Author: agy005

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.

ITLOS Advisory Opinion on Climate Change

INTRODUCTION

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued its landmark Advisory Opinion on Climate Change and International Law, the first of a series of advisory opinions on climate change across various judicial fora (see also ICJ and IACHR). The Opinion was requested by the Commission of Small Island States on Climate Change and International Law (COSIS), which presented the Tribunal the following questions:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:

(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

The ensuing Opinion is remarkable for several reasons. Not least because it is the first instance in which an international court or tribunal has addressed the issue of climate change from the perspective of the law of the sea. However, the significance of this Opinion extends beyond its novelty. Indeed, ITLOS lived up to its reputation as a progressive Tribunal, as it boldly interpreted the provisions in the UN Convention on the Law of the Sea (LOSC) on pollution expansively as to encompass greenhouse gas (GHG) emissions, thereby rendering the comprehensive regime on marine pollution applicable to climate change. Bolstered by state-of-the-art scientific insights, the Tribunal strongly endorsed the objective to limit global temperature increase to 1.5°C above pre-industrial levels, found that States are under an obligation to restore marine habitats and ecosystems, and recognized the importance of the ocean as “the world’s largest carbon sink”, among other significant findings.

Spanning an impressive 153 pages, the Opinion addresses a plethora of issues, ranging from fisheries and marine protected areas to geoengineering and environmental impact assessments. This series of blogs takes a deep dive into selected issues addressed by the Tribunal. Endalew Lijalem Enyew and Mazyar Ahmad assess the Tribunal’s findings on the notion of ‘common but differentiated responsibilities and respective capacities’, and technical assistance through a TWAIL lens. Two blogs will look at how the Tribunal dealt with questions relating to how LOSC is nested within its wider legal context: Bastiaan Klerk takes a closer look at the interrelationship between the Paris Agreement and LOSC, and Ellen Hey looks at how the Tribunal dealt with other relevant instruments. Richard Barnes will provide an assessment of how ITLOS addressed the contentious issues of its jurisdiction and discretionary power. Finally, Vito De Lucia will scrutinize the obligation of ‘restoration’ as part of the preservation of the marine environment.

Through this series, which will be published on a rolling basis over the course of the coming montchs, we aim to elucidate the implications of the ITLOS Advisory Opinion for the further development of international law, as well as for future jurisprudence in the realm of climate change and the law of the sea. The series of blog posts on the specific issues covered by the Tribunal are as follows:

1. Endalew Lijalem Enyew and Mazyar Ahmed, “ITLOS’s Advisory Opinion on the notion of ‘common but differentiated responsibilities’ to protect the marine environment from climate change: A closer look from the Standpoint of developing States”.
2. Bastiaan Klerk, “To Lex Specialis, or not to Lex Specialis? The Paris-UNCLOS Nexus in the ITLOS Advisory Opinion on Climate Change”.
3. Ellen Hey, “Some Reflections on External Rules in ITLOS’ Advisory Opinion on Climate Change”.

By: Daniel Stein, Assistant Professor, OP Jindal Global University, Jindal Global Law School; Visiting Researcher, Freie Universität, Berlin.

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2024/06/Daniel-NCLOS-blog-ITLOS-AO-on-Climate-change-and-CLC_PDF.pdf

Matter Commented on: The Conventions regulating Civil Liability for oil spills were not explicitly mentioned by the ITLOS, but several new duties related to transboundary harms and environmental restoration could have implications for the rights and remedies available to States when remediating this type of marine pollution.

1. Introduction

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered its Advisory Opinion on the duties of States under the UN Convention on the Law of the Sea (UNCLOS) to respond to the threats of climate change. Specifically, the request by the Commission of Small Island States on Climate Change and International Law (COSIS) asked the Tribunal to elaborate on the specific obligations of State Parties to UNCLOS ‘to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere’ and, more generally, ‘to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification.’ As such, the focus of the Advisory Opinion is mainly related to the marine pollution caused by the rise of greenhouse gas emissions (GHGs) in the atmosphere caused by three distinct sources: ship emissions, plane emissions, and from land-based sources. This is done by first connecting anthropogenic GHG emissions to the definition of ‘pollution of the marine environment’ contained in Article 1(1)(4) of UNCLOS, which requires, ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects,’ including ‘harm to living resources and marine life [and] hazards to human health.’

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/179/2024/04/Maria-Seabed-Mining_-NCLOS-Blog_290424.pdf

Matter commented on: Norwegian Government’s plans for seabed mining and theNorwegian Parliament’s decision to open the Norwegian continental shelf to seabed mining.

1. Introduction

On the 12^th of April 2024, the Council of State (Kongen i Statsråd) formally decided to open parts of the Norwegian Continental Shelf (NCS) in the Norwegian Sea and Greenland Sea to seabed mining activities. This decision follows the Norwegian Parliament’s controversial approval, of 9^th of December 2023, to open parts of the NCS to seabed mining activities (by 80 votes in favour to 20 against, on the main points of the recommendation of the Standing Committee on Energy and the Environment to the Parliament – Innst. 162S (2023-2024)). The opening of the NCS is, for the moment, only for exploration activities, not exploitation. According to Section 1-5 of the Act relating to mineral activities on the Continental Shelf (Seabed Minerals Act), exploration (survey) encompasses exploration for and mapping of mineral deposits for commercial purposes (which includes activities used for survey such as geological, geochemical, geotechnical activities and use of facilities), whereas exploitation (extraction) refers to the actual extraction of minerals for commercial purposes. The Ministry of Energy (previously Ministry of Petroleum and Energy) is currently preparing the first round of licensing, which is expected to start in 2024, with the first licenses projected to be granted in the first half of 2025.