Marine Protected Areas in International Law : An Arctic Perspective [1 ed.] 9789004324084, 9789004254725

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Marine Protected Areas in International Law

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Phoebe Okowa Sarah Singer

Volume 25

The titles published in this series are listed at brill.com/qmil

Marine Protected Areas in International Law An Arctic perspective By

Ingvild Ulrikke Jakobsen

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Jakobsen, Ingvild Ulrikke, 1974- author. Title: Marine protected areas in international law : an Arctic perspective / by Ingvild Ulrikke Jakobsen. Description: Leiden ; Boston : Brill Nijhoff, 2016. | Series: Queen Mary studies in international law ; volume 25 | Based on author’s thesis (doctoral - University of Tromsø, the Arctic University of Norway, 2010) issued under title: Marine protected areas in international law a Norwegian perspective. | Includes bibliographical references and index. Identifiers: LCCN 2016022058 (print) | LCCN 2016022251 (ebook) | ISBN 9789004254725 (hardback : alk. paper) | ISBN 9789004324084 (E-book) Subjects: LCSH: Marine resources conservation--Law and legislation--Arctic Regions. | Marine parks and reserves--Law and legislation--Arctic Regions. | Marine biodiversity conservation--Law and legislation--Arctic Regions. | Environmental law, International. | Convention on Biological Diversity (1992 June 5) | United Nations Convention on the Law of the Sea (1982 December 10) | Convention for the Protection of the Marine Environment of the North-East Atlantic (22 September 1992) Classification: LCC K3485 .J35 2016 (print) | LCC K3485 (ebook) | DDC 346.04/695616091632--dc23 LC record available at https://lccn.loc.gov/2016022058 Want or need Open Access? Brill Open offers you the choice to make your research freely accessible online in exchange for a publication charge. Review your various options on brill.com/brill-open. Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1877-4822 isbn 978-90-04-25472-5 (hardback) isbn 978-90-04-32408-4 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

To my children Hallvard, Ingeborg and Håkon

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Contents Acknowledgements xiii List of Acronyms xv

part 1 Marine Protected Areas as a Tool for Conservation and Sustainable Use of Marine Biological Diversity 1 Introduction 3 1.1 The Subject 3 1.2 The Concept of mpas 5 1.3 International Legal Framework for mpas 9 1.4 Global Political Developments with Regard to mpas 11 1.5 Scope of the Book 15 2 Legal Competence to Establish mpas within National Jurisdiction and on the High Seas 18 2.1 Introduction 18 2.2 The Competence to Establish mpas within National Jurisdiction 20 2.3 mpas in the Territorial Sea 21 2.4 mpas in the eez 34 2.5 mpas on the Continental Shelf 47 2.6 mpas on the High Seas 51 2.7 The Enforcement Jurisdiction of Regulations and Prohibitions within mpas 58

part 2 Development from a Functional to a Holistic Approach 3 From a Functional to a Holistic Approach 65 4 Pre-los Convention: Principles in Customary Law 68 5 The Traditional Approach of the los Convention to Protect and Preserve the Marine Environment and to Conserve Living Resources 74 5.1 Introduction 74

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5.2 The Obligations to Protect and Preserve the Marine Environment 74 5.3 Obligations on Conservation and Management of Marine Living Resources 78 6

Developments since 1982: The Obligations to Protect and Conserve Marine Biodiversity 81 6.1 General 81 6.2 United Nations Conference on Environment and Development 82

7

Global Obligations on Conservation of Marine Biological Diversity 85 7.1 General 85 7.2 The cbd Convention 85

8

Regional Obligations and Implementation of Obligations on Conservation of Marine Biodiversity 112 8.1 General 112 8.2 The ospar Convention: Obligations and Principles 113 8.3 The Arctic Council 125

9 Conclusions 131

part 3 Legal Obligations to Establish mpas 10

Legal Obligations to Establish mpas – Introductory Remarks 135

11 The los Convention and Establishment and Management of mpas 136 11.1 General 136 11.2 Does the Obligation to Protect and Preserve the Marine Environment Include a Legal Duty to Adopt mpas? 137 11.3 The Obligation to Protect the Marine Environment in Areas beyond National Jurisdiction 142 12

Is There a Legal Duty to Establish mpas under the cbd? 145

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12.1 Introduction – The Implications of “as far as possible and as appropriate” for the Legal Duty to Establish mpas 145 12.2 Criticisms in Legal Theory of the Vague Obligations and the Use of a Qualifier 146 12.3 Which Evaluations Do the Terms “as far as possible and as appropriate” Require? 147 12.4 Conclusions 153 13

When is there a Legal Obligation under the cbd to Establish mpas? 154 13.1 Introduction 154 13.2 The Duty to Adopt Protected Areas or Areas Where Special Measures Need to be Taken 154 13.3 The Duty to Establish a System of mpas 155 13.4 Which Considerations Must be Made under the Term “as far as possible”? 158 13.5 Which Considerations Must be Made under “as appropriate”? 166 13.6 Interactions between “as far as possible” and “as appropriate” 170 13.7 Conclusions 171

14

The Management of mpas under the cbd Convention 172 14.1 Introduction 172 14.2 Development of Criteria for Selection and Management of mpas 173 14.3 The Significance of the Term “as far as possible and as appropriate” for the Management of mpas 174 14.4 The Significance of the Legal Obligation on in situ Conservation for the Management of mpas 175 14.5 Procedural Requirements to the Establishment of mpas? 176 14.6 Substantive Requirements to the Content of mpas 196

15 The ospar Convention and mpas 213 15.1 Introduction 213 15.2 The Development of a Framework of mpas within ospar 213 15.3 The Legal Status and Significance of the Recommendation on a Network of mpas 216 15.4 A Legal Duty to Establish mpas in the North-East Atlantic? 219 15.5 Selection and Management of mpas under the ospar Convention 225

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15.6  m pas in Areas beyond National Jurisdiction under the ospar Convention 228 15.7 Conclusions 232 16 mpas under the Arctic Council 233 16.1 Introduction 233 16.2 Work on mpas under the Arctic Council – Background 234 16.3 Toward a Pan-Arctic network of mpas? 235 16.4 Conclusions 242

part 4 The Duties and Rights to Establish and Manage mpas versus the Rights of Other States 17

The Relationship between the cbd and the los Convention – Conflicting Norms and Mechanisms for Solving Them 247 17.1 Introduction – Overview of the Legal Questions 247 17.2 Legal Conflicts between the los Convention and the cbd? 250 17.3 Conflict Solving Procedures 258 17.4 Solving Conflicts through Treaty Law 278 17.5 Conclusions 296

18

Regulation of Navigation in mpas 298 18.1 Introduction – Legal Questions and Aims of the Discussions 298 18.2 The Relevance of the Discussion in Light of the Legal Development 300 18.3 The International Legal Regime of Shipping in the Arctic 304 18.4 Coastal State Prescriptive Jurisdiction of Shipping for the Purpose of Protecting the Marine Environment 318 18.5 Coastal State Prescriptive Jurisdiction in the Territorial Sea 319 18.6 Potential Measures Adopted Within mpas in the Territorial Sea to Protect the Areas against the Impacts of Shipping 325 18.7 Coastal State Prescriptive Jurisdiction in the eez 347 18.8 Potential Measures to Protect the mpas in the eez against Impacts of Shipping 355 18.9 May the Coastal States Adopt Regulations to Protect the mpas from Impacts of Shipping Based on the Sovereign Rights Over Living Resources? 364 18.10 Conclusions 369

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part 5 International Mechanisms for Providing Appropriate Protection of mpas against the Impacts of Shipping 19

Specially Designated Areas to Protect the Marine Environment against Impact of International Shipping Activities 373 19.1 Challenges to the Establishment and Management of Integrated mpas 373 19.2 Introduction to Specially Designated Areas for Protecting Certain Areas against the Environmental Impacts of Shipping 377 19.3 The los Convention 211 (6) 378 19.4 Article 234 – Ice-Covered Areas 382 19.5 marpol Special Areas 385 19.6 pssa 389 19.7 Conclusions 402

20 Final Remarks 404 Bibliography 407 Table of Cases 427 Table of Treaties 429 Index 431

Acknowledgements This book is a shortened and updated version of my PhD thesis which was submitted to the University of Tromsø, the Arctic University of Norway November 2009 and defended for the degree PhD in Law in March 2010. With the development of increasing human activities in the Arctic, affecting the fragile marine environment, there is an increasing need to ensure environmental protection and conservation of marine biodiversity and ecosystems. The book therefore adds an Arctic perspective, which was not included in the PhD thesis. The book aims to set out the comprehensive legal framework for the establishment and management of mpas in the marine Arctic. As shipping represents a major threat to the sensitive Arctic environment, there is particular focus on the legal implications of shipping with the establishment of mpas, and the possibilities of the states to restrict and regulate shipping within these sites. The legal questions addressed in this book related to mpas are general and relevant to all oceans. Also there is very little international law specific to the Arctic region. This study is therefore relevant far beyond the establishment and management of mpas in the marine Arctic. The book covers different fields of international law such as obligations and principles in international environmental law, the prescriptive jurisdiction of the coastal States to regulate shipping activities, analyses of the relationship between the los Convention and the cbd and potential legal conflicts between these treaties, as well an overview of the relevant international framework for shipping in the marine Arctic, and area-based measures such as Article 234 and pssa under the los Convention and imo. It is therefore my hope that the book is useful and gives insights also beyond the use of the environmental tool mpas. This study would not have been possible without the support of many people and institutions that in different ways have contributed to the completion of this project. I am grateful to K.G. Jebsen Centre for the Law of the Sea and the Faculty of Law, University of Tromsø, the Arctic University of Norway for generously supporting my research and for giving me the opportunity to have a research stay at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, where I have benefitted from excellent research and working conditions in the last phase of this project. I am also thankful to Professor Malgosia Fitzmaurice for good advice and for believing in this project and ­giving me the opportunity to publish this book. A special thanks goes to my colleague Elise Johansen for her valuable ­comments and suggestions on previous drafts and versions of the manuscript. I am grateful to my colleague Professor Tore Henriksen for generously sharing

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Acknowledgements

with me his knowledge and experience. I am thankful to Cecilie von Quillfeld at the Norwegian Polar Institute for discussions that helped me in providing knowledge and understanding of processes and work under the Arctic Council. I am also thankful to Ingrid Andreassen and Eda Ceren Öz for help with footnotes and references and getting the manuscript ready for printing. I am thankful to my colleagues Christin Skjervold and Signe Busch for their support and advice during the writing of this book. I am grateful to my friend Susann F. Skogvang for good advice and for always believing in me. My thanks also go out to all my wonderful colleagues at the K.G. Jebsen Centre for the Law of the Sea and the Faculty of Law at the University of Tromsø, for stimulating discussion and an inspiring working environment. I thank each and one of you. Finally and above all this book would not have been possible to write without the loving support of my mother, Brit Jakobsen and my partner Henrik Romsaas. I thank you Henrik for your (endless) patience and encouragement.

List of Acronyms acia Arctic Climate Impact Assessment (Arctic Council) aeps Arctic Environmental Protection Strategy amap Arctic Monitoring and Assessment Programme (Arctic Council) amsa Arctic Marine Shipping Assessment (Arctic Council) amsp Arctic Marine Strategic Plan (Arctic Council) aor Arctic Ocean Review (Arctic Council) atba Area to be Avoided (imo) pame Protection of the Arctic Environment (Arctic Council) caff Conservation of Arctic Flora and Fauna (Arctic Council) cbd Convention on Biological Diversity cdems Construction, Design, Equipment and Manning Standards clcs Commission on the Limits of the Continental Shelf cop Conference of the Parties cpan Circumpolar Protected Areas Network (Arctic Council) doalos un Division for the Ocean Affairs and the Law of the Sea de Sub Committee on Ship Design and Equipment dnv Det Norske Veritas eez Exclusive Economic Zone eia Environmental Impact Assessment eu European Union gairs Generally Accepted International Rules and Standards gpsr General Provisions on Ships’ Routeing (imo) helcom Helsinki Commission icj International Court of Justice ila International Law Association ilc International Law Commission imcam Integrated Marine and Coastal Management imo International Maritime Organization itlos International Tribunal for the Law of the Sea iucn International Union for Conservation of Nature (World Conservation Union) mepc Marine Environment Protection Committee (imo) mcs Maritime Safety Committee (imo) mpa Marine Protected Areas mpca Marine and Coastal Protected Areas msy Maximum Sustainable Yield nav Sub-Committee on Safety of Navigation (imo)

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List of Acronyms

neafc North-East Atlantic Fisheries Commission ospar Convention for the Protection of the Marine Environment of the NorthEast Atlantic pame Protection of the Arctic Environment (Arctic Council) pssa Particularly Sensitive Sea Areas (imo) rfmo Regional Fisheries Management Organizations sao Senior Arctic Officials (Arctic Council) tac Total Allowable Catch un United Nations unga United Nations General Assembly unicpolos  United Nations Open-ended Informative Consultative Process on Oceans and the Law of the Sea unts United Nations Treaty Series wto World Trade Organization wssd World Summit on Sustainable Development

part 1 Marine Protected Areas as a Tool for Conservation and Sustainable Use of Marine Biological Diversity

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Introduction 1.1

The Subject

Biological diversity has intrinsic value, but provides at the same time values, benefits, and services to humans.1 Humans depend on biological diversity, including the marine biological, due to the services the ecosystems provide, such as food, fresh water and climate regulation.2 Still, humans have, especially over the last 50 years, changed the ecosystems extensively, which has led to a large loss of biological diversity3 In the Arctic, the marine ecosystems are considered to be in a generally good condition as human influence has been low – leaving ecological processes undisturbed.4 However, the marine environment is in the same way as elsewhere, subject to environmental threats such as long transported air pollutants and climate change.5 As a result of climate change, the sea ice is melting and the sea temperature is increasing. This has broad consequences for the marine environment, and the marine Arctic is particularly vulnerable to the severe climate changes. Climate change is described as the most serious threat to the Arctic biological diversity.6 At the same time, climate change also provides opportunities for new human activities and economic development in the Arctic region, as there is an increasing demand for Arctic resources, both living and non-living.7 The fragile Arctic marine environment is, therefore, under growing pressure from climate change and the 1 Arctic Council, Conservation of Arctic Flora and Fauna (caff). 2013, Arctic Biodiversity Assessment: Report for Policy Makers (caff) Akureyri, Iceland, 4. All the reports in the Arctic Biodiversity Assessment are avialable at http://www.arcticbiodiversity.is (accessed January 2016). 2 Millennium Ecosystem Assessment, 2005. Ecosystems and Human Well-being: Synthesis. ­Island Press, Washington dc,1, http://www.millenniumassessment.org/documents/docu ment.356.aspx.pdf (accessed December 2015). 3 Ibid., 1–2. 4 caff, Arctic Biodiversity Assessment: Report for Policy Makers, 5, See also Tore Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” Arctic Review on Law and Politics, 1:2 (2010): 253. 5 Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” 254. 6 caff, Arctic Biodiversity Assessment: Report for Policy Makers, 9. 7 Ibid., 5.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_002

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prospects of increased human activity affecting previously untouched areas. This development is likely to have consequences for Arctic biological diversity.8 In the Arctic Biodiversity Assessment, the Arctic Council’s Conservation of Arctic Flora and Fauna (caff) concludes that Arctic biological diversity is being degraded, but that actions taken now can sustain the ecosystems of the tundra, mountains, and sea.9 During the recent decades, there has been an increasing focus in many legal and political instruments on the use of Marine Protected Areas (mpas) as a tool for protection and conservation of marine biodiversity, including also in the Arctic. The purpose of this book is to examine the legal rights and obligations of states under international law to use mpas as a tool to conserve marine biodiversity, in their maritime zones and on the high seas. Conservation of the Arctic marine biological diversity is of significance not only for the Arctic region, but also for global biological diversity. The conservation of Arctic marine biodiversity is a pressing and global concern. Therefore, this book also aims to examine the implementation of the international legal framework for biodiversity conservation in the marine Arctic. There is no generally accepted definition of the marine Arctic, but the spatial scope of the analyses in this book covers the Arctic Ocean and its adjoining seas.10 The increasing shipping activities in the Arctic represent a major threat to the sensitive marine Arctic. A particular concern is the increased risk for oil spills caused by accidents.11 An important task for the book, thus, is to clarify the legal implications the establishment of mpas have for international shipping, as the protection and conservation of biological diversity may require that navigation within these areas, is restricted or prohibited. Moreover, the book examines the legal scope for the states unilaterally or through the competent international o­ rganization, 8 Ibid. 9 Ibid, 8. 10 For a description and map of this geographical area, see Arctic Council, Protection of the Arctic Environment (pame) The Arctic Ocean Review, Phase 1 aor 2009–2011, 4–5, available at https://oaarchive.arctic-council.org/bitstream/handle/11374/68/AOR%20Phase% 20I%20Report%20Second%20Edition.pdf?sequence=1 (accessed January 2016). There are many different definitions applied of which areas that constitute the marine Arctic. See Rosemary Rayfuse, “Melting Moments: The Future of Polar Oceans Governance in a Warming World,” Review of European Community & International Environmental Law, 16:2 (2007):197; Alf Håkon Hoel, “Do We Need a Legal Regime for the Arctic Ocean?” International Journal of Marine & Coastal Law 24 (2009): 444. 11 Arctic Council, pame, 2009, Arctic Marine Shipping Assessment 2009 Report (hereinafter amsa Report), 136.

Introduction

5

the International Maritime Organization (imo), to regulate or restrict shipping activities within mpas. 1.2

The Concept of mpas

1.2.1 Different Types of mpas mpas may be adopted for a range of different purposes, such as protection of endangered species, maintenance or restoration of viable populations of species, nesting or breeding areas, protection of ecosystems, critical habitats, or protection of areas as reference areas.12 mpas are also established for the purposes of managing activities that take place within the same area and to develop resilience against threats from climate change and from activities such as shipping and fishing.13 mpa, therefore, is refered to as an umbrella term that covers a broad variation of maritime areas, purposes of protection, and different types of regulations.14 The size, content, location and management of the areas are subject to wide variation. The analyses carried out in this book cover different types of mpas when it comes to types of regulations and also different levels of protection of the areas. The focus of this book is, however, on the establishment of mpas as a tool for protection and conservation of marine biodiversity. It is integrated or crosssectoral mpas that are the subject for the analyses. Integrated or cross-sectoral mpas are where all human activities within the defined area are addressed and managed for the purpose of conservation of marine biodiversity.15 There are also other specialised types of mpas that are developed to protect the marine

12

13 14

15

See Charlotte de Fountabert, David R. Downes and Tundi S. Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,” Georgetown International Environmental Law Review, 10:3 (1998): 774, for an overview of the typical objectives for mpas. Karen N. Scott, “Conservation on the High Seas: Developing the Concept of High Seas Marine Protected Areas,” International Journal of Marine and Coastal Law 27:2 (2012): 850. Sarah Wolf and Jan Asmus Bischoff, “Marine Protected Areas,” Max Planck Encyclopedia of Pulic International Law (2013) Available at http://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law-9780199231690-e2029?rskey=phkMWe&result=1&prd=EPIL (accessed January 2016). For more on the term integrated mpas see Erik J. Molenaar, “Managing Biodiversity in Areas Beyond National Jurisdiction,” The International Journal of Marine and Coastal Law, 22:1 (2007): 91.

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environment from particular human activities.16 This could be specific areas that are closed too fisheries or areas where shipping is regulated. Another example is sanctuary areas where commercial whaling is prohibited that may be adopted by the International Whaling Commission under the International Convention for Regulation of Whaling.17 As the book focuses on the legal implications of shipping with the establishment of mpas, and the possibilities for states to use this tool to protect the marine environment against the impacts of shipping, analyses of specialized mpas or MPA-related concepts that deal with shipping are included. Both under the un Convention on the Law of the Sea (the los Convention)18 and under imo instruments, there are available area-based management tools to protect marine biodiversity within certain areas against the impact of shipping.19 These possible specialized types of mpas includes “clearly defined area” or “special areas” in los Convention Article 211 (6), Special Areas under the International Convention for the Prevention of Pollution from Ships (the marpol Convention),20 “ice-covered areas” in los Convention Article 234 and Particularly Sensitive Sea Areas (pssa) developed by the International Maritime ­Organization (imo).21 1.2.2 Definitions of mpas mpa is not a clearly defined legal term. There are various types of marine protected areas and varying definitions of mpas. A natural starting point is the ­definitions provided by the International Union for the Conservation of ­Nature (iucn) and the central legal instruments the Convention on Biological Diversity (cbd)22 and the Convention for the Protection of the Marine Environment of the North-East Atlantic (the ospar Convention).23 The iucn has

16 17 18 19 20 21 22 23

See Yoshifumi Tanaka, The International Law of the Sea, 2nd.ed. (Cambridge: Cambridge University Press, 2015), 347–350. International Convention for the Regulation of Whaling 1946, 161 unts 72. United Nations Convention on the Law of the Sea, 1982, 1833 unts 3. Tanaka refers to these concepts as “MPA-related concepts,” see Tanaka, The International Law of the Sea, 347. International Convention for the Prevention of Pollution from Ships 1973 and the Protocol of 1978 Relating Thereto, 1340 unts 62 (marpol Convention). imo, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (hereinafter pssa Guidelines), 1 December 2005, imo Resolution A.982(24). Convention on Biological Diversity, 1992, 1760 unts 79 (cbd). Convention for the Protection of the Marine Environment of the North-East Atlantic, 2354 unts 67 (ospar Convention).

Introduction

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played a significant role in encouraging and developing the concept of mpas.24 mpa is defined by the iucn as: Any area of intertidal or subtidal terrain, together with its overlying water and associated flora, fauna, historical and cultural features, which has been reserved by law or other effective means to protect part or all of the enclosed environment.25 This definition seems to be accepted by many. The definition is quite broad, as very different purposes for the establishment of the mpas are allowed. It is reasonable to understand the terms “associated flora, fauna” so that they include biological diversity. It should be noted that this definition envisages the adoption of mpas “by law or other effective means.” The cbd Convention does not provide a definition of the term mpas. The term protected area is however, defined in the cbd Article 2 as follows:­ “ “Protected area” means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives.” As the term biological diversity pursuant to the definition in cbd Article 2 includes marine biodiversity, the definition of protected areas also encompasses mpas. The definition of protected areas covers geographically defined areas, which are “designated or regulated and managed.” In relation to this, the meaning of “designated” has been discussed. Designated in this context is not understood as “named” but as sites that are legally defined by geographically coordinates.26 Another uncertainty is related to the use of the word “or” in the definition. This raises the question whether a protected area may meet the definition if it is designated without any regulations of human activities within the area. An alternative understanding is that “or” must be read as “and” so that it is not enough to designate the protected area, it must also be regulated and managed.27 The cbd deals with protected areas as a means or a tool for conservation of biological diversity. Within this purpose, protected areas, according to the definition, may be adopted for a broad range of objectives. The wording “specific conservation objectives” indicates an acceptance of a wide variety of purposes, which the Contracting Parties may choose themselves. 24

See Graeme Kelleher, ed., Guidelines for Marine Protected Areas (Gland, Switzerland and Cambridge, uk: iucn, 1999). 25 Ibid., Executive Summary. 26 Michael I. Jeffery, “An International Legal Regime for Protected Areas,” in International Environmental Governance: An International Regime for Protected Areas, eds. John Scanlon and Françoise Burhenne-Guilmin (Gland/Cambridge: iucn, 2004), 20. 27 Ibid.

