GEOGRAPHICAL DIMENSIONS TO GLOBAL OCEANS GOVERNANCE

abstract

The global ocean dominates the world spatially. While there is growing understanding that these vast marine spaces are more valuable than ever, there is also mounting concern over escalating threats to the marine environment and vulnerable ecosystems. Governance of the oceans is both inherently and increasingly geographical in character, illustrated here through consideration of the zonal system of maritime jurisdiction, the definition of baselines along the coast, delineation of the outer limits of maritime zones and delimitation of maritime boundaries. In response to the increasing diversity and intensity of activities and uses of the ocean, a variety of geospatial management approaches are being applied. Geography and geographers will therefore have a salient role to play in present and future global oceans governance.

Keywords:

• ocean governance
• law of the sea
• maritime baselines
• limits
• boundaries

The global ocean dominates the world spatially, encompassing approximately 71 percent of the surface of the planet (Eakins and Sharman 2010). These vast ocean spaces are increasingly recognized as being both increasingly valuable and vulnerable.

First and foremost, the global ocean is fundamental to life on planet Earth. This is because the oceans produce half of the planet’s oxygen and play an essential role in driving the global atmospheric system as well as serving as the primary sink for excess carbon dioxide and heat, absorbing 26 percent of anthropogenic CO₂ emissions, and fully 90 percent of excess heat in the past 200 years (Warner and Schofield 2012). Ocean environments also represent a vital repository of global biodiversity and provider of essential ecosystem services such as coastal protection, marine and coastal tourism together with significant cultural and amenity benefits as well as scope for marine scientific research and development.

The global ocean is fundamental to global trade with over 80 percent of global trade by volume and over 70 percent by value being carried by sea (UNCTAD 2018). Further, over 95 percent of international telecommunications and internet traffic is transmitted through fiber-optic submarine telecommunication cables and the cables traversing the global seabed (Carter et al. 2009).

Ocean spaces and environments also offer valuable marine resources. Traditionally marine resources have tended to be conceived of in terms of fisheries and seabed hydrocarbons and these remain significant. Globally, fish production reached an all-time high in 2016 of 171 million tonnes, worth an estimated US$ 232 billion, with 88 percent being used for human consumption meaning that fisheries play “a crucial role in nutrition and food security” (FAO [Food and Agriculture Organization] 2018, 69). The oceans are also a major present and future source of energy resources. Offshore oil and gas resources are likely to remain important components of the global energy mix for the foreseeable future in keeping with present, though pre-pandemic, policy trajectories, despite gathering momentum in the transition toward clean energy technologies (IEA [International Energy Agency] 2020, 19). The oceans also have a major role to play in the latter context through the growth in offshore renewables, especially offshore wind power.

Overall, there is increasing acknowledgment of the current importance and future potential of the ocean economically, often framed in terms of the ‘blue economy’ concept. For example, the World Wildlife Fund (WWF), employing a conservative and sustainability-oriented assessment approach excluding nonrenewable activities such as the exploitation of offshore oil and gas deposits, estimated the total asset value of the oceans to be at least US$24 trillion, with the annual “gross marine product” associated with the oceans of over US$2.5 trillion, thus ranking the oceans as the world’s seventh largest economy (WWF [World Wildlife Fund] 2015, 7).

It is, however, also recognized that coasts and oceans are increasingly under threat. Coastal environments are under pressure from population shifts toward the coast and related development pressures, as well as pressures induced by climate change such as sea level rise (Rogers and Schofield 2016; IPCC [Intergovernmental Panel on Climate Change] 2019). On the latter issue the IPCC has been explicit in stating that sea level rise currently being experienced is “unprecedented over the last century” and rising at about 2.5 times the rate as previously (IPCC [Intergovernmental Panel on Climate Change] 2019, 6). Further offshore, the IPCC has also pointed toward deoxygenation of the upper 1,000 m of the oceans, more than doubling of the rate of ocean warming, ongoing ocean acidification and increased frequency and intensity of adverse events including marine heat waves and extreme sea level and weather events (IPCC [Intergovernmental Panel on Climate Change] 2019).

In addition to the enormous challenges stemming from the impacts of climate change, ocean governance challenges arise with respect to the sustainable use of marine resources, for example as a consequence of overfishing including the impacts of illegal, unreported and unregulated (IUU) fishing, protecting and preserving the marine environment and biodiversity, labor and human rights including slavery at sea, as well as with respect to maritime security to protect against threats such as the trafficking of arms, drugs and people as well as piracy and armed robbery against shipping. The growing diversity and intensity of ocean activities and uses also means that marine environments are under greater stress (Halpern et al. 2008), defaunation of the ocean is accelerating (McCauley et al. 2015) and marine wilderness areas are diminishing (Jones et al. 2018). It is unsurprising, therefore, that the afore-mentioned WWF report warns that the global ocean’s blue economic potential is tied to assets that are in steep decline as a consequence of these threats (WWF [World Wildlife Fund] 2015).

This article addresses how the vast marine spaces of the global ocean are claimed, apportioned, managed and conserved. The article demonstrates how the governance of the global ocean is profoundly geographical in character. In particular, it shows that the definition of baselines, delineation of the outer limits to maritime jurisdictional zones and the delimitation of maritime boundaries where maritime claims overlap with one another, coupled with area-based management measures, are crucial to good oceans governance. This, in turn, is crucial to sustainable development of ocean resources, the preservation and conservation of the marine environment and its ecosystems and to international peace and security through good order at sea.

A Zonal System of Maritime Claims

The overarching legal framework governing claims to maritime jurisdiction is provided by the United Nations Convention on the Law of the Sea (LOSC or ‘the Convention’) (UN LOSC [United Nations Convention on the Law of the Sea]). The LOSC has gained widespread international recognition and at the time of writing there were 168 parties to it (comprising 167 State plus the European Union)—something that is particularly impressive since there are only 152 coastal States (UN DOALOS 2011; UN DOALOS 2020). Here it can be observed that, despite having played a major role in crafting its provisions, the United States is not a party to the LOSC. Nonetheless, the United States generally regards the LOSC as being reflective of customary international law, and pursues its oceans policy accordingly (Roach and Smith 2012).

