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Rolf Einar Fife

Abstract

The exclusive rights of the coastal state over the natural resources in the exclusive economic zone (EEZ) coexist with the high seas freedoms of communication of other states. This particular coexistence of state competences is a distinguishing feature of the 200-mile zones. Articles 56(2) and 58(3) United Nations Convention on the Law of the Sea (LOSC) require that coastal states have ‘due regard’ to the rights, freedoms and duties of other states in the zone, and vice versa. It is suggested that the two provisions are not ‘dormant’. State practice indicates the contrary, as well as future paths for clarification. The obligation to have ‘due regard’ constitutes a linchpin in the conceptual underpinnings of the EEZ, and requires an interpretation of the concrete provisions that are applicable, in keeping with the Convention’s nature as a strategic ‘package deal’ with a particular bearing on international peace and security.

Geneviève Bastid Burdeau

Abstract

Due regard appears as the key notion to articulate rights recognized by the LOSC to coastal states in their EEZ and the rights of third states. Little attention is paid by the LOSC to the relations between third states conducting activities in the EEZ of a coastal state apart from the laying of cables. Third states enjoy all freedoms of the high seas compatible with the rights expressly granted to the coastal state. Although no specific provision regulates the relations between third states in the use of these rights, it is argued that the obligation of due regard prevailing in the high seas under Article 87(2) should also apply between third states in the EEZ of a coastal state. However, for military activities not listed in Article 87(1), the answer is uncertain due to the opposite views of states concerning such activities by third states in their EEZ.

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.

Xueping Li

Unique geological and geographical characteristics and immense economic potential have made Arctic governance an issue of global attraction, as evidenced by China’s recently published first Arctic policy. One important part of Arctic governance is the UNCLOS, and China has to evaluate its Arctic involvement from the perspective of this treaty. While a number factors motivate China’s Arctic interests, the contemporary legal regime of Arctic governance is focused on respect for the sovereignty and sovereign rights of the Arctic States as well as the UNCLOS principles. On its journey to Arctic governance, China must comprehensively elaborate on its legal choices by thinking more carefully of the UNCLOS in order to reply to the comments or criticism from other countries.

Paula Kovari

The impacts of climate change as well as the increase of economic activities call for effective governance of the Arctic Region. The Arctic Council is the predominant intergovernmental forum in the region. The rotating chairmanships of the Member States have a defining role in the work of the Council. This paper compares the Arctic Council chairmanship programmes of the five Nordic Countries with the organisation’s outputs following the two-year chairmanship periods as expressed in the ministerial Declarations and the SAOs’ reports. The paper finds that the discourse on the studied topics has developed greatly over time and despite the similarities between the countries’ foreign politics in general, there are some notable differences in the way the countries see the future of the Arctic – for example through the region’s vast natural resources or as a unique environment of the Arctic biodiversity. The conclusion of this research is that even though the chair cannot take all the credit for its accomplishments during the chairmanship period in question, nor can it be blamed for all possible failures, the chair’s work does leave its mark on the Arctic Council’s performance.