Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697636844912.pdf (Australia)
SUBMISSION Inquiry into the human rights of women and girls in the Pacific Joint Standing Committee on Foreign Affairs, Defence and Trade August 2020 The Australian National University College of Law’s International Law Clinic (ILC) has been developed to allow students with an interest in international law to create high level legal documents in chosen areas of international law research.

This work is done in close consultation with the clinic convenor and other experts in the field.
This submission is based on research undertaken in the Semester 1 2020 ILC where we prepared a legal opinion regarding the options for Pacific island States threatened by sea level rise.

It considers the means of preserving Pacific maritime entitlements threatened by sea level rise through fixing baselines, and how fixing baselines is essential to preserving the statehood of Pacific island States facing significant or complete territorial inundation.
This legal opinion is addressed to the 18 member States of the Pacific Islands Forum, of which Australia is a party.

Women and girls in the Pacific face disproportionate challenges to their human rights compared to their male counterparts.

The existential threat posed by climate change induced sea level rise to Pacific island States has far-reaching social implications and is thus relevant for consideration by this inquiry.
For Pacific women and girls, sea level rise threatens their personal safety, economic security and cultural identity.

The uncertainty caused by potential territorial inundation may lead to increased domestic violence.
Such an increase has been proven to occur when nations are put under economic stresses or environmental disaster.1 The economic security of Pacific nations who are reliant on fisheries2 is directly impacted by the constriction of exclusive economic zones due to receding baselines established under the law of the sea.

The women and girls involved in or reliant on the fishing industry will also suffer.
Ultimately, gender based human rights issues will increase as the existential security of Pacific islands decreases.

Australia is well positioned to consider this problem, and the ways in which initiatives such as the Pacific Step-Up and the Pacific Agreement on Closer Economic Relations Plus (PACER Plus) can be used to support our Pacific neighbours during the coming decades of uncertainty and relocation.
1 Debra Parkinson and Claire Zara, ‘The hidden disaster: domestic violence in the aftermath of natural disaster’ (2013) 28(2) Australian Journal of Emergency Management, 28-35.

2 Robert Gillet and Mele Ikatonga Tauati, ‘Fisheries of the Pacific Islands’ (2018) Food and Agriculture Organisation of the United Nations, Technical Paper 625.
1 Inquiry into the human rights of women and girls in the PacificSubmission 34 As a leader in the Pacific region, it is recommended that Australia consider the following actions to mitigate the harm to Pacific populations caused by sea level rise: 1.

Recognise fixed baselines for all Pacific States affected by current or imminent sea level rise; 2.

Commit to exploring options for ‘deterritorialised States’ to preserve their respective Statehood, cultures and national identity; and 3.
Officially recognise the detrimental impacts of sea level rise on the livelihood, human rights and safety of Pacific women and girls.

In this manner, Australia can support and empower of Pacific women and girls facing loss of home, income and State.

The legal opinion we prepared as students in the ANU International Law Clinic follows in its entirety and contains further recommendations on responses to sea level rise in the Pacific.
Hayley Keen and Charlotte Nichol International Law Clinic, ANU College of Law, Australian National University 26 August 2020 2 Inquiry into the human rights of women and girls in the PacificSubmission 34 Dear Pacific Islands Forum, Thank you for engaging the ANU International Law Clinic for advice on the approach the Pacific Islands Forum (PIF) should take to strengthen a regime of fixed baselines under the United Nations Convention on Law of the Sea (UNCLOS)1 (‘the Convention’) and how fixing baselines may contribute to preserving the Statehood of PIF members threatened by territorial inundation.
The following legal opinion is divided into two parts.

Part A highlights options available to PIF to secure the legality of fixed baselines under UNCLOS, in order to safeguard existing maritime entitlements.

Part B considers the importance of this in securing territory for States affected by rising sea levels and supporting the continued recognition of their statehood.
Neither part makes presumptions as to the legal position of any specific PIF member, nor does it consider in detail the political judgments associated with each approach.

Should PIF or a member State be interested in pursuing a particular approach further, we would be happy to provide additional legal advice.

A table of contents is provided below to aid in navigating this opinion.
1 United Nations Convention on Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 396 (entered into force 16 November 1994) art 5 (‘UNCLOS’).
3 Inquiry into the human rights of women and girls in the PacificSubmission 34 Table of Contents Executive Summary ...........................................................................................................5 Part A: Supporting fixed baselines under UNCLOS.................................................................5 Part B: Importance of fixed baselines in preserving statehood .................................................5 PART A .............................................................................................................................7 Background .......................................................................................................................7 Sea level rise in the Pacific.........................................................................................................7 Issues with UNCLOS baselines and sea level rise......................................................................7 Preventing a challenge to the interpretation and practice of fixed baselines ............................8 Reasons .............................................................................................................................9 Option 1.
Supplementary Agreement........................................................................................9 Option 2.

UNGA Resolution ....................................................................................................13 Option 3.

Formal Amendment to UNCLOS ............................................................................15 Option 4.
Decision of a meeting of the SPLOSC......................................................................16 Part A: Conclusions .........................................................................................................18 PART B ...........................................................................................................................20 Background .....................................................................................................................20 Statehood requirements under international law....................................................................20 UNCLOS .................................................................................................................................20 Sea level rise and territorial inundation ..................................................................................21 Continued recognition of States impacted by sea level rise .....................................................21 Potential solutions for deterritorialised States ........................................................................23 Reasons ...........................................................................................................................23 The importance of retaining maritime territory .....................................................................23 Legal implications of the solutions proposed for deterritorialised States................................25 How can States form regional customary international law to defend against challenges to statehood?................................................................................................................................27 Part B: Conclusions .........................................................................................................29 Conclusion.......................................................................................................................30 4 Inquiry into the human rights of women and girls in the PacificSubmission 34 Executive Summary Part A: Supporting fixed baselines under UNCLOS There are four principal options available to PIF to secure the legal position of ‘fixing’ baselines under UNCLOS in response to sea level rise: 1.
A supplementary agreement made through a meeting of interested parties under the auspices of the United Nations General Assembly (UNGA); 2.

Adoption of an UNGA Resolution; 3.

A formal amendment to UNCLOS to include additional articles or alter existing articles; or 4.

A decision of the States Parties of the Law of the Sea Convention (SPLOSC) on the interpretation of relevant existing articles.
The recommended long-term course of action is to advance a supplementary agreement through a meeting of interested parties in UNGA.

This option maximises the involvement of States who are not parties to UNCLOS and follows the method of adoption of the 1995 Fish Stocks Agreement.2 Another complementary or interim suggestion is the proposal of an UNGA Resolution which supports fixed baselines.
This option follows the successful acceptance of the UNGA ban on drift-net fishing, captures increasing political will, and gives formal legal support to State practice.

Neither a formal amendment to UNCLOS nor a decision of the SPLOSC is recommended; the UNCLOS amendment procedures are impractical, and a decision of the SPLOSC falls outside of its generally administrative role.
Part B: Importance of fixed baselines in preserving statehood States threatened by sea level rise will be better able to secure solutions to preserve their statehood with fixed baselines.

Access to enduring maritime entitlements may incentivise States to assist in negotiations and cooperate in regard to potential land acquisitions, mergers, federations or free associations.

These solutions would overcome displacement and loss of territory associated with inundation.
2 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, opened for signature 4 December 1995, 2167 UNTS 3 (entered into force 11 December 1995) (‘Fish Stocks Agreement’).
5 Inquiry into the human rights of women and girls in the PacificSubmission 34 Subsequently, PIF would be able to advocate for recognition of an additional category of statehood to preserve disappearing States’ international legal personality.

It is recommended that ‘deterritorialised States’ enjoy continued statehood in accordance with the presumption of continuity.
PIF should therefore consider the following options to create customary international law which supports States facing territorial inundation: 1.

Recognise the fixing of baselines as a key element in securing solutions for disappearing States; and 2.

Advocate for the recognition of ‘deterritorialised States’ as a new category of Statehood.
Once regional customary international law is established, it would be advantageous for PIF to propose a complementary UNGA Resolution to bring practice to international attention.