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The ad hoc Technical Group on Marine and Coastal Protected areas under cbd adopted a definition which is based on the definition by iucn: Marine and Coastal Protected Area’ means any defined area within or adjacent to the marine environment, together with its overlying waters and associated flora, fauna, historical and cultural features, which has been reserved by legislation or other effective means, including custom, with the effect that its marine and/or coastal diversity enjoys a higher level of protection than its surroundings.28 This definition is also endorsed by the Conference of the Parties (cop) to the cbd.29 This definition includes, as a requirement, that the level of protection within the mpa is higher than outside, which does not follow explicitly from the definition of protected areas in cbd Article 2. Another definition of mpa is adopted under the ospar Convention. Here, mpas are defined as follows: “Marine protected area” means an area within the maritime area for which protective, conservation, restorative or precautionary measures, consistent with international law have been instituted for the purpose of protecting and conserving species, habitats, ecosystems or ecological processes of the marine environment.30 This definition includes the components of biological diversity, species, habitats and ecosystems as purposes for the mpas and states as a prerequisite that protective measures shall be adopted.31 1.2.3 The Classification of Protected Areas With the many different types and definition of mpas, and with the lack of a comprehensive legal framework for protected areas, there is a legal confusion with regard to what an mpa is and what legal significance the establishment 28

29 30

31

Secretariat of the Convention on Biologcial Diversity (cbd Secretariat), 2004, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” scbd, cbd Technical Series no.13, 7. cbd cop Decision VII/5, para. 10. ospar Commission, “ospar Recommendations 2003/3 on a Network of Marine Protected Areas,” Meeting of the ospar Commission, 23–27 June 2003, Summary Record ospar 03/17/1-E, Annex 9, para. 1.1. About the concept of biological diversity, and its components see Subsection 7.2.2.

Introduction

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of an mpa has. To provide guidance, the iucn has developed a system of classification of protected areas.32 These categories of protected areas range from strict natural reserves where no human activities are permitted, to protected areas where resources are managed in a sustainable way.33 1.3

International Legal Framework for mpas

Although there has been an increasing attention the last few years on protection of specific maritime areas to protect for instance vulnerable ecosystems or rare and fragile habitats, mpa is not a new legal concept. The first known mpa was the Fort Jefferson National Monument in Florida in the United States, which was established in 1935 as a conservation area.34 The international legal and policy regime for the protection and conservation of the marine environment and marine biodiversity, of which mpas is part, is composed of customary law, the los Convention, soft law instruments such as Agenda 2135 and the World Summit on Sustainable Development’s Plan of Implementation 200236 (wssd Plan of Implementation), multilateral environmental agreements such as cbd, global agreements on marine pollution, regional conventions such as ospar and environmental principles.37 ­Numerous political and global instruments address and encourage or require the use of mpas or MPA-related concepts.38 The Convention on Wetlands of 32

For a discussion of the classificaion of protected areas see Alexander Gillespie, Protected Areas and International Environmental Law (Leiden: Martinus Nijhoff Publishers 2007), 27–46. 33 Kelleher, Guidelines for Marine Protected Areas, xviii–xix. 34 See Tullio Scovazzi, “Marine Specially Protected Areas under Domestic Legislation” in Marine Specially Protected Areas: The General Aspects and the Mediterranean Regional System ed. Tullio Scovazzi (The Hague: Kluwer Law International, 1999), 6. 35 Agenda 21: Programme of Action for Sustainable Development, 14 June 1992, un Doc. A/CONF. 151/26. 36 World Summit on Sustainable Development, Plan of Implementation, of the World Summit on Sustainable Development, 4 September 2002, un Doc. A/Conf.199/20, Annex (wssd Plan of Implementation). 37 Veronica Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level (Leiden: Martinus Nijhoff Publishers, 2007), 9. 38 For an overview of treaties that address mpas see Yoshifumi Tanaka, A Dual Approach to Ocean Governance. The Cases of Zonal and integrated Management in International Law of the Sea (Cornwall: Ashgate Publishing Limited, 2008), 164–171.

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International Importance especially as Waterfowl Habitat39 (Ramsar Convention) includes an obligation in Article 2 (1) to designate wetlands within their territory. Also, the Convention Concerning the Protection of the World Culture and Natural Heritage40 (World Heritage Convention) includes a concept similar to the concept of mpas. The states shall, according to Article 5, endeavour to take appropriate legal measures necessary for the protection and conservation of natural heritages, which also includes maritime sites. Moreover, the Convention on the Conservation of Migratory Species of Wild Animals41 (Bonn Convention) includes obligations to protect migratory species and their habitats. The los Convention includes general obligations for the States to protect the marine environment, including rare and fragile ecosystems, and the habitat of threatened and endangered species.42 It does not, however, include specific requirements to apply mpas as a measure to comply with the obligations. The primary global obligation on mpas for the purpose of protection of marine biodiversity is included in the cbd Article 8 (a). The cbd also requires parties to develop, inter alia, national strategies for conservation and sustainable use of biological diversity, which also should include the establishment of protected areas, the protection of ecosystems and habitats, and the protection of threatened species.43 The superior body of cbd, the cop, has developed the obligations further and adopted decisions on the conservation of marine biodiversity and addresses the use of mpas as a conservation instrument. Also, a number of regional conventions address the use of mpas. In addition to the ospar Convention,44 which applies to the North – East Atlantic and parts of the Arctic Ocean, are the Convention on the Protection of the ­Marine Environment of the Baltic Sea Area (Helsinki Convention),45 the Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona

39 40 41 42 43 44 45

Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971, 996 unts 247 (Ramsar Convention). Convention Concerning the Protection of the World Culture and Natural Heritage, 1972, 1037 unts 151 (World Heritage Convention). Convention on the Conservation of Migratory Species of Wild Animals, 1979, 1651 unts 333 (Bonn Convention). los Convention, Articles 192 and 194 (5). cbd, Articles 6 and 10. ospar Convention, Article 1 where the geographical application of the Convention is established. Convention on the Protection of the Marine Environment of the Baltic Sea area 1992, 1507 unts 167 (Helsinki Convention).

Introduction

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Convention),46 and the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean.47 Within ec law, the Habitat Directive48 and the Bird Directive49 include important obligations for their member states to establish protected areas. Moreover, the Convention on the Conservation of the European Wildlife and Natural Habitats (Bern Convention)50 may also imply obligations upon the states to establish mpas. 1.4

Global Political Developments with Regard to mpas

1.4.1 Agenda 21 and the wssd Plan of Implementation Agenda 21, the United Nations Programme of Action, was adopted at the Rio Conference in 1992. Agenda 21 encourages states to take a more holistic approach to ocean management that is to be “integrated in content and are precautionary and anticipatory in ambit.”51 mpas are emphasised as a significant tool and a core element of this new approach. Agenda 21 stresses the importance of protecting species, habitats, and ecologically sensitive areas, both within and beyond areas of national jurisdiction.52 The significance of adopting an integrated ecosystem-based management system of the oceans and of establishing mpas was later confirmed in the Word Summit on Sustainable Development (wssd) Plan of Implementation, adopted in Johannesburg in 2002. In particular, the wssd Plan of Implementation declares that states should: “Maintain the productivity and biodiversity of important and vulnerable marine and coastal areas, including in areas within and beyond national jurisdiction.”53 And furthermore to

46 47 48 49 50 51 52 53

Convention for the Protection of the Mediterranean Sea against Pollution, 1976, 1102 unts 27 (Barcelona Convention). Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean, 1995, 2102 unts 203. Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora. Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the Conservation of Wild Birds. Convention on the Conservation of the European Wildlife and Natural Habitats, 1979, 1284 unts 209 (Bern Convention). Ibid. paragraph 17.1. Ibid., paragraphs 17.46 (e) and (f) and 17.75 (e) and (f). wssd Plan of Implementation, para. 32 (a).

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Develop and facilitate the use of diverse approaches and tools, including the ecosystem approach, the elimination of destructive fishing practices, the establishment of marine protected areas consistent with international law and based on scientific information, including representative networks by 2012….54 This objective has had significance for the legal development of mpas. As a response to the Plan’s commitment of the states, the objective was endorsed in legal instruments such as the cbd and ospar Convention, and also within ec law.55 To achieve the objective, it was transformed into more specific goals within the framework of instruments such as cbd and ospar, through the adoption of decisions, recommendations, and guidelines adopted by the COP of cbd and the ospar Commission.56 Also the Arctic Council endorsed this objective.57 In 2010, the cop under cbd extended the deadline for achieving the objective, as despite efforts only 1 per cent of the ocean surface was designated as protected areas at this time.58 A new target was adopted, as part of the Aichi Biodiversity Targets, where it follows from target 11 that: By 2020, at least 17 per cent of terrestrial and inland water, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.59

54 55

56 57

58 59

Ibid., paragraph 32 (c). See for instance Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) eu Marine Strategic Framework Directive. Documents available at www.biodiv.org and www.ospar.org. Arctic Council, pame, Arctic Marine Strategic Plan, 24 November 2004. Available at https://oaarchive.arctic-council.org/bitstream/handle/11374/72/AMSP_Nov_2004. pdf?sequence=1&isAllowed=y (accessed in January 2016). cbd cop Decision X/29, para. 4. See Convention on Biological Diversity, “Aichi Biodiversity Target,” available at https:// www.cbd.int/sp/targets/(accessed January 2016) For more, see Glen Wright, Julien Rochette and Elisabeth Druel, “Marine protected areas in areas beyond national jurisdiction” in Research Handbook on International Marine Environmental Law, Rosemary Rayfuse ed. (Cheltenham: Edward Elgar Publishing Publishing Limited, 2015), 273–274.

Introduction

13

un General Assembly and Steps towards a New Instrument on Sustainable Use and Conservation of Biological Diversity in Areas beyond National Jurisdiction While the los Convention does not contain any specific references to the use of mpas, the un General Assembly (unga) has, in recent years, addressed the use of mpas as a tool to protect the oceans and to ensure conservation of biological diversity.60 The unga reaffirmed the need to develop and facilitate tools for conserving and protecting vulnerable marine ecosystems, including the establishment of mpas and the development of representative networks of marine protected areas by 2012.61 In the resolution from 2011, the unga encourages states to: 1.4.2

further progress towards the 2012 target for the establishment of marine protected areas, including representative networks, and calls upon States to further consider options to identify and protect ecologically or biologically significant areas, consistent with international law and on the basis of the best available scientific information;62 The unga has also addressed the question of conservation of biological diversity in areas beyond national jurisdiction, and reaffirmed its central role in conservation of marine biological diversity in areas beyond national jurisdiction. At the same time that the unga has reaffirmed its central role in the process, it has also noted the work done under the cbd in relation to conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction.63 The process of strengthening the legal framework for conservation of biological diversity in areas beyond national jurisdiction was first addressed at the un Open-ended Informal Consulttative Process on Oceans and the Law of the Sea (unicpolos) in 2003.64 In 2004, the unga decided to establish an Ad Hoc Open-ended Informal Working Group (Ad Hoc Working Group) to study issues relating to the conservation and sustainable use of marine biological diversity.65 In 2011, the Ad Hoc Working Group 60 61 62 63 64 65

un General Assembly (unga), Resolution adopted by the General Assembly, A/Res./63/111 (5 December 2008), paras. 121–135. Ibid., para. 134. unga, Resolution adopted by the General Assembly, A/Res./66/231 (24 December 2011), para. 178. Ibid., para. 172. unga, Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, A/58/95 (26 June 2003), para. 98. unga, Resolution adopted by the General Assembly, A/Res./59/24 (17 November 2004), para. 73.

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adopted by consensus a set of recommendations, requesting a process to be initiated by the unga with a view to the “possible development of a multilateral agreement” under the los Convention to ensure conservation and sustainable use of the biological diversity in areas beyond national jurisdiction.66 It was also recommended that, in this process, conservation and sustainable use of biological diversity in areas beyond national jurisdiction, by the use of, for instance, mpas, was to be addressed.67 At the fifth meeting of the Ad Hoc Working Group, the issue of an implementation agreement under the los Convention was discussed. The eu called for an implementing agreement that provided for a global mechanism for establishing mpas in areas beyond national jurisdiction, and urged the working group to recommend to the unga that the negations would start at soon as possible.68 While the Ad Hoc Working Group achieved consensus with regard to recommendation of a “possible development of a multilateral agreement under” the los Convention, it did not manage to agree on the process forward to develop the legal framework.69 Political support for a new agreement to strengthen the legal framework At the Rio+20 Conference the states “recognized the importance of the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction.”70 Furthermore, the states acknowledged the work of the Ad Hoc Working Group and committed themselves to: address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on the Law of the Sea.71

66

Earth Negotiations Bulletin, Vol. 25 No 83, 14 may 2012, available at http://www.iisd.ca/ download/pdf/enb2583e.pdf (accessed January 2016). See also Robin M. Warner, “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea” in The Oxford Handbook of the Law of the Sea edited by Donald R. Rothwell et. al (Oxford: Oxford University Press, 2015), 766. 67 These recommendations were endorsed by the unga, Resolution adopted by the General Assembly, A/Res./66/231 (24 December 2011) para. 167. 68 Earth Negotiations Bulletin, Vol. 25 No 83, 14 may 2012. 69 Ibid. 70 unga, Resolution adopted by the General Assembly, “The future we want,” A/Res./66/288 (27 July 2012), para. 162. 71 Ibid.

Introduction

15

The comittment from the Rio +20 Conference was confirmed by the unga the next year in 2013.72 The unga provided the Ad Hoc Working Group with the task to make “recommendations to the Assembly on the scope, parameters and feasibility of an international instrument under the Convention.”73 In the final meeting of the Ad Hoc Working group in January 2015, as part of recommendations to the unga, they decided “to develop an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.”74 Finally, at the 69th session in 2015, the unga decided to develop a new legally binding instrument on conservation and sustainable use of biological diversity of areas beyond national jurisdiction. The content of such an agreement remains to be negotiated, but the process so far indicates that the use of mpas will be a central part of such an agreement. It follows from the recommendation to unga that the Ad Hoc Working Group decided that the negotiations of the agreement shall adress among other topics: “measures such as area-based management tools, including marine protected areas.”75 1.5

Scope of the Book

The book examines international legal questions related to the use of the environmental tool of mpas. It seeks to provide the reader with an understanding of the global legal obligations with regard to the establishment of mpas and of the legal basis and competence to establish and manage mpas within and outside areas of national jurisdiction. Although the legal questions related to the mpas are general and apply to all oceans, this book has an Arctic perspective. In the face of the development with climate changes and increased opportunities for human activities, the Arctic Council has considered the use of mpas as 72 73 74

75

unga, Resolution adopted by the General Assembly, A/Res./67/78 (11 December 2012), para. 181. unga, Resolution adopted by the General Assembly, A/Res./68/70 (9 December 2013), para. 198. unga, Outcome of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservationa and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs´summary of discussion, A/Res./69/780 (13 February 2015), para. I.1 (e). Ibid., paragraph i 1 (f). For more on mpas under a new implementation agreement, see Wright, Rochette and Druel, “Marine protected areas in areas beyond national jurisdiction,” 287–288. See also Warner, “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea,” 772–775.

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an important environmental tool. As shown above in 1.3, numerous international conventions address the use of mpas. None of these, however, deal specifically with the marine Arctic. The book assesses international conventions that encourage or require the use of mpas and that are applicable in the Arctic as Arctic states are state parties to them. Particular emphases are put on the cbd at the global level, the most central legal instrument on the subject issue. Conservation of the Arctic marine biological diversity is important not only in the Arctic, but also for global biological diversity. Many species, such as migratory sea birds and mammals, use the marine Arctic seasonally, as Arctic habitats provide vital resources, such as capelin and herring.76 Also, states, such as China and the eu and its member states have strong legitimate political interests in the Arctic due to fisheries, navigational and environmental interests. The implementation of global obligations to ensure conservation and sustainable use of marine biological diversity at the regional level, through the ospar Convention and the Arctic Council, and at the national level is therefore of interest to the international community, and addressed in this book. The book also includes some examples of state practice from Norway, one of the Arctic coastal States. The book examines in Part 2, the legal basis and competence to establish and manage mpas in the different maritime zones including on the high seas. The coastal States may be restricted in their establishment and management due to the rights of all States within their maritime zones. The book seeks to clarify the legal competence of the coastal States to regulate activities that may damage and threaten the habitats, species or ecosystems within an mpa, with particular emphasis on shipping. The establishment of mpas on the high seas is controversial due to the lack of a clear legal basis and raises a number of important legal questions that will be addressed. Currently, there is as described above, a political and legal development with regard to the possible development of an implementation agreement to the los Convention that addresses the conservation and sustainable use of biological diversity in areas beyond national jurisdiction. Following these developments, there appears to be broad support in the international community for creating such an implementation agreement. This is significant for the Arctic Ocean, as parts of the marine Arctic are beyond national jurisdiction. Moreover, with the melting of sea ice, large areas in the central Arctic Ocean will become ice free, at least in the summer months, and will be part of the high seas. With the prospect of increased human activity in these areas, it will be necessary to identify sensitive or valuable areas that need protection, and that may constitute a part of a global network 76

caff, Arctic Biodiveristy Assessement: Report for Policy Makers, Key Findings 3 and 9.

Introduction

17

of mpas. This requires clarification of the legal basis and competence to establish and manage mpas on the high seas. The question whether there is a legal duty for states to apply this particular tool, is addressed in Part 3 of the book. Whereas, both the cbd and the ospar treaties are characterized by general obligations that are elaborated through the adoption of decisions and recommendations by the superior decisionmaking bodies of the instruments, a particular characteristic with cbd is the use of qualified and vague terms. In order to examine whether there is a legal duty to establish mpas on the basis of the cbd, the normative characteristics of the cbd are examined as well as the legal impact of the use of the qualifier “as far as possible and as appropriate” is examined. The analyses of the cbd also include possible procedural and substantive obligations to the design and management of mpas. The implementation of the global obligations at the r­ egional level through the ospar Convention and efforts under the Arctic Council is also assessed in this part. The obligations of the states to protect and conserve the ecosystems and the biological diversity – e.g. by the use of mpas – may come into conflict with the traditional principle of the freedom of the sea. As all States enjoy navigational rights in the territorial seas and in the exclusive economic zones, the book examines in its Part 4 whether there is a possible legal conflict between these rights and the obligations of the coastal States to establish mpas. The relationship between the cbd and the los Convention, thus, is examined, as well as mechanisms in international law for solving possible legal conflicts between different legal norms. Following these analyses, the legal possibilities of regulating shipping within the mpas are examined. The purpose is to clarify the limits of the prescriptive jurisdiction of the coastal States to unilaterally adopt regulations on shipping to protect the mpas within their national jurisdiction and for which measures they have to involve the imo to get their approval. The chapter provides an overview of the relevant international framework for shipping in the Arctic, including the Polar Code77 adopted by the imo in 2014 and 2015. The last part of the book, Part 5, includes analyses of available area-based measures, or MPA-related concepts under the los Convention and imo, which may enhance or “overcome” the jurisdictional barriers, as the coastal States due to freedom of navigation, are restricted to unilaterally regulating shipping within their ­maritime zones. 77

imo, Marine Environment Protection Committee, International Code for Ships Operating in Polar Waters (Polar Code), Resolution mepc. 264(68),15 May 2015, mepc 68/21/ Add.1, Annex 10.

chapter 2

Legal Competence to Establish mpas within National Jurisdiction and on the High Seas 2.1 Introduction The marine areas of the Arctic are subject to different legal regimes, ranging from territorial seas, subjected to the sovereignty of the coastal States, to the Exclusive Economic Zones (eez), in which coastal States enjoy sovereign rights over natural resources, and other States enjoy the freedom of navigation and overflight and the freedom to lay submarine cables and pipelines, to the high seas where the freedom of the principle applies. Two or more pockets of the Area may remain after the establishment of the limits of the outer continental shelves of the Arctic coastal States.1 The los Convention is applicable to the marine Arctic, as it is in any other ocean.2 Notwithstanding the wide endorsement of mpas, the international instruments addressing mpas, such as the cbd, do not provide the Contracting Parties with enhanced jurisdictional rights.3 Rather, these instruments usually include clauses which provide that their implementation shall not affect the jurisdictional balance of the los Convention.4 The prescriptive and enforcement jurisdiction as set out in the los Convention is, therefore, the legal basis for the establishment of mpas and for the extent or scope of the regulation of human activities that they may adopt as protective measures therein. ­Consequently, legal obligations for the states to establish mpas must be ­interpreted in light of the jurisdiction or legal competence in the respective 1 Erik J. Molenaar et al., “Introduction to the Arctic,” in Arctic Marine Governance: ­Oppurtunities for Transatlantic Cooperation, edited by Elizabeth Tedsen, Sandra Cavalieri and R. Andreas Kraemer (Berlin/Heidelberg: Springer Verlag, 2014), 6. 2 The los Convention uses both the terms States and States Parties when reffereing to the States Parties of the Convention. The los Convention uses also the more specified terms coastal States, flag States and port States. 3 Henrik Ringbom, The eu Maritime Safety Policy and International Law (Leiden: Martinus Nijhoff Publishers, 2008), 471. 4 See Article 4, which states that the cbd applies “subject to the rights of other States,” and Article 22(2), which states that the cbd must be implemented “consistently with the rights and obligations of the States under the law of the sea.” See further discussions below in ­Subsection 17.3.2.2.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_003

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19

maritime zones. Therefore, it is necessary to clarify the legal competence and right to establish mpas before examining the legal obligations of the states to apply this particular tool. While the states enjoy full and exclusive sovereign rights over their land territory and may establish terrestrial protected areas where they want and regulate any activity they wish within the areas, the situation is different with regard to the oceans. Within national jurisdiction, the establishment of mpas is subject to the competence and the rights of coastal States in the respective maritime zones. In the areas beyond national jurisdiction no states have sovereignty, and there is no clear legal basis in international law to adopt mpas. Two different regimes within the los Convention apply to the areas beyond national jurisdiction: the regime of high seas in Part vii and the common heritage regime in the Area contained in Part xi of the los Convention. The Area is defined as “the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.”5 The Area and its resources are the common heritage of mankind, and the resources are exploited for the benefit of mankind and conducted by the International Seabed Authority.6 Consequently, if States want to establish an mpa that also covers the Area, the competence of the International Seabed Authority must be carefully considered.7 As the book has a particular focus on the possibility of regulating shipping within mpas, this chapter concentrates further on the possible legal basis to adopt mpas on the high seas. This chapter examines the legal competence and jurisdiction of the states to establish mpas and to regulate and restrict human activities within them, both within national jurisdiction and on the high seas. Although the enforcement jurisdiction and the opportunity for the coastal States to enforce the regulations adopted within mpas are significant for achieving their objectives, the chapter focuses therefore primarily on prescriptive jurisdiction. The terms “legal competence” and “jurisdiction” are applied interchangeably in this chapter.8 As the book aims to clarify the legal implications of shipping with the establishment of mpas, this chapter provides an overview of the prescriptive and enforcement jurisdiction over vessels in the maritime zones. A more detailed discussion occurs below in Chapter 18 regarding whether and how measures 5 los Convention Article 2. 6 los Convention Article 136. 7 Nele Matz-Lück and Johannes Fuchs, “The impact of ospar on protected area management beyond national jurisdiction: Effective regional coooperation or a network of paper parks?” Marine Policy 49 (2014): 157. 8 For a general discussion of the concept of jurisdiction in international law, see Malcolm N. Shaw, International Law (Cambridge: Cambridge University Press, 2008), 645–696.

