When crocodiles and kangaroos dance together, anything is possible: Report of the Timor-Leste and Australia Conciliation Commission

By: Nigel Bankes

PDF version: When crocodiles and kangaroos dance together, anything is possible: Report of the Timor-Leste and Australia Conciliation Commission

Report commented on: Report and Recommendations of the Compulsory Conciliation Commission between Timor-Leste and Australia on the Timor Sea, Registry, Permanent Court of Arbitration, 9 May 2018

The Conciliation Commission in the dispute between Timor-Leste and Australia with respect to a permanent maritime boundary in the Timor Sea has now issued its final Report and Recommendations on what must be recorded as an exceptionally successful conciliation exercise. The report documents the process of shepherding the Parties to the conclusion and signature of the Treaty between the Democratic Republic of Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea, New York, March 6, 2018. This treaty not only establishes permanent maritime boundaries between the two States it also establishes (Annex B) a joint development regime for the Greater Sunrise and Troubadour deposits that fall on either side of the agreed maritime boundary. The Report also documents the ultimately unsuccessful efforts of the Commission to facilitate the Parties in reaching agreement on a development concept for the Greater Sunrise Field. In dealing with a set of issues that went beyond that of delimitation, the Report illustrates the flexibility of conciliation procedures to address (with the consent of the Parties) a broader suite of issues than could be accommodated in a more formal and constrained adjudication procedure.

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Posted in Conciliation, Continental shelf, Delimitation, Exclusive ecnomic zone, Hydrocarbons, Joint development zone, Law of the Sea Convention, Maritime delimitation | Leave a comment

Maritime Delimitation in Ghana/Côte d’Ivoire: Predictability … with an Occasional Glitch

By: Alex Oude Elferink

PDF version: http://site.uit.no/jclos/files/2018/02/6.2.2018_JCLOS-Blog_Alex-Oude-Elferink_Maritime-Delimitation-in-Ghana-Cote-dIvoire-Predictability-with-an-Occasional-Glitch-1.pdf

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

The Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), which has been decided by a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) is a further addition to a long series of maritime boundary cases. In writing the concluding chapter of the edited volume Maritime Boundary Delimitation: The Case Law; Is it Consistent and Predictable?, the author of this post and his co-editors Tore Henriksen and Signe Veierud Busch made a forecast about the outcome of Ghana/Côte d’Ivoire on the basis of the existing case law – the text of the chapter was finalized on 10 May 2017 (on file with the author). This concerned the following points:

First, there is no reason to assume that […] the Chamber of the ITLOS will not apply the three-stage approach. Second, the coastal geography […] is such that we expect that a strict equidistance line, or an equidistance line very similar to the strict equidistance line, will be adopted as the provisional delimitation line. Third, we do not expect a radical departure from the equidistance line after the second-stage consideration of the relevant circumstances […]. Hydrocarbon licensing is likely to be considered as a potential relevant circumstance […], but it is not expected that this practice requires a shifting of the provisional line.

We also anticipated that the Chamber would “have no difficulty in determining the relevant coasts and the relevant area”. We indicated a couple of options for the relevant coasts of both parties, and for both Ghana and Côte d’Ivoire the Chamber adopted a relevant coast that was among the options we presented (for the Chamber’s selection see para. 379 and Sketch-map No. 2). Similarly, we submitted that:

[t]he relevant area can be expected to be bounded by the relevant coasts and the outer limits of the maritime zones of the parties. Depending on the definition of the relevant coasts, the lateral limits of the relevant area will be either perpendiculars to the general direction of these coast, lines of longitude (meridians) or the (potential) maritime boundaries with neighboring States.

As a matter of fact, the Chamber used the relevant coasts, meridians and the outer limits of the continental shelf beyond 200 nautical miles to define the relevant area (see paras 383-386 and Sketch-map No. 3). We concluded our analysis by noting that:

Our assessment of Ghana/Côte d’Ivoire […] strongly suggests that the law and methodology as developed by the case law result in a degree of predictability. It would not even seem unreasonable to submit that [it] suggest[s] a high degree of predictability.

Although the Special Chamber’s approach to the delimitation of the maritime boundary in Ghana/Côte d’Ivoire to a large degree aligns with the earlier case law and arguably contributes to the objective of predictability of the delimitation process, to which the Chamber explicitly refers (paras 281 and 289), there are a couple of points in the judgment that may seem to raise some concerns in that respect. The current post focusses on those points.

