Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict MARITIME BOUNDARY DISPUTES, SETTLEMENT PROCESSES, AND THE LAW OF THE SEA

ForthcomingThis Chapter focuses on how a rising sea level will create uncertainties as to the outer boundaries of the zones of valuable ocean territory and rights possessed by coastal states. Uncertainty in boundaries is undesirable and, in this instance, may foster conflicting claims to valuable ocean resources. The likelihood of such conflict may be particularly high given that this uncertainty in boundaries will arise as adaptation to climate change simultaneously stretches the resources of each state.The Chapter examines this potential for conflict, the reasons that boundaries will become uncertain, and suggests avenues, both normative and institutional, whereby this uncertainty and conflict may be avoided or mitigated. There are three parts to this story.Part II highlights those areas of the oceans that belong, to some extent, to adjacent coastal states and, in particular, concentrates on the practice of using the “law of baselines” to ascertain the outer boundary of such oceanic zones. The “law of baselines” is a set of detailed rules that, broadly speaking, seek to give content to give content to the principle that baselines should follow the general direction of the coastline. Part III briefly reviews the present projections concerning a rising sea level as a consequence of climate change.Part IV brings these two points together and considers the implications of sea level rise for baselines and thus the ocean boundaries ascertained by reference to such baselines. Four key points emerge: (1) in many cases, the law of baselines allows such lines to be based on geographic features barely above sea level; (2) therefore, almost any change in sea level may have very dramatic effects on certain baselines; (3) these effects on baselines may have a potentially dramatic effect on boundaries because the baselines and boundaries generated from them are “ambulatory” (that is, the baselines – and therefore the boundaries -- adjust themselves to a changing coastline); and (4) the rise in sea level in particular geographic situations will result in significant shifts in the outer boundaries of the oceanic zones claimed by coastal states.Elsewhere, I have described such aspects of our laws as “legal” feedbacks to climate change. A legal feedback, unlike a physical feedback, does not accelerate or mitigate the underlying process of climate change itself. Rather, it accelerates or mitigates the damage that will be felt as a consequence of any level of climate change. Moreover, a legal feedback, unlike a physical one, is not fixed in the laws of nature, but rather, can be changed. In the case of a rising sea level, the law of baselines gives rise to a legal feedback that increases the potential for the waste of resources as well as private and interstate conflict.This Chapter focuses on the potential for conflict. States and individuals amidst an ever increasing competition for resources in, or under, the oceans will be tempted to take advantage of the uncertainty in maritime boundaries that will result from a rising sea level and the movement of baselines. The Chapter closes with proposals and strategies for addressing the present legal feedback, the ambulatory nature of baselines and the boundaries they generate, which is at the root of the uncertainty and potential for conflict.