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2
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4 Adaptation strategies in deltas and their consequence on baselines according
5 to UNCLOS-The case of Bangladesh and Vietnam
6
7 Lilian Yamamoto1 and Miguel Esteban2
8 1. Ocean Policy Research Foundation (OPRF), Toranomon 35 Mori Bldg., 3-4-10, Toranomon, Minato-ku, Tokyo 105-0001, Japan

9 2. Graduate School of Frontier Sciences, The University of Tokyo, 5-1-5 Kashiwanoha, Kashiwa-shi, Chiba-ken 277-8561, Japan

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11 Abstract
12
13 The Mekong delta in Vietnam and the Ganges/Brahmaputra River delta in Bangladesh are likely
14 to be two of the deltas worst affected by climate change in the course of the 21st century. Due to
15 sea level rise, and if significant adaptation measures are not taken, large areas of these low-lying
16 coastlines could eventually become submerged. This paper will explore some of the
17 consequences that climate change and sea level rise can have on the maritime baselines and
18 deltaic areas, according to the publicized charts by the States involved and to the United Nations
19 Convention on the Law of the Sea (UNCLOS). The study will argue that although great changes
20 are likely to take place at the geographical level due to the complex geomorphological nature of
21 deltas and how they will be affected by sea level rise, these will not necessarily translate into
22 changes in maritime baselines and the classification of these areas according to UNCLOS.
23 Furthermore, other forms of adaptation to sea level rise, such as the construction of coastal
24 defences, could turn the Mekong and Ganges/ Brahmaputra River deltas into “polders”, with
25 similar characteristics and problems as the Netherlands nowadays.
26
27 Keywords: sea level rise, maritime baselines, deltas, United Nations Convention on the Law of
28 the Sea, adaptation, erosion of coastal areas
29
30 Abbreviations:
31 AR5: 5th Assessment Report

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32 ICJ: International Court of Justice
33 IPCC: International Panel on Climate Change
34 LPDR: Laos People’s Democratic Republic
35 UNCLOS: United Nations Convention on the Law of the Sea
36
37 Highlights
38 -Sea level rise will have important consequences for deltaic regions around the world, which
39 could be flooded if no adaptation countermeasures are implemented.
40 -The implications of claiming deltaic areas through Art. 7(2) or 7(1) of UNCLOS could lead to
41 slightly different outcomes regarding the categorization of land area.
42 -States that have deltas in their territory should carefully consider the adaptation strategies they
43 will adopt against future climate change and sea level rise.
44
45
46 1. Introduction
47
48 Climate change and sea level rise arguably represent two of the major challenges for the Mekong
49 delta in Vietnam and the Ganges/Brahmaputra River delta in Bangladesh, which are likely to be
50 two of the areas worst affected by climate change during the course of the 21st century. Due to
51 sea level rise, and if significant adaptation measures are not taken, large areas of these low-lying
52 coastlines could become submerged in the future. The present research will examine some of the
53 possible consequences that sea level rise and climate change could have on deltaic areas and
54 analyse what are the consequences for the status of maritime baselines and coastal areas. The
55 authors will analyse publicized charts by the States involved and interpret them according to the
56 United Nations Convention on the Law of the Sea (UNCLOS) and expected consequences of
57 climate change and sea level rise outlined in the Intergovernmental Panel on Climate Change 5 th
58 Assessment Report (IPCC 5AR). Particular emphasis will be placed on Article 7 of UNCLOS,
59 which provides the regime of deltas, a provision that was originally drafted in response to
60 Bangladesh’s particular geographical characteristics.
61

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62 The paper will argue that although great changes are likely to take place at the geographical level
63 due to the complex geomorphological nature of deltas and how they will be affected by sea level
64 rise, these will not necessarily translate into changes in maritime baselines and classification of
65 these areas according to UNCLOS. Geography is not the only factor which defines baselines in
66 each of these countries. National interests also play a major role since there are a number of
67 abusive claims related to straight baselines in East Asian countries (Bateman and Schofield
68 2008). Other forms of adaptation to sea level rise, such as construction of coastal defences, could
69 turn the Mekong and Ganges/ Brahmaputra River deltas into an area with similar characteristics
70 and problems as the Netherlands nowadays. Essentially, it would transform the areas from being
71 natural geomorphological ecosystems to managed landscapes where water bodies inside them
72 would have to be carefully maintained, ensuring adequate drainage and the protection of the
73 sea/land interface through a variety of coastal defence schemes (such as sand dunes and dykes).
74 If such adaptation measures are not attempted, it is possible that large sections of the deltas will
75 be inundated, in a manner similar to what appears to have happened to the area known as
76 Doggerland in the North Sea thousands of years ago. If so, then the inhabitants of the delta might
77 be forced to migrate, an adaptation strategy of last resort.
78
79 Possible adaptation strategies will be discussed, together with the consequences that they could
80 have on the classification of each area. The main objective of the paper is to try to understand
81 what would be the consequences regarding the baselines that are currently claimed by each
82 country. While the authors will briefly discuss whether such claims are actually appropriate
83 under UNCLOS, a detailed discussion on this issue is outside the scope of this paper. Thus, the
84 paper attempts to highlight the consequences to the classification of coastal areas and maritime
85 zones for the Mekong and Ganges/Brahmaputra delta under the present logic of the claims of
86 each of the two countries that exercise sovereignty over the delta. The research will provide
87 important insights into future problems that will arise from circumstances that were unforeseen
88 when UNCLOS was drafted, namely the significant alterations of the world’s coastlines that
89 could result as a consequence of sea level rise. While provisions were made in this treaty for
90 small movements in the coastline of deltaic areas, those involved in its elaboration it failed to
91 realize the rather dramatic alterations that could take place if sea levels were to rise by several
92 metres. Such problems could not only lead to the migration of those currently living in those

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 93 areas, but also significantly affect crop output and destroy local ecosystems, significantly
94 impacting on the provision of ecosystem services. Finally, it could eventually create a significant
95 gap between political maps and geographical maps, with countries referring to maps decades or
96 centuries old to make future claims on geographical features.

