Law of the Sea Convention (UNCLOS)

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.

Arctic Ecosystem approach

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.

Security law

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.

Biodiversity beyond national jurisdiction (BBNJ)

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.