Problems in the Law of the Sea Relating to Insular Formations in Ice-bound Seas and Polar Regions of the Arctic, with Particular Reference to Judicial Dicta in US v Alaska (1996) and to Recent Discoveries of New Arctic Islands (such as ‘Yaya’) due to Glacial Melt

Abstract

It is generally accepted that UNCLOS applies to polar seas. However, particular problems can arise thereunder in such seas because of their ice-bound environment. One such regional problem is because global warming causes particular issues for insular formations there; not only in terms of the very definition of ‘islands’ (e.g., is frozen sea water equivalent to “land” in terms of above-surface appearance under Art. 121 [1] of UNCLOS?); but also in terms of their lawful use in generation of maritime zones therefrom. For example, in recent years new above-surface formations have been discovered in the Arctic (such as ‘Yaya Island’) because of glacial melting and sudden visibility. These formations may potentially generate new maritime zones for their owner State (albeit not EEZs/continental shelves because of Art. 121 [3] of UNCLOS); and may be opportunistically used in negotiation of maritime polar boundaries (as in the case of Tobias Island off Greenland). Where tips of glacial capes have been used as straight baseline points, any remaining terrestrial formations may be a useful ‘fall-back’ position on ice melt-down. Typically low-lying new terrestrial features (now uncovered by glaciers) may have no prospect of long-term existence above sea level; and some may have inherent mobility (as is a particular Arctic problem with ‘barrier islands’). The other side of the coin of polar ice melt-down is that existing low-lying and small islands will likely disappear with increasing sea levels; so causing problems of continued use as basepoints for generation of maritime zones; and a potential duty to retract maritime claims.