A Legal Analysis of UNCLOS’ Common Heritage of Mankind Principle and ‘for the benefit of mankind’ Provisions in the Context of the Call for a Deep Seabed Mining Moratorium
By: Samantha Robb
Legal research assistant employed by the Royal Netherlands Institute for Sea Research (NIOZ) for the joint project ‘Protecting deep seabed hydrothermal vent fields through area-based management tools’ led by NIOZ and Utrecht University (the Netherlands Institute for the Law of the Sea (NILOS) and the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL))
Matter commented on: The call for a moratorium on deep seabed mining, common heritage of mankind principle, meaning of ‘benefits’ in the Area regime under Part XI of the 1982 United Nations Convention on the Law of the Sea
The latest International Seabed Authority (ISA) Council meeting took place from 31 October 2022 to 11 November 2022. The Council is working towards finalising the Mining Code, which is a complete set of ISA rules, regulations, and procedures to regulate prospecting, exploration, and exploitation of the Area’s resources (ISA’s Mining Code). The ISA is required to develop the Mining Code under Part XI of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Part XI Implementation Agreement. According to Nauru’s triggering of the two-year rule, the Mining Code should be finalised by June 2023 (ISA, 2021; Blanchard, 2021), although meeting this deadline seems unlikely. The biggest splash made at this recent Council meeting was France’s statement (France Declaration to the ISA, 10 November 2022) supporting France’s President Macron at the United Nations Framework Convention on Climate Change COP27 calling for an outright moratorium (ban) on all deep seabed mining (DSM) in the international seabed (beyond (outer) continental shelves), which is referred to in UNCLOS as ‘the Area.’ France’s statement evoked strong responses from some state delegates, including questioning the legality of a DSM Moratorium.
The Area and its resources are the common heritage of (hu)mankind (CHM) (UNCLOS, article 136). Inherent in the debate over whether DSM should soon commence or be banned (temporarily or permanently) is the question of what benefits humankind currently derive and could derive from the Area. This post assesses UNCLOS’ provisions which (i) establish the Area and its resources as CHM; and (ii) provide for utilising the Area and its resources for the benefit of humankind, in historical and contemporary contexts. In particular, it demonstrates that there have been significant developments in scientific knowledge of the functions of the deep seabed since the negotiations on the UNCLOS (1973-1982). Based on this discussion, this post proposes adopting a holistic and evolutive approach when interpreting ‘benefits’ from the Area and discusses what this means in the context of discussions around a DSM Moratorium.
By: Mana Elise Tugend, Ingrid Solstad Andreassen, Bastiaan Klerk, Nikolaos Gkikas, and Konstantinos Deligiannis Virvos
Matter commented on: NCLOS Conference on Ocean Space, 23-24 November 2022, Tromsø, Norway.
It is commonly known that ocean spaces and marine ecosystems are connected in complex and multiscale ways, but the biological and ecological connectivity of oceans is not sufficiently accounted for in the current legal regime. The UN Convention for the Law of the Sea (LOSC) causes fragmentation of the legal regime by a zonal approach dividing the ocean space into different maritime zones and subsuming each of the fragmented parts to separate legal regimes. The current socio-environmental challenges, including climate change, biodiversity loss, plastic pollution and ocean acidification also raise several systemic challenges pushing for the problematization of the relevant legal framework applied to the ocean space.
Against this background, the Norwegian Centre for the Law of the Sea (NCLOS) organized a two-day conference, from 23-24 November 2022, to discuss the various challenges rising with respect to ocean space. The objective of the conference was to address important questions regarding the current relationship between law, sea and space, and prompt legal scholars to interrogate and problematize the current Law of the Sea and Ocean Governance Framework (LOSOG), the Law of the Sea Convention and its key principles, as well as the spatial-legal architecture delineating ocean space in discrete maritime zones.