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regulating shipping may be adopted within an mpa and of the international legal framework for shipping in the Arctic. The los Convention constitutes the primary legal regime for the different uses and activities in the oceans.9 The Convention includes both general obligations, such as the obligation in Part xii to protect the marine environment, and jurisdictional rules, which allocate rights and duties on the basis of a balance of the interests between the coastal State, the port State and the flag State. As the los Convention does not include any provisions that explicitly provide for the establishment of mpas, the jurisdiction with which to establish mpas must be determined based on an interpretation of the relevant provisions of the los Convention. 2.2

The Competence to Establish mpas within National Jurisdiction

2.2.1 General The coastal State jurisdiction decreases as one moves outwards toward the high seas.10 Throughout history, the principle of the freedom of the sea and the need and wish of states to regulate the areas close to their coasts have been weighed and balanced against each other. During the third un Law of the Sea Conference from 1974 to 1982, the rights of the coastal States were, however, enhanced and strengthened through the adoption of the eez, which granted the coastal States extensive rights over a 200 mile zone beyond the baseline.11 Although not all activities are necessarily prohibited within an mpa, a characteristic feature of the concept of mpas is the varying protective measures that restrict or prohibit activities that may impact or damage the marine environment.12 Measures for the protection of the marine environment established through an mpa, therefore, can restrict the exercise of rights of other States within the certain maritime area. Thus, the competence of the coastal State to regulate activities of foreign states varies depending on the type of activity and the zone in which the activity takes place. It is therefore important to 9

Its objective is to establish “legal order for the seas and oceans.” See los Convention, Preamble, para. 4. 10 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 17. 11 For more on this development, see R.R Churchill and A.V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 160–162. 12 Julian Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept (Berlin/ Heidelberg: Springer Verlag, 2007), 2.

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distinguish between the legal competence to establish mpas in their maritime zones and the legal competence to restrict or prohibit human activities therein. 2.3

mpas in the Territorial Sea

2.3.1 The Right to Establish mpas in the Territorial Sea It follows from los Convention Article 2(1) that: The sovereignty of a coastal State extends, beyond its lands territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of the sea, described as the territorial sea.13 The breadth of the territorial sea may not, however, exceed 12 nautical miles from the baselines.14 Territorial sovereignty is the basis for the jurisdiction of the coastal State in the territorial sea.15 Hence, the coastal States enjoy full and exclusive jurisdiction in the territorial sea. This means that both the prescriptive and enforcement jurisdiction are unrestricted unless explicit exceptions follow from international law.16 Therefore, the coastal States may establish mpas to protect the marine biodiversity within this area. Moreover, coastal States may adopt regulations ­within and outside mpas, which restrict or even prohibit activities that threaten or negatively impact biodiversity, such as fishing, transport of oil and gas exploitation etc. These regulations are fully applicable and binding on the states’ nationals whether they be persons, vessels or companies. Other States and their nationals have no general rights to carry out activities within the territorial sea of a coastal State. Consequently, activities of other states in the mpa are subject to the sovereignty of the coastal State. The right of innocent passage, which is based on customary law and reflected in los Convention Article 17, is the most important exception to the sovereignty of the coastal States in the territorial sea.17 It follows from Article 17 that 13

For more on the territorial sea as a maritime zone, see Churchill and Lowe, The Law of the Sea, 71–77. 14 The breadth of the territorial sea has been discussed throughout history. See ibid., 77–81. 15 See Shaw, International Law, 569–570. 16 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (The Hague: Kluwer Law International, 2008), 78. 17 Ringbom states that the right of innocent passage in the territorial sea “has been developed over the centuries to accommodate the competing interests of coastal States wishing to protect their territory and maritime States seeking to protect navigational freedoms.” Ringbom, The eu Maritime Safety Policy and International Law, 384.

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“ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.” Therefore, the exercise their sovereignty by the coastal States is subject to the right of innocent passage.18 This means that the right of innocent passage limits the competence to prescribe and enforce regulations with regard to the passage of foreign vessels within the mpas located in a territorial sea. To conclude, the coastal States are competent to establish mpas in their territorial seas that regulate all human activities therein that may cause damage or threaten biological diversity. These regulations may be made applicable to foreign vessels as well as foreign nationals. The coastal States must, however, respect the right of innocent passage, although coastal States are provided with prescriptive jurisdiction to regulate innocent passage. An overview of this competence is provided below in Subsection 2.3.3 whereas a more detailed discussion of the scope of such regulations and how far they may limit innocent passage through mpas is provided below in Section 18.5. When is the Passage Innocent and Deprives the Coastal States of the Right to Interfere with Passage within mpas? 2.3.2.1 General Whereas the right of innocent passage restricts the jurisdiction of the coastal States to adopt regulations on shipping within mpas, the coastal States enjoy full prescriptive and enforcement jurisdiction over ships in non-innocent passage. It follows from Article 25(1) that the state may “take all necessary steps” to prevent non-innocent passage. This means that vessels engaging in non-­ innocent passage may be denied, restricted or expelled from the mpas and from the territorial sea.19 Whether a foreign vessel navigating in the territorial sea is innocent is, thus, crucial in determining to which legal regime the vessel is subject and the competence to address environmental threats posed by this vessel within the mpa. Does the coastal State have the legal authority to intervene when a vessel that is technically in a poor condition is carrying heavy oil or other dangerous cargo through an area that the State has protected as an mpa due to its sensitivity? In the alternative, does operational pollution from a vessel navigating a sensitive area imply that the passage is non-innocent? The aim of this section is to clarify when a vessel is in innocent passage. Both the conditions “innocent” and “passage” must be fulfilled to qualify as 2.3.2

18

19

The principle of innocent passage does not apply to internal waters. The jurisdiction of the coastal State to establish mpas in internal waters with protective measures, therefore, is unrestricted. See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 249.

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­innocent passage. The words “innocent passage” may be interpreted in different ways. At the same time, the interpretation of the right of innocent passage is decisive for the scope of the jurisdiction of coastal States. An interpretation that limits the right of innocent passage could thus exceed the competence of coastal States, as the duty to respect the right is correspondingly weakened.20 The word “innocent” in particular is open to different interpretations.21 Whether a passage meets the definition of the term “passage” is easier to decide.22 It follows from Article 18 (1) that “passage” means navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility. According to Article 18 (2), a “passage” also must be “continuous and expeditious.” The definition of “passage,” therefore, does not allow a vessel to cruise around in the territorial sea; in such cases, the passage is not “continuous and expeditious.”23 It follows, however, from Article 18 (2) that the passage may include stopping and anchoring in so far as this is part of the ordinary navigation or rendered necessary by force majeure or distress. Molenaar has stated that maritime causalties are not regarded as “passage,” and any ship involved in a maritime casualty would lose its status as a ship in innocent passage.24 Traditionally, the passage was found to be innocent as long as it was not “prejudicial to the peace, good order or security of the coastal State.”25 This is 20

See Seyed Ali Sadat-Akhavi, Methods for Resolving Conflicts between Treaties (Leiden: ­ artinus Nijhof Publishers, 2003), 30–31. M 21 For more about the interpretation of innocent passage, see Shaw, International Law, ­570–572, see Churchill and Lowe, The Law of the Sea, 81–92 Molenaar, Coastal State ­Jurisdiction over Vessel-Source Pollution, 195–199; K. Hakapää and E.J. Molenaar, “Innocent passage – past and present,” Marine Policy 23:2 (1999). 22 Churchill and Lowe, The Law of the Sea, 81. 23 Ibid. 81–82. The International Law Association Committee on Coastal State Jurisdiction relating to Marine Pollution (the ila Committee) expresses a similar opinion, as it argues that “ships cruising, hovering or merely lying in the territorial sea cannot claim their passage to be ‘continuous and expeditious’.” See ila Committee, 2000. Final Report, 51–52, available at http://www.ila-hq.org/en/committees/index.cfm/cid/12 (accessed January 2016). 24 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 198. 25 The rule was expressed in Article 14 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. For more on the background of the definition of “innocent passage,” see Churchill and Lowe, The Law of the Sea, 82–85.

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c­ odified in Article 19 (1). The definition of innocence is further elaborated in los Convention Article 19(2), which states that the passage is “prejudicial to peace, good order or security of the coastal State” if the vessel engages in any of the activities listed in Article 19 (2) in (a) to (l). Examples of activities that render a passage non-innocent are pollution, fishing, research and military activities. Reference in Article 19 (2) (l) to “any other activity not having a direct bearing on passage” indicates that the list of activities is not intended to be exhaustive.26 The focus of Article 19 (2) is on activities that are deemed to be non-­innocent passage. This raises the question, which is discussed below, of whether a vessel must engage in any of the listed activities or if the presence of a vessel in bad condition can lead to a non-innocent passage.27 The interpretation and application of Article 19 (2) (h), which states that “any act of willful and serious pollution contrary to this Convention” leads to non-innocent passage, is particularly relevant for the coastal States to have the authority to prohibit shipping activities within mpas in order to protect the areas against vessel source pollution. Ships that engage in “willful and serious” pollution lose the status of having innocent passage and may lawfully be denied passage in territorial seas and also within mpas. It is, therefore, important to determine when the pollution is “willful and serious.” Due to the formulation “willful and serious,” the conditions are cumulative. The formulation “­ willful and serious pollution” implies requirements both with regard to the degree of the pollution and to the intended or accidental nature of the pollution activity. However, it is not clear when the pollution reaches the degree of “serious” or the level of intention that is required. Accidental pollution is clearly outside the scope of being willful, but the type of intent required is not clarified.28 The ila Committee states that the criteria “represent a significant threshold.”29 Consequently, the dumping of oil and other substances that leads to ­serious pollution meets both the conditions of “willful and serious” and will render ­passage non-innocent. Operational pollution from vessels is “willful.” On the other hand, operational pollution in each individual case is normally not “­serious.” Accidental discharges may be “serious” but are not “willful,” as they are not intentional actions. Thus, the effect of the threshold “willful and 26 27

K. Hakapää and E.J. Molenaar, “Innocent passage - past and present,” 132. The question is discussed in Bénédicte Sage-Fuller, The Precautionary Principle in Marine Environmental Law, With Special References to High Risk Vessels (Oxon: Routledge, 2013), 50–51. 28 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197. 29 The ila Committee, Final Report, 52; see also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197.

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s­erious” is that operational pollution and accidental pollution from vessels often may take place without leading to non-innocent passage.30 Accidental pollution from a collision or grounding may, as argued above, also fall outside innocent passage as it is no longer in “passage.”31 While it is clear that the term willful requires intentional pollution, the term “serious” is subject to different interpretations, and it is difficult to define precisely when pollution is “serious.” Presumably, this determination must be made in conjunction with the principle in Article 19(1) and the term “prejudicial.”32 However, this implies only that the pollution must be prejudicial to the vital interests of the coastal States to deprive the vessel of its status of innocent passage. It does not clearly define when the pollution is “serious.” The level at which pollution is serious will vary depending on the ecological characteristics of a particular area, the present threats in the area, and the cumulative impact of human activities. The criterion “serious” should be interpreted as a relative term, where the required threshold depends on the factual circumstances, such as the affected environment. This interpretation is supported in the literature and in state practice.33 With regard to the criterion “serious,” ila concludes: The criterion of seriousness may in certain situations also be met by relatively limited operational discharges if taking place, for instance, in already heavily polluted enclosed seas or areas which are highly sensitive to pollution and are recognized as such at the international level.34 Furthermore, on the basis of their analyses of state practice, Molenaar and Hakapää have pointed out that many States consider a passage as non-innocent even though the act does not cause both “serious and willful” pollution.35 The writers conclude: However, in certain instances, state practice seems to reach beyond the conventional limits of coastal State jurisdiction. In particular, the application of the concept of innocent passage to vessel-source pollution as 30 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197. 31 Ibid., 198. 32 Ibid., 197. 33 See ila Committee, Final Report, 51; Molenaar, Coastal State Jurisdiction over VesselSource Pollution 197 and Lindy S. Johnson, Coastal state regulation of international shipping (Dobbs Ferry, ny: Oceana Publications, 2004), 65. 34 ila Committee, Final Report, 51, conclusion no. 7. 35 Hakapää and Molenaar, “Innocent passage – past and present,” 140.

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laid down in the 1982 Convention has not been uniformly adopted in national legislation. On the prescriptive side, this is apparent in the absence of proper incorporation of the elements of ‘wilful’ and ‘serious’ in national practices. Passage is often considered non-innocent even if not causing ‘wilful and serious’ pollution as required by the 1982 Convention.36 A relevant question in relation to mpas is whether the status of an area as an mpa influences the interpretation of “serious and willful.” Can it be argued that pollution within an area that is specifically protected as an mpa is always “serious?” This would imply that the right of passage within mpas, as defined, is non-innocent. mpas may be established for different purposes in different regulations. Thus, it is not enough to comply with the “serious” requirement that the area where the passage takes place is designated as an mpa. On the other hand, the vagueness of the term “serious” provides room for the coastal State to claim that operational pollution within mpas may be serious, and thereby, provide the coastal States a right to interfere with such passage. However, whether the pollution from the operation of the vessel is “serious” is a question to be determined on the basis of the factual circumstances. The ecological characteristics that make the area sensitive to pollution, together with the type and amount of pollution, are decisive factors when determining whether the pollution is “serious.” In this regard, it is also reasonable that the coastal States may take into account the total impact of pollution from other sources and environmental impacts from other human activities. As for the Arctic, the marine environment is also especially vulnerable to impacts from operational discharges.37 The understanding of “serious” as a relative term depending on factual circumstances is also supported by the precautionary principle.38 In conformity with the precautionary principle, the provision is interpreted to mean that in ecologically sensitive areas, minor pollution may be deemed to be “serious.” Here, the term “serious” can also include pollution the level and impact of which are scientifically uncertain. 36 37 38

Ibid., 144. (The emphasises are in the original). amsa Report, 34, 138–141 and 152. For more general information regarding the precautionary principle, see Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment, 3rd. ed. (New York: Oxford University Press, 2009) 152–164. For detailed analyses of the precautionary principle in marine law, see Bénédicte Sage-Fuller, The Precautionary Principle in Marine Environmental Law: With Special Refernces to High Risk Vessels (Abingdon: Routledge, 2013) 62–136.

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2.3.2.2

May a Threat of Environmental Harm Render Passage Non-Innocent? It is increasingly argued that it is possible to interpret the los Convention so that a passage which represents a threat of serious environmental harm may also lead to non-innocence. As observed by Ringbom: Moreover, the notion of depriving ships which are only potentially harmful to the environment of their right of innocent passage has tended to gain support.39

Ships may represent a threat or a potential harm to the marine environment either due to their conditions, cargo, or a combination of these factors. To protect ecosystems or habitats that are protected as mpas against accidental or operational pollution, it is relevant to assess the possibility that the coastal States intervene, and deny passage of vessels that represent an environmental threat to such areas, but where no environmental impact or damage has yet materialized. In this regard, it has been discussed whether passage of a vessel carrying ultra-hazardous cargo leads to non-innocence and may be denied. The passage of ships carrying dangerous cargo, e.g. nuclear waste or other inherently dangerous waste, however, is not to be covered by the listed activities in ­Article 19 (2). The formulation in Article 19 (2) (h) implies that the pollution has materialized, and that the damage has occurred. The threat of damage is not encompassed.40 Furthermore, the mere passage of a vessel carrying such cargo through the territorial sea without the intention to dispose of waste is not a “willful” act.41 On the other hand, it could be argued that ships carrying nuclear cargo or other inherently dangerous cargo represent such a threat to the “peace, good order or security of the coastal State” that they cannot engage in innocent passage.42 Accidents may lead to very serious and irreversible ­damage to the environment in certain areas, such as coral reefs. The threat which the passing of vessel carrying dangerous cargo represents could thus 39 Ringbom, The eu Maritime Safety Policy and International Law, 386, with further references in note 12. (The emphasis is in the original). 40 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197. 41 Simon Marr, The Precautionary Principle in the Law of the Sea: Mordern Decision Making in International Law (The Hague: Martinus Nijhoff Publishers/Kluwer Law International, 2003), 186. 42 See Churchill and Lowe, The Law of the Sea, 91–92. See also Jon M. Van Dyke, “The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials,” Ocean Development & International Law, 33 (2002), 87.

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be seen as “prejudicial” to the “peace, good order or security,” and therefore be labeled as non-innocent due to the principle in Article 19 (1). Whether the term “prejudicial” can be interpreted to include environmental threats and damage that has already occurred is an open question. However, proposals that also included a threat of environmental damage did not gain enough support during the negotiations of the los Convention.43 This implies that the intention was not to encompass risks of marine pollution and that a passage may not render passage non-innocent only when there is a threat of environmental harm. Some legal writers support the point of view that shipments of such dangerous cargo are not innocent due to the need of the coastal States to take measures to protect their marine environment against these threats. Van Dyke, for instance, argues that a coastal State has the authority to protect its seas from shipments of nuclear cargo.44 The wording in Article 19 does not, however, authorize denying passage only on the basis of the cargo of the ship. This is the widespread opinion in legal literature.45 Another argument in support of this view is that los Convention Article 22 provides the coastal States with the authority to establish sea lanes and explicitly states that, in particular, tankers, nuclear powered ships, or vessels carrying dangerous cargo may be required to follow such lanes.46 Also, Article 23 provides that such vessels shall “carry documents and observe special precautionary measures established for such ships by international agreements” when exercising the right of innocent passage, which clearly implies that transport of such cargo does not deprive the vessel of the status of innocent passage. Under Article 19, therefore, the transport of dangerous cargo does not qualify as non-innocent passage. With regard to the potential damage of such transport, in particular in relation to the protection of sensitive Arctic marine areas, it is unreasonable to prevent coastal States from interfering with such passage. However, the coastal States have certain prescriptive jurisdiction over vessels in innocent passage. At this point, the state of the law evolves, as it is particularly important for the coastal States to be able to take precautionary actions to protect sensitive areas against such immediate environmental threats. 43 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197. 44 See Van Dyke, “The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials,” 87. For a similar view, see Bénédicte Sage, “Precautionary coastal states’ jurisdiction,” Ocean Development & International Law, 37:3–4 (2006): 363–364. 45 Hakapää and Molenaar, “Innocent passage – past and present,” 133; Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 197; ila Committee, Final Report, 53. 46 los Convention, Article 22 (1) and (2).

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In this regard, Hakapää and Molnaar found, on the basis of their study of state practice, that many States claim a right to deny passage or to require a prior notification before vessels carrying hazardous cargo enter the territorial sea.47 Sage also argues de lege ferenda for an interpretation in which passage of vessels carrying dangerous cargo leads to non-innocence and, thereby, a right for the coastal States to intervene in such passage.48 The conditions of vessels may also represent environmental threats. Another relevant question is, therefore, whether the conditions of a ship may be so bad that its presence represents an unacceptable threat to the interests of the coastal States and its passage is characterized as non-innocent. Article 19 (2) includes a list of activities that may cause the withdrawal of the status of innocent passage. Only activities in which the vessel engages during its sailing can lead to non-innocent passage and not “passive requirements,” such as technical standards or the condition of the vessel.49 On the other hand, a strict reading of the provision so that only activities may lead to non-innocent passage can disregard vital interests of the coastal States.50 The formulation in Article 19 (1) indicates that more than activities and factors such as the conditions of a ship or maritime casualties can lead to non-innocent passage.51 Therefore, it may be argued that situations in which the threats of pollution due to the condition of a ship meet the criteria ­“prejudicial to peace, order and security” in Article 19 (1), can be considered non-innocent passage. Such a threat may be posed by vessels that are involved in maritime causalities. The ila Committee also points out that there is an exemption when it comes to threats of pollution from maritime casualties in territorial seas, in which event the coastal States, based on their sovereignty in these situations, may take actions to protect their interests.52 Moreover, the ila Committee found that, if a vessel is not i­ nvolved in causalities, but its conditions are so bad 47

Hakapää and Molenaar, “Innocent passage – past and present,” 144. See also Churchill and Lowe, The Law of the Sea, 91–92. 48 Sage, “Precautionary coastal states’ jurisdiction,” 364. 49 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 196–197. 50 Ibid. Churchill and Lowe also observe that, if it were concluded that only activities could deprive a vessel its status of innocent passage, this could, at least in theory, widen the scope of innocent passage compared to the older rule in the 1958 Convention. See Churchill and Lowe, The Law of the Sea, 85. 51 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 196. It is also pointed out by Sage that a strict reading at this point would exclude leper ships and maritime ­casualties, see Sage, “Precautionary coastal states’ jurisdiction,” 363. 52 ila Committee, Final Report, 53.

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that it is likely to be so involved, the vessel may not exercise innocent passage. It follows from the report that: A ship which is not involved in a maritime casualty but whose condition is so utterly deplorable that it is extremely likely to cause a serious incident with major harmful consequences, including to the marine ­environment, would not be able to exercise the right of innocent passage either.53 This point of view also finds support in legal literature.54 Molenaar provides examples from state practice of such “leper ships” that are denied entry into territorial seas.55 Thus, ships that are in such a bad condition that it is likely that they will cause an accident or incident that may result in major damage, are not in innocent passage.56 In this regard, to what extent can the coastal States ban vessels in bad condition, but which may not be characterized as “leper ships,” within mpas? In cases where the condition of a vessel is not “utterly deplorable” but still not in a good condition, the vessel is vulnerable to rough weather conditions in the marine Arctic. Even though such vessels pose a threat to the marine environment, the coastal State has only a limited possibility to prevent such a passage by declaring it non-innocent.57 However, since such passage can represent an unacceptable risk of environmental damage from the costal States’ point of view, it can be considered non-innocent passage under Article 19 (1). It can be argued that such passage is not innocent and that vessels posing such a threat can lawfully be denied passage through the mpas in their territorial seas. This will depend on the seriousness or the level of risk that the vessel poses and the interests in and necessity of protecting the area. It is agreed that leper ships are not in innocent passage, because it is likely that they will cause an incident. It is clear, therefore, that vessels that pose an environmental threat because of their technical condition but that are not defined as leper ships should be deemed non-innocent only in particular circumstances in which the risk is unacceptable due to the interests of the coastal States. In the legal literature, Sage argues that a broad interpretation of Article 19(1) would be an advantage for the coastal States and would justify interference 53 54 55

Ibid., 53. See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 198. Molenaar provides examples of state practice where “leper ships” are denied passage in territorial seas, see Ibid., note 13. 56 Ibid. 57 According to Sage, this is a grey area in Article 19, see Sage, “Precautionary coastal states’ jurisdiction,” 363.

