Anthropocentric Ocean Connectivity: A Pluralistic Legal-Regulatory Model

2.1 Anthropocentric connectivity in strategic ocean geopolitics

Although the practice of connectivity itself is as old as human interactions, the emergence of connectivity as a strategy with geopolitical implications is a novel approach.³ In fact, connectivity has been described as one of the “key issues and policy trends of our century”.⁴ Nadine Godehardt and Karoline Postel-Vinay stress the strategic dimension of connectivity, which differentiates it from connections built randomly or opportunistically.⁵ The very notion of a ‘strategy’ implies the existence of an actor(s) with the willingness to dedicate a set of actions (use of resources at their disposal) to obtain the desired outcome(s).⁶ The desired outcome would usually entail a solution to a specific problem, where identification of the latter, synonymous with the ‘clarification of the situation’, is a starting point.⁷

The ‘geopolitical’ implications of connectivity strategies arise from the way the logic of connectivity perceives space and “flow”. The inspiration for this approach traces back to a “constructal” model of connectivity and nature in terms of the law of physics, in which: “For a finite-size flow system to persist in time (to live), it must evolve such that it provides greater and greater access to the currents that flow through it”.⁸ This powerful concept models how “flow”, in animate (biological) and inanimate (geophysical) systems, follows universal patterns of generation.⁹ Control over flows, rather than territories, forms the essence of the competition for connectivity in a new hyper-connected multipolar world, where the strategic goal is leverage, not domination.¹⁰

This perspective has prompted different actors to devise connectivity strategies to advance influence and gain leverage in the global space. So far, the most prominent and ambitious example has been the Chinese Belt and Road Initiative (BRI)¹¹ with its two components, the Belt and the Maritime Silk Road Initiative (MSRI).¹² Several other connectivity strategies have arisen, namely the Master Plan on ASEAN Connectivity 2025,¹³ the EU-China Connectivity Platform,¹⁴ and the Partnership on Sustainable Connectivity and Quality Infrastructure Between Japan and the European Union. It is interesting to note that even though the language used in all these strategic documents emphasizes cooperation and partnership, the EU does not shy away from referring to China as a “systemic rival promoting alternative models of governance”.¹⁵

To the extent that the globe consists primarily of the oceans, which often serve as the most efficient space for transportation and communication, it is not surprising that much of the connectivity occurs by sea. The term ‘maritime connectivity’ might be used to encapsulate these practices.¹⁶ According to Zhang and Long, maritime connectivity has two meanings, one referred to as the established international maritime cargo transport channel, connecting the coastal ports, which is akin to physical connectivity; and the other the maritime collaborative network, which contains elements such as free navigation and safe waterways,”¹⁷ clearly underlying the institutional aspect of connectivity. Moreover, according to the description given by Blanchard and Flint,¹⁸ it is evident that much of the ‘maritime connectivity’ occurs on land, thus challenging the division into land-based and maritime connectivity. At the same time, it is difficult to ignore that maritime connectivity relies on, challenges, and develops the law of the sea and ocean governance.

As discussed above, connectivity is far from being exclusively about building physical infrastructure. An important part of connectivity as a strategy is governance (institutional connectivity): giving influence to certain values through development, promotion, and the export of norms, rules, standards, and practices. In other words, the actor behind the strategy would normally have a vested interest in promoting its vision of ‘good governance’ to facilitate connectivity as it suits its interests and reflects its values. Needless to say, the ability to set and promote standards of good governance equals control, power projection, and leverage.

This perspective appears to be underpinning the vision of connectivity as promoted by the EU.¹⁹ The latter commits to engage with China to uphold the rules-based international order, and at the same time, reproaches China for its selective engagement with multilateralism and its different understanding of the rules-based international order.²⁰ Competition between different visions of connectivity provides ample room for the proactive promotion of alternative governance models. Notably, in the documents that set out the EU’s vision of connectivity, much emphasis is placed on fighting climate change, promoting sustainable development, and the 2030 Agenda.²¹ Notably, the EU’s normative vision of connectivity and emphasis on sustainability may have already affected other visions – an example of a positive effect of connectivity competition.²²

As such, connectivity as a strategy has transformative potential.²³ The role of State practice has been acknowledged for its potential to develop international law, but comprehensive connectivity strategies, such as the one promoted by the EU,²⁴ have much larger leverage to impose such change.²⁵ Thinking in terms of traditionally defined levels of governance, connectivity strategies that have transformative potential can be situated at the sub-global level. Comprehensive visions may be successful when operating within a certain scale, but this does not preclude the agency of multiple other actors or the effect of practices at the regional level.

