 Tonight we're gathered in Mi'kmaq'i, the unceded territory of the Mi'kmaq. Dalhousie University is within spitting distance of Shabakto, the Great Harbor, and we have plenty of Atlantic Coast, which is perfect for tonight's lecture, and also for the approaching Hurricane Lee and the potential impact that it may have. I'd also like to recognize that Dalhousie University has benefited from the proceeds of slavery, a considerable portion of Dalh's initial endowment came from taxes on slave-produced goods, and Dalhousie still has work to do to move towards racial justice. My name's Will Lankford. I am a professor in the College of Sustainability, and it's my pleasure to welcome you to Double Billing. It is partly the first lecture of the Environment Sustainability and Society lecture series. The ESS lecture series is a key event of the college. We bring in experts with different perspectives on sustainability issues, and they can share with you. And my thanks to Deborah Ross for putting together the fall 2023 schedule. And as you'll see tonight, there'll be a lecture followed by questions from you, the audience. So this is a way to engage you as well. And I said it was a double billing. This is co-sponsored by the Marine and Environmental Law Institute. It's the 15th Douglas M. Johnston lecture, and we are delighted to work with Mila. So I'm now going to introduce Sarah Sek. Sarah Sek is the director of the Marine and Environmental Law Institute, as well as a professor in the law school. Welcome. Thank you very much, Will. And we are delighted at the Marine and Environmental Law Institute to have the opportunity again to co-sponsor with ESS, the Douglas M. Johnston lecture. I'm just going to say a couple of words about Mila first. We're based at the Schulich School of Law. There's a long history of professors and researchers. Playing a role as a leader in research, education, consultancy, and training. We currently have 11 faculty associates, together with research associates and fellows. And we share expertise in diverse aspects of Canadian and international marine and environmental governance law and policy. And through programs at Mila, law students are able to specialize through the completion of what we call MELP certificates. In July of this year, I took on the role as director of MELP law and together with my colleague Sarah Ross, who's over here, and who will be leading the question and answer. Sarah serves as the, so Sarah and Sarah, in case you noticed, serves as the associate director of MELP law. I also wanted to note that for us, this is a challenging time of year. A year, almost a year ago, we were saddened to lose our colleague, Meinhard Dewell, in a tragic accident. Meinhard was a leader in Canadian and international environmental law and policy. And he was a close friend also of the College of Sustainability. So we're pleased in his honor to announce that we are launching towards the end of this series, what we're going to call the Meinhard Dewell legacy lecture in November. And so in part, we're hoping that we will use Meinhard's legacy to sort of launch a very hopeful message about the potential of solutions to sustainability challenges. This evening, we are hosting, delighted to host the Douglas M. Johnston lecture. It's an annual lecture. It began in 2009 honoring the late Douglas M. Johnston. Douglas M. Johnston was, let me make sure I've got my notes right here. A leader, a teacher, a scholar, a writer, and has been described as an internationalist in the field of public international law, especially in law of the sea and international environmental law. He was born in Scotland in 1939. He joined Dalhousie in 1972. And among his numerous contributions was the development of the Marine and Environmental Law Program at the Law School, as well as the co-founding and directing of both the multidisciplinary Dalhousie Ocean Studies Program and the Southeast Asian Program in Ocean Law Policy and Management, centered in Bangkok, Thailand. And these initiatives and activities gave Dalhousie and the Law School an international reputation as a center of legal research and education in international law and especially in marine and environmental law. And beyond this, he published groundbreaking scholarly works, including in Fisheries, Theories of Ocean Boundary, Treaty Law, and History. And his last book, completed shortly before he died, was awarded a posthumous award by the American Society of International Law. And so, in his honor, we are absolutely delighted that Professor Natalie Klein has agreed to come as our Douglas M. Johnson speaker this year. She is a professor at the University of New South Wales, Sydney. With the Faculty of Law and Justice in Australia and also an Australian Research Council Future Fellow. She's currently the president of the Australian branch of the International Law Association and a trustee for the UK-based charity Human Rights at Sea. Professor Klein was previously the Dean of Macquarie Law School and prior to this worked at an international law firm for the government of Eritrea and in the Office of Legal Affairs at the United Nations. Her research focused on law of the sea and international dispute resolution with recent publications, including Judging the Law of the Sea with Kate Parlett and edited volume on unconventional lawmaking in the law of the sea and most recently a co-edited research handbook on international marine environmental law. And so, with that introduction, I'm delighted to have Natalie come and give the lecture this evening on judicialization of international marine environmental law. All right, well, thank you so much for the opportunity to join you this evening and particularly to be able to talk at a lecture which is in honour of Professor Douglas Johnston. I began studying the law of the sea as a graduate student and it was impossible to be working in law of the sea at the time and not be reading Professor Johnston's work. And my postgraduate research work was on dispute settlement in the law of the sea and so when I heard that Professor Johnston during his time here at Dalhousie had focused on international environmental law as well as the law of the sea and I thought, well, since I came across his work looking at dispute settlement I'm going to bring all of these together for the purposes of tonight's lecture and talking about judicialization of international marine environmental law. So just to situate us in what we're talking about tonight, when we're talking about international marine environmental law we're interested in quite a few different things. The one that would be most familiar with many people would of course be issues related to marine pollution. So when we think of marine pollution we're thinking about the oil that is getting spilled out of vessels. We're thinking about the diversity of plastics that are finding their way into ocean areas. Recent research is also talking about how caffeine is coming through land-based sources into the marine environment and also causing harm to the ecosystems. So from the coffee we drink through to the release of nuclear waters from the Fukushima plant, marine pollution is a very big part of international marine environmental law. But it's not just about marine pollution, of course we're interested in marine biodiversity as well. So in this respect we're thinking about the deep sea creatures that live around these hydrothermal vents and the regulation of deep seabed mining under a new code that's been talked about. We're thinking about the regulations to protect megafauna like the whale shark you see on the slides from international trade under the Convention on the International Trade and Endangered Species. And of course we're interested in the conservation and management of fisheries, fish that are taken for animal consumption and for pet consumption as well as accidentally in other pursuits as well. So international marine environmental law brings all of these different considerations together. We have a large number of laws that have developed under customary international law under different treaties that regulate these issues, general principles as well as fairly specific rules. We have a large number of regulatory tools that have been developed such as marine protected areas, regulations around the type of gear that you can use and also rules around compliance and enforcement and this is where the judicialisation starts setting in. Some of the research that I've been doing has been looking at informal agreements you had Sarah mention the unconventional lawmaking. So for example, the sustainable development goals that I'm sure you're familiar with, that's where we're setting standards about what states are supposed to do and we're not creating legally binding obligations in the sustainable development goals but it's still moderating behaviour. So that in itself has a kind of normative element to it and lots of different actors not just states can be involved in informal lawmaking and I think that's where the international courts and tribunals come in. So they are also involved in their own sort of lawmaking and this is where we can start thinking about judicialisation of international marine environmental law. So you see the word judicialisation, what am I actually talking about when I say that? When I first sort of used the term, I was just sort of thinking about the involvement of courts and tribunals but some international relations scholars have looked at this and Karen Alter and some colleagues have gone further and said, well judicialisation is really this process by which international