6 Inquiry into the human rights of women and girls in the PacificSubmission 34 PART A Background Sea level rise in the Pacific 1.
For the purposes of this opinion, the scientific agreement, and position of PIF regarding sea level rise causing a landwards shift in the low-water line, and the potential for inundation of low-lying island territory is acknowledged.3 It is also accepted that the consequences of a loss of territory under the current UNCLOS regime would result in a significant reduction in the extent of PIF member States’ maritime zones, and therefore severely impact on PIF member States’ national jurisdiction and economies.4 Issues with UNCLOS baselines and sea level rise 2.
UNCLOS enables the drawing of maritime zones from a ‘baseline’.

The ‘normal’ baseline, applicable by default, is the ‘low-water line along the coast as marked on large-scale charts officially recognised by the coastal State’.5 Whether the normal baseline is applied, and if so, what constitutes the low-water line, is for the discretion of the State.6 3.
The low-water line is necessary for the measurement of maritime zones reliant on a distance to the coast, notably the territorial sea, exclusive economic zone (EEZ) and continental shelf (CS).7 The problematic outcome of sea level rise is that the low-water line recognised by the State might ‘depart appreciably’8 from the reality, when the sea increasingly covers or inundates low lying territory.9 When the error between reality and the low-water line of the recognised charts is significant, this might call into question the maritime zones claimed by the State.10 3 Tim Stephens, ‘Warming Waters and Souring Seas: Climate Change and Ocean Acidification’ in Donald Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) 777, 787.
4 Signe Veierud Busch, ‘Sea level Rise and Shifting Maritime Limits: Stable Baselines as a Response to Unstable Coastlines’ (2018) 9 Arctic Review on Law and Politics 174, 179.

5 UNCLOS art 5.

6 Clive Schofield, ‘Departures from the Coast: Trends in Application of Territorial Sea Baselines under the Law of the Sea Convention’ (2012) 27 The International Journal of Marine and Coastal Law, 723, 724-5.

7 Kai Trümpler ‘Article 5’ in Proelss (ed), UNCLOS: A Commentary (Hart Publishing, 1st ed, 2017) 48.
8 Ibid 54.

9 Clive Schofield, ‘Against a Rising Tide: Ambulatory Baselines and Shifting Maritime Limits in the Face of Sea level Rise’ (Conference Paper, International Symposium on Islands and Oceans, 22-23 January 2009) 77.

10 Trümpler (n 7) 55.

7 Inquiry into the human rights of women and girls in the PacificSubmission 34 4.
It is also possible that islands currently recognised under Article 121 of UNCLOS, become uninhabitable and incapable of sustaining economic life, and are re-classified as rocks.11 This would result in a loss of extensive areas of jurisdiction including the EEZ and CS.12 5.

Some PIF States draw straight or ‘archipelagic baselines’ reliant upon ‘outermost islands and drying reefs,’13 or low tide elevations with an installation permanently above sea level,14 in order to mark out their maritime zones.
These features and a States capacity to retain the associated maritime zones is threatened significantly by sea level rise.

Additionally, if sufficient land is inundated, an archipelagic State might fail the land to water ratio or maximum baseline length rules.15 6.
In the case of delimitation of maritime boundaries between States, shared boundaries are fixed insofar as they are protected by treaty.16 However, the submergence of low-lying features crucial to the delimitation will create doubt as to the validity of the submerged feature as the basepoint for maritime claims and the negotiated boundary.17 7.
As different PIF member States use different methods of drawing baselines and delimiting boundaries, the individual consequences of sea level rise on maritime entitlements should be considered on a case-by-case basis.

Preventing a challenge to the interpretation and practice of fixed baselines 8.
The Convention only provides for the concept of ‘fixed’ baselines in specific circumstances;18 including unstable or heavily indented coastlines,19 or coastline features such as bays and rivers.20 The Convention does not explicitly provide for the fixing of baselines outside of these circumstances, and not in the manner conceived by PIF, with the aim of preserving the current normal or archipelagic baseline as it was when declared.

11 UNCLOS art 121(3).

12 UNCLOS art 121(3); Stephens (n 3) 791.


13 UNCLOS art 47.

14 UNCLOS art 47(4); Clive Symmons ‘Article 47’ in Proelss (ed), UNCLOS: A Commentary (Hart Publishing, 1st ed, 2017) 367.

15 UNCLOS art 47(1); Stephens (n 3) 791.

16 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 62(2)(a) (‘VCLT’).
17 Clive Schofield, ‘Rising Waters, Shrinking States: The Potential Impacts of Sea level Rise on Claims to Maritime Jurisdiction’ (2010) 53 German Yearbook of International Law, 189, 203-4; For example: Ceva-i-Ra, is a sand-cay and reef approximately 1.8 metres above sea level, used in the delimitation of maritime boundaries between Fiji, Vanuatu and France (on behalf of New Caledonia).

18 Schofield (n 6) 727.

19 UNCLOS art 7.

20 Ibid art 9-10.


8 Inquiry into the human rights of women and girls in the PacificSubmission 34 9.
Currently the legality of PIF States’ practice in fixing baselines relies on either; a specific interpretation of the normal baseline, a liberal interpretation of the provisions permitting fixed baselines in specific circumstances, or on the generation of customary international law rules accepting fixed baselines.21 The legal source and interpretation of fixing methods is outside the scope of this opinion, however it is clear that an express rule supporting fixed baselines would be instrumental in legitimising State practice, and providing legal security for current maritime entitlements under UNCLOS.
10.

In the absence of an express rule, States might be incentivised to challenge PIF States’ maritime claims, if they seek access to fishing resources and navigational rights which are currently restricted.

Under the accepted theory of ambulatory baselines,22 areas of the high seas not subject to sovereign claim,23 would become available as baselines and maritime zones retreat.24 11.
Unilateral declarations of an ‘intention to maintain current maritime zones irrespective of sea level rise’,25 and boundary delimitations premised upon fixed baselines,26 are merely effective in maintaining the status quo for the PIF State temporarily.27 These practices and UNCLOS’ current provisions do not provide a certain defence to any legal challenge over the validity of maritime zones and boundaries measured or delimited from features affected by sea level rise.28 Reasons Option 1.
Supplementary Agreement 12.

The best option in the long-term is for PIF to advance a supplementary agreement drafted by a conference of interested parties within the auspices of the UNGA.

PIF has the opportunity to propose a supplementary agreement which follows the example of the Fish Stocks Agreement, maximises non- State Party involvement, and secures the legality of fixed baselines in light of sea level rise.
21 Irina Buga, ‘Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction’ in Donald Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press, 2015) 47.

22 David Caron, ‘When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of Rising Sea level’ (1990) 17 Ecology Law Quarterly 621.
Cf Kate Purcell, ‘UNCLOS and the “Ambulatory Thesis”’, in Kate Purcell (ed), Geographical Change and the Law of the Sea (Oxford University Press, 2019).

23 UNCLOS art 89.

24 Caron (n 22) 621.


25 Federated States of Micronesia, ‘MZN (Maritime Zone Notifications) Released on 23/01/2020’, Circular Communications from the Division for Ocean Affairs and the Law of the Sea (Office of Legal Affairs) (PDF, 23 January 2020) <https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/mzn_s/M.Z.N.151.2020.pdf?fbclid=IwA R2ojg6gD4_3Eu7Oqf23uAVAa8FEemje0WvkP83yqtc0PMpdI_E9PnM10J0>.
26 See for example: Cook Islands, ‘Submission in Compliance with the Deposit Obligations pursuant to UNCLOS’, Legislation and Treaties: State Files (Database, 18 February 2020) <https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/COK.htm>.

27 Stephens (n 3) 792.

28 Ibid.

9 Inquiry into the human rights of women and girls in the PacificSubmission 34 13.
The Convention does not preclude States Parties from negotiating or adopting agreements supplementing or interpreting it.29 Instead, it allows further collaboration, including by subsequent multilateral agreement, as an appropriate method of remedying unresolved issues or omissions.30 A supplementary agreement formalises developing interpretive adjustments to the Convention,31 and is therefore suitable for PIF’s objectives.

