Implementing a new regime of stable maritime zones to ensure the (economic) survival of small Island states threatened by sea-level rise

International Journal of Marine and Coastal Law

Volumn 26, Issue 2, 2011, Pages 263-311

  Stoutenburg, Jenny Grote ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

Article 76(9) LOSC; baselines and maritime limits; dispute settlement; Implementation Agreement on Sea Level Rise; sea level rise; small island states; stable maritime zones; UN General Assembly resolution on stable maritime zones

Indexed keywords

BASELINE CONDITIONS; CLIMATE CHANGE; IMPLEMENTATION PROCESS; LAW OF THE SEA; MARITIME BOUNDARY; SEA LEVEL CHANGE; SOCIOECONOMIC SURVEY; SURVIVAL;

EID: 79953170538     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180811X560511     Document Type: Article

References (285)

1. Malé Declaration on Global Warming and Sea Level Rise, adopted by the Small States Conference on Sea Level Rise, held in Malé, Maldives, 14-18 November 1989, UN Doc. A/C.2/44/7, 22 November 1989, Annex, at 2 et seq.
2. See J. Grote, 'The Changing Tides of Small Island States Discourse-A Historical Overview of the Appearance of Small Island States in the International Arena' (2010) 43 (2) Verfassung und Recht in Übersee (Law and Politics in Africa, Asia and Latin America) 164-191, available at: .
3. Alliance of Small Island States (AOSIS), Declaration on Climate Change of 21 September 2009, available at: (last visited: 6 December 2010) at para. 6.
4. Kyoto Protocol to the United Nations Framework Convention on Climate Change of 10 December 1997, entered into force 16 February 2005, (1998) 37 ILM 32.
5. United Nations Framework Convention on Climate Change of 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107.
6. Copenhagen Accord, Decision 2/CP.15, in: Report of the Conference of the Parties on its fifteenth session, held in Copenhagen from 7 to 19 December 2009. Addendum. Part Two: Action taken by the Conference of the Parties at its fifteenth session, FCCC/CP/2009/11/Add.1, 30 March 2010, at 4.
7. See M. G. J. den Elzen et al., Evaluation of the Copenhagen Accord: Chances and Risks for the 2°C Climate Goal, Netherlands Environmental Assessment Agency, 2010, available at: (last visited: 6 December 2010) at 5.
8. See N Mimura et al., 'Small Islands', in: Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (Cambridge University Press, Cambridge, 2007) 687 at 689 et seq.
9. See N Mimura et al., 'Small Islands', in: Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC) (Cambridge University Press, Cambridge, 2007) 687 at 689 et seq.
10. Sea-level rise is already taking place. Observed global sea-level rise averaged 1.8 mm per year since 1961 and 3.1 mm per year since 1993, with contributions from thermal expansion, melting glaciers and ice caps, and the polar ice sheets. The IPCC assesses the likelihood that human influences have contributed to sea-level rise during the latter half of the 20th century at over 90 percent. However, finding that understanding of some important effects driving sea-level rise is too limited, the IPCC refrains from giving a best estimate of future sea-level rise in the fourth Assessment Report. The models reproduced in the report predict a global average sea-level rise of between 18 and 59 cm by the end of the 21st century. These predictions are very conservative and cannot be seen as determining the upper bounds for sealevel rise during this period, as they do not include uncertainties in climate-carbon cycle feedbacks or the full effects of changes in ice sheet flow.
11. See IPCC, 'Summary for Policymakers', in: Climate Change 2007-Synthesis Report (IPCC, Geneva, 2008) at 7 et seq.
12. D. D. Caron, 'When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level' (1990) 17 Ecology Law Quarterly 621 at 623.
13. The present article only deals with the "economic survival" of small island states, because even if a regime of stable maritime zones as proposed here were adopted, this could not prevent the physical destruction of small island states due to sea-level rise. If an island state became uninhabitable or completely submerged, it would no longer qualify as a state under the traditional criteria of statehood. However, only states can claim maritime zones. Therefore, unless a small island state acquired territory from another state or entered into a merger or federation with it (in which case it would cease to exist in its previous form), a new rule of international law would need to be developed allowing "deterritorialized" island states to maintain their international legal personality. This issue has been explored by R. Rayfuse, 'W (h) ither Tuvalu? International Law and Disappearing States', University of New South Wales Faculty of Law Research Series No. 9 (The Berkeley Electronic Press, Berkeley, 2009).
14. See .
15. See Grote, op. cit., supra note 2 at 165 et seq.
16. United Nations Convention on the Law of the Sea of 10 December 1982, entered into force on 16 November 1994, 1833 UNTS 3.
17. LOSC Arts. 56 (1) (a) and 57.
18. Forum Communiqué, Fortieth Pacific Islands Forum, Cairns, Australia, 5-6 August 2009, available at: (last visited: 6 December 2010) at para. 15.
19. Caron, op. cit., supra note 10 at 635.
20. See also M. Reed, Shore and Sea Boundaries, Vol. III (U. S. Government Printing Office, Washington D. C., 2000) at 185.
21. See LOSC Arts. 5, 33 (2), 48, 57, and 76 (1). The broad continental shelf is not directly measured from the baseline, but the baseline can still play an important role in its delimitation, see LOSC Art. 76 (5) and (6). Moreover, the baseline constitutes the seaward limit for internal and archipelagic waters.
22. LOSC Art. 5.
23. LOSC Art. 7 (1) and (3) - (6). Straight baselines must not depart to any appreciable extent from the general direction of the coast and the sea areas lying between them must be sufficiently closely linked to the land domain to be subject to the regime of internal waters; they shall not be drawn to or from low-tide elevations, unless a lighthouse or similar installation which remains permanently above sea level has been built on the low-tide elevation or the drawing of straight baselines to or from the low-tide elevation has received general international recognition; furthermore, straight baselines cannot be drawn so as to cut off the territorial sea of another state from the high seas or an exclusive economic zone. In determining particular straight baselines, the coastal state may take account of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.
