Xue-ClimateChangeChallenges-2013

Chapter Title: Climate Change Challenges and the Law of the Sea Responses
Chapter Author(s): Guifang (Julia) Xue
Book Title: Climate Change: International Law and Global Governance

Book Subtitle: Volume I: Legal Responses and Global Responsibility
Book Editor(s): Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting
Published by: Nomos Verlagsgesellschaft mbH
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PART IV:
CLIMATE CHANGE, THE LAW OF THE
SEA AND SEA-LEVEL RISE

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15
Climate Change Challenges and the Law of the Sea Responses
Guifang (Julia) Xue
Abstract
As one of the most pressing issues confronting human society, climate

change has brought immense challenges to almost all aspects of our lives.
This is also the case with the world’s oceans. In responding to its adverse
impacts, the international community has faced legal, political, and scientific
challenges. This also applies to the law of the sea regime represented by the
United Nations Convention on the Law of the Sea (UNCLOS).
This article explores from the law of the sea perspective climate change
impacts on the marine ecosystem and biodiversity in general and the chal-
lenges of accelerating rise in sea levels, in particular to baselines and mar-
itime boundaries, and low lying states such as the Small Island Developing
States (SIDS). It investigates possible responses with particular reference to
UNCLOS in addressing the damages and assessing the extent to which po-
tential means and mechanisms may be available to protect the affected states.
Specifically, the article examines what damages climate change as an
imminent threat will cause to marine ecosystems and states’ rights to mar-
itime zones, and the submergence of low lying SIDS. This is followed by an
analysis on whether and how the UNCLOS provisions pertaining to the pro-
tection and preservation of the marine environment, coupled with those re-
lating to compulsory dispute settlement, may be of use in combating the
climate crisis. The paper also touches upon whether a particular approach,
such as climate litigation, could act against the projected worst case scenario
to protect the affected states, and the challenges to such a course of action.
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A. Introduction
The world’s oceans cover more than 70% of the planet and contain a variety
of natural resources vital to nearly every nation.1 However, since the 1980s,
global warming and the rise in sea levels have brought about significant
negative consequences to the health of the ocean as a result of various forms
of natural disasters and an increase of extreme events.2 The low-lying coastal
and islands states, particularly the SIDS, are likely to face some of the earliest
and most severe climate change impacts over the course of this century with
immense environmental, social and economic implications.3 These are
recognised not only as challenges to the ecological system, but also as a
“threat multiplier” of economic and social instabilities to sustainable devel-
opment of humankind.4
As projected temperature increase accelerated, the scale of sea level rise
and adverse threat to the world oceans has emerged as a planetary crisis
going beyond environmental concerns. The climate change and its adverse
impact, together with the search for measures to tackle such an overwhelm-
ing challenge have moved up to the top of the agenda amongst civil society,
business and government, and cast strong influence to every individual state.
There is an urgent need and mounting pressures for strong and focused global
action to mitigate the negative climate effects. Unfortunately, it is a frus-
1 The oceans comprise a complex, dynamic and vast component of the Earth’s ecolog-
ical system, second in size only to the global atmosphere. The oceans are a major
provider of ecosystem services, food, mineral and other resources, and a major medi-
um for global transportation and communication. For information on the importance
of oceans and marine resources, see “Ocean Resources”: http://marinebio.org/ocean
s/ocean-resources.asp, last accessed 03 May 2013.
2 In 2007, the Intergovernmental Panel on Climate Change (IPCC), established by the
United Nations Environment Programme (UNEP), issued its Fourth Assessment Re-
port of more than 3,000 pages. The most important conclusion of this report is that
global warming is evident and that its highly probable cause is a greenhouse effect
triggered by increasing concentration levels of greenhouse gases. In 2009, UNEP
Climate Change Science Compendium reaffirms the strong evidence outlined in the
4th Assessment Report, and shows that climate change is accelerating at a much faster
pace than previously predicted by scientists. For the IPCC reports, see http://www.ip
cc.ch/publications_and_data/publications_and_data_reports.shtml#1, last accessed
03 May 2013.
3 The United Nations (UN) defines small island states as islands with less than 10,000
square kilometers in land mass and with less than 500,000 inhabitants. For details, see
http://aosis.org/, last accessed 03 May 2013.
4 Kim (2010:101).
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15 Climate Change Challenges and the Law of the Sea Responses
trating fact that the United Nations Framework Convention on Climate

Change (UNFCCC)5 and its associated Kyoto Protocol,6 the current centre-
pieces for multilateral action against climate change, are not capable of in-
ducing significant participation and compliance mechanisms in curbing the
growing concentrations of greenhouse gas (GHG) emissions causing the di-
saster.7 The international community has encountered enormous legal and
political challenges in searching for means and mechanisms to protect the
affected states. Against this background, the article examines how the real
and potential impacts of climate change have affected the oceanic systems
and the low lying states as SIDS, explore the viabilities of the UNCLOS as
the ‘Constitution for the Ocean’ in implying a collective duty on the part of
signatory states to implement strategies to combat climate change, and assess
the extent to which possible cause of action may be sought for from the
UNCLOS regimes to protect the affected states.8
As the primary instrument governing the oceans and the most compre-
hensive multilateral treaty ever concluded, the UNCLOS, adopted in 1982
and entered into force in 1994, comprises various norms of customary in-
ternational law and legal rules pertaining to the oceans and applicable to
relations between states.9 UNCLOS has 164 ratifications plus the European
5 The UNFCCC was adopted at the United Nations Conference on Environment and
Development (the first Earth Summit) in Rio de Janeiro, Brazil, on 5 May 1992. It
was opened for signature on 4 June 1992 and entered into force on 21 March 1994.
Currently, it has 195 Parties. It provides a definition on climate change as: “a change
of climate which is attributed directly or indirectly to human activity that alters the
composition of the global atmosphere and which is in addition to natural climate
variability observed over comparable time periods.” For ratifications, see http://unfc
cc.int/essential_background/convention/status_of_ratification/items/2631.php, last
accessed 03 May 2013.
6 The Kyoto Protocol to the UNFCCC was adopted on 11 December 1997, entered into
force on 16 February 2005, and has 191 Parties. For ratifications, see http://unfccc.in
t/kyoto_protocol/status_of_ratification/items/2613.php, last accessed 03 May 2013.
7 Burns (2003).
8 The text of UNCLOS and relevant implementation agreements are available at http://
www.un.org/Depts/los, last accessed 03 May 2013.
9 It is based on the four Geneva Conventions on the Law of the Sea adopted in 1958:
Convention on the Territorial Sea and the Contiguous Zone; Convention on the High
Seas; Convention on Fishing and Conservation of the Living Resources of the High
Seas; and Convention on the Continental Shelf. They codified the customary inter-
national law. UNCLOS draws together the four conventions and made it the old law
of the sea in a single unified treaty. States that have not acceded to UNCLOS may still
be bound by the provisions of the four 1958 Geneva Conventions and the norms
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Guifang (Julia) Xue
Union as of 7 November 2012,10 which made it almost universally accept-

ed.11 Containing regimes on the exploration and exploitation of marine re-
sources as well as provisions on the protection and preservation of the marine
environment, the UNCLOS incorporates the desires and aspirations of the
international community into a framework and makes it one set of rules for
all states with greater potential than anticipated. Its framework in controlling
pollution to the marine environment and mechanism for compulsory dispute
settlement may be applicable to deal with the climate change crisis and to
protect affected states.
B. Possible Effects of Climate Change on Marine Ecosystems and

Environmental Implications
Climate change is typically discussed in global terms, yet its effects do not
vary dramatically among different researching areas.12 Compelling evidence
from the current literature suggests that ecosystems are responding to tem-
perature changes and increased carbon dioxide (CO2) levels with significant
impact on natural and coastal resources and national security.13 Recent re-
search has strengthened the findings that climate change rapidly transforms
the world’s oceans by increasing the temperature and acidity of seawater,
and alters atmospheric and oceanic circulation.14 Much literature has been
published on both the predicted impacts and responses to it in terms of mit-
igation and adaptation.15 Predictions based on current scientific research and
climate trends suggest an enormous challenge in two respects: continental
glaciers will continue to melt, and sea levels will rise to one meter by the
end of this century under “business as usual” scenarios.16 Thus, it is a settled
fact that sea levels have been rising at an accelerating rate and are to rise
of customary international law. For details on UNCLOS and its related institutions,
see http://www.un.org/Depts/los/convention_agreements/convention_overview_co
nvention.htm, last accessed 03 May 2013.
10 For ratifications, see http://www.un.org/Depts/los/reference_files/chronological_lis
ts_of_ratifications.htm#, last accessed 03 May 2013.
11 Koh (1982).
12 IPCC (2007e).
13 Elliott & Caballero-Anthony (2012:33).
14 Lubchenco (2008).
15 IPCC (2007d).
16 IPCC (2007c).
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substantially in subsequent decades as a consequence of global warming

regardless of any mitigation measures adopted. The oceans and marine
ecosystems are under threat.17
I. Deteriorated Environment and Worsening Ecosystems
Climate change is undoubtedly the most serious environmental crisis facing