97 2. Climate Change and Deltas

98 The link between human activities and the increase in global temperatures is an issue that very
99 few people question these days, and has been enshrined in a wide body of scientific literature
100 that was last summarized in the 5th Report of the International Panel on Climate Change (or
101 IPCC 5AR, 2013). This report highlights how the concentration of greenhouse gas emissions in
102 the atmosphere is nearly double than that of pre-industrial levels and is still rising. It is feared
103 that in the coming years the increasing levels of CO2 concentrations in the atmosphere will
104 accelerate the pace of global warming. For countries such as Vietnam or Bangladesh this could
105 manifest itself in an acceleration in the pace of sea level rise, resulting in the flooding of cities
106 situated in coastal area, agricultural fields and increasing the levels of coastal erosion, with
107 disastrous consequences for their inhabitants. Particularly important is the problem faced by the
108 major deltaic areas in both of these countries. Deltas are low-lying coastal platforms formed by
109 the accumulation of riverine sediments in the areas around river-mouths, mostly during the last
110 6000-8000 years of relatively stable sea levels. They are extremely sensitive to changes in sea
111 level (IPCC 5AR, 2013), and can experience a number of natural hazards such as river floods
112 and tropical cyclone storm surges. Several of the predicted impacts of climate change in these
113 areas will be analyzed in the next section.

114 2.1. Sea Level Rise

115 The two main contributors to sea level rise in the 20th century are ocean thermal expansion,
116 which essentially means that water expands in volume when it becomes warmer, and glacier
117 melting (IPCC 5AR, other causes include also the melting of polar ice caps and ice loss from
118 Greenland and West Antarctica). Satellite information available since the early 1990’s indicates
119 that global sea levels have been rising at around 3mm per year, a rate significantly higher than
120 during the previous half a century (where sea levels were raising at around 1.7mm per year). The

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121 rate of increase is not constant for different regions, and from an economic, engineering and
122 social point of view the most important factor are the regional increases in sea levels, which
123 could differ significantly from the global average (Magnan et al., 2011). Currently, for the case
124 of Vietnam it appears that sea level rise follows closely that of the rest of the world, at around
125 1.75 to 2.56mm/year (Thi Thuy and Furukawa, 2007). Sea level rise in the country is unlikely to
126 be uniform, and would be highest in the region from Ca Mau to Kien Giang (62-82cm by 2100,
127 according to MONRE 2012 scenarios, see Ngo-Duc, 2014), and would be lowest from Mong Cai
128 to Hon Dau (49-64cm)
129
130 As at present CO2 emissions continue to increase, it appears likely that the planet will continue to
131 warm and thus that a significant amount of sea level rise is inevitable, unless drastic action is
132 taken to reduce emissions. According to the IPCC AR5 (2013), it is believed that sea level is
133 likely to rise in the range of 26 and 82 cm by 2100, substantially higher than the 18 and 59 cm
134 projection given in the IPCC 4R. That is due to the fact that more data on ice loss has been
135 collected, and there has been more research on how ice sheets react to climate change, which
136 improved the modelling of thermal expansion. In fact the IPCC 4AR (2007) assumed that ice
137 was accumulating over the Antarctic ice sheet, though this is currently losing mass as a
138 consequence of dynamical processes, as shown in Allison et al. (2009). Recent research such as
139 that by Vermeer and Rahmstorf (2009) indicate that for the future global temperatures scenarios
140 given in the IPCC 4AR projected sea level rise for the period 1990-2100 could be in the 0.75 to
141 1.9m range. Such levels would result in serious consequences to certain areas of the world,
142 flooding millions of people living in the low lying areas of South, South-East and East Asia
143 (Stern, 2007). Even under a conservative scenario of only 40cm increase in sea level by the end
144 of the 21st century this would increase the projected number of people flooded in coastal areas
145 from 13 to 94m (Wassmann, 2004). The consequences of sea level rise would thus be felt by
146 most nations on Earth, though they would be more severe to those inhabiting deltaic areas, such
147 as the Mekong or the Ganges/Brahmaputra deltas (IPCC 5AR).
148
149 The Mekong delta, for instance, is a complex sedimentary environment that resulted from the
150 deposition of sands and silts carried from the upper reaches of the Mekong. The present
151 morphology of the Mekong Delta developed during the last 6,000 years, when the delta advanced

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152 around 200km over the continental shelf of the East Sea (Mekong River Commission, 2010).
153 Prior to this time in the early Holocene sea levels rose rapidly following the end of the last ice
154 age 19,000 years ago to reach a level of 4.5m above present levels (Mekong River Commission,
155 2010). At this time the shoreline of East Sea reached Phnom Penh in present Cambodia (Mekong
156 River Commission, 2010), and raising sea levels could eventually bring it back there if
157 significant adaptation strategies are not implemented. Already at present around 1.7m ha of land
158 is flooded every year, affecting 9 million people (Thi Thuy and Furukawa, 2007), which is not
159 limited to a narrow band of land next to the coastline but extends into the inland regions. To a
160 certain extent, local residents have learnt to live with this flooding (Takagi et al., 2014a, c), and
161 many do not seem to consider it a pressing danger. Actually, much of this flooding is often
162 caused by increased water discharge in the Mekong, coinciding with high tides (Takagi et al.,
163 2014a). Nevertheless, the policy of the authorities in the area is to elevate all new roads and
164 public buildings, which can offer residents a dry place to wait for the passage of flooding
165 episodes1.
166
167
168 However, future sea level rise and storm surges are likely to increase the severity of this problem,
169 and many researchers have predicted that many provinces in the Mekong Delta will be
170 permanently or semi-permanently flooded in the future (see Takagi et al., 2014a, Takagi et al.,
171 2014c, MONRE, 2009, Socialist Republic of Vietnam, 2005)