24. LOSC Art. 47 (1) - (5). The straight archipelagic baselines must include the main islands and an area with a water to land ratio of between 1:1 and 9:1;
25. the baselines cannot exceed 100 nautical miles in length, except that three percent of the baselines may be up to 125 nautical miles long; the baselines shall not depart to any appreciable extent from the general configuration of the archipelago;
26. they shall not be drawn to or from low-tide elevations, unless a lighthouse or similar installation which remains permanently above sea level has been built on the low-tide elevation or it lies at least partly within the territorial sea of the nearest island;
27. moreover, archipelagic baselines shall not be drawn in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another state.
28. See LOSC Art. 4 for the territorial sea.
29. See J. L. Jesus, 'Rocks, New-born Islands, Sea Level Rise and Maritime Space', in: J. A. Frowein et al. (eds.), Verhandeln für den Frieden: Negotiating for Peace-Liber Amicorum Tono Eitel (Springer, Berlin/Heidelberg/New York, 2003) 579 at 601.
30. The extent of the maritime zones that would be lost depends on such factors as the distance of the disappeared island from the nearest remaining baseline, the size of the island, and the proximity of neighboring states with competing maritime zones.
31. LOSC Art. 121 (3) provides that "[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."
32. On the possibility of permanently fixing the outer limits of continental shelves see infra. The permanency of the outer continental shelf limits thus fixed would arguably be impervious to any change in the legal status of the island and might even continue to apply if the island became completely submerged.
33. See AHA Soons, 'The Effects of a Rising Sea Level on Maritime Limits and Boundaries' (1990) 37 Netherlands International Law Review 207 at 218 et seq.
34. This would be the case if the island which has turned into a low-tide elevation was located farther than 12 nm from a remaining island or the mainland.
35. See E. Bird and V. Prescott, 'Rising Global Sea Levels and National Maritime Claims' (1989) 1 Marine Policy Reports 177 at 190 and 193.
36. It seems possible that coral reefs and islands might not be adversely affected by sea-level rise as coral growth and sediment redistribution would help adapt to the changing sea level.
37. See Bird and Prescott, op. cit., supra note 28, at 187. However, the widespread damage already sustained today by most coral reefs, which will be exacerbated as the impacts of climate change become more pronounced, renders this possibility increasingly unlikely.
38. See M. Mulhall, 'Saving the Rainforests of the Sea: An Analysis of International Efforts to Conserve Coral Reefs' (2009) 19 Duke Environmental Law and Policy Forum 321 at 325 et seq., esp. at 330 et seq.
39. The other salient provision is LOSC Art. 7 (2) providing for a temporary legal stability of straight baselines around unstable deltas. It can be concluded a contrario that in situations not falling under this provision, coastal states are obliged to redraft their baselines and update their charts whenever a physical change of the actual baseline occurs.
40. According to LOSC Art. 76 (1), "[t]he continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongations of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance" (emphasis added). The first alternative will be referred to as the "broad" continental shelf, whereas the second alternative will be called the "distance-based" continental shelf. Proponents of the view that LOSC Art. 76 (9) fixes both types of continental shelves include Soons, op. cit., supra note 26, at 217
41. and R Lagoni and A Proelß, 'Festlandsockel und ausschließ liche Wirtschaftszone', in: W Graf Vitzthum (ed.), Handbuch des Seerechts (Verlag C. H. Beck, Munich, 2006) 161 at 195.
42. The Committee on Legal Issues of the Outer Continental Shelf of the International Law Association, on the other hand, arrived at the conclusion that LOSC Art. 76 (9) only refers to the outer limits of the broad continental shelf, indicating, however, that several of its members advanced the view that the provision also applies to the distance-based 200-nm continental shelf.
43. See Report of the Committee on Legal Issues of the Continental Shelf, in: International Law Association (ILA), Report of the Seventy-Second Conference, held in Toronto, 4-8 June 2006 (ILA, London, 2006) 215 at 234 et seq.
44. Lagoni and Proelß, op. cit., supra note 31 at 194.
45. See Soons, op. cit., supra note 26 at 216 et seq.
46. A. G. Oude Elferink, 'Article 76 of the LOSC on the Definition of the Continental Shelf: Questions concerning its Interpretation from a Legal Perspective' (2006) 21 (3) The International Journal of Marine and Coastal Law 269 at 282.
47. LOSC Art. 1 (1) defines the "Area" as "the seabed of the ocean floor and subsoil thereof, beyond the limits of national jurisdiction".
48. Soons, op. cit., supra note 26 at 216 et seq.
49. See also Caron, op. cit., supra note 10 at 643 et seq.
50. See also S. V. Suarez, The Outer Limits of the Continental Shelf-Legal Aspects of their Establishment, (Springer, Berlin/Heidelberg/New York, 2008) at 217.
51. On the risk of interstate conflict due to sea level rise see Caron, op. cit., supra note 10 at 640 et seq.;
52. J. Lusthaus, 'Shifting Sands: Sea Level Rise, Maritime Boundaries and Inter-state Conflict' (2010) 30 (2) Politics 113; Rayfuse, op. cit., supra note 11 at 4.
53. Jesus, op. cit., supra note 23 at 593 et seq.
54. Jesus, op. cit., supra note 23 at 602 et seq.
55. Caron, op. cit., supra note 10 at 641 et seq.;
56. Soons, op. cit., supra note 26 at 225;
57. Rayfuse, op. cit., supra note 11 at 5 et seq.;
58. D. Freestone and J. Pethick, 'Sea Level Rise and Maritime Boundaries-International Implications of Impacts and Responses', in: G. Blake (ed.), Maritime Boundaries (Routledge, London, 1994) 73 at 76 et seq.;
59. Lusthaus, op. cit., supra note 38 at 117.
60. The arguments discussed here were raised by Professor Jon Van Dyke during a conversation with the author at the Fifth Global Conference on Oceans, Coasts, and Islands, hosted by UNESCO and the government of France in Paris, France, 3-7 May 2010.
