Category: Blog

By: Jessica N.M. Schechinger (postdoctoral research fellow at the Norwegian Centre for the Law of the Sea (NCLOS), Faculty of Law, UiT The Arctic University of Norway)

Matter commented on: the BBNJ Agreement entering into force and Norway’s ratification and implementation of the Agreement

1. Introduction: Norway’s ratification of the BBNJ Agreement and the national process so far

In light of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (‘BBNJ Agreement’ or ‘Treaty’) entering into force on 17 January 2026, this blog post discusses the BBNJ Agreement in the context of international ocean governance and Norway’s ratification and implementation. First, some background on Norway’s ratification of the Treaty and the national process so far. On 4 June 2025, the Kingdom of Norway officially ratified the BBNJ Agreement that was adopted in New York on 19 June 2023, after many years of discussions and negotiations. Norway has signed the BBNJ Agreement on 20 September 2023, and it was sent out for national consultation in the second half of 2024 (Hoel 2025). At the national level, the Norwegian Parliament (the Storting) subsequently unanimously approved to join the BBNJ Agreement on 26 May 2025; following this, the Agreement was domestically ratified on 27 May 2025.  

Besides ratifying the BBNJ Agreement, the Norwegian Parliament also (unanimously) adopted a separate domestic Lov om bevaring og bærekraftig bruk av marint naturmangfold i områder utenfor nasjonal jurisdiksjon (‘Lov’) (Act on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction) (Hoel 2025). Norway has a dualist system, meaning that international treaties like the BBNJ Agreement only apply in Norway when they are incorporated by domestic legislation. This new Lov is a specific national instrument (i.e. implementing legislation) that is meant to implement the BBNJ Agreement into Norwegian law. It enters into force once the BBNJ Agreement enters into force for Norway. In this blog post, the BBNJ Agreement is discussed in the context of Norway’s ratification and implementation. A quick overview is given of the aim, structure, and scope of the BBNJ Agreement in section 2. Thereafter, the focus is on why Norway’s ratification is important (section 3); on Norway’s Declaration upon ratification of the BBNJ Agreement (section 4); and on the current obligations Norway is under to protect and preserve the marine environment (section 5). Strengthening sustainable international ocean governance is touched upon in section 6. Further, the implementation of, and compliance with, the BBNJ Agreement is considered in section 7, which is important, because the Agreement enters into force on 17 January 2026. The post will end with a short conclusion in section 8.

This blog post is not necessarily aimed at experts in the law of the sea, or those that already have much knowledge about the BBNJ Agreement. It does not aim to be an in-depth legal analysis nor take a (legal) deep dive into relevant legal complexities surrounding the BBNJ Agreement. However, this blog post aims to be an informative read on the BBNJ Agreement, and will discuss the importance of this Treaty, as well as some of its legal and operational challenges for Norway (as well as other states), especially concerning its effective implementation. Thus, this post is hopefully interesting for non-law of the sea/international environmental law experts, both in Norway and elsewhere, who are curious about the BBNJ Agreement and how its ratification affects Norway – and for anyone who wishes to read about the protection of the marine environment, and international ocean governance more generally.  

2. The aim, structure, and scope of the BBNJ Agreement

The Agreement aims to improve international cooperation and to achieve better conservation, management, and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) (Preamble and Article 2 BBNJ Agreement). ABNJs are rich in biodiversity, but are fragile and vulnerable to pollution, (over)fishing, the effects of climate change, etc. (International Union for Conservation of Nature (IUCN) 2022 issues brief). The general aim of the BBNJ Agreement can be found in Article 2, providing that: ‘The objective of this Agreement is to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination.’ Interestingly, furthering international cooperation or coordination is not included in paragraph 1-1 of the Lov om bevaring og bærekraftig bruk av marint naturmangfold i områder utenfor nasjonal jurisdiksjon. De Lucia and Solstad Andreassen recommended in their hearing statement on the proposed Lov that this goal should be included in this provision, to emphasise the importance of cooperation and coordination for Norway, and to ensure effective implementation of the BBNJ Agreement’s objectives and the obligations contained in its Article 8 (De Lucia and Solstad Andreassen 2025, paras. 3-4). 

The BBNJ Agreement covers four core issues: first, ‘marine genetic resources, including the fair and equitable sharing of benefits’ (Part II) – this mainly relates to monetary and non-monetary benefit sharing between states concerning marine genetic resources (MGR) and digital sequence information (DSI) activities in ABNJ (UN DOALOS 2024 Factsheet). This is, for example, relevant for the food sector, for pharmaceuticals, and cosmetics (e.g. Barnes 2024; Taghizadeh 2025). The second core issue is ‘measures such as area-based management tools, including marine protected areas’ (Part III) to preserve the ocean (see also below at section 6 and 7); third, ‘environmental impact assessments’ (Part IV) (e.g. Tanaka 2024); and fourth, ‘capacity-building and the transfer of marine technology’ (Part V). Some ‘cross-cutting issues’, such as ‘institutional arrangements’ (Part VI) and a funding mechanism (Part VII), are also covered in the Agreement. Part VIII of the BBNJ Agreement deals with the implementation of, and compliance with, the Agreement (see more at section 7). The dispute settlement provisions in Part IX of the BBNJ Agreement are also important for the effective future implementation of, and ensuring compliance with, the Agreement (e.g. Nguyen et al. 2023). To complete the general overview, Part X of the Agreement concerns non-parties; Part XI addresses ‘good faith and abuse of rights’, while the final Part XII contains some ‘final provisions’, dealing with the entry into force of the Agreement, etc. There are also two Annexes to the BBNJ Agreement: Annex I on ‘Indicative criteria for identification of areas’; and Annex II on ‘Types of capacity-building and of the transfer of marine technology’.