The Conference consisted of two keynote presentations provided by Alexander Proelß and Marit Reigstad and five panels, sparking interesting discussions and new insight on the pressing issues currently relating to the zonal architecture of the ocean space. Panel 1 focused on ‘Ocean space and climate change’. Panel 2 examined the theme of ‘Transcending borders: Ecosystem-based [and integrated] ocean governance’. Panel 3 dealt with ‘Spatiality and law across sectors’. The fourth panel tackled the topic of ‘Ocean space, dynamism, and law.’ The last panel focused on ‘Conceptualizing ocean space.’
Matter commented on: A theoretical perspective, criteria, and methods for evaluating the ecosystem approach in national laws and policies.
The ecosystem approach has been part of international environmental law since the 90s. Since then, the Conference of Parties to the Convention on Biodiversity has called upon nation states to implement the approach locally, nationally, and regionally. How has the ecosystem approach been implemented nationally? This blog post suggests and sketches a theoretical perspective, criteria, and methods for evaluating the ecosystem approach in national laws and policies concerning activities. Developing and instigating a discussion on methods for such evaluation could lead to more and improved evaluations, which could further lead to improved uses of the ecosystem approach in laws and policies. The criteria could further be used to operationalize the ecosystem approach.
Matter commented on: 5th Session of the Intergovernmental Conference towards a new treaty on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, Further Refreshed Draft Text, A/CONF.232/2022/CRP.13/Add.1
1 Introduction: IGC5 and the “Further Refreshed Draft Text”
After the long COVID hiatus and the digital intersessional discussions, the BBNJ negotiations re-started in earnest in 2022 with two sessions of the intergovernmental conference (IGC): the fourth and last of the sessions stipulated in the UNGA resolution (A/RES/72/249) that launched the IGC was held in March 2022; and an additional fifth session, inevitable given the state of the negotiations at the end of IGC4 was held in August 2022 (IGC5). While IGC5 was not conclusive, much progress was made on many of the key issues, and a series of revisions of the negotiating text were produced by the Presidency during IGC5 (so called “refreshed” texts), in order to streamline the negotiations. At the end of an intense negotiating session, and amidst renewed commitments to finalize the BBNJ treaty, IGC5 was suspended without a consensus on a text, but with the view of resuming the same fifth session as soon as possible in 2023 (rather than providing for a sixth session of the IGC). This clearly gives the sense of optimism about concluding the negotiations at the resumed session of IGC5, despite disappointment of the parts of many delegations, which gave rise to emotional closing statements, especially on the part of Pacific and Small Island State delegations, for the missed opportunity to close the deal in August, as reported by the Earth Negotiations Bulletin (ENB, p. 10). However, this new pause gives room for some last-minute reflections.
In this blog post, I shall take the opportunity to articulate some concrete suggestions for a meaningful integration of the ecosystem approach (EA) in the BBNJ treaty, by linking its role as one of the overarching principles with the role that strategic environmental assessments (SEAs) may play in its operationalization. The analysis proceeds on the basis of the provisions and formulations contained in the latest draft circulated during IGC5, the further refreshed draft text (A/CONF.232/2022/CRP.13/Add.1). It is important to note, however, that the further refreshed draft text does not necessarily represent consensus, as adamantly expressed by China (ENB, p.9) at IGC5, which stressed that “in the drafting of this document, all views should have been treated equally and the document should have reflected all issues” (ENB, p.9), emphasizing at the same time how the BBNJ negotiations is a state-led process. It is also unclear at this point whether this further refreshed draft text will be the basis for further negotiations at the resumed session of IGC5.
Matter commented on: Problems of overlapping governance on Arctic continental shelves
The continental shelf has been the dispute par excellence in the narrative that the Arctic is an ungoverned region. The seabed of the Central Arctic Ocean is subject to overlapping “claims” by Canada, Russia, and Denmark (via Greenland), and alarming reports have suggested that competing rights over the resources might culminate in conflict between Russia and the West. This myth has been widely challenged, but another myth lives on: that the seabed beyond 200 nautical miles (M) remains ungoverned until the Commission on the Limits of the Continental Shelf (CLCS) issues recommendations on the outer limits of continental shelves and the asserting states divvy up the pie. In fact, these states already can and do exercise control over the seabed areas they assert by virtue of the doctrine of inherent rights.