judicial bodies shape or dominate international politics. So it's this idea that judicial decision makers are actually limiting the sovereignty of states by their decisions. So the courts are coming in and where we would expect states to perhaps be making decisions about international law. Instead it's the courts that are really on the front foot here and I think that this question of judicialisation is really an important one at the moment when we think about the approaches to different international courts looking for advisory opinions on climate change and so this is what I want to look at with you this evening. To talk about some of the different international courts and tribunals that have authority to be able to make decisions about international marine environmental law. Also want to talk about in particular their judicial engagement. What extent are we getting these developments in the law that are taking away or dominating states? So we'll need to look at some of the decisions of the International Court of Justice and also what's happening under the dispute settlement mechanism of the UN Convention on the Law of the Sea. And once we kind of get a sense of well is there judicialisation we can go well is this a good thing? Why do we need to turn to international courts? What's the benefits of doing that? And I think we also have to think about what are some of the risks involved as well. So just to start off and talk a bit about the judicial landscape, I mentioned of course the International Court of Justice and the dispute settlement bodies under UNCLOSES. Two of the main sites I think but really it's not limited to those particular judicial fora. We can also look at a whole range of other international institutions that have dispute settlement mechanisms where decisions have been made. Certainly in terms of international environmental law we have seen that getting more airing before different human rights bodies particularly with the right to a clean environment being talked about. Also in the context of investor state dispute settlement again the environment has been getting showcased where we have situations that states change their environmental laws and foreign investors now say that their foreign investment is prejudiced as a result of that. So tribunals have to make decisions on that. The World Trade Organization you might have heard of a decision related to shrimps and turtles has also come on board in looking at in what instances international environmental law can impact international trade. I also mentioned claims commissions that hasn't been a huge site I must acknowledge around international environmental law but certainly following Iraq's invasion of Kuwait where Iraq in trying to withdraw from Kuwait set fire to a whole range of different oil wells. The pollution that flowed from that including pollution into the marine environment was part of the claims that went to a claims commission and reparations were sought for that and has been influential in how we assess compensation for environmental claims. But we're going to be focusing on the ICJ and also dispute settlement under UNCLOS. When I'm talking about dispute settlement under UNCLOS or the UN Convention on the Law of the Sea just be aware that this is a multilateral treaty there's 169 states including the European Union that are parties to this particular treaty and when states join this treaty similar to the WTO the World Trade Organization the moment that they sign up to this treaty they're also consenting to the possibility that a dispute could be referred to a court or a tribunal for resolution. Normally you need some extra show of consent but UNCLOS is a bit different in as much that once you're a party to the treaty that's it you've consented. There are some exceptions to the disputes that can go to the UNCLOS courts and tribunals and one of those exceptions interestingly for our purposes relates to fishing in the exclusive economic zone. But largely disputes relating to the protection and preservation of the marine environment are subject to compulsory jurisdiction and this is where we're seeing I think some of this judicialization of international marine environmental law happening. So there are different fora that might be utilized under the UNCLOS dispute settlement mechanism including possibly referral to the International Court of Justice but really the two main sites that we're talking about here is the International Tribunal for the Law of the Sea. It's an international court that's based in Hamburg and this week is where there are currently hearings before it lost relating to obligations of states concerning climate change which we'll talk about and also annex seven arbitral tribunals. So understanding that these are our different sites that we're looking at. Let's first of all consider what has been happening at the International Court of Justice. So when I started thinking about, well, you know what's been the contribution for international marine environmental law at the International Court of Justice. I actually came up short a little bit at the start and I thought well actually most of the decisions to do with international law and the environment are really more environmentally focused not so much the marine environment but this has been important for international marine environmental law as well. So for example the pulp mills decision was important because it told us what a standard of due diligence involved. So the court said there was a requirement of due diligence imposed on states to regulate and enforce laws against private actors that may negatively impact the environment and in the pulp mills judgment, the court described due diligence as an obligation to deploy adequate means to exercise best possible efforts to do the utmost to obtain a result. And this standard is one that's now also employed in relation to the marine environment. The ICJ has also endorsed the principle of prevention which is this idea that no state should take action within its jurisdiction that is going to cause harm to another state and within its jurisdiction. And this was a statement that made in an advisory opinion looking at the legality of the threat or use of nuclear weapons. So the court has engaged with international environmental law but I was like well surely something's been said about marine environmental law and I thought well there's been cases about fisheries following the turbot war, following the cod wars. But the court really didn't advance, I didn't think the substantive law relating to the conservation of fisheries in any strong way in those judgments. But then we have the case that Australia brought against Japan dealing with whaling in Antarctica. So Australia took Japan to the International Court of Justice because Japan was undertaking what Japan called scientific whaling. But Australia said actually no, this is just commercial whaling that you're calling it scientific whaling because you're not allowed to do commercial whaling in Antarctica. So Australia and Japan had both accepted the jurisdiction of the court, Australia instituted proceedings and the dispute was really largely about treaty interpretation and what was the obligation under the international convention on the regulation of whaling. Now Australia did win that case and the court did say that what Japan was doing could not be considered for the purposes of scientific research. So the result was that Japan did stop the program that it was engaged in at the time, seemingly a victory for international justice. But then Japan said, all right, well now we'll come up with a new scientific program that is for the purposes of scientific research. So it did so, but then states challenged that particular research program as well. Japan changed its acceptance of compulsory jurisdiction, then it decided to withdraw from the international whaling commission and cease its whaling activities in Antarctica but only undertake whaling in its own maritime zones. So if you're thinking about judicialization being a situation where the court has taken a step and taken power away from the state, it seems to me that the whaling case actually shows that the state very much retained power over what it was doing in relation to whaling. So while I was sort of left at this point thinking, oh well the judicialization of international marine environmental law from the ICJ is not terribly strong, but I thought this could well be about to change when we consider that the ICJ has now had a question referred to it looking at the obligations of states in respect of climate change. So in March of this year, Vanuatu along with some youth grassroots groups got together and essentially came up with some questions that they wanted to put to the International Court of Justice asking questions about what are the obligations of states when it comes to climate change. So ultimately this question had to come via the UN General Assembly. A resolution was adopted by consensus. So every state agreed to it. There are 105 of the states that sponsored this resolution. So there's a very strong agreement in the end that these questions should go to the International Court of Justice. So these questions are actually quite big ones. So I'm going to just highlight a little bit how it's going to relate to international marine environmental law for our purposes. So the first question that's going to be put to the court is this question around well, what are the obligations under international law to ensure protection of other parts of the environment? And the marine environment has to fall within the other