In terms of international ocean governance, the BBNJ Agreement is certainly important and ithas a huge scope of application, as it broadly ‘applies to areas beyond national jurisdiction’ (Article 3 BBNJ Agreement). Almost two-thirds of the ocean are considered as ‘marine areas beyond national jurisdiction’. The term ‘areas beyond national jurisdiction’ is defined in Article 1(2) BBNJ Agreement as meaning: ‘the high seas and the Area’. This means that the Agreement is applicable in marine areas that are beyond the exclusive economic zones (usually 200 nautical miles measured from a state’s baselines on its coast) and ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (Articles 1(1) and 86 United Nations Convention on the Law of the Sea (LOSC)). This is one reason why the term ‘High Seas Treaty’ should be avoided.

3. Why is Norway’s ratification important?

Norway’s ratification was a valuable step towards the official entry into force of this Treaty that is important for future international ocean governance. In 2023, the adoption of the BBNJ Agreement was met with much joy, a sense of achievement, and a feeling that multilateralism is not dead (despite different priorities and much disagreement between the negotiating states, Dalaker 2022, at 354-355). There was also the hope that the Agreement would enter into force quickly, but decisions to ratify (or not ratify) a treaty on the national level take time. However, around the United Nations (UN) Ocean Conference taking place in June 2025, there was a relatively high number of ratifications from across the globe. Norway’s ratification was thus part of a seeming momentum for the Agreement entering into force soon. Indeed, more and more ratifications were deposited during the second half of 2025, and at the time of writing (15 January 2026), 82 ratifications (or accessions or approvals) of the Agreement have been registered (from 81 contracting states plus the European Union). Worth mentioning is also that there are 145 signatories as of 15 January 2026. The required threshold of instruments of ratification (or acceptance, approval, or accession) was reached in September 2025, and the required number of days have passed on 17 January 2026 (Article 68 BBNJ Agreement). This means that the BBNJ Agreement comes into force (i.e. its provisions containing rights and obligations become legally binding on all contracting states, such as Norway) on this day.

To help facilitate states agreeing on (sometimes very technical) issues and the BBNJ Agreement becoming operational, the UN General Assembly saw a need to convene a Preparatory Commission (PrepCom).The first session (PrepComI) that convened to prepare for the entry into force of the Agreement, and to arrange for the first meeting of the Conference of the Parties (COP), was held from 14-25 April 2025. Issues that were discussed at PrepComI include rules and procedure of the COP, as well as how subsidiary bodies would operate and be funded. The second meeting of the PrepCom (PrepComII), where states discussed issues that are important for the implementation of the Agreement, such as cooperation with relevant instruments, frameworks and bodies (IFBs), was held between 18-29 August 2025. PrepComIII is scheduled for 23 March-2 April 2026.

4. Norway’s Declaration upon ratification of the BBNJ Agreement

Norway made a Declaration, containing two paragraphs, upon ratification of the BBNJ Agreement under its Article 71. This Declaration essentially mentions, in paragraph 2, other legal instruments, frameworks, and bodies Norway is a part of (such as the International Maritime Organization, the North-East Atlantic Fisheries Commission, the Arctic Council, etc.). This is done in view of the obligation under Article 5(2) BBNJ Agreement, which provides that the Agreement should be interpreted and applied in such a way that relevant other existing legal instruments, frameworks, and bodies and their competence are not undermined, which might become relevant in the future (Hoel 2025; De Lucia and Nickels 2020). In paragraph 1 of the Declaration, Norway basically reserves the right to take a position on declarations of other states or organisations in the future, which it might consider incompatible with Article 70 BBN Agreement (that is, if such a declaration would ‘have the effect of an exception or reservation for the State making it’, which is not allowed under Article 70). This paragraph 1 echoes in almost identical words Norway’s Declaration upon ratification of the 1982 United Nations Convention on the Law of the Sea (LOSC), in accordance with Article 310 LOSC.

5. Norway’s current obligations to protect and preserve the marine environment

The BBNJ Agreement is an international legally binding instrument (that will fully enter into force on 17 January 2026) under the umbrella of the LOSC framework, as an ‘implementing agreement’. The LOSC entered into force on 16 November 1994, and there are two other earlier ‘implementing agreements’ under the LOSC, being the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. Such implementing agreements concretise the implementation of, and add to, the already existing LOSC provisions. This means that the BBNJ Agreement is aimed to further develop the current international law of the sea regime. Irrespective of the new BBNJ Agreement, it is important to remember that Norway is already under existing legal obligations to protect and preserve the marine environment (Schøning et al 2024, especially at Question 2). Obligations arise from different legal sources, for example, Article 192 LOSC provides that ‘States have the obligation to protect and preserve the marine environment’. The International Tribunal for the Law of the Sea (ITLOS) confirmed in its 2024 Advisory Opinion on Climate Change and International Law that states must protect and preserve the marine environment, and gave some guidance on what states must do to fulfil the obligations contained in the LOSC (especially paras. 384-440 concerning the obligation under Article 192 LOSC). The recent Advisory Opinion from the International Court of Justice (ICJ) on Obligations of States in respect of Climate Change, that was delivered in July 2025, similarly found that LOSC states parties ‘have an obligation to adopt measures to protect and preserve the marine environment, including from the adverse effects of climate change and to co-operate in good faith’ (para. 457(3)(D)).

