Categories
Climate change Marine pollution

A Peculiar Interaction: Extreme Temperature Rise in the North Atlantic and the International Maritime Organization’s Sulphur Regulation

By: Konstantinos Deligiannis-Virvos (PhD Research Fellow, Norwegian Centre for the Law of the Sea, UiT)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2024/01/NCLOS-Blog-IMO-and-Climate-Change-final-1.pdf

Matters Commented on: North Atlantic Ocean surface temperature rise, IMO 2020 Sulphur Regulation, IMO GHG Strategy, Climate Change

1.      Introduction

In the summer of 2023 exceptional sea surface temperatures were recorded on the North Atlantic Ocean, as a climax of a period of rapid warming that began in spring 2023 (Copernicus Programme, 2023). According to the ‘Copernicus Programme’ (the European Union’s Earth observation programme):

Temperatures in the northeastern Atlantic climbed steadily from the end of May, peaking on 21 June at around 1.6°C above average […]. While absolute temperatures do reach higher values in the region during the summer, the average temperatures observed last month are more typical of later in the summer (Copernicus Programme, 2023).

Daily sea surface temperature anomaly (°C) averaged over the northeastern Atlantic region during 2023 (black line) and for previous years from 1979 to 2022 (red and blue lines).

Graph: Daily sea surface temperature anomaly (°C) averaged over the northeastern Atlantic region during 2023 (black line) and for previous years from 1979 to 2022 (red and blue lines). Data source: ERA5. Credit: Copernicus Climate Change Service/ECMWF.  

Of course, human-caused climate change is the main cause of increased temperatures around the globe, including the North Atlantic Ocean surface. However, the extraordinary and rapid increase in temperature observed in 2023 was likely facilitated by a number of other factors that amplified the effects of climate change.

These likely factors include unusual atmospheric circulation patterns, broader tropical warming involving the transition to El Niño conditions, the presence of Saharan Dust, wild fire smoke from Canada, and the effects of the Hunga-Tonga volcano eruption, as well as one likely factor that stands out as of particular importance in the context of the law of the sea (Hausfather and Forster, 2023). This is a relevant regulation of shipping, specifically the reduction of sulphur emissions from ships, following the implementation of the relevant International Maritime Organization (IMO) Regulation on sulphur emissions (Voosen, 2023, Hausfather and Forster, 2023).

Categories
Biodiversity beyond national jurisdiction (BBNJ) Blog Ecosystem approach Law of the Sea Convention (UNCLOS) Marine Protected Areas Rights of Nature

Introduction to the outcomes of the 2023 NCLOS Conference on “Ocean Commons”

By: Konstantinos Deligiannis-Virvos (UiT, Norwegian Centre for the Law of the Sea)

Matter commented on: NCLOS Conference on Ocean Commons, 1-3 November 2023, Tromsø, Norway.

Introduction:

The term “commons” usually brings into mind the problem of the tragedy of the commons: a concept in environmental science and economics that describes a situation in which individuals belonging to a group, acting out of self-interest, deplete shared resources, leading to the detriment of the entire group (Hardin, 1968). Within the law of the sea, the term “ocean commons” generally refers to marine areas beyond national jurisdiction, where no State holds sovereignty, sovereign rights, or exclusive jurisdiction. This designation aligns with the United Nations Convention for the Law of the Sea (UNCLOS), which distinguishes between maritime zones under national jurisdiction and areas beyond national jurisdiction.

Categories
Oil and gas Security law

Did an Alleged Ukrainian Attack against the Nord Stream Pipelines Violate the Law of Armed Conflict?

By: Alexander Lott (Marie Curie research fellow at the Norwegian Centre for the Law of the Sea).

