating to Islands (footnote 239 above), pp. 56–57, where the author explains
that this text remained unchanged since its first appearance in the 1975 negotiating text. For a
review of different positions of States during the Third United Nations Conference on the Law of
the Sea, see Prescott and Schofield, Maritime Political Boundaries of the World (see footnote 374
above), pp. 62–75.
387
For example, Jon M. Van Dyke and Robert A. Brooks, “Uninhabited islands: their impact on the
ownership of the oceans’ resources”, Ocean Development and International Law, vol. 12 (1983),
pp. 265–300, at p. 271; Jonathan I. Charney, “Rocks that cannot sustain human habitation”,
American Journal of International Law, vol. 93 (1999), pp. 863–878; Prescott and Schofield,
Maritime Political Boundaries of the World (see footnote 374 above), pp. 61–63; Kwiatkowski
and Soons, “Entitlement to maritime areas of rocks which cannot sustain human habitation or
economic life of their own” (see footnote 378 above); Clive Schofield, “The trouble with islands:
the definition and role of islands and rocks in maritime boundary delimitation”, Seoung -Yong
Hong and Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the
Law of the Sea (Martinus Nijhoff, 2009), pp. 19–37; R. Kolb, “L’Interprétation de l’article 121,
paragraphe 3, de la Convention de Montego Bay sur le Droit de la Mer : les “rochers qui ne
prêtent pas à l’habitation humaine ou à une vie économique propre ...”, Annuaire Français de
Droit International, vol. 40 (1994), pp. 876–909; Yann-huei Song, “Okinotorishima: A ‘rock’ or
an ‘island’? Recent maritime boundary controversy between Japan and Taiwan/China”, Hong and
Van Dyke, Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (see
above), pp. 145–175.

70/80 20-03200
 A/CN.4/740

During the Third United Nations Conference on the Law of the Sea, States also held
differing views with regard to the entitlements of islands and paragraph 3 of
article 121. 388 Some States supported expansive entitlements and others were
concerned about small insular features generating excessive maritime space. 389
194. The diversity of State practice on the classification of features as either “rocks”
or “islands” raises issues concerning the status of fully entitled islands that could
become uninhabitable due to the consequences of sea-level rise. While the
classification of these insular features is a matter of some sensitivity, nonetheless, this
area of controversy needs to be identified for the purposes of the present issues paper.
If there is no common understanding among States as to which features get full
maritime entitlements and which do not, this state of practice raises questions as to
whether a fully entitled island that has lost territory could be deemed to become a
rock as defined under paragraph 3. The present paper does not intend to take any
position concerning the status of any offshore feature, but only seeks to examine
existing State practice for the purposes of the topic at hand, i.e. the legal effects of
sea-level rise. The following are examples of small and uninhabited maritime features
over which States’ positions differ as to whether the feature is a rock with limited
entitlements or an island entitled to all maritime zones.
195. There are several notable examples of State practice reflecting differing
positions of States. 390 The use by Japan of Okinotorishima or Okinotori as a base point
for its claim to an extended continental shelf also prompted reactions. 391 In the
delimitation case between Malta and Libya, the latter claimed the feature Filfla was
a rock 392 and Malta claimed it was an island. 393 In the Maritime Delimitation in the
Black Sea case, Romania claimed Serpent’s Island to be a rock under article 121,

__________________
388
For example, Australia, Brazil, Ecuador, France, Greece, the Islamic Republic of Iran, Japan,
Portugal, the United Kingdom and the Bolivarian Republic of Venezuela supported the deletion
of paragraph 3. Yann-huei Song, “The application of article 121 of the Law of the Sea
Convention to the selected geographical features situated in the Pacific Ocean”, Chinese Journal
of International Law, vol. 9 (2010), pp. 663. See also Satya Nandan, C.B.E., and Shabtai
Rosenne (eds.), United Nations Convention on the Law of the Sea: A Commentary, vol. III
(1995), pp. 321-339.
389
See Murphy, International Law Relating to Islands (footnote 239 above), pp 57–62. See also
Charney, “Rocks that cannot sustain human habitation” (footnote 38 7 above), p. 866.
390
Clive Schofield, “The Trouble with Islands: The Definition and Role of Islands and Rocks in
Maritime Boundary Delimitation”, Seoung-Yong Hong and Jon M. Van Dyke (eds), Maritime
Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff, 2009),
pp. 19–37.
391
China in its two notes verbales to the Secretary-General, the first dated 6 February 2009 and the
second 3 August 2011, expressed its position that Oki-No-Tori is a rock that cannot sustain
human habitation or have an economic life of its own under article 121 (3) of the Convention.
Note verbale, Permanent Mission of the People’s Republic of China to the United Nations,
notification regarding Japan’s submission on the continental shelf beyond 200 nautical miles to
the Commission on the Limits of the Continental Shelf, No. CML/2/2009, available at
www.un.org/depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf ; note verbale,
Permanent Mission of the People’s Republic of China to the United Nations, notification
regarding Japan’s submission on the continental shelf beyond 200 nautical miles to the
Commission on the Limits of the Continental Shelf, No. CML/59/2011, available at www.un.org/
Depts/los/clcs_new/submissions_files/jpn08/chn_3aug11_e.pdf.
392
Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J.
Reports 1984, p. 3, Memorial of the Libyan Arab Jamahiriya, 26 April 1983, available at
https://www.icj-cij.org/files/case-related/68/9567.pdf; Memorial of Malta, 26 April 1983,
available at https://www.icj-cij.org/files/case-related/68/9569.pdf.
393
See also the declaration of Malta when ratifying the 1982 United Nations Convention on the Law
of the Sea describing Filfla as an island for the purposes of drawing a baseline. Available at
https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI -6&chapter=
21&Temp=mtdsg3&clang=_en#21.

