Norwegian ocean management – modern or still very traditional?

With Jens Evensen in the forefront, Norway was a pioneer in the development of the law of the sea in the 70s. However, the traditional law of the sea as we know it, with its zonal and sectoral approach, is not sustainable. Through the High North Report, the Norwegian government is laying the foundations for what will be Norwegian foreign policy for the next 10 years. Is Norway once again capable of being a pioneer in the development of a modern law of the sea?

The High North Report acknowledges that climate change has a strong impact on our oceans. The oceans and coastal areas are experiencing increasingly frequent and more intense climate-related events, caused by rising sea temperatures and ocean acidification. This is evident through extreme weather events, more frequent cases of storm surge and spring tide, melting sea and land ice and difficult living conditions for many types of marine species.

Inderdependent climate and ocean conditions

The Earth's climate and ocean conditions are interdependent, and the oceans play a vital role in our climate system. The ocean helps to moderate climate change by moving heat and salt around the globe, and by acting as the world's largest natural carbon sink. The oceans capture as much as 30% of anthropogenic CO2 emissions and absorb 93% of global warming. The uptake of CO2 in the oceans makes it gradually more acidic, with negative consequences for the growth of plankton at the bottom of the food chain. Melting ice changes the salt content of the seawater, and when the ice can no longer reflect the heat, it amplifies the ocean warming.

Two separate legal regimes

Despite the critical role that oceans play in climate regulation, international climate law and the law of the sea have developed as two different, largely separate, legal regimes. The focus of the law of the sea is on establishing and operationalising a legal system for resource utilisation. This jurisdictional framework is laid out by describing the prescriptive and enforcement powers of the relevant actors, based on whether the actor is a coastal, flag or port state, where the activity takes place (in what maritime zone, or inside/outside national jurisdiction) and the types of activities undertaken (e.g. fishing, navigation, marine scientific research). The main goal of the UN Climate Regime is to reduce greenhouse gas emissions. Hence, the Law of the Sea Regime and the UN Climate Regime have different goals and make use of different legal tools to achieve them. The Law of the Sea Regime uses enforcement mechanisms to ensure compliance, while the UN Climate Regime tries to achieve the same effect by using tools like reporting obligations and transparency. Climate law also makes use of market-based tools, such as CO2 taxes and trade in climate quotas. Such schemes do not exist in the law of the sea.

Little attention has been devoted to the relationship and the interaction between the two legal frameworks governing ocean issues and climate change.

However, little attention has been devoted to the relationship and the interaction between the two legal frameworks governing ocean issues and climate change. This creates a twofold dilemma: on the one hand, the Law of the Sea Convention is intended to cover all matters related to the oceans, without expressly referring to climate change; on the other hand, the UN Climate Regime is meant to cover matters related to climate change, which is highly terrestrial and atmospheric in scope, and with very limited application to the oceans. There are, however, potential advantages of fragmented governance systems in that regime interplay may enhance synergies and be the best option for complex and multilevel problems. Nevertheless, lack of regime interaction means lack of synergies and loss of meaningful conversations, and may result in significant legal gaps. This is also the risk if the marine Arctic is managed only from a traditional law of the sea perspective, where access to and use of resources is based only on the zonal approach and the traditional notion of sovereignty.

Limited environmental regulation in the law of the sea

A clean, healthy and sustainable marine environment is a prerequisite for future utilisation of marine resources. The Law of the Sea Convention devotes its part XII to the protection and conservation of the marine environment. The problem is that the duty to protect and preserve the marine environment is phrased as a general principle with little guidance on how to apply and implement the obligations described. This creates a risk of weak implementation and enforcement practices. In competition with other interest, the environmental interests risk losing out. Even the principle of sustainability is not linked only with the environment, but also, with the social and economic environment, forming so, the three pillars that aim to guarantee the planet’s integrity and to improve the quality of life.

By combining the obligation to protect and conserve the marine environment with the goals and tools of the UN Climate Regime, a better and more holistic protection of the oceans can be achieved. This means that considerations of climate change should form part of the assessments of how to govern ocean spaces, including deciding which actors and which activities should be permitted where.

Climate change – a threat and an opportunity

Climate change represents both a particular threat to Arctic areas and a window of opportunity. Threat, because the changes happen faster in Polar Regions than anywhere else in the world and thus threaten very vulnerable nature and wildlife. It also represent untapped opportunities, because melting of sea ice opens up new areas, previously inaccessible due to the cover of ice. The Arctic states are positioning themselves in the race towards access to these new areas and its resources and potential for the development of industry in Polar Regions. This potential for economic growth is stressed in the High North Report.

The High North Report – can innovative policy become law?

The new High North report does, however, build on a holistic and integrated approach to ocean management. It points to the highly integrated nature of climate and oceans.  In that sense, the High North Report represents an innovative and modern approach to ocean management. The problem is that this modern approach is reflected mostly in policy documents, but less so in law. The underlying legal framework is, as the law of the sea, very much sectoral based, creating and preserving the traditional approach, which has shown to be insufficient when it comes to ensuring sustainable use of ocean space and its resources. If the intentions of the High North report are to be fulfilled, changes in the underlying legal structure or strengthening of the environmental legal rights and obligations must follow.

 

Contact person: Elise Johansen, elj@wr.no, Associate professor, Norwegian Centre for the Law of the Sea and Specialist Counsel in Wikborg Rein as of 1 January 2021.

Co-writer: Signe. V. Busch, Associate professor, Norwegian Centre for the Law of the Sea

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