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with shipping activities that represent unacceptable threats to their marine environment but do not fit within the listed activities in Article 19 (2): A judicious interpretation of this wording could provide coastal states with more flexible possibilities to take measures to protect their environment against threats posed by international shipping.58 Sage points out that, in the case of ships carrying nuclear cargo, a broad interpretation of the principle of innocent passage would benefit the coastal States. Further, Sage argues that: the time may be near when coastal states will deny the right of innocent passage to high risks vessels on the ground that they pose an unacceptable threat to the marine environment or to their interests. The precautionary principle would provide a solid justification to such action if the risks posed by high risk vessels were established on the model of those posed by ships carrying nuclear cargo.59 When protecting vulnerable or particularly rich areas, a precautionary approach is necessary. The precautionary principle is relevant as a legal principle when determining concretely whether a vessel is in such bad condition that the passage is “prejudicial to the peace, good order or security of the coastal State” as provided in Article 19 (1). In relation to the environmental risk posed by nuclear transport and other dangerous cargo, the wording of Article 19 in combination with Articles 22 and 23 provides very little scope for applying the precautionary principle and thereby arrives at the opposite result. Here, however, the precautionary principle plays the role of an argument de lege ferenda. All in all, discretion for denying passage of ships due to the notion that such a passage is non-innocent, because it represents a threat of environmental damage, is limited. However, the analysis has shown that there is a certain scope for interpreting the terms “innocent passage” and thereby justifying regulations necessary to protect the mpas. 2.3.2.3 Summary Since the adoption of the los Convention, there appears to have been a development in which a lower threshold for denying a vessel the right of innocent

58 Ibid., 364. 59 Ibid.

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passage is accepted.60 The interpretation and practice with regard to the cumulative threshold of “willful and serious” may also be seen as an acceptance of a more relaxed interpretation to safeguard the interests of the coastal States to protect their marine environment. Also, the discussions in legal literature concerning whether passages that pose a threat only to the environment may be considered non-innocent must be seen in this perspective.61 Hakapaä and Molenaar describe the legal developments after the elaboration of the principle of innocent passage in the los Convention as follows: many of the coastal States claim today broader power to interfere with foreign vessels threatening the coastal State interests with potential environmental harm. In practical application, this suggests interpretations of the Convention more favorable to the coastal State cause than what was originally envisaged at its adoption.62 It is possible that the environmental obligations and principles on conservation of marine biodiversity may influence the scope of the right of innocent passage and provide a wider scope for the coastal States to protect their marine environment. A growing acceptance of the need of the coastal State to protect its marine environment has been expressed in legal theory together with an increasing state practice of establishing integrated mpas when all human activities, including shipping, are addressed, may influence the interpretation of when the passage is innocent. This would broaden the competence of the coastal States to adopt mpas where shipping is prohibited or restricted. 2.3.3 The Prescriptive Jurisdiction over Vessels in Innocent Passage The jurisdiction of the coastal States to regulate shipping is expressed in Parts ii and xii of the los Convention. Due to their sovereignty in the territorial sea, the coastal States are provided prescriptive jurisdiction in Articles 21, 22 and 211 (4). It follows from Article 211 (4) that the coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. 60

61 62

Henrik Ringbom, “Vessel-source pollution,” in Research Handbook on International Environmental Law, edited by Rosemary Rayfuse (Cheltenham: Edward Elgar Publishing, 2015), 110. Ibid., 386. Hakapää and Molenaar, “Innocent passage - past and present,” 145.

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This prescriptive jurisdiction is formulated as a right for the coastal State and not as a duty due to the use of the word “may.” On the other hand, international environmental obligations, such as the duty to protect habitats and marine biodiversity set out in los Convention Part xii and in other treaties, require that the coastal States apply their legal competence to regulate innocent passage. Nevertheless, if the coastal State regulates innocent passage, the regulations must be “in conformity with the provisions of this Convention and other rules of international law,…”.63 Furthermore, the regulations must not hamper the innocent passage of foreign vessels.64 The coastal States, pursuant to Article 21 (1), may adopt laws and regulations with respect to the eight purposes that are listed in the article in (a) through (h). These includes a right to regulate innocent passage for the purposes of safety of navigation, conservation of living resources and protection and preservation of the marine environment among others.65 These purposes are relevant to the protection of certain areas of the territorial sea, such as mpas, against shipping. The kind of regulations of shipping that may be adopted within mpas is further discussed below in Section 18.5. A particular question in relation to the prescriptive competence is whether the list of legislative purposes set out in Article 21 is exhaustive. The introductory formulation of Article 21 (1) “in respect of all or any of the following” before the purposes are listed indicates that the purposes are exhaustive.66 Article 21 provides one exception from the competence of the coastal States to regulate the innocent passage.67 It follows from Article 21 (2) that the national regulations “shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted rules and standards.” (cdem standards) This means that, with regard to foreign vessels, the coastal State can adopt only regulations that “are giving effect to generally accepted international rules and standards.” (gairs) The regulations of innocent passage do not apply to cdem standards, unless such rules give effect to gairs.68 A foreign vessel, therefore, is not bound by a national unilateral regulation with regard to the design or construction, etc. of the vessel. The 63 64 65 66

67 68

los Convention Article 21 (1). This principle is expressed in los Convention Articles 24 (1) and in 211 (4). A more detailed discussion of when innocent passage is hampered occurs in Subsection 18.5.2. los Convention Article 21 (1) (a), (d) and (f). See Markus J. Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas (Berlin/Heidelberg: Springer Verlag, 2008), 69–70. The question is also discussed in Churchill and Lowe, The Law of the Sea, 95. This is a novel exception that aims to balance coastal State and flag State interests. See Churchill and Lowe, Law of the Sea, 94. The meaning of the term gairs is discussed below in Subsection 18.7.2.

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exception for such regulations is based on the international character of the shipping industry and on the different national requirements imposed by each state, to which ships cannot adapt to while they are sailing.69 The exception in Article 21 (2) is criticized in the legal literature for excessively limiting the jurisdiction of the coastal State.70 Article 22 provides the right for the coastal State to adopt certain navigational measures. The coastal State, according to this provision, may adopt sea lanes and traffic separation schemes, when it is “necessary having regard to the safety of navigation.” The provision in Article 22 (2) encourages that the coastal States require that “tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials” are confined to such sea lanes. Although the coastal State has competence unilaterally to adopt sea lanes and traffic separation schemes, according to Article 22(3)(a), coastal States must consider recommendations from the imo. The competence to adopt sea lanes to protect the mpas against the impact of shipping is discussed in more detail below in Subsection 18.6.2.3. 2.4

mpas in the eez

2.4.1 Introduction to the eez The eez, as reflected in Article 57, may extend 200 nautical miles from the baseline.71 The concept of the eez originates from the trend, which began approximately in 1945, of extending coastal State jurisdiction.72 At an early stage of the third Law of the Sea Conference, many developing countries unilaterally extended coastal State jurisdiction to 200 nautical miles.73 These actions gained support and provided the direct origin of the zone.74 At that time, many fish stocks were over-exploited by fishing vessels from developed states, and 69

The rule is adopted “to avoid a ‘mosaic’ of coastal State laws and regulations on the design, construction, manning or equipment of passing ships…”, see Hakapää and Molenaar, ­“Innocent passage – past and present,”137. 70 Daniel M. Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” Ecology Law Quarterly 18:4 (1991): 770. 71 It is commonly agreed that the right to establish a 200 mile zone and the general aspects of the concept of the eez is accepted as part of customary international law. See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 362 and Churchill and Lowe, The Law of the Sea, 161. 72 About the evolution of eez, see Churchill and Lowe, The Law of the Sea, 160–162. 73 Ibid. 74 Ibid., 160.

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the ­developing countries wished to ensure control over their economic resources, in particular, fish stocks, which resulted in these unilateral actions.75 The special regime of the eez was adopted as a compromise between the states that wanted to extend the coastal State jurisdiction and the states that opposed such an extension.76 The eez is, as reflected in its name, a zone of economic interest, in which many activities, such as fishing, oil and gas exploitation, scientific research and shipping, are carried out. Although in total the eezs of states covers about one third of the total sea area, it contains more than 90 percent of all exploitable fish stocks, 87 percent of the world’s known oil deposits, and a large share of mineral resources.77 The area is also of great importance for shipping, as the world’s major shipping routes cross through the eezs of states.78 Due to the extensive use of the resources that take place in this zone, there are a number of different and possible conflicting uses, between oil drilling and fishing, for instance.79 Habitats for flora and fauna are also within the eezs. The environment within the eezs includes sensitive habitats, areas with a high density of biological diversity, coral reefs and marine ecosystems extending from coast to ocean. Therefore, there is also the potential for conflicts between different economic activities and environmental protection in this zone. Such conflicts may arise within states, between different users and interests, and between states, as the species, habitats, and ecosystems of the eez do not always respect the jurisdictional boundaries of the zone. 2.4.2 The Legal Status of the eez An understanding of the eez as a legal regime is useful in defining the right to establish mpas in the eez. It also assists in clarifying the extent to which the coastal States may regulate activities carried out by other nations and their vessels within mpas in this zone. This section examines the legal status of an eez and provides an overview of the rights and duties of the coastal States 75 Ibid., 161. 76 Ibid. 77 Ibid., 162. 78 Ibid. 79 About the coexistence of the oil and gas industry and the fisheries in the Norwegian Barents Sea, see the Norwegian Ministry of the Environment, “Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands,” Report No. 8 to the Storting (2005–2006), Oslo, 2006, 88–90 (white paper). Available at https://www.regjeringen.no/en/dokumenter/Report-No-8-to-the-Storting-20052006/ id456957/(accessed January 2016).

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versus the rights and duties of other states. It follows from Article 55 that the eez is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal States and the rights and freedoms of other States are governed by the relevant provisions of this Convention. According to Article 56 (1) (a), within the eez, the coastal State enjoys sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil,… As the coastal States enjoy sovereign rights in the natural resources “of the ­ aters superjacent to the seabed and of the seabed and its subsoil,” the eez w also comprises the continental shelf. Therefore, it follows from Article 56 (3) that the rights of the coastal State with regard to the seabed and the subsoil shall be exercised in accordance with Part vi, the legal regime of the continental shelf. In addition to sovereign rights over natural resources, the coastal State is granted sovereign rights with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;80 Under Article 56 (1) (b), the coastal State also enjoys jurisdiction over the establishment and use of artificial islands, installations and structures, marine scientific research, and the marine environment “as provided for in the relevant provisions of this Convention.” In relation to the jurisdiction over the marine environment, the “relevant provisions” referred to here are the provisions in Part xii.81 Due to the provisions in this part, coastal States must prescribe and enforce regulations in relation to the dumping of waste and pollution from seabed activities in the eez.82 Moreover, the los Convention provides prescriptive and enforcement jurisdiction with regard to pollution from vessels.83 80 81 82 83

los Convention Article 56(1)(a). Churchill and Lowe, The Law of the Sea, 169. los Convention Articles 208, 210, 214 and 216. los Convention Articles 211(5) and 220.

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When exercising both their sovereign and jurisdictional rights, the coastal State shall have, according to Article 56 (2), “due regard to the rights and duties of other States” and shall “act in a manner compatible with the provisions of this Convention.” The rights and duties of other States in the eez are regulated in Article 58. It follows from Article 58(1)(a) that in the eez, all States: whether coastal or landlocked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms,… Article 58 (1) states that “all States…enjoy…the freedoms referred to in ­Article 87 of navigation and overflight and of the laying of submarine cables and pipelines,” which implies that other States enjoy the freedoms of the high seas that are explicitly included in this provision. Fishing and marine scientific research, which are part of the freedoms of the high seas according to Article 87, are not included and, thus, are not within the rights of other States in the eez.84 It follows from Article 58 (1) that the freedoms of the other States can be enjoyed “subject to the relevant provisions” of the los Convention. This relates, inter alia, to the sovereign rights and the coastal State jurisdiction over the marine environment in the eez.85 The other States’ freedom of navigation is thus subject to the provisions of coastal State jurisdiction over vessel source pollution in Part xii. Similarly, the right to lay submarine cables and pipelines is subject to Article 79, which provides the coastal States with a right to adopt measures for exploiting the resources at the continental shelf and to prevent pollution from pipelines.86 The freedoms that other States are provided in the eez, therefore, are limited.87 Moreover, Article 58 (3) includes a duty that corresponds with Article 56(2).88 Hence, in the same way as the coastal States must have due regard for the rights and duties of other States, other States must, when exercising their freedoms, “have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State…”.

84 Compare the los Convention Articles 58 and 87. 85 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 361. 86 Ibid., in note 6. 87 Churchill and Lowe, The Law of the Sea, 264. 88 Ringbom, The eu Maritime Safety Policy and International Law, 389.

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This shows that the rights and duties of States in the eez attempt to balance the coastal States’ need to control and protect their marine areas and resources. Both coastal State jurisdiction and flag State jurisdiction are represented in the zone, and the legal status of the eez has been widely discussed in theory.89 Today, it is generally accepted that the eez as a maritime zone has a sui generis character, in light of which there is no presumption that activities occurring within this zone that are not identified in Article 56 or 58 are subject either to the high seas freedoms or the full sovereignty of the coastal States.90 As for unattributed rights and duties, los Convention Article 59 makes it clear that a conflict between the interests of the coastal States and other States should be resolved on the basis of equity and the criteria set out in the privsion. 2.4.3 The Legal Basis for Establishing mpas in the eez The jurisdictional right of the coastal State to establish mpas in the eez have been contested in legal literature.91 These views may, however, be explained by confusion relating to the concept of mpas.92 Czybulka and Bosecke point to two explanations for the conflicting views concerning the legitimacy of mpas in this zone. First, they argue that the establishment of mpas has been wrongfully understood as a “territorial claim”; secondly, they point to the freedom of navigation and the risk of violating this principle by establishing

89 90

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92

Churchill and Lowe, The Law of the Sea, 165–166 and Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 362. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 362. See also Churchill and Lowe, The Law of the Sea, 165–166. See also discussions in Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (Leiden: Martinus Nijhof Publishers, 2007), 61–69. See discussion in Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 334–335 with further references. See also discussions in Rainer Lagoni, “Marine Protected Areas in the Exclusive Economic Zone,” in International Marine Environmental Law. Institutions, implementation and innovations, ed. Andree Kirchner (The Hague: Kluwer Law International, 2003), 157–167. Detlef Czybulka and Thomas Bosecke, “Marine Protected Areas in the eez in Light of International and European Community Law – Legal Basis and Aspects of Implementation,” in Progress in Marine Conservation in Europe: NATURA 2000 Sites in German Offshore Waters edited by Henning von Nordheim, Dieter Boedeker and Jochen C. Krause (Berlin/ Heidelberg: Springer Verlag, 2006), 27. About mpas and the principle of freedom of the sea, see also Scovazzi, “Marine Specially Protected Areas under Domestic Legislation,” 19–21.

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mpas.93 ­Today, however, there appears to be broad consensus in the legal literature concerning the right to establish mpas in the eez.94 As described above, according to Article 56, the coastal State enjoys s­ overeign rights over living resources and jurisdiction to protect and conserve the marine environment. Articles 61–63 in Part v include obligations to manage and conserve living resources in the eez, whereas Part xii, Articles 192–194 contain general obligations to protect the marine environment. The obligations to protect and preserve the marine environment are broad enough to cover the use of mpas as a possible measure for complying with their purposes.95 ­Moreover, international conventions addressing mpas and the target of establishing networks of mpas as endorsed by several international instruments and organizations, presuppose that the coastal States have the right to establish mpas in the eez.96 This is reflected in practice, as states are also establishing mpas in their eezs.97 It may be asked whether the provisions in Part v to manage and conserve living resources provide a sufficient legal basis for the establishment of all types of mpas. Do the conservation measures of the los Convention allow states to take measures only for exploitable, commercial purposes and not to protect marine ecosystems or biodiversity as such?98 The term “living resources” is not defined in the los Convention, but the term could imply that it refers only to species that are harvestable.99 However, when complying with the obligations of conservation of living resources according to Article 61(3) and (4), the coastal States must consider environmental factors and the effects on species associated and dependent on harvested species. This suggests that the term “living resources” does not cover only species that are of economic value for 93

Czybulka and Bosecke, “Marine Protected Areas in the eez in light of International and European Community Law – Legal Basis and Aspects of Implementation,” 31. 94 Ibid., 30–31. 95 See further discussions in Chapter 11. 96 The most important example is the cbd, which according to Article 4 is applicable in the eez, see discussions below in Section 7.2.6. 97 See Ringbom, The eu Maritime Safety Policy and International Law, 475; and Czybulka and Bosecke, “Marine Protected Areas in the eez in light of international and European Community law – Legal basis and aspects of implementation,” 31. 98 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 336. 99 Ibid. See also Daniel Owen, “The Application of the Wild Birds Directive Beyond the Territorial Sea of European Community Member States,” Journal of Environmental Law 13:1 (2001): 49–51.

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humans. Additionally, the general obligations in los Convention Part 12 on protection and preservation of the marine environment apply in all maritime zones, including the eez. According to Article 192, States are under a legal duty to protect and preserve the marine environment. Article 193 requires explicitly that the States must conserve and manage their living resources in light of their obligations to protect and preserve the marine environment.100 Furthermore, Article 194 (5) includes a duty to take the necessary measures to protect “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Article 194 deals with marine pollution, and it is unclear whether Article 194 (5) requires the adoption only of measures against pollution and not protection of habitats or ecosystems from all human activities.101 Nevertheless, the provision supports the notion of protecting and conserving certain areas of the eez for the sake of marine biodiversity.102 Thus, it may be concluded that the los Convention, on the basis of a contextual reading of Parts v and xii, provides a legal basis for mpas established for the purpose of conservation of biodiversity.103 2.4.4 Which Activities May be Prohibited or Regulated within the mpas? A fundamental question when discussing the legal basis for mpas in the eez is which type of mpas may be established in this zone. More precisely, the question to be discussed in this section is what kind of activities may be prohibited or regulated within the mpas and made applicable for foreign vessels and nationals? The starting point is that regulations or protective measures adopted within mpas must not exceed the sovereign rights or the jurisdiction of the coastal States in the zone.104 The authority of the coastal State to prohibit the activities of foreign vessels and nationals within the mpas is limited due to the freedoms of other States and, in particular, their freedom of navigation. Protective 100 This is also confirmed in international case law, in the Southern Bluefin Cases (New ­Zealand v. Japan; Australia v. Japan) [1999] 38 itlos Report 1624, para.70. 101 See further discussions in Section 11.2. 102 The question as to whether the obligations to protect and preserve the marine environment in the los Convention contains a legal duty to establish mpas for the purpose of conservation of biological diversity is further discussed in Chapter 11. 103 See also discussions in Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 334–336. 104 Lagoni, “Marine Protected Areas in the Exclusive Economic Zone,” 159 and Czybulka and Bosecke, “Marine Protected Areas in the eez in Light of International and European Community Law – Legal Basis and Aspects of Implementation,” 27.

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­ easures that go further than the legal competence of the coastal States would m interfere with the balance between the rights and duties of the coastal States and other States. The words “sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources” in Article 56 (1) (a) implies that the coastal States are not provided full sovereignty in this zone.105 The term “sovereign rights” suggests, however, that the rights are derived from the sovereignty of the States. The sovereign rights, however, can be exercised only if the coastal State has proclaimed an eez, in contrast to the territorial sea and the continental shelf, the rights over which are recognized ipso facto and ab initio.106 The term “sovereign rights” is reasonably to be understood as something less than “sovereignty.”107 The sovereign rights of the coastal State are also subject to limitations, which are not found in the territorial sea, over which they have sovereignty. First, Part V of the los Convention includes obligations to conserve and manage living resources. Secondly, the right to enforce regulations adopted in the exercise of sovereign rights over living resources is subject to the obligations of Article 73. Additionally, landlocked states and geographically disadvantaged states have, according to Articles 69 and 70, a certain right to participate in the exploitation of the living resources in the eez. Finally, the coastal States, pursuant to Article 56 (2), must have due regard to the rights of other States when exercising their own sovereign rights. Still, the term “sovereign rights” implies that the competence over natural resources refers exclusively to the coastal States. Only the coastal States are entitled to adopt and enforce regulations on the subject matter. To identify the activities that may be prohibited or regulated within an mpa, the words in Article 56, “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources,” must be defined. The coastal State may, due to the words “exploring and exploiting,” unilaterally regulate all uses within mpas of natural resources, such as mining and fishing. The terms “conserving and managing” are naturally understood, so that they apply to the living resources.108 These terms are broad and include, as described by Burke, “all activities that bear on deciding about the wise use and disposition of living resources.”109 States, therefore, have considerable 105 Gavouneli, The Functional Jurisdiction in the Law of the Sea, 64. 106 Ibid., 64–65. 107 Ibid., 64. 108 Churchill and Lowe, The Law of the Sea, 166. 109 See William T. Burke, The New International Law of Fisheries; unclos 1982 and Beyond (New York: Oxford University Press, 1994), 41.

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i­nterpretative ­discretion and may adopt all the measures desired to conserve and manage the living resources, provided that the regulations do not infringe upon the rights of other States set out in Article 58 (1). Conclusively, the coastal State may regulate the uses of natural resources, also with effect for foreign vessels and nationals. Mining, oil and gas exploitation, sand and gravel extraction, and fishing are activities that may be regulated or prohibited within the mpas.110 For the purposes of conservation and management of natural resources, the coastal States may, for instance, prohibit fishing of certain species at certain times or prohibit certain equipment, such as trawls that may damage coral reefs important for the marine biodiversity. However, the extent to which the coastal State may require foreign fishing vessels to avoid certain areas due to their importance as spawning areas etc., without infringing upon the right of free navigation, is unclear.111 It is assumed that there is a certain scope for regulating the navigation of fishing vessels on the basis of the sovereign rights over living resources.112 Another question is the extent to which the coastal State may regulate and enforce activities that are connected with fishing for the purposes of “conservation and management” of living resources. In the M/V Saiga case, the International Tribunal for the Law of the sea (itlos) considered the question whether bunkering (refuelling of a fishing vessel) falls within the scope of the coastal State’s “sovereign right to explore, exploit, conserve, and manage” the living resources in the eez.113 The case was resolved, however, on another basis. Nevertheless, itlos considered arguments in support of both views. In support of the view that bunkering constituted an independent activity that is covered by the legal regime of the freedom of navigation, itlos held that bunkering is not included in the list of the matters to which laws and regulations of the coastal State may, inter alia, relate according to article 62, paragraph 4, of the Convention.114 In favor of considering bunkering as an activity within the sovereign rights of the coastal State, itlos stated that 110 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 337–338. 111 Churchill and Lowe, The Law of the Sea, 175. 112 See Burke, The New International Law of Fisheries; unclos 1982 and Beyond, 323–330. 113 The M/V Saiga case (Saint Vincent and the Grenadines v. Guinea) [1997] itlos Reports, Case No. 1. 114 Ibid., para. 58.

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laws or regulations on bunkering of fishing vessels may arguably be classified as laws or regulations on activities within the scope of the exercise by the coastal State of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone.115 The question as to whether the coastal State has the competence to regulate bunkering on the basis of their sovereign rights was also dealt with by the ­i tlos in the M/V Virginia case. The case concerned a vessel that was arrested while bunkering a fishing vessel in the Guinea-Bissau’s eez without a bunkering permit, which was required. itlos held that the coastal States, on the basis of their sovereign rights, may adopt regulations on fisheries and fishing-related activities.116 In its decision, itlos pointed out that the list of the matters to which laws and regulations may relate in Article 62(4) is not exhaustive. Moreover, itlos held that it is apparent from the list in article 62, paragraph 4, of the Convention that for all activities that may be regulated by a coastal State there must be a direct connection to fishing. The Tribunal observes that such connection to fishing exists for the bunkering of foreign vessels fishing in the exclusive economic zone, since this enables them to continue their activities without interruption at sea.117 (Emphasis by the author) itlos did not answer the question whether bunkering of fishing vessels could be regulated on the basis of the coastal State’s jurisdiction over the marine environment.118 With this decision, however, it is clear that bunkering of foreign vessels fishing in an eez is within the sovereign rights of the coastal State and, thus, within its competence to regulate and enforce. However, which other activities are in “direct connection” with fishing and, thus, within the sovereign rights of the coastal State, is not clear. The coastal States also enjoy jurisdiction over the marine environment. The scope of the jurisdiction follows from the phrase “jurisdiction as provided for in the relevant provisions of the Convention” in Article 56 (1) (b) (iii). As a result of this formulation, the coastal State does not enjoy a full or complete

115 Ibid., para. 63. 116 The M/V Virginia G Case (Panama/Guinea – Bissau) [2014] itlos Reports 2014, Case No. 19, para. 207–222. 117 Ibid., para. 215. 118 Ibid., para. 224.

