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International Law and Sea Level Rise

Report of the International Law Association Committee on International Law and Sea Level Rise

Davor Vidas, David Freestone and Jane McAdam

Abstract

This issue contains the final version of the 2018 Report of the International Law Association (ILA) Committee on International Law and Sea Level Rise, as well as the related ILA Resolutions 5/2018 and 6/2018, both as adopted by the ILA at its 78th Biennial Conference, held in Sydney, Australia, 19–24 August 2018.

In Part I of the Report, key information about the establishment of the Committee, its mandate and its work so far is presented. Also, the background for the establishment of the Committee is explained, drawing on: (a) conclusions of the ILA Committee on Baselines and the related ILA Resolution 1/2012; (b) scientific assessments, such as by the Intergovernmental Panel on Climate Change (IPCC), regarding on-going sea level change and projections of future rise; and (c) more broadly, scientific findings regarding the profound changes taking place in the Earth system since the mid-20th century and predictions for their acceleration in the course of the 21st century. All of this has prompted the need, and provided the Committee with the relevant context, for the study of the options and elaboration of proposals for the development of international law.

Part II of the Report addresses key law of the sea issues through a study of possible impacts of sea level rise and their implications under international law regarding maritime limits lawfully determined by the coastal States, and the agreed or adjudicated maritime boundaries. This includes the study of the effects of sea level rise on the limits of maritime zones, and the analysis of the subsequently emerging State practice regarding the maintenance of their existing lawful maritime entitlements. The guiding consideration in developing the proposals and recommendations by the Committee for the interpretation and development of international law regarding the maritime limits and boundaries impacted by sea level rise has been the need to avoid uncertainty and, ultimately, facilitate orderly relations between States and contribute to the maintenance of international peace and security. A related ILA Resolution 5/2018 addresses maritime limits and boundaries impacted by sea level rise.

Part III of the Report addresses international law provisions, principles and frameworks for the protection of persons displaced in the context of sea level rise. The notion of ‘human mobility’ is used as an umbrella term that refers to all relevant forms of the movement of persons and, in the context of this report, covers displacement (which is forced), migration (which is predominantly voluntary), planned relocation and evacuations (which both may be forced or voluntary). This part of the report takes the form of principles entitled the ‘Sydney Declaration of Principles on the Protection of Persons Displaced in the Context of Sea Level Rise’ with commentaries. Accordingly, ILA Resolution 6/2018, which also contains the Sydney Declaration of Principles, addresses the protection of persons displaced in the context of sea level rise and contains recommendations by the Committee to this effect.

Baselines under the International Law of the Sea

Reports of the International Law Association Committee on Baselines under the International Law of the Sea

Coalter G. Lathrop, J. Ashley Roach and Donald R. Rothwell

Abstract

Between 2008–2018 the International Law Association (ILA) Committee on Baselines under the International Law of the Sea produced two reports on the normal baseline (2012) and straight and archipelagic baselines (2018). The Sofia Report (2012) is organised around the interpretation of Article 5 of the 1982 United Nations Convention on the Law of the Sea (LOSC) concerning the normal baseline. Under the leadership of Committee Chair Judge Dolliver Nelson, the Committee was asked to identify the existing law on the normal baseline and to assess the need for further clarification or development of that law in light of substantial coastal change. The Report applies the rules of treaty interpretation, including an assessment of the ordinary meaning of the terms of the treaty and, because those leave the meaning ambiguous, the preparatory works of the normal baseline provision. The Report then turns to address the application of the existing law to changing coasts and concludes that the law on the normal baseline is inadequate to address problems of substantial territorial loss. The Sydney Report (2018) is organised around a common methodology in assessing Articles 7, 8, 10, 13, 14 and 47 of the LOSC concerning straight baselines, closing lines, and straight archipelagic baselines. Each analysis seeks to provide some background to the drafting of the Article, analysis of the text, assessment of state practice, relevant case law, and a summary of the commentary by publicists. The Report then moves to address certain cross-cutting or global issues that are relevant to a contemporary analysis of straight and archipelagic baselines, before reaching conclusions.