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Posted in Adjacent coast, Continental shelf, Delimitation, Exclusive ecnomic zone, Maritime delimitation, Territorial Sea Delimitation, Three-stage process | Leave a comment

Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

By: Anna-Maria Hubert and Neil Craik

PDF-version: Towards Normative Coherence in the International Law of the Sea for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction

Document commented on: International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/72/249, provisionally available as document A/72/L.7.

This past November, based on the recommendations of the Preparatory Committee (PrepCom) established under General Assembly Resolution 69/292, the UN General Assembly agreed in Resolution 72/249 to convene an intergovernmental conference ‘to consider the recommendations of the preparatory committee on the elements and to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible’ (para 1).

One of the many unresolved issues to be faced in the upcoming negotiations concerns how a new legal instrument will be situated within an increasingly dense, and fragmented, legal and institutional landscape. The Chair’s Overview of the Third PrepCom Session highlights the relationship between agreements as an important cross-cutting issue, stating that ‘going forward, it would be useful to further consider how to articulate the relationship between a new instrument and the arrangements established there under with relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’ (page 5).

This blog post offers some thoughts on how a new legal instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) can be conceived of within the wider legal and institutional landscape of the law of the sea and public international law. Specifically, it explores the question of what relationship a new legal instrument should have to other relevant agreements, including the 1982 UN Convention on the Law of the Sea (LOSC).

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Posted in Areas beyond national jurisdiction (ABNJ), Due Diligence, Environment, Implementing agreements, Law of the Sea Convention, Marine biological diversity, Treaty Interpretation | Leave a comment

Did the latest Resolution on Marine Plastic Litter and Microplastics take us any closer to pollution-free oceans?

By: Linda Finska

PDF version: http://site.uit.no/jclos/files/2018/01/JCLOS-Blog-100118_Marine-Litter_Finska.pdf

Document commented on: United Nations Environment Assembly of the United Nations Environment Programme, Resolution on Marine Litter and Microplastics, UNEP/EA.3/L.20, Third Session, 4-6 December 2017

According to the Ellen McArthur Foundation, by 2050 there will be more plastic than fish by weight in our oceans if the business-as-usual-model continues. The latest United Nations Environment Assembly addressed this alarming scenario in its Resolution on Marine Litter and Microplastics. But does the resolution take us any closer to concrete solutions? Arguably, it does not. The resolution highlights the urgency of the issue and encourages Member States and stakeholders to take action. Admittedly, it builds momentum to address the issue but fails to provide credible solutions.

Background to the Resolution

The United Nations Environment Assembly (UNEA) is the governing body of the United Nations Environment Programme (UNEP) and globally the highest-level decision-making body on environmental issues. It has the universal membership of all 193 UN Member States. The UNEA has its origins with the UN Conference on the Human Environment in 1972 and was finally established at the Rio+12 UN Conference on Sustainable Development in 2012. The Resolutions of the UNEA are not legally binding on Member States. However, the biennial Environment Assemblies have an important role in guiding policies and setting priorities concerning global environmental issues.

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Posted in Environment, Plastics, United Nations Environment Assembly | Leave a comment

Opposite or adjacent – does it make a difference? Delimiting the continental shelf beyond 200 nm

By: Signe Veierud Busch

http://site.uit.no/jclos/files/2017/12/JCLOS-Blog-011217_Blogpost-ghana-cote-divoire.pdf

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

In Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), a Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) was requested to delimit all maritime areas appertaining to Ghana and Côte d’Ivoire in the Atlantic Ocean, including the continental shelf beyond 200 nm. This is the first time an international court or tribunal has delimited the continental shelf beyond 200 nm where one of the parties to the dispute had received recommendations concerning the location of the outer limit of its continental shelf from the Commission on the Limits of the Continental shelf (CLCS). This makes the case particularly interesting for the purpose of clarifying procedural issues and the relationship between the CLCS, its recommendations, and international courts and tribunals.

A previous post by Nigel Bankes provides a general commentary on the Judgment of the Special Chamber.

The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and discuss both procedural and substantive issues. Did the Special Chamber act in accordance with previous judicial practice, contributing to establishing a predictable and consistent practice? Further, the blogpost looks ahead to future delimitation cases, and considers whether the delimitation methodology applied by courts and tribunals in delimitation disputes between adjacent States should also be applied in delimitations between opposite States. The post uses the upcoming delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nm from the Nicaraguan coast as an example.

