Matter commented on: Recognition of regional and sectoral marine protected areas (MPAs) under the international legally binding instrument (ILBI) on biodiversity beyond national jurisdiction (BBNJ)
In the midst of global biodiversity and climate crises, global policymakers are resuming negotiations for a new implementing agreement under United Nations Convention on the Law of the Sea (UNCLOS) for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (BBNJ) in August 2022 (UN General Assembly Resolution 76/564). Following the fourth session of the intergovernmental conference (IGC-) in March, which by some has been remarked the “most productive of the entire process” (IISD, IGC-4 summary, at p. 20), expectations for the fifth session of the IGC- (IGC-5) are high. Given the unprecedented decline of global biodiversity, with a recorded average 68% decrease in monitored populations of mammals, birds, amphibians, reptiles and fish between 1970 and 2016, (WWF Living Planet Report, 2020) there is an obvious and urgent need for a treaty that allows for better protection of high seas biodiversity. The high seas, covering approximately half the Earth and comprising nearly 95% of the ocean’s total volume, are an indispensable link in global efforts to halt biodiversity loss (Parliaments for Global Action, 2020). They harbour diverse and abundant life and are essential to many species who migrate through and over them – whales, seals, tuna sharks, albatross, and many more. Yet, at present, only 1,2% of the high seas are covered by marine protected areas (MPAs) (Protected Planet Report, 2020).
The agreement is a package deal, which encompasses a final delimitation between Canada and Denmark (Greenland), delimiting the maritime areas within 200 nautical miles from the baselines in the Lincoln Sea and the Labrador Sea. In addition, the agreement settles the sovereignty dispute over Hans Island in the Kennedy Channel.
Photo: Foreign Ministry of Denmark
An equitable solution
Articles 74 and 83 of the UN Convention on the Law of the Sea (UNCLOS) provide that all States are to seek an equitable solution in the delimitation of maritime areas subject to overlapping claims. The UNCLOS does not provide any further guidance on how the States should proceed in their negotiations towards reaching such solutions.
However, a relatively consistent practice has developed through a considerable body of case law, where a three-stage approach is applied. The first step is to draw a line at an equal distance from the closest points on the coasts of each of the parties. This provisionally drawn equidistance line is the result of an objective, geometric process, and serves as a practical starting point in many delimitation processes. The provisional equidistance line is then adjusted, taking into account relevant circumstances, that call for the adjustment of the provisional equidistance line in order to achieve an equitable result. Finally, the preliminary line is subject to a test of disproportionality, to verify that the adjusted equidistance line does not “lead to an inequitable result by reason of any marked disproportion [for example] between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line” (Maritime Delimitation in the Black Sea (Romania v. Ukraine) (Judgment) [2009] ICJ Rep 61, 103 [122].
Although the three-stage approach is primarily developed for the settlement of maritime delimitation disputes by the judiciary, it is also frequently used in maritime delimitation negotiations.
The end of the Whisky War
Hans Island is an uninhabited lime-stone island covering 1.3 square kilometres, situated in the Kennedy Channel, within 12 nm from the coast of both Canada and Denmark (Greenland), and is accordingly part of both States’ claims of territorial waters. When Canada and Denmark (Greenland) negotiated their boundaries in 1973, they were unable to agree on the issue of sovereignty over Hans Island. The 1973 agreement accordingly leaves Hans Island out, and explicitly provides in Article 2 (2) that “the dividing line shall be of two series of geodesic lines joining from the following points”, where series A is measured from point No. 114-122, and Series B is measured from point No. 123-127. There is no boundary between point 122 and 123, where Hans Island is located.
