Category Archives: State Practice

Germany: Carbon Capture & Storage Strategy in the EEZ & Continental Shelf

On 26 February 2024 the Federal Ministry for Economic Affairs and Climate Action (BMWK) of Germany announced key points of its Carbon Management Strategy, which include amendments to the legislative framework to authorise industrial carbon capture and storage or use. Draft amendments to the Carbon Dioxide Storage Act would rename it the Carbon Dioxide Storage and Transport Act and include amendments to provide for industrial carbon capture and storage in the exclusive economic zone (EEZ) or the continental shelf of Germany (Carbon Dioxide Storage Act (Draft Amendment), Sections 2(2)-2(3)), excluding Marine Protected Areas (Carbon Dioxide Storage Act (Draft Amendment), Section 13(9)). A clarified and uniform approval regime for carbon dioxide pipelines is also foreseen (Carbon Dioxide Storage Act (Draft Amendment), Sections 2(1), 3(6)).

The key points also note that Germany intends to ratify the 2009 Amendments to the London Protocol (not yet in force) and will amend its domestic implementing legislation, the High Seas Dumping Act. For more information, see the press release.

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CMS: COP14 Resolutions & Decisions including Deep-Sea Mining; Marine Pollution; FADs

The Fourteenth Meeting of the Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals (COP14) was held 12-17 February 2024 in Samarkand (Uzbekistan). A number of resolutions and decisions relevant to ocean governance were considered (including amendments) and adopted, such as on Bycatch; Fish Aggregating Devices; Maltreatment and Mutilation of Seabirds in Fisheries; Marine Pollution; Plastic Pollution and Deep-Sea Mining. Concerning the latter, on 1 February 2024 the Secretary General of the International Seabed Authority submitted a letter in response to the draft decision. As reported in Earth Negotiations Bulletin ‘significant discussions’ took place following a proposed amendment by Germany to add “or support” to paragraph 3:

The Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals
[…]
3. Urges Parties not to engage in, or support, deep-seabed mineral exploitation activities until sufficient and robust scientific information has been obtained to ensure that deep-seabed mineral exploitation activities do not cause harmful effects to migratory species, their prey and their ecosystems;

4. Encourages Parties to ensure that the impacts of deep-seabed mineral exploitation activities on migratory species, their prey and their ecosystems are fully considered in the development and implementation of any regulatory framework under national legislation and under the ISA for deep seabed mineral exploitation activities, in accordance with the precautionary approach, to ensure the conservation of migratory species;

Deep-Seabed Mineral Exploitation Activities And Migratory Species (UNEP/CMS/COP14/CRP27.2.4/Rev.1)

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Philippines/Vietnam: MOU on maritime cooperation signed

Representatives of the Philippine Coast Guard and of Vietnam Coast Guard have formally signed a memorandum of understanding (MOU) on maritime cooperation in Hanoi, Vietnam, on 30 January 2024. The MOU strengthens the two parties’ understanding, mutual trust, and confidence by developing a Joint Coast Guard Committee to discuss common issues and interests and to establish a hotline communication mechanism. After the signing of the MoU, both entities are expected to hold the first bilateral meeting in April 2024, in Vietnam. See further in: press release from Philippine Coast Guard, press release from the Government of the Philippines, press release from the Government of Vietnam (in Vietnamese), and press release from Vietnam Coast Guard (in Vietnamese).

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Norway: Opening of an area on the Norwegian continental shelf for mineral activities

As previously reported, in 2023 the government of Norway formally proposed the opening up of the Norwegian continental shelf to mineral exploration and exploitation activities (see full timeline). On 9 January 2024, the Norwegian parliament positively considered the government’s proposal for the opening of an area on the Norwegian continental shelf for mineral activities, including the adoption of 4 recommendations. Section 1(6) and Section 2 of the Seabed Minerals Act provide that for actors other than the State of Norway, an area must first be opened before exploration or exploitation licences can be granted. According the the Ministry of Energy, a precautionary approach will be adopted and the process of announcing areas for applications and awarding extraction licenses will begin in 2024.

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India: Submission of two exploration work plans to ISA

On 18 January 2024, the Government of India submitted two applications to the International Seabed Authority (ISA) for approval of two plans of work for exploration in the Area. Both applications concern the Central Indian Ocean, (1) exploration for polymetallic sulphides in the Carlsberg Ridge and (2) exploration for cobalt-rich ferromanganese crusts of the Afanasy-Nikitin Seamount, respectively. The applications will be considered by the ISA Legal and Technical Commission (March 2024), with recommendations submitted to the ISA Council which has competence to approve plans of work for exploration in the Area.

The Government of India holds two existing exploration contracts, one for polymetallic nodules (twice extended) and one for polymetallic sulphides respectively. To-date, the ISA has entered into 31 exploration contracts, with 30 in effect (Companhia de Pesquisa de Recursos Minerais S.A. renounced its contractual rights on 28 December 2021).

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Palau: First Ratification of the BBNJ Agreement

On 22 January 2024 Palau became the first state or regional economic integration organization to ratify the 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 (BBNJ Agreement). This follows the reported completion of the domestic process approving its ratification on 12 December 2023 (House Joint Resolution No. 11-59-12S).

In related news, on 16 January 2024 the Senate and Senate Foreign Relations Committee of Chile approved the BBNJ Agreement, completing the domestic process. Ratification of the BBNJ Agreement by Chile will occur when the instrument of ratification is deposited with the Secretary-General of the United Nations (BBNJ Agreement, Article 66).

The BBNJ Agreement is not yet in force. In accordance with Article 68(1) of the BBNJ Agreement, the BBNJ Agreement “will enter into force 120 days after the date of deposit of the sixtieth instrument of ratification, approval, acceptance or accession”.

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UNSC: Resolution 2722 concerning attacks on merchant vessels in the Red Sea

On 10 January 2024 the UN Security Council Resolution (UNSC) adopted Resolution 2722 (2024) concerning Houthi attacks on merchant and commercial vessels in the Red Sea (voting: 11-0-4 (Algeria, China, Mozambique & Russian Federation abstaining)). Amongst others, Resolution 2722 (2024):

  1. Condemns in the strongest terms the at least two dozen Houthi attacks on merchant and commercial vessels since November 19, 2023, when the Houthis attacked and seized the Galaxy Leader and its crew;
  2. Demands that the Houthis immediately cease all such attacks, which impede global commerce and undermine navigational rights and freedoms as well as regional peace and security, and further demands that the Houthis immediately release the Galaxy Leader and its crew;
  3. Affirms the exercise of navigational rights and freedoms by merchant and commercial vessels, in accordance with international law, must be respected, and takes note of the right of Member States, in accordance with international law, to defend their vessels from attacks, including those that undermine navigational rights and freedoms;
Resolution 2722 (2024) concerning Houthi attacks on merchant and commercial vessels

This follows the UNSC previously condemning Houthi attacks on merchant shipping in a Press Statement of 1 December 2023 (SC/15513), followed by further multilateral condemnation e.g. Joint Statement (19 December 2023). See further the Statement of IMO Secretary-General on the adoption of Resolution 2722 (2024) and previous Statement of 19 December 2023.

On related but distinct developments, see the establishment of Operation Prosperity Guardian (2) under the Combined Maritime Forces umbrella (18 December 2023); Djibouti Code of Conduct: Call for action on attacks against International Shipping in the Red Sea (7 January 2024); and the conduct of joint strikes by 10 States “against a number of targets in Houthi-controlled areas of Yemen” “in accordance with the inherent right of individual and collective self-defense” (Joint Statement, 11 January 2024 (2); including Statement of Spokesperson for the Secretary-General).

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INC on Plastic Pollution: Revised Draft Text Published

On 28 December 2023, following the mandate provided by the third session of the Intergovernmental Negotiating Committee to develop an international legally binding instrument on plastic pollution, including in the marine environment (INC-3), the INC Secretariat published a Revised draft text of the international legally binding instrument on plastic pollution, including in the marine environment (UNEP/PP/INC.4/3). The revised draft has been published ahead of the fourth session (INC-4) (23-29 April 2024). For more information see the UNEP website.