61. See Caron, op. cit., supra note 10 at 651 et seq.
62. The ' Volga' Case (Russian Federation v. Australia) (Prompt Release), ITLOS Case No. 11, Judgment of 23 December 2002, Declaration by Vice-President Vukas, available at: , at paras. 3-5.
63. See also J. M. Van Dyke and R. A. Brooks, 'Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources' (1983) 12 Ocean Development and International Law Journal 265 at 266;
64. and J. M. Van Dyke, J. R. Morgan, and J. Gurish, 'The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?' (1988) 25 San Diego Law Review 425.
65. At the 17th Meeting of the ASEAN Regional Forum in Hanoi, 23 July 2010, Secretary of State Hillary Rodham Clinton stated that "[w]hile the United States does not take sides on the competing territorial disputes over land features in the South China Sea, we believe claimants should pursue their territorial claims and accompanying rights to maritime space in accordance with the UN convention on the law of the sea. Consistent with customary international law, legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features." See (last visited: 6 December 2010). However, the US' rejection of illegitimate claims to maritime space based on disputed islands and unqualified maritime features does not necessarily indicate that the US would also be opposed to a fixing of baselines legitimately derived from existing land features in accordance with the law of the sea.
66. This proposal has been made by Rayfuse, op. cit., supra note 11 at 11.
67. Rayfuse also points out that the administration of their distant EEZs by displaced populations need not necessarily be more difficult than for existing states in possession of distant islands.
68. Rayfuse also points out that the administration of their distant EEZs by displaced populations need not necessarily be more difficult than for existing states in possession of distant islands. See at 12 et seq.
69. Rayfuse also points out that the administration of their distant EEZs by displaced populations need not necessarily be more difficult than for existing states in possession of distant islands. See at 8 et seq.
70. Caron, op. cit., supra note 10 at 648 et seq.;
71. DD Caron, 'Climate Change, Sea Level Rise and the Coming Uncertainty in Ocean Boundaries: A Proposal to Avoid Conflict', in: S. Y. Hong and J. M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Martinus Nijhoff Publishers, Leiden/Boston, 2009) 1 at 16;
72. Rayfuse, op. cit., supra note 11 at 9.
73. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, at para. 96.
74. See, e.g., Fisheries Case (United Kingdom v. Norway), Judgment of 18 December 1951, at p. 133;
75. Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, at para. 77. All cases available at: .
76. Caron, Proposal, op. cit., supra note 47 at 17.
77. ICJ, North Sea Continental Shelf Cases, op. cit., supra note 48 at para. 40;
78. see also para. 43.
79. ICJ, Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, available at: , at para. 34;
80. see also para. 30.
81. See also J. I. Charney, 'International Maritime Boundaries for the Continental Shelf: The Relevance of Natural Prolongation', in: N. Ando, E. McWhinney and R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, Vol. II (Kluwer Law International, The Hague/London/New York, 2002) 1011 at 1025 et seq., who states that the reference to natural prolongation in LOSC Art. 76 (1) is "an historic retention of the idea of the continental shelf as it existed up to contemporary developments, brought about by the 1982 los Convention negotiations."
82. See Soons, op. cit., supra note 26 at 219.
83. Caron, Proposal, op. cit., supra note 47 at 17.
84. See Caron, op. cit., supra note 10 at 648
85. and fn. 126 with accompanying text;
86. Soons, op. cit., supra note 26 at 225;
87. but see Jesus, op. cit., supra note 23 at 602.
88. Archipelagic waters in contrast would remain constant in this scenario. This is because in addition to archipelagic baselines which encircle the archipelago as a whole, baselines can also be drawn around each individual archipelagic island to delimit its internal waters
89. (see R. R. Churchill and A. V. Lowe, The Law of the Sea (Manchester University Press, Manchester, 1999) at 60, and LOSC Art. 50). Both types of baselines would become fixed, resulting in an enlargement of the internal waters of each individual island and in the stability of the archipelagic waters.
90. With the exception of the situation dealt with in LOSC Art. 8 (2), no right of innocent passage exists in internal waters.
91. See LOSC Arts. 47 (1) and (2) and supra note 21;
92. see also Bird and Prescott, op. cit., supra note 28 at 192.
93. See, e.g., the currently unresolved problem of marine genetic resource exploitation in the high seas.
94. Bird and Prescott, op. cit., supra note 28 at 193. A report by the IPCC's Coastal Zone Management Subgroup of 1990 gave a worldwide cost estimate of basic coastal protection measures against a sea level rise of one meter, highlighting that the cost of these measures would prove to be prohibitive for small island states.
95. See Report of the Coastal Management Subgroup, Strategies for Adaptation to Sea Level Rise, Intergovernmental Panel on Climate Change Response Strategies Working Group, November 1990, available at: (last visited: 6 December 2010) at 67 et seq.
96. Caron, op. cit., supra note 10 at 639.
97. Bird and Prescott, op. cit., supra note 28 at 193.
98. See L. Yamamoto and M. Esteban, 'Vanishing Island States and Sovereignty' (2010) 53 Ocean and Coastal Management 1 at 7. It is estimated that 70 percent of all tourists visit the Maldives for its white sandy beaches. These beaches could be lost if the archipelagic state built seawalls around its island like it did with its capital Malé. Moreover, while the Maldives were able, with financial support from Japan, to build a seawall around their capital Malé, this would be impossible to do around all of their-mostly uninhabited-1200 islands which generate maritime zones for the country.
99. The IPCC's Coastal Zone Management Subgroup, op. cit., supra note 59 at 84 and 94 et seq., suggested that islands whose general elevation is below six to eight meters above mean sea level, i.e., atolls or similar formations, might have to be elevated as a whole or in part by raising them with material procured from other (abandoned) islands.
