Author: sso170

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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.

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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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Ecosystem approach

A Methodology for Evaluating the Ecosystem Approach in National Laws and Policies

By: Lena Schøning

PDF: Lena-A-methodology-to-evaluate-the-ecosystem-approach-in-national-laws-and-policies_NCLOS-blog_Final.pdf

Matter commented on: A theoretical perspective, criteria, and methods for evaluating the ecosystem approach in national laws and policies.

1          Introduction

The ecosystem approach has been part of international environmental law since the 90s. Since then, the Conference of Parties to the Convention on Biodiversity has called upon nation states to implement the approach locally, nationally, and regionally. How has the ecosystem approach been implemented nationally? This blog post suggests and sketches a theoretical perspective, criteria, and methods for evaluating the ecosystem approach in national laws and policies concerning activities. Developing and instigating a discussion on methods for such evaluation could lead to more and improved evaluations, which could further lead to improved uses of the ecosystem approach in laws and policies. The criteria could further be used to operationalize the ecosystem approach.

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Biodiversity beyond national jurisdiction (BBNJ) Ecosystem approach

Operationalizing the Ecosystem Approach in the BBNJ Treaty

By: Vito De Lucia

PDF: Vito de Lucia_181022_NCLOS Blog.pdf

Matter commented on: 5th Session of the Intergovernmental Conference towards a new treaty on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction, Further Refreshed Draft Text, A/CONF.232/2022/CRP.13/Add.1

1         Introduction: IGC5 and the “Further Refreshed Draft Text”

After the long COVID hiatus and the digital intersessional discussions, the BBNJ negotiations re-started in earnest in 2022 with two sessions of the intergovernmental conference (IGC): the fourth and last of the sessions stipulated in the UNGA resolution (A/RES/72/249) that launched the IGC was held in March 2022; and an additional fifth session, inevitable given the state of the negotiations at the end of IGC4 was held in August 2022 (IGC5). While IGC5 was not conclusive, much progress was made on many of the key issues, and a series of revisions of the negotiating text were produced by the Presidency during IGC5 (so called “refreshed” texts), in order to streamline the negotiations. At the end of an intense negotiating session, and amidst renewed commitments to finalize the BBNJ treaty, IGC5 was suspended without a consensus on a text, but with the view of resuming the same fifth session as soon as possible in 2023 (rather than providing for a sixth session of the IGC). This clearly gives the sense of optimism about concluding the negotiations at the resumed session of IGC5, despite disappointment of the parts of many delegations, which gave rise to emotional closing statements, especially on the part of Pacific and Small Island State delegations, for the missed opportunity to close the deal in August, as reported by the Earth Negotiations Bulletin (ENB, p. 10). However, this new pause gives room for some last-minute reflections.

In this blog post, I shall take the opportunity to articulate some concrete suggestions for a meaningful integration of the ecosystem approach (EA) in the BBNJ treaty, by linking its role as one of the overarching principles with the role that strategic environmental assessments (SEAs) may play in its operationalization. The analysis proceeds on the basis of the provisions and formulations contained in the latest draft circulated during IGC5, the further refreshed draft text (A/CONF.232/2022/CRP.13/Add.1). It is important to note, however, that the further refreshed draft text does not necessarily represent consensus, as adamantly expressed by China (ENB, p.9) at IGC5, which stressed that “in the drafting of this document, all views should have been treated equally and the document should have reflected all issues” (ENB, p.9), emphasizing at the same time how the BBNJ negotiations is a state-led process. It is also unclear at this point whether this further refreshed draft text will be the basis for further negotiations at the resumed session of IGC5.