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USA: Announcement of Extended Continental Shelf Outer Limits

On 19 December 2023 the US released the geographic coordinates defining the outer limits of the U.S. continental shelf in areas beyond 200 nautical miles from the coast, which, according to the USA, are determined “in accordance with customary international law, as reflected in the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, and the Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf”. The Executive Summary (2023) provides further details. Overlapping claims with the extended continental shelf areas of Canada, The Bahamas, and Japan require delimitation. Relevant delimitation agreements have been reached with Cuba, Mexico, and Russia, on which see the related announcement on 18 December 2023, whereby the President transmitted to the Senate for consideration the 2017 Treaty between the United States of America and the Republic of Cuba on the Delimitation of the Continental Shelf in the Eastern Gulf of Mexico beyond 200 Nautical Miles and the 2017 Treaty between the Government of the United States of America and the Government of the United Mexican States on the Delimitation of the Maritime Boundary in the Eastern Gulf of Mexico (both not yet in force; not yet public but will be accessible here). For further information see the dedicate webpage on the US extended continental shelf claim.

US State Department, U.S. Extended Continental Shelf Regions, available at https://www.state.gov/the-us-ecs/

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Russia: revised submission to the CLCS in the area of the Gakkel Ridge (Arctic Ocean)

On 30 October 2023, the Russian Federation submitted to the Commission on the Limits of the Continental Shelf (CLCS), in accordance with UNCLOS Article 76, paragraph 8, and with reference to its Submission of 20 December 2001, and of it Partial Revised submission of 3 August 2015 (with addenda submitted on 31 March 2021) in respect of the Arctic Ocean, information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured in the area of the Gakkel Ridge in the Arctic Ocean. On 6 February 2023, CLCS had approved the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Partial Revised Submission Made by The Russian Federation in respect of the Arctic Ocean on 3 August 2015 with Addenda Submitted on 31 March 2021. The purpose of this new submission is to establish the outer limits of the continental shelf (OLCS) of the Russian Federation in the Eurasian Basin of the Arctic Ocean in the area of the Gakkel Ridge, the Nansen and Amundsen basins.

OLCS line of the Russian Federation in the area of the Gakkel Ridge, the Nansen and Amundsen basins (source).

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ISA: Secretary-General takes Immediate Measures concerning Nauru Ocean Resources Inc Incident

Beginning 23 November 2023, a reported incident involving an ISA contractor, Nauru Ocean Resources Inc (NORI) (Contract for Exploration for Polymetallic Nodules between the International Seabed Authority and Nauru Ocean Resources Inc (22 July 2011)), and Greenpeace International, has occurred in the NORI-D contract area (Clarion-Clipperton Zone), resulting in NORI reporting to the ISA the disruption of its exploration activities conducted by the MV Coco 25-26 November 2023.

“In its letters to the Authority, Nauru Ocean Resources Inc alleged that the conduct of Greenpeace International representatives had caused significant safety risk since 23 November 2023 in the NORI-D contract area […] According to Greenpeace International, it is engaged in a ‘safe and peaceful protest at sea’, in the exercise of its ‘right to peaceful protest at sea’ [see previously, The Arctic Sunrise Arbitration (Netherlands v. Russia)]. According to Greenpeace International, ‘there are [no] threats to the safety of individuals caused by the actions of Greenpeace International’.”

Notification of immediate measures of a temporary nature (27 November 2023), paras 5-6.

The Secretary-General of the ISA concluded “[t]he circumstances described by NORI prima facie pose a serious threat to the safety of individuals present in the Exploration Area and to the marine environment” (Notification of immediate measures of a temporary nature (27 November 2023), para 6). Therefore, on 27 November 2023 the Secretary-General of the ISA exercised his powers under Regulation 33(3) of the Regulations on Prospecting and Exploration for Polymetallic Nodules, to promulgate immediate measures of a temporary nature. Regulation 33 applies when “the Secretary-General has been notified by a contractor or otherwise becomes aware of an incident resulting from or caused by a contractor’s activities in the Area that has caused, is causing or poses a threat of serious harm to the marine environment” and provides:

“Pending any action by the Council, the Secretary-General shall take such immediate measures of a temporary nature as are practical and reasonable in the circumstances to prevent, contain and minimize serious harm or the threat of serious harm to the marine environment. Such temporary measures shall remain in effect for no longer than 90 days, or until the Council decides at its next regular session or a special session, what measures, if any, to take pursuant to paragraph 6 of this regulation.”

Regulations on Prospecting and Exploration for Polymetallic Nodules, Reg 33(3)

The Secretary-General took the following immediate measures of a temporary nature:

a. Calls upon all parties present in the vicinity of MV Coco as of 27 November 2023 (other than the crew of MV Coco) to maintain a safety distance from MV Coco of at least 500m (unless otherwise authorized by the captain of MV Coco);
b. Calls upon parties who have boarded MV Coco on or since 25 November 2023 without authorization from the captain of MV Coco to refrain from interfering with the operation of MV Coco;
c. Calls upon Nauru Ocean Resources Inc and Greenpeace International to cooperate with a view to ensuring that the parties who have boarded MV Coco on or since 25 November 2023 without authorization from the captain of MV Coco are safely disembarked from the MV Coco as soon as practicable;
d. Calls upon Nauru Ocean Resources Inc and Greenpeace International to report to the Authority on a daily basis as to the steps taken to ensure compliance with this immediate measure of temporary nature (unless no further updates are required by the Secretary-General);
e. Calls upon Nauru Ocean Resources Inc and Greenpeace International to relay the contents of these immediate measures of a temporary nature to their personnel on board or in the vicinity of MV Coco;
f. Calls upon Nauru Ocean Resources Inc to provide a detailed report on the assessment of the consequences of the disruption of the exploration activities Nauru Ocean Resources Inc alleges to have taken place since 23 November 2023;
g. Calls upon the Kingdom of the Netherlands to consider what measures, if any, are warranted pursuant to international law and the laws of the Netherlands concerning the conduct of Greenpeace International and the Arctic Sunrise in the present circumstances.

Notification of immediate measures of a temporary nature (27 November 2023), para 8.

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PIF: 52nd Pacific Islands Forum Communique

The 52nd Pacific Islands Leaders Forum (6-10 November 2023, Cook Islands) adopted the 52nd Pacific Islands Forum Communique (9 November 2023) and a number of annexed instruments which touch upon numerous law of the sea issues:

Leaders welcomed and endorsed the 2050 Strategy Implementation Plan (9 November 2023) for the 2050 Strategy for the Blue Pacific Continent (2022) [para 9].

Leaders endorsed the Pacific Regional Framework on Climate Mobility (9 November 2023) which “firmly acknowledges Forum Members’ fundamental priority to ‘stay in place’ in our ancestral homes, including through land reclamation, and is a global first that aims to provide practical guidance to governments planning for and managing climate mobility, while also respecting Members’ national laws and policies” [para 21]:

  • We will preserve our formal ties to home and, recalling our Declaration on Preserving Maritime Zones in the Face of Climate Change-Related Sea-Level Rise, continue to exercise sovereignty and sovereign rights over maritime zones and resources. The Framework acknowledges and will preserve our right to stay at home and deepen collective responsibility and accountability for the stewardship of the Blue Pacific Continent. We will ensure protection against statelessness and respect associated rights [Pacific Regional Framework on Climate Mobility (9 November 2023) para 16].

Leaders considered and endorsed the 2023 Pacific Islands Forum Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea Level Rise (9 November 2023) and its Aide-Memoire [para 24]:

  • Affirm that international law supports a presumption of continuity of statehood and does not contemplate its demise in the context of climate change-related sea-level rise,
  • Declare that the statehood and sovereignty of Members of the Pacific Islands Forum will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise,
  • Further declare that Members of the Pacific Islands Forum, individually and collectively, bear an important responsibility for ensuring protection of our people, and are committed to protecting such persons affected by climate change-related sea-level rise, including with respect to human rights duties, political status, culture, cultural heritage, identity and dignity, and meeting essential needs [2023 Pacific Islands Forum Declaration on the Continuity of Statehood and the Protection of Persons in the Face of Climate Change-Related Sea Level Rise (9 November 2023) paras 12-14].

Leaders strongly encouraged the participation of all Forum Members in the International Court of Justice Advisory Opinion on Climate Change proceedings and noted the Secretariat has made an official request for permission to make a submission [para 27].

Leaders reaffirmed fisheries as a standing agenda item, and their commitment to sustainably management and development [para 30].

