Nauru and Deep-Sea Minerals Exploitation: A Legal Exploration of the 2-Year Rule

By: Catherine Blanchard

PDF version: Catherine Blanchard_170921_NCLOS blog 

 Matter commented on: Nauru and the 2-year rule in deep-sea minerals exploitation

 1            Introduction

On 25 June 2021, the small Pacific island nation of Nauru put the international scientific, legal and political ocean community in a state of alert. It requested the International Seabed Authority (ISA), whose mandate is to regulate and control all mineral-related activities in the international seabed (also referred to as the Area) (United Nations Convention on the Law of the Sea (UNCLOS), art. 157(1); About the ISA), to complete the rules, regulations and procedures (RRPs) necessary to approve plans of work on deep seabed exploitation, which have been in development since 2011. In fact, Nauru claims that Nauru Ocean Resources Inc (NORI), an Nauruan entity sponsored by the Nauruan State, will soon be ready to submit plans of work for approval. This request was made under paragraph 15 of section 1 of the Annex to the Agreement relating to the implementation of Part XI (Part XI Agreement) of UNCLOS. Paragraph 15 stipulates that if a State party, which is ready to submit a plan of work for approval, requests the ISA to complete the elaboration of all relevant RRPs for exploitation, the ISA must do so within two years of the request. If the RRPs have not been elaborated within two years, the ISA shall provisionally approve the plan of work on the basis of whatever (draft) RRPs in place at the time. The rationale for the provision is seemingly to ensure the access to deep-sea resources and the development of the relevant exploitation rules in case of a deadlock at the Council, the executive organ of the ISA (Oxman 1994 at 692-693).

The triggering of this provision, referred to as “the 2-year rule”, has led to various reactions from all sides. This blog post engages in a legal analysis of the background, meaning and impact of the 2-year rule. As a legal analysis cannot be taken apart from the context in which it arises, this post first starts by highlighting the regulatory and political background against which the Nauruan request is made, before it turns to analyzing different components of the 2-year rule. The post further discusses the potential links between the 2-year rule and obligations of sponsoring States. It is hoped that this post will contribute to the emerging reflection on the legal impact of the 2-year rule, which is triggered for the first time by a State party.

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Launch of a New Research Project at NCLOS: Developing Good Ocean Governance of the Arctic in Times of Unpredictable and Rapid Changes (DOGA)

By: Ingvild Ulrikke Jakobsen, Hilde Woker, Iva Parlov

PDF version: Launch of a New Research Project at NCLOS_010721_NCLOS_Blog

Matter commented on: developing good ocean governance of the Arctic

 

The Norwegian Centre for the Law of the Sea (NCLOS) is excited to announce the launch of a new research project: Developing Good Ocean Governance of the Arctic in Times of Unpredictable and Rapid Changes (DOGA), funded by the Norwegian Research Council. The DOGA project is led by Professor Ingvild Ulrikke Jakobsen and assembles a group of researchers from NCLOS, the Norwegian College of Fishery Science, the Norwegian Institute for Water Research (NIVA), the Moscow State Institute of International Relations in Russia, and Dalhousie University in Halifax in Canada. The aim of the project is to contribute to good ocean governance of the marine Arctic by critically investigating the implementation of the ecosystem approach in Norway, within a regional context.

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Posted in Arctic, ecosystem approach, Environment, Uncategorized | Leave a comment

Maritime Security Threats and the Passage Regime in the Bab el-Mandeb

By: Alexander Lott

PDF version: Alexander Lott_210621_NCLOS Blog 

Matter commented on: Maritime security threats and the passage regime in the Bab el-Mandeb

 

1 Introduction

The strait of Bab el-Mandeb separates Africa from the Arabian Peninsula and is an important element in the connection of the Mediterranean Sea and the Red Sea with the Indian Ocean. The Suez Canal interlinks the Mediterranean with the Red Sea, while the Bab el-Mandeb connects the Red Sea with the Indian Ocean. In Arabic, Bāb al-Mandab stands for “the gate of tears” (Encyclopaedia Britannica), which in the present-day context is a fitting name for a sea passage in a region that has borne tragic sufferings: a protracted humanitarian crisis and armed conflicts in Yemen, Somalia, and the Ethiopian province of Tigray, a brutal dictatorship in Eritrea, and genocide in Sudan. At the same time, the Bab el-Mandeb is the world’s third-largest maritime oil chokepoint after the Strait of Hormuz and the Strait of Malacca. The oil flow through the Bab el-Mandeb increased from 5.1 million barrels per day (b/d) in 2014 to 6.2 million b/d in 2018 which accounts for roughly a tenth of total seaborne-traded oil (EIA, 2019). The Bab el-Mandeb bears particular strategic importance for Europe as most of the European Union’s (EU) maritime commerce with Asia crosses this narrow sea passage.