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Posted in Adjacent coast, Continental shelf, Entitlement, Jurisdiction, Maritime delimitation, Opposite coast | Leave a comment

State responsibility for unilateral hydrocarbon activities in disputed maritime areas: The case of Ghana and Côte d’Ivoire and its implications

By: Natalia Ermolina and Constantinos Yiallourides

PDF version: http://site.uit.no/jclos/files/2017/11/JCLOS-Blog-231117_Ghana-blog_final.pdf

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

Background to the dispute between Ghana and Côte d’Ivoire

For a long time, Ghana believed that there was a de facto maritime boundary line between Ghana and Côte d’Ivoire, and since the 1950s had conducted hydrocarbon activities based on its understanding of this ‘customary boundary’. Côte d’Ivoire, for its part, was not particularly active in protesting Ghana’s hydrocarbon activities. Only in 2009 did Côte d’Ivoire make a proposal as to its view of the maritime boundary thus forming a triangular area of overlapping maritime claims. The area claimed by Côte d’Ivoire covered significant oil and gas fields discovered by Tullow Oil plc operating under a license of Ghana. Ghana alleged that this was the main reason why Côte d’Ivoire raised its claims.

The ITLOS Special Chamber (SC) rejected Ghana’s submission that there was a tacit agreement between Ghana and Côte d’Ivoire for the delimitation of their territorial sea, exclusive economic zone and continental shelf within and beyond 200 n.m. (chapter VII, especially paras. 211-228). At the same time, the SC also rejected Côte d’Ivoire’s proposed boundary. The SC drew a single maritime boundary for the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 n.m. (chapter IX). The final boundary drawn by the SC almost coincides with the line argued by Ghana and does not affect Ghana’s petroleum fields found in the Gulf of Guinea. Therefore, it is not surprising that in many news accounts the SC’s decision is referred to as a victory of Ghana over Côte d’Ivoire.

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Posted in Continental shelf, Delimitation, Disputed areas, Hydrocarbons, Oil and gas, State responsibility, unilateralism | Leave a comment

The way towards strengthened marine cooperation in the Arctic

By:  Christian Prip

PDF version: The way towards strengthened marine cooperation in the Arctic

Document commented on: Report to Ministers of the Task Force on Arctic Marine Cooperation.

The Arctic Council Ministers established a Task Force on Arctic Marine Cooperation (TFAMC) in 2015  “to assess future needs for a regional seas program or other mechanism, as appropriate, for increased cooperation in Arctic marine areas” and “to make recommendations on the nature and scope of any such mechanisms.” (Iqaluit Declaration, paragraph 43) The Task Force was requested  to deliver a report to Ministers in 2017 identifying future needs for strengthened cooperation for Arctic marine areas, as well as whether the Council should begin negotiations on a cooperation mechanism for Arctic marine areas.

Co-chaired by the U.S., Norway, and Iceland, the Task Force met five times, with participation from all Arctic States, three Arctic Council Permanent Representatives, four Arctic Council working groups as well as invited experts and observer States and organizations. In its 2017 report, the Task Force requested to continue its work. Ministers at the Arctic Council Ministerial in Fairbanks, Alaska, 10 – 11 May 2017 met the request and established a new mandate for the Task Force to present “…terms of reference for a possible new subsidiary Body, and recommendations for complementary enhancements to existing Arctic Council mechanisms, for consideration by Ministers in 2019.” (Fairbanks Declaration, paragraph 12).

A first meeting of the extended TFAMC was held 14 – 15 September 2017. Reports from TFAMC meetings are not made public.

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Posted in Arctic Council, Arctic Five, Areas beyond national jurisdiction (ABNJ), Central Arctic Ocean, International Maritime Organisation | Leave a comment

ITLOS Judgment in the Maritime Boundary Dispute between Ghana and Côte d’Ivoire

By: Nigel Bankes

PDF version: ITLOS Judgment in the Maritime Boundary Dispute between Ghana and Côte d’Ivoire

Case commented on: ITLOS Special Chamber, Judgment in Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean, 23 September 2017.

A Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) handed down its judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean on 23 September 2017. The litigation was originally commenced by Ghana as an application initiating arbitral proceedings under Annex VII of the United Nations Law of the Sea Convention (LOSC) but in December 2014, by Special Agreement, the two states agreed to submit the dispute to a Special Chamber of ITLOS comprised of Judge Boualem Bouguetaia as President, Judge Rüdiger Wolfrum, Judge Jin-Hyun Paik, Mr Thomas Mensah, Judge ad hoc (Ghana) and Judge Ronny Abraham, Judge ad hoc (Côte d’Ivoire).  ITLOS acceded to that request. The Special Agreement and the attached Minutes of Consultations indicated that the two States were agreeing to transfer the arbitral proceedings instituted by Ghana with respect to the dispute “concerning the delimitation of their maritime boundary in the Atlantic Ocean.” Ghana’s earlier application had asked the Arbitral Tribunal to “delimit, in accordance with the principles and rules set forth in UNCLOS and international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Ghana and to Côte d’Ivoire in the Atlantic Ocean, including in the continental shelf beyond 200 M.”

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Posted in Continental shelf, Delimitation, Exclusive ecnomic zone, Good faith, Law of the Sea Convention, Oil and gas, Special circumstances, State responsibility, Territorial Sea Delimitation, Three-stage process | Leave a comment

EFTA Surveillance Authority Rejects Complaint Against Norway Related to Snow Crab Fisheries

By: Maria Madalena das Neves

PDF version: EFTA Surveillance Authority Rejects Complaint Against Norway Related to Snow Crab Fisheries

Decision commented on: EFTA Surveillance Authority Decision of 4 October 2017 closing a complaint case against the Norwegian Government concerning restrictions on commercial fishing or catching of snow crab (Decision No. 173/17/COL).

On 30 September 2016, a group of enterprises of EU Member States engaged in snow crab fisheries in the Barents Sea, submitted a complaint against Norway to the EFTA Surveillance Authority (ESA) (see complaint here). The complainants, whose identification has been not been made public (but likely including at least one Lithuanian enterprise), argued that Norway’s Regulation on Prohibition of Snow Crab Catching of 19 December 2014 and Act on the Right to Participate in Fishing and Catching of 26 March 1999 conferred an unjustified privileged access to vessels owned by Norwegian citizens and to Russian vessels to catch snow crab in the maritime zones of Norway (particularly in the Svalbard Fisheries Protection Zone and on the Norwegian Continental Shelf), and that said legislation was, consequently, inconsistent with Articles 4, 31(1), 34, 36(1), 124 of the European Economic Area (EEA) Agreement and with Article 5 of Protocol 9 of the EEA Agreement.  More specifically, the complainants argued that Norway’s secondary legislation regulating the catch of snow crab, which prevents nationals from other EEA Member States from establishing a company in Norway in order to be able to engage in fisheries or catching of crab, was inconsistent with the right of establishment, the freedom to provide services, the principle of non-discrimination, and the principle of proportionality prescribed by the EEA Agreement.

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Posted in Continental shelf, EEA Law, European Union, Fisheries, Law of the Sea Convention, Norwegian Fisheries Law, Svalbard Treaty | Leave a comment

Norway’s Ambitious Climate Act: Implementation Potential of the Marine Resources Management Tools

By: Lena Schøning

PDF-Version: Norways’ Ambitious Climate Act: Implementation Potential of the Marine Resource Management Tools

Matter commented on: Norway’s new Climate Act

In June this year, the Norwegian Parliament adopted the Climate Act. In short, the Act establishes under domestic law Norway’s objectives for reducing greenhouse gas emissions. The emissions covered by the Act are emissions and sinks reported by Norway under the Paris Agreement. The objectives of the Act are to reduce, by 40% by 2030 and by 80-95% by 2050, greenhouse gas emissions to the level of the reference year 1990. The Act is not unique; UK, Denmark and Finland have adopted similar statutes.

A yearly reporting obligation on meeting these objectives is included in the Act. These ambitious objectives call for consistent strategies from general to more specific goals, across sectors and policy areas: Arild Underdal, “Integrated Marine Policy: What? Why? How?” (1980). Marine Policy 159. By strategies, I mean the overall plans including measures and tools to meet these objectives. Even though the Act is recent and will not enter into force until 2018, the political objective of reducing greenhouse gas emissions is not new. This post examines whether strategies to meet these objectives are already in place or could be facilitated through relevant marine resource management tools.

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Posted in Climate change, Integrated resource management, Norway | Leave a comment