parts of the environment. So the court will have an opportunity to look at issues such as sea level rise, such as ocean acidification and give some indication of what those obligations might be. And then the opinion needs to go further and not just say what the obligations are but also talk about the consequences. So what are the legal consequences when states' actions or omissions have caused significant harm to the marine environment as another part of the environment? And this is with respect to states, in particular small island developing states because those are the states most at risk from rising sea levels. So with these particular decisions, well, opinions that the court needs to make, it has an opportunity to really give much greater clarity on what the obligations are for states. It's important to recognize that an advisory opinion is not formally legally binding. When two states take a case to the court and it's a contentious decision, that judgment is final and binding on those particular parties. For an advisory opinion, it's said not to be legally binding but the reality is that when the court states somewhat definitively what international law obligations are, states tend to take notice of that and it can have a range of different effects. It'll have an effect in terms of negotiations between states on these issues. It'll have an effect in terms of bilateral relationships in dealing with some of these climate change questions. And I can also imagine that to the extent there's still domestic climate change cases going ahead that some of the decisions of the court will also be brought in to those sorts of proceedings as well. So the potential here I think is quite significant. It's hard to know at this point whether the court will be somewhat conservative in its approach and whether it will just try and stick to the wording of existing agreements like the UN Framework Convention on Climate Change and the Paris Agreement or if it will actually use the opportunity to go a little bit further than it has to date. And I think also there's an opportunity for the court to engage with the advisory opinion that we're also going to be expecting from it loss. So let me turn to some of the contributions then to international marine environmental law that have come through the dispute settlement regime under UNCLOS. So there have been about 50 cases decided under UNCLOS so far. It's actually a fairly modest number when you compare it to some other institutions. But I thought on a generous understanding of the marine environment, when you look through all these different cases, well over half of these cases in one way or another have had implications for the marine environment both at loss and in ad hoc arbitration. So in thinking about how they've really had an impact in terms of international marine environmental law, I think it's worth focusing on two particular provisions of UNCLOS and one of them is Article 192. And simply Article 192 of the UN Convention on the Law of the Sea says that states have the obligation to protect and preserve the marine environment. That's it. It's a pretty simple statement. And so much has been read into what this actually involves and commentators have said, well, yes, you've got this one basic provision and it lends itself to a dynamic interpretation. So in the South China Sea arbitration between the Philippines and China, the tribunal at the time recognized that Article 192 entails a positive obligation to take active measures to protect and preserve the marine environment. And by logical implication, entails the negative obligation not to degrade the marine environment. So Article 192 was put to the tribunal as a provision that China had violated because of the island building activities that it had undertaken. Now, it should be recognized that every state that borders the South China Sea has undertaken some amount of island building activities. But what China has done has been quite considerable compared to some of the other island building and land reclamation work. Perhaps that's putting it marbly too. So the Philippines main complaint related to seven reefs that were in the Spratly Islands group. And you can see in these pictures how these particular reefs were developed over time. So China was using a large fleet of vessels that employed heavy cutter suction dredge equipment to create almost 13 square kilometers of new land in less than three years. So these reef systems were impacted because of the construction, because of the dredging. And so there was harm both directly to the reefs at the time, but also indirect harm to the benthic organisms, so the corals and the seagrass, as well as the pelagic, the fish in the water column as well as a result of this. Now, in assessing whether China had violated unclose requirements to protect and preserve the marine environment, the South China Sea considered Article 192 and said that there was a duty to prevent or at least mitigate significant harm to the marine environment during the pursuit of large scale construction activities. So we've gone from states have an obligation to protect and preserve the marine environment to this duty to prevent or at least mitigate significant harm to the marine environment during large scale construction activities. But the jurisprudence has since gone further in relation to Article 192. So tribunals have also said that the obligation to protect and preserve the marine environment also includes reference to conserving and managing the marine living resources. And this was kind of an interesting decision because you might recall at the start I said there isn't compulsory jurisdiction over every dispute under unclose and fisheries in the EEZ is supposed to be one of the categories outside jurisdiction but not when you can call it a dispute relating to the protection of the marine environment. It's not a fisheries dispute now, it's a marine environment dispute and therefore it's within jurisdiction. So to me, this is judicialization in action. The courts are saying actually states you might have thought this was not something we were going to decide but in fact this does fall within our remit and we do have authority to make decisions in relation to these issues. So in the South China Sea arbitration the Philippines alleged that harmful fishing activities violated China's duties to protect and preserve the marine environment because Chinese fishers had engaged in harvesting of corals and giant clams using destructive fishing techniques and corals and giant clams are endangered species. They're listed on something known as the IUCN red list which is supposed to give you an indication of the conservation status of a large number of species and corals and giant clams are listed on that but Chinese fishers were using the propellers of small ships, they were using explosives to be able to retrieve these species. So this conduct was also found to have violated Article 192. So the finding was based on the determination that China was aware of, tolerated and failed to prevent harvesting of endangered species on a significant scale and that harvesting giant clams in a manner severely destructive of the coral reef ecosystem also violated the obligation to protect and preserve the marine environment. So since then the jurisprudence has gone on and also under the frame of Article 192 we now know that flag states, so the states that are responsible for ships that are registered to their particular country they have to ensure that their vessels comply with coastal states conservation measures otherwise they're potentially violating Article 192. Flag states also have to ensure that their ships are conforming to rules that might have been set up by a regional fisheries management organization. So if the fishing vessels are not following the rules of a regional organization well that again could be a violation of Article 192. So in lots of different ways we see that Article 192 is a way that courts are now being able to hold states to account for their actions in relation to the marine environment. So there's one other provision in Bangladesh this is also happening which is Article 194. It's not quite as short sharp and shiny as 192 so I haven't given you the full text but in essence what it's about is the core obligation to prevent, reduce and control pollution of the marine environment. Now the scope of this particular provision was talked about in a case that Mauritius brought against the United Kingdom relating to the Chegos archipelago and that's the Chegos archipelago you can see up on the screen. It's a group of islands found in the middle of the Indian Ocean and the United Kingdom has leased out the largest island Diego Garcia to the United States to use as a military facility. So the United Kingdom separated the Chegos archipelago from the rest of Mauritius when Mauritius asserted its right to independence and it's now known as the British Indian Ocean Territory and there's been a whole lot of different disputes related to this particular area. But the case that I wanted to bring to your attention is known as the Chegos marine protected area arbitration because Mauritius was challenging the United Kingdom's decision to declare a marine protected area over the entire exclusive economic zone of the Chegos archipelago which was going to have an impact on the fishing rights that Mauritius still had in that area. And Mauritius said that the United Kingdom did not inform Mauritius of its plans, it provided Mauritius with inaccurate information and it ignored Mauritius's repeated calls for bilateral consultations