（2018010105）
Tuvalu is an archipelago country located in the southern Central Pacific Ocean, consisting of 9 ring-shaped small coral islands, making it the second smallest island country in the world and the fourth smallest country in the world. The country is resource-poor, barren and faces the threat of "dead nation" from rising sea levels. Tuvalu formally ratified its accession to the United Nations Convention on the Law of the Sea in 2002, and in 2012 issued a number of legal norms such as the Law on the Sea Area, the Archipelago Baseline Declaration, and the Territorial Sea Baseline Declaration, and established maritime boundaries in agreements with neighboring countries (Kiribati, France, Fiji, etc.). This article is based on the U.S. Department of State's LIS Report No. 139 to analyze Tuvalu's relevant archipelago and other maritime claims and boundaries in accordance with Tuvalu's Maritime Areas Act of 2012 and Tuvalu's Archipelago Baseline Statement and Territorial Sea Baseline Statement issued in 2012.
Overview of Tuvalu
Tuvalu is the second smallest island nation in the world and the fourth smallest country in the world, located in the southern Central Pacific Ocean, bordered by Fiji to the south, the Wallis and Futuna Islands (France) to the southeast, Kiribati to the north and east, and Tokelau (New Zealand) to the east. Tuvalu is made up of nine small coral islands in the shape of a ring, the main island being Funafuti, the largest island and home to the capital and more than half of Tuvalu's population.
Tuvalu's extremely low terrain is a serious threat to rising temperatures and sea levels, putting the country at risk of sinking to the bottom of the sea. Tuvalu is resource-scarce and the land is barren, with only a few plants to grow and few natural resources.
In November 2001, Tuvalu's leaders said in a statement that their efforts to combat sea-level rise had failed and that the country's population would be gradually evacuated and the whole country would be relocated to New Zealand.
2. Tuvalu's maritime claims
(1) Baseline
Section 7 of Tuvalu's 2012 Marine Areas Act provides for the use of archipelago baselines and normal baselines (including coral reefs), while delineating archipelago baselines surrounding its three islands (Funafuti, Nukuftau and Nukulaile) and normal baselines for the remaining six islands (Nanumea, Nanumanga, Newto, Nui, Wayitupu and Nurakita).
1. Archipelago baseline
UNCLOS contains certain provisions relating to archipelagic States. Article 46 provides that "archipelagic State" means "a State consisting entirely of one or more archipelagos and may include other islands". An "archipelago" is defined as "a group of islands comprising parts of islands, interconnected waters and other natural features that are closely interrelated to form an inherent geographical, economic, and political entity, or as they are historically considered." ”
Only "archipelagic States" can delimit the baseline of the archipelago. Article 47 of UNCLOS sets out the criteria to be observed by archipelagic States in determining the baselines of their archipelago. In accordance with article 47, paragraph 1, an archipelagic State may draw a straight archipelago baseline, connecting the outermost islands of the archipelago and the outermost point of dry reefs, provided that such baselines include the main islands and areas of water, including atolls, with a ratio of 1 to 9 to 1 to 9 to 1 land area. In addition, the length of any of the baseline segments shall not exceed 100 nautical miles, unless 3 per cent of the total number of baselines may be up to 125 nautical miles in length (article 47.2). The supplementary provision to article 47 states that such baselines should not deviate significantly from the general layout of the archipelago; With the exceptions noted, such baselines should not be plotted using low-tide elevations; And this baseline system should not be applied in such a way as to sever the link between another State's territorial sea and the high seas or exclusive economic zone (EEZ) (Articles 47.3-47.5).
Tuvalu is an archipelago nation and the Tuvalu Islands Baseline Statement (2012) sets out the archipelago baselines for Funafuti, Nukufetau and Nukulaelae, and publishes the base point coordinates of the archipelago baselines and the length of each baseline segment. The Archipelago Baseline System consists of 60 segments with lengths ranging from 0.01nm (TVBP0355-TVBP0356 and TVBP0359-TVBP0360) to 67.57nm (TVBP0387-TVBP0388) for a total length of 262.55nm. Four of these segments connect the three atolls, and the rest connect the outermost dry reef points of each atoll in very short line segments.