The conflict over Hans Island has become known as the “Whisky War” since 1984, when Canadian troops planted a flag on the island, a sign saying “welcome to Canada” and left a bottle of Canadian whisky. When the Danish Minister of Greenland visited the island later the same year, he replaced the Canadian offerings with a Danish flag, a bottle of Danish schnapps and a letter saying “Welcome to the Danish island”. Since then, there have been numerous trips to the island from both parties to replace the other side’s offerings. The humorous undertone aside, the parties have until now not been able to agree who has sovereignty over the Island. The island itself has little economic value, and as the parties’ maritime sones in the Kennedy Channel were agreed upon in 1973, the delimitation of the island itself does not have large consequences for the parties. However, the Kennedy Channel and Hans Island may become more important if global warming makes it possible to establish a sea route from the North Atlantic Ocean to the Arctic Ocean west of Greenland.
The delimitation agreement solves the Hans Island Sovereignty dispute, dividing the island between Canada and Denmark (Greenland). The considerations discussed by the parties are not known to the public. The agreed border does provide some clues, as the limit appears to be drawn along the natural ridges on Hans Island. This delimitation method is familiar both from the law of the sea and from other land demarcation.
79 000 square kilometres of overlapping entitlements in the Labrador Sea
In addition to achieving a final solution for Hans Island, Canada and Denmark (Greenland) have also concluded the remaining of the unresolved maritime boundaries between the two States, including the geographical areas southwest and northwest of Greenland.
UNCLOS Article 57 provides a right for coastal states to establish an exclusive economic zone in an area up to 200 nautical miles measured from the coastal baseline. In addition, coastal states’ entitlement to the continental shelf may continue beyond 200 nm if the continental margin continues beyond such distance (Article 76). The Labrador Sea is an arm of the North Atlantic Ocean between the Labrador Peninsula and Greenland, where the entitlements provided by the UNCLOS resulted in an 79 000 square kilometres area of overlapping claims of Canada and Denmark (Greenland), which is now delimited between the parties.
The parties have not disclosed the rationale behind the negotiated delimitation line in the Labrador Sea, but a close study of the official map suggests that the delimitation is based on an equidistance line, with some minor adjustments taking into account relevant circumstances. The parties accordingly seem to have based their negotiation on the recognized three-stage approach, as a means to achieve an equitable solution as provided in UNCLOS articles 74 and 83.
Indicating a direction for the future delimitation of the Central Arctic Ocean
The parties have also succeeded in establishing a common delimitation line in the Lincoln Sea, a body of water in the Arctic Ocean. The limit is based on a preliminary boundary agreement from 2012, and has finally been provided a permanent status in the 2022 maritime delimitation agreement between Canada and Denmark (Greenland).
In the Lincoln Sea, the parties have apparently confined themselves to applying an objective approach to establish an equidistance line between themselves. This sends a very important political signal, indicating that both Canada and Denmark (Greenland) most likely will argue for the application of an equidistance approach also further north, in the Arctic Ocean, where the Danish and the Canadian continental shelf both allegedly overlap with areas subject to Russian claim of entitlement.
The geopolitical side-effects of the delimitation agreement
The agreement dividing Hans Island and the delimitation of the disputed maritime areas are not only of symbolic value, but also of great practical significance for the parties. The negotiated agreement is of particular importance for the Inuit settlement of Ausuittuq in Canada and the Greenlandic settlement of Qaanaaq, and contributes to laying the foundations for a closer and broader cooperation between Canada and Greenland. The ambition of future cooperation and mobility between the States is explicitly included in the agreement. The delimitation comes shortly after Canada, Denmark and five other Arctic states announced their intent to resume Arctic cooperation in projects that do not involve Russian participation. At a time when the international legal order is under severe pressure, and there is an increasing concern relating to the extent to which States will comply with their obligations under international law, the delimitation agreement between Canada and Denmark (Greenland) demonstrates that the Arctic states have a strong will and commitment to follow up their obligations under the Law of the Sea and the Ilulissat Declaration of 2008.
The ongoing negotiations for a global treaty on the conservation of marine biodiversity in areas beyond national jurisdiction (BBNJ) in part seek to fill the legal and governance gap for the establishment of marine protected areas (MPAs) in areas beyond national jurisdiction (ABNJ). The likely outcome — an Internationally Legally Binding Instrument (ILBI) — will facilitate the designation of new MPAs in ABNJ. Since negotiations are ongoing, a platform remains for discussing how the MPA mechanism of the ILBI can support advances in science and technology and potentially better respond to evolving risks to BBNJ.
