New Knowledge and Changing Circumstances in the Law of the Sea [1 ed.] 9789004437753, 9789004437746

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New Knowledge and Changing Circumstances in the Law of the Sea

Publications on Ocean Development A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development

General Editors Robin Churchill Alex Oude Elferink

Volume 92

The titles published in this series are listed at brill.com/pood

New Knowledge and Changing Circumstances in the Law of the Sea Edited by

Tomas Heidar

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Heidar, Tomas, editor. Title: New knowledge and changing circumstances in the law of the sea /  edited by Tomas Heidar. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2020] | Series: Publications on ocean  development, 0924-1922 ; volume 92 | Summary: “During the four decades, that have passed since  the 1982 United Nations Convention on the Law of the Sea was negotiated, there has been considerable  advancement in the knowledge of a number of important issues addressed in the Convention. Among  those issues are marine biological diversity, the continental shelf, and deep seabed mineral resources.  At the same time, as a consequence of global warming, fundamental changes are taking place in many  areas related to the law of the sea. In particular, sea level is rising globally, which may affect baselines,  maritime limits and boundaries of coastal States. New Knowledge and Changing Circumstances in the  Law of the Sea, edited by Tomas Heidar, focuses on these critical developments, the challenges they pose  to the existing legal framework, and the various ways in which States are addressing these challenges”—  Provided by publisher. Identifiers: LCCN 2020031334 (print) | LCCN 2020031335 (ebook) | ISBN  9789004437746 (hardback) | ISBN 9789004437753 (ebook) Subjects: LCSH: Law of the sea. Classification: LCC KZA1145 .N479 2020 (print) | LCC KZA1145 (ebook) |  DDC 341.4/5—dc23 LC record available at https://lccn.loc.gov/2020031334 LC ebook record available at https://lccn.loc.gov/2020031335

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 0924-1922 ISBN 978-90-04-43774-6 (hardback) ISBN 978-90-04-43775-3 (e-book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Editor’s Preface ix List of Figures and Tables xi Contributors xiii Introduction: How Does the Law of the Sea Adapt to New Knowledge and Changing Circumstances? 1 Tomas Heidar

Part 1 Legal, Scientific and Technical Interplay in the Law of the Sea 1

Disputes Involving Scientific and Technical Matters and the International Tribunal for the Law of the Sea 15 Jin-Hyun Paik

Part 2 Marine Biological Diversity of Areas beyond National Jurisdiction: Marine Genetic Resources 2

Mind the Gap between Biological Samples and Marine Genetic Resources in Areas beyond National Jurisdiction: Lessons from Land 29 Sophie Arnaud-Haond

3

The Legal Status of Marine Genetic Resources in the Context of BBNJ Negotiations: Diverse Legal Regimes and Related Problems 40 Konrad Jan Marciniak

4

Marine Genetic Resources of Areas beyond National Jurisdiction and Intellectual Property Rights 65 Fernanda Millicay

5

BBNJ and MGRs: Practical Solutions for Benefit-Sharing 79 Natalie Y. Morris-Sharma

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Part 3 Marine Biological Diversity of Areas beyond National Jurisdiction: Conservation and Management Tools and the Question of Fisheries 6

Options for Marine Protected Areas under a New Agreement on Marine Biodiversity of Areas beyond National Jurisdiction 101 Veronica Frank

7

Fisheries and Areas beyond National Jurisdiction: Advancing and Enhancing Cooperation 124 Richard Barnes

Part 4 Disputes Concerning the Delimitation and Delineation of the Continental Shelf beyond 200 Nautical Miles 8

Disputes Concerning the Delimitation of the Continental Shelf beyond 200 Nautical Miles 157 Leonardo Bernard and Clive Schofield

9

Obligations of States in Disputed Areas of the Continental Shelf 183 Sean D. Murphy

10

Joint Development in Continental Shelf Areas beyond 200 Nautical Miles 206 Vasco Becker-Weinberg

11

More Disputes ahead for the CLCS? CLCS Practice on Rule 46 of Its Rules of Procedure 232 Signe Veierud Busch

Part 5 Seafloor Highs 12

Seafloor Highs in Article 76 of the Law of the Sea Convention A Scientific Introduction and Some Comments on CLCS Practice 249 Walter R. Roest

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13

Submarine Ridges and Submarine Elevations under the Law of the Sea Convention: A Further Look 264 Kevin A. Baumert and Larry Mayer

14

The Case of Reykjanes Ridge 289 Helga Gudmundsdottir

15

Classification of Seafloor Highs in the Central Arctic Ocean 308 Bjørn Kunoy

Part 6 Deep Seabed Mineral Resources and the Marine Environment 16

Environmental Impacts of Deep Seabed Mining 327 Matthias Haeckel, Annemiek Vink, Felix Janssen and Sabine Kasten

Part 7 Climate Change and the Legal Effects of Sea Level Rise 17

Climate Change and the Legal Effects of Sea Level Rise: An Introduction to the Science 343 Larry Mayer

18

The Effects of Sea Level Rise on Baselines and Outer Limits of Maritime Zones 358 Alfred H.A. Soons

19

Effects of Sea Level Rise on Agreements and Judgments Delimiting Maritime Boundaries 382 Snjólaug Árnadóttir

20 Legal and Political Considerations on the Disappearance of States due to Sea Level Rise 407 Christina Hioureas and Alejandra Torres Camprubí

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Part 8 The Central Arctic Ocean Fisheries Agreement 21

Implementing the New Arctic Fisheries Agreement 429 David Balton

22 The CAOF Agreement: Key Issues of International Fisheries Law 446 Erik J. Molenaar

Editor’s Preface During the four decades that have passed since the 1982 United Nations Convention on the Law of the Sea was negotiated, there has been considerable advancement in scientific and other knowledge about a number of important issues addressed in the Convention. Among the issues that are much better understood today than in those days are: marine biological diversity of areas beyond national jurisdiction, including marine genetic resources that at the time were not commonly known to exist on the deep seabed; the continental shelf, including seafloor highs, and its outer limits; and deep seabed mineral resources and the impact of their exploitation on the marine environment. At the same time, fundamental changes are taking place in many areas related to the oceans and the law of the sea as a consequence of global warming. In particular, sea level is rising globally, which may affect baselines, maritime limits and boundaries of coastal States and, in the most dramatic cases, cause the inundation of islands that may lead to the partial or total disappearance of a State. Furthermore, the ice-covered Central Arctic Ocean is opening up to fisheries and other activities. This publication focuses on those developments, the challenges they pose to the existing legal framework, in particular the Law of the Sea Convention, and the different ways in which States and other actors are trying to cope with these challenges. This publication includes an Introduction and twenty-two Chapters by prominent legal and scientific experts based on their presentations at the Conference “New Knowledge and Changing Circumstances in the Law of the Sea”, hosted by the Law of the Sea Institute of Iceland and the Korea Mari­ time Institute at the University of Iceland, Reykjavik, Iceland, 28–30 June 2018. The Conference, which attracted around 130 participants from 45 countries, was also sponsored by the Nordic Council of Ministers, the Netherlands Government and the K.G. Jebsen Centre for the Law of the Sea (now the Norwegian Centre for the Law of the Sea), Tromsö. All PowerPoint presentations made at the Conference, as well as a comprehensive Conference Report, are available on the website www.IcelandKMIConference2018.com. I would like to express my gratitude to the Korea Maritime Institute for excellent cooperation in co-hosting the successful Reykjavik Conference, without which this publication would never have seen the light of day. I am also thankful to the Board of the Law of the Sea Institute of Iceland for entrusting me with the task of organizing the Conference and, subsequently, editing this publication.

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I would like to thank the authors for their excellent contributions. The Chapters were generally finalized in early 2019 and are current up to that time. I also want to thank them for their outstanding cooperation and good spirit during the editing of this book, the final phase of which coincided with the challenging COVID-19 pandemic. Finally, I would like to thank Marie Sheldon, Law Publishing Director at Brill, for her interest in publishing this book and Kelley Baylis, Assistant Editor, Kayla Griffin, Production Editor, and the other staff at Brill for excellent cooperation and for turning the manuscript into a publication. Tomas Heidar

London, 4 June 2020

Figures and Tables Figures 2.1 2.2 2.3 2.4

4.1

8.1 8.2 8.3 8.4 8.5 12.1 13.1 13.2 13.3 13.4 13.5 13.6 13.7 17.1 17.2 17.3 17.4 17.5

Number of sequences associated with a patent for each marine lineage in the tree of life 32 Evolution of the number of sequences with a marine origin associated with patent claims 33 The extent of the marine environment and of the high seas 34 The pyramidal relationship between the number of molecules sampled and the ones finally associated with a patent claim, after laboratory screening and clinical trials 37 Uses proposed in the claims or description of 460 patents deposited at the International Patent Office and associated with genes isolated in marine organisms 74 Okinotorishima and Japan’s maritime claims 166 The maritime boundaries in the Bay of Bengal 169 Disputed areas in the East China Sea 170 Delimitation line claimed by Nicaragua 171 Maritime delimitation between Australia and New Zealand 180 Multiresolution bathymetric map of the world 253 Article 76 illustration 266 Submarine ridges are a subset of submarine elevations 269 Interpretation A: applicability of constraints 272 Interpretation B: applicability of constraints 274 Flowchart illustrating two interpretations of article 76(6) 277 Interpretation C: applicability of constraints 281 Flowchart of Interpretation C 281 Relative Sea Level curve for past 550 million years 345 Relative Sea Level curve for past 800,000 years 346 Global temperature for 5° × 5° areas relative to average temperature between 1961 and 1990 for past 11,300 years 348 Instrumental (measured) global surface temperature record since 1880, relative to the average between 1951 and 1980 349 (Top) Record of atmospheric CO2 for past 800,000 years from ice cores, spliced with modern measurements made at the Moana Loa Observatory since 1958. (Bottom) Focus on past 300 years showing increases starting in late 1800s with larger rate of increase post-1950 350

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17.6 Composite sea level curve from various sources for period between 1700 to 2010 352 17.7 IPCC model runs (42) for four future carbon emission scenarios 354 17.8 Predicted global average mean sea level rise from 2006 to 2100 relative to average sea level between 1986 and 2005 355 17.9 Areas in Southeast Asia that would be inundated by a one-metre rise in sea level 356 21.1 Donut Hole 430 21.2 Central Arctic Ocean 431 21.3 CAO with ice-free areas 432 21.4 Agreement Area and NEAFC 436 22.1 The Arctic region: general overview 450 22.2 High seas pockets in the marine Arctic 451

Tables 2.1 4.1 8.1 13.1 22.1

Definitions of the most important terms and concepts 30 Patent claims for a gene of marine origin with source 71 List of outer continental shelf boundary agreements 176 Four scenarios illustrating outcomes under Interpretations A, B, and C 283 Meetings of the Arctic Five and Five-plus-Five Processes 453

Contributors Sophie Arnaud-Haond is Researcher at Ifremer, the French Institute for Exploration of the Sea. She obtained a PhD degree at Montpellier University where she specialized in Ecology and Evolution of Marine Organisms. She mainly studies dispersal of and barriers to migration in the marine environment, associated with complex life cycles, their implications for biodiversity and conservation, and their influence on the evolution of marine organisms. The final aim of most of her work is the conservation of threatened species or habitats, and the study of metapopulation systems to infer connectivity patterns at different spatial and temporal scales in the oceans. She is therefore strongly interested in the application of scientific information to the conservation and management of biodiversity, including marine genetic resources, as well as to issues related to their access and benefit sharing. She has lectured in a number of meetings and conferences on marine biodiversity beyond national jurisdiction and published a number of science and policy articles. Snjólaug Árnadóttir has a PhD degree in Public International Law from the University of Edinburgh and wrote her thesis on the effects that changing coastal geography may have on maritime limits and maritime boundaries. She has a Master’s Degree and a Bachelor’s Degree in Law from Reykjavik University and diplomas from the IFLOS Summer Academy and the Rhodes Academy of Oceans Law and Policy. She is currently a Postdoctoral Fellow at Reykjavik University and Lecturer at Reykjavik University and the University of Iceland. She is a member of the ILA Committee on International Law and Sea Level Rise. David Balton has been a Senior Fellow with the Woodrow Wilson Center since 2018. He previously served as Deputy Assistant Secretary for Oceans and Fisheries in the U.S. Department of State, attaining the rank of Ambassador in 2006. Ambassador Balton coordinated U.S. foreign policy concerning oceans and fisheries and oversaw U.S. participation in international organizations addressing these issues. He functioned as the lead U.S. negotiator on many international agreements and chaired numerous international meetings. His portfolio included managing U.S. foreign policy issues relating to the Arctic and Antarctica. During the U.S. Chairmanship of the Arctic Council (2015–2017), he served as Chair of the Senior Arctic Officials. He also chaired

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negotiations that produced the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. Richard Barnes holds a Chair in International Law at the University of Lincoln. Previously, he was Professor of Law at the University of Hull. He authored Property Rights and Natural Resources (Hart, 2009) and co-edited The United Nations Convention on the Law of the Sea: A Living Instrument (BIICL, 2016) and Law of the Sea: Progress and Prospects (Oxford, 2006). Professor Barnes is Current Legal Developments Editor of the International Journal of Marine and Coastal Law. He has advised a range of public and private bodies, including the WWF, the European Parliament, and the UK Department for Environment, Food and Rural Affairs, and appeared on numerous occasions before Parliamentary committees to provide expert evidence on fisheries law. Kevin A. Baumert is an attorney in the U.S. Department of State’s Office of the Legal Adviser, where he presently serves as Legal Counsel for the interagency U.S. Extended Continental Shelf Project, located in Boulder, Colorado. In this capacity, he advises the Project on determining the geographic limits of the United States’ continental shelf in a manner consistent with international law. He also serves as legal adviser for U.S. maritime boundary negotiations. Previously, he served as the Department of State’s law of the sea attorney in Washington D.C., where he provided legal advice on a wide range of issues, including freedom of navigation, maritime interdiction, and dispute settlement. He has led numerous U.S. delegations in treaty negotiations involving maritime boundaries and maritime law enforcement matters. He represented the Department of State on the U.S. Government’s Maritime Operational Threat Response (MOTR) Advisory Group and he also chaired the United States Baseline Committee. Vasco Becker-Weinberg Dr. iur. (Hamburg), LLM (Lisbon), is Professor at NOVA School of Law, Lisbon, and co-coordinator of its Master’s Programme on Law and Economics of the Sea. He teaches public international law and the law of the sea. He is Researcher at CEDIS-Centro de Investigação & Desenvolvimento sobre Direito e Sociedade, where he coordinates multidisciplinary research projects. Professor Becker-Weinberg has written and published extensively on the law of the sea. His publications include Joint Development of Hydrocarbon Deposits in the Law of the Sea (Springer, 2014). He has been on several delegations to

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international fora and advises on law of the sea matters. He was previously Legal Adviser to the Portuguese Secretary of the Sea and a full-time scholar at the International Max Planck Research School for Maritime Affairs at the University of Hamburg. Leonardo Bernard is Associate Research Fellow with the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong, Australia. He has researched and written extensively on law of the sea issues, such as the continental shelf; maritime boundary disputes; rock or island; and on the application of historic rights under international law. He has been invited to present his research on the South China Sea and maritime boundary disputes in Singapore, USA, Australia, Japan, Malaysia, Indonesia, South Korea and China. He was also involved in the editing of the books “Beyond Territorial Disputes in the South China Sea: Legal Framework for the Joint Development of Hydrocarbon Resources” and “The South China Sea Disputes and the Law of the Sea”, both of which are part of the CIL International Law book series. Signe Veierud Busch is Associate Professor in Law at UiT The Arctic University of Norway, Tromsø. Her primary research interests are the law of the sea and environmental law, and she has published widely on dispute settlement, maritime limits and climate change. She authored Establishing Continental Shelf Limits beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Brill Nijhoff, 2016) and co-edited Maritime Boundary Delimitation: The Case Law: Is it Consistent and Predictable? (Cambridge University Press, 2018). Drawing on her research experience and results, she is currently leading a research project at the Norwegian Centre for the Law of the Sea (NCLOS) rethinking the spatial architecture of the law of the sea and ocean governance. Veronica Frank is Political Advisor at Greenpeace International working on ocean governance and law of the sea related issues. She is part of Greenpeace’s delegation at the intergovernmental conference on marine biodiversity of areas beyond national jurisdiction, a process that she has followed from its inception, and coordinates Greenpeace’s work at the International Maritime Organization. Previously, she worked at the European Maritime Safety Agency in Lisbon. She holds a PhD from the Netherlands Institute for the Law of the Sea (NILOS), focusing on the implementation of Part XII of the Law of the Sea Convention,

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an LLM in International and European Environmental Law from the University of Amsterdam and has authored several publications on issues related to ocean conservation, the law of the sea, and shipping. Helga Gudmundsdottir is Associate at the Brussels-based law firm, Van Bael & Bellis. Prior to joining Van Bael & Bellis, she was a Fulbright, Harvard Frank Boas, Leif Eiriksson Fellowship scholar at Harvard University and recipient of several scholarships. She received a BA in Law from the University of Iceland in 2013, an MA degree in International Law and the Settlement of Disputes from the UN mandated University for Peace in 2014, a Mag.jur. degree from the University of Iceland in 2015, a Rhodes Oceans Scholar Diploma from the Rhodes Academy of Oceans Law and Policy in 2015 and an LL.M. degree from Harvard Law School in 2017. All her master theses were in the field of the law of the sea and her thesis at Harvard Law School was entitled “Hot Spot for Hot Debate: Iceland’s Submission to the Commission on the Limits of the Continental Shelf”. Matthias Haeckel is Senior Scientist for marine biogeochemistry at the GEOMAR Helmholtz Centre for Ocean Research Kiel. He studied Chemistry at the ChristianAlbrechts-University in Kiel, Germany, and defended his doctoral thesis on early diagenetic processes in abyssal polymetallic nodule habitats. In his research, he combines field work with numerical modelling and high-pressure experiments to entangle and quantify natural processes and how they are altered by anthropogenic uses of the ocean, such as methane hydrate exploitation, subseabed CO2 storage, mining of marine minerals, and pollution with microplastic. Currently, he coordinates the large European project MiningImpact on the environmental risks and impacts of deep seabed mining. Tomas Heidar has been Judge of the International Tribunal for the Law of the Sea (ITLOS) since 2014 and currently serves as the President of its Chamber for Fisheries Disputes (2017–2020). He is also a Member of the Special Chamber in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. From 1996–2014, he served as Legal Adviser of the Ministry for Foreign Affairs of Iceland, attaining the rank of Ambassador. Judge Heidar is also Director of the Law of the Sea Institute of Iceland and Co-director of the Rhodes Academy of Oceans Law and Policy. He lectures at the University of Iceland and many other universities and institutions around the world and has taught law of the sea at the UN Regional Course in International Law in Ethiopia. He has published a number of articles and

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books in the field of the law of the sea and co-edited, for example, Legal and Scientific Aspects of Continental Shelf Limits (Martinus Nijhoff, 2004), Law, Science and Ocean Management (Martinus Nijhoff, 2007) and Changes in the Arctic Environment and the Law of the Sea (Martinus Nijhoff, 2010). Christina Hioureas is Counsel in International Litigation and Arbitration at Foley Hoag LLP, New York, and Chair of the firm’s United Nations Practice Group, a group that she co-founded. She acts as counsel and arbitrator in international commercial arbitrations and as counsel in investment arbitration disputes. She also represents and advises States in public international law disputes and on matters before the United Nations. She serves on the Council on Foreign Relations, the Executive Council of the American Society of International Law, and the ILA Committee on International Law and Sea Level Rise. She is on the Teaching Staff of the University of Piraeus in the Energy Strategy Programme. Felix Janssen is Senior Researcher in the Joint Research Group for Deep-Sea Ecology and Technology of the Max Planck Institute for Marine Microbiology in Bremen and the Alfred Wegener Institute Helmholtz Centre for Polar and Marine Research in Bremerhaven, Germany. He studied Biological Oceanography at Kiel University and received his doctoral degree at Bremen University. He investigates microbially-driven biogeochemical processes in marine sediments with emphasis on organic matter remineralization and oxygen fluxes to understand anthropogenic or global change-driven impacts on microbial functions. He coleads work packages on monitoring technology and biogeochemistry in several European deep seabed mining related projects (MiningImpact, MIDAS). Sabine Kasten is Professor for Sediment Diagenesis at the University of Bremen and Head of the Marine Geochemistry Section at the Alfred Wegener Institute Helmholtz Centre for Polar and Marine Research (AWI) in Bremerhaven, Germany. She holds a doctoral degree from Bremen University. Her research focuses on understanding and determining how changes and disturbances in sedimentary and oceanographic conditions over geological times affect post-depositional and biogeochemical processes and element fluxes in the seabed. The aim is to improve the quality of paleo-environmental reconstructions from sedimentary archives and to decipher novel biogeochemical processes and their role in the global carbon cycle. She is Co-speaker of AWI for TOPIC 4 “Coastal Transition Zones under Natural and Human Pressure” in the new Helmholtz programme “Changing Earth – Sustaining our Future”.

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Bjørn Kunoy has been Legal Adviser of the Ministry of Foreign Affairs of the Faroe Islands since 2007. He advises on the law of treaties, issues related to the law of the sea and general international law. He has served as Agent and Counsel in LOSC Annex VII arbitral tribunal proceedings and has also chaired proceedings with the Commission on the Limits of the Continental Shelf. He has also acted as Counsel for third countries in the law of the sea, including maritime delimitation disputes and finalization of outer continental shelf claims. He is Chief Organizer of the Summer Academy on the Continental Shelf (SACS). In 2019, he was appointed Adjunct Professor of International Law at the University of the Faroe Islands. He has published extensively. Konrad Jan Marciniak is currently Director of the Legal and Treaty Department of the Ministry of Foreign Affairs of Poland. He advises the Government of Poland in particular on the law of treaties, issues related to the law of the sea, polar affairs and environmental law. He participates in the UN negotiations on an agreement on marine biodiversity of areas beyond national jurisdiction, and represents as well Poland in the work of the European Union Working Parties on the Law of the Sea (COMAR) and on Public International Law (COJUR). He also represents Poland at the annual Antarctic Treaty Consultative Meetings (ATCM). He defended his PhD thesis on “Marine Genetic Resources in the Law of the Sea” in 2014 and has authored a number of articles on the law of the sea and other public international law and EU law topics. Larry Mayer is Professor and Director of the School of Marine Science and Ocean Engineering and the Center for Coastal and Ocean Mapping at the University of New Hampshire. He has participated in more than 95 cruises during the last 35 years, including twelve expeditions in the ice-covered regions of the Arctic. In 2016, Professor Mayer was appointed by President Obama to the Arctic Research Commission. He has been elected to the Hydrographic Society of America Hall of Fame, the National Academy of Engineering and the Royal Swedish Academy of Sciences. In 2020, he became the first recipient of the Walter Munk Medal from the Oceanography Society. Professor Mayer’s research deals with mapping and characterization of the seafloor, development of advanced visualization tools and applications of mapping to law of the sea issues, particularly in the Arctic.

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Fernanda Millicay is Minister First Class at the Foreign Service of Argentina and has represented her country at numerous meetings in the field of the law of the sea. She began her career at the Legal Office of the Ministry of Foreign Affairs in 1997. In 2003, she was awarded the Hamilton Shirley Amerasinghe Memorial Fellowship on the Law of the Sea. From 2008–2015, she was Legal Adviser at the Permanent Mission of Argentina to the United Nations. As such, she was responsible for ocean affairs and the law of the sea, including Argentina’s Chairmainship of the G77 and China in 2011. She was Co-Chair of the UN Regular Process for the Marine Environment 2013–2015. From 2016–2019, she was Director of Argentina’s National Antarctic Programme. Currently she leads the Political Section of the Embassy of Argentina to the United Kingdom. She is Lecturer at the Rhodes Academy of Oceans Law and Policy. Among her publications is “A Legal Regime for the Biodiversity of the Area”, in Myron H. Nordquist et al. (eds), Law, Science and Ocean Management (Martinus Nijhoff, 2007). Erik J. Molenaar has been with the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University since 1994 and currently holds the position of Deputy Director. In 2006 he was also employed by UiT The Arctic University of Norway, Tromsø, where he is at present Professor with the Norwegian Centre for the Law of the Sea (NCLOS). His research focuses in particular on international fisheries law and the international law relating to the Arctic and the Antarctic. He has published widely as author and editor, has participated in various diplomatic conferences and other intergovernmental meetings, including annual meetings of several regional fisheries management organizations, on various delegations, and has been involved in international litigation as well as a large number of consultancies. Natalie Y. Morris-Sharma is an international lawyer with the Singapore Government. She has served in various roles including as Director of the International Legal Division in the Ministry of Law, Legal Adviser to Singapore’s Permanent Mission to the United Nations, and Deputy Senior State Counsel in the International Law Department of the Attorney-General’s Chambers. She has participated in several bilateral and multilateral negotiations, including on matters pertaining to oceans and the law of the sea and trade and investment. She has been closely involved in the negotiations of an agreement on marine biodiversity of areas beyond national jurisdiction. She has chaired a number of meetings at the

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United Nations, including facilitating the UNGA resolution on oceans and the law of the sea, and at UNCITRAL. She serves as a Counsellor of the American Society of International Law. Sean D. Murphy is the Manatt/Ahn Professor of International Law at George Washington University and is a Member of the U.N. International Law Commission. From 1987 to 1998, he worked in the U.S. Department of State Office of the Legal Adviser, inter alia on matters relating to the law of the sea. Since entering academia, Professor Murphy has served as counsel, arbitrator or ad hoc judge in inter-State and investor-State cases, including at the International Tribunal for the Law of the Sea. He was President of the American Society of International Law 2018–2020 and served for ten years on the Board of Editors of the American Journal of International Law. He has taught law of the sea at the UN Regional Courses in International Law in Chile, Ethiopia and Thailand. He has published widely, including his 2016 Hague Academy lectures on International Law relating to Islands. Jin-Hyun Paik has been Judge of the International Tribunal for the Law of the Sea (ITLOS) since 2009 and currently serves as its President (2017–2020). He is also President of the Special Chamber in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. He is arbitrator in the “Enrica Lexie” Incident (Italy v. India) case and President of the Arbitral Tribunal in the Dispute concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. Russian Federation). Judge Paik is Professor of International Law at Seoul National University (on leave) in South Korea and was Dean of its Graduate School of International Studies. Over the past three decades he has taught international law and the law of the sea in various universities and institutions around the world. He is Associate Member of the Institut de Droit International and served as President of the Asian Society of International Law (2015–2017). He has written and edited over 150 articles and several books in the fields of international law and relations, law of the sea, and international dispute settlement. Walter R. Roest is currently Senior Geophysicist at Ifremer, the French Institute for Exploration of the Sea. He holds a PhD degree in Marine Geophysics from the University of Utrecht, the Netherlands. His research focuses mainly on the tectonic

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evolution of passive and active continental margins and their sedimentary basins. He joined the Geophysics Division of the Geological Survey of Canada as a research scientist in 1990 and held several senior management positions from 1996–2002. In 2003, he joined Ifremer and became Director of its Marine Geosciences Department. From 2004–2013, he was also the Scientific and Technical Leader of the French LOSC Continental Shelf Programme, Extraplac, and led many research cruises offshore French overseas territories. From 2012– 2017, he served as Member and Vice-Chair of the Commission on the Limits of the Continental Shelf and chaired several subcommissions. He has published over 80 articles in international journals. Clive Schofield is Head of Research at the WMU-Sasakawa Global Ocean Institute, World Maritime University, Malmö, Sweden, and is also Professor with the Australian Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia. He holds a PhD degree in Geography from the University of Durham, United Kingdom, and an LLM degree in international law from the University of British Columbia, Canada. His research interests relate to international maritime boundary delimitation, marine jurisdictional issues and technical aspects of the law of the sea on which he has published over 200 scholarly publications. He is a member of the ILA Committee on International Law and Sea Level Rise and serves as an IHO-nominated Observer on the Advisory Board on the Law of the Sea (ABLOS). He has also been actively involved in the peaceful settlement of boundary and territory disputes by providing independent expert advice to governments engaged in boundary negotiations and in cases before international judicial bodies. Alfred H.A. Soons is Emeritus Professor at Utrecht University School of Law. He was Professor of Public International Law and Director of the Netherlands Institute for the Law of the Sea (NILOS) at Utrecht University 1987–2014. Earlier he served as civil servant in various legal and policy positions at the Netherlands Ministry of Transport, Water Management and Public Works. He was Founding Co-director of the Rhodes Academy of Oceans Law and Policy. He has consulted on international law issues with several governments and international organizations. As counsel and arbitrator he has been involved in international litigation at the International Court of Justice, the International Tribunal for the Law of the Sea and arbitral tribunals. He is a Member of the Institut de Droit International and of the ILA Committee on International Law and Sea Level Rise.

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Alejandra Torres Camprubí (PhD, Universidad Autónoma de Madrid; LLM, University College London) is an international dispute resolution attorney in the International Litigation and Arbitration Department of Foley Hoag AARPI, Paris. She focuses her practice on representing sovereign States and State-owned entities in inter-State disputes before the ICJ and ITLOS, as well as in arbitration proceedings administered by the PCA and ICSID. She acted as legal counsel in the United Nations climate change negotiations and has recently been a post-doctoral research fellow at the Fridtjof Nansen Institute in Oslo, as part of an international and interdisciplinary project on the legal consequences of the Anthropocene for International Law. She is a member of the ILA Committee on International Law and Sea Level Rise. Her publications include Statehood under Water: Challenges of Sea-Level Rise to the Continuity of Pacific Island States (Brill, 2016). Annemiek Vink is Research Counsellor at the Federal Institute for Geosciences and Natural Resources in Hannover, Germany. She studied Geo-Biology at Utrecht University in the Netherlands and holds a doctoral degree in Marine Micropaleontology from Bremen University in Germany. Her work focuses strongly on the exploration and potential future exploitation of deep seabed mineral resources, with particular emphasis on manganese nodules. She currently leads the manganese nodule exploration programme for the German contract area in the Clarion-Clipperton Zone in the Pacific. In addition to the assessment of resource potential, the programme focuses strongly on the collection of adequate environmental baseline data as well as the analysis of potential impacts of Mn-nodule exploitation on faunal communities.

Introduction

How Does the Law of the Sea Adapt to New Knowledge and Changing Circumstances? Tomas Heidar The adoption of the United Nations Convention on the Law of the Sea in 1982 is one of the biggest achievements in the history of the United Nations and it has contributed enormously to international peace and security. The Convention, which is the first and only comprehensive treaty on the law of the sea, provides a jurisdictional regime prescribing the rights and obligations of States in different maritime zones. It also contains a substantive legal framework for all uses of the oceans and a compulsory mechanism for settlement of disputes. The Law of the Sea Convention (LOS Convention or Convention) has been referred to as “the Constitution for the Oceans”. Its substantive regimes, which apply to various areas, such as fisheries, navigation, protection of the marine environment, and marine scientific research, are complemented by a number of specialized agreements and institutional arrangements at the global and regional level, some of which predate the Convention. Together, the LOS Convention and related agreements provide the legal framework for the oceans. The LOS Convention is a carefully balanced “package deal”, in which the demands of some States or groups of States were taken into account in return for the inclusion of other provisions favouring other States or groups of States. Obviously, it is very important to preserve the integrity of the Convention by maintaining that “package deal” intact. This could be compromised by selective amendments. At the different commemorations of anniversaries of the LOS Convention, it has repeatedly been recognized that it was negotiated with foresight and has stood the test of time. However, it was emphasized already at the Third United Nations Conference on the Law of the Sea, which was convened to negotiate and adopt the Convention, that scientific and technological advances and changes could occur and new economic, political and juridical developments might take place, all of which could affect the subject matter of parts of the Convention. Accordingly, the provisions of the Convention should be adapted to such changes. Like any other living instrument, the Convention must adapt to changing circumstances.

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This publication focuses on new knowledge and changing circumstances in the law of the sea, the challenges they pose to the LOS Convention framework and the different ways in which States and other actors are trying to cope with those challenges. The LOS Convention provides a number of formal amendment procedures, which are either generally applicable or deal with a specific subject matter. One limitation on amendments to the Convention is contained in article 311(6), which provides that “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.” Articles 312 and 313 of the Convention establish two procedures for its amendment, which are generally applicable, unless the Convention explicitly provides for a different procedure. Article 312 envisages the convening of a diplomatic conference to consider proposed amendments, whereas article 313 establishes a simplified procedure, which does not entail the convening of such a conference. Article 312 provides that, after the expiry of a period of 10 years from the date of entry into force of the Convention, a State Party may propose specific amendments to the Convention and request the convening of a conference to consider them. The Secretary-General of the United Nations shall circulate such communication to all States Parties. If, within 12 months from the date of the circulation of the written communication, not less than one half of the States Parties reply favourably to the request, the Secretary-General shall convene the conference. The decision-making procedure applicable at the amendment conference shall be the same as that applicable at the Third United Nations Conference on the Law of the Sea unless otherwise decided by the conference. Article 313 envisages the possibility of a State Party proposing an amendment to be adopted by a simplified procedure without convening a conference. Such a proposal for an amendment shall be considered rejected if, within a period of 12 months from the date of circulation of the written communication containing the proposed amendment, any State Party objects to the proposed amendment or to the proposal for its adoption by the simplified procedure. Otherwise, the proposed amendment shall be considered adopted. Article 314 of the Convention provides a specific procedure regarding amendments to the provisions of the Convention relating exclusively to activities in the international seabed area (the Area). In this case, a State Party to the Convention is required to address its written communication proposing the amendment to the Secretary-General of the International Seabed

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Authority, and not to the Secretary-General of the United Nations as is the case for articles 312 and 313. An amendment proposed under article 314 shall be subject to approval by the Council and the Assembly of the Authority. The proposed amendment as approved by the Council and the Assembly shall be considered adopted. The entry into force of amendments is regulated by article 316 of the Con­ vention. Generally, amendments will enter into force for the States Parties ratifying or acceding to them on the thirtieth day following the deposit of instruments of ratification or accession by two-thirds of the States Parties to the Convention. As of 1 June 2019, with 168 States Parties, this number amounts to 112 States Parties. Meeting this requirement is likely to be a challenge in the case of most amendments. Amendments relating exclusively to activities in the Area and amendments to the Statute of the International Tribunal for the Law of the Sea, Annex VI to the Convention (article 41), enter into force for all States Parties one year after the deposit of instruments of ratification or accession by three-fourths of the States Parties. Currently, this number amounts to 126 States Parties. In the context of formal amendments to the Convention, article 311(3) and (4) are also relevant. According to article 311(3), two or more States Parties may conclude agreements modifying or suspending the operation of provisions of the Convention, applicable solely to the relations between them. Such agreements are subjected to the following conditions: a) they shall not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the Convention; b) they shall not affect the application of the basic principles embodied in the Convention; and c) the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under the Convention. Article 311(4) requires States Parties intending to conclude an agreement referred to in paragraph 3 to notify the other States Parties of their intention to conclude the agreement and of the modification or suspension for which it provides. Apparently, no notifications have been made to date under article 311(4). The Convention has never been amended pursuant to the aforementioned formal amendment procedures. The reasons are probably twofold: first, it may be difficult to achieve expeditious adoption and, in particular, entry into force of formal amendments to the Convention, given the stringent requirements therefor; and, second, States Parties are hesitant to propose amendments as it may open the door for other amendments and undermine the “package deal”. On the other hand, two “implementing agreements”, the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention

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on the Law of the Sea of 10 December 1982 (Part XI Agreement) 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 (UN Fish Stocks Agreement), have de facto modified or amended the LOS Convention or the law of the sea framework. The Part XI Agreement was negotiated prior to the entry into force of the LOS Convention in order to take into account political and economic changes since its adoption, including market-oriented approaches. The Agreement addressed several difficulties, which many industrialized countries had raised with respect to the seabed mining provisions contained in Part XI of the Convention, and thereby paved the way for universal participation in the Convention regime. The Part XI Agreement provides quite innovative procedures that serve to ensure an integral relationship between the Agreement and the Convention. According to article 2(1), the provisions of the Agreement and Part XI of the Convention shall be “interpreted and applied together as a single instrument”, and in the event of any inconsistency between the two instruments, the provisions of the Agreement shall prevail. Article 4(1) of the Agreement provides that, after its adoption, “any instrument of ratification or formal confirmation of or accession to the Convention shall also represent consent to be bound by this Agreement.” Article 4(2) makes clear that no State may establish its consent to be bound by the Agreement “unless it has previously established or establishes at the same time its consent to be bound by the Convention.” While its title refers perhaps euphemistically to “implementation” of the provisions of Part XI, the Part XI Agreement goes well beyond implementation and effectively amends several provisions of Part XI of the Convention. In many cases, the Agreement states that provisions of Part XI “shall not apply” and they are substituted by specific provisions of the Agreement. The substantive provisions of the Part XI Agreement, included in its Annex, relate to the following areas: costs to States Parties and institutional arrangements; the Enterprise; decision-making; the Review Conference; transfer of technology; production policy; economic assistance; financial terms of contracts; and the establishment of the Finance Committee. The UN Fish Stocks Agreement was negotiated to strengthen the relevant provisions of the LOS Convention, i.e. articles 63, 64 and 116–119, which were considered to be too general and vague, and react to serious problems of overfishing on the high seas in the 1980s and 1990s. The Agreement’s objective, according to article 2, is to “ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention.”

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Differently from the Part XI Agreement, the UN Fish Stocks Agreement is a “stand alone” agreement and a State may become a party to it without becoming a party to the LOS Convention, and vice versa. However, this does not change the fact that the Agreement and the Convention are closely related. Article 4 of the Agreement provides that nothing in the Agreement “shall prejudice the rights, jurisdiction and duties of States under the Convention” and that the Agreement “shall be interpreted and applied in the context of and in a manner consistent with the Convention.” Although the UN Fish Stocks Agreement does not amend the LOS Conven­ tion per se, it strengthens considerably the LOS Convention framework for high seas fisheries and develops international law in this area significantly. The Agreement takes into account developments in international environmental law and incorporates many novelties, such as the precautionary approach (article 6), the ecosystem approach (article 5(d)), the duty to protect marine biodiversity (article 5(g)) and the compatibility of conservation and management measures within and beyond areas of national jurisdiction (article 7). Article 8 of the Agreement strengthens the role of regional fisheries management organizations (RFMOs) and limits the freedom to fish on the high seas in paragraph 4 by providing that only those States which are members of the relevant RFMO, or which agree to apply the conservation and management measures established by such RFMO, shall have access to the fishery resources to which those measures apply. Article 17 addresses the so-called “free rider problem” of non-members of RFMOs. The LOS Convention does not include any provisions on flag State obligations or port State jurisdiction with respect to fisheries. The UN Fish Stocks Agreement fills these gaps in articles 18 and 23. Furthermore, articles 21 and 22 establish an important development of international law by providing an exception to the exclusive flag State jurisdiction on the high seas in case of “serious violations”. These provisions go clearly beyond what is provided in the LOS Convention. Currently, a third implementing agreement under the LOS Convention is being negotiated at an intergovernmental conference at the United Nations, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction – the BBNJ agreement. The process, which started with the establishment by the UN General Assembly of a working group in 2004, has a broad geographical and substantive scope but focuses on two topics in particular: on the one hand, marine genetic resources (MGRs) (which were not commonly known at the time of the Third Conference to exist on the deep seabed), including the sharing of benefits; and, on the other hand, conservation measures, with a special emphasis on area-based management tools, in particular marine protected areas (MPAs), and environmental impact

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assessments (EIAs). This publication addresses the former topic in Part II and the latter topic in Part III. It is probable that the BBNJ agreement will go beyond mere implementation, like its two predecessors. However, it is important to note that the decision of the UN General Assembly in resolution 72/249 to mandate a conference to negotiate the agreement was explicitly predicated upon the need to ensure a) that “the work and results of the conference should be fully consistent with the provisions of the [LOS Convention]” and b) that “the process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.” Clearly, the latter reference includes, inter alia, the two existing implementing agreements, the International Seabed Authority, the International Maritime Organization, the Food and Agriculture Organization of the United Nations, regional fisheries management organizations and regional environmental organizations. In addition, the LOS Convention includes several other mechanisms through which its adaptation may take place. It provides, for example, for the obligation of States, acting through “competent international organizations”, to establish relevant international rules and standards, or to work through “appropriate international organizations”. In many cases, the rules and standards adopted by these organizations are incorporated by reference into the LOS Convention regime (“rule of reference”). The two most relevant international organizations in this respect are the International Maritime Organization (IMO) and the Food and Agricultural Organization of the United Nations (FAO), both specialized agencies of the United Nations predating the LOS Convention. The IMO is the global standardsetting authority for the safety, security and environmental performance of international shipping and therefore addresses a wide variety of issues covered by the LOS Convention, in particular those falling under Parts VII (High Seas) and XII (Protection and Preservation of the Marine Environment). The IMO has adopted a number of agreements and “soft law” instruments, which complement the LOS Convention and in many cases adapt the law of the sea framework to new circumstances. One recent example is the 2014 International Code for Ships Operating in Polar Waters (Polar Code). The Polar Code, which is mandatory under both the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL), contains regulations for shipping in the polar regions, in particular relating to ice navigation and ship design. Its negotiation was prompted, in particular, by the Central Arctic Ocean becoming open to shipping as a result of climate change, ocean warming and ice melting.

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The FAO is the competent international organization in the area of fisheries. It has adopted several agreements and soft law instruments in this field, which complement the fisheries provisions of the LOS Convention, such as the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (FAO Compliance Agreement), the 1995 FAO Code of Conduct for Responsible Fisheries, the 2001 International Plan of Action on Illegal, Unreported and Unregulated Fishing, the 2008 International Guidelines for the Management of Deep-sea Fisheries in the High Seas and the 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures Agreement). The last-mentioned instrument is the first legally binding international agreement to specifically target IUU fishing. Its objective is to prevent, deter and eliminate IUU fishing by preventing vessels engaged in that activity from using ports and landing their catches. Regional organizations also play a role in the implementation of the LOS Convention and related agreements, in particular regional fisheries management organizations (RFMOs) and regional environmental organizations (such as OSPAR), some of which predate the Convention. The UN General Assembly, which undertakes annually a global review of activities in the area of oceans and the law of the sea, is also relevant in adapting the law of the sea framework to new developments. In particular, its annual resolutions on oceans and the law of the sea and on fisheries can play a role in this respect. Good examples are the fisheries resolutions 61/105 (2006), 64/72 (2009) and 66/68 (2011), which called, inter alia, for action by States and RFMOs to protect vulnerable marine ecosystems (VMEs), such as cold water corals, seamounts and hydrothermal vents, from bottom fishing and ensure the long-term sustainability of deep-sea fish stocks. The relevant paragraphs of those fisheries resolutions, which were detailed and the result of lengthy negotiations, were complemented by the aforementioned FAO International Guidelines. The LOS Convention provides in article 319 for the convening of Meetings of States Parties to the Convention (SPLOS) and it created three international institutions, the International Seabed Authority (ISA), the International Tribunal for the Law of the Sea (ITLOS) and the Commission on the Limits of the Continental Shelf (CLCS). The Convention entrusts a regulatory role to the institutions in their respective areas. The Convention only assigns certain financial and administrative tasks to SPLOS explicitly but this has not prevented substantive discussions from taking place at this annual meeting. SPLOS has also taken decisions that are

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de facto amendments to the Convention. In 1995 and 1996, SPLOS decided to amend certain procedural rules in Annexes II and VI to the Convention in order to postpone the election of the members of ITLOS and CLCS. In 2001, SPLOS adopted a “Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea”. Article 4 of Annex II provides that a coastal State shall make a submission within 10 years of the entry into force of the Convention for that State. For a large group of States, this implied that they would have had to make their submission no later than 16 November 2004. In light of the challenges that developing countries, in particular, faced in preparing a submission, SPLOS decided that for States Parties, for which the Convention had entered into force before 13 May 1999, the ten-year period should be taken to have commenced on that date. Consequently, the first deadline was 13 May 2009. The rationale for choosing the date 13 May 1999 was that it was on that date the CLCS adopted its Scientific and Technical Guidelines, which serve to assist coastal States in preparing their submissions. In 2008, SPLOS further decided that the time period referred to in article 4 of Annex II and the aforementioned decision from 2001 “may be satisfied by submitting to the Secretary-General preliminary information indicative of the outer limits of the continental shelf beyond 200 nautical miles and a description of the status of preparation and intended date of making a submission in accordance with the requirements of article 76 of the Convention”. The reason why the form of decisions by SPLOS was preferred in those instances to the formal amendment procedures of the Convention mentioned earlier is probably that the latter would have been too burdensome and time-consuming. The ISA has been entrusted in Part XI of the Convention with, inter alia, adopting rules, regulations and procedures relating to the exploration and exploitation of mineral resources in the Area. The ISA has made significant progress in the regulation of prospecting and exploration of various categories of deep seabed minerals and is currently developing regulations on the exploitation phase. An important part thereof is measures to ensure effective protection of the marine environment from harmful effects which may arise from activities in the Area (article 145 of the Convention). This is the focus of Part VI of this publication. ITLOS was given the task in article 16 of its Statute, which forms Annex VI to the Convention, to adopt rules for carrying out its functions. The Rules of ITLOS were adopted in 1997 and have been amended a few times. They include, for example, article 138(1) which provides that “[t]he Tribunal may give an

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advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.” This may be seen as a useful clarification as the advisory jurisdiction of ITLOS had not been mentioned explicitly in the Statute. However, it should be noted that in its Advisory Opinion on the Request of the Sub-regional Fisheries Commission of 2015, ITLOS confirmed that the actual basis for its advisory jurisdiction is article 21 of the Statute which reads as follows: “The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” (Emphasis added) The Tribunal found that article 21 of its Statute and the “other agreement” conferring jurisdiction on the Tribunal are interconnected and constitute the substantive legal basis of its advisory jurisdiction. Although the Convention does not empower the CLCS explicitly to adopt rules of procedure or other instruments, for example in Annex II which is devoted to the CLCS, such competence may be implied as being necessary for the carrying out of its functions. The CLCS has adopted two important instruments. First, in 1999, it adopted the Scientific and Technical Guidelines, referred to above, which explain how the CLCS understands terms and provisions of article 76 of the Convention. Thus, the Guidelines represent an interpretation of the Convention. Second, the CLCS adopted its Rules of Procedure and the latest version is from 2008. Among the issues dealt with in the Rules of Procedure are submissions in case of land or maritime disputes (rule 46 and Annex I). The approach the CLCS has taken in the Rules of Procedure is that it will only consider and qualify a submission in an area involving a dispute with the prior consent of all the States that are parties to such a dispute. As addressed in Chapter 11 of this publication, it has been questioned whether the Rules of Procedure of the CLCS are compatible with article 9 of Annex II to the Convention, which provides that “[t]he actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts”, and the related article 76(10) of the Convention. Other agreements between States, for example bilateral and regional agreements, provide an important part of the law of the sea framework. A recent example is the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, which was signed by ten parties in October 2018. The high seas area in the Central Arctic Ocean, which is the size of the Mediterranean Sea, has until recently been covered with sea ice. Consequently, no fisheries have taken place and there is very limited knowledge on fish stocks and

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ecosystems in the area. However, with the impacts of climate change, ocean warming and ice melting, it was considered that the area might open up for fisheries in the near future. The Central Arctic Ocean Fisheries Agreement, which is a textbook example of the implementation of the UN Fish Stocks Agreement and, in particular, the precautionary approach, is intended to avert a serious problem before it arises. This forward-looking agreement is the subject of Part VIII of this publication. State practice and development of customary international law can play an important role in adapting the law of the sea to changing circumstances. In some cases, such an approach may be preferred to that of formal amendment procedures or the negotiation of a new instrument. The legal effects of sea level rise, due to climate change, on baselines, outer limits of maritime zones and maritime boundaries, including questions regarding the disappearance of States, all of which are addressed in Part VII of this publication, may potentially represent such an issue. This important issue has been the subject of considerable debate in the international arena, the International Law Association has adopted recommendations on the issue and the United Nations International Law Commission now has it on its agenda. Last, but not least, international courts and tribunals may clarify and develop the law of the sea framework. The main task of ITLOS, the International Court of Justice and arbitral tribunals under the LOS Convention is to settle disputes concerning the interpretation or application of the Convention. They do so by interpreting and applying the Convention, related agreements and other rules of international law. In some cases, the courts and tribunals have the chance to clarify and develop the law of the sea, which not only benefits the parties to the relevant dispute but the international community as a whole. This applies, in particular, to provisions that are vague or ambiguous or include undefined terms, which is sometimes the result of difficult compromises between groups of States with different views and interests. In such cases, it is often left to courts and tribunals to clarify the provisions and give them content. Articles 74(1) and 83(1) of the Convention, which concern the delimitation of the exclusive economic zone and continental shelf between States with opposite or adjacent coasts and have been clarified and developed through rich jurisprudence, represent a good example. Part V of this publication addresses another such example, the classification of seafloor highs. Article 76(6) of the Convention refers to two categories of seafloor highs: a) “submarine ridges”, where only the distance constraint of 350 nautical miles may be applied; and b) “submarine elevations that are natural components of the continental margin”, where also the depth constraint of 2,500 metre isobath plus 100 nautical miles may be applied. Neither of these

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terms is defined in the Convention, although this classification is obviously of great importance in determining the outer limits of the continental shelf beyond 200 nautical miles in accordance with article 76 of the Convention. These are not recognized scientific terms and the Scientific and Technical Guidelines of the CLCS do not provide clear definitions either. The practice of the CLCS in dealing with submissions from coastal States including seafloor highs has neither been uniform nor consistent with theories in leading literature on the subject. Potentially, international courts and tribunals can play a role in clarifying the meaning of these terms in the context of settling disputes between States concerning the interpretation or application of article 76(6). It should be highlighted that there has been considerable scientific advancement in this area, and the continental shelf, including seafloor highs, and its outer limits are now much better understood than when the LOS Convention was negotiated some forty years ago. The same applies to a number of other areas in ocean affairs. Judge Wolfrum noted in his Declaration in the Bangladesh/Myanmar Case before ITLOS that the law governing maritime boundary delimitation is not static but open to progressive development by the international courts and tribunals concerned and that they must “take into account new scientific findings.” As addressed in Part I of this publication, there is a growing legal, scientific and technical interplay in the law of the sea. In this context, it should be noted that article 289 of the Convention provides that, in any dispute involving scientific or technical matters, a court or tribunal may, at the request of a party or proprio motu, select in consultation with the parties two or more scientific or technical experts to sit with the court or tribunal but without the right to vote. In addition to the contentious jurisdiction of courts and tribunals under the LOS Convention, ITLOS and its Seabed Disputes Chamber have advisory jurisdiction. Advisory opinions serve to interpret and clarify the relevant provisions of the Convention, related agreements and other international law. The 2011 Advisory Opinion of the Seabed Disputes Chamber on responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area clarified the relevant provisions of Part XI and related international law. The 2015 Advisory Opinion of ITLOS on the Request of the Sub-regional Fisheries Commission concerned, in particular, IUU fishing in Western Africa. Although the LOS Convention does not contain any direct provisions on flag State obligations with respect to fisheries, ITLOS clarified and developed the due diligence obligation of the flag State to take appropriate measures in order to ensure that vessels flying its flag are not engaged in IUU fishing activities in the exclusive economic zones of other States. In his Separate Opinion, Judge Paik, referring to the “rule of reference”, took the view that post-LOS Convention

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legal developments, including the UN Fish Stocks Agreement, give content to the “generally accepted international regulations, procedures and practices”, referred to in article 94(5) of the Convention, which form the due diligence requirements of the flag State. It is clear from the above that, although the formal amendment procedures of the LOS Convention have never been applied, there are various other means by which the Convention, and the law of the sea framework more generally, have been adapted to the challenges of new knowledge and changing circumstances. While it is imperative to ensure stability and preserve the integrity of the Constitution for the Oceans and the “package deal” it represents, this publication demonstrates that it is indeed a living instrument which is capable of coping with new challenges. Acknowledgement When writing this Introduction, the author was, in particular, inspired by an article by David Freestone and Alex G. Oude Elferink, “Flexibility and Innovation in the Law of the Sea – Will the LOS Convention Amendment Procedures Ever be Used?”, in Alex G. Oude Elferink (ed.), Stability and Change in the Law of the Sea: the Role of the LOS Convention (Martinus Nijhoff, 2005), 169–221.

Part 1 Legal, Scientific and Technical Interplay in the Law of the Sea

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Chapter 1

Disputes Involving Scientific and Technical Matters and the International Tribunal for the Law of the Sea Jin-Hyun Paik 1

Influence of Science and Technology on the Law of the Sea

The theme of this publication, “New Knowledge and Changing Circumstances in the Law of the Sea”, gives an opportunity to reflect on one of the most important aspects of the international law of the sea, namely the interplay between law, science and technology. Historically, science and technology have been among the major drivers of the law of the sea. From the so-called cannon shot rule for the breadth of the territorial sea to the current negotiations on marine biological diversity of areas beyond national jurisdiction, science and technology have heavily influenced the development of the law of the sea. This trend has been further accelerated in the modern times, with the intensification of the use of the oceans through technological development and increased scientific knowledge about the state of the oceans. Thus Ambassador Jens Evensen of Norway, one of the key figures at the Third UN Conference on the Law of the Sea, observed after the conclusion of the Conference that “the basic problems with which the Law of the Sea Conference tried to cope were the impact of the revolutionary developments in science and technology, and the influence of these forces in international law”.1 Indeed, many provisions of the United Nations Convention on the Law of the Sea (Convention) make reference to scientific evidence, knowledge, information or methods, and incorporate scientific or technical terms. For example, articles 61 and 119 of the Convention refer to “the best scientific evidence available” to States concerned in taking measures for the conservation of living resources. Articles 165 and 204 refer to “recognized scientific methods” for monitoring the risks or effects of pollution of the marine environment. 1  Harry N. Scheiber, “Economic Uses of the Oceans and the Impacts on Marine Environments: Past Trends and Challenges Ahead”, in Davor Vidas and Peter Johan Schei (eds), The World Ocean in Globalization (Martinus Nijhoff Publishers, 2011), 69.

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Article 240 also refers to “appropriate scientific methods and means” in the conduct of marine scientific research. Likewise, article 76 of the Convention on the definition of the continental shelf incorporates such scientific terms as “shelf”, “slope”, “rise”, “margin”, “foot of the slope”, “sedimentary rocks”, “oceanic ridges”, “submarine ridges” and “submarine elevations”. One of the areas, in which science and law are most inextricably linked, is perhaps the protection and preservation of the marine environment. The very definition of “pollution of the marine environment” in article 1(1)(4) of the Convention2 is essentially a scientific one, derived from wording developed by the Joint Group of Experts on the Scientific Aspects of Marine Environmental Pollution (GESAMP).3 Also, the determination of “significant pollution” (article 220), “substantial pollution”, “serious harm to the marine environment”, or “significant and harmful changes to the marine environment” would not be possible without scientific fact-finding and assessment. If we move beyond the Convention to the two implementing agreements and numerous legal instruments adopted under the auspices of the Interna­ tional Maritime Organization (IMO), the Food and Agriculture Organization of the United Nations (FAO) or other relevant international organizations, we will see even more frequent references to, and incorporation of, science and technology. 2

Challenges Posed by Disputes with Scientific and Technical Components

In light of such substantial influence of science and technology on the modern law of the sea, in particular the Convention, it is no surprise that disputes concerning the interpretation or application of the Convention would frequently involve complex issues of science and technology. The same may be said about requests for an advisory opinion on a legal question arising from the Convention. Indeed, on several occasions in both contentious and advisory

2  “[T]he 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 as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.” 3  David Anderson, “Scientific Evidence in Cases Under Part XV of the LOSC”, in Myron H. Nordquist, Ronán Long, Tomas H. Heidar and John Norton Moore (eds), Law, Science and Ocean Management (Martinus Nijhoff Publishers, 2007), 508.

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proceedings before a court or tribunal under article 287 of the Convention, scientific and technical issues have been contested between the parties. When complex scientific issues are at the heart of the dispute, or constitute at the least a part of the dispute, it will pose a huge challenge to international courts and tribunals, whose members are hardly equipped with the adequate knowledge or background to cope with them. The question of how international courts and tribunals should respond to such challenge has been the subject of an intense debate over the past several years. The methods adopted by courts and tribunals in a few cases have been criticized not only by scholars and commentators but also by their members through individual opinions. For example, Shabtai Rosenne drew attention to the growing scepticism in intellectual and academic circles about “whether the settlement of disputes through courts composed exclusively by lawyers is the most appropriate form of a dispute settlement organ”.4 Perhaps the most poignant criticism in this regard would be the joint dissenting opinion of Judges Al-Khasawneh and Simma in the Pulp Mills on the River Uruguay case, in which they considered the way the International Court of Justice (ICJ) evaluated the scientific evidence “flawed methodologically”.5 At the same time, several ideas and proposals have been flagged to improve the methods of international courts and tribunals to deal with complex scientific evidence and arguments. Drafters of the Convention were well aware of this challenge. Thus the Convention includes two important innovations in its dispute settlement system, namely article 289 on experts and Annex VIII on special arbitration. I will make observations on article 289 of the Convention later. 3

Practice of ITLOS in Coping with Scientific and Technical Disputes

I would now like to take a brief look at how the International Tribunal for the Law of the Sea (the Tribunal) has coped with disputes involving complex scientific and technical evidence and arguments in its proceedings. I note that the Tribunal’s experience in this regard so far has been relatively limited. The Tribunal has yet to confront a case with a heavy dose of science and technology, but it has had its share of experiences.

4  Shabtai Rosenne, Essays on International Law and Practice (Martinus Nijhoff Publishers, 2007), 250. 5  Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, 109.

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When faced with scientific and technical disputes, the Tribunal has often, instead of tackling them, asked the parties to the dispute to negotiate and reach an agreement on the disputed matter or to cooperate with each other to determine appropriate measures to be taken. For example, in the Southern Bluefin Tuna Cases, the Tribunal ordered the parties to “resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna”.6 In the Land Reclamation Case, the Tribunal ordered the parties to cooperate and, for this purpose, enter into consultations in order to establish a group of independent experts with the mandate … to determine the effects of Singapore’s land reclamation and to propose measures to deal with any adverse effects of such land reclamation.7 Likewise, in the MOX Plant Case, the Tribunal ordered the parties to cooperate and, for this purpose, enter into consultations in order to … monitor risks or the effects of the operation of the MOX plant for the Irish Sea and to devise measures to prevent pollution of the marine environment which might result from the operation of the MOX plant.8 Another technique the Tribunal has often employed is to accept the scientific evidence upon which the parties to the dispute agreed or which was presented by one party and not contested by the other party. For example, the determination of the coastal State’s entitlement to the continental shelf beyond 200 nautical miles normally requires scientific and technical assessment in accordance with article 76 of the Convention, which the Tribunal is not competent to make. However, in the Bay of Bengal Case, the Tribunal was able to determine the existence of such entitlements of the parties because it found that there was no significant scientific uncertainty as to the existence of the continental margin in the area in question due to “uncontested scientific materials” before it. On the basis of such evidence, the Tribunal was able to determine the existence of entitlements of the parties to the continental shelf beyond 200 nautical miles.9 In this case, the Tribunal was also assisted by its finding that issues before it, despite the parties’ reliance on scientific arguments, are predominantly legal in their nature.10 6  S outhern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, ITLOS Reports 1999, 299. 7  Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Reports 2003, 27. 8  The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS Reports 2001, 111. 9  Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Reports 2012, paras. 439–449. 10  Id., paras. 412–413.

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On the other hand, it is interesting to note that the Tribunal has often used scientific evidence presented by the parties to find that there is “scientific uncertainty” and thus to prescribe precautionary measures.11 In the Southern Bluefin Tuna Cases, the Tribunal considered that “there is scientific uncertainty” and “there is no agreement among the parties as to whether the conservation measures taken so far have led to the improvement in the stock of southern bluefin tuna”.12 The Tribunal went on to state that, “although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock”.13 Similarly, in the Land Reclamation Case, the Tribunal considered that “it cannot be excluded that, in the particular circumstances of this case, the land reclamation works may have adverse effects on the marine environment”,14 and that, “given the possible implications of land reclamation on the marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal with them in the areas concerned”.15 4

Available Means under the Convention, the Statute and the Rules

By employing the aforementioned methods and techniques, the Tribunal has so far been able to cope with scientific and technical disputes without causing serious controversy. However, those methods and techniques may not always be available or adequate. The Tribunal may soon face a dispute in which the bypassing or circumvention of complex scientific questions is simply not possible. In such a situation, what should the Tribunal do? The traditional approach of the Tribunal in this regard has been to rely on the evidence presented by experts called by the parties to the dispute. In the practice of the Tribunal, parties have extensively made use of the possibility of calling witnesses and experts. According to the latest study by Rao and Gautier, 11  Tullio Treves, “Law and Science in the Jurisprudence of the International Tribunal for the Law of the Sea”, in Harry N. Scheiber, James Kraska and Moon-Sang Kwon (eds), Science, Technology and New Challenges to Ocean Law (Brill/Nijhoff, 2015), 20–21. 12  Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, ITLOS Reports 1999, para. 79. 13  Id., para. 80. 14  Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, ITLOS Reports 2003, para. 96. 15  Id., para. 99.

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the parties before the Tribunal have called witnesses and/or experts in 13 out of 23 contentious cases. In total, 23 experts (18 witnesses) and one witness/expert have been called by parties so far.16 Those experts are subject to cross-examination by the opposing party and also to questions from the bench. Cross-examination is of course an important method for testing out the evidence adduced by a party’s expert.17 Questions from the bench can help elucidate the contentious points in science and technology, and lead to a better understanding of scientific arguments made by the parties. However, these methods have their own limitations. The opinions of experts called by the opposing parties are often narrowly focused, and may by no means be neutral. More often than not, such opinions would diverge. It would be hard for the Tribunal to decide on the more persuasive of two competing scientific opinions.18 Thus relying on the party-appointed experts would fall short of facilitating the Tribunal’s decision-making process in a case with complicated scientific or technical elements. Another means the Tribunal may consider is to appoint experts of its own to assist in the task of examining scientific and technical evidence. Article 82 of the Rules of the Tribunal provides it with the power to appoint persons to hold an inquiry or experts if it considers it necessary to arrange for an inquiry or an expert opinion. When appointing experts, the Tribunal has to define the subject of the expert opinion, state the number and mode of appointment, and lay down the procedure to be followed. In addition, before appointing experts, the Tribunal must hear the parties, who must also be given the opportunity of commenting upon every expert opinion submitted. The Tribunal has yet to make use of article 82 of the Rules, which is modelled upon Article 50 of the Statute of the ICJ and Article 67 of its Rules. However, the ICJ has so far utilized these provisions to obtain expert opinions in a few cases, the latest of which is the case concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua). Annex VII arbitral tribunals have also appointed experts in the Guyana v. Suriname case and in the South China Sea case in accordance with their respective rules of procedure.

16  P  . Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Elgar International Law and Practice, 2018), 208. 17  Caroline E. Foster, Science and the Precautionary Principle in International Courts and Tribunals (Cambridge, 2011), 100. 18  Makane Moise Mbengue, “Scientific Fact-finding at the International Court of Justice: An Appraisal in the Aftermath of the Whaling Case”, (2016) 29 Leiden Journal of International Law, 544.

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An expert opinion under article 82 of the Rules can help the Tribunal to take a decision on the defined subject. An obvious advantage of a court-appointed expert, compared to a party-appointed expert, may be its impartiality and reliability. By hearing the parties before appointing the experts and giving them the opportunity to comment on their opinion, this procedure would increase the transparency and ensure due process and the good administration of justice. On the other hand, the Tribunal’s engagement or interaction with experts appointed under article 82 of the Rules, especially compared to experts under article 289 of the Convention, which I will touch upon below, may be rather limited in terms of the subject covered and the phase in the proceedings. It is not entirely clear whether, under article 82 of the Rules, the Tribunal would be able to benefit from the assistance of the experts during its deliberations. It has been submitted that “[b]y providing for an opportunity for the parties to comment on the expert opinion, the Rules of the ICJ and ITLOS confine the role of the court-appointed experts to a phase preceding the deliberations. While the experts’ view may be useful in assessing the evidence submitted by the parties, the ICJ or ITLOS is not given the opportunity of benefiting from their scientific or technical knowledge at the moment of taking a decision and giving reasons”.19 However such assistance may be most badly needed during deliberations, as this is the phase during which the Tribunal examines intensively all the issues in contention between the parties and takes a decision. Yet another possibility, to which the Tribunal may have recourse, is to select experts in accordance with article 289 of the Convention, which provides: In any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under this section may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII, article 2, to sit with the court or tribunal but without the right to vote. Article 15 of the Rules of the Tribunal provides for further details in applying this provision. A request by a party for the selection of scientific or technical experts must, as a general rule, be made not later than the closure of the written proceedings. However, the Tribunal may consider a later request made prior to the closure of the oral proceedings, if appropriate in the circumstances of the 19  Giorgio Gaja, Scientific and Technical Evidence before the International Tribunal for the Law of the Sea and the International Court of Justice, January 2015 (unpublished), 3–4.

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case. When the Tribunal decides to select experts, at the request of a party or proprio motu, it shall select such experts upon the proposal of the President of the Tribunal, who shall consult the parties before making such a proposal. In accordance with article 42, paragraph 2, of the Rules, experts selected in accordance with article 289 of the Convention take part in the Tribunal’s judicial deliberations. The role played by the experts envisaged in article 289 seems to be quite broad, much broader than the role played by the court-appointed experts under article 82 of the Rules. Such experts appear to come close to being judges as they sit with the court or tribunal and participate in judicial deliberations, although without the right to vote. Thus it has been noted that they are comparable to “assessors” within the meaning of Article 30, paragraph 2, of the ICJ Statute.20 The heavy involvement of the experts in the proceedings and their close interaction with the court or tribunal may be a major advantage of selecting experts under article 289 but at the same time could be a source for concern. Unlike the experts under article 82 of the Rules, the experts under article 289 of the Convention can provide the Tribunal with scientific or technical advice and guidance throughout the critical phase of deliberations. They can also respond to any kind of request for assistance within their expertise whenever such need arises. On the other hand, their broad role and heavy involvement in the proceedings could give rise to the possibility that the judicial function of the court or tribunal is delegated to or compromised by outsiders. Judges should be wary of excessive influence of experts during the decision-making process. It has also been pointed out that the fact that the experts must be selected in consultation with the parties and their number must be no lower than two could cast a doubt as to their independence.21 Article 289 experts may be utilized in highly technical cases where scientific expertise is crucial to the understanding of key aspects of a dispute and thus to the satisfactory settlement of a dispute.22 Notwithstanding its innovative character, article 289 has so far never been utilized. However, this should not obscure the potential value of this provision for the settlement of disputes with complex scientific or technical components.

20  Gudmundur Eiriksson, The International Tribunal for the Law of the Sea (Martinus Nijhoff Publishers, 2000), 67. 21  See Tullio Treves, supra note 11, 17. 22  P. Chandrasekhara Rao and Philippe Gautier, supra note 16, 55.

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I also want to add that the Tribunal has on a few occasions relied upon experts it appoints informally for a more limited technical purpose. The practice of using such informal experts (or “experts fantomes”) has been controversial in terms of transparency, due process and the good administration of justice.23 However, I do not consider such practice particularly troublesome, as long as it is confined to technical issues of minor importance. In dealing with scientific or technical disputes, the Tribunal may also benefit from the participation of intergovernmental organizations in the proceedings. According to article 84 of the Rules, the Tribunal may, at any time prior to the closure of the oral proceedings, request an appropriate intergovernmental organization to furnish information relevant to a case before it. In addition, when such an intergovernmental organization sees fit to furnish, on its own initiative, information relevant to a case before the Tribunal, it shall do so in the form of a memorial to be filed in the Registry before the closure of the written proceedings. On the other hand, there is no provision in the Statute or Rules of the Tribu­ nal relating to the participation of non-governmental organizations (NGOs) in the proceedings before the Tribunal. While NGOs may also be in a position to furnish information relevant to a scientific or technical dispute before it, the Tribunal has been quite cautious about their participation. During the advisory proceedings before the Seabed Disputes Chamber in 2010, for example, Stichting Greenpeace Council (Greenpeace International) and the World Wildlife Fund for Nature (WWF) submitted jointly a petition requesting permission to participate in the proceedings as amici curiae, together with a statement attached to it. In light of article 133, paragraphs 3 and 4, of the Rules, which provides that only States Parties and intergovernmental organizations (likely to be able to furnish information on the question) shall be invited to present written and oral statements at the proceedings, the Chamber decided not to grant the request and did not include the statement in the case file.24 Instead, the statement was posted on a separate section of the documents relating to the case on the Tribunal’s website.25 The Tribunal followed the Chamber’s approach in the subsequent advisory proceedings in 2014. On that occasion, amicus curiae briefs were submitted by 23  Commentary on article 50 of the Statute of the International Court of Justice by Christian J. Tams in A. Zimmermann, The Statute of the International Court of Justice: A Commentary (Oxford, 2012), 1298. 24  See Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, ITLOS Reports 2011, para. 14. 25  Id., para. 13.

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the WWF International during the written proceedings. These statements were posted on the website of the Tribunal but were not included in the case file.26 A request for the submission of amicus curiae has also been made in contentious proceedings. In the “Arctic Sunrise” Case, Stichting Greenpeace Council (Greenpeace International) requested the Tribunal for permission to file amicus curiae, together with the submissions attached to it. The Tribunal decided that its request should not be accepted and that its submissions would not be included in the case file.27 Unlike in the advisory proceedings, the submissions were not posted on the website of the Tribunal. The more restrictive approach of the Tribunal in the contentious proceedings is not difficult to understand in light of the nature of such proceedings where “a dispute opposes two parties and where a view expressed by a third party – even labelled as ‘amicus curiae’ – could jeopardize the principle of strict equality between the parties”.28 5

Conclusion

In conclusion, the increasing incidence of disputes involving scientific and technical matters is a challenge to courts and tribunals under article 287 of the Convention. It is particularly so to the International Tribunal for the Law of the Sea, which is widely known as a specialized court with expertise for law of the sea disputes. In dealing with disputes involving scientific and technical matters, the Tribunal should be braced for going beyond its traditional method of factfinding and making full use of various possibilities available to it under the Convention, its Statute and Rules. What methods and means are the most suitable and effective depends on the nature of a particular dispute and the scope and relevance of scientific issues involved in it. Those methods and means are not mutually exclusive either. In particular, the Tribunal should not be shy of enlisting the assistance of experts whenever such need arises. In fact, the best way to avoid the danger of reaching a decision based on facts that a court or tribunal cannot fully comprehend is to resort to the knowledge and expertise of appropriate experts.

26  R  equest for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, ITLOS Reports 2015, para. 23. 27  “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), Provisional Mea­ sures, ITLOS Reports 2013, paras. 15–18. 28  P. Chandrasekhara Rao and Philippe Gautier, supra note 16, 284.

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Shabtai Rosenne once observed in the broad context of international law that international law is growing more interdisciplinary and even multidisciplinary. As a result, in his view, international law can no longer be successfully developed, understood, or applied in a world of itself.29 In my view, this observation cannot be more relevant to the settlement of disputes involving highly complex scientific and technical issues. It is something the Tribunal should bear closely in mind. 29  Shabtai Rosenne, Essays on International Law and Practice (Martinus Nijhoff Publishers, 2007), 249–250.

Part 2 Marine Biological Diversity of Areas beyond National Jurisdiction: Marine Genetic Resources

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Chapter 2

Mind the Gap between Biological Samples and Marine Genetic Resources in Areas beyond National Jurisdiction: Lessons from Land Sophie Arnaud-Haond 1

The Evolution of Life in the Ocean: An Old and Vast Genomic Repository

The oceans cover 70% of Earth, and, three-dimensionally (1.3 billion m3), areas beyond national jurisdiction encompass approximately 95% of the marine biosphere. Life is thought to have appeared in the marine environment approximately 3.5 billion years ago and has evolved there ever since, with the emergence of microbes, viruses, and the first eukaryotic cells approximately 2 billion years ago. Estimates of the emergence of the first multicellular eukaryotes date it slightly more than a billion years later. There are big controversies as to the date of land colonization by prokaryotes, while fossil evidence suggests that multicellular eukaryotes (plants and animals) left the oceans only approximately 500 million years ago to adapt to the terrestrial realm. The habitat for marine biodiversity (see Table 2.1 for a definition) is thus extremely large, and the very long history of diversification of life in the marine realm has led to the development of considerable genomic diversity. As a result, 39% of the main lineages in the tree of life are unique (endemic) to the oceans rather than to land or freshwater.1 The yield of biotechnology development is much higher for marine than terrestrial organisms,2 despite marine biodiversity being the focus of considerably less research than terrestrial biodiversity (approximately 10% compared to terrestrial biodiversity).3

1  Costello, M.J., & Chaudhary, C., “Marine biodiversity, biogeography, deep-sea gradients, and conservation”, (2017) 27(11) Current Biology, R511–R527. 2  Arrieta, J.M., Arnaud-Haond, S., & Duarte, C.M., “What lies underneath: Conserving the oceans’ genetic resources”, (2010) 107(43) Proceedings of the National Academy of Sciences of the United States of America, 18318–18324. 3  Hendriks, I.E., Duarte, C.M., & Heip, C.H.R., “Biodiversity research still grounded”, (2006) 312(5781) Science, 1715.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_004

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Table 2.1

Definitions of the most important terms and concepts

Biodiversity

Genetic resources

Bioprospecting

2

A “portmanteau” term used to describe all aspects of biological diversity, especially including “species richness”, ecosystem complexity, and genetic variation (Oxford Dictionary of Ecology – Michael Allaby) Genetic materials of plants, animals or microorganisms of value used as a resource by future generations of humanity (definition of the Organisation for Economic Co-operation and Development (OECD)). The concept of genetic resources was clarified by the Convention on Biological Diversity (CBD workshop, Ottawa 2009) as follows: “Genetic resources” means genetic material of actual or potential value. “Genetic material” means any material of plant, animal, microbial or other origin containing functional units of heredity. Searching for plant or animal species for use as a source of commercially exploitable products, such as medicinal drugs (Oxford Dictionary)

Marine Biotechnologies

Marine biotechnologies have a broad range of applications, among which human health ranks first,4 with nearly 60% of the patent claims deposited before 2010 having an application in the production of drugs5 or medical technology. These areas of development are followed by genetic engineering and molecular and cell biology (approximately 50 and 30%, respectively) and food products (agriculture, aquaculture and the food industry). Other applications 4  Arrieta et al., supra note 2. 5  Molinski, T.F., Dalisay, D.S., Lievens, S.L., & Saludes, J.P., “Drug development from marine natural products”, (2009) 8(1) Nature Reviews Drug Discovery, 69–85; Ruiz-Torres, V., Encinar, J.A., Herranz-López, M., Pérez-Sánchez, A., Galiano, V., Barrajón-Catalán, E., & Micol, V., “An updated review on marine anticancer compounds: The use of virtual screening for the discovery of small-molecule cancer drugs”, (2017) 22(7) Molecules, 1037; Zheng, L.H., Xu, Y.X., Lin, X.K., Yuan, Z.X., Liu, M.H., Cao, S.S., … Linhardt, R.J., “Recent progress of marine polypeptides as anticancer agents”, (2018) 13(4) Recent Patents on Anti-Cancer Drug Discovery, 445–454.

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range from cosmetics to environmental processes (such as bioremediation) and the production of biofuel. Historically, the first marine secondary compound used for drugs was isolated from a large coastal sponge to produce anticancer drugs that came on the market in the 1960s. Traditionally, active molecules for the development of biotechnologies have been screened on land by investigating secondary metabolite compounds in plants or animals. These compounds are a traditional source for the development of drugs, cosmetics, and food complements. In fact, initially, the pharmaceutical industry mostly relied on the chemical synthesis of compounds (combinatorial chemistry). During the past few decades, however, the focus has been on natural products, with great success: approximately 50% of anticancer drugs on the market are classified as naturally derived or have been inspired by natural compounds, whereas synthetic molecules more often fail toxicity tests.6 In certain areas, such as the development of antibiotics, new molecules are severely needed because many bacterial strains have evolved resistance to a large spectrum of the existing ones. Due to the diversity of the genomic repository it shelters, the marine environment thus still offers a seemingly unlimited source of bioactive compounds for a diversity of applications. Technological advances in the past few decades have allowed access to marine organisms from coastal areas to the deep sea through the development of scuba diving and oceanographic engineering, including habitable submarines and remotely operated vehicles (ROVs). In addition, the development of new analytical technologies and high-throughput sequencing and screening methods has enabled exploration of the vast potential contained in the tree of life (see Figure 2.1). Several meta-analyses have been conducted in recent years, demonstrating acceleration in the development of biotechnologies with a marine origin. Studies screening for trends in the development of natural products7 or genes associated with a patent claim8 with a marine origin have drastically increased in number since the late 1990s and the development of next-generation sequencing and high-throughput screening methods. An exponential increase in the number of patents associated with a gene with a marine origin, and 6  Newman, D.J., & Cragg, G.M., “Natural products as sources of new drugs over the last 25 years”, (2007) 70(3) Journal of Natural Products, 461–477; Ruiz-Torres et al., supra note 5. 7  Arrieta et al., supra note 2; Leal, M.C., Puga, J., Serôdio, J., Gomes, N.C.M., & Calado, R., “Trends in the discovery of new marine natural products from invertebrates over the last two decades – where and what are we bioprospecting?”, (2012) 7(1) PLoS One, e30580. 8  Arrieta et al., supra note 2; Blasiak, R., Jouffray, J.B., Wabnitz, C.C.C., & Osterblom, H., “Scientists should disclose origin in marine gene patents”, (2019) 34(5) Trends in Ecology & Evolution, 392–395.

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Figure 2.1

Arnaud-Haond

Number of sequences associated with a patent for each marine lineage in the tree of life (adapted from Blasiak et al., supra note 8)

to a lesser extent in that associated with natural products inspired by marine secondary compounds, was reported up to 2010.9 The cumulative number of marine sequences associated with genes with a marine origin has also followed an increasing trend, with an exceptional peak just before the Nagoya Summit and the establishment of an international protocol for access and benefit sharing (ABS) on land and in maritime areas within national jurisdiction (see Figure 2.2). 9  Arrieta et al., supra note 2; Leal et al., supra note 7.

Gap between Biological Samples and Marine Genetic Resources

Figure 2.2

3

33

Evolution of the number of sequences with a marine origin associated with patent claims (adapted from Blasiak et al., supra note 8)

The Target of Ongoing Negotiations: A Large, Heterogeneous, Rich and Connected Playground

The objective of ongoing negotiations, in accordance with General Assembly resolution 69/292 of 19 June 2015, is the development of an international legally binding instrument for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (ABNJ). ABNJ include the high seas and the Area. The high seas encompass approximately 64% of the surface of the ocean (thus nearly 40% of the surface of our planet; Figure 2.3) and, as they include many of the deepest places on Earth, approximately 95% of the ocean volume. Most biotechnologies developed on the basis of marine compounds since the 1960s were inspired by coastal organisms and would currently be submitted to the Nagoya system for ABS. The discoveries were initially limited by the amount of material needed to extract compounds and the ability to sample specimens. The first obstacle was overcome in the 1990s by the arrival of high-throughput sequencing and screening methods. In parallel since the 1980s, access to the deep ocean through the development of ROVs and submarines, particularly after the discovery of hydrothermal vents in 1977, has

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Figure 2.3

Arnaud-Haond

The extent of the marine environment and of the high seas; the exclusive economic zones are represented in blue. Map constructed using resources provided by the Flanders Marine Institute (2018). Maritime Boundaries Geodatabase: Maritime Boundaries and Exclusive Economic Zones (200NM), version 10. Available online at http://www.marineregions.org/ https://doi.org/10.14284/312

provided access to biodiversity and genetic resources in areas beyond national jurisdiction,10 a much larger playground (see Figure 2.3). Despite an apparent trend towards lower diversity in the seas than in land ecosystems and in the deep sea than in coastal waters (even when correcting for research efforts), areas beyond national jurisdiction encompass a large range of diversity still to be discovered, described, and inventoried:11 the major taxonomic and ecological compartments have not yet been explored. For example, a recent holistic survey of plankton in global ocean surface waters (Tara Ocean) suggested that unicellular eukaryotes (protists) account for more than 85% of total eukaryotic diversity,12 many of which are widely distributed, including in areas beyond national jurisdiction. Although a trend towards declining diversity was observed for relatively large animals, these are usually better referenced and described than very small organisms hidden in the 10  A  rico, S., & Salpin, C., Bioprospecting of genetic resources in the deep seabed: Scientific, legal and policy aspects, Yokohama: United Nations University, 2005; Arnaud-Haond, S., Arrieta, J.M., & Duarte, C.M., “Marine biodiversity and gene patents”, (2011) 331(6024) Science, 1521–1522; Arrieta et al., supra note 2; Leary, D., Vierros, M., Hamon, G., Arico, S., & Monagle, C., “Marine genetic resources: A review of scientific and commercial interest”, (2009) 33(2) Marine Policy, 183–194; Molinski et al., supra note 5. 11  Costello et al., supra note 1. 12  de Vargas, C., Audic, S., Henry, N., Decelle, J., Mahe, F., Logares, R., … Karsenti, E., “Ocean plankton. Eukaryotic plankton diversity in the sunlit ocean”, (2015) 348(6237) Science.

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seafloor both in coastal and deep sea environments. The small-bodied organisms designated “meiofauna” are also still poorly inventoried, although they exhibit a diversity of genomic adaptations to extreme environments that are likely to inspire biotechnological developments.13 It is also important at this stage to note that large-scale dispersal and connectivity among distant populations is a widespread feature in the marine realm. The example of the Tara Ocean dataset that revealed the cosmopolitan nature of some dominant microbial lineages illustrates the transboundary nature of some species dominating (in terms of abundance) planktonic communities.14 The same lineage or species is extremely likely at its different stages of development (depending on the species, mobile or benthic adults and developing stages that disperse, such as pelagic larvae, floating seeds, and unicellular species following currents) to be present in several “human-fragmented” compartments of the oceans, belonging to several EEZs/continental shelves and areas beyond national jurisdiction. This connectivity of many marine species should be kept in mind when establishing the terms of a realistic system of ABS allowing for multilateral mechanisms, where one species, lineage or gene may be associated with several States. 4

The Ownership of Marine Genetic Resources

During the last decade, triggered by the discussions at the United Nations, several large-scale analyses were performed to analyse the patent landscape for marine genetic resources (MGRs). A first meta-analysis of genes associated with patent claims15 established a very clear imbalance in the ownership of patent claims associated with marine genetic resources: in 2011, only 10 States owned 90% of patent claims, with only 3 of them owning 70%, resulting in a typical power law distribution of wealth where very few players dominate the market. A screening following the same strategy and performed seven years later16 uncovered the same trend. This new article also revealed that the landscape is presently dominated by a single corporation (BASF) owning 50% of the patent claims associated with MGRs. 13  Zeppilli, D., Leduc, D., Fontanier, C., Fontaneto, D., Fuchs, S., Gooday, A. J., … Fernandes, D., “Characteristics of meiofauna in extreme marine ecosystems: A review”, (2018) 48(1) Marine Biodiversity, 35–71. 14  de Vargas et al., supra note 12. 15   Arnaud-Haond et al., supra note 10. 16  Blasiak, R., Jouffray, J.B., Wabnitz, C.C.C., Sundstrom, E., & Osterblom, H., “Corporate control and global governance of marine genetic resources”, (2018) 4(6) Science Advances, eaar5237.

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Interestingly, the same trend of ownership is observed for human genes and the four main cultivated crops,17 supporting the fact that this disequilibrium is mostly driven by unbalanced access to molecular technologies rather than by oceanographic skills. Thus, any operational ABS system should seriously focus on capacity building and technology transfer in the domain of molecular biology, be it for the sake of describing diversity and contributing to its inventory and conservation or for developing biotechnology based on MGRs. The Process of Developing Genetic Resources: A Long Road with Many Screened and Few Selected The development of marine genetic resources begins with the sampling process, requiring access to the field or to tissue, DNA, culture (in vitro) or sequence (in silico) collections.18 Secondary compounds and/or genes synthetizing molecules of interest must then be screened, isolated in the laboratory, and run through a series of tests. The process lasts for years and is extremely selective. For example, for drugs, according to the European Federation of Pharmaceutical Industries and Associations, 1 molecule successfully goes through clinical trial to reach the market for every 5,000 to 10,000 molecules initially tested (see Figure 2.4). This initial set of molecules, already screened for specific properties, represents a very narrow subsampling of all the molecules sampled year after year in the field, particularly if one accounts for all field expeditions dedicated to pure scientific research aiming to describe biodiversity for knowledge and conservation. There is thus an extreme bottleneck and a long time lag between the first step, during which specimens are sampled and possibly sequenced to contribute to public databases for knowledge proposes, and the final step, when a molecule is actually used in a biotechnological product or process leading to monetary benefit to its developers (see Figure 2.4). 4.1

Supporting ABS without Hampering Marine Scientific Research for Conservation: What Can We Learn from Land? Nevertheless, on land and in maritime areas within national jurisdiction, where the Convention on Biological Diversity (CBD) applies, the Nagoya Protocol, promoting “the sharing of knowledge and capacity building for all research activities” and “the access and benefit sharing (ABS) related to biotechnologies”, has been accounted for by many national laws in the last few 4.2

17   Arnoud-Haond et al., supra note 10. 18  Broggiato, A., Arnaud-Haond, S., Chiarolla, C., & Greiber, T., “Fair and equitable sharing of benefits from the utilization of marine genetic resources in areas beyond national jurisdiction: Bridging the gaps between science and policy”, (2014) 49 Marine Policy, 176–185.

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Gap between Biological Samples and Marine Genetic Resources Drug development process: the long road between a sample and the regulatory approval and commercializa�on of gene�c resources Samples

Laboratory

How many millions of molecules must be sampled, selected and tested for 1 compound to become an MGR? 5,000-10,000

~4

years

~

Preclinical Clinical

250 5 1

Figure 2.4

~ 1.5

~5

years

years

~ 1.5

years

The pyramidal relationship between the number of molecules sampled and the ones finally associated with a patent claim, after laboratory screening and clinical trials. Adapted from European Federation of Pharmaceutical Industries and Associations (EFPIA). A Highly Regulated Industry. Accessed November 2012. Available at: http://62.102.106.100/Content/Default. asp?PageID=361 in “Understanding clinical trial, La Roche”. The first layer (about sampling) was added for the purpose of this communication, as the initial molecules are already isolated from a small subsample of the initially sampled ones

years by targeting activities upstream, at the initial step of sampling. By doing so, national legislation targets both pure research for scientific knowledge (and thus the research necessary for conservation) and applied research for biotechnologies, thereby having the collateral and undesired negative consequence of limiting research on biodiversity.19 This upstream control is leading to a vast number of administrative processes and authorizations that should in fact be applied to only a minimal fraction of the molecules being sampled. Focusing on research on biodiversity per se, public databases and increasing open access archives and publication systems warrant the sharing of knowledge. Surveying the downstream part of the process is the core issue at stake in regard to the economical side of ABS. Bilateral agreements may be more wisely allocated and more effectively applied either when molecules start to be screened (laboratory steps in Figure 2.4) or when authorization is claimed to place products on the market. 19  Prathapan, K.D., Pethiyagoda, R., Bawa, K.S., Raven, P.H., Rajan, P.D., & Co-Signatories, “When the cure kills – CBD limits biodiversity research”, (2018) 360(6396) Science, 1405–1406.

