Category: Law of the Sea Convention (UNCLOS)

A Legal Analysis of UNCLOS’ Common Heritage of Mankind Principle and ‘for the benefit of mankind’ Provisions in the Context of the Call for a Deep Seabed Mining Moratorium

By: Samantha Robb

Legal research assistant employed by the Royal Netherlands Institute for Sea Research (NIOZ) for the joint project ‘Protecting deep seabed hydrothermal vent fields through area-based management tools’ led by NIOZ and Utrecht University (the Netherlands Institute for the Law of the Sea (NILOS) and the Utrecht Centre for Water, Oceans and Sustainability Law (UCWOSL))

PDF: Samantha Robb_Bolstering the Area’s benefits to humankind_NCLOS Blog_28022023.pdf

Matter commented on: The call for a moratorium on deep seabed mining, common heritage of mankind principle, meaning of ‘benefits’ in the Area regime under Part XI of the 1982 United Nations Convention on the Law of the Sea

1. Introduction

The latest International Seabed Authority (ISA) Council meeting took place from 31 October 2022 to 11 November 2022. The Council is working towards finalising the Mining Code, which is a complete set of ISA rules, regulations, and procedures to regulate prospecting, exploration, and exploitation of the Area’s resources (ISA’s Mining Code). The ISA is required to develop the Mining Code under Part XI of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Part XI Implementation Agreement. According to Nauru’s triggering of the two-year rule, the Mining Code should be finalised by June 2023 (ISA, 2021; Blanchard, 2021), although meeting this deadline seems unlikely. The biggest splash made at this recent Council meeting was France’s statement (France Declaration to the ISA, 10 November 2022) supporting France’s President Macron at the United Nations Framework Convention on Climate Change COP27 calling for an outright moratorium (ban) on all deep seabed mining (DSM) in the international seabed (beyond (outer) continental shelves), which is referred to in UNCLOS as ‘the Area.’ France’s statement evoked strong responses from some state delegates, including questioning the legality of a DSM Moratorium.

The Area and its resources are the common heritage of (hu)mankind (CHM) (UNCLOS, article 136). Inherent in the debate over whether DSM should soon commence or be banned (temporarily or permanently) is the question of what benefits humankind currently derive and could derive from the Area. This post assesses UNCLOS’ provisions which (i) establish the Area and its resources as CHM; and (ii) provide for utilising the Area and its resources for the benefit of humankind, in historical and contemporary contexts. In particular, it demonstrates that there have been significant developments in scientific knowledge of the functions of the deep seabed since the negotiations on the UNCLOS (1973-1982). Based on this discussion, this post proposes adopting a holistic and evolutive approach when interpreting ‘benefits’ from the Area and discusses what this means in the context of discussions around a DSM Moratorium.

By: Mana Elise Tugend, Ingrid Solstad Andreassen, Bastiaan Klerk, Nikolaos Gkikas, and Konstantinos Deligiannis Virvos

Matter commented on: NCLOS Conference on Ocean Space, 23-24 November 2022, Tromsø, Norway.

Introduction:

It is commonly known that ocean spaces and marine ecosystems are connected in complex and multiscale ways, but the biological and ecological connectivity of oceans is not sufficiently accounted for in the current legal regime. The UN Convention for the Law of the Sea (LOSC) causes fragmentation of the legal regime by a zonal approach dividing the ocean space into different maritime zones and subsuming each of the fragmented parts to separate legal regimes. The current socio-environmental challenges, including climate change, biodiversity loss, plastic pollution and ocean acidification also raise several systemic challenges pushing for the problematization of the relevant legal framework applied to the ocean space.

Against this background, the Norwegian Centre for the Law of the Sea (NCLOS) organized a two-day conference, from 23-24 November 2022, to discuss the various challenges rising with respect to ocean space. The objective of the conference was to address important questions regarding the current relationship between law, sea and space, and prompt legal scholars to interrogate and problematize the current Law of the Sea and Ocean Governance Framework (LOSOG), the Law of the Sea Convention and its key principles, as well as the spatial-legal architecture delineating ocean space in discrete maritime zones.

The Conference consisted of two keynote presentations provided by Alexander Proelß and Marit Reigstad and five panels, sparking interesting discussions and new insight on the pressing issues currently relating to the zonal architecture of the ocean space. Panel 1 focused on ‘Ocean space and climate change’. Panel 2 examined the theme of ‘Transcending borders: Ecosystem-based [and integrated] ocean governance’. Panel 3 dealt with ‘Spatiality and law across sectors’. The fourth panel tackled the topic of ‘Ocean space, dynamism, and law.’ The last panel focused on ‘Conceptualizing ocean space.’

The full conference report is available here.

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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.