insisting on proceeding with the proposal. So for our purposes what was interesting was the tribunals discussion around Article 194 and saying that it extends to measures focused primarily on conservation and preservation of ecosystems. So again, Article 194, it's not just about marine pollution, we're thinking about the impact on marine ecosystems. Now in this instance, the failures of the UK to consult was found to violate other provisions of Unclose, not Article 194, but it was still relevant in terms of how we understand this language of Article 194, particularly because it was then picked up further in the South China Sea arbitral tribunal as well. And once again, the tribunal found that the island building activity had also violated Article 194. But I did want to give you one example where I think the judicialization has been held in check a little bit and it's in relation to Article 194. So I mentioned how it's not just about pollution, it's also about protecting the ecosystems. Now there's one part of Article 194 that refers to protecting depleted, threatened, or endangered species and other forms of marine life. So the Philippines claimed that this particular provision had been violated and the tribunal had to interpret what this meant. And so the tribunal said, okay, so how do we understand what ecosystem means? And they said, oh, I know, that's been decided under the Convention on Biological Diversity. We'll just use that definition. So they didn't go any further than that. That was what states had agreed. Then they said, all right, well now we have to figure out which species count for being threatened and depleted or endangered under Unclose. And it said, well, that's handy. We have another treaty we can look to, the Convention on the International Trade and Endangered Species because endangered species are listed by states under that particular treaty. So that was a very neat way for the tribunal to manage the problem, but the difficulty is, is that when species are listed under the Convention on International Trade and Endangered Species, or you might hear it referred to as cites sometimes, that's not just a scientific decision, that's also a political decision as to whether states are willing to have particular protections given to different species. And there are many instances where species are endangered or threatened, yet they're not listed under cites because states do not want restrictions on international trade. So in that respect, I think the tribunal in interpreting this provision by reference to cites, it has shown some deference to states. So how is this going to change potentially with our climate change advisory opinion? So itloss is another body that also has a request for an advisory opinion before it, and this is a question that has been submitted by the Commission on Small Island States. So there are limitations on the jurisdiction of itloss. It's not actually stated clearly in its statute that it can give advisory opinions, but it went through this process and said, well, you know, if an organization asks us for an advisory opinion, and it's to do with unclose, we'll give the advisory opinion, it's okay. So some states heard this and they thought, all right, well, we want an advisory opinion on legal obligations related to climate change and the marine environment. So we'll form an organization. So COSIS was formed. So the Commission on Small Island States was formed initially by Tuvalu and Antigua and Barbuda. And subsequently, I think it was Nui, Saint Lucia, Vanuatu has also joined this organization. And in creating this organization, the mandate was to promote and contribute to the rules and principles of international law concerning climate change, particularly relating to the protection and preservation of the marine environment. And article two then gave authority to request an advisory opinion. So that was the basis to gather jurisdiction. And then these are the questions that have been asked of it loss. So it's asking for an opinion on the tribunal's advice on specific obligations to prevent, reduce and control pollution of the marine environment. Remember that language? That's article 194. In relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming, sea level rise and ocean acidification caused by anthropogenic greenhouse gas emissions into the atmosphere. The second question are the specific obligations to protect and preserve the marine environment in relation to climate change impacts. That's article 192. So very much drawing on the existing jurisprudence. So far we've had one round of written pleadings. Now this week the oral round is on and we'll probably get a judgment on this I think in about May of next year, one of the judges had indicated that in an op-ed piece. So the opinion from the it loss will come out before we get the opinion from the ICJ. So in terms of engagement in this proceeding, just to note that every state that is a party to un-close had an opportunity to make submissions to the tribunal, 32 states did so. There was quite a variety of states across the different geographic areas. But in addition with it loss, different inter-governmental organizations also have standing to be able to make submissions to the tribunal. And different to the ICJ is that non-governmental organizations can also submit pleadings to it loss. So all of these different NGO submitted written submissions as well. They're not considered strictly part of the case file because they come from non-governmental organizations but they're all put up on the tribunal's website and are accessible to the judges and to the parties who are arguing the case. So in terms of what this advisory opinion is likely to do, it's going to have to deal with the fact that the opinion that it needs to give needs to be an interpretation and application of the UN Convention on the Law of the Sea. So there's going to be questions about well, to what extent will it loss draw in questions related to the framework convention and the Paris Agreement. What I think is going to be a fairly clear and easy decision for the tribunal is the definition of pollution. Unclose is a treaty that has something like 300 plus provisions in it and it contains very, very few definitions of all the terms but one of the terms that defines is pollution. And when you look at the definition of pollution you can read into that relatively easily that it includes greenhouse gases. And well before we got the recent requests for advisory opinions, a lot of commentators had already looked at this question and looking at the written pleadings I think there's a fairly strong agreement that greenhouse gases are a form of pollution when considering the obligations to protect the marine environment. But beyond that we're going to have to see what the court can do with its readings of Article 194 and 192 as they relate to each of those particular questions. And I think what we'll also see is the tribunal drawing on those general principles that the ICJ have articulated in relation to the principle of prevention and due diligence and also the International Tribunal for the Law of the Sea has also not quite embraced the precautionary principle they like to talk about showing prudence and caution rather than referring to precaution but they're kind of there and also have a fairly expansive view on the obligation to cooperate too. But we shall see how all of that unfolds. So why is it that we're getting this turn to international courts? What's going on here? Why is this beneficial potentially? I mean, first and foremost, it's always going to be about resolving a dispute and that's particularly for our contentious proceedings where a state or two or three have or more have different views over what the obligations mean and they turn to the international court to find out whether their conduct is actually consistent or not. Sometimes the very fact that proceedings, judicial proceedings begin, can be enough in itself to resolve a dispute. So for example, Malaysia brought proceedings against Singapore challenging land reclamation activities that Singapore was undertaking and Malaysia sought provisional measures or like an injunction to try and stop Singapore from doing further land reclamation work while the case was being heard. And it loss at that time said, you know what, we'll have a look at some of the different provisional measures and what we think you really need to do is you need an independent group of experts to get together and look at what's going on and come up with some ideas. So that was one of the provisional measures. The group of experts got together, gave recommendations and that effectively resolved the dispute and the case was discontinued. So the mere fact of actually instituting proceedings made a difference. Similarly, there was a case Australia and New Zealand brought against Japan relating to an experimental fishing program. This was Fish, Not Whale, Southern Bluefin tuna. And in this case, the tribunal decided it lacked jurisdiction. So there was no final decision on the merits but both Australia and New Zealand lawyers, perhaps trying to put a positive spin on their loss, said, well, actually it's been really helpful because we've now gone back to the Southern Bluefin tuna commission and we've now able to negotiate again and in a way that we weren't able to do because of this dispute previously. So the very fact that you engage in this process can go some way to sort of resetting relationships, changing the expectations around how certain conduct is to happen. And then of course, another reason to turn to international courts