This blog post first discusses the passage regime in the Bab el-Mandeb. Second, it examines the threats posed by terrorism, piracy, civil war, and a hybrid naval war to international navigation through that strait. In this context, hybrid warfare is understood as a phenomenon “where a wide range of overt and covert military, paramilitary, and civilian measures are employed in a highly integrated design” (NATO, 2014, para 13; see also NATO, 2021, para 3). This blog post shows that these threats to international shipping in the Bab el-Mandeb have emerged as waves. As soon as one threat starts to fade away, another emerges. Third, the blog post seeks to find out the main causes of the instability of international navigation through the geopolitically turbulent waters of the Bab el-Mandeb.

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Posted in Law of the Sea Convention, maritime security threats, passage regime | Leave a comment

What Role for Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas?

By: Mana Tugend

PDF version: Mana Tugend_260421_NCLOS Blog

Matter commented on: the Role of Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas

 

1 Introduction

The rapidly evolving ocean technologies and environmental changes induced by anthropogenic climate change have led to unprecedented pressures on the ocean, leading inter alia to ocean acidification, loss of biodiversity and pollution of air, water and soil. The need for better governance of human activities in the ocean space has been widely recognized for years as the world drastically evolved since the establishment of the current international legal framework for ocean governance, the 1982 United Nations Convention on Law of the Sea (UNCLOS). A process towards the establishment of an international legally binding instrument (ILBI) under UNCLOS on the conservation and sustainable use of marine biodiversity located in areas beyond national jurisdiction (BBNJ) is currently ongoing. At the moment and until the BBNJ agreement is finalized, more than 40% of the Earth’s surface receives limited effective legal protection for its natural environment and functional ecosystems (Brodie Rudolph et al. 2020). The BBNJ negotiations represent a historical opportunity to build a just and sustainable legal framework for ocean commons relying on an ecosystem-based approach for the benefit of both ecosystems and the people depending on these for survival. Indigenous peoples especially rely on a rich biodiversity and a healthy environment to maintain their traditional lifestyles. They developed and hold a vast amount of knowledge called traditional knowledge (TK), an integrated part of an Indigenous people’s identity that is transmitted across generations. This blog post wishes to address the question of the use of TK for the conservation of marine biodiversity in areas beyond national jurisdiction (ABNJ), a question currently addressed at the negotiations for the establishment of a BBNJ instrument. The scope of the discussion especially focuses on the incorporation of Indigenous peoples and TK holders with respect to conservation mechanisms in Arctic ABNJ – the high seas and the deep seabed located beyond the limits of coastal states’ jurisdiction (Ardron et al. 2013). This blog post primarily focuses on the relevance of TK with respect to the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs), in Arctic ABNJ.

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Posted in Arctic, Areas beyond national jurisdiction (ABNJ), Biodiversity beyond national jurisdiction (BBNJ), Environment | Leave a comment

Convenient shipbreaking: shortcomings of environmental obligations for EU ship owners and possible solutions

By: Eva Sinemus

PDF version: Eva Sinemus, Final_120321,NCLOS Blog

Matter commented on: Shipbreaking and shortcomings of environmental obligations for EU Ship Owners

 

1 Introduction

Global maritime trade reached 11.08 billion tons in 2019 (UNCTAD, Review of Maritime Transport 2020, 2). At the end of their life, vessels are scrapped, mostly in environmentally highly questionable conditions. Unfortunately, 90% of scrapping continues to take place in developing States using the beaching method (Barua et al 2018, 30881), allowing pollutants to seep into the coastal and marine environment. Workers take vessels apart with gas torches while liquids are discharged on the beaches and in the sea, and wastes are burned on the beach (Galley 2014, 11). The harmful beaching practice is especially widespread among vessels owned by EU nationals (EU owners) (European Commission, Ship recycling: reducing human and environmental impacts 2016, 3). EU owners scrap their end-of-life vessels in the developing States at substandard shipbreaking yards, with substantial impacts on the environment. An uncomfortable truth comes to show: With EU lawmakers watching, EU owners operate vessels for decades, profiting greatly. As soon as the profit margins decrease, there are no qualms to sail those vessels full of asbestos and oil onto a developing State’s beach, destroying the environment in the process.

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Virtual progress towards a new global treaty on marine biodiversity in areas beyond national jurisdiction

By: Christian Prip

Pdf:NCLOS Blog Prip New Treaty

Matter commented on: Virtual inter-sessional work of the Intergovernmental Conference on an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).

I. Introduction

Like many other international processes involving travelling and meeting activity, the COVID-19 pandemic has also affected the process to elaborate an implementing Agreement under the Law of the Sea Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).  The process has been the subject of a number of previous blog posts (including here and  here). A fourth and last scheduled substantive session of the intergovernmental conference (IGC) aimed at negotiating the Agreement was supposed to have taken place in March 2020 in the UN Headquarters but has been postponed to a date yet to be defined by the UN General Assembly.