6. Strengthening sustainable international ocean governance

Good international ocean governance is important for Norway as ‘a fisheries and ocean nation’ and ‘a seafaring nation with a strong and historic dependence on the oceans’ (section 2.2). Illustrating this is the Norwegian Minister of Fisheries and Ocean Policy, Marianne Sivertsen Næss, saying that ‘we know that sustainable ocean management is crucial for future food security, jobs and biodiversity. This Agreement gives us a shared framework to take that responsibility’. But taking that responsibility also means that a lot of work lies ahead for Norway to properly implement the BBNJ Agreement.

The Agreement is also important to work towards reaching Sustainable Development Goal (SDG) 14, which is to ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’ (this SDG is also known as ‘life below water’). Further, Norway has ‘the second longest coastline in the world after Canada’, and a large maritime interest (especially concerning fisheries, the exploitation of other natural resources, and shipping, to name a few). Pollution and unsustainable ocean management elsewhere (including in ABNJ) can affect Norway’s marine and coastal areas, habitats, resources, and species. In this context, the BBNJ is promising to enhance the protection of ABNJ and to strengthen sustainable international ocean governance. Although how states, like Norway, will implement the Agreement will be crucial to how successful marine conservation will be in the future. In this sense, De Lucia has discussed Part III of the BBNJ Agreement that covers ‘area-based management tools (ABMTs), including marine protected areas (MPAs), which are arguably crucial for the operationalization of the Agreement but remain ambiguous or underarticulated, and may thus reduce its effectiveness and ambition.’ (De Lucia 2024, at 115, 117). Similarly cautious is Klerk, who discussed the institutional nature of Part III of the BBNJ Agreement on AMBTs, including MPAs. He argued that the institutional nature of the Agreement is severely decentralised, which leads to a risk of increased fragmentation of conservation efforts in ABNJ (Klerk 2025).

7. Implementation of, and compliance with, the BBNJ Agreement

As mentioned in section 2, Part VIII of the Agreement addresses the implementation of, and compliance with, the Agreement.Article 53 provides the general obligation that ‘Parties shall take the necessary legislative, administrative or policy measures, as appropriate, to ensure the implementation of this Agreement’.How states do this is largely left up to their discretion, and depends on their will and resources (Lothian and Dalaker 2025 provide some recommendations on national implementation on pp. 4-5). Concerning resources, technical assistance for states is available through the EU Global Ocean Programme Technical Assistance Facility (TAF), which is funded by the EU and managed by the IUCN. This Programme is meant to help implementation in developing states and to strengthen legal and institutional capacities to engage with the BBNJ process. Eligible countries (and regional intergovernmental organisations) can submit requests for technical assistance.

All states must properly implement the BBNJ Agreement. However, what is required of each state in terms of implementation depends on its resources and capacity, meaning that a lot will be required from Norway in this regard.Norway therefore has more stringent due diligence obligations, more stringent obligations under the principle of ‘common but differentiated responsibilities and respective capabilities’, and may have ‘additional obligations’, at least in the context of its obligations concerning climate change, according to the ICJ Advisory Opinion on Obligations of States in respect of Climate Change, para. 457(3)(A)(b) and (e); para. 457 (3)(B)(a)(b); paras. 148-151.In practice, national (Norwegian) law(s) will need to be adjusted to fully comply with the obligations stemming from the BBNJ Agreement.Article 54 BBNJ Agreement somewhat concretises this future implementation, as each states party must ‘monitor the implementation of its obligations under this Agreement and shall … report to the Conference on measures that it has taken to implement this Agreement’. Details on how often states must report will be decided by the COP, which will meet and make decisions once the BBNJ Agreement has entered into force. The Implementation and Compliance Committee that is established in Article 55 BBNJ Agreement will seemingly not be given much power to monitor states, however, as Article 55(1) reads that the ‘Committee shall be facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive’ (emphasis added). But this is exactly why the near future is important, as many details, including reporting requirements and rules of procedure for bodies, are still to be decided at the first COP (e.g. Articles 46(2), 47(4), 49(2), 50(1), 52(10), 55(3)) BBNJ Agreement). The first COP must take a lot of important decisions.

The implementation of the BBNJ Agreement will be a long process. For example, MPAs are very important for the operationalisation of the BBNJ Agreement and to preserve the ocean. Only 8.4 per cent of the ocean is at the moment classified as ‘MPA’, which is far below the target of 30 per cent by 2030 (Sustainable Development Goals Report 2025, p. 36). One interesting initiative in this regard is the 2025 United Nations Office on Drugs and Crime (UNODC) Global Maritime Crime Programme Issue Paper on ‘Surveillance and Enforcement of High Seas Marine Protected Areas and Related Measures’. Papastavridis and Tzanakopoulos (and Blaha) examine surveillance and maritime law enforcement concerning future MPAs in high seas areas through cooperation, legal means, technology and using Maritime Domain Awareness tools, to support the effective implementation of the Agreement. From the perspective of marine environmental protection, it is important to think about effective management and law enforcement in connection with high seas MPAs now, because such MPAs may be established in ABNJ under the Agreement once it enters into force (De Lucia 2024, 117; Klerk 2025, 4-6, esp. page 5, Figure 1). Reportedly, some states, like Chile concerning the Salas y Gómez and Nazca ridges, are already planning to propose a high seas MPA as soon as possible after the BBNJ Agreement enters into force. It is crucial to highlight effective management and law enforcement, to avoid only having ‘paper parks’ in the future, but actual MPAs.