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This is particularly true for the main applications of MGRs dealing with the medical, cosmetics or food industry. Traceability is a trivial and mandatory practice in marine research, and the vast majority of journals on biodiversity now require the disclosure of raw data and metadata, including information related to the taxonomic and geographic origins of the samples used. Unfortunately, the requirement of the World Trade Organization (WTO/TRIPS) for patent claims does not include disclosure of the geographic origin, and, even worse and likely more important, the taxonomic origin, of samples serving as the source of discoveries involving genetic resources. As a result, the vast majority of sequences associated with patent claims remain inaccessible, a situation that may no longer be acceptable.20 As long as such a requirement does not exist in the WTO TRIPS agreement when biotechnologies involving genetic resources are reaching the market, the Nagoya Protocol, as it stands, not only may add a heavy, unnecessary and resource-consuming administrative burden, but may also (more worryingly) introduce a large number of hurdles that may simply prevent the expeditions and fundamental research needed to develop efficient conservation measures and strategies.21 The Nagoya Protocol, which aims to target one of the two main objectives of the Convention on Biological Diversity, “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”, depending on the way it is integrated into national laws for biodiversity, is thus proving harmful to the core of the Convention: “The conservation of biological diversity … the sustainable use of its components …”. This observation echoes findings in Brazil in 2015, after fifteen years of an extremely strict law against biopiracy, stating that it “… had the unintended consequence of halting much international research into the plant-based biodiversity …”. Unfortunately, the new law that was presented in 2015 as a means to “relax” the biopiracy law requires the registry of every research activity on Brazilian biodiversity (including taxonomy, ecology, physiology, and behaviour) in the National System of Genetic Resource. This recently led to a desperate call from 1,200 Brazilian researchers denouncing an apparently unrealistic bureaucratic hurdle that may contribute to the breakdown of research on biodiversity.22 20   Arnaud-Haond et al., supra note 10; Blasiak et al., supra note 8. 21  Prathapan et al., supra note 19. 22  Bockmann, F.A., Rodrigues, M.T., Kohsldorf, T., Straker, L.C., Grant, T., de Pinna, M.C.C., … de Souza Amorim, D., ”Brazil’s government attacks biodiversity”, (2018) 360(6391) Science, 865–865.

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The ongoing negotiations on marine biodiversity in areas beyond national jurisdiction have a double objective extremely similar to that of the CBD for land and maritime areas within national jurisdiction: the conservation of biodiversity and the establishment of a fair access and benefit-sharing system related to genetic resources. They also include a very important component of capacity building. At this stage of the negotiations, leveraging “lessons from land” would allow an agreement for both objectives to be reached through synergistic rather than conflicting rules and procedures. One of the steps forward may be to clarify the distinction between exploration and sampling associated with marine scientific research and bioprospecting. The latter, in its primary sense (see Table 1 for a definition), is clearly biotechnology oriented: “… for use as a source of commercially exploitable products …”; while bioprospecting includes some exploration and sampling steps, exploration and sampling do not equal bioprospecting but encompass all research activities. Second, the development of a sound capacity-building system to promote the transfer of knowledge and competences in molecular biology and biotechnology is needed to seriously reduce the lag of some countries in the development of genetic resources and the application of molecular tools (such as barcoding for the description and identification of species) in biodiversity research. Considering the parallel observations of disequilibrium in patent ownership in marine as well as human and crop genetic resources, such emphasis is much more important than a focus on access to samples. Third, the worrying gap in the WTO TRIPS rules for patent claims is unlikely to be compensated for in other fora, unless at the cost of an unnecessary (considering the extremely low percentage of sampled molecules eventually contributing to a commercial product) and pervasive hurdle to scientific research and thus to obtaining the information needed to understand and conserve biodiversity. Finally, reaching a fair agreement will require a realistic balance between preserving the freedom of scientific research on the high seas to continue describing and preserving biodiversity on our planet, understanding its dynamics and contribution to large-scale processes such as climate regulation, and ensuring fair access to the knowledge and benefits arising from genetic resources. Priority may be given to the means to convey knowledge by endorsing international databases and public access to scientific literature and findings and to the development of incentives that promote capacity building and biodiversity research.

Chapter 3

The Legal Status of Marine Genetic Resources in the Context of BBNJ Negotiations: Diverse Legal Regimes and Related Problems Konrad Jan Marciniak 1

Introduction

This Chapter1 sets out to explain some of the main legal issues relating to marine genetic resources (MGRs) arising in the context of the UN-based negotiations concerning the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). The concept of the “legal status” of MGRs, as referred to in the title of the present Chapter, is traditionally understood as covering the most hotly debated issues in the context of the BBNJ process, namely the controversy whether the MGRs in areas beyond national jurisdiction (ABNJ) are subject to the principle of the common heritage of mankind (as developed in Part XI of the United Nations Convention on the Law of the Sea (LOSC)) or, rather, to the freedom of the high seas (as developed in Part VII of LOSC). However, as the remainder of the title suggests, an attempt will be made to present legal issues relating to MGRs from a broader perspective. The reason for such an approach rests in a conviction that the BBNJ negotiations – while formally constrained to their mandate,2 hence, in particular, to the development of “an international legally binding instrument under the United Nations Convention on the Law of the Sea”3 – are in fact, directly or indirectly, related 1  Parts of this contribution are based on previous works by the author, namely: K.J. Marciniak, “Diversity Within Unity? Marine Genetic Resources in Areas Beyond National Jurisdiction”, in A. de Paiva Toledo, V.J.M. Tassin (eds), Guide to the Navigation of Marine Biodiversity Beyond National Jurisdiction (Editora D’Placido 2018), 489–541; and K.J. Marciniak, “Marine Genetic Resources: Do They Form Part of the Common Heritage of Mankind Principle?”, in L. Martin, C. Salonidis (eds), Natural Resources and the Law of the Sea (Juris 2017), 373–405. 2  United Nations General Assembly (UNGA) Resolution A/RES/72/249 (2017), International legally binding instrument 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 (hereinafter: UNGA Res. 72/249). 3  United Nations Convention on the Law of the Sea, done at Montego Bay on 10.12.1982 (UNTS, vol. 1833, 3; entered into force on 16.11.1994 and has currently 168 Parties). Hence, a potential future treaty is referred to in this Chapter as “LOSC Implementing Agreement” or “LOSC IA”. © Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_005

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to discussions taking place in other fora. Also, it needs to be born in mind that MGRs, important as they are, form only part and parcel of the so-called “2011 Package” of issues to be negotiated4 and inevitable linkages exist not only with external processes but also internally, i.e. within the cluster of issues being under discussion in New York. Therefore, when analysing the ongoing BBNJ negotiations, it is important to take into account some of the debates under the auspices of the Convention on Biological Diversity (CBD)5 and its Nagoya Protocol (NP),6 the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA),7 and the World Intellectual Property Organization (WIPO),8 as well as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).9 As argued above, it seems reasonable to look at the BBNJ process from a more holistic, as well as historical perspective. Suffice it to say that the debate concerning, broadly speaking, “genetic resources” (not limited to marine ones) took place first within the Food and Agriculture Organization of the United Nations (FAO) where, in particular, in 1983 the Commission on Plant Genetic Resources was established10 and the International Undertaking on Plant Genetic Resources

4  See Part 2 of this Chapter below, in particular note 19 and accompanying text. 5  Convention on Biological Diversity, done at Rio de Janeiro on 5.6.1992 (UNTS, Vol. 1760, 79; entered into force on 29.12.1993 and has currently 196 Parties). 6  Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, done in Nagoya on 29.10.2010 (UNTS Reg. No: 30619; entered into force on 12.10.2014 and has currently 116 Parties). 7  International Treaty on Plant Genetic Resources for Food and Agriculture, done at Rome on 3.11.2001 (UNTS, vol. 2400, 303; entered into force on 29.6.2004 and has currently 145 Parties). 8  The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established in 2000. Its current mandate is established in doc. A/57/11 ADD.6 (2017), Matters Concerning the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. 9  Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh on 15.4.1994 (UNTS, Vols 1867–1869, 3; entered into force on 1.1.1995 and has currently 164 Parties; TRIPS was modified by a Protocol of 6.12.2005 which entered into force on 23.1.2017). Issues relating to intellectual property rights (IPRs) are subject to a separate treatment in this publication; see the Chapter in this publication by F. Millicay. See also generally: J. Curci, The Protection of Biodiversity and Traditional Knowledge in International Law of Intellectual Property (CUP 2010), 346; G. Dutfield, Intellectual Property, Biogenetic Resources and Traditional Knowledge (Earthscan 2004), 258; G. Van Overwalle, “Biotechnology and patents: global standards, European approaches and national accents”, in D. Wüger, T. Cottier (eds), Genetic Engineering and the World Trade System (CUP 2008), 77–108. 10  FAO, Resolution 9/83 (1983), Establishment of a Commission on Plant Genetic Resources.

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was adopted.11 Subsequently and chronologically, it is worth highlighting that in 1992 the CBD, containing the definition of “genetic resources”, was adopted, in 2000 the above-mentioned negotiations under the auspices of WIPO started, relating to “genetic resources” as well, and in 2001 the FAO ITPGRFA, with a focus on “plant genetic resources”, was concluded. Thus there had been considerable body of law and negotiating practice relating to biodiversity, genetic resources and modalities relating to accessing them, as well as sharing benefits thereof, before the BBNJ process was initiated in 2004.12 Moreover, some debates in these other fora continue to take place, especially within CBD/NP and WIPO frameworks, and there seems to be a degree of overlap and interdependency between the latter and the BBNJ negotiations. Clearly, the LOSC-based negotiations under discussion have their own – legal, political and environmental – nuances, specificity and dynamics. Nevertheless, some of the existing challenges were already present in these other fora or were brought within the spectrum of the BBNJ negotiations because of problems, challenges and developments that States had experienced in other contexts. It is argued, therefore, that the proper understanding of the BBNJ negotiations, especially insofar as they concern marine genetic resources and benefit sharing, necessitates an analysis that goes beyond these negotiations per se. In order to achieve the objectives set out above, the following structure of this Chapter has been adopted. Firstly (Part 2), the internal context of BBNJ will be briefly presented. Due to spatial constraints, the external context, i.e. other processes and fora where the issue of genetic resources is dealt with, will be referenced, to the greatest extent possible, when discussing particular problems. Next (Part 3), an overview of the main issues within the BBNJ negotiations relating to MGRs will be presented, to be followed (Part 4) by a discussion concerning the controversies related to the definition and typology of MGRs. Subsequently (Part 5), attention will turn to an inquiry into the legal status of MGRs, i.e. whether they are covered by the common heritage of mankind (CHM) or the principle of the freedom of the high seas. Finally (Part 6), conclusions will be presented.

11  FAO, Resolution 8/83 (1983), International Undertaking on Plant Genetic Resources. 12  The decision to establish the BBNJ Working Group marked a symbolic start of the negotiations although the formal intergovernmental conference met for the first time only in 2018. See Part 2 of this Chapter below.

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43

The Internal Context of the BBNJ Negotiations: Work within the UN

The path to the current state of play within the United Nations has been, indeed, long and winding.13 While it is neither possible nor necessary to elaborate on this process in full here, it is nevertheless useful to briefly analyse it from the perspective of MGRs. As will be shown, this issue formed part of the “starting package” of these discussions and continues to be a controversial one. It seems fair, even if premature, to state that it will probably also be the issue that will witness the last moments of the negotiations and some key compromises will have to be found in this context. The story of biodiversity within the UN dates back at least to 2004 when the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (ICP) discussed issues concerning “New sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction”.14 Although the topic did not explicitly involve MGRs, the discussions certainly did and some of the main controversies, including with regard to the legal status of MGRs, became immediately apparent.15 Three years later, MGRs received their own, individual treatment at the ICP of 2007 but the old controversies persisted and new ones emerged as well.16 In the meantime, in 2004 UNGA decided to establish the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (so-called BBNJ Working Group).17

13  G  . Wright, J. Rochette, K. Gjerde, I. Seeger, The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (Institute for Sustainable Development and International Relations (IDDRI)), IDDRI Studies No 08/2018, 40–46. 14  This topic was agreed and adopted in the UNGA Res. 58/240 (2003), Oceans and the law of the sea, para. 68. Previous paragraphs of the resolution noted the risks to vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction, as well as scientific and technical work of the CBD relating to the conservation and sustainable use of BBNJ (at paras. 52–53). 15  Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its fifth meeting, doc. A/59/122, paras. 90–94. 16  Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its eighth meeting, doc. A/62/169, paras. 50–55 and 67–81. For a commentary see L. Ridgeway, “Marine Genetic Resources: Outcomes of the United Nations Informal Consultative Process (ICP)” (2009) 24 IJMCL, 309–331. 17  U NGA Res. 59/24 (2004), Oceans and the law of the sea, para. 73.

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Over the course of the next 11 years, the BBNJ Working Group met nine times18 and, additionally, two meetings in the format of Intersessional Workshops took place. Its work could be divided into two main phases. The first phase ended with the adoption of the recommendations of the BBNJ Working Group in 201119 that, in particular, envisaged that the General Assembly would: (a) start a process relating to the conservation and sustainable use of BBNJ which could address the possible development of a multilateral agreement under LOSC; and (b) decide that this process would consider, together and as a whole, four elements that became known as the “2011 package”. These were: (1) marine genetic resources, including questions on the sharing of benefits; (2) measures such as area-based management tools (ABMTs), including marine protected areas (MPAs); (3) environmental impact assessments (EIAs); and (4) capacitybuilding (CB) and the transfer of marine technology (TMT). The UNGA acted upon these recommendations and, consequently, the mandate of the Working Group was modified and a process within it initiated.20 Henceforth, the second phase, i.e. the meetings of the BBNJ Working Group in the period from 2012–2015, focused on the above-mentioned elements of the “2011 Package”. The discussions were also more oriented at the scope, parameters and feasibility of development of a possible “multilateral agreement” under LOSC.21 At its last meeting, the BBNJ Working Group recommended to the General Assembly that, indeed, such a process is feasible.22 Accordingly, in 2015 UNGA took a decision to develop “an international legally binding instrument” under LOSC.23 This process was designed to be two-fold as well. Firstly, a Preparatory Committee (PrepCom) was established that was tasked with making “substantive recommendations to the General 18  In 2006, 2008, 2010, 2011, 2012, 2013, 2014 (two times) and 2015. Reports of these meetings are available at: www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworking group.htm (accessed 13 January 2019). 19  Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, doc. A/66/119, Annex, Section I. 20  U NGA Res. 66/231 (2011), Oceans and the law of the sea, para. 167 and Annex. 21  This tendency intensified after the adoption of the “Future We Want” outcome document at the so-called Rio+20 Conference which was endorsed by the UNGA Res. 66/288 (2012). In para. 162 it called for a decision, to be taken before the end of the 69th session of the GA (i.e. September 2015), “on the development of an international instrument under the Convention on the Law of the Sea”. 22  Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, doc. A/69/780, Annex, Section I. 23  U NGA Res. 69/292 (2015), Development of an international legally binding instrument 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 (UNGA Res. 69/292).

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Assembly on the elements of a draft text of an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”. The PrepCom held four sessions by the end of 2017 and its work addressed the topics identified in the 2011 package.24 Secondly, in 2017 (i.e. 13 years after the BBNJ Working Group was formed) the General Assembly, on the basis of the PrepCom’s report,25 adopted UNGA Res. 72/249 in which it decided to convene an intergovernmental conference (IGC). The task of the IGC is to “elaborate the text of an international legally binding instrument under” LOSC, a process that should take place “as soon as possible”.26 In practice, this means that four negotiating sessions (each of 10 days’ duration) are “initially”27 envisioned that span over the period of 2018–2020.28 Similarly as with respect to the PrepCom, the IGC negotiations shall address the topics of the “2011 Package”.29 Moreover, they “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”, and “the work and results of the conference should be fully consistent with” the provisions of LOSC.30 3

Overview of the Main Issues in the BBNJ Negotiations Relating to MGRs

As noted above, one of the major controversies, discussed widely both in the actual BBNJ negotiations, as well as in the academic literature, is whether MGRs in areas beyond national jurisdiction (ABNJ) are subject to the freedom of the high seas or to the CHM principle. This issue is discussed in Part 5 of this Chapter. It is, however, important to take note of some other problems and challenges that emerged during the BBNJ process, insofar as they relate to the question of the legal status of MGRs. 24  Id., paras. 1(b) and 2. 25  Doc. A/AC.287/2017/PC.4/2 (2017), Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument 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. 26  U NGA Res. 72/249, para. 1. 27  Id., para. 3. Thus, further sessions are possible. 28  So far, one session already took place (4–17.9.2018), while the following are scheduled for 2019 (25.3.–7.4. and 19–30.8.) and the first half of 2020. Before the 1st substantive session, an organizational meeting had been organized as well (16–18.4.2018). 29  U NGA Res. 72/249, para. 2. 30  Id., paras. 6–7.

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As a preliminary issue, one should draw attention to how the “issue of MGRs” is approached in the BBNJ process context. Namely, as already remarked, the element of the “2011 Package” under discussion is phrased “marine genetic resources, including questions on the sharing of benefits”. It is therefore necessarily broad and, in particular, does not refer explicitly to the “legal status” of MGRs while at the same linking the subject of these resources with “questions on” the sharing of benefits.31 In practice, especially having regard to the work of the PrepCom, as well as to the conduct of the sessions of the IGC so far, one could identify the following main elements of discussion relating to MGRs:32 (1) the scope of the respective section of the LOSC IA (in particular: geographic and substantive scope but issues of temporal application have also been raised; in practice this issue involves also the discussion concerning the definition of MGRs);33 (2) access and benefit sharing (whether and how to regulate access to MGRs; whether this would depend on the type of MGRs – i.e. in situ, ex situ, in silico – to be accessed; as well as types of benefits to be shared, modalities of sharing them and the role of a clearing-house mechanism in this respect); (3) intellectual property rights (whether to be regulated in LOSC IA at all and, if yes, how); (4) monitoring of the utilization of MGRs (whether to be included in the LOSC IA and, if yes, how). Finally, (5) certain cross-cutting issues34 of the LOSC IA negotiation package could be of relevance for its “MGRs-section” (such as, in particular, the role of certain guiding principles and approaches of the future treaty, the relationship with especially the fourth element of the “2011 Package”, i.e. “capacity-building and the transfer of marine technology”, and institutional arrangements of the LOSC IA). In view of the above, the following three comments shall be made. Firstly, and perhaps ideally (from a purely formal, legal perspective), the answer to 31  See also the Chapter of N.Y. Morris-Sharma in this publication. 32  See: Statement by the President of the conference at the closing of the first session, doc. A/ CONF.232/2018/7 (2018); President’s aid to discussions, doc. A/CONF.232/2018/3 (2018); Report of the Preparatory Committee (2017), supra note 25. 33  This is the only element of the “2011 Package” that addresses, separately from the scope of the LOSC IA as a whole, the question of the geographical scope of application of its respective part (i.e. relating to MGRs). This is related to the discussion concerning the legal status of MGRs, whereby the CHM principle applies to the Area and the freedom to the high seas. One could theoretically imagine that while the future treaty as a whole would apply to ABNJ, its section concerning MGRs would only apply to a part of ABNJ, e.g. the Area only. 34  While “cross-cutting” issues are not formally part of the “2011 Package”, this subset of issues, and naturally so, was in practice formulated during the discussions (and the work of PrepCom as well).

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the “legal status question” (i.e. freedom of the high seas vs. the CHM principle) would simultaneously constitute an answer to at least large part of the abovementioned issues that have arisen during the BBNJ negotiations. This would be, however, only partially the case.35 Both the CHM and the freedom of the high seas are principles and, by definition, do not and cannot provide anything but general guidance as to how to approach certain issues.36 They would not, however, provide obvious solutions to many specific questions, either because of their specificity and/or their novelty (as compared to the level of knowledge and spectrum of issues regulated in LOSC). For example, neither of the principles would help to establish clear-cut rules for how to deal with MGRs stored in ex situ collections, how to regulate (if at all) digital sequence information/ data of MGRs (in silico MGRs), or whether to set up a monitoring scheme and, if at all, how exactly this would be attained. Secondly, it should be noted that even the mere “structure” of the abovelisted issues, as well as many specific questions addressed in their framework (e.g. the problem of in situ, ex situ and in silico MGRs), are “inspired” to some extent by the CBD/NP framework and discussions at the relevant CBD Conferences of Parties (COPs) or NP meetings of Parties (MOPs). In particular, the discussion about MGRs in terms of “access and benefit sharing” (ABS) resembles the logics of the CBD/NP.37 One of the most important rationale behind the CBD is a “quid pro quo” approach whereby provider States (rich in 35  See, however: D. Tladi, “The Common Heritage of Mankind and the Proposed Treaty on Biodiversity in Areas beyond National Jurisdiction: The Choice between Pragmatism and Sustainability”, (2015) 25 Yearbook of International Environmental Law, 113–132. 36  The CHM principle would, perhaps, be better apt for providing rationale for benefit sharing (especially “for the benefit of mankind as a whole”) and, depending on its scope and modalities, for the need for “monitoring of utilization of MGRs” (needed most with regard to monetary benefit-sharing scheme, see: G. Voigt-Hanssen, “Current ‘Light’ and ‘Heavy’ Options for Benefit-sharing in the Context of the United Nations Convention on the Law of the Sea”, (2018) 33 IJMCL, especially 5 and 15). On the other hand, the freedom of the high seas does not exclude some benefit-sharing scheme. By way of example, one may point out that neither the provisions concerning marine scientific research (MSR), e.g. arts. 239 and 242–244 of LOSC, nor those enshrined in Part XIV of LOSC dealing with the “Development and Transfer of Marine Technology”, differentiate between the high seas and the Area with regard to the need to promote MSR, create favorable conditions, disseminate information or knowledge resulting from MSR or promote the development and transfer of marine technology. 37  See generally on ABS: T. Greiber, S.P. Moreno et al., An Explanatory Guide to the Nagoya Protocol on Access and Benefit-sharing, IUCN Environmental Policy and Law Paper No. 83 (2012), 3–29; S. Oberthür, G.K. Rosendal, “Global governance of genetic resources. Background and analytical framework”, in S. Oberthür, G.K. Rosendal (eds), Global Governance of Genetic Resources. Access and benefit sharing after the Nagoya Protocol, (Routledge 2014), 5–6.

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biodiversity and often stemming from the group of developing States) agree to grant/facilitate access to genetic resources (after expressing prior informed consent (PIC) as well as on mutually agreed terms (MATs)) to user States (often technologically advanced, from the group of developed States),38 in return for benefits arising out of the utilization of such genetic resources.39 This is based on the assumption that these resources are subject to the sovereign rights of the provider States.40 The ITPGRFA has similar legal foundations.41 It is also worth highlighting in this context that, under the CBD, it would principally be the private entity (seeking access to genetic resources) that would negotiate a contract (MATs) with the provider State.42 Thus, the CBD left it in principle open, and to be implemented bilaterally and domestically, what the ABS system (including in particular MATs) would effectively look like.43 These ambiguities and the lack of effective implementation of the ABS system eventually led the Parties to adopt the NP which, while not changing the essentially bilateral ABS/MATs relationship established by the CBD, introduced a number of precisions, including with regard to access,44 MATs,45 as well as modalities of benefit sharing.46 38  A  rt. 15 of the CBD. 39  A  rt. 1 of the CBD. It is to be noted that the ABS mechanism, as established in the CBD, links benefits with the utilization of the genetic resources and not with the broader category of biological resources. Similarly, Arts. 10–15 of the ITPGRFA. 40  Preamble (4th recital), Art. 3 and Art. 15, para. 1, of the CBD. 41  Preamble (14th recital), Art. 10.1 and 10.2 of the ITPGRFA. 42  S. Oberthür, G.K. Rosendal, supra note 37, 5–6. 43  Here, the ITPGRFA adopts a different methodology as it is based on a “Multilateral System”, whereby basic rules of access to it (Art. 12) and modalities of benefit sharing (Art. 13) are established already in the ITPGRFA. In particular, access to the Multilateral System is based on the standard material transfer agreement (MTA) which is grounded in the treaty itself and was agreed by the Governing Body of the ITPGRFA (hence leaving less discretion to private entities and States than the CBD model). See: Art. 12.4 of the ITPGRFA and Governing Body Resolution 2/2006 (2006), The Standard Material Transfer Agreement. See also: www.fao.org/plant-treaty/areas-of-work/the-multilateral-system/ the-smta/en/ (accessed 13 January 2019). 44  Art. 6 of the NP. 45  Id., Arts. 18–20. 46  Id., Art. 5 and Annex that includes a non-exhaustive list of types of monetary and nonmonetary benefits arising from the utilization of genetic resources and which may be taken into consideration while negotiating MATs. The Nagoya Protocol also envisages (Art. 10) that its Parties “shall consider a need for and modalities of a global multilateral benefit sharing mechanism” related to the utilization of genetic resources that occur in transboundary situations for which it is not possible to grant or obtain PIC. This provision was a last-minute compromise in the negotiations of the NP and its precise meaning or possible operation are subject to academic and State-driven debate. See: E. Morgera,

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Nevertheless, the matters to be addressed by the LOSC IA have very different legal underpinnings. In particular, the resources in question are beyond national jurisdiction and, consequently, not subject to States’ sovereignty or sovereign rights.47 Hence, the very logics of PIC, MATs and, more generally, the “quid pro quo approach” as explained above with regard to the CBD and NP, are not directly applicable. The difficulty is most visible with regard to the high seas, characterized by openness and freedom (such as in particular the freedom of MSR),48 but it would also manifest itself with regard to the Area.49 Moreover, LOSC does not really focus on “access to” resources in the same way as the CBD/NP or the ITPGRFA do. Admittedly, the former does regulate such activities as fishing or MSR but it is difficult to frame them as “access to fish” or “access to information about the marine environment”, while applying the logics of the latter instruments.50 It should be clarified here that, in practice, “accessing MGRs” would likely be covered by the LOSC rules relating to MSR (which is regulated, though not defined in the Convention51), although sometimes, in academic literature and practice, a new term is employed in this context, namely that of “bioprospecting”.52 In any case, LOSC provisions E. Tsioumani, M. Buck, Unraveling the Nagoya Protocol. A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity (Brill 2014), 197–208, and literature quoted therein; COP-MOP decision of the Nagoya Protocol Parties, no 2/10 (2016), The need for and modalities of a global multilateral benefit-sharing mechanism (Article 10); and the most recent COP-MOP decision of the Nagoya Protocol Parties, doc. CBD/NP/MOP/3/L.13 (2018), Global multilateral benefit-sharing mechanism (Article 10). 47  See in particular arts. 89 (High Seas) and 137 (The Area) of LOSC. 48  Art. 87 of LOSC reads: “The high seas are open to all States…. It [the freedom of the high seas] comprises, inter alia, … freedom of scientific research …”. Therefore, “access to” MGRs in the high seas is, in essence, free, which, of course, does not mean that it is unrestricted or unregulated. General rules of LOSC, relating in particular to the MSR regime and environmental protection, do apply. See Part 5 of this Chapter below. 49  While the Area is subject to the CHM principle and, consequently, activities in the Area are organized and controlled, on behalf of the mankind as a whole, by the International Seabed Authority (ISA), its competences do not cover living resources and, hence, MGRs. See arts. 137, para. 2, and 157, as well as art. 133 of LOSC. See also the discussion in Part 5 of this Chapter. 50  Perhaps access to deep seabed mineral resources of the Area would come closest to a form of “regulated access” to a type of a resource with some form of benefit-sharing obligations linked to their utilization. 51  Part XII of LOSC, in particular arts. 238–244 and 256–257. 52  Usually, “bioprospecting” is explained as exploration of biodiversity for commercially valuable genetic resources, although, due to, inter alia, difficulty in identifying actual intent of a given research (which may fluctuate over time and change depending on various users), lack of agreed definition or regulation and considerable controversy behind this

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concern more “traditional” forms of utilizing resources and, arguably, are tailored for in situ ones, whereby the Convention’s rules depend on the type of activity and/or resource and maritime zone in question.53 Thirdly, it should be underlined that many of the controversies, especially those that are particularly relevant for this Chapter, come together in the debate on the definition of MGRs. Hence, this issue will be subject to a separate treatment in the following part. 4

Definition of MGRs

Given how long the BBNJ process has been going on, and taking into account the body of earlier legal texts and fora dealing with genetic resources, one might think that the question relating to the definition of “marine genetic resources” is easy and straightforward to answer. This is, however, not the case. First, it should be noted that neither LOSC,54 nor any other legally binding instrument, contain a definition of “marine genetic resources”. Nevertheless, international law contains similar definitions, namely those of “genetic resources” (CBD) and “plant genetic resources for food and agriculture” (ITPGRFA) that can and do provide a useful starting point.55 Second, it should be underlined, however, that Article 2 of the CBD states that “genetic resources” encompass “[g]enetic material of actual or potential value”. “Genetic material”, in turn, is defined as “[a]ny material of plant, animal, concept, it still remains difficult to grasp. See: Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1, paras. 45–51; J. Mossop, “Marine Bioprospecting”, in D. Rothwell, A.O. Elferink, K. Scott, T. Stephens (eds), The Oxford Handbook on the Law of the Sea (OUP 2015), 825–842. 53  Ch. Salpin, “The Law of the Sea: A before and after Nagoya”, in E. Morgera, M. Buck, E. Tsioumani (eds), The 2010 Nagoya Protocol on Access and Benefit-sharing in Perspective (Martinus Nijhoff Publishers 2013), 153. 54  It should be noted, though, that LOSC makes reference to “living resources”, “natural resources” or simply “resources”. See e.g. arts. 21, 49, 56, 61–62 and 77, section 2 of Part VII, and art. 133. Arguably, “marine genetic resources” would be a subset of marine “living resources” (similarly as “genetic resources” are a subset of “biological resources”, cf. definitions contained in the CBD, Art. 2). On the other hand, the narrow definition of “resources” of the Area under art. 133 of LOSC excludes non-mineral material from its scope. 55  This is not to suggest that this practice amounts to the existence of any definition of genetic resources that would amount to customary legal status. In fact, neither international law nor national practice is fully uniform and consistent in this regard. See: M.W. Tvedt, P.J. Schei, “The term ‘genetic resources’. Flexible and dynamic while providing legal certainty?”, in S. Oberthür, G.K. Rosendal (eds), supra note 37, 18; E. Morgera, E. Tsioumani, M. Buck, supra note 46, 59–60.

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microbial or other origin containing functional units of heredity”. Similar definitions of genetic resources and genetic material were adopted for the purposes of the ITPGRFA, although they are restricted to genetic material of plant origin only56 and to material that is of actual or potential value for food and agriculture.57 Third, the negotiations in the framework of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowl­edge and Folklore do refer to “genetic resources” as well. However, this work is still ongoing and the consolidated document presenting the status of the negotiations contains many alternatives.58 Overall, one could state that there are three main components of the modern, legal understanding of a “genetic resource”. First, a material needs to contain “functional units of heredity”. Second, a provenance of the material may be specified (e.g. “of plant origin” or “of plant, animal, microbial or other origin”). Third, the material needs to present “actual or potential value”. On this reading MGRs could simply be construed to mean “genetic material of marine [plant, animal or microbial] origin of actual or potential value”. On the one hand, these main components of the definition seem relatively straightforward and, since every cell of a living organism contains “functional units of heredity” (DNA), it would encompass all kingdoms of life, including the marine one. Thus, notwithstanding the taxonomic model, both macroand microorganisms are considered to be included in the definition.59 Also, 56  The ITPGRFA is also more specific on this point by stating that the material of plant origin “includes reproductive and vegetative propagating material”. Art. 2 of the ITPGRFA. 57  It should be noted that under the auspices of FAO’s Commission on Genetic Resources for Food and Agriculture (established in 1983 to deal with plant genetic resources; however its mandate was extended in 1995 to cover all components of biodiversity of relevance to food and agriculture), work is being carried out also with respect to animal genetic resources (AnGRs), forest genetic resources (FGRs) and aquatic genetic resources (AqGRs). While no legally binding instrument has been developed strictly with respect to these types of genetic resources, the FAO issues regular reports (recently: Second Report on the State of the World’s Animal Genetic Resources in 2015, State of the World’s Forest Genetic Resources in 2014, revised draft Report on the State of the World’s Aquatic Genetic Resources in 2018) with some working understanding or definitions of these resources. See: www.fao.org/cgrfa/en/ (accessed 13 January 2019). 58  Doc. WIPO/GRTKF/IC/36/4 (2018), Consolidated Document Relating to Intellectual Pro­ perty and Genetic Resources, available at: www.wipo.int/tk/en/igc/ (accessed 13 January 2019). The current text contains references to both “genetic resources” and “genetic material”. While the basic idea behind those definitions does not depart significantly from the ones adopted in the CBD, one can observe that differences exist as to, for example, whether to include the issue of “derivatives” in the definition of “genetic resources”. 59  U N Secretary-General, Oceans and the law of the sea, doc. A/62/66 (2007), paras. 40–41.

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the issue of value of these resources should not present major obstacles, especially since the “potential value” (whether commercial or scientific) of genetic resources broadly, or of MGRs specifically, is rather difficult to question.60 On the other hand, there are certain inherent problems embedded in this CBD-based definition of genetic resources which, arguably, continue to be present in the CBD/NP forum and manifest themselves in the BBNJ negotiations. First of all, it has been argued that at the inception of the negotiations leading to the adoption of the phrase “functional units of heredity” in the CBD, it was basically considered as synonymous to the current understanding of “genes” and the word “functional” was supposed to distinguish between useful, functional genes of the larger part of DNA and other parts of DNA with no known function (i.e. “junk” DNA). One can draw similar conclusions when analysing each of the words of the phrase “functional units of heredity” separately.61 This phrase, being at the core of the CBD/NP definitions, is also not recognized as clear and unambiguous across the biological sciences.62 Overall, one could conclude in this context that the concept “functional units of heredity” is rather flexible and, depending on the interpretation adopted, may be construed in a narrower or broader way. Given the importance of this phrase to understand what constitutes a genetic resource, this translates into some ambiguity what is the exact scope of benefit sharing, which, as was mentioned above, is linked to the utilization of genetic resources. One can identify at least two additional problems in this regard, with similar consequences for the ABS regime, as well as with certain “overflow effect” into the BBNJ negotiations. Namely, secondly, the NP refers not only to “genetic resources” but to a “derivative” as well that means “a naturally occurring biochemical compound resulting from the genetic expression or metabolism of biological or genetic resources, even if it does not contain functional units of

60  See e.g.: D. Leary, M. Vierros et al., “Marine genetic resources: A review of scientific and commercial interest”, (2009) 33 Marine Policy, 183–194; L. Glowka, F. Burhenne-Guilmin, H. Synge (eds), A Guide to the Convention on Biological Diversity (IUCN 1994), 21–22; The First Global Integrated Marine Assessment: World Ocean Assessment I, “Chapter 29: Use of Marine Genetic Resources”, 2–5 (available at: www.un.org/Depts/los/global_reporting/ WOA_RegProcess.htm (accessed 13 January 2019)). See also the preamble (first recital) to the CBD that lists various values of biological diversity and its components (that, besides, inter alia, ecological, scientific or economic value, includes intrinsic value as well). 61  M.W. Tvedt, P.J. Schei, supra note 55, 18–32. Counterarguments may be found in: B. Fedder, Marine Genetic Resources, Access and Benefit Sharing. Legal and biological perspectives (Routledge 2013), 34–37. 62  Concepts, terms, working definitions and sectoral approaches relating to the international regime on access and benefit-sharing, doc. UNEP/CBD/ABS/GTLE/1/INF/2 (2008), 3.

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heredity” (emphasis added).63 Importantly, which explains the heated debate on the question of the inclusion of this phrase into the NP, many, if not most, current benefits are in fact linked to derivatives, rather than the genetic resource per se.64 On a strict reading of this definition, though, access to derivatives, insofar as they do not contain “functional units of heredity”, would not constitute access to “genetic resources” and, hence, would not be covered by the ABS regime.65 To complicate matters even further, while “derivatives” are defined in the NP, this term is not used in its subsequent provisions. However, the benefit-sharing scheme is linked to benefits arising out of the “utilization of genetic resources”.66 And because the latter phrase encompasses the conduct of “research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology …” (emphasis added),67 one can argue that “derivatives”, through the application of the concepts of “utilization of genetic resources” and “biotechnology”, are nevertheless included in the scope of the ABS regime, as established by the NP.68 In any case, these ambiguities seem to, at least partially, explain why the subject of “derivatives” was brought into the BBNJ negotiations, as well as the lack of consensus with regard to the potential inclusion of this concept in the definition of MGRs. Finally, thirdly, yet another difficulty with regard to the definition of genetic resources relates to how they are utilized and the fact that their definitions refer to them in physical terms, such as “genetic material”. This begs the question whether the biological form where the functional units of heredity are captured actually matters. If yes, then information on the DNA, transferred for example to computer data, would arguably fall outside of the scope of the term “genetic resources”. On the other hand, this approach may place too big emphasis on the literal interpretation of the word “material”, while reducing the rationale and functionality of the whole ABS scheme, especially as against the modern advances in technology which increasingly operates in the digital rather than physical environment.69 Again, this problem, vividly discussed 63  64  65  66  67 

Art. 2(e) of NP. E. Morgera, E. Tsioumani, M. Buck, supra note 46, 65–67. B. Fedder, supra note 61, 64–65. Art. 15 of the CBD, Arts. 1 and 5 of the NP. Art. 2(c) of the NP. “Biotechnology” means “any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use” (emphasis added). See also Art. 2(d). 68  E. Morgera, E. Tsioumani, M. Buck, supra note 46, 67–68; T. Greiber, S.P. Moreno et al., supra note 37, 66–67. 69  M.W. Tvedt, P.J. Schei, supra note 55, 21. See also the reports by the CBD Secretariat and by S. Laird, R.P. Wynberg, quoted in infra note 70.

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in the CBD/NP framework since at least 2016 (referred to as “digital sequence information” (DSI)),70 found its way also into the BBNJ negotiations71 (there originally referred to as “in silico MGRs”, although both this terminology has been questioned, as well as, more importantly, the need of including this topic in the negotiations).72 To complement this picture, it needs to be underlined that within the BBNJ negotiations, apart from the question of MGRs (now, to differentiate from other types, referred to as “in situ MGRs”) and in silico MGRs, States also address ex situ MGRs, i.e. material (living organisms or physical samples from ABNJ) stored in ex situ collections (that is located not in ABNJ but in gene banks, labs or other facilities). Again, this would seem to follow, to a certain extent, the CBD/NP and ITPGRFA logics.73

70  N  P MOP decision 2/14 (2016), doc. CBD/NP/MOP/DEC/2/14, Digital sequence information on genetic resources; CBD COP decision XIII/16, doc. CBD/COP/DEC/XIII/16 (2016), Digital sequence information on genetic resources. On the basis of the latter, two major documents were prepared: CBD Secretariat, Synthesis of Views and Information on the Potential Implications of the Use of Digital Sequence Information on Genetic Resources for the Three Objectives of the Convention and the Objective of the Nagoya Protocol, doc. CBD/DSI/AHTEG/2018/1/2 (2018); and S. Laird, R.P. Wynberg, A Fact-Finding and Scoping Study on Digital Sequence Information on Genetic Resources in the Context of the Convention on Biological Diversity and the Nagoya Protocol, contained in doc. CBD/DSI/ AHTEG/2018/1/3 (2018). Finally, the recent CBD COP adopted decision 14/20, doc. CBD/ COP/DEC/14/20 (2018), Digital sequence information on genetic resources. It notes, inter alia, that “the generation of digital sequence information on genetic resources in most cases requires access to a genetic resource, although in some cases linking the digital sequence information to the genetic resource from which it was generated may be difficult” and establishes a science- and policy-based process on digital sequence information on genetic resources. Its results are to be considered at the CBD COP in 2020 and in the context of a post-2020 global biodiversity framework. 71  The question of in silico MGRs was already present at the 1st session of the PrepCom (in 2016). See: IISD, Summary of the First Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction: 28 March–8 April 2016, Earth Negotiations Bulletin, Vol. 25 (2016), No 106; and Chair’s overview of the first session of the Preparatory Committee, available at: www.un.org/depts/los/biodiversity/prepcom.htm (accessed 13 January 2019). 72  E.g. IISD, Summary of the First Session of the Intergovernmental Conference on an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: 4–17 September 2018, Earth Negotiations Bulletin, Vol. 25 (2018), No. 179. 73  See e.g. Arts. 2 and 9 of the CBD and the Annex to the NP (point 2e). It is to be noted that the CBD addresses this question in terms of “ex situ conservation” rather than a separate type of genetic resources or modalities of the ABS regime in this regard. Similarly also: Arts. 2 and 5.1(e) of the ITPGRFA. See, however: Arts. 11.5 and 15 of the ITPGRFA.

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To conclude this part of the discussion, one may remark that while there appears to be a general agreement among the participants in the BBNJ negotiations that the definition of MGRs (to be developed) should be based on existing, already adopted legal texts, in particular the terms enshrined in the CBD, they have also formulated a number of proposals aiming at narrowing or broadening the scope of such a definition. Thus, the question of definitions has become inextricably linked with the material scope of the LOSC IA or, at least, of the MGRs-section of the treaty. Risking certain oversimplification, one can state that these proposals arise out of two principal motivations. Firstly, there is concern that the BBNJ negotiations and their outcome may manipulate existing legal frameworks.74 This is in particular the case with the issue of fisheries75 and, to some extent, it relates also to a more “horizontal” dispute concerning the application of either the freedom of the high seas or the CHM principle to MGRs. Secondly, there is a conviction, which translates into a negotiating tactic as well, that the definition of MGRs constitutes a “gateway” to the access and benefit-sharing (ABS) regime in the LOSC IA. Namely, the broader the definition, the (potentially) broader the material scope of the future agreement and, hence, in particular, more benefits could accrue from the benefit-sharing scheme. This brings a significant new portion of challenges into the negotiations, in particular: (a) accessing (in situ) MGRs, material in ex situ collections and DSI information concerning MGRs (in silico) would require different legal solutions and institutional mechanisms (if any) and is related to different types of benefits that could arise, at different stages, from the utilization of MGRs; (b) these issues are addressed in other fora (in particular the CBD/NP) and, hence, the outcome of one “strain” of negotiations could be perceived as affecting the results of other deliberations.76 74  See supra note 30 and accompanying text (the issue of “not undermining”). 75  It is frequently proposed to differentiate between fish (harvested) as commodity and fish accessed for its genetic properties, whereby only the latter would be covered by the LOSC IA. See more broadly on this: K.J. Marciniak, New implementing agreement under UNCLOS: A threat or an opportunity for fisheries governance?, (2017) 84 Marine Policy, 321–322. 76  A situation which, on the on hand, brings new ideas to these negotiations and could potentially lead to a holistic treatment of genetic resources across different jurisdictions and frameworks, but, on the other hand, may lead to a certain deadlock as, for fear of prejudging e.g. the CBD/NP debate on DSI, parties to BBNJ negotiations will be hesitant to agree on any solution in this regard, and vice versa. The situation is further exasperated by the number of fora dealing with genetic resources and temporal aspects (the CBD/NP on DSI, WIPO and LOSC IA discussions are held more or less in parallel and expected, at this stage, to finalize around 2020).

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Legal Status of MGRs per se: Freedom of the High Seas or the CHM Principle

5.1 Introductory Comments As already underlined, the controversy over the legal status of MGRs has a long history, both in academic writings, as well as in practice, i.e. in actual positions of States participating in the BBNJ process. Before the inquiry into this subject matter, two preliminary issues should be addressed. Firstly, it needs to be underlined that the phrase “areas beyond national jurisdiction” (ABNJ) is a generic one and covers two, legally distinct, maritime zones: the high seas77 and the Area. Although States may not extend their sovereignty or sovereign rights into either of these maritime zones, the sets of legal rules that apply to them differ significantly. In particular, while the high seas are characterized by freedom (which encompasses, inter alia, freedom of navigation, fishing and scientific research),78 the Area and its resources are the common heritage of mankind on whose behalf the International Seabed Authority (ISA)79 acts. Importantly, activities in the Area shall be carried out for the benefit of mankind as a whole and the ISA shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism.80 Also, the MSR in the Area shall be carried out for the benefit of mankind as a whole.81 Finally, the ISA shall take measures relating to the transfer of technology and scientific knowledge relating to activities in the Area.82 It is submitted that there are, in particular, these institutional and benefit-sharing aspects of the CHM regime that differentiate it from the high seas regime and inform the debate concerning the legal status of MGRs in ABNJ.

77  Part VII of LOSC. The scope of application of this Part is (negatively) delineated in art. 86. The high seas are “reserved for peaceful purposes” (art. 88) and “no State may validly purport to subject any part of the high seas to its sovereignty” (art. 89). 78  L OSC, art. 87(1). These freedoms are subject to, inter alia, Part XIII (MSR) and shall be exercised by all States with due regard for the interests of other States in their exercise of high seas freedom, as well as with due regard for the rights under LOSC relating to activities in the Area (art. 87(2). 79  L OSC, arts. 136–137. The ISA is “the organization through which States Parties shall, in accordance with this Part, organize and control activities in the Area, particularly with a view to administering the resources of the Area” (emphasis added). Art. 157(1) of LOSC. 80  Art. 140 of LOSC. 81  Art. 143 of LOSC. See also art. 256. 82  Art. 144 of LOSC.

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The primary reason behind the difficulty in applying the CHM regime to MGRs boils down to the formulation of arts. 133 and 136 of LOSC. The former provision, through its definition of “resources”, restricts this term to mineral ones83 and, hence, excludes living organisms, including MGRs. Furthermore, the phrase “activities in the Area” is also narrowed down to mineral resources.84 The latter provision famously states that “[t]he Area and its resources are the common heritage of mankind” (emphasis added). Prima facie, one could arrive at the conclusion that, because of the narrow formulation of “resources” in art. 133, the CHM principle does not cover MGRs. However, it is sometimes submitted that due to the fact that art. 136 stipulates that both the Area and its resources are CHM, one could argue that the Area – i.e. “the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction”,85 including all resources within it – constitutes CHM, notwithstanding the definition of resources in art. 133(a). While the interpretation presented above is not the only one that has been formulated,86 in the author’s opinion it is potentially the most legally 83  Art. 133(a) of LOSC specifies that resources are “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules”. 84  Art. 1(1)(3) of LOSC specifies that “activities in the Area” means “all activities of exploration for, and exploitation of, the resources of the Area” (emphasis added). Hence, the above-quoted competences (art. 157 of LOSC) and benefit-sharing obligations (enshrined in e.g. arts. 140, 143 and 144 of LOSC) of the ISA are not applicable to MGRs. 85  Art. 1 para. 1(1) of LOSC. 86  Other arguments, formulated de lege lata or de lege ferenda, include emphasizing (a) the historical development of the CHM principle; (b) the role of UNGA Res. 2749 of 1970 (that speaks broadly of “resources”), as recalled in the LOSC preamble that reflects the desire to “develop” the principles of the said resolution; (c) the analogous treatment of the Area’s MGRs to the treatment of sedentary species under the continental shelf regime; (d) the need for an integrated ecosystem approach to the high seas and Area’s living resources. There is a vast literature on the subject but see e.g.: F. Millicay, “A Legal Regime for the Biodiversity of the Area”, in Myron H. Nordquist, Ronán Long, Tomas H. Heidar and John Norton Moore (eds), Law, Science & Ocean Management (Martinus Nijhoff Publishers, 2007), 739–850; F. Millicay, “The Common Heritage of Mankind: 21st Century Challenges of a Revolutionary Concept”, in L.d. Casillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea – Liber Amicorum Judge Hugo Caminos (BRILL Nijhoff, 2015), 272–295; J. Mossop, “Marine Genetic Resources and the Need for an Integrated Approach to the Seabed and the Water Column”, in A. de Paiva Toledo, V.J.M. Tassin (eds), supra note 1, 543–562; Frida M. Armas-Pfirter, “How Can Life in the Deep Sea Be Protected?”, (2009) 24 IJMCL, 281–307; A.G. Oude Elferink, “The Regime of the Area: Delineating the Scope of Application of the Common Heritage Principle and Freedom of the High Seas”, (2007) 22 IJMCL, 143–176; D. Leary, “Moving the Marine Genetic Resources Debate Forward: Some Reflections”, (2012) 27 IJMCL, 435–448;

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convincing and sound, and, due to spatial constraints, only this line of argumentation will be analysed in depth in the following part of this Chapter. Secondly, it is worth highlighting that, similarly as with regard to some other issues surrounding MGRs, the debate over the applicability of the CHM regime to genetic resources took place also with regard to plant genetic resources and, to some extent, during the negotiations of the CBD. The 1983 International Undertaking on Plant Genetic Resources87 recognized, inter alia, that “plant genetic resources are a heritage of mankind to be preserved, and to be freely available for use, for the benefit of present and future generations” (emphasis added). However, in 1991, i.e. in the run-up to the adoption of the CBD, the FAO decided that “the concept of mankind’s heritage, as applied in the International Undertaking on Plant Genetic Resources, is subject to the sovereignty of the states over their plant genetic resources …” (emphasis added).88 Early drafts preceding the adoption of the CBD qualified biological diversity (not only genetic resources) as CHM89 but this principle was swiftly substituted with a reference to “common concern of humankind”.90 The rationale behind the rejection of the CHM principle in these frameworks is rather linked to the fact that both the CBD and the ITPGRFA rely on the concept of sovereign rights of States over their natural resources which proved difficult to reconcile with “common heritage”, implying free access and, possibly, some form of internationalization of the resources.91 Such a rationale is not present in the BBNJ negotiations, L.A. de La Fayette, “A New Regime for the Conservation and Sustainable Use of Marine Biodiversity”, (2009) 24 IJMCL, 221–280; Y. Tanaka, “Reflections on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed Beyond the Limits of National Jurisdiction”, (2008) 39 ODIL, 129–149. 87  See supra note 11 and accompanying text. 88  FAO Resolution 3/91 (1991), Annex 3 to the International Undertaking on Plant Genetic Resources. The “heritage of mankind” concept was downplayed within the FAO even before 1991. See more on this: P.T. Stoll, “Access to GRs and Benefit Sharing – Underlying Concepts and the Idea of Justice”, in E.C. Kamau, G. Winter (eds), Genetic Resources, Traditional Knowledge & the Law. Solutions for Access & Benefit Sharing (Earthscan 2009), 6–7; S.B. Brush, “The Demise of ‘Common Heritage’ and Protection for Traditional Agri­ cultural Knowledge”, in Ch. McManis (ed.), Biodiversity & the Law. Intellectual Property, Biotechnology & Traditional Knowledge (Earthscan 2009), 297 et seq. 89  Reports of the Ad Hoc Working Group of Experts on Biological Diversity: doc. UNEP/Bio .Div.2/3 of 23.2.1990, para. 11, and doc. UNEP/Bio.Div.3/12 of 13.8.1990, para. 18 and Annex. 90  A.E. Boyle, “The Rio Convention on Biological Diversity”, in M. Bowman, C. Redgwell (eds), International Law and the Conservation of Biological Diversity (Kluwer 1996), 39–40. 91  See generally: J. Brunée, “Common Areas, Common Heritage, Common Concern”, in D. Bodansky, J. Brunée, E. Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2008), 562–567.

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in light of the fact that their geographical scope is limited to ABNJ. However, the examples of the ITPGRFA (and its predecessors) and the CBD show both the tendency and difficulty in applying certain broad, overarching principles to various types of resources. Analysis of the Legal Status: “The Area” and “Its Resources” Argument92 This part of the analysis is based on the means of interpretation enshrined in articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT).93 As already mentioned, the literal interpretation of article 136 of LOSC focuses on the wording of this provision which refers separately to both “the Area” and “its resources” and further underlines that they “are” the common heritage of mankind. Hence, the verb “are” should be understood as referring not only to “resources” (which, undoubtedly, includes only mineral resources) but also to the Area as such. Since the latter term means “the seabed and ocean floor and subsoil thereof”,94 it could include any kind of resources that can be found there (i.e. both non-living and living – thus MGRs as well).95 It would follow that the common heritage principle covers the Area, independently of the definition of resources. Also, when taking into account the object and purpose of LOSC, there is some support for this thesis. It is common to have reference to the preamble of a treaty in this context.96 Hence, it is important to recall that the Convention sets out, specifically with regard to the Area: “to develop the principles embodied in resolution 2749 (XXV) of 17 December 1970 in which the General Assembly of the United Nations solemnly declared inter alia that the area of the sea-bed and ocean floor and the subsoil thereof, beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole …” (emphasis added).97 5.2

92  For a fuller version of this analysis, see: K.J. Marciniak, “Marine Genetic Resources: Do They Form Part of the Common Heritage of Mankind Principle?”, supra note 1, 373–405. 93  Vienna Convention on the Law of Treaties, done at Vienna on 23.5.1969 (UNTS, Vol. 1155, 331). 94  L OSC, art. 1(1)(1). 95  See in particular: A.G. Oude Elferink, supra note 86, 147–154; L.A. de La Fayette, supra note 86, 268–270; F. Millicay, “A Legal Regime for the Biodiversity of the Area”, supra note 86, 804–812. 96  R. Gardiner, Treaty Interpretation (2nd edn, OUP 2015), 285–287. 97  L OSC, preamble.

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It should be stressed that the preamble refers here generally to “resources”, without narrowing the definition of this term, and in particular expresses the desire to “develop” the principles embodied in the famous 1970 UNGA resolution98 which declared the Area (using the term to be adopted later) and its resources as the CHM. On the other hand, this line of argumentation ignores the fact that, even accepting that the 1970 resolution may have had all kinds of resources in mind (i.e. not only mineral ones),99 its meaning was indeed developed and given more precise shape and form in Part XI of the Convention. The term “develop”100 does not necessarily mean, in this context, that the definition of resources and the material scope of application of the CHM principle couldn’t be given a more precise meaning. In fact, this is arguably what happened during the negotiations of the Convention. The Convention, in more than 50 articles (constituting thereby the most elaborate Part of LOSC), does undeniably develop the regime of the Area and the CHM principle, by providing, in particular, the main principles and “machinery” (i.e. the ISA) to administer the resources, as well as rules for the sharing of benefits. However, it does so with regard to a particular type of resources, i.e. mineral ones. One has to admit, however, that the aforementioned reading of the preamble of LOSC confirms (or at least does not contradict) the interpretation that both the Area, as well as its resources, are the CHM, and that the intention was to apply the same set of rules in these instances. When examining the context of article 136 of the Convention, one has to firstly note that Part XI contains provisions that refer only to “the Area”,101 only

98  U  NGA Res. 2749 (1970), Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction. 99  Assumption which itself is debatable as the UNGA resolution in question did refer, in its other parts, to “marine environment”, as well as to “natural resources” (emphasis added) and “flora and fauna of the marine environment”. Hence, one can argue that when the resolution referred both to living and non-living resources, it did employ a different term, that is “natural resources”. 100  Moreover, the genesis of the word “develop” in this context is a bit different, as it was intended to replace the earlier phrase “giving effect to”. The rationale was to put aside the discussion concerning the juridical status of the CHM principle and to imply that the Convention would only concentrate on the application of this principle, by establishing legal and institutional machinery to that aim. Report of the President on the work of the informal plenary meeting of the Conference on the preamble, doc. A/CONF.62/L.49/Add.1 (1980). 101  E.g. arts. 138, 141 and 148.

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to “resources”102 or to both of these terms.103 Therefore, one could find some support in the overall scheme of the Convention, especially its Part XI, that the Area, independently of its resources, constitutes the CHM and, hence, that any resources found in the Area should be considered as the CHM as well. In line with a literal interpretation, it would be necessary to reach a conclusion that selected provisions of Part XI, section 2, of LOSC, i.e. those that refer to the Area and not only to its “resources” or “activities in the Area”, would apply to MGRs. This would in particular be the case with regard to article 137(1),104 article 138,105 article 141106 and article 143(1) and (3), in conjunction with article 256,107 of the Convention. Additionally, articles 145 and 147, as they refer more broadly to “marine environment”, do relate to marine biodiversity as well, although they do so only indirectly due to the qualifying phrase “activities in the Area” in the chapeau of those provisions, which narrows their focus. Clearly, it is equally necessary to see which provisions would likely not apply to living resources due to the fact that their scope is restricted to “resources” or “activities in the Area”. This would, in particular, be the case with respect to 102  Art. 137(2). This provision mentions “the resources of the Area”. The word “Area” here qualifies only the location of the resources; it does not refer to the Area independently of its resources. 103  E.g. arts. 137(1) and 143(2). Art. 139 refers to “activities in the Area” which is a term that, by definition, refers to the (mineral) resources of the Area as well. 104  “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources …” (emphasis added). This provision, though, is hardly any different from the regulation of the high seas (see LOSC, art. 89). 105  This article is entitled “General conduct of States in relation to the Area” (emphasis added) and obliges that the conduct be “in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law …”. Here, the crucial part speaks of the necessity to apply the provisions of Part XI. The scope of application of these rules to MGRs, however, is exactly the bone of contention. 106  “The Area shall be open to use exclusively for peaceful purposes … without discrimination …” (emphasis added). Again, when compared with articles 87(1) and 88 of LOSC that deal with the high seas, there would seem to be little difference in the treatment of MGRs under article 141 of the Convention. The former provisions arguably do not refer explicitly to the non-discrimination principle, although article 87(1) does underline that there should be no difference when it comes to the access to the high seas, irrespective of whether a State is coastal or land-locked. 107  “Marine scientific research in the Area shall be carried out … for the benefit of mankind as a whole” and “States Parties shall promote international co-operation in marine scientific research in the Area” (emphasis added). The latter obligation encompasses, inter alia, encouraging the participation of personnel of different countries and ensuring that programmes are developed “for the benefit of developing States and technologically less developed States”.

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article 137(2),108 article 139,109 article 140,110 article 144,111 article 146112 and article 148113 of LOSC. However, it is not only the quantity of provisions that would not apply to MGRs but also their “quality” that matters. For example, there are important regulations in section 2 of Part XI, which deals with the principles governing the Area, that could not be usefully employed for the regulation of the legal status of living resources. Moreover, some of these provisions are the “crucial ones” for the very concept of the CHM principle. According to this analysis, it is only the rights to (mineral) resources that are vested in mankind as a whole and, consequently, ISA’s competence is restricted to these; it is only the activities in the Area that are to be carried out for the benefit of mankind as a whole; and, finally, the provisions on transfer of technology are restricted to “activities in the Area”. Therefore, if one was to accept the literal interpretation of article 136 of LOSC and consistently apply it with respect to the remainder of the provisions of Part XI, one would have to either conclude that the CHM principle was unfinished or that it is “uneven” in its treatment of resources; in other words, that it operates in a different manner with respect to “the Area” as such (including its living resources) than to (mineral) resources where it finds its “fuller” application. However, there is nothing in the Convention, including its preamble, as well as the preparatory work or the 1994 Part XI Implementing Agreement, that would support such a thesis. Moreover, article 311(6) of LOSC, insofar as it stipulates that “States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 …”, should be read as expressing the idea that the CHM principle 108  “All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act. These resources are not subject to alienation …” (emphasis added). 109  “States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part …” (emphasis added). 110  “Activities in the Area shall, as specifically provided for in this Part, be carried out for the benefit of mankind as a whole…. The Authority shall provide for the equitable sharing of financial and other economic benefits derived from activities in the Area …” (emphasis added). 111  “The Authority shall take measures in accordance with this Convention: (a) to acquire technology and scientific knowledge relating to activities in the Area; and (b) to promote and encourage the transfer to developing States of such technology and scientific knowledge …” (emphasis added). 112  “With respect to activities in the Area, necessary measures shall be taken to ensure effective protection of human life …” (emphasis added). 113  “The effective participation of developing States in activities in the Area shall be promoted …” (emphasis added).

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is a “finite construct”.114 One cannot assume lightly that the CHM principle is not complete or needs further elaboration with regard to e.g. some kinds of resources. On the basis of the preceding analysis, taking all arguments into account, it is submitted that the CHM principle, as reflected in LOSC, does not encompass MGRs. This is in particular supported by the context of article 136, especially the remainder of the provisions of Part XI of the Convention. This conclusion is still valid, even when tested against the subsequent practice as well as the travaux préparatoires of LOSC.115 6

Conclusions

It has been attempted above to present a number of issues relating to MGRs from a multifaceted perspective. Clearly, the general issue of genetic resources has been dealt with in a number of treaties and fora. However, some aspects remain contentious, even after the adoption of relevant treaties, such as in particular the CBD/NP. Not surprisingly, therefore, the ongoing BBNJ negotiations have to cope both with challenges relating exclusively to the legal framework of LOSC and those stemming from other discussions. On the one hand, one could consider that, at least from biological and ecosystem perspective, it would be opportune if genetic resources received uniform treatment across different jurisdictions and instruments. On the other hand, this task is legally (and politically116) difficult to achieve. While the “environmental nature” of these resources may be the same, the legal environment they are situated/accessed in is different. The scope of rights and obligations of States is significantly different depending on whether a given resource or activity takes place within or beyond national jurisdiction and, hence, transmitting into ABNJ challenges and solutions from instruments, such as the CBD/NP or the ITPGRFA, focusing on resources with national jurisdiction would not be a straightforward exercise. Also, there are arguably LOSC-specific problems. One of them is certainly the controversy over the legal status of MGRs, as it relates to quite unique 114  Although one has to note that this provision refers only to art. 136 and not the whole of Part XI of the Convention. On the genesis and meaning of art. 311(6), see also: M.H. Nordquist (ed.), United Nations Convention on the Law of the Sea 1982. A Commentary, vol v (Martinus Nijhoff Publishers, 1989), 241–242. 115  K.J. Marciniak, “Marine Genetic Resources: Do They Form Part of the Common Heritage of Mankind Principle?”, supra note 1, 395–402. 116  For example due to the potentially prejudging effect of negotiations under different instruments on each other. See supra note 76.

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(and characteristic for the law of the sea) sets of rules relating to the freedom of the high seas and to the fact that the Area and its resources are the CHM. Nevertheless, dealing with this legal conundrum does not seem to bring automatic and clear-cut solutions into the BBNJ process. There seems to be a certain gap between the current challenges debated with regard to the MGRs (such as their definitions; different types of these resources and modes of access thereto depending whether they are in situ, ex situ or in silico; and modalities of benefit sharing) and the discussion concerning the legal status of MGRs. While these principles do provide certain guidance as to how to approach certain issues, the novelty and specificity of the range of problems related to “marine genetic resources, including questions on the sharing of benefits”, will require equally innovative legal techniques. This is all the more so since LOSc focuses on (access to) resources in situ. Therefore, the LOSC IA, while implementing its “mother treaty”, depending on compromises reached during the negotiations, may need to break new ground by addressing new types of challenges, such as ex situ material of MGRs or DSI related to MGRs. Perhaps it is better to take a pragmatic approach and focus less on which legal principle will be developed but more on what concrete solutions are needed and acceptable. For example, the way LOSc treats MSR results seems to be rather favourable towards the broad sharing of information and knowledge about MGRs, notwithstanding the physical or digital form in which they may be captured.117 In light of the level of knowledge about marine biodiversity when the Convention was negotiated, one cannot expect it to perform miracles in that field.118 However, perhaps one could look forward to one being performed by its implementing agreement, which will be a product of the 21st century, negotiated with much greater knowledge regarding living marine resources and their utilization, as well as the marine environment and threats thereto. Note The author is Deputy Director, Legal and Treaty Department, Ministry of Foreign Affairs of the Republic of Poland. All views presented are those of the author only and shall not be attributed to any of the institutions he represents. 117  Art. 244 of LOSC calls upon States to make available “knowledge resulting from” MSR, as well as to promote “the flow of scientific data and information and the transfer of knowledge resulting from” MSR. 118  T. Scovazzi, “Is the UN Convention on the Law of the Sea the Legal Framework for All Activities in the Sea? The Case of Bioprospecting”, in D. Vidas (ed.), Law, Technology and Science for Oceans in Globalisation (Brill, 2010), 316.

Chapter 4

Marine Genetic Resources of Areas beyond National Jurisdiction and Intellectual Property Rights Fernanda Millicay 1

Introduction: Intellectual Property Rights in the BBNJ Context

Resolution 72/249 of the United Nations General Assembly (UNGA) convened an Intergovernmental Conference to address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). That resolution, in line with all previous UNGA resolutions on the issue, refers to “the package agreed in 2011”, indicating: Also decides that negotiations shall address the topics identified in the package agreed in 2011, namely, the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including protected areas, environmental impact assessments and capacity-building and the transfer of marine technology; The package, so defined by the expression “together and as a whole”, was agreed in 2011. It was conceived not only as a procedural tool to unlock a difficult negotiation, but also as a means to substantially address a complex set of issues that had proven to be difficult to solve unless tying them together. There was, in those days, a very divisive scenario with regard to the applicable principles of the United Nations Convention on the Law of the Sea (LOSC), defined as “the question of legal regime”, with developing countries advocating for the application of the common heritage of mankind (CHM) principle as enshrined in LOSC and developed countries not accepting an express reference to it. Since the beginning of the consideration of BBNJ at the General Assembly, marine genetic resources (MGRs) were at the core of discussions. Actually, the concern about the exploitation (or “use” in UNGA language) of the resources of areas beyond national jurisdiction (ABNJ) referred directly to MGRs. It is

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interesting to note that the intention of the proponents (the G77 and China) was to re-edit the regime for benefiting developing countries under Part XI of LOSC, but as there was a need to “freeze” discussions on the applicable principles, recourse was made to the expression “sharing of benefits” from the Convention on Biological Diversity (CBD) rather than to “benefit mankind as a whole”, clearly reminiscent of the common heritage of mankind principle. It must be noted that in CBD, “sharing of benefits” alludes to the user of genetic resources from the territory of another country sharing the benefits of the exploitation (use) with the country of origin, while in the context of BBNJ negotiations, benefit-sharing alludes to benefits derived from the exploitation of MGRs being shared with developing countries, most of which are not able to conduct MGR research on their own. That being said, “sharing of benefits” then allowed negotiators to avoid a legal and political confrontation on terminology, but it was (and is) generally admitted that exploitation of genetic resources of areas beyond national jurisdiction cannot be based on the “first come, first serve” rule. Another main aspect of this part of the package is that in-depth knowledge of intellectual property law is required in order to solve a law of the sea question, and sound law of the sea knowledge and flexibility in order to make them work in a sound manner. The international intellectual property regime – with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) at its core – presents two particular challenges that can also represent an opportunity. The first one is that, although being very developed, it has not yet faced the need to provide rules applicable to activities in the sea. Intellectual property rules are very much land-oriented, so negotiators are not constrained by a specific set of intellectual property rules applicable to products or processes derived from organisms of the sea. The second one resides in the objective of patents, which actually is the opposite of benefit-sharing. However, the TRIPS Agreement has faced important challenges that have led to limiting the rights provided by patents through amendments to it. In this context, limitations to patents on the basis of public health could provide an avenue worth exploring.1

1  See Article 31(f) of the TRIPS Agreement, allowing for a government’s authorization for the production of the patented product or process without the consent of the patent owner. It was adopted as a decision in 2003 and then as an amendment to the Agreement. The amendment, which entered into force in 2007, was motivated mainly by pharmaceuticals, but it can apply to patents in any field.

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Genetic Resources, Marine Scientific Research and “Bioprospecting”

The question of marine genetic resources of areas beyond national jurisdiction arose for the first time at the International Seabed Authority (ISA) in 20022 in relation with the regime for the Area. Hydrothermal vents of the seabed beyond national jurisdiction are the home of important biological communities that include bacteria, fungi, algae, sponges, cridaria, achinoderms, molluscs and tunicates.3 When LOSC was negotiated, it was assumed that the lack of sunlight did not allow any form of life at depths of more than 6,000 metres. The negotiations concentrated efforts in a regime for the exploitation of minerals, as the convening of the Third United Nations Conference on the Law of the Sea was triggered by interest raised by polymetallic nodules. However, in the late 1970s, hydrothermal vents and their associated biological communities were discovered. The chemical composition of hydrothermal vents feeds particular species of microorganisms through a process called “chemosynthesis”. Those microorganisms have raised the interest of biotechnological industries, as they are able to resist high temperature and pressure (the “extremophiles”). They also form the basis for broader biological communities of the vents. So, what are marine genetic resources? According to the CBD, “genetic material” means “any material of plant, animal, microbial or other origin containing functional units of heredity”, and “genetic resources” means “genetic material of actual or potential value”.4 Basically, genetic resources are components of biodiversity and basic raw material for the production of food, pharmaceuticals, seeds and cosmetics by biotechnological industries. The term “bioprospecting” is often used when referring to the collection and use of biological/genetic resources. But some caution is required in that regard. “Bioprospecting” usually means “investigative activities with a commercial purpose”. The definition of “utilization of genetic resources” given by the Nagoya Protocol on Access and Benefit Sharing to the Convention on Biological Diversity focuses also on the commercial purpose.5 2  See ISBA/8/A/5, para. 51. 3  Salpin, Charlotte, and Germani, Valentina, “Patenting of research results related to genetic resources from areas beyond national jurisdiction: the crossroads of the Law of the Sea and Intellectual Property Law”, (2007) 16(1) RECIEL, 12. 4  Convention on Biological Diversity, Article 2. 5  “Utilization of genetic resources” means to conduct research and development on the genetic and/or biochemical composition of genetic resources, including through the application of biotechnology as defined in Article 2 of the Convention” (Art. 2 (c)).

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However, collection and use of microorganisms take place in a very particular manner, which requires precision of terms. It is a frequent practice that scientific institutions carry out marine scientific research (MSR) thanks to public funding for scientific objectives and without any “commercial purpose”. But later, through some form of cooperation, they pass on samples to the biotechnological industry. Private companies then undertake “applied” research and development, that is to say, research aiming at assessing the commercial value of samples and developing products or processes. At this stage, private funding is provided by the same industry. As scientific institutions pass on samples or the results of research to private companies for their development of new industrial or pharmaceutical products, an activity characterized by the openness of results can derive in intellectual property rights over new products, and in some legislations over the organism itself.6 As marine scientific research is the main avenue for access to MGRs in areas beyond national jurisdiction,7 it has to be borne in mind that access to MGRs in MSR can lead to their economic exploitation (or “use”) and that the availability of the results of marine scientific research is limited by the effect of patents. The fact that exploitation (or “use”) of such biological resources is conducted mainly by the industry. but access to or collection of such resources does not take place through “bioprospecting” or “applied research” but through “pure” marine scientific research, needs to be duly taken into account in order to effectively address the question of use and, consequently, the sharing of benefits. The succession of linked events is as follows: access (usually through MSR) → sharing of samples or results (not illicit in light of the openness of MSR) → development of products → patenting of products/living organisms. All of them have to be effectively addressed by the new agreement. This entails addressing marine scientific research as the main means for access to biological resources in areas beyond national jurisdiction. It also entails focusing on the outcome of investigative activities rather than their purpose. Leaving MSR aside would result in not addressing the main avenue leading to the commercial exploitation of biological resources of areas beyond national jurisdiction. In addition, there is another important regulatory and also institutional aspect to be addressed with regard to MSR: the role of the International Seabed Authority (ISA). The ISA is the organization with competence regarding the 6  See Part 4 below. 7  Chiarolla, Claudio, “Intellectual property rights and benefit sharing from marine genetic resources in areas beyond national jurisdiction: current discussions and regulatory options”, (2014) 4(3) Queen Mary Journal of Intellectual Property, 171–194.

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seabed and subsoil beyond the limits of national jurisdiction. It is the trustee of mankind with regard to the preservation of the marine environment,8 and it is the trustee of mankind regarding MSR in the Area, the results of which are coordinated and disseminated by the Authority. 3

Uses and Applications of MGRs

The enormous potential represented by biodiversity shows that the use of biological organisms9 is the most immediate and lucrative activity of exploitation of the resources of the Area. As an example of such potential, it can be mentioned that the first commercial enzyme isolated from an extremophile is Taq polymerase, a molecule that helps amplify trace quantities of DNA.10 This molecule, originally obtained from the Yellowstone National Park, became the basis of a major scientific tool called “polymerase chain reaction”, which is used – among other things – for DNA fingerprinting. The market for Taq polymerase was of about USD 100 million at the beginning of the 2000s,11 and it is expected to exceed USD 389 million by 2024.12 Another very important use is in pharmaceuticals, where therapeutic enzymes extracted from natural products are a good part of the world market of enzymes, estimated to reach USD 13.79 billion by 2026.13 The enzymes of extremophiles are adaptable for many industrial processes involving high temperature, high pressure or extreme pH, which leads to biotechnology companies working in collaboration with research institutions aiming at developing products in respect of derivatives of extremophiles or hyperthermophiles of hydrothermal vents. For the last two decades, these organisms have been a matter of increasing interest from biotechnology due to their high potential for industrial (food 8  L OSC, article 145. 9  Here reference is not made to fisheries resources. The author is not of the view that the BBNJ agreement is the means to address the current challenges of capture fisheries. 10  https://www.promega.co.uk/products/pcr/taq-polymerase/. 11  Leary, David, “Bioprospecting and the genetic resources of hydrothermal vents on the high seas: what is the existing legal position, where are we heading and what are our options?”, (2004) 1 Macquarie Journal of International and Comparative Environmental Law. 12  https://www.marketwatch.com/press-release/dna-polymerase-market-size-is-projected -to-be-around-us-389-million-by-2024-2018-09-25. 13  https://www.globenewswire.com/news-release/2019/06/20/1872081/0/en/Global -Enzymes-Market-is-expected-to-reach-USD-13-79-billion-by-2026-Fior-Market-Research .html.

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processing, detergents and degradation of toxic wastes) and pharmaceutical applications. Although the biodiversity of the deep seabed has in general terms hardly been explored, several deep seabed organisms have already been used for commercial applications and therefore patented. Patent holders from ten developed countries hold 90% of registered patents relating to marine organisms, of which 70% are in the top three (see Table 4.1 below). The following are some of the findings to date: Archaeoglobus fulgidus was the first sulphur-metabolizing organism to be genome sequenced; it is a bacteria that contributes to deep subsurface oil well souring by iron sulphide, which corrodes iron and steel in oil and gas processing systems;14 the company New England BioLabs Inc. (United States) has commercialized many products derived from deep seabed organisms, like the Deep VentR® DNA Polymerase (obtained from a bacterium carrying polymerase genes), Pyrococcus sp (a hydrothermal vent species found at more than 2,000 meters deep and at temperatures of up to 104 degrees Celsius), and the Therminatora DNA Polymerase (obtained from a genetically modified form of the DNA polymerase of Thermococcus Sp);15 the company Sederma (France) has developed commercial skin protection products providing higher resistance to UV and heat exposure on the basis of enzymes isolated from the extremophile Thermus thermophilus, from the deep sea;16 Roche has used T. thermophilus and other thermophiles to develop improvements in the amplification of nucleic acids;17 there are patents for inventions based on bacteria collected by Aqua­ artis (France) originated in seabed environments;18 according to the National Oceanic and Atmospheric Administration of the United States, several compounds derived from deep seabed organisms are under study with the aim of developing anti-cancer products;19

14  Southampton Oceanography Centre, C. de Fontaubert, “The status of natural resources of the high-seas” (Cambridge, Gland: WWF, IUCN, 2001). 15  S. Arico, C. Salpin, “Bioprospecting of genetic resources of the deep seabed: scientific, legal and policy aspects” (Yokohama, UNU-IAS, 2005), 19–20. 16  Id. 17  Supra note 15 and https://www.sigmaaldrich.com/catalog/product/roche/11480022001? lang=en®ion=GB. 18  Supra note 15 and https://patents.justia.com/patent/20030194758. 19  https://oceanexplorer.noaa.gov/okeanos/edu/lessonplans/media/09microfriends.pdf.

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Table 4.1 Patent claims for a gene of marine origin with sourcea

Patent claims for a gene of marine origin with source Country

Marine organism patent claims

USA Germany Japan France United Kingdom Denmark Belgium Netherlands Switzerland Norway

199 149 128 34 33 24 17 13 11 9

a Arnaud-Haond, Sophie, Arrieta, Jesús M., Duarte, Carlos M., “Marine biodiversity and gene patents”, (2011) 331(6024) Science, 1521–1522.

Diversa Corporation (currently BASF) has patented a high number of discoveries involving genetic resources from deep seabed organisms, and products have already been commercialized, such as the PyrolaseTM 160 enzyme, used to reduce viscosity, and the ThermalAceTM DNA Polymerase, used in DNA sequencing;20 HyTest Ltd. (Finland) commercializes the Thermus aquaticus DNA polymerase Taq Red, which is used as an enzyme for molecular biology;21 Promega commercializes the thermostable Pfu Polymerase, which is used as an enzyme for molecular biology.22 As regards the impacts of human activity on the organisms of the deep seabed, once they start, deep seabed mining activities will represent a threat to biodiversity associated with those formations,23 as they imply disturbance to 20  See BASF.com. In 2007, Diversa and Celunol completed merger to create Verenium Corporation, which in turn was acquired by BASF in 2013. 21  https://shop.hytest.fi/product/thermus-aquaticus-dna-polymerase-recombinant. 22  https://www.promega.co.uk/Products/PCR/taq-polymerase/Pfu-DNA-Polymerase/ ?fq=pfu%20dna%20polymerase&catNum=M7741. 23  https://www.nature.com/articles/d41586-019-02242-y.

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living organisms and even the removal of those that are attached to mineral deposits. Mining for polymetallic sulfide deposits poses a great potential threat to biological communities of the vents, as it may imply physical damage to the vents. 4

Intellectual Property Rights and Patents

A patent is a set of proprietary or exclusive rights granted to an inventor for a period of time. It gives the patent holder the right to prevent third parties from exploiting the patented product or process, and consumers do not have the choice of purchasing it from other than the patent holder. Intellectual property rights are established in the 1994 TRIPS Agreement of the World Trade Organization (WTO). It provides that the patent owner has an exclusive right of exploitation of an invention for a minimum of 20 years,24 which entails the power to prevent others without the consent of the patentholder from making, using, offering for sale, selling or importing for sale the patented product or process.25 The use of the patented product or process by third parties is allowed by the patent holder in exchange for the payment of royalties. Patentable subject matter and the patenting of microorganisms are key aspects of the TRIPS Agreement for the BBNJ negotiations. The Agreement, in Article 27, sets forth three requirements for an invention to be patentable: 1) it must be novel (i.e. not publicly known); 2) it must entail an inventive step (i.e. a product of the mind); and 3) it must be capable of industrial application. All three requirements are cumulative. The Agreement allows States to exclude plants and animals from the scope of patentable inventions, but not microorganisms. That means MGRs can be patentable resources and many have already been patented. It must be noted, though, that the granting of patents according to the TRIPS Agreement rules is a matter left to the national laws of States, and there is a notable divergence among States with regards to the manner in which those rules are applied, in particular the three requirements for the patenting of living organisms. Many developed countries interpret that living organisms already existing in nature but whose existence was not known, as well as the isolation thereof, are patentable. However, most developing countries understand that the three requirements are applicable also to the patenting of microorganisms, i.e. that 24  A  rticle 33 of the TRIPS Agreement. 25  A  rticle 28 of the TRIPS Agreement.

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patentable microorganisms are those that are the product of genetic modification. This is the divergence “inventions vs. discovery”. For example, the European Directive on Biotechnological Inventions provides that “(b)iological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature”.26 The United States Patent Law provides that the term “invention” means “invention or discovery”27 and therefore patents can be granted for inventions or discoveries of “any new and useful”28 compositions of matter. A similar approach providing for full patentability of animals and plants without particular restrictions is followed by Canada, Japan and Singapore. Brazil’s law on intellectual property rights provides the non-patentability of “living beings, whole or in part, except for transgenic microorganisms meeting the three requirements of patentability – novelty, inventive step and industrial application”.29 The same law defines transgenic organisms as “organisms, except for plants or animals, whole or part, that due to direct human intervention in their genetic composition, express a characteristic that cannot be normally achieved by the species under natural conditions”.30 India’s Patents Act provides that the mere discovery of any living thing or non-living substance occurrence in nature is not an invention.31 Argentina’s Patent Law provides that living matter and substances preexisting in nature are not patentable.32 A similar approach is taken by the Andean Community.33 In this regard, the interpretation that is most loyal to the letter and spirit of the TRIPS Agreement is that the three requirements of patentable subject matter established in Article 27 of the Agreement are applicable to the patenting of microorganisms. Article 28 of the Agreement sheds clarity on this question, as it uses the term “make” when referring to one of the acts that the patent owner has the exclusive right to impede; the expression “to make” (French: “fabriquer”, Spanish: “fabricación”) implies that we are dealing with inventions that were “made” and not with organisms existing in nature. Therefore, the patentable microorganisms are no other than genetically modified organisms (GMOs). 26  98/44/EC, Article 3.2. 27  United States Code Title 35 – Patents, 35 U.S.C. 100. 28  United States Code Title 35 – Patents, 35 U.S.C. 101. 29  Industrial Property Law – Law Nº 9.279, of May 14, 1996, Article 18. 30  Id. 31  The Patents Act 1970 (as amended in June 2017), Chapter II, Section 3. 32  Law 24.481, Article 6. 33  Decision 486 of 2000 of the Andean Community (Bolivia, Colombia, Ecuador, Peru and Venezuela).

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Figure 4.1

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Uses proposed in the claims or description of 460 patents deposited at the International Patent Office and associated with genes isolated in marine organisms. Because each patent claim can belong to several categories, the sum is larger than 100%. Note: Arrieta, Jesús M., Arnaud-Haond, Sophie, Duarte, Carlos M., “What lies underneath: conserving the oceans’ genetic resources” (2010) 107(43) PNAS.

Nevertheless, the controversy exists, and it is directly relevant to the regulation of the use of microorganisms from areas beyond national jurisdiction. A large number of applications of patents related to microorganisms of the seabed – including extremophiles – have been registered in connection with the following industries: pharmaceutical, agriculture, aquaculture, food, cosmetics and bioremediation (see Figure 4.1). One important issue is how to ascertain the origin of the biological organisms. Existing patent applications do not usually provide information as to whether those organisms come from areas within or beyond national jurisdiction, limiting this information to general terms such as “a deep-sea hydrothermal vent” or “high seas”. So, the question of disclosure of origin comes into play. The intellectual property regime was not drawn up for its application to the sea, and therefore the use of geographical coordinates is not a requirement. However, general descriptions will not help in the BBNJ context, as the exact

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location of the resources will determine the applicable regime. This will be so even if negotiators decided to develop a unified regime applicable to both the Area and the high seas, as it will be necessary to establish whether the origin was within or beyond national jurisdiction. Importantly, science provides an easy and useful solution. It is standard practice in scientific research to indicate the origin of any sample with geographical coordinates. Thus, a possible concept for inclusion in the future BBNJ agreement is that patentability of inventions based on marine organisms of ABNJ depends on compliance with the requirement of declaration of origin, with geographical coordinates. Nevertheless, in order to surmount the challenge of verifying the exactness of the declared place of origin, it could be useful to consider the possibility of a juris tantum presumption: the origin will be ABNJ unless satisfactory evidence that the origin is within national jurisdiction is provided by the applicant of the patent. Finally, negotiators will have to face the argument that any regulation not ensuring absolute enjoyment of patents would impair innovation. It is usual to claim that the development of new products, in particular pharmaceuticals, entails high costs and risks. Research and development (R&D) is an issue that has been raised in intellectual property discussions, and it has made its way into the BBNJ negotiations. Some delegations have argued that sharing of benefits would generate uncertainty about economic gain, so that private companies would invest less in R&D, with the consequent impoverishment in the generation of new products, which would go against the interests of mankind. This is a myth commonly promoted by scholars associated with the pharmaceutical industry in developed countries. In this respect, account has to be taken of several factors: a) access to samples in deep seabed areas is carried out by scientific institutions with public funding; b) the first phase in research is carried out at universities and research institutions, with public and private funding; and c) in many countries, R&D costs create a 100 per cent immediate deduction from taxable profits. These factors have led some scholars to demonstrate that the cost of the average new drug is considerably lower than the costly one-fifth presented by some studies.34

34  Light, Donald W., and Wartburton, Rebecca, “Demythologizing the high costs of pharmaceutical research”, (2001) BioSocieties, 1–17; Gotzche, Peter C., “Developing a new drug costs less than $100m, not $900”, https://www.bmj.com/content/346/bmj.f398.abstract; Nohan, Timothy, “The make-believe billion”, https://slate.com/business/2011/03/drug -company-r-d-nowhere-near-1-billion.html.

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Provisions of LOSC Relevant to Intellectual Property Rights

There are provisions in LOSC governing some aspects of intellectual property. Part XIII of LOSC enshrines the regime for marine scientific research (MSR). Its provisions are applicable to all maritime areas, with the exception of the Area, as Part XI provides a specific or “qualified” regime for MSR. According to Part XIII, MSR is to be carried out exclusively for peaceful purposes, scientific methods used have to be compatible with LOSC, and MSR must not provoke an interference with other uses of the sea.35 In addition, research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources.36 All States have the right to conduct MSR on the high seas and in the Area, but while MSR is one of the freedoms of the high seas, Part XI subjects research activities in the Area to specific provisions and requirements.37 One of the most notable ones is that MSR in the Area has to benefit mankind, but there are also regulations regarding procedure. States Parties may carry out MSR in the Area, but they are expected to promote international cooperation by participating in international programmes and encouraging cooperation in MSR by personnel of different countries and of the Authority, by ensuring that programmes are developed through the Authority or other international organizations, as appropriate, for the benefit of developing States and technologically less developed States, and by effectively disseminating the results of research and analysis when available, through the Authority or other international channels.38 One of the main questions in this regard is whether LOSC provisions already exclude MGRs obtained from MSR on the high seas and in the Area from the scope of patentable material, therefore pointing at the legitimacy of patenting. The answer seems to be quite clear with respect to the Area, as MSR there is subject to the requirement of benefiting mankind as a whole, with the obligation to disseminate not only the results of research but also their analysis through the ISA or other channels. The requirement of benefiting mankind leads directly to “benefit-sharing” in BBNJ terminology. With regard to the high seas, article 241 of LOSC is applicable. It provides that “[m]arine scientific research activities shall not constitute the legal basis for any claim to any part of the marine environment or its resources.” This can be seen as a clear provision against the possibility of patenting living organisms, irrespective of whether that is a possibility under some national patent laws. 35  36  37  38 

L OSC, article 240. L OSC, article 241. L OSC, articles 256 and 257. L OSC, article 143.

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Conclusion: A sui generis Intellectual Property Rights Regime for BBNJ

If we examine them together, LOSC and the TRIPS Agreement do not provide a solution for benefit-sharing in the BBNJ context. However, there is no incompatibility per se between them. Thus, it is possible to draw up a specific regime applicable to the use, through patents, of products or processes derived from living organisms from areas beyond national jurisdiction. Such a regime should aim at not undermining incentives for R&D and at the same time preserving the need to avoid appropriation of resources of the marine environment and to disseminate results of MSR. This is not only possible, but also due, taking into account that one major type of products arising from marine organisms is medicines. Nothing in LOSC or in the TRIPS Agreement prevents the negotiators of the BBNJ agreement from drawing up specific intellectual property rules for MGRs of areas beyond national jurisdiction.39 The regulation of access to and benefit-sharing from marine organisms of ABNJ presents several challenges that can be surmounted with some wisdom. Some of them are challenges regarding the whole package: should a unified regime be drawn up applicable to both the high seas and the Area – with the risk of generating “interferences” with the norms of LOSC, clearly rooted in a zonal approach – or a distinctive regime for each maritime area according to geographical appurtenance of the resources?; how should the superjacent high seas be regulated with due respect for the rights of coastal States over their continental shelves?; which role will be attributed to the ISA, taking into account that it already has competences under LOSC (i.e. MSR in the Area, preservation of the marine environment)? Some other challenges are specific to the task of drawing up provisions on intellectual property and patents into a new agreement “under LOSC”: will the regime allow for patenting of products and processes only or will it allow for the patenting of living organisms existing in the marine environment? This issue, related to the manner in which the three 39  See Correa, Carlos, “Access to and benefit sharing of marine genetic resources beyond national jurisdiction: developing a new legally binding instrument”, South Centre, Research Paper 79, September 2017.

