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.

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.


Maritime Delimitation in the Indian Ocean: Has the ICJ marginalized the geological and geomorphological criteria in favor of a distance related criteria?

By: Signe Veierud Busch

PDF version: Maritime Delimitation in the Indian Ocean: Has the ICJ marginalized the geological and geomorphological criteria in favor of a distance related criteria, 290322, NCLOS blog

Matter commented on: International Court of Justice (ICJ) Judgment in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), 12 October 2021

1         Introduction

In Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), the International Court of Justice (ICJ) was requested to establish the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone and continental shelf, including the continental shelf beyond 200 nautical miles (nm). This is the fourth time an international court or tribunal has delimited the continental shelf beyond 200 nm from the baselines. Although the Judgment seemingly follows a pattern established through previous delimitation cases, the separate opinions of several judges reveal ripples below the surface.

The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and assess whether the ICJ in Somalia v. Kenya acted in accordance with previous judicial practice.

This commentary takes a particularly deep dive into the question of entitlement to the continental shelf beyond 200 nm as a prerequisite for delimitation and echoes some of Judge Robinsons’ concerns about the ICJ seemingly replacing the geological and geomorphological criteria with a simple distance criterion of a maximum of 350 nm.

Law of the Sea Convention (UNCLOS)

Conclusions of the Aurora Conference: “The limits and possibilities of sovereignty, as both the organizing logic and the central legal principle underpinning Law of the Sea and Ocean Governance (LOSOG)”

PDF Version: Conclusions of the Aurora Conference, 140122 NCLOS blog

By: Julia Gaunce, Mazyar Ahmad, and Endalew Lijalem Enyew

Matter commented on:  The Aurora Conference, 25-26 November 2021, Tromsø, Norway.

1. Introduction

The law of the sea is facing fundamental challenges, including material challenges, epistemic challenges, and challenges relating to ocean justice and geopolitical dynamics. To address these challenges, the Norwegian Centre for the Law of the Sea (NCLOS) has been engaged with several projects, one of which focuses on problematizing the logic of sovereignty and investigating how sovereignty could be redefined, adapted, and rethought to respond to such systemic challenges. To that end, the Centre organized a two-day conference (Aurora Conference), from 25-26 November 2021 to assess: ‘The limits and possibilities of sovereignty, as both the organizing logic and the central legal principle underpinning Law of the Sea and Ocean Governance (LOSOG)’. The purpose of the Conference was to facilitate a discussion on the research done/in progress, and to identify issues and questions for further research. The Conference consisted of three sessions. Session 1 focused on the theme: Problematizing sovereignty (in a LOSOG context) – evolution and critique’. Session 2 dealt with the topic ‘Sovereignty challenged and under transformation. Session 3 examined the theme of ‘Sovereignty across spaces’. The conference presentations and discussions brought forth new insight and questions on various aspects of sovereignty.

This blog post summarizes the main findings of the Conference. The post is structured following the order of the three sessions of the Conference. Finally, the post offers overall concluding remarks.