Pursuant to General Assembly Resolution 77/248 (para. 275), the resumed fifth session of the intergovernmental conference 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 is currently being held, 20 February – 3 March 2023, at UNHQ (New York, USA). In preparation for the resumed fifth session, a Further refreshed draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (12 December 2022) (see further, tracked changes version) was made public on 1 February 2023. Furthermore, on 1 February 2023 the Compilation of outcomes of small group work submitted after the issuance of the Refreshed draft text and Ending point of the Facilitators-led discussions held on 26 August 2022 was made public. For further information see previous reporting.
Monthly Archives: February 2023
Further Refreshed Draft Text of a BBNJ Agreement
Conference: WMU@40 – Maritime and Ocean Sustainability
The World Maritime University will host a conference, entitled, WMU@40: Maritime and Ocean Sustainability, 20-22 June 2023, at WMU (Malmö, Sweden). Registration and a draft programme are forthcoming here.
Filed under Events
Japan: Position on Preserving Maritime Zones
On 6 February 2023, during a meeting of the Minister for Foreign Affairs of Japan and a delegation of the Pacific Islands Forum, the Minister for Foreign Affairs of Japan stated (2) the position Japan has adopted concerning the question of the preservation of lawfully established maritime baselines and zones in light of climate change-related sea-level rise:
“[W]ith regard to climate-change-related sea-level rise, Japan has decided to take the position that it is permissible to preserve the existing baselines and maritime zones established in accordance with the United Nations Convention on the Law of the Sea (UNCLOS), notwithstanding the regression of coastlines and the PIF side welcomed Japan’s decision”Foreign Minister Hayashi’s Meeting with the Delegation of the Pacific Islands Forum (PIF) (Japan MoFA, 6 February 2023)
See further, previous reporting USA, PIF, Fiji/Solomon Islands. The reference to “established in accordance with the United Nations Convention on the Law of the Sea (UNCLOS)” suggests excessive baselines will not only remain unrecognised, but also that the outer limit of a coastal state’s entitlements may be subject to landward retreat following seal-level rise induced regression of the coastline until such time as consistent and fixed baselines are established thereof.
Filed under State Practice
ICJ Core Group of Nations: Final Draft Resolution for ICJ AO Initiative
Following previously reported draft resolutions and consultations, on 20 February 2023, the ICJ Core Group of Nations, led by the Republic of Vanuatu, released a Final Draft Resolution entitled, Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change, for consideration of co-sponsorship by 1 March 2023. Adoption by the UN General Assembly is expected to be sought by proponents in March/April 2023. The operative provision would request an ICJ advisory opinion on the following question:
Having particular regard to the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,UNGA Draft Resolution (20 February 2023), Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
(1) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
(2) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Informal translations of the final Resolution are available in French, Spanish and Portuguese on the Vanuatu ICJ Initiative website.
ITLOS: Request for an Advisory Opinion Submitted by COSIS, Order of 15 February 2023
As previously reported, concerning the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal) the President of the ITLOS issued an Order of 16 December 2022 inviting State Parties to UNCLOS, the COSIS and the other organizations listed in an annex to present written statements on the questions submitted to the Tribunal for an advisory opinion. 16 May 2023 was fixed as the time limit within which to present written statements. By Order of 15 February 2023, the President has extended this time-limit to 16 June 2023 within which written statements may be presented to ITLOS. The Order also notes that on 2 February 2023 the President of ITLOS affirmatively decided on a request from the African Union, which has now been invited to submit a written statement in addition to the previously invited organisations.
Filed under Jurisprudence
France: Administrative Decision No 21PA04622 (Environmental Code of Loyalty Islands Province)
On 10 January 2023 the Administrative Court of Appeal of Paris (1st Chamber) issued Administrative Decision No. 21PA04622 concerning the Environmental Code of Loyalty Islands Province (as amended, 2020). In respect of the international law of the sea, the decision addressed the consistency of Articles 232-3, 232-5 and 235-4 of the Environmental Code of Loyalty Islands Province with Part 2 (Section 3) of UNCLOS concerning the innocent passage regime. The Environmental Code of Loyalty Islands Province provided:
Environmental Code of Loyalty Islands Province (as amended, 2020)
Tout accès de navires au domaine public maritime provincial est soumis à déclaration ou à autorisation.
Les navires doivent communiquer à chaque mouvement leur itinéraire et leur manifeste aux autorités portuaires.
Tous les autres navires entrant sur le domaine public maritime provincial doivent justifier d’une autorisation.
La demande d’autorisation est déposée par voie électronique et nécessite la production de la carte de navigation, la déclaration de l’état du navire, des marchandises transportées et précise le nombre de personnes à bord.
L’autorisation est délivrée par les services provinciaux compétents dans un délai d’un mois.
La décision de suspension d’une autorisation d’accès et/ou d’activité mentionne les conditions de levée de la décision de suspension. Elle est levée par décision du président de l’assemblée de Province, après avis conforme des autorités coutumières concernées, dans l’hypothèse où le bénéficiaire s’est conformé aux conditions exposées dans la décision de suspension.