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requirements of the TRIPS Agreement on patentable subject matter are interpreted, might have an impact on the possibility of third parties to use living organisms if they are patented (appropriated) by a company; will the regime address genetic resources from fish? This would make even bigger the already significant challenge presented by capture fisheries in the BBNJ negotiations and would entail going into the realm of an activity (fisheries) where there is no legal vacuum, as it is already regulated by LOSC and other agreements; there is a need to devise some mechanism for the mandatory disclosure of origin of MGRs – with geographical coordinates; there is a need to consider monetary and non-monetary benefitsharing; here, the amendments to the TRIPS Agreement on compulsory licensing (Article 31) could provide some ideas that, together with other concepts such as gene pools of the sort of the International Treaty on Plant Genetic Resources for Food and Agriculture, could give a realistic possibility of sharing benefits with mankind. The provisions on intellectual property rights of the future regime do not need to be rooted in expressly declared principles of LOSC, but they need to follow some principled understanding shared by all. Whatever meaning negotiators may give to “benefit-sharing”, this part of the package requires specific rules to ensure that economic and non-economic benefits arising from the use of MGRs are not only enjoyed by few but are shared with mankind. This understanding is already shared by the vast majority of negotiators. In order to draw up a set of norms that is practicable and sustainable, provisions should be well balanced, fostering “pure” marine scientific research and R&D, while at the same time optimizing social welfare, not excluding the peoples of many countries from the benefits arising from patents for inventions based on resources that are believed by many members of the international community to be the common heritage of mankind. Note The author is Minister First Class at the Foreign Service of Argentina. The views expressed in this Chapter do not purport to represent the position of the Argentine Government.

Chapter 5

BBNJ and MGRs: Practical Solutions for Benefit-Sharing Natalie Y. Morris-Sharma You see, idealism detached from action is just a dream. But idealism allied with pragmatism, with rolling up your sleeves and making the world bend a bit, is very exciting. Bono

∵ 1

Introduction

Significant areas of our planet are beyond national jurisdiction. 40% of the planet’s surface1 is constituted of the water column of the high seas. A large part of the high seas is over the Area, that is, the seabed and ocean floor and subsoil thereof which are beyond the limits of national jurisdiction.2 That is not to say that these areas of our planet are beyond regulation; the United Nations Convention on the Law of the Sea (LOSC) stipulates the rights and obligations of States and international organizations in these spaces. However, it has been said that there are elements of the LOSC regime that could benefit from further elaboration.3 This is being taken up in the negotiations currently underway to conclude a new international legally binding instrument under 1  See the Global Environmental Facility, available online at: http://www.thegef.org/topics/ areas-beyond-national-jurisdiction (last accessed: 19 December 2018). 2  Article 1(1)(1), United Nations Convention on the Law of the Sea, which opened for signature on 10 December 1982, 1833 UNTS 396. 3  For example, see Tullio Scovazzi, “The negotiations for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction”, (2016) 70 Marine Policy, 188–191; David Freestone, “The Final Frontier: The Law of the Sea Convention and Areas beyond National Jurisdiction”, in Harry Scheiber and Moon Sang Kwon (eds.), Proceedings of the 2012 Law of the Sea Institute Conference on Securing the Ocean for the Next Generation (Leiden: Martinus Nijhoff, 2013), 1–15.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_007

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LOSC, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ).4 The first session of the Intergovernmental Conference (IGC) on an international legally binding instrument under LOSC on the conservation and sustainable use of BBNJ was held from 4 to 17 September 2018 at the United Nations Headquarters in New York.5 Delegations drew on the recommendations from the BBNJ Preparatory Committee (BBNJ Prep Com) that completed its work in 2017, and began substantive discussions based on the elements of the “package” of four topics agreed upon by the Ad Hoc Open-ended Informal Working Group on BBNJ in 2011, which are to be negotiated “together and as a whole”. The four topics are: marine genetic resources (MGRs), including questions on the sharing of benefits; measures such as area-based management tools, including marine protected areas; environmental impact assessments; and capacity-building and the transfer of marine technology.6 This Chapter focusses on the topic of MGRs, particularly questions on the sharing of benefits.7 Specifically, it examines possible practical solutions for benefit-sharing. After brief observations on the interests at play, this Chapter 4  United Nations General Assembly resolution 72/249, “International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity areas beyond national jurisdiction”, (24 December 2017) UN Doc. A/Res/72/249 (hereinafter, “UNGA res. 72/249”), convening an Intergovernmental Conference under the auspices of the United Nations, to consider the recommendations of the Preparatory Committee established under United Nations General Assembly resolution 69/292 of 19 June 2015 on the elements and to elaborate the text of an international legally binding instrument under LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, with a view to developing the instrument as soon as possible. 5  At the time of writing, only the first session of the IGC had taken place. 6  United Nations General Assembly resolution 69/292, “Development of an international legally binding instrument 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”, (19 June 2015) UN Doc. A/Res/69/292 (hereinafter, “UNGA res. 69/292”), operative paragraph 2. 7  Questions on access are only lightly touched upon. In UNGA res. 69/292, the General Assembly decided to develop an international legally binding instrument under LOSC on the conservation and sustainable use of BBNJ, and that the negotiations shall address the topics identified in the package agreed in 2011. In that package, the limb on MGRs refers to “marine genetic resources, including questions on the sharing of benefits”, and does not make reference to access to MGRs. Salpin similarly notes that the package “does not refer to any notion of equity or to issues related to access, simply mentioning ‘questions on the sharing of benefits’ …”, and explains this “may be explained by trade-offs in the negotiations, including in light of the freedom of scientific research and the desire not to unduly impede it”. See Charlotte Salpin, “Marine genetic resources of areas beyond national jurisdiction: Soul searching and the art of balance”, in Elsa Morgera and Kati Kulovesi (eds.), Research Handbook on International Law and Natural Resources, (Cheltenham: Edward Elgar Publishing, 2016) 411–431, at 428.

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will explore two means by which we could possibly bridge the divide between the Part VII (High Seas) camp and the Part XI (The Area) camp. This Chapter will, first, investigate Part XIII (Marine Scientific Research) as a possible middle-of-the-way approach on principle, followed by, second, exploring the modalities of what a benefit-sharing regime under the new BBNJ instrument could look like. In the concluding remarks, additional comments are offered on what else would help make for a “practical” solution. The overlaps between the topic of MGRs and the topics of area-based management tools, environmental impact assessments, and capacity-building and the transfer of marine technology, merit a separate analysis. 2

The Interests at Play

Commercial interest in the potential uses of MGRs in areas beyond national jurisdiction (ABNJ) has grown alongside technological improvements which, amongst others, have rendered the exploration of ABNJ more accessible, as well as expanded the extent of capabilities in bioinformatics and genomics.8 At this stage, it is important to appreciate that the commercial interest that we see at this point in time is one of current estimated potential, and does not necessarily promise commercial viability.9 Nevertheless, the prospective realization of the value of MGRs in ABNJ, and the potential attendant implications, have given rise to calls to give serious consideration to the sharing of benefits from MGRs in ABNJ.10

8  For example, see Jesus Arrieta, Sophie Arnaud-Haond, and Carlos Duarte, “What lies underneath: Conserving the oceans’ genetic resources”, (October 2010) 107(43) Proceed­ ings of the National Academy of Sciences, 18318–18324; and Claudio Chiarolla, “Intellectual property rights and benefit sharing from marine genetic resources in areas beyond national jurisdiction: current discussions and regulatory options”, (2014) 4 Queen Mary Journal of Intellectual Property, 171–194, at 178. For a different perspective, see David Leary, “Marine Genetic Resources in Areas beyond National Jurisdiction: Do We Need to Regulate Them in a New Agreement?”, (2018–19) 5 Maritime Safety and Security Law Journal, 22–47. 9  David Leary and Kim Juniper, “Addressing the marine genetic resources issue: Is the debate heading in the wrong direction?”, in Clive Schofield, Seokwoo Lee and Moon Sang Kwon (eds.), The Limits of Maritime Jurisdiction (Leiden: Martinus Nijhoff Publishers, 2014), 769–785, at 773; Ariannia Broggiato, et al., “Mare Geneticum: Balancing Governance of Marine Genetic Resources in International Waters”, (2019) 33 The International Journal of Marine and Coastal Law, 3–33, at 13 and 23. 10  For example, see Robert Blasiak, et al., “Corporate control and global governance of marine genetic resources”, (2018) 4(6) Science Advances: eaar5237, available online at: http:// advances.sciencemag.org/content/4/6/eaar5237.full (last accessed: 19 December 2018).

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There are two main questions in the benefit-sharing discussion. First, what is the point of departure in determining how benefits can be shared from the conservation and sustainable use of MGRs, without removing incentives for investment in research and development? The concern is that developing countries may lose to rich, developed countries in any race for MGRs,11 potentially even heralding the dawn of “bio-colonialism”.12 Parallels can be, and are, drawn to the 1960s, and Ambassador Arvid Pardo’s proposal to declare the Area and its resources the common heritage of mankind, which critically defined the approach in LOSC to the Area.13 At the same time, if the conditions for research and development are unduly compromised by a benefit-sharing regime, there could be an overall slowing down of the progress in knowledge that could contribute to the benefit of all mankind.14 Consequently, the BBNJ discussions have long been marked by a divide between delegations, typically from developed countries, in favour of the application of Part VII (High Seas) of LOSC to the access and benefit-sharing of MGRs, on the one hand; and delegations, typically from developing countries, in favour of the application of Part XI (The Area) of LOSC, on the other hand. This divide continued to be present during the first IGC meeting in September 2018. The arguments which have been used in support of each of the two streams of the debate have been expounded upon elsewhere.15 The two streams of the debate are likely to continue to run in parallel to each other without any foreseeable prospect of convergence. Second, in deciding the relevant principle for departure in determining how benefits can be shared, how can we ensure coherence with the existing LOSC regimes that apply to areas beyond national jurisdiction: Part XI (The Area) 11  I d., where Robert Blasiak, et al., share that their findings that out of the 38 million records of genetic sequences associated with patents they accessed, “[a]ctors located or headquartered in 20 countries registered 98% of all patent sequences, and 165 countries were unrepresented”. 12  The term “bio-colonialism” is used in Sean Murphy, “Biotechnology and International Law”, (2001) 42 Harvard International Law Journal, 47–139, at 66. 13  United Nations, General Assembly Official Records, 22nd Session, First Committee, 1515th Meeting, 1 November 1967, 1–15; United Nations, General Assembly Official Records, 22nd Session, First Committee, 1516th Meeting, 1 November 1967, 1–3. 14  Erica Wales, “Marine Genetic Resources: The Clash Between Patent Law and Marine Law”, (2015) 29 Natural Resources and Environment, 44–47, at 47. 15  For example, see Dire Tladi, “Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction: Towards an Implementing Agreement”, in Rosemary Rayfuse (ed.), Research Handbook of International Marine Environmental Law (Cheltenham: Edward Elgar, 2015), 259–271; Natalie Morris-Sharma, “Marine Genetic Resources in Areas beyond National Jurisdiction: Issues with, in and outside of UNCLOS”, (2017) 20 Max Planck Yearbook of United Nations Law, 71–97, at 78–83.

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and Part VII (High Seas)? Such coherence is important as the new BBNJ instrument is to be “under” LOSC.16 The risk is that pure and resolute adherence to either regime could result in functional incoherence. First, LOSC is a “network of spatial property rules”;17 when LOSC speaks to the conservation and management, exploration and exploitation of living and non-living resources, it is the physical space within which the resources reside that determines the sovereign rights and jurisdiction that States may assert and exercise over them. Accordingly, there is a presumption that the resources reside within a determinable physical space. Second, there is a presumption of consumptive value, that is, the value is realised when harvested, and the value is proportionate to the quantity harvested. Neither of these presumptions applies easily to MGRs.18 3

Calls for a Middle-of-the-Way Approach

3.1 Comments by States A number of delegations have hinted at the possibility of a middle-of-the-way approach, that could circumvent the need to determine whether it is the principle of the freedom of high seas or the common heritage of mankind that should apply to the access and benefit-sharing of MGRs in ABNJ.19 At various stages of the BBNJ discussions, delegations have suggested that a middle-of-the-way approach may involve an application of both or neither of the principles of the common heritage of mankind and the freedom of the high seas. At the first BBNJ Prep Com and at the first IGC, the Caribbean Community said that, while the common heritage of mankind principle was important, the common heritage of mankind principle and high seas freedoms were not mutually exclusive. This was echoed by Switzerland at the first IGC. At the third BBNJ Prep Com, South Africa called for the new instrument to mirror LOSC, a “mixed system”, where both the principle of the common heritage of mankind and the freedom of the high seas would apply. According to this 16  U  NGA res. 69/292 is entitled “Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea …” (emphasis added). 17  Peter Prows, “Tough Love: The Dramatic Rebirth and Looming Demise of UNCLOS Prop­ erty Law (and What Is to Be Done About It)”, (2006–2007) 42 Texas International Law Journal, 241–309, at 244. 18  N. Morris-Sharma, supra note 15, at 83–87. 19  For instance, in their written submission to the Chair of the BBNJ Prep Com in advance of the second session of the Prep Com, the European Union and its Member States advocated for “avoiding a legal debate on whether MGRs fall under Part VII or under Part XI”. At the first IGC, the European Union underscored that the negotiations do not depend on determining the legal status of MGRs.

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proposal, the common heritage of mankind principle would apply to living resources on the deep seabed in ABNJ, while freedom of the high seas would apply to living resources in the high seas, with provisions to deal with overlaps, for example, between the pelagic and benthic zones. Also, at the third Prep Com and at the first IGC, Indonesia reiterated its call for a sui generis regime, which they suggested could be one much like the exclusive economic zone regime. At the first IGC, Fiji similarly proposed a sui generis regime. For Fiji, such a regime would be based on the overarching objectives and principles of the new instrument. Bangladesh called for a “hybrid” solution, on the basis that neither the principle of the common heritage of mankind, nor high seas freedoms, are practically applicable. However, there has not been further elaboration of how such systems or regimes could be developed and applied. 3.2 The Promise Offered by Part XIII of LOSC Bearing in mind the clear intention for the new BBNJ instrument to be under LOSC, any principle upon which the question of MGRs and benefit-sharing is to be considered should first and foremost be drawn from LOSC itself. Inspiration for a way forward could be drawn from outside of the LOSC regime, but this is likely to present its own set of difficulties. For instance, it has been suggested that the principle of the common concern of humankind could be the alternative principle upon which the BBNJ regime could be designed.20 This author has suggested elsewhere that the common concern of humankind is unlikely to address the underlying interests at play, and so may not present a viable solution to the Part VII (High Seas)/Part XI (The Area) deadlock.21 The common concern of humankind was not accepted during the discussions at the Prep Com, and the Chair of the Prep Com had suggested that it would be useful to consider what other principles and approaches would be applicable.22 Within LOSC, Part XIII (Marine Scientific Research) may offer a possible way forward in the benefit-sharing discussion, as marine scientific research can take place in the context of both Part VII (High Seas) and Part XI (The Area) of LOSC. Article 87 of LOSC lists scientific research as one of the freedoms of the high seas. Articles 256 and 257, and article 143, of LOSC provide for the right of all States and competent international organizations to conduct 20  Angelica Bonfanti and Seline Trevisanut, “TRIPS on the High Seas: Intellectual Property Rights on Marine Genetic Resources”, (2011) 37 Brooklyn Journal of International Law, 187– 232, at 197. 21  N. Morris-Sharma, supra note 15, at 90. 22  Preparatory Committee established by UNGA res. 69/292, Chair’s overview of the third session of the Preparatory Committee, available online at: http://www.un.org/depts/los/ biodiversity/prepcom_files/Chair_Overview.pdf (last accessed: 19 December 2018).

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marine scientific research in ABNJ, including in the Area. By focussing on the nature of the activity (marine scientific research), rather than the space from which benefits for sharing may be derived (for example, the high seas or the Area), we are able to work with and within the spatial property rules set out by LOSC, as well as the realities of MGRs. Under Part XIII, all States and competent international organizations have the right to conduct marine scientific research, subject to the rights and duties of other States as provided for in LOSC.23 There is an obligation on States and competent international organizations to cooperate, including to create favourable conditions for the conduct of marine scientific research and to integrate the efforts of scientists.24 Such cooperation must be on the basis of mutual benefit.25 Additionally, States and competent international organizations must engage in information-sharing, prospectively, by providing information on “proposed major programmes” and their objectives, as well as following the conduct of research, by providing information on knowledge resulting from marine scientific research.26 The stated purpose is twofold. First, to “actively promote the flow of scientific data and information and the transfer of knowledge resulting from marine scientific research, especially to developing States”.27 Second, to strengthen the “autonomous marine scientific research capabilities of developing States through, inter alia, programmes to provide adequate education and training of their technical and scientific personnel”.28 These elements feed very nicely into the desire for the sharing of benefits from the exploration and exploitation of MGRs, particularly in respect of non-monetary benefits. Additionally, the provisions in Part XIII (Marine Scientific Research) remind us that marine scientific research, albeit one of the freedoms of the high seas, is not an unbridled freedom; free does not mean unregulated. The right to conduct marine scientific research is subject to the rights and duties of other States provided for in LOSC,29 and marine scientific research must be developed and conducted in accordance with LOSC.30 This includes the principle 23  24  25  26  27  28 

Article 238 LOSC. Article 243 LOSC. Article 242(1) LOSC. Article 244(1) LOSC. Article 244(2) LOSC. Id. In the context of the Area, the coordination and dissemination of the results of marine scientific research and analysis in the Area, when available, shall be undertaken by the International Seabed Authority (ISA), see article 143 of LOSC. 29  Article 238 LOSC. 30  Article 239 LOSC. Also see articles 256 and 257 of LOSC, where the right of States and competent international organizations to conduct marine scientific research in the water

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of due regard.31 Failure to ensure that marine scientific research is conducted in accordance with LOSC will lead to international responsibility, and liability, under LOSC, and could require the provision of compensation for resulting damage.32 Further, save for the provisions on the coastal State’s exercise of its consent regarding the conduct of marine scientific research activities in its exclusive economic zone or continental shelf,33 the provisions in Part XIII are covered by LOSC’s compulsory dispute settlement system.34 These aspects could be particularly useful to recall in any discussions, particularly on a system for monitoring and compliance. There is much promise in having Part XIII (Marine Scientific Research) ground the initial approach to the question of MGRs, including questions on the sharing of benefits. With this in mind, two issues in particular would need to be addressed. 3.2.1 Bioprospecting and Marine Scientific Research Should bioprospecting, or marine scientific research with a commercial intent, be considered as marine scientific research as understood in LOSC? Or is bioprospecting a form of resource exploitation? Views diverge. LOSC itself does not provide a definition for “marine scientific research”. That said, the issue of the relationship between scientific research and bioprospecting is neither new nor is it unique to LOSC. The term “marine scientific research” is not defined in LOSC because the negotiators were unable to reach a consensus on whether, and if so how, to distinguish between “pure” or “fundamental” scientific research on the one hand, and “applied” scientific research on the other hand.35 The negotiations relating to the Convention on Biological

column beyond the limits of the exclusive economic zone and in the Area, must be “in conformity” with LOSC and with the provisions of Part XI, respectively. 31  Article 87(2) LOSC, which states that the high seas freedoms “shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.” 32  Article 263 LOSC. 33  Article 297(2) LOSC, which provides that, for any dispute arising out of “(i) the exercise by the coastal State of a right or discretion in accordance with article 246; or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253”, a coastal State shall not be obliged to accept the submission of such dispute to the compulsory dispute settlement procedures under LOSC. 34  Article 264 LOSC. 35  Myron Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary. Articles 192–278, vol. IV (Dordrecht: Martinus Nijhoff, 1991), at 433–450.

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Diversity (CBD)36 have also had to struggle with the blurry distinction between research for commercial and non-commercial purposes.37 One argument that has been proffered is that marine scientific research, because it has to be carried out for the benefit of all mankind, cannot accommodate scientific research with a commercial intent that is rent-seeking in its objective, such research being better treated as resource exploitation instead.38 On the other hand, it has been suggested that bioprospecting should fall within the regime of marine scientific research. One explanation in support of this view draws on how the regime of marine scientific research has been applied in the context of the exclusive economic zone and the continental shelf, where the treatment of coastal State consent depends on whether marine scientific research is for the benefit of all mankind or is of direct significance for the exploration and exploitation of natural resources, suggesting therefore that bioprospecting is a subset of marine scientific research.39 The relationship between bioprospecting and marine scientific research will likely need to be determined by practical realities. One commentator has declared that “[i]t is impossible to establish a clear-cut distinction” between the two.40 Indeed, the initial intent of a research endeavour may be to increase human knowledge, but the endeavour may lead to the discovery of commercially valuable information.41 That “data acquired from scientific investigations could be used for commercial or other purposes” was already recognized during the LOSC negotiations,42 and has also been acknowledged by the United

36  Convention on Biological Diversity, which opened for signature on 5 January 1992, 1760 UNTS 79. 37  Catherine Aubertin and Geoffrey Filoche, “The Nagoya Protocol on the use of genetic resources: one embodiment of an endless discussion”, (2011) 2(1) Sustenabilidade em Debate – Brasilia 51–64, at 55. 38  Drawing on the comment of Paul Gragl, “Marine Scientific Research”, in David Attard, Malgosia Fitzmaurice, Norman Martinez (eds.), The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea (Oxford: Oxford University Press, 2014), 396– 430, at 406, that article 246(5) of LOSC should include bioprospecting, in view of the fact that “bioprospecting is not conducted in order to increase the general scientific knowledge, but to commercial ends”. 39  Tullio Scovazzi, “The Concept of Common Heritage of Mankind and the Genetic Resources of the Seabed beyond the Limits of National Jurisdiction”, (2007) 14(25) Agenda Internacional, 11–24, at 18. 40  Id. 41  Simone Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (Cheltenham: Edward Elgar Publishing, 2012), at 65. 42  M. Nordquist, supra note 35, at 433.

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Nations Secretary-General.43 A clear dichotomy between bioprospecting and “pure” marine scientific research would be difficult to sustain, and “akin to drawing a line in the sand”.44 It remains to be seen if a consensus view on the relationship between bioprospecting and marine scientific research can be reached in the BBNJ negotiations. If yes, and if bioprospecting is considered as a subset of marine scientific research as understood in LOSC, then Part XIII (Marine Scientific Research) would remain in play as a viable way forward in the benefit-sharing discussions. 3.2.2 Marine Scientific Research and Intellectual Property Rights Would an application of Part XIII (Marine Scientific Research) prevent intellectual property right claims over MGRs? LOSC stipulates that marine scientific research activities shall not constitute the legal basis for any claim over the marine environment or its resources.45 Some have suggested that, amongst others, the proscription against claims “would seem to be incompatible with … bioprospecting”, “because of the ensuing confidentiality of research results and the patenting of any discoveries”.46 Others have pointed out that, since patents can only be granted for new and useful inventions, and not for naturally occurring elements or discoveries, a patent cannot be considered to be a claim over the marine environment or its resources.47 Even in the debate over the scope of the exception for plants and animals and essentially biological processes in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement),48 whilst discussions continue to be had over the 43  United Nations General Assembly, Oceans and the Law of the Sea: Report of the SecretaryGeneral: Addendum A/60/63/Add.1 (15 July 2005), para. 202. 44  N. Morris-Sharma, supra note 15, 92. 45  Article 241 LOSC. Claims of sovereignty over the high seas would also be invalid (see article 89 LOSC), and claims over, or appropriations of any part of, the Area or its resources are similarly prohibited by LOSC (see article 137(1)). 46  Louise Angelique de la Fayette, “A New Regime for the Conservation and Sustainable Use of Marine Biodiversity and Genetic Resources beyond the Limits of National Jurisdiction”, (2009) 24 International Journal of Marine and Coastal Law 221, at 271; A. Bonfanti and S. Trevisanut, supra note 20, at 305. 47  Eve Heafey, “Access and Benefit Sharing of Marine Genetic Resources from Areas beyond National Jurisdiction: Intellectual Property – Friend, Not Foe”, (2014) 14 Chicago Journal of International Law, 493–523, at 510. 48  Article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, which opened for signature on 15 April 1994, 1869 UNTS 299.

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precise scope of the categories and how they are to be applied in specific cases, the guiding principle remains that there need to be subsequent steps adding value to the final result before such processes (which are not the subject of an exception) can attract patent protection.49 Further, in the negotiations that led to article 241 of LOSC, the concern was over “resource-oriented research”, specifically, consumptive resource exploitation, and the concomitant extension of sovereign rights into broader maritime spaces.50 With MGRs, however, exploitation is not consumptive in nature, and there is no extension of sovereign rights over a geographical space as a result of intellectual property protection. In fact, patent protection is jurisdiction specific, in that the rights of a patent holder are determined by the laws of the State in which the patent is granted, and the rights granted by a patent typically have no effect beyond the territory of the State that granted the patent. On balance, the more compelling argument is that the application of the intellectual property rights regime is not inconsistent with LOSC. In the BBNJ negotiations thus far, including at the first IGC, views have been divided over whether or not the negotiations should consider the question of intellectual property rights, or whether any discussion on intellectual property rights should be excluded since they are already being addressed by the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). Regardless of the position that is ultimately arrived at in the negotiations in this regard, the fact remains that there is ongoing work under WIPO and the WTO, including in the context of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. There is little value in revisiting the same debates in the context of the BBNJ negotiations. The finer details of the ongoing debates over the scope and other aspects of patents and other relevant intellectual property rights could be left to these other forums, where the appropriate expertise resides and where the discussions have been long underway, in the knowledge that the LOSC regime could accommodate their eventual outcomes.

49   Dan Leskien and Michael Flitner, “Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System”, in Jan Engels (ed.), Issues in Genetic Resources (No. 6) (Rome: International Plant Genetic Resources Institute – IPGRI, 1997), 18–22. The exceptions to patentability in Article 27(2) of the TRIPS Agreement could also apply. It must be acknowledged that Article 27 of the TRIPS Agreement is the source of much controversy. 50  M. Nordquist, supra note 35, at 435.

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Focusing on Modalities

Aside from the question of the undergirding principle, realistically, what could the benefit-sharing regime or system to be established by the new BBNJ instrument look like? It is not too early to consider the modalities of such a regime or system. In fact, this has been separately proposed as another way to get around the Part VII (High Seas) / Part XI (The Area) deadlock; instead of seeking to determine the legal status of MGRs in ABNJ, it has been suggested that the negotiators could simply focus on the modalities of such a regime, that is, on how the regime could work. 4.1 A Clearing House Mechanism An idea that has shown the promise of engendering consensus is that of a global clearing house mechanism. The term “clearing house” has its roots in the banking industry. More recently, the concept has attracted broader application. The term is now used to describe “almost any mechanism whereby providers and users of goods, services and/or information are matched.”51 In a report to the fourth BBNJ Prep Com,52 the Intergovernmental Oceano­ graphic Commission (IOC) identified four broad attributes of a possible clearing house mechanism. First, a “hub and spoke” network model, coordinating linking national or regional nodes. Second, a dynamic network system of people (scientists and other stakeholders) who can “provide input … in an agile way”. Third, “a system that would promote engagement between providers and users of data and knowledge”, such as by designating focal points at national or regional levels, to provide input on matters such as specific needs and to provide information on matters such as opportunities for participation in research cruises. Fourth, a system that is cost effective and does not duplicate other mechanisms. These are aspects that are similar to those that have also been raised by some delegations in their interventions. For instance, delegations have suggested 51  Esther van Zimmeren, Birgit Verbeure, Gert Mattijs, and Geertrui Van Overwalle, “A clearing house for diagnostic testing: the solution to ensure access to and use of patented genetic inventions?”, (May 2006) 84(5) Bulletin of the World Health Organization, 352–359, at 353. 52  Intergovernmental Oceanographic Commission, Ad Hoc Report of the Intergovernmental Oceanographic Commission (IOC) of UNESCO to 4th session of the Preparatory Committee on Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Prepcom) (New York, 10–21 July 2017): IOC strategy on activities in relation to capacity development and transfer of marine technology, available online at: https://unesdoc.unesco.org/ark:/48223/ pf0000256190/ (last accessed: 19 December 2018), at 26–27.

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that a clearing house mechanism could serve as a central repository for different uses, such as access to information and results of research on MGRs, as well as matching needs for technological and scientific cooperation and training to available resources and opportunities.53 Such a mechanism should be connected to other databases such as global and regional databases like the IOC’s Ocean Biogeographic Information System (OBIS)54 and the Clearing House database of the CBD,55 to avoid duplication. Additionally, for such a mechanism to work well, some delegations have called for the relevant information to be included in a timely fashion. Relevant to the question of cost-effectiveness, it has also been suggested that the mechanism be accessible online, and that a standard format for information presentation be prescribed. The abovementioned broad attributes will need to be filled out in further detail during the course of the discussions, if pursued. Three issues are worth highlighting in particular. 4.1.1

What Type of Information and Knowledge Could Be Shared via a Clearing House Mechanism? There are two categories of information and knowledge that should be included in the eventual clearing house mechanism: information relevant to training and capacity-building; and scientific information and data sharing. Information relevant to training and capacity-building could include information on proposed major programmes and their objectives, as required under Part XIII (Marine Scientific Research).56 In this way, the clearing house mechanism could also serve the functions of, for instance, needs-matching for purposes of capacity-building and the transfer of marine technology. Scientific information and data could include ex situ samples of MGRs and raw data from research undertaken into MGRs in ABNJ. If the BBNJ negotiators are able to agree to it, scientific information and data could also include genetic data or digital sequence information (or MGRs in silico), and information on derivatives. Having scientific information and data available through a clearing house mechanism could promote cooperation amongst scientists 53  The clearing house mechanism could also have other uses. For instance, at the first IGC, the G77+China called for a central repository for baseline data, including online compilations of best practices and environmental impact assessment reports. 54  The United Nations Educational, Scientific and Cultural Organization (UNESCO) Inter­ governmental Oceanographic Commission’s Ocean Biogeographic Information System (OBIS), available online at: http://iobis.org/ (last accessed: 19 December 2018). 55  C BD Clearing House database, available online at: https://absch.cbd.int/ (last accessed: 19 December 2018). 56  Article 244 LOSC.

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and researchers, and could promote the flow and transfer of information on knowledge resulting from marine scientific research, in keeping with Part XIII (Marine Scientific Research).57 The clearing house mechanism could also provide a point of access, either directly or via connections with other networks and databases, to basic information regarding related patents or other claims or intellectual property rights connected to the MGRs concerned. The contours, however, of what scientific information or data should be included for sharing in a clearing house mechanism, are not uncontentious. Already in the BBNJ negotiations, divergent views have been expressed as to whether or not MGRs under the negotiations should include derivatives and digital sequence information. The issue of derivatives was one that divided delegations in the negotiations for the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity (Nagoya Protocol).58,59 Currently, in the context of discussions on the Nagoya Protocol, one of the debates is over whether or not digital sequence information is counted as a genetic resource and, hence, falls within the scope of the Nagoya Protocol. Broadly, concerns have been expressed that not treating digital sequence information as a genetic resource would undermine the access and benefit-sharing regime established by the Nagoya Protocol. On the other hand, the practical difficulties with treating digital sequence information as a genetic resource have been pointed out. For instance, with the use of multiple, even thousands, of genetic sequences to develop a product, it would be difficult to determine the origins of the digital sequence information and to attribute the relative values to each sequence. Further, there are concerns that bringing digital sequence information within the scope of the Nagoya Protocol would render such information no longer freely available and useable, and this would undermine research and development and scientific progress.60 57  Id. 58  Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, UN Doc UNEP/CBD/COP/DEC/X1, which opened for signature on 2 February 2011. 59  Ryo Kohsaka, “The Negotiating History of the Nagoya Protocol on ABS: Perspective from Japan”, (2012) 9(1) The Journal of Intellectual Property Association of Japan, 56–66, at 59. 60  C BD, Ad Hoc Technical Expert Group on Digital Sequence Information on Genetic Resources, Fact-Finding and Scoping Study on Digital Sequence Information on Genetic Resources in the Context of the Convention on Biological Diversity and the Nagoya Protocol, CBD/DSI/AHTEG/2018/1/3 (12 January 2018), available online at: https://www.cbd.int/ doc/c/b39f/4faf/7668900c8539215e7c7710fe/dsi-ahteg-2018-01-03-en.pdf/ (last accessed: 19 December 2018).

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A similar debate is evolving in the BBNJ negotiations. In this and other respects, lessons should be derived from the Nagoya Protocol experience in developing the regime in the BBNJ context. 4.1.2

How Could the Sharing of Information and Knowledge via a Clearing House Mechanism Be Structured? There are a number of aspects to how the sharing of information and knowledge via a clearing house mechanism could be structured. In terms of who could contribute to populating the mechanism with the relevant information, and how this could be done, information could be contributed by States and persons such as industry players, scientists, researchers, and academics. Information could be contributed on a voluntary basis. In addition, it could be useful to introduce mandatory facets, whilst considering the related concerns and possible impacts on access and compliance. The information in the clearing house mechanism could be available for all States to draw from, with particular focus on enabling developing States to build their capacities.61 Some information may be accessed and utilized on a royalty-free, open-access basis, while other information could be accessed and utilized in exchange for the payment of royalties, either through standardized licenses or through bilateral negotiations for licensing rights. These options draw from the five categories of clearing houses identified by van Zimmeren et al.62 Although developed in the context of diagnostic testing, the categorization by van Zimmeren et al. offers a potentially useful matrix for us to consider the possibilities for what a system to promote engagement could look like in the context of BBNJ. Based on the van Zimmeren matrix, a clearing house mechanism could be any or all of: (i) an information clearing house – that provides access to basic information related to the technology, the patents, or claims covering these technologies; (ii) a technology exchange clearing house – that lists technologies available through licensing, so that there is a platform for technology 61  There has been some discussion in the BBNJ negotiations about the potential beneficiaries of a new benefit-sharing regime. Some delegations have suggested that all Parties to the new BBNJ instrument should be beneficiaries, with a subset of these delegations being open to specifying developing and least developed countries in particular. Other delegations have suggested that only developing States should be beneficiaries. Amongst the category of developing States as beneficiaries, still other delegations have suggested that certain categories of developing States should be given particular emphasis, such as small island developing States (SIDS), landlocked developing countries, geographically disadvantaged States, and African States. It has also been suggested that future generations be identified as a beneficiary. 62  E. van Zimmeren et al., supra note 51.

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owners and users to enter into bilateral negotiations; (iii) an open-access clearing house – that offers access and use on a royalty-free open-access basis; (iv) a standardized licenses clearing house – that offers access and use via standardized licenses; and (v) a royalty collection clearing house – that comprises all the functions of the information clearing house, the technology exchange clearing house and the standardized licensing scheme, and offers the additional function of collecting cash licence fees from users on behalf of patent holders in return for the access to and use of the inventions. In the BBNJ context, a clearing-house mechanism could be any or all of: (i) an information clearing house – connecting existing databases of information and results of research on MGRs, and possibly also providing information on related patents or other claims or intellectual property rights connected to the MGRs concerned; (ii) a scientific endeavour clearing house – that provides information on proposed major marine scientific research programmes and their objectives, or programmes to provide education and training of technical and scientific personnel, to promote international cooperation in the conduct of marine scientific research in line with Part XIII (Marine Scientific Research) of LOSC; (iii) an open-access clearing house – that offers access and use of scientific information and data, such as ex situ sample of MGRs and raw data, on a royalty-free open-access basis;63 (iv) a material transfer clearing house – that offers access and use of scientific information and data, such as ex situ sample of MGRs and raw data, either via standardized or negotiated material transfer agreements; and (v) a royalty collection clearing house – that comprises all the functions of the information clearing house, the scientific endeavour clearing house and the material transfer scheme, and offers the additional function of collecting relevant fees from users in return for the access to and use of scientific information and data relating to MGRs in ABNJ. The BBNJ negotiations will need to determine which of these iterations would strike the right balance. 4.1.3

Should There Be Means by Which Compliance with the Benefit-Sharing Regime Could Be Monitored and, if so, How? Particularly if there are aspects of benefit-sharing that are mandated by the new BBNJ instrument, the provisions would only have meaning if they are accompanied by means by which compliance could be monitored. There may be concerns that a monitoring mechanism could have implications for access 63  S ee A. Broggiato et al., supra note 9, advocating for what they have termed “the Mare Geneticum approach”. This approach features open-access to MGRs and data, a relatively short embargo period, and post-embargo exclusivity subject to payment.

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to ABNJ and MGRs in situ which, in turn, could undermine the freedom of the high seas. One can appreciate this concern if a requirement of prior authorization, before there can be access to MGRs in ABNJ, is imposed (apart from any requirements for the conduct of environmental impact assessments or restrictions to access as a consequence of the employ of area-based management tools). However, it is possible to design a notification requirement that could obviate these concerns. As a preliminary point, it needs to be appreciated that free access to ABNJ and MGRs in situ does not necessitate unregulated access, and does not mean free use. As referred to earlier, the freedoms of the high seas are subject to the principle of due regard. The sea is a common domain; there is “the need for international cooperation and regulation … within which … sharing can happen in a peaceful and harmonised way.”64 Specifically, the right to conduct marine scientific research is subject to the rights and duties of other States as provided for in LOSC.65 A notification requirement that requires the provision of basic information regarding access to MGRs in situ,66 and the giving of an undertaking to share the benefits arising from utilization of the MGR, could therefore provide the means by which compliance with any benefit-sharing regime could be monitored, while striking the balance with the need to preserve the freedoms of the high seas. The requirement could be triggered before or after access to ABNJ and MGRs in situ. The requirement could also be extended to access to MGRs ex situ and in silico, using a material transfer agreement.67 4.2 A Monetary Benefit-Sharing Fund As described in the preceding sections, the envisioned clearing house mechanism would focus mainly on the sharing of non-monetary benefits. However, there is also the question of the sharing of monetary benefits that must be considered. While the prospect of non-monetary benefit-sharing has been fairly noncontroversial, the issue of monetary benefit-sharing has been cautiously treated by some delegations. Some delegations have suggested that the road to the realization of monetary benefits from the exploitation of MGRs could be 64  A  . Broggiato et al., supra note 9, at 5. 65  A  rticle 238 LOSC. 66  A  . Broggiato et al. have expressed support for a system of Obligatory Prior Electronic Notification, which would be accompanied by an obligation to share non-monetary and monetary benefits arising from the utilization of the MGR, before in situ access to MGRs in ABNJ is facilitated. See A. Broggiato et al., supra note 9, at 8. 67  Id., at 19.

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a long and difficult one.68 Nevertheless, it is important to a number of other delegations, from developing countries, who have said that they see monetary benefit-sharing as a significant part of the benefit-sharing regime. During the BBNJ negotiations, some interest has been expressed in having such monetary benefits funnelled towards developing countries, to better enable them to participate in the utilization of MGRs; or else to have the funds sustain the conservation and sustainable use mechanisms established in the new BBNJ instrument. One idea that has been put forward is the establishment of a multilateral benefit-sharing fund, sustained by a combination of voluntary and mandatory contributions.69 The idea of a multilateral benefit-sharing fund is not an unfamiliar one. The Food and Agriculture Organization’s International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), for example, established a multilateral system of access and benefit-sharing, which included a benefit-sharing fund that is intended to be sustained by a combination of Parties’ donations and user-based payments in accordance with the terms of the Standards Material Transfer Agreement.70 For the BBNJ context, a fund could similarly be sustained by obligatory contributions as well as voluntary contributions. Obligatory contributions could be in the form of up-front payments upon access or as part of other fees that may be introduced. Obligatory contributions could also be in the form of phased or milestone or royalty payments at pre-identified stages of the commercialization process. The key would be to design a contribution framework that would not undermine research and development interests. 5

Concluding Remarks

What does a “practical” solution mean? It means imbuing or allying the ideals which motivate the establishment of a benefit-sharing regime with practical or pragmatic elements, to give it the best chance of success. 68  For example, Japan and the United States at the first IGC. In a similar vein, at the first IGC, the European Union suggested focussing on non-monetary benefits as the more feasible option betwixt the two. 69  This was proposed by the African Group at the third Prep Com. The Alliance of Small Island States (AOSIS) also suggested this at the third Prep Com, together with the idea of specific allocation of funds for small island developing States (SIDS). 70  Article 13.2(d) of the International Treaty on Plant Genetic Resources for Food and Agri­ culture, which opened for signature on 3 November 2001, 2400 UNTS 303.

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With this in mind, this Chapter has explored two practical approaches that could be pursued as possible solutions, against the backdrop of entrenched views over whether it is Part VII (High Seas) or Part XI (The Area) that should apply to MGRs in ABNJ: (i) Part XIII (Marine Scientific Research) as the starting point; or (ii) looking to develop the modalities, without getting into the Part VII (High Seas) / Part XI (The Area) debate. In addition, in our exploration of the two approaches, some common threads have emerged as elements that would further contribute to a “practical” solution. This Chapter leaves you with three concluding remarks in this regard. First, the BBNJ negotiations will benefit from drawing appropriately from the experience of relevant existing frameworks. Related regimes – such as the CBD and its Nagoya Protocol, and the ITPGRFA, which are concerned with genetic resources over which States exercise sovereign rights; and the regime for the Area that is implemented by the International Seabed Authority – are important to take into account. Particularly considering that the same MGRs may be found on or in the seabed as well as in the water column, including at different stages of its life cycle, and that MGRs that are found in areas beyond national jurisdiction may in some cases also be found within areas of national jurisdiction,71 it would be important to cohere the new BBNJ regime with existing related regimes on genetic resources, so that they can be mutually reinforcing rather than have the effect of undermining each other. Second, the eventual BBNJ benefit-sharing regime will need to be aligned with research realities, as well as industrial and commercial realities. A regime that is too cumbersome for researchers to navigate, or a regime that undermines the incentives for research and development, could run the risk of slaying the goose that lays the golden eggs of benefits from the study and use of MGRs. Third, the new BBNJ instrument will need to be agreed upon by consensus, so that there will be multilateral buy-in. Since what the new BBNJ instrument would be addressed to is areas beyond national jurisdiction, the only promise of its efficacy would be via a truly multilateral instrument. By urging the negotiators to work towards a consensus outcome, it is hoped that the underlying interests of all interested stakeholders can be addressed, thereby putting all who could become party to the new BBNJ instrument in a position to be able to subscribe to it. 71  C. Salpin, supra note 7, at 430.

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Perhaps, by using the LOSC provisions on marine scientific research or the possible modalities for a benefit-sharing regime as the lens through which to focus the discussions, we just might be able to look past the legal status of MGRs in ABNJ, towards a future consensus that would draw appropriately from the experience of relevant regimes whilst taking into account applicable realities. This, bringing us back to Bono, would indeed be very exciting. Note The author is Director, International Legal Division, Ministry of Law, Singapore. The views expressed herein are the views of the author and do not necessarily represent the views of the Government of Singapore.

Part 3 Marine Biological Diversity of Areas beyond National Jurisdiction: Conservation and Management Tools and the Question of Fisheries

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Chapter 6

Options for Marine Protected Areas under a New Agreement on Marine Biodiversity of Areas beyond National Jurisdiction Veronica Frank 1

New Knowledge and Changing Circumstances

More than 64% of the world’s ocean lies in areas beyond any national jurisdiction (ABNJ). These areas, comprised of the high seas and the seabed Area,1 cover approximately half of the planet’s surface. These “global commons” do not belong to any single nation, but are every nation’s responsibility to protect. The regime governing ABNJ is based on the United Nations Convention on the Law of the Sea (LOSC)2 that was negotiated in the 1970s when our knowledge and understanding of the ocean and ocean processes were different from today. For instance, hydrothermal vents with their chemosynthetic life were only discovered in 1977.3 We now know much more about marine biodiversity and ecosystems and about the critical support the ocean provides to our whole planet by helping regulate our climate, ensuring food security and building ecosystem resilience.4 We also have a better understanding of the ecological connectivity between ABNJ and coastal waters, which means that impacts on high seas and deep seas ecosystems will be felt across jurisdictional boundaries, including by coastal communities, and the need to protect such connectivity.5 1  L OSC article 86 defines the “high seas” as “all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.” LOSC article 1 defines the “Area” as “[t]he seabed and ocean floor, and subsoil thereof, beyond the limits of national jurisdiction.” 2  United Nations Convention on the Law of the Sea, 10 December 1982, 1833 United Nations Treaty Series, 3. Entered into force on 16 November 1994. 3  E.g., https://oceanservice.noaa.gov/facts/vents.html. 4  United Nations General Assembly (UNGA), Summary of the first global integrated marine assessment, 22 July 2015, A/70/112, available at: . 5  U NEP-WCMC, Marine Connectivity Across Jurisdictional Boundaries: An Introduction (Cambridge, UK UN Environment World Conservation Monitoring Centre, 2018), available at: .

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Until the last century, most of the high seas were too far, too deep, and too dangerous to allow certain extractive activities such as fishing or mining to take place. Consequently, much of ABNJ were de facto marine reserves, offlimits to human uses. But technological development has allowed human operations to expand further and deeper offshore, exposing ABNJ to new and unprecedented pressure. Such pressure, combined with the impacts from climate change, ocean acidification and pollution, is threatening the health of the ocean, undermining its capacity to perform its vital functions and to build resilience to future impacts.6 These changing circumstances require urgent action and a more integrated approach to ocean management. As will be discussed in the next section, the legal regime under LOSC has favoured a sector-by-sector approach, whereby the adoption of protective measures in ABNJ is left to States acting through existing sectoral organizations, for whom conservation is not a primary focus.7 Such a complex web of sectoral and regional organizations and agreements is responsible for managing specific activities in ABNJ without the ability to address cumulative impacts from other sectors or stressors like climate change. It has now become clear that because of their interaction, managing single impacts in isolation is insufficient.8 According to the First UN World Ocean Assessment, indeed, the greatest threat to the ocean comes from the failure to deal quickly with the manifold problems affecting it.9 In order to conserve and sustainably use marine biodiversity, multiple stressors and cumulative impacts must be managed in an integrated way, taking into account the effects on ecosystems of each sector and the way that they interact, based on an ecosystem approach.10 Therefore, addressing cumulative impacts and uncoordinated sectoral action as well as mainstreaming biodiversity in the work of sectoral bodies is crucial to preserve the capacity of the ocean to perform its vital functions.

6  R  ogers, A. D. and Laffoley, D. d’ A., (2011). International Earth system expert workshop on ocean stresses and impacts. Summary report, IPSO Oxford, 5–6, available at: . 7  Long, R., “Marine Science Capacity Building and Technology Transfer: Rights and Duties Go Hand in Hand under the 1982 UNCLOS”, in Nordquist, M., Long, R., Heidar, T., and Moore, J. N., eds, Law, Science & Ocean Management (Brill, 2007), 297–312. 8  United Nations, First global integrated marine assessment, supra note 4, paras. 197–198. 9  Id., supra note 4, para. 197. 10  E.g., 1992 Agenda 21, Chapter 17.01, in Johnson, S, The Earth Summit (Kluwer, London, 1992), 307.

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Area Based Management Tools, Marine Protected Areas and Global Targets

Area based management tools (ABMTs), in particular marine protected areas (MPAs), are widely recognized as key tools for ensuring ocean health and resilience.11 While no universal definition exists, ABMTs can be generally described as measures regulating one or more human activities in a specified area to achieve conservation or sustainable resource management objectives.12 Sectoral ABMTs have been used by a number of international organizations to manage the specific activity under their competence, such as shipping, seabed mineral exploration or exploitation, or fishing, to reduce, prevent or control the environmental impact of their sector. These include, for instance, the International Maritime Organization (IMO)’s Particularly Sensitive Sea Areas (PSSAs), although no PSSA has been established in ABNJ yet; the International Seabed Authority (ISA)’s Areas of Particular Environmental Interest (APEIs); or regional fisheries management organizations (RFMOs)’s seasonal or spatial fisheries closures.13 Such measures only address one specific sector or activity and are not designed to provide comprehensive protection from multiple activities or cumulative impacts. On the other hand, cross-sectoral ABMTs, notably MPAs, offer broader biodiversity protection against multiple and cumulative impacts from different sectors. Among all types of ABMTs, MPAs are considered as the most effective conservation tools.14 Indeed, by removing direct stressors, MPAs can boost biodiversity in previously depleted regions and improve the ecosystem capacity to respond to multiple and often indirect stressors, such as climate change, ocean acidification and pollution.

11  V  ierros, M., Dunn, D., O’Hara, T., Grorud-Colvert, K., Morgan, L., Halpin, P., Space for conservation and sustainable use: area-based management in areas beyond national jurisdiction, Policy Brief (2016), available at: . 12  I UCN, Suggested responses to questions on area based management tools (ABMTs), available at: . 13  For a full list of existing sectoral ABMTs in ABNJ, see e.g., Wright, G., Rochette, J., Gjerde, K., and Seeger, I., The long and winding road: negotiating a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction, (2018) IDDRI Studies N°08, 67, available at: . 14  E.g., Heffernan, O, “How to save the high seas”, (2018) Nature, at: https://www.nature.com/ articles/d41586-018-05079-z.

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MPAs can have a variety of objectives and can offer various degrees of protection, from strictly protected areas, to areas where multiple uses are allowed.15 There is widespread scientific recognition that fully protected marine reserves are the most powerful among the different types of MPAs.16 Recent studies have shown that the ecological and socio-economic benefits of MPAs increase with the level of protection, effective management and a reduction in intensity of use17 and MPAs that are (i) no-take, (ii) well enforced, (iii) long-term, (iv) large, and (v) part of networks are best suited to accomplish their conservation goals.18 Fully protected marine reserves are also considered the most cost-effective types of MPAs in terms of management, monitoring and enforcement.19 Acknowledging the important role that MPAs can play in reversing biodiversity loss and ensuring a sustainable future, the international community committed to establish a global network of effectively managed and well connected MPAs and other effective conservation measures covering at least 10% of marine and coastal areas by 2020.20 More recently, following scientific recommendations, there has been a growing call for setting aside at least 30% of the ocean as fully/highly protected MPAs by 2030.21 However, progress 15  E.g., IUCN Protected Areas Categories at: . 16  O’Leary, B., Winther‐Janson, M., Bainbridge, J. M., Aitken, J., Hawkins, J. P., Roberts, C. M., Effective Coverage Targets for Ocean Protection (2016), available at: ; and Roberts, C.M., O’Leary, B., McCauley, D.J., Cury, P.M., Duarte, C.M., Lubchenco, J., Pauly, D., Sáenz-Arroyo, A., Sumaila, U.R., Wilson, R.W., Worm, B., and Castilla, J.C., Marine reserves can mitigate and promote adaptation to climate change, (2017) 114 (24) PNAS, 6167–6175, available at: < http://www.pnas.org/ content/114/24/6167>. 17  I UCN WCPA, Applying IUCN’s global conservation standards to Marine Protected Areas (MPAs) (Gland, Switzerland, 2018), 4. 18  Edgard, G.J., et al., “Global conservation outcomes depend on marine protected areas with five key features”, (2014) 506 Nature, 216–220, available at: ; Lubchenco, J., Grorud-Colvert, K., “Making waves: The science and politics of ocean protection”, (2015) Science, 350, 382–383, available at: . 19  Natalie, C.B., Adams, V., Pressey, R.L., Hicks, J., “Promise and problems in estimating management costs for marine protected areas”, in (2011) 4(3) Conservation Letters, 241–54, available at: https://doi.org/10.1111/j.1755-263X.2011.00171.x. 20  Johannesburg Programme of Action (JPOI); CBD Aichi target 11, available at: ; Sustainable Development Goal 14.5, available at: . 21  I UCN/WCC-2016-Res-050-EN, Increasing marine protected area coverage for effective marine biodiversity conservation, available at: .

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towards meeting long-standing conservation targets has been very slow, especially in offshore areas. Currently, indeed, only 4.8 per cent of the global ocean (including areas under national jurisdiction) is protected via MPAs and only 2.2 per cent is highly protected via marine reserves.22 Progress is even slower on the high seas, where MPAs cover a mere 1.2 per cent and highly protected marine reserves only 0.8 per cent of such waters.23 Scientists have made it clear that to meet global conservation targets it is crucial to extend protection to areas in ABNJ.24 3

Limitations of the Current Governance Framework for MPAs in ABNJ

Lack of an Overarching Framework for Creating a Comprehensive Network of MPAs in ABNJ The current governance framework for the establishment and implementation of MPAs in ABNJ is complex and multifaceted, with various global, regional and sectoral bodies contributing different pieces of the puzzle.25 At the centre of this complex web is LOSC, which sets out the basic rights and obligations of States when operating in ABNJ. The Convention does not contain specific provisions on the conservation of biodiversity and does not even mention the term “biodiversity”. In particular, there is no specific framework or global process under LOSC for the establishment of MPAs or other ABMTs. Yet, the Convention contains a number of general duties that could provide the legal basis for establishing MPAs. These include the general obligation to protect and preserve marine environment, including rare or fragile ecosystems and habitats (articles 192 and 194(5)); the duty to conserve and manage high seas marine living resources (articles 117–120); and the duty to cooperate on a global and, as appropriate, on a regional basis, directly or through competent international organizations, in the adoption of environmental protection rules and standards (article 197). However, the Convention does not

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22  See Marine Conservation Institute, Atlas of Marine Protection, at . See also Morgan, L., Pike, E., Moffitt, R., “How much of the ocean is protected?”, (2018) 19(1–2) Biodiversity, 148–151, available at: 10.1080/14888386.2018.1469432. 23  Id. 24  E.g., O’Leary, B., et al. (2017), supra note 16. 25  Gjerde, K., Dotinga, H., Hart, S., Molenaar, E. J., Rayfuse, R., and Warner, R., Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, Switzerland, 2008), available at: .

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expressly incorporate modern principles of ocean governance, such as transparency, accountability, precaution, or ecosystem-based management, nor does it provide an institutional framework, clear guidance, or specific rules to enable States to collectively implement these general duties. LOSC, moreover, places strong emphasis on the traditional high seas freedoms to inter alia fish, navigate, or conduct marine scientific research, although these must be exercised under the conditions laid down in the Convention, including the general obligations to protect the marine environment mentioned above. However, as the deteriorating state of the ocean and the insufficient progress in meeting global conservation targets suggest, these general provisions are not enough to ensure collective efforts towards conservation.26 The Convention on Biological Diversity (CBD), under which global bio­ diversity targets are agreed, applies to processes and activities under the jurisdiction and control of Parties in ABNJ (Article 4(b)) and requires Parties to ensure that such activities do not cause damage to ABNJ (Article 3). Par­ ties are also requested to cooperate, directly or via competent international organizations for the conservation and sustainable use of biodiversity in ABNJ (Article 5); to create a system of MPAs and other effective conservation measures (Article 8(a)) and to integrate biodiversity considerations in sectoral or cross-sectoral plans and policies, “as far as possible and as appropriate”. Although the CBD has recognized the UN General Assembly’s primary responsibility with regard to conservation and sustainable use of biodiversity in ABNJ, including in relation to MPAs, it plays a key scientific and technical advisory role in these matters.27 Accordingly, a scientific process was undertaken to describe “ecologically or biologically significant marine areas” (EBSAs) and called upon States and competent international organizations to consider enhancing EBSA protection and management, including through measures such as MPAs.28 However, since most EBSAs are located in ABNJ, there are currently no means to effectively protect and manage them. 3.2 Fragmented and Insufficient Sectoral and Regional Action There is wide array of sectoral organizations and arrangements governing activities that may impact biodiversity in ABNJ. For instance, the IMO is responsible for regulating shipping and dumping, the ISA is responsible for 26  Tladi, D., “The Proposed Implementing Agreement: Options for Coherence and Consis­ tency in the Establishment of Protected Areas beyond National Jurisdiction”, (2015) 30 International Journal of Marine and Coastal Law, 654–673, at 657. 27  C BD Decision X/29/para. 24 on Marine and Coastal Biodiversity (2010), available at: . 28  Id.

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regulating the exploration and exploitation of minerals in the Area and RFMOs are responsible for regulating fishing on the high seas29 As mentioned above, some of these sectoral bodies have used ABMTs to prevent, reduce or control the environmental impact of their sector in geographically defined areas of ABNJ. And although such sectoral initiatives are important, they alone are not sufficient to create a coherent network of MPAs and meet global conservation targets.30 Indeed, sectoral bodies do not have conservation as a primary focus, nor do they have a mandate or the necessary expertise to manage cumulative impacts from other sectors and climate change or to adopt sound ecosystembased management measures accordingly. For instance, the practice of RFMOs in implementing their conservation obligations31 has been patchy,32 leaving vast areas of ocean unprotected. The environmental performance of sectoral bodies varies, in some cases even within the same sector. For instance, RFMOs have been shown to be inconsistent in fulfilling their responsibilities to varying degrees. Indeed, while some general RFMOs,33 mainly due to the guidance and 29  E.g., Wright, G., et al., supra note 13, 26. 30  E.g., submission by Federated States of Micronesia (2016), available at: ; submission by Nauru on behalf of the Pacific Small Island Developing States (PSIDS) (2016), available at: ; and submission by the European Union and its Member States (2016), para. 1, according to which the key added value of the new BBNJ agreement would be in creating a process for the establishment of cross-sectoral MPAs in ABNJ, available at: . 31  E.g., UN Fish Stocks Agreement (UNFSA) article 5 (general principles, including to minimize impacts on non-target species and protect marine biodiversity) and article 6 (duty to apply a precautionary approach and protect habitats of special concern). 32  Friedman, A., “Beyond “not undermining”: possibilities for global cooperation to improve environmental protection in areas beyond national jurisdiction”, (2019) 76(2) ICES Journal of Marine Science, 452–456. See also Gianni, M., Fuller, S.D., Currie, D.E.J., Schleit, K., Goldsworthy, L., Pike, B., Weeber, B., Owen, S., Friedman, A., How much longer will it take? A ten-year review of the implementation of United Nations General Assembly resolutions 61/105, 64/72 and 66/68 on the management of bottom fisheries in areas beyond national jurisdiction, Deep Sea Conservation Coalition (2016), 13–14, available at: ; and Barnes, R., “The proposed LOSC implementing agreement on areas beyond national jurisdiction and its impact on international fisheries law”, (2016) 31 International Journal of Marine and Coastal Law, 1–37. 33  As defined by Asmundsson, S., Regional Fisheries Management Organizations (RFMOs): Who are they, what is their geographic coverage on the high seas and which ones should be considered as General RFMOs, Tuna RFMOs and Specialized RFMOs?, available at: .

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pressure provided by UNGA resolutions,34 have taken steps to protect vulnerable marine ecosystems in ABNJ, others are lagging far behind.35 Moreover, there are still a number of geographical gaps (e.g., in the coverage of general RFMOs) and new emerging activities in ABNJ, such as bioprospecting for marine genetic resources, geoengineering, ocean fertilization, or offshore aquaculture, which do not enter within the mandate of any existing organization.36 Regional seas organizations (RSOs), on the other hand, have a broader environmental mandate, but only four of them – i.e., the OSPAR, CCAMLR, the Barcelona and Nouméa Conventions37 – have the authority to establish MPAs in ABNJ. Such RSOs only cover a fragment of ABNJ and MPAs established under these regional frameworks only bind their members. As a result, efforts in some regions have not been sufficient to prevent marine biodiversity loss at the global level.38 In addition, most of these regional organizations do not have the mandate to implement truly cross-sectoral MPAs, but largely rely on sectoral bodies to manage impacts of activities. Cooperation between different competent organizations is often challenging39 and there are discrepancies 34  The UNGA adopted a series of resolutions (UNGA resolutions 57/141, 59/25, 61/105, 64/72, 66/68, 71/12) to either manage bottom fisheries in ABNJ to prevent significant adverse impacts on deep-sea species, ecosystems and biodiversity or else prohibit bottom fishing from taking place. 35  On the slow and patchy implementation of the UNGA bottom fishing resolutions see Gianni, M., et al., supra note 32, and Wright, G., et al., supra note 13, 39. See also Thirteenth round of Informal Consultations of States Parties to the UNFSA (New York, 22–23 May 2018), available at: http://www.un.org/depts/los/convention_agreements/ ICSP13/ICSP13_final_report.pdf. 36  Ocean fertilization, and potentially geoengineering, has been addressed by the London Convention/Protocol and CBD, but no comprehensive mandate exists. 37  Convention for the Protection of the Marine Environment of the North-East Atlantic 1992 (OSPAR Convention); Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR); Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 1995 (Barcelona Convention); Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986 (Nouméa Convention). 38  Billé, R., Chabason, L., Drankier, P., Molenaar, E.J., Rochette, J., Regional Oceans Governance: Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together, UNEP Regional Seas Reports and Studies No. 197 (2016), 60. See also Vierros, M., et al., supra note 11, 5–6. 39  E.g., Freestone, D., “The Limits of Sectoral and Regional Efforts to Designate High Seas Marine Protected Areas”, (2018) ASIL Unbound Series, 1–5, available at: ; Friedman, A., supra note 32; and Gjerde, K., Clark, N., HardenDavis, H., “Building a platform for the future: The relationship of the expected new agreement for marine biodiversity in areas beyond national jurisdiction and the UN Convention on the Law of the Sea”, (2019) 33(1) Ocean Yearbook, 1–44.

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among regions.40 Overall, there is no dedicated platform for systematically fostering cross-organizational cooperation, addressing shared challenges, and encouraging cross-sectoral management and conservation measures. In the absence of an overarching framework for closer coordination and for addressing cumulative impacts, there is a risk that the efforts of one sector (e.g. fishing closures to protect vulnerable marine ecosystem) may be frustrated by conflicting activities of another sector (e.g. mining claims).41 As the First UN World Ocean Assessment pointed out, “[w]ithout a sound framework in which to work, such regional and sectoral bodies may fail to take into account the way their decisions interact with those of others, adding to the complexity of the many problems affecting the ocean.”42 3.3 Lack of Effective Monitoring, Review and Compliance Mechanisms The current ocean regime also lacks effective monitoring, review and compliance mechanisms to ensure accountability and effective implementation of MPAs in ABNJ. Advances in surveillance technology, such as satellite tracking systems, can facilitate monitoring and support enforcement in previously inaccessible offshore areas and will be an important consideration when designating large, remote MPAs.43 3.4 Limited Collection and Sharing of Data In spite of significant progress in recent years, there is a need for more data to improve our understanding of high seas ecosystems and inform management in these areas. There is still insufficient collection and sharing of data, especially data tailored to the needs of policy-makers.44 For instance, many RFMOs do not collect data on non-targeted species, unless they are regulated, or assess 40  Gjerde, K., et al., supra note 39, 11; and Mahon, R., Fanning, L., Gjerde, K., Young, O., Reid, M., and Douglas, S., “Transboundary Waters Assessment Programme (TWAP)”, Assessment of Governance Arrangements for the Ocean, Volume 2: Areas Beyond National Jurisdiction, (UNESCO-IOC, Paris, IOC Technical Series, 2015), 119, available at: . 41  In the Indian Ocean, for instance, there is a spatial overlap between mining claims, deepsea bottom fishing areas, and protected areas voluntarily closed to bottom trawling by the industry (Southern Indian Ocean Deepwater Fishers Association). See http://www .mpatlas.org/map/high-seas-protections/. 42  U NGA, the first global integrated marine assessment, supra note 4. 43  De Santo, E.M., “Implementation challenges of area-based management tools (ABMTs) for biodiversity beyond national jurisdiction (BBNJ)”, (2018) 97 Marine Policy, 34–43. See also Vierros, M., et al., supra note 11. 44  E.g., UNFSA informal consultations, supra note 35, para. 23. See also Gjerde, K., et al., supra note 39, 25.

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and share these data with non-fisheries scientists. The situation is exacerbated by the lack of funding mechanisms for data collection and limited observing programs to inform management in ABNJ. 4

How Can the New BBNJ Agreement Fill Current Governance Gaps?

The need to better address the conservation and sustainable use of marine biodiversity in ABNJ, including the lack of an overarching framework for MPAs, has been on the agenda of the United Nations General Assembly (UNGA) for over a decade. These issues have been first addressed within an open-ended informal working group on marine biodiversity beyond national jurisdiction (BBNJ working group) and, since 2015, in a more formal setting within a Preparatory Committee (PrepCom).45 In December 2017, building on the final recommendations from the PrepCom46 the UNGA adopted resolution 72/24947 launching an intergovernmental conference (IGC) to negotiate as soon as possible the text of a new legally binding instrument under LOSC for the conservation and sustainable use of marine biodiversity in ABNJ (hereinafter BBNJ agreement). The negotiations shall address, together and as a whole, the issue of marine genetic resources, including questions on the sharing of benefits, measures such as ABMTs, including MPAs, environmental impact assessments and capacity-building and technology transfer. The PrepCom recommendations underscore the desire of States for a comprehensive global regime to better address conservation and sustainable use of high seas biodiversity, building on LOSC, and promoting greater coherence with and complementing existing instruments and bodies, without undermining their competence.48 An implementing agreement under LOSC would best

45  For an extensive overview of the history of the process see: Wright, G., et al., supra note 13; and High Seas Alliance at: . 46  U NGA, “Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument 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,” A/AC.287/2017/ PC.4/2 (31 July 2017), hereinafter “PrepCom Report”, available at: . 47  U NGA, “International legally binding instrument 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,” UNGA Resolution A/RES/72/249 (24 December 2017), available at: . 48  PrepCom Report, supra note 46, Section A, Preambular part, 7. The Report makes it clear that Sections A and B do not reflect consensus. Section A includes non-exclusive

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serve these purposes.49 Along the lines of the previous two LOSC implementing agreements,50 the BBNJ agreement provides the opportunity to modernize and operationalize the Convention’s broad biodiversity provisions and improve their uneven implementation. Particularly in relation to ABMTs/MPAs, the PrepCom recommendations reiterate the importance for the new agreement to enhance cooperation and coordination among existing bodies and instruments, without prejudice to their respective mandates, and to set out a process for ABMTs/MPAs, including for their identification, establishment, implementation, monitoring and review.51 However, there was no convergence of views as to where the power to establish and implement ABMTs, in particular cross-sectoral MPAs, should rest at the global, sectoral or regional level. Views also differed as to the most appropriate decision-making and institutional structure to enhance cooperation among different instruments and bodies without undermining their mandates.52 Therefore, a key question that the negotiations will need to address is how the new agreement can fill existing gaps without “undermining” existing bodies and frameworks. It should be noted that there is no agreed definition of “not undermining”, a term that according to some was chosen for its ambiguity,53 but the UN Fish Stocks Agreement may offer some clarity in this regard. This is the only other legal instrument concerning ocean governance where the term “not undermine” is deployed to mean not to “reduce the effectiveness”.54 The following sections will consider the three main governance approaches or models for the establishment of cross-sectoral MPAs under the new BBNJ agreement, looking at strengths and weaknesses associated with each option as advocated by proponents and discussed during the BBNJ negotiations,55 elements that generated convergence among most delegations, while section B highlights issues where there is divergence of views. 49  Id., 8. 50  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 (Part XI Agreement, regarding seabed minerals) 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 (UN Fish Stocks Agreement, UNFSA). 51  PrepCom Report, supra note 46, Section A, para. 4, 11–12. 52  Id., Section B., 17. 53  Gjerde, K., et al., supra note 39, 31. 54  E.g., UNFSA, supra note 50, articles 7(2), 16(2), 17(4), 18(1) and 18(3), 20(7), 23(3) and 33(2). See Gjerde, K., et al., supra note 39, 20–21.; and Friedman, A., supra note 32. 55  Although this Chapter does not specifically cover the first intergovernmental conference (IGC1), held 4–17 September 2018, in the following sections reference is also made to views expressed at that conference where positions of delegations have become clearer.

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also through the lens of the need “not to undermine” existing organizations. It is important to notice that there are nuances and different interpretations of each governance model, which can be best understood as existing along a spectrum of options.56 5

Regional Approach to MPA Establishment

Those supporting a “regional” approach envision a new BBNJ agreement setting common principles, objectives and guidelines with the aim of promoting closer cooperation and coordination among Parties, acting via regional and sectoral bodies.57 The latter would remain exclusively responsible for implementing ABMTs/MPAs in ABNJ.58 Under such a model, there would be no new institutional framework and no global body to oversee implementation. Instead, regional seas organizations, where they exist, would provide a forum for coordination and cooperation among all relevant players in the region and would be the main entities responsible for designating MPAs in ABNJ.59 Where such regional organizations do not exist, Parties would need to establish one. Some suggest that MPAs adopted by regional seas mechanisms according to the criteria specified in the BBNJ agreement should become legally binding on all Parties.60 Sectoral bodies with a mandate over activities taking place in the newly established area would be exclusively competent for adopting specific measures to meet the MPA objectives. A review process, along the lines of the UNFSA’s review conference, could set new priorities and assess progress towards the agreement’s objectives. 5.1 Strengths Proponents of the regional approach advocate its low risk of undermining competent instruments and bodies, which would remain exclusively responsible for establishing and implementing MPAs. And this, according to some, 56  Gjerde, K., et al., supra note 39, 29. 57  E.g., submission by Norway to PrepCom (2016) available at: . See also Statement by Norway at IGC1, available at: , and Statement by Iceland at IGC1, available at: . 58  Id. See also Statement by the Russian Federation at IGC1, available at: http://www.un.org/ depts/los/biodiversity/prepcom_files/streamlined/Russian_Federation.pdf. 59  E.g., Statement by Iceland at IGC1, supra note 57. 60  E.g., Statement by Norway at IGC1, supra note 57.

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would make it easier for States to reach an agreement and lead to its earlier conclusion.61 Proponents of this model also suggest that regional organizations will be more responsive to regional needs, offer specialized expertise, and avoid global political entanglements. They further highlight that, with no need to create new institutions at the global level, this model would be more practical and initially save costs. 5.2 Weaknesses During the negotiations, many delegations have voiced concerns that the regional model would perpetuate the status quo as it would not address the many limitations of the current system of regional and sectoral governance that the new agreement is meant to remedy.62 In particular, sectoral or regional bodies do not have the mandate or the capacity to adopt cross-sectoral MPAs and regional or sectoral action alone would be insufficient to create a global network of well-connected and effectively managed MPAs.63 Under the regional model, therefore, the agreement would provide broad guidance, but would not deliver comprehensive protection from multiple and cumulative impacts nor would it be conducive to the creation of effectively managed cross-sectoral MPAs in ABNJ and meet long-standing global conservation targets. Moreover, it should be noted that the implementation of UNFSA has been frustrated, and the performance of RFMOs has been constrained, by a lack of oversight, accountability, and institutional support.64 Without global oversight, there would be no means to ensure effective coordination and cooperation 61  E.g., Statement by Iceland at IGC1, supra note 57. 62  E.g., Statement by Algeria on behalf of the African Group at IGC1, available at: http://high seasalliance.org/treatytracker/statements/algeria-on-behalf-of-the-ag-september-10th -ambts-mpas-informal-session/?_sft_issue=abmts&_sft_regional_group=ag; Statement by Argentina at IGC1, available at: http://highseasalliance.org/treatytracker/statements/ argentina-september-10th-abmts-mpas-informal-session/?_sf_s=Argentina; Statement by the International Union for Conservation of Nature at IGC1, available at: http://state ments.unmeetings.org/media2/19408248/iucn-abmt-intervention-10-sep-2018.pdf. See also Tladi, D., supra note 26, 667; Gjerde, K., et al., supra note 39, 29; and Friedman, A., supra note 32. 63  E.g., submission by the European Union (2016), supra note 30, para. 4; and submission by Nauru on behalf of the PSIDS, supra note 30. See also Statement by Algeria on behalf of the African Group at IGC1, supra note 62, and Statement by South Africa at IGC1, available at: http://statements.unmeetings.org/media2/19408197/south-africa-10-sept-pm.pdf. See also Vierros, M., et al., supra note 11, 8. 64  E.g., Report of the Resumed Review Conference of the UN Fish Stocks Agreement (2016), available at http://undocs.org/A/CONF.210/2016/5. It should be noted that much of the 2016 review reiterates points from the 2010 review, illustrating the difficulty in achieving progress in absence of an institutional support.

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among competent bodies or to guarantee that such bodies would act.65 Gaps would remain where there is no competent organization in place to regulate new and emerging threats. Moreover, by leaving implementation exclusively in the hands of sectoral or regional bodies, such a model does not seem to envisage the possibility for Parties to multilaterally establish MPAs outside existing regional and sectoral frameworks. And this, in the author’s view, is the weakest link of such a model from a legal standpoint, as it does not harness the inherent power of States under international law, as expressly recognized by LOSC (article 311(3)), to conclude multilateral agreements applicable to their mutual relations, as long as they do not frustrate the objective of the Convention or affect rights of other States Parties.66 Undoubtedly, MPAs would help meeting the LOSC objective to protect and preserve the marine environment. Finally, as will be discussed later, regional needs and specialized expertise can be fully integrated into the MPA process via stakeholder consultation, which is at the core of the “global” approach. And although the regional process might initially save costs, extra funding would be needed for existing bodies to take on additional work and functions or to create new regional coordination organizations, where they do not exist. 6

Hybrid Approach to MPA Establishment

Other delegations have suggested that the BBNJ agreement might adopt a “hybrid” approach, although with respect to substantive positions, this means different things to different delegations. While recognizing that this approach represents a spectrum of views, the most common interpretation envisions that the new agreement would provide global policy guidance for Parties’ closer cooperation with respect to ABMTs/MPAs, but implementation of 65  E.g., Freestone, D., and Gjerde, K., Lessons from the Sargasso Sea, available at: http:// www.un.org/depts/los/biodiversity/prepcom_files/Sargasso_Sea_Commission_Lessons _Learned.pdf. See also Freestone, D., supra note 39. 66  L OSC article 311(3) reads: “Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.” UNFSA (article 44(2)) contains the same provision. See also Convention on International Trade on Endangered Species (CITES), Article XIV, and IMO’s Ballast Water Convention, Article 2(3).

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those ABMTs/MPAs would be achieved via regional and sectoral frameworks.67 Unlike the regional model, this approach envisages an institutional structure, including a Conference of the Parties (CoP) with recommendatory and review functions, which would be assisted by a Secretariat with administrative functions and a Scientific Committee with advisory functions. Supporters of the hybrid model concur that the new agreement should require Parties to cooperate towards the establishment of a global network of MPAs and set high-level objectives, principles, criteria and guidelines on ABMTs/MPAs to guide implementation, as well as a process for the development of MPA proposals, for stakeholder consultation and for sharing of information and best practices. Parties, including via competent organizations, would regularly report on their progress in implementing the MPA and the CoP should regularly review their performance. The divergence of views under this approach concerns the consequences of decisions taken by the CoP. At one end of the spectrum, the CoP, with inputs from the scientific committee, would make non-binding recommendations, including on areas in need of protection, and guide Parties in pursuing MPAs through regional and sectoral organizations. However, like under the regional model, the establishment of MPAs would be done at the regional level, through existing regional coordination mechanisms or by establishing new ones when they are not in place.68 A more “flexible” interpretation of the hybrid model envisages the possibility for the CoP to designate MPAs, but only in instances when there is no regional framework or competent organization in place that could otherwise carry an MPA forward.69 As this latter interpretation of the hybrid approach has substantial overlaps with a “global” approach, it is further 67  E.g. submission by New Zealand to PrepCom (2016), at 5, available at: http://www.un.org/ depts/los/biodiversity/prepcom_files/rolling_comp/New_Zealand.pdf; Statement by New Zealand at IGC1, as reported at http://highseasalliance.org/treatytracker/statements/new -zealand-september-10th-abmts-mpas-informal-session/?_sf_s=New+Zealand+ABMTs; and submission by Australia to PrepCom (2016), available at: http://www.un.org/depts/ los/biodiversity/prepcom_files/rolling_comp/Australia.pdf. See also IISD Reporting Services, “Summary of the Third Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction: 27 March–7 April,” Vol. 25, no. 129 (10 April 2017), at: http://enb.iisd.org/download/pdf/enb25129e.pdf; and ISSD Reporting Services, Summary of the First IGC, Vol. 25, no. 179, available at: http://enb.iisd.org/vol25/ enb25179e.html. 68  E.g., submissions by Australia and New Zealand to PrepCom (2016), both available at supra note 67. 69  E.g., submissions by the United States to PrepCom, available at: http://www.un.org/ depts/los/biodiversity/prepcom_files/USA_Submission_of_Views_Expressed.pdf, and http://www.un.org/depts/los/biodiversity/prepcom_files/rolling_comp/United _States_of_America.pdf.; as well as Japan’s intervention reported in IISD Reporting Services, supra note 67.

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elaborated in that discussion below. This discussion assumes that under a hybrid approach sectoral bodies would retain the exclusive authority to adopt specific management measures in the newly designated MPAs with regard to activities under their competence. 6.1 Strengths Those supporting a hybrid approach are of the view that by setting an institutional structure for coordination and a global body with recommendatory and review functions, the hybrid model would catalyze action by Parties at the regional and sectoral level, promote more active engagement by competent bodies and improve accountability, thus filling some of the existing governance gaps.70 In their view, under this model, the agreement would have the benefit of promoting greater global coherence and better coordination and cooperation among competent bodies without undermining their competence.71 Moreover, they believe that focusing implementation at the regional level would be the most effective way to ensure effective participation of all stakeholders, fully integrate traditional knowledge in the MPA designation process and take decisions that fully reflect regional realities. 6.2 Weaknesses Like the regional model, the hybrid approach as described above seems inadequate to significantly improve the status quo. Indeed, while an institutional structure, regular reporting and review may improve coordination and cooperation, the non-binding nature of the CoP’s decisions means that they would have little-to-no authority to hold Parties and competent bodies accountable. Implementation would still depend on external bodies and there would be no effective way to guarantee their action. Regional and sectoral bodies would indeed be under no obligation to follow the recommendations of the CoP or to comply with the provisions of the BBNJ agreement, which only binds States Parties. This approach thereby risks the creation of “paper parks”, or areas protected only on paper, with little or no management in place. The hybrid approach would risk replicating the same fragmentation which is behind the failure of the current system and would fail to fill many of the existing governance gaps, especially with respect to new and emerging threats. As with the regional approach, by leaving the establishment and implementation of MPAs in the hands of regional and sectoral bodies, the hybrid 70  E.g., submission by New Zealand to PrepCom (2016), supra note 67. 71  E.g., submission from Australia to PrepCom (2016), supra note 67.

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model would not to take full advantage of the inherent power of States under international law to adopt stronger measures amongst themselves for application to their vessels, nationals and activities under their jurisdiction, as long as these measures are not less effective than existing regulations and do not affect rights of other Parties.72 Furthermore, while delegating some functions to regional bodies would seem helpful, creating new regional frameworks in the vast majority of the oceans that lack one seems impractical and would add an unnecessary extra layer of bureaucracy, costs and time delay, going against the need of urgent and streamlined action. As will be discussed below, there are other effective ways to ensure that special regional circumstances and needs as well as traditional knowledge are fully integrated in the designation process. 7

Global Approach to MPA Establishment

Finally, proponents of a “global” approach envision that a BBNJ agreement would be equipped with a robust institutional structure, including a global decision-making body (i.e. a CoP) with the authority to take decisions binding upon its Parties and with monitoring and review functions, acting upon advice of a scientific/technical committee and assisted by a Secretariat.73 Additional subsidiary bodies could be established to carry out functions under the agreement, such as for instance to facilitate compliance. Under this model, the BBNJ agreement would spell out a clear duty for Parties to cooperate in establishing a network of MPAs, set common objectives and principles to guide their action and a process for the identification, elaboration of proposals, establishment, monitoring and review of MPAs in ABNJ at the global level, whilst promoting complementary measures through competent bodies. There are many similarities among the processes suggested by several regional groups and delegations supporting a global approach,74 with most 72  See supra note 66. 73  See IISD Reporting Services, supra note 67. This would also be the case for the proponents of a “hybrid” approach with a global focus. 74  E.g., submission by the European Union (2016), supra note 30; submission by Nauru on behalf of the PSIDS, supra note 30; and Costa Rica and Monaco joint submission (2016) available at: . See also statements delivered at IGC1 by Bahamas on behalf of CARICOM, available at: ; by Nauru, on behalf of the PSIDS,

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envisaging a CoP with the authority to establish MPAs in ABNJ, including management or implementation plans, based on a proposal by Parties and following a review by a scientific/technical committee. Central to this global process is a science driven and time-bound consultation involving regional and sectoral bodies with competence over activities in the proposed area and other relevant stakeholders, including adjacent coastal States, civil society or traditional knowledge holders.75 Competent bodies would provide technical expertise and data and would play a central role in the development of MPA proposals and management plans, to be adopted by the CoP. There are currently a range of views as to whether the power to adopt concrete measures to protect the area should ultimately rest with the CoP, even beyond situations where there is no competent body in place,76 or with competent sectoral bodies and how to resolve any conflicts or discrepancies between the two. This is one of the key issues that will need to be further addressed during the negotiations. As argued below, empowering Parties, acting via a CoP, to multilaterally adopt conservation measures applying to their vessels, nationals and activities under their jurisdiction does not only seem legally possible, but also paramount to change the status quo. Furthermore, the proponents of a global approach agree that Parties should regularly report on their progress in implementing the MPAs and the CoP should regularly review implementation and, based on inputs from the

available at: ; and, as reported in the High Seas Alliance’s Treaty Tracker, by Egypt, on behalf of the G77 and China, available at: ; by Algeria, on behalf of the African Group, supra note 62; by Maldives on behalf of AOSIS, available at: ; by Argentina, supra note 62; by Brasil, available at: ; by China, available at: ; and by South Africa, supra note 63. 75  Id. See also IISD Reporting Services, supra note 67. 76  Many delegations supporting a global model have been vague on this specific point. However, see e.g., High Seas Alliance’s recommendations for MPAs under the new international legally binding instrument, at: ; and Greenpeace, Ten Steps to Marine Protection, (2016), available at: http://www.un.org/depts/los/biodiversity/prep com_files/greenpeace2.pdf.

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scientific committee, assess the effectiveness of associated protective measures in order to inform any necessary adaptation to the management plan.77 According to the global model, Parties will have the primary responsibility to implement MPAs and associated measures adopted under the agreement with regard to their vessels, nationals and activities under their jurisdiction and control. At the same time, they should promote the adoption of measures by competent bodies to which they are members in order to guarantee consistency among the entire sector.78 In addition, as the European Union and others suggested, building on the general duty to cooperate under article 197 of LOSC, non-Parties should be notified of the newly established MPA and invited to implement corresponding measures to ensure that activities and processes under their jurisdiction will not affect the conservation objectives of the MPA.79 Finally, some suggest that the agreement should establish a procedure for the global “recognition” of existing MPAs in ABNJ and for complementing sectoral ABMTs already established by competent bodies, provided that they meet the requirements under the BBNJ agreement.80 7.1 Strengths According to the proponents, among the different approaches under discussion, the global model seems to be the best suited to change the status quo and deliver comprehensive and cross-sectoral protection of biodiversity in ABNJ.81 Accordingly, the global approach has gained increasing support.82 First of all, a robust institutional structure with decision-making, monitoring and review functions seems essential to drive implementation and ensure cooperation among Parties and competent organizations. Secondly, by empowering the CoP to establish MPAs and adopt management plans with concrete 77  E.g., submission by the European Union, supra note 30; submission by Costa Rica and Monaco, supra note 74; and High Seas Alliance’s recommendations, supra note 76. 78  E.g., submission by the European Union, supra note 30, and High Seas Alliance’s recommendations, supra note 76. 79  See submission by the European Union (2016), supra note 30, para. f); and submission by Greenpeace (2016), supra note 76. This is also in line with the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, Art. 32(3), available at: . 80  E.g., submission by the European Union (2016), supra note 30, para. 4; submission by Bahamas on behalf of CARICOM, supra note 74; and High Seas Alliance’s recommendations, supra note 76. 81  E.g., statements delivered during IGC1, in particular by Algeria, on behalf of the African Group, supra note 62; Argentina, supra note 62; and South Africa, supra note 63. 82  See supra note 74.

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protective measures, the agreement would ensure that action is taken, without relying on external bodies for implementation and would thus avoid creating “paper parks”. As already mentioned, this approach is in line with the power of Parties under LOSC to adopt stricter measures among themselves as long as they are not incompatible with the objectives of the Convention, and do not affect rights of other States Parties.83 This is also consistent with the inherent right of States acting in their capacity as flag States to adopt additional or stricter environmental measures for their own vessels, nationals and activities under their jurisdiction as long as they are not less effective than existing regulations; or acting in their capacity as port States, to set conditions for entering their ports,84 for instance by prohibiting vessels fishing illegally to unload their catches.85 Thirdly, by establishing MPAs and associated measures at the global level, acting via a CoP, the new agreement would enable its Parties, building on the inputs of expert bodies, to adopt quick and direct measures for their vessels, nationals and activities under their jurisdiction, while at the same time promoting complementary measures through the relevant organizations to which they are members.86 The agreement would thus provide political and scientific impetus for competent bodies to act. By fostering and enhancing coordination and cooperation between different bodies and addressing the cumulative impacts of multiple sectors, the agreement would harmonize their conservation efforts and avoid conflicting activities. It would also provide guidance, expertise and the science to understand such cumulative impacts and effectively integrate biodiversity considerations into their work. For instance, by providing guidance on how to adopt sound precautionary and ecosystem-based management measures, inter alia, through a global process for establishing cross-sectoral MPAs, the agreement could help RFMOs to better perform their conservation obligations under UNFSA and UNGA resolutions.87 Last but not least, global recognition of MPAs established at the regional level would make them binding to States outside the region and global MPA 83  E.g., LOSC article 311(3) and UNFSA article 44(2), supra note 66. 84  E.g., LOSC article 211(2) (flag State jurisdiction) and LOSC articles 25(2) and 211(3) (port State jurisdiction). See also submission by the European Union (2016), supra note 30, para. f). 85  See, for instance, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, for example Articles 9(4) and 11, at: http:// www.fao.org/fileadmin/user_upload/legal/docs/037t-e.pdf. 86  See Gjerde, K., et al., supra note 39, 19. 87  See supra notes 31 and 34. See also submission by Nauru on behalf of the PSIDS, supra note 30, para. 2.2.

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designation would improve acceptance and buy-in beyond a specific region or sector, facilitating implementation. 7.2 Weaknesses Unless the CoP has the authority not only to designate MPAs, but also to adopt concrete measures to protect the area, there would be no guarantee that the necessary protective action is taken, with the risk of creating high seas “paper parks”, as under the hybrid model. Some delegations cautioned against a global model leading to a centralized system, duplicating mandates and “undermining” existing bodies.88 However, such concerns are not well founded as they seem to be based on an inaccurate reading of the global model and a narrow interpretation of “not undermining”. First of all, there is no risk of duplicating the work of existing bodies as the new agreement would have a different mandate encompassing broader biodiversity conservation in ABNJ, including the ability to address cumulative impacts. And by providing a platform where all marine biodiversity related matters can be considered in an integrated fashion, it would complement and supplement, rather than undermine, the mandate of existing bodies and frameworks, which is limited to their specific sector or region. In particular, MPAs and associated protective measures adopted under the BBNJ agreement would not reduce, but rather improve the effectiveness of regional and sectoral initiatives, overcoming their geographical and material limitations, harmonizing conservation efforts or filling the gaps when there is no competent body in place. Moreover, the global model does not aim to create a hierarchical structure and to bypass or replace competent organizations, but intends to trigger coherent action at all levels, global, regional, sectoral and national. As mentioned above, the MPA process under such model would build on the expertise and data provided by competent organizations, which would be consulted from a very early stage and would therefore play a key role in the development of MPA proposals and management plans. Like any multilateral process, one of the challenges the global approach will also have to consider is that MPAs and associated protective measures adopted under the BBNJ agreement will only bind States Parties. According to some,89 this could place the latter in a competitive disadvantage compared to nonParties. The very need to avoid competitive disadvantages would work as an additional incentive for States Parties to pursue corresponding measures in the

88  E.g., ISSD Reporting Services, Summary of the First IGC, supra note 67. 89  Concerns expressed in bilateral conversations and informal discussions.

