Author: sso170

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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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Categories
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?”
Categories
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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Categories
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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Categories
Delimitation

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.

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Categories
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.

Continue reading “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)””