20-03200 71/80
A/CN.4/740

paragraph 3, whereas Ukraine claimed it was a full-fledged island. 394 For some thirty
years, India and Bangladesh disputed the sovereignty over New Moore Island/South
Talpatti, a tiny rock island in the Bay of Bengal, but in 2010 it disappeared as a result
of sea-level rise. 395 Mexico strongly opposed the exclusive economic zone established
by France around Clipperton Island, a small uninhabited island. 396
196. Of further note is the interpretative declaration that the Islamic Republic of Iran
made when signing the United Nations Convention on the Law of the Sea that
Islets situated in enclosed and semi-enclosed seas which potentially can sustain
human habitation or economic life of their own, but due to climatic conditions,
resource restriction or other limitations, have not yet been put to development,
fall within the provisions of paragraph 2 of article 121 concerning “Regime of
Islands”, and have, therefore, full effect in boundary delimitation of various
maritime zones of the interested coastal States. 397
197. While there have been a number of international cases addr essing the role of
islands, islets and low-tide features for purposes of determining sovereignty or for
determining maritime boundaries, there has been a dearth of cases clarifying the
meaning of article 121 and, in particular, paragraph 3 thereof. Article 121,
paragraph 3, was first invoked in a case by Iceland against the attempt by Norway to
declare an exclusive economic zone and continental shelf of the uninhabited Jan
Mayen Island. 398 Iceland eventually withdrew its objection and the Conciliation
Commission expressed its opinion that article 121 reflected the present status of
international law. 399
198. Other notable cases that have skirted the issue include the Libyan Arab
Jamahiriya/Malta case where the International Court of Justice described the feature
Filfla as an “uninhabited islet” and excluded its use for determining the baseline
without indicating its status under article 121. 400 The Qatar v. Bahrain case concerned
the status of Qit’at Jaradah, a very small maritime feature where the International
Court of Justice found that it met the definition of article 121, paragraph 2, which the
Court stated was customary international law, and was entitled to a territorial sea, but

__________________
394
Maritime Delimitation in the Black Sea (footnote 239 above), Counter-memorial submitted by
Ukraine, 19 May 2006, pp. 180 ff.
395
Associated Press, “Island claimed by India and Bangladesh sinks below waves”, The Guardian,
24 March 2010, Available at www.theguardian.com/world/cif-green/2010/mar/24/india-
bangladesh-sea-levels.
396
Yann-huei Song, “The application of Article 121 of the Law of the Sea Convention to the
selected geographical features situated in the Pacific Ocean”, Chinese Journal of International
Law, vol. 9 (2010), pp. 663 ff, at pp. 667–668.
397
However, the Islamic Republic of Iran has not ratified the United Nations Convention on the Law
of the Sea. See https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI -
6&chapter=21&Temp=mtdsg3&clang=_en.
398
Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen: Report
and recommendations to the governments of Iceland and Norway, decisi on of 1 June 1981,
United Nations, Reports of International Arbitral Awards, vol. XXVII, p. 1. The Commission
based its view on the informal negotiation text as the Convention had not been adopted. See
Robin R. Churchill, “Claims to maritime zones in the Arctic – Law of the sea normality or polar
particularity”, Alex G. Oude Elferink and Donald R. Rothwell (eds.), The Law of the Sea and
Polar Maritime Delimitation and Jurisdiction (The Hague, Martinus Nijhoff, 2001), p. 120.
399
Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen: Report
and recommendations to the governments of Iceland and Norway, Decision of June 1981 (see
previous footnote), p. 10. The Commission concluded that Jan Mayen was an island entitle d to
all maritime zones.
400
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p. 13, at
p. 48, para. 64. The Court did, however, take it into account as a special circumstance for
purposes of adjusting the provisional equidistance line.