the world today, and its impacts take many forms. The biggest existing one
has been the ultimate threat of total biodiversity loss through global extinc-
tion due to a lack of ability of ecosystems and species to adapt to the rapid
changes.18 This is because ecosystems, the biodiversity and services they
support, are intrinsically dependent on climate.19 Temperature alteration and
ocean acidification in magnitude and frequency will accelerate the potential
impacts on biodiversity occurring in concert with other established stres-
sors.20
Plenty of scientific attention has looked at the physical impact and po-
tential danger of ocean acidification on marine ecosystems. The observation
data showed that coastal environment and marine ecosystems are intimately
linked to climate and are vulnerable to increasing coastal populations, habitat
loss, and anthropogenic pollution.21 With the rise in sea levels, coastal
ecosystems, including tidal zones, estuaries and wetlands may migrate fur-
ther inland resulting in habitat loss and fragmentation, invasive species, en-
vironmental contamination, and the species that utilise them will all expe-
rience impacts.22 Thus, acidification and temperature alteration are worsen-
ing the problems already occurring in the ecosystems, and directly affect the
pattern of marine biodiversity. Extreme events, increasing in frequency and
17 More information on the importance of oceans and marine resources may be found
online from Ocean Resources, http://marinebio.org/oceans/ocean-resources.asp, last
18 As a planetary crisis, climate change and its catastrophic consequences result in not
only rising sea levels, droughts and famine, but also the loss of up to a third of the
world’s plant and animal species. See Shah (2012).
19 Costanza et al. (1997).
20 Doney et al. (2012).
21 (ibid:13).
22 Staudinger et al. (2012:296).
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intensity, put the ocean ecosystems under new combinations of stress, being
described as “multiple jeopardy”.23
II. Depleted Resources and Damaged Habitat
Oceans generate considerable economic wealth through fisheries, aquacul-

ture, tourism and mining, and marine ecosystems provide irreplaceable ser-
vices including coastal defence, oxygen production, nutrient recycling and
climate regulation.24 Fish are a precious natural resource of enormous eco-
logical, social and economic value, and in many parts of the world, millions
of people make their living from fishing, and for most of them fishing goes
far beyond being just a source of income, it is a way of life.25 Fish contribute
to at least 50% of total animal protein intake in some SIDS.26 Widespread
physical changes to the ocean, including rapid warming sea waters and re-
duced calcification in ocean plankton and reef corals could result in a sub-
stantial decline in fisheries productivity in some regions, threaten coastal
systems of low-lying estuaries and tidal flats, and impact the biological dis-
tribution of marine mammals and seabirds of both tropical and temperate
species.27
As “oasis in a marine desert” and “rainforests of the seas”, coral reefs
cover an area of over 280,000 km2 and provide home and shelter to over
25% of ocean fish and up to two million marine species, and a nursery for
the juvenile forms of many marine creatures.28 Coral reefs also provide nu-
merous ecosystem services to benefit environment and humans, such as as-
sisting in recycling the nutrients, protecting shores from the impact of waves
and storms, serving as a vital input of food into the tropical/sub-tropical
marine food-chain, and serving humans in the form of medicine and econo-
mic benefits to local communities from tourism.29 Goods and services de-
23 Hofmann et al. (2010).

24 Crutzen & Stoermer (2000).
25 See WWF (2009:6).
26 In North and Central America 7.6% of animal protein is obtained from fish. In Europe
fish supplies 11% of the protein needs, in Africa 19%, and in Asia 21%. For details,
see FAO(2011) and http://www.consvalmap.org, last accessed 03 May 2013.
27 WBGU (2006:123).
28 Painting (2011).
29 Climate change has affected South China Sea Coral. See South China Sea Coral
declined by at least 80% over the past 30 years, Hughes et al. (2012).
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rived from coral reefs are roughly estimated to be between $172 to $375
billion dollars per year.30
Coral reefs have extremely narrow temperature tolerances between
25-29ºC, with some species in Pacific Islands currently living near their
threshold of thermal tolerance. Rising ocean temperatures and increasing
ocean acidification have negatively affected coral reefs in many parts of the
world, to name a few, the Pacific and Indian Oceans, the Red Sea and
Caribbean Sea, leading to the loss of 50% of the subsistence and artisanal
fisheries owing to coral bleaching.31 Global threats to coral reefs have been
increasing in the context of wider environmental degradation, so that the
value of coral reefs may be even greater because they are integral to the well-
being of the oceans, and loss of coral reefs may result in decreased net pro-
ductivity and stunted growth in certain species.32 Rising sea levels will de-
stroy vast areas of mangrove trees on the world’s tropical coastlines and wipe
out critical beach habitats (for sea turtles) that could adversely affect many
species more directly.33
III. Marine Geo-engineering Projects: Buried Troubles
One of the most pressing issues on the climate policy agenda is reducing
CO2 emissions. As an attempt to mitigate global warming, some projects
have been proposed or are already being implemented worldwide that take
the ocean as a great absorber and also a receptor of man-made CO2 emis-
sions.34 Such projects, known as marine geo-engineering projects including
carbon capture and storage (CCS) and ocean fertilisation (OF) have attracted
great international attention.35
CCS, also known as carbon capture and sequestration, is the process of
capturing waste CO2 from large point sources, transporting it to a storage
site, and depositing it where it will not enter the atmosphere, normally an
underground geological formation, as a potential means of mitigating global
30 For the value oceans provide, see http://www.consvalmap.org, last accessed 03 May
2013.
31 Andersson (2007).
32 Conservation International (2008:1–7).
33 Gilman et al. (2006).
34 IPCC (2005:77–88).
35 See Nolon (2012:204).
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warming and ocean acidification.36 OF has been suggested as a simple,

quick, effective and environmentally friendly fix to the world’s CO2 emis-
sions problems, but different views exist including that of the highly re-
garded IPCC which considers it as “speculative and unproven, and with risks
of unknown side effects.”37
The expected outcome and potential impacts of CCS and OF have been
hotly debated even regarded as buried troubles.38 Concerns have been ex-
pressed over the potential risks of catastrophic results and the lack of inter-
national regulations in place to clarify allocation of environmental liabili-
ty.39 Questions are also asked about whether, how, and under what condi-
tions, are they consistent with the law of the sea and other international con-
ventions concerning protection of the marine environment and biological
diversity?40 To what extent humankind is permitted, as the law stands, to
interfere with the marine ecosystem to mitigate the impacts of climate
change? What have been or should be done to regulate such activities by
international law?
IV. Environmental Implications: Ocean as the Last Resort
Climate change has reached us with many implications, from social, eco-
logical, economic, to legal and environmental. The environmental implica-
tions are obvious and dreadful, particularly based on the adverse impact of
global warming on marine living resources and detrimental effects of ocean
acidification on marine ecosystem and biodiversity, as the ocean is our last
resort for survival and existence.41 From a human perspective, the acceler-
ating biodiversity loss risks human security, as there might be a major change
36 For discussions, see Rayfuse (2008).

37 See IPCC (2007c:15). See also Freestone & Rayfuse (2008).
38 Globally, 75 CCS projects are at various levels of development. For details, see
Global Carbon Capture Storage (CCS) Institute (2012). For discussions, see Purdy
(2006).
39 The relevant body of international law relating to CCS includes the Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the
1972 London Convention) and its 1996 Protocol. For international regulation de-
velopment of CCS and OF, see http://www.globalccsinstitute.com/; and http://www
.ccsnetwork.eu/, last accessed 03 May 2013.
40 For different views, see Purdy (2006); Nolon (2012); Ingelson et al. (2010).
41 See Zimmer (2011).
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in the food chain, water sources and other resources we rely on.42 Edward
O. Wilson believes that the loss of biodiversity is killing ourselves and the
rest of life.43 Mary Wood observes the evolution of international law and
comments that “[h]umanity is violating nature’s laws not only at the level
of individual species and ecosystems, but at the level of atmospheric func-
tioning and ocean health – a truly global level.”44 Indeed, the rapidly rising
GHG concentrations are driving ocean systems toward conditions not seen
for millions of years, with associated risks of fundamental and irreversible
ecological transformation.45
Changes in biological function in the ocean caused by anthropogenic
change go far beyond death, extinctions and habitat loss, as fundamental
processes are being altered.46 The domino effect of the horrific path towards
mass extinction of marine biodiversity and ecosystems is already showing
negative impacts under current levels of climate change, and more frequent
extreme weather events can be expected to have significant impacts on bio-
diversity.47 In addition, the past half-century has seen an explosive growth
in the size and number of marine dead zones, areas too low in dissolved
oxygen to support life, and it is no coincidence that dead zones occur down-
river of places where human population density is high.48
The IPCC suggested that in the foreseeable future, the disastrous conse-
quences of biodiversity loss are likely to be significant and many types of
ecosystems will be altered or destroyed by the combination of global warm-
ing and conventional threats such as habitat destruction and pollution.49 In
the absence of stringent mitigation measures by the global community, cli-
mate change, as the keystone environmental issue of this generation and
future ones, appears inevitable to continue apace. The existing biodiversity
conservation strategies are of no effect under its mounting pressure. Without
strategic action and updated law and policy, many of the global marine
ecosystems will collapse. Fish stocks and coral reefs will only retain their
42 Shah (2012).
43 Wilson (2010).
44 Wood (2010:177).
45 For details, see Millennium Ecosystem Assessment, Findings (2005), available at
http://www.millenniumassessment.org/documents/document.359.aspx.ppt, last
46 Hoegh-Guldberg (2011).
47 Secretariat of the Convention on Biological Diversity (2010:56).
48 Diaz, & Rosenberg (2008).
49 IPCC (2007a:72–73).
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productivity and diversity if sustainable development is ensured world-

