What happens to the baselines under the international law of the sea when coastlines are no longer stable? In this interview, legal scholar Davor Vidas presents a wide horizon of connections between the exploitation of submarine resources and the zoning of maritime and territorial space and discusses how rising sea levels and offshore artificial structures are creating a host of challenges for the future of the Law of the Sea.
Technosphere Magazine: International law rests on the permanency or stability of the division between land and sea. The coast serves as a sort of baseline for not only mapping but also thinking territory, the law of nations and sovereignty. But with sea levels rising, with the creation of artificial islands, beach theft and seashore dredging, the world’s coasts are no longer a permanent feature. How can we reconcile this shifting of the baselines with our codified architecture of international law?
Davor Vidas: That question involves several layers, three at least. Each of these relates to a different fundamental consideration of international law as we know it today and as it applies to the seas and oceans—that is, the international law of the sea. The first consideration concerns the clear distinction between the land and the sea on which the law of the sea is based, and hence also its difference from the law applicable to land areas. The second is that of permanency or stability—and here let me stress that this is a matter of relative or general stability, based on experience so far, and not absolute stability (think of the changing conditions of, for instance, northern Denmark coast of Jutland or Ganges/Brahmaputra River delta and the coast of Bangladesh). It is that understanding of general stability of the land versus the sea that underlies the concept of a baseline from which various maritime zones of either full sovereignty or only some sovereign rights and exclusive jurisdiction are determined. And the third consideration is that of the rights that might be derived from artificial structures, be these various coastal installations or sea platforms—in other words, our interventions involving technical or technological solutions to either maintain or adjust the land/sea ratio or respond to the increasing instability of natural conditions. (This, by the way, must be distinguished from attempts to create new rights over the sea, by artificial islands or the like.)
Here we must recall the emergence of a new and overall context. That is a thoroughly unique context, as far as human civilization is concerned: the context of a change of epochs in the history of the Earth. We are leaving, or have probably already left, the conditions of the Holocene—which was characterized, especially in its later stage, by the longest generally stable interval of temperate conditions of the Earth system since the appearance of Homo sapiens. What we are already witnessing is the initial onset of the new, different conditions of the Anthropocene, marked by increasing pace of change, instability and unpredictability in the behavior of the Earth system. That overall context is highly relevant for international law in general, and for each of the three fundamental considerations of the law of the sea which I mentioned.
Technosphere Magazine: Could you elaborate a little more on those aspects, or three fundamental considerations as you introduced them, also in respect of the changes we are witnessing in the Anthropocene?
Davor Vidas: First, the distinction between the land and the sea is clearly stated in the basic axiom of the law of the sea: “The land dominates the sea.” This means that rights over different areas of the sea, or distinct maritime zones such as a 12-mile territorial sea or a 200-mile exclusive economic zone, are based on the sovereignty that a coastal state has over the land. Moreover, that maritime boundaries between states are determined with reference to their coastal features.
Second, there is the continuation of the axiom “the land dominates the sea“—specifying that the land dominates the sea “by the intermediary of the coastal front.“ In essence, that “intermediary“ is what, in the law of the sea, is termed—the baseline. That is a line, marked on an official chart, which either follows the configuration of the coast (a “normal“ baseline) or is composed of straight lines connecting certain basepoints of deeply indented or highly developed coasts, as with the coasts of Norway or Croatia (a “straight“ baseline). All maritime zones of coastal states are determined by measuring the legally defined distances from the baselines.
Third, the development of the law of the sea, especially as related to the continental shelf, has led to various artificial structures at sea, for instance oil and gas platforms. But the law of the sea is explicit on the status of such artificial islands or installations: they do not possess the legal status of (natural) islands and have no territorial sea of their own, and their presence does not affect the delimitation of the maritime zones such as the territorial sea, the exclusive economic zone or the continental shelf.
All this is codified in the 1982 United Nations Convention on the Law of the Sea—the “Constitution for the Oceans,” as it is often called—which entered into force in 1994, and is today legally binding on 167 states and the European Union. The Convention is almost universally applied, also by non-parties. The problem looming on the horizon, however, concerns the increasing changes in natural conditions, such as sea levels, which had remained remarkably stable for the past six to seven thousand years. That is, ultimately, what made possible the axiom that “the land dominates the sea—by the intermediary of the coastal front.” This presupposes the general stability of the sea-level and, accordingly, of the coastal baselines. A significant change in those conditions, as predicted by the latest IPCC report as well as by even more recent scientific findings, could call into question the cornerstone of the architecture of today's law of the sea.
And here the question of “artificial structures”—the role of the technosphere—might re-emerge in a new light, once we begin looking for solutions.
Technosphere Magazine: Your work in the law of the sea touches upon a geological feature that is basically submerged from our usual attention: the continental shelf. Please explain why this stretch of seabed is so pivotal in conceptualizing international rights and delimitations.