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/11/Alexander-Lott-NCLOS-Blog_Nord-Stream-Jus-in-Bello-Case-Study_-Final.pdf

Matter commented on: The Nord Stream Explosions in the Baltic Sea

1. Introduction

Preliminary Western intelligence reports have emerged about a purportedly pro-Ukrainian group of six divers conducting the sabotage against the Nord Stream pipelines in September last year. The Ukrainian Government denies any involvement in such an alleged operation. Nonetheless, recently, the Washington Post and Der Spiegel published a joint report which reached the unequivocal conclusion that:

“A senior Ukrainian military officer with deep ties to the country’s intelligence services played a central role in the bombing of the Nord Stream natural gas pipelines last year, according to officials in Ukraine and elsewhere in Europe, as well as other people knowledgeable about the details of the covert operation. /…/ Chervinsky did not act alone, and he did not plan the operation, according to the people familiar with his role, which has not been previously reported. The officer took orders from more senior Ukrainian officials, who ultimately reported to Gen. Valery Zaluzhny, Ukraine’s highest-ranking military officer, said people familiar with how the operation was carried out.”

In this context, this blog post begins by briefly discussing the standards for the potential attribution of the alleged activities of the afore-referred group of divers to Ukraine. This post demonstrates that the legality of the Nord Stream explosions can be assessed from the perspective of the law of armed conflict.  This post debates the question of whether an alleged Ukrainian attack against the Nord Stream pipelines violated the law of armed conflict in the wider framework of the ongoing international armed conflict between the Russian Federation and Ukraine. It examines the legal qualification of the Nord Stream pipelines as a legitimate military objective and the environmental considerations pertaining to the sabotage against these pipelines.

Categories
Blog

Reflections on the Letter of Intent for Cooperation on the Pikialasorsuaq: What does it legally mean for the Inuit?

By: Apostolos Tsiouvalas (PhD Fellow at NCLOS, Faculty of Law, UiT The Arctic University of Norway).

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/10/Apostolos_NCLOS-Blog_271023_Final.pdf

Matter commented onLetter of Intent for Cooperation on the Pikialasorsuaq between the Department of Fisheries and Oceans of Canada and the Ministry of Agriculture, Self-sufficiency, Energy and Environment of the Government of Greenland

Introduction:

The North Water Polynya Pikialasorsuaq (meaning Great Upwelling) is a polynya between Greenland and Nunavut in northern Baffin Bay that constitutes the most biologically productive region within the Arctic Circle. The area is characterized by impressive migratory patterns of birds and mammals tightly linked to the Polynya’s morphology, on which most of West Greenland’s access to living resources is currently relied. Historically, the Pikialasorsuaq has been vital for the subsistence of the adjacent Inuit communities, providing sustenance to the entire marine ecosystem of Baffin Bay and associated communities of Qikiqtani (Nunavut) and Avanersuaq (Northwest Greenland), which directly depend on the Polynya’s biological productivity (Report of the Pikialasorsuaq Commission, p. A-5). Hunting routes across the Polynya and historic sites (e.g. food caches) are considered an integral part of Pikialasorsuaq’s transboundary ecosystem. The literature further records that the Inuit of Pikialasorsuaq conceive of the frozen sea as an entity that extends beyond state-enforced maritime boundaries and they have traditionally been operating cross-border activities among the Greenlandic and Canadian coasts of the Polynya on the basis of customary utilization of the sea/sea-ice continuum. Throughout the 20th century, the Inughuit of Avanersuaq intensively practiced hunting trips to the opposite coast of the Polynya. After the repopulation of Aujuittuq (Grise Fiord) in Nunavut, Inughuit hunters visited Aujuittuq by dogsleds and more recently by planes landing on sea ice, developing strong cultural and spiritual bonds with the Inuit groups on the Canadian side of the Polynya (Report of the Pikialasorsuaq Commission, p. A-6).  As explained by the Inuit Circumpolar Council (ICC), the international body that represents all Inuit from Alaska, Canada, Greenland, and Chukotka, “considering the intimate connections and interactions between Inuit, animals, and Pikialasorsaq, the region that is affected by the polynya extends far past its physical boundaries.” (Report of the Pikialasorsuaq Commission, p, A-23). In recent decades, the situation however has changed substantially with the Pikialasorsuaq ecosystem facing challenges posed by climate change and rising human activity in the region. In addition, navigating international borders within the Pikialasorsuaq region is currently more difficult for the Inuit, primarily due to heightened safety and security regulations linked to international travel.

