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AbstractTo combat the adverse effects of climate-change-driven sea-level rise, an increasing number of states have started preserving baselines. In this context, preservation means making baselines permanent despite changes to the coastline resulting from sea-level rise. In 2023, the International Law Commission’s Study Group on Sea-level rise in relation to international law released its Additional Paper on the impact of sea-level rise on the law of the sea. The Additional Paper focused on the states’ views concerning the possibility of preserving baselines irrespective of coastal changes caused by sea-level rise. However, the Additional Paper did not include a convincing methodological framing of the question of baseline preservation. This article frames this question as one of custom formation or treaty interpretation, arguing that neither framing would allow one to conclude that positive international law sanctions the preservation of baselines, but that there are viable solutions de lege ferenda to achieve it. [ABSTRACT FROM AUTHOR]

AbstractFacing the Anthropocene, the ocean legal order encounters hurdles to address rapid, uncertain and unprecedented changes. This study assesses the capacity of the United Nations Convention on the Law of the Sea (UNCLOS) to respond adeptly to complex challenges. Examining the social framework of UNCLOS spanning four decades, this study shows that ocean governance is characterized by a polycentric and dynamic institutional framework. While states are central to this social framework, other structural regulatory forces have enabled and conditioned the evolution of ocean governance. Facing the Anthropocene, this social framework has contributed to UNCLOS’ adaptation, yet not enough to break the liberal pattern generated by its foundational principles or to shift away from a state-centred approach to ocean governance. Through this analysis, the study enriches the current dialogue on the adaptive potential of international legal instruments in addressing complex global challenges amidst the Anthropocene. [ABSTRACT FROM AUTHOR]

This paper presents recommendations for developing a legal framework for sharing benefits derived from mineral resources in the international seabed area. Establishing a legal regime that encompasses benefit sharing is of paramount importance for promoting the principle of a common heritage of mankind, for narrowing the technological gap that exists between developing and developed countries in the field of deep-sea mining, for safeguarding the rights and interests of developing countries, and for advancing global development. However, the international seabed management system is confronted with considerable challenges, including uncertainty regarding its contribution and redistribution mechanisms, the criteria for equitable distribution, and the initial distribution mechanism. These challenges have the potential to undermine the principle of a common heritage of mankind. To address these issues, it is imperative that the International Seabed Authority establish a robust legal regime for benefit-sharing without delay. To this end, a comprehensive approach is required, encompassing theoretical, institutional, and practical considerations, with the aim of enhancing the legal system governing the international seabed area. From a theoretical standpoint, the primary challenge lies in striking a balance between private and public interests in the initial distribution of benefits and addressing any subsequent distributional imbalances. Furthermore, it is imperative to prioritize environmental protection and sustainable resource management in the international seabed area. At the practical level, criteria for equitable sharing should be established, the order of distribution of benefits should be clarified, and a common heritage fund should be established. At the institutional level, it is necessary to establish a system of information transparency, implement the principle of intergenerational equity, and establish a standardized mechanism for stakeholder consultation. [ABSTRACT FROM AUTHOR]

Garrett Hardin’s ‘Tragedy of the Commons’ may be almost half a century old. But the centrality of the theory is still relevant for the environmental challenges associated to the management of global commons. In this article, we examine the newly adopted treaty for the conservation of marine biological diversity in areas beyond national jurisdiction (BBNJ) in the light of Hardin’s basic postulation that a tragedy eventually materializes following an indiscriminate use of resources freely available to all and used to pursue self-interests. Today, the problem transcends beyond self-seeking state actions and analogous cost-benefit inquiry. A deeper examination is absent largely from the analytical framework of commons management, leaving an important question unanswered – how far does the concept of state sovereignty hold the potential to alter the boundary of the legal framework on global commons, thinning the theoretical underpinnings of the ‘tragedy’ itself? This in effect reduces the transparency of choices and reduces the incentives of states to negotiate a strong global agreement for commons. Because the BBNJ Treaty is expected to upgrade the legal framework of the United Nations Convention on Law of the Sea (UNCLOS), it is desirable to compare the structural features of both. It is our argument that the BBNJ Treaty has failed to alter the boundary of state sovereignty or sovereign rights sufficiently to advance a novel solution towards the problems of high sea commons. The challenges that frustrated UNCLOS to cast a strong protective net over high seas, resurfaced and gridlocked BBNJ Treaty, too. As, conservation and management of common resources leaves narrow space for all nations irrespective of their positions in international politics, there is a need to revisit the pitch of negotiation to avoid any further ‘tragedy’ that already has turned up high seas a battleground for interest-negotiation.