The LOSC, despite having the word “law” in its title is, however, a very geographical Convention. Not only does the LOSC establish a zonal system of maritime jurisdiction but it is replete with geographical, geophysical and hydrographic terminology. For instance, the Convention refers to distances, coordinates, straight lines, charts, depth isobaths and datum issues as well as geographic and geomorphological features of the coast and continental margin such as islands, reefs, low-tide elevations, archipelagos, deeply indented or cut into coastlines, deltas, river mouths, bays, the foot of the continental slope and the thickness of the continental margin. Moreover, the Convention employs concepts that are informed by an understanding of coastal geography such as opposite and adjacent coasts, relevant areas and lengths of coastlines as well as the general direction of coasts. Consequently, a range of ‘geo’ disciplines are required to properly understand, interpret and implement the Convention’s legal provisions.

In particular, the LOSC established a system of maritime zones adjacent or appurtenant to the coast in keeping with the legal maxim that “the land dominates the sea” (ICJ [International Court of Justice] 1969, para.96). That is, maritime entitlements arise from sovereignty over coastal land territory.

These maritime zones include the territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf, the outer limits of which are predominantly delineated on the basis of distance measurements from baselines along the coast. Thus, the limits of the territorial sea, contiguous zone and exclusive economic zone (EEZ) are all defined by reference to distance measurements. That is, to maximum distances of 12 nautical miles (M), 24 M and 200 M respectively (see LOSC, Articles 3–4, 33 and 57). Here it can be observed that delineating the outer limits of the continental shelf where they exceed the 200 M limits of the EEZ is a considerably more complex task as will be explored further below (see Figure 1).

Fig. 1 Schematic of maritime jurisdiction claims of a coastal State measured seawards from baselines along the coast.Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

The general international acceptance of this zonal system, and the codification of the EEZ out to a 200 M limit in particular, has had a dramatic impact on the maritime spaces subject to the maritime claims of coastal States globally, thus transforming the maritime political map of the world. That said, there is a significant distinction between maritime spaces within baselines (internal waters or archipelagic waters) and the territorial sea on the one hand and areas of the EEZ and continental shelf on the other. The former are subject to the sovereignty of the coastal State, whereas within the latter the coastal State exercises specific sovereign rights.

This distinction between sovereignty and sovereign rights represents a balance between competing interests. While coastal States have long been keen to acquire greater rights over ‘their’ waters off their coastal fronts, the counterpoint has been a similarly longstanding desire to ensure freedom of navigation—which as noted above is essential to global trade. In the negotiations leading to the drafting of the LOSC, a compromise was reached between the desire of many coastal States, notably including recently independent developing coastal States, and the major maritime powers. Within the EEZ and continental shelf, therefore, the coastal State has sovereign rights over living and non-living marine resources but long-standing high seas freedoms such as navigation and overflight for vessels and aircraft belonging to other States are preserved, along with the right to lay submarine cables and pipelines (LOSC, Article 58, 79 and 87).

This addressed one of the key objectives of the EEZ concept in particular from the point of view of developing States. That is, that the coastal State should have marine resource rights off their shores. It was also widely anticipated that EEZs would deliver substantial economic gains to developing States. For example, in 1984 the United Nations (UN) Food and Agriculture Organization (FAO) reportedly estimated that 90 percent of marine fish and shellfish were caught within 200 M of the coast (Schurman 1998). Similarly, it was estimated that 87 percent of the world’s known submarine oil deposits would fall within 200 M-breadth zones of jurisdiction (Churchill and Lowe 1999). Consequently, the introduction of the EEZ regime constituted a significant reallocation of resource rights from international to national jurisdiction. It remains uncertain, however, whether the economic gains anticipated for developing States have, in fact, been realized.

This substantial advance of maritime claims seawards raises a range of challenges with respect to the definition of the baselines from which maritime zones are predominantly measured offshore, the delineation of the outer limits of these maritime zones and the delimitation of maritime boundaries where the maritime claims of neighboring States overlap with one another.

Definition of Baselines

While, as noted above, the land dominates the sea, it does so through “the intermediary of the coastal front” (Weil 1989, 50). The coastal front is provided by baselines along the coast, the determination of which is an inherently geographical and hydrographic exercise. Such baselines are significant in law of the sea terms because they provide the ‘starting line’ from which the limits of maritime claims are calculated. Baselines are thus fundamental to determining the spatial extent of coastal State claims to maritime space and therefore rights over marine resources, as well as responsibilities related to the safeguarding of marine environment within the zones of maritime jurisdiction so defined. Baselines are also frequently critically important in the delimitation of maritime boundaries as a consequence of their direct role in the construction of equidistance or median lines, which are often used in the construction of maritime boundaries (see below).

In the absence of any other baseline claims, the default baselines of a coastal States are “normal” baselines coincident with “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State” (LOSC, Article 5). Article 5 of the LOSC is, however, silent as to which low water line among many options is preferable. These various low-water lines are determined by the choice of vertical datum which provides the level of reference for the measurement of depths and elevations (Antunes 2000; IHO [International Hydrographic Organization] 2014). This can be interpreted as meaning that the choice of vertical datum is left up to the coastal State which offers the potential for coastal States to opt for different datums. Such a difference will necessarily impact on the location of low-water lines and potentially which features will be above high-tide islands, low-tide elevations that are submerged at high tide but uncovered at low tide or fully submerged components of the sea floor (Carleton and Schofield 2001). This, in turn, will impact on the capacity of features to generate maritime entitlements and potentially serving as basepoints in the construction of an outer limit to maritime claims or a maritime boundary with a neighboring State, thus providing scope for disputes. For example, in their case before the International Court of Justice (ICJ) Nicaragua and Colombia disagreed over whether small coral features on a large coral platform called Quitasueño were above high-tide features because they chose different vertical datums (ICJ 2012).