Read more: Reflections on the Letter of Intent for Cooperation on the Pikialasorsuaq: What does it legally mean for the Inuit?

On October 19, 2023, on the margins of the Arctic Circle Assembly, the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Agriculture, Self-Sufficiency, Energy and Environment of Greenland signed a Letter of Intent for Cooperation on the Pikialasorsuaq, which seems to signify an important step towards the collaboration of Canada and Greenland with regards to the Pikialasorsuaq. This blog post explores the context behind this development and seeks to examine the potential legal implications of the Letter of Intent for the Inuit of the Pikialasorsuaq region.

  1. Legal Background

The maritime boundary between the Kingdom of Denmark (in relation to Greenland) and Canada was established with the 1973 Delimitation Agreement, which deliberately left without a determined boundary the area between the geodetic points 122 and 123 where Hans Island is located. The latter was only delimited in June 2022, creating a 3,962 km long maritime boundary which is currently the longest in the world. The boundary cuts through the Pikialasorsuaq Polynya and reduces Inuit activities on both sides to a certain geographical area determined by the respective states’ maritime zones and hunting quotas based on domestic and international law. In addition, increased securitization by Canadian authorities, who at times conceived of the Greenlandic Inuit presence in Ellesmere as a threat to Canadian sovereignty over its Arctic archipelago, imposed restrictions to the mobility patterns of the hunters since the middle of the 20th century –  with the last organized exchange between the populations of both sides of the Polynya taking place in 1994 (Report of the Pikialasorsuaq Commission, p. A-6). Since the 1990s, when the last formal travel exchanges between the two groups of Inuit located on the opposite sides of the Pikialasorsuaq took place, traveling has become much more difficult due to increased costs, taxation and intensified securitization in both sides of the Polynya (especially after the tragedy of 9/11), that eventually resulted to the cessation of free transit for Inuit families in both sides.

Canada and Greenland currently share jurisdiction in the North Water Polynya, which has implications for the international conservation and management of marine mammals and seabirds. The importance of joint management of the marine environment between the two states was verified in the 1983 Agreement between the Government of Canada and the Government of the Kingdom of Denmark for Cooperation Relating to the Marine Environment, aiming to increase “bilateral cooperation in respect of the protection of the marine environment”. Regional collaboration between Greenland and Canada for management of shared marine mammal species has also been successful over the last few decades. First, Canada and Greenland signed a Memorandum of Understanding (MOU) on the Conservation and Management of Narwhal and Beluga in Baffin Bay in 1989. Second,  the Government of Canada, the Government of Nunavut, and the Government of Greenland adopted a MOU for the Conservation and Management of Polar Bear Populations in 2009. The 2009 MOU established a joint commission largely consisted of Inuit representatives of both sides to provide recommendations on total allowable harvest and fair division of the shared harvest of the shared polar bear population in Kane Basin and Baffin Bay. Denmark is not party to any of these MOUs, as Greenland holds exclusive jurisdiction on natural resource management, judicial affairs and policing, while the Kingdom of Denmark maintains jurisdiction for foreign affairs and defense matters.

  • The 2016 Pikialasorsuaq Commission

To address the future of Pikialasorsuaq in light of a changing Arctic and to negotiate an Inuit-led co-management regime for the Polynya, the Inuit Circumpolar Council of Greenland (ICC Greenland) together with the respective department of Canada (ICC Canada) established in January 2016 the Pikialasorsuaq Commission, through a project funded for three years. The Pikialasorsuaq Commission published in 2017 a report that addressed emerging issues pertinent to the region’s peoples and ecosystem and concluded with three main recommendations for policymakers. The recommendations referred to: a) the establishment of an Inuit Management Authority (IMA) led by Inuit representatives from communities in the Pikialasorsuaq region to regulate various activities, including transportation, shipping, and off-shore industrial development; b) the establishment of a protected area comprised of the Polynya itself and including a larger management zone, monitored and managed by Inuit; and c) the establishment of a free travel zone for Inuit across the Pikialasorsuaq (Report of the Pikialasorsuaq Commission, p. A-20).