For all states, including Norway, implementation of the BBNJ Agreement can be quite challenging. This is because the Agreement concerns many topics and affects many national state ministries/departments (for Norway, this includes the Ministries of Climate and Environment; Trade, Industry and Fisheries; Foreign Affairs; and Energy) that need to coordinate and cooperate, which is not always an easy task (Lothian and Dalaker 2025 give some recommendations on national implementation on pp. 4-5). Many Norwegian civil servants and the seksjon for traktat-, miljø- og havrett will continue to be very busy, but this is the price to pay for Norway’s ‘profound commitment to sound ocean governance, including preservation of the ocean and sustainable management of its resources’ (2023 Written Statement of Norway, section 2.2). For those who speak Norwegian, the Norwegian Society for International Law organises a webinar (with input from the Norwegian Ministry of Foreign Affairs’ Legal Department) on 20 January titled ‘BBNJ-traktaten trer i kraft: hva nå?’.

8. Conclusion

All in all, it should be celebrated that the BBNJ Agreement enters into force on 17 January 2026, as well as Norway’s Minister of Foreign Affairs Espen Barth Eide saying that: ‘The Parliament, civil society, business and academia all support Norway’s ratification.’ Thankfully, many states are on board and will be bound by the BBNJ Agreement, but there is much work to be done, on the national, regional, and international levels. The actual proper implementation of the Agreement by Norway (and other states) will be crucial for achieving better ocean governance, and improving the protection and management of ABNJ, including the sustainable use of marine biodiversity. Although some important states, such as the United States of America andRussia, have not yet ratified the Agreement, it is a hopeful sign that other important states such as Brazil, China, and Japan have ratified/acceded to the Agreement in December 2025.

A dear friend of mine asked me a while ago whether the BBNJ Agreement was pure symbol politics (‘symboolpolitiek’ in Dutch). My short answer is no. The BBNJ Agreement has the potential to be practically relevant and impactful. While the current state of our world is gloomy, there is hope. Neither multilateral cooperation nor international law are dead. If there is a genuine willingness to implement and to enforce the law, this is not just another treaty, but an important instrument that can improve international ocean governance. But, as always, only time will tell, and will enable us to reflect on the actual contribution of the BBNJ Agreement.

Acknowledgement: I thank Ingrid Solstad Andreassen, Youri van Logchem, Endalew Lijalem Enyew, and Jan Solski for their comments on a draft of this blog post, and Anne Manschot for being curious. The usual disclaimer applies.

This post may be cited as: Jessica N.M. Schechinger, ‘The BBNJ Agreement enters into force on 17 January 2026: What does this mean for Norway and why is proper implementation important for international ocean governance?, The NCLOS Blog, 15 January 2026.

To subscribe to The NCLOS Blog by email, please go to https://site.uit.no/nclos/.

By: Sofie Elise Quist and Bastiaan Klerk (UiT, Norwegian Centre for the Law of the Sea).

Matter commented on: NCLOS Conference on “Future Trajectories for the Law of the Sea”, 6-7 November 2023, Tromsø, Norway.

The 1982 UN Convention on the Law of the Sea (UNCLOS) seen by many as the constitution of the oceans has the ambition to articulate a comprehensive legal order that could settle “all issues relating to the law of the sea”. UNCLOS has been long characterized as a “living treaty”, able to adapt to new challenges unknown at the time of its negotiation. This capacity is now however arguably under increasing pressure due to a range of global threats such as climate change, widespread pollution, technological paradigm shifts such as those related to artificial intelligence, and rising geopolitical and maritime security tensions as the world becomes multipolar.

As to the latter, the threats to shipping and critical undersea cables and infrastructure illustrate how interwoven many problems are, such as those related to maritime security, the marine environment, the safety of life at sea, and digital connectivity. Yet, it is probably the global and rapid environmental and climate change and the attendant pressures on both the physical environment and the normative landscape that are raising the most fundamental questions.

Law of the sea scholars have responded to such pressures by exploring questions such as the fragmentation of the law of the sea and ocean governance and how far UNCLOS can adapt in the face of new challenges, including questions linked to its “constitutional” status.

In the context of the Anthropocene, however, the stakes are higher and unprecedented, and the standard means for adapting UNCLOS – interpretation and normative developments – may not be sufficient. The mounting pressures are in fact arguably deep, interrelated and systemic. As such they raise novel and profound questions that arguably require not only novel legal responses but also, and crucially, novel theoretical and methodological approaches and novel legal imaginations. We are perhaps approaching a new “grotian moment”.

Against this background, on 6-7 November 2024, the annual NCLOS conference brought together leading and early career scholars working on ocean law and governance for two engaging days of discussion the possible future trajectories of the law of the sea.

The conference keynotes and papers examined diverse topics from the 2024 ITLOS Advisory Opinion on climate change and novel interaction between legal regimes to practices of States that tear at the fabric of the current legal framework. The papers presented highlighted conflicting views on ocean justice; the relationship between the ocean and global environmental threats; new technological shifts; changing human security issues at sea; new extractive horizons; and novel epistemic provocations as well as reflections on key concepts and categories that do or should underpin the law of the sea.