Leaders encouraged the Forum WTO members to ratify the Fisheries Subsidies Agreement and conclude the second wave of negotiations by the thirteenth WTO Ministerial Conference (MC13), including issuance of the Forum Statement on WTO Fisheries Subsidies (9 November 2023) in preparation thereof [para 37]:

  • Leaders noted that 84% harmful fishing subsidies go to capacity enhancing programs that fuel overcapacity and overfishing, which lead to the continuing decline in global fish stocks.
  • Leaders therefore reiterated their call in 2022 for all Forum WTO Members to work together to advance the negotiations and to aim to conclude the second wave of the negotiations towards comprehensive disciplines that include subsidies to overcapacity and overfishing with appropriate and effective special and differential treatment by MC13 in February 2024 [Forum Statement on WTO Fisheries Subsidies (9 November 2023) p 1].

Leaders recognised the sovereignty of Members to determine their own national positions on the discharge by Japan of over a million tonnes of Advanced Liquid Processing System (ALPS) treated nuclear wastewater into the Pacific Ocean [para 44].

Leaders noted the release of the ALPS treated nuclear wastewater into the Pacific Ocean on 24 August 2023 and continuing over the next 30 years, and recommended and encouraged Japan to:
(a) embed the Fukushima issue as a standing item of the [Pacific Leaders Meeting] PALM agenda; and
(b) establish political dialogue annually to ascertain safety issues based on international safety standards and ongoing independent monitoring by the IAEA [para 50].

The 52nd PIF Leaders Statement on the Fukushima ALPS-Treated Nuclear Wastewater Issue (9 November 2023) reaffirms PIF Leaders “are committed to embedding nuclear related discharge as a standing item on the PIF agenda and relevant Pacific partner summits, including PALM, and to a political dialogue annually to consider safety issues based on international safety standards and ongoing independent monitoring by the IAEA”.

Leaders promoted full compliance by the Parties to the provisions of the Rarotonga Treaty, and reiterated the invitation to remaining non-Party Forum Members to accede to the Treaty, and urged the United States to ratify the Treaty Protocols [paras 53-54].

Leaders noted the update provided by Australia in relation to the Trilateral Security Pact between Australia, the United Kingdom and the United States (AUKUS), and welcomed the transparency of Australia’s efforts, and commitment to compliance with international law [para 56].

Leaders encouraged Members to sign onto the BBNJ Agreement, noting that some Members are undertaking necessary national approval processes. Leaders endorsed the proposed way forward to provide coordinated regional support on Members’ implementation of the BBNJ Agreement, through the [Office of the Pacific Ocean Commissioner] OPOC [para 58].

Leaders encouraged Members to join the High Level Ambition Coalition to End Plastic Pollution, and continued support and involvement in the ongoing plastics treaty negotiations [para 59].

Leaders acknowledged the significant interest in deep sea minerals among specific Members and recognised and respected the diversity of positions amongst Members on deep sea minerals development and sovereign decision-making [para 68].

Leaders acknowledged commitments by development partners to support all countries in the region to achieve primary submarine cable connectivity and secure options for redundancy [para 74].

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ICJ: Election of Five Members of the Court

In accordance with the election procedure detailed in Articles 8-10 of the ICJ Statute, on 9 November 2023 the General Assembly and the Security Council of the United Nations elected five Members of the International Court of Justice for a term of office of nine years, beginning on 6 February 2024. The Security Council held 5 rounds of voting, the General assembly 1 round of voting. Judge Hilary Charlesworth (Australia) was re-elected as Member of the Court. Mr Bogdan-Lucian Aurescu (Romania), Ms Sarah Hull Cleveland (United States of America), Mr Juan Manuel Gómez Robledo Verduzco (Mexico) and Mr Dire Tladi (South Africa) were elected as new Members of the Court (ICJ Press Release No. 2023/63).

The Court’s composition on 6 February 2024 will be as follows:  Ronny Abraham (France) (2027); Dalveer Bhandari (India) (2027); Antônio Augusto Cançado Trindade (Brazil) (2027); Xue Hanqin (China) (2030); Yuji Iwasawa (Japan) (2030); Georg Nolte (Germany) (2030); Nawaf Salam (Lebanon) (2027); Julia Sebutinde (Uganda) (2030); Peter Tomka (Slovakia) (2030); and Abdulqawi Ahmed Yusuf (Somalia) (2027); Hilary Charlesworth (Australia) (2033); Bogdan-Lucian Aurescu (Romania) (2033); Sarah Hull Cleveland (United States) (2033); Juan Manuel Gomez Robledo Verduzco (Mexico) (2033); and Dire Tladi (South Africa) (2033).

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Tuvalu/Australia: Falepili Union Treaty

On 9 November 2023 the Government of Tuvalu and the Government of Australia signed the Australia-Tuvalu Falepili Union Treaty addressing migration and security issues in the context of their bilateral relations. The Australia-Tuvalu Falepili Union Treaty recognises that climate change is Tuvalu’s greatest national security concern (preamble) and follows a Tuvalu-led examination of partnership options to protect and promote its interests and ensure its continued sovereignty, including a formal request to Australia to consider elevating the Australia-Tuvalu bilateral partnership. In respect of the law of the sea, interesting provisions include:

Article 2: Climate cooperation

(2) The Parties recognise:
(a) the desire of Tuvalu’s people to continue to live in their territory where possible and Tuvalu’s deep, ancestral connections to land and sea;
(b) the statehood and sovereignty of Tuvalu will continue, and the rights and duties inherent thereto will be maintained, notwithstanding the impact of climate change-related sea-level rise;
(c) that more recent technological developments provide additional adaptation opportunities.

Article 3: Human mobility with dignity
(1) Australia shall arrange for a special human mobility pathway for citizens of Tuvalu to access Australia which shall enable citizens of Tuvalu to:
(a) live, study and work in Australia;
(b) access Australian education, health, and key income and family support on arrival.

Article 4: Cooperation for security and stability
(1) Australia shall, in accordance with its international law obligations, international commitments, domestic processes and capacity, and following a request from Tuvalu, provide assistance to Tuvalu in response to:
(a) a major natural disaster;
(b) a public health emergency of international concern;
(c) military aggression against Tuvalu.

(4) Tuvalu shall mutually agree with Australia any partnership, arrangement or engagement with any other State or entity on security and defence-related matters. Such matters include but are not limited to defence, policing, border protection, cyber security and critical infrastructure, including ports, telecommunications and energy infrastructure.

Australia-Tuvalu Falepili Union Treaty

The Joint Statement on the Falepili Union between Tuvalu and Australia also recognises the commitment of both states to “extend [their] partnership through expansion of the Tuvalu Coastal Adaptation Project to reclaim land in Funafuti. This project will expand Funafuti’s land by around six per cent”.

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Canada/Greenland: Letter of Intent for Cooperation on the Pikialasorsuaq

On 19 October 2023 Canada and the Kingdom of Denmark with regard to Greenland signed a Letter of Intent on Cooperation For The Pikialasorsuaq Between The Department of Fisheries and Oceans of Canada and The Ministry of Agriculture, Self-sufficiency, Energy and Environment of The Government of Greenland. While not legally binding the objectives of the Letter of Intent –taking into account existing bilateral arrangements between the Participants and other relevant international obligations for the Participants of importance for the management of the area– are:

The Participants will:
(a) establish a joint Pikialasorsuaq steering committee to develop instruments and common foundations for management of the area;
(b) share relevant existing scientific information, Inuit Qaujimajatuqangit in Canada, as well as hunter and user knowledge in Greenland from relevant government-based institutions and other sources, and cooperate and coordinate on research and monitoring of key ecosystem parameters relevant to the area;
(c) share information from consultations with local representatives of relevance to the area; and
(d) refer questions that fall wholly or partially outside of their areas of competence or outside the terms of this Letter of Intent for separate discussion with relevant authorities.

Letter of Intent, Para 1
Map: Pikialasorsuaq (North Water Polynya). © DFO, available at https://www.dfo-mpo.gc.ca/oceans/management-gestion/pikialasorsuaq-eng.html

The Qikiqtani Inuit Association witnessed signature and the Inuit Circumpolar Council (ICC) welcomed the Letter of Intent. For more information see the press releases of the Governments of Canada and Greenland.