100. See A. G. Oude Elferink, 'Artificial Islands, Installations and Structures', in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford 2007, online edition, available at: at para. 4;
101. See H. Dipla, 'Islands', 'Artificial Islands, Installations and Structures', in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford 2007, online edition, available at: at para. 4;
102. Soons, op. cit., supra note 26 at 222 et seq.;
103. C. R. Symmons, Some Problems Relating to the Definition of "Insular Formations" in International Law: Islands and Low-Tide Elevations, IBRU Maritime Briefing Vol. 1 No. 5 (University of Durham, Durham 1995) at 3;
104. D. Freestone, 'International Law and Sea Level Rise', in: R. Churchill and D. Freestone (eds.), International Law and Global Climate Change (Graham & Trotman/Martinus Nijhoff Publishers, London/Dordrecht, 1991) 109 at 113.
105. This seems to be the position of Jon Van Dyke, who argues that Okinotorishima, a tiny Japanese maritime feature which has been prevented, at great cost, from disappearing beneath the waves by having been surrounded with wave-absorbing steel blocks and concrete rising higher than the maritime feature itself, should qualify as an artificial island. See J. M. Van Dyke, 'Legal Status of Islands-With Reference to Article 121 (3) of the UN Convention on the Law of the Sea', paper presented in Seoul, Korea, 9 December 1999, available at: < http://seasteading.org/seastead.org/localres/misc-articles/ DykeLegalStatusOfIslands.html> (last visited: 6 December 2010).
106. LOSC Art. 60 (4) and (5).
107. Bird and Prescott, op. cit., supra note 28 at 194.
108. See also S. P. Menefee, '"Half Seas Over": The Impact of Sea Level Rise on International Law and Policy' (1991) 9 Journal of Environmental Law 175 at 199 et seq.
109. See LOSC Arts. 5, 16, and 47 (8).
110. Caron, op. cit., supra note 10 at fn. 76 and accompanying text; Rayfuse, op. cit., supra note 11 at 5.
111. Bird and Prescott, supra note 28 at 194.
112. See also the detailed discussion by Reed, op. cit., supra note 17 at 179 et seq., who notes that "a charted line that departs appreciably from the actual low-water line could be challenged in any legal tribunal."
113. David Freestone points out that "charts left unchanged for political reasons at a time when important coastal geomorphological changes are underway could be extremely hazardous" for navigation.
114. See Freestone, op. cit., supra note 64 at 115.
115. This strategy, although involving several states, is described as "unilateral" because it does not represent a collective response to sea level rise.
116. Vienna Convention on the Law of Treaties of 23 May 1969, entered into force on 27 January 1980, 1155 UNTS 331.
117. S. Karagiannis, 'Les Rochers Qui Ne Se Prêtent Pas À L'Habitation Humaine ou À une vie Économique Propre et le Droit de la Mer' (1996) XXIX Revue Belge de Droit International 559 at fn. 92 and accompanying text (p. 578).
118. ICJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment of 19 December 1978, available at: at para. 85.
119. See also Soons, op. cit., supra note 26 at 228.
120. Soons, Soons, op. cit., supra note 26, at 226 et seq. This seems to have been overlooked by Caron, op. cit., supra note 10 at 641, who argues that "[e]ven though states generally have a great interest in upholding the sanctity of such [delimitation] agreements, it is entirely plausible that a state might argue that circumstances had changed in that the parties had not foreseen such a rise in sea level."
121. On this see W. Graf Vitzthum, 'Maritimes Aquitorium und Anschlusszone', in: W. Graf Vitzthum (ed.), op. cit., supra note 31, 63 at 74.
122. W. Graf Vitzthum, 'Begriff, Geschichte und Rechtsquellen des Seerechts', in: W. Graf Vitzthum (ed.), op. cit., supra note 31, 1 at 49 et seq.;
123. M. Mendelson, 'On the Quasi-Normative Effect of Maritime Boundary Agreements', in: N. Ando, E. McWhinney and R. Wolfrum (eds.) Liber Amicorum Judge Shigeru Oda, Vol. II (Kluwer Law International, The Hague/London/New York, 2002) 1069 at 1070 et seq.
124. Soons, op. cit., supra note 26 at 229. Judicial dispute settlement is characterized as "contractual" because it always implies agreement between the states concerned to submit their maritime boundary dispute to an international court or tribunal.
125. Maritime boundary delimitation needs to be distinguished from the establishment of maritime limits. While maritime limits refer to the entitlement of states to establish maritime zones to their full extent in accordance with the law of the sea, maritime boundaries demarcate the maritime zones of states with opposite or adjacent coasts.
126. Although this method is non-contractual, it is not non-consensual, as its effects remain contingent upon the acquiescence of other states.
127. It is not surprising that the development of this doctrine coincides with the evolution of the modern law of baselines, as it was intended precisely to constitute an exception to the then emerging standard methodology of determining the landward limits of the territorial sea. See A. Gioia, 'Historic Titles', in: Wolfrum (ed.), op. cit., supra note 64 at para. 1.
128. ICJ, Fisheries Case (United Kingdom v. Norway), op. cit., supra note 48 at p. 130.
129. Gioia, op. cit., supra note 82, at para. 17.
130. See also Churchill and Lowe, op. cit., supra note 55 at 43.
131. The "value" of protest by other states may vary. as Gioia, op. cit., supra note 82, at para. 6, notes, "the protest of a single, less interested State, though certainly sufficient to rebut a presumption of tacit consent, may not in fact prevent the consolidation of an historic title if other, more interested States have recognized or acquiesced in the claim."
132. See C. R. Symmons, Historic Waters in the Law of the Sea-A Modern Re-appraisal (Martinus Nijhoff Publishers, Leiden/Boston, 2008) at 101 et seq. Symmons, at 109, points out the paradoxical consequence that "because of the international requirement of a lengthy time as to an historic title being in existence, when an 'historic' claim in specie is first proclaimed, no valid such 'historic' title may, ex hypothesi, at that stage, exist." (Italics omitted).