wide.50 States need to recognise their interests in marine ecosystems, un-
derstand the importance and critical state of biodiversity, and address the
problems of habitat degradation with concrete actions.
C. Possible Effects of Sea Level Rise on Baselines and Legal Implications
Historically, states had jurisdiction over a narrow strip of water adjacent to

their coastlines and the remainder was regarded as the high seas that were
free and open to all while belonging to no one.51 As new technologies made
it possible to reach farther and deeper into the ocean to catch fish and to
extract other resources, and as pollution of the oceans increased, states start-
ed a journey in establishing a legal framework to govern activities at
seas.52 These efforts eventually led to the conclusion of the UNCLOS in
1982.53 The most creative part of the UNCLOS is the establishment of var-
ious maritime zones by distance criteria measured from baselines. However,
the rise in sea levels may bring serious challenges to this ‘Zonal Approach’,
as it affects baselines systems from many perspectives, in particular, a state’s
entitlement to maritime zones and resources therein, state relations due to
maritime boundary delimitation, and territory loss due to submergence of
base points. This section focuses on the sea level rise effects on baselines
and legal implications to the UNCLOS regime.
50 WBGU (2006).
51 For general information on the development of the law of the sea, see Churchill &
Lowe (1999).
52 (ibid.:12).
53 Details on law of the sea negotiation history and relevant documents are available at
http://www.un.org/Depts/los/doalos_publications/doalos_publications.htm, last
accessed 03 May 2013. See also Charney (1977).
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I. States’ Entitlement to Maritime Zones and Resources
UNCLOS divides the ocean into different types of zones measured from
baselines.54 The territorial sea, immediately adjacent internal waters,55 with
a breadth of 12 nautical miles (nm) from the baseline, is the zone which
represents the seaward limit of the coastal state’s sovereignty and concerns
its airspace, sea bed, and subsoil.56 The contiguous zone is a belt of sea
contiguous to the territorial sea stretching for 24 nm from the baseline, in
which the coastal state exercises jurisdictional powers in relation to its cus-
toms, fiscal, sanitary and immigration laws and regulations.57 The exclusive
economic zone (EEZ), adjacent to the territorial sea, is less than 200 nm.58
The coastal state has sovereign rights in respect to environmental protection,
scientific research, exploration and exploitation of natural resources.59 The
continental shelf constitutes the submerged prolongation of the coastal
state’s land territory and stretches for 200 nm from the baselines when the
outer edge of the continental margin is less, or up to 350 nm (or 100 nm from
the 2,500 meter isobaths) if it is wider.60 The coastal state has sovereign
rights over this area in respect to the exploration and exploitation of natural
resources.61 The high seas are located beyond the external limit of the EEZ
at a maximum of 200 nm from the baselines, and are not subject to the
sovereignty of any state.62 Based on the UNCLOS regime, baselines serve
a vital function in establishing literally all maritime zones and boundaries
of a state.63
54 UNCLOS, Article 5 specifies that the normal baseline is the low-water line along
the coast as marked on large-scale charts officially recognised by the coastal state.
55 The internal waters locate on the landward side of baselines and are subject to full
sovereignty of the coastal state. See UNCLOS, Articles 2(1)(2) and 8(1).
56 UNCLOS, Articles 2, 3 and 4. Foreign ships only have a right of innocent passage
in the territorial sea and are bound to respect the national legislation of the coastal
state on the regulation of maritime traffic, fiscal, immigration and environmental
protection, marine scientific research, etc. See UNCLOS, Articles 17–22.
57 UNCLOS, Article 33.
59 The other states have the freedom to overfly, navigate, and lay cables and pipelines
on it. UNCLOS, Articles 56 and 58(1).
61 Other states benefit from the freedom of the high seas on the continental shelf. See
UNCLOS, Articles 56(1a) and 77(1).
63 UNCLOS, Articles 57, 76(1) and (6).
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When drawing the baselines, two situations need to be considered re-

garding which type of baseline is employed. The normal baseline, specified
in Article 5, could be the low-water line following the natural configuration
of the coast, whereas the straight baseline is drawn across coastal sections
“joining appropriate points” on land following the configuration and curva-
tures of the coastline.64 Thus, the juridical boundary between the land and
the sea and of the territorial sea and the other zones will be parallel to the
coast without extending the territorial sea unduly.65 An island, if considered
part of the coastal configuration, may provide a base point, in particular when
a coast is made up of a cluster of fringing islands.66
Based on the UNCLOS regime setting, sea level rise could substantially
affect baselines and base points for measuring maritime zones. A shift in
baseline could have profound implications on the greatest extent of a state’s
entitlement to maritime zones and its economic and resources interests (fish-
ing, sea-bed mining, etc.). The rising sea levels could change coastal for-
mations, such as islands, and make the actual low-water lines and base points
normally shift landward (ambulatory).67 The outer limits of the territorial
sea, contiguous zone, EEZ and portion of continental shelf claimed on the
basis of distance from baselines also shift landward. Questions may arise if
coastal features are altered or disappear; the seaward extent of the claims
could decrease greatly along with the recessions.
As coastal states all have divergent interests to maritime zones, receding
coastlines may lead to emerging issues regarding coastal states’ rights to
marine resources in their maritime zones, whether living and non-living.
UNCLOS Article 5 provides neither safeguards against sea level rise, nor
provisions to specifically address the matter of determination of the normal
baseline. In the context of climate change and the expected large-scale melt-
ing of ice,68 a state would be partly deprived of the benefits of a territorial
sea, and the idea that “it is the land which confers upon the coastal State a
64 UNCLOS, Article 7. A state may employ the method of straight baselines only in
localities where the coastline is deeply indented and cut into, or if there is a fringe
of islands along the coast in its immediate vicinity, across mouths of rivers (Article
9) and bays (Article 10). For discussions, see Scovazzi (2008–:para. 2).
65 United Nations Office for Oceans Affairs and the Law of the Sea (1989:para. 39).
66 UNCLOS, Article 7(3).
67 Attenhofer (2010:2).
68 See Vaughan & Spouge (2002).
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right to the waters off its coast” is challenged.69 This could impose a sig-
nificant impact on the external limits of the maritime zones, particularly
against low-lying coastal areas. As maritime zones recede, coastal states may
in the worst of cases suffer from the loss of jurisdictions regarding the border
of maritime zones and rights to essential marine resources, except for the
maximum extent of outer continental shelf area which has to be established
on the basis of the Commission on the Limits of the Continental Shelf
(CLCS) recommendations.70
Meanwhile, based on Article 76(9) of the UNCLOS, the outer limits of a
continental shelf should be permanently determined by the CLCS. Article 7
provides that where, because of the presence of a delta, the coastline is highly
variable, the appropriate points may be selected as a baseline. It also gives
latitude for a coastal state to change the baseline to the extent that the change
is made under the UNCLOS. There are no provisions permanently fixing the
outer limits of the EEZ or even territorial seas. This may indicate that the
legal and physical boundaries of the EEZ and territorial sea that are not
touched upon by the UNCLOS are of a temporary nature.71
II. State Relations and Boundary Delimitation
The immediate importance of baselines is even more evident in maritime

delimitation between adjacent and opposite States. With the current pace of
sea level rise, many coastal states may witness a change in existing coastlines
or submergence of base points. The receding or advancing coastlines and
complete disappearance of low-lying islands/rocks may spark potential
problems on maritime boundaries signifying extensive implications for the
law of the sea and state relations.72
69 The principle “the land dominates the sea” (North Sea Continental Shelf Cases, para.
96).
70 A unilateral delimitation of the outer continental shelf extends beyond 200 nm re-
quires the submission of a claim to the CLCS under Article 76(8) for geological
factor consideration. The CLCS, set up under Annex II of UNCLOS, can recommend
the final and binding outer limits of the shelf in absence of overlapping claims or
consent of the overlapping states has been given. See UNCLOS, Article 76 (4–6, 8,
and 10).
71 Roach & Smith (1994:67).
72 For a fuller account, see Caron (2008:17) and (1990).
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With the looming unprecedented rise of sea-levels, the settlement of mar-

itime delimitation disputes may gain a new incentive. It should be noted that
the rules on straight baselines are not affected by the provision in Article
121(3) that rocks which cannot sustain human habitation or economic life
of their own shall have no EEZ or continental shelf. The interesting question
of distinction between rock and island may relate to economic interests of
coastal states. Apart from oil and gas, there may also exist a genuine and
remarkable interest in the natural resource of fisheries, which may be rele-
vant to the drawing of baselines.73
Since baselines may become a more sensitive issue and states may be
advised to move toward fixing ocean boundaries on the basis of presently
accepted baselines, an important issue pertaining to this situation is whether
maritime boundaries may be subject to continual modification depending on
coastline changes. The consideration of baselines from which the outer limit
is measured is a legal matter, and can be established unilaterally, however,
the delimitation of maritime boundary has always been an issue of interna-
tional relevance, as it may affect the neighbouring states’ rights and interests.
Guidance on maritime delimitation for the new challenges needs to be
provided in the context of rising sea levels. In the process of negotiating
boundaries, states should bear in mind the present law on maritime delimi-
tation without regard to the migrating baselines. States might contest the
maritime boundaries between or among themselves, even the recommenda-
tions of the CLCS on the basis of disputed unilateral baselines.74 Also, a
unilateral delimitation of the continental shelf beyond 200 nm can be a re-
duction of the Area that is reserved as “common heritage” for mankind, and
could be contentious owing to rich natural resources on the seabed and in
the subsoil.75
73 Churchill (2008–:para. 1).