The issue of vertical datums is a complex one essentially because low-water is not a fixed level as it is influenced by the phases of the Moon, the elliptical orbits of the Sun and the Moon, the Moon’s changing declination as well as coastal configuration and physiography (IHO [International Hydrographic Organization] 2014). These variations and complexities mean that the definition of a global, universally applicable, vertical datum remains out of reach. That said, chart makers, with safety of navigation considerations foremost in mind, have tended to use a conservative chart datum and thus low water level which will be rarely reached. A frequently used option is lowest astronomical tide (LAT) which is defined as the lowest level that can be predicted to occur under average meteorological conditions and under a combination of astronomical conditions (IHO [International Hydrographic Organization] 2014). This provides for a very low, and thus safer, low-water line option from the mariner’s point of view, as all potential hazards to navigations are taken into account.

A further important dimension to geographic and legal considerations is that coasts are dynamic features of the land/seascape. Changes in the coast can occur as a result of a range of processes, notably through natural depositional and alluvial processes that serve to advance coastlines such as deltas around the world. Coastlines may also incrementally advance thanks to isostatic (or post-glacial) rebound whereby the continental crust is gradually rising following the removal of the enormous weight of major ice-sheets. Although rates of uplift are generally thought to be of the order of 1 cm or less, even this seemingly slight rise can have significant consequences in the context of low-lying, shallow gradient coastlines. Similarly, volcanic or tectonic activity can also lead to the emergence of additional land, and therefore coasts, above the surface of the sea.

The counterpoint is that just as coasts can advance, so they can retreat. For example, coasts and offshore features formed as a delta advances can be trimmed back and disappear as a result of erosion and this can occur cyclically over time. Consequently, the traditional view is that normal baselines coincident with the low-water line, can move or “ambulate” over time as coasts and thus low-water lines advance and retreat (Reed 2000, 185; Lathrop et al. 2019, 58). This is a particularly problematic issue in the context of significant and accelerating sea level rise.

This illustrates that considerable geographic and hydrographic expertise is required in the determination of normal baselines. Similarly, geographic expertise is required to apply the other baseline provisions provided for under the LOSC with respect to the baselines of reefs (Article 6), straight baselines (Article 7), river closing lines (Article 9), bays (Article 10), ports and permanent harbor works (Article 11) as well as with respect to archipelagos (Article 47). The designation of all of these straight line types of baselines are dependent on the presence of particular geographic features or circumstances such as an island with fringing reefs or islands situated on atolls for the application of Article 6 of the LOSC, a deeply indented or cut into coastline or the presence of a fringe of islands in the immediate vicinity of the coast for the application of straight baselines under Article 7 of the LOSC, the identification of a river mouth with respect to Article 9 and the identification of a bay for an Article 10 bay closing line to be defined.

A number of these provisions relating to geographic features are notably imprecise. For example, Article 7 dealing with straight baselines lacks objective tests regarding how assess whether a particular stretch of coast is “deeply indented or cut into” or whether a “fringe of islands” exists along the coast in its immediate vicinity” in accordance with LOSC, Article 7(1). Specifically, there is no indication as to the depth or frequency of such deep indentations or cuts into the coast line needed for a particular stretch of coastline to qualify for the application of straight baselines. Similarly, Article 7 of the LOSC is silent as to how many, how close to one another and how far offshore fringing islands need to be to justify the use of straight baselines on the basis of the presence of a “fringe of islands”.

The loose use of essentially geographical terminology but without appropriate qualifying criteria in Article 7 of the LOSC led one leading political geographer to observe in the aftermath of the Convention being opened for signature that: “the imprecise language [of Article 7] would allow any coastal country, anywhere in the world, to draw straight baselines along its coast” (Prescott 1985). Thus, while the intention of the provision is clear, that is, to allow for the simplification or approximation of especially complex coasts, its practical implementation has proved to be highly problematic with much State practice that can be deemed excessive in character (Roach and Smith 2012; Schofield 2012a, 2012b). This absence of objective tests concerning certain geographical terms used with the LOSC is, however, indicative of the lengthy and at times fraught negotiation process that took place at the Third United Nations Conference on the Law of the Sea (UNCLOS III), lasting from 1974 to 1982, which led to the Convention. This inter-governmental negotiation necessitated the use of compromise and, on occasion, ambiguous language in or to achieve a package deal applicable to the global ocean as a whole on a consensus basis.

In contrast, other baseline provisions contain greater geographical specificity. For example, Article 10 concerning bays provides a clear maximum length for bay closing lines of 24 M coupled with a semi-circle test whereby the area of the bay needs to as large as or larger than that of a semi-circle with the diameter of a line drawn across its mouth (see Figure 2a and b). Similarly, an archipelagic State is one that is composed wholly of islands or parts of islands in keeping with Article 46 of the LOSC which can then apply archipelagic baselines around its outermost rocks and reefs in accordance with Article 47 of the Convention. Article 47 also provides for a maximum length of for baseline segments of 125 M and a ratio test whereby the ratio of water area to land area enclosed by archipelagic baselines must fall between 1:1 and 9:1 (see Figure 3).

Fig. 2 (a) Example of a Juridical Bay. (b) Example of a Non-Juridical Bay.Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

Fig. 3 Archipelagic baselines and waters.Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

Issues with Islands

The global ocean hosts an enormous variety of insular features in terms of their physical composition, elevation, vegetation, availability of water, prevailing temperatures and proximity or otherwise to mainland shores, all of which impacts substantially on their habitability. In law of the sea terms this diversity is captured by three types of feature: islands and rocks (Article 121), low-tide elevations (Article 13) and artificial islands (Article 60(8)) (see Figure 4).

Fig. 4 Insular features and sea level. Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

The so-called “Regime of Islands” under the LOSC actually comprises a single article of the Convention, consisting of three paragraphs. Islands are defined under Article 121(1) of the LOSC as a “naturally formed area of land, surrounded by water, which is above water at high tide”. The second paragraph of Article 121 provides that the maritime entitlements of islands are to be determined in accordance with those of “other land territory”. However, Article 121(3) of the LOSC distinguishes between islands capable of generating the full suite of maritime claims and “rocks which cannot sustain human habitation or economic life of their own” which are denied the capacity to generate EEZ and continental shelf rights.

