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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.

Arctic Ocean Shipping

Navigation, Security and Sovereignty in the North American Arctic

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.

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.

Douglas R. Burnett and Lionel Carter

If one uses Facebook, Facetime, Skype, Netflix, or any application of the internet internationally, a submarine cable is involved. Fibre optic cables bind the world together from governments, banks, shipping, airlines and other major logistic industries to homes and personal electronic devices. Server farms maintained by major telecom and content companies allow vast amounts of data to be stored and retrieved from the cloud. Not often appreciated is the fact that these server locations worldwide are connected by submarine fibre optic cables. In this sense, the cloud is beneath the sea. While submarine communication cables have been in steady use since 1850, their preeminent place in the modern world has never been as dominant and personal as now. Since 1884, this critical international infrastructure has rested upon international treaties, now reflected in universally accepted provisions of the 1982 United Nations Convention on the Law of the Sea (unclos) that provides for freedoms to lay and maintain international submarine cables. Recently, calls have mounted in the context of marine biodiversity beyond national jurisdiction (bbnj) for centralized control of submarine cables and for express or de facto diminishment of the freedoms related to them that have served the world’s peoples for so long. This monograph examines the time proven importance of the existing international treaties, the largely peer review science on the environmental interaction of submarine cables with high seas environments, and the current submarine cable issues in the context of the bbnj debates.

The Other Australia/Japan Living Marine Resources Dispute

Inferences on the Merits of the Southern Bluefin Tuna Arbitration in Light of the Whaling Case

Andrew Serdy

In 2000 an arbitral tribunal formed under Annex vii to the United Nations Convention on the Law of the Sea denied its own jurisdiction to hear the case brought against Japan by Australia and New Zealand over Japan’s unilateral experimental fishing programme for southern bluefin tuna. Despite the criticism the tribunal’s reasoning attracted, it was widely supposed that the applicants would have failed on the merits because of the reluctance of international courts and tribunals to delve into scientific matters, as would have been necessary with the dispute’s underlying cause being the parties’ scientific disagreements regarding both the tuna stock itself and the nature and risks of the programme. In 2014, however, the International Court of Justice showed no such reticence in deciding in Australia’s favour the case against Japan’s scientific whaling, based partly on flaws it identified in the design of that experiment. Reviewing the evolution in the tuna experiment’s design, the propositions it was designed to (dis)prove and the use to which Japan proposed to put that proof, this paper suggests that similar factors were at play in both disputes and that a similar outcome of the tuna case, though not inevitable, would have been amply justified.

The Other Australia/Japan Living Marine Resources Dispute

Inferences on the Merits of the Southern Bluefin Tuna Arbitration in Light of the Whaling Case

Series:

Andrew Serdy

In 2000, the case brought by Australia and New Zealand against Japan's unilateral experimental fishing programme for southern bluefin tuna controversially failed to reach the merits for lack of the arbitral tribunal’s jurisdiction. It was widely supposed that it would ultimately have failed anyway because of international courts’ reluctance to consider scientific matters, the dispute's underlying cause being the parties' scientific disagreements regarding both the tuna stock itself and the nature and risks of the experiment. In 2014, however, the ICJ decided in Australia's favour the case against Japan's scientific whaling, based on flaws in the design of that experiment. Reviewing the tuna experiment's evolving design, the propositions it was to (dis)prove and the use Japan intended for that proof, Andrew Serdy suggests that similar factors were at play in both disputes and that a similar outcome of the tuna case, though not inevitable, would have been amply justified.