By: Sofie Elise Quist and Bastiaan Klerk (UiT, Norwegian Centre for the Law of the Sea).
Matter commented on: NCLOS Conference on “Future Trajectories for the Law of the Sea”, 6-7 November 2023, Tromsø, Norway.
The 1982 UN Convention on the Law of the Sea (UNCLOS) seen by many as the constitution of the oceans has the ambition to articulate a comprehensive legal order that could settle “all issues relating to the law of the sea”. UNCLOS has been long characterized as a “living treaty”, able to adapt to new challenges unknown at the time of its negotiation. This capacity is now however arguably under increasing pressure due to a range of global threats such as climate change, widespread pollution, technological paradigm shifts such as those related to artificial intelligence, and rising geopolitical and maritime security tensions as the world becomes multipolar.
As to the latter, the threats to shipping and critical undersea cables and infrastructure illustrate how interwoven many problems are, such as those related to maritime security, the marine environment, the safety of life at sea, and digital connectivity. Yet, it is probably the global and rapid environmental and climate change and the attendant pressures on both the physical environment and the normative landscape that are raising the most fundamental questions.
Law of the sea scholars have responded to such pressures by exploring questions such as the fragmentation of the law of the sea and ocean governance and how far UNCLOS can adapt in the face of new challenges, including questions linked to its “constitutional” status.
In the context of the Anthropocene, however, the stakes are higher and unprecedented, and the standard means for adapting UNCLOS – interpretation and normative developments – may not be sufficient. The mounting pressures are in fact arguably deep, interrelated and systemic. As such they raise novel and profound questions that arguably require not only novel legal responses but also, and crucially, novel theoretical and methodological approaches and novel legal imaginations. We are perhaps approaching a new “grotian moment”.
Against this background, on 6-7 November 2024, the annual NCLOS conference brought together leading and early career scholars working on ocean law and governance for two engaging days of discussion the possible future trajectories of the law of the sea.
The conference keynotes and papers examined diverse topics from the 2024 ITLOS Advisory Opinion on climate change and novel interaction between legal regimes to practices of States that tear at the fabric of the current legal framework. The papers presented highlighted conflicting views on ocean justice; the relationship between the ocean and global environmental threats; new technological shifts; changing human security issues at sea; new extractive horizons; and novel epistemic provocations as well as reflections on key concepts and categories that do or should underpin the law of the sea.
The nine thematic conference panels were organised around the following topics: the COSIS Advisory Opinion; deep seabed mining; autonomous vessels; maritime security; climate change; new trends and challenges; the BBNJ; the ocean environment; and young voices on ocean futures.
Judge Tomas Heidar, president of the International Tribunal for the Law of the Sea (ITLOS), delivered the keynote address on the transformative potential of the 2024 ITLOS Advisory Opinion on climate change and the law of the sea. Judge Heidar thus opened the conference by emphasizing the enduring potential of UNCLOS to address contemporary challenges, and the important role of ITLOS in ensuring that UNCLOS remains a powerful living instrument, thirty years after its entry into force.
The second keynote address of the conference was delivered by Professor David Freestone, who addressed the international law dimensions of sea level rise. One of the most urgent ocean challenges of our time. Drawing on the work of the International Law Association (ILA) and the International Law Commission (ILC) and emerging state practices, Professor Freestone delivered a hopeful speech that urged for robust international legal frameworks to mitigate the far-reaching consequences of climate change.
These multiple currents of thought about the future of ocean law and governance convalesced in a final high-level panel moderated by Richard Barnes (University of Lincoln and NCLOS) featuring Joanna Mossop (Victoria University Wellington), Karen Scott (Canterbury University), David Freestone (Visiting Scholar at George Washington University and Co-rapporteur ILA Committee International Law and Sea Level Rise) and Nengye Liu (Singapore Management University).
The ensuing discussions were more hesitant about the transformative potential of UNCLOS for the future of the law of the sea. Considering how the convention’s imagined potential for the Global South remains underwhelming, how rapid technological developments exceed legal ones, the burgeoning power of private maritime sectors, and structural and epistemic justice issues within the law of the sea itself. Perhaps, as one audience member put it during the final panel discussion, UNCLOS is in many ways a “house that needs to be rebuilt”. An important outcome of the conference is thus the emphasis that responsible and innovative builders, from ocean defenders to lawyers, are pivotal for the future trajectory of the law of the sea.
The full conference report is available here.