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­jurisdiction.119 Hence, the jurisdiction and the right to regulate activities w ­ ithin the mpas must be based on the provisions in Part xii, which define the subject matter on the basis of which the coastal States may exercise their jurisdiction. The difference between “sovereign rights” and “jurisdiction” is discussed in legal literature. When considering the competence of the coastal States, the difference between these two concepts is not great. Both sovereign rights and the jurisdiction of the coastal States provide exclusive rights, but both are functional as they deal with specific subject matters, and must be exercised in light of the corresponding rights and duties that other States enjoy in the zone.120 Which activities are covered by the words “jurisdiction over the marine environment” and may be prohibited and regulated within mpas? Part xii of the los Convention includes general obligations to protect and preserve the marine environment, rare and fragile ecosystems, and the habitat of depleted, threatened, or endangered species.121 Further provisions in Part xii contain the rights and obligations of States with regard to different sources of pollution. The coastal States may unilaterally regulate pollution from land-based sources, from seabed activities, from dumping and from the atmosphere.122 States may thus establish mpas with a stricter regime for seabed activities and dumping or where such activities are prohibited.123 This means that mpas may restrict almost all human activities, the most ­important exception being shipping, to which the coastal States, pursuant to Article 211 (5), may adopt only “generally accepted rules and standards” (gairs). Other activities that are within the rights of other States, such as laying cables and pipelines, are also beyond the competence of what coastal States may regulate within the mpas. However, the coastal State has some authority to establish conditions for the laying of pipelines and cables pursuant to Article 79.124 Marine scientific research is within the jurisdiction of the coastal States, according to Article 56, as the result of which they may unilaterally regulate 119 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 363. Molenaar states: “As will be clarified by the specific provisions in Part xii, this is not an exclusive competence, even if the coastal State intends to exercise it for the purpose of its sovereign rights in the eez.” 120 Gavouneli, The Functional Jurisdcition in the Law of the Sea, 68–69. 121 los Convention Articles 192 and 194(5). 122 los Convention, Articles 208 and 210. 123 Lagoni, “Marine Protected Areas in the Exclusive Economic Zone,” 159. 124 Czybulka and Bosecke, “Marine Protected Areas in the eez in light of International and European Community Law – Legal Basis and Aspects of Implementation,” 32–33.

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this activity. Thus, it follows from Article 246 (3) that other States, “in normal ­circumstances,” must obtain the consent of the coastal State to conduct marine scientific research. However, establishing an mpa could modify the “normal circumstances” so that the coastal States have the authority to prohibit this activity. As the coastal State, according to Article 56 (1) (a), has sovereign rights with regard to “exploring and exploiting” natural resources, it may, according to Article 246 (5) (a), withhold its consent to the conduct of research if the project is of “direct significance for the exploration and exploitation of natural resources.” As for the limits of the regulations that may be adopted on the basis of the sovereign rights and jurisdiction of the coastal States over the marine environment, Article 56 (2) notes that they must take due regard to the rights and duties of other States when exercising their rights and duties in the eez. Additionally, Article 194 (4) defines the scope of the jurisdiction asserting that States shall “refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention.” 2.4.5 The Prescriptive Jurisdiction over Vessel Source Pollution As a consequence of the jurisdiction over the marine environment, coastal States are provided with some prescriptive jurisdiction in Article 211(5) to regulate vessel pollution. An outline of the competence of coastal States to adopt regulations of shipping is provided here, whereas the measures that the coastal States may adopt within mpas established in the eez are discussed in more detail below in Section 18.7. It follows from Article 211 (5) that the Coastal States, for the purpose of enforcement as provided for in Section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. This formulation implies that only international rules and standards “­conforming to and giving effect to generally accepted rules and standards” may be adopted by the coastal States. A number of the provisions in the los Convention contain references to international rules. References to regulations adopted outside the los Convention are used to elaborate the general jurisdictional rules and obligations of the los Convention. The los Convention is also described as having an “umbrella function” in that it sets out the

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jurisdictional competence, and the technical rules are developed by relevant treaties and instruments.125 The objective and overall purpose of Article 211 (5) is to ensure uniformity in international shipping – the same rationale behind the prohibition on the unilateral prescription of cdem standards in the territorial sea. The terms ­“conforming to and giving effect to” imply that prescriptive jurisdiction is limited to adopting regulations that qualify as “generally accepted international rules and standards” (gairs). Consequently, the coastal States may implement only regulations and standards which have this status – they may not adopt rules that are less strict than are gairs.126 This means that the coastal States may adopt only regulations that conform and give effect to gairs to protect mpas established in the eez against vessel source pollution. The legal competence of the coastal States is tied to the concept of gairs. This is, however, a dynamic concept, which evolves with legal developments and which also may be influenced by the development of environmental law, including, for instance, new regulations that incorporate environmental principles, such as the precautionary principle and the obligations on conservation of biological diversity. The concept of gairs and the requirements for qualifying as gairs are discussed in Subsection 18.7.2. The legal basis for establishing and managing mpas rests on the sovereign rights to conserve and manage living resources in Part 5 and on the jurisdiction over the marine environment as provided for in Part 12. The relationship between Parts v and xii, however, is not clear.127 It may be questioned whether the sovereign rights provided in Part v can provide legal competence to regulate navigation for the purpose of “conserving and managing living resources.”128 Whether shipping can be regulated within mpas on the basis of these rights is discussed below in Section 18.9. Even though the legal competence of regulating shipping is limited within the eez, the los Convention contains two special provisions that provide enhanced jurisdiction to regulate shipping within certain areas of the eez. ­Article 211 (6) explicitly refers to a “special area” in which special mandatory measures may be adopted to protect the area against vessel source pollution. This provision is complicated with strict procedural and substantive conditions. For areas that meet the procedural and substantive conditions set out in Article 211 (6), it is possible, with the approval of the imo, to adopt m ­ easures beyond gairs that are available under Article 211 (5). Moreover, coastal States 125 ila Committee, Final Report, 32–33. 126 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 363. 127 Ringbom, The eu Maritime Safety Policy and International Law, 390. 128 Johnson, Coastal state regulation of international shipping, 103–106.

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have broader authority to regulate and enforce navigation within ice-covered areas pursuant to Article 234. According to Article 234, coastal States may adopt “non-­discriminatory laws and regulations for the prevention, reduction, and control of marine pollution from vessels in ice-covered areas.” Chapter 19 investigates the extent to which these provisions are appropriate and adequate to “overcome” the jurisdictional challenges and to ensure protection of mpas against the impacts of shipping. 2.5

mpas on the Continental Shelf

The coastal States have, as set out in Article 77 (1), sovereign rights over the continental shelf “for the purpose of exploring it and exploiting its natural resources.” According to the los Convention Article 76, the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. The continental shelf may extend to 350 nautical miles from the baselines on the basis of the requirements of the Commission on the Limits of the Continental Shelf (clcs) as prescribed in the los Convention Article 76 (8).129 The legal regime and the coastal State’s rights over the continental shelf evolved from the Truman Doctrine and the United States unilateral action in extending their jurisdiction to comprise the natural resources at the continental shelf.130 Thereafter, several other states extended their jurisdiction over the continental shelf. The Convention on the Continental Shelf (the Geneva ­Convention) codified this state practice, when it was adopted in 1958, and established that the coastal States have sovereign rights over the natural resources of the continental shelf.131 In the North Sea Continental Shelf Cases of 1969, the International Court of Justice (icj) found that the Articles 1–3 of the Geneva Convention, including the sovereign rights over the natural resources

129 For more on the spatial scope of the continental shelf and the procedures to establish the outer limits of the continental shelf, see Tanaka, The International Law of the Sea, 138–146. 130 Ibid., 138. 131 Convention on the Continental Shelf, 1958, 499 unts 311 (The Geneva Convention).

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on the continental shelf, were “reflecting, or as crystallizing, received or at least emergent rules of customary international law.”132 As pointed out by Tanaka, it is an agreed opinion today that the coastal State’s rights over the continental shelf are part of international customary law.133 As the continental shelf may extend up to 200 nautical miles from the baselines, the regime thus overlaps geographically with the legal regime of the eez. The coastal States enjoy sovereign rights over the natural resources in the eez pursuant to Article 56, including the living and non-living resources of the seabed and its subsoil. It follows from Article 56 (3), however, that the rights “with respect to the seabed and subsoil shall be exercised in accordance with Part 6,” which deals with the continental shelf. Whereas Article 56 (1) (a) provides that the coastal States have sovereign rights “for the purpose of exploring and exploiting, conserving and managing the natural resources,” it follows from Article 77 (1) that they have sovereign rights on the continental shelf for the purpose “of exploring it and exploiting its natural resources.” One may therefore question whether the purpose of exploring the continental shelf and exploiting its natural resources also provides a legal basis to establish mpas for the purpose of protecting the marine environ­ment and to conserve biological diversity on the extended continental shelf. The term “natural resources” is defined in Article 77 (4); it consists of “mineral and other non-living resources” together with “living organisms belonging to sedentary species.” Sedentary species are defined in the provision as “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.”134 This is understood as explained by Molenaar as “species such as clams, pearl shells, abalone, corals, sponges and other benthic communities.”135 As the coastal States have the exclusive right to explore the sedentary species on the continental shelf, this includes a right to restrict and deny the exploitation of the resources. The term “exploit” is reasonably understood as encompassing the conservation of such species.136 The term “exploring and exploiting” is broad enough to include a right for coastal States to adopt ­measures 132 The North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) [1969], icj. Rep.3, para. 3. 133 Tanaka, The International Law of the Sea, 138. 134 los Convention Article 77(4). 135 Erik J. Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries,” The International Journal of Marine and Coastal Law 20:3 (200): 558. 136 Ibid.

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for management and conservation of natural resources. Following this, coastal States may establish mpas to restrict fishing for sedentary species or other activities, such as mining and oil and gas extraction that may threaten the sedentary species.137 Regulations adopted for mpas on the Continental shelf must not, however, according to Article 78 (2), “infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States” provided for by the los Convention. Other States have certain rights to engage in activities on the continental shelf, such as laying cables as provided in Article 79. Also, regulations to control damage on sedentary species such as corals and sponges may conflict with the freedom of fishing on the high seas. It is assumed, however, that the coastal States may adopt restrictions on such destructive fishing activities.138 It follows from the report of the Ad Hoc Working Group that: some delegations stated that, in conformity with the Convention, the coastal State was fully entitled to adopt any conservation and management measures it deemed necessary to protect its sedentary species on the continental shelf. Those may include the possibility of imposing ­restrictive measures on fishing activities in the high seas over its continental shelf, including on fishing practices that were deemed to have a negative impact on sedentary species.139 The regulation of fisheries activities that may threaten sedentary species on the continental shelf may be legitimate and not “unjustifiable interference” with the freedom of fishing on the high seas. However, as also follows from Article 78 (2), conflicting interests must be carefully considered when the coastal States establish mpas and restrict activities, such as fishing on the high seas over its continental shelf, to protect and conserve the sedentary species. More appropriate than such unilateral actions would be to approach the relevant Regional Fisheries Management Organization (rfmo) and call for appropriate 137 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 337. 138 Frank, The European Community and Marin Environmental Protection in the International Law of the Sea: Implmenting Global Obligatios at the Regional Lawvel, 337. For a thorough discussion of this, see Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries,” 557–562. 139 unga, Report of the Ad-Hoc Open-ended Informal Working Group, to study issues relating to conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, A/61/65 (20 March 2006), para. 22.

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­regulations of the destructive fisheries practice.140 As sedentary species are the only living resources over which the coastal State has a sovereign right on the basis of the continental shelf regime, it is a challenging question whether the coastal State is competent to establish mpas and adopt protective measures to conserve biological diversity or seabed ecosystems on the extended continental shelf.141 An interpretation of the wording in Article 77 (1) and (4) suggests that the coastal State does not have such jurisdiction. However, the coastal States are obliged to protect and preserve the marine environment, including rare or fragile ecosystems, habitats of depleted, threatened or endangered species, and other forms of marine life, due to Articles 192 and 194 (5).142 This suggests that the coastal States have jurisdiction to establish mpas to conserve biological diversity on the continental shelf. However, it is reasonable that an mpa established on the extended continental shelf for the purpose of protecting the biological diversity or an ecosystem on the extended continental shelf, to be legitimate, is of vital importance for protecting the interests of the coastal State. Moreover, the regulations adopted within such mpas must not as provided in Article 78 (2) “infringe or result in any unjustifiable interference” with the freedoms of the los Convention. It must be further considered what regulations that could be a justifiable interference with the freedoms of the high seas.143 However, as also pointed out by Mossop such unilateral coastal State measures that may interfere with the freedoms of the high seas, is likely to lead to disputes between states.144 States should therefore in stead seek to cooperate with each other in establishing mpas. An example of such international cooperation is the establishment of mpas under the ospar Convention. The ospar network of mpas includes also mpas on the extended continental shelf.145

140 See Molenaar, “Addressing Regulatory Gaps in High Seas Fisheries,” 562. 141 The questions is discussed by Joanna Mossop, “Reconciling activities on the extended continental shelf with protection of the marine environment,” in Resarch Handbook on International Marine Environmental Law, ed. Rosemary Rayfuse (Cheltenham: Edward Elgar Publishing Limited, 2015), 181–186. 142 The content of these obligations is examined below in Section 11.2. 143 For more on this consideration see Mossop, “Reconciling activities on the extended continental shelf with protection of the marine environment,” 183–184. 144 Ibid., 184. 145 ospar Commission, 2014 Status Report on the ospar Network on Marine Protected Areas, Biodiversity and Ecoystems Series, 2015, 4.

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mpas on the High Seas

2.6.1 The Legal Basis for mpas on the High Seas The political developments and recognition of the need to adopt mpas on the high seas raise legal questions as to if and how mpas may legally be established.146 To date, no legal regimes provide a clear legal basis for mpas on the high seas.147 The starting point of the high seas may be found in los Convention Article 87, which states that the “high seas are open to all States” and that the principle of freedom of the sea applies. This means that all States enjoy certain freedoms in high sea areas, such as the freedom of navigation, over flight, laying submarine cables and pipeline, fishing, and scientific research.148 Although the los Convention does not directly provide a specific legal basis for the establishment of mpas, the States are under a general obligation to protect the marine environment, which encourages the use of area-based management measures.149 In addition to the general duty to protect and preserve the marine environment under Article 192, Article 194 (5) requires States to take such measures that are necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. This obligation is relevant to the use of mpas, as this may be the necessary measure to protect an ecosystem or a habitat as prescribed in the provision. 146 Key questions with regard to mpas on the high seas are addressed in Robin Churchill, “The growing establishment of high seas marine protected areas: implications for ­shipping” in Shipping, Law and the Marine Environment in the 21st Century: Eerging C ­ hallenges for the Law of the Sea – Legal implications and Liabilities, edited by R. Caddell and R. Thomas (Oxford: Lawtext Publishing, 2013), 53–88. See also Petra Drankier, “Marine Protected Areas in Areas beyond National Jurisdiction,” The International Journal of Marine and Coastal Law 27 (2012): 291–350 and Kristina M. Gjerde and Anna Rulska-Domino, “Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead,” The International Journal of Marine and Coastal Law 27:2 (2012): 351–373. 147 The new implementation agreement will most likely include mpas. See discussions above in Section 1.4.2. 148 los Convention Article 87. 149 Gjerde and Rulska-Domino, “Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead,” 356.

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The obligations to protect and preserve the marine environment, including habitats and rare and fragile ecosystems may thus be regarded as legal bases for mpas as a possible legal tool for ensuring the protection and conservation of marine biodiversity and ecosystems.150 As Part xii of the los Convention applies in all maritime zones, these obligations are applicable to activities ­carried out on the basis of freedom of the seas and the legal regime of the high seas. However, as no States have sovereignty or sovereign rights over marine resources on the high seas, no States are entitled unilaterally to define and ­designate high seas areas as mpas or to adopt regulations on foreign vessels or other activities. This also follows from Article 89, which states that no “State may validity purport to subject any of the high seas to its sovereignty.” In particular, this is the case if the regulations within the mpas apply to other than the nationals and vessels of the state that establishes them.151 A State may adopt regulations that apply to its own nationals and its own vessels when they are exercising the freedom of the seas within a designated area of the high seas, but this would not efficiently protect the environment.152 Another question is whether states may enter into agreements to designate an mpa on the high seas where specific conservation measures apply. As all States enjoy the freedom of the high seas, the logical starting point is therefore that all states must agree to the establishment of mpas where these freedoms are restricted.153 However, the los Convention allows and requires ­cooperation between States on global and regional levels.154 Furthermore, ­Article 118 requires States to cooperate with each other in the management and conservation of living resources in the high seas. mpas that are limited to prohibitions or restrictions of fisheries have also been established by such organizations on the high seas in the Mediterranean, the North-East Atlantic and in Antarctica.155 With regard to cooperation for the protection and preservation of the ­marine environment, it follows from Article 197 that:

150 The question whether the general obligations may include a duty to establish mpas is further discussed in Chapter 11. 151 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 60. 152 Ibid., 59–60. 153 Erik J. Molenaar and Alex G. Oude Elferink, “Marine protected areas in areas beyond ­national jurisdiction: The pioneering efforts under the ospar Convention,” Utrecht Law Review 5 (2009): 9. 154 Ibid. 155 Scott, “Conservation on the High Seas: Developing the Concept of High Seas Marine ­Protected Areas,” 852.

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States shall co-operate on a global basis and, as appropriate on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment taking into account characteristic regional features. The obligation to cooperate in Article 197 does not mention mpas specifically, but the use of this tool must be accepted within the wording “formulating and elaborating international rules, standards and recommended practices and procedures.” This creates the opportunity for States to enter into a treaty on the establishment of mpas to comply with the obligation to cooperate to protect the marine environment. As explicitly stated in Article 197, a treaty to establish mpas on the high seas must be consistent with the los Convention. Of course, the treaty could therefore not include any claim of sovereignty in the particular area.156 Also, to ensure that the high seas mpas are consistent with the los Convention, careful consideration must be given both to the selection of areas and to how protective measures may be adopted to ensure compatibility with the freedoms of the high seas. Moreover, cooperation between States through an agreement to designate an mpa and to adopt protective measures can bind only the states that are parties to it. If some states, for instance the Arctic states, were to agree to take measu­res to conserve an ecosystem in the high seas through the establishment of mpas, the resulting restrictions would not apply and be binding on states that were not parties to the agreement.157 In addition to cooperation among states, mpas on the high seas require both coordination and cooperation among different international organizations that have competence to adopt measures to protect certain areas of the high seas, such as the imo, or regional fisheries management organizations, such as the North-East Atlantic Fisheries Commission (neafc).158 At the global level, no treaty establishing mpas on the high seas has yet been concluded.159 Although cbd Article 8(a) requires that the Contracting Parties 156 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 60. 157 Vienna Convention on the Law of Treaties 1969, 115 unts 331 (Vienna Convention), Article 34. See further discussions below in the next subsection on the possibility to adopt regulations on on shipping in mpas on the high seas. 158 Molenaar and Oude Elferink, “Marine Protected Areas in areas beyond national jurisdiction: The pioneering efforts under the ospar Convention,” 19. 159 The new implementation agreement under the los Convention, is likely to include mpas as a measures for conservation of the biological diversity, see above in Subsection 1.4.2.

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establish a system of protected areas, the scope of the cbd extends, due to ­Article 4(b), to the high seas only with regard to “processes and activities” carried out under the jurisdiction and control of a Contracting Party, but not to the components of the biological diversity.160 However, a number of decisions adopted by the cop under the cbd address the use of mpas in the areas beyond national jurisdiction.161 The decisions adopted by the cop recognize the los Convention as the primary legal framework for mpas in the areas beyond national jurisdiction.162 Moreover, in 2008, the cop adopted in the cbd cop Decision ix/20 criteria for identifying mpas in the “open–ended waters and deep sea habitats” which also ­covers areas byond national jurisdiction. Integrated or multi-purpose mpas have been established at the regional level in the Mediterranean Sea, the North-East Atlantic and the Antarctic.163 In 2010, the ospar Commission established the first mpas in areas beyond national jurisdiction. This process is further addressed below in Section 15.6. The Possibility to Adopt Regulations of Shipping in an mpa on the High Seas 2.6.2.1 General This subsection examines how regulations of shipping may be adopted within an mpa on the high seas. More detailed analyses of what kind of regulations of shipping are available to ensure the protection of the marine biodiversity and the marine environment are provided below in Chapter 18. The establishment of mpas on the high seas, which also include protective measures for regulating shipping, raises legal questions whether such measures would be applicable to states other than those that are parties to the treaty or the organization establishing the mpa. Moreover, the extent to which the states are required to involve the imo when adopting such measures is open to question.164 Due to the principle of freedom of navigation on the high seas, the legal starting point is that no States unilaterally can adopt protective measures that infringe on this principle, as this would be a violation of los ­Convention ­Article 87. The international organization imo has a mandate, however, to

2.6.2

160 See further discussions in Subsection 7.2.6. 161 For instance cbd cop Decision VII/5, para. 29–31. 162 Ibid. See also See also Molenaar and Oude Elferink, “Marine Protected Areas in areas beyond national jurisdiction: The pioneering efforts under the ospar Convention,” 11. 163 For an examination of these regional mpas, see Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,”62–74. 164 The questions are also raised by Churchill, ibid., 72–86.

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adopt conventions and instruments to improve maritime safety and prevention of and control of marine pollution.165 Whereas the los Convention contains the main environmental obligations and the jurisdictional rights, the regulations of shipping are primarily developed by the imo. The relationship between the los Convention and the imo is not clarified in the los Convention, but several references to the imo as the “competent international organization” appear there.166 This subsection examines first the role of the imo in the regulation of shipping within mpas on the high seas. It is also questioned whether regulations of shipping adopted by the imo are applicable to all vessels or only to the vessels that are part of the agreement on the basis of which the mpas are established. Following this, the question whether measures that are adopted by the imo can be made applicable to vessels that fly the flag of states that are not party to the treaty on high seas mpas is raised. May navigation within mpas on the high seas be regulated without the involvement of the imo? Also in this case, it is questioned whether such measures have a general application to all vessels, or if they can be binding only upon those that carry the flag of states that are members to the treaty establishing the mpas.167 2.6.2.2 The Adoption of Regulations of Shipping by the imo As mentioned above, a number of articles in the los Convention point to the imo as the competent organization regarding the adoption of measures to ensure navigational safety and to protect the marine environment from vessel source pollution. Article 94 (5) requires that States, when prescribing measures for their vessels, conform to “generally accepted international regulations, procedures, and practices,” which are understood as pointing to those of the imo.168 Moreover, Article 211 (1) requires that States “acting through the competent international organization or diplomatic conference” establish international rules and standards to prevent pollution of the marine environment from vessels and to promote the adoption of routing systems to minimize the threat of accidents. In addition, according to Article 211 (2), States must adopt 165 Convention on the International Maritime Consultative Organization 1948, 289 unts 48 (The imo Convention), Article 1. 166 The relationship between imo and the los Convention is further addressed below in Subsection 18.3.2. 167 These questions are also addressed in Churchill, “The growing establishment of high seas protected areas: implications for shipping,” 72–86. 168 Churchill, “The growing establishment of high seas protected areas: implications for shipping,” 74.