The United Nations Convention on the Law of the Sea (UNCLOS) plays a pivotal role in international maritime law, providing a comprehensive framework for the settlement of disputes related to sea and ocean spaces. This systematic review explores Part XV of UNCLOS, dedicated to the ‘Settlement of Disputes,' and delves into the mechanisms outlined in Articles 279 to 299 for resolving maritime conflicts. The study relies on a thorough review of published materials from 1994 to 2023, encompassing monographs, reviews, research papers, case studies, and conference papers available in the Scopus database. The review scrutinises the dispute resolution mechanisms available in UNCLOS. It explores the perspectives of the international legal community, especially in the Indo-Pacific region, highlighting how major powers leverage UNCLOS to critique maritime claims. Practical challenges faced by states litigating against major powers and the need for cautious interpretation are discussed. The study underscores the ongoing discourse about UNCLOS’ role in navigating ocean governance complexities and highlights the importance of continuous exploration and refinement of dispute resolution mechanisms, call for supplementary legal mechanisms, particularly the role of Global Power countries and regional context of maritime regions pose demand for further initiatives for achieving sustainable ocean governance. [ABSTRACT FROM AUTHOR]

This article seeks to explain China’s aspirations in the SCS. China successfully acted as a mediator in the resolution of the Iran-Saudi dispute; nonetheless, the question arises: Why has China been unsuccessful in addressing the South China Sea (SCS) problem? This article offers an analytical framework, by applying the qualitative interpretivist approach, for comprehending China's goals in the SCS. By using the framework, we conclude that China seeks to assert de facto control over the SCS, which entails sovereignty over the contested islands and the capacity to regulate conduct in the adjacent seas. These goals are harmful to U.S. and allied interests. Results suggest that China’s success in the Middle East is attributed to its non-alignment and economic inducements, while assertive action in the SCS exacerbates regional resistance. This article recommends a more cooperative approach in the SCS for improving regional stability. [ABSTRACT FROM AUTHOR]

The legal systems for ocean governance and climate change governance are based on the United Nations Convention on the Law of the Sea and the United Nations Framework Convention on Climate Change, respectively. However, due to differences in their negotiation backgrounds, legal scope, goals, and tasks, there is a lack of interaction between the two at the legal system level. The ocean plays a crucial role in regulating the Earth's climate system, yet its value is often underestimated in the United Nations Framework Convention on Climate Change. The aim of this study is to analyze the effectiveness of the United Nations Convention on the Law of the Sea in addressing climate change. Specifically, we will examine the Convention's ability to mitigate and adapt to climate change, and identify areas where it falls short, such as inadequate regulation of sea level rise, ocean acidification, and ocean fertilization. Based on this, proposals for governance paths from the perspective of the United Nations Convention on the Law of the Sea include developing the Agreement relating to the climate change and ocean governance and reinterpreting the United Nations Convention on the Law of the Sea in accordance with the Paris Agreement. The content should be adapted more flexibly to current climate change challenges, and provisions related to sea level rise and maritime boundaries should be reinterpreted to fill legal gaps. In addition, it is important to establish coordinated regulatory rules and framework agreements to address the issues of ocean fertilization and ocean acidification. Finally, to remedy the shortcomings in proving causation, scientific theories and due diligence obligations should be attributed. Through these measures, effective ocean law governance paths that address climate change can be explored. [ABSTRACT FROM AUTHOR]

Indonesia, Malaysia, and Singapore are littoral states of the Straits of Malacca (SOM), the world's busiest waterway connecting the Indian and Pacific oceans, with around 80,000 ships passing through this route annually. While maritime security governance of this waterway is a serious concern especially to those states, their responses to it has differed particularly in regard to three security mechanisms: the Proliferation Security Initiative (PSI), the Malacca Straits Patrol (MSP), and the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP). The states' approaches can be viewed primarily through the lens of sovereign interests, economic interests, and legal obligations. In addition, the role of institutions appears as an intervening factor influencing their responses. This article first analyses maritime security governance and examines why it has garnered much attention in contemporary international relations. Second, it assesses the importance of the SOM as a strategic location, a critical trading route since ancient times, as well as the value it holds for international shipping. Third, it examines the littoral states' responses to maritime security governance, focusing on the factors influencing them. The article finds that their responses to external power security initiatives differ compared to the indigenous security mechanism in the SOM. Despite that, the underlying theme among the three states is to uphold their obligations as coastal states as provided under UNCLOS and in cooperating with each other and international users, though several caveats do seem to also apply. [ABSTRACT FROM AUTHOR]