74 Globally, over 400 bilateral boundaries need to be delimitated, only less than one
third has been settled. For submissions of the outer limit of continental shelf, see
http://www.un.org/Depts/los/clcs_new/clcs_home.htm, last accessed 03 May 2013.
75 The regime regarding Area is set forth in Part XI of UNCLOS. Appropriation by any
state of any part of the Area is explicitly prohibited and no such claim or exercise of
sovereignty or sovereign rights shall be recognised. See UNCLOS, Article 137.
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III. Territorial Entitlement and Uncertain Status
As defined in the UNCLOS, all maritime zones are measured from a base-
line. Accordingly, any movement of such baseline will lead to a change in
maritime boundaries. If a base point such as an exposed rock disappears, it
may be claimed that the boundary based on such a point has moved or dis-
appeared. The UNCLOS does not explicitly stipulate that the boundary
should be moved together with a base point. Facing unprecedented changes
on the scale of coastline and maritime boundaries,76 it is necessary to con-
sider different submerging scenarios of an island or rock belonging to a state
and critical effects occurring to the types of baselines regarding which an
issue may be raised owing to the rising sea level while considering legal
implications and possible solutions.
The types of baselines regarding which an issue may be raised owing to
the rising sea level include low-tide elevations, fringing reefs, islands, and
river banks. Under Article 13 of the UNCLOS, a low-tide elevation may be
used as the baseline. However, if such low-tide elevation is submerged per-
manently by rising sea level, the state concerned may lose the territorial seas
accorded by such base point.77 At the same time, “[a]n island is a naturally
formed area of land, surrounded by water, which is above water at high
tide”.78 The provisions differ only with regard to the dry or submerged status
at high tide. Low-tide elevations therefore “literally do not rise to the status
of islands”.79 According to Article 121 of the UNCLOS, an island is entitled
to the territorial sea, contiguous zone, continental shelf, as well as a 200 nm
EEZ. Rising sea levels may submerge an island in part or entirely. Where
an island is no longer regarded as such due to its submerged status at high-
tide, it will only be considered for measuring the maritime entitlements, if
it lies within the territorial sea.80 Where, however, a low-tide elevation (or
former island) lies at a distance exceeding the breadth of the territorial sea
from the mainland or a ‘real’ island, it has no territorial sea of its own.81
76 Kim (2010:101).
79 Roach & Smith (1994:73).
80 The court in Qatar/Bahrain held that “there [is no] doubt that a coastal State has
sovereignty over low-tide elevations which are situated within its territorial sea, since
it has sovereignty over the territorial sea itself, including its sea-bed and subsoil”
(para. 204).
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With the rising sea levels, the nature of some insular features will invariably
change from island to low-tide elevation, which could indicate massive
losses to resource rich maritime zones.82 Under such circumstances, it may
be the case that any affected island state is deprived of the right to use a part
of the island for expansion of its EEZ. The situation is unsatisfactory where
former islands, lying outside the territorial sea, once had the sovereignty of
a state and accordingly could be used to generate a territorial sea of their
own.83 The question thus arises if the concepts of sovereignty and appro-
priation should apply to low-tide elevations which had once been islands.
In the case of islands surrounded by reefs, the baseline for measuring the
breadth of the territorial seas is the seaward low-water line of the fringing
reefs. Accordingly, a rise in sea level may change the scope of the territorial
sea of such islands. The entitlement to maritime zones beyond the territorial
sea does not apply if an insular feature is not an island in the sense of para-
graph 2 but a rock in the sense of paragraph 3 of UNCLOS Article 121.
Rocks which cannot sustain human habitation or economic life of their own
shall have no EEZ or continental shelf.84 These criteria have been debated
for lack of clarity in distinguishing rocks from islands.85 Being mixed with
the sea level rise, the island versus rocks criteria will almost inevitably be
complicated and causing more confusion in state practice about their legal
status and entitlement.86
With respect to river banks, UNCLOS Article 9 provides that if 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. How-
ever, river banks are susceptible to constant erosion and sedimentation,
which may subsequently cause changes in the maritime zone determined on
the basis of river banks. It is getting more important and vital to make clear
distinction between islands, low-tide elevations or even reefs as it may be-
come particularly contentious in the event that sea levels should rise rapidly.
82 (ibid.).
85 The ability of rocks to sustain human habitation or economic life of their own may
be altered in the course of economic development, possibly fuelled by technological
advancement. Many rocks thus have a potential capacity to host at least some human
population or produce some economic activity. See Dipla (2008–:para. 8).
86 For a discussion on this, see Xue (2011).
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IV. Legal Implications: Solutions to Resolve Potential Conflicts
The temporary nature and legal uncertainty of maritime boundaries are not
desirable, since they have the potential to intensify existing conflicts over
marine resources or trigger new ones. This problem may appear not so sig-
nificant compared to the humanitarian challenge but it is of undeniable im-
portance since it brings in its wake a whole series of geopolitical and eco-
nomic consequences, especially in the current context where natural re-
sources are becoming increasingly rare. They could pose a threat to world
peace if they are not wisely negotiated and carefully managed.
With the ambulatory nature of baselines, numerous legal issues are raised,
among which, determining the extent of rising sea levels on baselines and
boundary delimitation are the core ones. In order to prevent such dispute,
some scholars suggested a change of great importance as the formulation of
strict procedures to officially modify a maritime boundary and to guarantee
firm expectations of interests to all states concerning a maritime bound-
ary.87 It is worth mentioning that the drawing of baselines is necessarily a
unilateral action, however, the validity of the delimitation with regard to
other states depends on international law.88 As the states concerned take
different stances, it is advisable to settle maritime boundary delimitation on
a permanent basis with defined geographical coordinates by bilateral agree-
ments.89
Proposals are also made for the affected states to fix or freeze presently
accepted baselines and/or outer limits of maritime zones where appropri-
ate.90 A coastal state may announce the baselines established in accordance
with the UNCLOS as permanent once it has deposited the geographical co-
ordinates with the UN on an adequate scale with due publicity, notwith-
standing subsequent changes in geographical features of coasts or islands
due to sea level rise. The reality is that the totally submerged islands (dis-
appeared) may cease to generate any maritime zones, and the partial sub-
merged ones may become rocks that are not entitled to an EEZ or continental
shelf. More importantly, only states can claim maritime zones, therefore
87 Caron (2008).
88 Kwiatkowska (2007:944).
89 According to UNCLOS, Articles 5 and 16(1), to declare baselines by recourse to
geographical coordinates may require amendment of domestic legislation.
90 Such proposals include fixing of baselines by Caron (2008), fixing of outer limits by
Soons (1990), Freestone & Pethick (1994).
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when a state ceases to exist, maritime zones cease and may revert to global
commons or to other states.
To avoid uncertainty and possible conflicts under the situation of constant
rising sea levels, it may be necessary to promote the adoption of universal
rules by means of a multilateral agreement or an international organisation
to protect the affected baselines drawn in accordance with UNCLOS to make
it permanent from the time they are publicly declared.91 Although this is
deemed to be very difficult, it is a task of legal scholarship to aid societal
adaptation to global climate change by identifying and addressing legal
challenges.”92
D. Possible Effects of Sea Level Rise on Low Lying States and Legal
Remedies
While the unfolding, collectively-induced climate crisis is having significant

impacts on the world’s oceans and marine ecosystems, humankind is also to
subject to its associated environmental damages and severe conse-
quences.93 Indeed, its global nature and capacity to hinder sustainable de-
velopment is reflected from the most striking examples of its human impact
on low lying states, typically the SIDS who are already poor and vulnerable
with the weakest capability to bear the profound challenges and additional
burdens.94
I. De-territorialised States and Climate Exiles
The effects of rises in sea level and the threats this poses for low lying coastal
states have been the subject of extensive study and commentary since the
1980s. More than half of the world’s population lives in coastal areas, and
the accelerating sea level rise imposes serious adverse human impacts in a
91 This may be done to be based on the procedural mechanisms to develop customary

