Categories
Climate change Marine pollution

A Peculiar Interaction: Extreme Temperature Rise in the North Atlantic and the International Maritime Organization’s Sulphur Regulation

By: Konstantinos Deligiannis-Virvos (PhD Research Fellow, Norwegian Centre for the Law of the Sea, UiT)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2024/01/NCLOS-Blog-IMO-and-Climate-Change-final-1.pdf

Matters Commented on: North Atlantic Ocean surface temperature rise, IMO 2020 Sulphur Regulation, IMO GHG Strategy, Climate Change

1.      Introduction

In the summer of 2023 exceptional sea surface temperatures were recorded on the North Atlantic Ocean, as a climax of a period of rapid warming that began in spring 2023 (Copernicus Programme, 2023). According to the ‘Copernicus Programme’ (the European Union’s Earth observation programme):

Temperatures in the northeastern Atlantic climbed steadily from the end of May, peaking on 21 June at around 1.6°C above average […]. While absolute temperatures do reach higher values in the region during the summer, the average temperatures observed last month are more typical of later in the summer (Copernicus Programme, 2023).

Daily sea surface temperature anomaly (°C) averaged over the northeastern Atlantic region during 2023 (black line) and for previous years from 1979 to 2022 (red and blue lines).

Graph: Daily sea surface temperature anomaly (°C) averaged over the northeastern Atlantic region during 2023 (black line) and for previous years from 1979 to 2022 (red and blue lines). Data source: ERA5. Credit: Copernicus Climate Change Service/ECMWF.  

Of course, human-caused climate change is the main cause of increased temperatures around the globe, including the North Atlantic Ocean surface. However, the extraordinary and rapid increase in temperature observed in 2023 was likely facilitated by a number of other factors that amplified the effects of climate change.

These likely factors include unusual atmospheric circulation patterns, broader tropical warming involving the transition to El Niño conditions, the presence of Saharan Dust, wild fire smoke from Canada, and the effects of the Hunga-Tonga volcano eruption, as well as one likely factor that stands out as of particular importance in the context of the law of the sea (Hausfather and Forster, 2023). This is a relevant regulation of shipping, specifically the reduction of sulphur emissions from ships, following the implementation of the relevant International Maritime Organization (IMO) Regulation on sulphur emissions (Voosen, 2023, Hausfather and Forster, 2023).

Categories
Oil and gas Security law

Did an Alleged Ukrainian Attack against the Nord Stream Pipelines Violate the Law of Armed Conflict?

By: Alexander Lott (Marie Curie research fellow at the Norwegian Centre for the Law of the Sea).

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/11/Alexander-Lott-NCLOS-Blog_Nord-Stream-Jus-in-Bello-Case-Study_-Final.pdf

Matter commented on: The Nord Stream Explosions in the Baltic Sea

1. Introduction

Preliminary Western intelligence reports have emerged about a purportedly pro-Ukrainian group of six divers conducting the sabotage against the Nord Stream pipelines in September last year. The Ukrainian Government denies any involvement in such an alleged operation. Nonetheless, recently, the Washington Post and Der Spiegel published a joint report which reached the unequivocal conclusion that:

“A senior Ukrainian military officer with deep ties to the country’s intelligence services played a central role in the bombing of the Nord Stream natural gas pipelines last year, according to officials in Ukraine and elsewhere in Europe, as well as other people knowledgeable about the details of the covert operation. /…/ Chervinsky did not act alone, and he did not plan the operation, according to the people familiar with his role, which has not been previously reported. The officer took orders from more senior Ukrainian officials, who ultimately reported to Gen. Valery Zaluzhny, Ukraine’s highest-ranking military officer, said people familiar with how the operation was carried out.”

In this context, this blog post begins by briefly discussing the standards for the potential attribution of the alleged activities of the afore-referred group of divers to Ukraine. This post demonstrates that the legality of the Nord Stream explosions can be assessed from the perspective of the law of armed conflict.  This post debates the question of whether an alleged Ukrainian attack against the Nord Stream pipelines violated the law of armed conflict in the wider framework of the ongoing international armed conflict between the Russian Federation and Ukraine. It examines the legal qualification of the Nord Stream pipelines as a legitimate military objective and the environmental considerations pertaining to the sabotage against these pipelines.

Categories
Blog

Towards a UN Plastic Pollution Treaty: Negotiations and Progress before INC2

By: Charlie JP Bennett (Visiting Trainee at NCLOS; Legal intern at T.M.C. Asser Institute and Space Court Foundation)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/05/Final_Plastics-negotiation_NCLOS-blog_30052023.pdf

Matter commented on: Progression toward negotiation and conclusion of a new UN Plastic Pollution Treaty

1. Introduction

This week marked the beginning of the second round of negotiations of the Intergovernmental Negotiating Committee (INC2) on a new treaty focused on plastic pollution, including the marine environment (the Plastics Treaty). It’s mandate, found within United Nations General Environment Assembly (UNEA) Resolution 5/14, entitled ‘End plastic pollution: Towards an international legally binding instrument’, was adopted on 2nd March 2022. The negotiations follow an upsurge in attention to the problem of marine plastic pollution that is predicted to triple by 2040 if serious action is not taken. While some international reaction has slowly emerged, the treaty negotiations represent a step further that is imperative to safeguard the worlds marine environments from this rapidly growing problem.

Categories
Biodiversity beyond national jurisdiction (BBNJ)

CITES and the BBNJ Treaty: Some Reflections

By: Mazyar Ahmad

PDF: CITES and BBNJ Treaty_NCLOS Blog_final.pdf

Matter commented on: Interaction between CITES and BBNJ Treaty

1. Introduction

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) nineteenth Conference of Parties (CoP19) was held in Panama between 10-24 November 2022. Under agenda item ‘introduction from the sea,’ CoP19 directed the CITES secretariat to monitor the then-ongoing discussions on the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). CoP19’s decision to direct its secretariat to monitor the discussions at the ongoing BBNJ negotiations was the reiteration of its earlier decision 17.181 taken at CoP17 at Johannesburg in 2016. Considering the interest CITES member States had shown toward the then-ongoing BBNJ negotiations, this blog post seeks to explore how the two regimes relate to each other, and if they overlap. As shown below, the two regimes do overlap, which might lead to a potential problem. This blog post begins by providing a brief overview of the CITES and the newly finalized BBNJ Treaty underscoring their scope of application. Section 3 examines the relevant provisions of the two instruments closely to highlight the overlap mentioned above. Section 4 delves into the regime interaction provision of both regimes to determine how this overlap may be resolved, followed by a discussion of the potential problem which may be caused due to the overlap, in section 5. Finally, section 6 concludes by asserting that cooperation between the two regimes may be the possible way out.

Categories
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.

Categories
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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Blog

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Categories
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.

Categories
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.

Categories
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.