14.
The Convention does not specify how a supplementary agreement might be made, however the preeminent method, used in the adoption of the Fish Stocks Agreement, is through a conference of interested parties of the UNGA.32 In this case, the UNGA would decide by Resolution to convene a conference on the issue of baselines and sea level rise.33 After the conference drafts an agreement, ratification or provisional application of the agreement is encouraged through UNGA Resolutions calling on all States to give effect to the agreement.34 15.
States who are not parties to UNCLOS are able to be part of the conference of interested parties of the UNGA, and are able to consent to the agreement due to its separate and freestanding nature.35 This is particularly important in light of the United States’ status as a non-State Party.36 16.
A supplementary agreement, like the Fish Stocks Agreement, does not become a single instrument with UNCLOS or amend the Convention.37 Rather, the Fish Stocks Agreement complemented the Convention, with an objective of ‘effective implementation of the relevant provisions of the Convention’ to be interpreted ‘in the context of and in a manner consistent with the 29 David Freestone and Alex Oude Elferink, ‘Flexibility and Innovation in the Law of the Sea – Will the LOS Convention Amendment Procedures Ever be Used?’, in Alex Oude Elferink (ed), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff, 2005) 209.
30 UNCLOS art 311; Donald Rothwell ‘Oceans Management and the Law of the Sea in the Twenty-First Century’ in Alex Oude Elferink and Donald Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff, 2004) 350.

31 Rothwell (n 30) 350.

32 An alternative method was used in the drafting of the 1994 Implementing Agreement (Part XI Agreement).

Ad hoc or informal conferences of select States of the SPLOSC were conducted by the UN Secretary-General.
The draft text produced was submitted to a formal meeting of the UNGA, who then adopted the text as an annex to a Resolution.

This is an exceptional process, as the Implementing Agreement made a number of de facto changes to the Convention before its entry into force.

It would not be a viable mechanism in this case.


The method used for the Fish Stocks Agreement has also been relevantly used in the instigation of deliberations on another forthcoming supplementary agreement for biodiversity beyond national jurisdiction.

33 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, GA Res 47/192, UN Doc A/Res/47/192 (adopted 29 January 1993) para 1.
34 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, GA Res 50/24, UN Doc A/Res/50/24 (adopted 5 December 1995) para 4; James Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, 2011) 103.

35 Harrison (n 34) 103.


36 Moritaka Hayashi, ‘Sea level Rise and the Law of the Sea: Legal and Policy Options’ (Conference Paper, International Symposium on Islands and Oceans, 22-23 January 2009) 89.

37 Buga (n 21) 53.

10 Inquiry into the human rights of women and girls in the PacificSubmission 34 Convention.’38 A comparable supplementary agreement on fixed baselines, would share a similar objective.

17.
A supplementary agreement expands upon existing rules,39 and provides a legally binding interpretation for those States which agree to it.40 There is scope for a supplementary agreement to introduce significant changes to the Convention’s regime, which the Fish Stocks Agreement did by carefully balancing tacit modification with complementary clarification.41 Depending on the text, a supplementary agreement on fixed baselines might also introduce changes which some States might consider extensive, so careful drafting would be required to work within the Convention’s limits.
18.
A supplementary agreement on fixed baselines cannot derogate from the ‘effective execution of the object and purpose of the Convention’ or affect its fundamental principles.42 Some of the fundamental principles of UNCLOS include; the conception of the ocean as the ‘common heritage of mankind’, that the benefits of the oceans are for mankind as a whole, that the oceans are for peaceful uses, and that certain areas of the oceans are not subject to sovereign claim.43 Ultimately, whether a PIF supplementary agreement impinges significantly on these principles will depend on the text proposed.
However, UNCLOS was devised to ‘facilitate international communication… promote peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, [and] the conservation of their living resources’.44 It is highly unlikely that fixing baselines would be considered as breaching these aims.

19.

Rather, a proposal which ‘stays’ the status quo could easily be characterised as facilitating them in light of new circumstances.
The concept that baselines might be ambulatory or that entire maritime zones can be lost with the unforeseen submergence of a feature, is not likely accurately characterised as being integral to the fundamental principles of the law of the sea regime which the Convention establishes.
Current State practice displacing the normal baseline in favour of unilaterally declared alternative baselines which are unchallenged, and the emerging pragmatic reasons for fixing baselines due to maritime technological advances, and the resource-intensity of perpetually updating charts for accuracy or artificially reinforcing submerging features have raised many arguments for permitting fixed baselines.45 38 Fish Stocks Agreement art 2, 4.
39 Moritaka Hayashi ‘Sea level Rise and the Law of the Sea’, in Clive Schofield et al (eds), The Limits of Maritime Jurisdiction (Martinus Nijhoff, 2014) 623; Buga (n 21) 53.

40 Buga (n 21) 53.

41 Ibid 54.

42 UNCLOS art 311(3).

43 Buga (n 21) 53.

44 UNCLOS preamble para 4.

45 Sea level Rise Committee, ‘Sydney Conference (2018)’ (Conference Report, International Law Association Conference, August 2018) 11, 13-14.

11 Inquiry into the human rights of women and girls in the PacificSubmission 34 20.
The effect of the supplementary agreement is to formalise the legal nature of State practice and authorise an interpretation which permits fixed baselines under the current provisions.

A supplementary agreement should be an agreeable method of achieving this outcome to many UNCLOS States Parties, as it would have the effect of preserving, not changing, the rights present and agreed to under the Convention, while upholding the integrity of UNCLOS.

21.
21.

Nevertheless, it is possible that fewer States will accept the supplementary agreement than are Parties to the Convention.

In this situation, a supplementary agreement is still advantageous for PIF and potentially remains applicable to non-parties, because of its normative impact46 and through a process of treaty interpretation.
Although supplementary agreements can only ‘be taken into account’47 in interpretation of a treaty, some commentators believe that the Fish Stocks Agreement might still apply to non-parties to the agreement through its intention and utility in informing an interpretation of UNCLOS.48 This might similarly be the case with the establishment of a supplementary agreement on fixed baselines.

22.
The supplementary agreement might also be applied to non-parties to the agreement, by the norms fostered and codified therein, and the agreement’s representation of, and influence on, customary international law.49 Factors which impact on the potential of a supplementary agreement to be considered enforceable through customary international law include, the number of parties privy to negotiations, the universal applicability of the language used in the text, and any subsequent UNGA Resolutions calling on all States to comply with the agreement.50 In this context, negotiation by a conference of the UNGA’s interested parties, emphasis on consensus as the method of adoption, and use of ‘generalised language,’ like that found in UNCLOS, making it applicable to all States, and the subsequent encouragement of UNGA Resolutions will be critical.
23.

A supplementary agreement on fixed baselines would legitimise an interpretation under UNCLOS permitting such practice without amending the Convention’s provisions.

It would also enable a comprehensive clarification of how baselines and maritime entitlements would be preserved in light of sea level rise.

46 Harrison (n 34) 107.

47 VCLT art 31(3).

48 Freestone and Elferink (n 29) 20.


49 Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) (Judgment) [1986] ICJ Rep 14, 175-9 (‘Nicaragua’); Freestone and Elferink (n 29) 20; Harrison (n 34) 108.

50 Harrison (n 34) 108-9.

12 Inquiry into the human rights of women and girls in the PacificSubmission 34 Option 2.

UNGA Resolution 24.
UNGA Resolution 24.

As an alternative, or in advance of a supplementary agreement, an UNGA Resolution could support a regime of fixed baselines in response to sea level rise.

An UNGA Resolution would strengthen State practice, formalise soft-law initiatives, and build the case for the legality of fixed baselines’ through regional custom and customary international law.