172 2.2. Erosion of coastal areas and the mobility of population as an adaptation strategy

173 In the past the Mekong delta was expanding due to the supply of silt and sand from the upper
174 reaches of the river. Though theoretically the total land mass of the delta could remain constant
175 or even increase, even in the face of rising sea levels, this would require a constant or increasing
176 level of sediment supply. However, the past and planned future construction of dams along the
177 river threatens to put an end to this expansion. Already there is evidence that suggests that the
178 sediment flux that enters the Mekong from China has declined since the construction of the
179 Manwan dam in 1993 (Mekong River Commission, 2010). A series of five dams proposed in the

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Source: Private communications between authors and Vietnamese officials and authors’ own field surveys, see
Nguyen et al., (2014)

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180 Laos LPDR, although smaller than the Manwan dam, are further likely to contribute to the
181 reduction in fluvial sediment fluxes (Mekong River Commission, 2010).
182
183 Reduced sediment supply is likely to have profound consequences for the Mekong Delta. Such
184 erosion could be aggravated by an acceleration of sea level rise, which would allow higher waves
185 to reach the coastline (Esteban et al., 2014). Such problems could be further compounded by
186 increases in future typhoon intensity in the area (Esteban et al. (2014), Takagi et al. (2014b).
187 Longshore drift processes ensure that sand and sediments are carried in the direction of the
188 prevailing waves, and increases in wave heights could result in important erosion in the areas
189 close to the river mouths. As the Mekong delta is very low, any increase in sea levels could
190 actually result vast expanses of land being lost (see Cong et al. (2014), Thanh (2014)).
191
192 Deltas are densely populated since human activity often converges to them due to the advantages
193 they offer for shipping, seafood production and other provisioning services (Costanza et.al 2011).
194 However, coastal erosion actually greatly impacts the life of those living around the coastline,
195 destroying crops, infrastructure and housing, which can eventually result in people relocating to
196 other areas (Takagi et al., 2014c, Yamamoto, 2014), especially regarding poor people who do not
197 own land (Sarwar, 2005). In fact, mobility is an important characteristic of adaptive responses
198 when ecosystem services are uneven. (Costanza et.al 2011).
199
200 The normal reaction against an increase in erosion is the construction of coastal dykes and river
201 embankments, in a way similar to what has been done during past centuries in the Netherlands.
202 However this could create other problems. If a storm surge overtops the dykes then seawater will
203 become trapped behind the defences, which can result in the lands being unusable for a large
204 period of time and an increase in their salinity, affecting future harvests (of course this would not
205 be a problem if the lands are used as shrimp farms or other types of aquaculture, but it could
206 result in much of the surrounding vegetation being lost). Aquaculture and shrimp farming has
207 changed traditional production patterns in rice farming and fishing, leading to significant
208 improvements in local income. However, sea level rise brings uncertainty for this form of
209 livelihood, in the form of cyclone driven flooding and back-water saline intrusion that can enter
210 the delta region.(Oliver-Smith, 2009). Potential land loss will require adjustments to practices

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211 and community economic structures in order to maintain production and the distribution of
212 resources (Oliver-Smith, 2009).
213
214 The increase in salinity can also decrease the land available for grazing and result in a shift in
215 ecological state that means local species can no longer survive (Resilience Alliance, 2010),
216 which represents a stressor element that may cause people to migrate to other areas. This
217 salinization would have important consequences in terms of the ecosystem services provided by
218 many of these areas, and could include the loss of firewood or the wind protection offered by
219 trees. In terms of marine conservation the loss of land will have important consequences for
220 freshwater species, which will be displaced further up along the Mekong and allow the intrusion
221 of marine species. An increase in sea levels will result in higher waves being able to reach the
222 coastline (Yamamoto and Esteban, 2014) and result in steeper nearshore beach profiles, which
223 will significantly alter the habitat of marine species in nearshore areas. The consequences of this
224 are likely to be significant and alter the ecosystem benefits obtained by those living in the
225 vicinity of the new coastline, and could be expected to include increase catches of some species
226 and decrease in others. While it’s difficult to foresee all consequences, such issues would clearly
227 pose a threat to the sustainable development of coastal communities. It could also lead to
228 migration to urban areas, as has actually happened during high intensity floods in the Mekong
229 delta, which have already threatened rice agriculture and driven migration to other areas
230 (Constanza et.al, 2011).

231 3. Straight baselines and the regime of deltas

232
233 The normal baselines from which maritime areas are derived are drawn following the low-water
234 line of the coast (article 5 of the UNCLOS). However, when the coastal configuration is complex
235 under some circumstances a coastal state can apply the rule of straight baselines. The 1951
236 Norwegian-Anglo Fisheries case presented to the International Court of Justice by the United
237 Kingdom played an essential role in the development of the straight baselines system. The
238 United Kingdom argued that the baselines claimed by Norway in the 12 July 1935 Royal Decree
239 were illegitimate, and that baselines should be drawn at the low-water mark of the coast.
240 However, the Court decided that the delimitation of the fisheries zone employed by the Royal