It is now well-established that it does not matter how small a particular insular feature is or what it is composed of for it to qualify as an island under the law of the sea (LOSC Article 121). What signifies is whether the feature is naturally formed, composed of land, surrounded by water and above high tide (LOSC Article 121(1), ICJ 2012). Analogous to the absence of a preferred low-water line for normal baselines under Article 5 of the Convention, Article 121(1) does not indicate which high-tide line is appropriate. Again, the high-tide line as depicted on nautical charting tend to be used but there is scope for dispute between States on this issue because there are different high tide options which may differ on a range of charts.

With respect to distinguishing between fully entitled islands and mere rocks, the ambiguous language of Article 121(3) has long defied legal clarification. However, the 2016 Award of the Arbitral Tribunal in the South China Sea case between China and the Philippines has provided the first international judicial interpretation of these provisions (UN LOSC 2016). The Tribunal concluded that the assessment of a particular feature was not to be based on geological or geomorphological criteria such that the term “rocks” is meant to apply only to features “composed of solid rock” (UN LOSC 2016, para. 540). Further, it ruled that assessment should be on the basis of the feature’s “natural capacity” to sustain human habitation or an economic life of its own, “without external additions or modifications intended to increase its capacity” to do so (UN LOSC 2016, para. 541). Moreover, it was determined that only features with a capacity to sustain either “a stable community of people” or economic activity that is “oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea” and not dependent on outside resources or purely extractive in nature are capable of generating extended maritime claims (UN LOSC 2016, para. 543). The Tribunal emphasized that assessment of insular features should be on a “case-by-case basis”, and with “due regard” to the possibility that a group of islands may collectively provide for human habitation or economic life as the Tribunal was “conscious that remote island populations often make use of a number of islands, sometimes spread over significant distances, for sustenance and livelihoods” (UN LOSC 2016, para. 547).

Mindful of the diversity of insular features with their own unique characteristics, the Tribunal in that case avoided setting objective, yet also arbitrary, numerical tests for the “human habitation or economic life” requirements contained in Article 121(3) of the LOSC, such as minimum number of insular inhabitants, means to assess quality of life or level of economic activity. Nonetheless, it did indicate a number of key factors, predominantly geographical in character, to be taken into account in the assessment of insular features including the presence of potable fresh water, the presence of vegetation, agricultural potential as well as the presence of fishermen, and commercial operations with a view to determining whether a feature could provide the necessary “food, drinkable water, and shelter” required for human habitation or to support an economic life for the benefit of the coastal community concerned (UN LOSC 2016, para.422). Given the emphasis placed on the key factors outlined above, it would seem that geographers, as well as experts from other geo-related fields, are well-placed have the potential to play a salient role in helping to assess insular status.

The South China Sea Award, while highly controversial in particular because it was robustly rejected by China, provided a highly detailed, systematic analysis of Article 121 of the LOSC and therefore offers substantial guidance on the definition of island status. Geopolitically, China’s decision not to participate in the arbitration case and rejection of the Arbitral Award unfortunately sets up a scenario of what can be viewed as competing geographies in the South China Sea. That is, China maintains what it views as its historic rights in the South China Sea and seeks to assert its jurisdiction whilst other coastal States bordering the South China Sea attempt to use the marine resources within what they firmly regard as ‘their’ waters, setting the scene for ongoing maritime disputes in the South China Sea.

Low-lying insular features that are submerged at high water but are exposed at low-tide are termed low-tide elevations (LTEs). Similar to islands, such features need to be naturally formed areas of land and surrounded by water under Article 13 of the Convention. Once again, the determination of the applicable vertical datum will determine which features qualify as above high-tide features subject to the regime of islands under Article 121 of the LOSC, which features are LTEs and which are wholly and permanently submerged components of the sea floor. LTEs may be used as basepoints for measuring maritime claims, but only if they are wholly or partially within a 12 M territorial sea measured from an above high-tide baseline along the coast. Consequently, LTEs have been termed “parasitic” basepoints (Symmons 1995, 7) (see Figure 4).

Finally, artificial islands, installations and structures are explicitly defined in the LOSC as not possessing the status of islands with no territorial sea of their own and no role in the delimitation of maritime boundaries (LOSC, Article 60(8)). Instead, reasonable safety zones of up to 500 m may be defined around them. Thus, artificial island-building such as that undertaken by China in recent years will not lead to the creation of fully entitled islands capable of generating broad maritime claims, nor can a feature that in its natural state is a rock or low-tide elevation be, as it were, upgraded, in status through human intervention (UN LOSC 2016).

Delineation of Maritime Limits

The spatial limits above-mentioned system of maritime zones are predominantly set by distances measured from baselines along the coast. The exception to the rule are the outer limits to the continental shelf where the continental margin exceeds 200 M EEZ limits, considered below. Maritime limits are commonly delineated through the “envelope of arcs” method (Carleton and Schofield 2001, 62). Here it can be noted that only certain critical basepoints along the overall system of baselines along the coast will be relevant to the limits of the maritime zones with the length of the arcs from the contributing basepoints being determined by the breadth of the maritime zone for which the outer limit is being constructed. It follows that fewer basepoints contribute to the construction of the outer limits of maritime claims where broader maritime claims are under consideration.

As noted above, sea levels are rising (IPCC [Intergovernmental Panel on Climate Change] 2019). The implications of ambulatory coasts and normal baselines subject to inundation as a consequence of sea level rise is that the outer limits to maritime zone claims measured from them will necessarily also shift and change over time. Additionally, rising sea levels mean that islands are likely to be subject to increased flooding, erosion and the inundation of parts or even the entirety of their land area. Such an eventuality would likely lead to islands becoming less and less habitable, for instance as a result of saline intrusion into freshwater aquifers beneath features resulting in a loss of potable water supplies, leading to the displacement of significant numbers of or even all the inhabitants of these islands. This could lead to its reclassification from being a fully entitled island to a mere rock, an LTE, or even a fully and permanently submerged feature (Figure 5).

