The Ocean as Legal Matter: The ITLOS Advisory Opinion on Climate Change as Hydrospheric Provocation

For the past 40 years, UNCLOS has been the main mechanism for codifying and governing human and sovereign relations in oceanic space. It has divided the seas, striated the ocean, spatialized and zoned through fixed boundaries and limits to establish rights and duties of states offshore and on the seabed. However, the ocean is much more than a space of lines, flat sailing surfaces, and stable water columns. It is a space of turbulence, dynamic in both space and time, and this sits uneasily with the static, determinate boundaries of extraction zones and planning areas, as well as the spatial abstractions contained in the maps and laws (including UNCLOS) that underpin them. Tellingly, there are very few instances in UNCLOS where the ocean is referred to as a dynamic geophysical space – an arena of earth-ocean-atmosphere forcings and lively, constitutive matter that reflect and contribute to processes that exceed its boundaries. For instance, waves, which are central to oceanic encounters for those who find themselves at (or in) the sea, are completely absent from UNCLOS. Although ‘particularly severe climatic conditions’ and the presence of ice covering (art. 234) and winds and currents (art. 56) are referenced, they refer to specific modes of encounter and functionalities (navigational hazards and energy extraction, respectively) rather than the ocean itself. There is, however, one article in UNCLOS where the materiality of the ocean – as a space of substance and processes – is understood as permeating throughout its numerous functions. Art. 1.1.4 reads: "For the purposes of this Convention … 'pollution of the marine environment; means the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities." Although Art. 1.1.4 remains utilitarian (i.e. the enumerated processes are valued for their service to the ocean’s function as a habitat or space of human uses, not for their contribution to oceanic essence), the article nonetheless opens a universe of legal obligations for those seeking to engage the ocean in a way that goes well beyond the rest of UNCLOS. Thus far, however, this definitional acknowledgement had had little to no effect on legal obligations flowing for the interpretation of the convention. In this paper, we argue that ITLOS’ recent interpretation and use of UNCLOS Art. 1.1.4 in the Advisory Opinion on Climate Change, although of limited direct impact, opens the door for a fundamental expansion of how oceanic materiality matter is engaged in the law of sea. Applying a materialist lens to legal theory and practice, this paper thinks along the consequences of such an ontological shift and discusses the legal implications of acknowledging the oceans as an amalgamate of substances and energies that exceed its bounds.