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241 Norwegian Decree was not contrary to international law (International Court of Justice (ICJ)
242 Fisheries (United Kingdom v. Norway), 1951). The coastline of Norway has peculiar geographic
243 nature which the “coast of the mainland does not constitute, as it does in practically all other
244 countries, a clear divide between land and sea” (ICJ, Fisheries (United Kingdom v. Norway),
245 1951), which would justify the use of straight baselines. Essentially, the Court accepted the
246 method of straight baselines due to the special geography of the coastline (ICJ, Fisheries (United
247 Kingdom v. Norway), 1951).
248
249 The application of straight baselines is restrictive and it requires that: the coastline must be
250 “deeply indented and cut into” or there must be “a fringe of islands along the coast in its
251 immediate vicinity” (Article 7(1), UNCLOS) (Nossum, 2002). Furthermore, three further
252 conditions should be fulfilled: 1) the general direction of the baseline should not depart from the
253 general direction of the coast (paragraph 3); 2) the waters on the landward side of the baseline
254 must be sufficiently close to the coast to be subject to the regime of internal waters (paragraph
255 3); 3) the baseline must not cut off the territorial sea of another state (paragraph 6) (Nossum,
256 2002). In case all these three conditions are not fulfilled, article 7, paragraph 5 provides that a
257 straight baseline may still be drawn if there are “economic interests peculiar to the region”
258 (Nossum, 2002). The main difference between a straight baseline and a normal baseline system
259 is that under the former, baselines are drawn across water, not along the coast (Tanaka, 2012).
260
261 The other situation which provides for the application of straight baselines is for deltaic coasts
262 which are highly unstable. Some areas which fall into this regime include the Mississippi River
263 (USA), Nile River (Egypt) or the Ganges-Brahmaputra River (Bangladesh) (Roach and Smith,
264 2012). Although the Mekong delta could be in the list, the Vietnamese government did not set
265 the maritime baselines around the delta, but rather on a set of islands off the deltaic area itself, as
266 will be explained later.
267
268 Bangladesh played an active role in the proposals of the regime of deltas during the negotiations
269 of the Conference on the Law of the Seas III. In fact, Bangladesh proclaimed a system of straight
270 baselines in the Bay of Bengal on 13 April 1974 (International Law Association, 2014).

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271 Eventually, the regime of deltas, which provides for setting straight baselines, was established by
272 Article 7(2) of the United Nations Convention on the Law of the Seas III (1982) (Hoque, 2006).
273
274 The regime of deltas provides that (Article 7(2) of the UNCLOS):
275
276 “Where because of the presence of a delta and other natural conditions,
277 the coastline is highly unstable, the appropriate points may be selected
278 along the furthest seaward extent of the low-water line and,
279 notwithstanding subsequent regression of the low-water line, the straight
280 baselines shall remain effective until changed by the coastal State in
281 accordance with this Convention”.
282
283 Bird and Prescott interpret this article as "[o]nly in the case of straight baselines along deeply
284 indented coasts or coasts fringed with islands is there special provision for particular action if the
285 coast retreats." This would appear to raise a question as to whether the rule would apply to any
286 highly unstable delta or exclusively to highly unstable deltas which are either deeply indented or
287 fringed with islands. In other words, it conveys a sense of doubt as to whether Article 7(2)
288 should be read cumulatively with Article 7 (1) (Bird and Prescott cited by Menefee, 1991).
289 However, the International Law Association reached the conclusion that Article 7 (2) is to be
290 read independently from Article 7(1) (International Law Association, 2014). Therefore, it seems
291 that Article 7(2) would be the most appropriate to refer to regarding problem of sea level rise in
292 deltaic areas.
293
294 For the case of Article 7 (1), straight baselines are affected by sea level rise only at the location
295 of the baseline points that fix the straight baselines to the land. It is also important to note that
296 even with the advance of the low-water line landward, there is no limit to the length of lines that
297 can be determined in straight baseline systems. It can be noted, then, that existing lines could be
298 extended to reach the new low-water line. Baseline points which are established on relatively
299 high elevation rocks and coasts will not likely be affected by rising sea levels. Conversely, those
300 points which are anchored on soft sediments coasts might have to be re- drawn (Bird and

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301 Prescott cited by Menefee, 1991). However, the case for baselines established under Article 7 (2)
302 would be slightly different, as will be discussed below.
303
304 3.1. Case study I: Bangladesh
305
306 Bangladesh is a low-lying tropical country located in South Asia. The country is dominated by
307 the Ganges/Brahmaputra River system, which forms the largest delta in the world (Tanaka,
308 2012), an area extremely vulnerable to cyclones. Bangladesh has a coastline which is highly
309 unstable and geomorphologically dynamic, with constant advancing and retreating of land. The
310 delta is deeply indented, with erosion and sedimentation processes continuously affecting
311 adjacent coastal waters and navigable channels in the coastline changing continuously, requiring
312 frequent surveys and demarcation (Alam, 2010). Due to these characteristics, Bangladesh
313 attempted to draw stable baselines which would not need to be revised in the event of changes to
314 the coastline (Hoque, 2006), and made an official claim to these straight baselines on 13 April
315 1974 (Hoque, 2006 ). The country has described the specific nature of the deltaic area during the
316 1974 Caracas Session in the second Committee of informal Proposals for the UNCLOS III as: 1)
317 the estuary of Bangladesh is such that no stable water line or demarcation of landward and
318 seaward area exists; 2) the continual process of alluvion and sedimentation forms mud-banks and
319 the area is so shallow as to be non-navigable by other than small boats; 3) the navigable channels
320 of land through the aforesaid banks are continuously changing their courses and require
321 soundings and demarcation so that they pertain to the character of the river mouths and inland
322 waters (Platzoder, 1989).
323
324 The 1974 Act adopted the “depth method” for establishing the baseline of Bangladesh. Baselines
325 were drawn from straight lines by joining certain outer points at a depth of 60 feet (18.2m) (Shah
326 and Al Faruque, 2010), and do not touch the coast at any point (Schofield, 2009). Therefore, the
327 baselines were neither drawn on rocks nor on soft sediment coasts, as UNCLOS requires, but are
328 based on a bathymetric line, and are thus unlikely to significantly change due to future increases
329 in sea levels unless Bangladesh were to decide to declare new baselines. However, it is important
330 to note that these baselines are situated 10 to 53 miles from the actual coastline, and regarding
331 whether they can be claimed as valid Hoque indicates, “it is beyond doubt that Article 7(2) does