The nine thematic conference panels were organised around the following topics: the COSIS Advisory Opinion; deep seabed mining; autonomous vessels; maritime security; climate change; new trends and challenges; the BBNJ; the ocean environment; and young voices on ocean futures.

Judge Tomas Heidar, president of the International Tribunal for the Law of the Sea (ITLOS), delivered the keynote address on the transformative potential of the 2024 ITLOS Advisory Opinion on climate change and the law of the sea. Judge Heidar thus opened the conference by emphasizing the enduring potential of UNCLOS to address contemporary challenges, and the important role of ITLOS in ensuring that UNCLOS remains a powerful living instrument, thirty years after its entry into force.

The second keynote address of the conference was delivered by Professor David Freestone, who addressed the international law dimensions of sea level rise. One of the most urgent ocean challenges of our time. Drawing on the work of the International Law Association (ILA) and the International Law Commission (ILC) and emerging state practices, Professor Freestone delivered a hopeful speech that urged for robust international legal frameworks to mitigate the far-reaching consequences of climate change.

These multiple currents of thought about the future of ocean law and governance convalesced in a final high-level panel moderated by Richard Barnes (University of Lincoln and NCLOS) featuring Joanna Mossop (Victoria University Wellington), Karen Scott (Canterbury University), David Freestone (Visiting Scholar at George Washington University and Co-rapporteur ILA Committee International Law and Sea Level Rise) and Nengye Liu (Singapore Management University).  

The ensuing discussions were more hesitant about the transformative potential of UNCLOS for the future of the law of the sea. Considering how the convention’s imagined potential for the Global South remains underwhelming, how rapid technological developments exceed legal ones, the burgeoning power of private maritime sectors, and structural and epistemic justice issues within the law of the sea itself. Perhaps, as one audience member put it during the final panel discussion, UNCLOS is in many ways a “house that needs to be rebuilt”. An important outcome of the conference is thus the emphasis that responsible and innovative builders, from ocean defenders to lawyers, are pivotal for the future trajectory of the law of the sea.

The full conference report is available here.

ITLOS Advisory Opinion on Climate Change

INTRODUCTION

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued its landmark Advisory Opinion on Climate Change and International Law, the first of a series of advisory opinions on climate change across various judicial fora (see also ICJ and IACHR). The Opinion was requested by the Commission of Small Island States on Climate Change and International Law (COSIS), which presented the Tribunal the following questions:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:

(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

The ensuing Opinion is remarkable for several reasons. Not least because it is the first instance in which an international court or tribunal has addressed the issue of climate change from the perspective of the law of the sea. However, the significance of this Opinion extends beyond its novelty. Indeed, ITLOS lived up to its reputation as a progressive Tribunal, as it boldly interpreted the provisions in the UN Convention on the Law of the Sea (LOSC) on pollution expansively as to encompass greenhouse gas (GHG) emissions, thereby rendering the comprehensive regime on marine pollution applicable to climate change. Bolstered by state-of-the-art scientific insights, the Tribunal strongly endorsed the objective to limit global temperature increase to 1.5°C above pre-industrial levels, found that States are under an obligation to restore marine habitats and ecosystems, and recognized the importance of the ocean as “the world’s largest carbon sink”, among other significant findings.

Spanning an impressive 153 pages, the Opinion addresses a plethora of issues, ranging from fisheries and marine protected areas to geoengineering and environmental impact assessments. This series of blogs takes a deep dive into selected issues addressed by the Tribunal. Endalew Lijalem Enyew and Mazyar Ahmad assess the Tribunal’s findings on the notion of ‘common but differentiated responsibilities and respective capacities’, and technical assistance through a TWAIL lens. Two blogs will look at how the Tribunal dealt with questions relating to how LOSC is nested within its wider legal context: Bastiaan Klerk takes a closer look at the interrelationship between the Paris Agreement and LOSC, and Ellen Hey looks at how the Tribunal dealt with other relevant instruments. Richard Barnes will provide an assessment of how ITLOS addressed the contentious issues of its jurisdiction and discretionary power. Finally, Vito De Lucia will scrutinize the obligation of ‘restoration’ as part of the preservation of the marine environment.

Through this series, which will be published on a rolling basis over the course of the coming montchs, we aim to elucidate the implications of the ITLOS Advisory Opinion for the further development of international law, as well as for future jurisprudence in the realm of climate change and the law of the sea. The series of blog posts on the specific issues covered by the Tribunal are as follows:

1. Endalew Lijalem Enyew and Mazyar Ahmed, “ITLOS’s Advisory Opinion on the notion of ‘common but differentiated responsibilities’ to protect the marine environment from climate change: A closer look from the Standpoint of developing States”.
2. Bastiaan Klerk, “To Lex Specialis, or not to Lex Specialis? The Paris-UNCLOS Nexus in the ITLOS Advisory Opinion on Climate Change”.
3. Ellen Hey, “Some Reflections on External Rules in ITLOS’ Advisory Opinion on Climate Change”.

By: Daniel Stein, Assistant Professor, OP Jindal Global University, Jindal Global Law School; Visiting Researcher, Freie Universität, Berlin.

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2024/06/Daniel-NCLOS-blog-ITLOS-AO-on-Climate-change-and-CLC_PDF.pdf

Matter Commented on: The Conventions regulating Civil Liability for oil spills were not explicitly mentioned by the ITLOS, but several new duties related to transboundary harms and environmental restoration could have implications for the rights and remedies available to States when remediating this type of marine pollution.