Henrik Ringbom, Brita Bohman and Saara Ilvessalo

Abstract

The main environmental problem of the Baltic Sea is that too many nutrients are being released to the sea (eutrophication). As many of the ‘easy’ measures to reduce the load from land-based sources have been put in place, increasing attention is given to measures to reduce the release of nutrients from the seabed sediments through the use of various technologies at sea, i.e. ‘sea-based’ measures.

There is no specific legal framework available for sea-based measures, but a number of provisions set general obligations to protect and preserve the marine environment.

The analysis indicates that neither the type of measure nor the geographical location of the activity is of decisive importance for the legal rights and obligations involved. Instead, the legality of any sea-based measure depends on the risks they present balanced against their benefits. There is considerable uncertainty on all these issues, and the matter is further complicated by the fact that both the risks and the benefits of the measures relate to their environmental impact.

It is recommended that a regional risk-based framework is established for assessing when and how further research on sea-based technologies can be undertaken in the Baltic Sea.

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John Abrahamson

Abstract

The Arctic Ocean region presents certain challenges to peaceful cooperation between states, particularly in the locations where ocean boundaries and ownership of the related resources are disputed. The establishment of Joint Development Zones (JDZs) for the development of offshore oil and gas resources in the Arctic Ocean can facilitate international cooperation over resource development where there are competing claims. These claims are generally based on continental shelf jurisdiction under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). There are several alternative dispute resolution measures available under UNCLOS; however, a number of states have preferred to adopt a JDZ as an interim measure to allow development. The significance of JDZs for the Arctic Ocean region is that they can allow peaceful cooperation and development where the specific circumstances of Arctic claims make it difficult for the respective states to agree on the maritime boundary.

The Corsairs’ Longest Voyage

The Turkish Raid in Iceland 1627

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Þorsteinn Helgason

During the summer of 1627, corsairs from Algiers and Salé, Morocco, undertook the long voyage to Iceland where they raided the eastern and southern regions of the country, resulting in the deaths of around thirty people, and capturing about 400 further individuals who were sold on the slave markets. Around 10% of the captives were ransomed the next twenty years, mostly through the efforts of the Danish monarchy.
In this volume, the history of these extraordinary events and their long-lasting memory are traced and analysed from the viewpoints of maritime warfare, cultural encounters and existential options, based on extensive use of various sources from several languages.

Arctic Ocean Shipping

Navigation, Security and Sovereignty in the North American Arctic

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Donald R. Rothwell

In Arctic Ocean Shipping, Donald R. Rothwell assesses contemporary navigation, security and sovereignty issues in the North American Arctic. Shipping in the Arctic Ocean is becoming a critical legal, geopolitical and security issue as a result of climate change and increased interest from non-Arctic States such as China. The law of the sea provides the key legal framework for the regulation of Arctic Ocean shipping, and has been relied upon by Canada and the United States to develop the legal regime for the Northwest Passage and the Bering Strait. Navigation within the EEZ and high seas in the Arctic is also becoming more strategically significant as a result of climate change. Multiple issues are raised with respect to maritime security and the adequacy of the existing legal regime, including how Canada and the United States will respond to interest being expressed in Arctic shipping by Asian States.

Arctic Ocean Shipping*

Navigation, Security and Sovereignty in the North American Arctic

Series:

Donald R. Rothwell

Abstract

Arctic Ocean shipping is on the brink of becoming a critical legal, geopolitical and security issue as a result of the impacts of climate change and increased interest in the Arctic Ocean from States that traditionally did not operate within the region. The law of the sea through unclos provides the key legal framework for the regulation of Arctic Ocean shipping, supplemented and extended by related imo conventions and national laws and regulations. This framework has been relied upon by the two major North American Arctic States – Canada and the United States – to develop the legal regime for the Northwest Passage and the Bering Strait. There have been historic disagreements between Canada and the United States with respect to the Northwest Passage, and while not resolved they have to date been managed through legal and political responses. Other straits may become more strategically significant as a result of climate change, including Nares Strait between Canada and Greenland. eez and high seas Arctic Ocean navigation by foreign flagged vessels also needs to be anticipated. Multiple issues are raised with respect to maritime security and the adequacy of the existing legal regime, including how Canada and the United States will respond to interest being expressed in Arctic shipping by Asian States such as China.