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sectoral and regional bodies to which they are members so to bind the entire sector and all regions. Finally, concerns have been expressed that under the global model there would be some initial costs for building capacity and running a new institutional framework. However, such additional costs would be compensated by the fact that there will be no need to increase resources and capacity in existing bodies. 8

Concluding Remarks

According to scientists, MPAs, in particular highly protected marine reserves, are the most effective among all types of ABMTs to address the cumulative impacts of human activities and climate change and achieve long-term conservation of biodiversity. However, in spite of longstanding global targets to protect 10% of the ocean by 2020 and the call by scientists to fully protect at least 30% of it by 2030, currently, marine reserves cover less than 1% of the high seas. The negotiation of a BBNJ implementing agreement under LOSC provides the opportunity to fill current gaps in the regime governing ABNJ, particularly the lack of mechanisms to deliver cross-sectoral MPAs in most of ABNJ. The BBNJ implementing agreement would enable the law of the sea framework to adapt to new knowledge and circumstances in an ever-changing ocean by operationalizing LOSC provisions to apply to biodiversity in ABNJ. Notably, the new agreement would provide a dedicated platform where all marine biodiversity related matters in ABNJ can be considered in an integrated fashion, thus promoting cross-sectoral cooperation, and galvanizing action through the setting of common rules, objectives, principles, and a process towards the establishment of a network of MPAs in ABNJ. Among the three governance approaches to the establishment of MPAs under the new BBNJ agreement discussed in this Chapter, a global model seems the most effective to change the status quo. The global approach envisages an agreement equipped with a robust institutional framework, including a CoP with the authority to establish MPAs at the global level, and monitor and review implementation. As it was argued in this Chapter, empowering Parties acting via a CoP, not only to designate MPAs, but also to adopt management plans with concrete protective measures, seems the only way to avoid creating “paper parks” in ABNJ and to ensure that appropriate action is taken, without relying upon external bodies for implementation. This approach is in line with the inherent power of States under international law to adopt stricter

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environmental measures for their nationals, vessels, and activities acting individually or multilaterally. By relying on concrete action by other bodies, the regional and hybrid models would not address the many limitations of regional and sectoral action that the new agreement is meant to remedy and risk to replicate the fragmentation which is behind the failure of the current system. Under the global model, moreover, MPAs and management plans would be developed in close consultation with competent regional and sectoral bodies, building on their expertise and data, thus avoiding the risk of “undermining” their competence. Following the interpretation of “not undermining” under UNFSA, this means that measures adopted under the BBNJ agreement should not “reduce the effectiveness” of initiatives undertaken by competent bodies. It was argued in this Chapter that MPAs and associated protective measures adopted under the agreement would not reduce, but rather complement and strengthen the effectiveness of initiatives of sectoral and regional bodies, by addressing multiple and cumulative impacts, harmonizing their conservation efforts, or by filling the gaps when there is no competent body in place. The global approach, therefore, seems the best suited among all models under consideration to lead to the creation of a network of effectively managed MPAs in ANBJ, thus enabling the international community to meet its global conservation and development goals. Note The author is Political Advisor with Greenpeace International working on ocean governance. The author wishes to thank Duncan Currie, Andrew Friedman, Sofia Tsenikli and Nichola Clark for their comments on an earlier draft of this Chapter. Views are those of the author, as are any errors or omissions.

Chapter 7

Fisheries and Areas beyond National Jurisdiction: Advancing and Enhancing Cooperation Richard Barnes 1

Introduction

The United Nations Convention on the Law of the Sea of 1982 (LOSC) provides a framework for the regulation of the world’s oceans.1 However, it suffers from some gaps or “unfinished agendas”;2 some known at the time, and some that have been revealed through new science and understanding or changes in oceans use. Since the adoption of the LOSC, our ability to explore and exploit the high seas and deep-sea ecosystems has grown considerably. We are increasingly aware of gaps in our understanding of oceans systems and of the adverse impacts thereupon of human activities. Unfortunately, as human activities reach ever further offshore to new marine frontiers, governance frameworks have tended to lag behind. We are able to commercially exploit fish and other marine living resources anywhere in the oceans. And we understand that fisheries pose the most significant threat to the biodiversity in marine areas.3 It is increasingly clear that the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) is a major unfinished agenda of the LOSC. Recognizing the need to address this issue, the United Nations General Assembly (UNGA) established the Ad-Hoc Open-ended Informal Working Group to study issues related to the conservation and sustainable management of marine biological diversity beyond areas of national jurisdiction (BBNJ Working Group) in 2004.4 This would provide the basis for more detailed studies by States of these issues, and ultimately lead to recommendations on 1  United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994), 1833 UNTS 396. 2  See D Freestone and G Mangone, “The Law of the Sea Convention: Unfinished Agendas and Future Challenges”, (1995) 10 IJMCL, 151–55. 3  R Barnes, “Fisheries and Biodiversity”, in M Fitzmaurice, D Ong and P Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar, Cheltenham, 2010), 542–63. 4  U NGA Res. 59/24, 17 December 2004, UN Doc. A/Res/59/24, 4 February 2005.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_009

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how to improve cooperation and coordination.5 After almost a decade of discussion, the BBNJ Working Group recommended to UNGA that it develop an international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. UNGA subsequently established a Preparatory Committee (PrepCom) to discuss and map out the shape of an international legally binding instrument on conservation and sustainable use of biodiversity in ABNJ.6 In December 2017, the UNGA initiated an intergovernmental conference to negotiate an ABNJ Agreement.7 It is expected that over the course of four sessions between September 2018 and 2020 the text of this agreement will be agreed, and the most significant of LOSC’s unfinished agendas be resolved. Unfortunately, this progress conceals deeper currents of discord about the scope of the agreement, and in particular the extent to which it can or should address fisheries management. Given the impact of fishing on biodiversity in ABNJ, this is a critical question for both fisheries management and the proper governance of ABNJ. This Chapter provides new insights into how this major new agreement can and should advance international fisheries management. Part 2 of this Chapter evaluates the case for and against the inclusion of fisheries. It advocates the inclusion of fisheries within the ABNJ agreement, both directly and indirectly. Although the question of inclusion of fisheries is essentially a political question, this outcome is desirable from a conservation perspective. It is also supported by existing legal rules and institutions. Given the importance of including fisheries, the real focus of our efforts should not be on why, but rather how fisheries are included in the new agreement. As the review of developments towards an ABNJ agreement shows in Part 3, there are some clear 5  Id., at paras. 73–4. 6  For further details on the work of the BBNJ Working Group and PrepCom, see: R Barnes, “The Proposed LOSC Implementation Agreement on Areas Beyond National Jurisdiction and its Impact on International Fisheries Law”, (2016) 31 International Journal of Marine and Coastal Law, 583–619. See also R Long and M Chaves, “Anatomy of a new international instrument for marine biodiversity beyond national jurisdiction. First impressions of the preparatory process”, (2015) 6 Environmental Liability, 213–229; T Scovazzi, “The negotiations for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction”, (2016) 70 Marine Policy, 188–191; R Blasiak and N Yagi, “Shaping an international agreement on marine biodiversity beyond areas of national jurisdiction: Lessons from high seas fisheries”, (2016) 71 Marine Policy, 210–216; KJ Marciniak, “New Implementing Agreement under UNCLOS: A threat or an opportunity for fisheries governance?”, (2017) 84 Marine Policy, 320–324. 7  U NGA Res 72/249 on an International legally binding instrument 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, UN Doc A/Res/72/249 19 Jan 2018.

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pointers to how fisheries can be included. Yet there are also some potential impediments to be overcome. Political objections aside, these principally concern the risks of conflicting legal regimes as reflected in the core requirement that the new agreement “should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies”.8 This is significant because fisheries management is perhaps the principal area where existing regimes have developed well-established, if not comprehensive, mandates. In Part 4, three key ways of addressing these concerns are set out: conflicts and compatibility clauses, the use of general principles, and developing mechanisms for enhanced cooperation. Each contributes to a more integrated governance regime without threatening existing mandates and institutions. This preserves the necessary balances inherent in the law of the sea whilst enabling advances through cooperation. This will counter the traditional freedom bias that impedes sustainable fishing in ABNJ. 2

Inclusion or Exclusion of Fisheries?

The many threats to ABNJ include: unsustainable and destructive fisheries, pollution from shipping, seabed mining and land based activities, intensified use from offshore energy developments, ocean acidification and warming.9 It would be wrong to think of the proposed agreement as a panacea, but given these well-known problems with the governance framework, it is reasonable to hope that agreement can be reached that will make significant inroads into these challenges. The proposed agreement seeks to address threats to vulnerable components of marine biodiversity through a package of measures, including area based management tools (including marine protected areas (MPAs)) and environmental impact assessments (EIAs). More specifically, it seeks to govern marine genetic resources (MGRs) by establishing rules that potentially govern access, benefit sharing, capacity building and technology transfer. Whilst framed within the broad terms of the LOSC, different activities are regulated through different sectoral regimes for fisheries, shipping, pollution 8  Id., para. 7. 9  K Gjerde, H Dotinga, S Hart, EJ Molenaar, R Rayfuse and R Warner, Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN, Gland, Switzerland, 2008); D Freestone, “Governance of Areas Beyond National Jurisdiction: An Unfinished Agenda”, in J Barrett and R Barnes (eds), Law of the Sea: LOSC as a Living Treaty (BIICL, London, 2016) 231–265.

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control, deep seabed mining and marine scientific research. For the most part, these regimes are contingent upon a system of flag State jurisdiction that places responsibility for the prescription and enforcement of activities in ABNJ upon the flag State or national State of the persons engaged in a specific activity. Aside from well-documented concerns about the accountability of flag States, the fact that different activities interact and impact upon other activities renders such a diffuse and atomized system of control fundamentally flawed.10 It is simply ill-equipped to deal with the complexity, overlap and extent of human activity on the high seas and deep seabed. As Molenaar and Elferink have stated: “Cooperation will always be essential to effectively manage specific activities in the high seas or to protect the marine environment of the high seas.”11 The question is: will cooperation simply mitigate the obstacles of flag State jurisdiction, or provide the basis for significant new regulatory approaches. The new agreement is intended to enhance cooperative mechanisms in ABNJ. And yet, despite international consensus on the need for a new instrument, discussions at PrepCom and the Report of the Preparatory Committee reveal significant obstacles to progress.12 In particular, fundamental questions were raised about the place of fisheries within the ABNJ agreement:13 should a new agreement include provisions on fisheries management? Some States, namely, Iceland, Japan, and the Russian Federation, have strongly resisted efforts to include fisheries management within the proposed agreement.14 They take the view that existing mechanisms – regional fisheries management organizations – are best equipped to manage fisheries on the high seas. A larger group of States (the African Group, Costa Rica, Indonesia, Jamaica, New Zealand, Norway, Peru, and the USA) have issued statements favouring the inclusion of fisheries, generally predicated on the need for a

10  RM Warner, “Conserving marine biodiversity in areas beyond national jurisdiction: co-evolution and interaction with the law of the sea”, Frontiers in Marine Science, 20 May 2014. Available online at https://www.frontiersin.org/articles/10.3389/fmars.2014 .00006/full#B44. 11  EJ Molenaar and AG Oude Elferink, “Marine protected areas in areas beyond national jurisdiction: The pioneering efforts under the OSPAR Convention”, (2009) 5 Utrecht Law Review. 12  R Barnes, supra note 6, 588–602. 13  D Tladi, “The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Areas beyond National Jurisdiction”, (2015) 30 IJMCL, 654–673, at 660–662. 14  Earth Negotiations Bulletin, (2016) vol. 25/97, 1–2, and Earth Negotiations Bulletin, (2016) vol. 25/98, 2.

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holistic or integrated agreement.15 There is also pressure within the EU to include fisheries in the agreement.16 Such a divide is further reflected in continuing debates about whether or not fish are included within the definition of MGRs. Some States have expressly supported the inclusion.17 Others have rejected it.18 This Chapter is more concerned with the wider impacts of the agreement on fisheries management rather than the definition of MGRs. The LOSC does not define MGRs, with the definition provided by the Convention on Biological Diversity commonly used. This refers to “any material of plant, animal, microbial or other origin containing functional units of heredity”. Logically this includes derivatives of fish. However, as Marciniak observes, to focus simply on the inclusion of fish in the definition of MGRs serves to conflate the nature of a resource with its use or intended use.19 It does serve to underscore the challenge of defining the scope of the ABNJ agreement. 2.1 The Case for Including Fisheries in the Agreement The answer to the basic question of whether fisheries are in or out is not immediately a legal question. As a matter of general international law, there is no obligation to include or exclude any given matter in a treaty. Nor does international fisheries law commit States to deal with fisheries in a particular way. Indeed, international fisheries law is often commendable in its flexibility, accommodating both dynamic natural and social conditions. Of course, political decisions are not taken in a vacuum. Recognizing this, then there are a number of reasons that favour the inclusion of fisheries in the proposed ABNJ agreement. First, fishing activities constitute the main threat to marine biodiversity in ABNJ.20 Overfishing remains a major concern. The FAO reports that 33.1% 15  Id. NGO participants have also pushed for an inclusive agreement. 16  See the European Parliament Resolution of 12 April 2016 on Fisheries aspects within the international agreement on marine biodiversity in areas beyond national jurisdiction, United Nations Convention on the Law of the Sea (2015/2109(INI)). Reproduced in Official Journal C 58, 15.2.2018, 2–8. 17  Namely, South Africa, on behalf of the African Union, and Bangladesh. Reported in IISD, Summary of the Second Session of the Preparatory Committee on Marine Biodiversity Beyond Areas of National Jurisdiction: 26 August–9 September 2016, (2016) 25(118) Earth Negotiation Bulletin, at 4. 18  Canada, Iceland, the Republic of Korea and the United States stated that fish used for their genetic properties should be treated as any other organism used for the same purpose, but fish used as a commodity is addressed by other legal frameworks. Id. 19  Marciniak, supra note 6, 322. 20  R Barnes, supra note 3, 542–63.

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of stocks monitored were overfished, whilst another 59.9% are at or near the maximum sustainable yield.21 The status of high seas stocks is more acute.22 Drawing on FAO data, Dunn et al. report that overfishing of high seas and straddling stocks occurs at almost double the rate of coastal fish stocks.23 Gilman et al. suggest that RFMOs are managing 37% of by-catch problems in fisheries under their jurisdiction, with wider failings in their management practices.24 Increased pressure on fish stocks inevitably places pressure on marine ecosystems. This is exacerbated by the vulnerability of many deep sea fish stocks to overfishing and by-catch. Technological innovation and enhanced fishing gear has enabled a greater degree of exploitation of previously inaccessible areas. The use of heavy bottom trawling gear has resulted in substantial damage to vulnerable marine ecosystems.25 As Norse et al. point out: “The serial collapses that took 50 years in coastal marine fisheries takes only 5–10 years in the deepsea […] and a sustainable combination of low catches with limited ecosystem impact is a difficult, almost impossible, balance to achieve.”26 Despite this, fisheries management generally lacks sensitivity to wider ecosystem and biodiversity processes.27 This should be understood against a background of fisheries management that still has significant gaps in coverage. There is no specific legal framework for the international management of discrete high seas stocks.28 LOSC provides a general framework by establishing duties to have due regard to the interests of other States (article 87(2)), subjecting freedom of fishing to other treaty obligations and LOSC obligations (article 116), obligations to cooperate in conservation and management (article 118), and to introduce basic 21  FAO, The State of World Fisheries and Aquaculture 2018 (FAO, Rome, 2018), 6. 22  Id., 45. 23  DC Dunn et al., “Empowering High Seas Governance with Satellite Vessel Tracking Data”, (2018) Fish and Fisheries, 729–739, 731. 24  E Gilman et al., “Performance of regional fisheries management organizations: ecosystembased governance of bycatch and discards”, (2014) 15 Fish and Fisheries, 327–351, at 337 and 340. 25  H Scheiber, “Economic uses of the oceans and the impacts on marine environments: past trends and challenges ahead”, in D Vidas and PJ Schei (eds), The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Martinus Nijhoff, 2011), 65–97, 86. 26  AA Norse et al., “Sustainability of deep sea fisheries”, (2012) 36 Marine Policy, 307–320. 27  SF Thrush et al., “Implications of fisheries impacts to seabed biodiversity and ecosystembased management”, (2016) 73 ICES Journal of Marine Science (Supplement), i44–i55; MJ Juan-Jorda et al., “Report card on ecosystem-based fisheries management in tuna regional fisheries management organizations”, (2018) 19 Fish and Fisheries, 321–339. 28  Y Takei, Filling Regulatory Gaps in High Seas Fisheries. Discrete High Seas Fish Stocks, Deep-sea Fisheries and Vulnerable Marine Ecosystems (Martinus Nijhoff, 2013).

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conservation measures (article 119). Additionally, it establishes a general framework of duties to protect and preserve the marine environment and take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (article 194(5)). However, this falls short of a comprehensive regime, and it has so far failed to ensure that ABNJ are properly protected against the adverse impacts of fishing. The United Nations Fish Stocks Agreement (UNFSA)29 does not address discrete high seas stocks, and whilst it provides a framework for the development of RFMOs, it does not require RFMOs to act in conformity with its provisions.30 This can be done voluntarily, but it lacks systematic implementation. As Young and Friedman observe, the UN Fish Stocks Agreement Review Conferences and joint meetings of tuna RFMOs have not produced systematic or binding outcomes.31 Although there are 20 regional fisheries management bodies, there are still gaps in species and geographic coverage.32 Eight fisheries management bodies have competence to manage bottom fisheries in the high seas, covering approximately 77% of ABNJ.33 Geographic gaps in RFMO coverage include the Arctic, Central and Southwest Atlantic. This does not account for taxonomic gaps in species coverage or gaps in governance mechanisms. For example, McDorman’s analysis of RFMOs shows that they lack effective decision-making systems.34 And, as Warner points out, many RFMO conventions lack modern environmental principles.35 There is no formal coordination process between 29   The 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 (New York, 4 August 1995, in force 11 December 2001) 2167 UNTS 88. 30  K Gjerde et al., Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdic­ tion (IUCN, Gland, Switzerland, 2008), 9. 31  MA Young and A Friedman, “Biodiversity Beyond National Jurisdiction: Regimes and their Interaction”, (2018) 112 AJIL Unbound, 123–128, 128. 32  RM Warner, “Conserving marine biodiversity in areas beyond national jurisdiction: coevolution and interaction with the law of the sea”, Frontiers in Marine Science. 20 May 2014. Available online at https://www.frontiersin.org/articles/10.3389/fmars.2014.00006/ full#B44; D Tladi, supra note 13, 662–666. 33  FAO, Vulnerable Marine Ecosystems: Processes and Practices in the High Seas. FAO Technical Paper 595 (FAO, Rome 2016), 180. 34  T McDorman, “Implementing Existing Tools: Turning Words into Action – DecisionMaking Processes of Regional Fisheries Management Organizations”, (2005) 20(3) IJMCL, 423–457. 35  RM Warner, supra note 32, “Introduction”. See also D Freestone, “Modern principles of high seas governance: the legal underpinnings”, (2009) International Environmental Policy and Law, 44–49.

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RFMOs. And even within RFMOs, participation is hampered by a lack of capacity by developing States, or as a result of the closed nature of some RFMOs. They do not adequately address non-State parties, and often the substantive conservation and management measures have at best indirect effect on nontarget species. Progressing in filling governance gaps is painfully slow. Whilst guidelines do exist for exploratory fisheries, these lack bite, or obtain teeth only through other legal processes.36 It is generally accepted that there is a need for further measures to enhance and shape the practice of regional and domestic fisheries management regimes.37 Second, the law of the sea advances an integrated approach to questions of oceans governance. As every student of the law of the sea knows: “the problems of ocean space are closely interrelated and need to be considered as a whole”.38 Integration is called for in the World Summit on Sustainable Development Johannesburg Plan of Implementation,39 and it features throughout Chapter 17 of Agenda 21.40 UNFSA acknowledges the need to “maintain the integrity of marine ecosystems”.41 Article 6(b) of the Convention on Biological Diversity requires parties to adopt an integrated approach to the conservation of biodiversity, as far as possible and in accordance with their particular conditions and capabilities.42 As I have observed elsewhere, although such calls for integrated governance are high profile, they remain short of constituting a meaningful duty to integrate.43 However, this does not remove either the natural logic of integrated management or the policy need for this. Integration is at best hampered, and at worst prevented, if any sector, let alone one that impacts fundamentally on marine biodiversity, is excluded from the scope of the proposed agreement. This has been explicitly acknowledged throughout 36  L Korseberg, “The Law-Making Effects of the FAO Deep-Sea Fisheries Guidelines”, (2018) 67 ICLQ, 801–837. 37  See M Matley, “Developments in International Fisheries Law and Their Contribution to Improving the Effectiveness of RFMOs and Other Environmental Regimes”, in N Craik, C Jefferies, S Seck, & T Stephens (eds), Global Environmental Change and Innovation in International Law (Cambridge University Press, 2018), 102–122; A Yeeting and SR Bush, “RFMO-MSC Smart Regulatory Mixes for Transboundary Tuna Fisheries”, in J van Erp et al., Smart Mixes for Transboundary Harm (Cambridge University Press, 2019), 146–169. 38  L OSC, preamble, para. 3. 39  See paras. 30, 31(g), and 32. Available at http://www.un-documents.net/jburgpln.htm. 40  Available at http://www.un.org/Depts/los/consultative_process/documents/A21-Ch17 .htm. 41  U N Fish Stocks Agreement, supra note 29, preamble. 42  Convention on Biological Diversity 1992 (Rio de Janeiro, 5 June 1992, in force 29 December 1993), 1760 UNTS 79. 43  R Barnes, “The Law of the Sea Convention and the Integrated Regulation of the Oceans”, (2012) 27 IJMCL, 859–866.

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the BBNJ process.44 Or it was until the start of the intergovernmental conference proceedings. Since then the language of inclusivity, holistic governance and integration has been muted. Here the emphasis has moved to treating the package of topics agreed in 2011 “together and as a whole”. Arguably this is a function of the negotiation process, where the emphasis moves to detail and away from concepts of integration that may be considered to be muddying the waters. Indeed, one commentator indicates that the device was used to break the deadlock on the relationship between the scope of the new agreement and existing agreements, particularly fisheries arrangements.45 It is also closely bound up with the mandate of the conference not to undermine existing legal frameworks and bodies, as discussed below. Third, even if the general policy preference for and drive towards integration is considered a “weak” reason, i.e. rhetoric rather than a normative requirement, the proposed subject matter of the agreement entails some consequences for fisheries management. This is apparent in respect of the proposed use of EIAs and area based management tools (ABMTs). Impact assessments are required when there are reasonable grounds for suspecting that a proposed activity will cause significant and harmful change to the marine environment. Such an obligation is grounded in article 206 of LOSC, but also exists as a matter of customary international law.46 What matters here is the content of the EIA, which is not specified under LOSC or custom, but which is likely to be developed under the proposed agreement. The simple fact is that where activities are located in the same space or impact upon each other, they need to be factored into impact assessments. Even if fisheries are not expressly included in the proposed agreement, non-fishing activities will generally have to account for fishing by virtue of consideration of cumulative impacts. At the very least, standards of assessment will bleed into fisheries management. The same is true of the development of ABMTs. ABMTs comprise a range 44  See, for example: Ad Hoc Open-ended Informal Working Group. (2006). Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction. UN Doc a/61/65, Annex I paras. 54–8; Letter dated 30 June 2011 from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly, UN Doc A/66/119, paras. 14, 25, 32. Also, GA Res 69/292, para. 2. 45  V De Lucia, “Reflecting on the meaning of ‘not undermining’ ahead of IGC 2”, 21 March 2019, at 2, online at http://site.uit.no/jclos/files/2019/03/JCLOS-Blog-21.3.2019-Reflecting -on-the-meaning-of-not-undermining-ahead-of-IGC-2-3.pdf. 46  Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber) [2011] ITLOS Rep. 10, para. 145. See also Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep. 14, para. 204.

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of mechanisms that control human activity in a specified geographic area in order to achieve conservation or resource management objectives. They are defined by their locality, but otherwise may comprise a range of measures including MPAs, no-take zones, spatially framed gear restrictions, and zonal navigation controls. As Tladi notes, “questions may validly arise concerning the relationship between such an institutional mechanism [under the proposed agreement] and the mandate of RFMOs in any given area beyond national jurisdiction”.47 As Smith and Jabour show, experience to date with high seas MPAs via CCAMLR and OSPAR shows that fishing interests have a significant effect on the scope and content of MPA rules.48 Notably, the tensions between fishing and conservation have been less pronounced in OSPAR because there is less economic activity in the OSPAR areas.49 If a process for using ABMTs is developed, then its implementation will necessarily involve and impact upon fishing interests. This is reflected in current discussions, which clearly favor inclusive processes for designation and implementation of ABMTs.50 Finally, we are at an important moment in the development of the law of the sea. In almost 100 years, there have been only four general codification conferences, of which only two produced agreements: the Hague Codification Conference 1930 (no agreement); UNCLOS I 1958 (four Geneva Conventions based on the efforts of the International Law Commission (ILC) over the preceding 6 years); UNCLOS II 1960 (which only adopted two resolutions); and UNCLOS III 1973–1982, producing the LOSC.51 Two implementing agreements have also been adopted: the UNFSA and the Deep Seabed Mining Agreement.52 The opportunities to deliberately and deliberatively advance the law of the sea are few and far between at a global multilateral level. If States choose to exclude fisheries from the scope of the ABNJ agreement, they will have missed a once in a generation opportunity to address the shortcomings that are widely acknowledged to exist in international fisheries management. The proposed ABNJ agreement will at the very least affect fisheries management indirectly. To ignore this will simply “brush problems under the carpet”. It is better and more honest if fisheries are addressed openly and directly within the ABNJ 47  D Tladi, supra note 13, 656. 48  D Smith & J Jabour, “MPAs in ABNJ: lessons from two high seas regimes”, (2018) 75 ICES Journal of Marine Science, 417–425. 49  Id., 422. 50  Statement by the President of the conference at the closing of the first session, UN Doc A/ CONF.232/2018/7, at 11 and 13. Available at https://www.un.org/bbnj/node/382. 51  Conference documents available at: http://legal.un.org/diplomaticconferences/. 52  Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 1836 UNTS 3; (1994) 33 ILM 1309.

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agreement. If fisheries are excluded, the agreement cannot hope to establish an effective regime for the conservation and sustainable use of marine biodiversity. Indeed, it has been accepted throughout the BBNJ process that there is a need to address fisheries. In 2006, the Ad Hoc Open-ended Informal Working Group singled out destructive fishing practices and IUU fishing as major threats to biodiversity in ABNJ.53 This was reiterated in 2014, where it was noted that unsustainable fishing, in particular overfishing, illegal, unreported and unregulated fishing and certain destructive fishing practices, was the greatest threat to marine biodiversity in those areas. Of course, statements made during informal processes and negotiations are no guide to outcomes, but they are an important recognition of the force of the above arguments. 2.2 A Commitment to “Not Undermine” Aligned against these reasons for including fisheries in the ABNJ agreement is the requirement that the agreement not undermine existing agreements or mandates. The decision of the UN General Assembly to mandate an intergovernmental conference to negotiate an agreement was explicitly predicated upon the need to ensure that “the process and its result should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.”54 This requirement has been used to circumscribe the scope of the negotiations. It follows that because LOSC, UNFSA and existing RFMO agreements already address fisheries, then fisheries should remain outside the scope of the negotiations. In effect, this is a status quo bias and one that protects existing interests.55 As noted above, this is essentially a political question and the acid test of this is what States do. The direction of travel since the intergovernmental conference was mandated appears to be to excise controversial matters, and this would appear to include fisheries. At the close of the first session of the conference, which ran between 4–17 September 2018, the Statement by the President reported that:

53  Ad Hoc Open-ended Informal Working Group (2006). Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction. UN Doc a/61/65, Annex I paragraph 7. 54  U NGA Res 72/249, para. 7. 55  E Benvenisti and GW Downs, “The Empire’s New Clothes: Political Economy and the Fragmentation of International Law”, (2007) 60 Stanford Law Review, 595–632.

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With regard to the material scope, there seemed to be convergence towards distinguishing between the use of fish and other biological resources for research into their genetic properties and their use as a commodity, with the instrument applying only to the former.56 At least as far as marine genetic resources and benefit sharing are concerned, fisheries are “out”. One may also note the decline in reference to integrating concepts in the Statement: integration (no mentions); ecosystem (two mentions); connected network (one mention); inclusive – related to institutional provisions (one mention). At least cooperation received greater attention, with 32 references, although one might contrast this with references to “sectoral” bodies with 34 mentions. Even basic textual analysis points towards a much more narrowly framed agreement, one where language is being carefully used so as not to affect existing power structures in the law of the sea.57 Given the importance of fisheries in ABNJ, it is critical that fisheries are not swept under the carpet. Fisheries and the potential of a new agreement are foregrounded, and not simply lost as a matter of political expediency. It is also important that the scope of negotiations proceeds upon the basis of an accurate and reasonable construction of the term “not undermine”. Some observations on this phrase are required. At a fundamental level, law must balance a need for systemic coherence with the capacity for change. This is both a linguistic and social necessity. As a matter of language and legal reasoning, one cannot predict accurately how agreements will operate in practice. Language and social relations cannot be absolutely known or controlled. The open texture of language and the dynamic contexts within which law operates mean that laws will often operate in ways which were unforeseen by the drafters. The capacity of the law of the sea, and of LOSC, to evolve and adapt to new situations is generally regarded as a virtue, so long as this does not overreach into areas where it is deliberately excluded.58 The interaction of rules and regimes gives rise to the possibility of innovation, it provides the basis for interaction, social learning and harmonization. Law is an interactive discipline. It is inherently of a defeasible character, meaning that rules are designed to apply and develop in a systematic fashion according to

56  President’s Statement, supra note 50, 22. 57  On the use of language, see N Fairclough, Language and Power (Longmans, 1989). 58  See, generally, Barrett and Barnes, supra note 9.

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certain precepts of reasons.59 This entails their defeat, disapplication or qualification under certain conditions. This generally occurs when circumstances reveal there to be overriding reasons for not applying the normal rule. Thus it is both impossible and undesirable to hermetically seal off the influence of related rules from each other. Not least when the relationship between sets of rules is a natural and legal fact. Hence, the International Tribunal for the Law of the Sea recognized that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment”.60 The connection between fisheries and the protection of the marine environment is a systemic feature of the law and drawn from scientific reality. The exhortation to “not undermine” cannot alter the fundamental nature of how law works. All it can do is caution to ensure that law retains a desirable degree of systemic coherence. As such, we cannot rely on the mandate to “not undermine” to rule absolutely in or out any specific matter as a matter of abstracted legal process. We need to test whether or not specific legal developments are consistent with pre-existing legal rules. We need to consider whether developments are in fact complementary or enhancing of existing legal regimes. Let us consider further the requirement to not undermine. In the conference mandate it refers to “existing legal instruments and frameworks, and relevant global, regional or sectoral bodies”. This has been broadly construed as meaning existing rules and existing (institutional) mandates.61 Each of these entails different consequences since mandates might be viewed as wider and linked to questions of both express and implied authority. Thus RFMOs have a specific legal mandate, as well as an implied power to do what is necessary to fulfil that mandate. If we value nuance, integrated governance and adaptive governance mechanisms, then we need to properly understand and apply the term “not undermine”. It is not a term of art or one that has accepted meaning. Wright et al. 59  HLA Hart, “The Ascription of Responsibility and Rights”, (1948–9) 49 Proceedings of the Aristotelian Society, 171, 174. See also GP Baker, “Defeasibility and Meaning”, in PMS Cacker and J Raz (eds), Law, Morality and Society: Essays in Honour of HLA Hart (Oxford, Clarendon Press, 1977), 26; F Atria, On Law and Legal Reasoning (Oxford, Hart, 2001), esp. chapters 4 and 5; RS Tur, “Defeasibilism”, (2001) 21 Oxford Journal of Legal Studies, 355. 60  Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 295, para. 70; Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 4, paras. 120 and 216. 61  Z Scanlon, “The art of ‘not undermining’: possibilities within existing architecture to improve environmental protection in areas beyond national jurisdiction”, (2018) 75 ICES Journal of Marine Science, 405–416, at 406.

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note that it appears in several provisions of UNFSA, although it is not defined.62 In any event, in UNFSA it refers to activities that undermine the effectiveness of regional arrangements.63 Here, the emphasis is on compliance rather than institutional competences, so drawing comparisons with its intended use in the ABNJ agreement is inappropriate. Scanlon’s detailed analysis of the term comes to the conclusion that it is ambiguous.64 It is not defined, and there does not appear to be any clear agreement on its meaning. There is no preponderance of State practice on this point. And, if anything, States’ positions seem to be evenly balanced between those States advocating an inclusive approach to the scope of the agreement, and those favouring an exclusive (restricted) scope.65 Further, the fact that it is juxtaposed with the equally ambiguous term “effectiveness” renders it even more difficult to understand. I suggest that there are four ways of construing this term. Option one is that it precludes only those rules or mandates that directly contradict pre-existing rules or mandates. This means that an ABNJ agreement cannot address matters that are covered by existing fisheries management rules, but it can address matters that have been identified as part of the governance gaps. It cannot remove or change existing rules, but it can introduce rules where none exist. This gap-filling approach would address the above concerns. There appear to be two objections to this approach. First, it must also ensure that existing mandates are respected. At a general level, this requires deference to the fact that RFMOs and other sectoral bodies have mandates that should be respected, whether or not these are actively being used. Herein lies the crux of the issue: the mandates of many RFMOS are quite widely drawn – at least in terms of power. Where they are weak is in terms of duties. And any attempt to establish duties will challenge a mandate. Second, it might result in a patchwork approach, where gaps are filled on an ad hoc basis – something that could not easily be accommodated in a multilateral agreement. Treaties generally require rules to be framed in general terms, with scope for nuanced application left to institutional processes or implementation by States. As discussed below, one way of securing this is to use a carefully crafted conflicts clause that establishes general mandates, subject to restrictions, the meaning and application of which are tested on a case-by-case basis.

62  G Wright et al., High Seas Fisheries: What Role for a New International Instrument?, Study no 3/2016, IDDRI (Paris, 2016), 10. 63  U NSFA arts. 17(4) and 18(1). 64  Z Scanlon, supra note 61, 406. 65  Id., 408.

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Option two is to construe “not undermine” to mean non-duplication. In theory, this would minimize inefficiency and potential conflict, and, in practice, this means the ABNJ agreement (or any institutional mechanisms it established) would be able to address matters where there were no rules or mandates. However, framing things in terms of non-duplication is too restrictive. Again, it only permits gap filling and one must question how a coherent regime could be drafted that simply fits into the gaps left by other frameworks and bodies. Furthermore, the fact is that many existing agreements duplicate both language and material scope of other agreements. At a general level, any implementing agreement must revisit some of the same ground covered by existing agreements. UNFSA did not undermine LOSC (or existing RFMOs) by developing more specific rules on straddling and highly migratory stocks and governance principles. Option three: the term could be construed as facilitating measures that represent non-retrogression in standards. That is, “undermine” only applies where existing rules or mandates are weakened, not where standards are advanced. A comparable example would be the inclusion of the precautionary approach in UNFSA. However, this faces the same concerns noted for options one and two. Option four: the proposed agreement could focus on measures that enhance only. The term “undermine” means to remove or lessen a power. If the ABNJ agreement establishes additional powers or authority, then arguably this would be consistent with the negotiating mandate. It would also be consistent with the reference to effectiveness. Scanlon considers whether “effectiveness” could be used as a key determinant.66 Thus the test of whether or not something could be included in the ABNJ agreement would depend upon whether or not it undermined the “effectiveness” of existing rules or mandates. However, she concludes that this would pose significant challenges given the breadth of existing regimes and practices.67 To this we should add that determining “effectiveness” would require some measure of performance review and this is something sorely lacking within existing regimes and processes. “Enhance” could be taken to entail a range of things: new powers, creation of new bodies or processes (such as review bodies or observer mechanisms), obligations to cooperate with other bodies. More generally, one could imagine a menu of options. The challenge here is whether enhancing powers necessarily undercuts a mandate. There are perhaps two arguments against permitting enhancements. First, the mere act of enhancing involves an assumption of 66  I d., 407. 67  Id., 408.

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authority. Giving powers would in fact undermine existing bodies since it should be those bodies that define their mandates. A second limit to enhancement would be in the creation of duties. Whilst the grant of expanded powers certainly does not “lessen” the authority of existing actors, creating duties would potentially constrain any target actor and so be taken as limiting a mandate. This is perhaps significant, since the main thrust of the ABNJ agreement is to establish strong conservation and use requirements for activities impacting on marine biodiversity. One possible defence is to recall that it is States that are the sources of authority and that agreements and institutions simply mediate the way such authority operates. As long as the same States are involved in determining what allocations of authority are appropriate, there can be no claim that mandates are being undermined. Of course, there is little indication that States are agreed on this. Another no attractive counter is to frame the provisions of the ABNJ agreement as a menu of options or facilitating provisions that do not intrude upon mandate, but rather facilitate action by existing actors. The provision of options does not remove the autonomy of choice and hence authority. This would potentially balance any tensions that might exist between multilateral and regional fora concerned with related or overlapping matters. To summarize, we must reject a strong definition of “not undermine”. This would be anathema to the dynamic and connected nature of law. If too strongly respected, it will simply perpetuate the existing fragmented nature of oceans governance. At the same time, we must be sensitive to the potential of conflicting regimes. There is nothing in principle wrong with existing frameworks having overlapping remits in geographical terms. This occurs already with RFMOs and regional environmental arrangements. Cooperation requires mechanisms that proactively engage existing bodies. This requires the agreement to establish mechanisms for this to happen. This cannot be left to voluntary practices. Navigating through this tension is something with which States are currently engaged. By examining records of the negotiations, we can gain some insight into the direction of travel, and so signpost opportunities for progress. 3

ABNJ Agreement and Fisheries: Reading between the Lines

Whilst fisheries were openly discussed during the BBNJ Working Group and PrepCom meetings, they have disappeared from the text of more recent documents. This might suggest that fisheries are off the menu. However, this ignores the indirect relevance of many provisions that are stated in negotiating

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documents and the importance of dealing with ABNJ in an integrated and holistic manner. If we look carefully at recent documents, we can see that fisheries are not far from the surface of discussions, and that the outcome of such discussions will impact upon fisheries management. Identifying trends in international negotiations can be a difficult process. In the context of the ABNJ agreement, some indication of this can be taken from the Reports of the PrepCom, the Statement of the President at the end of the substantive negotiation sessions, which includes reports from the informal working groups on capacity building, ABMTs, EIAs, and MGRs and access to benefits, and the President’s Aid to Negotiations. The Report of the PrepCom provides a framework for the negotiation of the ABNJ agreement.68 It is an informal working document.69 The Report of the PrepCom provides a synopsis of its four meetings. More importantly, it contains a series of recommendations on the elements to be considered in a draft text, which were taken forward into the intergovernmental conference. These elements are divided into “Sections A” and “Section B” matters.70 Section A includes non-exclusive elements that generated convergence among most delegations. Section B contains some of the main issues on which there is divergence of view. The contents of Sections A and B are not exhaustive. Neither do they reflect a consensus on content, so they are without prejudice to the negotiations. However, one might assume that the content of Section A is more likely to find its way into the draft text than the contents of Section B. Of course, this assumes that the issues in each Section are discrete, and this is not the case. A number of cross-cutting issues and commitments fall into Sections A and B. This is later reflected in the mandates for the informal working groups at the intergovernmental conference, each of which expressly reports on cross-cutting issues. The President’s Statement captures progress at the end of the first session of the conference.71 Its contents are marked by its focus on the four thematic issues as delegated to the informal working groups, with cross-cutting matters reported by each of the groups.72 The President’s Aid to Negotiations was provided in advance of 68  Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument 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. UN Doc A/AC.287/2017/PC.4/2. 69  U N Res 69/292, para. 1(b). UN Doc A/Res/69/292. See also para. 13 of the Report of the Preparatory Committee, id. 70  Report of the Preparatory Committee, supra note 68, para. 38. 71  President’s Statement, supra note 50. 72  For convenience, these are flagged as points of report from the President’s Statement although it is acknowledged these represent points arising out of the working groups.

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the second conference session and is intended to facilitate focused discussions and text-based negotiations.73 It presents a series of options, some of which are framed in treaty language. However, the aid is without prejudice to the structure of the agreement or the positions of negotiating States. Commitments to enhancing cooperation run through both the PrepCom recommendations and the President’s Statement. Cooperation is framed inclusively and so would appear to encompass cooperation with RFMOs. Thus, PrepCom’s recommendations for the content of the agreement’s preamble recognize the “need to enhance cooperation and coordination for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”.74 The recommended objectives may include “furthering international cooperation and coordination”.75 A further recommendation is for the text to set out “the obligation of States to cooperate for the conservation and sustainable use of marine biological diversity” in ABNJ and to “elaborate on the content and modalities of this obligation.”76 It is recommended that the relationship of the proposed agreement with other instruments, frameworks and bodies be defined, and include text on the importance of enhanced cooperation and compatibility.77 This is echoed in proposals for institutional arrangements that could include text on “[p]romoting cooperation and coordination, including with relevant global, regional and sectoral bodies.”78 The President’s Statement also attaches great significance to cooperation, but points towards elevating either the quality or process for this. Thus it refers to the need to operationalize cooperation,79 to foster greater cooperation,80 to enhance cooperation,81 or to establish formal cooperation.82 This is reflected in the President’s Aid, which presents it as one of the objectives83 and one of the general principles.84 It is also presented as a discrete commitment: “States parties shall cooperate for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction”.85 The President’s 73  President’s Aid to Negotiations, UN Doc A/CONF.232/2019/1*, issued on 3 December 2018. 74  PrepCom Report, supra note 68, Section A(I). 75  Id., Section A(II)(3). 76  Id., Section A(III)(2). 77  Id., Section A(III)(4.2). 78  Id., Section A(IV)(1). 79  President’s Statement, supra note 50, 8. 80  Id., 11. 81  Id., 7, 11 and 12. 82  Id., 19. 83  President’s Aid, supra note 73, Section II(2)(3). 84  Id., Sections III(1)(1) (h), III(1)(3)(k). 85  Id., Section III(2).

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Statement reports a general recognition that a specific provision should be included on the agreement’s relationship to LOSC and other instruments and frameworks and relevant global, regional and sectoral bodies, but no agreement was reached on whether this should be in a single provision or repeated provisions in different sections of a treaty dealing with different subject matter.86 The President’s Aid is clearer on this point, stating that: “Nothing in this instrument shall prejudice the rights, jurisdiction and duties of States under the Convention. This instrument shall be interpreted and applied in the context of and in a manner consistent with the Convention”.87 Other optional provisions are added, but discussed in Part 4 below in the context of enhancing cooperation. PrepCom recommended that the scope is also intended to be inclusive. Thus the text of the agreement on its material scope will address the “conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”88 “Marine biological diversity” is not defined, but it ought to reflect existing definitions and, most significantly, the definition in Article 2 of the CBD, which is inclusive of the components of biodiversity as well as the diversity between species and ecosystems. That said, the wider scope can no longer be taken as a given, and points towards a concerning narrowing of scope. The President’s Statement reports that the informal working group on MGRs noted a “convergence towards distinguishing between the use of fish and other biological resources for research into their genetic properties and their use as a commodity, with the instrument applying only to the former.”89 This is followed in the President’s Aid.90 If this continues, this will result in a further fragmentation of approaches to the governance of ABNJ and marine biodiversity. A major focus of attention is on developing a set of general principles applicable to ABNJ. PrepCom recommended that the agreement set out a range of general principles and approaches to conserving and sustaining marine biodiversity. There are 21 such principles noted in the President’s Aid, including: due regard, the precautionary approach, international cooperation and coordination at all levels, the promotion of both the conservation and sustainable use of marine biological diversity, stakeholder engagement, an ecosystem based approach, and integrated approach, a science based approach, ecosystem and 86  President’s Statement, supra note 50, 8. 87  President’s Aid, supra note 73, Section II(2)(4). 88  PrepCom Report, supra note 68, Section A (II)(2.2). 89  President’s Statement, supra note 50, 22. 90  President’s Aid, supra note 73, Section III(3.1)(4).

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precautionary approaches, stakeholder engagement and public participation, and transparency and availability of information.91 Needless to say, these principles are of general application and could apply to fisheries. That said, there is no explicit reference to protection and preservation of the marine environment. This seems to be a significant omission, and one that needs to be reinstated. There was continued support for the inclusion of general principles in the President’s Aid, with a list of principles applicable in general and further options for principles applicable to different subject matter, but with no indication of how these would be set forth.92 This indicates it is likely that making the principles operational will be done through measures adopted under the instrument rather than by the instrument alone. The President’s Aid continues in the same manner, with a list of principles applicable in general and further options for principles applicable to different subject matter.93 There is considerable overlap between the sets of principles, although they are not identical. The recommendations of PrepCom for text on the identification and designation of ABMTs, including MPAs, would include provisions requiring the provision and assessment of a range of information on the environment and marine living resources, including threats and vulnerabilities, ecological information, “input from relevant global, regional and sectoral bodies”, existing measures, and socio-economic considerations.94 Such information and processes are necessarily inclusive. The text should set out the “process for coordination and consultations on the proposal with relevant global, regional and sectoral bodies”.95 This implies input from RFMOs. Notably, the President’s Statement indicates that proposals for ABMTs could be submitted by States or competent organizations, which might include RFMOs.96 It further notes that consultations on the designation of ABMTs should be open, transparent and include existing regional and sectoral bodies.97 This is important because the repeated references to regional or sectoral bodies must include RFMOs. The possibility of receiving proposals for ABMTs from competent regional or sectoral bodies remains one of the options in the President’s Aid.98 91  I d., Section A(III)(1). 92  At 8, 15, 20 and 25. Although the informal working group on MGRs indicated there was no need for these to be restated in any section on MGRs once they have been stated to be applicable to the entire instrument. Id., 25. 93   Id., Section III(1). 94  President’s Statement, supra note 50, Section A(III)(4.3.1) and (4.3.2). 95  Id. 96  Id., 13. 97  Id. 98  President’s Aid, supra note 73, Section III(4.3.2).

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For PrepCom, the proposed provisions on EIAs should include a description of the environment likely to be affected, as well as potential cumulative impacts.99 This implied a wider range of information feeding into the process, including the state of fisheries. It further recommends that the text set out how the EIA processes would relate to similar processes under other relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.100 However, the scope of such provisions is less developed in the recommendations. At session one, the conference working group on EIAs discussed how EIA provisions could be used to set an international minimum standard, combined with consultative process with regional and sectoral bodies to facilitate harmonization.101 No impact assessment would be required for any activity conducted in accordance with rules and guidelines established by existing regional and sectoral bodies.102 Nor would it be required where a mandate for this already exists. Functionally equivalent EIAs under other instruments would meet the requirements under the ABNJ agreement.103 Interestingly, the President’s Aid refers to, inter alia, the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas as a reference point in developing provisions over the conduct of EIAs.104 This signifies the fundamentally cross-cutting nature of processes. Returning to issues where there has been a divergence of view, Section B of the PrepCom’s Report lists eight areas of divergence, three of which are relevant to fisheries. First, there remains disagreement about the role and function of two principles: freedom of the high seas or common heritage of mankind (CHM).105 This divergence of opinion has continued into the conference negotiations, especially within the working group on MGRs.106 One interesting option was for CHM to govern exploitation, but for freedom of the high seas to govern access.107 However, this seems to ignore the whole significance of each principle to the ultimate question of determining the benefit flows of MGRs. Second, if any area-based management tools are put in place, then the operational modalities and decision-making processes require further discussion, 99  President’s Statement, supra note 50, Section A(III)(5.5). 100  Id., Section A(III)(5.2). 101  Id., 17. 102  Id. 103  Id. 104  President’s Aid, supra note 73, 33. 105  PrepCom Report, supra note 68, Section B. 106  President’s Statement, supra note 50, 25. 107  Id., 23.

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including on how to ensure these avoid “undermining existing legal instruments and frameworks and the mandates of regional and/or sectoral bodies.”108 This clearly overlaps with Section A issues where there is a desire for cooperation and some institutional process. Third, and related, is the general question of inter-institutional arrangements between any bodies established under an international instrument and existing global, regional and sectoral bodies. This includes questions about how monitoring, review and compliance would be undertaken.109 Again, this overlaps with the consensus on cooperation and the implied requirements for institutional processes to deliver decision-making on benefit sharing, capacity building, impact assessments and the use of ABMTs. In the President’s Statement, the reference to institutional provisions seems to focus on capacity building, technology transfer, and a clearing house mechanism – rather than more generally empowered bodies.110 The informal group on ABMTs referred to left open the options of global, hybrid or regional approaches,111 although later indicating that a global body would have to operate by consensus.112 The informal working group on EIAs also left the form of institutional processes an open matter.113 This seems to reflect the difference between sectors where there is already some institutional capacity and sectors without such capacity. In the President’s Aid, institutional processes form a discrete section of the text, but the structure and process are framed in wholly optional terms.114 Given the overlap between areas of consensus and divergence, how can progress be made, and, in particular, how can this be done in a way that enhances our ability to manage fisheries in ABNJ? The brief outline of developments indicates continued or growing consensus around a number of points: the need for the new agreement to engage directly and indirectly with existing regional and sectoral arrangements, the inclusive scope and use of general principles, and the use of existing tools or techniques to mediate the relationship between the implementing agreement and existing agreements or bodies. In the next Part, some practical suggestions are made for how to progress on these points.

108  Id. 109  Id. 110  Id., 8. 111  Id., 11. 112  Id., 14. 113  Id., 18. 114  President’s Aid, supra note 73, Section IV.

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Enhancing and Advancing Cooperation

Three areas of focus were identified in the last Part: enhancing the substance of cooperation through general principles, enhancing cooperation through institutional mechanisms, and use of conflicts and compatibility clauses. 4.1 General Principles As noted in the preceding Part, it is highly likely that the ABNJ agreement will contain a list of general principles applicable to activities in ABNJ. The detail of how these principles will be framed is yet to be agreed. If the agreement provides a general framework for the regulation of activities in ABNJ, then it is logical that the agreement extends the application of general principles to all activities in ABNJ, caveating this as necessary to ensure principles are tailored according to the practical or commercial conditions of certain activities. This could be achieved by including a general clause: “In giving effect to their duty to conserve and sustainably use marine biological diversity of areas beyond national jurisdiction, States shall give effect to [the following general principles]”, followed by a list of general principles. A clause stating the applicability of the general principles should be accompanied by further operational clauses. For example, to reinforce both the content of such principles, as well as enhancing the integration between global, regional and sectoral activities, States should be required “in applying such principles to take into account any generally recommended international minimum standards, whether global, regional or sectoral”. If need be, the application of principles in such a clause could be caveated by the term “give effect, as appropriate, to the general principles …”. Such clauses provide a means of connecting the text of the treaty to wider values, processes and practices. A number of commentators have recognized the importance of positing those general principles as applicable to ABNJ.115 A number of agreements adopt this model, such as Article 2 of OSPAR, Article 3 of HELCOM, and Article 3 of the UNFCC. For the ABNJ agreement, an approach similar to article 5 of the UN Fish Stocks Agreement could be followed, and this appears 115   A Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction”, (2012) 27 IJMCL, 205–259; R Barnes, “Consolidating Governance Principles for Areas beyond National Jurisdiction”, (2012) 27 IJMCL, 261–290; C Blanchard, “Fragmentation in high seas fisheries: Preliminary reflections on a global oceans governance approach”, (2017) 84 Marine Policy, 327–332; D Freestone, “Principles Applicable to Modern Ocean Governance”, in D Freestone (ed), Conserving Biodiversity in Areas Beyond National Jurisdiction (Brill, 2019), 49–55.

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to be favoured in the conference working documents. The President’s Aid lists 22 potential principles applicable to ABNJ: (1) to respect the balance of rights, obligations and interests enshrined in the Convention; (2) due regard for the rights, duties and interests of other States; (3) respect for the rights and jurisdiction of coastal States over all areas under their national jurisdiction; (4) respect the sovereignty and territorial integrity of all States; (5) use of ABNJ for peaceful purposes; (6) promote both the conservation and sustainable use of marine biological diversity of ABNJ; (7) promote sustainable development; (8) promote international cooperation and coordination, at all levels; (9) promote relevant stakeholders’ engagement; (10) apply an ecosystem approach; (11) apply a precautionary approach; (12) apply an integrated approach; (13) apply a science-based approach, using the best available scientific information and knowledge, including traditional knowledge; (14) adaptive management; (15) adopt measures to build resilience to the effects of climate change; (16) act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another; (17) promote the internalization of environmental costs and the use of economic instruments; (18) promote and facilitate public participation; (19) ensure transparency and availability of information; (20) take into account the special requirements of small islands developing States and least developed countries; (21) act in good faith; and (22) take into account adjacency. This list is presently highly inclusive and one expects it to be whittled down to those principles upon which political consensus exists. General principles serve an integrative function – something that is critical to effective governance of ABNJ. In the present case, by internalizing such principles to an ABNJ agreement, they become part of the treaty architecture, a function of the treaty process that enables alternative means of interface between different rules and practices in ABNJ. The principles indicate the core values underpinning the treaty and can thus influence the direction of policy and practice. They can facilitate gap filling through treaty interpretation. More generally, they can imbue the ABNJ agreement with dynamic qualities necessary for responding to a dynamic environment. Principles framed in open terms enhance the capacity of the treaty to adapt to new circumstances, and may provide opportunities for cross-fertilization of practices between different activities. The inclusion of the same such principles in different treaty texts creates linguistic and legal connections between different instruments, connections that can enable the development of practices in different fields in a connected fashion. It internalizes (i.e. makes subject to the treaty practice) the external (i.e. general principle) and so establishes an epistemic link between the subject matter of the treaty and external subject matter. These connections

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are particularly important when there is interaction between different regimes (e.g. OSPAR and NEAFC) and so a need to establish common ground for dialogue and practice. At the very least, the inclusion of general principles in the ABNJ agreement are points of common interest, and will set the tone and direction for such interactions. 4.2 Enhancing Institutional Cooperation The Preparatory Committee Report refers repeatedly to enhanced cooperation. And this is echoed in the President’s Aid.116 The meaning of this is not defined, although it points to some form of cooperation and coordination between existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies. Literature on cooperation is voluminous, but discussion of “enhanced cooperation” is virtually non-existent. A briefing paper produced by Owen, Churchill and Currie for the WWF considers this.117 Otherwise, most discussions are focused on EU law or private international law.118 In the present context, enhanced cooperation refers to action by States or international bodies, such as RFMOs or the International Seabed Authority, to achieve outcomes at a higher level, or by different means, than has hitherto generally been the case.119 This can be contrasted with “ordinary” cooperation, such as exists under numerous provisions of LOSC. On fisheries, see LOSC articles 61(2), 63(2), 64(1), 65, 66, 69(3), 70(4) and 118. Owen et al. suggest that enhanced cooperation comprises two types: Type A cooperation, “where action among States, or by a single State acting unilaterally in the interests of the international community, working in one capacity is needed to address State irresponsibility in another capacity”; and Type B cooperation, “where action by one [international body] is needed to give effect to decisions made in another [international body], or where action by one State acting unilaterally in the interests of the international community is needed to give effect to decisions made in any [international body].” In both cases, cooperation is corrective; it responds to situations when States or other international actors fail to comply with or fully meet their commitments under 116  President’s Aid, supra note 73, section III(4.2). 117  D Owen, R Churchill and D Currie, Matters for inclusion in a new international legallybinding instrument under UNCLOS: enhanced cooperation and effective dispute resolution (WWF, 2016). Available at https://www.un.org/depts/los/biodiversity/prepcom_files/ WWF_BBNJ_Prep_Com1_2016.pdf. 118  See, for example, D Thym, “Supranational Differentiation and Enhanced Cooperation”, in R Schütze and T Tridimas, The Oxford Principles of European Union Law – Volume I: The European Union Legal Order (Oxford University Press, Oxford, 2018), 849. 119  This is drawn from D Owen et al., supra note 117, para. 15.

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international law. An example of the former is the development of port State control measures to respond to flag State irresponsibility. An example of the latter would be the adoption of protective measures by an RFMO to help manage a protected area as designated by a regional seas organization. This form of enhanced cooperation has some important virtues. First, it works within existing mandates since the power to take action is otherwise permitted by international law, either by way of port State jurisdiction or through the voluntary assumption of conservation measures in related fora. Such cooperation does not “undermine” existing mandate. Second, it elevates the importance of the interests of the international community, thus targeting free riders or defaulting actors. On the other hand, such corrective measures may be limited. First, there is no duty to act; enhanced cooperation depends upon the voluntary assumption of action. Where political will does not exist, then we are no further forward. Second, it only works where there is a mandate to act. In the given examples, it is interesting that a mandate in one area can be exercised in a way to correct a potential default in another area. However, this approach cannot be used to fill a gap in existing mandates, unless there was to be some further grant of authority to the “correcting” States or international bodies. For example, Type B cooperation would not work in the case where there simply was no RFMO or regional seas organization in the region. Third, as a corrective response to non-compliance on the high seas, port State control is limited because there are many entry points into States and markets for resources captured in breach of international conservation standards. As such it is no panacea – but an additional tool. The response to these shortcomings is to provide new and structured duties of cooperation within the ABNJ agreement. The President’s Aid already includes such duties upon States120 – but this needs to be extended to accommodate and facilitate a wider range of cooperative measures including within and between international, regional and sectoral bodies. This is challenging because the participation of international organizations in treaties involves complex questions about capacity, especially as there is considerable potential overlap between States as independent agents, and States as members of intergovernmental organizations (IGOs). It would also entail some potential changes to the constitutive agreements of regional and sectoral bodies to enable them to participate in international agreements and become subject to rights and duties thereunder. One way around this is to focus on the duties of States. For example, the agreement text could provide that States shall cooperate, either directly or through regional, sectoral or international bodies, in order 120  See supra notes 74 to 84 and the accompanying text.

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to “achieve the objectives of the ABNJ agreement”. This kind of commitment could be framed in a way that extends it to States’ commitments in other fora. For example, a clause could exhort States to pursue steps within other international bodies, to which they are members, to develop and adopt cooperative mechanisms. This would enable the kind of practice already emerging in some regional fora, such as the MOU between OSPAR and NEAFC adopted in 2008.121 Or a clause could be included which requires States parties to encourage States and international arrangements not party to this agreement to cooperate in the conservation and sustainable use of ABNJ.122 These latter types of clauses at least respect the principles of consent and institutional autonomy (and so do not “undermine”). Other options include provisions exhorting mutual observership in decision-making fora, such as occurs within the General Coun­ cil of the WTO. The template for directive cooperation and enabling sectorally coordinated law-creation exists within LOSC. Thus numerous provisions require States to take account of “competent organizations”, without this being explicitly spelled out.123 This approach would provide a critical means of connecting the ABNJ agreement with other regimes, but permits this to develop in a way that is both fluid and sensitive to existing mandates. 4.3 Conflicts and Compatibility Clauses It is clear that the ABNJ agreement will need to fit within existing structures of international law. This was manifest in some BBNJ discussions about complementarity – the idea that existing mandates are not infringed, nor existing efforts duplicated. However, beyond this, the records reveal little about how this idea could be accomplished. It is suggested that this could be achieved through the inclusion of carefully drafted conflicts and compatibility clauses in the ABNJ agreement. Indeed, given the dynamic interaction of the oceans regime, and the impossibility of hermetically discrete regimes, the use of such clauses can provide the basis for constructive interaction between the agreement and other established regimes, such as the UN Fish Stocks Agreement and RFMOs.

121   A similar agreement was concluded between OSPAR and other institutions: the International Seabed Authority (2011) and the North Atlantic Salmon Conservation Organization (2013). A collaborative arrangement was also adopted between OSPAR and the Sargasso Sea Alliance in 2012. These are available at http://www.ospar.org/about/ international-cooperation/memoranda-of-understanding. 122  See, for example, article 33 of the UN Fish Stocks Agreement. 123  See, for example, LOSC arts. 22, 39, 41, 53, 60, 61 and 119. Almost the entirety of Part XII and Part XIII are predicated on regional and sectoral cooperation.

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The ILC has defined a conflict clause as “a clause [in a treaty] intended to regulate the relation between the provisions of the treaty and those of another treaty or of any other treaty relating to the matters with which the treaty deals. Sometimes the clause concerns the relation of the treaty to a prior treaty, sometimes its relation to a future treaty and sometimes to any treaty past or future. Whatever the nature of the provision, the clause has necessarily to be taken into account in appreciating the priority of successive treaties relating to the same subject-matter.”124 It is common for treaties to include specific clauses that define their relationship with past or concurrent agreements. For examples, article 311 of LOSC states that it shall prevail over the Geneva Conventions, but that it shall not “alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.” (Emphasis added.) Article 4 of UNFSA provides that “[n]othing in this Agreement shall prejudice the rights, jurisdiction and duties of States under the Convention. This Agreement shall be interpreted and applied in the context of and in a manner consistent with the Convention.” Further, article 44 of UNFSA provides that the “Agreement shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Agreement and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Agreement.” (Emphasis added.) Alternatively, there could be a treaty provision that requires compatibility of approaches, similar to article 7 of UNFSA. This requires that “[c]onservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks.”125 Notably, the means of ensuring compatibility are framed in terms that do not give a priori priority to any set of interests. They merely require taking into account conservation and management measures regarding the same subject matter or that have been previously agreed. They do elevate the importance of “biological unity” and emphasize that measures “do not result in harmful impact on the living resources as a

124  Reports of the ILC, ILC Yearbook (1966) Vol. II, 21. 125  Art. 7(2) of the UN Fish Stocks Agreement.

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whole”. Compatibility is merely facilitated, and this would seem to be consistent with the requirement to “not undermine”. It requires no stretch of imagination to expect that the ABNJ agreement will make use of carefully drafted conflicts and compatibility clauses to ensure existing arrangements are not undermined. Indeed, the emphasis so far on “not undermine” indicates that it is unlikely the ABNJ agreement will claim “priority” over preceding agreements. However, a more nuanced reference to rights and duties under other compatible agreements is a powerful way of facilitating coordination between regimes dealing with potentially overlapping subject matter. Ideally both types of provisions should be utilized because this would help drive collaboration and sharing of practices across different institutions and sectors. This keeps the door open for a more constructive development of international fisheries law in light of the ABNJ agreement. 5

Concluding Remarks

When we think of the threats to ABNJ, we should remember that these areas comprise 40 per cent of the surface of the planet, 62 per cent of the surface of the oceans and nearly 95 per cent of their volume. Threats to ABNJ are threats to a critical earth system and so are in a very real sense existential threats. These fundamental facts, and the infrequent opportunities that exist for enhancing or innovating legal regimes, make it all the more important to address the conservation and sustainable use of marine biodiversity in ABNJ in a holistic, inclusive way. This means ensuring that the critical threats that fishing poses for marine biodiversity are not ignored or marginalized through legal processes overly concerned with protecting the status quo. We should prioritize protection of our oceans over protection of the status quo. Unfortunately, the tide at the intergovernmental negotiating conference suggests a move towards a more narrowly framed ABNJ agreement. There is growing consensus in the MGR working group that this part of the treaty at least does not address fish as a commodity.126 In other working groups, including that on cross-cutting issues, fisheries appears to be of marginal concern. In this respect, it is more marine genetic resource protection than “high seas” treaty. Only in the working group on ABMTs is there some indication of the importance of compatibility and alignment with, for example, the UN Fish Stocks Agreement. Rather than swim against the tide, this Chapter focuses 126  See Earth Negotiation Bulletin, vol. 25, No 195, 3.

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on those areas where effort is required to ensure that the ABNJ agreement is designed with sufficient foresight and care to ensure that it is not bereft of influence on fishing activities. This would be both an environmental and legal tragedy. Whilst systemic coherence is important, it can undermine innovation and solutions to institutionally entrenched governance failures. We should reject too strong a deference to the notion of “not undermining”. Paradoxically, it will perpetuate the existing fragmented nature of oceans governance and prioritize status quo over necessary change. Even if the text does not directly address fisheries, the inclusion of well drafted clauses on general principles, institutional cooperation and conflicts can have important direct and indirect effects on fisheries management in ABNJ. This is just another way of balancing interests, and on that basis, the ABNJ agreement will advance the protection of marine biodiversity and fisheries, whilst respecting established regimes.

Part 4 Disputes Concerning the Delimitation and Delineation of the Continental Shelf beyond 200 Nautical Miles

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Chapter 8

Disputes Concerning the Delimitation of the Continental Shelf beyond 200 Nautical Miles Leonardo Bernard and Clive Schofield 1

Introduction

Over half of the world’s coastal States have made or have indicated that they are planning to make submissions to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS was established under Annex II of the 1982 United Nations Convention on the Law of the Sea (LOSC)1 and is one of three legal bodies established under the Convention.2 Article 76 of the Convention provides that the CLCS shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf.3 States Parties to the LOSC thus must submit information concerning the outer limits of their continental shelf beyond 200 nautical miles (M) to the CLCS. Currently, these submissions cover an area estimated to be in excess of thirtyseven million square kilometres of continental shelf areas seawards of 200 M exclusive economic zone (EEZ) limits. Over three million square kilometres of these submission areas overlap with one another and thus require the delimitation of an outer continental shelf boundary (see further below). This Chapter reviews the definition of the outer limits of the continental shelf and provides a global scale review of submissions to the CLCS and the overlaps between them. Delimitation of the continental shelf is then explored with a view to 1  United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS at 3 (entered into force 16 November 1994) [hereinafter, LOSC or the Convention]. As of 31 March 2019, there are 168 parties to LOSC (including the European Union). See also, United Nations Convention on the Law of the Seas, Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part XI of the Convention and of the Agreement for the implementation of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks as at 31 March 2019, available at . 2  The other legal bodies established by Convention are the International Seabed Authority (ISA) and the International Tribunal for the Law of the Sea (ITLOS), see LOSC, art. 156 and Annex VI, respectively. 3  L OSC, art. 76(8).

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distinguishing whether there is a distinction to be drawn between delimitation of the continental shelf within 200 M and beyond this limit. 2

The Definition of the Outer Limits of the Continental Shelf

In accordance with article 1 of the 1958 Convention on the Continental Shelf (Continental Shelf Convention),4 the continental shelf was defined as “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the Territorial Sea to a depth of 200 metres”, “or to a depth beyond that limit where exploitation of resources was possible”.5 Clearly, this definition of the continental shelf, based as it was on exploitability and thus technological developments in the oil and gas industry, was open-ended.6 By the time the Third United Nations Conference on the Law of the Sea (UNCLOS III) was held, the technology development in the oil and gas industry had allowed exploration beyond the depth of 200 metres.7 Since the criterion of exploitability was open to various interpretations, there was an evident need at UNCLOS III to make the definition of continental shelf and particularly the delineation of its outer limits more precise.8 The result of this refinement of the rules relating to the continental shelf is contained in article 76 of the LOSC.9 Article 76, paragraph 1, of the Convention establishes that the continental shelf of a coastal State consists of “the seabed 4  Convention on the Continental Shelf, done at Geneva on 29 April 1958, UNTS 499, at 311 (entered into force 10 June 1964) [Continental Shelf Convention]. 5  The First United Nations Conference on the Law of the Sea (UNCLOS I), which took place in Geneva in 1958, yielded four conventions. Aside from the Continental Shelf Convention, the other conventions are: Convention on the Territorial Sea and the Contiguous Zone, done at Geneva on 29 April 1958, UNTS 516, at 205 (entered into force on 10 September 1964); Convention on the High Seas, done at Geneva on 29 April 1958, UNTS 450, at 11 & 82 (entered into force on 30 September 1962); and Convention on Fishing and Conservation of the Living Resources of the High Seas, done at Geneva on 29 April 1958, UNTS 559, at 285 (entered into force on 20 March 1966). 6  See, Kenneth O Emery, “Geological Aspect of Sea-floor Sovereignty”, in Lewis M Alexander (ed), The Law of the Sea: Offshore Boundaries and Zones (The Ohio State University Press, 1967), at 155; Gilbert Gidel, “The Continental Shelf”, (1954) 3(1) University of Western Australia Law Review 87, at 89–90. 7  Official Records of the Third United Nations Conference on the Law of the Sea, Summary Records of 16th Meeting of the Second Committee, A/CONF.62/C.2/SR.16, 26 July 1974, at 145. 8  Id., at 144. 9  The rights and duties of coastal States in relation to the continental shelf are detailed in Part VI of LOSC. See generally, P.J. Cook and C.M. Carleton (eds), Continental Shelf Limits, the Scientific and Legal Interface (New York, Oxford University Press, 2000).

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and subsoil of submarine areas”, extending to a distance of 200 M from relevant baselines or “throughout the natural prolongation of its land territory to the outer edge of the continental margin.” Thus, all coastal States are entitled to a legal continental shelf up to 200 M from their coast, which corresponds with the breadth of the then freshly established exclusive economic zone (EEZ) concept.10 Under the EEZ concept, every coastal State has the right to claim sovereign rights over both the seabed and water column out to 200 M. This is the case regardless of whether the continental margin actually extends that distance offshore and providing that there are no overlapping claims with neighbouring States.11 Alternatively, where coastal States are positioned on broad continental margins, they are able to assert rights over those parts of the continental shelf beyond the 200 M limit forming part of their natural prolongation.12 These areas of continental shelf beyond the 200 M limit are frequently referred to as the “outer” or “extended” continental shelf. It is worth noting that both of these terms are problematic. In particular, the former term suggests that there are distinct “inner” and “outer” portions of the continental shelf when legally this is not the case (see below). Further, referring to the “extended” continental shelf arguably gives a somewhat misleading impression that coastal States are somehow advancing claims to “additional” areas of continental shelf.13 As continental shelf rights are inherent to the coastal State this is not, in fact, the case. Instead, coastal States and the CLCS are engaged in determining the proper location for the outer limits of the continental shelf seawards of the 200 M limit. 10  See, LOSC, Part V (arts. 55–75). 11  L OSC, arts. 56–57. These rights over the seabed and subsoil are, however, governed in accordance with Part VI (dealing with the continental shelf) of the Convention rather than Part V (dealing with the EEZ). 12  While no sure figure can be determined until all outer continental shelf submissions have been considered by the CLCS, it has been estimated that outer continental shelf areas may encompass around five per cent of the ocean floor. See Cook and Carleton, supra note 9, at 3. 13  Here it is worth observing that, in accordance with LOSC, art. 77(3), continental shelf rights are inherent and “do not depend on occupation, effective or notional, or on any express proclamation.” Additionally, in the North Sea Continental Shelf Cases, the ICJ stated in explicit terms that: “the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist, ipso facto and ab initio, by virtue of its sovereignty over the land” and that “[i]n short here there is an inherent right.” See North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1967–1969), Judgment of 20 February 1969, 1969 ICJ Reports 3 [North Sea Continental Shelf Cases], at para. 19.

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Article 76 of the LOSC goes on to lay down a complex series of formulae through which the coastal State can establish its rights to and the outer edge of its continental shelf areas seaward of the 200 M limit. Essentially, article 76 provides two formulae according to which coastal States can establish the existence of a continental margin beyond the 200 M limit – frequently referred to as the “Gardiner Line”, based on reference to depth or thickness of sedimentary rocks overlying the continental crust,14 or the “Hedberg Line”, consisting of 60 M from the foot of the continental slope.15 Two maximum constraints or “cut-off” lines are then applied – either a distance of 350 M from relevant baselines or 100 M from the 2,500 metre isobath.16 Although these entitlement and cut-off criteria are complex, the point here is that article 76 of the LOSC provides for a definable outer limit to the continental shelf claims of coastal States and this represents a major step forward as compared to the indeterminate scenario under the 1958 Convention on the Continental Shelf. As McDorman has rightly observed, “the real achievement” of article 76 of the LOSC is not the intricacy of its provisions or the complexities associated with the process by which outer limits are delineated, but in the fact that it provides for “a definable limit” to continental shelf rights “however difficult the defining of that limit may be”.17 3

The Commission on the Limits of the Continental Shelf (CLCS)

In order to establish the outer limits of its continental shelf in accordance with article 76, a coastal State is required to make a submission on its proposed continental shelf limits seawards of the 200 M limit to the CLCS.18 Such submissions need to fulfill the complex requirements of article 76 outlined above. Accordingly, coastal States are required to gather information related to the morphology (in order to locate the foot of continental slope) and geological 14  See, Piers R Gardiner, “Reasons and Methods for Fixing the Outer Limit of the Legal Continental Shelf Beyond 200 Nautical Miles”, (1978) 11–12 Iranian Review of International Relations, at 158. 15  See, Hollis D. Hedberg, “Limits of National Jurisdiction over Natural Resources of the Ocean Bottom”, in Lewis M Alexander (ed), National Policy Recommendation (The University of Rhode Island, 1969), 159, at 164. 16  L OSC, art. 76(4)–(5). 17  See, Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A technical body in a political world”, (2002) 17:3 International Journal of Marine and Coastal Law, 301–324, at 307. 18  See the homepage of the Commission on the Limits of the Continental Shelf, available at .

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characteristics of its continental margin (in order to define the Gardiner Line) as well as the bathymetric information relating to water depth (with a view to locating the 2,500 metre isobaths plus the 100 M cut-off line).19 Additionally, geodetically robust distance measurements are necessary in order to determine, for example, the location of 200 M EEZ limits and the 350 M cut-off line.20 Moreover, baselines along the coast, from which these distance measurements are made, need to be defined and potentially updated ahead of a submission to the CLCS being made.21 The process of gathering the necessary scientific and technical information; analysing and interpreting this data; and then preparing a submission for and presenting it to the CLCS represents a complex, multi-disciplinary, timeconsuming and expensive process. For example, Japan reportedly devoted well in excess of $500 million on preparing its submission.22 Even if the Japanese experience is an extreme example, it is nonetheless indicative of the substantial costs involved in gathering the information for a submission for the CLCS on outer continental shelf limits – an especially daunting issue for many developing coastal States. The CLCS assesses the submissions made to it and makes “recommendations” to the coastal State in question, on the basis of which the coastal State can establish limits that are “final and binding.”23 If the coastal State disagrees with the recommendations of the CLCS, then it can make a new or revised

19  See Clive Schofield and I Made Andi Arsana, “Beyond the Limits?: Outer Continental Shelf Opportunities and Obligations in East and Southeast Asia”, (2009) 31:1 Contemporary Southeast Asia, 28–63, at 34. 20  Id. 21  L OSC, art. 5, states that “normal” baselines will be coincident with “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” LOSC also provides for a variety of baselines other than normal baselines to be constructed along the coast, namely straight baselines (LOSC, art. 7), river closing lines (art. 9), bay closing lines (art. 10) and archipelagic baselines (art. 47). However, these alternative types of baselines still need to be connected to points on the normal baseline such that a given system of baselines is “closed”. See, United Nations, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (New York: Office for Ocean Affairs and the Law of the Sea, United Nations, 1989), at 23. 22  Reportedly over 52 billion Yen. See Shin Tani, “Continental Shelf Survey of Japan”, paper presented on 16 October 2008 at the Advisory Board on the Law of the Sea (ABLOS) Conference on Difficulties in Implementing the Provisions of UNCLOS, 15–17 October 2008, Monaco, available at , at 6. 23  L OSC, art. 76(8). On the question of on whom such limits might be “final and binding”, see McDorman, supra note 17, at 313–317.

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submission within a reasonable time.24 An important consideration in this context is that the provisions of article 76 are specifically “without prejudice” to the delimitation of continental shelf between neighbouring States.25 If a submission from a coastal State involved a disputed area, the CLCS would not be able to consider such submission,26 unless prior consent were given by all States that are parties to such a dispute.27 Thus, the CLCS plays, or was intended to play, a scientific and technical role, evaluating whether coastal States through their submissions have fulfilled the requirements of article 76.28 4

Global Overview of Outer Continental Shelf Submissions

Of the 193 United Nations member States, 152 are coastal states.29 Among these coastal States, 83 had, at the time of writing, made either full submissions or submissions of preliminary information as a prelude to making full submissions to the CLCS regarding outer continental shelf rights. In total, this has resulted in 100 distinct outer continental shelf submissions or submissions of preliminary information being deposited with the CLCS, comprising 81 full submissions and 19 preliminary submissions.30 These submissions collectively encompass an enormous area, of approximately 37,046,332 km2.31 This figure does not, it is important to note, include 24  L OSC, Annex II, art. 8. 25  L OSC, art. 76(10). See also, LOSC, Annex II, arts. 8–9. 26  Rules of Procedure of the Commission on the Limits of the Continental Shelf, CLCS/40/ Rev.1, 17 April 2008, Annex I, art. 5(a). 27  Id. 28  See, McDorman, supra note 17, at 319–323. 29  This figure excludes three States, Azerbaijan, Kazakhstan and Turkmenistan, whose only coastlines are those on the Caspian Sea which, as it is not connected to the global ocean save via rivers and canals, is therefore not included. 30  Noting that a number of these submissions are joint or partial and these figures are inclusive of multiple partial submissions for different areas by some States. Additionally, preliminary submissions are gradually being replaced by full submissions. Thus, while the CLCS lists 47 submissions of preliminary information, most of these have been supplanted by full submissions such that only submissions of preliminary information remain to be, as it were, “upgraded” to full submissions. See the CLCS website at, . 31  Comprising both areas covered by full submissions to the CLCS and subject to submissions of preliminary information. It should be noted that four submissions of preliminary information to the CLCS give no indication as to the area beyond 200 M that they relate to and so are not included in this estimate. The authors are indebted to Robert van de Poll for his assistance in providing these estimates. While every effort has been made to

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outer continental shelf areas for Chile, the Comoros and Vanuatu as these States have yet to supply any indication of the extent of their areas of continental shelf located seawards of the 200 M limit from their baselines. As coastal States have made their submissions, it has become clear that numerous overlapping claims to the same areas of outer continental shelf exist. These overlaps encompass approximately 3,329,757 km2 of potential outer continental shelf areas.32 Further, the process is not yet at an end, as a further five more States are likely to (or may yet decide to) make submissions in due course but have yet to do so because the deadline for their submissions has yet to pass. The States that have yet to make submissions are: Colombia, Ecuador, Peru, the United States and Venezuela.33 Overall, therefore, as many as 85 coastal States have made or may ultimately be in a position to make submissions for outer continental shelf rights to the CLCS.34 The overall area of potential extended continental shelf subject to submissions, as well as overlaps between submissions, is therefore likely to increase substantially from the figures provided above as further submissions for outer continental shelf rights are made. 5

Types of Outer Continental Shelf Disputes

As noted above, overlapping outer continental shelf claims encompass seabed areas in excess of 3 million square kilometres.35 These overlaps give rise to ensure that these estimates are as accurate as possible, they are necessarily indicative and represent a best estimate based on available information. 32  This figure represents an increase as compared with that reported in 2010 of ~2,711,107km2, indicating an increase in the number of overlapping submissions deposited with the CLCS. 33  It is worth noting that some among these States are more likely to make submissions than others. For example, Ecuador’s preparations for a submission are understood to be well underway. Other States that appear to be hemmed in by the maritime entitlements of neighbouring States, such as Peru, may, nonetheless, opt to make submissions in due course. A submission from the United States presupposes that they will eventually become a party to LOSC. That said, preparations for a potential submission are well advanced as United States agencies have been collecting and analysing data to determine the outer limits of the United States’ extended continental shelf since 2003. See, U.S. Extended Continental Shelf Project website available at, . 34  Robert van de Poll, personal communication, 6 December 2018. 35  See Robert van de Poll and Clive Schofield, Exploring to the Outer Limits: Securing the Resources of the Extended Continental Shelf in the Asia Pacific, presented at the 7th ABLOS Conference “UNCLOS in a Changing World”, Monaco, 3–5 October 2012.

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multiple “new” outer continental shelf boundaries and possibly a proliferation in outer continental shelf boundary disputes. The resolution of these disputes and the delimitation of outer continental shelf boundaries remain a challenge for the coastal States involved rather than the CLCS, as this task is beyond the purview of the Commission.36 Analogous to disputed waters within the 200 M limit, realizing the marine resource opportunities and benefits potentially arising from rights over areas of outer continental shelf will likely be compromised by overlapping jurisdictional claims. This is because the existence of overlapping claims deprives commercial entities such as international oil and gas companies of the fiscal and legal certainty they require in order to invest the billions of dollars necessary to undertake offshore exploration, let alone development, activities in such remote areas necessarily far from shore locations.37 Three distinct types of disputes in relation to the outer continental shelf can be identified – disputes concerning entitlement to continental shelf, disputes where coastal States sharing the same continental margin have different views over the apportionment of that margin, and disputes where it is suggested that distinct continental margins are involved. These different types of outer continental shelf disputes will be discussed below. 5.1 Disputes over the Entitlement over Outer Continental Shelf The first type of dispute relates to whether a coastal State has entitlement over an area of outer continental shelf which is subject to its submission. This type of dispute can, for example, occur in relation to the status of islands and thus their capacity to generate extended maritime claims. Article 121 of the LOSC, which sets out the regime of islands, distinguishes between islands that are entitled in principle to a territorial sea, EEZ and continental shelf of their own and “rocks which cannot sustain human habitation or economic life of their own” that are not entitled to an EEZ or a continental shelf.38 Thus, there is a sub-category of island under the Convention that does not have the legal 36  As noted above, in keeping with art. 76(10) of the Convention, the Commission’s recommendations are specifically without prejudice to the delimitation of continental shelf boundaries. 37  See, for example, Paul L. Kelly, “Deepwater Oil Resources: The Expanding Frontier”, in Myron H. Nordquist, John N. Moore, and Tomas H. Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limits (Martinus Nijhoff Publishers, 2004), 413–419, at 414–416. 38  L OSC, art 121. For further discussion on LOSC, article 121(3) dealing with “rocks”, see Award of Arbitration Tribunal on the Dispute between the Republic of the Philippines and the People’s Republic of China, 12 July 2016, at 204–231. Here it can be noted that this Award provides the first judicial interpretation of LOSC, article 121(3), and it set a high standard for a feature to qualify as one being able to generate EEZ and continental shelf rights.

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entitlement to a continental shelf, let alone an outer continental shelf. Coastal States have, however, exhibited a general tendency towards maximalist maritime claims. This type of dispute is purely about legal entitlement under the Convention, rather than sovereignty over the feature or features in question. Nonetheless, such a dispute cannot be resolved by the CLCS as determining insular status is clearly beyond the Commission’s mandate. A notable example of a dispute over the validity of a claim to entitlement over an area of outer continental shelf is provided by the Southern Kyushu-Palau Ridge Region which formed part of Japan’s submission of 12 November 2008.39 Japan’s submission in this area depends on its southernmost territory – Okinotorishima. This feature comprises a number of extremely small rocks, marginally above the high-tide level,40 resting on a broad reef platform.41 Japan takes the view that these features are islands that can generate claims to continental shelf and EEZ rights (see Figure 8.1 below). Following Japan’s submission to the CLCS in November 2008, China issued a strongly worded note verbale, addressed to the Secretary-General of the United Nations, which rejected Japan’s use of Okinotorishima as a basis for part of its submission for outer continental shelf rights and requested that that part of Japan’s submission related to Okinotorishima be set aside.42 China asserted that the feature in question “is in fact a rock as referred to in Article 121(3) of the Convention.”43 China further stated that “available scientific data fully reveal” that on the basis of its “natural conditions”, the “rock” Okinotorishima 39  See Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, (hereafter, “Executive Summary of Japan’s Submission”), available at, . 40  Yann Huei Song notes that at the “highest tide”, the two features are only sixteen and six centimetres above the surface of the water respectively. See, Yann Huei Song, “Okinotorishima: A ‘Rock’ or an ‘Island’? Recent Maritime Boundary Controversy between Japan and Taiwan/China”, in S.Y. Hong and J.M. Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (The Hague: Martinus Nijhoff, 2009), at 148. 41  See J.R.V. Prescott and Clive H. Schofield, Maritime Political Boundaries of the World (Leiden/Boston: Martinus Nijhoff, 2005), at 84–85; and J. Brown et al., Case Studies in Oceanography and Marine Affairs (Oxford: Pergamon Press, 1991), at 84–85. 42  Note that the Republic of Korea submitted a similar objection, see Korean Note Verbale to the United Nations Secretary-General, No. MUN/046/09 February 27, 2009, accessed 14 November 2012, . 43  Note Verbale from the Permanent Mission of the People’s Republic of China to H.E. Mr Ban Ki-Moon, Secretary-General of the United Nations, 6 February 2009, CML/2/2009 (translation), available at, .

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Okinotorishima and Japan’s maritime claims

“obviously cannot sustain human habitation or economic life of its own” and is therefore not entitled to an EEZ or continental shelf and “even less shall it have the right to the extended continental shelf beyond 200 [M].”44 In light of these observations, China “kindly requested” the CLCS not to take any action in relation to those areas of outer continental shelf dependent on Japan’s natural prolongation from Okinotorishima.45 In light of these protests, the CLCS deferred consideration of the relevant part of Japan’s submission.46

44  Id. 45  Id. 46  See, Commission on the Limits of the Continental Shelf, “Progress of work in the Commission on the Limits of the Continental Shelf: Statement by the Chairperson”, Twenty-ninth session, New York, 19 March-27 April 2012, 30 April 2012, CLCS/74, available at, , at 4–5.

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5.2 Disputes between States Sharing the Same Continental Margin The second type of dispute relates to coastal States that share the same continental margin beyond their 200 M EEZ. In this situation, the entitlement of each of the coastal States over continental shelf beyond 200 M is not disputed, but there are overlapping entitlements that raise the issue of delimitation. Such overlaps in submissions for outer continental shelf rights between States sharing the same continental margin can occur as a result of the States involved gathering different data sets that lead to their delineating different submission areas as well as distinct outer continental shelf limits. Alternatively, even if States are using common data sets, outer continental shelf submission area overlaps may arise from the application of different interpretative methodologies to that data or, the use of distinct approaches to maritime boundary delimitation. A potentially instructive example of this type of dispute, and its resolution, is provided by two separate but related cases involving Bangladesh and its neighbours, Myanmar to the east and India to the west, in relation to maritime boundary delimitation in the Bay of Bengal: the Bangladesh/ Myanmar and the Bangladesh/India case (together referred to as the Bay of Bengal Cases).47 In the Bay of Bengal Cases, all three States are adjacent to one another, and they do not dispute the existence of continental shelf beyond 200 M from each of their coasts. The main point of contention was the concavity of Bangladesh’s coastline that creates a cut-off effect for Bangladesh when the equidistance principle is used for delimiting the maritime boundaries with Myanmar and India. Having failed to agree on maritime boundaries, on 8 October 2009 Bangladesh invoked the compulsory dispute settlement mechanism under Part XV of the LOSC and instituted arbitral proceedings against Myanmar and India pursuant to Annex VII of the Convention to settle the disputes. In December 2009, Bangladesh and Myanmar agreed to transfer the proceedings to the International Tribunal for the Law of the Sea (ITLOS).48 47  D  ispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (2012) Judgment, ITLOS Case No 16 [Bangladesh/Myanmar], available at, ; In the matter of the Bay of Bengal Maritime Boundary Arbitration, The People’s Republic of Bangladesh and the Republic of India, Award of the Arbitration Tribunal, 7 July 2014 [Bangladesh v India], available at . 48  See, International Tribunal for the Law of the Sea, “Proceedings Instituted in the Dispute Concerning the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal”, Press Release, ITLOS/Press 140, 16 December 2009, available at, .