Fig. 5 The role of low-tide elevations in the generation of maritime limits. Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

In this context it is important to take into consideration the complex interactions between sea level and the shape and elevation of the land. Thus, assessments concerning the vulnerability of a particular part of the coast need to take into account feedbacks between changing relative sea level experienced at the coast and coastal morphology, coupled with an appreciation of the adaptive capacity of the coastal ecosystems involved as well as socio-economic pressures on the coast in question (Rogers and Schofield 2016). This suggests that sea level rise does not necessarily automatically ‘march up the contours’ and translate into recessions in the location of low-water lines in a straightforward manner. Further, the outer limit to a claim to maritime jurisdiction will only be impacted if the critical basepoints, located on the overall baseline, from which that limit is measured are subject to change.

Nonetheless, significant sea level rise has the potential to pose a distinct threat to critical base points from which maritime zones are measured and thus the extent of national maritime jurisdictional claims of States possessing low-elevation coasts. In response to this unpalatable scenario a number of coastal States, especially the small island but profoundly ‘large ocean’ States of the Pacific, are moving to depart from the traditional view concerning ambulatory baselines and instead declare and fix their maritime baselines limits and boundaries (Schofield and Freestone 2019). Over time, however, as coasts are increasingly inundated and retreat landwards this will create a scenario whereby the declared baseline will no longer reflect the physical reality of the coast and low-water line along it as shown on nautical charts. This practice of declaring baselines as well as limits and boundaries, predominantly through the definition of coordinates rather than relying on charted positions appears to represent a challenge to the above-mentioned legal maxim that “the land dominates the sea”. Consequently, disputes may arise with other States, for instance challenging the declared maritime limits of a State where the coasts and basepoints from which the maritime limit is derived has retreated or been inundated as a result of sea level rise.

Outer Limits to the Continental Shelf beyond 200 Nautical Miles

For coastal States located on broad continental margins, part of their continental shelf may well be located seaward the 200 M limits of the EEZ and are commonly referred to as areas of ‘extended’ or ‘outer’ continental shelf. This is despite the fact that this terminology does not occur in the LOSC and that legally there is only one continental shelf with no distinction between its ‘inner’ and ‘outer’ parts. The delineation of the outer limits of the continental shelf where it exceeds the 200 M EEZ limits are determined in accordance with a complex series of criteria as well as distance measurements from baselines (LOSC, Article 76). The outer limits of the continental shelf may be determined in partnership with a scientific and technical body established through the Convention—the Commission on the Limits of the Continental Shelf (CLCS). Article 76 of the LOSC provides two formulae according to which coastal States can establish the existence of a continental margin beyond the 200 M limit—frequently referred to as the “Gardiner Line”, based on reference to depth or thickness of sedimentary rocks overlying the continental crust, otherwise known as the “Hedberg Line”, consisting of a line 60 M from the foot of the continental slope. Two maximum constraints or cutoff lines are then applied—either a distance of 350 M from relevant baselines or 100 M from the 2,500 meter isobaths (see Figure 6).

Fig. 6 Delineating the Outer Limits to the Continental Shelf.Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

Coastal States are required to formulate a submission of information to the CLCS regarding the delineation of continental shelf limits seawards of 200 M comprising information related to the morphology and geological characteristics of the continental margin in question as well as the bathymetric information relating to water depth. Additionally, geodetically robust distance measurements are necessary in order to determine, for example, the location of 200 M EEZ limits and the 350 M cutoff line. The CLCS examines submissions and then provides recommendations to the coastal State. It is important to note that while the outer limit of the continental shelf seawards of 200 M is delineated on the basis of the recommendations of the CLCS, it is the coastal State, rather than the Commission, which delineates the outer limit of its continental shelf. Gathering the information to address these criteria necessitates the involvement of multiple scientific and particularly geo-scientific disciplines, making the formulating a submission a time-consuming and expensive process. For example, Japan reportedly devoted well in excess of 52 billion Yen (US$500 million) on preparing its submission (Tani 2008). In addition to these challenges, considerable geo-technical and legal complexities and ambiguities remain in the delineation of the outer limits of the continental shelf seawards of 200 M from baselines (Macnab 2010). Nonetheless, this process it does provide for a “definable limit”—something which has been termed “the real achievement” of Article 76 of LOSC (McDorman 2002, 307).

This process has involved far more coastal States than originally envisaged such that, at the time of writing, 83 coastal States had made either full submissions or submissions of preliminary information as a prelude to making full submissions to the CLCS regarding outer continental shelf rights. In total, this has resulted in 100 distinct outer continental shelf submissions or submissions of preliminary information being deposited with the CLCS, comprising 81 full submissions and 19 preliminary submissions (CLCS [Commission on the Limits of the Continental Shelf] 2020). Collectively, these submissions cover an area of over 37 million km² (Bernard and Schofield 2020). Here it is also important to note that over 3.3 million km² of this area are subject to overlapping submissions which will need to be resolved (Bernard and Schofield 2020). These figures are, furthermore, likely to increase as further submissions are delivered to the Commission and preliminary submissions are replaced by full submissions.

Importantly, the provisions of Article 76 are specifically “without prejudice” to the delimitation of continental shelf between neighboring States (Article 76(10)). The CLCS is not mandated to evaluate the relative merits of competing submissions so that where submissions overlap the Commission will not be able to consider them unless the states concerned empower the Commission to do so.

The proliferation of submissions, in large part prompted by the existence of a deadline, has posed practical problems for the Commission by creating a substantial backlog of work. This means that, at the present rate of progress, it may be several decades before the Commission’s work is complete, despite efforts to try to speed up the process. This, in turn means that the maritime political map of the ocean floor will remain incomplete for a considerable time to come.

Zoning beyond the Limits of National Jurisdiction

The high seas comprise approximately 40 percent of the surface of the planet, 64 percent of the area of the oceans and almost 95 percent of their volume (GEF 2020). That part of the seabed of the global ocean beyond national jurisdiction is termed the International Seabed Area (or simply ‘the Area’ for short) which is dealt with under part XI of the LOSC and is administered by the International Seabed Authority (ISA).