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332 not preclude what Bangladesh actually proposed” (Hoque, 2006). In other words, the regression
333 of the low-water line in the case of Bangladesh will not cause the regression of baselines on the
334 coast since the baselines are set in the coastal waters instead of on the coastland. It is unlikely
335 that the alteration of coastlines due to sea level rise will automatically translate in modifications
336 to baselines, as under international law it is necessary for the States involved to update their
337 charts. In fact, the intended non-updating of the charts has been suggested as a solution to
338 stabilize the maritime boundaries of coastal States (Grote, 2011).

339 3.2. Case Study II: Vietnam

340 Vietnam is a densely populated tropical country located in the Indochina Peninsula in Southeast
341 Asia. The country has two large delta systems, the Red River and Mekond Deltas, and is
342 frequently affected by powerful typhoons (Nguyen et al., 2014). Vietnam issued a declaration on
343 its territorial waters, contiguous zone and extensive maritime zones, and has drawn straight
344 baselines between 11 base points along the Vietnamese coast (Statement on the territorial sea,
345 the contiguous zone, the exclusive economic zone, and the continental shelf, 1977). The
346 Vietnamese baseline system is composed basically by straight baselines, which do not appear to
347 generally fulfill the preliminary tests provided by article 7 (1) of the UNCLOS. i.e., the
348 Vietnamese coast neither is deeply indented nor fringed by islands. Furthermore, the basepoints
349 islands from which Vietnam’s claims straight baselines are small, scattered and distant from the
350 mainland coast, and some commentators have expressed doubts about their ability to give
351 grounds to the claim of straight baselines (Bateman and Schofield, 2008).
352
353 Had Vietnam made their maritime baselines adjacent to the Mekong Delta rather than out at sea
354 from one island to another (Nossum, 2000) then they would be under the deltas regime, Article 7
355 (2), in the same manner as Bangladesh. However, for the case of Vietnam the examination of the
356 straight baselines requirements relies on the terms of Article 7(1). For example, adjacent to the
357 coastline of the Mekong Delta there are two islands, the island of Con Dao 2 and the island of
358 Hon Hao, located 51.5 and 74.2 nautical miles from the mainland, respectively (Nossum, 2000).
359 Vietnam has drawn a straight baseline between them. Although some commentators raise
2
Con Dao is the largest island of the Con Dao Archipelago which consists of fifteen small islands and islets, Much of the main
island is over 200m above sea level and two peaks exceed 500m (Tranh Cia Mountain 577m Chua Mountain 515m).
http://www.arcbc.org.ph/wetlands/vietnam/vnm_condaoarc.htm

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360 questions as to whether this constitutes a fringe of islands, casting doubt on the legitimacy of
361 such claim (Nossum, 2000), it should also be noted that Art. 7 (1) is imprecise since it does not
362 contain indication of how many, how close to one another and how far offshore fringing islands
363 need to be (Schofield, 2012). Nossum suggests that Vietnam actually could draw a less radical
364 straight line which would follow the indentations across river mouths in the delta in the Mekong
365 River, according to Article 7(2) (Nossum, 2000).
366
367 However, similar to the approach taken for the case of Bangladesh, the purpose of the present
368 research is not to determine the legitimacy of the current claim of Vietnam, but to examine what
369 would be the consequences of sea level rise to present claims. It is worth noting that if the
370 islands on which such claims are based were to completely disappear as a consequence of sea
371 level rise they would not support baselines and the State would lose jurisdiction over all
372 maritime zones currently derived from them (Lusthaus, 2010). For the case were the islands lose
373 territory and become barren rocks, the State would lose the right to claim the Exclusive
374 Economic Zone (EEZ) and continental shelf because barren rocks cannot be a basis for claiming
375 it (article 121(3)) UNCLOS)3, although they could preserve their territorial sea and contiguous
376 zone (Lusthaus, 2010). However, given the topography of the islands for the case of Vietnam it
377 appears unlikely that they will become submerged or reduce in size to the point that they would
378 be considered barren rocks.
379
380 4. Adaptation Strategies
381
382 As outlined previously, it is likely that by 2100 sea levels could be considerably higher than now,
383 possibly up to 1.9 according to authors such as Vermeer and Rahmstorf (2009). As most deltaic
384 areas are only a few meters above sea level, the sea could permanently flood parts of them,
385 unless significant adaptation strategies are attempted.
386
387 4.1. Adaptation scenarios

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The discussion about the criteria of islands or rocks is deeply developed by the issue of Okinotorishima island which is the
subject of controversy between Japan and China, which is located 1, 400 yards apart and no more than two feet out of the water at
high tide. the Chinese government recognizes Japanese sovereignty over it, but maintain that it is a rock( not an island) which
cannot sustain human and economic life. See discussion on the topic at Yamamoto, Lilian and Esteban, Miguel, Atoll Island
States and International Law-climate change displacement and sovereignty. Springer, 2013, pp. 135-136.