In 2022, ICC Greenland entered into a cooperation agreement with Oceans North Kalaallit Nunaat and a task force was established to promote the work of the Pikialasorsuaq Commission. The task force aimed to ensure its recommendations are recognized and eventually implemented by the Greenlandic government. While the implementation phase of the Pikialasorsuaq Commission’s work has started and negotiations on freedom of movement for Inuit to visit friends and family across the border are underway, cross-border hunting for the Inuit of both sides has not yet been established by state law and is nowadays limited to each state’s EEZ and remains strictly controlled by domestic hunting legislations. The Pikialasorsuaq Commission’s project is currently in the second phase, working on the development of an implementation plan, in consultation with the appropriate authorities and based on the recommendations and information gathered by the Pikialasorsuaq Commission in the first phase.

  • What does the Letter of Intent for Cooperation on the Pikialasorsuaq mean for the Inuit?

The 2023 Letter of Intent for Cooperation on the Pikialasorsuaq marked an important step for Canada and Greenland to join forces regarding Pikialasorsuaq. A Letter of Intent (LOI) is a written document prepared when two parties have reached a mutual understanding but have not fully detailed out all the specifics. This document is often presented before a final legal agreement, meaning a LOI lacks binding force. Nevertheless, it serves as an expression of political commitment between the parties and outlines the terms they intend to subsequently adhere to. Although lacking thus binding force, the LOI for Cooperation on the Pikialasorsuaq demonstrates political will from both Greenland and Canada to continue joint efforts to manage the Pikialasorsuaq ecosystem and adjacent Inuit communities.

The LOI acknowledges all previous bilateral agreements and joint efforts (including single-species management) with respect to the Pikialasorsuaq area and provides for the establishment of a “joint Pikialasorsuaq steering committee” across Canada and Greenland, with representation from Inuit and national governments on both sides. As of the LOI, the mandate of the Steering Committee would be to “develop instruments and common foundations for management of the area”. While further details about the actual scope of the wording of this objective are not provided in the LOI, it seems that this objective resonates with the first recommendation of the 2017 Pikialasorsuaq Commission report that suggested the establishment of a common Inuit-led management authority for the area (Report of the Pikialasorsuaq Commission, p. A-20). In the LOI, the two parties further express their intention to share relevant existing scientific information among the Inuit Qaujimajatuqangit in Canada, and hunter and user knowledge in Greenland. They also intend to commit to cooperation on research and monitoring of the Pikialasorsuaq ecosystem, exchange information from consultations with local representatives of both sides of the Polynya and refer questions that fall wholly or partially outside of their areas of competence or outside the terms of the LOI for separate discussion with relevant authorities.

Thus, a joint Pikialasorsuaq Steering Committee may have only limited mandate in relation to the management of the area, and mainly focus on carrying out consultations, providing scientific advising, and increasing engagement between local hunters and public authorities. That said, the second and third recommendations of the 2017 Pikialasorsauq Commission report on establishing a protected area led by Inuit and allowing Inuit cross-border activities to travel or hunt seem to not be reflected in the LOI. The right of Indigenous peoples to trans-boundary activities in the sea is yet recognized under international law. For example, article 14(1) of the  ILO Convention 169 to which Denmark is a party recognizes the rights of nomadic Indigenous communities ‘to use lands [and marine areas] not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities’. Article 32 of the ILO Convention 169 further provides that governments ‘shall take appropriate measures, including by means of intern ational agreements, to facilitate contacts and cooperation between Indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields’. Similarly, Article 25 of the UNDRIP, which is endorsed both by Canada and Denmark, obliges states to recognize the rights of Indigenous peoples to ‘maintain and strengthen their distinctive spiritual [and cultural] relationship with their traditionally… used lands, territories, waters and coastal seas and other resources’. Article 36(1) of the UNDRIP further stipulates that: ‘Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders’. Legal protection of Inuit traditional fishing and hunting rights in a transboundary context is also provided in international law of the sea litigation, inter alia, under the doctrine of vested rights [e.g. South China Sea Arbitration, para 808].