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laws and regulations to prevent pollution from vessels that “at least have the same effect as that of generally accepted international rules and ­standards established through the competent international organization.” Most states that are members of a new treaty establishing mpas on the high seas are also parties to the los Convention and are therefore required to cooperate with the imo in establishing regulations of shipping to protect the marine environment and promote navigational safety.169 Also, the relevant imo conventions, the International Convention for the Safety of Life at Sea170 (solas) and the marpol Convention indicate that shipping regulations within high seas’ mpas require involvement by the imo. It is explicitly set out in the solas ­Convention that this instrument is “recognized as the only international body for developing guidelines, criteria and regulations on an international level” for ships’ routing systems and for ship reporting systems.171 The solas Convention, moreover, requires that routing measures, to be mandatory, must be approved by the imo.172 Furthermore, the establishment of Special Areas under marpol, where stricter regulations on operational discharges apply, requires approval by the imo.173 Conclusively, cooperation with the imo and the adoption of regulatory measures by the imo is the most appropriate way to adopt measures that regulate shipping within mpas on the high seas.174 Are the measures regulating shipping adopted by imo applicable to all vessels or only to the vessels flying the flags of states that are parties to the mpa agreement? The State Parties of the solas and marpol Convention are accounting for about 99 percent of the tonnage of the world’s merchant fleet.175 This means that regulations on navigation, such as the routing, ship 169 Ibid. 170 International Convention for the Safety of Life at Sea 1978, 1184 unts, 278 (solas Convention). 171 The solas Convention, Annex, Chapter 5, Regulations 10(2) and 11(2) See also Churchill, “The growing establishment high seas marine protected areas: implications for shipping,” 73–74. 172 solas Convention, V/10 (1). 173 See Churchill, “The growing establishment of high seas protected areas: implications of shipping,” 82–86. 174 Churchill, The growing establishment of high seas protected areas: implications of shipping, 75. 175 imo, “Status of multilateral conventions and instruments in respect of which the International Maritime Organization or its Secretary-General performs depositary or other functions,” available at http://www.imo.org/en/About/Conventions/StatusOfConventions (accessed December 2015). See also Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 75.

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­reporting measures, or special areas adopted under these imo instruments within certain areas on the high seas will be binding on nearly all vessels.176 As los ­Convention Article 94 (5) requires each State “to conform to generally accepted international regulations” (gairs) and Article 211(2) obliges States to adopt laws and regulations that have the same effect as “general accepted international rules and standards” (gairs), States that are not parties to these imo Conventions but are parties to the los Convention will also be obliged to comply with the navigational measures within the high seas mpas.177 The term “gairs” is not clear and needs to be further defined. It seems to be accepted, however, that “gairs” includes the regulations under the solas Convention and the marpol Convention as well as most of its annexes.178 2.6.2.3

Adoption of Regulations on Shipping without the Involvement of the imo The questions addressed in this subsection are whether shipping within an mpa on the high seas can be regulated without the involvement of the imo, and to what extent such measures would be binding on states other than those who are members of the treaty or organization establishing the mpas. As pointed out by Churchill, solas has a monopoly on regulating routing and reporting measures. Such regulations, thus, may not be adopted without the involvement of the imo.179 Churchill also indicates that this is the case for regulations of vessel source pollution.180 As for regulations of shipping that are not yet regulated by the imo, such as measures to control noise and ballast water discharges, Churchill explains that there is a certain scope for regulation by a treaty or organization without involving the imo.181 Unlike instances when the imo is involved, and measures on the basis of the imo’s regulations are adopted, such measures bind only the states that are parties to the organization or treaty establishing the mpas.182 This means that such measures are also far less effective. However, it may be argued that third-state ships can be required to comply with such regulations.183 As discussed above, Article 192 requires States

176 Churchill, “The Growing establishment of high seas marine protected areas,” 75. 177 Ibid. 178 Ibid. See also ila Committee, Final Report, 39. 179 Ibid., 82. 180 Ibid. 181 Ibid. 182 Vienna Convention, Article 34. 183 Ibid., 82–86.

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to ­protect and preserve the marine environment. Moreover, Article 194 (5) requires States to take the necessary measures to protect sensitive ecosystems, the habitats of endangered species, and other forms of marine life. Moreover, States must cooperate in protecting the marine environment on the basis of Article 197. If a third state disregards shipping measures adopted to protect such an mpa, this could be regarded as violating its obligations on the basis of Articles 192, 194 (5) and 197.184 However, these obligations are broad and general and do not set out absolute duties for the States to avoid all activities that affect the marine environment and the biological diversity. Also, the obligation of cooperation does not clarify how this cooperation should be carried out.185 An additional argument for the possibility of regulating navigation outside of the imo with a binding effect on third states is that navigation according to Article 87 must be carried out “under the conditions laid down by this ­Convention” and with “due regard for the interests of other States in their exercise of the freedoms of the high seas,...”.186 Here, one may argue that an exercise of the freedom of navigation that disregards the interests of the states that have established an mpa on the high seas has not been exercised with “due regard to the interests of other States.”187 Hence, there are arguments that suggest that vessels of third states are legally bound by regulations on navigation within mpas on the high seas. 2.7

The Enforcement Jurisdiction of Regulations and Prohibitions within mpas

To ensure effective protection of mpas against the impacts of shipping, it is crucial that all vessels comply with the regulations. This section provides an overview of the coastal State’s enforcement jurisdiction over regulations within mpas and of how regulations of navigation adopted within mpas established on the high seas may be enforced. When defining the enforcement jurisdiction, the coastal State in the territorial sea, must distinguish between vessels in innocent passage and vessels in non-innocent passage. The coastal State may, according to Article 25 (1), “take the necessary steps in its territorial sea to prevent passage which is not 184 Ibid., 84. 185 See further discussions in Section 11.2. 186 Churchill, “The growing establishment of high seas protected areas: implications for shipping,” 84–85. 187 Ibid. 85–86.

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i­nnocent.” This is understood so that the coastal State may deny, restrict and expel such vessels.188 In practice, coastal States have an unlimited enforcement jurisdiction over vessels that are in non-innocent passage. As for vessels that are in innocent passage, the los Convention distinguishes between the enforcement of regulations adopted to prevent and regulate pollution and enforcement of other types of regulations.189 As for the enforcement of types of regulations other than marine pollution, the obligation not to “hamper the innocent passage,” laid down in los Convention Article 24 (1), defines the limits of the enforcement jurisdiction of coastal States. Moreover, Articles 27 and 28 specify the criminal and civil jurisdiction over vessels.190 With regard to regulations on marine pollution, more detailed regulation on the enforcement jurisdiction is set out in Article 220 (2). According to Article 220 (2), if there are “clear grounds for believing” that a vessel navigating in the territorial sea has violated laws and regulations relating to the prevention, reduction and control of pollution from vessels, the coastal State may undertake physical inspection, and, when the evidence warrants, institute proceedings, including detention of the vessel. The competence includes a right to board the vessel and as argued by Molenaar possibly a right to order the vessel to one of its ports.191 The enforcement jurisdiction in the eez must be distinguished between the enforcement of living resources under Part v and the enforcement with regard to environmental measures under Part xii. The coastal States have sovereign rights over the living marine resources and very broad powers to enforce violations of conservation measures on living resources adopted within an mpa in the eez.192 The coastal State may, according to Article 73, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. The enforcement jurisdiction of the coastal state with respect to pollution differs depending on the sources of marine pollution.193 With regard to dumping, there is according to Article 216 (1) (a), a legal duty for 188 Churchill and Lowe, The Law of the Sea, 349. 189 For more on the distinction between enforcement of pollution measures and other measures, see Ringbom, The eu Maritime Safety Policy and International Law, 387. 190 Ibid. 191 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 246. 192 los Convention, Articles 56 (1) (a) and 73. 193 Thomas Dux, Specially Protected Marine Areas in the Exclusive Economic Zone (eez): The Regime for the Protection of Specific Areas of the eez for Environmental Reasons under I­ nternational Law (Berlin:lit Verlag, 2011), 142.

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the coastal States to enforce laws and regulations “adopted in accordance with this Convention and applicable international rules and standards...” for the prevention of marine pollution from dumping, both within its territorial sea, its eez and on its continental shelf. With regard to pollution from seabed activities that may be caused by exploration or exploitation of oil and gas or mineral resources on the seabed, the coastal States are under a legal duty to enforce their laws and regulations adopted to prevent pollution from this source.194 A similar legal duty also applies to the costal state with regard to landbased pollution as provided in Article 213. The situation is different with regard to the enforcement of measures with respect to marine pollution from vessels. Other States enjoy, as outlined above pursuant to Article 58, the freedom of navigation within the eez. Therefore, the flag State has the jurisdiction to enforce violations by vessels in another state’s eez.195 Thus, the flag State is obliged to ensure compliance with the navigational regulations, such as routing measures and ship reporting requirements. According to Article 211(2), the flag State is obliged to adopt laws and regulations to prevent pollution of the marine environment by their vessels. These laws and regulations “shall at least have the same effect as that of generally accepted international rules and standards” (gairs).196 The flag States are also under a corresponding duty to enforce these laws and regulations as provided in the los Convention Article 217. Therefore, the coastal States enjoy limited, not mandatory, enforcement powers with regard to vessel source pollution in the eez as set out in los Convention Article 220 (3) – (6). The enforcement actions that the coastal State may take depend on the seriousness of the damage or threat of damage or of the discharge.197 According to Article 220 (3), “where there are clear grounds for believing” that a vessel navigating in the territorial sea or in the eez has “committed a violation of applicable international rules and standards” for the prevention of pollution from vessels and regulations of that State conforming and giving effect to such rules and standards, that State may “require the vessel to give information about its identity and port of registry, its last and next port of call” and “other relevant information required to establish whether a violation has ­occurred.” Further, the coastal States may, according to Article 220 (5), 194 los Convention Article 214 (1). 195 los Convention Articles 94 and 220 (4). 196 los Convention 211 (2). 197 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 200.

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­undertake physical inspection of vessels, if there are “clear grounds for believing” that the violation of navigational regulations referred to in (3) may result in a “substantial discharge causing or threatening significant pollution of the marine environment.” Article 220 (6) provides wider enforcement jurisdiction in situations where there is “clear objective evidence” that a vessel navigating in the eez or the territorial sea of a State has in the eez committed a violation referred to in 220 (3) “resulting in a discharge causing major damage or threat of major damage” to the coastline or related interests of the coastal State or to any resources of its territorial sea or eez. In that event, that State may institute proceedings, including detention of the vessel, in accordance with its laws. Consequently, if the violation of the regulations on navigation adopted by the coastal State on the basis of 211 (5) does not lead to a “substantial discharge causing or threatening significant pollution” as referred to in 220 (5) or to ­“discharge causing major damage or threat of major damage” which follows from Article 220 (6), the enforcement actions the coastal State may take, are very limited. Following this, for violations or regulations of shipping within mpas, such as routing measures or cdem standards adopted by the coastal States within the eez, the enforcement of non-compliance depends largely on enforcement by the flag States. With regard to the enforcement of regulations adopted within mpas established on the continental shelf, the enforcement jurisdiction over this zone is not explicitly described in the los Convention. The term “sovereign rights for the purpose of exploring it and exploiting its natural resources” is regarded to include both prescriptive and enforcement jurisdiction.198 However, enforcement of prohibitions on bottom trawling to protect the habitats of sedentary species on the continental shelf beyond 200 miles, may interfere with the ­freedoms of the high sea, such as navigation and fishing. On the high seas, the principle of the flag State jurisdiction applies.199 The flag State has the responsibility to regulate vessel source pollution according to Article 211(2) and to enforce these regulations as provided in Article 217. The effectiveness of navigational regulations within mpas located on the high seas depends on the efforts of the flag State in enforcing non-compliance. In this regard, remote locations, especially in parts of the Arctic, will of course entail practical difficulties in ensuring compliance of the regulations on shipping. As for mpas adopted on the basis of regional cooperation, as described above and as carried out under the ospar Convention, such an agreement does not provide a right or jurisdiction to regulations to enforce the non-compliance of 198 Tanaka, International Law of the Sea, 147. 199 The los Convention, Articles 89 and 94.

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such regulations by third states.200 The State Parties to a regional agreement on mpas on the high seas may, however, agree on mutual enforcement of all vessels that are flying the flag of a State Party. Such an agreement would as explained by Matz-Lück and Fuchs be permissible within Article 311(3) in the los Convention.201 Even if third states were considered bound by the regulations on navigation within mpas on the high seas, on the bases of the obligations to protect the marine environment and to cooperate in protecting the marine environment, this does not mean that violations of the regulations could be enforced.202 The obligations to protect the marine environment, does not exclude or alter the exclusive flag State jurisdiction of the high seas.203 200 Matz-Lück and Fuchs, “The impact of ospar on protected area management beyond national jurisdiction: Effective regional copperation or a network of paper parks?,” 157. 201 Ibid. 202 Ibid. 203 Ibid.

part 2 Development from a Functional to a Holistic Approach

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chapter 3

From a Functional to a Holistic Approach States that are parties to the los Convention and the cbd i.e. are under legal duties to protect and conserve the marine environment and the marine biodiversity, hereby ecosystems, habitats, populations of species, and endangered species, as well as other forms of marine life. The first international obligations to protect the marine environment dealt, however, solely with marine pollution. In particular, in the aftermath of the Torrey Canon disaster, states reacted by adopting international conventions dealing with intervention and liability for oil pollution.1 The international legal regime for management and conservation of living marine resources was mainly developed after the Second World War.2 The 1958 High Seas Fisheries Convention3 was the first global agreement on conservation of marine living resources.4 With the adoption of the los Convention in 1982, the first comprehensive legal framework dealing both with protection of the marine environment and management and conservation of living resources, was agreed upon by the State Parties.5 During the last decades the international community and the states, have however, become increasingly aware of the need to protect the marine environment from a wide range of human activities and to conserve marine biodiversity.6 The particular focus in political instruments, as well as in global and regional environmental treaties, includes mechanisms for the use of area-based management tools to protect unique, rare or vulnerable marine ecosystems or critical habitats, such as mpas. mpa is, however, only one of the tools or mechanisms set out in international law to meet the general international obligations to protect the marine environment and to conserve marine biodiversity. In addition to the development of frameworks for mpas, other concepts and principles such as the 1 Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Oxford: Hart Pub­ lishing, 2011), 116. 2 Tanaka, The International Law of the Sea, 233. 3 Convention on Fishing and Conservation of the Living Resources of the High Seas 1958, 559 unts 285. 4 Ibid. 5 Birnie, Boyle and Redgwell, International Law & the Environment, 382. 6 Ibid., 384.

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precautionary principle, the principle of sustainable development, ecosystem approach and integrated ocean management were introduced to the international environmental legal regime during the 1990s. In particular, Agenda 21, Chapter 17 “Protection of the Ocean and all kinds of seas,” stresses the need for an integrated management approach and introduces new principles and concepts to the los Convention’s existing regime.7 These new environmental principles and concepts have changed the law. This is evident as new environmental principles such as the precautionary principle, as well as obligations to protect the marine biodiversity and ecosystems are included in newer regional instruments such as the Helsinki Convention and the ospar Convention.8 A central element of mpas is the adoption of protective measures to control human activities within the geographically limited area, to conserve biological diversity within this area. By addressing human activities within the protected area, the tool mpa may in this respect be a vehicle for the shift from the sectoral and zonal approach of the traditional law of the sea towards an integrated holistic ecosystem approach to environmental protection. The use of the tool mpas may also be seen as a precautionary action, as it accommodates a ­precautionary approach to the protection of the marine environment by protecting specific areas from environmental threats.9 The establishment of mpas is, moreover, important for achieving sustainable development. Integration of environmental protection and economic development, as well as conservation of living resources, are elements of the concept of sustainable development that may be accomplished through the use of mpas.10 Therefore, the establishment and management of mpas in international law must be looked at in a wider perspective, as part of the legal development towards a holistic integrated ecosystem approach to the marine environment. A reflection on newer environmental principles and on the new integrated approach to protection of the marine environment is important for understanding the concept of mpas and the rationale for this concept. This part of the book provides an overview of the development of the international legal framework for the protection of the marine environment and 7 8 9 10

Agenda 21, para. 17.1. See also Birne, Boyle and Redgwel, International Law & the Environment, 384. Birnie, Boyle and Redgwell, International Law & the Environment, 384. See Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law, 103. For the elements of sustainable development see, Birnie, Boyle and Redgwell, International Law & the Environment, 116–123 and Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 3rd ed. (Cambridge: Cambridge University Press, 2012), 206–217.

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the conservation of marine biodiversity.11 The aim is to highlight fundamental elements of the legal development that are essential in carrying out the later analyses of the obligations to establish mpas in the following chapters. First the international customary obligations developed prior the los Convention are addressed. Following this, the los Convention, with its obligations to protect the marine environment and to conserve living resources is reviewed. Subsequently, newer i­ nstruments, with their new principles and approaches to the protection and conservation of marine biodiversity are examined. The cbd, the concept of biological diversity, and its obligations, are particularly emphasised. Also addressed is how the obligations to protect and conserve marine biodiversity, which include newer environmental principles and concepts such as the precautionary principle and of the ecosystem approach, are implemented at the regional level within the marine Arctic. This includes analyses of the obligations of the ospar Convention, as well the political cooperation and efforts to protect the Arctic marine environment and to conserve the biological diversity under the Arctic Council. 11

For a general overview of the international obligations, see Birnie, Boyle and Redgwell, International Law & the Environment, Chapters 7 and 13. See also Daniel M. Bodansky, “International Law and the Protection of Biological Diversity,” Vanderbilt Journal of Transnational Law, 28 (1995): 623–634.

chapter 4

Pre-los Convention: Principles in Customary Law The regime for protection of the marine environment includes principles of customary international law.1 While treaties are the most-used legal instruments within international environmental law making, customary law is still significant.2 Customary law is important as it establishes legal obligations that apply to all states. The principle of sovereignty over natural resources is a fundamental principle in international environmental law.3 The sovereignty principle is qualified by the states’ duty not to cause transboundary environmental damage, which is also referred to as the no-harm principle.4 The duty not to cause transboundary environmental damage was developed through judicial practice.5 The principle was recognized in the 1972 Stockholm Declaration on the Human ­Environment (the Stockholm Declaration)6 in Principle 21, where it is stated that: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own ­resources pursuant to their environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.7 Whereas the Trail Smelter case and the Corfu Channel case, which the customary rule is founded upon and which dealt with responsibility not to cause transboundary damage on other states, the Stockholm Declaration extends 1 Churchill and Lowe, The Law of the Sea, 332. 2 Birnie, Boyle and Redgwell, International Law & the Environment, 22. 3 More about the principle of permanent sovereignty over natural resources in ibid., 190–192 and Sands and Peel, Principles of International Environmental Law, 191–192. 4 See Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Brill: Leiden/Boston, 2014), 30. 5 Trail Smelter Arbitration (United States v Canada) 1941, iii riaa 1905, Corfu Channel Case (United Kingdom v Albania) [1949] icj Rep 4. For more on these decisions see Birnie, Boyle and Redgwell, International Law & the Environment, 143–147. 6 Stockholm Declaration on the Human Environment, 1972, 11 ilm 1416 (Stockholm Declaration). 7 Stockholm Declaration 21.

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the responsibility not to cause damage “of areas beyond the limits of n ­ ational jurisdiction.”8 Principle 21 in the Stockholm Declaration was later reaffirmed in the 1992 Rio Declaration on Environment and Development (the Rio Declaration)9 Principle 2, and the principle is widely accepted as customary law today.10 The icj confirmed this in the 1996 in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion with the words: The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.11 The principle has since been part of customary international law, and therefore restricts the exercise of the sovereign rights of all states with respect to activities carried out within their jurisdiction and control.12 The obligation of no harm is not an absolute obligation where all environmental damage is prohibited. It follows from the Trail Smelter Arbitration that: no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.13 Although neither the Stockholm Principle 21 nor the Legality of the Threat or Use of Nuclear Weapon Advisory Opinion, which confirms the legal status of the customary rule, mention the threshold of environmental damage, it is ­widely accepted that the obligation not to cause transboundary harm only a­ pplies to environmental harm that has reached the threshold level of s­ ignificance or 8 9 10

11 12 13

Birnie, Boyle and Redgewell, International Law & the Environment, 145. See references to these cases above in fn. 5. Rio Declaration on Environment and Development (1992) 11 ilm 1416 (Rio Declaration). See Arie Trouwburst, “Prevention, Precaution, Logic and Law, The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions,” Erasmus Law Review 2:2 (2009): 111, Sands and Peel, Principles of International Environmental Law, 191 and Birnie, Boyle and Redgwell, International Law & the Environment, 139. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996], icj Reports 226, para. 29. Sands and Peel, Principles of International Environmental Law, 196. Trail Smelter Arbitration, 1965.

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seriousness.14 The case Pulp Mills on the River Uruguay describes the prohibited threshold for environmental damage as “significant damage.”15 It is on this basis argued that the threshold has developed into the prohibition of harm or damage that is “significant”, which is a lower threshold level than “serious.”16 Determining when pollution or environmental damage reaches the threshold of “serious” and “significant,” and when the obligation of the state of its origin arises, may however, be difficult in practice.17 There must also be a high level of scientific certainty for transboundary effects from human activities, before a state is required to take preventive measures to avoid environmental damage. In the Trail Smelter Arbitration, the standard of proof was formulated as a duty to take action only when the consequences or damage was established by “clear and convincing evidence”.18 It did not however, require that the harm has taken place. States are also required to take measures such as monitoring or environmental impact assessments to avoid and prevent transboundary harm, when the risks of an activity are known.19 Following, a state may not allow a practice by its nationals or vessels such as destructive fishing that harms or can harm to the environment of other states or to common areas such as the high seas.20 Oil drilling, for instance, is an activity with known risks to the environment and cannot be carried out by any state without taking necessary preventive measures to ensure harm does not take place – for instance, that a major oil spill does not damage the marine environment of another state.21 14 Beyerlin and Marauhn, International Environmental Law, 41. 15 Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010] icj Rep. 14, para. 101. 16 Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility, 32. See also, International Law Commission (ilc), Draft articles on Prevention of transboundary harm from hazardous activities, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10) (November 2001), Article 2 and Article 3. 17 For more on the threshold level, see Birnie, Boyle and Redgwell, International Law & the Environment, 186–188. 18 This makes the preventive principle different from the precautionary principle, see Birnie, Boyle and Redgwell, International Law & the Environment, 153–154. 19 See Trouwburst, “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions,” 119. See also Draft articles on Prevention of transboundary harm from hazardous activities, Article 3. 20 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea, 15. 21 Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility, 110.