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Arctic Delimitation

The Problems of Overlapping Governance on the Arctic Continental Shelves Pending Delineation and Delimitation

By: Dr. Ekaterina Antsygina (Postdoctoral Researcher, The University of Hamburg) & Cornell Overfield (Research Analyst, Center for Naval Analyses)

Corresponding author: Dr. Ekaterina Antsygina, ekaterina.antsygina@gmail.com

Pdf: Ekaterina Antsygina and Cornell Overfield_04102022_ the NCLOS blog_ final.pdf

Matter commented on: Problems of overlapping governance on Arctic continental shelves

1. Introduction

The continental shelf has been the dispute par excellence in the narrative that the Arctic is an ungoverned region. The seabed of the Central Arctic Ocean is subject to overlapping “claims” by Canada, Russia, and Denmark (via Greenland), and alarming reports have suggested that competing rights over the resources might culminate in conflict between Russia and the West. This myth has been widely challenged, but another myth lives on: that the seabed beyond 200 nautical miles (M) remains ungoverned until the Commission on the Limits of the Continental Shelf (CLCS) issues recommendations on the outer limits of continental shelves and the asserting states divvy up the pie. In fact, these states already can and do exercise control over the seabed areas they assert by virtue of the doctrine of inherent rights.

This coastal state prerogative creates problems at all stages before a final delineation of the shelf’s outer limits and a final delimitation of overlapping entitlements. Most importantly, where entitlements overlap and have not yet been delimited, potential users might proceed with some activities without approval from all states asserting entitlements to the relevant shelf area. Action based on unilateral decision could sharpen tensions and undercut trust among Arctic states. To minimize the risk of this pending the final delimitation of the Arctic continental shelves, Arctic states should establish a mechanism to authorize activities on overlapping entitlements beyond 200 M. This mechanism should be created as soon as possible among the United States, Canada, Denmark, and Russia (subject to changes in the geopolitical situation). On this backdrop, this blog post explores legal issues connected with activities on overlapping continental shelf entitlements in the Arctic Ocean and pre-delineation and pre-delimitation problems that the Arctic coastal States are facing.

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Northern Sea Route Security law

New Draft Law on the Russian Arctic Straits – Putin’ Money Where the Mouth is?

By: Jan Jakub Solski

PDF: Jan Solski_14092022_NCLOS blog.pdf

Matter commented on: Draft Federal Law of the Russian Federation “On the Amendments to the Federal Law on the Internal Sea Waters, Territorial Sea and Contiguous Zone of the Russian Federation, 31 July 1998, No. 155-FZ (on the procedure for the passage of foreign warships and other sea vessels operated for non-commercial purposes in the internal sea waters of the Russian Federation)” (2022 Draft Law).

1         Introduction

The 2022 Draft Law was introduced for consideration in the Russian Duma in August 2022. It deals with the right of entry of foreign warships to internal waters in the Northern Sea Route (NSR) and aims to adjust the regime of innocent passage in the Russian territorial sea. This blog analyses the proposed legislation in the larger context of other documents recently adopted by the Russian Federation (unfortunately only available in Russian):

  • Decree of the Government of the Russian Federation of 16 November 2021, No. 1959, “On Approving the List of Geographic Coordinates of Points Determining the Position of Baselines for measuring the breadth of the territorial sea, contiguous zone, exclusive economic zone and continental shelf of the Russian Federation off the mainland coast and islands of the Russian Federation in the Arctic Ocean and on declaring invalid on the territory of the Russian Federation the section “Arctic Ocean” of the list of Geographic Coordinates of Points Determining the Position of Baselines for measuring the breadth of the territorial sea, contiguous zone, exclusive economic zone and continental shelf of the USSR off the mainland coast and islands of the Arctic Ocean, the Baltic and Black Seas, approved by the decision of the Council of Ministers of the USSR ,15 January 1985, No. 56-22 (2021 Decree on Arctic Baselines), and
  • Decree of the President of the Russian Federation of 31 July 2022, No. 512 “On the approval of the Maritime Doctrine of the Russian Federation” (2022 Maritime Doctrine).
Continue reading “New Draft Law on the Russian Arctic Straits – Putin’ Money Where the Mouth is?”
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Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Recognizing Recognition: An Indispensable Element in a Global Regime for High Seas Marine Protected Areas

By: Bastiaan Ewoud Klerk

Matter commented on: Recognition of regional and sectoral marine protected areas (MPAs) under the international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ)