25.
In the absence of a specifically competent body in the Convention, the UNGA reviews the conformity of State practice with the Convention in general terms, and summarises salient issues in its annual Resolution on the Law of the Sea.51 It also considers Resolutions on specific law of the sea issues as they arise, such as the Resolutions implementing a moratorium on, and the eventual cessation of, driftnet fishing.52 These issue-specific Resolutions provide a successful model for PIF to follow in garnering acceptance of fixed baselines among States through the UNGA.
26.
Although an UNGA Resolution can stand alone, it is suggested as a method of complementing and strengthening a supplementary agreement, as an UNGA Resolution might be weakened by its non- binding status.53 This is especially true where States are incentivised to disregard a Resolution for their own economic gain (for reasons addressed above at [10]).54 Even if progressed independently, an UNGA Resolution has a voluntary normative effect on States interpretation of UNCLOS, can evince a norm of customary international law, and can contribute to customary international law (depending on the language of the resolution and its method of acceptance, subject to the opinions of States).55 27.
Generally, an UNGA Resolution on law of the sea issues is conceived in the Second Committee.
The consensus-based approach of the Second Committee may assist in applying pressure to States who might be slow to agree to fixed baselines, or force at least a short-term compromise resolution.56 Consensus or adoption by a majority aids the characterisation of an UNGA Resolution as constitutive 51 Alex Oude Elferink, ‘Reviewing the Implementation of the LOS Convention: The Role of the United Nations General Assembly and the Meeting of States Parties’ in Alex Oude Elferink and Donald Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff, 2004) 304; Law of the Sea, GA Res 49/28, UN Doc A/Res/49/28 (adopted 6 December 1994).
52 Large-scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, GA Res 44/225, UN Doc A/Res/44/225 (adopted 22 December 1989); Large-scale Driftnet Fishing and its Impact on the Living Marine Resources of the World’s Oceans and Seas, GA Res 46/215, UN Doc A/Res/46/225 (adopted 20 December 1991).

53 Ian Brownlie, Principles of Public International Law (Oxford University Press, 6th ed, 2003) 15.
54 Donald Rothwell, ‘The General Assembly Ban on Driftnet Fishing’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2003) 126, 138.

55 Brownlie (n 53) 15.

56 Bruce Miller, ‘Combating Drift-Net Fishing in the Pacific’ in James Crawford and Donald Rothwell (eds), The Law of the Sea in the Asian Pacific Region (Martinus Nijhoff, 1995) 164.
13 Inquiry into the human rights of women and girls in the PacificSubmission 34 of customary international law.57 The Resolutions banning driftnet fishing were particularly authoritative and had great normative value due to their passing without a vote.58 28.

An UNGA Resolution enables PIF to capture increasing international awareness and address growing concerns over sea level rise.
The successful adoption of the Resolutions banning driftnet fishing, were in large part attributable to an acute level of awareness and support on the issue, and growing concerns over sustainable development, resource exploitation, and impacts on the environment generally.59 Similar general worry is emerging over the effects of climate-change, with serious attention now being paid to sea level rise and the law of the sea, which – as highlighted in the following – could be utilised in encouraging an UNGA Resolution.
29.
To date, the UN has responded to concerns over sea level rise through the establishment of the Open-ended Informal Consultative Process on Oceans and the Law of the Sea (ICP),60 intended to facilitate UNGA’s annual review of law of the sea on ensure a focus on specific problems.61 The upcoming meeting the ICP is considering sea level rise and its impacts,62 representing an opportune moment for the PIF to suggest an UNGA Resolution specifically on the issue.63 The Secretary-General and UNGA have through the annual Resolution and Report increasingly recognised some of the significant issues related to sea level rise and the need to enhance efforts to address the problem.64 30.
The legal impacts are being specifically considered with the International Law Commission including the sea level rise into its programme of work and creating an open-ended study group on the matter.65 The International Law Association also charged specialised Committees to study the impact of sea level rise on existing law,66 and develop proposals on the progressive development of the law on the issue.67 57 Brownlie (n 53) 15.

58 Rothwell (n 54) 127.

59 Ibid 145.


60 UN Division for Ocean Affairs and the Law of the Sea, ‘Open-ended Informal Consultative Process on Oceans and the Law of the Sea,’ Consultative Process Documents (Website, 2 June 2020) <https://www.un.org/depts/los/consultative_process/consultative_process.htm >.
61 Results of the Review of the Commission on Sustainable Development of the sectoral theme of “Oceans and Seas”: International Coordination and Cooperation, GA Res 54/33, UN Doc A/Res/54/33 (adopted 24 November 1999) para 2.

62 Oceans and the Law of the Sea, GA Res 74/19, UN Doc A/Res/74/19 (adopted 10 December 2019) para 352.

63 The 21st ICP has been rescheduled from 22 – 26 June 2020 to 2021.
64 Report of the Secretary-General, UN Doc A/Res/75/70 (distributed 16 March 2020) paras 29-32; Oceans and the Law of the Sea, GA Res 74/19, UN Doc A/Res/74/19 (adopted 10 December 2019) para 202.

65 International Law Commission, ‘Sea level rise in relation to International Law’, Summaries of the Work of the International Law Commission (Website, 11 December 2019) <https://legal.un.org/ilc/summaries/8_9.shtml>.
66 Baselines Committee, ‘Sofia Conference (2012)’ (Conference Report, International Law Association Conference, August 2012).

67 Sea level Rise Committee (n 45).

14 Inquiry into the human rights of women and girls in the PacificSubmission 34 31.

An UNGA Resolution would be both informed by, and give more formal international support to, individual State law and practice, as well as regional law and practice.
These developments were highlighted for acceptance by the international community in the Resolutions banning driftnet fishing.68 Current State practice includes unilateral declarations,69 national legislation enacted through the Pacific Maritime Boundaries Project (PMBP),70 and regional and sub-regional initiatives like the Delap Commitment,71 Taputapuātea,72 or Palau Declarations,73 calling for the fixing of baselines which have garnered some international support in the past.

32.
32.

Critically, an UNGA Resolution enables all members of the UN to engage on the topic, even if they are not a party to UNCLOS.

This has the capacity to more directly influence the policies of regional organisations such as the EU and UN groupings, which in turn can influence the approach of multiple States.74 33.

From a legal perspective, the negative consequences of proposing an UNGA Resolution are negligible.
As an UNGA Resolution is separate from the Convention framework, PIF does not risk fragmenting adherence to the Convention (discussed below at [37]).

Instead, the potential to run a Resolution on the problem multiple times (i.e.

once certain aims of the Resolution are exhausted, or for example, annually), and the staggering of deliberations through informal meetings, Second Committee, and before the UNGA plenary, gives PIF the opportunity to negotiate compromises, adapt the text, and control any risk.
Option 3.

Formal Amendment to UNCLOS 34.

A formal amendment to UNCLOS to include additional, or alter existing provisions, is not a viable option due to the ‘cumbersome’75 nature of UNCLOS’ amendment processes.

68 Rothwell (n 54) 145-6.

69 See for example: the Declaration of the Federated States of Micronesia (n 25).

70 South Pacific Community (SPC), ‘Pacific Islands Regional Maritime Boundaries Project’ (Conference Paper, Star Conference, 6-8 June 2016).
71 Delap Commitment, signed 2 March 2018, para 8 <http://www.pnatuna.com/sites/default/files/Delap%20Commitment_2nd%20PNA%20Leaders%20Summit.pdf>.

72 Taputapuātea Declaration, signed 16 July 2015, 3 <http://archives2.presidence.pf/files/PLG/PLG%20- %20Polynesian%20PACT%20EN%20HD.pdf>.

73 Palau Declaration, signed 31 July 2018), para 10 < http://www.forumsec.org/wp-content/uploads/2017/11/2014- Palau-Declaration-on-%E2%80%98The-Ocean-Life-and-Future%E2%80%99.pdf>.

74 Rothwell (n 54) 138.


75 Buga (n 21) 47.

15 Inquiry into the human rights of women and girls in the PacificSubmission 34 35.
The Article 313 amendment procedure presumes ‘tacit consent’76 by all parties to the adoption of a circulated amendment when one year expires and no objections are received.77 This procedure should be dismissed because it essentially enables a single State Party to veto a proposed amendment.78 It also does not facilitate the participation of non-States Parties, or a formal meeting to negotiate any objections.
Commentary on Article 313 also indicates that this procedure caters to singular, unopposed technical changes,79 making it ill-suited for PIF’s purposes.

36.
The Article 312 amendment procedure operates by the request of a PIF member State and State Party to UNCLOS to the Secretary-General to convene a conference to consider specific amendments.80 If fifty percent or more of the States Parties oppose or are silent on the proposal to convene a conference, a conference does not proceed.81 If a conference is convened, consensus-based decision-making is expected,82 and voting is limited unless ‘all efforts at consensus have been exhausted’.83 In light of this requirement, any resulting amendment would be highly dependent on the political negotiations of the conference.
37.