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The responsibility not to cause transboundary damage is closely connected to the preventive principle.22 Whereas both the duty to avoid transboundary damage and the preventive principle require states to adopt preventive measures, the main difference between them is their respective objectives.23 Whereas the first obligation stems from the sovereignty principle, the preventive principle pursues to protect the environment itself.24 Moreover, the preventive principle has a broader scope, as it is not limited to transboundary damage.25 As expressed by Sands and Peel: under the preventive principle, a state may be under an obligation to prevent not only transboundary harm, but also damage to the environment within its own jurisdiction,...26 The preventive principle is reflected in several principles in the Stockholm Declaration.27 Principle 7 states that: States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.28 Some legal writers distinguish between the sovereignty principle and the obligation not to cause environmental damage on the one hand and the preventive principle on the other hand.29 The los Convention also makes this distinction 22

For the preventive principle see Sands and Peel, Principles of International Environmental Law, 190–203. 23 Trouwburst, “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions,” 112. 24 Sands and Peel, Principles of International Environmental Law, 201. 25 Trouwburst, “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions,” 112. 26 Sands and Peel, Principles of International Environmental Law, 201. 27 See Stockholm Declaration Principles 6, 7, 15, 18 and 24. 28 Stockholm Declaration, Principle 7. 29 Sands and Peel, Principles of International Environmental Law, 190–203 and Trouwburst, “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions”, 112–113. Birnie, Boyle and Redgwell, International Law & the Environment, 143–152 are not distinguishing between these principles.

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where the preventive principle is reflected in Article 194 (1) and the duty not to cause environmental damage in Article 194 (2). Regardless whether a distinction is made, both the preventive principle and duty not to cause environmental damage imply an obligation to adopt preventive measures.30 It follows from Article 3 of the Draft Articles on Transboundary Harm that: The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof. The formulation “all appropriate measures” implies an obligation for states to “act with due diligence.”31 In the case Pulp Mills on the River Uruguay the Court first established that “the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory.”32 The Court then explained the due diligence obligations as follows; A State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.33 The Seabed Disputes Chamber further explained that the obligation of due diligence cannot be determined precisely.34 The Chamber noted that: It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity.35

30

Trouwburst, “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions,” 112. 31 ilc, Draft articles on Prevention of transboundary harm from hazardous activities, ­Article 3. See also Birnie, Boyle and Redgwell, International Law & the Environment, 147. 32 Pulp Mills on the River Uruguay, para. 101. 33 Ibid. 34 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) International Tribunal for the Law of the Sea: Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Case No. 17, para. 117. 35 Ibid.

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The duty of due diligence is expressed as the conduct to be expected of a good government.36 It is, therefore, not an absolute obligation of the states to prevent harm that does not occur, but rather an obligation to take the reasonable measures to prevent such damage.37 This implies that the obligation includes procedural duties, such as the obligation to carry out an environmental impact assessment, when activities may have significant transboundary effects.38 Other procedural obligations that are part of the duty to prevent transboundary harm are consultation and notification of other states.39 Consequently, the threshold level for when the states are under a legal duty to adopt preventive measures, is formulated in a broad and general way, leaving the states wide discretion when taking actions to protect the marine environment.40 It was also later acknowledged that the principles of customary law were not adequate to solve the challenges of marine pollution.41 In order to combat marine pollution it was therefore recognized that it was a need for technical and detailed regulation of as well emissions/discharges and liability regimes.42 36 See also Birnie, Boyle and Redgwell, International Law & the Environment, 147–149. 37 See also Beyerlin and Marauhn, International Environmental Law, 42. 38 Sands and Peel, Principles of International Environmental Law, 201. 39 Beyerlin and Marauhn, International Environmental Law, 44. 40 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea, 15. 41 See Alan Boyle, “Marine Pollution under the Law of the Sea Convention,” The American Journal of International Law, 79:2 (1985), 348. 42 Curchill and Lowe, The law of the sea, 332.

chapter 5

The Traditional Approach of the los Convention to Protect and Preserve the Marine Environment and to Conserve Living Resources 5.1 Introduction The los Convention’s obligations are referred to as the traditional approach to the protection of the marine environment and the conservation of the marine living resources.1 In this traditional approach, the management of the oceans is based on a zonal or spatial approach where the oceans are divided into maritime zones.2 The management of these maritime zones has, throughout history, been subject to two different principles – the principle of sovereignty and the principle of freedom of the seas.3 The los Convention’s traditional approach to the management of the oceans is also sectoral, where activities such as shipping and fishing are dealt with separately in the treaty.4 5.2

The Obligations to Protect and Preserve the Marine Environment

5.2.1 General The los Convention is the only international instrument that deals with protection of the marine environment in a holistic way, addressing marine pollution from all sources.5 The los Convention Part xii and its provisions on protection and preservation of the marine environment is a result of the negotiations at the third un Law of the Sea Convention Conference, where it was apparent that there was a need for a comprehensive legal framework for the protection of the marine environment.6 The Convention is described as a 1 Tanaka, “Zonal and Integrated Management Approaches: Reflections on A Dual Approach in International Law of the Sea,” The International Journal of Marine and Coastal Law 19:4 (2004): 483–488. 2 Ibid., 484–486. 3 Ibid., 484. 4 Ibid., 486. 5 Beyerlin and Marauhn, International Environmental Law, 122. 6 Rothwell and Stephens, The International Law of the Sea, 338. See also Alan Boyle, “Marine Pollution under the law of the Sea Convention,” 348–351.

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historical milestone as it includes a separate part with general and more specific environmental obligations.7 The regulations in Part xii are complex, as the provisions include obligations of the protection and preservation of the marine environment and address jurisdictional issues. In this way, Part xii may be characterised as the combination of the jurisdictional rules of the law of the sea and the rules and principles of international environmental law, developing the “international environmental law of the sea.”8 The General Provision on Protection and Preservation of the Marine Environment The starting point of Part xii in the los Convention is the general obligation of States in Article 192, which establishes a legal duty “to protect and preserve the marine environment.” The provision lays down a comprehensive and unqualified duty to protect and preserve the marine environment as a whole.9 Most of the provisions in Part xii of the los Convention deal with marine pollution. Article 192 is, however, broadly formulated and does not specify the activities or environmental damage to which it applies. The phrase “protect and preserve the marine environment” indicates that the legal duty also applies to other human activities that may cause other environmental damage, such as physical degradation from hydrocarbon extractive activities and bottom trawling from fisheries for example.10 This is also supported by Article 193, which maintains the sovereign rights of the States to exploit their natural resources “pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.” Article 192 is further elaborated through Article 194 which sets out duties for the States to take measures to prevent and reduce pollution from all sources. According to Article 194 (1), States shall take “all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source,…”. Moreover, it follows from Article 194 (2) that the States shall also take all measures that are necessary to ensure

5.2.2

7

Nilufer Oral, “Protection of vulnerable marine ecosystems in are areas beyond national jurisdiction: Can international law meet the challenge?” in Unresolved Issues and New Challenges to the Law of the Sea, edited by Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (Leiden/Boston: Martinus Nijhoff Publishers, 2006), 90. 8 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 9. 9 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 23. 10 The duty to protect and preserve the marine environment is further discussed in Chapter 11.

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that activities under their jurisdiction and control do not damage by pollution other States and their environment, and ensuring that pollution from these activities does not spread beyond areas where they exercise sovereign rights. Furthermore, Article 194 (3) specifies the need to address all sources of marine pollution such as those from toxic, harmful or noxious substances from landbased pollution, atmospheric pollution and from dumping as well as pollution from installations. Article 194 (5), requires States to take the necessary measures to protect and preserve “rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” The general obligations in Articles 192–194 apply in all maritime zones, including areas both within and beyond national jurisdiction, and deal with all sources of pollution. These general obligations are further specified in Articles 207–212, where pollution from different sources and activities, such as vesselsource pollution, land-based sources, dumping at sea, seabed activities, and atmospheric pollution, are addressed and regulated. Additionally, Part xii of the los Convention contain procedural obligations, which require States to notify other states of imminent or actual damage by pollution, monitor the risks or effects of pollution, and conduct environmental impact assessments.11 As a means for achieving the goal of protection and preservation of the marine environment, the States are required by Article 197, to cooperate on a global, and as appropriate on a regional level, directly or through competent international organizations, in the development of international rules, standards, and recommended practices and procedures. 5.2.3 Customary Law and the General Obligations of the los Convention With Article 192, the los Convention establishes for the first time in global treaty, a general obligation of states to “protect and preserve the marine environment.”12 Article 193 confirms the sovereign right of states to exploit their natural resources which is part of customary law and expressed in Principle 21 of the Stockholm Declaration. This right is, however, expressed in a more stringent way than in Principle 21 of the Stockholm Declaration, as the sovereign rights must be exercised in accordance with the duty in Article 192 to protect and preserve their marine environment.13 The duty in Article 192 to protect and preserve the marine environment also has a wider scope, as it applies to the marine environment as a whole, 11 los Convention, Articles 198, 202 and 206. 12 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 23. 13 Birnie, Boyle and Redgwell, International Law and the Environment, 387.

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including the states own environment, whereas the older customary obligation relates to transboundary environmental damage on the territory of other states or areas beyond national jurisdiction. Article 194 confirms that the general obligation to protect and preserve the marine environment in Article 192 applies to the whole marine environment.14 The legal duty in Article 194 (1) requiring the states to prevent, reduce, and control pollution of the marine environment from all sources, codifies the preventive principle as expressed in the Stockholm Declaration Principle 7.15 Article 194 (2) incorporates the responsibility, as expressed in the Stockholm Principle 21 and the Rio Declaration Principle 2, to prevent damage by pollution from activities under a state’s jurisdiction occurs in areas beyond where it exercises sovereign rights.16 There are many arguments in favour of the view that the general obligations on the protection of the marine environment in the los Convention are now accepted as customary international law. Widespread state practice with both national and international regulation of marine pollution supports this view. It follows from Agenda 21 in its Chapter 17 that: International law, as reflected in the provisions of the United Nations Convention on the Law of the Sea … referred to in this chapter of Agenda 21, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources.17 (Emphasis added by the author). Although Agenda 21 is not legally binding, the instrument has gained wide support by many states, which have endorsed the view that the provisions of Part xii of the los Convention reflect customary international law.18 Furthermore, several legal writers maintain that the general obligations to protect and preserve the marine environment from all sources of marine pollution, as ­expressed in the los Convention Articles 192–194, now has the legal ­status

14 15 16 17 18

Rothwell and Stephens, The International Law of the Sea, 343. Robin Warner, Protecting the Oceans beyond National Jurisdiction: Strengthening the International Law Framework (Leiden: Martinus Nijhof Publishers, 2009), 48. Rothwell and Stephens, The International Law of the Sea, 343. Agenda 21, 17.1. See also Birnie, Boyle and Redgwell, International Law & the Environment, 387. Sands and Peel, Principles of International Environmental Law, 350.

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of customary law.19 Birnie, Boyle and Redgwell, argue that the extensive acceptance of various treaties embodying obligations to protect the marine environment, both at the global and regional level, as well as the consensus of the states when negotiating Part xii, suggests that the obligations to protect the marine environment in Articles 192–194 have been part of customary law.20 Another argument in favour of considering these obligations as reflecting customary law is the worldwide ratification and implementation of the los Convention. The question of the status of these obligations is significant when determining the legal duties of states that are not parties to the los Convention. ­Consequently, if accepting Articles 192–194 as customary law, the United States, which is the only Arctic coastal State that is not a party to the los Convention, are still under a legal duty to take measures, such as for instance by establishing an mpa to protect the marine environment. Of particular relevance in relation to legal obligations with regard to mpas is Article 194 (5) which requires States to protect vulnerable habitats marine ecosystems located both within and beyond national jurisdiction.21 The United States has however, acknowledged major parts of the los Convention as reflecting international customary law, including Part xii of the Convention.22 5.3

Obligations on Conservation and Management of Marine Living Resources

Due to the zonal approach of the los Convention, there are different regulations of conservation and management of living resources in the different 19

20 21

22

Birnie, Boyle and Redgwell, International Law & the Environment, 387, Alan Boyle, “­ Protecting the marine environment: Some problems and developments in the law of the sea”, Marine Policy 16:1 (1992): 80. See also Tullio Scovazzi, “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations,” The International Journal of Marine and Coastal Law, 19:1 (2004): 5 and Sands and Peel, Principles of International Environmental Law, 350. Birnie, Boyle and Redgwell, International Law & the Environment, 387. See Boyle, “Protecting the marine environment: Some problems and development in the law of the sea,” 80 and Scovazzi, “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations,” 5. See United States (The White House) National Strategy for the Arctic region, 10 May 2013, see also United States (President Ronald Reagan) Statement on United States Ocean Policy, 10 March 1983, See also Johnstone, Offshore Oil and Gas Development in the Arctic under International Law. Risk an Responsibility, 16.

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maritime zones.23 The Convention does not include any specific conservation provisions for internal waters and the territorial sea. The Preamble does ­establish, however, that the States Parties will promote the conservation of their living resources.24 The Convention therefore presumes that states exercise their s­ overeignty in a manner to manage and conserve the marine living resources. Furthermore, Part xii and Articles 192 and 193 apply to the marine environment as a whole. The general obligations in Part xii, therefore restrict States’ exercise of sovereignty when it comes to the management and conservation of living resources in these zones. The most central provisions on marine living resources of the los Convention are established in Part v, which deals with the eez.25 Part v of the los Convention includes obligations on conservation and management of living resources that restrict the sovereign rights over living resources to which the States are allocated in the eez. When the states claim an eez and use the resources in the zone, they must adopt an appropriate conservation and management regime for the living resources that complies with these obligations. Article 61 is the primary provision that deals with conservation of living resources. According to 61(1), the coastal State shall determine “the allowable catch of the living resources in its economic exclusive zone.”26 It follows from Article 61 (2) that when determining the “total allowable catch” (tac), states shall take the “best scientific advice available” into account and “ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.”27 Article 61 (3) requires states to “maintain or restore populations of harvestable species at levels which can produce the maximum sustainable yield” (msy).28 msy is explained as a management objective that: aims at maintaining the productivity of the oceans by permitting taking of only that number of fish from a stock that is replaces by the annual rate of new recruits (young fish of harvestable size) entering the stock.29 23 Tanaka, The International Law of the Sea, 234. 24 los Convention, Preamble, para. 4. 25 Churchill, The Law of the Sea, 288. 26 Burke describes “allowable catch” as the most “fundamental concept” in the fishery regime of the los Convention. See Burke, The New International Law of Fisheries; unclos 1982 and Beyond, 44. 27 Birnie, Boyle and Redgwell, International Law and the Environment, 717. 28 More about the concept msy, see ibid., 590–593. 29 Ibid., 591.

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When taking these measures the coastal States shall take into consideration “the relevant environmental and economic factors” such as “the economic needs of coastal fishing communities” and “the interdependence of stocks.” The requirement to maintain the species “at levels which can produce the maximum sustainable yield” in Article 61 (3) indicates, however, that the focus of the conservation measures of the los Convention is on the conservation of the living resources to maintain them for exploitation, rather than environmental considerations such as the ecological interactions between species and their habitats. The obligation in Article 61 (4) requires that the coastal State shall take into consideration the effects of fishing on associated and depended species “with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened.” Although the los Convention takes a zonal approach to the conservation of living resources, it acknowledges at the same time that species wander between the eezs of different states and in areas beyond or adjacent to the eez, as it provides specific regulations for shared and straddling stocks in Article 63, and for highly migratory species in Article 64. As for the high seas, the starting point for conservation of marine living resources is the freedom of fishing laid out in Article 87. This freedom is, however, not without restrictions. First, it follows from Article 87 that the freedom is subject to conditions laid down in the LOS Convention. According to Article 116, all states have the right to engage in fishing on high seas subject to (a) their treaty obligations, (b) the rights and duties provided for in articles 63 (2) and 64 to 67 and (c) the provisions of ­Section 2 in Part vii. Article 117 also sets a duty that States cooperate with respect to their national measures for the conservation of the living resources if the high seas. Moreover, Article 118 requires States to “cooperate with each other in the conservation and management of living resources in the areas of the high seas.” Article 119 (a) establishes a duty for the states to determine an allowable catch for high seas fisheries and to take measures to maintain or restore fish populations at levels that can produce msy. Moreover, states shall, according to Article 119 (1) (b), take into consideration the effects on species “associated with or dependent upon harvested species” to maintain or restore them “above levels at which their reproduction may become seriously threatened.” Article 119 thus mirrors the obligation in Article 61, applicable in the eez.30

30

Rothwell and Stephens, The International Law of the Sea, 304.

chapter 6

Developments since 1982: The Obligations to Protect and Conserve Marine Biodiversity 6.1 General The los Convention was an epoch-making treaty when it was adopted in 1982 as it included global obligations for both the conservation of living resources and the reduction and control of marine pollution from all sources.1 As shown above in Subsection 5.2.2. one may say that Article 192 facilitates an integrated approach to the protection of the marine environment, as it covers all human activities that may cause environmental damage, including conservation of marine living resources.2 The intention or objective to provide a comprehensive framework for all aspects of the law of the sea is also expressed in the Preamble of the los Convention through the statement, “that the problems of ocean space are closely interrelated and need to be considered as a whole” and that they desired to establish “a legal order for the seas and oceans.”3 In spite of the los Convention’s new comprehensive legal framework we have, witnessed increased marine pollution, unsustainable fisheries, and other threats that have resulted in loss of biodiversity and degradation of the marine environment. A growing awareness of the insufficiencies and limitations of the los Convention’s traditional approach when it comes to solving environmental problems may explain the extensive development of the international marine environmental law since the adoption of the Convention in 1982.4 With the zonal- and sector-based approaches to the regulation of human activities, there may be a risk that the interplay between maritime activities and threats, as well as the interactions between species, are being ignored.5 The legal obligations of conserving and protecting marine biodiversity, by i.a. establishing 1 Birnie, Boyle and Redgwell, International Law and the Environment, 383. The writers emphasise that the los Convention in many respects has been a model for the evolution of international environmental law. 2 See also further discussions in Section 11.2. 3 los Convention, Preamble, paras. 3 and 4. 4 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 22. 5 Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea,” 486–488.

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mpas and addressing the environmental problems by other integrated management tools, are thus responses to this negative development. 6.2

United Nations Conference on Environment and Development

The concept of sustainable development is an important element in the development of environmental law since the los Convention was adopted, and has also had significance for the development of the legal regime for protecting and conserving marine environment and biodiversity. The concept, which is reflected in many treaties and instruments was expressed in 1987 by the Brundtland commission as a development “that meets the needs of the present without compromising the ability of the future generations to meet their own needs.”6 Both sustainable development and other principles such as the precautionary principle were adopted in the Rio Declaration at the United Nations Conference on Environment and Development in Rio in 1992.7 The Rio Declaration is generally applicable, to the marine environment, and has also had significance for the development of the legal regime for protecting and conserving marine environment and biodiversity. Even though the Declaration is not legally binding in itself, it has affected the making of international environmental law.8 Many of the principles are referred to in the Draft Articles on Transboundary Harm.9 Moreover, the icj appears to refer to the Declaration through the wording “new norms and standards have been developed, set forth in a great number of instruments during the last two decades” in the case concerning the Gabčikovo Nagymaros Project (Gabčikovo Nagymaros case).10 Furthermore, in the Arbitration Regarding the Iron Rhine (“Ijzeren Rijn) Railway (Iron Rhine Arbitration) the Arbitral Tribunal referred to the Rio Principle 4 and indicates that international law now requires that environmental protection is an integrated part of the development.11 6 7 8 9 10 11

unga, Report of the World Commission on Environment and Development, “Our Common Future,” A/42/427 (5 August 1987), Annex, para. 49. Rio Declaration, Principles 3, 4 and 15. Birnie, Boyle and Redgwell, International Law & the Environment, 112. ilc, Draft articles on Prevention of transboundary harm from hazardous activities, see also ibid. Gabčikovo Nagymaros Project (Hungary v. Slovakia) [1997], icj Rep. 7, para. 140. Arbitration Regarding the Iron Rhine (“Ijzeren Rijn) Railway (Belgium v The Netherlands) (2005) xxvii riaa, 35 para. 59. See also Birnie, Boyle and Redgwell, International Law & the Environment, 112.

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Agenda 21 was also adopted at the Rio Conference. Agenda 21 focuses on the oceans and the marine environment as it includes a chapter that deals with the protection of oceans specifically. This chapter, Chapter 17 includes seven programme areas for protection of the marine environment and for the conservation and sustainable use of the living resources.12 Agenda 21 recognises the los Convention as the legal framework for the programme areas, as the introduction to Chapter 17 states that: International Law, as reflected in the provisions of the United Nations Convention on the Law of the Sea...referred to in this chapter of Agenda 21, sets forth rights and obligations of States and provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources. Although the los Convention clearly is acknowledged as the environmental regime, Agenda 21 also states that new approaches are required. These approaches are to be “integrated in content and are precautionary and anticipatory in ambit.”13 Each of the programme areas of Chapter 17 in Agenda 21, include basis for action, objectives, activities, and means of implementation. One of the programmes covers the integrated management and sustainable development of marine areas.14 In this programme coastal States commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdictions.15 Chapter 17 also sets out programmes for “marine environmental protection” and “sustainable use and conservation of marine living resources under national jurisdiction.”16 Protected areas are referred to as one of the activities the state should carry out in a number of the paragraphs in Chapter 17, and encourages states to preserve habitats, rare and fragile ecosystems and other sensitive areas.17 Newer environmental principles and concepts such as the precautionary principle, sustainable development and protection of biodiversity that were developed after the adoption of the los Convention are thus introduced to 12 13 14 15 16 17

Agenda 21, Chapter 17, para. 1 (a)–(g). Agenda 21, Chapter 17, para. 1. Agenda 21, Chapter 17, Programme areas A. Agenda 21, Chapter 17, para. Agenda 21, para. 1 (b) and (d). Agenda 21 also includes a programme on sustainable use and conservation of marine living resources on the high seas, see para. 1 (c). Agenda 21, para. 17.30, 17.85, 17.74 (f), 17.71.

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the law of the sea through the Agenda 21. Even though Agenda 21 is not legally binding upon the states, it has had legal significance for the implementation and further development of the environmental legal regime set out in the los Convention.18 Birnie, Boyle and Redgwell observe that Agenda 21 “has had the effect of legitimizing and encouraging legal developments based on these new perspectives.”19 Even though it is a soft-law instrument, it is also argued that it may be taken into account when interpreting and implementing the los Convention.20 The most important outcome of the Rio Conference was, however, the adoption of cbd, the first convention dealing with all biological diversity at a global level, which is further addressed in the next chapter. 18

19 20

Frank argues that Chapter 17 of Agenda 21 has worked “as a catalyst for the implementation and further development of the environmental regime set out by the losc.” Frank, The European community and marine environmental protection in the international law of the sea: implementing global obligations at the regional level, 10. Birne, Boyle and Redgwell, International Law & the Environment, 384. Alan Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” in the Law of the Sea: Progress and Prospects edited by David Freestone, Richard Barnes and ­David M. Ong (Oxford: Oxford University Press, 2006), 54, Birnie, Boyle and Redgwell, International Law & the Environment, 384.

chapter 7

Global Obligations on Conservation of Marine Biological Diversity 7.1 General Several global instruments applicable in the Arctic address the conservation of flora and fauna and also require or provide for the establishment of mpas such as the World Heritage Convention, the Ramsar Convention and the Bonn Convention. All eight Arctic states are parties to the World Heritage Convention, as well as the Ramsar Convention, whereas four Arctic states, Denmark, Norway, Finland and Sweden are parties to the Bonn Convention.1 The Arctic States the Russia Federation, Finland, Sweden, Iceland, Denmark and Norway are members of the regional Bern Convention that aims at protecting the European wildlife. The cbd, which all Arctic states are Contracting Parties to with the exception of the United States, is, however, the primary legal global source for conservation and sustainable use of biological diversity, and for the use of the tool mpas for achieving this purpose. The following analyses focus on the concept of biological diversity and aim to provide an overview of cbd, its objectives and main obligations. 7.2 The cbd Convention 7.2.1 General The cbd was a significant outcome of the un Conference on Environment and Development.2 The Convention was the result of four years of hard negotiations, and was the first international environmental agreement that includes 1 Overview of parties to the World Heritage Convention, http://whc.unesco.org/en/statesparties/, overview of parties to the Ramsar Convention http://www.ramsar.org/document/list-of -the-contracting-parties-and-date-of-entry-into-force-of-the-convention-for-each, overview of parties to the Bonn Convention http://www.cms.int/en/parties-range-states etc. (accessed January 2016). 2 cbd was adopted in Rio de Janeiro 5 June in 1992 and entered in to force on 29 December 1993. It has 196 Parties to the Convention, see https://www.cbd.int/information/parties.shtml (last visited May 2015).