Davor Vidas: The main development of the law of the sea, initiated in the aftermath of World War II, drew on a geological basis: viewing the continental shelf as a submarine prolongation of the land territory of coastal states. The key argument here was that mineral (fossil) resources of that submarine area belong geologically to the same pool as those resources found on the land which forms part of the same continental mass. Out of the World War II came also various new technologies, many of them concerning new applications for fossil fuels, and a commitment by the governments of several industrially advanced countries to subsidized research and development.
The continental shelf as a concept of international law was initially articulated shortly after the end of the war: in September 1945 by a Proclamation issued by the US President Truman. The purpose was clearly defined: to extend the sovereign rights to new, distant borders under the sea, related to the exploitation of oil and gas from vast submarine areas. This was soon accepted by other coastal states. In a decades-long development, these external boundaries of the sovereign rights of coastal states have been gradually heading towards the outermost extent of the continental margin, at some places hundreds of miles away from the land territory. The geological concept of a continental shelf gave rise to the “legal” continental shelf. However, while the concept of a legal continental shelf was initially based on the unity of continental mass on land and its continental shelf under the sea, the temptation of resources—oil and gas in particular—extended the concept to quite different areas, ultimately far beyond the (geological) continental shelf, all the way to the edge of the continental margins, and beyond. At first, though, that was only a theoretical option, opened by a (not very carefully drafted) legal provision.
The key point in that story was back in 1958, when the Convention on the Continental Shelf was adopted at the First UN Conference on the Law of the Sea held in Geneva. In that Convention, the outer limit of the continental shelf was not defined with direct reliance on geology. Instead, the Geneva Convention contained a double criterion for defining the “legal” outer limit: to a depth of 200 meters, or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources. In effect, that second criterion was left dependent on technology feasibility and its development. That proved to be an open formula that made the outer limit of the continental shelf subject to unforeseeable changes, opening huge prospects for nations that were industrially developed and geographically favorably situated. It soon became conceivable that the criterion of “exploitability” might lead to constantly expanding claims and, in theory (depending on technology and economic feasibility), to the apportionment of the entire ocean floor by some coastal states. That, in turn, led to the initiative for negotiating a new convention, which remains in force today: the UN Convention on the Law of the Sea.
Technosphere Magazine: What about the exploitation of marine natural resources and marine environments in general? Are the coastal margins, the seafloor and the oceans in general merely just another area or space cultivated by the technosphere?
Davor Vidas: Most of the delegates at the 1958 Geneva Conference apparently did not believe that technological advances could in any near future enable the oil industry to develop structures that would permit drilling at depths of 200 meters. Less than ten years later, in 1967, Ambassador Arvid Pardo of Malta delivered what has since been recognized as a famous law-of-the-sea speech in the UN Gen¬eral Assembly. He argued for the establishment of an international regime for the sea-bed beyond the limits of “clearly” and “reasonably” defined national jurisdiction (as defined at that time!), and for the use of the resources thereof in the interests of mankind, with particular regard to the needs of poor countries. That initiative has become a familiar part of the modern history of the law of the sea. It was based on the argument that rapidly developing technology makes possible the exploration and exploitation of the world’s sea-beds and much of its ocean floor, and that some strategic minerals (like copper, cobalt, and nickel), that are limited on land, are still abundant on the sea floor. However, arguing for the objectives of this 1967 initiative, Malta (and the countries supporting it) in fact called for a new reconciliation of geology and law with economy. This was then seen in the light of the “New International Economic Order” as the ideological basis for redistributing the benefits from resource exploitation between industrially developed and developing nations. Ultimately, all this led to a major development of the law of the sea during the last third of the 20th century, which triggered the convening, in 1973, of the Third UN Conference of the Law of the Sea—and eventually resulted in the law-of-the-sea framework that we have today: the 1982 Convention.
An interesting thing in that Convention is the shortest and the longest definition of a maritime area. The shortest one is the definition of international sea-bed area, which is considered, with its resources, as being the “common heritage of mankind.” The definition of the “Area” (as found in Article 1 of the Convention) reads: “sea-bed and subsoil beyond the limits of national jurisdiction.” A total of nine words, for all the vast expanses lying under the sea, beyond continental shelves of individual states…
The longest definition is, however, the one on the continental shelf, as found in Article 76 of the Convention: it consists of 632 words in all. Here, states took great care to define what portion of the submarine areas (and resources) should belong under their sovereign rights and exclusive jurisdiction, rather than fall beyond these. In summation, we can say that the continental shelf of a coastal state may comprise submarine areas throughout the “prolongation” of its land territory to the outer edge of the continental margin, but shall (notwithstanding provisions on submarine ridges) not exceed 350 nautical miles from the baselines. However, this does not apply to submarine elevations that are natural components of the continental margin, such as its plateaus, rises, caps, banks and spurs… As the geological science and technical means develop, options for extending the continental shelf expand—and, in consequence, the international sea-bed area regarded as the “common heritage of mankind” shrinks.
