Ecological changes justifying termination or revision of EEZ and EFZ boundaries

Abstract

Treaties, establishing boundaries to exclusive economic or exclusive fisheries zones, are generally based on environmental and economic circumstances. They delimit maritime entitlements, which are dependent upon coastal geography and they must, as a matter of law, represent equitable solutions. All perpetual treaties are based on the assumption that the circumstances leading to the conclusion of a treaty remain current as long as the treaty is enforceable. However, climate-related changes - such as sea level rise, coastal erosion, extreme weather events, ocean warming and ocean acidification - are altering the environmental circumstances that are essential to many maritime boundary agreements.An unforeseen fundamental change of circumstances can be invoked as grounds for terminating a treaty when the change relates to an essential basis of the treaty and radically transforms the obligations still to be performed. However, a fundamental change cannot justify termination of a treaty if it is caused by the party invoking it or if the treaty establishes a boundary. This rule is codified in Article 62 of the Vienna Convention on the Law of Treaties.Treaties delimiting sovereign rights to fisheries are not actual boundary treaties because the travaux préparatoires suggest that the boundary exclusion covers only boundaries delimiting territorial sovereignty. Furthermore, the reason for excluding boundary treaties - the need for permanence and stability - is less pertinent for maritime frontiers that fluctuate until settled through treaties or adjudication. Therefore, maritime boundaries can be subject to termination when their essential basis is affected by fundamental environmental changes.