Here it is important to note that intergovernmental negotiations are ongoing toward a toward a new international legally binding instrument (ILBI) for the conservation and sustainable use of biodiversity beyond national jurisdiction (BBNJ) (UN 2020). It is hoped that the ILBI will assist in the management of areas beyond the limits of national jurisdiction which encompass around 60 percent of the global ocean. These international zones are not coincident as a consequence of the existence of areas of ‘extended’ or ‘outer’ continental shelf located seaward of 200 M EEZ limits. Consequently, parts of the high seas are superjacent to these parts of a coastal state’s continental shelf rights, thus providing for a three-dimensional layering of distinct regimes.

Although the high seas and the Area, that is, the Global Commons, are located beyond national jurisdiction, they are by no means free from area-based management. For instance, the ISA has designated an extensive system of contract areas as well reserved areas with respect to the Clarion-Clipperton Fracture Zone located in the Equatorial North Pacific Ocean (UN ISA [International Seabed Authority] 2020). Further, the use of area-based management tools (ABMTs) is one of the main themes in the above-mentioned BBNJ negotiations (UN BBNJ 2020).

Geography and the Delimitation of Maritime Boundaries

As a result of the advance of maritime claims seawards, coupled with the proximity of coastal States to one another, multiple overlapping maritime claims and thus potential maritime boundaries have eventuated. Where the maritime claims of neighboring States overlap, a potential maritime boundary situation exists. Thus, if there is less than 24 M of opposing coastlines a potential territorial sea boundary will exist, while if coastal States coastlines are within 400 M of one another a potential EEZ boundary will arise (see Figure 7).

Fig. 7 Schematic illustrating the key elements in the construction of a representative bilateral maritime boundary between coastal States with coastlines opposite to one another.Clive Schofield and I Made Andi Arsana (IHO [International Hydrographic Organization] 2014).

In relation to maritime boundary delimitation within the territorial sea, Article 15 of LOSC applies and offers a clear preference for the use of an equidistance or median line. This does not apply, however, if the states concerned agree to the contrary or there exists an “historic title or other special circumstances” in the area to be delimited which justify a departure from the equidistance line.

Concerning the delimitation of continental shelf boundaries, under Article 6 of the 1958 Convention on the Continental Shelf, delimitation was also to be effected by the use of median lines unless, similarly, an agreement to the contrary or “special circumstances” existed that justified an alternative approach (Convention on the Continental Shelf 1958). However, the relevant provisions of LOSC, Articles 74 and 83 dealing with delimitation of the continental shelf and EEZ respectively, merely provide, in identical general terms, that agreements should be reached on the basis of international law in order to achieve “an equitable solution” with no preferred method of delimitation indicated.

Despite this lack of clear guidance for the delimitation of, particularly, continental shelf and EEZ boundaries under LOSC, as Professor Jonathan Charney observed, “[i]n virtually all situations coastal geography is primary” (Charney 1993, xxxvii). This is because of the enduring popularity of equidistance as a method of delimitation in State practice and in order to construct a geodetically robust equidistance or median line coastal geography is fundamental (Prescott and Schofield 2005, 238–239; Legault and Hankey 1993, 214).

This preference for equidistance, at least in the first instance has been reinforced by a distinct shift in recent international judicial decisions toward the application of a three-stage approach. This was arguably most clearly articulated in the 2009 Judgment in the Black Sea Case between Romania and Ukraine as being, at the first stage, that a provisional delimitation line should be established using geometrically objective methods “unless there are compelling reasons that make this unfeasible in the particular case” [emphasis added], at the second stage assessment is to be made as to “whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result”, and at the third stage verification of the resulting potential delimitation line is undertaken through what the Court termed a “disproportionality test” (ICJ 2009, paras 116–122). Subsequent international cases involving maritime boundary delimitation have similarly applied this three-stage approach to maritime delimitation.

Consequently, the delimitation of maritime boundaries is fundamentally linked to geographical considerations and concepts requiring geographical and technical input into framing of the relevant area for delimitation, the calculation of geodetically robust equidistance lines from baselines and potentially weighted or partial effect lines in order to deal with distorting features such as islands, the measurement of relevant coastal lengths and the projection of coastal fronts as well as disproportionality calculations (consisting of a comparison of the ratio of relevant coastal lengths and maritime spaces accorded to each State within the relevant area for maritime delimitation).

Overlapping Claims Areas and Maritime Joint Development Zones

While substantial progress has been achieved in the definition of baselines, delineation of maritime limits and delimitation of maritime boundaries, there is still a long way to go. Indeed, only around half of the potential maritime boundaries in the global ocean have been delimited, leaving the maritime political map of the ocean substantially incomplete. Further, many of these existing delimitation lines are partial in that they either pre-date the introduction of the EEZ and therefore relate exclusively to the seabed and subsoil of the continental shelf rather than the superjacent water also or because agreement could be reached on definition of only part of the potential full extent of the boundary line.

The practical consequence of the incomplete network of maritime boundaries is broad areas of the ocean being subject to overlapping maritime claims. This lack of maritime jurisdictional clarity is anathema to the proper development and management of both living and non-living marine resources. Uncertainty over maritime limits and the scope of overlapping maritime claims tends to lead to uncoordinated policies which, in turn, can result in destructive competition for vulnerable fisheries resources concerned, serious degradation of the marine environment and attendant threats to marine biodiversity.

The existence of areas of overlapping maritime claims and the maritime disputes often associated with them therefore serve to undermine good oceans governance and compromise maritime security as the existence of disputed waters can lead to effectively unpoliced zones of overlapping claims allowing illegal activities at sea to flourish. More alarmingly, maritime disputes can serve as a point of friction and tension between States with the potential for incidents and confrontation on the water, resulting in serious geopolitical tensions and even conflict between neighboring coastal States.

Where the maritime claims of coastal States overlap the LOSC does provide that pending agreement on delimitation of the EEZ or continental shelf,

the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.