Sau gần hai thập kỷ đàm phán, Hiệp định bảo tồn và sử dụng bền vững đa đạng sinh học biển tại các vùng nằm ngoài quyền tài phán quốc gia (Hiệp định BBNJ) được thông qua ngày 19/6/2023 với các quy định về nguồn gen biển, công cụ quản lý theo vùng, đánh giá tác động môi trường, xây dựng và chuyển giao công nghệ biển. Bài viết giới thiệu bối cảnh ra đời và nội dung cơ bản của Hiệp định BBNJ, từ đó phân tích một số lợi ích và trở ngại trong việc thực thi Hiệp định ở góc độ quốc tế và đối với Việt Nam. Hiệp định là một bước tiến mới của luật pháp quốc tế nhằm đẩy mạnh hợp tác bảo tồn đa dạng sinh học, nâng cao năng suất, hiệu quả quản lý và thúc đẩy công bằng, bình đẳng trong khai thác và sử dụng tài nguyên biển. Tuy nhiên, việc phê chuẩn, xây dựng quy tắc hoạt động cho các thể chế, hợp tác với các khuôn khổ hiện hành và nguồn lực tài chính sẽ đặt ra những thách thức lớn trong việc thực thi Hiệp định này.

Ted McDorman was among the first scholars to author papers on the United Nations Convention on the Law of the Sea (UNCLOS) concept of port state jurisdiction. Building on his insights, this article aims to make a modest contribution to the scholarship on the jurisdictional latitude port states are afforded to address regulatory ineffectiveness. It starts out with an investigation into the concept and polysemy of port state jurisdiction before canvassing "extraterritorial port state jurisdiction" as set forth in UNCLOS Article 218 and finally assessing the possibility that such jurisdiction develops beyond the substantive bounds of Article 218. [ABSTRACT FROM AUTHOR]

Compliance with the International Maritime Organization (IMO) 2020 sulphur oxides (SOx) emissions regulation requires using low sulphur content fuel or an alternative compliance mechanism certified by national administrations. The latter includes installation of an exhaust gas cleaning system (EGCS) to remove SOx prior to emission, which entails the discharge at sea of highly acidic washwater containing harmful substances, resulting in a new form of marine pollution. This article discusses how the certification and use of EGCS are incompatible with the United Nations Convention on the Law of the Sea provisions on the protection and preservation of the marine environment and explores regulatory strategies for IMO to remove the incompatibility. [ABSTRACT FROM AUTHOR]

This paper aims to analyze the relationship between China's maritime security policy and territorial disputes in the gray zone in the South China Sea. The study examines this relationship through the strategy and means of Chinese maritime security policy, aiming to clarify the factors that influenced this policy to drag its territorial disputes into the gray zone. The article argues that the rivalries between countries in the region fostered by the United Nations Convention on the Law of the Sea (UNCLOS) operated as an external pressure on China. Furthermore, geopolitical factors and the perception of the Chinese ruling elite have contributed to considering the UNCLOS as a threat to China's maritime interests in the South China Sea. Consequently, the Chinese maritime security policy seeks to shift the status quo in the region to establish China as a hegemonic regional power with its sphere of influence while avoiding an open war with its neighbors and the US. [ABSTRACT FROM AUTHOR]

This article analyzes the relationship between geopolitical factors and the strategic significance of the Chinese state´s territorial disputes in the South China Sea. The study examines this relationship through the influence of geopolitical factors on the configuration of Chinese national strategy. To do so, it turns to neoclassical realism, addressing the interactions between external pressures and intervening variables at the unit level. In doing so, it analyzes how geopolitical factors shaped Chinese leaders' perceptions of reality and their impact on their interpretation of certain events, such as the 1995 Taiwan Strait Crisis and the entry into force of the unclos. The study argues that these events were perceived as threats to China and helped shape national strategy in maritime terms. As a result, China developed its naval power to control the South China Sea and establish its sphere of influence in order to become the hegemonic regional power. All of this meant the increase of its presence and assertiveness in the region, which proves the importance of its territorial disputes in this area. [ABSTRACT FROM AUTHOR]