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Bangladesh advanced arguments based on geological and geomorphological factors both within and beyond 200 M. Bangladesh sought to establish a stronger connection between its natural prolongation to the submarine seafloor and subsoil of the Bay of Bengal as opposed to Myanmar or India. Further, Bangladesh asserted that there existed a “fundamental geological discontinuity” between Bangladesh’s shelf and that of Myanmar, marked by the geological division between the Burma and Indian tectonic plates (the Sunda Subduction Zone).49 Within 200 M, the Tribunal found that for a single maritime boundary applicable to both continental shelf and EEZ, the location of the boundary should be “determined on the basis of [the] geography of the coasts of the Parties in relation to each other and not the geology and geomorphology of the seabed of the delimitation area.”50 Beyond the 200 M limit, on the basis that there is only one continental shelf with no legal distinction between the parts within and beyond 200 M limits, ITLOS also discounted Bangladesh’s geophysical arguments.51 ITLOS delivered its judgment in the Bangladesh/Myanmar case on 14 March 2012; while the arbitral tribunal established under Annex VII of the LOSC delivered its award in the Bangladesh v India case on 7 July 2014. In both cases, geography, that is, the concavity of Bangladesh’s coast and the cut-off effect that it produced, was the key consideration for the tribunals to adjust the provisional equidistance lines.52 Due to this geographical situation, both decisions resulted in areas on Bangladesh’s side of the boundary lines delimited, that lie beyond 200 M from the coast of Bangladesh but within 200 M from the coasts of Myanmar and India, respectively – known as the grey areas (see Figure 8.2 below).53 Disputes between States with (Allegedly) Distinct Continental Margins The third type of dispute relating to outer continental shelf is when one State alleged that there is a clear break in the continental margin that separates its entitlement from that of its neighbour. This situation usually involves States with opposite coasts. For example, China and the Republic of Korea both claimed that their continental margins extending beyond 200 M from their 5.3

49  B  angladesh/Myanmar, supra note 47, at paras. 417 and 424. 50  Id., at para. 322. 51  Id., at paras. 449 and 460. See also, Clive Schofield, Anastasia Telesetsky and Seokwoo Lee, “A Tribunal Navigating Complex Waters: Implications of the Bay of Bengal Case”, (2013) 44(4) Ocean Development and International Law, 363–388, at 370–376. 52  Bangladesh/Myanmar, supra note 47, at para. 293; Bangladesh v India, supra note 47, at para. 408. 53  Bangladesh v India, ibid., at para. 498.

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The maritime boundaries in the Bay of Bengal

coasts are located well within the 200 M EEZ entitlement of Japan and beyond the median line between the countries involved. Indeed, China’s submission to the CLCS indicates an outer limit to its continental shelf rights which is consistent with the axis of the Okinawa Trough, in close proximity to Japan’s Ryukyu Island chain (see Figure 8.3 below).54 Japan – in its objections to the 54  Note that the distance between China and Japan, as well as between the Republic of Korea and Japan, is less than 400 M. See Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea, available at http://www.un.org/depts/los/clcs_new/submissions _files/chn63_12/executive%20summary_EN.pdf; and Partial Submission of Korea to the Commission on the Limits of the Continental Shelf Pursuant to Article 76 Paragraph 8 of the United Nations Convention on the Law of the Sea, available at http://www.un.org/depts/ los/clcs_new/submissions_files/kor65_12/executive_summary.pdf.

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Figure 8.3 Disputed areas in the East China Sea

submissions of China and Korea – stated that since the distance between them is less than 400 M, China and Korea cannot unilaterally establish the outer limits of their continental shelf, and that they should be delimited in accordance with article 83 of the LOSC.55 This type of dispute usually also involves overlapping entitlements between an outer continental shelf and an EEZ. For example, the outer limits of the continental shelf that Nicaragua has sought to delineate in the south-western 55  See Communication from Japan to the CLCS dated 28 December 2012, available at http:// www.un.org/depts/los/clcs_new/submissions_files/chn63_12/jpn_re_chn_28_12_2012 .pdf; and Communication from Japan to the CLCS dated 11 January 2013, available at http:// www.un.org/depts/los/clcs_new/submissions_files/kor65_12/jpn_re_kor_11_01_2013.pdf.

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Figure 8.4

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Delimitation line claimed by Nicaragua

part of the Caribbean Sea are located well within the 200 M EEZ of Colombia (see Figure 8.4 above).56 In this type of dispute, the CLCS arguably could have (and perhaps should have) a valuable role to play in clarifying whether there are two distinct continental margins, or just one, and if there were two distinct continental margins, where the edges of the continental margins are located. However, as mentioned above, the CLCS’ role in delineating the outer limits of the continental shelf is, after all, without prejudice to delimitation of maritime boundary. Unfortunately, when a State has objected to a submission due to a dispute of overlapping entitlements, the CLCS is prevented from considering such submission.57

56  Submission of Nicaragua to the Commission on the Limits of the Continental Shelf, available at http://www.un.org/depts/los/clcs_new/submissions_files/nic66_13/Executive%20 Summary.pdf. Nicaragua and Colombia’s case is currently being heard by the ICJ. 57  Rules of Procedure of the CLCS, supra note 26.

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Going beyond 200 M: Delimitation of Outer Continental Shelf

Where outer continental shelf submissions overlap, delimitation beyond the 200 M limit is inevitable. This section serves to review the relevant provisions relating to the delimitation of the continental shelf as well as practice in the delimitation of maritime boundaries seawards of 200 M limits. Under the Continental Shelf Convention, delimitation of the continental shelf was to be effected by the use of the median line unless agreement to the contrary or “special circumstances” existed that justified an alternative approach.58 UNCLOS III witnessed a lack of consensus on the appropriate approach or method of delimitation of the continental shelf and. This translated into the ambiguous wording contained in LOSC. Articles 74 and 83 of the Convention, dealing with delimitation of the EEZ and continental shelf, respectively, merely call in identical general terms for agreement to be reached on the basis of international law in order to achieve “an equitable solution.”59 No preferred method of delimitation is indicated. Instead, all potentially relevant circumstances are to be weighed within the delimitation equation with the objective of achieving an equitable result. The marked shift away from equidistance as a preferred method of delimitation, at least in the first instance, can be largely attributable to the International Court of Justice’s (ICJ) ruling in the North Sea Continental Shelf Cases of 1969.60 In these cases, although the ICJ noted that a median line between opposite States usually resulted in an equal division of the maritime space involved,61 and that the majority of maritime boundary agreements at the time were based on the equidistance principle,62 the Court concluded that the provisions relating to equidistance in the Continental Shelf Convention had not become customary international law and were not obligatory.63 International courts and tribunals have since termed the method of delimitation applicable to EEZ and continental shelf delimitation, as contained in articles 74 and 83 of the LOSC (and in customary international law), as the 58  Continental Shelf Convention, art. 6. 59  L OSC, arts 74 and 83. 60  See North Sea Continental Shelf Cases, supra note 13. 61  Id., at para. 57. 62  Id., at para. 75. In particular, the examples drawn from State practice cited by the parties to the dispute and concluded following the signature of the Continental Shelf Convention. 63  Id., at paras. 70–82 and 101(a). Indeed, the Court asserted that there was “not a shred of evidence” that the States that had agreed to equidistance-based maritime boundary agreements had done so because they “believed themselves to be applying a mandatory rule of customary international law” (Id., at para. 76).

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equitable principles/relevant circumstances method. For example, in the Cameroon/Nigeria Case, the ICJ stated explicitly that:64 The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method. The Court went on to note that this method is “very similar to the equidistance/ special circumstances” method applicable in delimitation of the territorial sea.65 Further, there has been a distinct shift in recent jurisprudence towards the application of a three-stage approach. This was arguably most clearly articulated in the 2009 Judgment in the Black Sea Case66 between Romania and Ukraine as being, at the first stage, that a provisional equidistance line should be established using geometrically objective methods “unless there are compelling reasons that make this unfeasible in the particular case”,67 at the second stage assessment is to be made as to “whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result”,68 and at the third stage verification of the resulting potential delimitation line is undertaken through what the Court termed, in a subtle but telling shift in terminology, a “disproportionality test”.69 Subsequent cases involving maritime boundary delimitation have similarly applied this threestage approach to maritime delimitation.70 Further, there is a pronounced 64  L and and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), [2002] ICJ Reports, 303, at para. 288. 65  Id. 66  Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, [2009] ICJ Rep 61, [hereinafter the Black Sea Case]. 67  Id., at para. 116 [emphasis added]. 68  Id., at para. 120. At this point the Court cited its earlier Judgment in the Cameroon/Nigeria Case in support of its ruling. Cameroon/Nigeria, supra note 64, at para. 288. 69  Id., at paras. 122 and 210–216. The concept of “proportionality” had been raised in past cases, see for example North Sea Continental Shelf Cases, supra note 13, at para. 98; Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) (1984) ICJ Rep 246, at para. 170. However, the Court’s reference to a “disproportionality” test indicates that a marked lack of proportion between the ratios of relevant coastal lengths and areas attributed to each State is required to trigger reconsideration of the boundary line at the third and final stage of delimitation. 70  These have included cases before the ICJ, ITLOS and international arbitral tribunals. See for example, Maritime Dispute (Peru v Chile), (2014) ICJ Rep 137, at para. 180; Barbados v Trinidad and Tobago, Award of the Arbitral Tribunal (2006) 45 ILM 798 [Barbados v

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preference for equidistance as a basis for maritime delimitation in State practice.71 Overall, therefore, equidistance remains the most widely applied method of maritime delimitation, at least in the first instance. This three-stage approach also applies to delimitation of the continental shelf beyond 200 M. Article 83 of the LOSC makes no distinction between the delimitation of the continental shelf within or beyond 200 M. This was made clear by the Arbitral Tribunal in the Barbados v Trinidad and Tobago Case.72 When assessing its jurisdiction to delimit continental shelf boundary beyond 200 M, the Tribunal in that case noted that the relief sought by the parties was the delimitation of the EEZ and continental shelf between Barbados and the Republic of Trinidad and Tobago.73 This was when the Tribunal stated that “in law there is only a single continental shelf”, and thus found that its jurisdiction in that instance would include the continental shelf beyond 200 M.74 Thus, in both situations, article 83 of the LOSC applies and delimitation must be effected by agreement based on international law in order to achieve an equitable solution. This, however, is a broad requirement that covers a wide range of methods of delimitation, as well as different circumstances to be considered, in order to achieve equitable result. Arguably, the relevant circumstances to be considered for delimitation of the continental shelf within 200 M from the coast might differ from circumstances relevant to the delimitation of the continental shelf beyond 200 M.75 For example, the ICJ in the dispute between Libya and Malta ruled that for delimitation within 200 M, the distance factor, and not the geophysical factor, should be considered in determining the boundary.76 Geophysical factors, however, have not proved to be influential in any cases involving continental shelf delimitation beyond 200 M, though admittedly the relevant jurisprudence to date is limited. There are three cases to date Trinidad and Tobago], at para. 242; and Bangladesh/Myanmar, supra note 47, at paras. 239 & 455. 71  J.R.V. Prescott, and C.H. Schofield, Maritime Political Boundaries of the World, (Leiden/ Boston: Martinus Nijhoff, 2005), at 238–239. See also, L. Legault and B. Hankey, “Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation”, in J.I. Charney and L.M. Alexander (eds), International Maritime Boundaries, Vol. I (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1993), at 214. 72  Barbados v Trinidad and Tobago, supra note 70. 73  Id. at para. 213. 74  Id. 75  See Territorial and Maritime Dispute between Nicaragua and Colombia (Nicaragua v Colombia), Judgment, ICJ Reports 2012 [Nicaragua/Colombia], at para. 214. 76  Continental Shelf (Libyan Arab Jamahiriya/Malta), [1985] Judgement, ICJ Rep 13 [Libya/ Malta], at para. 39.

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involving delimitation of the continental shelf beyond 200 M, the two Bay of Bengal Cases mentioned above and the 2017 delimitation case between Ghana and Cote d’Ivoire. In all three cases, the outer continental shelf boundaries drawn by the tribunals are continuation of the EEZ/continental shelf boundaries within 200 M,77 which were drawn without considering any geophysical factors. Still, these three cases involved adjacent States, where the disputing States shared continental margins with no clear geological/geomorphological distinction. Thus, there might be a potential for resurrection of geophysical factors in opposite State scenarios, such as in the case between Nicaragua and Colombia currently being heard by the ICJ. This case not only will deliver the first ruling on delimitation of the continental shelf beyond 200 M between opposite States, but also on overlapping entitlements between outer continental shelf and the EEZ. Unlike the rulings of international courts and tribunals, there is more diversity in State practice, which reflected political factors rather than legal ones, as can be seen from Table 8.1 below. The vast majority of the existing State practice on maritime delimitation beyond 200 M therefore either only marginally strays beyond 200 M limits, simply indicates a line continuing beyond 200 M limits or did not take geological and geomorphological factors into consideration. One of the exceptions to the rule is provided by the delimitation between Australia and New Zealand where, for portions of the boundary line beyond 200 M limits, geophysical factors were influential. In particular, in the northern sector of the delimitation line it was recognized that New Zealand had a clearer natural prolongation from its mainland to the Three Kings submarine ridge as compared to Australia’s natural prolongation from Norfolk Island to the west.78 Similarly, in the southern sector of the delimitation, “precedence” was given to New Zealand’s natural prolongation from South Island versus that from Australia’s Macquarie Island. This resulted in New Zealand being secured substantially more seabed than would have been the case had a simple median line approach been adopted (see Figure 8.5 below).

77  B  angladesh/Myanmar, supra note 47, at para. 462; Bangladesh v India, supra note 47, at para. 472; Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), ITLOS Judgment of 23 September 2017, at para. 527. 78  David A. Colson and Robert W. Smith (eds), International Maritime Boundaries, Vol. V (Leiden/Boston: Martinus Nijhoff Publishers, 2005), at 3764.

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Table 8.1 List of outer continental shelf boundary agreements

No

Year

Parties

1.

1973

Argentina – Uruguay

2.

1975

3.

1978

4.

1982

5.

1988

Remarks

– An all purpose boundary based on equidistance line between adjacent States. – Geological and geomorphological factors were not considered. – No outer limit was indicated to take into account the continental shelf beyond 200 M. Gambia – Senegal – All purpose boundaries following latitude parallel lines, since equidistance method will cut off Gambia’s maritime zones entitlement. – Boundaries did not take into account any subsoil resources or geophysical factors. – No outer limits were indicated, allowing the boundaries to extend beyond 200 M. Australia – Papua New – A complex boundary including territorial sea, Guinea fishing zone, EEZ and continental shelf based mostly on historical, economic and cultural factors. – The terminus point on the eastern segment is located beyond 200 M from each State. – E EZ and outer continental shelf boundary Australia (Heard/ between opposite territories based on McDonald Islands) – equidistance line. France (Kerguelen Islands) – The eastern sector of the boundary extended well beyond 200 M to delimit the continental margin. Ireland – United Kingdom – Two continental shelf boundary lines, one in the Celtic and Irish Seas, and the other one in northeast Atlantic. – No geological or geomorphological considerations. – Both lines took into account potential outer continental shelves: a. The last segment of the boundary line on the Celtic Sea was chosen according to the criterion of foot of the slope plus 60 M. b. The last segment of the boundary line on the northeast Atlantic was chosen according to the 2500 metres isobaths plus 100 M.

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Table 8.1 List of outer continental shelf boundary agreements (cont.)

No

Year

Parties

Remarks

6.

1988

Australia – Solomon Islands

7.

1990

Trinidad and Tobago – Venezuela

8.

1990

US – Russia

9.

1993

Colombia – Jamaica

– A single boundary to delimit Australia’s fishing zone, Solomon Islands’ EEZ and the continental shelf between them based on equidistance. – One of the two terminus points is located beyond 200 M from each State. – An all purpose boundary line based on a modified equidistance line. – The boundary terminal is located on the outer edge of the continental margin. – The line does not end, as both parties have reserved the right to negotiate an extension in case the margin is located further. – An all purpose boundary based on a historic 1867 Treaty between the parties. – The northern segment of the boundary in the Arctic extends north from the initial point on a meridian “as far as permitted under international law” and it is understood that this includes continental shelf beyond 200 M from the coast. – An all purpose boundary based mostly on equidistance line between opposing States. – The boundary includes delimitation of a strip of an area beyond 200 M from each party. – None of the parties have submitted information or preliminary information to the CLCS (note that Colombia is not a party to the LOSC). – Boundary for continental shelf beyond 200 M between opposite coasts of US and Mexico. – The course of the boundary was based on equidistance, and was not influenced by geological or geomorphological factors. – Boundaries delimiting the EEZ and continental shelf beyond 200 M between opposing States. – Geomorphological factors played an important role in determining the boundary for continental shelf beyond 200 M.

10. 2000

Mexico – US

11. 2004

Australia – New Zealand

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Table 8.1 List of outer continental shelf boundary agreements (cont.)

No

Year

12. 2006

13. 2009

14. 2009

15. 2010

Parties

Remarks

– The termini of the continental shelf boundary beyond 200 M could be adjusted according to the outcome of both parties’ CLCS submissions. Denmark (Faroe Islands) – – Provisionally agreed boundaries for continental Iceland – Norway shelf beyond 200 M amongst the parties with opposing coasts. – All parties assumed that the whole area under delimitation agreement consists of continuous continental shelf that they shared. – The agreed boundaries are subject to the findings of the CLCS, and none of the parties objected to the others’ individual submissions. – The boundary lines were based on adjusted equidistance, and not on any geological or geomorphological considerations. Kenya – Tanzania – An all purpose boundary including for the EEZ and continental shelf beyond 200 M between adjacent coasts. – The boundary line follows the parallel of latitude eastwards at the end of the territorial sea boundary. – No geological or geomorphological considerations for the boundary beyond 200 M. – Boundary line for EEZ and possible continental Barbados – France shelf beyond 200 M between adjacent coasts. (Guadeloupe and – Boundary line was extended to the continental Martinique) shelf beyond 200 M, subject to criteria under the LOSC. – Boundary line was based on equidistance and was not influenced by geological or geomorphological factors. Russia – Norway – An all purpose boundary line including for continental shelf beyond 200 M between opposite and adjacent coasts.

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Table 8.1 List of outer continental shelf boundary agreements (cont.)

No

Year

Parties

16. 2013

Denmark (Greenland) – Iceland

17. 2017

Suriname – France (French Guiana)

7

Remarks – For the segment of continental shelf boundary beyond 200 M in the Barents Sea, no geological or geomorphological factors were considered, as the area is considered to be the prolongation of both parties. – For the segment of continental shelf boundary beyond 200 M in the Arctic Ocean, geological or geomorphological factors were also not considered, but the recommendation of the CLCS will be decisive for the precise location of the northernmost terminal point of the line. – Provisional boundary agreement exclusively for continental shelf beyond 200 M between the two opposing coasts. – The area of delimitation is susceptible to deviations contingent on the recommendations of the CLCS. – Boundary line is based on adjusted equidistance line, with no geological or geomorphological considerations. – Delimitation extends beyond 200 M. – Geological and geomorphological factors not relevant to delimitation.

Conclusions and Prospects

The LOSC establishes complex criteria whereby the outer limits of the continental shelf seaward of 200 M from baselines along the coast may be established. Over half of the world’s coastal States have or are in the process of delineating their outer continental shelf limits. The establishment of outer continental shelf limits is complex, expensive and time consuming but such limits can be delineated with certainty. Largely as a consequence of the existence of a May 2009 deadline for submissions applicable to many coastal States, there

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Figure 8.5 Maritime delimitation between Australia and New Zealand

has been a surge in submissions to the CLCS,79 creating a significant problem in terms of workload for the Commission. Indeed, at present rates of progress, it will take considerable time, perhaps decades, for the Commission to address this backlog. This is despite efforts to alter the working practices of the CLCS so as to speed up the process.80 Already established and presently proposed outer continental shelf limits encompass vast areas of extended continental shelf. Proposed extended continental shelf limits have resulted in substantial seabed areas beyond 200 M limits that are subject to more than one submission. This will give rise to 79  United Nations Convention on the Law of the Sea, Meeting of States Parties, Eleventh Meeting, New York, 14–18 May 2001, SPLOS/72 (29 May 2001). 80  United Nations Convention on the Law of the Sea, Meeting of States Parties, 21st Meeting, New York, 13–17 June 2011, SPLOS/229 (16 June 2011).

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multiple “new” extended continental shelf boundaries to delimit and, perhaps inevitably, outer continental shelf disputes to resolve. Although State practice and jurisprudence on the delimitation of outer continental shelf boundaries, and thus the resolution of overlapping claims to outer continental shelf areas, is limited, it appears that the approach to delimitation within and beyond 200 M limits will be similar. This is supported by past State practice where it has been concluded that geophysical factors have had no more than “a limited role” (see Table 8.1 above).81 Arguably, a key consideration here is that the application of differing approaches to maritime delimitation within and beyond 200 M limits will inevitably result in differently constructed, oriented and located boundary lines. This, in turn, creates challenges as to how distinctly arrived at boundary lines on either side of 200 M limits are to be connected. While it is certainly possible to connect such lines with sections of the boundary delimited along 200 M limits,82 as portions of the Australia-New Zealand boundary agreement demonstrate (see Figure 8.5 above), this type of solution has yet to prove appealing in practice. International jurisprudence on this issue also has not relied on geophysical factors in delimiting boundaries for continental shelf beyond 200 M. For example, in the Bay of Bengal Case between Bangladesh and Myanmar, Bangladesh argued unsuccessfully that geophysical factors constituted relevant circumstances that should influence the course of the maritime delimitation line both within and beyond the 200 M limit.83 Instead, ITLOS deemed that coastal geography was the dominant consideration for both the EEZ and extended continental shelf boundaries delimited.84 Analogously, in the case between Bangladesh and India, coastal geography factors were crucial to the delimitation of the maritime boundary between the two States.85 The jurisprudence on this issue is, however, limited. Courts have yet to face the scenario of, for example, apparently distinct continental margins separated by a major declivity 81  B  rian J. Van Pay, “Disputed Areas Beyond 200 Nautical Miles: How Many and Will Geophysical Characteristics Matter in Their Resolution?”, in Myron H. Nordquist and John Norton Moore (eds), Maritime Border Diplomacy (Leiden/Boston: Martinus Nijhoff, 2012), at 56. See also, id., at 53. 82  Portions of the Australia-New Zealand delimitation line correspond to 200 M arcs described from, from north to south, Norfolk Island, Lord Howe Island and Macquarie Island. 83  Bangladesh/Myanmar, supra note 47, at paras. 322, 415–17, 435, 449 and 460. See also Clive Schofield, Anastasia Telesetsky and Seokwoo Lee, “A Tribunal Navigating Complex Waters Implications of the Bay of Bengal Case”, (2013) 44:4 Ocean Development and International Law, 363–388, at 373–375. 84  Bangladesh/Myanmar, id. 85  See Bangladesh v India, supra note 47, at paras. 465–475.

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in the ocean floor.86 Nonetheless, the outcome of the outer continental shelf delimitation cases thus far suggests that outer continental shelf delimitation will proceed on substantially the same basis as delimitation within the 200 M “inner” continental shelf/EEZ limit and this conclusion is largely supported by State practice. 86  The ICJ is, at the time of writing, hearing a case between Nicaragua and Colombia, where Nicaragua claims that there are distinct continental margins between the mainlands of the two countries; see Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), ICJ [Nicaragua v Colombia II]. Nicaragua has also submitted information regarding the outer limits of its continental shelf beyond 200 M to the CLCS; see The Republic of Nicaragua Submission to the Commission on the Limits of the Continental Shelf, 24 June 2013. The CLCS has not issued any recommendations on Nicaragua’s submission.

Chapter 9

Obligations of States in Disputed Areas of the Continental Shelf Sean D. Murphy

Introduction

Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves,1 which raises important issues as to how they must conduct themselves prior to resolution of their dispute. This is not an unusual circumstance. Indeed, it is estimated that more than half of the possible maritime boundaries between States have yet to be delimitated, and that more than 2.7 million square kilometers of potential extended continental shelf areas are subject to overlapping claims.2 Various sources of international law provide guidance as to the rights and obligations of States prior to the resolution of their overlapping continental shelf claims. Treaty provisions, in particular article 6 of the 1958 Convention on the Continental Shelf (CS Convention)3 and article 83 of the United Nations 1  States, of course, also often have overlapping claims with respect to their territorial seas, contiguous zones, or exclusive economic zones (EEZs). Delimitation of the territorial sea must take account of article 15 of the United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 (hereinafter LOS Convention), as well as article 12 of the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 516 U.N.T.S. 205 (hereinafter TSC Convention). Delimitation of the contiguous zone must take account of article 24 of the TCS Convention. While this Chapter focuses on disputed continental shelf areas, what is discussed applies, mutatis mutandis, to disputes relating to EEZs, which in particular should take into account the language of LOS Convention article 74. 2  Robert Van de Poll and Clive Schofield, A Seabed Scramble: A Global Overview of Extended Continental Shelf Submissions, Advisory Board on the Law of the Sea Proc. Conference on Contentious Issues in UNCLOS: Surely Not? (2010), 3–4. See also Joanna Mossop, The Continental Shelf Beyond 200 Nautical Miles: Rights and Responsibilities (2016), 242. 3  Convention on the Continental Shelf art. 6, Apr. 29, 1958, 499 U.N.T.S. 311. Article 6 provides that, in the absence of an agreement between the two States Parties, they shall act in accordance with a median line (opposite States) or equidistance line (adjacent States), “unless another boundary line is justified by special circumstances.”

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_011

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Convention on the Law of the Sea (LOS Convention), are directly binding upon States Parties, at least in their relations with other States Parties. State practice in the application of those treaties is also pertinent. To the extent that States are not bound directly by treaty rules, customary international law becomes pertinent. As subsidiary sources, the views expressed by various international courts or tribunals, notably in the Guyana v. Suriname4 and Ghana/Côte d’Ivoire5 cases, and by publicists,6 provide further guidance. Based on these sources of international law, there would appear to be eight basic rules that every State is expected to follow in such a situation: (1) as a general matter, the States concerned shall act in good faith with respect to the dispute on delimitation; (2) if applicable, the States concerned shall abide by an order on provisional measures of protection by a competent international court or tribunal; (3) the States concerned shall negotiate in good faith toward

4  Delimitation of the Maritime Boundary Between Guyana and Suriname (Guyana v. Suriname), 30 R.I.A.A. 1 (Perm. Ct. Arb. 2007). 5  Dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Case No. 23, Judgement of Sept. 23, 2017, https://www .itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/C23_Judgment_23.09.2017 _corr.pdf (last visited Nov. 28, 2018). For analysis, see Nicholas A. Ioannides, A Commentary on the Dispute Concerning the Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), (2017) 3 Mar. Safety & Sec. L.J.; Constantinos Yiallourides, Calming the Waters in the West African Region: The Case of Ghana and Côte D’Ivoire, (2018) 26 Afr. J. Int’l & Comp. L., 507; Youri van Logchem, The Rights and Obligations of States in Disputed Maritime Areas: What Lessons Can Be Learned from the Maritime Boundary Dispute between Ghana and Côte d’Ivoire, (2019) 52 Vand. J. Transnat’l L., 121; Millicent McCreath & Zoe Scanlon, The Dispute Concerning the Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire: Implications for the Law of the Sea, (2019) 50 Ocean Dev. & Int’l L., 1. 6  See, e.g., Rainer Lagoni, Interim Measures Pending Maritime Delimitation Agreements, (1984) 78 Am. J. Int’l L., 357; Natalie Klein, Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes, (2006) 21(4) Int’l J. Mar. & Coastal L., 423; David Anderson & Youri van Logchem, Rights and Obligations in Areas of Overlapping Maritime Claims, in The South China Sea Disputes and the Law of the Sea (Jayakumar, Koh, & Beckman eds. 2014), 192; Youri van Logchem, The Scope for Unilateralism in Disputed Maritime Areas, in The Limits of Maritime Jurisdiction (Schofield, Lee, and Kwon eds. 2013), 175; British Inst. Int’l & Comp. L., Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (2016), available at: http://www.biicl.org/documents/1192_report_on_the_obligations_of_ states_under_articles_743_and_833_of_unclos_in_respect_of_undelimited_maritime_areas. pdf?showdocument=1 (last visited Nov. 28, 2018); Sandrine De Herdt, Meaningful Responses to Unilateralism in Undelimited Maritime Areas, (2019) 6:2 J. Territorial & Mar. Stud., 5; Nicholas A. Ionnides, The Legal Framework Governing Hydrocarbon Activities in Undelimited Maritime Areas, (2019) 68 I.C.L.Q., 345.

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a final agreement on delimitation; (4) pending the reaching of such an agreement, the States concerned shall seek a provisional arrangement of a practical nature; (5) pending reaching a final agreement, the States concerned shall not take steps that jeopardize the reaching of such an agreement; (6) the States concerned shall use only permissible countermeasures in response to unlawful acts; (7) the States concerned shall not threaten or use force in violation of the United Nations Charter; and (8) third States shall not knowingly assist one of the States concerned if it is acting wrongfully. These rules are relevant when there exists a dispute concerning maritime boundary delimitation, but they are not delimitation rules; they are rules oriented toward the duty of States to resolve disputes peacefully. Further, while these rules are informed both by the law and practice associated with maritime spaces, there may be some cross-over with respect to rules associated with contested land boundaries. Each of the eight rules indicated above is discussed below. Before doing so, one threshold problem in this area must be addressed, which is whether a disputed area of the continental shelf actually exists in any given situation.

Existence of a Disputed Area of the Continental Shelf

A threshold issue concerns determining that there exists a disputed area of the continental shelf that must be delimited, either by agreement or by means of adjudication. Initially, there may exist an area of the continental shelf where one (or both) of two adjacent or opposite States have not yet advanced claims of legal entitlement. In such circumstances, there is not yet a dispute and the rules discussed below are not yet engaged. Ultimately, however, the two States likely will advance claims of legal entitlement to the continental shelf, typically by indicating what they each regard as the correct delimitation line. If the two delimitation lines are compatible, then an agreement may be concluded between the two States to that effect, or the two States may simply conform their practice so as to abide by the lines. If two delimitation lines are not compatible, however, a dispute arises with respect to the overlapping area, meaning the area of the continental shelf located between the two claimed lines. It is to this disputed area of the continental shelf which the rules discussed below apply. In some circumstances, there may be a dispute as to whether one of the two States is even capable of advancing a claim to a continental shelf. Generally speaking, each State must be advancing a claim that is plausible, a standard that was applied by the Ghana/Côte d’Ivoire ITLOS Special Chamber in the

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context of its 2015 order on provisional measures of protection.7 Questions as to plausibility in the context of a continental shelf dispute might arise in at least two situations. First, it is possible that a State’s claim to an area of the continental shelf is predicated on a claim to sovereignty over land territory, where the latter claim is contested. Second, it is possible that a State’s claim to an area of the continental shelf is predicated on a claim that a feature is capable of possessing a continental shelf, but that latter claim is contested. Such contestation may arise where the feature is viewed by other States as a low-tide elevation or as an island that falls within the scope of article 121(3) of the LOS Convention. A report published by the British Institute of International and Comparative Law identified five different scenarios where such contestation may complicate the application of rules in this area.8 Even if there is agreement that a “delimitation dispute” exists, it may be unclear how broadly that dispute sweeps. For example, it seems doubtful that the obligation to seek provisional arrangements or to avoid aggravating the delimitation dispute (as discussed below) includes an obligation to address an issue of sovereignty on a provisional basis, or to refrain from acts that seek to establish such sovereignty. Rather, the obligation to seek provisional 7  Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Case No. 23, Order on Provisional Measures of Apr. 25 2015, 2015 ITLOS Rep. 146, at 158, para. 58. To address this dispute, a Special Chamber of the International Tribunal for the Law of the Sea was constituted in accordance with article 15(2) of the Tribunal’s Statute, consisting of three judges of the Tribunal and two judges ad hoc chosen by the parties. For analysis, see Bin Zhao, The Curious Case of Ghana/ Côte d’Ivoire: A Consistent Approach to Hydrocarbon Activities in the Disputed Area?, (2019) Asian J. Int’l L. 8  The report indicated the following scenarios: i. Two States dispute the status of a feature; for example one (usually the State with sovereignty) argues that the feature is an island and thus capable of generating a 200 [nautical mile] zone while the other argues that it is a rock with no maritime entitlement; either way, the two States have a maritime boundary which needs to be delimited; ii. As for (i) except that the two States have a maritime boundary only if the feature is determined to be an island; if it is a rock there is no overlap of maritime entitlements; iii. Two States claim sovereignty over the same island; whichever way sovereignty is determined, the two States have a maritime boundary which needs to be delimited; iv. Two States claim sovereignty over the same island; if sovereignty is determined to belong to State A, the two States have a maritime boundary which needs to be delimited, whereas if sovereignty belongs to State B there is no maritime boundary between them[;] v. Two adjacent States dispute the position of the land boundary between them. Each claims entitlement to the maritime zone generated by the same coastal land area. Whichever way that dispute is resolved, the two States have a maritime boundary which needs to be delimited.   B ritish Inst. Int’l & Comp. L., supra note 6, at 33, para. 112.

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arrangements or to avoid aggravating the delimitation dispute relates to a dispute concerning delimitation, not a dispute over sovereignty. Yet it may be difficult to disentangle the two types of disputes, given that acts intended to establish a sovereign claim might include pursuing acts relating to delimitation of the maritime space. Recently, there has been a willingness to treat minor questions of sovereignty as an ancillary matter when interpreting the LOS Convention, as the Arbitral Tribunal did in the Chagos arbitration.9 This kind of “mixed dispute” also arose in the South China Sea arbitration, where the Arbitral Tribunal decided the issues before it while claiming to be making no sovereignty determinations.10 Whether, or to what extent, these “mixed disputes” will continue to be adjudicated by law of the sea tribunals remains to be seen, as there are divergent views as to whether such disputes are within their competence.11 1

As a General Matter, the States Concerned Shall Act in Good Faith

Turning to the individual rules, first, every State must conduct itself in good faith with respect to its claimed rights in the contested maritime space. This “good faith” rule operates as a background rule of international law, but may also be seen in LOS Convention article 300, which reads: “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.”12 What constitutes “good faith” or “bad faith” with respect to actions taken in a disputed continental shelf area may only be determined in context. One aspect no doubt concerns whether the State at issue genuinely believes that it has sovereign rights in the area in question. Another, perhaps related, aspect concerns whether the State at issue believes that no other State has made a claim to the area in question. A third aspect concerns whether, even though it knows that an area is disputed, the State believes that the acts it is taking are 9  T  he Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Case No. 2011-03, Award (2015), at 90, paras. 220−21, https://files.pca-cpa.org/pcadocs/MU-UK%2020150318%20 Award.pdf (last visited Nov. 28, 2018). 10  South China Sea Arbitration (Philippines v. China), Case No. 2013-19, Award (2016), at 58, para. 154, https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712 -Award.pdf (last visited Nov. 28, 2018). 11  See, e.g., Marina Aksenova & Ciaran Burke, The Chagos Islands Award: Exploring the Renewed Role of the Law of the Sea in the Post-Colonial Context, (2017) 35 Wis. Int’l L.J. 1, 17. 12  L OS Convention, supra note 1, art. 300.

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permissible even in a disputed area, such as might be the case for non-invasive seismic studies in certain situations. One interesting question is whether a coastal State that has submitted data on the outer limits of its extended continental shelf to the Commission on the Limits of the Continental Shelf (CLCS), and then receives an inconsistent CLCS recommendation, is acting in bad faith if it continues to maintain such outer limits in a dispute with another State. Much may depend on the context, but it should be kept in mind that the CLCS issues “recommendations”, not legally-binding decisions, and that, under LOS Convention article 76(10), such recommendations “are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.” In any event, one potential consequence of a State acting or not acting in good faith concerns whether it can be said to have violated the sovereign rights of the other State in the disputed area, in which case the first State may incur responsibility for an internationally wrongful act.13 If the first State acts in good faith in the disputed area, then those acts likely do not violate the sovereign rights of the other State, whether or not those acts are in an area that is later found to be part of the latter’s continental shelf. By contrast, if the first State is not acting in good faith (in other words, is acting in a manner that is, in some sense, dishonest or disingenuous about its claims or rights in the disputed area), then it may violate the sovereign rights of the other State. There are, in essence, four scenarios that might arise: State Acts in Disputed Area Later Found to Be Its Continental Shelf State Acts in Good Scenario #1 (easiest case): Faith No State responsibility State Acts in Bad Faith

State Acts in Disputed Area Later Found Not to Be Its Continental Shelf Scenario #2: No State responsibility

Scenario #4 (hardest case): Scenario #3: State responsibility arises (?) State responsibility arises

13  Whether an international court or tribunal has jurisdiction over a claim for State responsibility may vary. The Ghana/Côte d’Ivoire Special Chamber found that it had jurisdiction over such a claim based on forum prorogatum (Ghana had not raised any objection to the Special Chamber’s jurisdiction in this regard). See Ghana/Côte d’Ivoire, supra note 5, at 153–54, paras. 552–53.

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Scenario # 1 is the easiest case. A State that acts in good faith in a disputed area does not – merely by virtue of having taken such actions – incur State responsibility, especially when the disputed area ultimately is determined to be a part of that State’s continental shelf. Scenario # 2 is a less intuitive outcome, but seems to be consistent with existing jurisprudence.14 Here, a State that takes actions in a disputed area in good faith does not – merely by virtue of having taken such actions – incur State responsibility, even if the disputed area is ultimately determined not to be a part of its continental shelf. Though less intuitive, the rationale for this outcome is that, in a contested maritime space, it is entirely possible that both States are operating in good faith (the maritime boundary line often is not obvious and there is almost always some margin of appreciation as to how it should be drawn). As such, if conduct within the contested maritime area is ultimately shown to be mistaken, but undertaken in good faith, a court or tribunal should not view such conduct as engaging State responsibility. The Ghana/Côte d’Ivoire Special Chamber maintained that this was true,15 although on the facts of that case, the actions taken by Ghana appear to have all occurred in waters that were later delimited in favor of Ghana.16 An analogy to how this rule operates in maritime spaces might be seen in case law relating to land territory. In its 2002 Cameroon v. Nigeria Judgment, the International Court of Justice determined that Nigeria had improperly claimed and occupied territory of Cameroon, including the Bakassi Peninsula and areas in the Lake Chad region.17 At the same time, the Court decided that the injury suffered by Cameroon – in the form of destruction of property and environmental harm – as a result of the occupation was sufficiently addressed by the delimitation effected by the Court and by the Court’s order that Nigeria withdraw its troops.18 In all likelihood, the judges were mostly 14  See, e.g., Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 2012 I.C.J. Rep. 624, at 718, para. 250 (Nov. 19). 15  Ghana/Côte d’Ivoire, supra note 5, at 162, para. 592 (“In the view of the Special Chamber, … maritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States.”). 16  Id. at 172–73, para. 633 (“[T]he Special Chamber takes into account that Ghana has undertaken hydrocarbon activities only in an area attributed to it.”). 17  Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, 2002 I.C.J. Rep. 303 (Oct. 10). 18  Id. at 452, para. 319 (“In the circumstances of the case, the Court considers moreover that, by the very fact of the present Judgment and of the evacuation of the Cameroonian

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concerned with the formulation of a remedy that would generally satisfy the overall demands of the prevailing party without overburdening the other party with excessive costs. As such, the Court tried to contribute to the creation of a non-confrontational environment in which the parties could move to a speedy implementation of the core objective of the judgment, which was the delimitation of territory. At the same time, the Court was likely influenced by a sense of whether Nigeria acted wrongfully. Counsel for Nigeria argued to the Court that if it ultimately assigned the disputed areas to Cameroon, it should not lead to a determination of State responsibility by Nigeria, because Nigeria was administering those territories in good faith and in the honest belief that those areas were under its sovereignty.19 One might ask whether such an approach gives States a free license to engage in actions in disputed continental shelf areas. I do not think it does. First, the State does have to be acting in good faith. Second, it is not giving a free license to all actions that a State might take in the disputed area; it is simply saying that the mere fact that actions are being taken in a disputed area is not wrongful. Nonetheless, some actions taken in the disputed area would be wrongful, such as actions taken in violation of an order on provisional measures issued by a competent international tribunal. Scenario # 3 concerns the situation where the State has acted in bad faith in an area ultimately established not to be its continental shelf. Here the result should be different from the first two scenarios, given that the conduct results from a State’s malfeasance in assessing and adhering to its rights and the rights of others. Perhaps an analogy drawn from a land boundary dispute is Iraq’s invasion and occupation of Kuwait during 1990–1991, where Iraq’s claims were generally regarded, including by the U.N. Security Council, as legally unsustainable, leading to Iraq’s responsibility for loss, damage or injury from its conduct in Kuwaiti territory.20 territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation.”). 19  Id., Verbatim Record, CR 2002/20, para. 24 (Mar. 15, 2002, 10 a.m.), https://www.icj-cij.org/ files/case-related/94/094-20020315-ORA-01-01-BI.pdf (last visited Nov. 28, 2018). 20  See Marco Frigessi di Rattalma & Tullio Treves, The United Nations Compensation Commission: A Handbook (1999); Gulf War Reparations and the UN Compensation Commission: Environmental Liability (Payne & Sand eds. 2011); Roger P. Alford, The Claims Resolution Tribunal, in The Rules, Practice, and Jurisprudence of International Courts and Tribunals (Chiara Giorgetti ed. 2012), 575; War Reparation and the UN Compensation Commission: Designing Compensation after Conflict (Tim Feighery et al. eds., 2015).

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Scenario # 4 presents the hardest case, one in which the State has acted in bad faith, but in an area that ultimately is determined to be part of its continental shelf. A failure to impose State responsibility on the State would be based solely on grounds that the State guessed right as to its entitlements and would look past acts it undertook that were in bad faith. On balance, it seems likely that State responsibility should be imposed in such circumstances. Perhaps an analogy for this in the land boundary context is the decision reached by the Eritrea-Ethiopia Claims Commission, which found that Eritrea willfully invaded a contested area that had been peacefully administered by Ethiopia for many years. The Claims Commission awarded significant amounts of compensation to Ethiopia for loss, damage and injury caused by Eritrea during the ensuing armed conflict, including with respect to areas that were later determined to be Eritrean territory by the Eritrea-Ethiopia Boundary Commission.21 2

The States Concerned Shall Abide by Any Legally-Binding Order on Provisional Measures of Protection by a Competent International Court or Tribunal

Second, it is possible that the dispute is placed before an international court or tribunal, and further possible that one or both of the States will seek an order from that court or tribunal for provisional (or interim) measures of protection (i.e., measures to be followed provisionally until the issuance of a final decision on delimitation). If such an order is issued and is legally binding, then both States are obliged to abide by it. In the Aegean Sea Continental Shelf case, Greece sought a provisional measures order requiring that both Greece and Turkey not engage in exploration activities in the Aegean Sea, saying that Turkey’s activities threatened the exclusivity of Greece’s rights with respect to the extent and location of seabed resources. The dispute arose before the adoption of the LOS Convention and thus the Court did not apply it; rather, it was applying its own rules and jurisprudence with respect to whether conditions existed meriting provisional measures of protection by the Court, prior to a judgment on matters of jurisdiction or the merits. The Court said that provisional measures are only warranted if necessary to ensure that States do not undertake activities that 21  See Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1–8, Decision of Dec. 19 2005, 26 R.I.A.A. 457; see also Sean D. Murphy, Won Kidane, & Thomas R. Snider, Litigating War: Mass Civil Injury and the Eritrea – Ethiopia Claims Commission 157–60 (2013).

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cause “physical damage to the seabed or subsoil” (as opposed to exploratory activity such as seismic exploration), do not establish installations on the continental shelf (as opposed to activities of a “transitory character”), and do not engage in actual appropriation or other use of natural resources.22 Yet, whether such invasive activities are occurring within a disputed area of the continental shelf appears not to be an automatic touchstone for determining whether to issue an order on provisional measures of protection. The 2015 Ghana/Côte d’Ivoire Special Chamber’s order on provisional measures accepted that drilling causes a “permanent physical modification of the area in dispute which no form of financial compensation or reparation can restore.”23 Further, the Special Chamber found that acquisition and subsequent use of geological information of the disputed area created a risk of irreversible prejudice.24 Even so, the Ghana/Côte d’Ivoire Special Chamber declined to order Ghana to suspend existing oil exploration and exploitation activities in the disputed maritime area.25 Thus, it allowed exploitation of shelf resources to continue even within the disputed area, because suspending such activities would cause prejudice to Ghana (Ghana had been engaged in such exploitation before Côte d’Ivoire claimed that the area was part of its continental shelf) and could cause harm to the marine environment.26 At the same time, the Special Chamber ordered:27 (a) No new drilling by Ghana. The Special Chamber ordered Ghana to take all necessary steps to ensure that no new drilling (either by Ghana or by others under its control) take place in the disputed area. As such, the Special Chamber did not order that Ghana suspend its existing exploitation, only that it refrain from drilling new wells. (b) Ghana must protect information. The Special Chamber ordered that Ghana take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire. As such, the Special Chamber .

22  A  egean Sea Continental Shelf Case (Greece v. Turkey), Interim Protection, Order of Sept. 11, 1976, I.C.J. Rep. 1976 3, at 11, para. 30. 23  Ghana/Côte d’Ivoire, Order on Provisional Measures, supra note 7, at 163, paras. 89–90. 24  Id. at 164, para. 95. 25  Id. at 20–23, paras. 99–100, 108. 26  Id. 27  Id. at 21–22, para. 108(1).

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apparently allowed Ghana to continue to gather such information, including from ongoing physical surveys, so long as it is not so used. (c) Ghana must conduct strict monitoring. The Special Chamber ordered Ghana to carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area, with a view to ensuring the prevention of serious harm to the marine environment. (d) Both parties must take steps to protect marine environment. The Special Chamber ordered both parties to take all necessary steps in the disputed area to prevent serious harm to the marine environment, including on the continental shelf and in its superjacent waters, and to cooperate toward that end. (e) Both parties must cooperate and avoid aggravating dispute. The Special Chamber ordered both parties to pursue cooperation and to refrain from any unilateral action that might lead to aggravating the dispute. 3

The States Concerned Shall Negotiate in Good Faith toward a Final Agreement on Delimitation

Third, the States concerned shall negotiate in good faith toward a final agreement on delimitation.28 This rule emanates from LOS Convention article 83(1), which provides: “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” International courts

28  Examples of such agreements include: Treaty between the Republic of Trinidad and Tobago and the Republic of Venezuela on the Delimitation of Marine and Submarine Areas, Apr. 18, 1990, http://extwprlegs1.fao.org/docs/pdf/bi-22381.pdf (last visited Nov. 28, 2018); Treaty on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 Nautical Miles, Mex.-U.S., June 9, 2000, T.I.A.S. No. 01,117; Agreement between Kenya and the United Republic of Tanzania, June 23, 2009, http://extwprlegs1.fao.org/ docs/pdf/bi-158812.pdf (last visited Nov. 28, 2018); and Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, Sept. 15, 2010, https://www.regjeringen.no/globalassets/upload/ud/vedlegg/folkerett/avtale_engelsk.pdf (last visited Nov. 28, 2018). For a discussion of these agreements, see Bjarni Már Magnússon, The Continental Shelf Beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement (2015), 187–212.

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and tribunals generally have assumed that article 83(1) expresses a rule of customary international law.29 The Ghana/Côte d’Ivoire Special Chamber maintained that the obligation under article 83, paragraph 1, of the Convention to reach an agreement on delimitation necessarily entails negotiations to this effect. The Special Chamber emphasizes that the obligation to negotiate in good faith occupies a prominent place in the Convention, as well as in general international law, and that this obligation is particularly relevant where neighbouring States conduct maritime activities in close proximity.30 Further, the Special Chamber noted that “the obligation to negotiate in good faith is an obligation of conduct and not one of result.”31 Such negotiations need to be meaningful, but they do not need to be successful and they do not require that a State depart from the position it has taken at the outset of the negotiations.32 This is consistent with the jurisprudence of international courts and tribunals with respect to the “obligation to negotiate” in the context of a shared natural resource.33 One issue that may arise concerns the relationship between this obligation to negotiate toward a final agreement and the resort to an institutional mechanism that may help in resolving the delimitation dispute. Thus, the International Court of Justice in the Somalia v. Kenya maritime boundary dispute emphasized the ability of States to negotiate and reach their own agreement on the delimitation of continental shelf boundaries independent of a recommendation from the Commission on the Limits of the Continental 29  See e.g., Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment, 2001 I.C.J. Rep. 40, at 91, para. 167 (Mar. 16); Nicaragua v. Colombia, supra note 14, at 674, para. 139; Maritime Dispute (Peru v. Chile), Judgment, 2014 I.C.J. Rep. 3, at 65, para. 179 (Jan. 27). 30  Ghana/Côte d’Ivoire, supra note 5, at 165–66, para. 604. 31  Id. 32  Id. 33  See, e.g., Cameroon v. Nigeria: Equatorial Guinea intervening, supra note 17, at 424, para. 244 (explaining that there is no requirement that the negotiations be successful, but that, “like all similar obligations to negotiate in international law, the negotiations have to be conducted in good faith”). Of course, in contexts other than a disputed area of the continental shelf, there may be no obligation under international law to negotiate a matter in dispute between two States. See, e.g., Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgement, at 54, para. 175 (Oct. 1, 2018), https://www.icj-cij.org/files/ case-related/153/153-20181001-JUD-01-00-EN.pdf (last visited Nov. 28, 2018) (holding that, under the circumstances, Chile did not undertake a legal obligation to negotiate sovereign access to the Pacific Ocean for Bolivia).

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Shelf.34 Conversely, a State normally may pursue dispute settlement before an international court or tribunal without first exhausting efforts at reaching a final agreement. For example, the Arbitral Tribunal in the South China Sea arbitration decision on jurisdiction and admissibility found that there is no requirement that States first exhaust diplomatic negotiations before resorting to LOS Convention Annex VII arbitration.35 4

Pending a Final Agreement on Delimitation, the States Concerned Shall Seek Provisional Arrangements of a Practical Nature

Fourth, pending conclusion of an agreement with respect to overlapping claims relating to the continental shelf, LOS Convention States Parties have an obligation to make every effort to seek an interim solution to overlapping continental shelf claims. LOS Convention article 83(3) provides in part that: “Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature…. Such arrangements shall be without prejudice to the final delimitation.”36 The obligation to seek to negotiate an interim solution is a positive obligation imposed upon States Parties, as contrasted with the negative obligation discussed next. According to the Guyana v. Suriname Arbitral Tribunal, this text indicates “the drafters’ intent to require of the parties a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement.”37 Indeed, such language 34  See Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgement on Preliminary Objections, 2017 I.C.J. Rep. 3, at 26, para. 67 (Feb. 2); see also Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgement on Preliminary Objections, 2016 I.C.J. Rep. 100, at 136, paras. 107–108 (Mar. 17); Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/ Myanmar), Case No. 16, Judgment of Mar. 14, 2012, 2012 ITLOS Rep. 4, at 98–103, paras. 369–94; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), PCA Case No. 2010–16. Award of July 7, 2014, at 21–22, paras. 76–82. 35  South China Sea Arbitration (Philippines v. China), Case No. 2013–19, Award on Jurisdiction and Admissibility (2015), at 120–23, paras. 345, 350, https://pcacases.com/web/send Attach/1506 (last visited Nov. 28, 2018). 36  L OS Convention, supra note 1, art. 84(3). For an argument that the rule set forth in article 83(3) is also part of customary international law, see R.R. Churchill and A.V. Lowe, The Law of the Sea (3d ed. 1999), 192. 37  Guyana v. Suriname, supra note 4, at 130, para. 461.

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implicitly recognizes the importance of avoiding wholesale suspension of activities in the disputed area, so long as doing so does not affect the ability to reach a final agreement.38 As with the obligation to negotiate in good faith, the Ghana/Côte d’Ivoire Special Chamber concluded that this obligation is one of conduct rather than result;39 the State is expected to make every effort to conclude a provisional arrangement, but there is no requirement that such efforts be successful.40 The text does not impose on the parties an obligation to enter into any particular agreement or to adopt any specific solution, or any solution at all, but does require some action by them. Moreover, one State Party likely does not violate this obligation if the other State Party never requests that a provisional arrangement be undertaken, as was found in the Ghana/Côte d’Ivoire decision.41 Examples of actions likely to be contrary to this aspect of LOS Convention article 83(3) may be seen in the analysis of the Guyana v. Suriname Arbitral Tribunal. These include:42 refusing to send a delegation or a representative to agreed-upon meetings; failing to respond to a proposal by the other State; and, in some cases, not informing the other State about proposed actions in the contested area. On the other hand, conduct that could help to satisfy this requirement might include: efforts to commence negotiations with the other party; accepting the invitation of the other party to negotiate; seeking the cooperation of the other party when undertaking proposed activities; and offering to share the results and benefits of activities in the contested area. The interim solution need not be in the form of a binding international agreement, although such agreement is certainly possible. Further, the content of the provisional solution may vary considerably, ranging from mutuallyagreed restraint from undertaking exploitation activities in a contested area, to the establishment of a provisional boundary, to cooperation in the disputed area through joint development.43 Indeed, joint development zones on a provisional basis may be found in many parts of the world.44 For example, 38  Id. 39  Ghana/Côte d’Ivoire, supra note 5, at 170–71, para. 627. 40  Id. 41  Id. at 171, para. 628. 42  Guyana v. Suriname, supra note 4, at 133–36, paras. 471–78. 43  See Anderson and van Logchem, supra note 6, at 206. 44  For example, such zones were established by: Kuwait and Saudi Arabia in the Persian Gulf (1965); Japan and South Korea in the Sea of Japan/East Sea (1974); Sudan and Saudi Arabia in the Red Sea (1974); Malaysia and Thailand in the Gulf of Thailand (1990); Malaysia and Vietnam in the Gulf of Thailand (1993); and Australia and Timor-Leste in the Timor Sea (2002).

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Nigeria and the island nation of São Tomé e Príncipe concluded in 2001 a joint development agreement in the Gulf of Guinea on a provisional basis, which allows for exploitation of seabed resources in an area where their zones overlap. Under the agreement, there exist joint bodies charged with managing the zone, including with respect to the sharing of revenue, the application of laws and regulations, and environmental protection.45 While these are “provisional arrangements,” that does not mean they are necessarily of a short duration; indeed, by its terms, the Nigeria and São Tomé e Príncipe agreement is to remain in force for 45 years.46 Whatever provisional solution is achieved, LOS Convention article 83(3) is clear that the solution does not prejudge the final settlement of the dispute, and thus a State cannot acquire, even over a long period of time, permanent rights by entering into such a provisional arrangement.47

   Joint development zones can also be used as a more permanent solution. For example, in 2008 Mauritius and Seychelles submitted a joint application to the Commission on the Limits of the Continental Shelf for the Mascarene Shelf Plateau shared between them, and then concluded two treaties providing for the co-management of the shelf. See Mossop, supra note 2, at 227–30. Such a solution is particularly suited to overlapping extended continental shelf claims since much of the area will be little explored and thus States will have fewer vested interests before negotiation. Id. at 243. In 2018, Australia and Timor-Leste concluded a treaty establishing their maritime boundaries in the Timor Sea, which provides in principle for both States to develop the Greater Sunrise gas fields together and share in the benefits. See generally David M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: “Mere” State Practice or Customary International Law?, (1999) 93 Am. J. Int’l. L., 771; Thomas A. Mensah, Joint Development Zones as an Alternative Dispute Settlement Approach in Maritime Boundary Delimitation, in Maritime Delimitation (Rainer Lagoni & Daniel Vignes eds, 2006), 143. 45  Treaty between the Federal Republic of Nigeria and the Democratic Republic of São Tomé e Príncipe on the Joint Development of Petroleum and Other Resources, in respect of Areas of the Exclusive Economic Zone of the Two States, art. 51, Feb. 21, 2001, http://www .un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STP-NGA2001 .PDF (last visited Nov. 28, 2018). 46  Id. For a discussion of this joint development zone, but also broader State practice on this issue, see J. Tanga Biang, The Joint Development Zone between Nigeria and Sao Tome and Principe: A Case of Provisional Arrangement in the Gulf of Guinea – International Law, State Practice and Prospects for Regional Integration, Division for Ocean Affairs and the Law of the Sea, U.N. Office of Legal Affairs (2010), http://www.un.org/ depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/tanga_0910 _cameroon.pdf (last visited Nov. 28, 2018). 47  See Lagoni, supra note 6, at 359.

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Pending a Final Agreement, the States Concerned Shall Not Take Steps that Jeopardize the Reaching of a Final Agreement

Fifth, pending conclusion of an agreement with respect to overlapping claims in the exclusive economic zone or the continental shelf, a LOS Convention State Party has a further “make every effort” obligation. LOS Convention article 83(3) also provides in part that: “Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort … not to jeopardize or hamper the reaching of the final agreement.”48 This obligation might be characterized as a negative obligation; it requires States Parties to refrain from engaging in unilateral action that may aggravate a dispute. At the same time, it is also an obligation of conduct, not of result.49 States must exercise due diligence in this regard but may not ultimately succeed. Although this analysis breaks up into two “rules” the obligation to pursue practical arrangements and the obligation not to jeopardize the reaching of a final agreement, it should be noted that the Ghana/Côte d’Ivoire Special Chamber found that these are “two interlinked obligations for the States concerned” and “that the two obligations are connected.”50 Further, the Special Chamber viewed this obligation “not to jeopardize or hamper” as operating during the period after the maritime delimitation dispute has been established, but before either a provisional arrangement has been reached or a final delimitation by agreement or adjudication has been achieved.51 Importantly, the obligation under article 83(3) does not require a complete moratorium on exploration or even on exploitation activities in areas claimed in good faith by a State.52 Rather, it aims at balancing two considerations: a desire not to prevent all unilateral activities pending final settlement of the boundary; and a desire to avoid, as far as possible, any unilateral action that could worsen the dispute and could threaten international peace and security. In the Guyana v. Suriname Award, the Arbitral Tribunal focused largely on whether the parties’ unilateral actions would cause permanent physical change to the marine environment (“seismic exploration” versus “exploitation of oil and gas reserves”),53 an approach that was likely inspired by54 the Court’s 48  49  50  51  52  53  54 

L OS Convention, supra note 1, art. 84(3). Ghana/Côte d’Ivoire, supra note 5, at 171–72, para. 629. Id. at 170–72, paras. 626, 629. Id. at 172, para. 630. Guyana v. Suriname, supra note 4, at 131–32, para. 465. Id. at 132, para. 467. Id. at 132–33, paras. 468–69.

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decision on provisional measures of protection in Aegean Sea Continental Shelf.55 With that standard in mind, the Guyana v. Suriname Arbitral Tribunal found that both Guyana and Suriname had violated their obligations under LOS Convention article 83(3).56 According to the Arbitral Tribunal, Guyana failed to exercise the necessary self-restraint by authorizing exploratory drilling by an oil rig in the contested waters, while Suriname had failed by sending a coast guard vessel to order the rig to leave the area, stating that if it did not do so, unspecified “consequences” would ensue.57 Yet, while the provisional measures of protection ordered in the Aegean Sea case, and in other cases before international courts58 and tribunals,59 are important reference points, it should be kept in mind that the standard being applied with respect to provisional measures of protection is a higher standard than exists for not jeopardizing or hampering under LOS Convention article 83(3). A court or tribunal may refrain from ordering provisional measures out of a belief that any wrongful act may be later remedied through compensation; the court or tribunal is not determining whether or not the act is wrongful in the first place.60 By contrast, article 83(3) has a wider sweep, seeking to prevent all acts that jeopardize or hamper the reaching of a final agreement, whether or not the harm caused might later be remedied through compensation. At the same time, if an action is egregious enough to satisfy the standard applied with respect to provisional measures of protection, it would appear also then to meet the standard set under the LOS Convention.61 The obligation “not to jeopardize and hamper” the reaching of a final agreement might also be considered in light of the duty to refrain from aggravating

55  Aegean Sea Continental Shelf, supra note 22, at 9–10, paras. 26–27. 56  Guyana v. Suriname, supra note 4, at 139, para. 488(3). 57  Id. at 137–38, paras. 479–84. 58  See, e.g., Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of Mar. 8, 2011, 2011 I.C.J. Rep. 6; Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of Nov. 22, 2013, 2013 I.C.J. Rep. 354. 59  See, e.g., Ghana/Côte d’Ivoire, Order on Provisional Measures, supra note 7. 60  See generally Shabtai Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005). 61  Guyana v. Suriname, supra note 4, at 156, para. 469 (“Activities that would meet the standard required for the indication of interim measures, in other words, activities that would justify the use of an exceptional power due to their potential to cause irreparable prejudice, would easily meet the lower threshold of hampering or jeopardising the reaching of a final agreement.”).

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or extending a dispute during the course of dispute settlement proceedings.62 The Arbitral Tribunal in the South China Sea arbitration explained that the conduct of either party may aggravate a dispute where that party continues during the pendency of the proceedings with actions that are alleged to violate the rights of the other, in such a way as to render the alleged violation more serious. A party may also aggravate a dispute by taking actions that would frustrate the effectiveness of a potential decision, or render its implementation by the parties significantly more difficult. Finally, a party may aggravate a dispute by undermining the integrity of the dispute resolution proceedings themselves, including by rendering the work of a court or tribunal significantly more onerous or taking other actions that decrease the likelihood of the proceedings in fact leading to the resolution of the parties’ dispute.63 In striking the right balance under LOS Convention article 83(3) between provisionally pursuing activities and refraining from aggravating the dispute, it appears that context is very important. While an objective criterion (permanent versus non-permanent effects from the activities) may be attractive, such an approach does not sufficiently take into account that, depending on the particular situation, an act with non-permanent effects could potentially trigger a forceful response by the other State, while an act with permanent effects might be viewed as harmless. For example, even exploration of resources, in some situations, might aggravate the dispute, especially if this is undertaken without any previous notification by the exploring State. Interestingly, the Ghana/Côte d’Ivoire Special Chamber saw a link between this obligation under article 83(3) and the final judgment on delimitation. Because the Special Chamber found that Ghana had not engaged in any hydrocarbon activities in any area that was accorded to Côte d’Ivoire in the delimitation judgment, it was “impossible to state that Ghana has undertaken activities which have jeopardized or hampered the conclusion of an agreement as envisaged by article 83, paragraph 3, of the Convention.”64 62  See, e.g., Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of Mar. 15 1996, 1996 I.C.J. Rep. 13, at 22–23, para. 41; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of Jan. 23 2007, 2007 I.C.J. Reports 3, at 16, paras. 49–50; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Declaration of Judge Buergenthal, 2007 I.C.J. Rep. 21 (Jan. 23). 63  South China Sea Arbitration, supra note 10, at 462, para. 1176. 64  Ghana/Côte d’Ivoire, supra note 5, at 172–73, para. 633.

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Though the focus of this Chapter is on a dispute over the continental shelf, it is noted that the application of this rule to fishing activities entails different elements. Fish are a renewable resource if harvested in a sustainable manner, so it may be possible for one (or both) claimant States to engage in fishing in the disputed area if done sustainably. Indeed, if such harvesting does not occur due to the existence of the disputed area, then an economic resource is being wasted. In Guyana v. Suriname, the Arbitral Tribunal stated that “international courts and tribunals should … be careful not to stifle the parties’ ability to pursue economic development in a disputed area during a boundary dispute, as the resolution of such disputes will typically be a time-consuming process.”65 Further, the exercise of jurisdiction in the disputed area by one of the States may be desirable as a means of avoiding a situation whereby the vessels of third States are engaging in unsustainable activities that destroy the fish stocks. To the extent that the standards applied to provisional measures of protection are relevant, it might be noted that the International Court of Justice, in its 1972 provisional measures order in Fisheries Jurisdiction (United Kingdom v. Iceland), indicated that States should not undertake fishing activities that result in “irreparable prejudice.”66 As such, it would appear that exploitation of fish can be undertaken by one or both of the disputing States, so long as it is done sustainably. 6

The States Concerned Shall Use Only Permissible Countermeasures in Response to Unlawful Acts

Sixth, every State may exercise countermeasures in response to another State’s violation of its obligations in a disputed area of the continental shelf, provided that such countermeasures conform to the rules on State responsibility.67 Thus, if one of the two States advancing claims to a contested area is acting wrongfully – perhaps by taking acts that aggravate the dispute or by refusing to negotiate a provisional arrangement – the other State may exercise

65  G  uyana v. Suriname, supra note 4, at 156, para. 470. 66  Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of Aug. 17, 1972, 1972 I.C.J. Rep. 12, at 16, para. 21. 67  An important source in this context is the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles). See Draft Articles on Responsibility of States for Internationally Wrongful Acts, arts. 49–54, in Y.B. Int’l L. Comm’n, 2001, Vol. II, Part Two, UN Doc. A/CN.4/SER.A/2001/Add. 1, at 26 (hereinafter ILC Articles).

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permissible countermeasures, which might consist of non-compliance with the LOS Convention. Among other things, the purpose of the countermeasures must be to induce compliance by the other State; advance notice must be given of the intent to take countermeasures (thereby giving the other State an opportunity to come into compliance); and they must be taken in such a way as to permit resumption of performance if the other State comes into compliance. Moreover, the countermeasures must be proportionate to the other State’s non-compliance and cannot violate human rights or jus cogens.68 7

The States Concerned Shall Not Threaten or Use Force in Violation of the U.N. Charter

Seventh, there are limits on using force or threatening to use force against another claimant State in contested maritime spaces. Under international law, a State may not use force or threaten to use force against another State’s territorial integrity or political independence.69 LOS Convention article 301 reinforces this general rule by stating: “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”70 This rule has been applied even in contested maritime spaces, where a State believes that it has sovereign rights in those waters while another State does not. Thus, in Guyana v. Suriname, the Arbitral Tribunal applied such a rule in a situation where Guyana claimed that Suriname had wrongfully used force in the disputed maritime space.71 The Arbitral Tribunal accepted the argument “that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary.”72 Yet it asserted that Suriname’s action of sending a patrol vessel to order an oil rig to leave the 68  The ILC Articles also provide that the countermeasure may not violate rules on the use of force as set forth in the U.N. Charter, which are addressed in the next sub-section. 69  U.N. Charter art. 2(4). 70  L OS Convention, supra note 1, art. 301. 71  Guyana v. Suriname, supra note 4, at 145, para. 445. Unfortunately, the Arbitral Tribunal also did not discuss the fact that the action was taken not against a Guyana vessel, but against a private oil company rig flagged to a third State that had a contract with Guyana, a situation that normally might not constitute an inter-State use of force. 72  Id.

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contested waters was an unlawful threat of force under the circumstances (the rig was approached at midnight and given twelve hours to leave; the rig was told if it didn’t leave “the consequences would be yours”; the men on the rig perceived that this meant military force would be used if they did not leave). While the Guyana v. Suriname Arbitral Tribunal was not clear in identifying what would have been acceptable “law enforcement activity” by Suriname, the implication may be that the patrol vessel could have instructed the rig to leave the area without issuing a vague threat and, if the rig did not leave, perhaps the patrol vessel could have boarded the rig, inspected its papers, and ultimately arrested the rig operators if they did not comply with instructions. In any event, the standard applied was that an enforcement activity should only use “such force [as] is unavoidable, reasonable and necessary.” The International Tribunal for the Law of the Sea articulated a comparable standard in the Saiga (No. 2) case, when it stated: Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.73 The Guyana v. Suriname Arbitral Tribunal cited to the Eritrea-Ethiopia Claims Commission decision relating to Eritrea’s use of force against Ethiopia in 1998. That Commission explained that, if the law were to recognize a State’s ability to use force in a contested area peacefully administered by another State based solely on the first State’s claim of sovereignty, the international prohibition on the use of force would be significantly weakened. The Commission noted that “border disputes between States are so frequent that any exception to the prohibition of the threat or use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law.”74 The South China Sea Arbitral Tribunal also addressed the use of law enforcement vessels in disputed waters, specifically recounting multiple instances where Chinese law enforcement vessels operated in a dangerous manner 73  The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea), Case No. 2, Judgment of July 1, 1999, 1999 ITLOS Rep. 10, at 10, para. 155. 74   Eritrea-Ethiopia Claims Commission, supra note 21, at 465, para. 10.

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toward Philippine coast guard and surveillance ships, causing near collisions.75 The Philippines argued that such actions by China were in violation of the Convention on the International Regulations for Preventing Collisions at Sea,76 and the Arbitral Tribunal found that the vessels “created serious risk of collision and danger to Philippine vessels and personnel.”77 8

Third States Shall Not Knowingly Assist One of the States Concerned if It is Acting Wrongfully

Eighth, third States are obligated not to knowingly aid or assist a State that is acting wrongfully with respect to a disputed area of the continental shelf. If one of the two States advancing claims to a contested area is acting wrongfully, for example by acting in a way that aggravates the dispute or by refusing to negotiate a provisional arrangement, then third States have an obligation not to aid or assist the State acting wrongfully. Article 16 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.”78

Conclusion

In many areas of the seas, there remain overlapping claims to the continental shelf, including the extended continental shelf, which in due course may be resolved through negotiation or dispute settlement. In the meantime, the disputing States must conduct themselves in the disputed area of the continental shelf in conformance with their obligations under international law. Drawing upon relevant treaties and customary international law, as well as international jurisprudence, this Chapter has advanced eight basic rules that every State should follow in such a situation. Inevitably, such rules are general in 75  South China Sea Arbitration, supra note 10, at 417−21, paras. 1046−58. 76  Convention on the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, 1050 U.N.T.S. 17. 77  South China Sea Arbitration, supra note 10, at 421, 435, paras. 1059, 1109. 78  I LC Articles, supra note 67, art. 16.

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nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding their overall duty to resolve disputes peacefully.

Acknowledgements

The author wishes to thank Ms. Tara Ippoliti and Ms. Alexandra Utech for assistance in researching and editing this Chapter.

Chapter 10

Joint Development in Continental Shelf Areas beyond 200 Nautical Miles Vasco Becker-Weinberg 1

Introduction

States cannot unilaterally exploit non-living resources found in disputed maritime areas. Cooperation is indispensable for States to legally develop resources in areas of overlapping claims even if recent developments in international jurisprudence may have opened the door to questioning the full extent of the obligation of restraint in these cases. This notwithstanding, cooperation promotes resource-efficiency, seeing that competing drilling is also inefficient and can potentially result in waste of resources. Hence M.W. Mouton’s adage: “never two straws in one glass.”1 Joint development allows for two or more States to implement a cooperative regime in disputed maritime areas to their own benefit, but also to the benefit of the interests of public or private entities undertaking or looking forward to undertaking exploration and exploitation activities in disputed maritime areas or regarding transboundary resources, by providing legal certainty and security. In addition to creating the legal regime applicable to the exploration and exploitation of living and non-living marine natural resources, joint development agreements provide the legal framework for other uses and activities and the overall management of the disputed maritime area.2 Such agreements depend first and foremost on political will and on the relevant States reaching agreement on the essential legal elements, namely the identification of the designated area for joint development and of the natural resources to be exploited, the establishment of a jurisdictional and legal framework, as well as the terms and conditions under which joint operations are to take place.3 1  M.W. Mouton, “The continental shelf”, (1954-I) 85 Recueil des Cours de l’Academie de Droit International, 347–463, at 421. 2  Vasco Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea (Springer, 2014), 69–72, 93–140. 3  Id., 120–140. Other relevant aspects include determining the level of involvement and participation of governments and national authorities in exploration and exploitation activities

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State practice on joint development agreements is quite varied and evidences that these arrangements are implemented before and after the delimitation of maritime boundaries, including in areas beyond 200 nautical miles (M).4 In the case of joint development on the outer continental shelf, two agreements may be considered. The agreement between the United States of America and Mexico,5 after these States had agreed on the delimitation of maritime boundaries,6 and the agreement signed by Mauritius and the Seychelles,7 pending these countries reaching an understanding on the final delimitation of the maritime boundaries of the continental shelf beyond 200 M. Mauritius and the Seychelles also signed a treaty that established the outer limit boundaries of the extended continental shelf,8 following their joint submission to the Commission on the Limits of the Continental Shelf (CLCS),9 which resulted in and management of the joint development area, the creation of joint entities to undertake certain rights of the relevant coastal States, the conditions for granting the right of access to operations, the safeguard of pre-existing rights and establishing rules on taxation, sharing of costs and revenues, employment, health and safety, combating pollution, use of offshore installations and structures, namely regarding their construction, operation, removal and decommissioning, as well as identifying the applicable law and mechanism for the settlement of disputes, including with and between operators. 4  Id., 69–140. 5  Agreement between the United States of America and the United Mexican States Concern­ ing Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico, done at Los Cabos on 20 February 2012, T.I.A.S. 14–718. 6  Treaty between the Government of the United States of America and the Government of the United Mexican States on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 Nautical Miles, done on 9 June 2000 and entered into force on 17 January 2001, published in 2143 U.N.T.S. 417. 7  Treaty Concerning the Joint Management of the Continental Shelf in the Mascarene Plateau Region between the Government of the Republic of Seychelles and the Government of the Republic of Mauritius, done at Vacoas on 13 March 2012 and entered into force on 18 June 2012, reg. n. 49783 U.N.T.S., 11 July 2012. 8  Treaty Concerning the Joint Exercise of Sovereign Rights Over the Continental Shelf in the Mascarene Plateau Region, done at Vacoas on 13 March 2012 and entered into force on 18 June 2012, reg. n. 49782 U.N.TS., 11 July 2012. 9  On 1 December 2008, Mauritius and the Seychelles jointly submitted to the CLCS information on the limits of their continental shelf beyond 200 M, see Receipt of the Joint Submission made by the Republic of Mauritius and the Republic of Seychelles to the Commission on the Limits of the Continental Shelf, 12 December 2008, UN Doc. CLCS.14.2008.LOS (Continental Shelf Notification) [online: http://www.un.org/depts/los/clcs_new/submissions_files/ musc08/clcs14_2008e.pdf (accessed in November 2018)]. The original joint submission was revised on 12 March 2010 concerning the Mascarene Plateau region [online: http://www .un.org/depts/los/clcs_new/submissions_files/musc08/SMS-ES-DOC_Rev.pdf (accessed in November 2018)]. The revised submission only represented a partial submission in respect of

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establishing joint jurisdiction over an additional area of 396,000 km2 in the Indian Ocean.10 Although the essential legal elements of joint development agreements within and beyond 200 M may not necessarily differ, this is not the case regarding the interaction between such agreements and the international legal regimes applicable to areas beyond national jurisdiction, namely the Area and the high seas. Therefore, in addition to the rules of law applicable in disputed maritime areas, it is important to consider what relevant legal aspects can arise from the said interaction, including in the absence of the delimitation of maritime boundaries beyond 200 M or the delineation of the outer continental shelf limits. These include first and foremost the specific obligations of coastal States established under the United Nations Convention on the Law of the Sea (LOSC)11 in connection with the continental shelf beyond 200 M. This Chapter will begin by addressing the rules applicable to the overlap of outer continental shelf entitlements, particularly for the purpose of implementing joint development regimes before coastal States have made their submission to the CLCS or pending its recommendations. Subsequently, it will review coastal States’ obligations in such areas, focusing on recent developments. It will then examine the interaction of the legal regime of the outer continental shelf with that applicable to areas beyond national jurisdiction, namely the Area (horizontal interaction) and the high seas (vertical interaction).

  a portion of the extended continental shelf claimed by each of the two States. The submissions for the other portions will be made by each of the two States individually. On 30 March 2011, the CLCS adopted recommendations on the limits of the continental shelf and recognized the legal entitlement of Mauritius and the Seychelles to delineate the outer limits of the continental shelf beyond their 200 M limits in the Mascarene Plateau region, thus recognizing that these two States have an additional area of 396,000 km2 in the Indian Ocean, see Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Joint Submission made by Mauritius and Seychelles concerning the Mascarene Plateau region on 1 December 2008, p. 5, para. 19 and p. 21, paras. 59 to 62 [online: http://www.un.org/depts/los/clcs_new/submissions _files/musc08/sms08_summary_recommendations.pdf (accessed in November 2018)]. 10  See Statement by the Ministry of Foreign Affairs of the Seychelles [online: http://www.mfa .gov.sc/static.php?content_id=36&news_id=278 (accessed on November 2018)]. 11  United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, entered into force on 16 November 1994: 1833 U.N.T.S. 3.

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Overlapping Outer Continental Shelf Entitlements

Contrary to continental shelf entitlements within 200 M, which are based on the principle “the land dominates the sea”12 the entitlement to the outer continental shelf is based on “natural prolongation” to be established pursuant to article 76(4) of LOSC.13 Yet, although “natural prolongation” is the basis of the outer continental shelf entitlement, it is not for the delimitation of maritime boundaries beyond 200 M.14 Indeed, in Bangladesh/Myanmar, although the position of the International Tribunal for the Law of the Sea (ITLOS) supported the notion that the outer continental shelf entitlement corresponds to the area beyond 200 M that results from the equating of “natural prolongation” with “continental margin”,15 the Tribunal concluded that “the delimitation method to be employed … for the continental shelf beyond 200 nm should not differ from that within 200 nm.”16 Accordingly, the delimitation between overlapping outer continental shelf entitlements is subject to article 83 of LOSC, even though, as has been noted, there is not much purpose for the provision, despite encouraging restraint and practical cooperation pending final delimitation.17 In fact, it has been considered that, together with article 74 of LOSC, this provision is not very 12  N  orth Sea Continental Shelf Cases (Germany v Netherlands; Germany v Denmark) ( Judgment) [1969] ICJ Rep 3, paras. 23, 52. 13  “For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured….” 14  Nuno Marques Antunes and Vasco Becker-Weinberg, “Entitlement to maritime zones and their delimitation: In the doldrums of uncertainty and unpredictability”, in Alex G. Oude Elferink, Tore Henriksen and Signe Veierud Busch (eds), Maritime Boundary Delimitation: The Case Law. Is it Consistent and Predictable? (Cambridge University Press: Cambridge, 2018), 62–91, at 67. 15  Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) Judgment [2012] ITLOS Rep 1, paras. 127–128. For a different understanding, see Judge Gao’s Separate Opinion [online: www .itlos.org/fileadmin/itlos/documents/cases/case_no_16/9-C16.sep_op.Gao.withmaps .orig.E.pdf (accessed in November 2018)]. On the relationship between delimitation of the continental shelf beyond 200 M and the procedure to determine the outer limits of the continental shelf beyond 200 M in accordance with article 76 of LOSC, see Signe Veierud Busch, “The delimitation of the continental shelf beyond 200 nm: procedural issues”, in Alex G. Oude Elferink, Tore Henriksen and Signe Veierud Busch (eds), Maritime Boundary Delimitation: The Case Law. Is it Consistent and Predictable? (Cambridge University Press: Cambridge, 2018), 319–350. 16  Bangladesh/Myanmar, para.132. 17  Edward Duncan Brown, The International Law of the Sea, vol. 1, Introductory Manual (Aldershot, Broofield USA, Singapore, Sydney: Dartmouth, 1994), 159.

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enlightening18 or meaningful.19 However, as will be subsequently analysed, recent developments in international jurisprudence highlight the importance of the appropriate interpretation of the obligations enshrined in paragraph 3 of these articles, namely the obligations to make every effort to enter into provisional arrangements of a practical nature and not to jeopardize or hamper the final delimitation of maritime boundaries. In Bangladesh/Myanmar, the decision of ITLOS included the delimitation of maritime boundaries on the continental shelf beyond 200 M, even before either one of these countries had received recommendations from the CLCS. The Tribunal considered that the institutional framework established in LOSC entailed that the activities of the different bodies were complementary to each other, namely those of the Tribunal and the Commission, to ensure the coherent and efficient implementation of the Convention.20 18  Rainer Lagoni, “Interim measures pending maritime delimitation agreements”, (1984) 78(2) American Journal of International Law, 345–368, at 358. 19  Robin R. Churchill and Vaughn Lowe, The Law of the Sea, 3rd edition (Manchester University Press: Manchester, 1999), 191. Articles 74(1) and 83(1) of LOSC have the same wording as a result of the compromise formula adopted during the negotiation of the Convention so as not to exclude any of the different positions held during the negotiations and drafting of these provisions. Consequently, these provisions do not include any reference to a delimitation method but only mention that the aim is to achieve a delimitation of maritime boundaries that is equitable. 20  Bangladesh/Myanmar, para. 373. The Tribunal concluded: “There is a clear distinction between the delimitation of the continental shelf under article 83 and the delineation of its outer limits under article 76. Under the latter article, the Commission is assigned the function of making recommendations to coastal States on matters relating to the establishment of the outer limits of the continental shelf, but it does so without prejudice to delimitation of maritime boundaries. The function of settling disputes with respect to delimitation of maritime boundaries is entrusted to dispute settlement procedures under article 83 and Part XV of the Convention, which include international courts and tribunals.” (para. 376); “Just as the functions of the Commission are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts, so the exercise by international courts and tribunals of their jurisdiction regarding the delimitation of maritime boundaries, including that of the continental shelf, is without prejudice to the exercise by the Commission of its functions on matters related to the delineation of the outer limits of the continental shelf.” (para. 379); “In the view of the Tribunal, it would be contrary to the object and purpose of the Convention not to resolve the existing impasse. Inaction in the present case, by the Commission and the Tribunal, two organs created by the Convention to ensure the effective implementation of its provisions, would leave the Parties in a position where they may be unable to benefit fully from their rights over the continental shelf.” (para. 392); “The Tribunal observes that the exercise of its jurisdiction in the present case cannot be seen as an encroachment on the functions of the Commission, inasmuch as the settlement, through negotiation, of disputes between States regarding delimitation of the continental shelf beyond 200 nm is not seen as precluding examination by the Commission

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More recently, the Special Chamber of ITLOS found in Ghana/Côte d’Ivoire that it had jurisdiction to delimit the continental shelf beyond 200 M. It began by emphasizing “that there is in law only a single continental shelf”,21 and that the delimitation beyond 200 M may only take place “if such a continental shelf exists.” This was the case, since Ghana had received affirmative recommendations of the CLCS and Côte d’Ivoire had made its submission,22 although pending the recommendations of the Commission, but regarding which there was no doubt for the Special Chamber that a continental shelf beyond 200 M existed for this country considering its geological situation being identical to that of Ghana.23 With respect to the possible interference with the competence of the CLCS, the Special Chamber recognized that the functions of the two bodies were different and upheld the above-mentioned position of the Tribunal in Bangladesh/Myanmar.24 Likewise, it considered that, precisely because there is only one single continental shelf, there should only be one methodology for the delimitation of the continental shelf within and beyond 200 M.25 Therefore, considering the distinction between delineation and delimitation, two or more States may enter into a joint development agreement regarding areas of the continental shelf beyond 200 M, despite the fact that submissions to the CLCS have not been made or recommendations have not been received, the legal basis being the existence of overlapping outer continental shelf entitlements. Within overlapping areas, States must still agree on the respective joint development area. Another element to consider is the possibility that, based on the CLCS’s recommendations, certain areas included in the States’ submissions to the Commission be considered as being beyond the areas of entitlement and therefore within the Area. Considering this possibility, States must be cautious in granting rights on the outer continental shelf pending the recommendations by the CLCS, regardless of these areas being disputed by two or more States. Yet, it should be underlined that this is a matter of caution and not of the submissions made to it or hindering it from issuing appropriate recommendations.” (para. 393) 21  I TLOS, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Judgment, 23 September 2017, Case nº 23, para. 490. 22  List of submissions and recommendations [online: http://www.un.org/depts/los/clcs _new/commission_submissions.htm (accessed on November 2018)]. 23  Ghana/Côte d’Ivoire, Judgment, para. 491. 24  Id., para. 493. 25  Id., paras. 526, 527.

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of limiting or in any way restricting the exclusive sovereign rights that coastal States exercise over the continental shelf pursuant to article 77 of LOSC. While caution is based on the adoption of a prudent approach, subject to the discretion of the coastal State, the rights of the latter over the outer continental shelf are based on its entitlement. 3

Provisional Arrangements of a Practical Nature beyond 200 M

Articles 74 and 83 of LOSC, particularly paragraphs 126 and 3,27 are undeniably not of much use for the delimitation of the EEZ or the continental shelf between States with opposite or adjacent coasts, including beyond 200 M, nor for the assessment of the scope and content of provisional arrangements referred to therein. Paragraph 1 merely acknowledges the legal principle that maritime boundaries are to be delimitated by agreement, and does not create an obligation for States to enter into a maritime delimitation agreement. States are only required by international law to enter into meaningful negotiations and to cooperate trying to settle their disputes by peaceful means. Should States fail to settle their maritime boundaries by means of negotiation or compulsory settlement mechanism, LOSC provides that States may adopt provisional arrangements pursuant to paragraph 3. The Convention merely reinforces the general obligation to negotiate in good faith and to exercise mutual restraint.28 Another relevant aspect to be mentioned regards the underlying purpose of these provisions. During the negotiation and drafting procedures of LOSC, several States expressed concern that the lack of agreement on the delimitation of maritime areas should not hinder the possibility of undertaking economic

26  “1. The delimitation of the [exclusive economic zone/continental shelf] between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” 27  “3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.” 28  Likewise, article 123 of LOSC on enclosed and semi-enclosed seas determines that coastal States “should co-operate with each other in the exercise of their rights and in the performance of their duties under [LOSC]”, but excluding any reference to cooperation regarding non-living resources or to an obligation to enter into an agreement.

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activities in disputed maritime areas.29 Consequently, a compromise was reached on (a) the criteria to be applied to delimitation of the EEZ and the continental shelf, (b) interim measures and (c) the settlement of delimitation disputes.30 Regarding the legal nature, international jurisprudence has recognized that the principles of maritime delimitation enshrined in these provisions reflect customary international law.31 Over the years, State practice and international jurisprudence have considered the implementation of provisional measures a valuable legal option pending the delimitation of maritime boundaries, particularly of joint development agreements.32 The early examples of joint development pending maritime delimitation precede LOSC.33 As a matter of fact, the internationalization of marine natural resources through joint development34 was first 29  R  eport by the Chairman of Negotiating Group 7 on the work of the Group at its 17th–27th meetings, NG7/24, 14 September 1978, Document A/CONF.62/RCNG/2, UNCLOS III Off. Rec. Volume X, 171. Also see Report of the Chairman of the negotiating group 7, Document NG7/45, UNCLOS Off. Rec. V. XII; Reports of the Committees and Negotiating Groups on negotiations at the resumed seventh session contained in a single document both for the purposes of record and for the convenience of delegations, Document A/CONF.62/ RCNG/1, UNCLOS III Off. Rec. Volume X., 123–124. 30  Id., 170–172. 31  Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, para. 48: “The Court however notes that Article 74, paragraph 1, and Article 83, paragraph 1, of that Convention provide for the delimitation of the continental shelf and the exclusive economic zone between States with opposite or adjacent coasts to be effected “by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”. That statement of an “equitable solution” as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones.” See also Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, para. 139; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, paras. 167, 230; Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, paras. 115–122. See further The Eritrea – Yemen, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), 17 December 1999, paras. 131–132; Barbados/Trinidad and Tobago, Award of the Arbitral Tribunal, 11 April 2006, paras. 242, 306; Guyana/Suriname, Award of the Arbitral Tribunal, 17 September 2007, paras. 342, 335. 32   Becker-Weinberg, supra note 4. 33  Bahrain-Saudi Arabia Frontier Agreement, done on 22 February 1958 and entered into force on 26 February 1958, published at 1733 U.N.T.S. 3. 34  On the internationalization of marine natural resources, see Vasco Becker-Weinberg, “The internationalization of marine natural resources in UNCLOS”, in Rainer Lagoni, Peter Ehlers and Marian Paschke (eds), Recent Developments in the Law of the Sea (LIT Verlag: Berlin, Munster, Vienna, Zurich, London, 2010), 9–54.