is for the development of the law and that's really where advisory opinions can make a big difference too. So the authoritative contribution of the judgment can be borne out in future cases. We don't have a strict system of precedent in international law but in the public order of the oceans, we like stability and predictability just as we do in other areas of international law. And so there will be references back to previous decisions and certainly we've seen this already in relation to the inclusion of the conservation and management of fish within protecting the marine environment. The ICJ now has said that conservation and management of fish is part of protecting and preserving the marine environment. So we see how these views can grow. And then of course, another outlet for assessing the authority of nature of a judgment is how the judgments received beyond the actual parties itself. Does it actually influence other states in their decisions? I have done a study of compliance with a colleague of all the decisions that have so far come out under unclose. And the record of compliance is actually quite good except for the South China Sea arbitration where that's a clear case of non-compliance. But states do use these decisions to change their policies, they've used them to change their domestic laws, they've used it to change their domestic legislation all to better align with expectations on what the international law obligations are. When I was thinking of reasons about why it turned to international courts, I thought, oh, well remedies, that's the other reason you go to a court because you want to get reparations at the end of your particular case. But when I thought about that further, I thought actually given what we have seen so far, I think that is actually one of the risks for turning to international courts. So I will explain that one further in a moment. So in terms of the risks in turning to international courts, I think we do need to think a little bit further if we've got this judicialization going on, this idea that we're taking authority away from states and giving it to courts. Who are the judges? Who are the people that are making these decisions? So if we're going to the International Court of Justice, we know there are 15 judges there. And we know that of those 15 judges, five of them come from what's known as the Western European and other group. The other includes Canada, it includes Australia, New Zealand, the United States. So five judges from there, two from Eastern Europe, three from Asia, three from Africa, and two from Latin America. But when you're thinking about a case or an opinion that's going to come out in relation to an advisory opinion on climate change, I thought, well, how many of these judges come from countries that are the biggest emitters of greenhouse gases? So six of the judges come from countries that are in the top number of countries that admit greenhouse gases. And because I was interested in the marine environmental law side, I thought, well, let's think about how many of these different judges come from island states? I thought, okay, well, there's three judges from island states. But the question you might recall refers to small island developing states. So small island, that immediately rules out Australia, Japan, not a developing state. So we have one judge on the bench who is from a small island developing state who is there to potentially give views, except for the fact that the process that we're going through with the ICJ at the moment, the first round of written pleadings will be submitted in January. There's then three months and then there will be a second round of written pleadings. We probably won't get to oral arguments until the end of next year and then presumably a judgment sometime after that. We have elections coming up for the ICJ and Judge Robinson is not standing again for the court and the five judges who are going to be running for election, none of them are from small island developing states. So we won't have anyone on the bench that will be able to bring that particular perspective to bear. Now, looking at the judges in unclean dispute settlement, this was something that I looked at with Kate Parlett in a book that we wrote called Judging the Law of the Sea. And when we were looking at the different decision makers, because of the possibility that there's four different institutions that can hear disputes, we calculated over 2,000 different people could potentially be involved in unclean dispute settlement. Of course, what's potentially the case is not what's really the case. In the end, if you look at who is actually making the decisions, the number is much smaller. So in the book when we looked at the first 14 ad hoc arbitrations that had been held under Unclease, there had been 69 different arbitrators, but some of those had appeared twice in cases. So once we took out the duper cuts, we were left with 45 different arbitrators. Then we looked at who those arbitrators were. The oldest was born in 1927, the youngest was born in 1958, and only five were born after 1950. And when you're talking about, well, what are the impacts for future generations? I thought age might make a bit of a difference. There was only one woman who was appointed to serve as an annex seven arbitrator. And she was appointed for a case that was settled before it actually proceeded to hearings in the end. And that was Judge Elsa Kelly from Argentina. And she was also the first judge appointed to the International Tribunal for the Law of the Sea. Of those 45 judges, 27 came from developed countries. Only six did not have formal education from either Western Europe or the United States. In looking at them, the other thing that was interesting was that they were fairly evenly divided between common law and civil law jurisdictions. So just to the extent that your background has some influence in how you approach certain questions, then these factors may be relevant. And then we had a look at the composition of it loss. And for the first 15 years of it loss, there were no women who served as judges at it loss. We now have five women who serve as judges on this particular tribunal. And also when we look at it loss, we automatically have more geographic diversity. That's because there is a requirement for geographic diversity in the appointment of judges under annex six of unclose. But then when you start drilling down amongst all of those judges, while the nationalities vary more, the educational background is not. All but four of the judges received formal education in Western Europe or the United States. And only seven of the judges come from non-civil law jurisdictions. So that's either common law or mixed jurisdictions. And I think that matters when you're thinking about approaches to procedural questions and the relevance of precedent. The other interesting fact about all of the it loss judges is that the vast majority of them has served as legal advisors to their governments as well. Now, I don't mean to impugn the integrity or the judicial independence of any of these individuals. All of them swear an oath that they will be independent and so forth. But I do think in terms of, what is your subconscious biases that come through? What are the influences that you have when you're looking at some of these questions? But some of these issues matter. And also that the attributes and characteristics of individual judges are important because of the widely representative group with different political and cultural representations more likely to be perceived as producing credible and authoritative judgments. So I thought, since I'd looked at it for the ICJ judges, I'd better have a look at the composition of it loss as it stands at the moment as it hears arguments relating to the obligations for climate change. And in this instance, I had to look a little bit further. I went with the top 15 countries who are global greenhouse gas admitters and we had about seven of the judges from there. But then when I went to look at the small island, well, not necessarily developing states, but small island states. And also I was thinking about other countries that are particularly considered at risk for sea level rise which includes India and Thailand and China actually. Then the numbers start increasing and I think the issue of sea level rise is one that it losses going to have to deal with and about a third of the judges come from countries that would be very conscious of this as an issue. Whether it will make a difference, I guess, time will tell. I think another risk of judicialization is also the divide that we have between science and law on occasions as well. So there has been a discussion for many years about whether we should have a case going to the International Court of Justice or going to it loss about climate change. And one of the arguments against doing it was because there was some concern that there would not be acceptance that climate change was actually existing as a scientific phenomenon. I think, mercifully, I'll just add that in. We're past that point now and there is confidence that there will not be that kind of pushback against the science in bringing these sorts of opinions. Hopefully I will not be proved wrong on that point. But it is something that comes up in disputes relating to the marine environment. Certainly in the Southern Bluefin tuna case, Japan said this is really a scientific dispute. Whether we do our experimental fishing program is just a question of science in the end. It's not a legal question. And certainly the whaling case in the end also had