Schematic map of the Tuvalu Islands baseline
The archipelago baseline delimitation of Tuvalu is consistent with the ratio of water to land area under article 47.1 of UNCLOS. With a total area of 3,878 square kilometres, a water area of 3,426 square kilometres and a land area of 452 square kilometres, Tuvalu has a water-to-land ratio of approximately 7.58:1, which meets the UNCLOS requirement that the ratio of water-to-land area not exceed 9:1.
At the same time, according to the United States Department of State's LIS study, Tuvalu's archipelago baseline designation also satisfies the requirement of article 47 (2) (3) (4) (5) that no baseline segment exceeds 100 nautical miles in length (article 47.2). The shape of the baselines did not deviate significantly from the general contours of the Islands (article 47.3) and none of the baselines were drawn from the low-tide elevations (articles 47,4). The delimitation of the baseline also does not cut off the territorial sea of another State from the high seas or exclusive economic zone (paragraph 47.5).
The archipelago baseline system set out in Tuvalu's 2012 declaration of archipelago baselines is therefore consistent with article 47 of UNCLOS.
Tuvalu Islands baseline section
2. Normal baseline
Article 5 of UNCLOS provides that the normal baseline "is the coastal low tide line indicated on large-scale charts duly recognized by the coastal State". Article 6 of the Convention deals with the case of "islands located on atolls or islands with shore reefs" and provides that, in such cases, "the baseline from which the breadth of the territorial sea is measured is the low-tide line of the reef shown in appropriate symbols on charts duly recognized by the coastal State".
Tuvalu's Statement on Baselines in Tuvalu's Territorial Sea (2012) provides the geographic coordinates of the baseline points of six Tuvalu's islands: Nanumea, Nanumanga, Niutao, Nui, Vaitupu and Niulakita, which are "islands located on atolls or islands with a ring of shore reefs".
According to section 7(1) of the Marine Areas Act 2012, for these islands, the baseline "shall be the low tide line on the offshore side of the reef at the edge of the coast of any part of Tuvalu or the boundary of any lagoon waters adjacent to any part of the coast, or, in the absence of a reef, the low tide line of the coast itself", an approach consistent with the normal baseline requirement in articles 5 and 6 of UNCLOS, i.e. "unless otherwise provided in this Convention, The normal baseline for measuring the width of the territorial sea is the coastal low tide line indicated on large-scale charts officially recognized by the coastal State" and "in the case of islands located on atolls or islands with shore reef rings, the baseline for measuring the width of the territorial sea is the low-tide line of the reef shown in appropriate marks on the officially recognized nautical chart of the coastal State".
(b) the territorial sea, contiguous zone, exclusive economic zone, continental shelf
1. Delimitation of the territorial sea, contiguous zone, exclusive economic zone, continental shelf
According to the Marine Areas Act 2012, Tuvalu's archipelago waters include all waters surrounded by archipelago baselines, and internal waters include waters from normal baselines to the land side and reef baselines, while Articles 6, 10 and 11 provide for Tuvalu's territorial sea of 12 nautical miles, a contiguous zone of 24 nautical miles and an exclusive economic zone of 200 nautical miles from which the baselines are delineated.
The continental shelf of 200 nautical miles is regulated in article 12 of the Maritime Areas Act. With regard to the continental shelf beyond 200 nautical miles, section 12(3) of the Act provides that Tuvalu may declare the outer limits of its continental shelf on the recommendation of the Commission on the Limits of the Continental Shelf (CLCS). On 7 December 2012, Tuvalu, France and New Zealand (Tokelau) made a joint submission to CLCS concerning the continental shelf in the Roby Ridge area to clarify the outer limits of the continental shelf of the three States in the Roby Ridge area.
Tuvalu's 2012 Declaration on the Outer Limits of the Territorial Sea, the 2012 Declaration on the Outer Limits of the Exclusive Economic Zone and the 2012 Declaration on the Outer Limits of the Continental Shelf set out the geographical coordinates (illustrated with illustrations) that define the outer limits of these maritime areas. The width of its territorial sea, exclusive economic zone and continental shelf is consistent with the limits permitted by UNCLOS.
2. Rights to the contiguous zone, the exclusive economic zone and the continental shelf
With regard to rights in the contiguous zone, exclusive economic zone and continental shelf, Tuvalu describes its rights in Articles 14 and 15 of the Maritime Areas Act 2012, which are consistent with the relevant provisions of UNCLOS.