This coastal state prerogative creates problems at all stages before a final delineation of the shelf’s outer limits and a final delimitation of overlapping entitlements. Most importantly, where entitlements overlap and have not yet been delimited, potential users might proceed with some activities without approval from all states asserting entitlements to the relevant shelf area. Action based on unilateral decision could sharpen tensions and undercut trust among Arctic states. To minimize the risk of this pending the final delimitation of the Arctic continental shelves, Arctic states should establish a mechanism to authorize activities on overlapping entitlements beyond 200 M. This mechanism should be created as soon as possible among the United States, Canada, Denmark, and Russia (subject to changes in the geopolitical situation). On this backdrop, this blog post explores legal issues connected with activities on overlapping continental shelf entitlements in the Arctic Ocean and pre-delineation and pre-delimitation problems that the Arctic coastal States are facing.
Matter commented on: Draft Federal Law of the Russian Federation “On the Amendments to the Federal Law on the Internal Sea Waters, Territorial Sea and Contiguous Zone of the Russian Federation, 31 July 1998, No. 155-FZ (on the procedure for the passage of foreign warships and other sea vessels operated for non-commercial purposes in the internal sea waters of the Russian Federation)” (2022 Draft Law).
The 2022 Draft Law was introduced for consideration in the Russian Duma in August 2022. It deals with the right of entry of foreign warships to internal waters in the Northern Sea Route (NSR) and aims to adjust the regime of innocent passage in the Russian territorial sea. This blog analyses the proposed legislation in the larger context of other documents recently adopted by the Russian Federation (unfortunately only available in Russian):
Decree of the Government of the Russian Federation of 16 November 2021, No. 1959, “On Approving the List of Geographic Coordinates of Points Determining the Position of Baselines for measuring the breadth of the territorial sea, contiguous zone, exclusive economic zone and continental shelf of the Russian Federation off the mainland coast and islands of the Russian Federation in the Arctic Ocean and on declaring invalid on the territory of the Russian Federation the section “Arctic Ocean” of the list of Geographic Coordinates of Points Determining the Position of Baselines for measuring the breadth of the territorial sea, contiguous zone, exclusive economic zone and continental shelf of the USSR off the mainland coast and islands of the Arctic Ocean, the Baltic and Black Seas, approved by the decision of the Council of Ministers of the USSR ,15 January 1985, No. 56-22 (2021 Decree on Arctic Baselines), and
Decree of the President of the Russian Federation of 31 July 2022, No. 512 “On the approval of the Maritime Doctrine of the Russian Federation” (2022 Maritime Doctrine).
In the midst of global biodiversity and climate crises, global policymakers are resuming negotiations for a new implementing agreement under United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ) in August 2022 (UN General Assembly Resolution 76/564). Following the fourth session of the intergovernmental conference (IGC-) in March, which by some has been remarked the “most productive of the entire process” (IISD, IGC-4 summary, at p. 20), expectations for the fifth session of the IGC- (IGC-5) are high. Given the unprecedented decline of global biodiversity, with a recorded average 68% decrease in monitored populations of mammals, birds, amphibians, reptiles and fish between 1970 and 2016, (WWF Living Planet Report, 2020) there is an obvious and urgent need for a treaty that allows for better protection of high seas biodiversity. The high seas, covering approximately half the Earth and comprising nearly 95% of the ocean’s total volume, are an indispensable link in global efforts to halt biodiversity loss (Parliaments for Global Action, 2020). They harbour diverse and abundant life and are essential to many species who migrate through and over them – whales, seals, tuna sharks, albatross, and many more. Yet, at present, only 1,2% of the high seas are covered by marine protected areas (MPAs) (Protected Planet Report, 2020).