In keeping with this provision of the Convention there are 22 examples of such provisional arrangements of a practical nature, which are often termed joint development zones or areas (JDZs or JDAs) (Schofield 2009 and 2012). While many joint zones are oriented toward marine resource exploitation, especially of seabed oil and gas deposits, they can be designated for other purposes, including maritime security and protection of the marine environment.

Geospatial Aspects of Ocean Management and Conservation

Geography is also crucial to ocean management and marine conservation in particular. This is because ocean spaces are generally managed through the designation of areas and zones and increasingly through broad multifunctional marine spatial planning (MSP) initiatives. Further area-based marine management mechanisms are a key tool for marine conservation and management. Such mechanisms can cover a broad spectrum from sector-specific and temporally limited area-based restrictions to long-term and more comprehensive marine protection measures, traditionally captured by the term marine protected areas (MPAs).

Marine Spatial Planning

The objective of MSP is not necessarily to replace well established sector-oriented management approaches but rather to offer strategic planning with a view to improving decision-making, thereby delivering more rational and harmonized uses of marine space, ideally eliminating overlaps, clashes and conflicts and identifying co-development opportunities. The substantial and growing literature on MSP tends to emphasize the ecological principles or concepts that underpin the concept, seeing MSP as “a framework for implementing an ecosystem-based coordinated governance structure in the world oceans” (Foley et al. 2010, 963). It has been argued that MSP is especially well attuned ecosystem based management approaches as “ecosystems are places” such that “ecosystem-based management is … inherently place-based” and that “management always occurs in a delimited space” (Crowder and Norse 2008, 772). Area or place-based governance is therefore inherently bounded and spatial management can be oriented toward a particular ecosystem, emphasizing the importance of defining lines in the sea informed by ecosystem rather than arbitrary political limits and boundaries.

While MSP has been characterized as “an idea whose time has come” (Gilliland and Laffoley 2008, 787), substantial challenges exist to its successful implementation. This is especially the case when existing resource uses or socio-economic, cultural and political priorities or objectives conflict with new uses or environmental concerns. Consequently, it is generally well acknowledged that stakeholder engagement is a crucial ingredient to the success of MSP (Foley et al. 2010, 963; Gilliland and Laffoley 2008, 795). There are, however, limitations to how far MSP can reconcile competing and conflicting interests and activities and trade-offs are therefore inevitable. Nonetheless, the advent and development of MSP can be viewed as a significant positive step toward more integrated and essentially spatial oceans governance.

Area Based Management Tools and Marine Protected Areas

Internationally there has been a notable increase in efforts to conserve and protect marine spaces, environments and biodiversity. Growing realization that the oceans were, and indeed remain, under-protected and increasingly under threat has led to the setting of a succession of international spatial targets for marine conservation on a global scale. For example, in 2004, the parties to the Convention on Biological Diversity (CBD [Convention on Biological Diversity] 1992), including a target of “at least 10% of the world’s ecological regions be effectively conserved” by 2012 (CBD 2004, 9). This call echoed in Target 11 of the Aichi Biodiversity Targets, albeit with a target date of 2020 (CBD 2010).

Moreover, under the United Nations 2030 Agenda for Sustainable Development, adopted in 2015, Target 14.5 of United Nations Sustainable Development Goal 14 (SDG 14: Life Below Water), calls for States to “conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information” by 2020 (UN SDG [Sustainable Development Goals] 2015).

Here it can also be observed that there is increasing evidence that the aforementioned 10 percent target for marine conservation coverage is considered to be insufficient to adequately protect biodiversity, preserve ecosystem services and deliver desired socio-economic outcomes (O’Leary et al. 2016). For example, an assessment published in early 2020 suggested that between 26 and 41 percent needs effective conservation to preserve marine biodiversity (Jones et al. 2020).

These marine conservation targets have yielded a dramatic increase in areas of the ocean subject to some form of area-based protection. From approximately 2 million km² coverage in 2000, almost 27 million km² of the global ocean was subject to marine protection by 2020 (Protected Planet 2020). This amounts to 7.44 percent of the global ocean, comprising 17.23 percent of marine spaces within national jurisdiction but only 1.18 percent beyond national jurisdiction (Protected Planet 2020).

This strongly suggests that there is a long way to go in terms of the establishment of a network of MPAs and other area-based management tools to adequately address ocean conservation needs. Much of the expansion in geographic coverage in marine conservation measures has resulted from the establishment of large-scale MPAs. Of the 20 largest MPAs amount to over 60 percent of global MPA coverage (Protected Planet 2020). While such large-scale MPAs clearly help States to meet their commitments to global marine conservation targets, questions have arisen over their relative merits (Hanich et al. 2020).

Geospatial Ocean Frontiers

The United Nations First World Ocean Assessment identified key knowledge gaps concerning information needed to understand and therefore better manage the global ocean. The first of these knowledge gaps relates to the physical structure of the ocean (United Nations 2016). However, as the Assessment acknowledges, “it is only in the past 120 years or so that serious exploration of the seven tenths of the planet covered by the sea (other than charting coasts) has been in progress” meaning that it was “not surprising that our knowledge of the ocean is much more limited than our knowledge of the land” (United Nations 2016, 42). Enhanced geospatial knowledge of the global ocean can be regarded as an essential an essential enabler for good ocean governance, helping to realize blue economy developments for instance related to mineral extraction, fisheries and offshore infrastructure construction including pipelines and cables as well as being vital to understanding ocean circulation and sediment transport, marine geohazards and tsunami threats and understanding the impacts of climate change on the ocean.

In order to address this major knowledge gap the Nippon Foundation-GEBCO Seabed 2030 Project—a collaborative endeavor between the Nippon Foundation of Japan and the General Bathymetric Chart of the Oceans (GEBCO), with the daunting objective of bringing together all available bathymetric data in order to produce “the complete mapping of the world ocean by 2030” and, critically, to make it available to all (Mayer et al. 2018, 16). Underscoring the enormity of this task, when the project was launched at the UN Oceans Conference in June 2017 only six percent of the oceans being mapped to modern standards. However, promisingly by mid-2020 that figure has advanced to 19 percent (Seabed 2030Project 2020).