Any formal amendment is not binding on States who do not formally accept the amended provision.84 As a result, in makin a formal amendment, PIF risks fragmenting adherence to the Convention.
The Convention is considered a ‘package-deal’,85 with UNGA annually reaffirming the ‘unified character’ and ‘vital importance [of] preserving [UNCLOS’] integrity.’86 PIF’s proposed amendment would significantly impact upon UNCLOS’ perceived non-derogability if it fails to be adopted by consensus and is instead adopted by majority vote, or if States are divided on their formal acceptance.87 76 Patrick Vrancken ‘Article 313’ in Proelss (ed), UNCLOS: A Commentary (Hart Publishing, 1st ed, 2017) 2023.
77 UNCLOS art 313; Vrancken (n 76) 2023.

78 Hayashi (n 36) 87.

79 Patrick Vrancken, ‘Article 312’ in Proelss (ed), UNCLOS: A Commentary (Hart Publishing, 1st ed, 2017) 2021; Vrancken (n 76) 2024; Harrison (n 34) 68.

80 UNCLOS art 312(1).

81 Ibid.

82 UNCLOS art 312(2); Harrison (n 34) 66.

83 UNCLOS art 312(2); Harrison (n 34) 41-2.

84 UNCLOS art 316; VCLT art 41(4); Harrison (n 34) 67.
85 Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 (13 April 2006); Buga (n 21) 64; Hayashi (n 36) 87.

86 Oceans and Law of the Sea, GA Res 73/124, UN Doc A/Res/73/124 (adopted 11 December 2018) para 1; Oceans and Law of the Sea, GA Res 74/19, UN Doc A/Res/74/19 (adopted 10 December 2019) para 1.

87 UNCLOS art 316; VCLT art 41(4); Harrison (n 34) 67.
16 Inquiry into the human rights of women and girls in the PacificSubmission 34 Option 4.

Decision of a meeting of the SPLOSC 38.

A decision of the SPLOSC on the interpretation of relevant UNCLOS articles in order to determine the legality of fixed baselines is not a feasible option, as it would exceed the administrative mandate of the SPLOSC.88 39.
A meeting of the SPLOSC can be convened when necessary by the Secretary-General,89 however the Convention does not grant the SPLOSC a specific role.90 The prevailing understanding is that meetings are only convened for those tasks specifically attributed to the SPLOSC in the Convention.91 These are primarily procedural or administrative decisions, for example concerning the election, administration and financing of the International Tribunal for the Law of the Sea and Commission on the Limits of the Continental Shelf (CLCS).92 40.
Debate as to whether the mandate of the SPLOSC is exclusively administrative, or whether it could be expanded to consider issues related to the implementation of the Convention has not been clearly resolved.93 For example, the agenda of the annual meeting of the SPLOSC includes an item to consider the ‘Report of the Secretary-General… for the information of States Parties on issues of a general nature’94 which have arisen with respect to the Convention.95 The report is limited to a ‘general’ overview of issues, and is clearly provided for the ‘information’ of the States Parties.
It remains unclear whether discussion and adoption of decisions concerning issues within the Report would be acceptable.96 Additionally, any opportunity to exploit this uncertainty would be dependent on the Report containing more extensive discussion on legal and policy implications of sea level rise than the minor references in recent Reports.97 41.
As the Convention does not give legal value to decisions of the SPLOSC, the implied powers doctrine restrains the SPLOSC from making amendments to UNCLOS through its decisions, rather decisions must be strictly interpretive.98 For example, in a debate over how the SPLOSC defined the terms ‘coastal State’ and ‘State’ for the purposes of the CLCS, a delegation observed that the SPLOSC ‘did not have the competence to give a legal opinion’.99 A decision of the SPLOSC on fixed-baselines 88 Elferink (n 51) 306.
89 UNCLOS art 319(2)(e).

90 Elferink (n 51) 295.

91 Ibid 306.

92 Harrison (n 34) 71.

93 Elferink (n 51) 307-8.

94 Provisional Agenda of the Twenty-Ninth Meeting of the States Parties of the Law of the Sea Convention, UN Doc SPLOS/29/L.1 (distributed 1 April 2019).

95 Harrison (n 34) 72.

96 Ibid 72-3.

97 Report on Oceans and Law of the Sea, UN Doc A/74/70 (distributed 25 March 2019) paras 14, 16, 21, 24; Report on Oceans and Law of the Sea, UN Doc A/73/368 (distributed 5 September 2019) paras 3, 97.
98 Buga (n 21) 55.

99 Report of the Eighth Meeting of States Parties, UN Doc SPLOS/31(distributed 4 June 1998) [52].

17 Inquiry into the human rights of women and girls in the PacificSubmission 34 would be extremely confined in its interpretation of the existing articles, and due to the legal effects of the decision would not be likely to have competence.

42.
As a result of this restriction and of its mandate, decisions of the SPLOSC have been limited to ‘relatively minor procedural provisions’100 rather than substantive issues.101 The SPLOSC has marginally expanded its mandate when making some previous decisions.102 For example, a decision on the due date for submissions to the CLCS, in effect amended the relevant Convention article, however most States Parties considered this an administrative activity within the competence of the SPLOSC.103 One delegation outlined that what would be outside the competence of the SPLOSC would be a decision which carries ‘direct relevance for States’ rights and obligations’ under the Convention.104 43.
A decision of the SPLOSC on the permissibility of fixed baselines in the context of sea level rise is not minor or procedural.

Such a decision would undoubtedly have an effect on States’ rights and obligations, even if that effect would be to retain the circumstances of the current regime.
As a result, seeking a SPLOSC decision on the legality of fixed baselines would likely be considered as extending the competence of the SPLOSC, and would be challenged by States Parties seeking to ensure the SPLOSC remains within its administrative role.

Part A: Conclusions 44.

In order to secure the legal position of fixed baselines under UNCLOS, PIF should consider proposing a supplementary agreement.
This is the best option to formalise current State practice while retaining the integrity of the Convention.

Previous supplementary agreements have demonstrated their normative effects and influence on customary international law.105 45.

Noting the time and resource intensity of a supplementary agreement, PIF should advance a complementary UNGA Resolution in the interim.
An UNGA Resolution strengthens the legality of fixed baselines in customary international law, formalises State practice and soft-law initiatives,106 and may operate as an authority on interpretation of UNLCOS, depending on the text.

100 The SPLOSC has previously negotiated a treaty, open to all States, the Agreement on Privileges and Immunities of the International Tribunal for the Law of the Sea (ITLOS).
However, the relationship between the SPLOSC and ITLOS is close, with the Agreement on Privileges and Immunities of the ITLOS an extension of the administrative power of the SPLOSC to dispense over the ITLOS generally, through the election of members, the setting of their entitlements and expenses, and the ITLOS’ budget.

Some States, including Russia and Brazil, expressed reservations about this being beyond the SPLOSC’s mandate.

101 UNCLOS annex II art 2, annex IV arts 4, 18-19; Buga (n 21) 56.
102 Harrison (n 34) 80.

103 Report of the Eleventh Meeting of States Parties, UN Doc SPLOS/73 (distributed 14 June 2001) [79]; Elferink (n 51) 309.

104 Report of the Eleventh Meeting of States Parties, UN Doc SPLOS/73 (distributed 14 June 2001) [79].

105 Stephens (n 3) 793; Vrancken (n 79) 2020.

106 Vrancken (n 79) 2020.

18 Inquiry into the human rights of women and girls in the PacificSubmission 34 46.
Mindful of the aims of the Convention to facilitate cooperation and protect the fundamental principles of the law of the sea, UNCLOS, as a framework Convention, is suitably flexible to allow a supplementary agreement and an UNGA Resolution to respond to the challenge of sea level rise where the Convention does not.107 107 Buga (n 21) 54.