The agreement is a package deal, which encompasses a final delimitation between Canada and Denmark (Greenland), delimiting the maritime areas within 200 nautical miles from the baselines in the Lincoln Sea and the Labrador Sea. In addition, the agreement settles the sovereignty dispute over Hans Island in the Kennedy Channel.
An equitable solution
Articles 74 and 83 of the UN Convention on the Law of the Sea (UNCLOS) provide that all States are to seek an equitable solution in the delimitation of maritime areas subject to overlapping claims. The UNCLOS does not provide any further guidance on how the States should proceed in their negotiations towards reaching such solutions.
However, a relatively consistent practice has developed through a considerable body of case law, where a three-stage approach is applied. The first step is to draw a line at an equal distance from the closest points on the coasts of each of the parties. This provisionally drawn equidistance line is the result of an objective, geometric process, and serves as a practical starting point in many delimitation processes. The provisional equidistance line is then adjusted, taking into account relevant circumstances, that call for the adjustment of the provisional equidistance line in order to achieve an equitable result. Finally, the preliminary line is subject to a test of disproportionality, to verify that the adjusted equidistance line does not “lead to an inequitable result by reason of any marked disproportion [for example] between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line” (Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment)  ICJ Rep 61, 103 .
Although the three-stage approach is primarily developed for the settlement of maritime delimitation disputes by the judiciary, it is also frequently used in maritime delimitation negotiations.
The end of the Whisky War
Hans Island is an uninhabited lime-stone island covering 1.3 square kilometres, situated in the Kennedy Channel, within 12 nm from the coast of both Canada and Denmark (Greenland), and is accordingly part of both States’ claims of territorial waters. When Canada and Denmark (Greenland) negotiated their boundaries in 1973, they were unable to agree on the issue of sovereignty over Hans Island. The 1973 agreement accordingly leaves Hans Island out, and explicitly provides in Article 2 (2) that “the dividing line shall be of two series of geodesic lines joining from the following points”, where series A is measured from point No. 114-122, and Series B is measured from point No. 123-127. There is no boundary between point 122 and 123, where Hans Island is located.
The conflict over Hans Island has become known as the “Whisky War” since 1984, when Canadian troops planted a flag on the island, a sign saying “welcome to Canada” and left a bottle of Canadian whisky. When the Danish Minister of Greenland visited the island later the same year, he replaced the Canadian offerings with a Danish flag, a bottle of Danish schnapps and a letter saying “Welcome to the Danish island”. Since then, there have been numerous trips to the island from both parties to replace the other side’s offerings. The humorous undertone aside, the parties have until now not been able to agree who has sovereignty over the Island. The island itself has little economic value, and as the parties’ maritime sones in the Kennedy Channel were agreed upon in 1973, the delimitation of the island itself does not have large consequences for the parties. However, the Kennedy Channel and Hans Island may become more important if global warming makes it possible to establish a sea route from the North Atlantic Ocean to the Arctic Ocean west of Greenland.
The delimitation agreement solves the Hans Island Sovereignty dispute, dividing the island between Canada and Denmark (Greenland). The considerations discussed by the parties are not known to the public. The agreed border does provide some clues, as the limit appears to be drawn along the natural ridges on Hans Island. This delimitation method is familiar both from the law of the sea and from other land demarcation.
79 000 square kilometres of overlapping entitlements in the Labrador Sea
In addition to achieving a final solution for Hans Island, Canada and Denmark (Greenland) have also concluded the remaining of the unresolved maritime boundaries between the two States, including the geographical areas southwest and northwest of Greenland.
UNCLOS Article 57 provides a right for coastal states to establish an exclusive economic zone in an area up to 200 nautical miles measured from the coastal baseline. In addition, coastal states’ entitlement to the continental shelf may continue beyond 200 nm if the continental margin continues beyond such distance (Article 76). The Labrador Sea is an arm of the North Atlantic Ocean between the Labrador Peninsula and Greenland, where the entitlements provided by the UNCLOS resulted in an 79 000 square kilometres area of overlapping claims of Canada and Denmark (Greenland), which is now delimited between the parties.