This blog post, based on the author’s master’s thesis (Fisher, ‘‘Technical and Legal Implications for Dynamic Legalities…,’ 2021’’ and hereafter, ‘Fisher, LL.M. Thesis, 2021’), highlights one novel approach to area-based management called Dynamic Ocean Management (DOM). With DOM, spatial and temporal regulatory measures can constantly be updated to reflect changes to the marine environment in near real-time (see, e.g., Welch et al., 2019). For MPAs, it can lead to ongoing shifts of protected area boundaries or management regulations based on new ocean conditions (e.g., the presence of a vulnerable species). The approach could prove especially effective for conservation of BBNJ in marine environments facing rapid change and uncertainty, such as the Central Arctic Ocean (hereafter, Central Arctic Ocean is used to describe the ABNJ of the Central Arctic Ocean).
Scholars have discussed DOM’s promising potential for BBNJ conservation (see, Crespo et al., 2020 and Maxwell et al., 2020), inspiring a more specific question addressed in this post: how can the BBNJ Treaty accommodate DOM decision-making for Arctic MPAs? The decision-making focus is due to a notable juxtaposition: DOM’s ongoing, near real-time decision-making process and international law’s consent-based procedures that value stability and certainty. The Arctic focus emerges due to the potential usefulness of a DOM approach for a rapidly changing Central Arctic Ocean and simultaneously grounds the discussion in specific BBNJ relevant entities and context. Before exploring how the ILBI could support a DOM approach to Arctic MPAs, a brief overview of DOM and its potential for Central Arctic Ocean MPAs is provided.
Matter commented on: Hybrid naval warfare; Distinction between naval warfare and maritime law enforcement
1. Introduction
This short blog post aims to provide guidance for parties to hybrid naval warfare for determining whether the rules of armed conflict or law enforcement are applicable to various situations where force has been used against ships. The guidelines are based on the relevant case law and systemized into three scenarios: first, a commercial ship vs. government ship/warship (State vessel) scenario; second, a State vessel vs. commercial ship scenario; third, a State vs. State scenario. The analysis focuses on the use of force against ships, but the rules apply mutatis mutandis also in relation to aircraft and installations and structures at sea.
In Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), the International Court of Justice (ICJ) was requested to establish the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone and continental shelf, including the continental shelf beyond 200 nautical miles (nm). This is the fourth time an international court or tribunal has delimited the continental shelf beyond 200 nm from the baselines. Although the Judgment seemingly follows a pattern established through previous delimitation cases, the separate opinions of several judges reveal ripples below the surface.
The purpose of this post is to take a closer look at the parts of the Judgment dealing with the outer continental shelf delimitation, and assess whether the ICJ in Somalia v. Kenya acted in accordance with previous judicial practice.
This commentary takes a particularly deep dive into the question of entitlement to the continental shelf beyond 200 nm as a prerequisite for delimitation and echoes some of Judge Robinsons’ concerns about the ICJ seemingly replacing the geological and geomorphological criteria with a simple distance criterion of a maximum of 350 nm.
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.
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.
Matter commented on: developing good ocean governance of the Arctic
The Norwegian Centre for the Law of the Sea (NCLOS) is excited to announce the launch of a new research project: Developing Good Ocean Governance of the Arctic in Times of Unpredictable and Rapid Changes (DOGA), funded by the Norwegian Research Council. The DOGA project is led by Professor Ingvild Ulrikke Jakobsen and assembles a group of researchers from NCLOS, the Norwegian College of Fishery Science, the Norwegian Institute for Water Research (NIVA), the Moscow State Institute of International Relations in Russia, and Dalhousie University in Halifax in Canada. The aim of the project is to contribute to good ocean governance of the marine Arctic by critically investigating the implementation of the ecosystem approach in Norway, within a regional context.