19 Inquiry into the human rights of women and girls in the PacificSubmission 34 PART B Background Statehood requirements under international law 47.
The 1933 Montevideo Convention establishes the criteria for statehood under international law: defined territory, a permanent population, an effective government and the capacity to enter into relations with other States.108 The former three requirements are considered customary international law, while the capacity to enter into relations with other States is contingent on there being recognition of statehood based on the satisfaction of the population, territory and government requirements.109 48.
There are two accepted theories of statehood.
The preferenced declaratory theory of statehood provides that recognition of statehood occurs through a declaration of sovereignty based on satisfying the Montevideo criteria.110 The constitutive theory of statehood suggests that recognition by existing States is necessary; however, this recognition is discretionary rather than automatic or guaranteed.111 James Crawford suggests that while the declaratory theory remains preeminent, if statehood criteria where imprecise then the constitutive theory would consequently return via ‘the back door.’112 UNCLOS 49.
The following article is of significant relevance to this opinion.

Article 121 Regime of Islands 1.

An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2.

Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
108 Montevideo Convention on the Rights and Duties of States, signed 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934), art 1.

109 Jenny Grote Stoutenburg, ‘When Do States Disappear?’ in Michael B. Gerrard and Gregory E. Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) 57, 57.

110 James R Crawford, The Creation of States in International Law (Oxford University Press, 2nd ed, 2007) ch 1.4.

111 Ibid.
111 Ibid.

112 Ibid.

20 Inquiry into the human rights of women and girls in the PacificSubmission 34 3.

Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.113 50.

For the purposes of this opinion, ‘submerging’ or ‘disappearing’ States are those island states at risk of losing island status under art 121(1) or suffering complete territorial inundation.
This opinion advances the importance of fixing current maritime boundaries to ensure that submerging States retain their art 121(2) territorial rights, even in the event of submersion or reclassification as a barren rock ordinarily conferring no rights as per art 121(3).

Sea level rise and territorial inundation 51.

Sea level rise poses an imminent threat to low-lying Pacific island states.
The Intergovernmental Panel on Climate Change reports that the global mean sea level is rising, and this rise is accelerating.114 By 2100, sea level is likely to rise by between 0.43m and 0.84m, with a projected maximum of 1.1m.115 This projection seriously threatens the existence of low-lying atoll states including the Marshall Islands, Kiribati and Tuvalu.116 These islands are at risk of substantial territorial inundation, which could reduce them to barren land or uninhabitable rocks covered under art 121(3).117 Complete inundation will also impact some of these islands by the turn of the century.
These threatened States need to develop responses to inundation which preserve their statehood despite their loss of territory.

The imminence of the threat posed by sea-level rise renders the consideration of solutions for disappearing States immediately pertinent.

Continued recognition of States impacted by sea level rise 52.

States threatened by inundation due to sea level rise face the dual problems of preserving statehood and relocating their people and governments elsewhere.
The concept of ‘deterritorialised States’ suggests a solution to these problems.118 By recognising a new category of statehood along these lines, submerging states can preserve their sovereignty by reforming their government in new territory in a second State.

This emulates the UN model of ‘trustee’ territory.119 The original model was created to support the independence of peoples by holding their rightful territory in trust until which time as 113 UNCLOS art 121.
114 M Oppenheimer et al, ‘Sea Level Rise and Implications for Low-Lying Islands, Coasts and Communities’ in H O Pörtner et al (eds) IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (Special Report, 2019) 3.

115 Ibid 4.

116 Stoutenburg (n 109) 60.

117 UNCLOS art 121(3).


118 Rosemary Rayfuse, ‘International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma’ (Research Paper No 52, Faculty of Law Research Series, University of New South Wales, 8 November 2010) 11-12.
119 Rosemary Rayfuse and Emily Crawford, ‘Climate Change, Sovereignty and Statehood’ (Research Paper No 11/59, Sydney Law School, University of Sydney, September 2011) 12; Ben Juvelier, ‘When the Levee Breaks: Climate Change, Rising Seas, and the Loss of Island Nation Statehood’ (2017) 46(1) Denver Journal of International Law and Policy 21, 31-32.
21 Inquiry into the human rights of women and girls in the PacificSubmission 34 they could establish their own governance.120 In this new application of trusteeship, elected officials of the nation ex-situ would act as the trustees of their own State.121 This governing body would continue to oversee the population of the submerged State, administer its maritime zones and represent State interests on an international level.122 A trustee system such as that proposed above is deemed crucial to upholding ‘the sovereign equality of the endangered State’.123 Thus, a new category of ‘deterritorialised State’ may find its legal roots in the established UN trustee system.
53.

There is an emerging presumption in favour of the continuity of statehood, rather than its extinction.
Crawford asserts that international law is based on presuming the continuation of statehood despite changes in population, territory and governance.124 Academic Thomas Grant also finds that ‘[it] appears to be the case that once an entity has established itself in international society as a state, it does not lose statehood by losing its territory or effective control over that territory’.125 State continuity also preserves mutually beneficial legal relations with other States, such as maritime resource sharing agreements.126 A presumption of continuity would therefore favour both submerging States, and any countries with legal relationships with them.
54.

There is an argument in favour of disappearing states deserving continued recognition due to their negligible contributions to climate change.127 The island states facing inundation have contributed insignificantly to climate change-causing carbon emissions,128 however they will suffer the consequences far more deeply than those States who contributed most.
While the option of climate litigation is outside the scope of this paper, disappearing States are indeed a victim of climate change and thus should not be penalised for their unfortunate position.

Jenny Grote Stoutenburg suggests that ‘considerations of international justice and solidarity provide if not a legal, then at least a moral imperative for the continued recognition of “deterritorialized” island States.’129 55.
There is an existing precedent allowing entities which do not satisfy the traditional constitutive elements of statehood to possess an international legal personality analogous to that conferred by statehood.
One of the earliest examples of this is The Sovereign Military Order of St John of Jerusalem, 120 Maxine Burkett, ‘The Nation Ex-Situ’ in Michael B. Gerrard and Gregory E. Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013) 89, 108.

121 Ibid.

122 Rayfuse (n 118) 12.

123 Burkett (n 120) 109.

124 Crawford (n 110) ch 16.


125 Thomas D Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’ (1999) 37(2) Columbia Journal of Transnational Law 403, 435.

126 For example: the Tokelau Arrangement (2014), Niue Treaty (1993) and US Multilateral Treaty (1988); see Pacific Islands Forum Fisheries Agency, ‘Treaties & Agreements’, FFA (Website, 2020) <https://www.ffa.int/treaties_agreements>.

127 Rayfuse (n 118) 10.


128 Penny Wong, ‘Ministerial foreword’ in the Australian Government’s Engaging our Pacific Neighbours on Climate Change (Commonwealth of Australia, 2009).

129 Stoutenburg (n 109) 59.


22 Inquiry into the human rights of women and girls in the PacificSubmission 34 of Rhodes and of Malta, which has retained recognition of sovereignty despite losing attachment to Maltese territory in the 18th Century.130 More modern examples are that of Taiwan, which enjoys international recognition despite contested sovereignty, and the European Union, which represents a consortium of States at the international level and has permanent observer status at the UN.131 56.
States such as Monaco and the Holy See enjoy recognition of statehood despite commanding miniscule areas of sovereign territory: 2.02km2 and 0.44km2, respectively.132 These tiny areas raise a question mark over the necessity of possessing territory as an essential requirement of statehood.

Emerging situations for disappearing States, such as the possession of only uninhabitable land, barren rocks or maritime entitlements, would benefit from a broader interpretation of ‘territory’ for statehood purposes.
This opinion will not closely analyse these points; however, it is worth noting the unquestioned recognition of other territorially challenged States.

Potential solutions for deterritorialised States 57.

The following solutions to deterritorialisation should be considered by submerging States in developing their responses to sea level rise: 1.

Land Acquisition from a second State; 2.

Merger with a second State; 3.

The creation of a Federation; and 4.

The creation of a Free Association.


The favourability of these options will be assessed in terms of their ability to preserve the continuing statehood of disappearing States.

Reasons The importance of retaining maritime territory 58.
The low water mark of a coastal State is the baseline from which maritime entitlements are measured.133 For atolls and islands with fringing reefs, the baseline is measured from the seaward low- water line of the reef.134 Consequently, these baselines are ambulatory in nature.

Straight baselines, which are used by States consisting of island archipelagos, are measured between the outermost island 130 Rayfuse (n 118) 11.