international law, draft a Protocol to UNFCCC, formal amendment of UNCLOS, or
UNGA Resolution (PART XI approach).
92 Caron (2008).
93 Pernetta (1992).
94 For more information on this account, see Small Island Developing States Network
at http://www.sidsnet.org/; for Environmental Vulnerability Index, see http://www.
vulnerabilityindex.net, last accessed 03 May 2013.
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variety of ways.95 As the effects of climate change intensify, the coastal and
island communities of the low-lying Pacific SIDS are especially endan-
gered.96 They may lose not only their homes, but their entire nations, and
will be forced to leave their homes within the next half-century.97 In the
worst scenario, some extremely vulnerable SIDS such as Maldives, Tuvalu,
Marshall Islands and Kiribati98 will suffer from partial or total loss of sub-
merged territory and become the victims of climate change as de-territori-
alised states and climate exiles.99
Although there is no comprehensive review of present and projected cli-
mate change impacts on the SIDS as a whole, there is no great gap and
difference about the influence of climate risk on SIDS.100 The SIDS, com-
prising 52 small countries and territories in the tropics and low-latitude sub-
tropics, are the least responsible for GHG emissions, yet are likely to suffer
95 Burns (2001).
96 A rise in sea level of only one meter would allegedly destroy a large portion of
Bangladesh, 75% of the low-lying islands in Vanuatu and 80% of the Majuro Atoll
of the Marshall Islands, and inundate residential areas for half of the public. Ghina
(2003a) and (2003b:7).
97 Park (2011).
98 Tuvalu, a small island state in the South Pacific Ocean with an average altitude of
less than 3 meters, risks being wiped off the map in the next decades. Kiribati is
seriously contemplating moving their inhabitants on to floating islands constructed
on the model of giant oil platforms. Tuvalu and three other small Pacific island
nations (Fiji, Kiribati, and Nauru) have contemplated a lawsuit, as evidenced by
their declarations upon signing the UNFCCC in 1992 that preserved its right to seek
legal redress for damages allegedly suffered as a result of climate change. See http://
www.aosis.org, last accessed 03 May 2013 for more information and the full
Declaration.
99 Under international law, refugees are strictly considered to be those who have been
forced to flee their homes countries as a result of war or persecution and have the
possibility of return when things get better in the future. They seek asylum under
the condition that they cannot obtain protection from their own state; often their
own state is responsible for their vulnerable situation. But when a person’s home,
land or indeed entire country is wiped out by a phenomenon such as rising seas
there is no hope or chance that the person will ever be able to return home. Such
individuals will therefore essentially have become ‘climate exiles’ who will have
no legal status and few options other than to become permanent boat people unless
the international community develops early strategies to address their legal needs.
For discussions, see Kelman, & West (2009); Kelman (2011); Dore (2005:1168).
100 Lewis (1999).
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the worst effects, and be disproportionally burdened by climate change.101

They are ecologically fragile and vulnerable owing to their small size, limi-
ted resources, geographic dispersion that put them in a disadvantaged pos-
ition in sustainable development.102 Many residents or settlements of such
states suffer from extreme weather events like storm surges and other haz-
ards, of increased frequency and intensity.103
Of course, they are not the only small island nations that suffer damages
from climate damages, many other states are suffering from sea level rise
which is causing adverse impacts.104 From coral atolls in the Pacific Ocean
to low-lying coastal states to landlocked Himalayan nations, scores of such
states are positioned as climate change victims.105 In Bangladesh alone,
people migrating in response to climate change could outnumber all current
refugees worldwide.106
II. The Statehood Dilemma and Compensation Challenges
In the light of wide-ranging effects of current global warming and sea level
rise, two broad policy responses have been adopted in addressing the nega-
tive impacts. One is mitigation, which searches for actions aimed at slowing
down climate change by reducing net GHG emissions, the other is adapta-
tion, which seeks for actions taken in response to, or in anticipation of, pro-
jected or actual changes in climate.107 While scientists, managers and re-
source users work actively to design adaptation strategies that reduce the
vulnerability of marine species, systems and industries to climate change,
legal scholars have been trying to search for means of possibilities to legally
101 A List of Small Island Developing States (UN and Non UN Members) is available
at http://www.un.org/special-rep/ohrlls/sid/list.htm, last accessed 03 May 2013;
Ghina (2003a).
102 Lewis (1990). See also Wisner et al. (2004).
103 IPCC (2007b:18).
104 The Alliance of Small Island States, an intergovernmental body established in 1990
to address global warming and negotiate within the UN system, has 37 members,
36 of which are UNCLOS states parties.
105 Voccia (2012).
106 Based on an estimate that includes anyone who was foreign-born in their current
country of residence, migrants worldwide make up about 175 million people. See
Hinrichsen (1998); Lewsey & Kruse (2004).
107 Dang et al. (2003).
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maintain the statehood and maritime entitlement of the affected states in the
event of inundation.108
Questions have been raised about who will bear the costs of adaptation
measures of the affected states and who has to pay for the damages and
compensate the climate exiles for their loss of homelands and property, the
damage to their health and life?109 How can these states be better protected
through the path of international legal remedies with regard to states’ re-
sponsibilities and environmental liability? However, current international
law does not adequately address the statehood dilemma and continued main-
tenance of their entitlements in the context of sea level rise. The cross-cutting
issues of climate exiles link to many areas of key interests of those dislocated
people, including development, national security, and human, indigenous,
and cultural rights.
The emerging issues relating to the statehood dilemma and climate exiles
are particularly pressing in the context of vulnerable SIDS whose very ex-
istence is threatened. In an attempt to build pressure to force states to take
action on climate change, a widespread consensus on the need for interna-
tional legal protection of climate migrants has emerged by turning to the
courts as a means and strategy to bringing about major change and promote
greater action to address the adverse impacts,110 and to seek to hold those
responsible for GHG emissions accountable for the impacts of their past and
future actions.111
To rescue their ‘disappearing’ territory and statehood, the SIDS have also
been trying to seek assistance from international law for adaptation, stability,
108 1994 Report of the Global Conference on the Sustainable Development of Small
Island Developing States. Document A/CONF.167/9 (October, 1994) from the
Global Conference on the Sustainable Development of Small Island Developing
States, Bridgetown, UN, 25 April – 6 May 1994.
109 Legal issues have been raised and suggested concept recognition of new category
of state as de-territorialised state in international law. For details, see Rayfuse
(2010).
110 Climate litigation is a relatively new phenomenon, but recent decisions in Australia
ruling in favour of the arguments of environmental applicants suggest that it is a
trend that will only continue to grow in the coming years. See Peel (2007:103).
111 According to Vicuña (1998:280), “responsibility and liability for environmental
damage should not always be regarded as a negative sanction, but rather…as a
positive inducement to prevention, restoration or compensation as the case may be.”
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and a future,112 whereas, the issue regarding to international legal remedies

for the affected states has been hotly debated. Views are divided regarding
whether international law offers a possibility for states injured by climate
change-related impacts to claim, and be awarded, compensation for the
damage suffered, and to what extent the GHG emitting states are responsible
to compensate the injured states.113
The literature reveals regretfully that international attempts to hold emit-
ters accountable have not been successful. Tuvalu’s threat to sue the United
States and Australia at the International Court of Justice, and the Inuit’s
petition to the Inter-American Commission on Human Rights were both
hampered by procedural and substantive legal issues.114 This indicates the
need for a holistic and proactive approach along? the progress to enhance
the linkages between climate damages and legal remedy for the affected
states to find a solution to protect states as SIDS for their loss in statehood
and maritime zones.115
112 A group of SIDS, headed by Palau, asked the UN General Assembly to seek an
advisory opinion from the International Court of Justice on the legal responsibilities
of nations whose corporations cause international harm through contributing to
climate change. See International: Palau to seek ICJ Advisory Opinion, available
at http://www.climatelaw.org/cases/country/intl/icj/palau, last accessed 03 May
2013. UN Department of Public Information, Advisory opinion on climate change,
03 February 2012, at http://www.un.org/News/briefings/docs/2012/120203_ICJ.d
oc.htm.
113 Vicuña (1998).
114 Weinbaum (2011) holds the view that tort law and human rights-based litigation
may not be the most effective approach to meet the immediate needs of SIDS’ facing
the dire consequences as climate victims.
115 For the first time, nations agreed at the UN climate conference in Qatar that “de-
veloping nations that are particularly vulnerable to the adverse effects of climate
change” and might have a right to redress from major polluting nations for any
resulting “loss and damage.” The IPCC directed its staff to begin research on how
to ensure that redress. The new diplomatic language about “loss and damage”
adopted in Qatar signifies that there has been a potential breach of the UNFCCC
agreement. And that breach can only intensify the demand for the responsibilities
of states to be defined in law. The latest action taken in Qatar suggests nations now
concede that damaging impacts of climate change are inescapable.
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III. Legal Remedies and Litigation Strategy
Customary international law has a fundamental principle that states may do

each other no harm.116 A state violates this rule if an activity under its control
does damage to another state, and if it is done on purpose or due to care-
lessness. Impacts of climate change fall under this rule, as reinforced by
many declarations and treaties including the UNFCCC and Kyoto Proto-
col.117 Given the failure of the world’s major greenhouse gas emitting na-
tions to meaningfully address climate change domestically or through in-
ternational regimes, there is a rise in plans for litigation worldwide for con-
sequences of global warming and sea level rise.118
The vision of litigation may help to deepen the commitment of states to
confront this pressing issue as an important mechanism for raising public,
political and commercial awareness. Equally great is the possibility that lit-
igation could be an alternative for many states that may bear the brunt of
climate impacts during this century and beyond, and its significance extends
beyond the court room.119 On the other hand, as a common challenge to all
litigation is establishing legal causation, litigation of this kind is complex
due to the nature of the science and the facts of climate change, and it in-
volves interrelated legal and scientific issues and touches upon many dif-
ferent aspects of international and domestic law. Climate change law and
policy regarding state responsibility under UNFCCC and Kyoto Proto-
col,120 as currently organised, are being constructed at the intersection of
several areas of law, including international law, environmental law, energy
law, and business law, and are ill-equipped to deal with an inherently cross-
116 The no harm rule is a rule of customary international law that declares a state has
a duty to prevent, reduce and control the risk of environmental harm to other states.
The rule has been applied in many cases and is included in international agreements,
such as the Declaration of the United Nations Conference on the Human Environ-
ment. See Schwarte (2012).
117 For discussions on this, see Brownlie (1983); Churchill & Freestone (1991); Free-
stone & Hey (1996); Yamin & Depledge (2004).
118 United Nations Economic and Social Council (2011); United Nations General As-
sembly (1994); Report of the International Meeting to Review the Implementation
of the Program of Action for the Sustainable Development of Small Island Devel-
oping States. A/CONF.207/11, Port Louis, Mauritius, 2005.
119 Wiggins (2007).
120 McAdam (2009).
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cutting issue like climate change and litigation.121 It is likely to be challeng-

