The Fourth Hilding Eek Memorial Lecture was held Wednesday 2 October on the subject “Who is responsible for the protection of the ocean floor?” by Rüdiger Wolfrum, Professor of international law at the Heidelberg University, Faculty of Law – The regime for the environmental protection of the ocean floor in UN the Law of the Sea Convention is from today’s perspective, frankly speaking, outdated. The Convention was up to date in 1982, but everything has changed dramatically since then, says Rüdinger Wolfrum.
According to Rüdinger Wolfrum, the Convention is regulated on assumptions that are no longer valid. Since it was signed, science has developed. The Rio Conference in 1992, ten years after the adoption of the Law of the Sea Convention, changed modern international environmental law. Thus, the Law of the Sea Convention does not contain some of the traits of modern environmental law such as the principle of sustainable development. Moreover, economic use of the sea, including the seabed, has intensified dramatically.
Another deficiency of the Convention is its division of the sea into territorial zones.
– From the point of view of the protection of the sea, this was a disaster. The ocean is an ecological unit. To chop it up makes it impossible to provide for a comprehensive environmental regime. There is also a functional division of environmental law for example into fishery, mining, dumping and scientific research. This is of course not optimal.
A chaotic conference
Rüdinger Wolfrum points out that the regional approach was not to serve the environment but to serve the economic interests of coastal states, distance fishing nations and industrialised countries that wanted to become independent on copper, nickel and cobalt from the deep seabed. His final remark on the background of the Law of the Sea Convention is that the conference that drafted the Convention was very chaotic.
– We met in sessions with many participants but without proper preparatory documents. We could hardly speak to each other. Occasionally we had states that misbehaved such as the USA when President Reagan decided that the US delegation had no mandate to participate.
The Law of the Sea Convention is outdated according to Rüdiger Wolfrum.
According to Article 192 of the Convention, all States have an obligation to protect the marine environment. The article is applicable on all regions of the sea, including the territorial waters. The International Tribunal for the Law of the Sea has argued in its advisory opinion on fisheries from 2015 that other States are obliged to endorse and implement the coastal States’ laws on the protection of fisheries.
– The Tribunal has decided that all issues concerning fisheries are part of the environmental regime. This is an example of how the loopholes in the Convention are being filled with a very progressive interpretation of those who are engaged in the administration and management of the ocean.
Many legal gaps in the Convention
The seabed is under surveillance and management of the International Seabed Authority. The Authority has a rather complicated mandate. It has jurisdiction over the mineral resources but not over the seabed as such. Therefore, the protection of the environment is done in connection with seabed mining.
During his lecture, Rüdinger Wolfrum displayed the legal gaps of the Convention due to the technological, economic and societal changes that have occurred since the Convention was adopted. One major challenge is the ongoing UN conference on an international legally binding instrument under the Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). The aim to incorporate the BBNJ into the Law of the Sea Convention meets serious obstacles since it will demand a legal distinction of biological resources in different sections of the sea and various levels of water column.
– Due to scientific and legal development, we need to fresh up the Law of the Sea Convention. The International Tribunal for the Law of the Sea has shown that it can be easily freshened up by a progressive interpretation of existing rules.
The negotiators of the legal regime for the BBNJ believe that the best way to go about this is to sign a new treaty. Rüdinger Wolfram is not in favour of such a solution because he thinks there might be a risk that the new treaty will have other parties than the Law of the Sea Convention and thus you will end up with two different sets of parties with two different regimes.
– The International Seabed Authority is a modern international organization. Nobody can blame it for not trying to protect the environment. I would recommend extending the competence of the Authority, but I know that this is not going to happen.
Rüdinger Wolfrum was introduced by Deputy Vice Chancellor Henrik Cederquist and Director of SCILJ Pål Wrange. Afterwards, Hans Corell, Chair of the Board of SCILJ, concluded the event by making some comments on the subject of the lecture.
Stockholm Centre for International Law and Justice (SCILJ)
was established on February 20, 2012 with the mission to develop research in international law and to strengthen the links between academia and practice. The Centre shall have an interdisciplinary and practice oriented character and should make international law visible in public discourse. The Hilding Eek Memorial Lecture is given every other year in the memory of Hilding Eek, the distinguished Professor of International Law at Stockholm University 1956-1974.
This event was organised in cooperation with the Stockholm Environmental Law and Policy Centre and the Swedish branch of the International Law Association and was funded by the Cassel Foundation.