1. Introduction

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered its Advisory Opinion on the duties of States under the UN Convention on the Law of the Sea (UNCLOS) to respond to the threats of climate change. Specifically, the request by the Commission of Small Island States on Climate Change and International Law (COSIS) asked the Tribunal to elaborate on the specific obligations of State Parties to UNCLOS ‘to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere’ and, more generally, ‘to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification.’ As such, the focus of the Advisory Opinion is mainly related to the marine pollution caused by the rise of greenhouse gas emissions (GHGs) in the atmosphere caused by three distinct sources: ship emissions, plane emissions, and from land-based sources. This is done by first connecting anthropogenic GHG emissions to the definition of ‘pollution of the marine environment’ contained in Article 1(1)(4) of UNCLOS, which requires, ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects,’ including ‘harm to living resources and marine life [and] hazards to human health.’

By: Maria Madalena das Neves (Associate Professor at NCLOS, Faculty of Law, UiT-The Arctic University of Norway).

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2024/04/Maria-Seabed-Mining_-NCLOS-Blog_290424.pdf

Matter commented on: Norwegian Government’s plans for seabed mining and theNorwegian Parliament’s decision to open the Norwegian continental shelf to seabed mining.

1. Introduction

On the 12^th of April 2024, the Council of State (Kongen i Statsråd) formally decided to open parts of the Norwegian Continental Shelf (NCS) in the Norwegian Sea and Greenland Sea to seabed mining activities. This decision follows the Norwegian Parliament’s controversial approval, of 9^th of December 2023, to open parts of the NCS to seabed mining activities (by 80 votes in favour to 20 against, on the main points of the recommendation of the Standing Committee on Energy and the Environment to the Parliament – Innst. 162S (2023-2024)). The opening of the NCS is, for the moment, only for exploration activities, not exploitation. According to Section 1-5 of the Act relating to mineral activities on the Continental Shelf (Seabed Minerals Act), exploration (survey) encompasses exploration for and mapping of mineral deposits for commercial purposes (which includes activities used for survey such as geological, geochemical, geotechnical activities and use of facilities), whereas exploitation (extraction) refers to the actual extraction of minerals for commercial purposes. The Ministry of Energy (previously Ministry of Petroleum and Energy) is currently preparing the first round of licensing, which is expected to start in 2024, with the first licenses projected to be granted in the first half of 2025.

By: Apostolos Tsiouvalas (PhD Fellow at NCLOS, Faculty of Law, UiT The Arctic University of Norway).

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/10/Apostolos_NCLOS-Blog_271023_Final.pdf

Matter commented on:  Letter of Intent for Cooperation on the Pikialasorsuaq between the Department of Fisheries and Oceans of Canada and the Ministry of Agriculture, Self-sufficiency, Energy and Environment of the Government of Greenland

Introduction:

The North Water Polynya Pikialasorsuaq (meaning Great Upwelling) is a polynya between Greenland and Nunavut in northern Baffin Bay that constitutes the most biologically productive region within the Arctic Circle. The area is characterized by impressive migratory patterns of birds and mammals tightly linked to the Polynya’s morphology, on which most of West Greenland’s access to living resources is currently relied. Historically, the Pikialasorsuaq has been vital for the subsistence of the adjacent Inuit communities, providing sustenance to the entire marine ecosystem of Baffin Bay and associated communities of Qikiqtani (Nunavut) and Avanersuaq (Northwest Greenland), which directly depend on the Polynya’s biological productivity (Report of the Pikialasorsuaq Commission, p. A-5). Hunting routes across the Polynya and historic sites (e.g. food caches) are considered an integral part of Pikialasorsuaq’s transboundary ecosystem. The literature further records that the Inuit of Pikialasorsuaq conceive of the frozen sea as an entity that extends beyond state-enforced maritime boundaries and they have traditionally been operating cross-border activities among the Greenlandic and Canadian coasts of the Polynya on the basis of customary utilization of the sea/sea-ice continuum. Throughout the 20^th century, the Inughuit of Avanersuaq intensively practiced hunting trips to the opposite coast of the Polynya. After the repopulation of Aujuittuq (Grise Fiord) in Nunavut, Inughuit hunters visited Aujuittuq by dogsleds and more recently by planes landing on sea ice, developing strong cultural and spiritual bonds with the Inuit groups on the Canadian side of the Polynya (Report of the Pikialasorsuaq Commission, p. A-6).  As explained by the Inuit Circumpolar Council (ICC), the international body that represents all Inuit from Alaska, Canada, Greenland, and Chukotka, “considering the intimate connections and interactions between Inuit, animals, and Pikialasorsaq, the region that is affected by the polynya extends far past its physical boundaries.” (Report of the Pikialasorsuaq Commission, p, A-23). In recent decades, the situation however has changed substantially with the Pikialasorsuaq ecosystem facing challenges posed by climate change and rising human activity in the region. In addition, navigating international borders within the Pikialasorsuaq region is currently more difficult for the Inuit, primarily due to heightened safety and security regulations linked to international travel.

Read more: Reflections on the Letter of Intent for Cooperation on the Pikialasorsuaq: What does it legally mean for the Inuit?

On October 19, 2023, on the margins of the Arctic Circle Assembly, the Minister of Fisheries, Oceans and the Canadian Coast Guard and the Minister of Agriculture, Self-Sufficiency, Energy and Environment of Greenland signed a Letter of Intent for Cooperation on the Pikialasorsuaq, which seems to signify an important step towards the collaboration of Canada and Greenland with regards to the Pikialasorsuaq. This blog post explores the context behind this development and seeks to examine the potential legal implications of the Letter of Intent for the Inuit of the Pikialasorsuaq region.