PDF Version: Bastiaan E Klerk_270722_NCLOS_blog post.pdf

1         Introduction

In the midst of global biodiversity and climate crises, global policymakers are resuming negotiations for a new implementing agreement under United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ) in August 2022 (UN General Assembly Resolution 76/564). Following the fourth session of the intergovernmental conference (IGC-) in March, which by some has been remarked the “most productive of the entire process” (IISD, IGC-4 summary, at p. 20), expectations for the fifth session of the IGC- (IGC-5) are high. Given the unprecedented decline of global biodiversity, with a recorded average 68% decrease in monitored populations of mammals, birds, amphibians, reptiles and fish between 1970 and 2016, (WWF Living Planet Report, 2020) there is an obvious and urgent need for a treaty that allows for better protection of high seas biodiversity. The high seas, covering approximately half the Earth and comprising nearly 95% of the ocean’s total volume, are an indispensable link in global efforts to halt biodiversity loss (Parliaments for Global Action, 2020). They harbour diverse and abundant life and are essential to many species who migrate through and over them – whales, seals, tuna sharks, albatross, and many more. Yet, at present, only 1,2% of the high seas are covered by marine protected areas (MPAs) (Protected Planet Report, 2020).

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Biodiversity beyond national jurisdiction (BBNJ) Marine Protected Areas

Can the BBNJ Treaty Support Dynamic Management for Arctic MPAs?

By: Andrea M. Fisher

Matter commented on: BBNJ Treaty and dynamic management of MPAs

PDF Version: Fisher_BlogPost_26052022-_Final.pdf

1. Introduction

The ongoing negotiations for a global treaty on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) in part seek to fill the legal and governance gap for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ). The likely outcome — an Internationally Legally Binding Instrument (ILBI) — will facilitate the designation of new MPAs in ABNJ. Since negotiations are ongoing, a platform remains for discussing how the MPA mechanism of the ILBI can support advances in science and technology and potentially better respond to evolving risks to BBNJ.

This blog post, based on the author’s master’s thesis (Fisher, ‘‘Technical and Legal Implications for Dynamic Legalities…,’ 2021’’ and hereafter, ‘Fisher, LL.M. Thesis, 2021’), highlights one novel approach to area-based management called Dynamic Ocean Management (DOM). With DOM, spatial and temporal regulatory measures can constantly be updated to reflect changes to the marine environment in near real-time (see, e.g., Welch et al., 2019). For MPAs, it can lead to ongoing shifts of protected area boundaries or management regulations based on new ocean conditions (e.g., the presence of a vulnerable species). The approach could prove especially effective for conservation of BBNJ in marine environments facing rapid change and uncertainty, such as the Central Arctic Ocean (hereafter, Central Arctic Ocean is used to describe the ABNJ of the Central Arctic Ocean).

Scholars have discussed DOM’s promising potential for BBNJ conservation (see, Crespo et al., 2020 and Maxwell et al., 2020), inspiring a more specific question addressed in this post: how can the BBNJ Treaty accommodate DOM decision-making for Arctic MPAs? The decision-making focus is due to a notable juxtaposition: DOM’s ongoing, near real-time decision-making process and international law’s consent-based procedures that value stability and certainty. The Arctic focus emerges due to the potential usefulness of a DOM approach for a rapidly changing Central Arctic Ocean and simultaneously grounds the discussion in specific BBNJ relevant entities and context. Before exploring how the ILBI could support a DOM approach to Arctic MPAs, a brief overview of DOM and its potential for Central Arctic Ocean MPAs is provided.

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Security law

Guidelines for Grey Zone Naval Incidents: Distinguishing between the Rules of Armed Conflict and Law Enforcement

By: Alexander Lott

PDF Version: Alexander Lott_Guidelines for Grey Zone Naval Incidents_NCLOSblog_290422

Matter commented on: Hybrid naval warfare; Distinction between naval warfare and maritime law enforcement

1. Introduction

This short blog post aims to provide guidance for parties to hybrid naval warfare for determining whether the rules of armed conflict or law enforcement are applicable to various situations where force has been used against ships. The guidelines are based on the relevant case law and systemized into three scenarios: first, a commercial ship vs. government ship/warship (State vessel) scenario; second, a State vessel vs. commercial ship scenario; third, a State vs. State scenario. The analysis focuses on the use of force against ships, but the rules apply mutatis mutandis also in relation to aircraft and installations and structures at sea.

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