131 Ibid.
131 Ibid.

132 Antonia Cirjak, ‘The Smallest Countries in the World By Total Land Area’, World Atlas (online, 5 June 2020) <https://www.worldatlas.com/articles/the-smallest-countries-in-the-world-by-total-land-area.html>.

133 UNCLOS art 5.

134 Ibid art 6.


23 Inquiry into the human rights of women and girls in the PacificSubmission 34 features.135 However, States have recognised the threat of sea level rise to islands, reefs, and other geographical features from which baselines are measured, and are formulating responses to this erosion of their maritime entitlements.

59.

An increasing volume of State practice exists in favour of fixing ambulatory and archipelagic baselines at current levels.
In the Pacific region, a number of States have fixed their baselines at current levels through domestic legislation and unilateral declaration.

These States include: the Marshall Islands, Cook Islands, Fiji, Kiribati, Nauru, Niue, Palau and Tuvalu.136 States have also entered into bilateral and multilateral agreements in favour of fixing baselines.
These agreements include the Polynesian Leaders Group’s Taputapuātea Declaration137 and the Delap Commitment.138 The PMBP has also brought fourteen States together in developing coherent legislation in favour of fixing baselines.139 International Tribunal for the Law of the Sea Judge Jose Luis Jesus publicised his support for fixing baselines by asserting that once baselines have been established under UNCLOS, they should be given an element of permanency regardless of whether sea levels rise or not.140 60.
By fixing baselines at their current levels, submerging or submerged States would retain their maritime entitlements regardless of the disappearance of any land territory.

While this defined maritime territory is not traditionally constitutive of statehood, it nonetheless has a crucial role.

The concept of a deterritorialised State hinges on the ability of the governments of disappearing States to negotiate solutions with other States which are more resiliently positioned against sea level rise.
This acquired or host land would then form the new home for the deterritorialised government and population.

However, no State will freely give up territory to another, or invite another’s people and government into their midst.
A potential host State will require a significant incentive to concede land: in the case of disappearing states, the economic benefits conferred by their maritime entitlements will be key to negotiating such a concession.141 By fixing baselines at current levels, disappearing States may use the offer of access to, or even control of, their maritime claims as a bargaining chip to complete what would otherwise be a severely imbalanced transaction.
The lucrative and ongoing income that such entitlements provide will be key to maintaining the people and governance of the deterritorialised State, 135 Ibid art 7.

136 Cook Islands (2013), Fiji (2007/2015), Kiribati (2015), Marshall Islands (2016), Nauru (1999), Niue (2014), Palau (2008) and Tuvalu (2013); see D Freestone and C Schofield, ‘Current Legal Developments: Republic of the Marshall Islands’ (2016) 31 International Journal of Marine and Coastal Law 732, 733, 738-740.
137 Taputapuātea Declaration (n 72).

138 Delap Commitment (n 71).

139 PMBP members are: the Federated States of Micronesia, the Cook Islands, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.

140 Jose Luis Jesus, ‘Rocks, New-born Islands, Sea Level Rise and Maritime Space’ in JA Frowein, K Scharioth, I Winkelmann and R Wolfrum (eds) Verhandelnfir den Frieden - Negotiating for Peace (Springer-Verlag, Berlin, 2003) 602.
141 Rayfuse (n 118) 12.

24 Inquiry into the human rights of women and girls in the PacificSubmission 34 or securing such maintenance from a second State.

Thus, the Clinic recommends that PIF pursues baseline fixing in both regional and international forums.

61.

An incidental effect of fixing baselines in response to sea level rise will be the preservation of existing maritime agreements.
In such an interconnected region as the Pacific, where many states share negotiated maritime borders, 142 providing certainty regarding the future of such agreements and declarations will be crucial for preserving regional stability.

Disappearing states will likely look to their neighbours for help first, for a myriad of geographical and cultural reasons.

Therefore, maintaining good relations between states will be particularly beneficial for low-lying states for whom inundation is imminent.
Legal implications of the solutions proposed for deterritorialised States 62.

The most ideal, yet most unlikely, solution for deterritorialised states is that of land acquisition.

Such an arrangement would involve a second State relinquishing part of its territory, which would then become the new territory of the disappearing State.143 However, cession of territory to a disappearing State is a highly improbable option.
States protect their sovereign territory at all costs, and it is only in instances of forced cession, annexation or occupation that States have unwillingly forfeited their territory.144 However, while unlikely to succeed, acquisition should not be struck from any proposals made by disappearing States.
The 1867 Alaska Purchase was a remarkable instance of state cooperation, which saw the Russian Empire cede Alaska to the United States in return for $7.2 million.145 If this scenario was replicated, a disappearing State may be able to buy land – especially remote or economically less-desirable land – from a larger State.

Disappearing states should consider their capacity to buy, trade or bargain their way into such a transaction.
While this option is certainly desirable, it is heavily dependent on unpredictable external cooperation.

Thus, more likely options are as follows.

63.

The second option for submerging States is to negotiate a merger with another State which has the capacity to provide security for their population when their island home becomes uninhabitable.

The bargaining chip created by preserving maritime entitlements through baseline fixing is central to negotiating a merger.
However, a successful merger with another sovereign State risks the autonomy 142 Pacific Islands News Association, ‘Pacific hailed global leader in determining shared maritime boundaries’, PACNEWS (online, 9 July 2019) <http://www.pina.com.fj/?p=pacnews&m=read&o=19116748175d255f83b2311f0679e3>.

143 Rayfuse (n 118) 9, applying Alfred H. A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37(2) Netherlands International Law Review 207.

144 Crawford (n 110) ch 17.2.


145 Alaska Treaty of Cessation, United States of America-Russian Empire, signed 30 March 1867, 301 UTS 1216 (entered into force 20 June 1867).
25 Inquiry into the human rights of women and girls in the PacificSubmission 34 of the disappearing State, and may come at the cost of control over its remaining maritime territory.146 While the Order of St John offers somewhat of a precedent for exercising sovereign rights while existing in the territory of another State, a new such arrangement is unlikely to occur.147 Thus, a merger would remove the international legal personality of the deterritorialised State.148 Even if its government continued to exercise effective control over their translocated population, it would no longer have the capacity to represent itself on the international stage or enter into international agreements.
Rather, the State which hosts it would represent both parties.

Ultimately, while the people of the deterritorialised State would retain their jus cogens right to self-determination, a merger would erode the sovereignty of the deterritorialised State.

64.

The third solution is creating a new Federation of Pacific States.
Similar to the Federated States of Micronesia, but on a much larger scale, this option would unite both threatened and habitable islands under the same banner and thus provide surety for those populations facing displacement due to sea level rise.149 However, such an option would also fundamentally alter the international legal personality of the deterritorialised state: it would no longer govern its own affairs, but rather a new amalgamated governing body would oversee the Federation and represent all its members at an international level.150 65.
A final option for consideration by disappearing States is entering into a free association.

The foremost example is that of the Cook Islands, a member of PIF, who is a self-governing State in free association with New Zealand.151 The Cook Islands has an independent international legal personality and maintains sole governance over their domestic affairs, while New Zealand assists with foreign affairs and defence.
It is an arrangement such as this which would be most desirable for a deterritorialised State.

Although the disappearing State would take up residence within the territory of their new free association partner, they would retain their legal independence and retain sole governance over their population and resources.

The relocated population would benefit from dual citizenship, while the culture and history of the submerging State is preserved.
As a fellow PIF member, Australia should be considered by threatened States as a potential partner in a free association-style agreement.

66.

It is accepted that traditional statehood may be lost by disappearing States forced to enter into a State merger or Federation.

However, the general principle in favour of the continuity of states may 146 Rayfuse (n 118) 10.

147 Rayfuse and Crawford (n 119) 10.

148 Catherine Blanchard, ‘Evolution or Revolution?


Evaluating the Territorial State-Based Regime of International Law in the Context of the Physical Disappearance of Territory Due to Climate Change and Sea Level Rise’ (2016) 53 The Canadian Yearbook of International Law 66, 96.