According to the Act, Tuvalu has rights in the contiguous zone to: prevent breaches of its customs, fiscal, immigration and health laws and regulations on its land, territorial sea and archipelagic waters; punish any such violations; All relevant laws of Tuvalu extend accordingly to the contiguous zone.
Within the exclusive economic zone, Tuvalu has sovereign rights: exclusive sovereignty for the exploration and exploitation, conservation and management of natural resources, whether living or not, in the waters overlying the seabed and the seabed and its subsoil; Exclusive sovereignty for the purposes of economic exploitation and exploration of the area, such as the production of energy from water, currents and wind; Exercise within 200 nautical miles of its maritime territory, including the continental shelf, the exclusive right to authorize, manage and assume the construction, operation and use of artificial islands, installations and structures of all kinds; Enjoy other rights conferred or recognized by international law.
Within the continental shelf, Tuvalu has sovereign rights for the purpose of exploring and exploiting its natural resources, as well as the exclusive right to authorize and manage drilling for various purposes. Within its exclusive economic zone and continental shelf, Tuvalu has exclusive rights to construct, authorize and manage the construction, operation and use of artificial islands, facilities and structures; Enjoy other rights conferred or recognized by international law.
Section 16 of the Tuvalu Act also sets out the rights of other States in the waters of Tuvalu. Specifically, article 16, paragraph 5, of the MPPO provides that "Subject to this Law, any other law and international law of Tuvalu, all States shall enjoy in the exclusive economic zone freedom of navigation and overflight on the high seas, freedom to lay submarine cables and pipelines and all other internationally lawful uses of the sea in connection with those freedoms". This provision is consistent with article 58, paragraph 2, of UNCLOS. Article 16, paragraph 2, of the Act further provides for the freedom to lay submarine cables and pipelines, "All States may lay submarine cables and pipelines on the continental shelf in accordance with international law." "The relevant provisions of international law relating to the laying of submarine cables and pipelines on the continental shelf are found in article 79 of UNCLOS, and the provisions of Tuvalu are consistent with the requirements of UNCLOS.
(3) Freedom of navigation and overflight
The Tuvalu Marine Areas Act 2012 recognises certain navigational rights in Tuvalu's maritime areas, including the right of archipelagic sea lane passage through archipelagic waters and the right of innocent passage through archipelagic waters and territorial seas. Section 16(1)(a) of the Act provides that Tuvalu may designate the continuous, expeditious and unimpeded passage and overflight of foreign vessels and aircraft over sea lanes and routes in the waters of the Islands and adjacent territorial seas, and provides for a system of diversion of navigation to ensure the safe passage of ships through the narrow lanes of any such sea lanes. The archipelagic State may designate appropriate sea lanes and navigation regimes, subject to article 53, paragraph 9, of UNCLOS, which provides that "the archipelagic State shall submit such proposals to the competent international organization with a view to their adoption". As the competent international organization, the International Maritime Organization (IMO) "may adopt the sea lanes and traffic separation regimes agreed with the archipelagic States" in the following cases. Thereafter, the archipelagic State may designate, regulate or replace these sea lanes and navigation regimes".
As of May 2014, Tuvalu has not designated sea lanes or prescribed a diversion regime, and has not submitted recommendations in this regard to IMO. Pursuant to Article 53(12) of UNCLOS, Section 16(3) of Tuvalu's Maritime Areas Act 2012 provides that "pending the designation of sea lanes and routes, the rights of navigation and overflight referred to in subsection (2) (describing the passage of archipelagic sea lanes) may be exercised on all routes normally used for international navigation and overflight." ”
3. Maritime boundaries
Tuvalu has a maritime boundary with Kiribati and temporarily with France (Wallis and Futuna). As of May 2014, Tuvalu has not delimited a maritime boundary with Fiji.
(i) Tuvalu and Kiribati
The boundary between the exclusive economic zone and the continental shelf is defined by the maritime boundary agreement concluded between Tuvalu and Kiribati in 2012, which consists of geodesic lines connecting 20 basis points and a total length of about 420 nautical miles. The boundary separates the sea formed by the islands of Nanumea and Niutao (Tuvalu) and Tabiteuea, Tamana and Arorae (Kiribati).