133. Soons, op. cit., supra note 26 at 224.
134. See Churchill and Lowe, op. cit., supra note 55 at 44 et seq. The US is particularly adamant in opposing claims to historic titles, taking the position that an actual showing of acquiescence by other states, as opposed to a mere absence of opposition, is required to establish such a claim. It has issued diplomatic protest notes against most claims to historic bays made by other states.
135. See J. A. Roach and R. W. Smith, United States Responses to Excessive Maritime Claims (Martinus Nijhoff Publishers, The Hague/Boston/London, 1996) at 31 et seq.
136. An indication of states' unwillingness to accept the invocation of historic titles after a geographical change of the baseline is given by the position of the US government in a dispute with the state of Alaska. The US argued that the closing line across the Alaskan Kotzebue Sound, a juridical bay, needed to be redrawn further inward of the Sound because erosion of the original base points for the closing line had caused it to exceed the maximum allowable length of 24 nm. Alaska maintained that that part of the Kotzebue Sound which fell outside the new closing line could nevertheless continue to qualify as inland waters based on the historic waters doctrine. The US government opposed this position (presumably because Alaska could not demonstrate possession of these waters as historic waters prior to the shift of the baseline).
137. See J. Briscoe, 'The Effect of President Reagan's 12-Mile Territorial Sea Proclamation on the Boundaries and Extraterritorial Powers of the Coastal States' (1992) 2 Territorial Sea Journal 225 at 247 et seq.
138. A more recent dispute between Alaska and the US government before the US Supreme Court again involved historic waters and geographical change, this time due to glacial melting (see Alaska v. United States, 545 US 75 (2005), Report of the Special Master, at 136 et seq. and 218 et seq.). In the course of the proceedings, the US argued that the northern part of the Alaskan Alexander Archipelago formed neither an historic nor a juridical bay in view of Art. 7 (1) of the 1958 Territorial Sea Convention, because a glacier that delimited the waters of the archipelago had retreated into Canada in 1912 and only advanced back over the border in 1961.
139. See LOSC Art. 56 (1) (b) and (c).
140. Gioia, op. cit., supra note 82 at para. 8, refers to another opinion developed on the basis of Norway's position in the Fisheries Case before the ICJ in 1974, according to which the function of an historic title is not to legalize an otherwise illegal situation, but rather to confirm that a state's claim is in conformity with general international law. However, he points out that this opinion does not represent the majority view.
141. See also D. P. O'Connell, The International Law of the Sea, Vol. I (Oxford University Press, Oxford, 1982) at 420-424.
142. In this sense see also Soons, op. cit., supra note 26 at 225.
143. See, e.g., Caron, op. cit., supra note 10 at 650 et seq.;
144. Soons, e.g., op. cit., supra note 10, at 225 et seq.;
145. Rayfuse, op. cit., supra note 11 at 5 et seq.;
146. Freestone, op. cit., supra note 64 at 113;
147. Jesus, op. cit., supra note 23, at 600.
148. O'Connell, op. cit., supra note 91 at 47. However, O'Connell points out that rules whose stability is a matter of inference can in fact be modified by customary law.
149. Art. 38 (1) (b) ICJ Statute, 145 BSP 832. Several writers have pointed out that this provision should more correctly read "international custom as evidenced by a general practice accepted as law."
150. See, e.g., R. Higgins, Problems and Process. International Law and How We use It (Oxford University Press, Oxford, 1994) at 18;
151. Churchill and Lowe, op. cit., supra note 55 at 7.
152. ICJ, North Sea Continental Shelf Cases, supra note 48 at para. 77.
153. See also the valid criticism by O'Connell, supra note 91 at 33 et seq., that if this requirement were generalized for all instances of customary law "it would not only make change impossible but would also make the initiation of a rule impossible: for, it is manifestly question-begging to say that a customary rule can come into existence only because of an erroneous belief that it exists already."
154. M. Akehurst, A Modern Introduction to International Law (Allen and Unwin, London/Boston, 1987) at 29.
155. North Sea Continental Shelf Cases, op. cit., supra note 48 at para. 74.
156. Even universal rules of customary international law are not opposable to states which persistently object to them. But as Churchill and Lowe, op. cit., supra note 55 at 9, point out:
157. "In practice, it becomes increasingly difficult (and in political and economic terms, increasingly costly) to hold out against a rule that is accepted by the overwhelming majority of states." However, the situation is different where only a few states try to establish a new rule of international custom; here, the political and economic burden is on them.
158. "In practice, it becomes increasingly difficult (and in political and economic terms, increasingly costly) to hold out against a rule that is accepted by the overwhelming majority of states." However, the situation is different where only a few states try to establish a new rule of international custom; here, the political and economic burden is on them.
159. "In practice, it becomes increasingly difficult (and in political and economic terms, increasingly costly) to hold out against a rule that is accepted by the overwhelming majority of states." However, the situation is different where only a few states try to establish a new rule of international custom; here, the political and economic burden is on them, at 9 et seq.
160. Cf. "In practice, it becomes increasingly difficult (and in political and economic terms, increasingly costly) to hold out against a rule that is accepted by the overwhelming majority of states." However, the situation is different where only a few states try to establish a new rule of international custom; here, the political and economic burden is on them, at fn. 12 (p. 11).
161. See Caron, op. cit., supra note 10 at 641;
162. Caron, Proposal, op. cit., supra note 47 at 14.
163. See also M. Hayashi, who explores various procedural options for the establishment of fixed maritime zones in 'Sea Level Rise and the Law of the Sea: Legal and Policy Options', in: Proceedings of the International Symposium on Islands and Oceans, Tokyo, 22-23 January 2009 (Ocean Policy Research Foundation, Tokyo, 2009) 78-90; available at: (last visited: 6 December 2010).