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BBNJ Agreement Opens for Signature

As previously reported, the 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 (BBNJ Agreement) opened for signature on the 20 September 2023 and shall remain open for signature at United Nations Headquarters (New York, USA) until 20 September 2025 (BBNJ Agreement, Article 65).

67 States and 1 Regional Economic Integration Organization have signed the BBNJ Agreement on the first day, 20 September 2023, including:

States: Antigua and Barbuda; Australia; Austria; Bangladesh; Belgium; Bolivia (Plurinational State of); Bulgaria; Cabo Verde; Chile; China; Colombia; Congo; Costa Rica; Croatia; Cuba; Cyprus; Denmark; Dominican Republic; Estonia; Fiji; Finland; France; Gabon; Germany; Ghana; Honduras; Iceland; Indonesia; Ireland; Lao People’s Democratic Republic; Latvia; Lithuania; Luxembourg; Malawi; Malta; Marshall Islands; Mauritius; Mexico; Micronesia (Federated States of); Monaco; Nepal; Netherlands (Kingdom of the); New Zealand; Norway; Palau; Panama; Philippines; Portugal; Romania; Samoa; Seychelles; Sierra Leone; Singapore; Slovakia; Slovenia; Solomon Islands; Spain; St. Lucia; St. Vincent and the Grenadines; State of Palestine; Sweden; Timor-Leste; Tuvalu; United Kingdom of Great Britain and Northern Ireland; United Republic of Tanzania; United States of America; and Viet Nam.

Regional Economic Integration Organizations: European Union.

The United Kingdom of Great Britain and Northern Ireland attached declarations to its signature (will be available here). For more information see here and here.

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INC on Plastic Pollution: Zero Draft Text Published

On 4 September 2023, following the mandate provided by the second session of the Intergovernmental Negotiating Committee to develop an international legally binding instrument on plastic pollution, including in the marine environment (INC-2) (29 May – 2 June 2023), the INC Chair published a Zero draft text of the international legally binding instrument on plastic pollution, including in the marine environment (UNEP/PP/INC.3/4). The zero draft has been published ahead of the third session (INC-3) (13-19 November 2023). For more information see the UNEP website.

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MSG: Udaune Declaration and Efate Declaration

The 22nd Melanesian Spearhead Group (MSG) Leaders Summit was held 23-24 August 2023 in Port Vila, Vanuatu. The Efate Declaration, among others, desires “to focus the security conversation on Climate Change and the security of the environment, identified as our existential threat under the Boa Declaration and the MSG Security Strategy”. The Udaune Declaration also seeks to refocus the security narrative in the region on Climate Change and the position of SIDS, raising a number of maritime governance issues, including agreement to:

“PURSUE the International Court of Justice (ICJ) Advisory Opinion on Responsibility of States vis-â-vis Climate Change to its conclusion;
UNDERTAKE to make national submissions to the ICJ on the nefarious impact and effect of climate change;
URGE Japan not to discharge the treated water into the Pacific Ocean until and unless the treated water is incontrovertibly proven scientifically to be safe to do so and seriously consider other options like use in concrete;
REGRETS DEEPLY the decision by Japan to dump ALPS in the Pacific Ocean, which has inter-generational and transboundary impact on our ocean, economy, livelihood, and future and on lie basis of improved science and technology urged Japan to consider other options for disposal of ALPS;
UNDERTAKE not to allow Underwater Seabed Mining to be carried out in their jurisdictions;
CALL for more rigorous and transparent environmental scientific research on seabed mining and call for a Pacific region wide moratorium”

Udaune Declaration, 24 August 2023

For more information see the MSG Secretariat.

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Japan: Initiation of ALPS treated water discharge into the sea at Fukushima Daiichi Nuclear Power Station

As previously reported, Japan was considering the discharge of Advanced Liquid Processing System (ALPS) treated water into the sea at the Fukushima Daiichi Nuclear Power Station. After an IAEA Review of Safety Related Aspects (4 July 2023) found the proposed approach and activities as consistent with relevant international safety standards, on 22 August 2023 the sixth meeting of the Inter-Ministerial Council concerning the Continuous Implementation of the Basic Policy on Handling of ALPS Treated Water (Japan) decided:

(9)Based on the above, the Government of Japan has decided to initiate the discharge into the sea as indicated in the basic policy, and to request TEPCO to promptly proceed with the preparation work for the start of the discharge into the sea in accordance with Implementation Plan for Fukushima Daiichi Nuclear Power Station Specified Nuclear Facility (implementation plan) approved by the NRA.
(10)If there is no interference due to weather or sea conditions, the discharge into the sea is expected to start on 24 August [2023].

Actions and future measures regarding “Basic Policy on handling of ALPS treated water at the Tokyo Electric Power Company Holdings’ Fukushima Daiichi Nuclear Power Station” (22 August 2023)

On 24 August 2023 IAEA experts confirmed that Tokyo Electric Power Company Holdings (TEPCO) started discharging ALPS treated water stored at the Fukushima Daiichi Nuclear Power Station into the sea (IAEA Press Release; TEPCO Press Release (2)). The  IAEA will remain present on site throughout the release of treated water and shall provide access to live data from Japan on the release. Furthermore, on 22 August 2023 Japan held its 123rd briefing session, with the significant interest of the international community evident in the number and diversity of (32) participating diplomatic missions, while the IAEA and Republic of Korea (ROK) agreed to establish the IAEA-ROK Fukushima Information Mechanism (IKFIM), which “will provide up-to-date information to ROK and facilitate visits by the country’s experts to the Agency’s office at the site. It also includes an arrangement for notifications in case of abnormal events”.

As recognised in the remarks of the Pacific Islands Forum Secretary General on 24 August 2023, “there continues to be divergent views and responses in the international community and within the Forum Membership on this issue, and I recognise the sovereignty and prerogative of Forum Members to determine their own national positions”. For example, on 13 July 2023, the EU announced it would lift Fukushima restrictions on food imports, adopted in 2011, but highlighting the importance of monitoring of domestic production for radioactivity, including due publicity, “in particular fish, fishery products and seaweed close to the release site of the ALPS treated water” (lifted 3 August 2023, alongside Norway and Iceland). On 15 August 2023 Switzerland and Liechtenstein lifted restrictions. Meanwhile, on 24 August 2023 South Korea noted it will continue to impose import restrictions on seafood and farm products from Japanese prefectures near the power plant and called for transparency throughout the expected 30 years of ALPS treated water discharges. On 24 August 2023, a statement by China continued to voice its strong opposition to the discharge into the sea as violating international law and suspended the import of all aquatic products originating from Japan (General Administration of Customs Announcement No. 103 of 2023).

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ITLOS: Closure of Written Proceedings in Request for an Advisory Opinion Submitted by COSIS

As previously reported, 16 June 2023 was fixed as the time limit within which to present written statements in respect of 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). On the 26 June 2023 ITLOS published the written submissions received to-date, including the submissions of 32 States Parties to UNCLOS (Democratic Republic of the Congo, Poland, New Zealand, Japan, Norway, Germany, Italy, China, European Union, Mozambique, Australia, Mauritius, Indonesia, Latvia, Singapore, Republic of Korea, Egypt, Brazil, France, Chile, Bangladesh, Nauru, Belize, Portugal, Canada, Guatemala, United Kingdom, The Netherlands, Sierra Leone, Micronesia, Djibouti and Rwanda) and 9 invited Intergovernmental Organisations (United Nations, International Union for the Conservation of Nature, International Maritime Organisation, Commission of Small Island States on Climate Change and International Law, Pacific Community, United Nations Environment Programme, African Union, International Seabed Authority and the Food and Agricultural Organization of the United Nations). The written statements of Rwanda and the FAO were received after 16 June 2023, but the President of the Tribunal decided they shall be admitted and included in the case file. A similar situation occurred in the Seabed Dispute Chamber Advisory Opinion proceedings, whereby the late written submission of UNEP was admitted into the case file (Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, para 16). An additional 10 statements to assist the Tribunal –falling outside the Rules of the Tribunal and case file but published online– were received (United Nations Special Rapporteurs on Human Rights & Climate Change, Toxics & Human Rights and Human Rights & the Environment; High Seas Alliance; ClientEarth; Opportunity Green; Center for International Environmental Law and Greenpeace International; Advisory Committee on Protection of the Sea; World Wide Fund for Nature; Our Children’s Trust and Oxfam International; Observatory for Marine and Coastal Governance; One Ocean Hub).