(ii) Tuvalu and France (Wallis and Futuna)
Tuvalu's maritime boundary agreement with France (Wallis and Futuna) is provisional. The provisional boundary separates Nukulaelae and Nuilakita (Tuvalu) to the north from Wallis and Futuna (France) to the south. The diplomatic note between the two countries recognized the equidistance principle as the basis of the boundary, but the maritime boundary agreement did not establish geographical coordinates. Tuvalu's 2012 declaration sets out geographical coordinates (with illustrative maps) that determine the temporary outer limits of Tuvalu's exclusive economic zone and continental shelf between Tuvalu and the Wallis and Futuna Islands.
(iii) Tuvalu and Fiji
With regard to Fiji, Tuvalu's 2012 statement sets out geographical coordinates (with illustrative maps) that define the temporary outer limits of Tuvalu's exclusive economic zone and continental shelf in the area between Tuvalu and Fiji. As of May 2014, Tuvalu has not delimited a maritime boundary with Fiji.
Schematic map of the maritime limits and boundaries of Tuvalu
Fourth, sea level rise: Tuvalu's island attributes
The landscape of Tuvalu has been dramatically altered by rising sea levels due to global warming. Tavala Katea, chief forecaster at the Tuvalu Meteorological Authority, said Tuvalu had shrunk by 2 per cent since 1993. Between 1993 and 2017, Tuvalu's sea level rose by a total of 9.18 centimetres, and according to this figure, at least 60% of Tuvalu will be completely submerged in the sea after 50 years, which means that Tuvalu will not have any land exposed to the sea at high tide.
In November 2001, Tuvalu's leaders said in a statement that their efforts to combat sea-level rise had failed and that the country's residents would be gradually evacuated and the whole country would be relocated to New Zealand, but more than 20 years later, Tuvalu had not migrated from the country, only some people had migrated out, and the "national relocation" had not gone smoothly. Uale Taleni, ambassador of Tuvalu's embassy in Fiji, provided a set of data to this reporter: at least 6,000 people have left Tuvalu to emigrate abroad, while only 10,000 people still live in Tuvalu. Today, Tuvaluans can barely make ends meet through fishing and exporting coconut products, and all other necessities such as vegetables and fruits need to be imported.
From the perspective of the constituent elements of an island as defined in the Convention, a maritime topography to be classified as an island requires three elements at the same time: :(1) surrounded by water; (2) above the water surface at high tide; (3) Naturally occurring terrestrial areas. At present, Tuvalu still maintains its island status, but as sea levels rise, the recognition of island attributes is in jeopardy. At the current trend of rising sea levels, Tuvalu will not have a single piece of land exposed to the sea in 50 years' time.
According to the interpretation of article 121 of the Convention, the claim of an island or reef depends on: the objective carrying capacity of the island or reef; whether a stable human community can be maintained in the natural state; Whether economic activities that depend on external resources or pure extractive industries. "Human community" shall be understood to mean the permanent or at least permanent habitation of human beings, and "maintenance of human community" means that the maritime terrain should have the ability to sustain human habitation permanently or at least permanently, i.e. the resources in the land area of an island or reef or its territorial sea should sustain permanent or at least permanent human habitation.
However, according to the facts, Tuvalu's existing living conditions are difficult, and the "ability to sustain human habitation for a long time" is doubtful, and the people currently living on the island are gradually migrating to New Zealand and other countries. Moreover, the depression is already below sea level, all the seawater seeps out and it is impossible to grow crops, and the vast majority of the food needed by the people of Tuvalu depends on imported and foreign resources, and it is difficult to meet the requirements of the island's "natural formation" - there should be no direct "human interference". Based on this, it will be difficult to prove in the future that Tuvalu has the ability to maintain a stable human community in its natural state, which will inevitably call into question Tuvalu's completely island nature.
V. Conclusion
As an archipelagic State, Tuvalu's archipelago baseline system around its three islands is consistent with UNCLOS (art. 47), and the methodology used for its six islands is also consistent with the relevant provisions of the Convention (arts. V and VI). The legislative provisions of Tuvalu relating to other maritime zones, including the territorial sea, contiguous zone, exclusive economic zone and continental shelf, including freedom of navigation and overflight and the rights of other States in Tuvalu's maritime areas, are consistent with international law as reflected in UNCLOS. At the same time, Tuvalu, as a country seriously threatened by rising sea levels, may face controversy over its island status, and because of its own economic poverty and lack of resources, the Pacific island nation will struggle to survive and thrive in the future.