149 Rayfuse (n 118) 10.

150 Ibid.


151 Sir Albert Henry, ‘Statement by Sir Albert Henry, Prime Minister of the Cook Islands’ (Speech, 3rd United Nations Conference on the Law of the Sea, 29 July 1974) < https://www.forumsec.org/1974/07/29/statement-by-sir-albert- henry-prime-minister-of-the-cook-islands-to-the-3rd-un-conference-on-the-law-of-the-sea/>.

26 Inquiry into the human rights of women and girls in the PacificSubmission 34 protect against a complete dissolution of statehood.
The presumption of continuity is strong,152 and thus it forms a credible basis for the ongoing recognition of established States regardless of whether climate change has deprived them of the traditional requirements of statehood under customary international law.
Indeed, States have enjoyed continued recognition in the past despite being under occupation, as Iraq has been, or having had their territory annexed, as Kuwait did.153 These instances of territorial loss form the precedent for arguments in favour of the continued recognition of submerging States.

67.

In adherence with this presumption of continuity, the recognition of a new category of statehood is recommended.
The recognition of ‘deterritorialised States’ in addition to the current customary international law construction of statehood is likely the most just and fair solution for preserving the sovereign rights of disappearing States.154 This category would confer similar recognition as that given to a government ex-situ.155 The ‘nation ex-situ’ would continue to govern its own people and, crucially, possess its own international legal personality, while existing extra-territorially.
The addition of this new category would be highly desirable for States facing territorial inundation.

While finding security for the populations of submerging States via the solutions considered above will still be necessary, pursual of recognition for ‘deterritorialised States’ as an accepted form of statehood is needed.

The advertisement of this option in international fora such as the UNGA would be beneficial in generating international support for disappearing States.

68.
68.

It is recommended that PIF members threatened by sea level rise further explore the above options.

In the past, States have tried and failed to garner support.

Accounts suggest that in 2008, Tuvalu unsuccessfully asked Australia to accept its entire population when it is inevitably forced to vacate its islands.156 However, the issue of disappearing States will come to the fore of international psyche over the next five years.

As such, States should begin to draft proposals now.
How can States form regional customary international law to defend against challenges to statehood?

69.

PIF members are well positioned to begin the development of regional customary international law in response to the threat posed by sea level rise.

Regional customary international law is considered to be ‘any set of rules with which a region endows itself because of the distinctive values shared by its 152 Crawford (n 110) ch 16.

153 Ibid ch 16.2(5) – (6).

154 Rayfuse (n 118) 12.


155 Maxine Burkett, ‘The Nation Ex-Situ: On Climate Change, Deterritorialised Nationhood and the Post-Climate Era’ (2011) 2 Climate Law 345, 354-355.

156 Brad Couch, ‘Sinking Tuvalu wants our help as ocean levels rise’, News Pty Ltd (online, 21 October 2009) < https://www.news.com.au/news/sinking-tuvalu-wants-our-help/news- story/9c4e58bfcf4c9a00e441bc387424b7dc?sv=2630b7449be33a5165076f485174f76c>.
27 Inquiry into the human rights of women and girls in the PacificSubmission 34 members ... [or] any rule having a regional scope of application’.157 Regional customary international law, like general customary international law, is developed through a combination of State practice and opinio juris: the intention to create a legal norm.158 These elements are internationally recognised and acknowledged by the Statute of the International Court of Justice.159 It is our recommendation that PIF members continue to undertake State practice responding to sea level rise, with the requisite clear and consistent intention to create a regional norm.
While unilateral declarations and domestic legislation are important for developing a national stance in response to the threat of sea level rise, preferencing the formation of multilateral agreements is recommended.

These agreements should: 1.

Recognise baseline fixing in response to the threat posed by sea level rise; 2.

Recognise ‘deterritorialised States’ as a new category of statehood in accordance with the presumption of continuity; and 3.
Commit to finding solutions for deterritorialised States and their populations in the inevitable event of substantial or complete territorial inundation.

The PIF member States are well placed to begin drafting such agreements within the next 12 months.

This unified action from specially affected States will be crucial to forming regional customary international law.

70.
70.

It is worth noting that the development of regional customary international law can derive from State practice by other affected States.160 Regional custom may refer to that implemented by islands facing similar threats in the Indian Ocean (such as the Maldives) and the Caribbean Ocean (such as the Bahamas).
Legal academic Mathias Forteau asserts that ‘regional solidarity does not mean spatial proximity since all the members of regional organizations do not necessarily belong to the same region’.161 The involvement of similarly affected States and organisations will help PIF advocate for reform on the international stage.

71.

The timeline for the development of regional customary international law is crucial in the time- sensitive situation created by sea level rise.
It is established that customary international law may form at an accelerated rate in the face of an imminent threat.

Precedents include the North Sea Continental Shelf case, in which it was held that ‘the passage of only a short period of time is not necessarily, or of 157 Mathias Forteau, ‘Regional International Law’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2006) [1].

158 Nicaragua 207.
158 Nicaragua 207.

159 Kya Raina Lal, ‘Legal Measures to Address the Impacts of Climate Change-induced Seal Level Rise on Pacific Statehood, Sovereignty and Exclusive Economic Zones’ (2017) 23 Auckland University Law Review 235, 264.

160 Ibid 263-264.

161 Forteau (n 157) [12].
28 Inquiry into the human rights of women and girls in the PacificSubmission 34 itself, a bar to the formation of a new rule of customary international law.’162 In addition to this ruling, rapid development of customary international law has occurred in relation to situations of high moral outrage, such as the crimes against humanity committed in Rwanda, and situations with imminent need but little precedent, such as rules concerning the freedom of extra-atmospheric space.163 The imminent threat that sea level rise poses to low-lying island states certainly attracts the same urgency as these examples.
Consequently, with consistent multilateral action, regional customary international law may be developed quickly and effectively.

72.

It is recommended that PIF advocates for an UNGA Resolution supporting the recognitions and commitments pursued in regional agreements.
A Resolution recognising the continuing statehood of deterritorialised states, regardless of their ability to satisfy traditional territorial requirements, would be instrumental in translating regional customary international law to internationally accepted customary international law.
Furthermore, continuing to recognise disappearing States is favoured by notions of ‘international justice and solidarity’.164 If challenged for a position by PIF, it is likely that UN members will favour constitutive recognition and a presumption of continuity for their disappearing compatriots.

Part B: Conclusions 73.

These recommendations should be of some assistance to PIF in determining future actions in response to sea level rise.
Working towards fixing baselines as a means of strengthening the position of States negotiating solutions to deterritorialisation is of primary importance.

74.

PIF should lead in recognising ‘deterritorialised States’ as a category of statehood in accordance with the presumption of continuity of States.

This will ensure that the international legal personality of inundated States remains intact.

75.

The development of regional customary international law is crucial in securing the above goals.
Subsequently, an UNGA Resolution may assist PIF in translating regional practice into general customary international law.

162 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (Judgement) [1969] ICJ Rep 3, 74.

163 Tulio Treves, ‘Customary International Law’ in R Wolfrum (ed) The Max Planck Encyclopedia of Public International Law (Oxford University Press, 2006) [24].

164 Stoutenburg (n 109) 59.


29 Inquiry into the human rights of women and girls in the PacificSubmission 34 Conclusion Part A of this opinion recommends that PIF pursue a supplementary agreement to UNCLOS or an UNGA Resolution in order to formalise the legality of fixed baselines and secure maritime entitlements as currently recognised.
Part B supports fixing baselines as a means of empowering PIF States threatened by sea level rise and recommends deterritorialised States be recognised as an additional category of statehood.

Please consult the executive summary (at page 3) for further detail.
In developing this opinion, the following topics were identified for further research and future consideration: - Current interpretation of Article 5 UNCLOS and re-interpretation through regional custom; - - State Practice concerning fixed baselines for the purposes of customary international law (at [9]); International litigation for climate change impacts affecting PIF (at [54]); - Compensation for loss of, and damage to, territory and maritime jurisdiction; and Protection and resettlement of climate refugees.
- - We trust the above opinion will be of assistance to PIF in determining a path forward.

Hayley Keen (Part A) and Charlotte Nichol (Part B) ANU International Law Clinic 18 June 2020 30 Inquiry into the human rights of women and girls in the PacificSubmission 34