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388
389 Considering the problems outlined in the previous sections it is possible to envisage a number of
390 future scenarios for large deltas:
391
392 -Scenario 1. No change scenario. In this case, however unlikely it may seem, either sea level rise
393 will stop, or this will be compensated by an increase in sediments reaching the delta (which
394 would mean the ground level of the delta gradually rising together with sea level rise). Thus,
395 there would be no changes to the extent of the delta. The use of such scenario is somehow
396 necessary for the sake of considering all possibilities (Yamamoto and Esteban, 2014)
397
398 -Scenario 2. Complete inundation. In this case the delta would become completely submerged,
399 without leaving behind any raised ground or islands. This scenario appears extreme, as it would
400 be relatively easy to conserve some areas in the delta, even if the rest was allowed to
401 permanently flood. Nevertheless, even in this case some of the flooded areas could probably still
402 be used for fishing or aquaculture. The adaptation strategy pursued by inhabitants would
403 essentially be migration (Yamamoto and Esteban, 2014)
404
405 -Scenario 3. Partial flooding. Some areas of the delta would be raised to create small islands that
406 would remain surrounded by a shallow sea. The edge of what is nowadays the delta could
407 probably be protected by a long series of coastal fringing islands, delimitating the present
408 coastline and serving as a barrier against waves. These islands would have to be raised to keep
409 pace with sea level rise, and their edges protected against the effect of the waves by coastal
410 revetments and dykes. The islands would offer protection to the area behind them, avoiding the
411 effects of coastal erosion, which would become a very shallow “lagoon-type” area that could be
412 dedicated to shrimp or catfish cultivation. Under this scenario the delta would turn into a lagoon-
413 type area with series of small islands where the population would live, connected by roads and
414 bridges, and with a very shallow bathymetry. While it is clear that in modern times no area has
415 suffered partial flooding as a consequence of sea level rise, an indication of what could possibly
416 happen could be observed after the 2011 Tohoku Earthquake in northern Japan. Fig. 1 shows
417 how many coastal areas were affected, leaving a complicated pattern of flooded and dry lands
418 (see also Mikami et al., 2012)

14
419
420 Fig. 1. Flooded area in Ishinomaki (Japan) due to land subsidence due to the 2011 Tohoku
421 Earthquake
422
423 -Scenario 4. Protection of the entire delta through a system of coastal defences. In a similar way
424 to the Netherlands or Koto delta in Tokyo Bay, the entire delta could be protected by the creation
425 of a system of coastal protection works, on a scale similar to the Delta Works in the Netherlands
426 (Deltawerken, 2011) or the levees and gates around Tokyo Bay (see Hoshino et al, 2012, for
427 example). The Netherlands has spent centuries reclaiming lands from the sea through a complex
428 system of sea dikes and drainage systems, meaning that a considerable area of the country is
429 composed of lands that are located under mean sea level (and that would be flooded if the dikes
430 were breached). The lands behind these coastal defences are referred to as polders, and form a
431 characteristic landscape that is crucial to the survival of the country. Considerable effort is
432 invested in their maintenance, as any breach during a storm can have potentially catastrophic
433 consequences. Efforts to create such dykes to protect against floods and saline intrusion have
434 already been attempted in the Mekong delta (Toan, 2014), and large stretches of the Vietnamese
435 coastline already have large dykes to protect against storm surges and coastal erosion (see Fig. 2,
436 for example). If such efforts continue it is not difficult to imagine that the area that now makes
437 up the Mekong Delta would eventually be situated below sea level, protected by a series of dykes

15
438 and other infrastructure, in the same way as large parts of the Netherlands or even Tokyo Bay
439 nowadays (see Fig. 3).
440

441
442 Figure 2. Protection of severely degraded area of Vietnamese coastline using sea dykes. Note to
443 the ruined remains of the former village and new dyke at the right (see also Nguyen et al., 2014)
444

445
446 Figure 3. Levees and storm surge gates in Tokyo

16
447

448 4.2. Implications of Adaptation Strategies on Maritime Zones

449
450 Clearly, for a given delta, scenarios 1 and 4 would not have any significant effect on the current
451 regime of baselines and maritime areas. Scenario 4 would essentially mean turning the delta into
452 an area similar to that of the Netherlands nowadays, and thus there is a clear precedent of how
453 the use sea dykes can effectively protect a coastline and the baselines derived from it (Yamamoto
454 and Esteban, 2014). The following subsections will discuss in more detail the implications of the
455 other two scenarios.
456

457 4.2.1. Scenario 2

458
459 The case of scenario 2 is more nuanced and complex than Scenarios 1 and 4, and would depend
460 on what article within UNCLOS the coastal State is using for the delimitation of its baselines. In
461 the present research the authors have highlighted how different countries may use Art. 7(1) (e.g.
462 Mekong delta in Vietnam) or Art 7.(2) (e.g. Ganges/Brahmaputra in Bangladesh) to delimit
463 baselines close to deltaic areas. Figures 4 to 7 illustrate the present day situation of maritime
464 zones according to these articles and the possible future consequences of sea level rise and the
465 inundation of the deltas.
466
467 Figure 4 shows a schematized vision of the present day case of a country claiming its baselines
468 according to Art. 7(2), though based on bathymetric lines, such as in the case of Bangladesh. It
469 should be noted that this figure is intended to represent the particular case of Bangladesh, where
470 the baseline is not immediately next to the low-water mark, but was surveyed some distance
471 from the coastline along bathymetric contours, see (Hoque, 2006). The interesting point is that
472 while baselines under UNCLOS appear to be ambulatory4, as the question of sea-level rise and

4
The UNCLOS in fact does not indicate whether the boundaries of the maritime zones move as baselines move. Baselines are
clearly not fixed, as they are based on low-water marks, and these move following various morphological processes. This has
led a number of commentators to conclude that these outer boundaries of the territorial see must be ambulatory, see Soons

