Valley of Decisions: Biography and Essays in Honour of Hon. Justice Iorhemen Hwande

Chapter Nine - United Nations Convention on the Laws of the Sea as Tool for the Resolution of Climate Change Disputes

Chapter Nine United Nations Convention on the Laws of the Sea as Tool for the Resolution of Climate Change Disputes M.M.Dura* Introduction Climate change today is an issue of great international concernbecause ofits links to security ofmanonplanetearth. The effects of climate change including sea level rise, desertification, glacial melting and water star gates, all contributetoincreasedcompetitionfornaturalresources.' The correlationbetween climate change and security threats has led policy makers to view climatechange as a security issue, due to its wide spread social, economic, geopolitical and environmentaldimensions.2 Water, forming three-quarters of our planet cannot but be centralissues relatingto climatechange. TheArcticregionfor instance hasbeenexperiencing depletionin this ice level due • Department of Commercial and Property Law. B.S.U. Makurdi. 1 Climate change security at http:/climatclab.org/climatc change security, last visited on 30/01/201l. 2 Ibid 103 104 Valley ofDecisions to climate change' and there maybe more ofthis depletionif its oil depositbegins tobe exploredby the three surrounding coastal countries of Russia, USA and Canada. There is even fear ofthis three countries clashing in the exploitation of oil depositsintheArctic.'The resolution ofthis kind ofclashesis withinthe purview ofthe United Nations Convention onthe LawoftheSea(UNCLOS).UNCLOS, themostcomprehensive regime on the rights and liabilities of nations on the uses of thehighseas, isthereforeaveryimportanttoolinthesettlement ofclimatechange disputes. Thisworkexamines the impactofthe seas on climatechange, the relationshipbetween climate change and world security, the sufficiencyor otherwise ofUNCLOS in the resolution of climatechange disputes and makes some recommendations. An Overview ofthe United Nations Convention on the Law of the Sea (UNCLOS) UNCLOS sets up a legal regime for the seas and oceans and this represents the attemptby the international community to regulate all aspects of the resources ofthe sea and uses of the ocean. In terms of environment, UNCLOS establishes material rules concerning environmental standards and enforcement provisions regarding pollution of the marine environment, UNCLOSwas adopted in1982inMontegoBay, Jamaicaand enteredintoforce 1994.Itcertainlyhas158parties. The major features of the convention include navigational rights, territorial sea limits, economicjurisdiction, legal status of resources on the seabed beyond the limits ofthe national 3 Thilo Neuman "Climate Change, Conflicts and Cooperation in the Arctic" at www.ifios.org last assessed on 15/0112011, 5pm. 4 Ibid. UnitedNations Convention on the Laws ofthe Sea 105 jurisdiction,passageofshipsthroughnarrowstraits,oonservation andmanagementoflivingmarineresources, protection ofthe marineenvironment, a marine researchregime and abuilding procedurefor settlementof disputesbetweenstates.5 Inorderto administerUNCLOS, thetreaty createdfourbodies to handle specificissues. The commission onthe Limit ofthe Continental Selfwas created to implementArticle 76 of the treaty, which allows nations to extend sovereignty over a portion of the continental shelf beyond the limits of the Exclusive EconomicZone. Also createdwas theInternationalSeaBedAuthority6, simply called the "Authority". Itis responsible for the governance of theArea-theportionoftheseabedthatisbeyondtheExclusive EconomicZoneortherecognized continentalshelfofa country. Itcomprises theAssembly, the Council and the Secretariat. The thirdbody createdbyUNCLOS is the Enterprise which isresponsibleforthecoordination,explorationandexploitation ofresourcesintheArea. Finally, InternationalTribunalfor the Law of the Sea (ITLOS) is established in Annex VI of UNCLOS. The Tribunal has formed a number of chambers includingthe Chamber ofSummaryProcedure, the Chamber ofFisheries Disputes, the Chamber ofMarine Environmental Disputes and the Chamber for Maritime Delimitation Disputes.7 The Tribunal is also the home of the Sea Bed Disputes Chamber, which is responsible for adjudicating disputes pursuant to part XI, section 5 of UNCLOS, which 5 '"The United Nations Convention on the Law of the Sea (UNCLOS)" available at http://www.tematea.org'l=node2. 6 Created pursuant to Article 156, UNCLOS. 7 International Tribunal for the Law of the Sea, General information available at http://www.itlos.orgistart2en.html accessed 3/212011, 3pm. 106 Valley ofDecisions governs settlements of disputes that arise from deep seabed activities,s Climate Change Disputes Oimate change has been defined as long-term alteration in globalweatherpatterns, especially increases intemperature andstormactivity,regardedasapotentialoonsequenreofgreen house effect",9 Oimate change represents the latest series ofenvironmental drivers ofhuman conflictthathavebeen identified in recent decades,followingothersincludingdrought.desertification,land degradation failing water supplies, deforestatioI\ fisheries depletionandevenozonedepletion,tO The scientific link between climate change and marine environmental protection hasbeen identified and hasbeen highlightedinpartthroughtheworkoftheIntergovernmental Panel on Climate Change (IPCC)", Thefollowingis anoverviewofthe conclusions reachedbythe IPCC in its Third Assessment Report of 2016 with respect to climatechangeimpacts onthemarineenvironment Ocean-related impacts of human induced climate change identifiedby the IPCC include the following:12 8 UNCLOS Annex VI article S. 9 Encarta Dictionary, Microsoft: Encarta DVD, 2009. 10 T.Homer - Dixon "On the Threshold: Environmental Chnages as Causes of Acute Conflict" International Security, 16.2, 1991 pp.76-116, cited I Brown, 0 et al "Climate change as the 'new' security threat...