This activity is consistent with Target 14A of SDG14 with the aim of “increasing scientific knowledge, to develop research capacity and transfer marine technology” with a view to improving ocean health and enhancing the contribution of marine biodiversity for developing and least developed countries with particular reference to small island developing States and least developed countries (UN SDG [Sustainable Development Goal] 2019). Further progress in exploring geospatial ocean frontiers can also be anticipated through the coming United Nations Decade of Ocean Science for Sustainable Development, 2021–2030 (‘the Decade’), which has the overarching aim of delivering “the science we need for the ocean we want”, and which at the time of writing was well into its preparatory phase (UN Decade of Ocean Science 2020).

It is notable that initial research and technological development Priority Area 1 for the Decade relates to the delivery of a “Comprehensive Map (Georeferenced Digital Atlas of the Ocean” including the above-mentioned Seabed 2030 project. It is, however, noted that a comprehensive map of the ocean “should include much more information than just ocean depth” including physical, geological, biological, chemical, environmental and ecosystem information, cultural objects and maritime boundaries to note a few (Ryabinin et al. 2019, 5). The Decade’s other research and development areas relating to aspects including ocean observation, understanding of ocean ecosystems, data and information systems, ocean and integrated multi-hazard warning systems, the ocean in Earth system observation, research and prediction and in relation to capacity-building and technology transfer and ocean literacy also clearly have geographical dimensions.

Voyaging Toward an Ever More Spatial Future Ocean

The global ocean dominates the planet spatially and is essential to life on Earth. The governance of these vast marine spaces is inherently geographical as it is dependent on the definition of limits, lines and zones. Moreover, there is every indication that global ocean governance will become ever more spatial in character in the future.

That said, as threats to the ocean and its biodiversity multiply, the delicate balance of rights and obligation within each maritime zone codified in the LOSC is under pressure. While the breadth of coastal State claims has largely been constrained by the framework established under the LOSC, States have tended to seek additional rights within their national zones and, increasingly, in areas beyond national jurisdiction. This phenomenon is what Oxman terms “the territorial temptation”, where further rights are claimed to the 200 M limit on environmental or security grounds leading to “further territorialization of the EEZ” (Oxman 2006, 830 and 842). This represents a significant challenge to the stability of the oceans governance regime provided by the LOSC.

It is also evident as climate change has deepened into a climate crisis that ocean governance and the law of the sea will increasingly need to evolve and adapt to take into consideration phenomena such as sea level rise and the increased incidence and intensity of extreme weather events. These developments will increasingly result in geographical changes, including to the location of the coast and thus the baselines along it. This, in turn, has potentially major implications for traditional understandings of the stability of maritime baselines, limits and boundaries.

It can also be noted that defining baselines, delineating maritime limits and delimiting maritime boundaries and other spatial ocean governance measures on their own are not enough. The implementation of ocean governance measures within and across these lines and zones in order to ensure ocean sustainability is just as important. In this context knowledge and data concerning the global ocean as well as maritime surveillance, monitoring and enforcement capacity are crucial, but frequently lacking or unevenly distributed.

Further, a common refrain from commentators on ocean governance tends to be that the existing system is fragmented, incomplete and that integrated ocean governance is sorely lacking. Clearly major gaps in our spatial system of ocean governance remain, as exemplified by the paucity of area-based conservation measures in the high seas. Moreover, while there has been significant progress in our profoundly geographical system of ocean governance including in the delineation of, for example, the outer limits of the continental shelf and in the delimitation of maritime boundaries between coastal States, at the present rate of progress it will be several decades before the political map of the ocean is clarified.

Nonetheless, there are grounds for justifiable optimism regarding global ocean governance. Ocean issues are prominent internationally as never before, arguably countering traditional ‘sea blindness’. Progress is also evident with respect to areas of the ocean subject to some form of protection and hopefully these marine protected areas will become ever more representative, better managed and include areas of the high sea, for instance through the BBNJ negotiations. Similarly, our geospatial knowledge of the global ocean is improving substantially through initiatives such as the Seabed 2030 project while the UN Decade of Ocean Science for Sustainable Development promises much in terms of advances in marine scientific understanding which enhances the potential for the science-informed policy responses that the ocean urgently needs. Finally, it is also abundantly clear that if the global ocean governance we need is to be achieved to deliver the ocean we want, geography and geographers have major roles to play.

Acknowledgments

The author is indebted to Dr. I Made Andi Arsana of the Department of Geodetic and Geomatic Engineering at Universitas Gadjah Mada, Indonesia for his kind assistance in preparing the figures included in this study.

These Figures were produced by Dr. Arsana and the present author for inclusion in the International Hydrographic Organization (IHO) and International Association of Geodesy (IAG) Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (TALOS Manual). These figures are reproduced with permission of the IHO and IAG subject to the following notice: Material from IHO-IAG publication C-51, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea – 1982 (TALOS), Edition 5.0.0 dated June 2014 is reproduced with the permission of Professor Clive Schofield and Dr I Made Andi Arsana, authors of the animated graphics, and of the Secretariat of the International Hydrographic Organization (IHO) and the Executive Council of the International Association of Geodesy (IAG) (Permission N° 8/2020) acting for the International Hydrographic Organization (IHO) and the International Association of Geodesy (IAG), which do not accept responsibility for the correctness of the material as reproduced: in case of doubt, the IHO-IAG’s authentic text shall prevail. The incorporation of material sourced from IHO-IAG shall not be construed as constituting an endorsement by IHO or IAG of this product.

Additional information

Funding

The author wishes to acknowledge the generous financial support provided by The Nippon Foundation of Japan. This work was also supported through the Australian Research Council Discovery Grant DP180101996, held jointly withcolleagues Professor Stuart Kaye of the Australian National Centre for Ocean Resources and Security (ANCORS) and Professor Michael Petterson, Auckland University of Technology.