The Arctic, deeply affected by climate change, is experiencing a shrinking cryosphere in the Arctic Circle, seen by polar states as an economic and strategic opportunity. Although this "normality" has generated geopolitical challenges in the region, marked by cooperation since the Cold War, it is now transformed into conflict. Russia and Western states intensify military operations, accusing each other of military escalation. However, an underestimated aspect is the geopolitical assessment of melting ice and sea level rise, especially its impact on the low tide line and United Nations Convention on the Law of the Sea (unclos) regulations. This article discusses the results of sea level rise on the territorial and geopolitical aspects of the Arctic Ocean. [ABSTRACT FROM AUTHOR]

Since 2012, Japan, China, South Korea, and Chinese Taipei have consecutively held informal consultation meetings to discuss the conservation of Japanese eel stock. As a conservation and management measure, these participants adopted the Joint Statement in 2014 to regulate the initial input of Japanese eel seeds into aquaculture ponds. Despite the fact that the input limits were de facto constraints, these measures were implemented as domestic legal regulations in each participant's jurisdiction. This study examines the nature of the de facto constraints imposed by the Joint Statement for conserving and managing Japanese eel stock as a case study of stock regulations. This study further explores the possibilities of strengthening the de facto constraints through interactions with the normative environment; that is, the principle of sustainable development, domestic laws, and the relevant provisions in the United Nations Convention on the Law of the Sea (UNCLOS). [ABSTRACT FROM AUTHOR]

The discharge of the ALPS-treated water from the Fukushima Daiichi Nuclear Power Station raises complex issues regarding the normative framework governing its impact on the marine environment. Due to its cross-cutting nature, international norms from both the nuclear and ocean domains are potentially applicable. While the International Atomic Energy Agency's safety review has focused on assessing the consistency of Japan's actions with the safety standards, less attention has been paid to international conventions relevant to the discharge. This article aims to (i) clarify the key international norms for marine environmental protection from both domains and consider how they interrelate; and (ii) identify governance challenges associated with these norms. It examines governance concerns related to safety standards and key international conventions, concluding with recommendations to strengthen and develop the normative framework. [ABSTRACT FROM AUTHOR]

The South China Sea (SCS) dispute is one of the most burning issues in contemporary international politics. Mainstream academia and scholarship are rigorously investigating various dimensions of the dispute. The present study attempts to analyze the conflict of interest of various states in the South China Sea region and the consequences of rising assertiveness from the contesting parties. The study adopts qualitative methodology and analyzes the data collected from various sources of literature utilizing a thematic analysis. The study analyses the problem in the paradigm of Offensive Realism and argues that rising assertiveness and the compromised nature of international law will subsequently lead to regional and global instabilities. The study further suggests that the enhancement of the international sea regime and peaceful settlement of territorial disputes between the contesting parties can potentially reduce the risk of military confrontations in the South China Sea region. [ABSTRACT FROM AUTHOR]

Copyright of Selcuk Law Review / Selçuk Üniversitesi Hukuk Fakültesi Dergisi is the property of Selcuk Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article examines the Republic of the Philippines' recent partial submission to the United Nations Commission on the Limits of the Continental Shelf (CLCS) concerning the outer limits of its continental shelf beyond 200 nautical miles (M) from its baselines. The submission, grounded in the United Nations Convention on the Law of the Sea (UNCLOS), relates to the West Palawan Region, located in the South China Sea. The article explores the procedural aspects of the CLCS rules in dealing with areas of continental shelf subject to overlapping submissions or disputes and assesses the broader implications for international law and the law of the sea. This article provides an analysis of the legal and scientific basis of the submission, the implications for regional maritime claims, and the reactions from other claimant States and extra-regional powers. [ABSTRACT FROM AUTHOR]

This article analyzes the historical and continuing Cambodia-Thailand maritime dispute in the Overlapping Claims Area of the Gulf of Thailand, first looking into the history of the dispute to identify primary sticking points that have led to the five decade deadlock and then considering current politics, attendant risks and possibilities of finding a solution to the deadlock. The author argues that policy makers have a historic opportunity to seize the moment by using large amounts of political capital accumulated in the elections last year to break the longstanding impasse. Policy makers must pay heed to nationalisms in both countries to lessen the risks of negotiation failure. If policy makers stick to international law as the basis of their negotiations and of the narrative they present to their publics, and push forward with territorial claims that provide for equitable distribution of the disputed area's 11 trillion cubic meters of natural gas, both countries could achieve energy security in the short and medium term. [ABSTRACT FROM AUTHOR]