The parties have not disclosed the rationale behind the negotiated delimitation line in the Labrador Sea, but a close study of the official map suggests that the delimitation is based on an equidistance line, with some minor adjustments taking into account relevant circumstances. The parties accordingly seem to have based their negotiation on the recognized three-stage approach, as a means to achieve an equitable solution as provided in UNCLOS articles 74 and 83.
Indicating a direction for the future delimitation of the Central Arctic Ocean
The parties have also succeeded in establishing a common delimitation line in the Lincoln Sea, a body of water in the Arctic Ocean. The limit is based on a preliminary boundary agreement from 2012, and has finally been provided a permanent status in the 2022 maritime delimitation agreement between Canada and Denmark (Greenland).
In the Lincoln Sea, the parties have apparently confined themselves to applying an objective approach to establish an equidistance line between themselves. This sends a very important political signal, indicating that both Canada and Denmark (Greenland) most likely will argue for the application of an equidistance approach also further north, in the Arctic Ocean, where the Danish and the Canadian continental shelf both allegedly overlap with areas subject to Russian claim of entitlement.
The geopolitical side-effects of the delimitation agreement
The agreement dividing Hans Island and the delimitation of the disputed maritime areas are not only of symbolic value, but also of great practical significance for the parties. The negotiated agreement is of particular importance for the Inuit settlement of Ausuittuq in Canada and the Greenlandic settlement of Qaanaaq, and contributes to laying the foundations for a closer and broader cooperation between Canada and Greenland. The ambition of future cooperation and mobility between the States is explicitly included in the agreement. The delimitation comes shortly after Canada, Denmark and five other Arctic states announced their intent to resume Arctic cooperation in projects that do not involve Russian participation. At a time when the international legal order is under severe pressure, and there is an increasing concern relating to the extent to which States will comply with their obligations under international law, the delimitation agreement between Canada and Denmark (Greenland) demonstrates that the Arctic states have a strong will and commitment to follow up their obligations under the Law of the Sea and the Ilulissat Declaration of 2008.
The ongoing negotiations for a global treaty on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) in part seek to fill the legal and governance gap for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ). The likely outcome — an Internationally Legally Binding Instrument (ILBI) — will facilitate the designation of new MPAs in ABNJ. Since negotiations are ongoing, a platform remains for discussing how the MPA mechanism of the ILBI can support advances in science and technology and potentially better respond to evolving risks to BBNJ.
This blog post, based on the author’s master’s thesis (Fisher, ‘‘Technical and Legal Implications for Dynamic Legalities…,’ 2021’’ and hereafter, ‘Fisher, LL.M. Thesis, 2021’), highlights one novel approach to area-based management called Dynamic Ocean Management (DOM). With DOM, spatial and temporal regulatory measures can constantly be updated to reflect changes to the marine environment in near real-time (see, e.g., Welch et al., 2019). For MPAs, it can lead to ongoing shifts of protected area boundaries or management regulations based on new ocean conditions (e.g., the presence of a vulnerable species). The approach could prove especially effective for conservation of BBNJ in marine environments facing rapid change and uncertainty, such as the Central Arctic Ocean (hereafter, Central Arctic Ocean is used to describe the ABNJ of the Central Arctic Ocean).
Scholars have discussed DOM’s promising potential for BBNJ conservation (see, Crespo et al., 2020 and Maxwell et al., 2020), inspiring a more specific question addressed in this post: how can the BBNJ Treaty accommodate DOM decision-making for Arctic MPAs? The decision-making focus is due to a notable juxtaposition: DOM’s ongoing, near real-time decision-making process and international law’s consent-based procedures that value stability and certainty. The Arctic focus emerges due to the potential usefulness of a DOM approach for a rapidly changing Central Arctic Ocean and simultaneously grounds the discussion in specific BBNJ relevant entities and context. Before exploring how the ILBI could support a DOM approach to Arctic MPAs, a brief overview of DOM and its potential for Central Arctic Ocean MPAs is provided.