The Administrative Court of Appeal of Paris decided that a system of prior authorisation, in so far as it applies to foreign flagged vessels, is inconsistent with the right of innocent passage in the territorial sea, as codified in Article 17 of UNCLOS. Such an administrative constraint did not fall within the coastal state competence noted in Article 21 of UNCLOS and therefore, given the administrative constraint and hinderance of innocence passage resulting thereof, was inconsistent with the duty of the coastal state in Article 24 of UNCLOS. A system of prior authorisations applicable to the innocent passage of foreign vessels in the territorial sea would “impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage” (Article 24(1)(a) of UNCLOS). The Administrative Court of Appeal of Paris therefore decided that Articles 232-3 and 232-5 are canceled insofar as they apply to foreign vessels.
Filed under Jurisprudence, State Practice
CLCS: Recommendations for the Russian Federation in respect of the Arctic Ocean
On 6 February 2023 the Commission on the Limits of the Continental Shelf (CLCS) approved, with amendments, Recommendations in regard to the partial revised submission made by the Russian Federation in respect of the Arctic Ocean (3 August 2015; Addenda 31 March 2021 (previously reported)). The CLCS Recommendations include:
119. The Commission recommends that the Russian Federation proceeds to establish the outer limits of the continental shelf from fixed point 2G2_rev to fixed point 3E1_fin in Nansen Basin, from fixed point 4G1_rev to fixed point 8H11 in Amundsen Basin, and from fixed point 10H1_rev to fixed point 10D161 in Canada Basin (Figure 25; Table 3 of annex I).
120. Due to insufficient data and information provided for the outer edge of the continental margin, the outer limits of the continental shelf in the southern part of Amundsen Basin have not been defined (see chapters 3 and 5).The Commission recommends that the Russian Federation makes a partial revised submission in respect of its continental shelf in that area.
121. The Commission recognizes that the establishment of the final outer limits of the continental shelf of the Russian Federation in the Arctic Ocean may depend on continental shelf delimitation with neighboring States.CLCS, Summary of the Recommendations, pp. 38-40.
For further information see Russia’s partial revised Submission in respect of the Arctic Ocean, including communications received from Canada, United States of America and Denmark, as well as the previous findings and recommendations concerning a partial revised submission in respect of its extended continental shelf in the Central Arctic Ocean (Submission by the Russian Federation).
Calls/Events: The Protection of Vulnerable People at Sea
The Institute of International Shipping and Trade Law is inviting abstract submissions for a one-and-a-half-day in-person workshop, funded by the Society of Legal Scholars. The event is to be held from 17 May to 18 May 2023 at Swansea University, Wales (U.K.). A first aim of the workshop is to reflect on the existing international legal framework applicable to the protection of vulnerable people at sea, to identify any gaps and deficiencies contained therein. Connected to this, the workshop will explore how such gaps and weaknesses in the two main branches of the law relating to the protection of vulnerable people at sea (i.e., human rights law and the law of the sea) could be remedied. The deadline for submitting abstracts (250 words maximum) is 20 March 2023. More information is available here.
2023 United Nations – The Nippon Foundation Strategic Fellowship: 11 Fellowships
The Division for Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the United Nations (“OLA/DOALOS”), is now accepting applications for the 2023 Session of the United Nations – The Nippon Foundation Strategic Fellowship Programme. It is intended that 11 Fellowships will be offered in 2023.
The objective of the United Nations – The Nippon Foundation Strategic Needs Fellowship is to assist developing States, particularly least developed countries, small island developing States and landlocked developing countries to address identified critical needs in the implementation of the United Nations Convention on the Law of the Sea (UNCLOS) and related instruments, as well as Sustainable Development Goal (SDG) 14 and other related SDGs. The Fellowship is targeted at Government officials with limited background in ocean affairs and the law of the sea who are filling key positions in their Administration and who are tasked to address the needs referred to above.Call for Application 2023
Applications are welcome until 24 March 2023. For more information and to apply, see here.
Events: Tallinn Conference on the Law of the Sea and Hybrid Warfare
The Norwegian Centre for the Law of the Sea (NCLOS) is organizing a conference on ‘Hybrid Naval Warfare through the Lens of Maritime Security Law‘. The event is set to happen on 11-12 May 2022 at the Estonian Academy of Sciences (Estonia). The conference will bring together experts from various fields of international law, maritime law, as well as security law to discuss legal challenges posed by hybrid naval warfare. Registration is free and open until there are open seats. Read about the program, panelists, registration, and more on the conference website.
Filed under Events
ITLOS – Nippon Foundation Capacity Building and Training Programme 2023-2024
The ITLOS-Nippon Foundation Capacity-Building and Training Programme on Dispute Settlement under UNCLOS, July 2023 – March 2024, to be held at the International Tribunal for the Law of the Sea (Hamburg, Germany), is welcoming applications until 31 March 2023.
For more information see the flyer and website.
Programme TIDM– Nippon Foundation de renforcement des capacités et de formation 2023-2024
Les personnes intéressées au Programme TIDM-Nippon Foundation de renforcement des capacités et de formation en matière de règlement des différends relatifs à la Convention des Nations Unies sur le droit de la mer, qui se tiendra au TIDM (Hambourg, Allemagne) de juillet 2023 à mars 2024, sont invitées à soumettre leur candidature jusqu’au 31 mars 2023.
Pour de plus amples informations, veuillez consulter la brochure et le site Internet.
Filed under Courses