Category: Blog

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

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

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.

Due to some technical changes our old newsletter no longer exists. If you still want to receive updates on new blogposts per e-mail you can subscribe here!

The Norwegian Centre of the Law of the Sea research activity has started and this blog aims to become a new breeding ground of ideas for the passionate of the law of the sea, ocean governance and all related topics.

I am inspired, humbled and honoured to take up the baton from Nigel Bankes and be the blog editor of this new season. In this blog, we want to share ideas, news and best practices about laws and oceans, and develop stronger connections with the ocean-based research community.

You will be exposed to our views ocean law and governance-related topics. You are more than welcome to respond, add comments and suggestions, disagree and express dissenting opinions. I ask to keep the comments relevant to the conversations taking place here so that we can always be kind and respectful to all those involved and add value and depth to the dialogue in a constructive manner.

Young scholars (in age and spirit), PhD students and LLM students that are willing to publish their Master thesis’ findings, are especially encouraged to contact us: this blog is meant to be a platform to develop your creative research and writing skills as young explorers! I encourage you to visit the NCLOS website and learn about us, about our current and future research areas, about who we are and our core values.

It will be my task to receive your contributions (short opinion pieces as well as more in-depth analyses that draw attention to your field of expertise), news, interesting events, book reviews and reading suggestions. Please feel free to contact me for more information and consider subscribing and engaging in discussion around the notion of ocean governance, which I believe is central for a better common future in research.

Thank you for reading and visiting, and helping us build a vibrant research community focused on observations, research and exchange of views around our wonderful oceans.

 

With gratitude,

Margherita Paola Poto,

Forsker, NCLOS UiT, Tromsø

Email contact: margherita.p.poto@uit.no