Technosphere Magazine: Would you say that codified law in itself is a feature of the technosphere? Are we reshaping the baselines of our law with our technologies?
Davor Vidas: Much of what we have seen since the end of World War II, when the development leading to the current law of the sea as codified in the 1982 UN Convention on the Law of the Sea began (starting with the 1945 Truman Proclamation), would indicate that we have used technology for reshaping, or, more accurately put, for constantly pushing further the outer limits—if not the baselines—of rights of coastal states over areas of the sea. This concerns especially the submarine areas beyond the territorial sea: the legal “continental shelf,” which is considerably wider than merely a geological shelf. The reason was straightforward enough: to gain exclusive rights over oil and gas found under the sea, beyond what had been the final border of coastal states' rights at sea.
However, the way of presenting this—in legal documents or international judicial decisions—has seldom been explicitly linked to the development of technology itself. Instead, the legal formulas have been so crafted as to show the origins of expanded rights over the sea or submarine areas as being based on sovereignty over the land. For instance, concerning the legal nature of the right of the coastal state over the continental shelf, the International Court of Justice stated—in its famous judgement in the 1969 North Sea Continental Shelf cases involving Germany vs. the Netherlands, and Denmark—that this is an inherent right which exists ipso facto and ab initio. This would mean that a coastal state is “born” with a continental shelf as its natural prolongation, rather than having an access to it that has been made possible by technology. Nonetheless, this dictum of inherent right over the continental shelf is nowadays legally codified and also taken as a “fundamental truth” by mainstream international law theory. Be that as it may, I would say that what we have in fact been seeing, ever since the 1945 Truman Proclamation, is the extension of boundaries of coastal states' rights over the sea, as well as a constant expansion of uses of the sea by means of technology—even though arguing that this is based on some different, fundamental legal principles.
As I see it, the key issue, already at this stage, is to recognize the possibility of a development in a different direction: of devising technical and technological means to prevent losses related to maritime areas or marine resources—instead of extending rights over new areas or resources. There is not much more to extend to, and the resource bases are diminishing as well.
Our international laws were formulated for a factual situation which, based on human experience so far, was taken for granted: that we will continue applying international law in the same epoch as when it emerged, through several centuries of development. What happened in the course of those centuries is not only a political change but—increasingly since the mid-20th century—also a change in the natural conditions of the Earth system itself.
Technosphere Magazine: In some of your earlier interventions you mentioned the idea of "vertical sharing". What do you mean by this concept?
Davor Vidas: Legal regimes in maritime areas differ not only “horizontally” but also “vertically.” Horizontal difference relies on the coastal baselines: measured from these, for the first 12 nautical miles, the territorial sea extends (where the coastal state has complete sovereignty), and from the outer limit of the territorial sea follows the exclusive economic zone (with fewer sovereign rights of the coastal state, mainly for fishing) until 200 nautical miles from baselines, and, in the submarine area, the continental shelf (and sovereign rights to its mineral resources), which can also extend far beyond 200 miles. Everything beyond those zones is the maritime area beyond the limits of national jurisdiction. However, this is not a uniform legal area, as it consists of the high seas (free for all) in the water column, and the seabed which is the common heritage of mankind. However, as the result of the differing horizontal extents of the exclusive economic zone and the continental shelf, there is a vertical difference between what is “beyond the limits of national jurisdiction” in the high seas, on the one hand, and submarine area, on the other—as these do not overlap completely.
A major new development in the law of the sea relates to the conservation and sustainable use of the marine biodiversity beyond the limits of national jurisdiction—consisting of both the high seas and the deep seabed. Here we are speaking about an area that covers nearly half of the surface of the Earth, and with a key role in the biosphere of our planet! More recently, negotiations have been ongoing in the UN, currently within a preparatory committee, with a view to convening an international conference to discuss a new implementing agreement to the UN Law of the Sea Convention. Some of the contours of that new instrument can be discerned already: they would involve environmental impact assessments, as well as area protection and management for preserving the marine biodiversity of areas beyond national jurisdiction. In those respects, it could be possible to start talking about “vertical sharing”: that would mean shared for the marine biodiversity in areas beyond national jurisdiction, whether in the high seas or the deep seabed. That would mark an important shift in the current legal regime—and, possibly, a development in a new direction, as until now we have been applying land-dominating concepts to regulating the seas. If we can succeed in following that new path, then we would make an important step towards adopting measures informed by the circumstances of the new, Anthropocene context.