72/80 20-03200
 A/CN.4/740

said nothing as to its status under paragraph 3. 401 The judgment of the International
Court of Justice in the case of Nicaragua v. Columbia was the first time the Court
directly addressed paragraph 3 of article 121 in some detail, but without directly
identifying the features in question as rocks. The Court also stated that it considere d
the legal régime of islands set out in article 121 of the Convention to be an indivisible
regime and was customary international law. 402 In the Eritrea v. Yemen case, the
Arbitral Tribunal excluded the Jabal al-Tayr and Zubayr group of mid-sea islands
from being taken into account in computing the boundary line between Yemen and
Eritrea, simply noting their “barren and inhospitable nature and their position well
out to sea”, without going as far as to classify them as “rocks”; the Tribunal did accord
them a full territorial sea. 403 In the case between Indonesia and Malaysia concerning
sovereignty over two small islands, the International Court of Justice provided little
guidance on the meaning of article 121 in relation to the status of Ligitan and Sipadan,
two very small features not permanently inhabited. 404 In the Maritime Delimitation in
the Black Sea case, the Court avoided deciding whether Serpent’s Island was a rock
as claimed by Romania or an island as claimed by Ukraine, finding that any possible
entitlements it generated could not project further than the entitlements generated by
the mainland coast of Ukraine and would be fully subsumed by them. 405
199. The arbitral award issued by the Permanent Court of Arbitration on 12 July 2016
in South China Sea Arbitration between the Republic of the Philippines and the
People’s Republic of China 406 marks the first time an international tribunal undertook
a detailed examination of article 121 and, in particular, of paragraph 3. However,
China, which did not recognize the jurisdiction of the Court, has rejected the findings
of the Tribunal. 407 Furthermore, as noted by scholars, one case is unlikely to settle
conclusively the difference of views over the meaning of these elements and “[a] more
definitive assessment will require additional cases that apply the arbitration’s findings
on these issues”. 408
200. The Tribunal had to determine the status of features which had been subject to
significant human modification. Strictly in relation to the current inquiry on the
possible impact of sea-level rise on the future status of fully entitled islands, the
Tribunal made some interesting findings on the application of paragraph 3 of
article 121.
201. First, in determining the capacity of the feature to sustain human habitation, the
Tribunal stated that “the fact that a feature is currently not inhabited does not prove
that it is uninhabitable. The fact that it has no economic life does not prove that it
cannot sustain an economic life”. 409 Second, the Tribunal pointed to the use of
__________________
401
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment,
I.C.J. Reports 2001, p. 40, at p. 99, para 195.
402
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 ,
p. 624, at p. 674, para. 139.
403
Award of the Arbitral Tribunal in the second stage of proceedings between Eritrea and Yemen
Arbitration, (Maritime Delimitation), decision of 17 December 1999, United Nations, Reports of
International Arbitral Awards, vol. XXII (Sales No. E/F.00.V.7), p. 335, at p. 368, paras. 147–148.
404
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J.
Reports 2002, p. 625.
405
Maritime Delimitation in the Black Sea (footnote 239 above), p. 122, para. 187.
406
South China Sea Arbitration between the Republic of the Philippines and the People’s Republic
of China, Award, Arbitral Tribunal, Permanent Court of Arbitration, 12 July 2016.
407
China, Ministry of Foreign Affairs, statement on the Award of 12 J uly 2016 of the Arbitral
Tribunal in the South China Sea Arbitration established at the request of the Republic of the
Philippines, 12 July 2016. Available at www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm.
408
Kaye, “The Law of the Sea Convention and sea level rise after the South China Sea Arbitration”
(see footnote 149 above), p. 427.
409
South China Sea Arbitration, Award (see footnote 406 above), para. 483.