On the 30 June 2023, by Order of 30 June 2023, the President of the International Tribunal for the Law of the Sea made the following order:

Fixes 11 September 2023 as the date for the opening of the hearing at which oral statements may be made to the Tribunal by the States Parties to the Convention, the Commission of Small Island States on Climate Change and International Law and the other intergovernmental organizations listed in the annex to the Order of the President of the Tribunal of 16 December 2022, as well as the African Union, the International Seabed Authority and the Pacific Community;

Invites the States Parties to the Convention, the Commission of Small Island States on Climate Change and International Law and the other intergovernmental organizations listed in the annex to the Order of the President of the Tribunal of 16 December 2022, as well as the African Union, the International Seabed Authority and the Pacific Community, to indicate to the Registrar of the Tribunal, not later than 4 August 2023, their intention to make oral statements at the hearing; and

Reserves the subsequent procedure for further decision.

Order of 30 June 2023, p. 3

By fixing the date of oral proceedings, the President has closed the written stage of the Advisory Opinion proceedings (similar to the Seabed Dispute Chamber Advisory Opinion proceedings, but contrast the SRFC Advisory Opinion proceedings, where 2 rounds of written statements were permitted). See further ITLOS/Press 340 and ITLOS/Press 341.

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UK: Shark Fins Act 2023

On 29 June 2023 the Shark Fins Act 2023 was passed into law in the UK (extends to England and Wales, Scotland and Northern Ireland), as “an act to prohibit the import and export of shark fins and to make provision relating to the removal of fins from sharks”. Subject to exceptions, Section 1 of the Shark Fins Act 2023 prohibits the import and export of [detached] shark fins, or things containing shark fins [including tinned shark fin soup], into or from the UK. For more information see the UK Government press release.

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EU: 11th package of sanctions against Russia (transport measures)

The European Union (EU) announced in 23 June 2023 the adoption of the 11th package of sanctions against Russia for its continued illegal war against Ukraine. Aside from measures on trade, the EU is also imposing measures applicable to vessels and reliant on its Member States’ port State jurisdiction:

  • Prohibition to access EU ports for vessels that engage in ship-to-ship transfers suspected to be in breach of the Russian oil import ban or G7 Coalition price cap.
  • Prohibition to access EU ports for vessels if a vessel does not notify the competent authority at least 48 hours in advance about a ship-to-ship transfer occurring within the Exclusive Economic Zone of a Member State or within 12 nautical miles from the baseline of that Member State’s coast.
  • Prohibition to access EU ports for vessels which manipulate or turn off their navigation tracking system when transporting Russian oil subject to the oil import ban or G7 price cap.

A summary of the full list of sanctions of this package may be found in this press release from the European Commission.

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Norway: recommendation on continental shelf mineral works approved

The Government of Norway approved (20 June 2023) and published a recommendation on mineral works on the Norwegian continental shelf. The recommendation proposes to open parts of the Norwegian continental shelf for commercial seabed mineral activities. The Government’s white paper may be found here, together with supporting studies and impact assessment. Before an area can be opened for mineral activities, an opening process must be carried out; this process was initiated by the Ministry of Petroleum and Energy in 2020. The Act relating to mineral activities on the Norwegian continental shelf – the Seabed Minerals Act – entered into force on 1 July 2019.

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BBNJ Agreement Adopted

On 19 June 2023 the further resumed fifth session of the intergovernmental conference adopted by consensus without a vote the 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 (currently available as UN Doc A/CONF.232/2023/4). The Coordinator of the previously reported Open-Ended Informal Working Group on Technical Edits and Language Harmonization reported on their work. In general, statements made by representatives of States and regional economic integration organizations appear positive, with a number signalling their intent to sign the BBNJ Agreement on 20 September 2023, and ratify soon thereafter (e.g. Singapore and the Pacific Islands Forum Members). However, the Russian Federation representative “distanced himself from the consensus on the agreement’s text, adding:  ‘This instrument is unacceptable. The matter of our participation in it cannot be considered'”. The Representative of Venezuela stressed that its joining of consensus should not be interpreted as a modification of its position on UNCLOS, to which it is not a party.

The next steps are found in Article 65 of the BBNJ Agreement, which now provides:

This Agreement shall be open for signature by all States and regional economic integration organizations from 20 September 2023 and shall remain open for signature at United Nations Headquarters in New York until 20 September 2025.

BBNJ Agreement, Article 65

Ratification, approval or acceptance by States and regional economic integration organizations is addressed in Article 66 of the BBNJ Agreement. Accession by States and regional economic integration organizations after 20 September 2025 is addressed in Article 66 of the BBNJ Agreement. Entry into force and provisional application are addressed in in Articles 68-69 of the BBNJ Agreement.

The further resumed fifth session of the IGC is being held 19-20 June 2023. On 20 June 2023 the general exchange of views will continue (UN Doc A/CONF.232/2023/L.4)

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COSIS: Eight Members of the Commission

As of 16 June 2023, the deadline for which written statements may be presented to ITLOS in 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 Commission of Small Island States on Climate Change and International Law (COSIS) is comprised of eight States, who are Parties to the COSIS Agreement (Article 3(2)). Following previous reports, the latest two Parties to the COSIS Agreement are Saint Vincent and the Grenadines (Accession; 9 June 2023) and The Federation of Saint Christopher (Saint Kitts) and Nevis (Accession; 13 June 2023).

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ITLOS: Election of Seven Members of the Tribunal 2023

The Thirty-Third Meeting of States Parties to the United Nations Convention on the Law of the Sea (SPLOS) have elected seven Members of the International Tribunal for the Law of the Sea (ITLOS), following voting held 14 June 2023 (UNCLOS, Annex VI, Article 4; see nominations).

The States Parties re-elected Vice-President Tomas Heidar (Iceland) and elected Ms Frida María Armas Pfirter (Argentina), Mr Hidehisa Horinouchi (Japan), Mr Thembile Elphus Joyini (South Africa), Mr Osman Keh Kamara (Sierra Leone), Mr Konrad Jan Marciniak (Poland) and Mr Zha Hyoung Rhee (Republic of Korea)(see curricula vitae of candidates nominated by States Parties). The nine year term of each Member will commence 1 October 2023 (Rules of the Tribunal, Article 2).

The term of office for six Members of the Tribunal shall expire 30 September 2023, namely President Albertus Jacobus Hoffmann, Judge Stanislaw Michal Pawlak, Judge Shunji Yanai, Judge James Luta Kateka, Judge Jin-Hyun Paik and Judge Alonso Gómez-Robledo Verduzco. For more information see the ITLOS Press Release.

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Malaysia/Indonesia: Two Maritime Delimitation Agreements Signed

On 8 June 2023 the respective Ministers of Foreign Affairs of Indonesia and Malaysia signed the Treaty between Malaysia and the Republic of Indonesia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Southernmost Part of the Straits of Melaka (signed 8 June 2023, not yet in force) and Treaty between Malaysia and the Republic of Indonesia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Sulawesi Sea (signed 8 June 2023, not yet in force). While the texts of the agreements have not yet been released, the titles indicate further partial delimitation of the territorial seas as between the two opposite (SOM Treaty) and adjacent (Sulawesi Sea Treaty) states. The accompanying Joint Statement By The Honourable Prime Minister Of Malaysia And His Excellency President Of The Republic Of Indonesia (8 June 2023) affirms that the agreements follow “almost two decades of negotiations on maritime boundaries delimitation” and that the parties will seek the simultaneous entry into force of both treaties. In respect of the Sulawesi Sea Treaty, remaining land boundary ‘issues’ which could be of interest to maritime delimitation include in respect of the maritime feature of Pulau Sebatik, such as “the intertidal area in the east of Pulau Sebatik” and “the gap from the low water line to Point M”. The parties seek to resolve the remaining land boundary issues within one year (June 2024). Finally, “the two Leaders also agreed to task their maritime boundary negotiation teams to commence as soon as possible negotiations on all the remaining and outstanding maritime boundaries between both countries simultaneously”.