This article examines the multifaceted dimensions of landlockedness within the realm of international discourse, with a particular focus on its implications for managing global commons. Drawing from socio-legal literature and auto-ethnographic experiences during the recent intergovernmental negotiations for the BBNJ agreement under the 1982 Law of the Sea (UNCLOS) as a case study, the paper prompts essential inquiries into the true essence of being landlocked in the face of global environmental challenges. Beyond traditional geographical definitions, the paper reveals the dynamic nature of landlockedness and underscores the intricate interplay of social, economic, cultural, geographical, and political factors in determining who has access to ocean space and resources and who does not. It emphasizes that landlockedness is not a static legal or physical characteristic but an ongoing process shaped by historical and political constructs. Expanding beyond the national level, the article illustrates how individuals, whether coastal or inland, experience isolation from the ocean, influencing their interactions with, perceptions of, and regulatory proposals for the ocean. This approach illuminates existing paradigms in the access, use, and management of space and resources. In conclusion, the article advocates for more inclusive and adaptable approaches in international policy debates. It calls for a departure from rigid classifications, urging for upholding collective action, recognising the intricate connections between geography, politics, law, and the environment. [ABSTRACT FROM AUTHOR]

Maritime governance of international waterways such as the South China Sea (SCS) is still an overdue policy objective in a region fraught with ongoing political and military rivalry over natural as well as symbolic resources. Competition among supporters and challengers of the international 'rules-based order' is reshaping the normative-discursive framework in which negotiations over access to and management of maritime space are carried out. Among the players, the Republic of China (Taiwan)'s particular international status and geographic position make it a special case study, having shaped over the past decades its foreign policy into a liberal, international law (IL) stance. This article seeks to describe a contentious encounter at the boundary of these competing discourses by showing the extent to which the 'rules-based order', a normative-discursive structure represented by the United Nations Convention on the Law of the Sea (UNCLOS), is coming under increasing pressure in maritime governance, an area of growing importance to international relations. My findings show how Taiwanese policy discourse regains symbolic 'access' to this framework through meaning change. I argue that, ultimately, this adjustment of a foreign policy discourse proves the resilience of the 'rules-based order'. [ABSTRACT FROM AUTHOR]

As the effects of climate change become apparent in line with IPCC projections, the normative aspects of international affairs are being increasingly challenged. The context of rising sea levels, coastal inundation, and salinization in low-lying atoll States points to an unprecedented scenario that beckons revisitations into 'what is natural in international affairs' and 'what turns it into being natural'. Under UNCLOS and a common understanding in international affairs, a State is primarily defined by natural territory. Oppenheim claimed that 'a State without (natural) territory is not possible'. In contrast, Gottmann's instructive approach urges a transition from viewing geographical spaces in a vacuum to understanding the relationship they share with human existence. The article explores the potential of artificial islands such as Hulhumalé in the Maldives as a climate adaptation and human resettlement strategy and their long-term legal identity in international affairs. The article aims to answer two questions: first, what is the role of human inhabitation in the characterisation of geographical spaces as 'natural' in international affairs? and, second, why and how do the definitions around artificial islands need to be revisited amidst contemporary conditions of climate change to offset the normative costs being borne by low-lying atoll States? [ABSTRACT FROM AUTHOR]

Governments around the world are looking to ensure their transition to full low-carbon economies whilst tackling climate change by implementing offshore carbon capture and storage (CCS) – a method of permanently removing carbon dioxide (CO2) from the burning of fossil fuels and burying it deep below the seabed in suitable geological formations. Among the main targets of such geological formations are depleted, or nearly depleted, offshore oil and gas reservoirs within existing oil-producing fields. However, such reservoirs will frequently transcend maritime boundaries and jurisdictions, ie a shared geological formation could be used on both sides of the maritime boundary for CO2 sequestration and storage. This raises the potential for disputes among nations, transboundary environmental degradation, and business disruption. The paper discusses the role of CCS in the low-carbon energy transition, focusing specifically on international legal aspects related to the storage of CO2 in sub-seabed geological formations of the continental shelf. Ongoing CO2 storage projects are examined to showcase critical technical aspects, including reservoir selection, well design, and post-injection monitoring. The analysis highlights the need for international coordination in situations where CO2 storage occurs across an international boundary and the importance of consent from all states with jurisdiction over the relevant CO2 storage formations. The paper concludes that existing maritime boundary agreements, including those with straddling deposit clauses, are unlikely to cover transboundary CO2 storage operations, except if they are considered incidental to ongoing petroleum operations. [ABSTRACT FROM AUTHOR]