Connectivity strategies rely on values and principles, and, as such, they can contribute to the development of law. For example, they may facilitate an endorsement of more specific definitions to contested terms of human socio-economic interaction, which are often imperfectly defined in law. As noted by To Anh Tuan, all connectivity strategies refer to ‘maritime security’, without identifying its precise scope.²⁶ Given the inherent vagueness of the term,²⁷ one might appreciate the opportunity connectivity brings to increase maritime security, for example, by providing a better understanding of piracy, freedom of navigation, or places of refuge. Although comprehensive connectivity strategies are relatively new, and the linkages between them and the agencies involved in the practice of international law at the national, regional, and global levels may sometimes be underdeveloped, invisible, or simply absent, the narrative, logic, or lens of connectivity may help re-imagine the way we address pressing issues.

However, one may imagine that the values underpinning different strategies may push for more radical change than merely eliminating frictions to the flows. The EU’s vision emphasizes sustainability, human rights, and fighting climate change, venturing far beyond the promotion of economic interests and seamless flows of commerce.

2.2 Anthropocentric connectivity in the context of places of refuge for ships in need of assistance

One area where the EU’s promotion of a comprehensive connectivity strategy and its potential to influence global governance can be observed is the context of places of refuge,²⁸ where the EU clearly puts significant emphasis on a robust due diligence regime and regional cooperation and coordination to achieve a desired outcome: maritime safety and protection of the marine environment.

A place of refuge may facilitate maritime transport and trade, as it provides a shelter where a ship can stabilize its conditions to be able to continue with a planned voyage. At the same time, depending on the conditions of the ship and circumstances such as weather and sea conditions, a ship in need of refuge may pose a risk of pollution, which may negatively affect the economy and natural environment of the coastal State. There are many examples in the past where refuge to ships in need of assistance was granted only after considerable delay,²⁹ or where States, acting as sovereigns in their territories, refused to bring these ships to sheltered areas, sometimes without even investigating the seriousness of the situation.³⁰ Whereas the refusal of refuge in the case of the Castor (2000) fortunately went without any major incident,³¹ in the case of the Prestige (2002), an environmental catastrophe occurred and the reports revealed that the disaster could have been minimized had refuge been granted.³²

LOSC does not address the problem of places of refuge, but it does impose an obligation on all States to protect and preserve the marine environment (Article 192), allowing states to exercise discretion regarding solutions to the problem.³³ In 2003, States adopted the IMO Guidelines,³⁴ a key aspect of which is merely a soft-law recommendation for States to establish procedures to receive and act on individual requests with a view to ‘authorizing, where appropriate, the use of a suitable place of refuge’.³⁵ In this respect, the IMO Guidelines offer a set of risks and factors for further consideration. However, the IMO Guidelines essentially operate as if the request for a place of refuge is of concern to only one coastal State, whereas regional cooperation and coordination, as illustrated by the MSC Flaminia incident,³⁶ is of critical importance. Moreover, in the absence of concrete, legally binding norms, States may bend to political pressure and resort to their sovereignty to act – or not – as they see fit without explaining the grounds for their decision,³⁷ creating unnecessary delays.³⁸ Global interests in environmental protection may thus be compromised; and more Castor-like scenarios (rejection without inspection) with Prestige-like outcomes may play out.

Proposals for an international treaty on places of refuge which would impose explicit obligations on States to grant refuge as a matter of principle have already been made on several occasions. However, thus far States have been unwilling to surrender their sovereignty, and there seems to be nothing to suggest that such a proposal will ever be met with success in the future.³⁹ Understandably, bringing a stricken ship near the coast of one State may produce for that particular State greater environmental and economic damage than for the environment in general. If a ship becomes a maritime casualty and starts to leak oil, the coastal State may have reasonable grounds to deny entry to a place of refuge to such a ship. However, not all scenarios deserve equal treatment (or in fact no treatment). Depending on the circumstances of a given situation (e.g. the stability of the ship, the engagement of professional salvors, prevailing weather and sea conditions), the coastal State may reasonably be expected to honor a place of refuge. Reacting to a situation early and seriously enough could lead to environmental damage being prevented altogether.