For wider context, on the SOM Treaty, see: Agreement between the Government of Malaysia and the Government of Indonesia on the delimitation of the continental shelves between the two countries (27 October 1969); Treaty between the Republic of Indonesia and Malaysia Relating to the Delimitation of the Territorial Seas of the Two Countries in the Strait of Malacca (1970, in force 8 October 1971) and Treaty between the Republic of Indonesia and the Republic of Singapore relating to the delimitation of the territorial seas of the two countries in the western part of the Strait of Singapore (2009, in force 30 August 2010). For wider context on the Sulawesi Sea Treaty, see: Sovereignty over Pulau Ligitan and Pulau Sipadan (IndonesialMalaysia), Judgment (17 December 2002) and Agreement between the Government of the Republic of Indonesia and the Government of the Republic of the Philippines concerning the delimitation of the exclusive economic zone boundary (2014, in force 1 August 2019). Finally, on fisheries law enforcement concerning undelimited waters, the Joint Leaders’ Statement (8 June 2023) calls for effective implementation of the Memorandum of Understanding Between the Government of Malaysia and the Government of the Republic of Indonesia in Respect of the Common Guidelines Concerning Treatment of Fisherman by Maritime Law Enforcement Agencies of Malaysia and the Republic of Indonesia (27 January 2012).

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USA/PNG: Agreement Concerning Counter Illicit Transnational Maritime Activity Operations 

On 22 May 2023, the United States and Papua New Guinea concluded, among others, an Agreement Concerning Counter Illicit Transnational Maritime Activity Operations, which “addresses a range of maritime threats including illegal, unreported, and unregulated (IUU) fishing, drug trafficking, migrant smuggling, and illicit transport of weapons of mass destruction (WMD)”. The text is not yet public, but the press release notes the inclusion of shiprider arrangements, maritime interdiction mechanisms and maritime domain awareness, among others. Other similar bilateral agreements on maritime interdiction, law enforcement and shipriders have been concluded previously, including similar titles, such as, USA/Nauru (2011), USA/Senegal (2011), USA/Tuvalu (2011), USA/Samoa (2012), USA/Micronesia (2014) and USA/Seychelles (2021).

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Russia: Extension of Participation in Black Sea Grain Initiative

As previously reported, the extension of the Black Sea Grain Initiative in March 2023 was subject to differing statements on the period of renewal. On 17 May 2023, it was confirmed (2) that the Russian Federation aligned its position with the other parties and will also continue its participation in the Black Sea Initiative for another 60 days. Ukraine welcomed ‘unblocking‘ of the agreement, following Ukraine’s previous objections (17 April 2023) to claimed interference in the inspection plan. On 15 May 2023, the UK likewise objected to delays and the blocking of vessel inspections, called for a sustained and stable deal, and “urge Russia to stop threatening to leave the initiative”. An update (8 May 2023) from the Office of the UN Coordinator for the Black Sea Grain Initiative confirmed “[s]ince 1 May, the JCC inspection rate has dropped significantly”, with no inspections on 7-8 May 2023. As of 8 May 2023, the total exports of grain and foodstuffs under the Initiative is 29,798,277 metric tonnes, while there have been no exports of fertilizers so far. Official reports (2) concerning a quadrilateral meeting between Ukraine, Türkiye, Russia and the UN on 10-11 May 2023 involved discussions of “the recent proposals by the United Nations, namely the resumption of the Togliatti-Odesa ammonia pipeline, the longer extension of the deal, improvements at the Joint Coordination Centre for stable operations and exports, as well as other issues raised by the parties”.

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Nigeria: The M/T ‘Heroic Idun’ Domestic Proceedings

On 3 May 2023 the Nigerian Navy published a press release providing an update on the domestic proceedings concerning the M/T ‘Heroic Idun‘ incident of August 2022, from the perspective of the Nigerian Navy. Following the domestic proceedings previously reported, according to the Nigerian Navy, on 10 January 2023 the ship and crew were charged at the Federal High Court in Port Harcourt, whereupon M/T ‘Heroic Idun‘ “and her 26 foreign crew pleaded guilty and elected voluntarily to enter into a plea bargain agreement with the Federal Republic of Nigeria as well as make restitution to the Federal Government”. The owners are said to have made the plea bargain under Section 270(1)(a) of the Administration of Criminal Justice Act 2015, which “was in the interest of justice, the public and for public policy interest” (thus, presumably accepted by the prosecutor under Section 270(3) of the Administration of Criminal Justice Act 2015). According to the Nigerian Navy press release, the court ordered release of the M/T ‘Heroic Idun‘ and crew is conditional on the terms of the plea bargain agreement being first fulfilled, as agreed, which include the M/T ‘Heroic Idun‘ “and its owners are to pay fines to the Federal Government and make an apology to the Federal Republic of Nigeria in print and electronic media as well as Llyod’s list. On its part, the Federal Government agreed not to further criminally prosecute and/or investigate the vessel, her owners, charterers or her crew in the matter of her crime against the State”. For more information see the related international proceedings concerning the M/T ‘Heroic Idun‘, previously reported.

Update 15 May 2023: On 12 May 2023 a public apology by the owners of the M/T ‘Heroic Idun‘ to the Federal Government of Nigeria was published in Lloyd’s List. The apology concerns the reporting of the approach of a Nigerian patrol vessel “as what was thought at the time to be a possible piracy attack”. The apology has been acknowledged and re-circulated by the Nigerian Navy and Nigerian Government.

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Tuvalu: MoU Signed with Sea Shepherd on Collaborative Fisheries Patrols and Enforcement

On 10 May 2023 the Government of Tuvalu signed a Memorandum of Understanding (MoU) with Sea Shepherd Global concerned with combatting illegal, unreported, and unregulated (IUU) fishing in Tuvalu’s EEZ (Tuvalu Department of Foreign Affairs). This represents the first collaboration law enforcement arrangement between the NGO and a coastal state in the Pacific region, previous examples involving Sea Shepherd assistance arrangements with Gabon, Liberia, Tanzania, The Gambia, Benin, São Tomé and Príncipe, Sierra Leone and Namibia (Sea Shepherd Global Press Release). Under the terms of the MoU, Sea Shepherd will provide a designated vessel, Allankay, at no-cost to the government of Tuvalu to support law enforcement efforts through at-sea patrols. Under the terms of the MoU, Tuvalu will station a detachment from the Tuvalu Police Service aboard the Allankay with the authority to board, inspect, and arrest fishing vessels engaged in IUU activity in the EEZ of Tuvalu.

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EU: Extension of Emission Trading Scheme to Maritime Transport

On 25 April 2023 the Council of the EU adopted a series of laws which will provide for the inclusion of maritime transport within the EU Emission Trading Scheme (EU ETS). The vote in the Council is the last step of the decision-making procedure, a procedure initiated in 2013 when the Commission adopted a strategy for progressively integrating maritime transport emissions into the European Union’s policy for reducing greenhouse gas emissions. The Directive of the European Parliament and of the Council amending Directive 2003/87/EC establishing a system for greenhouse gas emission allowance trading within the Union and Decision (EU) 2015/1814 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emission trading system (2023) provides the necessary amendments “to include maritime transport activities in the EU Emissions Trading System (EU ETS) in order to ensure that those activities contribute their fair share to the increased climate objectives of the Union as well as to the objectives of the Paris Agreement”, while the Regulation of the European Parliament and of the Council amending Regulation (EU) 2015/757 in order to provide for the inclusion of maritime transport activities in the EU Emissions Trading System and for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types (2023) provides the necessary amendments to the MRV Regulation to take account of said extension of the EU ETS to maritime transport and related updates, namely “to provide for monitoring, reporting and verification rules that are necessary for an extension of the EU ETS to maritime transport activities and to provide for the monitoring, reporting and verification of emissions of additional greenhouse gases and emissions from additional ship types” (Recitals 8 & 12, emphasis added). Once published in Official Journal of the EU the directive and regulation will be legally binding.

Of note in respect of its relations to developments of a global market-based mechanism through the International Maritime Organization (IMO):

Efforts to limit global maritime emissions through the IMO are under way and should be encouraged, including the rapid implementation of the Initial IMO Strategy on Reduction of Greenhouse Gas Emissions from Ships, adopted in 2018, which also refers to possible market-based measures to incentivise greenhouse gas emission reductions from international shipping. However, while recently there has been progress in the IMO, this has so far not been sufficient to achieve the objectives of the Paris Agreement. Given the international character of shipping, it is important that the Member States and the Union within their respective competences work with third countries to step up diplomatic efforts to strengthen global measures and make progress on the development of a global market-based measure at IMO level.