this question about, well, what was for scientific purposes? The court wisely, I think, did not try and give a definition of scientific research. I think all the scientists would have had a good laugh at the international lawyers if they had attempted to do so. But they did have to come up with this idea about, well, what's for the purposes of scientific research? And they came up with a set of criteria that we could use. So the courts can do it, but I think there's some risks involved there. And also bringing it back in terms of the remedies. And the fact that the remedies can be inadequate in the end. So if you think of the South China Sea arbitration, where the Philippines must have had the clearest case in the world of environmental harm being caused to these reefs through the island building activity. But the Philippines did not seek compensation. They did not seek restitution. All they saw was declarations of illegality. Maybe that was a reasonable request on behalf of the Philippines because there was no way that China was ever going to pay compensation. And so it was still a win for the Philippines in terms of getting a declaration to that effect. But it doesn't reverse the damage that has been caused in any way. And the cases that I've mentioned so far haven't really engaged with questions of remedies beyond sort of making declarations about the status of the law. There has been one ICJ case so far that has dealt with compensation for violating international environmental law and has dealt with it in some details which was the certain activities carried out by Nicaragua in the border area. A case between Costa Rica and Nicaragua. And in this particular case, the court did go through and articulate key principles relevant for determining compensation for environmental harm. And it's interesting I think to read some of the judgments that the individual judges gave as well as the court's opinion when you think about climate change and what are the reparations that could possibly be awarded in this instance. So in this particular decision though, the court had a fairly difficult balance that it was trying to make because on the one hand, it wanted to say, well, sure, we get up with the environment. You can't necessarily prove precisely the damage that has been done or how much a tree is worth or how much is a mangrove swamp or wetlands worth. So they wanted to show that there would be some flexibility. But on the other hand, the court was very firm that there should be no punitive damages. So how do you find that line between going, well, this is your award of compensation even though we can't come up with a precise amount versus we're not going so far as to award punitive damages. And I think the court struggled with that in that particular decision and certainly the dissenting opinion from Judge Adhok Dugard is worth a read if you are interested in the criticisms around that. So I think so far, the reparations from judicial fora seem to be really patently inappropriate when it comes to environmental protection and not just meeting the standard of restoring the situation that exists prior to the commission of the Unlawful Act. That's our benchmark in international law. But at some point it really does prompt the question about whether you can ever really restore the marine environment to what it once was. And that's really when dispute prevention and environmental protection, our initial principles are really so much more important than turning to international courts. And that still needs to be our primary focus. So just to conclude with some final thoughts, I guess in looking at the judicialisation of international marine environmental law, I think at the moment, my view with the International Court of Justice is that there hasn't really been much going on there, but gosh, things could change with these advisory opinions on climate change and it could have much broader implications than just the marine environment, so that has been my point of focus. And that will be as true for the dispute settlement under Unclose as well as it is for the ICJ. What I think is also interesting with the request to ITLOS is you might note that that was only questions about obligations. There's no questions to ITLOS at this point about consequences. So COSIS, the organisation asking these questions, for now they've sidestepped issues around causation, they've sidestepped these questions of reparations, and to me that sounds like a litigation strategy right there in terms of thinking about, well, let's see what the ICJ says on this, and then perhaps we're going to see another advisory opinion being requested in light of the ICJ's decision, or perhaps we'll even see contentious proceedings where, for example, Tuvalu could bring a case against China for violating its obligations to protect and preserve the marine environment. So in the end, it seems that with the request from the ICJ as well as ITLOS, and we should also recall there's a request also that has gone to the Inter-American Court of Human Rights on Climate Change, I think this judicial voice is destined to become much stronger. Whether it ultimately dominates, the voices of political decision makers really remains to be seen. To my mind, I'm always very supportive of international law playing a strong role in critical decisions in the international system. Whether the international courts can or should prevail is something I do have reservations about. Just in finishing at this point, obviously today I'm here to recognize the memory of Professor Johnston, but I feel it would be remiss of me not to also note that today we've also lost Professor Alan Boyle of the University of Edinburgh, who I feel like almost everything I have said this evening, Alan had said first, whether it was about the possibilities of using unclose to resolve climate change disputes on what a marine environmental law dispute was, you cannot study international environmental law without looking at Alan Boyle's work. So between him and Douglas Johnston, there's a tremendous legacy for us in thinking about some of these issues. So I hope in terms of future generations who are here and who may benefit from their work that you have a way to see that forward. So thank you for the opportunity and I look forward to your questions. Thank you, thank you so much for that. So now we have a healthy amount of time for questions and then we'll maybe have some questions online as well. So hi, so I was wondering if any of the cases that you mentioned, like aside from like international interactions like between borders, if anything aside from the marine law aspect of it, intersected with like environmental racism as far as like the groups affected and like the people who might be relying on the ecosystems that are affected and like how that connects to like human life and resource use. Could courts not input an as-need basis for funds towards activities specifically for recovering damages? Sorry, I missed the start of that, could you? Oh, I said could the courts, the international courts, not put in an as-need basis for funds that other countries have to reprimand as they are actively working on recovering those damages? How long does an international court proceeding take and what kind of evidence do you need to go to court? Do you want to go ahead with those three or not? Yes, my answer to the first question unfortunately is very brief. None of them have really looked at that intersection so far. The different courts and tribunals I referred to and predominantly talking about the ICJ and it loss have been very much interstate disputes where they do not drill down beyond that. I think the ICJ is going to have to go a little bit further with its advisory opinion on climate change because you might recall seeing in the questions that were being asked, that they're asking about consequences for present and future generations. And certainly there was a lot of input from civil society actors, including younger groups as well in putting those questions to the court and I think the court really has to address those questions around intergenerational equity, whether they'll get into looking, I'm doubtful they would look at sort of indigenous rights or rights of minority groups or anything like that. However, in the context of it, I think it will already be a step forward for the ICJ to say more just around human rights more generally because it's so state based it hasn't been very progressive on that front to date. In relation to courts and having a fund for damages, at this point, because it's an advisory opinion, they would not sort of go to that point because the court will be thinking of it in the context of we're not resolving an actual dispute between the greenhouse gas and litter states at this point, we're just giving a legal opinion on what it is. So what you might expect, and as I mentioned with idLosses, I think you get these opinions first of all and then there'll be subsequent claims because so far the negotiations around getting compensation for loss and damage around climate change, it's really, I'm sure some of you know, it's really stalled in the negotiations, particularly with the mechanism that the Warsaw mechanism that is supposed to be dealing with that. And there's just no progress being made but what might, again, this is why we go to courts because sometimes it can cut through and where we've reached a stalemate or an impasse and I think that was one of the reasons Australia took that case against Japan. They just did an impasse in the International Wailing Commission about Japan's whaling program. They