The International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion on May 21, 2024 in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS). While various aspects of the advisory opinion have already been discussed in this joint blog symposium, this post focuses on a feature of the opinion that has so far received little emphasis: the strong role of science. The scientific evidence presented by the tribunal provides a solid basis for its conclusions on State obligations to prevent, reduce, and control climate pollution.

The research paper investigates the complex world of illegal broadcasting on the high seas, examining the antecedents, legal frameworks, jurisdictional difficulties, and international cooperation crucial in tackling this complex issue. Unauthorized broadcasting offers serious risks, ranging from disruption of authorized broadcasts to intellectual property violations, raising awareness across the globe and especially the countries affected by the broadcasts. The analysis starts by tracking the development of unauthorized broadcasting throughout history. It revolves around the starting point when it came to be recognized as a treaty crime by international accords. It highlights the difficulties of jurisdiction and the need for comprehensive legal systems by illuminating the crucial role that flag states play in managing ships at sea. The work uses review of various material, including legislative frameworks at the international, regional, and domestic levels.

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered its much anticipated Advisory Opinion on Climate Change. This post zeroes in on one particular interpretative issue, and its wider ramifications for the development of international law, namely the Tribunal’s approach to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) (which enshrines the principle of systemic integration) in connection with the interpretation of UNCLOS. Although ITLOS did not elaborate in detail on its approach, as can be seen from its entire analysis, the Tribunal has demonstrated a clear and principled choice with respect to the content and application of Article 31(3)(c) VCLT and its customary counterpart.

This article examines the multifaceted dimensions of landlockedness within the realm of international discourse, with a particular focus on its implications for managing global commons. Drawing from socio-legal literature and auto-ethnographic experiences during the recent intergovernmental negotiations for the BBNJ agreement under the 1982 Law of the Sea (UNCLOS) as a case study, the paper prompts essential inquiries into the true essence of being landlocked in the face of global environmental challenges. Beyond traditional geographical definitions, the paper reveals the dynamic nature of landlockedness and underscores the intricate interplay of social, economic, cultural, geographical, and political factors in determining who has access to ocean space and resources and who does not. It emphasizes that landlockedness is not a static legal or physical characteristic but an ongoing process shaped by historical and political constructs. Expanding beyond the national level, the article illustrates how individuals, whether coastal or inland, experience isolation from the ocean, influencing their interactions with, perceptions of, and regulatory proposals for the ocean. This approach illuminates existing paradigms in the access, use, and management of space and resources. In conclusion, the article advocates for more inclusive and adaptable approaches in international policy debates. It calls for a departure from rigid classifications, urging for upholding collective action, recognising the intricate connections between geography, politics, law, and the environment.

On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) delivered a long-awaited Advisory Opinion on climate change and international law. This marks the first time that an international tribunal has issued an advisory opinion on State obligations regarding climate change mitigation. The Advisory Opinion addresses several key questions regarding application of the United Nations Convention on the Law of the Sea (UNCLOS) in the context of climate change. There is much to explore in terms of both the content of the ITLOS advisory opinion and its potential implications for global, regional, and local efforts to combat climate change. To facilitate discussion and the exchange of ideas, the Sabin Center's Climate Law Blog and Verfassungsblog are partnering on a blog symposium on the ITLOS opinion. In this first, introductory blog, we outline the background to the advisory opinion and highlight some of the key takeaways from it.

The ITLOS advisory opinion does little to resolve the long-standing uncertainty regarding the legal status of marine geoengineering activities. On the contrary, the opinion raises more questions than it answers. ITLOS seems content to leave those questions to others. Indeed, in the advisory opinion, ITLOS noted that “marine geoengineering has been the subject of discussions and regulations in various fora,” including the London Convention and Protocol. But after nearly twenty years, the regulatory framework for marine geoengineering adopted by the parties to the London Convention and Protocol is still not, strictly speaking, legally binding. Perhaps the advisory opinion will spur the parties into action.