17
473 its effects on maritime space and borderlines were not addressed by the 1982 Convention
474 (Gagain, 2012)5, one very clear and explicit exception is related to deltas, as Art. 7 (2) provides a
475 temporary legal stability of straight lines around them. Thus, even if these lands become
476 inundated in the future (Figure 5), unless the State decides to resurvey and resubmit charts
477 detailing baselines, the original baselines would continue to hold valid. UNCLOS clearly states
478 that deltaic baselines are fixed despite subsequent regressions of the low-water line, giving
479 Bangladesh a very clear argument to continue to claim all maritime zones derived from them.
480 This strategy of not re-surveying the baselines has been suggested for the case of atoll islands by
481 a number of authors such as Hayashi (2010) or Grote (2011).
482
483

1990, p. 216 and Caron 1990, p.634. This principle of the ambulatory nature of baselines and maritime zones is accepted by
most researchers. All authors referenced in this chapter accept this concept of the ambulatory nature of baselines and a proof
of this is that a significant number of papers have attempted to find solutions to this problem, see for example Rayfuse 2010,
p.3 and Grote 2011, p.271-230

18
484
485
Sea
486
487 Internal

488 Water

489
Territorial Contiguous EEZ
490
Deltaic Sea Zone
491 Delta Area Baseline
492
493 Figure 4. Present day baseline delimitation according to Art. 7 (2) of UNCLOS 6.
494
495
496
Deltaic
Sea
497 Baseline
498
New
499
Shoreline
500
Land according to Art. Territorial Contiguous EEZ
501
7 (2) Sea Zone
502 Delta Area
503
504 Figure 5. Scenario 2 implications to coastal maritime zones according to Art. 7 (2) of UNCLOS
505
506 The case of a country claiming straight baselines using Art. 7 (1) is slightly more complicated.
507 Figure 6 shows the schematic representation of the claim of Vietnam under this article nowadays,
508 highlighting how it allows the coastal State to claim any water between the island and the land as
509 “Internal Waters” under UNCLOS. Assuming that the islands will survive the effect of climate
510 change (as if the islands disappear or become uninhabitable it would be difficult for a coastal
511 State to claim baselines around them (see Yamamoto and Esteban, 2010) if the delta was to
512 recede considerably this could lead to the reclassification of internal waters as a “territorial sea”.
513 Note how for the explicit case of Vietnam this would further detract from the credibility of the

19
514 present day islands constituting “fringing islands”, as some commentators already claim that
515 Vietnam’s claims are excessive (Nossum, 2000).
516
517 If in the future it is established that these islands no longer represent a “fringing island” group as
518 it is claimed by Vietnam, then the country could draw new baselines along the edge of the delta
519 at that time, which from that point would become fixed under Article 7 (2). Essentially, what was
520 previously classified as internal waters and land areas would become territorial sea under
521 UNCLOS. However, as mentioned previously, it is important to note that there are currently no
522 objective definitions of how far offshore fringing islands need to be (Schofield, 2012). Such a
523 lack of clarity could lead to conflicts, with other States not recognizing such claims.
524
525
Sea
526
Islands
527
528
529
Internal Territorial Contiguous EEZ
530
Water Sea Zone
531 Baseline
Delta Area
532
533 Figure 3. Scenario 1. Present day baseline delimitation according to Art. 7 (1) of UNCLOS
534
535
536
537
538
539
540
541
542
543
544

20
545
Sea
546 2
Islands
547 3
548 4
549 5
Territorial Territorial Territorial Contiguous EEZ
550 6 ?
Sea Sea Sea Zone
551 7 New 2 (case of Vietnam)
Figure 4. Scenario
Delta Area
Shoreline
552 8
553 Figure 7. Scenario 2 possible implications to coastal maritime zones according to Art. 7 (1) of
554 UNCLOS
555

556 4.2.2. Scenario 3

557
558 The case of Scenario 3 is relatively more straightforward. For the case of claiming baselines
559 under Art. 7(2) –see Fig. 8- the results would be exactly the same as shown in Fig. 5, while for
560 the case or Art. 7(1) the protection of portions of land close to the fringing islands could allow
561 the State to claim that all of the islands still constituted a fringing island archipelago, thus
562 preserving their previous internal waters. However, in this case the flooded delta areas would
563 become internal waters, with the non-flooded areas being reclassified as islands rather than
564 normal land (See Fig. 9)
565
Deltaic
Sea
566 Baseline
567
New
568
Shoreline
569
Territorial Contiguous EEZ
570 Land
Sea Zone
571 Delta Area
572
573 Figure 8. Scenario 3 possible implications to coastal maritime zones according to Art. 7 (2) of
574 UNCLOS

21
575
576
Sea
577 9
Islands
578 10
579 11
580 12
Internal Territorial Contiguous EEZ
581 13
Waters Sea Zone
582 14 Delta
Figure 4. Scenario
Area New 2 (case of Vietnam)
583 15 Shoreline
584 Figure 9. Scenario 3 possible implications to coastal maritime zones according to Art. 7 (1) of
585 UNCLOS
586
587 The islands thus created would arguably still be naturally formed islands (as opposed to
588 “artificial islands”), as the process of inundation of low-lying lands during periods of raising sea
589 levels is something that is part of natural earth cycles (even if these are being accentuated by
590 greenhouse gas emissions). The issue in this case is that currently UNCLOS does not consider
591 that artificial islands can generate a claim to maritime zones around them (Gagain, 2012). Article
592 121 (1) of UNCLOS established that an island is “a naturally formed area of land, surrounded by
593 water, which is above water at high tide”. However, the situation would be entirely different in
594 this case as it would be a section of territory that was formed naturally (as part of a deltaic
595 region) and then protected. In fact, coastal protection works are typical in most areas of the
596 world, as they are required to protect lands against coastal erosion that typically originates from
597 human interferences with coastal processes (Shibayama, 2009). Soons (1990) also explains how
598 the artificial conservation of the coastline is fully permitted under public international law, as
599 proved by abundant State practice. Article 11 of the UNCLOS states how “For the purpose of
600 delimiting the territorial sea, the outermost permanent harbour works which form an integral part
601 of the harbour system are regarded as forming part of the coast”. This provides further evidence
602 of the possibility of using coastal defences to mark the external edge of the baseline (Yamamoto
603 and Esteban, 2014). The key point would be that they are “naturally formed”, as the island would
604 have been formed by nature as a delta, but would be protected by artificial measures.