1. Legal Background

The maritime boundary between the Kingdom of Denmark (in relation to Greenland) and Canada was established with the 1973 Delimitation Agreement, which deliberately left without a determined boundary the area between the geodetic points 122 and 123 where Hans Island is located. The latter was only delimited in June 2022, creating a 3,962 km long maritime boundary which is currently the longest in the world. The boundary cuts through the Pikialasorsuaq Polynya and reduces Inuit activities on both sides to a certain geographical area determined by the respective states’ maritime zones and hunting quotas based on domestic and international law. In addition, increased securitization by Canadian authorities, who at times conceived of the Greenlandic Inuit presence in Ellesmere as a threat to Canadian sovereignty over its Arctic archipelago, imposed restrictions to the mobility patterns of the hunters since the middle of the 20^th century –  with the last organized exchange between the populations of both sides of the Polynya taking place in 1994 (Report of the Pikialasorsuaq Commission, p. A-6). Since the 1990s, when the last formal travel exchanges between the two groups of Inuit located on the opposite sides of the Pikialasorsuaq took place, traveling has become much more difficult due to increased costs, taxation and intensified securitization in both sides of the Polynya (especially after the tragedy of 9/11), that eventually resulted to the cessation of free transit for Inuit families in both sides.

Canada and Greenland currently share jurisdiction in the North Water Polynya, which has implications for the international conservation and management of marine mammals and seabirds. The importance of joint management of the marine environment between the two states was verified in the 1983 Agreement between the Government of Canada and the Government of the Kingdom of Denmark for Cooperation Relating to the Marine Environment, aiming to increase “bilateral cooperation in respect of the protection of the marine environment”. Regional collaboration between Greenland and Canada for management of shared marine mammal species has also been successful over the last few decades. First, Canada and Greenland signed a Memorandum of Understanding (MOU) on the Conservation and Management of Narwhal and Beluga in Baffin Bay in 1989. Second,  the Government of Canada, the Government of Nunavut, and the Government of Greenland adopted a MOU for the Conservation and Management of Polar Bear Populations in 2009. The 2009 MOU established a joint commission largely consisted of Inuit representatives of both sides to provide recommendations on total allowable harvest and fair division of the shared harvest of the shared polar bear population in Kane Basin and Baffin Bay. Denmark is not party to any of these MOUs, as Greenland holds exclusive jurisdiction on natural resource management, judicial affairs and policing, while the Kingdom of Denmark maintains jurisdiction for foreign affairs and defense matters.

• The 2016 Pikialasorsuaq Commission

To address the future of Pikialasorsuaq in light of a changing Arctic and to negotiate an Inuit-led co-management regime for the Polynya, the Inuit Circumpolar Council of Greenland (ICC Greenland) together with the respective department of Canada (ICC Canada) established in January 2016 the Pikialasorsuaq Commission, through a project funded for three years. The Pikialasorsuaq Commission published in 2017 a report that addressed emerging issues pertinent to the region’s peoples and ecosystem and concluded with three main recommendations for policymakers. The recommendations referred to: a) the establishment of an Inuit Management Authority (IMA) led by Inuit representatives from communities in the Pikialasorsuaq region to regulate various activities, including transportation, shipping, and off-shore industrial development; b) the establishment of a protected area comprised of the Polynya itself and including a larger management zone, monitored and managed by Inuit; and c) the establishment of a free travel zone for Inuit across the Pikialasorsuaq (Report of the Pikialasorsuaq Commission, p. A-20).

In 2022, ICC Greenland entered into a cooperation agreement with Oceans North Kalaallit Nunaat and a task force was established to promote the work of the Pikialasorsuaq Commission. The task force aimed to ensure its recommendations are recognized and eventually implemented by the Greenlandic government. While the implementation phase of the Pikialasorsuaq Commission’s work has started and negotiations on freedom of movement for Inuit to visit friends and family across the border are underway, cross-border hunting for the Inuit of both sides has not yet been established by state law and is nowadays limited to each state’s EEZ and remains strictly controlled by domestic hunting legislations. The Pikialasorsuaq Commission’s project is currently in the second phase, working on the development of an implementation plan, in consultation with the appropriate authorities and based on the recommendations and information gathered by the Pikialasorsuaq Commission in the first phase.

• What does the Letter of Intent for Cooperation on the Pikialasorsuaq mean for the Inuit?

The 2023 Letter of Intent for Cooperation on the Pikialasorsuaq marked an important step for Canada and Greenland to join forces regarding Pikialasorsuaq. A Letter of Intent (LOI) is a written document prepared when two parties have reached a mutual understanding but have not fully detailed out all the specifics. This document is often presented before a final legal agreement, meaning a LOI lacks binding force. Nevertheless, it serves as an expression of political commitment between the parties and outlines the terms they intend to subsequently adhere to. Although lacking thus binding force, the LOI for Cooperation on the Pikialasorsuaq demonstrates political will from both Greenland and Canada to continue joint efforts to manage the Pikialasorsuaq ecosystem and adjacent Inuit communities.