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applied to the management of fisheries35 and subsequently to the development of onshore mineral resources.36 International courts and tribunals have also recognized that maritime disputes should not be an obstacle to the development of economic activities. In 2007, the Arbitral Tribunal in Guyana/Suriname underlined that the obligation contained in article 83(3) of LOSC “constitutes an implicit acknowledgment of the importance of avoiding the suspension of economic development in a disputed maritime area, as long as such activities do not affect the reaching of a final agreement.”37 The complexities represented by transboundary resources and the advantages of joint development agreements in these cases were acknowledged in the landmark North Sea Continental Shelf cases. Although the International Court of Justice (ICJ) considered that it would be within States’ powers to determine how to proceed in the event of transboundary resources, it did mention the possibility of joint jurisdiction for all or part of the overlapping maritime areas.38 Judge Jessup further stated in his Separate Opinion that the reference made to the cooperative development of offshore hydrocarbon deposits constituted an attempt to contribute towards a better understanding of the principles of equity.39 Likewise, the recommendations made by Judge Evensen in his dissenting opinion in the Case Concerning the Continental Shelf between Tunisia and 35  K  enneth P. Beauchamp, “The management function of ocean boundaries”, (1986) 23(3) San Diego Law Review Association, 644–647. Also see Austin Williams, “The Pacific Salmon Treaty: a historical analysis and prescription for the future”, (2007) 22 Journal of Environmental Law and Litigation, 153–195; Kaare Bangert, “The effective enforcement of high seas fishing regimes: the case of the Convention for the Regulation of the Policing of the North Sea Fisheries of 6 May 1882”, in Guy S. Goodwin-Gill and Stefan Talmon (eds), The Reality of International Law. Essays in Honour of Ian Brownlie (Clarendon Press: Oxford, 1999), 1–20; Rüdiger Wolfrum, “Die Fischerei auf Hoher See”, (1978) 38 Zeitschrift für Ausländisches Offentliches Recht und Völkerrecht, 659–709. 36  Agreement between the Government of the Czechoslovak Republic and the Austrian Federal Government concerning the Principles of Geological Co-operation between the Czechoslovak Republic and the Republic of Austria, done at Prague on 23 January 1960, published at 495 U.N.T.S. 7241 (1964), 112–122; and Agreement between the Government of the Czechoslovak Republic and the Austrian Federal Government concerning the Working of Common Deposits of Natural Gas and Petroleum, done at Prague on 23 January 1960, published at 495 U.N.T.S. 7242 (1964), 134–140. 37  Guyana/Suriname, para. 460. 38  North Sea Continental Shelf cases, paras. 94, 97, 99, 101(C)(2), (D)(2). 39  Separate Opinion of Judge Jessup, paras. 78, 83, North Sea Continental Shelf cases. Also see Dissenting Opinion of Vice-President Weeramantry, paras. 108–113, Kasikilil Sedudu Island (Botswana/Namibia) Judgment, I.C.J. Reports 1999, 1045.

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Libya had the same intent and reportedly did contribute towards the implementation of a joint development regime between both countries.40 Judge Evensen essentially considered that cooperative regimes, such as joint development agreements, could be a corollary of other equity considerations that had already been referred to by the ICJ in the North Sea Continental Shelf cases.41 The Arbitral Tribunal in Eritrea/Yemen also considered that these countries should give every consideration to cooperative exploitation of resources that straddle maritime boundaries, particularly in light of improving relations between both countries and the existence of State practice.42 In fact, in Guyana/Suriname, the Arbitral Tribunal went as far as acknowledging that joint development agreements have been “particularly encouraged by international courts and tribunals”, although it did not elaborate on the grounds for such a solution being legally required under international law.43 In Bangladesh/Myanmar, ITLOS noted that it was not “unusual” for States to enter into agreements to address the “complex legal and practical problems” resulting from the delimitation of maritime boundaries, such as those involving transboundary resources. ITLOS specifically referred to an area that was beyond 200 M from the coast of Bangladesh but within 200 M from the coast of Myanmar (“grey zone”44), thus accepting the possibility of such agreements taking place in areas of overlapping claims beyond 200 M, on the outer continental shelf.45 Also in the Bay of Bengal Arbitration, the Arbitral Tribunal found that “[t]he establishment of a maritime area in which States concerned have shared rights is not unknown under the Convention”, and that “[i]t is for the [States] to determine the measures they consider appropriate in this respect, including

40  A  greement between the Great Libyan Arab Socialist People’s Jamahariya and the Republic of Tunisia to Implement the Judgment of the International Court of Justice in the Tunisia/ Libya Continental Shelf Case, done at Benghazi on 8 August 1988, reproduced in Jonathan. I. Charney and Lewis M. Alexander (eds), International Maritime Boundaries, Volume 2 (Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1993), 1679–1680. 41  Dissenting Opinion of Judge Evensen, 320–321, Continental Shelf (Tunisia/Libya), Continental Shelf case (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982. 42  Eritrea/Yemen, paras. 84–86. 43  Guyana/Suriname, paras. 462–463. 44  On the “grey zones” see Oystein Jensen, “The delimitation of the continental shelf beyond 200 nm: substantive issues”, in Alex G. Oude Elferink, Tore Henriksen and Signe Veierud Busch (eds), Maritime Boundary Delimitation: The Case Law. Is it Consistent and Predictable? (Cambridge University Press: Cambridge, 2018), 351–375, at 364–366, 372–373. 45  Bangladesh/Myanmar, para. 472.

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through the conclusion of further agreements or the creation of a cooperative arrangement.” In this case the Tribunal also identified an area as a “grey zone.”46 Therefore, both State practice and international jurisprudence have considered the implementation of provisional measures a valuable option in situations of overlapping entitlements, including in continental shelf areas beyond 200 M. 4

The Obligation to Make Every Effort and Not to Jeopardize or Hamper

The lack of an obligation to enter into maritime delimitation agreements or provisional arrangements, and the fact that LOSC does not include rules concerning the exercise of States’ rights in disputed maritime areas, does not mean that States are not bound to certain obligations in disputed maritime areas, including beyond 200 M. These obligations include the aforementioned obligations to cooperate and negotiate in good faith the peaceful settlement of disputes, to exercise selfrestraint and to refrain from the use or threat of the use of force, as well as to clarify claims and their consistency with LOSC, to identify the disputed maritime area and to protect and preserve the marine environment. States must also inform neighbouring States of the existence and the known location of common resources.47 In Guyana/Suriname, the Arbitral Tribunal considered that the duty to negotiate in good faith required States to have “a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement”, particularly in view of the fact that such provisional arrangements are by definition temporary and without prejudice to final delimitation.48 The Arbitral Tribunal concluded that both countries had violated their obligation to make every effort to enter into provisional arrangements and consequently jeopardized a final delimitation agreement. Specifically, the Arbitral Tribunal found that Guyana had not informed Suriname of the intention to explore the resources of the disputed maritime area and failed to provide official detailed notice of the planned activities, as well as not having engaged Suriname earlier on in discussions concerning 46  B  ay of Bengal Maritime Boundary Arbitration between Bangladesh and India (Bangladesh v. India), P.C.A. Award 7 July 2014, paras. 507–508. 47   Becker-Weinberg, supra note 2, 65, 72. 48  Guyana/Suriname, para. 461.

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drilling activities. In what concerns Suriname, the Arbitral Tribunal considered that it had not engaged in dialogue with Guyana in a spirit of understanding and cooperation as required by LOSC, resorting instead to a threatening conduct towards the latter.49 The Arbitral Tribunal also concluded that within such efforts to enter into provisional arrangements, Guyana should have further attempted to seek the cooperation of Suriname regarding the undertaking of activities. Accordingly, Guyana should have offered to share the results of the exploration and given Suriname the opportunity to observe these activities, as well as to share the financial benefits gained.50 The Arbitral Tribunal also considered that only acts that do not cause a physical change to the marine environment, such as seismic surveys, would generally be regarded as acts that, although unilateral, would not have the effect of jeopardizing or hampering a final agreement on maritime delimitation.51 More recently, there has been one important development in international jurisprudence regarding the rules of law in disputed maritime areas, both within and beyond 200 M. In the Order issued by the Special Chamber of ITLOS following the request by Côte d’Ivoire that the Special Chamber prescribe provisional measures to suspend all ongoing oil exploration and exploitation operations conducted by Ghana in the disputed area and to order Ghana to refrain from granting any new permit for oil exploration and exploitation there, the Special Chamber found that “the acquisition and use of information about the resources of the disputed area would create a risk of irreversible prejudice to the rights of Côte d’Ivoire should the Special Chamber, in its decision on the merits, find that Côte d’Ivoire has rights in all or any part of the disputed area;” and that “the exploration and exploitation activities, as planned by Ghana, may cause irreparable prejudice to the sovereign and exclusive rights invoked by Côte d’Ivoire in the continental shelf and superjacent waters of the disputed area, before a decision on the merits is given by the Special Chamber, and that the risk of such prejudice is imminent.”52 The Special Chamber also found that “the suspension of ongoing activities conducted by Ghana in respect of which drilling has already taken place would entail the risk of considerable financial loss to Ghana and its concessionaires 49  50  51  52 

I d., paras. 471–486, 488. Id., para. 477. Id, paras. 466–467, 480–481. Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Request for the prescription of provisional measures, Case n. 23, 25 April 2015, paras. 95–96.

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and could also pose a serious danger to the marine environment resulting, in particular, from the deterioration of equipment.”53 The Special Chamber further considered that “an order suspending all exploration or exploitation activities conducted by or on behalf of Ghana in the disputed area, including activities in respect of which drilling has already taken place, would therefore cause prejudice to the rights claimed by Ghana and create an undue burden on it.”54 In balancing the different interests at hand, on the one hand, the safeguarding of the rights of Côte d’Ivoire, and on the other hand, the protection and preservation of the marine environment, the Special Chamber ordered Ghana to refrain from making new drilling in the disputed maritime area, instead of suspending all on-going exploration and exploitation activities as Côte d’Ivoire had requested.55 The Special Chamber also ordered Ghana to take all necessary measures to prevent information on such activities to be used in any manner to the detriment of Côte d’Ivoire, as well as to monitor said activities to prevent serious harm to the marine environment. It furthermore ordered that both States should pursue cooperation and refrain from unilateral action that could aggravate the dispute. However, it should be noted that this Order is, to a certain extent, a deviation from previous decisions, namely Guyana/Suriname, i.e., that drilling by one State in a disputed maritime area may be accepted pending the settlement of the dispute, in this case, based on economic and environmental considerations. This distinction in the context of provisional measures was perhaps due to the fact that it was not a decision on the merits of the case and that, until the request for the prescription of provisional measures, there had been a practice based on the good faith of both States regarding exploration and exploitation activities, which, if it had not been duly considered, could have a considerable financial impact for operators. However, in its Judgement of the case, besides rightfully not considering the location of hydrocarbon resources a relevant circumstance for the purpose of adjusting the provisional equidistance line,56 and finding that the “oil practice” of the two States did not constitute a conduct of the parties accepted as a relevant circumstance,57 the Special Chamber did reiterate the same 53  54  55  56  57 

I d., para. 98. Id., para. 100. Id., para. 102. Ghana/Côte d’Ivoire, Judgment, para. 455. Id., para. 479.

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understanding as expressed in the Order for provisional measures. Indeed, although it did recognize that Ghana should have been aware that, when it was carrying out hydrocarbon activities, it was doing so in an area also claimed by Côte d’Ivoire, when determining if these activities “may give rise to international responsibility when … carried out in a part of the area attributed by the judgment to the other State”,58 the Special Chamber considered that such activities did not violate the sovereign rights of Côte d’Ivoire, “even assuming that some of those activities took place in areas attributed to Côte d’Ivoire by the present Judgment.”59 The Special Chamber went on to consider the possible violations by Ghana of the obligations under article 83(3) of LOSC, concluding that no violation had taken place, on the basis that Côte d’Ivoire did not request Ghana to enter into provisional arrangements.60 Indeed, the Special Chamber found that the “hydrocarbon activities of Ghana in the disputed maritime area, after realizing that that area was also claimed by Côte d’Ivoire”, did not jeopardize or hamper the reaching of a final agreement,61 although it noted “the fact that Ghana finally suspended its activities by implementing its obligations in accordance with the Order of the Special Chamber of 25 April 2015 namely, inter alia, to ensure that no new drilling either by Ghana or under its control would take place in the disputed area. It would, however, have been preferable if Ghana had adhered to the request of Côte d’Ivoire earlier to suspend its hydrocarbon activities in that area.”62 The most intriguing conclusion of the Special Chamber is found in paragraph 633 of the Judgment: 58  I d., paras. 588–589. 59  Id., para. 594. 60  Id., paras. 628, 634: “As far as the case before it is concerned, the Special Chamber notes that Côte d’Ivoire did not request Ghana to enter into provisional arrangements. Côte d’Ivoire only requested Ghana to refrain from continuing its hydrocarbon activities. As has already been stated above (para. 605), the Special Chamber held that Côte d’Ivoire did not substantiate its claim that Ghana did not act in good faith. In the view of the Special Chamber, it would have been for Côte d’Ivoire to propose the establishment of “provisional arrangements of a practical nature” and thus to trigger the requisite negotiations. This was all the more necessary since Ghana’s hydrocarbon activities had continued over several years. Although the Special Chamber holds that this practice was not acquiesced to by Côte d’Ivoire, it is nevertheless a fact to be taken into account when assessing the relationship between the two Parties. Not having requested Ghana to enter into negotiations on provisional arrangements of a practical nature bars Côte d’Ivoire from claiming that Ghana has violated its obligations to negotiate on such arrangements.” 61  Id., para. 631. 62  Id., para. 632.

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Finally, the Special Chamber takes into account that Ghana has undertaken hydrocarbon activities only in an area attributed to it. This is particularly relevant in this case in the light of paragraph 2 (iii) of the final submissions of Côte d’Ivoire which reads: “to declare and adjudge that the activities undertaken unilaterally by Ghana in the Ivorian maritime area constitute a violation of … the obligation not to jeopardize or hamper the conclusion of an agreement, as provided for by article 83, paragraph 3, of UNCLOS”. Hence the activities of Ghana do not meet the qualification of the relevant submission of Côte d’Ivoire since they did not take place in the Ivorian maritime area. It is therefore impossible to state that Ghana has undertaken activities which have jeopardized or hampered the conclusion of an agreement as envisaged by article 83, paragraph 3, of the Convention. This position of the Special Chamber may raise questions regarding legal certainty and predictability of the obligations of coastal States in disputed maritime areas, namely those of restraint and not to jeopardize or hamper.63 The Separate Opinion of Judge Paik in this case seems to support a similar concern.64 Moreover, the lenient interpretation of the obligation not to jeopardize or hamper may result in coastal States not fully undertaking the obligation to make every effort to enter into provisional arrangements of a practical

63   Becker-Weinberg, supra note 2, 99–102. 64  Separate Opinion of Judge Paik [online: https://www.itlos.org/fileadmin/itlos/documents/ cases/case_no.23_merits/C23_Judgment_23.09.2017_SepOp_Paik_orig.pdf (accessed in November 2018)]: “The present dispute provided the Special Chamber with an opportunity to clarify the meaning of this obligation. In light of its weight as fundamental norm as well as its practical utility, the question as to how the obligation not to jeopardize or hamper should be interpreted and applied deserved scrutiny, but the Special Chamber’s response fell short in this respect.” (at para. 3); “While activities that cause a permanent physical change to the marine environment would likely prejudice the reaching of the final agreement, as the Annex VII Arbitral Tribunal suggested in Guyana v. Suriname …, less invasive activities carried out unilaterally could also be the source of serious tension between States, thus jeopardizing the prospects of agreement. A permanent physical change to the marine environment thus may be considered one of several relevant factors but should not be applied as a hard and fast threshold of jeopardizing or hampering the reaching of the final agreement.” (at para. 7); “Therefore this obligation is breached as long as a State fails to exercise the required caution and restraint pending agreement, regardless of to which State the disputed area is allocated. To exonerate acts that could jeopardize or hamper the reaching of the final agreement for the reason that the area is ultimately attributed to a State undertaking such acts would significantly diminish the value of this obligation.” (at para. 17).

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nature, purposefully included in connection with the latter in paragraph 3 of articles 74 and 83 of LOSC. 5

Outer Continental Shelf and the Area (Horizontal Interaction)

LOSC states that the exploration and exploitation of the resources of the Area shall be carried out “to foster healthy development of the world economy and balanced growth of international trade, and to promote international cooperation for the over-all development of all countries, especially developing States.”65 The Area regime further provides that resources shall be orderly, safely and rationally managed in accordance with sound principles of conservation and the avoidance of unnecessary waste, and to ensure supply to consumers, the promotion of just and stable prices and of long-term equilibrium between supply and demand, and the conditions of access to markets for the imports of minerals produced from the resources of the Area and for imports of commodities produced from such minerals.66 LOSC establishes that there should be reasonable and reciprocal regard between the activities in the Area and other activities in the marine environment.67 Article 142 of LOSC provides that the development of deposits found in the Area, which straddle the limits of national jurisdiction, shall be conducted with due regard for the rights and legitimate interests of the relevant coastal States and that consultations shall be maintained in order to avoid trespassing on such rights and interests. In such cases, LOSC provides that the prior consent of the coastal State shall be required. Although article 142(1) of LOSC does not expressly refer to the obligation of mutual restraint regarding “resource deposits in the Area which lie across limits of national jurisdiction”, it would seem that this obligation would be implied in the duty of due regard in order to avoid causing damage to the relevant coastal State, seeing that the duty of due regard for the rights and interests of third States is connected with States’ obligation to prevent and not to cause harm. In the event that either the coastal State or the International Seabed Authority (ISA) would cause damage, the relevant rules on liability would be applicable.68 In this respect, the ITLOS Seabed Disputes Chamber considered 65  66  67  68 

Article 150 of LOSC. Article 150(b), (e), (f) and (j) of LOSC and article 13(1) of Annex III to LOSC. Article 147(1) and (3) of LOSC. Article 187 (b) of LOSC.

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that carrying out an environmental impact assessment is a “direct obligation” under LOSC and a general obligation under customary international law and, consequently, “should be included in the system of consultations and prior notifications set out in article 142.”69 As a result, coastal States and the ISA must exchange information regarding mineral resources that may be found to straddle the demarcation line between the continental shelf (including beyond 200 M) and the Area, as well as adopt restraint regarding any action that may potentially cause harm to their legitimate interests. The recognition of a duty of information and an obligation of due regard does not imply, however, that an obligation for coastal States and the ISA to cooperate in sharing these resources exists. Mineral resources that are partially located in the Area are also included in the concept of the common heritage of mankind70 and therefore should too be appropriately developed for the benefit of mankind.71 In this respect and as rightly noted, the reference to this concept should be considered as an “underlying philosophy”, seeing that it “does not give indications concerning the formal or substantive contents of a legal regime in a general sense.”72 The terms and conditions applicable to the development of these resources must be, as a result, determined between the ISA and the relevant coastal State. Furthermore, States Parties to LOSC are subject to the regime pursuant to article 82 of the Convention, which requires that coastal States make “payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.” This provision is the outcome of a compromise reached between, on the one hand, the coastal States entitled to a large continental shelf and, on the other hand, those States that intended to draw the limit at 200 M, thus avoiding a reduction of the Area. The solution found during the negotiation of the Convention consisted of coastal States being able to claim a continental shelf beyond 200 M in accordance with article 76 of LOSC subject, however, to making payments to the 69  I TLOS, Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, Advisory Opinion (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), 1 February 2011, Case n. 17, paras. 145, 148. 70  Article 136 of LOSC. 71  Article 140 of LOSC. 72  Nele Matz-Lück, “The concept of the common heritage of mankind: its viability as a management tool for deep-sea genetic resources”, in Alex G. Oude Elferink and Erik J. Molenaar (eds), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Martinus Nijhoff Publishers: Leiden, Boston, 2010), 61–75, at 65. Matz-Lück concludes that “[i]t is a matter of methodology whether the common heritage concept is a legal principle from which one can deduct the necessary legal consequences or whether it is an idea that is reflected in different treaty provisions.” (at 66).

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“international community” through the ISA. A comprehensive analysis of article 82 of LOSC has identified many of the difficulties regarding the fulfilment of this provision’s requirements, particularly as a result of the ample degree of discretion given to States. Such difficulties include the assessment of the amounts to be paid, the value of contributions in kind, the calculation and the execution of the payments or contributions, the precise role of the ISA and how it is to be performed, particularly in light of the “equitable sharing criteria” and its development by the Assembly pursuant to articles 160(2)(f)(i) and 162(2)(o)(i) of LOSC, and also the applicable mechanism for the settlement of disputes concerning article 82.73 Although article 82 of LOSC does not make any reference to disputed maritime areas, in the absence of a clear understanding between the relevant States, it may be difficult to ensure compatibility between the regime included in article 82 and the rules on sharing of revenues defined in a joint development agreement. This notwithstanding, coastal States must comply with their obligations on revenue sharing pursuant to article 82, also when implementing a joint development agreement on the continental shelf beyond 200 M. This obligation to make payments or contributions in kind is of the coastal States, even in those cases where joint development agreements create joint entities for the purpose of managing the joint development area and the seabed activities. Since in disputed maritime areas there are, at least, two coastal States, in the case of joint development agreements, this obligation would have to be considered as being extended to both. Yet, this would necessarily lead to the issue of the responsibility of each State vis-à-vis the ISA for the fulfilment of article 82 of LOSC and the amount that each State should pay or contribute in kind. For example, in the case of the joint development agreement between Mauritius and the Seychelles, are the States responsible before the ISA for only the respective share of the resources pursuant to the terms of the agreement, i.e. 50:50? What would be the consequence if one State does not fulfil its responsibility or if it falls within the category of “developing country which is a net importer of a mineral resource produced from its continental shelf” and, consequently, is exempt from making such payments or contributions?74 73  On article 82 of LOSC, see Aldo Chircop, “Article 82”, in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Verlag: Munich, 2017), 641– 651. See also International Law Association, Third Report of the International Committee on Legal Issues of the Outer Continental Shelf to the Biennial International Law Association Conference in Rio de Janeiro, Brazil, 17–21 August 2008, by David M. Ong (Seventy-Third Conference: Rio de Janeiro, 2008). 74  Article 82(3) of LOSC.

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Moreover, considering that a joint development agreement may provide that only one of the States undertakes or manages the seabed activities, but still sharing the respective revenues with the other State, what would be the role of the latter under article 82 of LOSC? Lastly, also concerning horizontal interaction of legal regimes, it should be noted that there is one striking difference between the rights of coastal States over the continental shelf within and beyond 200 M regarding marine scientific research (MSR). Whereas paragraphs 1 and 2 of article 246 of LOSC require the coastal State’s consent for MSR on the continental shelf within 200 M, paragraph 6 of the same article determines that “coastal States may not exercise their discretion to withhold consent …, in respect of marine scientific research projects … on the continental shelf, beyond 200 nautical miles … outside those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein.” As such, similar to the safeguard of the other rights and freedoms of third States, the right to conduct MSR on the outer continental shelf should be duly considered in any joint development agreement applicable to continental shelf areas beyond 200 M.75 6

Outer Continental Shelf and the High Seas (Vertical Interaction)

States’ rights on the high seas have a relative character. Indeed, the ICJ in the Fisheries Jurisdiction case noted that the concept of reasonable regard implied that the rights of coastal States were not absolute and that, consequently, the different interests of States on the high seas should be reconciled.76 With respect to the outer continental shelf, there are two main concerns regarding the interaction with the high seas. Firstly, the substantive integration of the two legal regimes and the balance between coastal States’ rights over the outer continental shelf and those of all States on the high seas. In this regard, the possible implications of the new implementing agreement under LOSC 75  On issues arising from article 246(6) of LOSC, see Joanna Mossop, The Continental Shelf Beyond 200 Nautical Miles: Rights and Responsibilities (Oxford University Press: Oxford, 2017), 164–170. 76  Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, paras. 52, 55, 57–60, 66, 68–70.

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on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ) must also be considered. Secondly, the possibility of and limits imposed on law enforcement actions and the use of force on the high seas by coastal States for the purpose of protecting their rights on the outer continental shelf.77 Regarding the substantive integration between the continental shelf and high seas regimes, article 78 of LOSC clearly stipulates that “[t]he rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters”, and that “[t]he exercise of the rights of the coastal State over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention.” The aforementioned rights of coastal States are related to the exploration of the continental shelf and exploitation of its non-living resources and sedentary species,78 the right to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures,79 and the right to authorize and regulate drilling.80 On the other hand, on the high seas, all States enjoy the freedom of navigation, of overflight, to lay submarine cables and pipelines, to construct artificial islands and other installations, of fishing and of scientific research.81 In this regard, the Convention further states that the aforementioned freedoms shall be exercised “with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.” There is, however, no reference to activities on the outer continental shelf. The obligation of due regard in LOSC is the reflection of the balance achieved with respect to the rights and freedoms of States, which is intrinsically connected with the organization of the different maritime areas, both within and beyond national jurisdiction. Accordingly, States must exercise their rights while having due regard for the rights and freedoms of other States and in a manner that does not constitute an abuse of right.82 With respect to the EEZ, LOSC includes several provisions that safeguard the rights and duties of third States. Article 56(2) provides that States, in exercising their rights and performing their duties in the EEZ, “shall have due regard 77  Mossop, supra note 75, 173–202. 78  Article 77(1) and (4) of LOSC. 79  Article 60 ex vi article 80 of LOSC. 80  Article 81 of LOSC. 81  Article 87(1) of LOSC. 82  Article 300 of LOSC.

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to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.” Article 58(1) provides that all States enjoy in the EEZ the freedoms of navigation, overflight and of laying submarine cables and pipelines.83 In paragraph 3 of this article, the Convention also specifies that States shall have due regard for the rights and obligations of the coastal State and shall comply with its laws and regulations in the EEZ. Concerning the meaning of “due regard”, the Arbitral Tribunal in the Chagos Marine Protected Area Arbitration was of the view that it “calls for the United Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances and by the nature of those rights.” The Arbitral Tribunal refused to recognize “any universal rule of conduct.”84 Therefore, the content and extent of the due regard obligation must be considered in light of the circumstances of each case when different uses are in conflict. This is the ratio included in article 59 of LOSC that is applicable to situations where the Convention does not determine the rights and jurisdiction of coastal States and other States in the EEZ. Also in the Chagos Marine Protected Area Arbitration, the Arbitral Tribunal considered the obligation set out in article 194(4) of LOSC, requiring States to refrain from “unjustifiable interference”, to be “functionally equivalent” to the above said obligation of “due regard” in article 56(2) of the Convention.85 In the case of the interaction between the legal regime applicable to the outer continental shelf and the new international legally binding instrument under LOSC on the conservation and sustainable use of BBNJ, a few tentative observations can be forwarded. Firstly, a holistic and integrated approach is necessary to avoid piecemeal governance and to effectively address the conservation and sustainable use and effectively protect and preserve BBNJ and avoid further degradation of the marine environment. Consequently, States must share common objectives and standards on the basis of which a coherent decision-making process can take place. It is also necessary to implement coordination and cooperation arrangements at regional and global levels between States and between organizations, as well as between the former and the latter. In this regard, it should be noted that there is an intricate reality of international organizations that have a role in high seas governance at regional and multilateral levels, but with significant areas of overlap and few coordination mechanisms in place between them. 83  A  rticles 55, 56(2) and 87 of LOSC. 84  C  hagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Arbitral Award of 18 March 2015, P.C.A., para. 519. 85  Chagos Marine Protected Area Arbitration, para. 540.

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A second observation is that consensus is lacking on the relationship between BBNJ with regard to the seabed and the water column, as well as regarding which relevant legal principle it should be subject to: common heritage of mankind or freedom of the high seas. As a result, with many coastal States pursuing the delineation of their outer continental shelf beyond 200 M, it is necessary to avoid conflicts between usages and activities. In this regard, together with area based management tools, such as marine spatial planning (MSP) and marine protected areas (MPAs), regional and global cooperation is essential.86 However, the question remains as to the protection of the rights of coastal Sates over the outer continental shelf. A paradigmatic case is that of bottom trawling undertaken under the freedom of the high seas, subject to the jurisdiction of the flag State. For example, following the adoption of legislation on MSP,87 Portugal banned bottom trawling in its national maritime space as a conservationist measure, including on its outer continental shelf while still pending the recommendations of the CLCS. Yet, it could only do so regarding ships flying its flag.88 The possibility of establishing MPAs on the high seas has also been the subject of discussion for several years and is central to the BBNJ debate.89 There is no single universally recognized notion of MPAs and related concepts 86  Vasco Becker-Weinberg, “Preliminary thoughts on marine spatial planning in areas beyond national jurisdiction”, (2017) 32 The International Journal of Marine and Coastal Law, 570–588, at 586, 588. 87  Vasco Becker-Weinberg, “Portugal’s legal regime on marine spatial planning and management of the national maritime space”, (2015) 61 Marine Policy, 46–53. For a more detailed analysis of Portugal’s MSP legal regime, see Vasco Becker-Weinberg, Ordenamento e Gestão do Espaço Marítimo Nacional: Enquadramento e Legislação (Quid Juris: Lisbon, 2016), 11–55. 88   Becker-Weinberg, supra note 86, 587; Mossop, supra note 75, 203–215. 89   Becker-Weinberg, supra note 86, 577. See International Maritime Organization, Report of the Legal Committee on the Work of its Eighty-Seventh Session, 23 October 2003, paras. 194–203 (LEG 87/WP.3); UNGA, Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction, 20 March 2006, paras. 22–31 (A/61/65); OSPAR, The North-East Atlantic Environment Strategy, Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020, (OSPAR Agreement 2010–3); CBD, Meeting of the Conference of the Parties, Decisions X/29, VII/5, and IX/20, Report of the Expert Workshop on Scientific and Technical Guidance on the use of Biogeographic Classification Systems and Identification of Marine Areas Beyond National Jurisdiction in Need of Protection, 11 January 2010 (UNEP/CBD/SBSTTA/14/INF/4), and Report of the Expert Workshop on Scientific and Technical Aspects Relevant to Environmental Impact Assessment in Marine Areas Beyond National Jurisdiction, 8 March 2010, (UNEP/ CBD/SBSTTA/14/INF/5); UNEP, High Seas MPAs: Regional Approaches and Experiences

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have different definitions.90 The issue of MPAs on the high seas is even more complex when considering the possibility of MPAs being located both within and beyond national jurisdiction, thus requiring coordinated management and clarification of the roles of coastal States and organizations. In the current legal framework and under the principle of the freedom of the high seas, there is no possibility of imposing MPAs on the high seas on all States. Inspiration could perhaps be taken from regional efforts, such as that under the Convention for the Protection of the Marine Environment of the North-East Atlantic,91 or also at the global level from the International Maritime Organization.92 Therefore, it is possible to consider situations of conflict between the rights of coastal States on the outer continental shelf and the exercise by other States of the freedoms of the high seas. These could be with respect to MPAs [Side Event], 12th Global Meeting of the Regional Seas Conventions and Action Plans, Bergen, Norway, 20–22 September 2012, ref. UNEP (DEPI)/RS.12/INF.6.RS. 90  Article 2 of the Convention on Biological Diversity, done in Rio de Janeiro on 5 June 1992 and entered into force on 29 December 1993, 1760 U.N.T.S. 79, defines “protected area” as a “geographically defined area, which is designated or regulated to achieve specific conservation objectives”; Decision VII/5 considers “marine and coastal protected area” “an area within or adjacent to the marine environment, together with overlying water and associated flora, fauna, and historical and cultural features, which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal biodiversity enjoys a higher level of protection than its surrounding”. The International Union for Conservation of Nature defines a marine protected area as “a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values”, available at https://www.iucn.org/theme/ protected-areas/about, accessed in May 2017. Also see International Convention for the Prevention of Pollution from Ships (London, 2 November 1973), modified by the Protocol of 1978 (in force 2 October 1978) 1340 U.N.T.S. 184 [MARPOL 73/78], cfr. Annexes I, II, IV, V and VI. 91  Convention for the Protection of the Marine Environment of the North-East Atlantic, done in Paris on 22 September 1992 and entered into force on 25 March 1998, published in 32 I.L.M. 1069; OSPAR Recommendation 2003/3 on a Network of Marine Protected Areas, as amended by OSPAR Recommendation 2010/2. 92  I MO Resolution A. 720(17), Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, 6 November 1991, consolidated and revised by IMO Resolution A. 982(24); Revised Guidelines for the identification and designation of Particularly Sensitive Sea Areas, 1 December 2005; and IMO Resolution A. 927(22), Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 29 November 2001. See also IMO Resolution A. 885(21), Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures and Amendments to the Guidelines contained in Resolution A. 720 (17), 25 November 1999.

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on the high seas and the exploration and exploitation of mineral resources by coastal States on the outer continental shelf and, consequently, the operation of installations and structures on the high seas and the enforcement of security zones around them. In this regard, an interesting aspect of the joint development agreement between Mauritius and the Seychelles is the reference to biological surveys and bioprospecting, whereby each State has the right to carry out biological surveys93 and to engage in bioprospecting94 for the purpose of identifying and examining living natural resources that may be of value for commercial development in the joint management area or of conservation significance. It also establishes the obligation to notify of any proposed survey, as well as to cooperate in the conduct of such biological surveys and bioprospecting, including the provision of necessary on-shore facilities. It further includes an obligation to exchange information relevant to biological surveys and bioprospecting in the joint management area.95 Yet, the question has to be raised regarding the harmonization of the possibility of biological surveys and bioprospecting under this joint development agreement, and the measures adopted under the new implementing agreement on the conservation and sustainable use of BBNJ. Finally, with respect to law enforcement, the high seas regime of LOSC also allows a State to pursue a foreign ship suspected of having violated its laws and regulations.96 The use of force against foreign vessels is subject to the general criteria of necessity and reasonableness: if there are no other practicable 93  Article 13 reads: “a) Each of the Contracting Parties has the right to carry out biological surveys for the purposes of Article 12 of this Treaty and to engage in bioprospecting to identify and examine living natural resources that may be of value for commercial development in the JMA or of conservation significance.” Article 12 reads: “a) The Contracting Parties shall co-operate to protect natural resources in the JMA so as to secure seabed biodiversity and prevent pollution and other risks of harm to the environment arising from, or connected with, natural resource activities in the JMA. b) The Contracting Parties shall apply the precautionary principle in co-operating to conserve and protect the environment and biodiversity of the seabed in the JMA. This shall include measures concerning fishing activities in the waters superjacent to the seabed in the JMA where such activity is having a direct impact upon, or poses a significant risk to, the natural resources of the seabed and subsoil in the JMA. c) The Contracting Parties shall co-operate to protect seabed marine habitats and associated ecological communities of the seabed in the JMA. This shall include the identification of environmental benchmarks and the identification of seabed marine protected areas….” 94  Article 1(b) defines “bioprospecting” as “the examination of biological resources for features including but not limited to chemical compounds, genes and their products and physical properties that may be of value for commercial development.” 95  Article 13(b)(iii). 96  Article 111(1) of LOSC.

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means to board, search, seize, and bring into port the suspected ship, the State may be entitled to use reasonable and necessary force.97 In the Artic Sunrise Arbitration, the Arbitral Tribunal found that “the protection of a coastal State’s sovereign rights is a legitimate aim that allows it to take appropriate measures for that purpose. Such measures must fulfil the tests of reasonableness, necessity, and proportionality.”98 It expressly stated, in connection with said article 78, that “[i]f the boarding and seizing of the Arctic Sunrise were conducted in the exercise of Russia’s rights over the continental shelf, they would not have been in compliance with the Convention, because they would have infringed and unjustifiably interfered with the navigation and other rights and freedoms of the Netherlands.”99 Furthermore, in Guyana/Suriname, although Suriname maintained that the adopted law enforcement measures were reasonable and proportionate to prevent unauthorized drilling in a disputed area of the continental shelf and that “it was quite normal” for coastal States to do so,100 the Arbitral Tribunal considered that the said measures “seemed more akin to a threat of military action rather than a mere law enforcement activity” and that they, consequently, “constituted a threat of the use of force in contravention of the Convention, the UN Charter and general international law.” It stated that under international law, force may be used in law enforcement activities, provided that such force is unavoidable, reasonable and necessary.101 However, this standing of the Arbitral Tribunal has attracted criticism because of its failure to identify the legal basis for this conclusion clearly.102 It remains, nonetheless, that the assessment of the necessity and reasonableness of the use of force by a State will depend on the circumstances of 97  I TLOS, The M/V “Saiga” (No 2) (Saint Vincent and the Grenadines v. Guinea), 1 July 1999, para. 155. 98  The Artic Sunrise Arbitration (Netherlands v. Russia), Award on Merits, 14 August 2015, P.C.A., para. 326. 99  Id., para. 331. 100  Guyana/Suriname, para. 441. 101  Id., para. 445. 102  Tullio Treves, “Piracy, Law of the Sea, and Use of Force: Developments off the Coast of Somalia”, (2009) 20 European Journal of International Law, 399–414, at 414: “The Tribunal does not specify whether this conclusion is based on the characteristics of the threatened use of force (possible involvement of military means?) or on the fact that the use of force was illicit because it had taken place in an area the Award had determined to belong to Guyana and where consequently Suriname had no enforcement rights, and that it would have been considered a legal enforcement activity had the area been found to belong to Suriname. The latter seems to be the most reasonable explanation, but, admittedly, the Award is not clear on this key point.”

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each case, taking into account the alleged offence and conduct that lead to the use of force. A State will be liable for any use of unjustified force.103 7

Conclusions

There is no consistent State practice regarding joint development on the continental shelf within and beyond 200 M, before or after the delimitation of maritime boundaries, or the delineation of the outer limits. Nonetheless, joint development in continental shelf areas beyond 200 M constitutes an important evolution in international law and in State practice regarding the consideration of possible areas for joint development and the applicable legal principles and obligations. Although there are still many intricate aspects of legal interaction that must be addressed in order to fully understand the extent and limits of possible coastal States’ interference with activities by other States on the high seas, such matters should be irrespective of coastal States’ obligations in disputed maritime areas beyond 200 M, pursuant to article 83(3) of LOSC. 103  Article 111(8) of LOSC. See also article 304 of LOSC and articles 21(18), 22(1)(f) and 35 of the 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, done in New York on 4 December 1995 and entered into force on 11 December 2001, 2167 UNTS 3.

Chapter 11

More Disputes ahead for the CLCS? CLCS Practice on Rule 46 of Its Rules of Procedure Signe Veierud Busch 1

Introduction

When a coastal State makes a continental shelf submission to the Commission on the Limits of the Continental Shelf (CLCS or Commission) in accordance with article 76(8) of the LOSC, this triggers a duty for the CLCS to make recommendations to the coastal State on matters related to the establishment of the outer limits of its continental shelf. However, the existence of a dispute in relation to the submission directly affects the Commission’s consideration of the continental shelf submission. Article 76(10) provides that the provisions of article 76 are “without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts”,1 and article 9 of Annex II to the LOSC continues that “[t]he actions of the Commission shall not prejudice matters relating to delimitation of boundaries between States with opposite or adjacent coasts”.2 These provisions are the so-called saving clauses that were agreed upon during the Third United Nations Conference on the Law of the Sea (unclos iii) for the purpose of safeguarding the interests of States other than the coastal State when coastal States establish their outer continental shelf (OcS) limits.3 The CLCS has been criticized for its attempt to further develop and operationalize these saving clauses in its Rules of Procedure (RoP). This Chapter discusses the legal basis for and practical implications of the CLCS’ operationalization of the saving clauses. Is the critique against the CLCS justified? In particular, the Chapter discusses the CLCS’ application of rule 46 of the RoP and raises the question if the current CLCS practice may result in an unfortunate increase in the number of disputes in relation to OCS submissions.

1  Emphasis added. 2  Emphasis added. 3  I LA Berlin Conference on the Legal Issues of the Outer Continental Shelf, Berlin Conference Report 2004, 26.

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(Re)defining the Scope of Disputes Relevant for Delineating the Continental Shelf

2.1 The CLCS and Its Rules of Procedure During the UNCLOS III negotiations concerning the areas subject to national jurisdiction, the negotiating States soon realized that there would be a need for an international organ to organize or manage the process for establishing the outer limits of the continental shelf. The first initiative of a boundary commission came up during the third session of UNCLOS III, in a United States proposal, suggesting that “every delineation pursuant to this Article shall be submitted to the Continental Shelf Boundary Commission for review”.4 The reference to the “Continental Shelf Boundary Commission” was pioneering the existing regime of the continental shelf, and was the initiative that led to the present CLCS, described in article 76(8) of the LOSC. However, the LOSC does not elaborate on the course of the submission procedure or the functions of the CLCS. Therefore, the UN Division for Ocean Affairs and the Law of the Sea (DOALOS) prepared provisional Draft Rules of Procedure, which were applicable until the CLCS considered and adopted its own Rules of Procedure.5 The CLCS considered the Draft RoP for several sessions and adopted the majority of its provisions. In addition to the detailed RoP, the members of the CLCS prepared three annexes to the RoP, addressing certain critical issues, namely confidentiality, disputes and a modus operandi for the Commission. Although not being obligated to either consult with the Meeting of States Parties (SPLOS) or comply with its reactions, the CLCS presented its revised RoP to the SPLOS for consideration and comments before adoption.6 CLCS’ development and 4  The United States (1975 mimeo), Reproduced in Platzöder, R.: Third United Nations Conference on the Law of the Sea: Documents Vol. XI 1987, 500 (emphasis added). 5  Report of the Fifth Meeting of States Parties (20 September 1996) Doc. SPLOS/14, para. 44, and Draft Rules of Procedure of the Commission on the Limits of the Continental Shelf (26 July 1996) Doc. SPLOS/CLCS/WP.1. The Division for Ocean Affairs and the Law of the Sea (DOALOS), Office of Legal Affairs, provides secretariat services for SPLOS. 6  For an insight in the dialogue between the CLCS and SPLOS on rule 46 and Annex I to the RoP, see Draft Rules of Procedure of the Commission on the Limits of the Continental Shelf (26 July 1996) Doc. SPLOS/CLCS/WP.1, and Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission – First session (30 June 1997) Doc. CLCS/1, para. 11; Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission – Second session (17 September 1997) Doc. CLCS/4, paras. 6 and 8; Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission – Third session (15 May 1998) Doc. CLCS/7, paras. 5 and 14; and Statement by the Chairman of the Commission

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operationalization of the saving clauses was accordingly approved by the SPLOS, at least indirectly. In a Legal Opinion, the UN Legal Counsel observed that, although the Convention does not contain articles providing the CLCS with the power to adopt its own rules of procedure, “the States Parties to the Convention acknowledged (…) the right of the Commission to adopt documents necessary for the proper discharge of its responsibilities under the Convention”.7 It is generally accepted that the Commission was and is competent to establish the rules applicable to its internal procedures.8 2.2 Operationalizing the Saving Clauses of the LOSC When the CLCS adopted the RoP with annexes, it made two considerable adjustments as compared with the DOALOS Draft RoP, both of which have proven to impact the CLCS’ obligations as prescribed in LOSC article 76(8), especially in light of the wording of the saving clauses it initially set out to operationalize. The first considerable amendment was the adoption of rule 46 of the RoP. In the DOALOS Draft RoP, the issue of disputes in relation to a submission was addressed in draft rule 44, providing that: in a case in which there is a dispute in the delimitation of the continental shelf, the coastal State must inform the CLCS of such a dispute, and the actions of the Commission should not prejudice matters relating to the delimitation between the States.9 Draft rule 44 was more or less a summary combination of the saving clauses included in article 76(10) and article 9 of Annex II to the LOSC. When the CLCS developed the final version of the RoP, it developed draft rule 44 into the current rule 46, and broadened the scope of disputes it considered relevant for on the Limits of the Continental Shelf on the Progress of Work in the Commission – Fourth session (11 September 1998) Doc. CLCS/9, paras. 17–18. 7  Letter dated 25 August 2005 from the Legal Counsel, Under-Secretary-General of the United Nations for Legal Affairs, addressed to the Chairman of the Commission on the Limits of the Continental Shelf (7 September 2005) Doc. CLCS/46, 8. 8  I LA Berlin Conference on the Legal Issues of the Outer Continental Shelf, Berlin Conference Report 2004, p. 7. See also Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325, at 317. 9  Draft Rules of Procedure of the Commission on the Limits of the Continental Shelf (26 July 1996), SPLOS/CLCS/WP1.

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the process of delineating the continental shelf. Whereas the saving clauses of the LOSC and draft rule 44 spoke of not prejudicing the outcome of delimitation disputes, the new rule 46 also included “or other cases of unresolved land or maritime disputes”. Rule 46 provides that “in case there is a dispute in the delimitation of the continental shelf or in other cases of unresolved land or maritime disputes”, submissions may be made and shall be considered in accordance with Annex I to the RoP.10 In addition to broadening the scope of disputes relevant for OCS submissions, Annex I was created to establish a procedure for how the coastal State, other States and the Commission should act in case there was a dispute in relation to the submission. Paragraph 1 of Annex I maintains that the competence with respect to disputes rests with States, and accordingly, the CLCS is not awarded any competence in relation to disputes. In order to make sure to avoid any prejudicial effects from the CLCS’ procedure on the outcome of related disputes, paragraph 5(a) of Annex I prescribes that if a dispute as described in rule 46 exists in relation to a submission, the CLCS must not consider or qualify a submission made by any of the States concerned in the dispute, unless all States parties to the dispute give prior consent. In spite of the mandatory language of article 76(8) of the LOSC, and in contrast with the saving clauses and rule 46, paragraph 5(a) of Annex I accordingly creates an exception to the CLCS’ duty to issue recommendations.11 Whereas the saving clauses require non-prejudice, the CLCS decided that the way to operationalize these rules was by means of non-consideration. In practice, paragraph 5(a) of Annex I provides States, other than the relevant coastal State, with an opportunity to block the CLCS’ consideration of the coastal State’s submission, if the submission is subject to dispute. If its submission is blocked, the coastal State cannot establish final and binding limits in accordance with article 76(8) of the LOSC. Without final and binding limits, the coastal State is prevented from fully benefiting from its rights over the continental shelf12 and the extent of the Area, which is the common heritage of mankind, remains uncertain.13 10  C LCS Rules of Procedure, rule 46. 11  Serdy, A., “The Commission on the Limits of the Continetnal Shelf and its Disturbing Propensity to Legislate”, (2011) 26 International Journal of Marine and Coastal Law, 355– 383, at 366. 12  Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Com­ mission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325, at 318. 13  L OSC, articles 1(1) and 136.

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2.3 Is There a Need to Change the Rules of Procedure? Several authors have expressed their concern with the way the saving clauses are implemented and operationalized in the RoP, and it is necessary to distinguish properly between the two relatively large changes resulting from the CLCS-adopted RoP with annexes.14 Whereas rule 46 takes it upon itself to define the scope of disputes that are considered relevant for OCS delineation, paragraph 5(a) of Annex I defines the consequence if such a defined dispute exists. The primary concern amongst legal scholars has been that paragraph 5(a), which in practice allows other States to block the Commission’s consideration of a submission, is potentially undermining the role of the Commission.15 It has been argued that Annex I has resulted in a “counterproductive oversensitivity to disputes”, and that it is the result of a serious misunderstanding of the saving clauses in LOSC.16 Nothing in the wording of the saving clauses indicates that the CLCS should not consider disputed submissions.17 They only provide that the provisions of article 76 and the actions of the CLCS are without prejudice to the question of delimitation of the continental shelf. Oude Elferink observes that the application of paragraph 5(a) may in certain instances lead to a deadlock, where the CLCS will not be able to consider a submission and issue recommendations and a court or tribunal will not be able to address the delimitation of the continental shelf until the time the States have 14  See, amongst others, Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325; Serdy, A., “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate”, (2011) 26 International Journal of Marine and Coastal Law, 355–383; Cavnar, A., “Accountability and the Commission on the Limits of the Continental Shelf: Deciding who owns the ocean floor”, IILJ Emerging Scholars Paper 15 (2009), 1–45. 15  Jensen, Ø., The Commission on the Limits of the Continental Shelf (Brill Nijhoff, 2014), 68; Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325. 16  Serdy, A., “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate”, in (2011) 26 International Journal of Marine and Coastal Law, 355– 383, at 362, 364. 17  Jensen, Ø., The Commission on the Limits of the Continental Shelf (Brill Nijhoff, 2014), 66; Oude Elferink, A.G., “Causes, Consequences, and Solutions Relating to the Absence of Final and Binding Outer Limits of the Continental Shelf”, in Symmons, C.R. (ed), Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff Publishers, 2011), 270.

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received recommendations by the CLCS on their outer limits.18 He argues that the saving clauses in the LOSC do “not envisage the Commission not making recommendations due to undelimited boundaries, but rather provides that the article is without prejudice to the question of the delimitation of the continental shelf”.19 Consequently, deadlocked disputes may be the result of the CLCS not acting in accordance with the saving clauses, and paragraph 5(a) arguably fails to ensure that the actions of the Commission do not prejudice matters relation to the delimitation of boundaries.20 As a solution, Oude Elferink suggests that the CLCS, on the basis of its competence to adopt and amend its own rules of procedure, could delete paragraph 5(a) of Annex I altogether, allowing the CLCS to consider all pending submissions, and removing the possibility for other States to block OCS submissions.21 In theory, a deletion of paragraph 5(a) would remove the third State veto over CLCS’ consideration of OCS submissions, and allow coastal States to benefit fully from their rights over their OCS,22 but it comes across as highly unlikely that the CLCS would initiate such amendment in the first place. The delineation of the OCS has become an increasingly politicized process, and former Member of the Commission, Harald Brekke, maintains that it is important that the Commission shows consistency through time based on precedence, and that it is “crucial for the global acceptance of the outer limits of the continental shelf that states feel they are treated equally”.23 Oude Elferink admits that States already having objected to the CLCS’ consideration of submissions in disputed areas would probably object to any alterations of the RoP unblocking the CLCS consideration of such submissions.24 If the CLCS were to initiate a deletion of paragraph 5(a), it would most likely consult the SPLOS before changing Annex I. In light of the important economic, strategic and political 18  Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R., Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325, at 317. 19  Id., 312. 20  Id. 21  Id., 317. 22  Id., 312. 23  Brekke, H., “Towards Establishing a Stable Regime for Seabed Jurisdiction: The Role of the Commission”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 269–288, at 286. 24  Oude Elferink, A.G., “Paragraph 5(a) of Annex I to the Rules of Procedure of the Commission on the Limits of the Continental Shelf: Solution to a Problem or Problem without a Solution”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans, UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 302–325, at 318.

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interests concerned, it is not likely that the States Parties would support such amendment. Based on CLCS’ history of SPLOS consultations, it is expected that the CLCS would strive to comply with the opinion of the SPLOS. Instead of risking the good working relationship between the SPLOS, the CLCS and individual States Parties, it might be less controversial if the CLCS takes a step back and takes a closer look at the scope of disputes as it is formulated in rule 46, which was the other considerable amendment made by the CLCS when it adopted the RoP. Rather than asserting that the blocking of submissions is too grave a consequence, we should consider if the access for initiating such consequence is too wide. Rule 46 provides the overall condition for the application of Annex I and its paragraph 5(a) in the first place. In order to limit the potential use or misuse of paragraph 5(a) in the future, there is arguably a need for identifying or establishing a uniform interpretation of rule 46, as this is the provision that actually broadens the scope of the saving clauses. Although the reference to “other cases of unresolved land or maritime disputes” was invented by the CLCS itself, it never provided the public with any explanation as to which kinds of disputes the phrase “land or maritime disputes” was intended to encompass. It is accordingly interesting to review the coastal States submissions and reactions that other States have submitted to the CLCS, to determine how the phrase “land or maritime diputes” is employed by the CLCS in practice. 2.4 The Interpretation and Application of Rule 46 in Practice The CLCS has received a total of 80 submissions thus far, and 60 of these have been subject to reactions from other States.25 A majority of the reactions have been submitted to inform the CLCS of relevant disputes and provide consent to the CLCS’ consideration of the submission, so-called notes verbales of “non-objection”. In relation to 24 submissions, one or more States have invoked paragraph 5(a) of Annex I to the RoP and blocked the CLCS’ consideration of the submission. 19 submissions are currently blocked due to ongoing disputes, nine of which have been next in line for consideration by the Commission, but have been passed over due to the presence of disputes.26 It is important to 25  These numbers are based on the information publicly available at the CLCS website, available at http://www.un.org/Depts/los/clcs_new/clcs_home.htm, and are up to date as of 1 November 2018. 26  These are the submissions by Myanmar (subm. no. 16); Yemen (subm. no. 18); United Kingdom in respect of the Hatton Rockall area (subm. no. 19); Ireland in respect of the Hatton Rockall area (subm. no. 20); Fiji (subm. no. 24); Malaysia and Vietnam (subm.

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have in mind that on many occasions, the submissions may be blocked due to more than one type of dispute, as presented in the following, and they may be blocked by more than one State. A closer look at the submissions that are currently blocked reveals that in the majority of instances where paragraph 5(a) is invoked, the submission is subject to a delimitation dispute. 54 submissions have received reactions due to unresolved delimitation, and in 17 of these instances, one or more States parties to the delimitation dispute have refused to consent to the CLCS’ consideration of the submission, thereby invoking the consequences in paragraph 5(a). For disputes that do not concern unresolved delimitation, the dispute definition in the saving clauses has to be expanded, as provided by rule 46. The second largest category of disputes where the consideration of submissions has been blocked, are disputes concerning title to land territory, or so-called sovereignty disputes. If the disputed territory generates maritime zones, including a continental shelf, such disputes may concern the establishment of OCS limits in accordance with rule 46. Five submissions are currently blocked due to disputed territory. The ongoing territorial disputes relate to the claims of UK and Argentina to the Falkland Islands/Malvinas Islands, South Georgia and the South Sandwich Islands, and a number of disputed islands in the South and East China Sea. In addition, they include a dispute concerning the delimitation of mainland territory between Guyana and Venezuela. Whereas these territorial disputes are clearly land disputes, it can be argued that they may at the same time be within the scope of what was originally intended to be included in the saving clauses. The Virginia Commentary describes article 76(10) as a saving provision for all questions regarding the delimitation of overlapping claims between States to continental shelf. (…) This provision emphasizes that article 76 prescribes the method of determining the outer limits of the continental shelf; it does not address in any way the question of delimitation of the continental shelf between opposite or adjacent States (…).27 no. 33); Vietnam (subm. no. 37); Palau (subm. no. 41); and United Kingdom in respect of the Falkland Islands, South Georgia, South Sandwich Islands (subm. no. 45). All submissions are available at the CLCS website, http://www.un.org/depts/los/clcs_new/ commission_submissions.htm (date of visit 19.11.2018). 27  United Nations Convention on the Law of the Sea 1982: A Commentary, Center for Oceans Law and Policy, University of Virginia (Martinus Nijhoff Publishers), 883.

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When a land border dispute is settled, this will directly impact the delimitation of the water column belonging to the disputed territory, and the potential prejudicial effect of any CLCS consideration is the same as in the other cases of unresolved or disputed delimitation. However, if the sovereignty dispute concerns title to one or more islands, as is the case for the Falkland Islands/Malvinas Islands, South Georgia and the South Sandwich Islands, and several disputed islands in the China Sea, a settlement of the dispute will not necessarily result in a delimitation dispute. In such instances, the CLCS could have decided on the extent of the continental shelf generated by the islands, without prejudicing the outcome of the sovereignty dispute, with immediate spin-off effects on maritime delimitation. A third category of objections has occurred where the coastal State is subject to treaty obligations that are allegedly incompatible with its obligations under the LOSC. The Antarctic Treaty can be used as an example of such treaty obligations. The Antarctic Treaty prohibits the assertion of claims to Antarctica, whilst the LOSC on the other hand obligates its States Parties to submit continental shelf submissions within 10 years. This incompatibility may cause disputes, and has resulted in several objections being submitted to the Commission and some cases of invocation of paragraph 5(a) of Annex I. Four submissions are currently blocked due to incompatible treaty obligations. Finally, States have blocked the CLCS’ consideration of OCS submissions due to disputes concerning the coastal States’ interpretation or application of provisions of the LOSC. Such disputes can occur in relation to a broad spectre of provisions, for example concerning the natural prolongation criteria in article 76, or the geographical area of application of the Statement of Understanding. Three submissions are currently blocked due to the coastal State’s interpretation or application of the LOSC. The final two categories of disputes are not easily defined as “unresolved land or maritime disputes”, as they primarily concern treaty interpretation and the weighing of treaty obligations. Although the outcome of these disputes may have consequences for the entitlement to the continental shelf, and accordingly may ultimately affect the location of the delineation line, these disputes seem to be quite far from the negotiating parties’ intent with the saving clauses, as disputes concerning delimitation are clearly not the same as disputes concerning treaty interpretation and application. Likewise, it is difficult to define such disputes as “other cases of unresolved land or maritime disputes”. Conflicting views on how a treaty provision should be interpreted, or the priority between different international treaties, are certainly not “land or maritime disputes” in their ordinary meaning.

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When considering OCS submissions, the CLCS never seems to categorize the disputes presented to it as either “land or maritime disputes”.28 In the publicly available Statements by the Chair, no statements are provided concerning the classification of disputes as either “land or maritime dispute”. Instead, it seems satisfied with simply observing the existence of an alleged dispute in relation to the submission.29 The CLCS does not seem to have a clearly defined definition of a dispute, and a review of CLCS practice demonstrates that the threshold for something to be considered a dispute in relation to the submission procedure is low.30 In fact, the Chairman of the CLCS has observed that “Annex I (…) dealt with the complex issues of how the Commission should treat possible submissions containing areas under actual or potential dispute” (emphasis added).31 It seems sufficient that either the coastal State itself or another State submits a note verbale to the CLCS informing it about the presence of a dispute, and asks the Commission not to take any action on the submission.32 To date, the Commission has complied with all requests to discontinue its work on allegedly disputed submissions.33 It is accordingly unclear how the phrase “land or maritime dispute” is understood. As compared to the saving clauses’ reference to “delimitation disputes” and “unresolved delimitation”, the phrase clearly broadens the number of situations where States may invoke paragraph 5(a) of Annex I to the RoP, blocking the CLCS’ consideration of a submission. On the basis of CLCS practice to date, any dispute which can ultimately have any effect on the maritime areas when 28  This conclusion is drawn on the basis of a review of the Statements by the Chair and all recommendations issued by the CLCS, both of which are publicly available at the CLCS website, http://www.un.org/Depts/los/clcs_new/clcs_home.htm (date of visit 19.11.2018). Due to the strict confidentiality clauses included in rule 44, rule 51(3) and Annex II to the RoP, this is the only information made public from the CLCS deliberations. Paragraph 4 of Annex II provides that “[t]he deliberations of the Commission and subcommissions on all submissions made in accordance with article 76, paragraph 8, of the Convention shall take place in private and remain confidential”. 29  Busch, S., Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Brill Nijhoff, 2016), 120. 30  Id, 380. 31  Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission – Third session, (15 May 1998) Doc. CLCS/7, para. 5. 32  Busch, S., Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Brill Nijhoff, 2016), 71. 33  This conclusion is based on a review of all submissions and thereto attached reactions submitted to the CLCS, available at the CLCS website, http://www.un.org/Depts/los/clcs_ new/clcs_home.htm (date of visit 19.11.2018). See also Busch, S., Establishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Brill Nijhoff, 2016).

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it is settled seems to be considered a dispute within the scope of rule 46 by the CLCS – allowing the blocking of submissions with reference to paragraph 5(a) of Annex I to the RoP. 2.5 Case Study: The Oki-no-Tori Shima The Japanese submission to the Commission is a useful example for illustrating the consequences of the lack of a clear definition of the scope of rule 46, and to demonstrate the potential for new dispute categories being asserted to the CLCS. Several States submitted their reactions to the Japanese OCS submission to the CLCS, including China that objected to the CLCS’ consideration of the submission. China argued that Oki-no-Tori Shima is a rock “which cannot sustain human habitation or economic life of [its] own” and therefore can not generate a continental shelf.34 It further asserted that, as Oki-no-Tori Shima had no ground to generate a continental shelf, it was not within the mandate of the CLCS to make any recommendations on the portions of the continental shelf in that area. China argued that establishing continental shelf limits based on Oki-no-Tori Shima would seriously encroach upon the Area as the common heritage of mankind.35 On this basis, China requested the CLCS not to take any action on the part of the submission concerning Oki-no-Tori Shima, thus without providing any reference to paragraph 5(a) of Annex I. Japan asserted that, since the interpretation of article 121 was outside the mandate of the CLCS and was not referred to in the RoP, the Commission should not take into account the position expressed in the note verbale by China.36 The Commission agreed that it had no role in matters related to the legal interpretation of article 121, and decided that the submission should be considered by a Subcommission.37 Accordingly, the CLCS did seemingly not consider a dispute concerning article 121 to constitute a dispute within the scope of rule 46, and instructed the Subcommission to proceed with the consideration of Japan’s full submission. Interestingly, the Commission also 34  N  ote verbale by China, submitted to the CLCS, dated 6 February 2009, available at http:// www.un.org/Depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf (date of visit 19.11.2018). 35  Id. 36  Rebuttal by Japan, submitted to the CLCS, dated 25 March 2009, available at http:// www.un.org/Depts/los/clcs_new/submissions_files/jpn08/jpn_25mar09.pdf (date of visit 19.11.2018). 37  Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission – Twenty-third session, doc. CLCS/62, paras. 23–26. Available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N09/307/58/PDF/ N0930758.pdf?OpenElement, date of visit 19.11.2018).

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decided that it “shall take no action on the part of the recommendations prepared by the Subcommission in relation to the area referred to in the notes verbales (…) until the Commission decides to do so”.38 The CLCS did not make any reference to the RoP in support of its decision not to take action on the disputed parts of the submission. The CLCS’ consideration of the Japanese submission raises two important questions. First, what was the CLCS’ basis for deciding that a dispute concerning the interpretation of article 121 was not at the same time a “land or maritime dispute” within the scope of rule 46? Second, when the CLCS had decided that this was not a dispute within the scope of rule 46, and the exception to its duty to issue recommendations included in Annex I was accordingly not applicable, how could the CLCS at the same time decide not to take any action on the part of the submission that was subject to dispute? Having decided that rule 46 and Annex I are inapplicable, there exists no legal basis for the CLCS to retain its recommendations on the full Japanese submission.39 The CLCS handling of the Japanese submission demonstrates several weaknesses in the current CLCS practice. First and foremost, the fact that the CLCS never publicly provides the reasoning behind its decisions is jeopardizing their legitimacy, and reduces predictability for both coastal States and other States. Macnab observes that it is the role of the CLCS to legitimize continental shelf submissions from individual coastal states while ensuring that the proposed outer limits do not encroach unduly opon the international seabed that comprises the “common heritage of mankind”. It must strive for consistency and predictability in its decisions (…).40 Cavnar observes that [i]f the Commission does not have to explain or justify its actions to states (…) there is no way to make sure that it is adhering to its mandate (…). (…) [A]n unaccountable CLCS could undermine the entire article 76 process.41 38  I d., para. 26. 39  L OSC art. 76(8). 40  Macnab, R., “The Case for Transparency in the Delimitation of the Outer Continental Shelf in Accordance with UNCLOS Article 76”, (2004) 35(1) Ocean Development & International Law, 1–17, at 11. 41  Cavnar, A., “Accountability and the Commission on the Limits of the Continental Shelf: Deciding who owns the ocean floor”, IILJ Emerging Scholars Paper 15 (2009), 1–44, at 25.

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Without access to the reasoning forming basis for a decision such as the CLCS decision in relation to the Japanese submission, one may question if the CLCS’ interpretation and application of rule 46 is correct. Secondly, the CLCS’ decision not to take action on parts of the submission, in spite of the Subcommission having prepared full recommendations, and regardless of its own decision that the alleged dispute was not a rule 46dispute, is highly questionable. Due to the mandatory language of article 76(8) of the LOSC, the CLCS has an obligation to issue recommendations when it has decided that rule 46 is not applicable.42 If the CLCS starts to allow disputes other than those defined in rule 46 as a basis for invoking paragraph 5(a) of Annex I, this may result in severe consequences for coastal States, far beyond those intended by the saving clauses of the LOSC. It is submitted that the CLCS either should have issued full recommendations in accordance with article 76, or it should have defined the dispute as a rule 46 dispute. There is no in-between, and irrespective of any reasoning it may or may not provide, it is hard to find a valid legal basis for the CLCS’ decision. Brekke acknowledges that the approach in relation to the Japanese submission undermines the validity of the saving clauses and rule 46.43 He underlines that it is “crucial that the Commission sets a precedence through its recommendations that is generally accepted, and that the practice of the Commission is seen as consistent with that precedence (both scientific and procedural)”.44 The practice of the CLCS in relation to Japan’s submission is certainly not a practice that the CLCS can and should maintain. The Chinese objection to the CLCS’ consideration of the Japanese submission is also interesting from another perspective, as it demonstrates that the State objecting to an OCS submission does not necessarily have to be party to a dispute with the submitting coastal State. As basis for its objection, China takes it upon itself to defend the interests of the international community, arguing that the Japanese submission would seriously encroach upon the Area as the common heritage of mankind. The CLCS does not respond to this argument, but it is clear that a similar argument may be employed in relation to almost every OCS submission. If a State is allowed to block another State’s submission

42  Serdy, A., “The Commission on the Limits of the Continental Shelf and its Disturbing Propensity to Legislate”, (2011) 26 International Journal of Marine and Coastal Law, 355– 383, at 366. 43  Brekke, H., “Towards Establishing a Stable Regime for Seabed Jurisdiction: The Role of the Commission”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans: UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 285. 44  Id., 287.

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on the sole basis that the OCS may potentially encroach upon the Area, this would certainly undermine the core function of the CLCS. The Area is negatively defined by the delineation line and it is necessary to identify the location of such line in order decide where the Area starts. If a portion of the seabed is defined as part of the continental shelf subject to national jurisdiction, it is not part of the Area. The diversity of the third States’ reactions received by the CLCS so far, combined with the vague wording of rule 46, indicates that there is a large potential for new types of disputes being submitted under rule 46. In an era of unavoidable sea level rise, and changing maritime limits, the disputes will not necessarily concern delimitation, disputed territory or the interpretation of the natural prolongation requirement, but may involve other areas of the law of the sea, such as the law on baselines or the legal regime for islands. With increased attention on areas beyond national jurisdiction, we can potentially also experience an increased interest in OCS submissions by States that are not necessarily parties to a dispute with the coastal State, but fear that the submissions represent a potential encroachment of its interests in the Area, similar to what was argued by China in relation to the Japanese submission. 3

Concluding Remarks

Although the Commission has no function in settling disputes, it certainly has an important role in relation to disputes. When States make a continental shelf submission to the Commission, it has to decide whether a dispute exists in relation to the submission, before it can continue its consideration of the submission. But to what extent does the CLCS look into the dispute in order to decide the nature of the dispute? According to current CLCS practice, it seems sufficient that a State asserts that there is a dispute which it considers relevant for the location of the OCS limit of the submitting coastal State. The CLCS will not consider the submission, seemingly regardless of whether or not the dispute can be defined as within the scope of rule 46 or not. Recent CLCS practice contributes to blur the scope of rule 46, and the procedure for establishing permanent continental shelf limits contributing to stabilizing the world’s oceans has arguably moved in the opposite direction of what is desired. Instead of pursuing a coherent and predictable practice, the CLCS may unintentionally have expanded third States’ access to interfere in the coastal States’ process of establishing OCS limits. Brekke observes that “the number of cases where submissions become blocked by other states becomes less”, and describes this as a sign of the CLCS’

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success.45 However, if States start to operate more freely within the broad definition of dispute in rule 46, the current CLCS practice may contribute to undermine the legitimacy of CLCS’ considerations and decisions, and may affect how coastal States cooperate and interact with the CLCS. The CLCS risks an increase in the number of disputes being argued with reference to rule 46, allowing States to block the CLCS’ consideration of OCS submissions by other States. For the future, there is an urgent need to clarify what competence the Commission has to decide if a situation in fact constitutes a dispute, and define which disputes are within the scope of rule 46, and which are not. In addition, the Commission must ensure a uniform procedure and practice for how it deals with disputes if they are considered to be outside the scope of rule 46. Note This Chapter builds on the author’s PhD study published in Estab­lishing Continental Shelf Limits Beyond 200 Nautical Miles by the Coastal State: A Right of Involvement for Other States? (Brill Nijhoff, 2016). 45  Brekke, H., “Towards Establishing a Stable Regime for Seabed Jurisdiction: The Role of the Commission”, in Nordquist, M.H., Moore, J.N., Long, R. (eds), Legal Order in the World’s Oceans: UN Convention on the Law of the Sea (Brill Nijhoff, 2018), 287.

Part 5 Seafloor Highs

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Chapter 12

Seafloor Highs in Article 76 of the Law of the Sea Convention A Scientific Introduction and Some Comments on CLCS Practice Walter R. Roest 1

Introduction

Article 76 of the United Nations Convention on the Law of the Sea (the Con­ vention) defines the continental shelf of coastal States. Short but complex, this article starts out with the notion of natural prolongation of the land territory of a coastal State under the sea and to the outer edge of the continental mar­ gin. The idea of natural prolongation was introduced in 1945 in a Proclamation by the President of the United States, Harry Truman,1 who considered that the continental shelf adjacent to the coast of the United States might be regarded as an extension of the land mass of that coastal State and would be naturally appurtenant to it. In its definition of the continental shelf, article 76 provides a concept which partly overlaps and partly is distinct from the definition used by geologists. For geologists, the continental margin is a particular seafloor morphology related to the break-up of continents, where tectonic plates separate from one another during a period of stretching and thinning (rifting) of the continen­ tal crust and lithosphere, followed by seafloor spreading, creating new ocean floor underlain by basaltic oceanic crust. According to that definition, the continental shelf is a relatively shallow platform that ends at the shelf break.2 The Convention, on the other hand, includes, in its definition of the continen­ tal shelf, features located well beyond the shelf break, namely the continental

1  Harry S. Truman, “Proclamation 2667 – Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf”, September 28, 1945. Online by Gerhard Peters and John T. Woolley, The American Presidency Project: https:// www.presidency.ucsb.edu/node/231308. 2  The shelf break is the offshore edge of a shallow submerged continental shelf, where the sea­ floor transitions to continental slope. At the shelf break there is a marked increase in slope gradients toward the deep ocean floor.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_014

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slope and the rise3 – if a rise exists. In fact, the Convention does not use the shelf break but the base of the continental slope as the starting point to estab­ lish the outer edge of the continental margin and, subsequently, to delineate the outer limits of the continental shelf. In addition to defining the continental margin, article 76 also stipulates that the continental margin does not include the deep ocean floor and its subsoil. Article 121 of the Convention provides another important element whereby the legal definition of the continental shelf departs from the pure geoscientific definition. This article provides that islands have the same rights to a conti­ nental shelf as continental land masses. Many islands are oceanic in nature, and as such do not have the same geological characteristics as continents. The Commission on the Limits of the Continental Shelf (hereinafter the CLCS or the Commission) has implemented the rights of islands in its procedures by recognizing crustal neutrality when determining submerged, or natural, pro­ longation. Therefore, the nature of the crust, whether it is continental (mainly granitic) or oceanic (mainly basaltic), should not play a fundamental role in the determination of natural prolongation. It follows that the exercise of the determination of the base of the conti­ nental slope is primarily a morphological exercise, and mainly based on the variations in depth of the seafloor. This is confirmed in the Scientific and Technical Guidelines (hereafter the Guidelines) adopted by the Commission.4 In fact, according to the Convention and the Guidelines the foot of the conti­ nental slope shall be determined, as a general rule, at the point of maximum change in the gradient at its base.5 The use of the other possibility offered by the Convention, i.e. the use of evidence to the contrary to locate the foot of the continental slope, should be an exception, according to the Commission. In classic, rifted, continental margins associated with the break-up of con­ tinents, determining the base of the continental slope is usually relatively straight forward, as these margins display the geomorphological entities that are mentioned in paragraph 3 of article 76: the shelf, the slope, the rise – if it exists – and finally, beyond the margin, the deep ocean floor. However, as recognized by the Commission in the Guidelines, many con­ tinental margins are more complex than the ideal picture,6 and may be 3  The rise is a sedimentary wedge at the bottom of the continental slope. A rise typically exists offshore large continents, at locations where sediments are transported from the land mass to the sea floor by river systems. However, in many instances there is no rise at the bottom of the slope. 4  Scientific and Technical Guidelines, CLCS/11, adopted 13 May 1999. 5  C LCS/11, para. 2.1.13. 6  C LCS/11, para. 5.4.4.

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connected to seafloor highs that share to some degree the geological history and nature with the land mass. One of the difficulties in determining the extent of natural prolongation is whether some of the different seafloor highs that are located in the world’s oceans can be included in the continental margin, and if so, based on what criteria. In this Chapter, I will discuss the general knowledge of the relief of the ocean floor. This knowledge has significantly increased since the conception of arti­ cle 76 in the late seventies, and even since the development of the Guidelines by the Commission in the late nineties. Despite this increased knowledge, there are still large areas of the seafloor that have only sparse data coverage of variable vintage and quality. I will then describe different seafloor elevations that are found in the world’s ocean. Of these bathymetric features with a variety of shapes and depths, ridges form one class of seafloor highs that is of particular interest in the con­ text of article 76 of the Convention. Finally, I will discuss, as an example, how the Commission has treated Reykjanes Ridge, a seafloor spreading ridge extending southwards from the land territory of Iceland. 2

Relief of the Ocean Floor

The seafloor of the world’s ocean is not flat but in fact characterized by large variations in depth. Scientists use the term bathymetry for the measurements of the depth to the seafloor. The average depth of the world’s ocean is around 3500 m, but the deepest parts of the ocean exceed 10 km in depth. Significant seafloor elevations exist in all ocean basins, and these features often stand several kilometres high above the surrounding abyssal plains. They include mid-ocean ridges, plateaux, guyots, volcanos, etc. (Figure 12.1). Knowledge of seafloor relief has increased significantly since the Convention was adopted. Mapping this relief requires the use of a remote-sensing method called echo sounding, which is operated from a ship. Echo sounders are instru­ ments that measure the time needed by an acoustic wave to travel from the sea surface to the seafloor and back (two-way travel time). Provided that one knows the speed with which this sound wave travels through the water col­ umn, one can calculate the depth to the seafloor in metres from the two-way travel time. Until the eighties, echo sounders were only able to measure the depth directly below the ship, and the spacing of measurements was limited to a single sounding every few hundred metres along the ship track. Modern research vessels use multi-beam echo sounders to map a swath of seafloor at

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each passage of the vessel. The resolution of these instruments and the width of the coverage is improving as time goes on. As a result, a 12 to 15-kilometre wide strip of seafloor at 3000 m water depth can be mapped at a horizontal resolution better than 50 m during one single passage of a research vessel. However, it is estimated that today less than 9% of the floor of the global ocean is mapped to these modern standards.7 Since the early nineties, global bathymetric maps are based on satellite observations, which in fact map the sea surface, and not the seafloor. As a result of gravitational attraction, the relief of the sea surface, once the effect of waves and currents is removed, reflects somehow the relief of the sea floor. Therefore, the information on sea surface relief, acquired by radar satellite, can be pro­ cessed in order to yield a model of the ocean floor depth. The large advantage of these maps is that they provide a global picture of the bathymetry of the ocean. The disadvantage is that the resolution is relatively poor: the horizon­ tal resolution of these maps is around 5 to 10 km, and the precision of the depth determination is several hundreds of metres. As a result, many signifi­ cant bathymetric features on the seafloor are potentially not detected by this method. However, for the purpose of a global appreciation of the relief of the ocean floor, the resolution of such a satellite-derived map is largely sufficient. Figure 12.1 shows a bathymetric map of the ocean, based on a combination of satellite derived data and ship measurements,8 depicting the relief of the ocean floor. This image will be used to help understand the issues related to seafloor highs in article 76. The most prominent seafloor feature at the scale of reproduction of this figure is the mid-ocean ridge system, marking the divergent plate boundar­ ies, where tectonic plates move apart and new ocean floor is created. These seafloor spreading ridges are found in the middle of the Atlantic and Indian Oceans, and in the Eastern Pacific (Figure 12.1, MAR, EPR, SEIR and SWIR). Other salient features are large oceanic plateaux, such as the Kerguelen Plateau in the southern Indian Ocean, and subduction zone related volcanic arcs, such as the Aleutian Arc and Trench system, in the northern Pacific (Figure 12.1, KP and AA, respectively). There are many other seafloor highs, and some of these highs are relevant to the question of delineation of the outer limits of the con­ tinental shelf under article 76 of the Convention.

7  Mayer, L., et al., (2018) 8(2) Geosciences, 63; doi:10.3390/geosciences8020063. 8  Source: Geomapapp, http://www.geomapapp.org/.

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Figure 12.1

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Multiresolution bathymetric map of the world. Seafloor spreading ridges are clearly dominating the relief of the ocean floor: EPR – East Pacific Rise; MAR – Mid-Atlantic Ridge; SEIR – South-East Indian Ridge; SWIR – South-West Indian Ridge. Other significant elevations include: AA – Aleutian Arc; BR – Beate Ridge; ER – Ægir Ridge; FP – French Polynesia Swell; HESC – Hawaii-Emperor Seamount Chain; KP – Kerguelen Plateau; MFZ – Mendocino Fracture Zone Ridge; PhP – Philippine Plate active and remnant ridges; RR – Reykjanes Ridge Source: Geomapapp

Seafloor Highs in Article 76

Article 76 of the Convention considers three categories of seafloor highs: oce­ anic ridges, submarine ridges and submarine elevations. None of these terms is defined unambiguously in the scientific literature. Each of them can, there­ fore, give rise to significant difficulties in interpretation when dealing with article 76. The first type of seafloor highs are oceanic ridges of the deep ocean floor. Paragraph 3 of article 76 defines the continental margin as “the shelf, the slope and the rise”. However, this same paragraph also states that the continental margin “… does not include the deep ocean floor with its oceanic ridges”. Besides the oceanic ridges referred to in paragraph 3, another type of ridges, submarine ridges, is mentioned in paragraph 6 of article 76, which deals

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with applicable constraints to the outer limits of the continental shelf. These constraints are introduced in paragraph 5 of article 76 in order to limit the extent of the continental shelf of coastal States and avoid excessive claims. Without defining what exactly a submarine ridge is, paragraph 6 provides that “on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines …”. The third type of seafloor highs is introduced in the same paragraph, by stating that this limitation – i.e. that the outer limit shall not exceed 350 nauti­ cal miles from the baselines – “does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.” Submarine elevations are a class of seafloor highs for which a State can choose the most favourable constraint between either 350 M from its baseline or 100 M from the 2500 m isobath, as stipulated in para­ graph 5. Several examples of submarine elevations are listed: plateaux, rises, caps, banks and spurs. However, this list is not exhaustive, and other types of submarine elevations could potentially be considered as natural components of the continental margin. 4

Ridges

Among seafloor highs, ridges are of particular interest. For geoscientists, submarine ridges are “elongated elevations of the sea floor, with irregular or relatively smooth topography and steep sides” (IHO, 1993). However, not all ridges abide by this definition. In particular, the mid-ocean ridges mentioned above, which form the plate boundaries where tectonic plates separate and young ocean floor is formed, are generally broadly shaped and have very gentle sloping flanks. In its Guidelines, the Commission describes a number of different ridges of the seafloor, and eludes as to the mechanisms of their formation. This list, which is not exhaustive and complete according to the Commission, is pre­ sented below with a short scientific description for each category:9 – Ridges formed by the sea-floor spreading and associated volcanic-magmatic processes. These are broad features that extend over thousands of kilome­ tres along diverging plate boundaries, where tectonic plates move apart at rates of between less than a centimetre per year to more than ten centi­ metres per year, depending on the location. Examples are the Mid-Atlantic 9  C LCS/11, para. 7.2.1.

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Ridge and the East Pacific Rise, as well as several ridges in the Indian Ocean (Figure 12.1). – Ridges formed along transform faults and created as an inherent part of the sea-floor spreading process. When examining mid-ocean ridges, one observes that they are composed of segments that are offset by transform faults, where plates move along each other in what scientist call strike slip motion. A good example is the Mendocino Fracture Zone Ridge at the East Pacific Rise (Figure 12.1, MFZ). Along these faults, often long and narrow ridges are formed that are perpendicular to the main strike or trend of the mid-ocean ridge. – Ridges formed by later tectonic activity resulting in uplift of oceanic crust. An example is the Beate Ridge in the Caribbean Sea, most likely formed by compression (Figure 12.1, BR). – Ridges formed by volcanic activity related to the movement of crust over a hotspot. This volcanic activity is the result of material rising up from the mantle below and melting when passing through the crust. This type of ridg­ es is generally composed of individual seamounts and volcanos and forms more or less continuous features. The Hawaii-Emperor Seamount Chain is one of the most famous examples of this type of hotspot volcanic activity (Figure 12.1, HESC). – Ridges formed by interaction of oceanic crustal plates. This is, for example, the case for the Macquarie Ridge south of New Zealand (Figure 12.1, MR), where the Pacific and Australian tectonic plates meet. – Ridges formed by regional excessive volcanism related to plumes of anomalously hot mantle. In this case, there is a regional uplift of an en­ tire area of significant extent, as for instance the regional elevation around French Polynesia, sometimes referred to as the South Pacific super-swell (Figure 12.1, FP). – Ridges associated with active plate boundaries and the formation of island arc systems. These ridges are associated with converging tectonic plates and subduction zones. They can be active today, or inactive, i.e. remnant. Examples of both active and remnant ridges can be found in the area of the Philippines (Figure 12.1, PhP). – Ridges formed by rifting (extension and thinning) of continental crust. During the process of continent breakup, continental crust is stretched and thinned, before it breaks. Sometimes portions of the continental crust escape from this process and find themselves as elongated, shallow, sliv­ ers of continental crust next to oceanic or thinned continental crust. The Lomonosov Ridge in the Arctic Ocean is an example.

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The way article 76 is drafted presents difficulties for the CLCS’s work delin­ eating the outer limits of the continental shelf. In particular, paragraph 3 of article 76 states that the continental margin does not include the deep ocean floor with its oceanic ridges or the subsoil thereof. The formulation of para­ graph 3 begs the question whether oceanic ridges are by definition excluded from the continental margin, or only excluded from the continental margin if they lie on the deep ocean floor. It would appear that there are in fact two different interpretations, depend­ ing on the significance given to the possessive pronoun “its” in paragraph 3: – Some scholars consider that all oceanic ridges are to be excluded from the continental margin of coastal States because they are located on the deep ocean floor; – Others consider that it is the deep ocean floor that is excluded from the con­ tinental margin. For these experts, the use of the word “its” demonstrates that the drafters intended to convey that only those oceanic ridges that lie within the deep ocean floor are to be excluded from the continental margin. Also, which oceanic ridges are covered by this paragraph: only mid-ocean spreading ridges, or all ridges on the ocean floor, including the ones listed above as described in the Guidelines? The Guidelines rightly remark that the term “oceanic ridge” is not used in a strict way in the scientific literature. The implementation of the provisions of article 76 in relation to the three types of seafloor highs when delineating the outer limits of the continental shelf is rather complex. In this respect, the example of the partial Submission made by Iceland is very instructive. 5

Iceland

Iceland submitted on 29 April 2009 a Partial Submission in relation to the Aegir Basin area and the Western and Southern parts of Reykjanes Ridge.10 Reykjanes Ridge is part of the Mid-Atlantic Ridge system. It is a seafloor spreading ridge, along the axis of which the North American and Eurasian plates separate with a velocity of around two centimetres per year (Figure 12.1, RR). New ocean crust is formed by the volcanic activity along the plate boundary, both on land and offshore.

10  Executive Summary of the Partial Submission made by Iceland in respect of the Ægir Basin area and Reykjanes Ridge, http://www.un.org/Depts/los/clcs_new/submissions _files/isl27_09/isl2009executivesummary.pdf.

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In its original Partial Submission, Iceland considered the entire western flank of Reykjanes Ridge as a natural prolongation of its land territory, and positioned the base of the continental slope at the intersection of the flank of the ridge and the abyssal plain. However, the Subcommission appointed to consider the Submission made by Iceland did not accept this approach.11 However, the Subcommission did agree with Iceland that some parts of Reykjanes Ridge could potentially be included in the continental margin of Iceland. In respect of the two possible interpretations of paragraph 3 of article 76 discussed above, the Subcommission took the view that an oceanic ridge was not automatically excluded from the continental margin. The dif­ ficulty was to decide which parts of the ridge could be qualified as natural prolongation and which parts would represent the deep ocean floor. In order to make this distinction, the Subcommission examined, in addi­ tion to the bathymetric data, other relevant geophysical and geological data, including magnetic, gravity and geochemistry data. The scientific literature documents that the island of Iceland is the surface expression of a hotspot, a location where mantle material rising up from the mantle below passes through the crust, leading to melt production and volcanism. The peculiarity of the Iceland Hotspot is that, unlike, for example, the Hawaii Hotspot, it is located right beneath a mid-ocean ridge. The Subcommission concluded that hotspot-ridge interaction had significantly changed the seafloor spreading process and the morphological expression of parts of Reykjanes Ridge. This interaction was also responsible for the creation of the land mass of Iceland. Careful consideration was given to all the scientific and technical data and information contained in the Submission and also to additional elements pro­ vided by the Delegation of Iceland at meetings with the Subcommission. The Subcommission considered that the region defined by the Iceland Hotspot interaction with the seafloor spreading of Reykjanes Ridge was part of the con­ tinental margin of Iceland for the purposes of article 76. Despite the fact that Reykjanes Ridge is an oceanic ridge, the Subcommission, therefore, concluded that part of this ridge was not a ridge of the deep ocean floor, but an integral part of the continental margin of Iceland as it was mor­ phologically connected to the land mass. Having decided that a part of Reykjanes Ridge lies within the continental margin of Iceland, the next task was to classify this part of the ridge as either a submarine ridge, restricted to 350 M from the baselines, or as a submarine elevation, which can potentially extend beyond that distance constraint. 11  Summary of Recommendations, http://www.un.org/Depts/los/clcs_new/submissions _files/isl27_09/2016_03_10_sc_isl.pdf.

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Perhaps the most simple and clear description of the difference between these two seafloor features was recently formulated by Denmark and is cited in the Recommendations of the CLCS in regard to the Partial Submission made by the Government of the Kingdom of Denmark together with the Government of the Faroe Islands in respect of the continental shelf north of the Faroe Islands on 29 April 2009.12 In these Recommendations, the Commission refers to the following defini­ tion, proposed by Denmark: “A seafloor high that is a natural component needs to be geologically linked to the continental margin in its entirety to be classi­ fied as a submarine elevation. In contrast, submarine ridges are seafloor highs that are morphologically an integral part of the continental margin, but may be geologically different along parts or the entire length of the ridge from the landmass of the coastal State from which the margin extends.” Based on this definition, Denmark concluded that since the Ægir Ridge (Figure 12.1, AR) is morphologically continuous with the continental margin north of the Faroe Islands and falls within a common envelope of the foot of the continental slope, yet is an extinct seafloor spreading ridge that is geologi­ cally different from the land mass of the Faroe Islands, it is a submarine ridge in the meaning of article 76, paragraph 6, of the Convention. The Subcommission agreed with this view, which was later also endorsed by the Commission, as can be read in the Recommendations. In the case of Iceland, the Subcommission investigated whether or not that part of Reykjanes Ridge – a seafloor spreading ridge – it considered to be within the common envelope of the foot of the continental slope, could be classified as a submarine elevation. Taking into account the common origin of both the land mass of Iceland, and that part of Reykjanes Ridge that had been strongly affected by the Iceland Hotspot, the prevailing view of the Subcommission was that this part should be considered as a natural compo­ nent of the continental margin of Iceland. This allowed Iceland to apply either of the constraints formulated in paragraph 5 of article 76 in this area. Since the constraint line defined at distance of 100 M beyond the 2500 m isobaths was favourable to Iceland, this became the applicable constraint in the view of the Subcommission. The Subcommission approved its Recommendations on 27 February 2014, and submitted them to the Chair of the Commission for consideration and approval the next day.

12  Summary of Recommendations, http://www.un.org/Depts/los/clcs_new/submissions _files/dnk28_09/2014_03_14_SCDNK_REC_COM_20140521.pdf.