20-03200 73/80
A/CN.4/740

historical evidence of human habitation and economic life as being relevant for
establishing a feature’s capacity stating “[i]f a known feature proximate to a populated
land mass was never inhabited and never sustained an economic life, this may be
consistent with an explanation that it is uninhabitable. Conversely, positive evidence
that humans historically lived on a feature or that the feature was the site of economic
activity could constitute relevant evidence of a feature’s capacity.” 410
202. Of particular significance to the present inquiry is the Tribunal’s statement in
assessing historical evidence of past human habitation and economic activities. For
example:
the Tribunal should consider whether there is evidence that human habitation
has been prevented or ended by forces that are separate from the intrinsic
capacity of the feature. War, pollution, and environmental harm could all lead
to the depopulation, for a prolonged period, of a feature that, in its natural state,
was capable of sustaining human habitation. In the absence of such intervening
forces, however, the Tribunal can reasonably conclude that a feature that has
never historically sustained a human community lacks the capacity to sustain
human habitation. 411
203. As observed in the doctrine in examining this part of the case, “[t]his finding
suggests that the original or natural condition – and not human intervention – will
determine whether the feature is habitable or not. Arguably, human intervent ion could
include a sea-level rise caused by anthropogenic climate change. Accordingly, this
change would not alter the ‘intrinsic capacity of the feature’ and presumably would
not affect the feature’s status.” 412
204. In relation to delimitation of maritime boundaries, the International Court of
Justice in the Maritime Delimitation in the Black Sea case 413 and the Tribunal in the
Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) 414 examined only
the present-day set of facts stating that it is “the physical reality at the time of the
delimitation” that matters. The Tribunal expressly discounted taking into account
possible future events, such as sea-level rise that could alter base points, stressing the
importance of the stability of boundaries. 415
205. The partial inundation of a fully entitled island owing to sea-level rise could call
into question its possible reclassification from the category of a fully entitled island
to that of a rock, or even a low-tide elevation, if the capacity to sustain human
habitation or economic life of its own is lost. The criterion of sustaining human
habitation and economic life of their own can be especially important in the case of
islands made inhabitable because of sea-level rise. This can be the result of increased
flooding due to elevated tides, infiltration of salt water in freshwater supplies, loss of
agricultural land and food production, 416 and other factors making the island
uninhabitable for humans or unable to sustain economic activities.

__________________
410
Ibid., para. 484.
411
Ibid., para. 549 (emphasis added).
412
Kaye, “The Law of the Sea Convention and sea level rise after the South China Sea Arbitration”
(see footnote 149 above), p. 431.
413
Maritime Delimitation in the Black Sea (footnote 239 above), p. 106, para. 131.
414
Bangladesh had expressly raised the possible future impacts of sea -level rise on base points
selected by India, and even Bangladesh, as susceptible to change or disappear in the future sea
because of rising sea levels. However, the Tribunal found that future events such as sea level rise
were not relevant (Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India) (see
footnote 56 above), p. 63, para. 215).
415
Ibid., paras. 215–218.
416
Fiji during a Sixth Committee meeting stated that Fijian communities “were experiencing a
decline in food production due to saltwater intrusion” ( A/C.6/73/SR.23, para. 61).

74/80 20-03200
 A/CN.4/740

206. The potential consequences of being reclassified as a rock are significant. For
example, according to scholars, a small island could generate up to 431,014 km 2
maritime area, whereas a “rock” limited to only a territorial sea would generate a
much smaller area of 1,550 km 2. 417 According to authors, if the island of
Kapingamarangi, the southernmost island in the Federated States of Micronesia,
located some 300 kilometres south of the nearest island were to be reclassified as a
rock, the Federated States of Micronesia would lose more than 30,000 square nautical
miles of its exclusive economic zone. 418 The case of Rockall is a well-known example
of a State reclassifying an island to a rock. In doing so, the United Kingdom lost some
60,000 square nautical miles of maritime space previously claimed as a fisheries
zone. 419
207. The result is that a strict reading of article 121, paragraph 3, would mean that
an island that has become uninhabitable because sea-level rise has, for example,
caused seawater infiltration contaminating its freshwater supplies, and not because of
loss of territory, might lose its exclusive economic zone and continental shelf
entitlements. This is a situation that is different from that of shifting baselines, which
may only result in a reduction, but not total loss of maritime entitlements. Such
consequences could be economically, socially and culturally catastrophic. The natural
resources of the exclusive economic zone constitute a major livelihood source for
many small island developing States, which was also a key factor that influenced the
historic development of the exclusive economic zone. 420
208. Low-tide elevations, similar to islands, are also defined under international law
as naturally formed areas of land which are surrounded by water but submerged at
high tide. 421 Low-tide elevations do not generate any maritime zone and, as stated by
the International Court of Justice, cannot be appropriated by any State. 422 However,
by the rule known as “leapfrogging”, low-tide elevations situated partly or wholly
within the territorial sea can be used for the delimitation of the territorial sea. A view
accepted by States during the 1930 Hague Codification Conference. It was later
adopted in draft article 11 of the 1956 draft article s of the Commission, 423 and
subsequently codified in article 13, paragraph 1, of the United Nations Convention
on the Law of the Sea. In addition, for purposes of drawing a straight baseline, low -
tide elevations with a lighthouse or similar installations tha t are permanently above
__________________
417
Clive Schofield, “The trouble with islands: the definition and role of islands and rocks in
maritime boundary delimitation” (see footnote 387 above), p. 21.
418
Rosemary Rayfuse, “Sea level rise and maritime zones: preserving the maritime entitlements of
“disappearing” States”, Gerrard and Wannier, Threatened Island Nations: Legal Implications of
Rising Seas and a Changing Climate (see footnote 153 above), pp. 167–192, at pp. 174–175.
419
Schofield and Freestone, “Options to protect coastlines and secure maritime jurisdictional claims
in the face of global sea level rise” (see footnote 153 above), p. 147.
420
Satya N. Nandan, “The exclusive economic zone: a historical perspective”, FAO Essays in
memory of Jean Carroz, The Law and the Sea (Food and Agricultural Organization, 1987).
421
Convention on the Territorial Sea and the Contiguous Zone, art. 11, para. 1; United Nations
Convention on the Law of the Sea, art. 13, para. 1.
422
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (see footnote 401
above), p. 102, para. 207. This rule was confirmed by the Court again in Territorial and
Maritime Dispute (Nicaragua v. Columbia) (see footnote 402 above) and later by the Tribunal in
the case South China Sea Arbitration between the Republic of the Philip pines and the People’s
Republic Of China, Award (see footnote 406 above). By contrast, Stefan Talmon contrasts this to
the arbitral decision in Eritrea v. Yemen case (see footnote 403 above), where the Tribunal “had
made no distinction with regard to the location of low-tide elevations when it found that ‘the
islands, islets, rocks and low-tide elevations’ of certain island groups were ‘subject to the
territorial sovereignty’ of Eritrea and Yemen, respectively”. Stefan Talmon, “The South China
Sea Arbitration and the finality of ‘final’ awards”, Journal of International Dispute Settlement,
vol. 8 (2017), pp. 388–401, at p. 397.
423
Yearbook of the Commission on International Law 1956, vol. II, document A/3159, p. 256, at
p. 257.