164. UNGA Res. 54/33 of 24 November 1999, para. 2.
165. UNGA Res. 54/33 of 24 November 1999, para. 2.
166. UNGA Res. 54/33 of 24 November 1999, para. 3 (h).
167. UNGA Res. 54/33 of 24 November 1999, at paras. 3 (a) and 5. UNGA Res. 55/7 of 30 October 2000, at para. 45, established a voluntary trust fund designed to assist the representatives of developing states, in particular least developed countries, small island developing states, and landlocked developing states, to attend the UNICPOLOS meetings.
168. See Letter dated 16 March 2010 from the Co-Chairpersons of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc. A/65/68 of 17 March 2010, at paras. 45 and 70 et seq.;
169. L. Ridgeway, 'Marine Genetic Resources: Outcomes of the Informal Consultative Process' (2009) 24 International Journal of Marine and Coastal Law 309 at 321 et seq. and 329;
170. K. E. Zewers, 'Bright Future for Marine Genetic Resources, Bleak Future for Settlement of Ownership Rights: Reflections on the United Nations Law of the Sea Consultative Process on Marine Genetic Resources' (2008) 5 (2) Loyola University Chicago International Law Review 151 at 170 et seq.;
171. and S. Hart, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, 2008).
172. The amendment procedure as laid down in LOSC Art. 312 is protracted and would require the convening of a major diplomatic conference. Although LOSC Art. 313 provides for a simplified written amendment procedure, this can only be successful in the unlikely event that no state party objects to the proposed amendment.
173. Report of the Coastal Management Subgroup, op. cit., supra note 59 at viii.
174. Report of the Coastal Management Subgroup, op. cit., supra note 59 at ix.
175. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted by UNGA Res. 48/263 of 28 July 1994, entered into force on 28 July 1996, (1994) 33 ILM 1309.
176. 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 of 4 August 1995, entered into force on 11 December 2001, (1995) 34 ILM 1542.
177. The regime might need to provide for the possibility for states to subsequently enlarge their maritime zones. Although all coasts will be affected by sea-level rise, some countries, such as Greenland, are expected to actually rise because of post-glacial rebound. In extreme cases, this rise could outpace the loss of territory due to sea level-rise. The Implementation Agreement might therefore need to include a clause allowing states whose territory has in fact expanded to draw new baselines.
178. Jesus, op. cit., supra note 23 at 602.
179. See also Soons, op. cit., supra note 26 at 225, who cites LOSC Art. 76 (9) as a precedent indicating the general acceptability of a progressive development of the law of the sea providing for stable maritime zones.
180. LOSC Arts. 5, 16, 47 (8) and (9), 75, 76 (9) and 84.
181. Itnformation given by the Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs, United Nations, New York, available at: (last visited: 6 December 2010).
182. In its Res. 64/71 of 4 December 2009, at para. 6, the UN General Assembly calls upon states parties to the Law of the Sea Convention that have not yet done so to deposit with the UN Secretary-General charts or lists of geographical coordinates, as provided for in the Convention.
183. UNGA Res. 64/71 of 4 December 2009, at para. 10, encourages intensified efforts to build capacity for developing countries, in particular for the least developed countries and small island developing states, as well as coastal African states, to improve hydrographic services and the production of nautical charts.
184. See also UNGA Res. 57/141 of 12 December 2002, para. 30.
185. See UNGA Res. 57/141 of 12 December 2002, para. 71;
186. UNGA Res. 62/215 of 22 December 2007, para. 15;
187. UNGA Res. 64/71 of 4 December 2009, para. 18.
188. UNGA Res. 55/7 of 30 October 2000, Annex II, Trust fund for the purpose of facilitating the preparation of submissions to the Commission on the Limits of the Continental Shelf for developing States, in particular the least developed countries and small island developing States, and compliance with article 76 of the United Nations Convention on the Law of the Sea. Art 26 (1) of the 1995 Fish Stocks Agreement also calls for the establishment of special funds to assist developing countries in the implementation of the Agreement.
189. See the Report of the Secretary-General, Oceans and the Law of the Sea, UN Doc. A/65/69 of 29 March 2010, at para. 138: "Since 2001, the ocean and islands programme of the Pacific Islands Applied Geoscience Commission, through its Pacific island maritime boundaries project, has led Pacific island countries in the development of technical solutions, baseline surveys, reviews of archipelagic status and baseline development, maritime zone delimitation and shared boundary solutions. So far, the programme has provided some 75 per cent of the necessary data to support these countries, with a view to proclaiming their baselines and the limits of their maritime zones. The programme has also taken the leading regional role in coordinating and assisting Pacific island countries in the establishment of the outer limits of the continental shelf beyond 200 nautical miles."
190. See Caron, Proposal, op. cit., supra note 47 at 15.
191. It would moreover prove difficult to endow such a commission with the necessary institutional resources to process all requests for baseline and maritime limit determinations. The CLCS currently encounters workload and capacity problems due to the large number of submissions by states before the May 2009 deadline.
192. See A. G. Oude Elferink, 'Continental Shelf, Commission on the Limits of the', in: Wolfrum (ed.) op. cit., supra note 64 at para. 15.
193. See T. L. McDorman, 'The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World' (2002) International Journal of Marine and Coastal Law 301 at 307.
194. See T. L. McDorman, 'The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World' (2002) International Journal of Marine and Coastal Law 301 at 319.
195. For instance, no generally accepted vertical tidal datum exists, the choice of which thus remains within the discretion of each coastal state. See Symmons, op. cit., supra note 64 at 12 et seq.;
196. and C. Schofield, 'The Trouble with Islands: The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation', in: Hong and Van Dyke (eds.), op. cit., supra note 47, 19 at 24 et seq.
197. This could be the case with regard to LOSC Art. 76 (6).
198. See Lagoni and Proelß, op. cit., supra note 32 at 197 et seq.
199. McDorman, op. cit., supra note 125 at 309.
200. On the question for whom exactly these limits are "final and binding"
201. see Report of the Committee on Legal Issues of the Continental Shelf, op. cit., supra note 31 at 232 et seq.;
202. Suarez, op. cit., supra note 37 at 216;
203. McDorman, op. cit., supra note 37, at 313 et seq.;
204. L. D. M. Nelson, 'The Settlement of Disputes Arising From Conflicting Outer Continental Shelf Claims' (2009) 24 International Journal of Marine and Coastal Law 409 at 418 et seq.