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As can be glanced from the published Summary of Recommendations of the Commission,13 the main issue at the level of the Commission was the classifi­ cation of part of Reykjanes Ridge as a submarine elevation, as proposed by the Subcommission. While some members of the Commission accepted the con­ sideration of Reykjanes Ridge as a submarine elevation based on the data and information included in the Submission, other members of the Commission arrived at the conclusion that the data and information did not support its consideration as a submarine elevation. As a result of these diverging views, the Commission “could not arrive at the conclusion that the depth constraint line was applicable, and considered that the data and information contained in the Submission were inconclusive to support the western and southern parts of the Reykjanes Ridge as a nat­ ural component of the continental margin of Iceland”.14 For this reason, the Commission recommended only on the fixed points that are located up to a distance of 350 M from the baselines from which the breadth of the territorial sea is measured. As stated earlier, dealing with seafloor highs in the context of article 76 is a complex matter. A potential measure of the significant differences in views between members of the Commission could be the length of time that the Commission devotes to the plenary consideration of the recommendations drafted by a Subcommission. In this respect, it should be recalled that the Rules of Procedure of the Commission15 stipulate that the Commission, its subcom­ missions and subsidiary bodies shall make every effort to reach agreement on substantive matters by way of consensus and there shall be no voting on such matters until all efforts to achieve consensus have been exhausted.16 In the practice of the Commission, subcommission recommendations are usually approved, with or without amendments, during the same session or during the next session after their transmission to the Chair of the Commission. In the case of Iceland, however, the debate at the level of the Commission was intense and stretched over a period of two years, i.e. six months longer than the time the Subcommission itself had spent on the in-depth consideration of the Submission. 13  Summary of Recommendations, http://www.un.org/Depts/los/clcs_new/submissions _files/isl27_09/2016_03_10_sc_isl.pdf. 14  Summary of Recommendations, http://www.un.org/Depts/los/clcs_new/submissions _files/isl27_09/2016_03_10_sc_isl.pdf, paragraph 78. 15  C LCS/40/Rev.1, Rules of Procedure of the Commission on the Limits of the Continental Shelf, published on 17 April 2008, http://www.un.org/Depts/los/clcs_new/commission _documents.htm#Rules%20of%20Procedure. 16  C LCS/40/Rev.1, rule 35.

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It is interesting to note that another recent set of Recommendations by a Subcommission was under consideration by the Commission for over two years, albeit interrupted by the election of new members of the Commission in 2017. This concerns the Recommendations for Norway, in respect of Bouvetøya and Dronning Maud Land. According to the Executive Summary of the Partial Submission made by Norway in respect of Bouvetøya and Dronning Maud Land,17 “Bouvetøya is itself located on the Antarctic lithospheric plate on the westernmost part of the Southwest Indian Ridge. With a 780 metres peak (Olavtoppen), the landmass of the island is part of a wide, submerged pedes­ tal formed by magmatic rocks. These are associated with the hotspot mantle plume that underlies the complex Bouvet Triple Junction”.18 The Statement by the Chair of the Commission after the forty-first session19 reports that the Subcommission appointed to consider the Partial Submission by Norway had finalized and approved its Recommendations by majority on 11 August 2016. These Recommendations were transmitted to the Chair of the Commission on the same day.20 Two years later, the Statement by the Chair of the Commission after the forty-seventh session,21 published in September 2018, reports that the Commission had identified key issues that would require further discussion and decided to resume its consideration of the Recommendations for Norway at its forty-ninth session.22 According to the Chair’s report related to the forty-ninth session,23 on 8 February 2019, following extensive and substantial deliberations, the Com­ mission approved, by 14 votes to 3, with 2 abstentions, Recommendations with regard to the Submission made by Norway in respect of Bouvetøya and Dronning Maud Land on 4 May 2009, with amendments. The report also states that one member of the Commission expressed his regret that the Commission had not heeded his proposal for a secret ballot, probably highlighting the con­ troversial nature of the matter. Pursuant to section V, paragraph 11(3) of Annex III to the Rules of Procedure of the Commission, the Summary of the Recommendations was made public

17  Executive Summary of the Continental Shelf Submission of Norway in respect of Bouvetøya and Dronning Maud Land, http://www.un.org/Depts/los/clcs_new/submis sions_files/nor30_09/nor2009_executivesummary.pdf. 18  Id., 9. 19  Statement by the Chair, forty-first session, CLCS/95: http://undocs.org/CLCS/95. 20  C LCS/95, para. 29 and following paras. 21  Statement by the Chair, forty-seventh session, CLCS/105: http://undocs.org/en/clcs/105. 22  C LCS/105, para. 22. 23  C LCS/108, para. 26.

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on the website of the Commission.24 This Summary shows that the majority of Commission members approved the fact that parts of the Southwest Indian Ridge axis and its flanks constitute the continental margin of Norway. In addi­ tion, based on geochemical analyses provided by Norway, the Commission approved the classification of the morphologically connected Shaka Ridge, geologically speaking an oceanic ridge, as a submarine elevation that is a natu­ ral component of the continental margin, hence giving entitlement beyond 350 M from the baselines. The Commission, in its Guidelines, acknowledges the complexities of issues surrounding ridges. The Commission, therefore, feels it appropriate that the issue of ridges be examined on a case-by-case basis.25 However, there are some similarities between the two cases cited above concerning Iceland and Norway: we are dealing with islands located on a mid-ocean ridge, asso­ ciated with significant hotspot activity. The Recommendations for Norway are of great interest to a wider community, and one can only hope that the Commission explains its final conclusions in all cases with clarity. Other cases involving islands on mid-ocean ridges are currently being considered by the Commission. These include the French Submission in respect of Saint-Paul and Amsterdam Islands, located on the South East Indian Ridge,26 and the Joint Submission made by France and South Africa in an area of the South West Indian Ridge.27 6

Conclusion

Seafloor highs are among the most controversial features when dealing with the outer limits of the continental shelf beyond 200 M under article 76 of the Convention. Of these seafloor highs, ridges are subject to significant debate within the Commission. I would like to conclude by considering the following two questions related to ridges:

24  https://www.un.org/Depts/los/clcs_new/submissions_files/nor30_09/2019_02_08_com _sumrec_nor.pdf. 25  C LCS/11, para. 7.2.11. 26  French Partial Submission in respect of La Réunion Island and Saint-Paul and Amsterdam Islands, http://www.un.org/Depts/los/clcs_new/submissions_files/submission_fra_40 _2009.htm. 27  Partial Submission by France and South Africa in respect of the Crozet Archipelago and the Prince Edward Islands, https://www.un.org/Depts/los/clcs_new/submissions_files/ submission_frazaf_34_2009.htm.

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– Are there circumstances that allow an oceanic ridge, or a part thereof, to be considered as a seafloor high that forms part of a coastal State’s continental margin beyond 200 M? – If so, is it possible that such a feature, in certain settings, could also be con­ sidered as a natural component of the continental margin such that either constraint can be applied to it? With respect to the first question, the answer is clearly “yes”. The Commission has issued recommendations to Iceland in respect of Reykjanes Ridge, to Denmark/Faroe Islands related to the Ægir Ridge and to Norway in respect of the Southwest Indian Ridge. In all cases, the Commission considered the mor­ phological connectivity: if an oceanic ridge or part thereof is morphologically connected to the land mass, it falls within the common foot of the slope enve­ lope and, therefore, is located within the continental margin. The second question is more complex. My own opinion is that even an oce­ anic ridge can be classified as a natural component of a continental margin, if it shares significant geological characteristics with the land mass. In that respect, I fully support the conclusions reached by the Subcommission, of which I was a member, that those parts of Reykjanes Ridge affected by hotspot-ridge interaction are to be considered as a submarine elevation that is a natural com­ ponent of the continental margin of Iceland. Regretfully, as explained above, not all members of the Commission agreed with this view. However, in its Recommendations to Iceland, the Commission did not reject the classification of Reykjanes Ridge as a submarine elevation because it was an oceanic ridge of the deep ocean floor by definition. In fact, the Commission could not hold such a position as it had already decided that part of Reykjanes Ridge was located within the continental margin, and was therefore not located on the deep ocean floor. Rather, the Commission concluded that the data and information provided in the Submission did not support its consideration as a submarine elevation. New data and/or other information could potentially change the Commission’s conclusions. The practice of the Commission shows that, in general, the standard of proof for the continental shelf to extend beyond 350 M is very high. On seafloor spreading ridges, the Commission would appear to be even more reluctant to hand positive recommendations. The recent recommendations to Norway in respect of Bouvetøya and Dronning Maud Land may indicate a possible change in practice. Several other submissions involving mid-ocean ridges are currently being considered by the Commission and its subcommissions. Future recom­ mendations may provide further guidance by expanding the practice of the Commission to mid-ocean ridges in different settings.

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Note The author is Senior Research Scientist at the French Institute for Exploration of the Sea (Ifremer). He was Member of the Commission on the Limits of the Continental Shelf 2012–2017, nominated by France. The views expressed herein are solely those of the author and do not necessarily reflect the views of the Commission on the Limits of the Continental Shelf, nor those of any Government.

Chapter 13

Submarine Ridges and Submarine Elevations under the Law of the Sea Convention: A Further Look Kevin A. Baumert and Larry Mayer 1

Introduction

Article 76 of the United Nations Convention on the Law of the Sea (Convention) codifies the rules for determining the outer limits of a coastal State’s continental shelf.1 One of the more complex aspects of article 76 is its paragraph 6, which addresses continental shelf limits on “submarine ridges” and “submarine elevations.” These provisions have proven challenging for both coastal States and the Commission on the Limits of the Continental Shelf (Commission, or CLCS),2 and some of the Commission’s recent recommendations relating to submarine ridges and submarine elevations have been criticized by coastal States.3 This Chapter offers a legal analysis of article 76(6) in the context of the ongoing work of the CLCS. The Commission is a body of 21 scientific experts established under the Convention.4 Its primary function is to consider the data and information submitted to it by coastal States and to make recommendations to them, in accordance with article 76, concerning the outer limits of the continental shelf in areas beyond 200 nautical miles (M) from the territorial sea

1  U.N. Convention on the Law of the Sea, Dec. 10, 1982, art. 76, 1833 U.N.T.S. 397. Regarding the customary international law status of article 76, paragraphs 1 to 7, see K. Baumert, “The Outer Limits of the Continental Shelf Under Customary International Law”, (2017) 111 Am. J. Int’l L., 827. 2  For a review of Commission practice, see H. Brekke and P. Symonds, “Submarine Ridges and Elevations of Article 76 in Light of Published Summaries of Recommendations of the Commission on the Limits of the Continental Shelf”, (2011) 42 Ocean Dev’t & Int’l L., 289. The United Nations Division for Ocean Affairs and the Law of the Sea (DOALOS) provides the executive summaries of the submissions of coastal States and the summaries of recommendations issued by the Commission at http://www.un.org/Depts/los/clcs_new/ commission_submissions.htm. 3  See e.g., statements of South Africa and Iceland at the Meeting of States Parties to the Law of the Sea Convention, June 2017 (on file with author). 4  Convention, supra note 1, Annex II, art. 2.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_015

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baselines.5 Although the Commission’s expertise is scientific and not legal, the Commission is called upon to interpret and apply article 76 of the Convention in order to discharge its mandate of making recommendations to coastal States “in accordance with article 76.” The Commission’s task is made more challenging by paragraph 6 of article 76, which is not clearly drafted. In this Chapter, we undertake a legal analysis of paragraph 6 of article 76, which addresses the constraints applicable to continental shelf limits on “submarine ridges” and “submarine elevations.” Using the customary rules of treaty interpretation, we conclude that (1) the complex provisions of law presented in paragraph 6 are subject to more than one acceptable interpretation, and (2) the Commission should reconsider its approach to article 76(6) in light of the considerations presented here. Ensuring a legally acceptable interpretation of this provision is important because it addresses situations where a State may have an especially broad continental shelf, extending long distances from shore. In these cases, the Commission’s approach to paragraph 6 of article 76 can have a bearing on whether large areas of seabed fall under the jurisdiction of the coastal State or, alternatively, are part of the international seabed area (the Area) administered by the International Seabed Authority.6 2

Article 76 of the Convention

Article 76 of the Convention contains the rules used by coastal States and the Commission to determine the outer limits of the continental shelf. Paragraph 1 of article 76 states the basic rule that the continental shelf of a coastal State extends 200 M from the territorial sea baseline or to the “outer edge of the continental margin,” whichever is farther seaward. Paragraph 3 of article 76 gives a conceptual definition of the continental margin, stating that it “consists of the seabed and subsoil of the shelf, the slope and the rise” (Figure 13.1). Paragraph 4 of article 76 provides two formulas for precisely locating the “outer edge of the continental margin.” Paragraph 5, however, introduces two constraints beyond which the continental shelf may not extend, no matter how far seaward the outer edge of the continental margin extends. Thus, due to the constraints in paragraph 5, it is possible that the outer edge of the continental margin determined in accordance with paragraph 4 is not the outer limit of the continental shelf. As Ireland noted at the conclusion of the Third UN Conference on the Law of the Sea

5  Id., Annex II, art. 3(1)(a). See also article 3(1)(b) pertaining to scientific and technical advice. 6  Id., arts. 1(1)(1), 137.

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figure 13.1

Article 76 illustration

(UNCLOS III, 1973‒1982), the constraints in article 76 “in fact involve cutting off from national jurisdiction parts of the [continental] margin.”7 The first constraint in paragraph 5 is based on distance from shore: “350 nautical miles from the baselines from which the breadth of the territorial sea is measured” (“distance constraint”). The second constraint is based on distance from a particular seafloor depth: “100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres” (“depth constraint”). A coastal State may use “either” of the two constraints in any particular location to maximize its continental shelf, but cannot extend its shelf limits beyond the selected constraint line (Figure 13.1). Additional complexity is introduced in paragraph 6 of article 76, which pertains to the application of these constraints in the case of certain seafloor highs. Before assessing these complex provisions of law (Section 4), the rules of treaty interpretation are briefly reviewed below. 3

Treaty Interpretation

This Chapter examines paragraph 6 of article 76 using the customary rules of treaty interpretation, which are codified in the 1969 Vienna Convention on 7  186th Plenary Meeting, XVII Official Records of the Third United Nations Conference on the Law of the Sea 24 (hereinafter Official Records), UN Doc. A/ CONF.62/SR.186 (1982), available at http://legal.un.org/diplomaticconferences/1973_los/.

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the Law of Treaties (VCLT).8 The key guidance for discerning the meaning of treaty text is found in article 31(1) of the VCLT, which provides that a treaty is to be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Although treaty interpretation focuses on the “ordinary meaning” of the words, a “special meaning” must be given to a treaty provision, “if it is established that the parties so intended” (VCLT, article 31(4)).9 Article 32 of the VCLT provides that “the preparatory work of the treaty,” which includes its negotiating history, is a “supplementary means” of interpretation. Such evidence can be used to “confirm the meaning resulting from the application of article 31” or “to determine the meaning when the interpretation according to article 31” results in a meaning that is “ambiguous or obscure” or “manifestly absurd or unreasonable.” 4

Legal Analysis of Paragraph 6

After examining the content, structure, and key terminology in paragraph 6 of article 76, this section presents two interpretations of paragraph 6 that, for convenience, are referred to as Interpretations A and B. 4.1 Structure and Content of Paragraph 6 Paragraph 6 consists of two sentences, as follows: Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. Sentence 1 of paragraph 6 begins by referring to paragraph 5. As discussed above, paragraph 5 describes two constraints on the outer limit of the continental shelf, the distance constraint and the depth constraint. The general rule in paragraph 5 is that “either” of these constraints may be used. “Notwithstanding” 8  Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, sec. 3. 9  Regarding paragraphs 2 and 3 of article 31 of the VCLT, there appear to be no agreements involving States Parties to the Convention that would make these paragraphs relevant to the interpretation of article 76.

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this general rule, sentence 1 of paragraph 6 states that, on submarine ridges, the continental shelf may not exceed 350 M from the baselines. Thus, sentence 1 of paragraph 6 introduces an exception to the general rule in paragraph 5: on submarine ridges, 350 M distance constraint must be applied (the depth constraint may not be used). Sentence 2 of paragraph 6 begins by stating that “[t]his paragraph does not apply to …”, which is a kind of negative phrase commonly used in legal drafting. This phrase functions to introduce content that “does not apply” to “this paragraph.” Because “this paragraph” (i.e., paragraph 6) has only two sentences, sentence 2 essentially means “sentence 1 does not apply to submarine elevations that are natural components of the continental margin….” Therefore, it is clear that submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs, may use either the distance or depth constraints (i.e., the general rule in paragraph 5). The restriction imposed for submarine ridges (sentence 1) “does not apply” to these other features. Sentence 2 is challenging to construe. On the one hand, even without sentence 2, sentence 1 would not apply to “plateaux, rises, caps, banks and spurs” because they are not submarine ridges; so it is unclear why sentence 2 is included in paragraph 6. On the other hand, sentence 2’s reference to “submarine elevations that are natural components of the continental margin” could conceivably include some submarine ridges. These provisions are analogous to the following three-part problem: – (A) The speed limit is 100 km/hour (general rule) – (B) Notwithstanding paragraph (A), the speed limit for trucks is 75 km/hour (exception) – (C) Paragraph (B) does not apply to vehicles that are small, such as cars and motorcycles. Part (C) seems superfluous because it is already clear that part (B) doesn’t apply to cars and motorcycles; it applies to trucks. But because some trucks may be small, (C) raises the question of whether the general rule (100 km/hour) rather than the exception (75 km/hour) might apply to some trucks, namely those that are small. For article 76, the question is whether some submarine ridges, namely those that are “natural components of the continental margin”, might be subject to the general rule (paragraph 5) rather than the exception (paragraph 6, sentence 1). 4.2 Key Terminology in Paragraph 6 To aid in further analysis of article 76(6), its key terminology is examined below. None of these terms is defined in the Convention.

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Submarine Elevations

Submarine Ridges Figure 13.2 Submarine ridges are a subset of submarine elevations

Submarine ridges. With respect to the meaning of the term submarine ridge, the ordinary meaning of the word “submarine” is “below the surface of the water.”10 The ordinary meaning of “ridge” is an “elongate elevation” (including one “on an ocean bottom”) or “a linear series of crests.”11 Based on the meanings of “submarine” and “ridge,” the ordinary meaning of the term “submarine ridge” is an elongated underwater elevation located on the ocean floor. This is consistent with the International Hydrographic Organization’s (IHO) Hydrographic Dictionary, which defines “submarine ridge” as “[a]n elongated elevation of the sea floor, with either irregular or relatively smooth topography and steep sides.”12 Submarine elevations. With respect to the meaning of the term submarine elevation, the word “submarine” has the same meaning described above. The ordinary meaning of “elevation” is “something that is … raised especially above the ground or other surface.”13 Along these lines, the IHO Hydrographic Dictionary defines “elevation” as “[a]n area higher than its surroundings, as a hill.” Based on the meanings of “submarine” and “elevation,” the ordinary meaning of the term “submarine elevation” is an underwater feature that rises above the surrounding ocean floor. It does not appear that “submarine elevation” is a 10   Merriam-Webster, at http://www.merriam-webster.com/dictionary. 11  Id. 12  Hydrographic Dictionary, IHO Pub. S-32, Fifth Ed., 1994, at 234. This definition also refers to a submarine ridge as a feature “which constitutes a natural prolongation of land territory.” This is a legal gloss that is not part of the ordinary meaning of the term. 13   Merriam-Webster, supra note 10.

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scientific term of art; it is not included in the IHO’s Hydrographic Dictionary or its Standardization of Undersea Feature Names. However, undersea features that are described as “elevations” in the latter publication include morphological features such as a bank, hill, knoll, mound, plateau, reef, ridge, rise, seamount, and shoal.14 Thus, considering their ordinary meanings, the term submarine elevation is a general term covering many different kinds of morphological features, with submarine ridges being one example (Figure 13.2). Plateaux, rises, caps, banks and spurs. In the context of sentence 2 of paragraph 6, these five features are presented as examples of submarine elevations that are natural components of the continental margin. The phrase “such as” indicates that the list of features is not exclusive. Although it is not necessary to explore in detail here the definitions of each, the aforementioned IHO publications indicate that these are different kinds of submarine elevations. A plateau, for instance, is defined as “a large, relatively flat elevation that is higher than the surrounding relief with one or more relatively steep sides.”15 The ordinary meanings of these particular submarine elevations – and also submarine ridges or other elevations – generally point to their identification on the basis of morphology (i.e., shape, near-surface topographic, or bathymetric qualities); e.g., whether the feature is elongated, is relatively flat, is elevated above the surrounding seabed, has steep sides, etc. For this reason, these elevations, and also others such as submarine ridges, are often referred to as “morphological features.”16 The broader context of article 76 indicates that all the morphological features referred to in paragraph 6 (e.g., submarine ridges, plateaus, spurs) are those that have already been determined – via the application of paragraph 4 – to be part of the continental margin of the coastal State. Paragraph 6 is concerned with the application of the constraints described in paragraph 5, and those constraints apply only to the continental margin. Therefore, the submarine ridges, submarine elevations (generally), plateaus, rises, caps, banks, and spurs referred to in paragraph 6 are all features that are part of the continental margin. Natural components. The ordinary meaning of “natural” is “occurring in conformity with the ordinary course of nature.”17 The ordinary meaning of “component” is “a constituent part; one of the parts of a compound or complex 14  S tandardization of Undersea Feature Names, IHO Pub. B-6, Ed. 4.1.0, September 2013. Emphasis added. 15  Id., at 2–12. 16  See e.g., Brekke and Symonds, supra note 2. 17   Merriam-Webster, supra note 10.

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whole.”18 Thus, the ordinary meaning of the term “natural component of the continental margin” is simply a feature that is naturally a part of the continental margin. There is no known special meaning of “natural component” in marine geology specifically, or earth science more generally, and it does not appear from the negotiating history that the negotiating States at UNCLOS III intended this term to carry a special meaning.19 The ordinary meaning of natural component is unsatisfying since it seems to suggest that the restrictive clause “that are natural components of the continental margin” in sentence 2 has no purpose. As explained above, all morphological features referred to in paragraph 6, including ridges, are naturally parts of the continental margin. The practice of legal interpretation generally disfavors a reading that renders terms superfluous or redundant (effet utile). Accordingly, whether there is a distinction between elevations that are a natural component of the continental margin as opposed to merely a part of the continental margin is explored further below. 4.3 A Basic Understanding of Paragraph 6 At this juncture, several pieces described above can be assembled into a basic understanding of how to interpret paragraph 6: – (1) The general rule for constraints on any part of the continental margin is that “either” the distance or depth constraint may be used (paragraph 5). – (2) “Submarine ridges” that are part of the continental margin constitute an exception to the general rule; they are limited to a 350 M continental shelf (sentence 1 of paragraph 6). This limitation applies only to submarine ridges. Sentence 2 of paragraph 6 does not say otherwise; rather, it lists some other morphological features that are not subject to sentence 1. – (3) Morphological features listed in sentence 2 – plateaux, rises, caps, banks, and spurs – that are part of the continental margin may use the general rule (i.e., either constraint). There are two distinct legal reasons why these five morphological features are eligible to use either constraint. First, they are not submarine ridges and therefore are not covered under sentence 1. Second, sentence 2 expressly describes these five morphological features as examples of “submarine elevations that are natural components of the continental margin” to which the restriction imposed in sentence 1 for submarine ridges does not apply. 18  Id. 19  See e.g., UNIVERSITY OF VIRGINIA, CENTER FOR OCEANS LAW AND POLICY, II UN CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY, 862–72 (Satya Nandan & Shabtai Rosenne eds, 1993) (covering the sessions from 1979–1980, in which the ridges provisions were developed over the course of extensive discussions).

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– (4) For elevations not addressed at all in paragraph 6, the general rule applies (i.e., either constraint). For example, a “seamount” that is part of a continental margin may use either constraint. It does not matter whether the seamount is regarded as a “natural component” of the margin (under any definition of that term). So long as it is not a submarine ridge, it is not covered by sentence 1 and thus not constrained to a 350 M continental shelf. The remaining question, explored below, is whether some “submarine ridges” (sentence 1) might also be considered “submarine elevations that are natural components of the continental margin” (sentence 2), and thus be eligible to use either constraint. One interpretation (A) holds that submarine elevations that are natural components of the continental margin never include submarine ridges. The second interpretation (B) holds that submarine elevations that are natural components of the continental margin may include some submarine ridges. 4.4 Interpretation A Sentence 1 of paragraph 6 pertains to “submarine ridges,” limiting such features to a continental shelf of 350 M. Under Interpretation A, the purpose of sentence 2 is merely to clarify and support sentence 1. I.e., sentence 2 clarifies that the rule described in sentence 1 for “submarine ridges” applies solely to those features and “does not apply to” other features that are not ridges, “such as … plateaux, rises, caps, banks and spurs.” This interpretation is depicted visually in Figure 13.3.

Submarine Elevations

Submarine Ridges

May apply distance or depth constraint Must apply distance constraint (350 M)

Figure 13.3 Interpretation A: applicability of constraints

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Under this interpretation, sentence 2 could be understood as guarding against an expansive interpretation or application of sentence 1; i.e., to ensure the limitation for submarine ridges is narrowly understood. Considering the complexity of seafloor morphology, in many cases it may be unclear whether a feature should be classified as a submarine ridge or, alternatively, some other kind of morphological feature. Is the feature “elongated”? If so, how long must it be relative to its width to be considered a ridge? Is the steepness of the sides of the feature relevant? Moreover, a feature may have a geographic place name (e.g., “ridge”) that is inconsistent with its actual morphological character, as many subsea features were named at a time when the seafloor was poorly understood. It is therefore possible, for instance, for an undersea feature to have “ridge” in its official place but, as a scientific and legal matter, not be a “submarine ridge” within the meaning of article 76. In this regard, sentence 2 may help clarify and emphasize that submarine ridges are different than other elevations. 4.5 Interpretation B Like Interpretation A, Interpretation B starts from the incontestable proposition that sentence 1 of paragraph 6 pertains to “submarine ridges,” limiting such features to a continental shelf of 350 M. Under Interpretation B, however, the term “submarine elevations that are natural components of the continental margin” may also include some submarine ridges. This could be regarded as a natural reading of sentence 2, since the ordinary meaning of submarine elevations includes submarine ridges. Sentence 2 lists five examples of submarine elevations that are natural components of the continental margin: “plateaux, rises, caps, banks and spurs.” Although ridges are not mentioned, the openended phrase “such as” that precedes these examples could support a reading of “submarine elevations” that may include some ridges. This interpretation is depicted visually in Figure 13.4. As discussed above, sentence 1 of paragraph 6 describes an exception (i.e., a “submarine ridge” may not extend beyond 350 M) to the general rule in paragraph 5. Under Interpretation B, sentence 2 of paragraph 6 constitutes an exception to sentence 1; an exception to an exception. Thus, under Interpretation B, the effect of sentence 1 is lessened, such that some submarine ridges are not necessarily limited to 350 M, namely those that are shown to be “natural components of the continental margin.” Accordingly, under this interpretation, it is necessary to distinguish between submarine ridges that are merely a part of the continental margin (limited to 350 M, under sentence 1) and submarine ridges that are “natural components of the continental margin” (not limited to 350 M, under sentence 2). How might this be done?

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Submarine Elevations

Natural Component Elevations

Submarine Ridges

May apply distance or depth constraint Must apply distance constraint (350 M)

Figure 13.4 Interpretation B: applicability of constraints

As discussed above, all the elevations referred to in paragraph 6 are necessarily part of the continental margin by operation of paragraph 4 of article 76. Paragraph 4 is widely understood to be applied on the basis of morphological evidence.20 To ascertain if a ridge is a natural component of the continental margin, rather than merely a part of it, it might be presumed that some criterion other than morphology needs to be used, such as geological evidence linking the submarine elevation to the rest of the continental margin and land mass.21 This was suggested at UNCLOS III by Denmark, which was the only delegation at that time to specifically comment on the term “natural component”: 20  See e.g., Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf (hereinafter Guidelines), Doc. No. CLCS/11 (1999), Sec. 5.4.6, stating that “whenever the base of the continental slope can be clearly determined on the basis of morphological and bathymetric evidence, the Commission recommends the application of that evidence.” The base of the continental slope contains the foot of the continental slope, which is the location from which the outer edge of the continental margin is determined, per paragraph 4 of article 76; Brekke and Symonds, supra note 2; Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal, Judgment, paras. 429–35, 438, 447 (ITLOS Mar. 14, 2012) (considering that the outer edge of the continental margin is determined through the application of paragraph 4 of article 76 and rejecting Bangladesh’s geologically-based arguments). 21  Regarding geological evidence, see e.g., infra note 42 and accompanying text.

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[Denmark’s] delegation interpreted [the phrase “submarine elevations that are natural components of the continental margin”] to mean submarine elevations that belong to fundamentally the same geological structure as the land territory of the coastal State in question….22 Under this understanding of natural component, a submarine ridge would be subject to a test of geological affinity to determine whether the depth constraint may be applied, and therefore possibly extend the continental shelf beyond 350 M from the coast. Importantly, such a geologic test should be applied only in the case of submarine ridges; such a test is not warranted or appropriate for plateaux, rises, caps, banks and spurs, or indeed any other elevation that is not a submarine ridge. With respect to plateaux, rises, caps, banks and spurs, these features are expressly defined in sentence 2 as “submarine elevations that are natural components of the continental margin,” obviating the need for any geological analysis. With respect to other submarine elevations not specified in paragraph 6 (e.g., knolls, seamounts), using a geological criterion is likewise not warranted because whether or not such features are “natural components” in the geological sense is inconsequential. The limitation in sentence 1 applies to submarine ridges; all non-ridge elevations may resort to the general rule in paragraph 5 and use either constraint. Neither the text nor the negotiating history of paragraph 6 suggests that any elevation other than a submarine ridge should be limited to 350 M. This appears to be the approach taken by Australia in its Submission to the Commission. As described by Brekke and Symonds: In Australia’s view, only ridges and ridge-like structures should be subject to such a test [of geological continuity]; all other features should be considered natural components of the continental margin solely on the basis of their morphology…. However, some ridges can also be natural components of the continental margin, but this judgment will largely be based on geological considerations.23 (Emphasis added.)

22  126th Plenary meeting, XIII Official Records 17. UN Doc. A/CONF.62/SR.126 (1980). Emphasis added. 23  Brekke and Symonds, supra note 2, at 302 (presenting Australia’s views as different from those of the Commission).

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This aligns with Interpretation B; i.e., “ridges and ridge-like structures,” which would normally be limited to 350 M (sentence 1), may use the depth constraint (i.e., go beyond 350 M) if proven to be a natural component of the continental margin on the basis of their geological continuity. 4.6 Interpretation A v. Interpretation B The only difference between Interpretations A and B is whether the depth constraint may be utilized to determine the continental shelf limits on some submarine ridges. Under Interpretation A, it may not; the outer limits of the continental shelf on any submarine ridge cannot exceed 350 M. Under Interpretation B, the depth constraint may be applied on a submarine ridge (and therefore limits might extend beyond 350 M), but only if such ridge is shown to be a “natural component of the continental margin.” Figure 13.5 presents each interpretation of paragraph 6 of article 76 in flowchart form. Where the general rule of treaty interpretation leaves the meaning ambiguous, as here, the law of treaties provides that recourse may be had to the treaty’s negotiating history as a supplementary means of interpretation.24 The negotiating records of UNCLOS III indicate that the language of paragraph 6 was the product of a delicate compromise reached in the course of informal consultations in 1980.25 After that compromise was reached, the unclear nature of paragraph 6 was noted by a number of delegations.26 Three other negotiating States – Denmark, Iceland, and the United States – made statements at UNCLOS III offering some interpretation of paragraph 6. Denmark, as discussed above, considered that the phrase “natural component” implied a geological affinity with the land mass, which might be consistent with Interpretation B in the case of ridges.27 However, considering other statements by Denmark28 at UNCLOS III, it appears that Denmark considered that for any feature to be part of the continental margin of a coastal 24  V CLT, supra note 8, art. 32. 25  Renate Platzöder, Third UN Conference on the Law of the Sea, II Documents of the New York Session (1980), 579. See also, Nandan and Rosenne, supra note 19, at 868. Before appearing in paragraph 6, the natural component language now found in paragraph 6 was originally proposed by Australia in paragraph 3 of article 76, which defines the components of the continental margin. For official records of UNCLOS III, see supra note 10; see also Nandan and Rosenne, supra note 19. 26  See e.g., Statements of Singapore and Sweden, 126th Plenary meeting, XIII Official Records 11, 12, UN Doc. A/CONF.62/SR.126 (1980). 27  See text accompanying supra note 22. 28  138th Plenary meeting, XVI Official Records 61, UN Doc. A/CONF.62/SR.138 (1980). Emphasis added.

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Interpretation A

Interpretation B

Is the elevation a ridge? Art. 76(6)

Is the elevation a ridge? Art. 76(6)

Yes

No

Apply distance constraint (350 M) Art. 76(6)

Apply distance constraint (350 M) or the depth constraint Art. 76(5)

No

Yes

Is the ridge a Apply distance natural component constraint (350 M) or of the margin? the depth constraint (assess geology) Art. 76(5) Art. 76(6) Yes

Key

No

Question Art. 76 Outcome Figure 13.5

Apply distance constraint (350 M) Art. 76(6)

Flowchart illustrating two interpretations of article 76(6)

State (i.e., under paragraph 4 of article 76), there must be an “underlying fundamental unity of the geological structure….”29 Thus, at UNCLOS III, it does not appear that Denmark endorsed a specific test for “natural component.” Taken in their entirety, the statements of Denmark at UNCLOS III do not clearly lean toward Interpretation A or B. Iceland stated at UNCLOS III that paragraph 6 “meant that the 350-mile limit criterion would apply to ridges which were a prolongation of the land mass of the coastal State concerned.”30 Iceland later enacted regulations in the 1980s limiting its continental shelf on Reykjanes Ridge to a distance of 350 M.31 Considering that Iceland surmounts part of the mid-Atlantic ridge, Iceland may have had Interpretation A in mind. Since it is at least arguable that Iceland’s land mass and the ridge, or part thereof, share geological affinity, Interpretation B might yield a different result than what Iceland described; namely, Iceland’s continental shelf might extend beyond 350 M (via application 29  Id., see also Nandan and Rosenne, supra note 19, at 861. 30  128th Plenary meeting, XVI Official Records 36, UN Doc. A/CONF.62/SR.128 (1980). 31  See Iceland’s “Regulation No. 196, 9 May 1985, Concerning the Delimitation of the Continental Shelf to the West, South and East,” referring to a 350 M distance limit from Iceland on Reykjanes Ridge.

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of the depth constraint) because the mid-Atlantic Ridge in this area might be deemed a natural component of Iceland’s margin in a geological sense. In fact, when Iceland eventually applied article 76 to its own continental margin in the 2000s, it appeared to adopt Interpretation B (or Interpretation C, discussed below). In its 2009 Partial Submission to the Commission, Iceland considered that the flanks of Reykjanes Ridge constitute a submarine elevation that is a natural component of its continental margin.32 This example illustrates that the views of States may evolve over time. This may be due partly to the fact that the ability to map and depict the morphology of the margins as well as the scientific understanding of how continental margins are formed has improved considerably in the decades following UNCLOS III. Finally, the United States remarked at UNCLOS III that “features such as the Chukchi plateau situated to the north of Alaska and its component elevations could not be considered a ridge and were covered by the last sentence of [paragraph 6] of article 76.”33 The U.S. statement appears to point to Interpretation A, in that the reason stated for why “the Chukchi plateau … and its component elevations” fall within the scope of sentence 2 of paragraph 6 is that they “could not be considered a ridge.” (In Interpretation A, no ridges fall within sentence 2.) Still, the U.S. statement does not rule out Interpretation B. While features such as the Chukchi Plateau clearly fall within sentence 2 of paragraph 6, this does not preclude the view that certain ridges (i.e., those that share geological affinity with the rest of the continental margin) might also be “covered by the last sentence of [paragraph 6] of article 76.” Overall, the negotiating history does not clearly support one interpretation over the other, and it is unlikely that negotiating States held common views on the interpretation of paragraph 6. What the broader context of the continental shelf negotiations at UNCLOS III does show, however, is that negotiating States were concerned about ridges, which could potentially extend many hundreds or perhaps even thousands of miles.34 Appropriately, Interpretations A and B both focus on submarine ridges, limiting them to a continental shelf of 32  Iceland considered that its continental shelf on Reykjanes Ridge indeed extends beyond 350 M because “[t]he spreading ridges are directly connected to the Icelandic land mass, morphologically, tectonically and with respect to geological history and crustal characteristics.” Executive summary of Iceland’s Submission (2009), available from DOALOS, supra note 2, at 6, 10. Accordingly, Iceland has employed the depth constraint in constructing its outer limit in its Submission. 33  128th Plenary meeting, XVI Official Records 43, UN Doc. A/CONF.62/SR.128 (1980). 34  See e.g., Nandan and Rosenne, supra note 19; Steinar Thor Gudlaugsson, “Natural Prolongation and the Concept of the Continental Margin”, in Nordquist, Moore, and Heidar (eds), Legal and Scientific Aspects of Continental Shelf Limits (2004), 89 (“The intention in the Convention was to limit excessive claims into the oceans

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350 M. The only difference between these interpretations is whether there are certain ridges that are so closely linked to the continental margin of a coastal State – not just morphologically but also geologically – that they are capable of generating continental shelf beyond 350 M. As might be expected, experts and observers have differed in their interpretations. In its in-depth treatment of article 76, the International Law Association (2006) subscribes to Interpretation A.35 Others, such as DOALOS (1993),36 McKelvey (1984),37 and Oxman (1981),38 appear to subscribe to

along ridges without affecting entitlement to broad shelves and more equidimensional features of the margin …”). 35  International Law Association, Report of the Committee on Legal Issues of the Outer Continental Shelf, Second Report (2006), at 6–7, stating: “… the inclusion of paragraph 6 in article 76 was intended to limit the continental shelf to 350 nautical miles on submarine ridges …” and that “[t]he term ‘submarine elevations’ is contained in article 76(6) to clarify that certain features are not ‘submarine ridges’.” Emphasis added. This is Interpretation A. The Committee later addresses the relationship between submarine ridges and submarine elevations, as follows: “[Article 76(6)] excludes use of the 2,500 meter isobath along submarines ridges, but allows its use if it is located along other seafloor highs.” Id., 10. Emphasis added. 36  D OALOS, The Law of the Sea. Definition of the Continental Shelf: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea (1993), 22, stating: “Paragraph 6 states that on submarine ridges the second alternative [i.e., depth constraint] is not permitted unless the submarine elevations concerned happen to be a natural component of the continental margin. Emphasis added to reflect the apparent view that, per Interpretation B (or Interpretation C, discussed infra), the “submarine elevations concerned” may include “submarine ridges.” 37  V.E. McKelvey, “Interpretation of the UNCLOS III Definition of the Continental Shelf”, in Johnson and Letalik (eds), The Law of the Sea and Ocean Industry: New Opportunities and Restraints (1984), quoted in Nandan and Rosenne, supra note 19, at 881, stating: “… regardless of what a feature has been called – be it a ridge, plateau, rise or whatever – if it can be shown to be a natural component of the continental margin, the second sentence of paragraph 6 clearly provides that the 350 mile limit not apply.” Emphasis added to indicate the view that, per Interpretation B (or possibly Interpretation C, discussed infra), a “ridge” may fall within the second sentence of paragraph 6 and, therefore, may utilize the depth constraint. 38  Bernard H. Oxman, “The Third U.N. Conference on the Law of the Sea: The Ninth Session (1980)”, (1981) 75 Am. J. Int’l L., 211, at 219, stating: “… only the 350-mile cutoff [i.e., not the depth constraint] may be applied on submarine ridges if those ridges are not submarine elevations that are natural components of the continental margin….” Emphasis added to indicate that, per Interpretation B, submarine ridges could also be considered “submarine elevations that are natural components of the continental margin.”

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Interpretation B. Gudlaugsson (2004) refers to various interpretations, but favors Interpretation A, as “a more neutral approach.”39 In light of the foregoing, both Interpretation A and B appear to be reasonable and legally acceptable. Neither the drafting nor the negotiating history admits to a single, indisputable interpretation. 5

The Commission’s Approach: Interpretation C

The approach to paragraph 6 of article 76 that appears to have been used by the Commission is referred to here as Interpretation C. (Note that individual members of the Commission, however, may not hold a uniform view on the interpretation of paragraph 6.) This interpretation has been summarized in many recommendations of the Commission as follows: The outer limits of the continental shelf cannot extend beyond the constraints as per the provisions contained in article 76, paragraphs 5 and 6, of the Convention. Accordingly, the provision that the outer limits of the continental shelf may not exceed 350 M from the baselines from which the breadth of the territorial sea is measured (the “distance constraint”) may be applied in all cases. Alternatively, the provision that the outer limits of the continental shelf may not exceed 100 M from the 2500 m isobath (“depth constraint”) may be applied to those parts of the continental margin that are classified as natural components of that margin.40 The italicized final sentence above is critical to the Commission’s approach: only those parts of the continental margin – whether ridges or not – considered to be “natural components” of the margin may use the depth constraint. This approach is depicted visually in Figure 13.6 and in flowchart form in Figure 13.7. The Commission’s wording on the applicability of constraints from some more recent recommendations appears to have changed, but continues to state that, in order to use the depth constraint, the relevant parts of the continental 39  Gudlaugsson, supra note 34 (“A more neutral approach would be to try to distinguish between submarines ridges and spur-like features of the margin [i.e., non-ridge elevations] on the basis of morphological criteria….”). 40  See e.g., Summary of Commission’s Recommendations to Norway (Areas in the Arctic Ocean, the Barents Sea and the Norwegian Sea) (2009), para. 19; Summary of Commission’s Recommendations to Iceland (Ægir Basin Area and in the Western and Southern Parts of Reykjanes Ridge) (2016), para. 73. Emphasis added. Summaries available from DOALOS, supra note 2.

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Submarine Elevations

Natural Component

May apply distance or depth constraint Must apply distance constraint (350 M)

Figure 13.6 Interpretation C: applicability of constraints

Interpretation C Is the elevation a natural component of the margin? (assess geology) Art. 76(6) No

Yes

Apply distance constraint (350 M). Art. 76(6)

Apply distance constraint (350 M) or the depth constraint. Art. 76(5)

Figure 13.7 Flowchart of Interpretation C

margin must be “classified as natural components of that margin.”41 According to the Commission’s Scientific and Technical Guidelines, a “natural component” determination is made through a geological assessment, namely by “consider[ing] the processes that form the continental margins and how 41  See e.g., Summary of Commission’s Recommendations to the Republic of South Africa (Area of the South African Mainland) (2017), para. 92, available from DOALOS, supra note 2.

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continents grow”, including “the accretion of sediments and crustal material” (for active margins) and “thinning, extension and rifting of the continental crust and extensive intrusion of magma into and extensive extrusion of magma through that crust” (for passive margins).42 As illustrated in Figure 13.7, this approach begins with the question of whether a feature is a natural component of the margin. If the answer is “yes” (natural component), then either constraint may be applied. Alternatively, if the feature is not a natural component, only the 350 M distance constraint may be applied. Thus, the Commission makes a geological assessment of how the elevation is related to the continental margin in order to determine whether that elevation may be “classified” as a natural component of the margin and therefore utilize the depth constraint. This approach is legally flawed. As discussed above, paragraph 6 introduces an exception to the general rule in paragraph 5 for only one kind of morphological feature – submarine ridges. Yet, Interpretation C gives no consideration to whether the feature in question is actually a submarine ridge, and instead requires that all submarine elevations pass a geologic test in order to use the depth constraint. Accordingly, Interpretation C cannot be accepted as a valid legal interpretation of paragraph 6, as it clearly departs from the text of paragraph 6. Only sentence 1 of paragraph 6 limits which constraint can be used, and sentence 1 applies only to submarine ridges (either some of them or all of them). The legal shortcoming of Interpretation C can perhaps be seen most clearly by the fact that the Commission requires “plateaux, rises, caps, banks and spurs” to pass a geologic test in order to be considered “natural components” and therefore eligible to use the depth constraint. This is unwarranted, as sentence 2 of paragraph 6 refers expressly to “submarine elevations that are natural components of the continental margin such as its plateaux, rises, caps, banks and spurs”. (Emphasis added). These five submarine elevations are, by a plain reading of paragraph 6, “natural components of the continental margin.” There are therefore two distinct legal reasons why these five features are eligible to use either constraint (i.e., to use the general rule): (1) they are not submarine ridges and therefore not covered under sentence 1; and (2) they are covered in sentence 2, which expressly exempts these elevations from sentence 1. Finally, there is no support for Interpretation C in the negotiating history associated with paragraph 6. No proposal reflected in the negotiating records of UNCLOS III appears to have intended this interpretation. To the contrary, the predominant concern in the seafloor high debates at UNCLOS III was 42  Guidelines, supra note 20, Sec. 7.3.

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ridges.43 Yet, as described above, Interpretation C gives no effect to the submarine ridges language in sentence 1 of paragraph 6. 6

Practical Considerations

6.1 Four Scenarios The practical consequences of the three interpretations discussed above will vary depending on the following facts: (1) whether the feature in question is a submarine ridge in the morphologic sense (i.e., an elongated elevation) and (2) whether the feature is a natural component of the margin, in the sense that it shares a geologic affinity with the continental margin. A 2-by-2 box (Table 13.1) illustrates four permutations to this set of facts. These four scenarios assume that the continental margin and the depth constraint line extend beyond 350 M from the coast (as illustrated in Figure 13.1 above). table 13.1 Four scenarios illustrating outcomes under Interpretations A, B, and C Not Natural Components

1

2 Interpretations A: Outer limit is 350 M (distance constraint)

Submarine Ridges

Interpretations A, B and C: Outer limit is 350 M (distance constraint)

3 Non-Ridge Elevations

Natural Components

Interpretations B and C: May use depth constraint to go beyond 350 M

4 Interpretations A and B: May use depth constraint to go beyond 350 M Interpretations C: Outer limit is 350 M (distance constraint)

Interpretations A, B and C: May use depth constraint to go beyond 350 M

43  See Nandan and Rosenne, supra note 19 and quotation associated with supra note 34.

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– Scenario 1: Submarine ridges that are not natural components of the margin (Box 1, Table 13.1). Here, Interpretations A, B, and C would result in the same outer limit, based on the 350 M distance constraint. None would permit the use of the depth constraint, but for different reasons. Under Interpretation A, submarine ridges may never use the depth constraint; under Interpretations B and C, a showing of geological affinity (natural component) is required for a submarine ridge to use the depth constraint. An example is the “ridge part” of Japan’s Ogasawara composite high. That feature appears to be a ridge in the morphological sense and, in the view of the Commission, “it should not be considered a natural component of the continental margin”, due to its “geological characteristics.”44 – Scenario 2: Submarine ridges that are natural components of the margin (Box 2, Table 13.1). Here, because the feature is a natural component, Interpretations B and C would result in outer limits of the continental shelf that extend beyond 350 M, as the coastal State could utilize the depth constraint. A possible example is New Zealand’s Kermadec and Colville Ridges, which the Commission considered to be natural components of the margin based on their geological continuity.45 The Commission did not assess whether these were “submarine ridges” in the morphologic sense. If these features are morphologic ridges, the outer limit of these ridges under Interpretation A would be 350 M, since that interpretation compels this outcome for any submarine ridge. – Scenario 3: Submarine elevations that are not ridges (e.g., plateaus, spurs, seamounts) and are not natural components (Box 3, Table 13.1). Here, Interpretations A and B would result in outer limits of the continental shelf that extend beyond 350 M, as the coastal State could utilize the depth constraint (since these features are not ridges). The outer limit under Interpretation C, however, would be 350 M. An example is Norway’s Vøring Spur, for which the Commission recommended a continental shelf limit of 350 M. This example is discussed further below. – Scenario 4: Submarine elevations that are not ridges (e.g., plateaus, spurs, seamounts) but are natural components (Box 4, Table 13.1). Here, Interpretations A, B, and C would result in outer limits of the continental shelf that extend beyond 350 M (via the use of the depth constraint), but for different reasons. Under Interpretation A, the depth constraint may be 44  Summary of Commission’s Recommendations to Japan (2012), paras. 116–120, available from DOALOS, supra note 2. 45  Summary of Commission’s Recommendations to New Zealand (2008), para. 145, available from DOALOS, supra note 2.

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used because the elevation is not a ridge. Under Interpretation B, the depth constraint may be used for two reasons: (1) because the elevation is not a ridge and (2) because the elevation is a natural component. Finally, under Interpretation C, the depth constraint may be used because the elevation is a natural component. An example is the Mascarene Plateau (joint submission of Mauritius and Seychelles), which is a non-ridge feature (plateau) that the Commission considered a natural component of the margin based on geologic findings.46 6.2 What Should the Commission Do? If the Commission or its individual members wish to put future recommendations on firmer legal footing, while maintaining as much consistency as possible, they should avoid Interpretation C and instead use Interpretation B. Despite having concluded above that Interpretations A and B are both legally acceptable, there are three practical reasons to favour Interpretation B. First, Interpretation B aligns better with the Commission’s current approach (Interpretation C) in that they both employ a geologic test. (Interpretation C employs this test for any part of the continental margin; Interpretation B employs it only for submarine ridges.) It appears that adopting Interpretation B would also not require the Commission to alter its Scientific and Technical Guidelines, which describe the geological test employed by the Commission.47 Second, Interpretation B gives the Commission more flexibility in terms of how to assess whether the depth constraint may be applied. Under Interpretation B, the Commission could apply the depth constraint either by concluding that the feature is not a ridge or by determining that the feature passes a test of geologic affinity (i.e., natural component). This has some advantages over Interpretation A, which turns solely on a scientific assessment of whether a feature is a “submarine ridge” or not. In cases of complex seafloor morphology, it may be difficult to determine whether or not a feature should be considered a morphologic “ridge,” and in some instances it may be easier to assess the feature’s geologic affinity with the continental margin. If geologic affinity is adequately shown, the depth constraint may be used irrespective of whether the feature is classified as a submarine ridge. This additional flexibility could assist the Commission in geologically and morphologically complex 46  Summary of Commission’s Recommendations to Mauritius and Seychelles (2011), paras. 55–56, available from DOALOS, supra note 2. 47  Guidelines, supra note 20. To conform to Interpretation B, the Commission would simply confine the test described in Section 7.3 (“Submarine elevations”) to submarine elevations that are also “submarine ridges.”

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cases such as Iceland’s Reykjanes Ridge. In that example, the full Commission was unable to reach a decision on the applicability of the depth constraint.48 Having an additional basis on which to make such a decision might have helped the Commission reach a conclusion on this matter. Third, Interpretation B will more often produce an outcome that is consistent with the Commission’s current approach. Interpretation B produces the same result as the Interpretation C in scenarios (1), (2), and (4). Only in scenario (3) would Interpretation B produce a different outcome. However, it is this scenario that illustrates the error of the Commission’s approach, as shown by the Commission’s treatment of Vøring Spur (Norway). In its 2009 recommendations to Norway, the Commission considered that the Vøring Spur was part of Norway’s continental margin on the basis of morphology. However, the Commission considered that the Vøring Spur “has a different evolution and geological character to the adjacent Vøring Plateau.”49 Therefore, the Commission did not consider the Vøring Spur to be a “natural component”, and Norway was not permitted to apply the depth constraint from Vøring Spur.50 Here, the Commission is making its job more difficult than is necessary. All the Commission needs to do is determine in the first instance that the Vøring Spur is not a ridge. Having done so, it need not consider the geologic character of the Vøring Spur in relation to the rest of Norway’s margin. Moreover, if the Commission is satisfied that Vøring Spur is in fact a “spur,” then sentence 2 of paragraph 6 expressly states that spurs are natural components of the continental margin. Due to the configuration of Norway’s continental margins (including with respect to Jan Mayen), the Commission’s misapplication of paragraph 6 with respect to the Vøring Spur was of no practical consequence for Norway. In the future, however, this may not be the case for other coastal States. Continued reliance on a legally flawed approach could do a disservice to the international community and harm the credibility of future recommendations of the Commission. 48  Summary of Commission’s Recommendations to Iceland, supra note 40, paras. 75–78, available from DOALOS, supra note 2. It is notable that the Commission did not actually apply the 350 M distance constraint. Rather, the Commission simply recommended outer limit points on the western part of Reykjanes Ridge be established up to 350 M, a matter on which all Commission members apparently could agree. No recommendations were made to Iceland with respect to a more seaward outer limit, including an outer limit on the southern part of Reykjanes Ridge. 49  Summary of Commission’s Recommendations to Norway, supra note 40, para. 76. 50  However, Norway was able to construct the depth constraint line from Vøring Spur, and apply that depth constraint from FOS points derived from the Vøring Plateau, which was considered a natural component.

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Conclusion

Paragraph 6 of article 76 is complex and presents a significant interpretive challenge for members of the Commission on the Limits of the Continental Shelf and also coastal States. Identifying legally acceptable interpretations of paragraph 6 requires a careful reading of its provisions and the use of the customary rules of treaty interpretation. We conclude that the correct legal interpretation of paragraph 6 of article 76 is that its restriction regarding constraints is limited to submarine ridges. This conclusion is consistent with this paragraph’s negotiating history and is compelled by a plain reading. Sentence 1 of paragraph 6 refers only to “submarine ridges.” Sentence 2 refers only to sentence 1 (“This paragraph”) and describes certain submarine elevations for which sentence 1 “does not apply.” Still, an interpretive question remains as to whether or not the restriction regarding constraints in sentence 1 applies to all ridges or just some ridges; in other words, may the continental shelf limits on some submarine ridges extend beyond 350 M? In this regard, there appear to be two legally acceptable interpretations of paragraph 6. Interpretation A holds that the continental shelf on submarine ridges is always limited to 350 M. Interpretation B holds that the shelf limits on submarine ridges may exceed 350 M (via the application of the depth constraint), if it is demonstrated that the submarine ridge in question is a “natural component of the continental margin.” Under this interpretation, the term “natural component” takes on a geologic meaning in light of the full context of article 76. A third approach, Interpretation C, has been implemented by the Commission. This interpretation dispenses with submarine ridges entirely and requires that any submarine elevation – whether a ridge, plateau, spur, seamount, etc. – must be proven to be a “natural component” (by way of its geological characteristics) in order to be eligible to use the depth constraint. This interpretation is legally flawed and cannot be accepted as a valid legal interpretation because the restriction regarding constraints in paragraph 6 pertains only to submarine ridges. If the Commission continues to use Interpretation C, it runs the risk of adopting recommendations that are legally unsound and lacking credibility among coastal States. Should the Commission wish to put its future recommendations on a firmer legal footing, it should consider employing Interpretation B, which retains the Commission’s geological test in the case of submarine ridges and often leads to the same result as the Commission’s current approach. As of late 2018, the Commission had adopted recommendations for 28 of the 78 submissions made by coastal States thus far, with additional submissions anticipated in the

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coming years.51 If the Commission were to employ Interpretation B instead of C, it would constitute a relatively minor course correction with potentially significant and favorable implications for its future body of work. Note Kevin A. Baumert is Legal Counsel for the U.S. Extended Continental Shelf Project, U.S. Department of State. Larry Mayer is Professor, School of Marine Science and Ocean Engineering/Center for Coastal and Ocean Mapping, University of New Hampshire. The views expressed are those of the authors and do not necessarily reflect those of the U.S. Government. 51  See DOALOS website, supra note 2. Additionally, some recommendations already issued will be subject to new or revised submissions and will therefore need to be reconsidered by the Commission. Convention, supra note 1, art. 8 of Annex II.

Chapter 14

The Case of Reykjanes Ridge Helga Gudmundsdottir 1

Introduction

In April 2009, Iceland presented a Partial Submission to the Commission on the Limits of the Continental Shelf (hereinafter “the Commission” or “CLCS”) with regard to, inter alia, the western and southern parts of Reykjanes Ridge. Under the terms of the 1982 United Nations Convention on the Law of the Sea (hereinafter “the Convention”), specifically article 76 which defines the continental shelf, a coastal State is entitled to an extended continental shelf where the continental shelf extends beyond 200 nautical miles (hereinafter “M”) from its coast. The Commission, set up under Annex II to the Convention, is charged with assessing coastal States’ claims to an extended continental shelf and making recommendations on the outer limits. To prevent excessive claims, article 76, paragraph 5, of the Convention stipulates that the coastal State must adhere to either of two constraint rules: (i) the outer limits may not exceed 350 M from the coast (the “distance constraint”); or (ii) the outer limits may not exceed 100 M from the 2,500 metre isobath (the “depth constraint”), which may in some instances exceed 350 M. A further qualification is found in article 76, paragraph 6; a coastal State may only use the distance constraint on submarine ridges, while affirming that either constraint may be used on sub­ marine elevations that are natural components of the continental margin. Iceland’s Submission to the Commission was predicated on its classification of Reykjanes Ridge as a submarine elevation, thus justifying a continental shelf beyond 350 M from the coast. In accordance with the provisions of the Convention, the Submission was deferred to a Subcommission which, with well-grounded reasoning, agreed with this classification, thus recognizing Iceland’s sovereign rights over Reykjanes Ridge beyond 350 M. After the Sub­ commission submitted the Recommendations to the Commission for approval, the Commission, however, amended the Subcommission’s Recommendations. It recommended only the use of points in the western part of Reykjanes Ridge up to 350 M from the baselines but refrained from recommending a limit for the southern part. In response, Iceland issued a statement regretting the lack of a rationale for the amendment and noting that the only meaningful way forward for Iceland would be to continue working on the basis of the

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Subcommission’s Recommendations, thus implying that the Government will not accept an alternative classification. While it is not clear what Iceland’s next steps will be, a few possible reactions are foreseeable. First, Iceland could deliver a new and revised submission. Second, Iceland could set boundaries based on the Subcommission’s Recommendations. Third, Iceland could argue that the Commission acted ultra vires by amending the Subcommission’s Recommendations and that, therefore, the amended Recommendations are null and void. Fourth, Iceland could seek support of like-minded States for a request for an Advisory Opinion from the International Tribunal for the Law of the Sea, a body set up under the Convention, on the question of the legal interpretation of the relevant provisions of article 76 of the Convention. This Chapter in Section 2 briefly introduces the continental shelf regime and the coastal State’s rights to the continental shelf beyond 200 M, including the impact of different types of features, such as seafloor highs, on a coastal State’s claims. Section 3 describes Iceland’s claims to the continental shelf in the Reykjanes Ridge area as a submarine elevation and the treatment of the Submission in the Commission. Finally, Section 4 describes several foreseeable reactions available to Iceland following the Commission’s initial refusal to classify Reykjanes Ridge as a submarine elevation. 2

The Coastal State’s Claims to an Extended Continental Shelf and the Concept of Seafloor Highs

Under article 77 of the Convention, the coastal State exercises over its continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. The definition of the continental shelf in article 76, paragraph 1, of the Convention reads: The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Where a coastal State’s physical continental margin extends beyond 200 M, it is entitled to an extended continental shelf. To prevent excessive claims, coastal States are, in article 76, paragraph 5, given a choice of two constraint

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lines. The first sets the maximum limits of the continental shelf at 350 M from the baselines from which the breadth of the territorial sea is measured (the “distance constraint”). The second sets the maximum limits at 100 M from the 2,500 metre isobath (the “depth constraint”), which may in some instances exceed 350 M. The coastal State generally has a choice between the two constraints and is moreover free to alternate between them as it finds favourable. An exception, however, is provided in paragraph 6, which provides that the depth constraint cannot be applied to submarine ridges. Therefore, on such ridges the distance constraint applies. Although article 76 gives the coastal State the roadmap to the already complex process of delineating the outer continental shelf, some of the terms laid out in the article have neither a fixed legal nor scientific meaning. This is, for example, the case for the terms submarine ridges and submarine elevations that are natural components of the continental margin in article 76, paragraph 6. Both of these categories of seafloor highs are considered to be part of the continental margin and thus considered part of the continental shelf.1 However, they are subject to different rules as regards the extent of the coastal State’s entitlement. In the case of submarine elevations, the coastal State may choose either constraint line, thus potentially extending the shelf beyond 350 M. On a submarine ridge, however, the coastal State is bound by the distance constraint line. How a seafloor high is classified can therefore have major impacts on a coastal State’s entitlement. As these features were not defined in the Convention, it was left to practice to define these terms with greater precision. In the years that have followed the adoption of the Convention, academics and jurists alike have refined these terms and certain definitions have become widely accepted in academia and practice. In this respect, the prevailing opinion in academia recognizes that both types of seafloor highs are a morphological natural prolongation of the land mass; that is, they are physical features extending from the land mass of a coastal State.2 As both categories constitute a morphological 1  A third seafloor high, oceanic ridges on the deep ocean floor, is mentioned in paragraph 3, but over these features a coastal State has no entitlement as they are not part of the continental margin. 2  This builds on the popular definition of natural prolongation in article 76, paragraph 1, which accepts that the notion of natural prolongation is a purely morphological term, i.e., having to do only with the form or the shape of the continental shelf. Academics suggest that this means that in order to claim a continental shelf beyond 200 M, there is a requirement that the shelf possess unbroken continuity from the land mass beyond the 200 M exclusive economic zone. It is further argued that it is irrelevant whether the characteristics of this continuation are of oceanic or continental crust. It is merely the submarine landscape that is assessed and geology does not enter the equation. See, e.g., Tomas H. Heidar, “Legal Aspects of Continental Shelf Limits”, in M. Nordquist, J. Moore and T. Heidar (eds.), Legal and Scientific Aspects of

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continuation of the land mass, academics distinguish between the two on the basis of geology. In short, where there is geomorphological continuity as well as geological continuity of the land mass, the submarine feature may be considered a submarine elevation that is a natural component of the continental margin, and thus the shelf may, in given conditions, extend beyond 350 M. A submarine ridge, on the other hand, has only a geomorphological connection to the land mass, and only the 350 M constraint line may be applied. These understandings are widely accepted.3 The Commission is a body of twenty-one experts in geology, geophysics or hydrography charged with making recommendations to the coastal State on the outer limits of its continental shelf. The coastal State, where it considers it has entitlement to an extended continental shelf, is required, under article 76, paragraph 8, to submit information on the limits of the continental shelf to the Commission. Annex II to the Convention sets out the mandate, functions and working methods of the Commission. The procedure within the Commission is that, following the review of a coastal State’s submission by a seven-member subcommission of the Commission, the subcommission submits recommendations to the Commission, which may approve the recommendations by a majority of two thirds of its members present and voting. According to article 76, paragraph 8, a coastal State’s establishment of the limits on the basis of these recommendations is final and binding. These final and binding outer limits not only delineate the coastal State’s outer continental shelf, but they also serve to demarcate the international seabed Continental Shelf Limits (2004), 19–39, at 24–25; S. T. Gudlaugsson, “Natural Prolongation and the Concept of the Continental Margin for the Purposes of Article 76”, id., 61–90, at 90. 3  Brekke and Symonds are amongst those widely cited on the topic. See, e.g., Philip A. Symonds and Harald Brekke, “A Scientific Overview of Ridges Related to Article 76 of the UN Convention on the Law of the Sea”, id., 141–167; Harald Brekke and Philip A. Symonds, “The Ridge Provisions of Article 76 of the UN Convention on the Law of the Sea”, id., 169–200. Wang, relying on Brekke and Symonds, concludes that “submarine elevations are seafloor highs which are continuous both in geology and morphology with the land mass and its submerged prolongation…. And the submarine ridges are seafloor highs which are continuous in morphology, but discontinuous in geology with the land mass and its submerged prolongation.” Weiguo Wang, “Geological Structures of Ridges with Relation to the Definition of Three Types of Seafloor Highs Stipulated in Article 76”, (2011) 30(5) Acta Oceanologica Sinica, 125–140, at 136. On a similar note, Gao notes that submarine ridges are those ridges that have geomorphological continuity with the land mass, while submarine elevations have both geomorphological as well as geological continuity with the land mass. He further notes that, as regards islands that surmount a mid-oceanic ridge, the ridge can be considered a submarine elevation or a submarine ridge. Jianjun Gao, “The Seafloor High Issue in Article 76 of the LOS Convention: Some Views From the Perspective of Legal Interpretation”, (2012) 43(2) Ocean Development & International Law, 119–145, at 137.

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area (hereinafter “the Area”), which is defined in article 1, paragraph 1, of the Convention as the seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction and governed by the International Seabed Authority. Finally, in accordance with article 76, paragraph 9, the coastal State will “deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf.” 3

Iceland’s Submission to the Commission

On 29 April 2009, Iceland made its initial Partial Submission to the CLCS regarding Reykjanes Ridge.4 The claimed submarine elevation is created by the interaction of the MidAtlantic Ridge (of which Reykjanes Ridge is part) and the Iceland hot spot, a region of elevated topography caused by mantle plumes originating from the Earth’s mantle causing an upwelling of abnormally hot rock.5 The unique interaction of the Mid-Atlantic Ridge with the Iceland hot spot has had major impact on the morphology in the region, resulting in the creation of the Icelandic land mass and Reykjanes Ridge, as well as the Greenland-Iceland-Faroe Ridge, the Kolbeinsey Ridge and the Iceland Plateau.6 This impact of the hot spot interaction on the Mid-Atlantic Ridge, where it crosses over the hot spot, is evident; for example, the crust is twice as thick as the crust that surrounds the mid-oceanic ridge in other regions, resulting in the formation of a V-shaped submarine elevation which extends along the length of Reykjanes Ridge for 1000 km, with a width of up to 500 km.7 4  The eastern part of Reykjanes Ridge was not covered by the Submission on grounds of an outstanding delimitation issue. The Republic of Iceland, “The Icelandic Continental Shelf – Partial Submission to the Commission on the Limits of the Continental Shelf pursuant to article 76, paragraph 8 of the United Nations Convention on the Law of the Sea in respect of the Ægir Basin area and Reykjanes Ridge. Executive Summary” (hereinafter “The Icelandic Continental Shelf: Executive Summary”), at 8. 5  G. Ito et al., “Observational and Theoretical Studies of the Dynamics of Mantle PlumeMid-Ocean Ridge Interaction”, (2003) 41(4) Reviews of Geophysics, 1–24, at 19; Science Daily, “Mantle Plume”, available at www.sciencedaily.com/terms/mantle_plume.htm. 6  C LCS, “Summary of Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Submission made by Iceland in the Aegir Basin Area and in the Western and Southern Parts of Reykjanes Ridge on 29 April 2009”, (hereinafter “Iceland Recommendations”), paras. 44–47. 7  Jérôme Dyment, Jian Lin, and Edward T. Baker, “Ridge-Hotspot Interactions”, (2007) 20(1) Oceanography, 102–115, at 107; “The Icelandic Continental Shelf: Executive Summary”, supra note 4, at 6; CLCS, “Iceland Recommendations”, supra note 6, at paras. 44–47.

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The effect of the Iceland hot spot, however, is not only found in the morphology, but also in the material composition. As two scientists put it: The direct contribution of Iceland hot spot material to the construction of the Reykjanes Ridge was established by the analysis of dredged samples …, which revealed that the volcanics forming the Reykjanes Ridge are compositionally similar to volcanic rocks analysed from the Reykjanes Peninsula and other parts of Iceland.8 The fact that the crustal composition of the V-shaped area of Reykjanes Ridge is distinguishable from that of the surrounding mid-ocean ridge flanks was emphasized in Iceland’s Submission to the Commission. In addition, to support the classification of Reykjanes Ridge as a submarine elevation, Iceland presented evidence that it is “directly connected to the Icelandic land mass, morphologically, tectonically and with respect to geological history and crustal characteristics”.9 In light of this, it defined the outer limits of Reykjanes Ridge beyond 350 M, in line with prevailing definitions of submarine elevations. The Delegation of Iceland met with the Subcommission 19 times in 2012– 2013, during the course of the Subcommission’s examination. During the examination, the Subcommission also received expert support from the Division of Ocean Affairs and the Law of the Sea, mandated by the United Nations General Assembly to assist in guaranteeing consistent application of the Convention. The Subcommission ultimately concluded that Reykjanes Ridge should be classified as a submarine elevation, thus justifying Iceland’s rights over the continental shelf beyond 350 M.10 The Subcommission approved its Recommendations on 27 February 2014, and submitted them to the Commission the next day for consideration and approval. The Icelandic Delegation made one presentation to the Commission as a whole on 12 March 2014 following which the Commission considered the Subcommission’s Recommendations over a period of two years, in meetings in which the Icelandic Delegation was not invited to participate. Finally, on 10 March 2016, the Commission concluded its work on the Submission. However, rather than approving or rejecting the Subcommission’s Recommendations, it 8  L aura S. Magde and Deborah K. Smith, “Seamount Volcanism at the Reykjanes Ridge: Relationship to the Iceland Hot Spot”, (1995) 100(B5) Journal of Geophysical Research, 8449–8468, at 8451. 9  “The Icelandic Continental Shelf: Executive Summary”, supra note 4, at 6. 10  Following these extensive consultations with the Subcommission, Iceland redelivered its Submission on 11 July 2012, revising the outer limit points from latitude 51°N, to the approximate latitude of 55°N, points beyond 350 M. CLCS, “Iceland Recommendations”, supra note 6, at 26 and 29–34.

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issued its own amended Recommendations.11 In its Recommendations, the Commission recalls Iceland’s claim that Reykjanes Ridge is a morphological continuation of the Icelandic land mass, crustally distinguishable from the surrounding mid-ocean ridge flanks, geologically connected to the land mass and, as regards origin, formed by the same geological processes as the Icelandic land mass.12 It also notes the Subcommission’s treatment of the Submission and its classification of Reykjanes Ridge as a submarine elevation and its recommendation that the outer limits be delineated beyond 350 M. The Commission then, simply, concludes: While some members of the Commission accepted the consideration of the Reykjanes Ridge as a submarine elevation based on the data and information included in the Submission, other members of the Commission arrived at the conclusion that the data and information contained in the Submission did not support its consideration as a submarine elevation.13 … The Commission could not arrive at the conclusion that the depth constraint line was applicable, and considered that the data and information contained in the Submission were inconclusive to support the western and southern parts of the Reykjanes Ridge as a natural component of the continental margin of Iceland. For this reason, the Commission decided to recommend only on those fixed points constituting the outer limits of the continental shelf that are located within 350 M from the baselines from which the breadth of the territorial sea of Iceland is measured.14 It is evident from the Commission’s text that the Icelandic Submission sparked controversy among its members.15 Following a lengthy examination, the Commission therefore could not agree on a position and essentially amended the Subcommission’s Recommendations by recommending only those points to which the distance constraint rule of 350 M was applicable. 4

Possible Reactions of Iceland

In a Statement issued by the Government of Iceland, as reported at the Twenty-Sixth Meeting of States Parties to the Convention, the Government 11  12  13  14  15 

C LCS, “Iceland Recommendations”, supra note 6, at paras. 13–14. Id., at paras. 44–47. Id., at para. 76. Id., at para. 78. Id., at para. 76.

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regretted that it was not given any grounds for the Commission’s decision to (albeit somewhat inconclusively) disregard the Subcommission’s findings: An important question to ask is how one can expect coastal States to take recommendations into account and consider following them when there is no rationale provided by the Commission in the recommendations? The only meaningful way forward for Iceland, as regards this part of our submission, is to continue working on the basis of the well founded and balanced recommendations of the Subcommission.16 It is not possible to read into this statement what Iceland’s further reaction will be, but a few possible scenarios can be envisioned: (1) First, Iceland could deliver a new and revised submission to the Com­ mission. (2) Second, Iceland could set the outer limits based on the Subcommission’s Recommendations. (3) Third, Iceland could argue that the Commission acted ultra vires by amending the Subcommission’s Recommendations and that, therefore, the amended Recommendations are null and void. (4) Fourth, Iceland could seek support of likeminded States for a request for an Advisory Opinion from the International Tribunal for the Law of the Sea on the question of the legal interpretation of article 76, paragraph 6. 4.1 New and Revised Submission The Convention foresees that where the Commission does not accept the delineation of the coastal State, the latter may make a new and revised submission. The most straight forward approach for Iceland would be to simply resubmit the same materials already submitted, including the revised outer limit points from 2012. In this respect, it is clear from the Commission’s brief explication of its amended Recommendations that some members of the Commission agree with Iceland’s claims and that others may simply have found conclusive data lacking – in other words, the Commission’s findings were that it was simply inconclusive that the depth constraint was applicable.17 As a first point, if Iceland decides not to submit the same information but to attempt to provide 16   Twenty-Sixth Meeting of States Parties to the UN Convention on the Law of the Sea, Agenda item 10 a), Information reported by the Chair of the CLCS, New York, 20 June 2016. Statement by Iceland. 17  C LCS, “Iceland Recommendations”, supra note 6, at paras. 76 and 78.

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“conclusive” data in a revised submission, it must endeavour to anticipate what data and information it can provide which it has not already submitted. Acquisition of data can be costly and time-consuming and careful consideration is necessary before it embarks on that mission. With no hint from the Commission whatsoever as to what data may be missing, this is evidently a gamble. Iceland could instead submit the same data and information and hope for some guidance as to what, if anything, is lacking. In any event, if the Commission were to maintain its Recommendation to only recommend points to which the distance constraint rule of 350 M is applicable, one can expect the Icelandic Government to disagree with it, given its interpretation of the provisions of the Convention. A back-and-forth18 process could thus ensue between the Icelandic Government and the Commission where Iceland continues to make submissions which argue for outer limits beyond 350 M and the Commission continues to reject them. Iceland Sets Boundaries Based on the Subcommission’s Recommendations Another possible, but also more controversial, recourse for Iceland is to unilaterally delineate the outer limits in accordance with the Subcommission’s Recommendations through national legislation. A unilateral delineation of the Icelandic boundary would be based upon Iceland’s conviction that under a correct legal interpretation Reykjanes Ridge should be classified as a submarine elevation, not a submarine ridge, and that, in that sense, Iceland is acting in good faith in conformity with the provisions of article 300 of the Convention.19 In essence, the establishment of the outer limits of the continental shelf is a unilateral act20 and entitlement over the continental shelf exists ab initio 4.2

18  The term “ping-pong” is widely used to describe the process following a coastal State’s disagreement with the Commission. See, e.g., Ted McDorman, “The Role of the Commission on the Limits of the Continental Shelf: A Technical Body in a Political World”, (2002) 17(3) International Journal of Marine and Coastal Law, 302–324, at 306; Kristen Bartenstein, “Flag-planting: What legal framework governs the division of the Arctic continental shelf?”, (2009–2010) 65(1) International Journal, 2009–2010, 187–206, at 193; Robert W. Smith and G. Taft, “Legal Aspects of the Continental Shelf”, in P.J. Cook and C.M. Carleton (eds.), Continental Shelf Limits: The Scientific and Legal Interface (Oxford University Press, 2000), 17–24, at 20; and Øystein Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Brill/Nijhoff, 2014), at 108. 19  Article 300 provides: “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” 20  Suzette V. Suarez, The Outer Limits of the Continental Shelf (Springer-Verlag Berlin, Heidelberg, 2008), at 247.

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and ipso facto. Indeed, the procedures provided for in the Convention begin with the coastal State’s unilateral delineation, with the participation of the Commission being one of endorsement or disapproval, or as providing validity to the State’s unilateral actions.21 Indeed, proposals that the Commission be given a stronger role (for example that among its functions would be the rendering of decisions as opposed to making recommendations) were not accepted during the drafting of the Convention at the Third United Nations Conference on the Law of the Sea (hereinafter “the Third Conference”), including because the Commission could then be perceived as infringing on a coastal State’s sovereign rights.22 Instead, a balance was struck between the drafters’ wariness of eroding the sovereign rights of coastal States and the danger of coastal States extending their sovereignty beyond the natural prolongation of their land mass, that is, beyond what is ipso facto and ab initio their entitlement, by requiring that the Commission approve the recommendations.23 However, if a coastal State feels gridlocked by incorrect recommendations there is neither available a recourse to an appeals procedure,24 nor does the Commission have enforcement powers over its recommendations. Instead, the drafters pictured that the deliberation between the Commission and the coastal State would take place through a back-and-forth procedure where the coastal State keeps making revised submissions and the Commission continues to reject them until either party gives way.25 Given that such a unilateral determination of the outer limits is not directly contemplated in the Convention, the outcome would be subject to the normal application of the rules relating to customary international law and would therefore be dependent on the reaction of third parties. 4.3 Iceland Argues that the Commission Acted ultra vires Iceland could also raise the argument that the Commission’s amendments are null and void based on them having been rendered ultra vires. Such claims could inspire the Commission to revisit the matter on its own account. 21  I d.; Sari Graben and Peter Harrison, “Arctic Networks and Legal Interpretations of the UN Commission on the Limits of the Continental Shelf”, (2015) 28 Leiden Journal of Inter­ national Law, 771–797, at 779–780. 22  United Nations Convention on the Law of the Sea, 1982: A Commentary, Volume II, Center for Oceans Law and Policy, University of Virginia School of Law (Martinus Nijhoff, The Hague, 1993) (hereinafter “Virginia Commentary”), at 1013. 23  Id., at 1013. 24  Anna Cavnar, “Accountability and the Commission on the Limits of the Continental Shelf: Deciding Who Owns the Ocean Floor”, (2009) 42 Cornell International Law Journal, 387– 440, at 405. 25  Id., at 405.

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Annex II to the Convention provides for the basic functions of the Commission and lays out its working methods and its relationship with its subcommissions. Article 5 of Annex II provides that: Unless the Commission decides otherwise, the Commission shall function by way of sub-commissions composed of seven members, appointed in a balanced manner taking into account the specific elements of each submission by a coastal State. It is, therefore, generally the task of the subcommission, acting on behalf of the Commission, to examine the submission of a coastal State. This work can be extensive and thorough, such as it was in the case of the Icelandic Submission, where the Subcommission examined a great deal of data and held 19 meetings with the Icelandic Delegation.26 Once the subcommission is satisfied that it has reviewed the case, it submits its recommendations to the Commission. On the next steps, article 6 of Annex II stipulates the following: 1. The sub-commission shall submit its recommendations to the Commission. 2. Approval by the Commission of the recommendations of the subcommission shall be by a majority of two thirds of Commission members present and voting. Under article 6, paragraph 2, of Annex II, the Commission is to approve the recommendations of subcommissions by a majority of two thirds. In effect, where an approval is not obtained, the recommendations are rejected. There is, however, no reference to an amendment procedure. Since the Commission effectively amended the Subcommission’s Recommendations for Iceland, disregarding the classification of Reykjanes Ridge as a submarine elevation, the question that arises is whether the Commission acted ultra vires. An ultra vires act is one that goes beyond the expressly stated or implied competences granted to an organization in its constituent instrument, in this case, the Convention.27 It order to assess whether the Commission acted ultra vires and put forth such arguments, it is relevant to consider its competences according to Annex II to the Convention, more particularly, article 6, paragraph 2. In this regard, the point of departure is to apply general rules of treaty 26  C LCS, “Iceland Recommendations”, supra note 6, at para. 11. 27  Enzo Cannizzaro and Paolo Palchetti, “Ultra Vires Acts of International Organizations”, in Jan Klabbers and Asa Wallendahl (eds.), Research Handbook on International Organiza­ tions (2011), 365–397, at 365.

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interpretation. The main rules are laid out in the 1969 Vienna Convention on the Law of Treaties (hereinafter “VCLT”), which codified existing customary rules of treaty interpretation.28 VCLT article 31, paragraph 1, sets out the general rule of treaty interpretation as follows: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. As a supplementary means of interpretation, VCLT article 32 provides that: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. The first step, therefore, in assessing whether amendments are permitted, is to consider the ordinary meaning of the terms of the Convention. In this regard, it is most telling that there is no mention of amendments in Annex II. And while a rejection is implied where approval is not obtained, amendments are not implied. Amendments are only introduced in the Rules of Procedure of the Commission (hereinafter “the Rules of Procedure”). Rule 53, paragraph 1, lays out the Commission’s procedures for making recommendations: The Commission shall consider and approve or amend the recommendations prepared by the subcommission following their submission by the subcommission. Unless the Commission decides otherwise, the recommendations drafted by the subcommission shall be considered by the Commission during the next session following their submission by the subcommission. Sufficient time shall be allowed to the members of the Commission to consider the submission and the recommendations in each case.29 28  This is recognized, inter alia, in a number of International Court of Justice judgments, including Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, at para. 64. 29  C LCS, “Rules of Procedure of the Commission on the Limits of the Continental Shelf”, CLCS/40/Rev.1, rule 53. Emphasis added.

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The Rules of Procedure are a procedural document which was developed and adopted by the Commission itself and they are subordinate to the provisions of the Convention, that is, article 6, paragraph 2, of Annex II to the Convention, which makes no reference to amendments.30 It seems, then, logical to conclude that the ordinary meaning of the provision does not allow for amendments, nor is this implied. In order to support this meaning, it is relevant, as a second step, to have recourse to the supplementary means of interpretation, as per VCLT article 32, namely, the preparatory work of the Third Conference.31 The earliest proposals at the Conference for the envisaged Commission foresaw that a thirty-member Commission would be split into five-member special committees which would handle each submission in its entirety without consulting the Commission as a whole.32 The proposals in the next following years did not deviate greatly from this procedural setup. However, at the ninth session of the Conference, in 1980, two nearly identical draft annexes concerning the Commission and its role were proposed. The articles built largely on the prior proposals but were far more comprehensive, including, inter alia, detailed provisions on the election of Commission members so as to ensure a balanced representation of States from different regions. The proposals envisioned a Commission of twenty-one instead of thirty members which would work through seven-member “sub-commissions” in lieu of the earlier proposals for five-member special committees. They furthermore introduced the provision concerning the approval by the Commission of the subcommission’s recommendations.33 It was only at this stage of the negotiations that a role for the Commission as a whole in the proceedings was envisioned, suggesting that where it approved of the subcommission’s recommendations, those recommendations would become the recommendations of the Commission as a whole.34

30  P  eter F. Croker, “The Commission on the Limits of the Continental Shelf: Progress to Date and Future Challenges”, supra note 2, 215–232, at 215. 31  In this respect, the proviso has to be made that when it comes to describing the proceedings of the Third Conference, it becomes apparent that gaining a detailed overview of the process of negotiations is impossible. This is on account of how the Convention was negotiated during the Conference, with one of the main features of the proceedings being that detailed records were not kept. Gudmundur Eiriksson, “Satya N. Nandan’s Role in Drafting the Informal Single Negotiating Text: Aspects of the Preparatory Work for UNCLOS”, in Michael W. Lodge and Myron H. Nordquist (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan (Brill/Nijhoff, 2014), 37–50, at 38. 32  Virginia Commentary, supra note 22, at 1003–1005. 33  Id., at 1011. 34  Id., at 1016.

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These discretionary powers for the Commission as a whole may have been afforded to ensure consistency within the Commission, acknowledging also the prevalent discussions on a balanced geographic representation of States overseeing the coastal States’ delineation, and the desire expressed to reflect also the interests of land-locked and geographically disadvantaged States that have no continental shelf.35 One can therefore imagine that States wanted additional assurances that the majority of the members of the Commission, representing the full and balanced membership, found the coastal State to have been acting in conformity with the provisions of the Convention when it delineated its outer limits. Yet, whatever the reasons were for including the approval procedure of the Commission as a whole, the main functions continue to rest with the subcommissions. This is simply more logical from a procedural perspective, given the number of submissions received by the Commission. If all twenty-one members were to consider thoroughly the mountain of data accompanying all submissions, the delineation of the outer limits of continental shelves and, accordingly, the boundaries of the Area, would become an unimaginably lengthy process. This would not only impact the exercise by coastal States of their sovereign rights, but it would also forestall activities in the Area. If it can be concluded that the Commission acted ultra vires when it amended the Subcommission’s Recommendations, that in turn raises the question: What weight do its amendments have?36 One answer is simply that the amendments are null and void. The Commission is a treaty body and as such it is only endowed with those powers conferred to it by the States Parties to the Convention, its constituent instrument.37 Iceland could then argue that only the Subcommission’s Recommendations remain, justifying that it will work based on those only. A possible scenario following the airing of such arguments, however, would be that the Commission may be inclined to act on its own initiative to review its previous treatment of the Subcommission’s Recommendations. 4.4 Iceland Requests an Advisory Opinion Another possible avenue by which Iceland will react to the Commission’s amendments is that Iceland will, in cooperation with some other State(s), seek an Advisory Opinion from the International Tribunal for the Law of the Sea 35  Id., at 1012 and 1014. 36  On the notion of ultra vires acts, see Enzo Cannizzaro and Paolo Palchetti, supra note 27, at 365. 37  Id.