The LOI acknowledges all previous bilateral agreements and joint efforts (including single-species management) with respect to the Pikialasorsuaq area and provides for the establishment of a “joint Pikialasorsuaq steering committee” across Canada and Greenland, with representation from Inuit and national governments on both sides. As of the LOI, the mandate of the Steering Committee would be to “develop instruments and common foundations for management of the area”. While further details about the actual scope of the wording of this objective are not provided in the LOI, it seems that this objective resonates with the first recommendation of the 2017 Pikialasorsuaq Commission report that suggested the establishment of a common Inuit-led management authority for the area (Report of the Pikialasorsuaq Commission, p. A-20). In the LOI, the two parties further express their intention to share relevant existing scientific information among the Inuit Qaujimajatuqangit in Canada, and hunter and user knowledge in Greenland. They also intend to commit to cooperation on research and monitoring of the Pikialasorsuaq ecosystem, exchange information from consultations with local representatives of both sides of the Polynya and refer questions that fall wholly or partially outside of their areas of competence or outside the terms of the LOI for separate discussion with relevant authorities.

Thus, a joint Pikialasorsuaq Steering Committee may have only limited mandate in relation to the management of the area, and mainly focus on carrying out consultations, providing scientific advising, and increasing engagement between local hunters and public authorities. That said, the second and third recommendations of the 2017 Pikialasorsauq Commission report on establishing a protected area led by Inuit and allowing Inuit cross-border activities to travel or hunt seem to not be reflected in the LOI. The right of Indigenous peoples to trans-boundary activities in the sea is yet recognized under international law. For example, article 14(1) of the  ILO Convention 169 to which Denmark is a party recognizes the rights of nomadic Indigenous communities ‘to use lands [and marine areas] not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities’. Article 32 of the ILO Convention 169 further provides that governments ‘shall take appropriate measures, including by means of intern ational agreements, to facilitate contacts and cooperation between Indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields’. Similarly, Article 25 of the UNDRIP, which is endorsed both by Canada and Denmark, obliges states to recognize the rights of Indigenous peoples to ‘maintain and strengthen their distinctive spiritual [and cultural] relationship with their traditionally… used lands, territories, waters and coastal seas and other resources’. Article 36(1) of the UNDRIP further stipulates that: ‘Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders’. Legal protection of Inuit traditional fishing and hunting rights in a transboundary context is also provided in international law of the sea litigation, inter alia, under the doctrine of vested rights [e.g. South China Sea Arbitration, para 808].

Allowance of transboundary activities for the Inuit of Pikialasorsuaq could, however, not find any legal resonance with the existing development in place, as the LOI’s scope is generally broad and does not touch upon any such issues. This is further manifested through Denmark’s lack of participation in the LOI. Considering that for any question dealing with sovereignty, security, delimitation or border issues the Kingdom holds jurisdiction, Denmark should also have been involved in signing the LOI, should such a development be aimed at regulating cross-border Inuit activities.

• Conclusions

It has been approximately seven years since the Pikialasorsuaq Commission was first established, with the region surrounding the North Water Polynya increasingly experiencing paramount socio-ecological changes. Given the LOI’s limited scope and non-binding character, it is difficult to assess what the establishment of a joint Pikialasorsuaq Steering Committee may mean in practice for the Inuit of Pikialasorsuaq. Yet, it demonstrates another step of political will expressed from both sides to acknowledge the Inuit peoples’ relationship to the Pikialasorsuaq and consider the 2017 proposals made by the Pikialasorsuaq Commission. Just about a year before the LOI was signed, the 2022 Hans Island agreement was adopted. The latter explicitly ensured rights for the Inuit of both Nunavut and Greenland to freedom of movement throughout the tiny limestone Hans Island (Tartupaluk) for “hunting, fishing and other related cultural, traditional, historic and future activities”. While the agreement over the uninhabited island may have a more symbolic rather than pragmatic value for traditional activities, the adoption of the 2023 LOI shows a second significant intention by public authorities to acknowledge the integrity of Inuit territories. Thus, whereas the recent LOI could be seen as a point of departure for future transboundary legal developments in the Arctic, time will show what the intention may mean in practice.

This post may be cited as: Apostolos Tsiouvalas, “Reflections on the Letter of Intent for Cooperation on the Pikialasorsuaq: What does it mean for the Inuit?” ( 31 October 2023), online: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/10/Apostolos_NCLOS-Blog_271023_Final.pdf

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By: Maria Madalena das Neves (Associate Professor at NCLOS, Faculty of Law, UiT-The Arctic University of Norway)

PDF: https://site.uit.no/nclos/wp-content/uploads/sites/179/2023/06/MMN_Deepsea-Minerals-Exploitation_NCLOS-Blog_27062023.pdf

Matter commented on:  ISA draft exploitation regulations and the 2-Year rule

1. Introduction

Nauru invoked  the ‘two-year rule’ enshrined in section 1(15)(b) of the Annex to the 1994 Agreement relating to the implementation of Part XI of UNCLOS (Part XI Agreement) on 25 June 2021 and announced the intentions of Nauru Ocean Resources Inc (NORI) to apply for the approval of a plan of work for exploitation. This effectively put the International Seabed Authority (ISA) under the clock to complete the adoption of rules, regulations and procedures (RRPs) for exploitation activities by 9 July 2023. When the Council of the ISA fails to complete and adopt the RRPs within this deadline, and if application for approval of a plan of work is pending, then, in accordance with section 1(15)(c) of Part XI Agreement, the Council “shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention [UNCLOS] and any [RRPs] that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex [to the Part XI Agreement] as well as the principle of non-discrimination among contractors”.

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 2^nd 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.