Matter commented on: Maritime security threats and the passage regime in the Bab el-Mandeb
1 Introduction
The strait of Bab el-Mandeb separates Africa from the Arabian Peninsula and is an important element in the connection of the Mediterranean Sea and the Red Sea with the Indian Ocean. The Suez Canal interlinks the Mediterranean with the Red Sea, while the Bab el-Mandeb connects the Red Sea with the Indian Ocean. In Arabic, Bāb al-Mandab stands for “the gate of tears” (Encyclopaedia Britannica), which in the present-day context is a fitting name for a sea passage in a region that has borne tragic sufferings: a protracted humanitarian crisis and armed conflicts in Yemen, Somalia, and the Ethiopian province of Tigray, a brutal dictatorship in Eritrea, and genocide in Sudan. At the same time, the Bab el-Mandeb is the world’s third-largest maritime oil chokepoint after the Strait of Hormuz and the Strait of Malacca. The oil flow through the Bab el-Mandeb increased from 5.1 million barrels per day (b/d) in 2014 to 6.2 million b/d in 2018 which accounts for roughly a tenth of total seaborne-traded oil (EIA, 2019). The Bab el-Mandeb bears particular strategic importance for Europe as most of the European Union’s (EU) maritime commerce with Asia crosses this narrow sea passage.
This blog post first discusses the passage regime in the Bab el-Mandeb. Second, it examines the threats posed by terrorism, piracy, civil war, and a hybrid naval war to international navigation through that strait. In this context, hybrid warfare is understood as a phenomenon “where a wide range of overt and covert military, paramilitary, and civilian measures are employed in a highly integrated design” (NATO, 2014, para 13; see also NATO, 2021, para 3). This blog post shows that these threats to international shipping in the Bab el-Mandeb have emerged as waves. As soon as one threat starts to fade away, another emerges. Third, the blog post seeks to find out the main causes of the instability of international navigation through the geopolitically turbulent waters of the Bab el-Mandeb.
Matter commented on: the Role of Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas
1 Introduction
The rapidly evolving ocean technologies and environmental changes induced by anthropogenic climate change have led to unprecedented pressures on the ocean, leading inter alia to ocean acidification, loss of biodiversity and pollution of air, water and soil. The need for better governance of human activities in the ocean space has been widely recognized for years as the world drastically evolved since the establishment of the current international legal framework for ocean governance, the 1982 United Nations Convention on Law of the Sea (UNCLOS). A process towards the establishment of an international legally binding instrument (ILBI) under UNCLOS on the conservation and sustainable use of marine biodiversity located in areas beyond national jurisdiction (BBNJ) is currently ongoing. At the moment and until the BBNJ agreement is finalized, more than 40% of the Earth’s surface receives limited effective legal protection for its natural environment and functional ecosystems (Brodie Rudolph et al. 2020). The BBNJ negotiations represent a historical opportunity to build a just and sustainable legal framework for ocean commons relying on an ecosystem-based approach for the benefit of both ecosystems and the people depending on these for survival. Indigenous peoples especially rely on a rich biodiversity and a healthy environment to maintain their traditional lifestyles. They developed and hold a vast amount of knowledge called traditional knowledge (TK), an integrated part of an Indigenous people’s identity that is transmitted across generations. This blog post wishes to address the question of the use of TK for the conservation of marine biodiversity in areas beyond national jurisdiction (ABNJ), a question currently addressed at the negotiations for the establishment of a BBNJ instrument. The scope of the discussion especially focuses on the incorporation of Indigenous peoples and TK holders with respect to conservation mechanisms in Arctic ABNJ – the high seas and the deep seabed located beyond the limits of coastal states’ jurisdiction (Ardron et al. 2013). This blog post primarily focuses on the relevance of TK with respect to the establishment of area-based management tools (ABMTs), including marine protected areas (MPAs), in Arctic ABNJ.