Allowance of transboundary activities for the Inuit of Pikialasorsuaq could, however, not find any legal resonance with the existing development in place, as the LOI’s scope is generally broad and does not touch upon any such issues. This is further manifested through Denmark’s lack of participation in the LOI. Considering that for any question dealing with sovereignty, security, delimitation or border issues the Kingdom holds jurisdiction, Denmark should also have been involved in signing the LOI, should such a development be aimed at regulating cross-border Inuit activities.

  • Conclusions

It has been approximately seven years since the Pikialasorsuaq Commission was first established, with the region surrounding the North Water Polynya increasingly experiencing paramount socio-ecological changes. Given the LOI’s limited scope and non-binding character, it is difficult to assess what the establishment of a joint Pikialasorsuaq Steering Committee may mean in practice for the Inuit of Pikialasorsuaq. Yet, it demonstrates another step of political will expressed from both sides to acknowledge the Inuit peoples’ relationship to the Pikialasorsuaq and consider the 2017 proposals made by the Pikialasorsuaq Commission. Just about a year before the LOI was signed, the 2022 Hans Island agreement was adopted. The latter explicitly ensured rights for the Inuit of both Nunavut and Greenland to freedom of movement throughout the tiny limestone Hans Island (Tartupaluk) for “hunting, fishing and other related cultural, traditional, historic and future activities”. While the agreement over the uninhabited island may have a more symbolic rather than pragmatic value for traditional activities, the adoption of the 2023 LOI shows a second significant intention by public authorities to acknowledge the integrity of Inuit territories. Thus, whereas the recent LOI could be seen as a point of departure for future transboundary legal developments in the Arctic, time will show what the intention may mean in practice.

This post may be cited as: Apostolos Tsiouvalas, “Reflections on the Letter of Intent for Cooperation on the Pikialasorsuaq: What does it mean for the Inuit?” ( 31 October 2023), online: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/10/Apostolos_NCLOS-Blog_271023_Final.pdf

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Categories
Blog

Deep-Sea Minerals Exploitation: The 2-Year Rule Deadline is Running Out, What Happens Next?

By: Maria Madalena das Neves (Associate Professor at NCLOS, Faculty of Law, UiT-The Arctic University of Norway)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/06/MMN_Deepsea-Minerals-Exploitation_NCLOS-Blog_27062023.pdf

Matter commented on:  ISA draft exploitation regulations and the 2-Year rule

  1. Introduction

Nauru invoked  the ‘two-year rule’ enshrined in section 1(15)(b) of the Annex to the 1994 Agreement relating to the implementation of Part XI of UNCLOS (Part XI Agreement) on 25 June 2021 and announced the intentions of Nauru Ocean Resources Inc (NORI) to apply for the approval of a plan of work for exploitation. This effectively put the International Seabed Authority (ISA) under the clock to complete the adoption of rules, regulations and procedures (RRPs) for exploitation activities by 9 July 2023. When the Council of the ISA fails to complete and adopt the RRPs within this deadline, and if application for approval of a plan of work is pending, then, in accordance with section 1(15)(c) of Part XI Agreement, the Council “shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention [UNCLOS] and any [RRPs] that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex [to the Part XI Agreement] as well as the principle of non-discrimination among contractors”.