Directive 2003/87/EC (as amended April 2023), Recital 19.

Directive 2003/87/EC (as amended April 2023), Article 3gg(1) addresses the EU response “in the event of the adoption by the International Maritime Organization (IMO) of a global market-based measure to reduce greenhouse gas emissions from maritime transport”, while Article 3gg(2) addresses the EU response “in the event that the IMO does not adopt by 2028 a global market-based measure to reduce greenhouse gas emissions from maritime transport in line with the objectives of the Paris Agreement and at least to a level comparable to that resulting from the Union measures taken under this Directive”.

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IOTC: Resolution on DFADs & IOTC Members Objections

A Special Session of the Indian Ocean Tuna Commission (SS6) was held 3-5 February 2023 (Kenya), with the stated objective “the aim of the Special Session is to adopt a conservation and management measure on Fish Aggregating Devices”. This followed inaction on the issue at the 26th Session in May 2022. The 6th Special Session (IOTC Circular 2023-09) adopted Resolution 23-01 On management of Anchored Fish Aggregating Devices (AFADs) and Resolution 23-02 On Management of Drifting Fish Aggregating Devices (DFADs) in the IOTC area of competence, the latter adopted by a two-thirds majority vote.

Pursuant to Article IX of the IOTC Agreement, a number of Members have since formally objected to Resolution 23-02, namely Comoros (IOTC Circular 2023-11), Seychelles (IOTC Circular 2023-19), European Union (IOTC Circular 2023-26), Oman (IOTC Circular 2023-12), Philippines (IOTC Circular 2023-20), Kenya (IOTC Circular 2023-14), and Somalia (IOTC Circular 2023-18; IOTC Circular 2023-22 objection since withdrawn). In response to some of the statements made on Resolution 23-02, Indonesia circulated a statement “countering the misinterpretation of Resolution 23-02”, its statement representing a shared understanding by “a number” of the other Resolution 23-02 co-sponsoring states (IOTC Circular 2023-24).

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Ukraine/Türkiye/Russia: Extension of Black Sea Grain Initiative

The previously reported Black Sea Grain Initiative foresees a renewal of 120 days, as previously occurred, in Paragraph 5(H):

H. This initiative will remain in effect for 120 days from the date of signature by all Parties and can be extended automatically for the same period, unless one of the Parties notifies the other of the intent to terminate the initiative, or to modify it.

Initiative on the Safe Transportation of Grain and Foodstuffs from Ukrainian Ports

On 14 March 2023, the deadline of possible expiry, the Black Sea Grain Initiative was renewed by the parties, with the UN Secretariat continuing to reference the previously reported MoU on Russian Food Products and Fertilizers between Russia and UN Secretariat, which expires 22 July 2025 (Paragraph 6). The UN Secretary-General press release is silent on the length of extension, however the Ministry for the Restoration of Ukraine refers to a 120 days extension, while the Ministry of Foreign Affairs of Russia refers to 60 days extension, with the possibility that after 60 days there will be a further decision on extension or “[Russia’s] participation in the Black Sea Initiative will be suspended”.

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Norway: Judgment in SIA North Star Ltd v. Staten v/Nærings- og fiskeridepartementet

On 20 March 2023 the Supreme Court of Norway handed down its SIA North Star Ltd v. Staten v/Nærings- og fiskeridepartementet, Judgment HR-2023-491-P (sak nr. 22-134375SIV-HRET). The case concerned the applicability of Articles 1-3 of the Treaty concerning the Archipelago of Spitsbergen (Svalbard Treaty) towards the continental shelf off Svalbard, principally:

Article 1
The High Contracting Parties undertake to recognise, subject to the stipulations of the present Treaty, the full and absolute sovereignty of Norway over the Archipelago of Spitsbergen…

Article 2
Ships and nationals of all the High Contracting Parties shall enjoy equally the rights of fishing and hunting in the territories specified in article 1 and in their territorial waters

Article 3
The nationals of all the High Contracting Parties shall have equal liberty of access and entry for any reason or object whatever to the waters, fjords and ports of the territories specified in Article 1; subject to the observance of local laws and regulations, they may carry on there without impediment all maritime, industrial, mining and commercial operations on a footing of absolute equality.
They shall be admitted under the same conditions of equality to the exercise and practice of all maritime, industrial, mining or commercial entreprises both on land and in the territorial waters, and no monopoly shall be established on any account or for any entreprise whatever…

Treaty concerning the Archipelago of Spitsbergen 2 LNTS 7

The Supreme Court of Norway found that Article 1 affirms Norway’s full and absolute territorial sovereignty over Svalbard, subject only to stipulations and limitations derived from the Svalbard Treaty. Residual rights remain with Norway. Within this context, the term “territorial waters” in Articles 2 and 3 was historically used at the time to refer to the internal waters and territorial sea of a coastal state. The court rejected an argument for an evolutionary interpretation so as to include the continental shelf within territorial waters and thus Articles 2 and 3 for lack of basis. Such a development would have required an agreed amendment. Therefore, the default rules under UNCLOS apply whereby foreign nationals do not have a right of fisheries access or exploitation on the continental shelf (Article 77 of UNCLOS).

For more information see here.

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USA: Withdrawal of Certain Areas off the United States Arctic Coast of the Outer Continental Shelf from Oil or Gas Leasing

The President of the United States of America announced a decision (13 March 2023) to withdraw from disposition by oil or gas leasing for a time period without specific expiration the areas designated as the Beaufort Planning Area of the Outer Continental Shelf. According to the memorandum published by the White House, the withdrawal prevents consideration of withdrawn areas for any future oil or gas leasing for purposes of exploration, development, or production, but nothing in this withdrawal affects rights under existing leases in the withdrawn areas. The Memorandum for the Secretary of the Interior is available here. This comes after the U.S. Interior Department issued a Record of Decision regarding the proposed Willow Master Development Plan in the National Petroleum Reserve-Alaska (source). 

Source: U.S. Department of the Interior.

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Singapore/Indonesia: Domestic Ratification of 2022 Expanded Framework Agreements

On 17 January 2023 the Ministry of Foreign Affairs of Singapore confirmed that Singapore has completed its domestic legal processes to ratify the bilateral instruments which make up the 2022 Expanded Framework Agreements with Indonesia, namely, the Agreement on the Realignment of the Boundary between the Jakarta Flight Information Region (FIR) and the Singapore FIR, the Treaty for the Extradition of Fugitives and the Defence Cooperation Agreement. This follows Indonesia’s ratification of the FIR Agreement in September 2022 and the Extradition Treaty and DCA in December 2022. Consistent with the 2022 Exchange of Letters, Singapore and Indonesia will exchange formal notifications of completion and “jointly seek approval from the International Civil Aviation Organization (ICAO) for the arrangements under the FIR Agreement, to enable the simultaneous entry into force of all three agreements on a mutually agreed date”.

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CLCS: Partial Revised Submission by Russia (Arctic Ocean II)

On 14 February 2023, the Russian Federation submitted to the Commission on the Limits of the Continental Shelf (CLCS), in accordance with Article 76, paragraph 8, of the Convention, and with reference to its Submission of 20 December 2001, and of it Partial Revised submission of 3 August 2015 (with addenda submitted on 31 March 2021) in respect of the Arctic Ocean, information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured in respect of the southeastern part of the Eurasian Basin in the Arctic Ocean. An Executive Summary of the Partial Revised Submission (2023) is available. This partial revised submission addresses one of the CLCS recommendations issued in February 2023 (previously reported), namely that the outer limits of the continental shelf in the southern part of the Amundsen Basin should be defined in a partial revised submission for this area. This represented the third partial revised submission Russia has submitted to the CLCS, of which, to-date, two concern the Arctic Ocean.

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Further Refreshed Draft Text of a BBNJ Agreement

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.

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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.

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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,
(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?”

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

Informal translations of the final Resolution are available in French, Spanish and Portuguese on the Vanuatu ICJ Initiative website.

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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:

Article 232-3
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.

Article 232-5
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.

Article 235-4
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.