20-03200 75/80
A/CN.4/740

sea level can be used as a base point. 424 Low-tide elevations may also be used under
the Convention to draw archipelagic baselines if found in the territorial sea of an
archipelagic island (art. 47, para. 4).
209. A low-tide elevation used for “leapfrogging” purposes, off the coast of any
coastal State, can extend the territorial sea significantly and, conversely, its loss could
result in a significant decrease in maritime areas under the sovereignty of the coastal
State, and also possibly transform the area into a different maritime zone, such as an
exclusive economic zone, if established, or high seas, if not. Its inundation due to sea -
level rise would mean a significant loss of territorial sea area to the coastal State.
210. The difficulty in practice with low-tide elevations concerns the different
methodologies used to identify whether a feature is a low-tide elevation or a high-tide
elevation. 425 This is beyond the scope of the present topic.

II. Legal status of artificial islands, reclamation or island

fortification activities as a response/adaptive measures to
sea-level rise
211. Land reclamation activities have been used for centuries as a means of
expanding coastal areas and building defences against encroachment by the sea . 426
The Netherlands, for example, has a long history of doing extensive coastal
fortification against such encroachments. Moreover, with increasing populations,
many countries have turned to land reclamation as a way of creating more living
space. 427 A global study reveals the extent and scope of coastal land reclamation
activities, the most taking place in Asian countries, 428 which notably include some
countries with low-lying coastal area most susceptible to rising sea levels, such as
Bangladesh and Viet Nam. 429 The practice of land reclamation, coastal fortification
through hard-engineering methods and other means to artificially or through natural
means maintain coastal areas, base points, baselines and islands will increase as a
response to sea-level rise. 430
212. A number of examples from State submissions and statements were provided in
Part Two of the present paper on practice relating to methods to preserve coastal areas
through natural and artificial means. Many States, such as the United States,
expressed the importance for States to protect their maritime entitlements through
artificial means, such as coastal reinforcement, sea walls, coastal protection and
restoration. Coastal and land reinforcement is an accepted practice under international
__________________
424
Convention on the Territorial Sea and the Contiguous Zone art. 4, para. 3; United Nations
Convention on the Law of the Sea, art. 7, para. 4.
425
See Murphy, International Law Relating to Islands (footnote 239 above), pp. 46 et seq.
426
Clive Schofield, “Shifting limits? Sea level rise and options to secure maritime jurisdictional
claims”, Carbon and Climate Law Review, vol. 4 (2009), pp. 405–416; and Schofield and
Freestone, “Options to protect coastlines and secure maritime jurisdictional claims in the face of
global sea level rise” (see footnote 153 above).
427
Michael Gagain, “Climate change, sea level rise, and artificial islands: saving the Maldives’
statehood and maritime claims through the ‘Constitution of the Oceans’”, Colorado Journal of
International Environmental Law and Policy, vol. 23 (2012), pp. 77–120.
428
Mario Martín-Antón et al., “Review of coastal land reclamation in the world”, Journal of
Coastal Research, vol. 75 (2016), pp. 667–671.
429
Lilian Yamamoto and Miguel Esteban, “Adaptation strategies in deltas and their consequence on
maritime baselines according to UNCLOS – the case of Bangladesh and Vietnam”, Ocean and
Coastal Management, vol. 111 (2015), pp. 25–33.
430
A distinction is often made between “hard” engineering techniques, such as constructing seawalls
and “soft” ones that use natural defences to protect the coastline, such as using mangroves. See
Climate Institute at http://climate.org/soft-vs-hard-engineering-for-coastal-defense-adaptation/.