By: Catherine Blanchard

PDF version: Catherine Blanchard_170921_NCLOS blog 

 Matter commented on: Nauru and the 2-year rule in deep-sea minerals exploitation

 1            Introduction

On 25 June 2021, the small Pacific island nation of Nauru put the international scientific, legal and political ocean community in a state of alert. It requested the International Seabed Authority (ISA), whose mandate is to regulate and control all mineral-related activities in the international seabed (also referred to as the Area) (United Nations Convention on the Law of the Sea (UNCLOS), art. 157(1); About the ISA), to complete the rules, regulations and procedures (RRPs) necessary to approve plans of work on deep seabed exploitation, which have been in development since 2011. In fact, Nauru claims that Nauru Ocean Resources Inc (NORI), an Nauruan entity sponsored by the Nauruan State, will soon be ready to submit plans of work for approval. This request was made under paragraph 15 of section 1 of the Annex to the Agreement relating to the implementation of Part XI (Part XI Agreement) of UNCLOS. Paragraph 15 stipulates that if a State party, which is ready to submit a plan of work for approval, requests the ISA to complete the elaboration of all relevant RRPs for exploitation, the ISA must do so within two years of the request. If the RRPs have not been elaborated within two years, the ISA shall provisionally approve the plan of work on the basis of whatever (draft) RRPs in place at the time. The rationale for the provision is seemingly to ensure the access to deep-sea resources and the development of the relevant exploitation rules in case of a deadlock at the Council, the executive organ of the ISA (Oxman 1994 at 692-693).

The triggering of this provision, referred to as “the 2-year rule”, has led to various reactions from all sides. This blog post engages in a legal analysis of the background, meaning and impact of the 2-year rule. As a legal analysis cannot be taken apart from the context in which it arises, this post first starts by highlighting the regulatory and political background against which the Nauruan request is made, before it turns to analyzing different components of the 2-year rule. The post further discusses the potential links between the 2-year rule and obligations of sponsoring States. It is hoped that this post will contribute to the emerging reflection on the legal impact of the 2-year rule, which is triggered for the first time by a State party.

By: Bharatt Goel

Pdf version: Bharatt Goel_Blog post

Matter commented on: Sea level rise and law of the sea

The global rise in sea level has manifested a challenge to international law and opened a Pandora box of legal questions prompting the International Law Commission to include it in its long-term program of work. One such question pertains to the change in maritime jurisdiction and sovereignty of States, especially the low lying coastal and island States. Article 5 of the UN Convention on the Law of the Sea, 1982 [hereinafter, alternatively the Convention or UNCLOS] stipulates that a State’s maritime zones are determined by the normal low water-line along its coast i.e. baseline. Further, pursuant to article 47(1) of the Convention, the outermost geographical features are used as coordinates or basepoints to draw baselines of archipelagic States. With the help of these baselines and basepoints, all other maritime entitlements of a State are demarcated on the sketch board of maritime delimitation. 

By: Jessica Schechinger

PDF version: JCLOS Blog_May 6 2019_Human rights at sea Declaration

Document commented on: Geneva Declaration on Human Rights at Sea (Version 1, 5 April 2019)

On 5 April 2019, the first version of the Geneva Declaration on Human Rights at Sea (hereafter: the Declaration) was published by Human Rights at Sea (hereafter, HRAS). HRAS is a charity based in the United Kingdom, that recently celebrated its fifth anniversary. It aims to raise ‘global awareness of human rights abuses at sea’, by undertaking research, investigation and advocacy.

According to HRAS’ press release, the Declaration was published on the basis of the first drafting session which took place in Geneva on 20-21 March 2019. Anna Petrig (a member of the board of advisors of HRAS), Irini Papanicolopulu, Steven Haines (a trustee of HRAS), and David Hammond (the founder of HRAS and currently a trustee) are the drafters of the Declaration. They were assisted by Elisabeth Mavropoulou and Sayedeh Hajar Hejazi.

The HRAS press release revealed that ‘[t]he first drafting round was supported with input and observers from multiple UN agencies, leading human rights lawyers, international and civil society organisations’. The press release did not specify who was involved, but hopefully this will be revealed after the second drafting session. This second drafting session is envisaged to be held in Geneva in May 2019, which is also when the four Annexes (entitled ‘Contemporary Evidence of Human Rights Abuses at Sea’ (A); ‘List of Applicable Fundamental Human Rights at Sea’ (B); ‘Commentary’ (C); and ‘Operationalising Human Rights at Sea’ (D)) will be finalised (at 3). As the Declaration is a work in progress, the following short blog post offers only some preliminary thoughts.

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: rich pickings in the Decision on Objections to Competence of the Timor-Leste\Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration).

Background

Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.