couldn't resolve it either way. You take it to court and then finally you kind of get a statement and it enables them to reset. When you have international cases, generally what happens if there's going to be a reparations phase, then that is often held in a separate part of the proceedings and then once an award is made, it's a question of whether a state will actually pay it or not. So far, at least under unclose, those cases where there have been awards of damages, they have been paid except for the Desgut integrity one, which was an extraordinary large amount of damages that was given against, say, Tuomo and Principe, a very small state and some thought was an exorbitant amount for a small state. But that's kind of how that has worked so far. So not what you would expect or might be familiar with in domestic proceedings when you might be able to sort of put money aside in anticipation. In terms of how long are the proceedings and the amount of evidence, yes, long. Sometimes it might be that the parties before the court will say, you know, we want this resolved more quickly and they will agree that not to have additional rounds of written pleadings. So in the Whalen case, for example, they had one round of written pleadings and Australia said, you know, it's fine, let's go straight to the oral hearings and let's be done sooner rather than later. And Japan agreed to that. It seemed with some resistance, but agreed. And so that case actually sort of went from start to finish relatively quickly, but we're still talking a good year. I mean, it was only supposed to be three months from the time the request went. It went in March. It was supposed to be three months for the first round of written pleadings and they've already requested an extension through to January. And it's supposed to be another three months for replies to April. So I wouldn't be surprised if that gets extended as well. And you see that sometimes the proceedings will be delayed if states want to delay it. Sometimes for the purposes of trying to reach settlement outside of court, they will delay these cases. But otherwise it depends on the docket. The ICJ used to only sit in the morning, but you know, they changed their practice and they sit in the morning in the afternoon now. So that helps speed things up. In terms of evidence, that has been another reason why there's been some reticence about bringing cases related to climate change before international courts, because they're very concerned about how do you prove causation? How do you establish that the actions of one state has caused the sea level rise in another state? So the amount of evidence, it's always the burden of proof falls on the state that's making the claim and they have to produce evidence to a standard of, on a balance of probabilities that are a similar burden of proof to what you'd be familiar with in domestic civil proceedings. Whether it's going to depend a lot on the case as to what evidence is accepted. What we saw in the South China Sea tribunal decision was that the tribunal appointed experts to do their own studies of the particular issue. So there's always that possibility for a court to get independent experts to give them reports on particular issues that they're interested in and certainly the parties will always provide many, many pages of documents for the court to review as well. I was curious, because it was only states versus states. So like Australia versus Japan kind of thing. And I was curious to, if that means only sponsored kind of projects by the state or state actions can be brought to the court. Yes, thank you for the opportunity. My questions is about the concept of judicialization when we, in the context of complex global problem and the balance of power between the developer and the developing countries. I'll give you a sample to demonstrate what I'm saying. If we look at the case of South China Sea, China indeed did not participate in the case because it has intention not to comply with whatever the outcome of the case is. And if we also look at the case of chargers, I think it has several dimensions. The historical rights and obligations for the parties, the economic considerations of the UK and then the military presence of the US and then the political dimension which relates to power relations and balance of power and the historical context of colonization. I don't know how we can fit judicialization in this complex problem. Maybe you'll help us too. Thank you. So my question is about the judicialization and specifically the judges from the small island states, et cetera, is who bears the costs of those judges' time when they're considering these things? So a country like Malta, a contribution to the it lowest their judge, would that be borne by Malta or is that borne by the people who bring the case? Who bears that cost and is it a limiting factor? All right, do you want to go with those three and then we'll work back over? So for the International Court of Justice, only states can be parties to cases that are brought before that particular court. What does happen occasionally, at least with advisory opinions and this happening, I would say with a request for the advisory opinion is that you will have civil society actors that work very closely with particular governments, particularly some of the smaller governments that have potentially less legal resources to work on their pleadings. But that's going to be a lot about well, who has access to the, you know, the lawyers of a particular government to be able to have that relationship to be able to do that work. You get a lot of law firms that will put their hands up to do this work pro bono just for the experience of being able to argue at the ICJ. But at the end of the day, they're interstate disputes. The investor state dispute settlement regime, I mentioned that is one where it is usually a foreign investor, it's a private individual or most likely a multinational corporation that is bringing a case against a state. And then in the human rights setting, that is the situation where you will have individuals who have standing before international or regional courts to be able to bring cases in that instance. So it does limit what cases can be heard in these different settings. In relation to the balance of power and the geopolitics, it is a really interesting question because at the end of the day, every single case that you deal with, they deal with these very particular legal questions, but it's always in a much broader historical, political, economic, social context. And that's actually one of the reasons I love international law because you've got to understand all of these other dynamics that are going on and the role that law can play and recognizing that there's limits to the law as well as great potential in how it can be used. And at least with the UN Convention on the Law of the Sea, one of the interesting things about it is the reason that you've got that compulsory mechanism is because the less powerful states at the time that treaty was negotiated said we want a mechanism to be able to protect our rights against the more powerful states of the time. And that is one of the reasons we ended up with this mechanism. It's also one of the reasons there's some carve-outs for particular disputes as well. It's one of the reasons the United States is not a party to that particular treaty. But what we've seen, and I've got a colleague at UNSW who is studying this, is that small states have been using international litigation really effectively to advance their causes. And Mauritius didn't get very far with the Che-Gosmarin Protected Area arbitration. But it has pursued an extremely clever litigation strategy in terms of going to, first of all, the arbitration. It then was successful in getting the advisory opinion from the ICJ that recognized that the United Kingdom had acted unlawfully and had to leave. And then it went back to the Unclose Dispute Settlement Mechanism to organize a maritime boundary delimitation dispute between Mauritius and the Maldives. And the only way that Mauritius and Maldives have a maritime boundary is if you recognize that Mauritius lawfully has the Che-Gos archipelago. And so the tribunal in that case basically said, oh, well the ICJ said in its advisory opinion that wasn't legally binding, but let's gloss over that, that the UK wasn't entitled to be there. So yeah, sure, we'll say Mauritius is the coastal state for resolving this maritime boundary dispute. So Mauritius has kind of got what it wanted, but not fully at this point, because obviously the US is still there and the UK is still insisting on its position. But it's getting there, I reckon, and I think it's quite impressive in the way that it has managed that. And similarly, the Netherlands brought a case against Russia in relation to the Arctic. Some rise that had been seized when the Greenpeace protesters were there. And ultimately the Greenpeace vessel was released, so was the Arctic 30, even though one of them was a Russian national as well. So it wasn't directly because of the proceedings, but they got there. So again, it's kind of like international law plays a role, but it's not always going to be the decisive role. That's part of the process. So there's, and obviously China's not adhering to the South China Sea Arbitral Award. It's not going to any time soon. When you look at what was decided in that judgment, there's a few little rays of light that came through about what China has not done, which you could potentially say, well, you know, it's good. It didn't do this, which showed that it wasn't