Two Weeks in Review, 27 February – 12 March

Bjørn Kunoy explores the Commission on the Limits of the Continental Shelf’s (CLCS) recommendations to the Russian Federation under UNCLOS in regard to the Arctic area. On 14 February 2023, Russia submitted a revised submission, sharing further data in regard to the local part of the Amundsen Basin. The proposed outer limits of the continental shelf were significantly expanded in the course of Russia’s sequential revisions. While the CLCS did not approve the entirety of the approximate 2 million square kilometers claimed by the Russian Federation, the lion’s share of the claim was approved, disapproving only approximately 300.000 square kilometers of claimed entitlement. Kunoy finds that

‘Consistent with Article 76(10) of UNCLOS, the recommendations of the CLCS are without prejudice to questions ´of delimitation of the continental shelf between States with opposite or adjacent coasts`. Given the rule that ´submissions shall be queued in the order they are received` (Rule 51(4)(ter) of the RoP)  it would appear likely that the submissions of Canada and Denmark/Greenland will only be submitted in 15 – 25 years. Yet, this will in no manner prejudice the rights of these States to their continental shelf entitlements in the Arctic. Russia has in reaction to the submissions of Canada and Denmark/Greenland explicitly consented to the consideration of these submissions. Yet, it should also be observed that the expression of such consent is not irreversible, as is symptomized by the recent withdrawal of Pakistan’s consent to consideration of India’s submission notwithstanding India did not object to the CLCS making recommendations to Pakistan whose submission also overlapped with the claimed entitlement of India.’

Read the full post here. 

Malgosia Fitzmaurice examines several questions concerning the legal character of norms of international environmental law. Fitzmaurice suggests that the approach to state responsibility or liability for environmental harm should be holistic, based on primary norms i.e., principles underlying international environmental law with secondary norms of State responsibility. In her view, further research should also be conducted relating to the 2001 and 2006 ILC Drafts in light of their usefulness for States’ practice, in the context of civil liability regimes. She concludes that the expanding number of different international and national judicial fora which deal with environmental harm should be more robustly explored, such as human rights courts and investment arbitrations in order to avoid fragmentation with respect to responsibility or liability for environmental harm.

Read the full post here.

In their post, ‘Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights’, Juan Auz and Thalia Viveros-Uehara explore the contribution of international courts to climate governance and human rights protection. The two note that while each court’s response will vary based on its mandate and interpretation, the IACtHR’s focus on international human rights law and its relational approach could have wide-ranging effects and could spark international law innovations, particularly in interpreting human rights obligations concerning due diligence and common but differentiated responsibilities. Furthermore, the two suggest it is not unrealistic to expect that a new advisory opinion on the climate emergency from the IACtHR could influence ongoing clarification processes, either at the ITLOS, the ICJ or elsewhere.

Read their full analysis here.