76/80 20-03200
 A/CN.4/740

law. In relation to baselines specifically, “artificial conservation of the coastline,

including that of islands, is fully permitted under international law”. 431 The question
is to what degree can the status of an island entitled to the entire panoply of maritime
entitlements be conserved through artificial means and still maintain its character of
being “naturally formed” as per paragraph 1 of article 121 of the Convention and
international law. 432
213. The status of artificial islands was discussed in relation to the territorial sea
during the 1930 Hague Codification Conference. 433 The Commission’s Special
Rapporteur on the régime of the territorial sea, J.P.A. Fran çois, included a reference
to artificial islands in the commentaries to his proposed definition of islands, 434
adopted mutatis mutandis from the work of the 1930 Hague Codification Conference.
However, no mention to artificial islands was made in the final d raft articles of the
Commission as adopted in 1956. 435
214. The United Nations Convention on the Law of the Sea does not explicitly define
the term “artificial island” 436 but states clearly, at least in the context of the exclusive
economic zone (art. 60) and continental shelf (art. 80), that “[a]rtificial islands,
installations and structures do not possess the status of islands”. 437 This means that
artificial islands would not be entitled to any maritime zones other than a safety zone
of up to 500 metres. The question is whether there are any accepted criteria in State
practice that would define the meaning of “natural” versus “artificial”. Or, stated
otherwise, could a “naturally formed” island transform into a purely artificial one for
purposes of article 121 and maritime entitlements? In that regard, it is interesting to
note the view of the South China Sea Arbitral Tribunal that the determination of the

__________________
431
Soons, “An ocean under stress” (see footnote 359 above), p. 108.
432
Stoutenburg, Disappearing Island States in International Law (see footnote 351 above), pp. 200–
201; Jenny Bryant-Tokalau, “Artificial and recycled islands in the Pacific: myths and mythology
of “Plastic Fantastic”, Journal of the Polynesian Society, vol. 120 (2011), pp. 71–86; Gagain,
“Climate change, sea level rise, and artificial islands” (see footnote 427 above); Nilüfer Oral,
“International law as an adaptation measure to sea-level rise and its impacts on islands and
offshore features” (see footnote 94 above); Amanda Kolson Hurley, “Floating cities aren’t the
answer to climate change: UN-Habitat is looking at high-tech urban islands as a potential
survival fix for communities at risk from rising seas. This isn’t what resilience looks like.”,
CITYLAB, 10 April 2019, available at www.citylab.com/perspective/2019/04/floating-cities-
climate-change-united-nations-sea-level-rise/586612/.
433
D.H.N. Johnson, “Artificial islands”, International Law Quarterly, vol. 4 (1951), pp. 203–215.
See also the 1924 report of the International Law Association where Mr. Alvarez of Chile raised
the topic of the new development of artificial islands (les îles flottantes) in the high seas. A.
Alvarez, “Projet d’une réglementation des voies de communications maritimes en temps de
paix”, International Law Association Reports of Conferences , vol. 33 (1924), pp. 266–284, at
pp. 279–280.
434
International Yearbook of the International Law Commission 1952, vol. II, p. 36. J.P.A. François
citing the accompanying observations of the Hague Codification Conference to its definition of
an island that: “La définition du terme île n’exclut pas les îles artificielles, pourvu q u’il s’agisse
de véritables fractions de territoire, et non pas de travaux d’art flottants, de balises ancrées, etc.
Le cas d’une île artificielle érigée près de la délimitation entre les zones territoriales de deux
pays est réservé” [The definition of the term “island” does not exclude artificial islands, provided
that they are true portions of territory, not artificial installations, anchored beacons, etc. The case
of an artificial island built near to the boundary between the territorial zones of two cou ntries is
not included.]
435
Draft articles concerning the law of the sea, Yearbook of the International Law Commission
1956, vol. II, document A/3159, p. 256.
436
Alfred H.A. Soons, “Artificial islands and installations in international law” (Law of the S ea
Institute, University of Rhode Island, 1974).
437
Article 60, paragraph 8, further provides that artificial islands, installations and structures do not
affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf .

20-03200 77/80
A/CN.4/740

status of a feature was to be based on its “earlier, natural condition, prior to the onset
of significant human modification”. 438
215. The doctrine is divided on the question of whether a naturally formed island
might be transformed into an artificial island. Okinotorishima (Okino -tori) is an
example a very small maritime feature that has been significantly reinf orced through
artificial means. 439 Van Dyke was of the view that the extensive construction activities
on Okinotorishima (Okino-tori) transformed a reef into an artificial island. 440 Yann-
huei Song, despite his view that an island can lose its status after bei ng submerged
due to natural catastrophes, citing the example of Iceland and its work to preserve
Kolbeinsey Island, 441 expressed the view that a naturally formed area of land can
undergo reinforcing works against erosion and could not be an artificial island . 442
Alex Oude Elferink takes the view that an island that is reinforced with coastal
defences in principle remains an island and, conversely, an artificial island does not
become an island if there is an accretion of land even if natural in origin. 443 According
to Soons, the artificial conservation of an island exclusively for the purpose of
preventing it from degenerating as a result of sea-level rise should be permissible, as
article 60, paragraph 8, of the Convention concerns “newly constructed artificial
islands”. 444 Soons further observes that artificial means to preserve the status of an
island and its appurtenant maritime entitlements is a situation different from
artificially creating entitlements where none would otherwise exist. This is a key
difference. The question is one of “conserving” existing rights and not creating new
ones. This also includes the construction of lighthouses in order to preserve baselines
for archipelagic straight baselines. 445
216. As highlighted in several State submissions, this raises considerations of equity
and fairness especially in the light of the disproportionate geographical impact of sea -
level rise: 446 as the land area of an island shrinks, so too would the size of the maritime
entitlements, especially for archipelagic States. 447
217. While artificial preservation of maritime features and coastal areas may seem to
be a practical solution to prevent the loss of territory and maritime entitlements, there
remains the challenge of the high cost of such artificial measures to prese rve coastal
areas, islands and baselines. Maldives, in response to sea-level rise, has constructed
a multi-million-dollar artificial island Hulhumalé next to its capital Malé. As noted in
the submission by Maldives, the costs are high and raise questions a s to practicality
for States looking to widespread use artificial construction and land reclamation to
preserve baselines and the status of islands. 448 Singapore, in its submission to the
__________________
438
See South China Sea Award, paras. 305–306.
439
Prescott and Schofield, Maritime Political Boundaries of the World (see footnote 374 above),
p. 59.
440
Jon M. Van Dyke, “Legal issues related to sovereignty over Dokdo and its maritime boundary”,
Ocean Development and International Law, vol. 38 (2007), pp. 157–224.
441
Yann-huei Song, “Okinotorishima: A ‘rock’ or an ‘island’?” (see footnote 387 above), pp. 145–175.
442
Ibid., p. 165.
443
Alex G. Oude Elferink, “Artificial islands, installations and structures”, Max Planck
Encyclopedia of Public International Law, vol. 1 (2012), p. 662.
444
Soons, “An ocean under stress” (see footnote 359 above), p. 108.
445
Ibid.
446
Di Leva and Sachiko from the World Bank provide examples: a 1 -metre rise in the sea level
could result in the loss of 75 per cent of certain low-lying islands of Vanuatu and 80 per cent of
the Majuro atoll in the Marshall Islands. Charles Di Leva and Sachiko Morita, “Maritime rights
of coastal States and climate change: should States adapt to submerged boundaries?”, Law and
Development Working Paper Series, No. 5 (2008), p. 8.
447
See submission of the Pacific Islands Forum (see footnote 169 above); submission of Maldives
(see footnote 164 above), pp. 13–14.
448
“In 2016 costs of using hard engineering solutions to protect the inhabited Maldivian islands alone
would cost up to an estimated $8.8 USD billion”. Submission of Maldives (see footnote 164