ing to establish that the emissions of a single defendant are significant
enough to be regarded as having caused the damage suffered, and may have
to take a while before climate change actions are instituted.
At the mention of environmental liability, the polluter pays principle does
play a crucial role,122 but the difficulty may lie in the fact that compensation
for the harm done depends on many parameters, such as emission scenarios,
climate change impacts and its accounting. For example, coral reefs face
many other threats that may also contribute to their degradation, including
disease, predators, and pollution. Thus, it may be difficult to attribute dam-
ages solely, or even substantially, to the degradation of reefs. It would be
difficult for the small and vulnerable states to provide evidence for such
links. Likewise when a party facing such an action in dealing with GHG
emission responsibility for marine damages to the emissions of any individ-
ual country, it might have to argue that all other responsible parties must be
brought into the dispute.123 Given the difficulties to make a successful claim,
the most crucial issues are from when countries can be held responsible and
which emissions are acceptable and which careless.124 The effectiveness of
this strategy for achieving climate goals is further limited by the time and
expense of litigating, the restrictions inherent in environmental law, admin-
istrative challenges, and the possibility that judicial decisions may be over-
ruled by the legislature.125
Nevertheless, this does not mean that there are no means available to serve
as legal remedies for the states affected. There is a long standing body of
international instruments concerning damage caused by nuclear activities,
as well as in the field of oil pollution at sea.126 More recent instruments deal
with damage caused by maritime transport of hazardous and noxious sub-
stances.127 Operational procedures of these actions will lend strength to the
121 The traditional ways in which law and policy have been divided into fields of inquiry
and operation, such as human rights, trade, development and so on, do not reflect
the messy, complex interconnectedness of the issue. Dernbach & Kakade (2008).
122 Ingelson et al. (2010:456).
123 See Draft Articles on Responsibility of States for International Wrongful Acts (Ar-
ticle 47). International Law Commission, 2001, available at http://www.un.org/la
w/ilc/texts/State_responsibility /responsibilityfra.htm, last accessed 03 May 2013.
124 Myles (2003:892).
125 Bach & Brown (2009); Tol & Verheyen (2004:1111).
126 Basse (2009:36).
127 (ibid.).
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formation of climate litigation. With the rising tide of international climate

litigation, the business as usual mentality and environmental unresponsive-
ness will soon become a thing of the past. The possibility of a small island
state, or another injured party, bringing a liability claim against states re-
sponsible for climate change will no longer be a topic for fiction or a theo-
retical prospect. What remains is to muster the political will necessary to
turn potential solutions into reality.
E. The UNCLOS Regime and Protection of Affected States
Facing the critical changes occurring in the oceans and disappearing low
lying states, how to address the climate change damages and find practical
solutions to support the affected states, has become arguably the most press-
ing legal, environmental, political, economic, social and ethical issue of our
time.128 This section looks into the UNCLOS regime in controlling pollution
of marine environment and settling disputes with special attention to its po-
tential in protecting the affected states.
I. “Pollution” Definition and GHG Inclusion
The UNCLOS, comprising 320 Articles and nine annexes, establishes a

comprehensive framework for the world’s oceans governing all aspects of
ocean matters, particularly on how the living resources of the oceans are
managed and marine pollution is regulated so as to protect coastal states’
vital economic and environmental interests. Concerning the “Protection and
Preservation of the Marine Environment”, a regime is set forth in Part XII
with obligations being emphasised to prevent, reduce and control pollution
literally from all sources, i.e. land-based sources, from sea-bed activities,
from activities in the Area, by dumping, from vessels, and from or through
the atmosphere.129 UNCLOS sets up rules of jurisdiction that clarify where
and how states parties adopt domestic laws and regulations, international
environmental standards and other measures to control pollution for the
128 Wiggins (2007).

129 UNCLOS, Articles 207 to 212.
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health of the oceans and the living resources, and that must be no less ef-
fective than the “global rules and standards”.130
As one of the most important instruments and widely ratified multilateral
treaties, its provisions on environmental protection by themselves would
constitute a critically important environmental treaty to protect the physical
health of the ocean, also the living resources therein. This is reflected from
how the term is defined on “pollution of the marine environment” to mean131
the introduction by man, directly or indirectly, of substances or energy into the
marine environment, including estuaries, which results or is likely to result in
such deleterious effects as harm to living resources and marine life, hazards to
human health, hindrance to marine activities, including fishing and other legit-
imate uses of the sea, impairment of quality for use of sea water and reduction
of amenities.
There is no direct reference to climate change in this definition, no indication
in forming a basis for ocean damage compensation. Nevertheless, it makes
clear that any “substances or energy” introduced by human activities, either
directly or indirectly, into the marine environment resulting in “deleterious
effects as harm to living resources and marine life” constitute the pollution
of the marine environment. Through this expansive definition, GHG emis-
sions from or through the atmosphere appear to be pollution covered under
its regime.132
As discussed earlier, evidenced from scientific findings, the accumulation
of CO2 has resulted in the temperatures and acidification increase of sea
waters that has caused damage to marine living resources such as corals and
the habitat. The rising sea levels have also brought negative consequences
to the livelihood and very existence of low lying states. These manifestations

131 UNCLOS, Part 1, Article 1(4).
132 This may find support from the United States Environmental Protection Agency
(EPA) action in regulating GHG under the Clean Air Act from mobile and stationary
sources of air pollution in 2011. See Massachusetts v EPA, 127 S. Ct. 1438 –
Supreme Court 2007: 127 S. Ct. 1438 (2007), Massachusetts et al., Petitioners, v
Environmental Protection Agency et al. No. 05-1120. Supreme Court of United
States. Argued 29 November 2006. Decided 02 April 2007. For actions taken by
the EPA to regulate GHG, and steps planned to complete emissions rules, see En-
vironmental and Energy Study Institute. Fact Sheet: Timeline of EPA Action on
Greenhouse Gases, available at http://www.eesi.org/epa_ghg_timeline_070711 ,
last accessed 03 May 2013.
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may give rise to actions under the UNCLOS.133 Similarly, UNCLOS makes
no direct mention of the impermissibility of geo-engineering measures in
general or CCS and OF in particular, its definition would prohibit such ac-
tivities because of their potential risks of deleterious effects to the marine
environment.134
Such an expansive definition was said to have originated from a series of
drafts and proposals embodying a comprehensive approach and reflecting
principles adopted in the 1970s by the international community including
the UN Conference on the Human Environment (the Stockholm Confer-
ence)135 and “the consensus that pollution from all sources should be dealt
with, in relation to a broad, indeed all embracing, concept of ‘marine envi-
ronment.’”136 The concept is consolidated by concrete efforts through 46
Articles of Part XII and relevant provisions of other parts prescribing specific
duties for states to protect and preserve the marine environment.137
II. Marine Environmental Protection and GHG Emission Reduction
Articles 192–237 in Part XII of the UNCLOS set out rights and duties of
states in controlling pollution with appropriate care and formulates a com-
prehensive set of regime marine environmental protection.138 Under the
UNCLOS, states are required to undertake all measures necessary “to pre-
vent, reduce and control pollution of the marine environment from any
source,”139 including “the release of toxic, harmful or noxious substances,
especially those that are persistent140... from land-based sources, [or] from
133 Burns (2006).

134 See Duhaime Legal Dictionary on Pollution, available at http://www.duhaime.org
/LegalDictionary/P/Pollution.aspx, last accessed 03 May 2013.
135 The Stockholm Declaration came out of the 1972 Stockholm Conference on the
Human Environment, often considered the progenitor of the modern environmental
movement. Principle 21 of the Declaration is most apposite. For details, see http://
www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1
503, last accessed 03 May 2013.
136 See Nordquest et al. (1991:55).
137 UN Secretary General, Law of the Sea: Protection and Preservation of the Marine
Environment, UN Doc. A/44/461, 1989, para. 30.
138 Hafetz (2000:596).
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or through the atmosphere....”141 UNCLOS is significant in adopting a dif-

ferent approach to the classification of the various pollution sources that
should be regulated by international rules and national legislation to prevent,
reduce and control pollution of the marine environment. It is a departure
from previous international regulations of this kind.142
Among the listed sources of pollution, pollution from or via the atmo-
sphere is specifically dealt with in Article 212 and other places in Part XII
of the UNCLOS where states are required to adopt laws and regulations
applicable to the air space under their sovereignty and to vessels flying their
flag or vessels or aircraft of their registry, taking into account internationally
agreed rules, standards and recommended practices and procedures to pre-
vent, reduce and control pollution from or through the atmosphere.143 In
addition to fulfil their duty to protect and preserve the marine environment,
states are further required to ensure that activities under their jurisdiction are
conducted in a manner that does not cause pollution damage to other states
and their environment.144 It emphasises that all necessary measures need to
be taken to ensure transboundary harm should be avoided.145 This provision
is particularly relevant to GHG emissions. Collectively with the pollution
definition, it implicitly prohibits any “substances and energy” that may cause
pollution to the atmosphere including unlimited emissions of GHG. In this
regard, the UNFCCC and Kyoto Protocol also provide a framework as the
most important obligation for substantive international action in reducing
the GHG emissions and potential climate damages to the oceans.
Moreover, Article 197 of the UNCLOS requires parties to cooperate
through competent international organisations to formulate rules, standards,
and practices to protect and preserve the marine environment.146 Parties are
141 UNCLOS, Article 194(3)(a). See also Article 212.