Through the development and promotion of a comprehensive set of norms, values, practices, and procedures, the EU strategy could help reimagine the way we go about the problem of places of refuge globally.⁴⁰ EU Directive 2002/59/EC, as amended (VTMIS Directive),⁴¹ which is largely influenced by the IMO Guidelines,⁴² transforms some of the IMO recommendations into obligations for EU Member States. For example, the coastal State is obliged to provide a formal decision for denying refuge,⁴³ and make various preparations in advance, such as predesignating one or more specific competent authorities with expertise and power to take independent decisions,⁴⁴ predesignating places of refuge, and drawing up plans for the accommodation of ships in need of assistance.⁴⁵ If a given State cannot provide a suitable place of refuge, it is expected to communicate this to other parties involved. In this respect, the EU clearly puts strong emphasis on institutional connectivity through regional cooperation and coordination,⁴⁶ and on the principle of no rejection without inspection and explanation.⁴⁷

There is an ongoing proposal from the EU Member States and relevant industry stakeholders for a revision of the IMO Guidelines on Places of Refuge.⁴⁸ While the EU proposal merely concerns amendments to the IMO operational guidelines of a non-mandatory nature, it is worthwhile reflecting upon the overall set of actions that the EU has taken to achieve the desired outcome, i.e. an effective response to the problem of places of refuge. Some developing States cannot afford a robust due diligence regime like the EU’s. While imposing an obligation to be prepared in advance does seem to be a laudable solution, it could nevertheless require more to be done in alleviating financial and technical burdens (infrastructure and capacity building). Moreover, certain weaknesses of the current IMO liability and compensation regime (which is not tailored for issues related to places of refuge) would need to be rectified.⁴⁹

2.3 Anthropocentric connectivity in the context of energy

Anthropocentric connectivity in the context of energy can be understood in multiple ways and creates connections with other models, especially ecological connectivity. One of these understandings envisages the ocean as a space that enables, through maritime transportation, international trade of energy goods and the concomitant interconnection of global and regional energy markets. The deployment of energy installations at sea also allows the interface between ocean and land energy uses and users via another layer of the physical interconnection of energy markets through submarine cables and pipelines. Developing and maintaining (ocean) connectivity that continues to enable trade in energy goods and integration of transboundary energy markets is vital to attain the United Nations Sustainable Development Goals 7 and 13.⁵⁰

Given that energy is a critical component to countries’ socio-economic development and security, it is nearly impossible to dissociate it from political considerations. In effect, energy connectivity strategies via the oceans inherently entail geopolitical implications. The linkage between maritime chocking points (such as the Suez Canal and the Strait of Hormuz) and the facilitation of energy trade between energy producing and energy importing countries, perfectly illustrates how energy connectivity via the oceans triggers geopolitical tensions and alliances. On a regional or more local basis, concrete energy projects, such as Nord Stream 2,⁵¹ equally exemplify this. Ocean-based energy connectivity, geopolitical strategies, and different epistemological views influence ocean governance, but such influence does not necessarily have to be negative. Arguably, the anthropocentric concern with enhancing energy connectivity (particularly regarding offshore renewable energy) can be a catalyst for inter-State cooperation, for increased stakeholder involvement, and for the promotion of better ocean governance.

Another perspective interlinks energy with ecological connectivity. The increase of offshore energy installations and submarine cables, also known as ocean sprawl, may have an impact on marine ecological connectivity – both in terms of functional and structural connectivity. Such impacts may occur to different extents across the entire life cycle of these installations, spanning the installation, operation, and decommissioning periods. These impacts could be prejudicial or beneficial. According to Bishop et al., ocean sprawl may: “(1) creat[e] barriers to the movement of some organisms and resources – by adding physical barriers or by modifying and fragmenting habitats; (2) introduc[e] new structural material that acts as a conduit for the movement of other organisms or resources across the landscape; and (3) [alter] trophic connectivity.”⁵² Moreover, Bishop et. al. also note that, in the event of such impacts to connectivity, the implications can be even wider, affecting “the genetic structure and size of populations, the distribution of species, community structure and ecological functioning”.⁵³ Tidal and wave energy are two key examples of energy generation that affect hydrodynamics, morphodynamics and ecosystems, and hence have an impact on ecological connectivity.⁵⁴ According to ICES, the deployment of large-scale offshore renewable energy installations can “result in far-field changes up to 100 km away”.⁵⁵ On the other hand, some studies have sustained that anthropogenic infrastructures and installations can have a potentially beneficial role in enhancing the connectivity of marine species.⁵⁶ Still, it is noteworthy that there is a lack of scientific evidence on the actual nature (positive/negative), extent, and significance of the impacts of energy installations and infrastructures on ecological connectivity. This entails that it is necessary to use an ecosystem approach and implement the strategic monitoring of the different offshore energy activities to understand more clearly their effects on ecological connectivity. Based on such monitoring, and through ecosystem-based marine spatial planning, the placement of these installations/infrastructures offshore can be done in a way that preserves ecological sustainability in line with United Nations Sustainable Development Goal 14.⁵⁷ It also remains to be seen what the impact of the BBNJ negotiations and the final instrument (if one is indeed reached) on energy activities on the high seas and protection of marine biodiversity for which ecological connectivity is so important, will be.