While no advisory opinion can solve the climate crisis, the ITLOS decision does provide an important push for action, both globally and at the national level. It cleared the way for the ICJ’s forthcoming opinion on climate change, demonstrating how a clear and solid line of arguments can be developed. Although the ICJ may decide differently due to variations in the questions posed and treaties interpreted, it is unlikely to diverge significantly from the ITLOS narrative or reject its findings on related topics.

The Advisory Opinion handed down by the International Tribunal for the Law of the Sea (ITLOS) on 21 May 2024 is truly remarkable. However, while ITLOS succeeded in noting the relevance of many other treaties and customary norms in international law, it fell short of a comprehensive and consistent approach to determining which other treaty norms would be relevant to the interpretation of UNCLOS and how. Establishing coherence by “taking into account external rules” means more than a general reference or a pick-and-choose approach to some relevant norms in an external treaty, while not to others.

Climate change is predicted to alter the distributions of tropical tuna stocks in the Pacific Ocean. Recent modelling projects significant future shifts in tuna biomass from west to east, and from national jurisdictions to high seas areas. As the distributions of these stocks change, the relevant regional fisheries management organisations (RFMOs)—the Western and Central Pacific Fisheries Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC)—will need to develop an expanded framework for cooperation and collaboration to fulfil their conservation and management responsibilities under international law. The key elements of a possible expanded framework for cooperation can be developed, and fundamental areas for collaboration identified, by applying and adapting principles established in the United Nations Convention on the Law of the Sea, the United Nations Fish Stocks Agreement, and the constituent instruments of the RFMOs themselves. Our analysis reveals a wide range of important issues requiring cooperation, and three clear priorities. First, a formal mechanism for cooperation is needed to enable effective and efficient decision-making and action by the two RFMOs on key issues. Second, further cooperation is required in scientific research and modelling to better understand the biology and distributions of Pacific tuna stocks and how they will respond to climate change, and to inform stock assessments and harvest strategies. Third, the RFMOs must cooperate to define appropriate limits on fishing for each stock in a way that ensures they are compatible across the two organisations, taking into account their different members and management regimes.

Power and its distribution have always been the central themes of international law, yet international lawyers have paid limited attention to the correlation between power shifts and legal change. Notably, international law effectively operates when balance of power is sustained. With this qualification, this paper examines the relationship of international law with the change in power distribution, arguing that international law should proactively attend to power in order to contribute to the peaceful reconfiguration of the international system. Furthermore, this paper explores the mechanism of power shift being transmitted to law shift and specifically adduces the process and effectiveness of hegemonic international law change centered on UNCLOS. [ABSTRACT FROM AUTHOR]

This research paper explores the territorial disputes in the South China Sea and their economic implications for the regional countries focusing on their geo-economic and geostrategic significance. The South China Sea holds substantial importance because of the high percentage of global trade passing through it. The historical claims of Beijing on the Paracel and Spratly Islands against the UNCLOS provide a baseline of territorial disputes with ASEAN countries. For research methodology, the author relies on qualitative analysis using secondary data sources. To develop a theoretical framework for this complex issue, the author applies theories of Neo-Realism, Maritime Regional Security Complex, and Security dilemma. This paper is aimed at exploring economic implications for regional states in case of potential conflicts emerging in case of engagement among regional as well as external powers. This research has emphasized the development of a Beijing-ASEAN forum focused on establishing economic, diplomatic, and security ties for the creation of the Eastern Economic Block at a broader level. [ABSTRACT FROM AUTHOR]

Under the UNCLOS regime the practice of the ITLOS reveals some significant cases in which provisional measures are prescribed. Those prescriptions are noteworthy in two respects. First, in general, they contribute to the development of the institution of 'provisional measures' in international law. Second, and more in specific, they direct and enhance the efforts aimed at an effective marine environment protection. In the period of 1997-2009, in chronological order, the provisional measures are prescribed in "The M/V 'SAIGA' (No. 2) Case" (Case No. 2), "New Zealand v. Japan; Australia v. Japan" ("Southern Bluefin Tuna cases") (Cases Nos. 3 and 4), "Ireland v. the United Kingdom" ("The MOX Plant Case") (Case No. 10) and "Malaysia v. Singapore" (Case No. 12) cases, all of which might be considered as standard setting decisions with regard to substantial and procedural aspects of provisional measures. Furthermore, in the list of four pioneering cases, the second and third ones were significant due to the establishment of arbitral tribunals under Annex VII of the UNCLOS. Briefly, it may be concluded that the prescription of provisional measures by the ITLOS in 1997-2009, which also gave an opportunity for important literature contribution, has enlightened the path that would be followed in future provisional measures practice. [ABSTRACT FROM AUTHOR]