142 Such as the International Convention on Pollution of the Sea 1954 by Oil and
MARPOL 73/78 which concerned only operational/accidental discharges of vessel-
sourced.
143 UNCLOS, Articles 207, 208, 209, 210, 211, and 212(1).
146 The International Maritime Organisation (IMO) is one of such competent interna-
tional organisations, a specialised agency of the UN responsible for measures to
improve the safety and security of international shipping and to prevent marine
pollution from ships. It also is involved in legal matters, including liability and
compensation issues and the facilitation of international maritime traffic. Marine
environment protection is one of its strong focuses. It develops global regulations,
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also obligated under Article 204 to act directly or through competent inter-
national organisations to monitor the risks or effects of pollution of the ma-
rine environment, and to keep under surveillance the effects of any activities
which they permit or in which they engage in order to determine whether
these activities are likely to pollute the marine environment. As a reflection
of UNCLOS “as strict as possible approach”, this requirement has also been
adopted in recent decades by the international community in the form of the
precautionary principle with implications to states that produce GHG emis-
sions.147 In the same fashion, Article 212 is also pertinent where it requires
parties to act through competent international organisations or diplomatic
conferences to establish measures to prevent, reduce, and control pollution.
The UNFCCC should clearly be analysed as such “competent organisation”
to address climate change given the fact that it has been ratified by 195
parties, including all of the world’s major GHG emitting states.148 The obli-
gations under UNFCCC should be recognised as “international mechanisms
to control pollution” under Article 212 of UNCLOS, since its overarching
purpose is to control GHG emissions so as to “prevent dangerous anthro-
pogenic interference with the climate system.”149
It is noteworthy that whilst some UNCLOS provisions set regulatory
standards for the protection and preservation of the marine environment,
Articles such as 213–222 and 235 are rules for those standards to be enforced.
In particular, Article 235 explicitly deals with state responsibility and lia-
bility for the fulfilment of their international obligations concerning the pro-
tection and preservation of the marine environment. Under Article 235, state
responsibility is triggered when it fails to fulfil the responsibilities provided
by the UNCLOS, and states need to ensure available recourse for prompt
and adequate compensation or other relief in respect of damage caused by
pollution of the marine environment. With the objective of assuring prompt
and adequate compensation, states are to cooperate in the implementation
of existing international law and to further develop international law relating
to responsibility and liability for the assessment of and compensation for
adopts treaties and guidelines at the intergovernmental level, and member govern-
ments are responsible for implementing and enforcing the adopted regulatory
framework. For details, see http://www.imo.org, last accessed 03 May 2013.
147 For general discussions, see Freestone & Hey (1996).
148 See http://unfccc.int/essential_background/convention/status_of_ratification/item
s/2631.php.
149 UNFCCC, Article 2.
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damage and the settlement of related disputes, and develop criteria and pro-
cedures for payment of adequate compensation, such as compulsory insu-
rance or compensation funds.150
This imposes a very stringent standard of care in mandating states’ obli-
gations and liabilities as juridical persons in accordance with international
law.151 It also secures the linkage between Article 235 and the UNFCCC
regime. The latter is clearly an international obligation that can contribute
to the protection and preservation of the marine environment by reducing
GHG emissions. Indeed, the UNFCCC specifically acknowledges the po-
tential impacts of climate change on natural ecosystems,152 and the need for
special regard of countries with fragile ecosystems.153 Article 304 also af-
firms that a state is responsible and liable for damage to the marine envi-
ronment.
Another such linkage rests between UNCLOS and other environmental
treaties represented by the 1972 London Convention and its 1996 Protocol,
which substantially increases the viability of UNCLOS to reduce GHG
damages to the marine environment.154 One of the important consequences
lies in the fact that parties to either UNCLOS or the London Convention/
Protocol are obligated to the “global rules and standards” referenced by Ar-
ticle 210 that provides the foundation for regulation of dumping activities
including CCS and OF types of marine geo-engineering projects.
Under Article 210 (6) of the UNCLOS, the national laws, regulations and
measures of a state shall be no less effective in preventing, reducing and
controlling pollution than the global rules and standards, which implicitly

152 UNCLOS, Preamble.
153 UNCLOS, Article 2(8g).
154 UNEP lists over 500 agreements between or among states that deal with environ-
mental issues out of 40,000 total international agreements, see http://unfccc.int/do
cumentation/documents/items/3595.php. International agreements to protect the
marine environment include: International Convention for the Prevention of Pol-
lution of Ships (MARPOL 72/78 adopted in 1973 and updated with a 1978 Proto-
col); Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, 1972 (the “London Convention 1972”); the Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal;
Global Programme of Action for the Protection of the Marine Environment from
Land-based Activities, 1995; and Long Range Transport of Atmospheric Pollutants.
For details, see http://www.unep.org/; http://www.imo.org/, last accessed 03 May
2013; and Freestone & Hey (1996).
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refers to those set under the London Convention/Protocol. It enhances the

compatibility and consistency of London Convention/Protocol with UNC-
LOS, and successful implementation of any of them will contribute to the
effectiveness of UNCLOS. In case of potential boundaries, they should be
clarified in the interest of harmonised and effective operation of these agree-
ments.
Another characteristic linkage is imbedded in the UNCLOS itself regard-
ing two interrelated goals: environmental protection and conservation of
marine living resources. Needless to say, they both have distinctive impli-
cations to the effects of sea level rise. The UNCLOS Preamble provides that
under the general consensus, parties agreed to establish “a legal order for the
seas and oceans which will facilitate … the conservation of their living re-
sources, and … protection and preservation of the marine environ-
ment”.155 Based on this consensus, the conservation and protection of marine
living resources are the ultimate goal of environment protection.
For this purpose, UNCLOS devotes the whole of Part V to marine re-
sources where parties are allowed by Article 56 to establish an EEZ up to
200 nm from the territorial sea baselines to exercise, inter alia “sovereign
rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living....”156 This predominantly
refers to the right to exclusively harvest the living resources in the EEZ, and
to impose conservation measures for the resources and fishing operations
conducted in the EEZ.157 While Article 62 provides that coastal states have
certain conservation and restoration obligations towards marine living re-
sources, Article 61 reminds parties to balance their interests between envi-
ronmental protection and economic development.158 By so doing, the
UNCLOS tries to strive for a balance between the sovereign right of States
to exploit their natural resources and their obligations to protect and preserve
the marine environment in their EEZs.159 This is echoed in Part XII by re-
quiring states to take measures to protect and preserve “rare or fragile
155 UNCLOS, Preamble, Para. 5.

156 UNCLOS, Article 56(1a).
157 UNCLOS, Articles 56(1a), 61, and 62.
158 The two relevant environmental and economic factors listed in order are the “eco-
nomic needs of coastal fishing communities and the special requirements of devel-
oping States” and “the interdependence of stocks and any generally recommended
international minimum standards.” UNCLOS, Article 61.
159 See also UNCLOS Articles 193, 192.
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ecosystems” and “the habitat of depleted, threatened or endangered species

and other forms of marine life.”160 Based on this regime setting, the projected
increases in seawater temperature with many adverse impacts oceanic sys-
tem give rise to claims under the UNCLOS.
III. Compulsory Dispute Settlement and Climate Litigation
As a multilateral instrument of near global adherence concerned with, inter

alia, the prevention, reduction and control of marine pollution, the UNCLOS
establishes its own adjudicatory system to provide for binding resolution of
conflicts that arise under its provisions.161 In cases where disputes related to
the interpretation or application of provision arise and cannot be settled
through an exchange of views or conciliation, Part XV provides compulsory
adjudication procedures that entail binding decisions for such disputes.162
Through Annex VI, UNCLOS designated an International Tribunal for
the Law of the Sea (ITLOS) to act as its judicial guardian.163 In addition to
the ITLOS, UNCLOS provides channels for special international arbitral
panels for disputes falling into several specialised categories covering fish-
eries, marine scientific research, protection and preservation of the marine
environment, and navigation-related pollution from vessels and by dump-
ing.164 States may choose to declare their choice of forum when ratifying/
acceding to the UNCLOS, but in cases where they have not, or parties to a
dispute have not accepted the same procedure for dispute settlement, the
dispute may only be submitted to binding arbitration unless the parties agree
otherwise.165
As maintaining linkages to other global treaties on pollution control, UN-
CLOS also reserves the availability of other international judicial institutions

161 Legal scholars proposed various forums for initiating a lawsuit against the United
States, including UNCLOS’s compulsory dispute resolution mechanisms. Strauss
(2003:8).
162 UNCLOS, Articles 279–285.
163 The Tribunal commenced its work in Hamburg in 1996 and is composed of 21
judges representing the legal systems of the Convention’s Parties (Articles 1, 2, and
4).
164 UNCLOS Annex VIII, Article 1.
165 UNCLOS Article 287(3–5).
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responsible for safeguarding the compliance of international laws.166 The

parties to UNCLOS are free to choose whether to submit disputes concerning
the interpretation and application of UNCLOS to ITLOS, or whether to apply
to an arbitral panel, such as the International Court of Justice (ICJ) in The
Hague or another arbitral tribunal.167
With the compulsory dispute settlement mechanism, chances for UNC-
LOS parties to take actions against the GHG emitting states for their losses
greatly increased. Moreover, one of its implementation agreements, the UN
Straddling Fish Stocks Agreement168 signifying an important development
of UNCLOS regime relating to conservation of living resources, can also
serve as a dispute resolution mechanism and a means to liability. This agree-
ment is not explicitly intended to deal with the problem of global warming;
it does, however, incorporate the system of UNCLOS binding dispute res-
olution, and provides a framework for protecting certain species of fish, and
to the extent that GHG emissions can be shown to endanger such fish, its
protective environmental provisions could potentially be liberally interpret-
ed to cover global warming.
Such a mechanism may also capable of fixing some loopholes of UNFC-
CC provisions. For example, the non-mandatory language is typical in call-
ing on Annex I Parties169 to reduce their GHG emissions back to 1990 levels
by 2000;170 the scope of the obligations of the parties to the UNFCCC cannot
be established and connected directly to Articles 197, 212, and 235 of UN-
CLOS. Nonetheless, interpretation of the nature of this obligation must be
166 For a list of cases ITLOS processed, see http://www.itlos.org/index.php?

