By Pierandrea Leucci
Director, Associazione di Consulenza in Diritto del Mare (ASCOMARE).
Most of its area still lays uncharted. International law requires States to make use of it for peaceful purposes only. Part of its natural resources is the common heritage of mankind. The year 1967 was a landmark in its history and prompted to the development of a new legal paradigm for its international utilization.
What are we talking about?
A space law’s enthusiast would answer with no hesitation: the outer space. While a law of the sea’s specialist would rebut with the same confidence: the deep-sea. Both of them would be right. There is an invisible line, in fact, connecting the deepest corner of the Mariana Trench with the galaxy MACS0647-JD. This line is called international law. A living body of rules and principles governing, among other things, the responsible usage of natural spaces and resources, which nowadays is jeopardized by the hydra of the 21st century: climate change.
Unsurprisingly, the UN Committee on the Peaceful Uses of the Outer Space (UN/COPUOS) devoted Section G of its 2021 annual report to ‘space and climate change’, while also underscoring the importance of strengthening synergy between space activities and the 2030 Agenda’s implementation, including its Sustainable Development Goal 14 (Life Below Water).
Space technology, climate policies and the law of the sea. The ‘three musketeers’ of global sustainability, orphans of the literary universe of Dumas and abruptly thrown into the Anthropocene era for a new adventure: mapping the world’s oceans and seas to preserve the legal status of natural features against the impact of climate change.
Why? In one word: predictability. A legal comfort zone masterfully crafted to circumvent the role of nature, as well as to satisfy what Judge Bedjaoui in the Gabčikovo-Nagymaros case (Hungary v. Slovakia, 1997) referred to as the “taste [of jurist] for the legal ordering of things.”
To date, the most important source of international law governing maritime spaces and activities is the UN Convention on the Law of the Sea (UNCLOS). The Convention establishes a mosaic of maritime zones, each one characterized by its own legal regime. Not only continental masses, but also ‘islands’ are capable of generating maritime entitlements. Article 121(1) UNCLOS defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” When islands can sustain human habitation or economic life by their own, they provide a coastal State with the power to extend its jurisdictional authority up to 200 nautical miles (M) from the territorial sea’s baseline. What is more, if the continental margin of an island extends beyond 200M, the coastal State may even be entitled to exercise its authority outside that limit.
Islands which do not meet the ‘human habitation/economic life’ criterion can only generate a territorial sea extending up to 12M. These features are often referred to as rocks. In contrast, natural features which are not “above water at high tide” cannot generate any maritime entitlement – UNCLOS refers to them as low tide elevations (LTEs).
The classification of natural features as islands, rocks or LTEs is critical to identify the geographical scope of the coastal State’s authority. Although, their legal status is closely linked to natural factors that often disregard the legal dimension of such features. For instance, an island which is capable of sustaining human habitation may become unhabitable due to extreme climate conditions. Similarly, a rock which is “above water at high tide” may turn into LTE due to sea-level rise and coastal erosion.
Climate change can therefore play a major role in altering the legal status of natural features from which the rights and obligations of States directly depend. This contributes, among other things, to increasing the risk of inter-States disputes on the use of maritime spaces and resources. Small islands developing States and archipelagic States are the ones doomed to pay the higher price in that respect.
In the landmark-award on the South China Sea case (Philippines v. China, 2016), the Arbitral Tribunal identified an important criterion to determine the legal status of maritime features affected by anthropogenic modification. In a nutshell, the Tribunal observed how the legal status of a maritime feature should not be assessed against the backdrop of its current (or future) situation, but rather on its ‘natural condition.’ Thus, for the purpose of assessing the legal status of certain maritime features, the Tribunal relied on nautical charts, hydrographic descriptions, satellite imageries and other technical data showing not only the current status of those features, but also their original condition. The same criterion would arguably apply in respect of non-anthropogenic forms of modification, including the ones caused by climate change.
Of course, satellites are not time-machines. Space technology only limitedly provide evidence on the natural condition of islands, rocks or LTEs. However, technical support from space and satellite photography can be useful to freeze the status of such features in time, especially when no further documentary evidence on their natural condition already exists. A ‘postcard from the space’ to remind all of us the importance of coordinating efforts and strategies to prevent the irreparable consequences of climate change.
(Ph: East Island, Hawaii – US Fish and Wildlife Service)