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After over a decade of dispute settlement efforts, Israel and Lebanon reached an agreement to establish their common maritime boundary in October 2022. This agreement is a pioneering achievement in the region. It is the first maritime boundary agreement reached between two States that do not have diplomatic relations. The agreement solidifies the trend towards pursuing maritime delimitation and related arrangements over seabed resources in the Eastern Mediterranean Sea. This article analyses the legal nature and content of the Lebanon-Israel 2022 maritime boundary agreement and its implications for the tripoint delimitation of the overlapping maritime areas between Cyprus, Lebanon, and Israel. [ABSTRACT FROM AUTHOR]

On 19 December 2023, the United States Department of State issued an Announcement concerning the outer limits of the continental shelf in areas beyond 200 nautical miles (M) of the coast (the U.S. Announcement), three of which are in the Asia-Pacific region. This article provides the spatial scope of the areas within the limits of the U.S. continental shelf beyond 200 M located in the Asia-Pacific region and examines the implications of the U.S. Announcement for the entitlement of continental shelf beyond 200 M of other Asia-Pacific States. The article briefly describes the requirement for establishing the outer limits of the continental shelf beyond 200 M in keeping with Article 76 of the 1982 United Nations Conventions on the Law of the Sea (UNCLOS). The U.S. Extended Continental Shelf Project is then described before the legal issues arising for a non-State Party to UNCLOS are discussed. [ABSTRACT FROM AUTHOR]

In April 2023, Indonesia passed Law No. 16 of 2023, related to the continental shelf which supersedes Law No. 1 of 1973 which was based on the 1958 Convention on the Continental Shelf. The new continental shelf law aligns Indonesia's domestic legislation with the United Nations Convention on the Law of the Sea (UNCLOS). The new law also reaffirms the practice of using separate lines for Exclusive Economic Zone (EEZ) and continental shelf delimitations and explicitly respects previously negotiated delimitation treaties with neighbouring States. However, there are some rules that might potentially diverge from the general practices of States particularly in relation to artificial islands, platforms, and submarine cables and pipelines. This article examines significant aspects and concerns associated with this legislation. [ABSTRACT FROM AUTHOR]

The Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction is a complex treaty aiming to fill the gaps left by the UNCLOS in regulating marine biodiversity in areas beyond national jurisdiction. In view of the multifaceted nature the Agreement, this contribution proposes an early stage critical analysis of certain choices made by the Intergovernmental Conference. An assessment of cross-sectional and general issues and of some specific provisions contained in Part III calls for a reflection on whether, and in which manner, the BBNJ Agreement can be considered an environmental treaty, or a treaty possessing a hybrid nature and employing an innovative approach compared to the UNCLOS. [ABSTRACT FROM AUTHOR]

Since the beginning of the 2010s, Türkiye has been subjected to efforts of exclusion from the deepening energy collaborations in the Eastern Mediterranean. In 2020, Turkish Parliament approved a bill authorizing the deployment of troops to support Libya in countering various threats to its stability and integrity. These threats included terrorist organizations, irregular migration that had an impact on the entire region, illegal armed groups, and human trafficking. Additionally, Türkiye took steps to disrupt the anti-Türkiye axis in the region by signing a maritime delimitation agreement with Libya to establish clear boundaries for maritime jurisdictional areas. With this move, Türkiye positioned itself as a game changer in the Eastern Mediterranean. Greece and the Greek Cypriot Administration of Southern Cyprus (GCASC), who are uncomfortable with Türkiye's steps in line with its rightful interests, have made concerted efforts to involve the EU in the issues related to the Eastern Mediterranean region, acting in favor of their own unilateral interests. The EU, eventually, has decided to impose sanctions on Türkiye, particularly as a result of discussions in the European Parliament. The biased and unfair attitude of the EU, coupled with its implementation of sanctions, will have significant political costs on Türkiye-EU relations. In this context, an evaluation is being made regarding the effectiveness of the EU's stance and applied sanctions, considering the EU's perspective and its claim to be an actor in the region within the context of the current balance of power. [ABSTRACT FROM AUTHOR]