Tommy Koh

Aldo Chircop

Abstract

In 2018 the IMO adopted the initial Strategy for the international shipping industry’s reduction of global greenhouse gas emissions towards achieving the goal set in the 2015 Paris Agreement. At this time the Strategy is no more than a preliminary structure to frame the measures that will need to be adopted for the short, medium and long terms. In the short term (2018–2023) a first suite of measures will be adopted, and the initial Strategy will be revised and adopted as changed in 2023 with proposed measures for the medium term (2023–2030) and long term (2030–2050 and beyond). New international standards, tools and best practices will be needed to supplement the existing energy efficiency management rules in the International Convention on the Prevention of Pollution from Ships, 1973/78. This article discusses the Strategy and the role of the IMO in leading the shipping industry on the road to decarbonization.

Nilüfer Oral

Abstract

Climate change-induced sea-level rise will result in the partial or complete inundation of low-lying coastal areas and insular features. The consequences of this include the loss of baselines from which maritime zones are established. The loss of baselines raises a number of legal questions, in particular concerning the legal status of maritime entitlements and in some cases the potential loss of statehood. Solutions proposed include maintaining existing baselines or outer limits of maritime zones, or the construction de novo of artificial islands. This article examines the current state of international law under the international climate-change regime and the law of the sea in relation to adaptation and adaptive measures, such as maintaining of baselines, island fortification and the construction of artificial islands. In addition, the article explores the question as to whether measures such as maintaining baselines would constitute adaptive measures under the existing climate-change regime.

Zhen Sun

Abstract

The use and carriage of heavy fuel oil (HFO) as fuel by vessels in Arctic waters present unique challenges to the fragile marine environment and vulnerable Arctic communities. Discussions on the regulation of HFO use in Arctic waters have undergone several transformations, from strong resistance by several states before and during the negotiations of the Polar Code, to stalemate, to reluctant evaluation of options, before the emergence of a potential mandatory ban. An HFO ban is expected to be adopted by the International Maritime Organization in 2021 at the earliest. This article examines the formation, development and application of the ban on HFO use by vessels in Arctic waters, and discusses the potential effectiveness of the ban.

Clive Schofield and David Freestone

Abstract

This article considers the potential impacts of sea level rise on maritime zones with particular reference to impacts on islands. It considers the sea level rise predictions of the Intergovernmental Panel on Climate Change; it outlines the existing legal framework for coastal baselines and insular features established by the 1982 Law of the Sea Convention. It highlights the work of the International Law Association Committee on International Law and Sea Level Rise, which in its 2018 report had identified the development of a body of State practice among the States and Territories of the South Pacific regarding the maintenance of existing maritime zone claims in the face of sea level rise. That practice is considered, together with the implications of the 2016 Tribunal Award on the South China Sea case on maritime zone claims based on islands.

Alan Boyle

Abstract

Inter-state litigation is a weapon employed by weaker states with limited diplomatic leverage over their bigger, more powerful opponents. An authoritative judgment may facilitate a settlement of some kind, whether directly, by further negotiation, or simply by legitimising the claims made. The LOSC was negotiated at a time when climate change was not yet part of the international agenda; however, it must be interpreted and applied with subsequent developments in international law and policy in mind. The harmful, toxic, and persistent effects of climate change more than satisfy the test for marine pollution established by Article 1 of LOSC. Part XII applies to climate change insofar as it has or is likely to have deleterious effects on the marine environment. This article will discuss the role that Part XII of LOSC may play in enforcing states’ obligations to protect and preserve the marine environment from the effects of climate change.

Catherine Redgwell

Abstract

Climate change poses serious threats to the marine environment but there is no explicit mention of climate change, ocean warming and acidification in LOSC. This comes as little surprise, given its conclusion in the early 1980s when appreciation for the potential severity of climate change was emerging. As a ‘living instrument’, the Convention has the flexibility and legal tools to address emerging climate change impacts. This article assesses its capacity to do so, as well as the extent to which the oceans have featured in the climate regime. LOSC is not ‘enough’ – but then, it has never been a ‘one stop shop’ for marine environmental protection, whether from conventional sources of marine pollution or from relatively newly appreciated threats such as the impacts of climate change. Indeed, a multifaceted approach is typical of legal responses to the ‘super wicked’ problem of climate change, and the oceans are no exception.

Drifting Fish Aggregating Devices (FADs)

Deploying, Soaking and Setting – When Is a FAD ‘Fishing’?

Quentin Hanich, Ruth Davis, Glen Holmes, Elizabeth-Rose Amidjogbe and Brooke Campbell

Abstract

This article describes the proliferation of drifting fish aggregating devices (FADs) and analyses subsequent legal questions that arise for fisheries and marine litter management over who is responsible for FADs during their drifting stage. This follows recent concerns about unlicensed FADs drifting through closed areas. This article analyses a case study of the Western and Central Pacific Fisheries Commission (WCPFC) in order to determine State obligations to manage drifting FADs. Analysis concludes that a drifting FAD in the WCPFC Area is ‘fishing’ from deployment to recovery, thereby creating obligations to monitor, control and report drifting FADs, consistent with broader obligations for coastal and flag States. The article recommends strengthening regional management in three ways: implement regional drifting FAD monitoring systems; control deployment of drifting FADs so as to promote recovery and minimize lost gear; and define appropriate responses for FADs that drift into national or closed waters without a license.

Kris Van Nijen, Steven Van Passel, Chris G. Brown, Michael W. Lodge, Kathleen Segerson and Dale Squires

Abstract

In July 2015, the Council of the International Seabed Authority (ISA) adopted seven priority deliverables for the development of the exploitation code. The first priority was the development of a zero draft of the exploitation regulations. This article focusses on the second priority deliverable, namely the development of a payment mechanism for exploitation activities, following detailed financial and economic models based on proposed business plans. Between 2015 and 2017, five workshops have been organised with 196 active participants from 34 countries. The results so far are synthesised, drawing upon the outcome of these workshops, ISA technical papers, and the scholarly literature.