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Posted in Areas beyond national jurisdiction (ABNJ), Biodiversity beyond national jurisdiction (BBNJ), Environmental Impact Assessment (EIA), Marine biodiversity, Marine genetic resources, Strategic environmental assessment (SEA) | Leave a comment

EEZs in the Adriatic: challenges and opportunities in a semi-enclosed sea

By: Thomas Bickl

PDF VersionNCLOS Blog Bickl III_EEZs Adriatic

Matter commented on: EEZ declarations of Croatia and Italy

I. Introduction

This blogpost is going to discuss the implications of the EEZs of Croatia and Italy in the Adriatic with regard to the interests of and open issues with third States, hydrocarbon exploration and exploitation, maritime transport, fishing, and opportunities for offshore renewable energies.

The Adriatic Sea, a sub-sea of the Mediterranean, as a semi-enclosed sea previously accounted for three riparian States: Albania, Italy, and Yugoslavia. The dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s has led to the establishment of four new littoral States: Croatia, Bosnia-Herzegovina, Montenegro, and Slovenia. Generally, the Adriatic’s eco-system is particularly vulnerable as its waters are shallow and the exchange or renewal of waters with the Ionian Sea through the relatively narrow Strait of Otranto is limited (Vidas 2013: 353; Blake and Topalović 1996: 4; see also Gačić et al 2001).

Fig. 1     Riparian States and main ports in the Adriatic (source: author; base map: d-maps.com)

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Lessons to be learned from OSPAR’s network of marine protected areas in areas beyond national jurisdiction, in light of the BBNJ negotiations

By: Bas Klerk

PDF versionNCLOS Blog_Bas Klerk

Matter commented on: BBNJ negotiations; lessons to be learned from OSPAR’s MPA regime in ABNJ.

I          Introduction

The first steps toward the adoption of an international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ) were taken over fifteen years ago, with the establishment of the BBNJ Working Group by the UNGA. Today, the process is in its final phase as three out of four scheduled intergovernmental conferences (IGCs) have been completed, and the contours of the ILBI are becoming increasingly visible. However, the wait for ‘the once and future treaty’ (Tiller and others, 2019) will inevitably be a bit longer due to the ongoing pandemic, as IGC-4 has been postponed and not yet rescheduled. To keep the momentum going, President Lee decided to hold intersessional work. On area-based management tools (ABMTs) including MPAs, this will be done, rather innovatively, through the use of an online forum. This new form of negotiation will hopefully allow the delegations to cover enough ground so that the process can be concluded at IGC4 as planned.

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EU v. Turkey in the Eastern Mediterranean: a good moment to sponsor dispute settlement

By: Thomas Bickl

PDF version:NCLOS T Bickl Blog no fts EU-Turkey

Matter commented on: Maritime claims in the Aegean and Eastern Mediterranean; upcoming European Council 1/2 October 2020

I. Introduction

The situation in the Eastern Mediterranean is on the agenda of the meeting of the EU Heads of State and Government (European Council) on 1 and 2 October 2020. This paper looks into the international law issues surrounding the maritime disputes in the Eastern Mediterranean and the Aegean Sea and draws on the way forward for the resolution of the disputes involving Greece, Turkey and Cyprus.

Greece and Turkey do not have any agreement on a maritime boundary. Historically, the territorial status of the Dodecanese Islands in the south-eastern Aegean is governed by the 1923 Lausanne Peace Treaty (where Turkey ceded the Dodecanese Islands to Italy) and the Paris Peace Treaty between Italy and the Allied Powers from 1947 (Italy had to hand over the Dodecanese Islands to Greece) fixing the modern boundaries of Greece, which had become independent from the Ottoman Empire in 1832 (see e.g. Vassalotti 2011: 387-390, Van Dyke 2005: 64-67). Cyprus, which Great Britain had acquired from the Ottoman Empire in 1878, became independent in 1960. In 1974, Turkey invaded the north of the island following a coup d’état aiming at linking the island to Greece (Kalkan 2020: 169) leading to the establishment of the northern entity on the island only recognized by Turkey.

Fig. 1 Overlap of EEZ agreements and claims in the Eastern Mediterranean. Source: Yiallourides 2020

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The Sea Dominates the Law: Rise in Sea Level as a Grotian Moment

By: Bharatt Goel

Pdf version: Bharatt Goel_Blog post

Matter commented on: Sea level rise and law of the sea

The global rise in sea level has manifested a challenge to international law and opened a Pandora box of legal questions prompting the International Law Commission to include it in its long-term program of work. One such question pertains to the change in maritime jurisdiction and sovereignty of States, especially the low lying coastal and island States. Article 5 of the UN Convention on the Law of the Sea, 1982 [hereinafter, alternatively the Convention or UNCLOS] stipulates that a State’s maritime zones are determined by the normal low water-line along its coast i.e. baseline. Further, pursuant to article 47(1) of the Convention, the outermost geographical features are used as coordinates or basepoints to draw baselines of archipelagic States. With the help of these baselines and basepoints, all other maritime entitlements of a State are demarcated on the sketch board of maritime delimitation.  Continue reading

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