overstepping what had been decided in the tribunal, but there's plenty of things that it has done that shows disregard for it too. So I'm not going to oversell those points at all. Then in terms of the judges and who bears the costs to pay for them. In terms of the judges of both the International Court of Justice and the judges for the International Tribunal for the Law of the Sea, they are appointed through mechanisms. So with the ICJ appointed through the UN, their salaries are part of a UN budget. And so to the extent that countries are paying the UN budget, part of that money goes to paying their salaries. Similarly, the states that are parties to the UN Convention on the Law of the Sea, they put in the money that goes to the running of the tribunal. Different story for ad hoc arbitration. There, the states have to pay for their arbitrators. And usually the costs are then split between the two parties. In one instance, there was a case where I think it was the Duskett integrity arbitration where Sir Tomer and Pranser paid, I think just kind of had enough of the proceedings and wasn't paying any more the arbitrators. And so at that point, I think Malta had to front up the costs. I might be misremembering that. So don't quote me. With the Arctic Sunrise case, the Netherlands fronted the money for the Russia's arbitrators to be able to get that case heard at the time. So there's different ways of doing that. But there are also funds available through the International Court of Justice, through it loss, and also through the Permanent Court of Arbitration, which usually runs the ad hoc arbitrations where they can give financial assistance to developing countries. So developing countries are not necessarily precluded from these dispute settlement mechanisms because of the costs of hiring judges. Hiring the lawyers, that's a different question. If they work pro bono, then so much the better. Hello. I was just wondering about preventative measures. You talked a lot about revenues. And I wanted to know how these courts can be leveraged for preventative measures. In my head, I'm thinking about deep sea mining and how current that problem is. And then it hasn't happened yet. And I'm also wondering if Unclose has any language about environmental impact assessment within it. Thank you very much, Professor. This was an amazing lecture. My question is regarding judicialization, not particularly with respect to IMEL though. So while you were talking about the risks of judicialization, I was wondering, could there be any risks for non-judicialization? Like in the Bay of Bengal cases, the states were directed to negotiate further and the three states have not really reached further and that area still remains not utilized, not exploited. Thank you. Thank you for your lecture. My background is very far from low but is in international relations. So what I want to ask about is that currently, evidence of the icicidal actions is being collected by Ukraine to prove that Russia is violating international law by knowingly causing severe widespread and long-term damage to our land and water. Although international marine law seems to be much more interested in whether the grain can pass through Ukrainian waters and rightfully so as Ukraine is arguably the most significant party in tackling a global food crisis in Africa, I still wonder what is the state of marine environmental law research interest in Canada on the impact of Russian military advance on Ukrainian seas, although this is a relatively fresh topic. Thank you. All right, thank you. There have all been such interesting questions. I very much appreciate your engagement. It is interesting to think about preventative measures and how to leverage the courts and the first thing I thought about when you mentioned the deep seabed mining is because there's been a push from some countries for a moratorium. What I would love to see happen is that if, for example, Nauru was one of the countries that's very keen to have corporations start the deep seabed mining, if another state essentially commenced proceedings against Nauru saying that by doing that you're violating the obligation to protect and preserve the marine environment and what the state that brings those proceedings could then seek is provisional measures and injunction to stop any mining activity happening until the time that that case is done. It's a really fascinating idea. I'm sure there's a journal article in it, but that would be the first thing that comes to mind in terms of trying to leverage the courts would be to seek provisional measures and one of the reasons that comes to mind is because specifically under Unclose in the provision that refers to giving these sorts of injunctions, they're given to protect the marine environment. That is one of the reasons that is listed there and so that has provided it's usually at last giving these orders as a really firm basis for making calls about taking steps to try and protect the marine environment. There is a provision in Unclose article 206 which refers to the requirement to undertake environmental impact assessments so that is an obligation under Unclose as well and has been recognized as part of customary international law by the International Court of Justice too and it was a claim that the Philippines made against China in the South China Sea arbitration and there had been a study that had been conducted by China in relation to the island building activities so it was reported but one of the obligations around an EIA is that you're supposed to publish the results of that and they couldn't find the study as to where it had been published so as a result China was still found being violation of that obligation. I suspect that EIAs will also be coming up in the climate change advisory opinions. In relation to judicialization and the risks for non-judicialization and it is an interesting question because certainly I know in the Bay of Bengal that's one of several cases where the court goes oh well we've said these things now let me just throw it back to you to try and figure this out and they've done that quite frequently in relation to reparations as well and I think it's partly because the courts don't want to have to engage with these questions about compensation and like you just try and sort it out and we're here if you need. So there is a problem with that. There is a possibility and we saw it happen with the ICJ decision with Colombia and Nicaragua where Nicaragua squeaked in before the pact of Bogota had expired as a basis of jurisdiction and was able to bring a further case against Colombia for failing to adhere to the judgment really was what that case was about though they had to phrase it differently. But it is problematic I think in terms of the outer continental shelf it's going to also be a question before the commission for the limits of the continental shelf as well. In relation to Ukraine and Russia there's so much that could be said about that at the moment. Even before the war began well after the invasion of Ukraine before the February 22 invasion Ukraine had already taken proceedings against Russia under unclose in relation to the seizure of three Ukrainian warships and also in relation to the Sea of Azov and the Kerch Strait. Both of those cases are essentially on hold because all of Russia's lawyers resigned and refused to act so I'm not quite sure where they have gotten to. Where we're at now is that any further litigation is going to have to be done under what's known as the laws of armed conflict and that would likely be excluded from the jurisdiction of the unclose dispute settlement. What needs to be done in my view and having gone through this with the government of Eritrea back in 1998 or ago hopefully some of you were born then. Knowing that Eritrea and Ethiopia were engaged in a border conflict at that time we started gathering evidence right from the start about what was going on at the time and when the two countries did ultimately agree to a peace treaty part of the peace negotiations was the establishment of the claims commission and so the evidence that was being gathered could all then be presented to this claims commission and that ultimately involved claims being resolved and then an award for damages being made at the time and that went so far as to also a ruling about which country had acted unlawfully in declaring war unfortunately. The commission said it was Eritrea but of course I thought that was wrong. That's what I think Ukraine needs to be doing at the moment. There's going to be lots of legal avenues that just doesn't help them right now unfortunately. So on that sober note. On that sober yet important to reflect on note I wanna issue a huge thank you Professor Natalie Klein for coming as our Douglas M. Johnson lecturer. I think I hope that students from the College of Sustainability will find that this is an exciting and inspiring way to start thinking about the potential of law and international law for sustainability issues. I know Professor Allen Boyle had in fact gave one of the Douglas M. Johnson lectures a few years ago and so this is a nice continuity. I know he'd be very proud of what you had to say. As a final note, a thank you from us Marine Environmental Law to the College of Sustainability for this and just a foreshadowing again that towards the end in think November 23rd we will have the launch of the Mind, Heart, Dwell Legacy lecture so you will be hearing more about law but it will be more domestic law I think the local environmental laws of Canada and we look forward to seeing you then. Thank you very much.