205. Report of the Committee on Legal Issues of the Continental Shelf, (2009) 24 International Journal of Marine and Coastal Law 409 at 236.
206. See also McDorman, Report of the Committee on Legal Issues of the Continental Shelf, (2009) 24 International Journal of Marine and Coastal Law 409, at 316 et seq.: "[Art 76 (9) UNCLOS] does not require that the submitted material or outer limit location be that on which there is accord signified by the Commission. [...] Legal consequence can be said to attach to the claimed outer limit of the continental margin where, once the limits are submitted to the Secretary-General and publicity given thereto, following a reasonable time period no protest or objection is registered. Then the outer limit claimed by a coastal state would be considered 'final and binding' and not open to contest."
207. Many of these existing conflicts revolve around sovereignty over islands, rocks, or low-tide elevations, or around their role in maritime boundary delimitations. See, e.g., J. M. Van Dyke, 'Disputes over Islands and Maritime Boundaries in East Asia', in: Hong and Van Dyke (eds.) op. cit., supra note 47 at 39.
208. Cf. McDorman, op. cit., supra note 125 at 309. The problem that some states might generally be opposed to a new rule of stable maritime zones will be dealt with infra.
209. LOSC Annex II, Article 9 and LOSC Art. 76 (10).
210. See Rule 46 and Annex I, Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40/Rev. 1, 17 April 2008.
211. It has been pointed out that joint submissions by states regarding their outer continental shelf limits "encourage the cooperative conditions and mutual understanding among neighboring coastal States conducive to subsequent amicable shelf boundary delimitation. " H. Llewellyn, 'The Commission on the Limits of the Continental Shelf: Joint Submission by France, Ireland, Spain, and the United Kingdom' (2007) 56 International and Comparative Law Quarterly 677 at 683 et seq.;
212. see also Nelson, op. cit., supra note 130 at 414 et seq.
213. Rule 50 of the Rules of Procedure, op. cit., supra note 135.
214. Suarez, op. cit., supra note 37 at 202 et seq.
215. ILA Report 2006, op. cit., supra note 131 at 233;
216. McDorman, op. cit., supra note 125 at 315.
217. McDorman, op. cit., supra note 125, at 310.
218. The US, under its "Freedom of Navigation" program established in 1979, routinely protests against what it considers to be excessive maritime claims by other coastal states; however, this attitude has been described as costly in economic and political terms.
219. See Churchill and Lowe, op. cit., supra note 55, at 9;
220. T. Scovazzi, 'Baselines', in: Wolfrum (ed.), op. cit., supra note 64 at paras. 24 et seq.
221. LOSC Part XV (Arts. 279-299). The dispute settlement system under the LOSC is threetiered, dealing with voluntary procedures in its first section and compulsory procedures entailing a binding decision in its second section. The third section establishes limitations and optional exceptions to the applicability of the compulsory procedures.
222. McDorman, op. cit., supra note 125, at 318.
223. See also ILA Report 2006, op. cit., supra note 131, at 245 et seq.
224. See LOSC Art. 280.
225. LOSC Art. 286 provides that subject to section three, a dispute concerning the interpretation or application of the Law of the Sea Convention shall be submitted to a court or tribunal at the request of any party to the dispute where no agreement could be reached by recourse to negotiations.
226. Suarez, op. cit., supra note 37 at 234, with references;
227. see also McDorman, op. cit., supra note 125 at 317 et seq.
228. ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase), Judgment of 18 July 1966, available at: at 37.
229. See also I. Brownlie, Principles of Public International Law (Oxford University Press, Oxford, 2008) at 469 and 477.
230. Nelson, op. cit., supra note 130 at 419 et seq., with regard to legal action by third states challenging another state's broad continental shelf limits. However, the author concedes that the situation might be different if the third state can show that its interests have been harmed by the coastal state's claims.
231. Not all of these freedoms apply in the EEZ, and those that do are subject to stricter regulation than on the high seas (see LOSC Art. 58).
232. See also ILA Report 2006, op. cit., supra note 131 at 246.
233. Jesus, op. cit., supra note 23 at 600.
234. Jesus, op. cit., supra note 23 at 602.
235. Examples include Vanuatu, an island nation in the South Pacific consisting of mostly steep islands of volcanic origin with rocky coastlines, which has undelimited maritime boundaries with the Solomon Islands, a neighbor country partly consisting of low coral atolls, or Fiji, which also features volcanic mountains and has not yet negotiated maritime boundaries with Tuvalu, a neighboring low-lying atoll country.
236. See V. Prescott and G. Boyes, Undelimited Boundaries in the Pacific Ocean Excluding the Asian Rim, IBRU Maritime Briefing Vol. 2 No. 8 (University of Durham, Durham, 2000). However, because all these countries are small island states which work together through the AOSIS grouping, it is unlikely that the steeper island countries would oppose an island initiative for stable maritime zones. The same loyalty can however not necessarily be expected from other states in similar situations.
237. LOSC Art. 15 prescribes that in the absence of special circumstances, the equidistance principle applies in the delimitation of the territorial sea. Although LOSC Art. 74 (1) only mandates an equitable solution without providing a methodology or principles to achieve this aim, in practice the equidistance principle also plays a major role in EEZ delimitations.
238. LOSC Art. 87 (1).
239. LOSC Art. 69. See Churchill and Lowe, op. cit., supra note 55 at 433-446.
240. The "desire to achieve universal participation" in the LOSC was the main driver behind the process leading to the adoption of the Implementation Agreement.
241. See UNGA Res. 48/263 of 28 July 1994, preambular paras. 1 and 9, and the last two preambular paragraphs of the 1994 Implementation Agreement.