Environmental Code of Loyalty Islands Province (as amended, 2020)

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.

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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.
Illustrative map: CLCS, Summary of the Recommendations, p. 39.

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).

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ICJ Core Group of Nations: Second Draft Resolution for ICJ AO Initiative

On 23 January 2023 the ICJ Core Group of Nations, led by the Republic of Vanuatu, released a second 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 further and broadening consultation. It integrates feedback as of 22 January 2023. A final consultation will take place on 2 February 2023 in New York, before the final resolution will be circulated in February 2023.

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Switzerland: First Ratification of the WTO Agreement on Fisheries Subsidies

On 20 January 2023 Switzerland deposited its instrument of acceptance with the WTO, thereby ratifying the previously reported Agreement on Fisheries Subsidies. Once two thirds of the 164 WTO Members have ratified the Agreement on Fisheries Subsidies, is shall enter into force and be inserted into Annex 1A of the WTO Agreement. For more information see the WTO press release and overview of WTO Members who have submitted instruments of acceptance.

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Cameroon: Law No 2022/017 on Unlawful Acts at Sea

On 27 December 2022, Cameroon adopted Law No. 2022/017 of 27 December 2022 relating to the suppression of piracy, terrorism and offences against the safety of maritime navigation and platforms. In addition to the aforementioned offences listed in its title, Law No. 2022/017 also addressed other ‘unlawful acts at sea’ (Section 1(2)).

Piracy in defined in Section 2(2) of Law No. 2022/017 in a manner similar to Article 101 of UNCLOS, albeit with some notable differences. Unlike Article 101 of UNCLOS, acts of detention or depredation –as distinct from acts of violence– are not included in Section 2(2) of Law No. 2022/017, nor are acts of piracy involving aircraft. Law No. 2022/017 does however include ‘fixed or floating platforms’ within the definition of ship for the purpose of such offences (Section 2(1)). Similar to Article 102 of UNCLOS, Section 3(2) Law No. 2022/017 addresses piratical acts by mutinous warships or other government ships, again excluding the UNCLOS references to aircraft.

Section 4 of Law No. 2022/017 defines slightly modified offenses similar to most of those found in Article 3 of the SUA Convention, as well as Articles 2-3 of the Explosives Convention. Novel offences are included. Section 5 of Law No. 2022/017 defines offences similar to most of those found in Article 2 of SUA Platforms. Section 6 of Law No. 2022/017 defines offences similar to most of those found in Article 3bis of SUA Convention 2005 (Articles 3ter and 3quater do not appear to be addressed in Law No. 2022/017) and most of those found in Article 2bis of SUA Platforms 2005 (Article 2ter is not addressed). Section 6(b) of Law No. 2022/017 defines an offence similar to, but narrower, than Article 1 of the Hostages Convention. Section 7 of Law No. 2022/017 defines the offence of the illegal transport of minors, while Section 8 defines the offence of intentional pollution through the discharge of noxious substances (similar but distinct from Article 3bis(1)(ii) of SUA Convention 2005). Section 9 of Law No. 2022/017 defines an unauthorised broadcasting offence similar to Article 109(2) of UNCLOS. Section 10 of Law No. 2022/017 addresses a financing offence related to all the aforementioned offences, reflecting some of Article 2 of the Financing Convention, whilst be broader in other respects. Section 17 addresses conspiracies, attempts and accomplices to the aforementioned offences in Law No. 2022/017.

For further information see the Presidency of the Republic of Cameroon.

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UNGA: 2022 Resolutions Adopted on Law of the Sea & Sustainable Fisheries

On 9 December 2022, the United Nations General Assembly (UNGA) adopted Resolution 77/118: Sustainable fisheries, including through 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, and related instruments, without a vote. On 20 December 2022 UNGA adopted Resolution 77/242: 2025 United Nations Conference to Support the Implementation of Sustainable Development Goal 14, without a vote, which envisages the convening of a high-level 2025 United Nations Conference to Support the Implementation of Sustainable Development Goal 14, supported by Costa Rica and France Finally, on 30 December 2022, UNGA adopted Resolution 77/248: Oceans and the law of the sea, (draft resolution currently accessible) with a vote (159-1-3).

For further information see reporting of the debate, as well as coverage (2) of the plenary meetings of the General Assembly to commemorate the 40th Anniversary of the adoption of UNCLOS (see: Resolution 77/5)

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COSIS: Six Members of the Commission

As of 1 January 2023, the Commission of Small Island States on Climate Change and International Law (COSIS) is comprised of six States, who are Parties to the COSIS Agreement (Article 3(2)). In order of date of effect, the Parties are Antigua and Barbuda (Definitive signature, 31 October 2021); Tuvalu (Definitive signature, 31 October 2021); Palau (Accession, 1 November 2021); Niue (Accession, 13 September 2022); Vanuatu (Accession, 2 December 2022) and St Lucia (Accession, 7 December 2022).

For more information on the Commission’s activities see previous reporting (2), (3), (4).

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Canada: Addendum to Partial Submission to CLCS (Arctic Ocean)

As previously reported, on 23 May 2019 Canada had made a partial submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding its continental shelf in the Arctic Ocean. On 19 December 2022 Canada submitted its Addendum to the Partial Submission of Canada to the Commission on the Limits of the Continental Shelf regarding its continental shelf in the Arctic Ocean, see executive summary (french), to the CLCS. As summarised in the executive summary:

This addendum to the 2019 partial submission delineates additional outer limits of continental shelf, including along the full length of the Central Arctic Plateau (Lomonosov Ridge, Alpha Ridge and Mendeleev Rise, with the intervening Podvodnikov Basin and Makarov Basin), beyond 200 M from the baselines from which the breadth of the territorial sea is measured.

Noting in particular article 77 [of UNCLOS], Canada reserves the right to submit information in respect of other areas or portions of its continental shelf.

This submission is made, consistent with article 76(10) and article 9 of Annex II of [UNCLOS] without prejudice to future delimitation between Canada and the Kingdom of Denmark, the Russian Federation and the United States of America.

Addendum to the Partial Submission of Canada to the Commission on the Limits of the Continental Shelf regarding its continental shelf in the Arctic Ocean, pp. 5 and 10.

For more information see here and UN Doc. CLCS.84.2019.LOS (Continental Shelf Notification) (20 December 2022).

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ITLOS: Request for an Advisory Opinion Submitted by COSIS

On 12 December 2022 ITLOS received a Request for an Advisory Opinion from the Commission of Small Island States on Climate Change and International Law (COSIS), pursuant to Article 2(2) of the COSIS Agreement and Article 21 of the ITLOS Statute and Article 138 of the Rules of the Tribunal (see previous reporting on COSIS; and on advisory opinion jurisdiction, the SRFC Advisory Opinion).

By unanimous decision of the COSIS Members at the Third Meeting of COSIS on 26 August 2022 (comprising of Antigua and Barbuda; Tuvalu; and the Republic of Palau. Note: Niue, Republic of Vanuatu and Saint Lucia all acceded to the COSIS Agreement after 26 August 2022), COSIS decided to refer the following question to ITLOS for an Advisory Opinion (registered as ITLOS Case No. 31):

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XII:

(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

Request for an Advisory Opinion of 12 December 2022, p. 1

Note, the COSIS Members decision is based on an approval of Recommendation CLE. 1/2022/Rec of the Committee of Legal Experts (18 June 2022) which was assisted by the work of the Sub-Committee on Protection and Preservation of the Marine Environment. Consistent with the mandates of the Commission (Art 1(3), COSIS Agreement), the Sub-Committee on Sea-Level Rise, Sub-Committee on Human Rights, and the Sub-Committee on Loss and Damages continue to operate and may “propose further activities that the Commission may undertake to contribute to the definition, implementation, and progressive development of rules and principles of international law concerning climate change” (Third Meeting of COSIS, Decision 3). Without prejudice to if it will be utilised, note in this respect Article 2(2) of the COSIS Agreement authorises the Commission to request advisory opinions (plural) from ITLOS.

As previously reported COSIS supported the Vanuatu ICJ Advisory Opinion Initiative, and Decision 2 of the Third Meeting of COSIS provides “that the Committee of Legal Experts should assist members of the Commission in making submissions to the ICJ as appropriate”.

For more information see the ITLOS Press Release.

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