Categories
Blog Oil and gas Security law

The Nord Stream Pipelines through the Lens of Law and Geopolitics

By: Timo Koivurova (Research Professor at Arctic Centre, University of Lapland); Theresa Winkel (Doctoral Researcher at the Faculty of Law, University of Lapland)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/06/NCLOS-Blog_Koivurova_Winkel_Final.pdf

Matter commented on: Regulation of Nord Stream Pipelines

  1. Introduction

In the realm of European energy security, few topics have sparked as much debate and controversy as the Nord Stream pipelines. The two projects, consisting of Nord Stream 1 and the more recent Nord Stream 2, are known as one of Europe’s most significant energy infrastructure projects. Different from other pipelines, the intention behind the parallel pipelines was to transport natural gas from Russia to Germany, only transiting maritime zones (but no land territory of other states) on its Baltic Sea route. However, it is not only the size of the overall project that will be remembered for years to come, but also the political tensions, legal challenges, heated discussions on the potential implications for regional energy security and geopolitical dynamics, including the 2022 blasts that caused severe damage to both pipelines.

Categories
Blog

Towards a UN Plastic Pollution Treaty: Negotiations and Progress before INC2

By: Charlie JP Bennett (Visiting Trainee at NCLOS; Legal intern at T.M.C. Asser Institute and Space Court Foundation)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/05/Final_Plastics-negotiation_NCLOS-blog_30052023.pdf

Matter commented on: Progression toward negotiation and conclusion of a new UN Plastic Pollution Treaty

1. Introduction

This week marked the beginning of the second round of negotiations of the Intergovernmental Negotiating Committee (INC2) on a new treaty focused on plastic pollution, including the marine environment (the Plastics Treaty). It’s mandate, found within United Nations General Environment Assembly (UNEA) Resolution 5/14, entitled ‘End plastic pollution: Towards an international legally binding instrument’, was adopted on 2nd March 2022. The negotiations follow an upsurge in attention to the problem of marine plastic pollution that is predicted to triple by 2040 if serious action is not taken. While some international reaction has slowly emerged, the treaty negotiations represent a step further that is imperative to safeguard the worlds marine environments from this rapidly growing problem.

Categories
Biodiversity beyond national jurisdiction (BBNJ)

CITES and the BBNJ Treaty: Some Reflections

By: Mazyar Ahmad

PDF: CITES and BBNJ Treaty_NCLOS Blog_final.pdf

Matter commented on: Interaction between CITES and BBNJ Treaty

1. Introduction

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) nineteenth Conference of Parties (CoP19) was held in Panama between 10-24 November 2022. Under agenda item ‘introduction from the sea,’ CoP19 directed the CITES secretariat to monitor the then-ongoing discussions on the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). CoP19’s decision to direct its secretariat to monitor the discussions at the ongoing BBNJ negotiations was the reiteration of its earlier decision 17.181 taken at CoP17 at Johannesburg in 2016. Considering the interest CITES member States had shown toward the then-ongoing BBNJ negotiations, this blog post seeks to explore how the two regimes relate to each other, and if they overlap. As shown below, the two regimes do overlap, which might lead to a potential problem. This blog post begins by providing a brief overview of the CITES and the newly finalized BBNJ Treaty underscoring their scope of application. Section 3 examines the relevant provisions of the two instruments closely to highlight the overlap mentioned above. Section 4 delves into the regime interaction provision of both regimes to determine how this overlap may be resolved, followed by a discussion of the potential problem which may be caused due to the overlap, in section 5. Finally, section 6 concludes by asserting that cooperation between the two regimes may be the possible way out.

Categories
Law of the Sea Convention (UNCLOS)

Bolstering the Area’s Benefits to Humankind

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))

PDF: Samantha Robb_Bolstering the Area’s benefits to humankind_NCLOS Blog_28022023.pdf

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

1. Introduction

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.

Categories
Law of the Sea Convention (UNCLOS)

Introduction to the Outcomes of the 2022 NCLOS Conference on Ocean Space

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.

Introduction:

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.’

The full conference report is available here.

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