242. Even this provision could not completely eliminate the risk of creating parallel regimes, as states that had ratified the LOSC before the adoption of the Implementation Agreement could still refuse to apply the Implementation Agreement.
243. See Churchill and Lowe, op. cit., supra note 55 at 20 et seq.
244. Churchill and Lowe, op. cit., supra note 55 at 299.
245. See also D. M. Johnston, 'The Driftnetting Problem in the Pacific Ocean: Legal Considerations and Diplomatic Options' (1990) 21 Ocean Development and International Law 5.
246. Albacore tuna is a highly migratory species (see LOSC Annex I) which straddles the high seas and EEZs. Overfishing in the high seas therefore has a detrimental impact on tuna resources within the EEZs.
247. The South Pacific Forum was established in 1971 by Australia, the Cook Islands, Fiji, Nauru, New Zealand, Tonga and Western Samoa (now Samoa). It was renamed the Pacific Islands Forum in October 2000 to better reflect the geographic location of its members in the north and south Pacific. It currently has 16 member states. Besides the founding states, these are the Federated States of Micronesia, Kiribati, Niue, Palau, Papua New Guinea, Republic of Marshall Islands, Solomon Islands, Tuvalu and Vanuatu. See for further information.
248. Tarawa Declaration on Driftnet Fishing, Tarawa, Kiribati, of 11 July 1989, (1989) 14 LOSB 29, available at: (last visited: 6 December 2010).
249. Wellington Convention for the Prohibition of Fishing with Long Drift Nets in the South Pacific of 24 November 1989, entered into force on 17 May 1991, (1990) 29 ILM 1449.
250. For a detailed account of the activities of the South Pacific island states see A. Wright and D. J. Doulman, 'Drift-net Fishing in the South Pacific-From Controversy to Management' (1991) Marine Policy 303 at 314 et seq.
251. UNGA Res. 44/225 of 22 December 1989; UNGA Res. 45/197 of 21 December 1990; and UNGA Res. 46/215 of 20 December 1991.
252. Churchill and Lowe, op. cit., supra note 55 at 299 et seq.
253. See P. Prows, 'A Mouse Can Roar: Small Island States, the United Nations, and the End of Free-For-All Fishing on the High Seas ' (2007) 19 (1) Colorado Journal of International Environmental Law and Policy 1;
254. and D. Hunter, J. Salzman, and D. Zaelke, International Environmental Law and Policy (Foundation Press, New York, 2007) at 788 et seq.
255. UNGA Res. 59/25 of 17 November 2004, paras. 66-71;
256. UNGA Res. 61/105 of 8 December 2006, paras. 80-91;
257. UNGA Res. 64/72 of 4 December 2009, paras. 112-130.
258. UNGA Res. 64/72 of 4 December 2009, paras. 112-130.
259. See also Prows, op. cit., supra note 167 at 39 et seq.
260. UNGA Res. 64/72 of 4 December 2009, para. 118.
261. L. A. de la Fayette, 'A New Regime for the Conservation and Sustainable use of Marine Biodiversity and Genetic Resources Beyond the Limits of National Jurisdiction' (2009) 24 International Journal of Marine and Coastal Law 221 at 252.
262. See also Prows, op. cit., supra note 167 at 41 et seq.
263. UNGA Res. 63/281 of 3 June 2009.
264. See UNGA Press Release GA/10830 of 3 June 2009, available at: (last visited: 6 December 2010).
265. See UNGA Press Release GA/10830 of 3 June 2009, available at: (last visited: 6 December 2010).
266. Churchill and Lowe, op. cit., supra note 55, at 227.
267. T. L. McDorman, 'Global Ocean Governance and International Adjudicative Dispute Resolution' (2000) 43 Ocean and Coastal Management 255 at 256.
268. See W. T. Burke, M. Freeberg and E. L. Miles, 'United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management' (1994) 25 Ocean Development and International Law 127. The bottom trawling resolutions were also supported by the US.
269. See Prows, op. cit., supra note 167 at 27 et seq.
270. T. L. McDorman et al., International Ocean Law-Materials and Commentaries (Carolina Academic Press, Durham, NC, 2005) at 14.
271. T. Cottier and J. P. Müller, 'Estoppel', in: Wolfrum (ed.), op. cit., supra note 64 at para. 1;
272. N. S. Marques Antunes, 'Acquiescence', in: in: Wolfrum (ed.), op. cit., supra note 64 at para, at paras. 23 et seq.
273. ICJ, Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, available at: at para. 130. The ICJ also noted that because the same facts are relevant to both doctrines, they could be taken into consideration as different aspects of one and the same institution.
274. See also Marques Antunes, ICJ, Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, available at: at para. 130., at para. 24.
275. See also Marques Antunes, ICJ, Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, available at: at para. 130., at para. 17.
276. See also Cottier and Müller, op. cit., supra note 179 at para. 12 et seq.
277. See also Cottier and Müller, op. cit., supra note 179, at para. 13, referring to the Advisory Opinion on Certain Expenses of the United Nations of 20 July 1962.
278. See also the Separate Opinion by Judge Sir Gerald Fitzmaurice, at 210.
279. G. J. Hewison, 'The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing' (1994) 25 (4) Journal of Maritime Law and Commerce 557 at 568 et seq.
280. See Churchill and Lowe, op. cit., supra note 55 at 228.
281. See Churchill and Lowe, op. cit., supra note 55, at 9 et seq. and 227.
282. Maybe it is with this distinction in mind that Ian Brownlie cites "resolutions relating to legal questions in the United Nations General Assembly" as material source of custom.
283. Brownlie, op. cit., supra note 147 at 7.
284. Churchill and Lowe, op. cit., supra note 55 at 10.
285. Even then, this universal rule would not be opposable to those states which have persistently objected to it. Yet as already remarked earlier, individual states are unlikely to remain opposed to an almost universally accepted rule.