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on the legal interpretation of article 76, paragraph 6.38 While this may not be Iceland’s first recourse, it could be a possible reaction to a prolonged backand-forth process. According to article 138, paragraph 1, of the Rules of the Tribunal:39 The Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion. As provided in article 138, paragraph 2, of the Rules, this is subject to a request being transmitted to the Tribunal “by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal.” One commentator has noted that this procedure could, inter alia, be sought where “a number of coastal States whose continental shelf claims are affected by the provisions of submarine ridges would seek clarification in order to more effectively make their claims.”40 The Convention expressly provides for advisory jurisdiction in article 191 for the Tribunal’s Seabed Disputes Chamber. Accordingly, it has advisory jurisdiction as regards legal questions arising within the scope of activities of two of the organs of the International Seabed Authority, its Assembly and its Council.41 Advisory jurisdiction on other matters is not expressly conferred on the full Tribunal in its constituent instruments. This had raised the question whether the Tribunal would, by exercising advisory jurisdiction, be acting ultra vires.42 This question has now been resolved in the Tribunal’s first Advisory 38  See generally on seeking advisory opinions under such circumstances: Gudmundur Eiriksson, “The Case of Disagreement Between a Coastal State and the Commission on the Limits of the Continental Shelf”, supra note 2, 256–262, at 259–260. 39  I TLOS, “Rules of the Tribunal”, ITLOS/8, 17 March 2009. 40  Gudmundur Eiriksson, supra note 38, at 260. 41  The first request to the Seabed Disputes Chamber of the Tribunal for an Advisory Opinion came in May 2010 from the International Seabed Authority pursuant to article 191 of the Convention, requesting an opinion on the legal responsibilities and obligations of States sponsoring persons and entities with respect to the Area. Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion of 1 February 2011, Case No. 17, 2011 ITLOS Reports 10. The Advisory Opinion given in February 2011 was widely welcomed by the international community. Tom Ruys and Anemoon Soete, “‘Creeping’ Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea”, (2016) 29(1) Leiden Journal of International Law, 155–176, at 156. 42  Some commentators suggest that an amendment to the Convention expressly conferring an advisory jurisdiction on the Tribunal is timely. Id., at 176; Yoshifumi Tanaka, “Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory

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Opinion under article 21 of its Statute43 rendered on 2 April 2015 at the request of the Sub-Regional Fisheries Commission, a commission formed by seven States to regulate fisheries off the coast of West Africa.44 In the Opinion, the Tribunal began with an in-depth consideration as to whether it had advisory jurisdiction. It first drew attention to articles 16 and 21 of the Statute, and article 138 of the Rules. Article 16 reads: The Tribunal shall frame rules for carrying out its functions. In particular it shall lay down rules of procedure. Article 21 provides: The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.45 In its Advisory Opinion, the Tribunal first set out the arguments for and against its exercise of advisory jurisdiction.46 It further clarified that the Annexes to Opinion of 2015”, (2015) 14 The Law and Practice of International Courts and Tribunals, 318–339, at 319. 43  Statute of the International Tribunal for the Law of the Sea, Annex VI to the Convention (hereinafter “the Statute”). 44  Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, Case No. 21, (hereinafter “2015 Advisory Opinion”). The Tribunal’s advisory jurisdiction was not uncontested. During the deliberations, twenty-two States submitted written statements of whom ten took the position that the full Tribunal lacked advisory jurisdiction. Yoshifumi Tanaka, supra note 42, at 319. 45  I TLOS, 2015 Advisory Opinion, supra note 44, at para. 39. 46  Id. The Tribunal lists the main arguments advanced against its advisory jurisdiction, namely: the lack of a reference in the Convention (para. 40), which further suggests the drafters didn’t intend for there to be advisory jurisdiction (para. 45); the Tribunal does not have implied powers to confer the jurisdiction upon itself (para. 41); article 138 of the Rules cannot serve as a basis for advisory jurisdiction because procedural provisions cannot override the provisions of the Convention (para. 42); article 21 of the Statute must be read with article 288, paragraph 2, of the Convention which provides that the Tribunal has jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention (para. 43) and, moreover, article 288 is in Part XV of the Convention entitled “Settlement of Disputes” (para. 44); and the word “matters” in the phrase “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal” in article 21 of the Statute refers to contentious cases, similarly as the same word in Article 36, paragraph 1, of the Statute of the International Court of Justice (para. 46). The Tribunal also traces the arguments

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the Convention, including Annex VI, the Tribunal’s Statute, form an integral part of the Convention according to article 318. Therefore, article 21 of the Statute is not subordinate to article 288 of the Convention.47 The Tribunal, in finding that it had advisory jurisdiction, noted: Article 21 of the Statute … deals with the “jurisdiction” of the Tribunal. It provides that the jurisdiction of the Tribunal comprises three elements: (i) all “disputes” submitted to the Tribunal in accordance with the Convention; (ii) all “applications” submitted to the Tribunal in accordance with the Convention; and (iii) all “matters” (“toutes les fois que cela” in French) specifically provided for in any other agreement which confers jurisdiction on the Tribunal…. The words all “matters” … should not be interpreted as covering only “disputes”, for, if that were to be the case, article 21 of the Statute would simply have used the word “disputes”. Consequently, it must mean something more than only “disputes”. That something more must include advisory opinions, if specifically provided for in “any other agreement which confers jurisdiction on the Tribunal.” … The Tribunal wishes to clarify that the expression “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal” does not by itself establish the advisory jurisdiction of the Tribunal. In terms of article 21 of the Statute, it is the “other agreement” which confers such jurisdiction on the Tribunal. When the “other agreement” confers advisory jurisdiction on the Tribunal, the Tribunal then is rendered competent to exercise such jurisdiction with regard to “all matters” specifically provided for in the “other agreement”. Article 21 and the “other agreement” conferring jurisdiction on the Tribunal are interconnected and constitute the substantive legal basis of the advisory jurisdiction of the Tribunal…. The argument that it is article 138 of the Rules which establishes the advisory jurisdiction of the Tribunal and that, being a procedural provision, article 138 cannot form a basis for the advisory jurisdiction of the Tribunal is misconceived. Article 138 does not establish the advisory jurisdiction of the Tribunal. It only furnishes the

in favour of the Tribunal’s exercise of advisory jurisdiction as follows: article 21 of the Statute serves as sufficient legal basis by itself as it confers jurisdiction on the Tribunal for “all matters”, phrasing which can include advisory jurisdiction (para. 48); article 21 of the Statute is not subordinate to article 288, paragraph 2, but rather is complementary to it (para. 48); the purpose of article 21 of the Statute is, inter alia, to provide room for States to enter into agreements conferring jurisdiction on the Tribunal (para. 49); and more. 47  Id., at para. 52.

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prerequisites that need to be satisfied before the Tribunal can exercise its advisory jurisdiction.48 The Tribunal thereby settled the question of whether it has advisory jurisdiction. There is consequently the possibility that Iceland with other States could request such an opinion. There are, then, three criteria which must be fulfilled in order for Iceland to seek an advisory opinion. First, there must be an international agreement related to the purposes of the Convention which specifically provides for the submission to the Tribunal of a request for an opinion. Second, the agreement must authorize a body to make a request for an advisory opinion to the Tribunal and that body must make the request. Third, the request has to concern a legal question. The first step for Iceland would then be to enter into an agreement. This could potentially be with other States which have an interest in paragraph 6 of article 76 of the Convention. The States involved could adopt an international agreement specifically aimed at clarifying the interpretation of this provision. The agreement must specifically provide for the submission to the Tribunal of a request for an advisory opinion. Such a provision was included in article 33 of the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission, which conferred advisory jurisdiction on the Tribunal and resulted in its 2015 Advisory Opinion:49 The Conference of Ministers of the SRFC may authorize the Permanent Secretary of the SRFC to bring a given legal matter before the International Tribunal of the Law of the Sea for advisory opinion.

48  I d., at paras. 54, 56, 58–59. The Tribunal also addressed the arguments that “all matters” meant the same as in the Statutes of the Permanent Court of International Justice and the International Court of Justice: “The argument that the expression all “matters” should have the same meaning here as it has in the Statutes of the [Permanent Court of International Justice] and the [International Court of Justice] is not tenable. As the Tribunal held in the MOX Plant Case, ‘the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires.’” Id., at para. 57. 49  Id., at para. 62.

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Secondly, there must be an authorization in the agreement for a body to request an advisory opinion. This could be a body set up by the States in question, such as a Secretariat in charge of overseeing the agreement. Thirdly, the request must concern a legal question, which could be the legal interpretation of article 76, paragraph 6, including its application to hot spot/ ridge interaction regions such as the Reykjanes Ridge area. It should be recalled, however, that even if the previous conditions are met, it remains for the Tribunal to exercise its discretion as to whether or not to render an advisory opinion.50 5

Conclusion

While the relevant terms in article 76 of the Convention are far from clear, it can be argued that, based on the main prevailing definitions, Reykjanes Ridge should be classified as a submarine elevation that is a natural component of Iceland’s continental margin and not as a submarine ridge. Indeed, this was the common understanding of Iceland and the Subcommission following their thorough assessment of the relevant data and interpretation of the Convention’s provisions. An internal disagreement within the Commission, however, resulted in an unreasoned and inconclusive amendment to the Subcommission’s Recommendations. This has put Iceland in an undesirable position and one may expect that it would be reluctant to accept a classification of Reykjanes Ridge as anything but a submarine elevation. The Icelandic Government has several options open to it in deciding how to react to the situation at hand. It remains to be seen what Iceland’s reaction will be. 50  I d., at paras. 70–77, based on the wording “may give an advisory opinion” in article 138 of the Rules (emphasis added). See also article 65, paragraph 1, of the Statute of the International Court of Justice: “may give an advisory opinion”.

Chapter 15

Classification of Seafloor Highs in the Central Arctic Ocean Bjørn Kunoy 1

Introduction

Five States have coasts that abut the Central Arctic Ocean. These are Canada, Denmark/Greenland, Norway, Russia and the United States of America. All five coastal States have claims of entitlements to the seabed in parts of the Central Arctic Ocean. Three of these States have, consistent with article 76(8) of the United Nations Convention on the Law of the Sea1 (LOSC), transmitted fully fledged submissions in regard to areas in the Central Arctic Ocean. Norway was the first State to receive final recommendations from the Commission on the Limits of the Continental Shelf (CLCS),2 while Russia was the first State to fulfil the obligation under article 76(8) of LOSC3 but was requested to make a revised submission, an endeavor which was achieved in 2015,4 the consideration of which is currently pending. Denmark fulfilled its obligation in December 20145 and most likely will have to await 10–15 years until the Partial Submission will be examined by the CLCS. More recently, Canada submitted a Partial Submission in regard to the Arctic Ocean in May 2018.6 The United States of America is in 1  1833 UNTS, 396 (entered into force on 16 November 1994). 2   See recommendations of the CLCS: http://www.un.org/depts/los/clcs_new/submissions _files/nor06/nor_rec_summ.pdf. 3  See Executive Summary of the Russian Federation in regard to the Submission of 20 December 2001 http://www.un.org/depts/los/clcs_new/submissions_files/submission_rus.htm. 4  See Executive Summary of the Russian Federation in regard to the Partial Revised Sub­ mission in respect of the Continental Shelf of the Russian Federation in the Arctic Ocean of 3 August 2015, http://www.un.org/depts/los/clcs_new/submissions_files/submission_rus _rev1.htm. 5  The Partial Submission of the Kingdom of Denmark was transmitted to the Secretary-General of the United Nations on 15 December 2014. See http://www.un.org/depts/los/clcs_new/ submissions_files/submission_dnk_76_2014.htm. 6  The Partial Submission of Canada was transmitted to the Secretary-General of the United Nations on 18 May 2018. See https://www.un.org/Depts/los/clcs_new/submissions_files/ can1_84_2019/CDA_ARC_ES_EN_secured.pdf. Note on Preliminary Information Indicative of the Outer Limits of the Continental Shelf of Canada was transmitted on 6 December 2013. See http://www.un.org/depts/los/clcs_new/submissions_files/preliminary/can_pi_en.pdf.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_017

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the process of analysing the data that it has collected in the Arctic in support of a future submission.7 In order to extend entitlement beyond 350 nautical miles (M) from the baselines from which the breadth of the territorial sea is measured (baselines), it is a requisite that the seafloor high that generates outer continental shelf entitlement is a submarine elevation that is a natural component of the continental margin (SENCCM) and therefore subject to either of the constraints in paragraph 5 of article 76.8 It follows from the Executive Summaries of Russia, Denmark and Canada9 that they consider the Lomonosov Ridge a SENCCM and thus a generative feature of entitlement the delineation line of which is incumbent upon either of the constraints in paragraph 5 of article 76. In so far as concerns the Alpha-Mendeelev Ridge System, Russia and Canada appear also to consider it a SENCCM while Denmark observes that the collected data does not support its “classification as a submarine elevation that [is a] natural component of Northern Continental Margin of Greenland”.10 It is thus apparent from the observation of Denmark that it does not necessarily exclude that the Alpha-Mendeelev Ridge System can constitute a SENCCM but refrains from pursuing this further in the apparent absence of sufficient data in support of such classification. This Chapter looks into the legal framework that governs the classification of seafloor highs as submarine elevations that are natural components of the continental margin under article 76(6) of LOSC.11 Where appropriate, analogies are made to the relevant seafloor highs in the Central Arctic Ocean but without a case study of the Central Arctic Ocean. Further, this analysis is undertaken pursuant to legal hermeneutics only, i.e. without examining the recommendations of the CLCS in so far as concerns classification of seafloor 7  This Chapter will not seek to determine whether the procedure under article 76 and Annex II to LOSC is open for non-States Parties to LOSC. 8  Article 76(5) of LOSC provides: “The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres”. 9  In the Preliminary Information of 2013, Canada stated: “Throughout, the areas of continental shelf extend beyond 200 nautical miles from the territorial sea baselines of Canada and, on the Alpha and Lomonosov Ridges, beyond the 350 nautical mile constraint”. 10   Excerpt from the Executive Summary of the Partial Submission of Denmark of 15 December 2014. 11  For a more detailed analysis of this question, see B. Kunoy, “Classification of Seafloor Highs according to Legal Hermeneutics”, (2020) 10(2) Asian Journal of International Law, 2020 (forthcoming publication).

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highs in other submission areas. It is concluded that, according to the ordinary meaning of paragraph 6 of article 76 of LOSC, the classification of a seafloor high as a SENCCM is not contingent upon geometry but geology, from which it will be concluded that the fact that a seafloor high is a plateau-like feature does not necessarily imply that it is a SENCCM. Conversely, a seafloor high sharing ridge-like characteristics can constitute a SENCCM. 2

Background

Several typologies of seafloor highs are enumerated in article 76 of LOSC, the classification of which has a direct impact on the maximum extent of entitlement to the continental shelf. The most favourable typology in terms of maximizing the seaward extent of entitlement to the continental shelf is “submarine elevations that are natural components of the continental margin”.12 These seafloor highs may generate entitlements, which are constrained either by a line drawn between fixed points not exceeding “350 nautical miles from the baselines from which the breadth of the territorial sea is measured” (distance constraint) or not exceeding “100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres”13 (depth constraint). The depth constraint allows the establishment of outer limits, which, in principle, can go far beyond the distance constraint.14 By contrast, if the seafloor high is a submarine ridge, the outer limits of its continental shelf may, pursuant to article 76(6), not extend beyond 350 M from the baselines.15 It will therefore be no surprise that coastal States with claims to the continental shelf beyond 200 M are eager to consider the relevant seafloor highs, on which the outer limits of the continental shelf are based, as SENCCM rather than submarine ridges. There is no case law on which States Parties to LOSC may rely in order to bolster their understanding of article 76(6) of LOSC. It is thus no surprise that the States Parties’ latitude and leverage for bending their respective 12  Excerpt from article 76(6) of LOSC. 13  Excerpts from article 76(5) of LOSC. 14  Reference is illustratively made to the recommendations of the CLCS in regard to the Submission made by Australia on 15 November 2004, adopted on 9 April 2008, in particular the endorsement of classifying the Kerguelen Plateau as a SENCCM, which resulted in outer limits extending almost 800 M from the baselines. 15  Article 76(6) provides that “on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured”.

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understandings of article 76(6) appear not only extensive but will also differ on significant points. Below, the setting is characterized in four interrelated understandings. Firstly, there are States that e.g. consider that all ridge-like features are necessarily “submarine ridges”16 within the meaning of article 76(6) on which the outer limits are constrained by the 350 M distance line. According to this line of thinking, the Lomonosov Ridge, assuming its geometry is akin to a ridge-like feature, would not be able to generate entitlement that would go beyond 350 M from the baselines, an assertion which the relevant coastal States in the Central Arctic Ocean do not share. Secondly, there are States that consider a SENCCM any feature which has morphological characteristics similar to those enumerated in the non-exhaustive list of seafloor highs in the second sentence of paragraph 6 of article 76. Thirdly, there are States that do not attach geometry any apparent role for the purpose of classifying a seafloor high as a SENCCM. According to this approach, ridge-like features, e.g. such as the Lomonosov Ridge, can constitute a SENCCM notwithstanding the first sentence of paragraph 6 of article 76, which provides that “on submarine ridges, the outer limit of the continental shelf shall not exceed 350 [M] from the baselines”,17 provided appropriate evidence supports such a classification. Fourthly, there are States that consider that geological affinity between the land mass and any of the submarine highs that generate entitlement is a requisite in order for any such feature to constitute a SENCCM. The relevant typologies in article 76(6) are constitutive of legal categories, which hitherto have not been included in any treaty provision, let alone been conceived at the international level, and do entail interpretative difficulties. The lack of a common understanding in relation to these points of substance is symptomatic of the difficulties that arise in the interpretation of article 76 and merit recalling the observation of Judge Oda, according to which article 76 of LOSC “is essentially a product of compromise – not consensus – between the conflicting positions of various groups which have different, and sometimes opposite, interests in the use of sea-bed areas”.18 An interpretation according to the general rule19 alone may not in these circumstances be considered apposite, provided the circumstances otherwise would allow recourse to supplementary rules of interpretation as set forward in article 32 of the Vienna Convention on the Law of Treaties (Vienna 16  Excerpt from article 76(6) of LOSC. 17  Id. 18  Separate Opinion of Judge Shigeru Oda, Tunisia/Libya, ICJ Rep 1982, 220, para. 104. 19  Article 31(1) of the Vienna Convention on the Law of Treaties provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”.

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Convention).20 It is noteworthy that there is no official legislative history of LOSC. While this does not necessarily exclude recourse to the informal travaux préparatoires,21 other challenges are susceptible to rise, which may have an impact on the use of supplementary means of interpretation in so far as concerns paragraph 6 of article 76. One relevant aspect in this regard is that during the Third Conference on the Law of the Sea (Third Conference), many of the discussions that resulted in this paragraph were, to great miscontentment of several States, conducted on an exclusionary basis à huis clos. Thus, the question arises whether and, in the affirmative, to what extent such documents are susceptible of being considered relevant for the purposes of establishing admissible supplementary sources of interpretation.22 3

Second Sentence of Paragraph 6 and Legal Hermeutics

Given the context, within which appeared what is now paragraph 6 of article 76, it will be no surprise that this provision does not contain a definition or a list of criteria, which unambigously provide the ramifications for determining which seafloor highs are SENCCM. Yet, a careful reading of paragraph 6 does allow a determination of substantive criteria that guide the classification of seafloor highs as SENCCM. This conclusion is largely based on the syntactic structure of the second sentence of the paragraph. 3.1 Relevance of Travaux Préparatoires It is well known and documented that there were formal and informal negotiations during the Third Conference. Amendments to the negotiation texts were not set forward in accordance with ordinary principles applicable to most multilateral negotiations. The chairs of the main committees would address the plenary with amendment proposals only in so far as such proposals would increase the overall possibilities for reaching agreement on a package deal. 20  Concluded at Vienna on 23 May 1969, UNTS, vol. 1155, 1–18232. 21  Article 32 of the Vienna Convention provides: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obsure; or (b) Leads to a result which is manifestly absurd or unreasonable”. 22  The International Law Commission (ILC), in its considerations of the draft articles that resulted in the Vienna Convention, decided deliberately not to predetermine which documents were constitutive of travaux préparatoires and preferred to leave that decision to the circumstances of each case. See YILC, 1966, vol. I, 199–201.

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It is thus extremely difficult, if not impossible, to determine with reasonable certitude an intention that the participants shared and which resulted in the approval or rejection of a particular position, at least in so far as concerns texts which were agreed on an exclusionary basis in closed foras. Paragraph 6 is a provision whose genesis resulted from meetings à huis clos, which obviously is a fact in the consideration whether any such related documents can be considered admissible as travaux préparatoires. It appears that the reason, for which the margineers actively, and a priori constructively, sought to find a solution to the footnote reference to paragraph 3 in the first revision of the Informal Composite Negotiating Text (ICNT) and, in a corollary manner, the inclusion of a paragraph 5 bis, was due to the fact that if the question would be referred to a vote, they would most likely lose. The argument that there was already general consensus on paragraph 5 during the discussions that resulted in the second sentence of paragraph 3 and paragraph 5 bis, from which it could be asserted that all features which are not submarine ridges sensu stricto are necessarily SENCCM, fails to take the abovementioned important element into account. Further, a general dissatisfaction appeared during the ninth session about the manner in which the Chair of the second committee considered proposals that were set forward regarding paragraph 5 bis. Singapore is quoted for having mentioned that these consultations “had taken place primarily among the margineers and between the margineers and the two super Powers, and had in any case been insufficient to gauge the reactions of other delegations to the addition of a new paragraph 6 to article 76”.23 In a more general statement, but reflecting the same concerns as Singapore, the delegate of Peru stated that it: regretted the fact that the informal text was again to be revised without any documented evaluation of the ‘package agreement’. The informality of the negotiations on substantive articles, in which there was no record of delegations’ arguments, had prevented reasoned consideration of the problems involved and of alternative solutions, while the submission of partial amendments, with brief comments, did little to remedy the situation.24 A further statement of Singapore during the tenth session is also of particular interest in this regard, observing that “questions had been asked to which no satisfactory answers had been forthcoming. Article 76 of the revised 23  Off. Rec., vol. XIII, 126th meeting, 2 April 1980, 11, para. 2. 24  Off. Rec., vol. XIII, 125th meeting, 2 April 1980, 6, para. 3.

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negotiating text … was itself already complex, and, unless the sponsors of the amendments could provide clear answers to the questions raised, greater confusion would be added to the text of the article”.25 The lack of possibilities of other States to react to the proposals can be seen to affect an assessment that a particular proposal reflected a certain wish of the participants in the Third Conference. An observation from a French scholar concerning the introduction of paragraph 6 appears relevant in this context: “peut-on attendre ‘des travaux préparatoires’ autre chose qu‘une explication, non pas du sens des mots, mais du ‘chaos’ terminologique auquel ils ont conduit?”.26 The circumstances under which paragraph 5 of article 76 was included in the first revision of the ICNT, in conjunction with the conditions prevailing the inclusion of the then paragraph 5 bis in the second revision of the ICNT, question the very reliability to have recourse to the apparent fragmented sources from the travaux préparatoires in so far as concerns paragraph 6 of article 76. The interpretation of a multilateral treaty entails to a large extent identifying a common intention of the participants. For obvious reasons, this task becomes more difficult if there are various, for not to say contradictious, statements made.27 Referring to the travaux préparatoires under these circumstances, in particular in relation to such controversial provisions as paragraph 6 of article 76 of LOSC, confirms the inconclusiveness of any common intention, rather than dissipating a common intention. Indeed, it appears that paragraph 6 of article 76 is no exception in so far as concerns that “[i]n the case of multilateral agreements, the records of conference proceedings, treaty drafts, and so on may be confused or inconclusive”.28 The observations of an 25  Off. Rec., vol. XIII, 126th meeting, 2 April 1980, 11, para. 2 (emphasis added). 26  Michel Voelckel, “Qu‘est-ce qu‘une ‘dorsale’ au sens de l‘article 76 de la Convention de 1982 sur le droit de la mer? Quelques remarques et commentaires à propos des revendications sur le plateau continental arctique”, in R. Casado Raigon, G. Cataldi (eds), L‘évolution et l‘état actuel du droit international de la mer: Mélanges de droit la mer offerts à Daniel Vignes (Bruylant, Brussels, 2009), 954. 27  It is fair to say that there is a general disagreement among scholars as to the question which documents, and under which circumstances, are relevant for the purpose of article 32 of the Vienna Convention. Some advocate a reluctance to rely on States‘ position except if other States have acquiesced, or otherwise accepted that position (see Charles de Visscher, Problèmes d‘interprétation judiciaire en droit international public (Pédone, Paris, 1963), 112–117), while others argue for the inclusion of all preparatory work that emerges during the relevant negotiations but in which particular attention should be given to such sources that demonstrate conclusively a common intention among the participants (See Eric Canal-Forgues, “Remarques sur le recours aux travaux préparatoires dans le contentieux international”, (1993) RGDIP, 905–910). 28  I. Brownlie, Principles of Public International Law (Oxford University Press, 1998, 5th ed.), 638.

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ILC member, Milan Bartos, with regard to article 32 of the Vienna Convention, appear particularly lucid, and, by way of analogy, relevant, in so far as concerns compromise undertakings in multilateral conferences to which paragraph 6 of article 76 of LOSC would be no exception: did the compromise also cover the notion of the ‘ordinary meaning’ of the words used? All members could think of international conferences … compromise amendments had been submitted for the purpose of achieving a majority in order to save the conference and enable the text to be authenticated. Such amendments sometimes came near to rendering the text meaningless by adding phrases which were inconsistent with the rest. That was why, if the preparatory work was taken into consideration for the purpose of discovering the origin of the ideas underlying a treaty, and if last-minute amendments – sometimes forgotten and not recorded – were disregarded, there was a risk of losing sight of the meaning which the majority had considered as the ‘ordinary meaning’, and which had enabled the treaty to be adopted.29 To summarize, fragmentary excerpts from different sources may obviously lead to flawed understandings.30 The second sentence of article 76(6) presents itself as a provision to which the travaux préparatoires may be of little use if only because it fits with the description of Philip Allott in the, now infamous, comment that a treaty “is a disagreement reduced to writing”,31 the contours of which were agreed to on an exclusionary basis without any formal records. Therefore, the interrelations of the apparent typologies need to be studied according to the general rule of interpretation, the substantive meaning of which clarifies the constitutive criteria for SENCCM. 3.2 Textual Approach The second sentence of paragraph 6 of article 76 provides in its first part that the preceding sentence, according to which the outer limits shall not exceed 29  Y ILC, 1966, Vol. I, 192, paras. 95–96. 30  In the Qatar v Bahrain Case, the ICJ stressed in this regard that “preparatory work must be used with caution in the present case, on account of their fragmentary nature”, ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Juris­ diction and Admissibility, ICJ Rep 1995, 21, para. 41. Yet, Judge S. Schwebel and Judge Shahabuddeen, respectively, considered that the travaux préparatoires in that particular situation were sufficient for the purposes of article 32 of the Vienna Convention. 31  Philip Allott, “The concept of international law”, (1999) 10(2) European Journal of Inter­ national Law, 43.

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350 M on submarine ridges, does not apply to SENCCM. A non-exhaustive list of seafloor highs that are susceptible of constituting SENCCM is included in paragraph 6. According to article 76(6): Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.32 An understanding, according to which any of the seafloor highs enumerated in the second sentence of paragraph 6 is ipso jure a SENCCM, would imply that the classification of seafloor highs would to some extent become a matter of geometric determination. Thus, provided that e.g. the Alpha-Mendeelev Ridge System is a rise within the meaning of the second sentence of paragraph 6, there would be no requirement to demonstrate any substantitve critera in support of such a putative classification. More importantly, from treaty interpretative point of view, this approach would imply that the first sentence of paragraph 6 would become an exception to the second sentence of paragraph 6, notwithstanding the textual syntax consistent with which the first sentence of paragraph 6 is an exception to paragraph 5 of article 76. By contrast, an understanding, consistent with which any seafloor high, whether it is listed or not in paragraph 6, is eligible as basis for constructing the delineation line pursuant to the depth constraint, would in fact imply that seafloor highs that obviously do not share ridge-like characteristics, such as plateaux, would not necessarily constitute SENCCM, notwithstanding their inclusion in the non-exhaustive list in the second sentence of paragraph 6. A question of corollary nature would then be whether a plateau, while not constituting a SENCCM, would necessarily constitute a submarine ridge?33 In other words, would e.g. the Alpha-Mendeelev Ridge System be a submarine ridge within the meaning of the first sentence of paragraph 6, if the CLCS was of the view that the submitting coastal State had not lifted the onus to substantiate that it could be classified as a SENCCM? In support of the understanding that any plateau-like feature is necsesarily a SENCCM, it is noteworthy that there was apparent agreement in the first revision of the ICNT34 on paragraph 5, prior 32  Text of article 76(6) of LOSC. 33   On this issue, see B. Kunoy, “Classification of Seafloor Highs according to Legal Hermeneutics”, supra note 11. 34  A/CONF.62/WP.10.

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to the inception of paragraph 5 bis in the second revision of the ICNT. Thus, the participants had, arguendo, upon the circulation of the first revision of the ICNT, agreed that either of the constraints in paragraph 5 could be used to all situations. Accordingly, the first sentence in what became paragraph 6 is an exception to its second sentence and the latter would be a safeguard clause seeking to limit the scope in the first sentence to only relate to ridges stricto sensu. An assertion that the second sentence of paragraph 6 would imply substantive criteria, to which any seafloor high should comply in order to be classified as a SENCCM, would accordingly imply additional restrictions that were not intended by the participants. This would arise as there was agreement on paragraph 5 prior to the inception of paragraph 6. Yet, such a reading is difficult to support. Not only would it necessarily imply that the second sentence in paragraph 6 would be superfluous, but the ordinary meaning of the terms of paragraph 6, together with its context, object and purpose, would also not support such a construction. It is recalled that the latter part of the second sentence of paragraph 6 includes a non-exhaustive list of seafloor highs that can be considered SENCCM. These are “plateaux, rises, caps, banks and spurs”.35 The use of such as prior to the above-mentioned enumeration makes it clear that the list in question is non-exhaustive. Yet, it would be erroneous to contend that any feature which falls within the category of the enumerated seafloor highs would necessarily constitute a SENCCM and thus allow a delineation pursuant to the depth constraint. This arises as immediately subsequent to the phrase such as, referred to above, and immediately prior to the non-exhaustive list of seafloor highs, the possessive pronoun its is included, whose subject is the continental margin: This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.36 An interpretation, in accordance with which any of the seafloor highs appearing in the non-exhaustive list of seafloor highs in the second sentence of paragraph 6 would necessarily constitute a SENCCM, would disregard central provisions in the remaining part of that sentence to which the above-mentioned possessive pronoun is an integral part. By way of illustration, were the possessive pronoun not included, paragraph 6 would have provided accordingly:

35  Excerpt from article 76(6) of LOSC. 36  Id. (emphasis added).

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This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as plateaux, rises, caps, banks and spurs. The above wording would lend support to an understanding that any of the features, which are listed in the second sentence of paragraph 6, are ipso jure SENCCM. This arises as the possessive pronoun its is omitted. That possessive pronoun refers to the subject continental margin. The object and purpose of the inclusion of the possessive pronoun appears thus to support the assertion that geometry has no role for the purpose of the application of paragraph 6 in so far as concerns the relation of the relevant seafloor highs with the land mass from which they constitute the submerged prolongation. It follows from the above that the non-exhaustive list of seafloor highs in the second sentence of paragraph 6 is not dispositive of which seafloor highs are natural components of a continental margin. The second sentence of paragraph 6 has also another syntactical intriguing element. The use of the relative pronoun that supports a more restrictive connotation than which. The latter is descriptive while the former indicates that none of the features which appear in the non-exhaustive list are necessarily SENCCM, but only those that are natural components of the continental margin. The relative pronoun that is a restrictive clause and not a mere parenthetical expression as the subsequent parts of the sentence depend upon it. By way of analogy, if the second sentence of paragraph 6 would have been conceived on the relative pronoun which, its textual construction would not have allowed to assert that the open compound submarine elevations would not be a stand alone concept, as the parts of the sentence subsequent to the relative pronoun would only be descriptive of the open compound submarine elevation. Thus, were the relative pronoun which included in paragraph 6, the remaining part of that sentence would provide additional descriptive information only. In that case, the open compound submarine ele­ vation would be a typology of seafloor highs for the purpose of paragraph 6. It would have read: This paragraph does not apply to submarine elevations, which are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. The above formula suggests that all submarine elevations are SENCCMs, as the relative pronoun which has a mere descriptive purpose by contrast to the use of the relative pronoun that, which is a restrictive clause. Yet, the fact that a relative pronoun being a restrictive clause is included in the second sentence

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of paragraph 6, in conjunction with the inclusion of the possessive pronoun its, further supports the assertion that the non-exhaustive list of seafloor highs in paragraph 6 is not dispositive of which seafloor highs are SENCCM. Thus, whether or not the Lomonosov Ridge is a ridge-like feature, or whether it could be considered to fall within the non-exhaustive list of seafloor highs in the second sentence of paragraph 6, is in no way dispositive of whether it is a SENCCM. To summarize, given the syntactic structure of the second sentence of paragraph 6, a seafloor high must be a natural component of the related continental margin in order to constitute a SENCCM, notwithstanding its general morphological characteristics. Consistent with the general rule of treaty interpretation, the second sentence of paragraph 6 does not allow an interpreation according to which all features that appear similar to those that are listed in the second sentence of paragraph 6 are necessarily SENCCM. Accordingly, geometry will not determine that the Alpha-Mendeelev Ridge System and/or the Lomonosov Ridge are SENCCMs. Only seafloor highs that are natural components of the continental margin are eligible for such a classification, the determination of which is dependent upon the fulfilment of substantive criteria. 3.3 Substantive Criteria The heading of point 7.3.1 of the Scientific and Technical Guidelines of the CLCS (S&TG) calls for particular attention. It is entitled submarine elevations, rather than submarine elevations that are natural components of the continental margin. This single understanding of the notion submarine elevation appears also elsewhere in the S&TG.37 This is susceptible of raising more than one eyebrow as the syntactic structure of paragraph 6 of article 76 does not provide foundation for asserting that the open compound submarine elevation is a stand-alone concept. Yet, more alarming is the fact that point 7.3.1 of the S&TG misquotes article 76(6) of LOSC with regard to a matter of substance. According to point 7.3.1, quoted above, “paragraph 6 includes a selection of highs: ‘such as plateaux, rises, caps, banks and spurs’. The phrase ‘such as’ implies that the list is not complete”.38 It is apparent that the quotation incorrectly excludes the possessive pronoun its immediately subsequent to such as. There is obviously no basis for assuming that the omission of the possessive pronoun is the result of an intentional approach of the CLCS, as it directly and in an unambiguous 37  Point 2.1.11 of the S&TG provides that “[s]ubmarine elevations are exempted from the provisions applied to submarine ridges. They are subject instead to the constraints provided in paragraph 5”. 38  Id.

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fashion respresents a misreading of paragraph 6. Yet, this can be seen unfortunate given, as mentioned earlier, that the inclusion of this particular possessive pronoun in paragraph 6 has substantive importance for the purposes of construing the meaning of SENCCM. The exclusion of the possessive pronoun its from paragraph 6 would in significant terms change its syntactic structure as it would lend support to an understanding that any of the features that appear in the non-exhaustive list are ipso jure SENCCM, notwithstanding their relation to the land mass from which they represent the submerged prolongation. Further, the inextricable corollary would be that it would be more difficult to assert that e.g. seafloor highs with ridge-like characteristics could constitute SENCCM. This understanding appears to lack any foundation in article 76(6) of LOSC. This omission is unfortunate. This arises, as, consistent with treaty interpretation rules, the inclusion of the above-mentioned possessive and relative pronouns provides basis for an understanding that any seafloor high, notwithstanding its geometric characteristics, should be a natural component in order to constitute a SENCCM,39 while its omission may lend support for a contrary interpretation. A determination of constitutive criteria of SENCCM is also premised on a proper understanding of article 76(3) of LOSC as the possessive pronoun its in the second sentence of article 76(6) refers to the notion continental margin. The negative definition in paragraph 3 of article 76 does not allow an interpretation, consistent with which the crustal structure of a ridge-like feature, or any other feature for that matter, determines whether a seafloor high is an integral part of the continental margin within the meaning of the first sentence of paragraph 3. However, a ridge-like feature, with which there is no geological affinity with the land mass from which it constitutes the submerged prolongation, can not be considered a natural component of the continental margin in question. By way of analogy, nothing appears to prevent a ridge-like feature from constituting a SENCCM provided the ridge-like feature is a natural component of the continental margin. Indeed, the notion submarine elevation appears in fact to be a mere elevation by reference to the adjacent areas on the seafloor. Thus, to argue that the second sentence of paragraph 6 operates according to geometric criteria, excluding ridge-like features from constituting

39  Yet, in any event, to the extent a provision of the S&TG conflicts with article 76 of LOSC, or its Annex II, it is treaty law that prevails. See in this regard the Letter dated 25 August 2005 from the Legal Counsel, Under-Secretary-General of the United Nations for Legal Affairs, addressed to the Chairman of the Commission on the Limits of the Continental Shelf, CLCS/46.

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SENCCM, would appear a contra legem interpretation. Yet, this does not provide a response to the question what are the criteria to constitute a SENCCM. A central consideration to conceive the constitutive criteria of SENCCM is an understanding of the concept “land mass”,40 the submerged prolongation of which the seafloor highs must be natural components in order to constitute a SENCCM. The dictionary does not list the open compound land mass but only the closed compound landmass, which in itself is illustrative of the concept continental margin, enshrined in paragraph 3 of article 76, being an autonomous legal concept. The Oxford University Dictionary defines compo­ nent as “a part or element of a larger whole”.41 If the open compound natural component is to have a substantive meaning other than natural prolongation, it can only be seen as a geological requirement failing which the notion natural component would appear a tautological expression.42 The reference to natu­ ral component in the second sentence must thus imply a high affinity of the seafloor highs constituting the continental margin with the land mass from which it constitutes the submerged prolongation. It is asserted that the ordinary meaning of the open compound natural component in this context can only be read to imply those parts of the seabed, which are an integral part and a derivative of the geological setting resulting in the creation of the land mass in question. This is also echoed in the relevant parts of the S&TG, in which the CLCS has enumerated criteria that determine which seafloor highs are SENCCM: The term ‘submarine elevations’ in paragraph 6 includes a selection of highs: ‘such as plateaux, rises, caps, banks and spurs’. The phrase ‘such as’ implies that the list is not complete. Common to all of these elevations is that they are natural components of the continental margin. This makes it relevant to consider the processes that form the continental margins and how continents grow. The growth of the present continents is and/ or was primarily caused by geological processes along the continental

40  Excerpt from article 76(3) of LOSC. 41  https://en.oxforddictionaries.com/definition/component. 42  The idea of a higher standard, different to the notion natural prolongation, in order to constitute a SENCCM, has also been expressed by other authors. See Jianjun Gao, “The Seafloor High Issue in Article 76 of the LOS Convention: Some Views from the Perspective of Legal Interpretation”, (2012) 43(2) Ocean Development & International Law, 118–132; Nuno Marques Antunes, Fernando Pimentel, “Reflecting on the Legal Technical Interface of Article 76 of the LOSC: Tentative Thoughts on Practical Implementation”, www.gmat .unsw.edu.au/ablos/ABLOS03Folder/PAPER3-1.PDF.

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margins (e.g., Rudnick, 1995). Consequently, the Commission will base its views on ‘submarine elevations’ mainly on the following considerations.43 The chapeau provision is clear in so far as concerns that the CLCS considers elements that relate to the growth of continents determinant for the purpose of classifying seafloor highs as SENCCM. All the listed elements relate to geology. To paraphrase the CLCS, for the purposes of classifying seafloor highs as SENCCM, the determinant factor is the understanding how “continents grow”,44 taking into account that the growth of continents is primarily caused by “geological processes along the continental margins”.45 Yet, the above chapeau provision is supplemented with implementing principles for active46 and passive47 continental margins only. The question arises whether it results from this provision that other typologies of continental margins cannot, in the view of the CLCS, constitute SENCCM, or at least not according to the same principles as those that are enshrined in point 7.3.1 of the S&TG. Yet, there is nothing in article 76 that lends support to an understanding that the classification of seafloor highs as SENCCM is contingent upon whether the continental margin, the physical continental margin, is active or passive. The contrary would in fact imply that article 76(6) of LOSC allows an exclusionary approach vis-à-vis the identification of continental margins that constitute SENCCM, which appears illusionary given that the continental shelf is a “legal concept”.48 In fact, a careful reading of the relevant recommendations of the CLCS lends support to an understanding that geological affinity between any seafloor high and the land mass, from which it is the submerged prolongation, is the determinant factor for any seafloor high to constitute a SENCCM. Thus, the fact that the creation of 43  Excerpt from point 7.3.1 of the S&TG (emphasis added). 44  Point 7.3.1 of the S&TG. 45  Id. 46  “In the active margins, a natural process by which a continent grows is the accretion of sediments and crustal material of oceanic, island arc or continental origin onto the continental margin. Therefore, any crustal fragment or sedimentary wedge that is accreted to the continental margin should be regarded as a natural component of that continental margin”, point 7.3.1(a) of the S&TG. 47  “In the passive margins, the natural process by which a continent breaks up prior to the separation by seafloor spreading involves thinning, extension and rifting of the continental crust and extensive intrusion of magma into and extensive extrusion of magma through that crust. This process adds to the growth of the continents. Therefore, seafloor highs that are formed by this breakup process should be regarded as natural components of the continental margin where such highs constitute an integral part of the prolongation of the land mass”, point 7.3.1(b) of the S&TG. 48  I CJ, Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment of 19 December 1978, ICJ Rep 1978, 36, para. 86.

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the Alpha-Mendeelev Ridge System does not relate to an active or passive margin does not have a bearing on the considerations that will determine whether it constitutes a SENCCM, at least in so far as concerns the eligibility to rely on the provisions of point 7.3.1 of the S&TG. 4

Conclusion

Being successful in the endeavour to classify a seafloor high as a SENCCM is a matter of significant importance. In some instances, it can be a matter of several thousands of square kilometers of continental shelf. From this background, the CLCS does face a delicate task when dealing with such matters. This becomes even more obvious when due account is given to the fact that coastal States may have a natural inclination to assert that any matter, on which the CLCS and the submitting coastal State would be in disagreement, is susceptible to infringe its sovereign rights. This is not an unlikely setting where the disagreement resonates on a matter, which is not technical or scientific sensu stricto, but inextricably linked to the fulfilment of the obligation incumbent upon the CLCS “to make recommendations in accordance with article 76”49 of LOSC. One important example is the question whether the conditions in article 76(6) of LOSC are fulfilled and thus allowing to classify a seafloor high as SENCCM. The ramifications of the above highlight the importance that the CLCS embraces a methodology of classification of seafloor highs as SENCCM which is undertaken in a transparent and consistent manner, and, needless to say, in a manner consistent with article 76(6). In the absence of any authoritative interpretation or relevant case law, which would conclusively shed light on the construction of article 76(6) of LOSC, such a task can in many regards be considered a walk on stilts. 49  Excerpt from article 3(1)(a) of Annex II to LOSC.

Part 6 Deep Seabed Mineral Resources and the Marine Environment

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Chapter 16

Environmental Impacts of Deep Seabed Mining Matthias Haeckel, Annemiek Vink, Felix Janssen and Sabine Kasten 1

Introduction

After limited progress since the first developments in the 1970s, the last decade has seen a steady increase of interest in mining of deep seabed minerals to secure mankind’s growing demand for raw materials. The EU is funding the development of marine mining technology through its “Blue Growth” strategy of the Horizon2020 programme, and the number of exploration contracts issued by the International Seabed Authority (ISA) has grown to 29, including extended licenses of the pioneer investors, China, France, India, IOM, Japan, South Korea, and Russia. In this context, the ISA is tasked with the drafting of regulations for the exploitation of marine mineral resources in the international seabed area (the “Area”), whilst protecting the environment from harmful and possibly large-scale and long-term damage. Ratification of the socalled “Mining Code” by the Council and Assembly of the ISA is anticipated to occur by 2020, as mining of deep-sea ores could begin within the next decade. Hence, it is timely to provide the ISA with a sound scientific basis regarding expected environmental impacts of deep seabed mining, not least to implement the highest possible environmental standards and to allow for informed decision-making on deep seabed mining projects by the ISA and human society through its numerous stakeholders. Impacts from mining activities on the marine environment will differ between resource types. Polymetallic nodules and cobalt-rich crusts are essentially two-dimensional resources of metal oxides covering large areas of deep-sea plains and seamounts, respectively,1 whereas massive sulphides form three-dimensional deposits extending tens to hundreds of metres into the subsurface.2 However, two processes appear to be shared between currently discussed mining technologies, (i) the removal of the surface of the seafloor, including its epifauna and infauna, and (ii) the creation of a plume consisting 1  Hein, J.R., Koschinsky, A., “Deep-Ocean Ferromanganese Crusts and Nodules”, (2014) 13(11) Treatise on Geochemistry (2nd ed. Elsevier Ltd), 273–291. 2  Hannington, M., Jamieson, J., Monecke, T., Petersen, S., Beaulieu, S., “The abundance of seafloor massive sulfide deposits”, (2011) 39 Geology, 1155–1158.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004437753_018

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of mineral debris and/or sediment that spreads with the bottom currents and will also blanket untouched seafloor habitats in the vicinity of the mined area. In this Chapter, we focus on the research conducted by the European project “MiningImpact”3 of the Joint Programming Initiative of Healthy and Productive Seas and Oceans (JPIO), which puts emphasis on the environmental consequences of polymetallic nodule mining. The other two resource types are thus only briefly touched upon on in this Chapter. 2

Technical Challenges of Manganese Nodule Exploitation

The exploration and future exploitation of polymetallic nodules is comparatively easier than that of massive sulphides or cobalt-rich crusts, since the manganese nodule resource lies on the seabed in extended fields as a two-dimensional deposit and essentially does not extend into the seafloor. Nevertheless, manganese nodules have not yet been extracted in large quantities worldwide, although international activities in the field of nodule exploration and the technical preparation for their metallurgical extraction and processing have increased considerably over the past ten years. All available concepts for the mining of manganese nodules assume that the nodules are collected mechanically or hydraulically by caterpillar-like vehicles moving along the seabed. The nodules are cleaned of adhering sediment in the so-called collector vehicle and are then crushed and transferred to a vertical riser system. Depending on the concept, the riser transports the nodules over more than 4000 metres to the installation platform at the sea surface by means of an air lifting process or by powerful material pumps. On deck, the nodules are dewatered and loaded onto bunker vessels (special cargo ships for raw materials) that transport them to onshore processing plants. Expected technical challenges are associated primarily with the reliable operation of the underwater technology over long periods (i.e. some 300 days a year) and with the lowest possible maintenance effort. Even though the basic technical components are already being used in offshore oil and gas production and in the coastal mining of gravel, sands and soap deposits, there is still no experience with the long-term operation of such technology in the deep sea under high pressure and far away from any coast. Many components of the collector, the riser system and the platform vessels are new developments that have yet to be tested under real conditions. One of the anticipated technical challenges is the independent manoeuvrability of 3  https://miningimpact.geomar.de.

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the collector system on the seabed. How deep will the heavy collector sink into the soft, water-saturated sediments? How does the particle-loaded sediment cloud suspended by the collector, with its high density of fine particles, affect the technical systems of the collector itself, and how far does it spread? How efficient is the nodule collection mechanism, i.e. what percentage of the nodule coverage can actually be harvested? Will the vertical transport system to the sea surface be clogged by the lifted nodules and, hence, do the nodules need to be crushed in the collector system before entering the riser system? From an environmental point of view, it is important to develop mining technology that is as little invasive as possible, complying with the guidelines “Best Available Technology” (BAT) and “Best Environmental Practice” (BEP) of the United Nations Environment Programme (UNEP). This means developing mining technology that reduces sediment suspension (sediment cloud) and input of particle-loaded return water (riser system) into the water column as much as possible and meets the highest environmental standards. Since it is currently not possible to determine the most suitable method with the aid of model calculations, only on-site tests within the framework of component tests or pilot mining tests can provide clarity and proof of the basic functionality of the system. 3

Technical Challenges of Environmental Monitoring

As a general rule that is being incorporated into the exploitation regulations, all deep seabed mining activities must be accompanied by comprehensive environmental monitoring efforts. This is just as much a challenge as the development of the mining technology itself. Conducting environmental monitoring is and will be a permanent task for industry in collaboration with science. This will require a considerably more comprehensive environmental programme than that of the exploration work that is currently being conducted by contractors, which relies more on conventional measurement and sampling technology. Environmental monitoring around deep seabed mining operations basically requires a sufficient spatial and temporal resolution of measured variables as well as the use of validated and standardized procedures to ensure comparability and high quality of the data. Furthermore, state-of-the-art data management procedures, an extremely precise underwater navigation, if necessary using satellite technologies (data transfer ship to shore), as well as an adequate energy supply at the seafloor, are required. The collected environmental information should be made available immediately to the ISA and the public to provide the

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ISA, as well as independent scientists and other stakeholders, with the means to check environmental performance and its compliance with the respective project-specific impact assessments and management plans. Conventional underwater monitoring technologies generally require large amounts of ship time, as AUVs (autonomous underwater vehicles) and ROVs (remotely operated vehicles) can only be deployed from suitable vessels (unlimited deployment time via cable or autonomous with a maximum operating time of about 15 hours). Environmental time series data sets, at best, can be collected from individual sensors or widely distributed sensor arrays in the water column and/or on the seabed that have to be maintained typically at least once a year. Due to the dependence on support vessels, such monitoring is time- and cost-intensive, and may not achieve the desired spatial and temporal resolution. Furthermore, the sensor portfolio for in situ biogeochemical fluxes in the deep sea beyond water depths of 4000 metres is currently still limited (e.g. for the determination of nutrient or metal concentrations at the seafloor). Many developments are still in the prototype stage, while international teams consisting of scientists and engineers are currently evaluating environmental monitoring methods that are already operational. Optimal technologies for environmental monitoring would be, for example, autonomous measuring robots (benthic crawlers and swarms of underwater drones, such as gliders and AUVs) for continuous measurements of physicachemical properties (e.g. salinity, pH, oxygen, turbidity, temperature, bottom currents as well as acoustic and optical observations of topography and faunal abundance at the seabed). Both crawlers and drones could be supplied with energy on site at the seafloor via so-called “docking stations”, thereby allowing for significantly increased spatial and, above all, temporal resolution of the measurements. All in all, however, an innovative further development of monitoring technologies of all kinds requires that the market be made visible to companies and that the relevant monitoring tasks are included in ISA’s regulations and recommendations. With appropriate funding, monitoring technologies can and should be standardized and be ready for the market when needed – involving corresponding development steps from prototype to commercial application. 4

European MiningImpact Project

The European JPI Oceans project MiningImpact has investigated long-term impacts expected to occur as a result of deep seabed mining operations by revisiting up to 40-year old benthic impact experiment sites (BIEs) and seabed dredging scars in manganese nodule areas of the eastern equatorial Pacific.

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Three dedicated research expeditions were conducted in 2015. RV SONNE expedition SO239 and RV James Cook expedition JC120 worked in the ISA exploration contract areas of Belgium, France, Germany, IOM, United Kingdom, and two of the Areas of Particular Environmental Interest (APEIs 3 and 6) located in the Clarion-Clipperton Zone (CCZ). RV SONNE expedition SO242 re-visited the DISCOL area in the Peru Basin, where 11 km2 of nodule-covered seafloor had been ploughed experimentally in 1989 to simulate a seabed disturbance related to mining of polymetallic nodules. While the investigated seafloor disturbances are many times smaller than the anticipated areas of future industrial mining activities, i.e. 200–300 km2 per year and per operation, the scientific results do provide some clear conclusions. The results obtained in the MiningImpact project confirm that deep-sea ecosystems associated with polymetallic resources support a highly diverse fauna, with communities that show a high variability on small and large spatial scales. Irrespective of the original size of the disturbance tracks (i.e., single or multiple 2–3-m-wide dredge or EBS tracks; 78 criss-crossing 8-m-wide plough tracks) or the productivity of the area in question (i.e., the relatively productive Peru Basin or the low productivity zones in the central CCZ), all BIEs have left prominent scars on the seafloor that are clearly visible even several decades after the disturbance was created (i.e., 20 years for the IOM-BIE, 26 years for the DISCOL experiment, 37 years for the OMCO track). Based on distributions of natural radionuclides and other biogeochemical tracers, as well as small-scale resuspension experiments and modelling results, disturbance effects extend well beyond the actual tracks, with sediment plumes likely blanketing the seafloor up to several tens of kilometres beyond the mined area. Loss of seafloor integrity by removal of nodules and surface sediment reduces ecosystem functions, such as organic matter remineralization and nutrient regeneration, microbial growth, and bioturbation activity, as well as population densities of benthic faunal assemblages, and alters the composition of the benthic community. The induced environmental impacts affect all ecosystem compartments and are long-lasting, clearly indicating that biogeochemical processes will take more than 50 years to recover. However, many open questions remain, mainly due to the inappropriate coverage and replication of investigations and the lack of long-term ecological time series. This limits our understanding of the spatial and temporal variations of abundances and composition of faunal communities and their connectivity. Such gaps in knowledge need to be filled in order to decide on conservation measures, the relevant spatiotemporal scales for monitoring, and appropriate sizes and arrangements of reference zones. Technology for holistic monitoring of the impacts is available, and first concepts have been developed within the MiningImpact project that will be tested in 2019/2020 in connection with dedicated disturbance experiments and the

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first industrial field trial of a nodule collector by the Belgian company and contractor DEME-GSR. This will also help to define indicator sets for “good” deep-sea ecosystem status and threshold values to avoid “harmful effects”. 5

Spatial Heterogeneity and Variability in the Deep Sea

It has long been assumed that geochemical, biological, and sedimentological conditions in the deep sea are not subject to strong spatial (and temporal) variation. However, recent studies show a different picture. The CCZ has been the focus of many scientific investigations in the context of exploration activities or studies of disturbance effects connected to manganese nodule mining. While the exploration data of the sixteen contractors are largely not accessible to the public for an urgently required, large-scale analysis of spatial heterogeneity and species connectivity across the CCZ, international scientists from multinational projects, such as MiningImpact and ABYSSLINE, have joined forces to investigate spatial variability in and between several contract areas of the CCZ. Such baseline studies will serve as an independent data basis for assessing the effects of possible future mining operations on the abyssal manganese nodule habitat. Recent results of scientists show a surprisingly heterogeneous manganese nodule coverage on the seafloor.4 In addition, sedimentological and geochemical conditions often vary strongly over short distances of less than one kilometre. The seabed in the CCZ, with water depths of more than 4000 metres, is also by no means flat, but is characterized by countless submarine mountains (seamounts). Some of them rise up to more than 2000 metres above the surrounding seabed. The interaction of bottom water currents and the seamounts, which act as obstacles, leads to a complex and heterogeneous flow and sedimentation pattern. Sedimentation rates in this abyssal zone are generally very low. New investigations have shown, however, that they vary by a factor of 2 to 3 with values between less than half a centimetre and about 1.5 centimetre per thousand years.5 The total thickness of the sediment cover also varies. While the thickness of the sediment layer on top of the oceanic crust on the flanks of the 4  Volz, J.B., Mogollón, J.M., Geibert, W., Martínez Arbizu, P., Koschinsky, A., Kasten, S., “Natural spatial variability of depositional conditions, biogeochemical processes and element fluxes in sediments of the eastern Clarion-Clipperton Zone, Pacific Ocean”, (2018) 140 Deep-Sea Research Part I – Oceanographic Research Papers, 159–172. 5  Mewes, K., Mogollón, J.M., Picard, A., Rühlemann, C., Kuhn, T., Nöthen, K., Kasten, S., “Impact of depositional and biogeochemical processes on small scale variations in nodule abundance

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submarine mountain ranges can be less than one metre, it can be more than a hundred metres in the basin areas between seamounts. Alongside these heterogeneous sedimentation conditions, inputs of organic matter from the overlying equatorial high-production oceanic region also differ, also leading to strong variations in geochemical conditions, biogeochemical processes and fluxes in the surface sediments of the CCZ.6 The thickness of the upper oxygencontaining (oxic) zone of the sediments also varies strongly at different sites and can range from about 30 cm to several metres. With their strong connection to habitat characteristics and food availability, geochemical conditions can help to assess ecologically significant spatial scales that in turn can help to shape monitoring strategies, decide on locations and spatial patterns of reference zones and protected areas, and serve as input for the spatial planning of mining operations. As knowledge on benthic communities increases, geochemical data may also help to predict the abundance of organisms and the occurrence of specific faunal assemblages. In addition, the geochemical conditions as such may have an influence on the environmental impacts associated with deep seabed mining. In oxygen-free (anoxic) sediments below the oxygen penetration depth, nutrients and heavy metals are present in dissolved and thus mobile form. The amount of toxic metals and other substances with potentially harmful effects on organisms living in and on the sediments that are released by mining activities hence depends primarily on the thickness of the upper oxygen-containing sediment layer and on whether the mining technology used disturbs deeper, oxygen-free sediments. The thickness of the upper oxygen-containing sediment layer, also known as “oxygen penetration depth”, is therefore one of the key parameters for deep-sea baseline studies, and has to be considered in environmental impact assessments and spatial planning of mining operations. To be able to compensate for impacts caused by the disturbance of the seabed, or to limit them to a minimum, the ISA has designated large protected areas in the CCZ, so-called “Areas of Particular Environmental Interest” (APEIs). Ideally, these protected areas should environmentally resemble the exploration contract areas and, hence, be suitable as “gene pools” for the repopulation of disturbed areas. However, our investigations and those of other international research groups in the CCZ have shown that the biogeochemical, microbial, in the Clarion-Clipperton Fracture Zone”, (2014) 91 Deep-Sea Research Part I – Oceanographic Research Papers, 125–141; supra note 4. 6  Mogollón, J.M., Mewes, K., Kasten, S., “Quantifying manganese and nitrogen cycle coupling in manganese-rich, organic carbon-starved marine sediments: Examples from the Clarion-Clipperton fracture zone”, (2016) 43 Geophysical Research Letters, 7114–7123; supra notes 4 and 5.

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ecological and sedimentological conditions in the APEIs differ significantly from those in the contract areas.7 For example, the oxygen penetration depths in the sediments of the investigated APEIs 3 and 6 are considerably greater than in the contract areas. Therefore, it can be assumed that the processes and also the potential impacts of deep seabed mining activities in the contract areas differ significantly from those in the APEIs. Based on current knowledge, the protected areas therefore do not appear to be suitable as reference areas for environmental monitoring in the deep sea or as “repopulation refuges” for the contract areas potentially affected by deep seabed mining. 6

Sedimentation Processes and Suspended Sediment Clouds

Manganese nodules lie on soft deep-sea sediment, which is partially removed and suspended during the “harvesting” of the nodules by any collector system. Clouds of turbidity develop, which represent one of the major impacts on the faunal communities that live at, on or close to the seabed. Such clouds drastically increase the natural sedimentation rate, which normally lies in the order of a few millimetres per thousand years. The sinking sediments cover the organisms that live on the seafloor sediment or on nodules in the immediate vicinity of the mining area. Suspension feeders that extract their food from the water column, such as sponges, corals, and some fish species or larvae, are likely to be most affected by the increased particle load in the water, which may additionally be contaminated by released heavy metals. However, organisms feeding on the sediments (deposit feeders) may also be affected when their habitat is covered by resettling, and potentially nutrient-poor, particles. Constructors of mining equipment expect that with every ton of manganese nodules removed from the seafloor, 2 to 5 tons of sediment will be suspended and relocated, depending on the collector technology. For an industrial mining project, between 500 and 1000 tons of sediment will likely be released per hour from the seabed. The newly formed sediment surface behind the collector has a different structure, mechanical property, as well as biogeochemical and microbial composition to that of the original seafloor and thus no longer corresponds to the natural habitat. Overall, it is necessary to understand how fast the suspended sediment is redeposited and how it is distributed spatially with bottom currents. Important 7  Menendez, A., James, R.H., Lichtschlag, A., Connelly, D., Peel, K., “Controls on the chemical composition of ferromanganese nodules in the Clarion-Clipperton Fracture Zone, eastern equatorial Pacific”, (2019) 409 Marine Geology, 1–14; supra note 4.

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questions are: How do deep-sea sediments behave when they are suspended? How quickly do aggregates form and resettle? Which amounts of sediment are deposited per day or year, and at which distance from the mined area? How much organic matter is contained in the suspended and resettling sediments and how does this affect the availability of food for the animals? In order to answer these questions, oceanographic conditions such as current velocity and direction at the seafloor must be studied over a period of years.8 Furthermore, realistic laboratory and field experiments provide important insights into sediment properties such as aggregate formation and sinking rates.9 Finally, such information is important to model the dispersion of sediment clouds, as is being done in the research project MiningImpact at the moment. Model results from this project show that in the case of industrial mining, significantly higher sedimentation rates still occur 20 to 30 km away from the mining site. However, the results must be validated by mining tests on an industrial scale. Detailed knowledge of the range of dispersion of sediment clouds is an important prerequisite for the designation of preservation zones and for defining threshold values for “significant adverse effects”. These studies have to be accompanied by detailed studies of the impacts on deep-sea fauna. For example, it is currently unclear which particle concentrations, sedimentation rates, and sediment cover/blanketing thicknesses will negatively affect faunal communities (abundances, biodiversity). 7

Spatial Planning of Mining Operations

The most important requirements for “sustainable” deep seabed mining are the preservation of biodiversity and the functions of communities in deepsea ecosystems. In the direct areas of mineral resource extraction, the primary assumption is made that the fauna will be extinguished completely. In these areas, a certain reduction in long-term effects can only be achieved by optimizing mining technologies. However, the exploitation strategies themselves will probably be more important in determining the extent, degree and time scales of ecosystem damage and recovery. 8  Aleynik, D., Inall, M.E., Dale, A., Vink, A., “Impact of remotely generated eddies on plume dispersion at abyssal mining sites in the Pacific”, (2017) 7 Scientific Reports, 16959. 9  Gillard, B., Purkiani, K., Chatzievangelou, D., Vink, A., Iversen, M.H., Thomsen, L., “Physical and hydrodynamic properties of deep sea mining-generated, abyssal sediment plumes in the Clarion Clipperton Fracture Zone (eastern-central Pacific)”, (2019) 7(1) Elementa, Science of the Anthropocene, 5.

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Large-scale damage caused by deep seabed mining can at least be partially mitigated if the mined areas are separated by undisturbed, pristine areas. In these undisturbed (i.e. preservation) areas, the faunal community characteristic of the region can continue to thrive and organisms that do not depend on the manganese nodules as hard substrate, such as sediment-dwelling fauna, can migrate from there back to the mined areas. In addition, these undisturbed areas can act as “stepping stones” to help prevent the isolation of distant populations. Whether exploitation strategies (e.g., with regard to the geometry and arrangement of the mined and preserved areas, and the geometry and size of individual mining blocks) are suitable for minimizing damage to the faunal communities, depends on the spatial scales relevant for the various species. For example, organisms often need minimum sizes of coherent habitats for successful reproduction and can only spread with their larvae over limited distances. Spatial planning of mining areas and preservation areas must also account for the impact from the suspended sediment clouds that are dispersed beyond the mined patches. The actual size of the available “undisturbed” areas ultimately depends on the spatial spread of the sediment cloud and on the tolerance of the organisms towards the particle load in suspension, as well as the thickness of the sediment cover deposited from this cloud. At present, there is still a great lack of knowledge that hampers the development of recommendations on suitable mining strategies. This applies above all to the availability and meaningful interpretation of biological information. A first approach to the spatial planning of exploitation activities could be to select the extent of preservation areas between mining areas in such a way that they encompass the naturally occurring range of different habitats. Such information can be obtained, for example, from high-resolution acoustic data (e.g. seafloor relief, nodule presence or absence, nodule size). Further evidence for scales of natural variability can be obtained from photo surveys of habitat features and larger fauna or simple, sample-based analyses of biological and biogeochemical variables (e.g., organic matter availability, oxygen penetration depth, bioturbation rate and depth, sediment faunal biomass). In addition, the overarching management of mining activities, e.g. in terms of size, number, and arrangement of mining licenses in relation to designated protected areas, should also be embedded in large-scale environmental management strategies on regional and global scales (e.g. by establishing long-term study sites, such as DISCOL in the Peru Basin and the hydrothermal vent systems of the Mid-Atlantic Ridge). This allows for a transparent, common view on the activities of all deep seabed mining contractors and sets deep seabed mining into a global context in which conflicting interests and uses of marine ecosystems can also be taken into account. Such interests include, but are not

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limited to, fisheries, shipping, underwater cable construction, and marine science. For these reasons, hierarchical management plans should be developed in accordance with proposals of UNEP. Such an approach was proposed in a concept paper for the ISA.10 It combines a global strategic environmental plan with more detailed management plans for individual mineral-rich regions, for example, the CCZ with its manganese nodule deposits or the Mid-Atlantic Ridge, where massive sulphides are most abundant. The global and regional plans together form the basis for the environmental impact assessments and management plans of the contractors for individual mining projects. There is still a comprehensive need for research in order to provide scientifically sound recommendations on suitable mining strategies. It is not yet possible to predict the extent to which spatial management options may mitigate environmental impacts of deep seabed mining and prevent major irreversible damage. In order to strike a balance between the need for raw materials, on the one hand, and a strict interpretation of the precautionary principle, on the other, mining operations should develop gradually from small to large spatial scales. These include component trials, pilot mining tests and small commercial test production sites, and they need to be accompanied by thorough, comprehensive and independent scientific environmental investigations. 8

Recolonization of Mining-Impacted Areas

Within the framework of exploration activities and research projects on the environmental consequences of deep seabed mining, numerous taxa have been identified and described in recent years, in particular in the CCZ. While we are still a long way from a complete species inventory, this shows that a huge biodiversity is potentially at risk. In principle, deep seabed mining has two different negative effects on the fauna of the seabed: i) a sudden decimation of the faunal populations occurring during mining operations; and ii) a permanent alteration of the habitat, impeding recolonization. Studies revisiting old disturbance tracks have shown long-lasting changes in abundances and compositions of benthic communities, showing that recolonization can take many generations, even after minor disturbances. Dedicated and longlasting scientific studies are necessary in order to make reliable statements on 10  Weaver, P.P.E., Jones, D.O.B., Discussion Paper on “Regional Governance”, Background document for ISA Workshop: Towards an ISA Environmental Management Strategy for the Area, Berlin, March 2017.

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the recolonization potential of mined and other impacted areas. The findings are ecosystem-specific and not transferrable to other mineral resources. For example, comparably species-poor, high density and highly productive communities predominate at active hydrothermal vents, which are well adapted to a constantly changing habitat. In contrast, communities of the manganese nodule ecosystems of the CCZ are characterized by high numbers of diverse species, but low numbers of individuals, which are adapted to uniform conditions and minimal food inputs through particle export from near-surface water bodies. A broad spectrum of scientific knowledge is necessary to predict the potential for recolonization after mining based on the ecology of the organisms. This includes inventories of the occurring species and their distribution patterns, their behaviour, nutrition and habitat requirements, and species interactions. Most important, however, is detailed knowledge on reproductive modes, sexual maturity, reproduction cycles, as well as the larval types, their life expectancy and means of distribution. Unfortunately, such information at the required level of detail is only available for some hydrothermal systems at mid-ocean ridges. An alternative to predicting potential recolonization is to investigate species connectivity. Molecular methods are used to quantify the gene exchange between individuals of a species at separated sites. If distant populations are in close gene exchange with each other, this suggests the ability to recolonize from undisturbed areas over potentially long distances. Studies on connectivity require extensive molecular investigations and can currently only be performed for selected taxa that appear in higher abundances. Hence, such studies can only be carried out on abundant model organisms. Based on the identified, relevant spatial scales of gene exchange of the respective organisms, estimates of the potential distribution are extrapolated also to other species that are related or show a similar lifestyle. In addition to the question of spatial distribution, successful recolonization requires that suitable living conditions occur in the mined or other impacted areas. Since numerous organisms depend on the ore as hard substrate habitat (e.g. sessile organisms on manganese nodules or at hydrothermal vents), recolonization by the same species can only take place if some of the ores are left behind or other suitable substrates are available. Various renaturation measures have already been discussed in connection with deep seabed mining. In the case of manganese nodule ecosystems, conceivable measures include e.g. the placement of artificial nodules produced by pressing sediments or residues from nodule processing. Recently, some scientific experiments with artificial substrates were carried out in hydrothermal ecosystems. The mining company Nautilus Minerals, which is preparing to

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mine massive sulphides in the national waters off Papua New Guinea in the “Solwara” project, plans to use concrete slabs or other artificial substrates as additional surfaces to support recolonization. In addition, rocks with adhering fauna are to be completely relocated to surrounding areas prior to the start of the mining operations and returned after the completion of mining activities. The enrichment of the disturbed seabed with organic material in order to provide sufficient food source for rapid recolonization and effective reproduction of the immigrated organisms is also discussed as a possible option. Despite the large number of different ideas, there is a lack of systematic and long-term experiments to investigate the effectiveness of such measures. Consequently, such experiments should be initiated as soon as possible, as many years or decades may pass before the experiments can be scientifically evaluated. This is all the more the case if the studies are to include the development of functioning communities in addition to initial settlement. 9

Recommendations for Environmental Regulations

The main results of the MiningImpact project so far have been transferred into the following policy recommendations,11 particularly addressing the “Draft Regulations on Exploitation of Mineral Resources in the Area” that are currently being developed by the ISA: – Reference and habitat conservation areas must closely match ecosystem characteristics of mined areas (e.g., ocean productivity, nodule density, faunal densities and composition) to safeguard abyssal biodiversity and protect specific vulnerable and important ecosystems; – Seamounts and APEIs alone cannot be expected to compensate for biodiversity and ecosystem services lost through mining operations: additional marine protected areas are needed; – Methods and parameters for baseline studies and monitoring need to be defined, standardized and regularly revised to incorporate current state-ofthe-art science; – Indicator sets for deep-sea ecosystem status and threshold values for the avoidance of “harmful effects” need to be defined; – Costs for appropriate monitoring technologies must be reduced and made available to contractors in more countries;

11  Boetius, A., Haeckel, M., “Mind the seafloor”, (2018) 359 Science, 34–36.

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– Minimizing large-scale impacts requires careful and adaptive spatial planning of mining operations, establishment of a network of representative protected areas, and development of low-impact equipment; – Environmental impact assessments and management plans for mining projects need to address uncertainties in sediment plume dispersal and specific spatial variability of the ecosystem; – Tests of potential restoration measures, e.g. to assist in faunal recolonization of impacted areas, need to be started as soon as possible for long-term scientific assessment; – Data sharing from scientific and contractor’s surveys, and transparent, independent international scientific assessment of deep seabed mining operations, including exploration, are an essential requirement for the further development of mining regulations and management plans.

Acknowledgement

This research has been funded by the German Federal Ministry of Education and Research through the MiningImpact project of the Joint Programming Initiative of Healthy and Productive Seas and Oceans (JPIO).

Part 7 Climate Change and the Legal Effects of Sea Level Rise

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Chapter 17

Climate Change and the Legal Effects of Sea Level Rise: An Introduction to the Science Larry Mayer 1

Introduction

The timeframe, during which the United Nations Convention on the Law of the Sea (Convention) was negotiated (1973–1982), coincided with the beginning of a revolution of our understanding of earth and ocean processes. The concept of plate tectonics was evolving, offering a paradigm shift in our thinking about the origin of the oceans and an overarching concept that tied together many components of the earth and ocean system. At the same time, new sonar and visualization technologies were being developed that offered the opportunity to map the seafloor with unprecedented detail, providing many new insights into the shape and complexity of the continental margins that were not envisioned by the authors of the Convention. These new technologies have continued to advance rapidly over the past few years now allowing the complete, high-resolution mapping of large tracts of the seafloor. These new maps have, in many instances, presented challenges to both coastal States and the Commission on the Limits of the Continental Shelf (CLCS), as they try to reconcile the complex reality of modern mapping data with the relatively simple vision of the generalized shape of a continental margin presented in article 76 of the Convention.1 While the changes in understanding of earth processes and advances in technology began to be recognized and addressed with the issuance of the Scientific and Technical Guidelines of the CLCS in the late 1990s,2 one area of science that was not at all addressed in either the Convention or the Scientific and Technical Guidelines is climate change and its potential impact on sea level. This is quite understandable; while the potential of global warming due to the input of anthropogenic CO2 into the atmosphere was recognized 1  Mayer, L.A., “The Arctic Continental Shelf and its Evolving Morphologic Context”, in Nordquist, M., Moore, J.N., and Long, R. (eds)., Challenges of the Changing Arctic: Continental Shelf, Navigation and Fisheries (Brill Nijhoff Press, Leiden, 2016), 19–34. 2  http://www.un.org/Depts/los/clcs_new/commission_guidelines.htm.

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by Roger Revelle and Hans Suess in the late 1950s,3 general recognition of this possibility did not develop until the early 1990s. The first public “call to arms” with respect to global warming and climate change is generally recognized to be the testimony of NASA climate scientist James Hansen before the U.S. Senate Energy and Natural Resources Committee in June of 1988.4 Hansen testified that the Earth had been warmer in the first five months of 1988 than any time in the past 130 years (when measurements began) and that there was a 99% certainty that the trend in global warming was not due to natural causes but rather to the man-made build-up in CO2 and other greenhouse gases in the atmosphere. Despite the overwhelming scientific evidence that has been gathered since Hansen’s testimony to back these conclusions, there are still powerful political and industrial forces that fail to recognize the problem. Recognized, or not, as will be outlined below, the problem is real, and, if not mitigated, will have a dramatic impact on civilization. Within the context of the Convention, an immediate ramification of global warming is the fact that through the melting of glaciers and ice sheets, as well as the thermal expansion of sea water (thermosteric expansion), sea level will rise, changing the location of baselines and other maritime boundaries, displacing populations, and potentially leading to the disappearance of components of, or entire, coastal States. 2

A Brief Overview of Sea Level Change

While the recognition of the role of anthropogenic activities on a rapidly warming Earth and the potential impacts of this warming on sea level is relatively recent, scientists have long recognized that sea level has changed significantly over time scales of millions of years. Early field geologists often observed the occurrence of corals or marine fossils that are hundreds of metres above present day sea level and, while not necessarily understanding the mechanisms, recognized that relative sea level must have changed (either the land rising or sea level falling). With the beginning of offshore oil exploration and the sampling of deep sea drilling cores, the relative location of former sea levels could be identified in the seismic records collected to explore for oil and gas and from the isotopic composition of microfossils that make up deep sea 3  Revelle, R., and Suess, H.E., “Carbon Dioxide Exchange between Atmosphere and Ocean and the Question of an Increase of Atmospheric CO2 during the Past Decades”, (1957) 9 Tellus, 18–27. 4  N.Y. Times, June 24, 1988, “Global Warming Has Begun, Expert Tells Senate”, 1.

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Relative Sea Level curve for past 550 million years. The data is a combination of estimates made from the interpretation of globally collected marine seismic data and from the analysis of the oxygen isotope record of microfossils from deep sea cores. From https://www.researchgate.net/publication/274071573 _3D_palaeogeographic_reconstructions_of_the_Phanerozoic_versus_sea-level _and_Sr-ratio_variations/figures?lo=1

sediment (i.e., the oxygen isotopic composition of the skeletons of the microfossils indicates the global volume of ice which can be directly related to sea level). From these data, a global record of relative sea level change was put together that indicated significant (hundreds of metres) changes in sea level over the course of hundreds of millions of years (Figure 17.1).5 In the light of modern understanding, we now know that these very long-term changes in sea level are mostly driven by the creation and destruction of ocean basins through plate tectonics and take place at rates of metres per millions of years – rates of change that have little relevance to maritime boundaries or coastal communities. Superimposed on the very slow changes in sea level driven by plate tectonics and the changing shape of ocean basins are more rapid changes in sea level that are caused by variations in the global volume of land-based ice 5  https://www.researchgate.net/publication/274071573_3D_palaeogeographic_reconstruc tions_of_the_Phanerozoic_versus_sea-level_and_Sr-ratio_variations/figures?lo=1.

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(glaciers and ice sheets). Most notable of these ice-related changes are those that have occurred in the recent geologic past and are related to the “ice ages” that have dominated the last 800,000 years of earth history.6 Sea level changes related to the glaciations can be significant and rapid, with a typical pattern of a slow (on order of 100,000 years) build-up of ice (lowering global sea level) and then a more rapid melting of ice leading to a rise in sea level. The last “inter-glacial” – a time of minimum ice – occurred approximately 120,000 to 130,000 years ago with ice building up to a maximum (the last glacial maximum) approximately 18,000 to 20,000 years ago (Figure 17.2) when vast ice sheets covered much of northern North America (as far south as New York City). The water tied up in these ice sheets globally lowered sea level by approximately 130 m. Since the last glacial maximum, there has been a relatively rapid rise in sea level with a particularly fast rise from about 14,000 to 6,000 years ago (an average sea level rise rate of about 10 mm/yr and peaks

6  http://www.columbia.edu/~jeh1/mailings/2011/20110118_MilankovicPaper.pdf.

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up to 25 mm/year).7 However, approximately 6,000 years ago, much of the glacial melting ceased and from a global perspective, sea level rise slowed to rates of less than 1 mm/yr. 3

Insight into Climate Forcing

Also at about the time that the Convention was being negotiated, critical new insights were being developed about the drivers of climate change, and, in particular, the processes responsible for the glacial/interglacial cycles that created the rapid changes in sea level over the past 800,000 years. Most notable among these insights was the recognition of the work of Milutin Milankovitch, a Serbian astronomer and mathematician who, in the early 1900s, calculated the changes in the Earth-sun distance caused by variations in the orbit of the Earth around the sun (its eccentricity, obliquity and precession). Milankovitch speculated that the interaction of these orbital parameters caused cyclic changes in the amount of the sun’s energy that impinges on Earth (solar insolation), and that these cyclic changes could account for the periodic build-up and melting of glaciers that characterized the last 800,000 years (Figure 17.2). This theory was not well accepted until the late 1970s when the analysis of deep sea sediment cores that preserve a layer-by-layer record of changes in past climate conditions revealed that paleoclimate indicators varied with the periodicities that Milankovitch had predicted.8 The recognition that “orbital forcing” was a major driver of climate change provided a key insight into the cause of glacial/interglacial cycles; even more importantly, because the orbital parameters originally calculated by Milankovitch could be calculated into the future, it offered a means to predict a major component of future climate change. In the context of orbital forcing or “Milankovitch Cycles,” the near cessation of glacial melting and the greatly reduced rate of sea level rise about 5–6,000 years ago represented the transition from the rapid deglaciation (that had started 18–20,000 years ago) into the slow cooling of the Earth leading to the next ice age (in approximately 100,000 years). In other words, with no other factors at work, the natural forcing of climate should be leading us to a very long-term trend of cooling temperatures, growing ice, and lower sea levels. 7  Stanford, J.D., Hemingway, R., Rohling, E.J., Challenor, P.G., Medina-Elizalde, M., and Lester, C., “Sea-level probability for the last deglaciation: A statistical analysis of far-field records”, (2011) 79(3–4) Global and Planetary Changes, 193–203. 8  Hays, J.D., Imbrie, J., and Shackleton, N.J., “Variations in the Earth’s Orbit: Pacemaker of the Ice Ages”, (1976) 194(4270) Science, 1121–1132.

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The Recent Global Temperature Record

While there are many local, regional and short-term variations that affect temperature and sea level, a reconstruction of global average temperatures over the last 11,300 years indicates that after a period of moderate warmth from 10,000 to about 5,000 years ago, the Earth has indeed entered a cooling phase as predicted by Milankovitch forcing (Figure 17.3).9 This general cooling trend continued until the late 1800s when the instrumental record of temperature revealed a precipitous and increasing rise in temperature, particularly over the last 100 years. The average global temperature has risen 0.9° C over the last 136 years, with most of this increase taking place over the past 35 years; 17 of the 18 warmest years have occurred since 2001 (Figure 17.4).10

Figure 17.3

Global temperature for 5° × 5° areas relative to average temperature between 1961 and 1990 for past 11,300 years. Purple line is mean value while blue band is uncertainty (from Marcott et al., 2013). Note general trend of decreased temperatures for past 6,000 years to most recent time

9  M  arcott, S.A., Shakun, J.D., Clark, P.U., and Mix, A.C., “A Reconstruction of Regional and Global Temperature for the Past 11,300 Years”, (2013) 339(6124) Science, 1198–1201. 10  https://climate.nasa.gov/vital-signs/global-temperature/.

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Sea Level Rise: An Introduction to the Science 1.5 1.0 0.5 0.0 ‒0.5 1880

Figure 17.4

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Instrumental (measured) global surface temperature record since 1880, relative to the average between 1951 and 1980

The precipitous rise in temperature recorded over the past 100 years is in direct contrast to the direction that orbital forcing should be pushing global climate. Is there an explanation for this? 5

Atmospheric Carbon Dioxide

The explanation for the rapid rise in temperature becomes apparent if one examines the record of atmospheric carbon dioxide (CO2) over the past 800,000 years (Figure 17.5).11 Atmospheric levels of CO2 have been continuously monitored at an observatory on Mauna Loa, Hawaii, since 1958; before that time, levels of atmospheric CO2 are determined from the analysis of air bubbles trapped in ice cores that preserve annual layers of snow and ice going back hundreds of thousands of years. Looking at the 800,000-year record in Figure 17.5, cyclic excursions of CO2 can be seen corresponding with the Milankovitch-driven glacial/interglacial cycles. At no time before the 20th century were CO2 levels higher than 300 ppm; however, in the last 150 years, and particularly during the last 70 years, atmospheric CO2 levels have risen rapidly, with today’s values nearing 410 ppm. The significance in this rapid increase in CO2 lies in the fact that CO2 is a greenhouse gas, meaning that it can absorb heat that comes from solar energy that is radiated back into the atmosphere from the Earth’s surface (just like the glass in a greenhouse lets solar radiation into the greenhouse but traps the heat created from the sunlight impinging on surfaces in the greenhouse). Thus, the more CO2 in the atmosphere, the more rapidly the Earth warms. 11  https://scripps.ucsd.edu/programs/keelingcurve/wp-content/plugins/sio-bluemoon/ graphs/co2_800k_zoom.png.

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Figure 17.5

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(Top) Record of atmospheric CO2 for past 800,000 years from ice cores, spliced with modern measurements made at the Moana Loa Observatory since 1958. Current value is approximately 410 ppm. (Bottom) Focus on past 300 years showing increases starting in late 1800s with larger rate of increase post-1950. From https://scripps.ucsd.edu/programs/keelingcurve/wp-content/ plugins/sio-bluemoon/graphs/co2_800k_zoom.png

What is the cause of this rapid rise in CO2? The coincidence of the rise in atmospheric CO2 with the onset of the industrial revolution is apparent, suggesting that the increase in CO2 is the direct result of the burning of fossil fuels. This is not surprising, as the burning of fossil fuels alone has added approximately 1540 billion tonnes of CO2 to the atmosphere, with most of that (~1500 billion tonnes) introduced into the atmosphere since 1900.12 12  Corinne Le Quéré, Robbie M. Andrew, Pierre Friedlingstein, Stephen Sitch, Julia Pongratz, Andrew C. Manning, Jan Ivar Korsbakken, Glen P. Peters, Josep G. Canadell, Robert B. Jackson, Thomas A. Boden, Pieter P. Tans, Oliver D. Andrews, Vivek Arora, Dorothee C.E.

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While the coincidence of the sharp increase in CO2 with the onset of industrialization strongly implies that the increased CO2 (and thus the rapid increase in temperature over the past 70 years) is the result of human activity, an even stronger line of evidence leaves little doubt that this is the case. Simply put, carbon atoms can come in several forms (isotopes) and the old carbon that makes up fossil fuels has a different isotopic composition than the carbon found in the atmosphere. Through the study of tree rings and icecores, it is clear that the excess carbon that is associated with the rapid rise in CO2 since the industrial revolution has the isotopic composition of fossil fuel.13 This evidence is so compelling that the Intergovernmental Panel on Climate Change (IPCC) has concluded “with a very high level of confidence that the increase in CO2 emissions from fossil fuel burning and those arising from land use change are the dominant cause of the observed increase in atmospheric CO2 concentration.”14 6

Impact of Warming on Sea Level

The measured records of atmospheric CO2 and global temperature thus clearly indicate that human activity (mostly the burning of fossil fuel and land use change) has led to the rapid increase in the CO2 content of the atmosphere which, in turn, has led to a rapid increase in global average temperatures. This Bakker, Leticia Barbero, Meike Becker, Richard A. Betts, Laurent Bopp, Frédéric Chevallier, Louise P. Chini, Philippe Ciais, Cathy Cosca, Jessica Cross, Kim Currie, Thomas Gasser, Ian Harris, Judith Hauck, Vanessa Haverd, Richard A. Houghton, Christopher W. Hunt, George Hurtt, Tatiana Ilyina, Atul K. Jain, Etsushi Kato, Markus Kautz, Ralph F. Keeling, Kees Klein Goldewijk, Arne Körtzinger, Peter Landschützer, Nathalie Lefèvre, Andrew Lenton, Sebastian Lienert, Ivan Lima, Danica Lombardozzi, Nicolas Metzl, Frank Millero, Pedro M.S. Monteiro, David R. Munro, Julia E.M.S. Nabel, Shin-ichiro Nakaoka, Yukihiro Nojiri, X. Antoni Padin, Benjamin Pfeil, Denis Pierrot, Benjamin Poulter, Gregor Rehder, Janet Reimer, Christian Rödenbeck, Jörg Schwinger, Roland Séférian, Ingunn Skjelvan, Benjamin D. Stocker, Hanqin Tian, Bronte Tilbrook, Francesco N. Tubiello, Ingrid T. van der Laan-Luijkx, Guido R. van der Werf, Steven M.A.C. van Heuven, Nicolas Viovy, Nicolas Vuichard, Anthony P. Walker, Andrew J. Watson, Andrew J. Wiltshire, Sönke Zaehle, Dan Zhu, “Global Carbon Budget 2017”, (2018) 10 Earth Syst. Sci. Data, 405–499. https://doi .org/10.5194/essd-10-1-2018. 13  Dean, J.R., Leng, M.J., and Mackay, A.W., “Is there an isotopic signature of the Anthropocene?”, (2014) 1(3) The Anthropocene Review, 276–287. 14  I PCC, 2013: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, T.F. Stocker, D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds) (Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA), 1535.

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Figure 17.6

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Composite sea level curve from various sources for period between 1700 to 2010 Source IPCC (2013)

increase in temperature has a direct (and measurable) impact on global sea level, which has been rising at an average rate of 1.5 mm/yr between 1901 and 1990 and an average rate of 3.2 mm/yr from 1993 to 2010 (Figure 17.6).15 The rapid increase in the rise in sea level recorded over the past approximately hundred years can be directly related to the increasing global temperatures through several mechanisms: the thermal expansion of sea water; the melting of temperate glaciers; and the melting of the ice sheets on Greenland and Antarctica. While the relative impacts of these components have changed over time, the most recent studies have shown that between 2012 and 2016, about 37% of the current sea level rise can be attributed to thermal expansion of sea water; about 18% to the melting of temperate glaciers; and 20% and 14% attributed to the melting of Greenland and Antarctica, respectively.16

15  I PCC, 2013. 16  The IMBIE Team, “Mass balance of the Antarctic Ice Sheet from 1992 to 2017”, (2018) 558 Nature, 219–222.

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We thus find that despite natural climate forcing pushing towards a cooler climate, the measured records of temperature and atmospheric CO2 content and chemistry present coherent and irrefutable evidence that human activity (for the most part in the form of the burning of fossil fuels) has led to a tremendous increase in the levels of atmospheric CO2 which, as a potent greenhouse gas, has caused a rapid increase in global average temperature since the industrial revolution. This increase in temperature has in turn led to an average global rise of sea level (most recently at rates of about 3.2 mm/ year), of which nearly 40% can be attributed to the thermal expansion of sea water and about 52% to the melting of temperate glaciers and the Greenland and Antarctic ice caps. Using a simple linear extrapolation, sea level will rise by 32 cm in 100 years – enough to have significant impacts on baselines and people in many coastal areas – but more sophisticated models have addressed this issue of prediction. 7

Predictions of Future Sea Level Rise

The IPCC was established in 1988 by the World Meteorological Organization and the United Nations Environment Programme to provide policy makers with regular assessments of current climate trends, the impacts of these trends, as well as prediction for future states of the climate. The IPCC reports are written by hundreds of the world’s leading scientists and are rigorously reviewed. To date, there have been five assessment reports, the latest being published in 2014. In looking at future trends, the latest report, the Fifth Assessment Report of the Intergovernmental Panel on Climate Change,17 developed a number of “Representative Concentration Pathways” (RCPs) that represent the levels of greenhouse gas emissions from different scenarios of population, energy and land use, technology and climate policy through the 21st century. These scenarios range from the continuing rise in emissions, resulting in atmospheric CO2 concentrations from 700 to over 1000 ppm by 2100 (RCP8.5), to those that would result from stringent mitigation efforts (RCP2.6) and maintain atmospheric C02 concentrations below 500 ppm by the year 2100. A number of well-accepted climate models are then run for each of these scenarios to result in predictions of future temperatures and sea levels with their associated uncertainty. 17  I PCC, 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Core Writing Team, R.K. Pachauri and L.A. Meyer (eds)) (IPCC, Geneva, Switzerland, 2014), 151.

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Figure 17.7

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IPCC model runs (42) for four future carbon emission scenarios. RCP2.6 has CO2 levels peaking at 2020; RCP4.5 has the peak at 2040; RCP6.0 has the peak at 2080; and RCP8.5 has emissions rising at current rate. Solid lines represent mean value; colored areas represent range of uncertainty. Small numbers represent the number of models run for each scenario

In the figure above (from the Fifth IPCC Assessment Report), four scenarios are presented: RCP2.6 has emissions peaking by 2020; RCP4.5 has emissions peaking by 2040; RCP6.0 has emissions peaking by 2080; and RCP8.5 has emissions continuing to rise. The scenarios predict a global surface temperature increase by 2100 from about 1° C for the most stringent mitigation scenario to about 4° C for the rising emissions scenario. Projecting farther into the future reveals a predicted temperature increase of as much as 8° C for the rising emissions scenario (Figure 17.7). As a result of these increases in temperature, the IPCC report produces predictions of the global rise in sea level. These predictions range from an average sea level rise of about 42 cm (0.28–0.61 cm) by the year 2100 for the most stringent mitigation scenario, to about 75 cm (0.53–0.98 cm) for the continuing emissions scenario (Figure 17.8). The IPCC concluded that it is “virtually certain” that global mean sea level will rise beyond 2100, with the amount dependent on future emissions. There is “medium confidence” the rise will be less than 1 m for the most stringent emission mitigation scenario (