id=35&L=1AND1%3D1, last accessed 03 May 2013. For discussions on this ac-
count, see Schwarte (2004:423f.).
168 The full name is: the United Nations Agreement for the Implementation of the
Provisions of the United Nations Convention on the Law of the Sea of 10 December
1982 relating to the Conservation and Management of Straddling Fish Stocks and
Highly Migratory Fish Stocks. It was adopted on 4 August 1995 and entered into
force on 11 December 2001. As of 7 November 2012, it had 80 ratifications. For
further information on this agreement, see, http://www.un.org/Depts/los/conventio
n_agreements/convention_overview_fish_stocks.htm, last accessed 03 May 2013.
169 Under the UNFCCC, Annex I Parties “include the industrialized countries that were
members of the OECD (Organization for Economic Co-operation and Develop-
ment) in 1992, plus countries with economies in transition, see UNFCCC, “Parties
and Observers”, see http://unfccc.int/parties_and_observers/items/2704.php , last
170 UNFCCC, Article 4(2)(a)(b).
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read in light of Article 27 of the Vienna Convention on the Law of Treaties,

which requires that treaty obligations must be performed in “good
faith.”171 Under this accepted principle of customary international law, un-
less an Annex I Party to the UNFCCC could demonstrate its efforts in taking
substantive measures to reduce its emissions back to 1990 levels within the
prescribed time period, it would have to face the accountability that it had
failed to make a good faith effort to meet the longer-term objectives of the
UNFCCC.
Articles 2 and 4(2) of UNFCCC require Annex I Parties to adopt policies
and measures to stabilise GHG concentrations in the atmosphere at a level
that would prevent dangerous anthropogenic interference with the climate
system. This would be relevant to an action under UNCLOS given the po-
tential impacts of climate change on ecosystems, fisheries, and the economic
development of vulnerable developing states. A party to UNCLOS could
argue that all parties which have not met their obligations under the provi-
sions of the UNFCCC are liable for damages under Articles 235 and 197 of
UNCLOS.172 It should also be possible to make a similar argument under
the Kyoto Protocol should some of the Protocol’s Parties fail to meet their
obligations. Should foreseeable reality be the standard applied to resolve a
climate change action under UNCLOS, parties would probably have no
problem establishing that both the language of the UNFCCC and the com-
prehensive assessment reports of the IPCC have put all states on notice in
terms of climate threats, and more specifically, potential impacts on marine
environments. These states have failed to comply with Article 213 in regard
to internationally accepted standards on carbon emissions, and other uni-
versally accepted environmental standards such as the no harm rule as the
basis of climate change lawsuits.173
With these accompaniments, UNCLOS is competent to form a basis for
a cause of action for rising sea levels and changes in ocean acidity, and more
importantly to protect affected states. However, the application of this mech-
anism and relevant legal principles would certainly involve various complex
171 Vienna Convention on the Law of Treaties is in force since 27 January 1980 and
has 108 parties (as of 15 December 2008). The Convention has been ratified by all
major greenhouse gas emitting nations with the exception of the United States. For
more information, see http://untreaty.un.org/cod/avl/ha/vclt/vclt.html, last ac-
cessed 03 May 2013.
172 All industrialised countries are Parties to the UNFCCC. See supra, note 5.
173 Osofsky (2005).
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legal and scientific questions pertaining to climate change, for example, the
attribution of damages, causation, the standard of proof, striking a balance
between sovereign rights to exploit natural resources and protecting the ma-
rine environment, possible justifications or whether states can be held jointly
and severally liable. The low lying states such as SIDS which suffer from
sea level rise causing adverse impacts could bring a lawsuit as claimants, as
long as a state is an UNCLOS party and can demonstrate that it has suffered
detrimental effects from climate change, and it qualifies as a potential litigant
in compulsory dispute resolution tribunals of the UNCLOS.174 Scores of
such states are positioned to initiate climate change lawsuits against the ma-
jor emitters such as the United States if it accedes to the UNCLOS.
F. Concluding Remarks
Climate change is already having wide-spreading impacts on the world’s

oceanic systems and biodiversity. Sea level rise has brought about significant
challenges to coastal states’ rights to their maritime zones and access to their
vital resources. Global warming and rises in sea level induced by global
warming have detrimental effects on those low lying states and pose serious
threats to human welfare and sustainability. Climate change is projected to
become a progressively more significant threat in the coming decades.
Against this background, this article serves as a starting point for further
consideration of important issues raised by climate change and issues relat-
ing to legal response to its devastating scenario. With a strong focus on
remedies, it may be helpful in developing comprehensive research of the
wider implications for issues of international legal liability and a better pro-
tected and adaptive society against climate change.
The way in which states handle the oceans will be a decisive test of hu-
mankind’s ability to steer a sustainable course in the future. The failure of
the world’s major GHG emitting nations to seriously address climate change
has made litigation unavoidable.175 In seeking for possible responses to the
climate damages from the law of the sea perspectives, the article provides
174 The Alliance of Small Island States, an intergovernmental body established in 1990
to address global warming and negotiate within the UN system, has 40 members,
38 of which are UNCLOS states parties. For a list of the members, see http://aosis
.org/members/, last accessed 03 May 2013.
175 Burns (2006).
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key connections and linkages between the UNCLOS regime on marine en-
vironmental protection and other international rules and standards in the
form of treaties, from pollution definition to GHG emission inclusion, from
UNCLOS compulsory dispute settlement to UNFCCC, Kyoto Protocol im-
plementation and emission control. The article demonstrated the justification
of GHG as one of many marine pollution sources and its catastrophic con-
sequences to oceanic systems before going on to scrutinise existing inter-
national mechanisms as responses and remedies for such disastrous conse-
quences.
UNCLOS creates an extensive framework for taking and enforcing mea-
sures against different sources of marine pollution and strongly clarifies state
responsibilities for breaching its duties. UNCLOS can serve as an important
mechanism and strategy to combat climate change. Although, as with most
international treaties, it lacks the executive power of enforcement, UNCLOS
may prove to be a primary battle-ground under mounting pressures from
climate change, species extinction, overfishing and maritime pollution. Giv-
en its broad definition of pollution to the marine environment and the dispute
resolution mechanisms, UNCLOS has a remarkable ability to adapt to
changing circumstances and great potential to provide means for affected
states such as SIDS to seek for remedies for climate damages. As a promising
instrument, UNCLOS will continue to develop its normative effect in the
ocean domain and play a key role as a mechanism to confront climate change.
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Chapter Title: Climate Change Challenges and the Law of the Sea Responses

Chapter Author(s): Guifang (Julia) Xue

Book Title: Climate Change: International Law and Global Governance

Stable URL: https://www.jstor.org/stable/j.ctv941w8s.22

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Guifang (Julia) Xue

As one of the most pressing issues confronting human society, climate

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trating fact that the United Nations Framework Convention on Climate

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Union as of 7 November 2012,10 which made it almost universally accept-

B. Possible Effects of Climate Change on Marine Ecosystems and

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substantially in subsequent decades as a consequence of global warming

I. Deteriorated Environment and Worsening Ecosystems

Climate change is undoubtedly the most serious environmental crisis facing

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II. Depleted Resources and Damaged Habitat

Oceans generate considerable economic wealth through fisheries, aquacul-

23 Hofmann et al. (2010).

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III. Marine Geo-engineering Projects: Buried Troubles

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warming and ocean acidification.36 OF has been suggested as a simple,

IV. Environmental Implications: Ocean as the Last Resort

36 For discussions, see Rayfuse (2008).

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productivity and diversity if sustainable development is ensured world-

C. Possible Effects of Sea Level Rise on Baselines and Legal Implications

Historically, states had jurisdiction over a narrow strip of water adjacent to

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I. States’ Entitlement to Maritime Zones and Resources

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When drawing the baselines, two situations need to be considered re-

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II. State Relations and Boundary Delimitation

The immediate importance of baselines is even more evident in maritime

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With the looming unprecedented rise of sea-levels, the settlement of mar-

73 Churchill (2008–:para. 1).

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III. Territorial Entitlement and Uncertain Status

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IV. Legal Implications: Solutions to Resolve Potential Conflicts

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While the unfolding, collectively-induced climate crisis is having significant

I. De-territorialised States and Climate Exiles

91 This may be done to be based on the procedural mechanisms to develop customary

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the worst effects, and be disproportionally burdened by climate change.101

II. The Statehood Dilemma and Compensation Challenges

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and a future,112 whereas, the issue regarding to international legal remedies

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