The double-thread that energy law has with both anthropocentric connectivity and ecological connectivity is also reflected in the way the law of the sea (dis)regards ocean connectivity in this context. LOSC, as a framework convention, does not provide significant guidance on (ocean) connectivity, at least not in terms of ecological connectivity, and certainly not in terms of energy. Notwithstanding, it is possible to read into Article 192 a duty to consider ecological connectivity as a paramount factor affecting the health of marine biodiversity. Against this backdrop, it is important to consider Article 193 in the context of energy, which compels States to exercise the sovereign right to exploit their natural resources following the general duty to protect and preserve the marine environment expressed by Article 192. From an anthropocentric connectivity point of view, the LOSC does provide a regime that enables the deployment of energy infrastructures (including submarine cables and pipelines) in the different maritime zones,⁵⁸ a regime that amply enables connectivity via navigation, and a regime that attempts to balance the different interests and rights of States. Moreover, the regime of the LOSC is further complemented by other international agreements, such as the CBD, which is also relevant in this context. Specific regulation of these matters will ultimately fall on each State or other forms of regional integration. In the case of the European Union, for example, member States developing offshore energy activities must comply with the EU law of relevance as well as follow EU’s integrated maritime policy.⁵⁹ Ensuring anthropogenic connectivity and connectivity across the EU’s internal energy market is a key objective enshrined in multiple EU secondary legislation and Article 194 of the TFEU. As already highlighted in section 2.1 above, the EU’s vision of connectivity in tandem with its strategies for energy production and trade, sustainable development, and climate change mitigation can trigger positive effects of promoting governance.

2.4 Anthropocentric connectivity and the making and applying of rules and standards for ships in polar waters

Ships certainly signify ocean connectivity – for example, in terms of shipping and sea-borne tourism. Regulation is certainly anthropocentric, insofar as it sets out legal parameters for human activities, and because the making and application of those rules and standards is itself a human activity. Ships in polar waters and their regulation manifest several other anthropocentric connectivities as well. First, transnational rules and standards for ships are made and applied in a highly inter-connected regulatory landscape. In the case of the Polar Code, such rules and standards are made and applied by the International Maritime Organization (IMO), an inter-governmental UN specialized agency, and the private-sector; they apply to ships, crews, and ship owners, and make reference to “vulnerable” Arctic ecosystems and Arctic coastal and Indigenous people(s).⁶⁰ Second, such rules and standards – including, potentially, those originating from nonbinding instruments⁶¹ – may be incorporated into the public international law framework under the LOSC, thus contributing to the parameters of international legal jurisdiction, rights and obligations, making them “relevant” even to non-parties to the making of those rules and standards.⁶² Third, ships in polar waters contribute to and sometimes amplify global effects, both socio-economic and socio-ecological.⁶³ Human activity drives eco-degradation and climate change, changes which are occurring most rapidly in polar environments. Such changes facilitate increased polar traffic and resource exploitation, with global socio-economic ramifications. They also feed into global socio-ecological dynamics, including the impacts of climate change on low-lying and developing states.⁶⁴

All of the above is basis for the perspective that ocean law and regulation needs meaningfully to recognize and reflect all of these anthropocentric relationships. However, this is not entirely the case. For example, traditionally, the law of the sea has conceived anthropocentric ocean connectivity primarily in terms of sovereign interests, rights, and obligations relating to military security and “freedoms” of navigation, resource exploitation and trade, rather than the now urgent matter of eco- and climate-related security.⁶⁵ Furthermore, in the regulatory landscape described above, institutional and related normative processes enhance certain anthropocentric connections – for instance, those that figure traditionally in the law of the sea – and disconnect others.⁶⁶ The latter effect is perhaps most obvious in, though not exclusive to, the partitioning of Arctic Indigenous people(s)’s interests, values, norms, rights and expertise – and not exclusively in terms of Indigenous cosmovisions⁶⁷ – from the making and application of the Polar Code.⁶⁸

Short of radical transformation, a broader understanding and actualization of anthropocentric connectivity in ocean law and regulation, for the better, could contribute to its (re)orientation toward the material, epistemic and geopolitical challenges conceived in this project. (Re)thinking would require multiple approaches: conceptual frameworks both internal to law – such as global administrative law on procedural openness, participation, transparency, and review⁶⁹ – and external, socio-cultural perspectives; historical attention to normative practices and effects; critical attention to power, hegemony, distribution, plurality and substantive justice. Actualization, in the case of the regulation of ships in polar waters, would mean reconfiguring the normative landscape in such a way as to connect what is disconnected – most obviously, but not exclusively, with respect to Arctic Indigenous people(s) and ecosystems referenced by the Polar Code, and the making and applying of such rules and standards from the first instance.