78/80 20-03200
 A/CN.4/740

Commission, expressed the high priority it gives to sea-level rise and indicated that
“by 2100, Singapore could experience mean sea level rise of up to 1 metre. Singapore
is a low-lying island, and about 30 per cent of our island is less than 5 metres above
the mean sea level” and that the long-term strategies being developed to protect the
coasts of Singapore from rising sea levels include “engineered solutions such as
building sea walls and dykes”, together with “nature -based solutions such as active
mangrove restoration”. However, the comprehensive approach of Singapore to
fortifying its coastal defences island-wide “could cost S$100 billion or more over the
next 50 to 100 years”. 449 Many developing States vulnerable to sea-level rise may not
be in the financial situation to allocate such sums to protection against sea -level rise.
With regard to this issue, as far back as in 1989 the matter of cost was raised by the
Commonwealth Group of Experts, which cautioned small island States against
expensive major sea defence projects, recommending instead natural measures unless
all other options have been exhausted; these measures have demonstrated
socioeconomic benefits. 450
218. In concluding this part, the following observations of a preliminary nature can
be made:
(a) The reclassification of an island entitled to all maritime zones to a rock
under paragraph 3 of article 121 of the United Nations Convention on the Law of the
Sea could result in the loss of significant maritime space and associated entitlements.
However, as discussed, State practice in relation to this issue is not un iform.
Furthermore, with the exception of one arbitral award, international cases have not
provided guidance to distinguish between rocks and islands for purposes of
determining maritime zones. Moreover, the United Nations Convention on the Law
of the Sea addresses the generation of maritime entitlements rights but does not
address the possibility of the loss of maritime entitlements. There is also a lack of
State practice or common doctrinal view concerning reclassification of islands that
have undergone physical changes due to natural causes; 451
(b) Recent international jurisprudence, which has taken into account the
existing physical state of features at the time of delimiting maritime boundaries or the
previous status of the offshore feature that once ha d the capacity to sustain human
habitation but lost it due to factors such as environmental harm, lends support to the
need to maintain stability of maritime entitlements;
(c) Low-tide elevations are also defined as being naturally formed. And while
they cannot generate maritime entitlements, international law does recognize their use
to generate a broader area of territorial sea if located within 12 nautical miles; they
also can be used to draw straight baselines and archipelagic straight lines. A low -tide
elevation that becomes a submerged feature, one that is below water at low tide, could
cause significant loss of maritime space to the coastal State;
(d) The preservation of maritime entitlements for islands that lose their
capacity to sustain human habitation or an economic life of their own due to sea-level
rise does not entail creating new rights but only would maintain existing ones. This
would preserve the existing balance of coastal and third State rights;
(e) While an island is defined as being “naturally formed”, there is no
definition under the United Nations Convention on the Law of the Sea or the 1958
__________________
above), p. 16; see also submission of the Pacific Islands Forum (se e footnote 169 above).
449
Submission of Singapore (see footnote 176 above), paras. 5 and 7.
450
Martin W. Holdgate et al., Climate Change Meeting the Challenge (Commonwealth Secretariat,
London, 1989), pp. 94–95.
451
The case of Rockall was an example of a legal reclassification as the feature itself had not
undergone any physical changes.

20-03200 79/80
A/CN.4/740

Conventions or other codified sources of international law as to generally accepted

criteria for what is an “artificial” island. This issue has not been addressed in
international cases other than within the context of artificial expansion of low -tide
elevations or rocks to generate maritime entitlements. There is general agreement that
the use of artificial means to maintain base points, c oastal areas and island features is
acceptable under international law as evidenced by wide State practice. However, the
practicality in terms of scope and expense raises questions as to the feasibility of this
option for all States.

Part Four: Observations and future programme of work

I. Observations
219. Sea-level rise is a fact that is currently happening and recent scientific reports,
in particular the 2019 Special Report on the Ocean and Cryosphere in a Changing
Climate, justify the importance of the Commission undertaking study of the topic.
220. As has been highlighted by many Member States, there is an overarching
concern for preserving legal stability, security, certainty and predictability at the very
centre of this work. This would also be in line with the general purpose of the United
Nations Convention on the Law of the Sea, as reflected inter alia in its preamble.
221. On the possible effects of sea-level rise on the baselines and the outer limits of
the maritime spaces that are measured from the baselines (including as far as islands
are concerned), the preliminary observations can be found in paragraph 104 above.
222. On the possible legal effects of sea-level rise on maritime delimitations
(including as far as islands are concerned), the preliminary observations can be found
in paragraph 141 above.
223. On the possible legal effects of sea-level rise on the exercise of sovereign rights
and jurisdiction of the coastal State and its nationals, as well as on the rights of third
State and their nationals, in maritime spaces in which boundaries or baselines have
been established, the preliminary observations can be found in paragraph 190 above.
224. On the issue of legal status of artificial islands, reclamation or island
fortification activities as a response/adaptive measures to sea-level rise, the
preliminary observations can be found in paragraph 216 above.

II. Future programme of work

225. In 2021, as already agreed by the Commission, the Study Group will examine
the issues related to statehood and those related to the protection of pe rsons affected
by sea-level rise, under the co-chairpersonship of Mr. Ruda Santolaria and Ms. Galvão
Teles. Thus, the Study Group will complete the first overview of the topic. In the first
two years of the next quinquennium, the plan is for the Study Grou p to finalize the
work on the topic by consolidating the results of the work undertaken during the 2020
and 2021 sessions of the Commission.

80/80 20-03200