22
605 5.Discussion and implications

606
607 There has been much discussion regarding sea level rise, maritime claims and the nature of
608 baselines. The question that is often asked is whether baselines are fixed or ambulatory. At the
609 time when UNCLOS was written the issue of moving baselines was of low concern, and hence
610 the UNCLOS does not explicitly state that baselines will move (Grote, 2011). However, this
611 conclusion can be inferred from certain provisions that describe under which conditions certain
612 limits are fixed, which would in turn mean how under other situations the baselines would be
613 temporary. This ambulatory nature of baselines was emphasized by the U.S Supreme Court
614 which stated that “heretofore or hereafter modified by natural or artificial means” (United States
615 v. California, 382 U.S.448, 449 (1996), although the U.S is not a State party of UNCLOS). The
616 outer limit of each maritime zone depends on the baseline from which it is determined by a “line
617 every point of which is at a distance from the nearest point of the baseline equal to the breadth of
618 the maritime zone”. (Art.4, UNCLOS). Therefore, if the baselines move the maritime zones will
619 also move.
620
621 The baselines that are most threatened by rising sea levels are low-tide elevations, fringing reefs,
622 riverbanks and islands. Straight baselines are affected by sea level rise only in the points that fix
623 the straight baselines to the land, and mainly for the cases when they are fixed on soft sediments
624 or low-lying areas. In order to solve the problem of moving baselines, mainly relating to the
625 problems of atolls, several authors have suggested solutions according to current law frameworks
626 or have sometimes proposed the creation of new rules (Rayfuse, 2010). Regarding a proposed
627 amendment of the current law, Soons (1990) proposes the fixing of baselines by stating that:
628
629 “Coastal states are entitled, in the case of landward shifting of the
630 baseline as a result of sea level rise, to maintain the outer limits of the
631 territorial sea and of the exclusive economic zone where they were located
632 at a certain moment in accordance with the general rules in force at that
633 time.”
634
635 More recently, Hayashi (2010) proposed an amendment to the UNCLOS:

23
636
637 “A coastal State may declare the baselines established in accordance with
638 the provisions of UNCLOS as permanent once it has shown them on charts
639 of an adequate scale or described them by a list of geographical
640 coordinates, and given due publicity thereto, notwithstanding subsequent
641 changes in geographic features of coasts or islands caused by climate and
642 natural processes.”
643
644 However, although such propositions might be of some interest to the case of Vietnam, they are
645 not necessary for the case of Bangladesh, as deltas are regulated by Art 7 (2) and thus clearly not
646 ambulatory in nature. Nevertheless, it is possible that, if the delta was to retreat considerably,
647 others States could claim that the real situation no longer represents the cartographical maps at
648 that future time and that such areas have become “high seas”. However, as the current UNCLOS
649 is explicit in the point on “notwithstanding subsequent regression of the low-water line” the legal
650 argument would be very weak.
651
652 However, the result of such a scenario would be an increased discrepancy between the
653 “geographical” and “legal” maps of the planet. For example, it would be possible for future
654 satellite images and geographical maps to show a present-day delta as sea, whereas the registered
655 legal/political charts would still show that same area as land. At the heart of this problem is the
656 inability of humans to see the true dynamism of the planet, especially from a legal point of view,
657 which normally assumes that land areas are permanently fixed.

658 6. Conclusions

659
660 The IPCC 5AR (2013) recognized that sea level rise will have important consequences for
661 deltaic regions around the world, which could be flooded if no adaptation countermeasures are
662 implemented. These can include the erection of sea dykes, gradually making these areas similar
663 to the Netherlands nowadays, which would allow areas below sea level to continue to be used for
664 agriculture and human settlements. If no such adaptation measures are implemented, then the
665 part or all of the deltas might be submerged, though some sections could be protected and

24
666 become islands where the descendants of present day inhabitants could live and exploit the
667 surrounding flooded lands.
668
669 If such adaptation measures are not undertaken and deltas are flooded, States claiming deltaic
670 areas through Art. 7 (2) of UNCLOS would continue to be able to claim sovereignty over their
671 current lands and maritime zones in exactly the same way as they do nowadays, and even
672 flooded lands would legally continue to be catalogued as land. In this sense, Art. 7 (2) explicitly
673 expressed that baselines for deltaic areas do not change even if land retreats, unless the coastal
674 State decides to resurvey the baselines, and hence little discussion appears possible on this point.
675 However, for the case of coastal States making claims under Art. 7. (1) matters could be
676 significantly different, and could create some level of confusion as to the status of maritime
677 zones and islands.
678
679 Such discussions clearly highlight the need for States which have significant delta areas to
680 carefully consider the adaptation strategies they will adopt against future climate change and sea
681 level rise. It is likely that as countries continue to develop economically they will have higher
682 financial capabilities to build defences, and that eventually deltas can be protected in the same
683 way as the Netherlands is nowadays. The alternative is likely to encourage confusion, with
684 geopolitical and legal maps increasingly deviating from satellite images due to the current nature
685 of UNCLOS and the claims that countries make under it.

686 References

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