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all biological diversity.3 The earlier instruments on the protection of flora and fauna such as the World Heritage Convention and the Ramsar Convention, among others, were forerunners to the cbd and contributed also to the protection of the biological diversity. The cbd is, however, different from these earlier instruments in several ways. First, the cbd focuses on the biodiversity as such, including its intrinsic values instead of particular species or nature. Secondly, the cbd has a broader scope than the prior instruments on nature conservation as it also includes sustainable use of biodiversity, as an element of conservation.4 The cbd is the first global convention that comprehensively deals with nature conservation, rather than the former treaties that address specific threats or particular habitats or species. With the establishment of cbd, a new comprehensive regime for conservation of biological diversity was created.5 7.2.2 The Concept of Biological Diversity The term biological diversity is defined in Article 2: “Biological diversity” means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. The concept of biological diversity is a rather new concept in nature conservation.6 Whereas the earlier instruments on nature conservation address “fauna 3 For an overview of the negotiations see Françoise Burhenne-Guilmin and Susan CaseyLefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” ­Yearbook of International Environmental Law 3:1 (1992):43–59; Melinda Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” Colorado Journal of International Environmental Law and Policy 4 (1993):141–176; Birnie, Boyle and Redgwell, International Law & the Environment, 612–616 and Cyrille de Klemm and Clare Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems (Gland, Switzerland and Cambridge, uk: iucn,1993), 17–19. 4 Beyerlin and Marauhn, International Environmental Law, 178–179. 5 Birnie, Boyle and Redgwell, International Law & the Environment, 613. 6 The concept was designed by scientists about twenty years ago to group ecological, species and genetic diversity, see Francoise Burhenne-Guilmin, “Biodiversity and International Law: Historical Perspectives and Present Challenges: Where do we come from, Where are we going?” in Biodiversity Conservation, Law + Livelihoods: Bridging the North–south Divide, edited by Michael I. Jeffery, Jeremy Firestone and Karen Bubna-Litic (Cambridge: Cambridge University Press, 2008), 28.

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and flora,” “habitats,” or “species,” the term biological diversity encompasses diversity on three levels; within species, between species and of ecosystems.7 This means that the variations on the genetic level, the level of species, and the level of ecosystems are included. The definition of biological diversity also clearly includes marine biological diversity. The subject matter in earlier nature conservation instruments was mostly threatened and endangered species, or the protection of sympathetic and charismatic species such as whales.8 As for the marine living resources and marine biodiversity, the los Convention has in particular focused on the need to conserve and manage commercial fish stocks. With the introduction of the concept of biological diversity, all nature, including non-commercial species, is the object of protection. However, the concept of biological diversity refers to the variability of life at the genetic, species, and ecosystem levels – not the sum of all life.9 Furthermore, the definition encompasses all life, genes, species, habitats and ecosystems and the diversity within these groups, and covers the complex interdependence between them. The term biological diversity raises a number of legal questions and challenges. The concept of biological diversity is a dynamic term that is difficult to apply in a legal sense. We do not have knowledge about all species and of all interactions between species and within and between ecosystems. Furthermore, the term biological diversity does not make any distinctions concerning the value or significance of the different elements of biological diversity. The definition does not distinguish between wild and cultivated species, or new species and alien species; do these species have the same legal status and protection? Is it equally important to protect all biological diversity? The concept of biodiversity is also difficult to legally apply due to its broad and comprehensive nature.10 Biological diversity is a very complex term; it does not provide any clear limits or priorities for the Contracting Parties when they establish national legislation for implementing the Convention. It is unclear at what level the loss of biodiversity is unacceptable, and when the Contracting Parties are required to take actions for fulfilling their obligations. It is also d­ ifficult to 7 8 9 10

Sands and Peel, Principles of International Environmental Law, 449. Birnie, Boyle and Redgwell, International Law & the Environment, 702. Ibid., 588. Fisher states that “Biodiversity is one of those concepts that does not fit comfortably ­within the legal system,” see D.E. Fisher, “Legal and Paralegal Rules for Biodiversity ­Conservation: A Sequence of Conceptual, Linguistic, and Legal Problems,” Biodiversity Conservation, Law  +  Livelihoods: Bridging the North–south Divide, edited by Michael J ­Jeffrey, Jeremy Freestone and Karen Bubna-Litic (Cambridge: Cambridge University Press, 2008), 95.

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determine when the biological diversity is conserved or when the goal of sustainable use is achieved. The concept of biological diversity thus raises many questions and leaves room for subjective interpretation by the Contracting Parties.11 7.2.3 The Values of Biological Diversity The first recital of the Preamble states that the Contracting Parties are conscious of the “intrinsic value of the biological diversity.” The term intrinsic value is not explained or further described, but it is pointed to as a value that is separate and independent from the “ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity,” which are also expressed in the Preamble. The word “intrinsic” is generally understood as the inherent value of the biodiversity, that all life must be respected, independent of their value for humans.12 The value of the biological diversity from a non-commercial perspective is also acknowledged as the Preamble states that the Contracting Parties are Conscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems in the biosphere.13 Other recitals of the Preamble refer to the value of biological diversity as a biological resource for humans.14 The Preamble moreover states that the Contracting Parties are Aware that conservation and sustainable use of biological diversity is of critical importance for meeting the food, health and other needs of the growing world population, for which purpose access to and sharing of both genetic resources and technologies are essential.15 11

12 13 14 15

Conservation of biodiversity is discussed as an ideal, something that can never be completely realised by Jonathan Verschuuren and Timon Oudenaarden, “The Role of Ideals in Legal Development: Sustainable Development and the Conservation of Biological Diversity as Cases in Point,” in The Importance of ideals. Debating Their Relevance in Law, Morality, and Politics, eds., Wibren Van der Burg and Sanne Taekema (Bruxelles: P.I.E.Peter Lang, 2004), 231–262. Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,”43. cbd, Preamble, para. 2. cbd, Preamble, paras. 4 and 5. The other paragraphs of the Preamble refer mainly to the biological diversity as a ­biological resource; where the value of the biological diversity for humans is underlined.

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Accordingly, the cbd combines both an ecocentric and an anthropocentric approach to biological diversity. 7.2.4 Biological Diversity as a Common Concern The Preamble affirms that “the conservation of biological diversity is a common concern of humankind.”16 The term common concern is not defined and its implications are not clear.17 An important aspect of the common concern approach is that conservation of the state’s own natural resources and biological diversity are of international concern.18 While the convention in Article 3 reaffirms that states have sovereign rights over their own biological resources, there are questions about the relationship between this principle and the concept of common concern.19 This is further addressed below in Subsection 7.2.7.3. It can be argued that common concern means that conservation of biodiversity is the responsibility of all states and that a violation of the conservation obligations concerns not only the affected state, but also the international community. This is true, however, only if an obligation has the status of erga omnes, meaning that it can be enforced by any state, or by the international community of states.20 The icj recognises these obligations in the case ­Barcelona Traction, Light and Power Company, Limited (obiter dictum): In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.21

16 17 18 19 20 21

See inter alia Preamble paras. 20 and 23. See also Birnie, Boyle and Redgwell, International Law & The Environment, 618. cbd, Preamble, para. 1. Birnie, Boyle and Redgwell, International Law and the Environment, 619. Duncan A. French, “A reappraisal of sovereignty in the light of global environmental concerns,” Legal Studies, 21:3(2001): 395. See discussions Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 47–49. About erga omnes of global environmental responsibility, Birnie and Boyle, International Law & The Environment, 99–100. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) [1970] icj Rep. 3, para. 33. See also Beyerlin and Marauhn, International and Environmental Law, 287.

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So far, obligations within human rights law have been primarily characterised as erga omnes obligations.22 Beyerlin and Marauhn argue that environmental obligations that aim at protecting “global environmental goods” such as biodiversity, are of interest for all states and may constitute obligations erga omnes.23 The reference to the biological diversity as a “common concern” in the cbd does not, however, imply that the obligations to protect biological diversity have erga omnes status.24 Even though the content and scope of “common concern” is not clear, it has significance for the legal status of biological diversity. Birnie, Boyle and Redgwell discuss the legal status of biodiversity and the concept of common concern and conclude that: at the very least it does provide some general basis for international action, giving all states an interests in, and the right to conserve, biodiversity and for the parties to the Convention, and even non-parties, to observe and comment upon the progress of others in fulfilling their respective obligations and responsibilities for this purpose, both within their own national jurisdiction and beyond it, as discussed below.25 Although the concept “common concern” remains unclear, one can, as a minimum, argue that conservation and sustainable use of biological diversity is not an issue entirely up to each Contracting Party. Other parties and non-parties have a legitimate right to involve themselves in the regulation of biological diversity also within the national jurisdiction of other states. With regard to the conservation of marine biodiversity, it can also be claimed that the international community has a particular strong interests in the way the states accomplish their international obligations on conservation and sustainable use due to the fluid nature of the oceans, and the fact that, species move within and outside the areas under national jurisdiction, and in the light of the importance of the oceans as a source for food and other resources. The extent to which the Contracting Parties use mpas to fulfil the obligations to conserve the marine environment, may be a prime example of something that other states have legitimate interests in and, therefore, may comment upon the efforts made by other states. 22 23 24

25

Birne, Boyle and Redgwell, International Law & the Environment, 131. Beyerlin and Marauhn, International and Environmental Law, 288. Ulrich Beyerlin and Thilo Marauhn, Law-Making and Law-Enforcement in International Environmental Law after the 1992 Rio Conference, Umwelt Bundes Amt Berichte 4:1997, 1997 (Berlin: Erich Schmidt Verlag, 1997), 17. Birnie, Boyle and Redgwell, International Law & the Environment, 619.

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7.2.5 Objectives According to Article 1, the objectives of the cbd are; the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources,... Article 1 sets out three objectives (i) “conservation of biological diversity”; (ii) “sustainable use” of its components; and (iii) “fair and equitable sharing of the benefits arising out of the genetic resources.” The objectives of the Convention are also expressed in the Preamble, which states that: “conservation of biological diversity is a common concern for humankind” and further reaffirms that “States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.” The Preamble’s final paragraph provides that the Contracting Parties are determined “to conserve and sustainably use biological diversity for the benefit of present and future generations.” Although the Convention distinguishes between the objectives conservation and sustainable use, the Preamble suggests that these two goals are connected to each other.26 It follows from Article 1 that the “objectives of this Convention” are “to be pursued in accordance with its relevant provisions.” This implies that the objectives themselves do not include obligations upon the Contracting Parties, but are to be achieved through the provisions in cbd.27 The objectives of a convention are important factors when interpreting its obligations.28 An outline of the objectives “sustainable use of its components” and “conservation of biological diversity” is therefore provided below. The objective sustainable use is defined in Article 2 as the use of components of the biological diversity: in a way and at rate that does not lead to long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations. 26

27

28

There was debate during the negotiations about the use of these terms see BurhenneGuilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,”49. Geir Ulfstein, “Fisheries Management and the 1992 Convention on Biological Diversity,” in Laws on Marine Environmental Protection in China, Russia and Norway, ed. Hege Brækhus, Det Juridiske Fakultet Skriftserie 50 (2002): 44. See also Birnie, Boyle and Redgwell, International Law & the Environment, 616. Vienna Convention on the Law of Treaties, Article 31 (1).

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Over-exploitation of biological resources that leads to the extinction of species is clearly beyond sustainable use. The term “long-term decline” implies that temporary losses of biodiversity still could be within what is considered to be “sustainable use.”29 The definition does not outline the level of loss or decline of components that would go beyond use in a sustainable manner. From the definition, however, it follows that sustainable use is “maintaining its potential to meet the needs and aspirations of future and present generations.” Through this formulation, the concept of sustainable use is linked to the value of biological diversity for humans and thereby clearly demonstrates the Convention’s anthropocentric approach. However, with the inclusion of “future generations,” cbd takes into account the use of biological diversity on a long-term basis, instead of only short-term security of resources for human consumption.30 The broad definition of sustainable use allows for different strategies for achieving sustainable use. It also leaves room for interpretation with regard to the standard of when the use is sustainable.31 At what level the use is sustainable must be concretely determined. It is, however, a relative standard, as it will depend upon the state of the component or species that is used. Other threats and uses of the particular resource, and the ecosystem as a whole, must also be taken into consideration.32 Since there is not a determined level at which use is sustainable, it is difficult to determine when a state meets its obligation under the cbd. Conservation of biological diversity is pointed to as the prime objective of the Convention.33 The cbd contains broad obligations concerning both in situ and ex situ conservation of biological diversity. In situ conservation is defined as 29 30

31

32 33

Ulfstein, “Fisheries Management and the 1992 Convention on Biological Diversity,” 47. Rüdiger Wolfrum and Nele Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” in Max Planck Yearbook of United Nations Law 4 (2000) eds. Jochen A. Frowein, Rüdiger Wolfrum and Christiane E. Philipp (The Hauge: Kluwer Law International, 2000), 464. See Verschuuren and Oudenaarden, “The Role of Ideals in Legal Development: Sustainable Development and the Conservation of Biological Diversity as Cases in Point,” 237, who question whether it may be able to serve as a criterion due to the wide room for subjective interpretation. Norwegian Ministry of the Environment, nou 2004:28, Lov om bevaring av natur,landskap og biologisk mangfold. (Official Norwegian Report) Oslo 2004, 149. Birnie, Boyle and Redgwell, International Law & the Environment, 622. See also Beyerlin and Marauhn, International Environmental Law, 192 who argue that cbd Article 1 seems to focus on conservation as the main objective of the treaty.

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the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings and, in the case of domesticated or cultivated species, in the surroundings where they have developed their distinctive properties.34 According to cbd Article 2, ex situ conservation relates to “conservation of components of biological diversity outside their natural habitats.”35 As clarified in the wording of Article 9, ex situ conservation is “predominately for the purpose of complementing in-situ measures.” cbd does, not, however, define the term conservation.36 Literally, conservation means preservation, protection or guarding of nature or wildlife.37 The definition of in situ conservation may however, shed light on the understanding of the objective of conservation of biological diversity. First, it must be noted that in situ conservation includes conservation of ecosystems, natural habitats and populations of species. Furthermore, the definition of in situ conservation refers to the “maintenance and recovery of viable populations of species.” The language “maintenance…of viable populations of species” indicates that sustainable use is included as an element of in situ conservation.38 Interpretation of the term “conservation” in the context of the provisions of cbd also suggests that the term “conservation” includes “sustainable use.” Article 8 (c) requires, for instance, that the Contracting Parties “regulate or manage biological resources important for the conservation of biological diversity… with a view to ensuring their conservation and sustainable use.” Regulation of the use of biological resources is thus a measure for achieving sustainable use and for achieving in situ conservation, which article 8 (c) is an element of. Furthermore, Article 8 (l) requires that when “a significant adverse effect on biological diversity has been determined” the state must regulate or manage the process or activity. This implies that the term conservation encompass the protection of the biodiversity from environmental harms and effects. Moreover, Article 8 (f) requires that the Contracting Parties “rehabilitate and ­restore 34 35 36 37 38

cbd, Article 2. cbd, Article 2. The term was purposefully not defined according see Burhenne-Guilmin and CaseyLefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 50. Oxford Dictionaries, available at http://www.oxforddictionaries.com (accessed February 2016). See Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 49–50 and Alan E. Boyle, “The Rio Convention on Biological Diversity,” in International Law and the Conservation on Biological Diversity, edited by Michael Bowman and Cathrine Redgwell (London: Kluwer Law International,1996), 38.

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degraded ecosystems” and “promote the recovery of threatened s­pecies.” ­Commentators also accept that the term “conservation” covers different elements such as protection, restoration, maintenance and sustainable use of biological diversity.39 Other definitions of conservation provided in other instruments relevant to biodiversity conservation may, provide guidance for how the term should be interpreted. The Legal Experts Group under the World Commission on ­Environment and Development provides a general definition of conservation: the management of human use of a natural resource or the environment in such a manner that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future generations. It embraces the preservation, maintenance, sustainable utilization, restoration, and enhancement of the natural environment.40 Just as in this definition, the term conservation in the cbd should be understood in a broad sense, including sustainable use of its components. As a part of the obligations on conservation of biodiversity, the cbd includes conservation measures that require a stricter regime than the “normal” regime that applies in an area.41 The measures in Article 8 (a) concerning protected areas and (f) concerning rehabilitation and restoring of degraded ecosystems and threatened species are reflections of the awareness of the necessity of stricter regimes, or special measures to conserve biodiversity. Consequently, the term conservation, in the context of the cbd encompasses different nuances of conservation; ranging from sustainable use to stricter conservation measures. This is emphasised by Burhenne-Guilmin and Casey-Lefkowitz as they say: “in spite of the vagueness of ‘conservation’, the convention does justice to modern conservation thinking.”42 Writers have pointed out that the Convention recognises 39

Rosemary Rayfuse, “Biological Resources” in The Oxford Handbook of International E­ nvironmental Law, eds. Daniel Bodansky, Jutta Bruneè and Ellen Hey (New York: O ­ xford University Press, 2007), 371–372. See also Boyle, “The Rio Convention on Biological ­Diversity,” 38. 40 Definition adopted by the Legal Experts Group of World Commission on Environment and Development, in Environmental Protection and Sustainable Development (London: Graham & Trotman/Martinus Nijhof, 1986), 9. 41 Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 50. 42 Ibid.

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that sustainable use of the living resources and the ecosystems is an important element of biodiversity conservation, while at the same time acknowledging the need for taking special measures.43 The objective of sustainable use is, therefore, both an objective of its own, and encompassed by the term conservation. A weakness with the objective of conservation of biological diversity is that the threshold or the required level of the state of the nature is vague and it is therefore difficult to determine when the objective is achieved through the implementation of the obligations. 7.2.6 The Application of the cbd in the Maritime Areas The scope of the Convention is established in Article 4. It follows from Article 4 (a) that the Convention applies for “components of biological diversity” within the limits of national jurisdiction. It is, however, established in Article 4 (b) that the Convention also applies: In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction. The jurisdictional application and scope of the Convention is accordingly differentiated in areas within and beyond national jurisdiction. As the jurisdictional scope of the Convention is determined by the national jurisdiction of the states, the jurisdictional zones of the los Convention are decisive for its application. The introducing phrase “subject to the rights of other States” ­further implies that the allocation of jurisdictional rights and duties established in the los Convention is the basis or the prerequisite for the jurisdiction of the cbd in the marine areas.44 The cbd thus applies to the components of biological diversity in areas that are under national jurisdiction, the land territory, the territorial sea, archipelagic waters, the eez and the continental shelf.45 Within these marine areas under national jurisdiction, coastal States that are parties to the cbd, must implement the obligations on conservation and sustainable use of the components of the biological diversity.

43 Ibid. 44 Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 462. 45 See Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Berlin: Springer, 2003), 18.

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The term “activities” and “processes” are not defined in the Convention. The terms are, however, broad and encompass all activities such as transport, industry, and exploitation of natural resources, such as fishing. According to ­Article 4 (b), the cbd applies to the flag State when its vessels are operating in the high seas and in the zones of other states and when engaging in activities such as fishing, navigating, or dumping waste, all of which may damage marine biodiversity.46 Contracting Parties must thus identify and monitor their activities and processes both within their territory and beyond their territory, but within national jurisdiction and control, regardless of where the effects occur, as prescribed in Article 7(c).47 According to Article 8 (l) the Contracting Parties must also regulate or manage an activity identified in Article 7 (c) that may have “significant adverse effect on biological diversity.”48 Furthermore, the obligation in Article 14 (1) (a) may require that the Contracting Parties carry out environmental impacts assessments (eia) before the project is permitted.49 On the other hand, they do not have to adopt conservation measures outside their national jurisdiction to ensure conservation or sustainable use of the components of biological diversity. According to Tanaka, the distinction made in Article 4 between the application of cbd within and beyond national jurisdiction demonstrates that the Convention is based on the traditional zonal approach of the los Convention.50 As a result, the obligations to protect biodiversity in areas beyond national jurisdiction are unclear.51 Nevertheless, pursuant to Article 5 the Contracting Parties must cooperate with each other on conservation and sustainable use of biological diversity in areas beyond national jurisdiction and on matters of mutual interests that may contribute to the transboundary character of biological diversity.52 The application of cbd on the effects that occur beyond the limits of national jurisdiction must also be seen in relation to Article 3, which incorporates the principle reflected in the Stockholm Declaration Principle 21 and the Rio Declaration Principle 2.

46

Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” 259. 47 Birnie, Boyle and Redgwell, International Law and the Environment, 620 and Beyerlin and Marauhn, International Environmental Law, 136. 48 See further discussions on Article 7 below in Subsection 14.5.3. 49 Article 14 and the obligation to carry out eias is discussed below in Subsection 14.5.4. 50 Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea, 146–147. 51 Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” 259. 52 Ibid.

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7.2.7 Principles for the Implementation of the cbd The cbd includes both guiding legal principles and general obligations for ensuring the objectives of the Convention.53 The Preamble includes the precautionary principle. The principle of sustainable development is reflected in the Preamble as well as in the obligations on sustainable use. The principle of sovereign rights over natural resources is set out in Article 3. Articles 6 to 10 contain various measures that the Contracting Parties shall take to achieve the objectives on conservation of biological diversity and sustainable use of its components. 7.2.7.1 The Precautionary Principle The precautionary principle, as expressed in the Preamble, implies that: where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. The conservation of marine biodiversity is a complex issue, which must be looked at in the light of knowledge of the marine environment, interactions between species and ecosystems, and the impact of human activities on the environment. Such scientific knowledge is therefore a prerequisite for conservation about the marine environment. There is still a lack of such knowledge today. This lack of knowledge concerning ecological interactions and potential damage of certain activities indicates that the precautionary principle plays an important role in conservation of marine biodiversity. That this principle appears in the Preamble instead of in the text of the Convention reduces the legal significance of the principle. The precautionary principle is not included in a provision and set out as a management or conservation principle that states must apply, as in the 1995 Fish Stock Agreement, for instance.54 As a consequence, the precautionary principle may not serve as a legal basis or include legal duties in itself when implementing the Convention. On the other hand, the Preamble reflects the intentions and the 53

54

See Chandler about the discussions during the negotiations about the use of principles and general obligations in the text of the Convention, Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 143–146. The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Migratory Fish Stocks, 2167 unts 88 (the Fish Stock Agreement), Article 6.

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­underlying notions of the Treaty.55 The inclusion of the precautionary principle in the Preamble may also signal that the Convention’s provisions reflect it and thereby is implicitly part of the treaty even though it is not explicitly included in the text.56 Article 8 (a) on protected areas may be seen as an application of the precautionary principle. Marr argues that references to the precautionary principle are found in the obligations on protected areas.57 He argues that the cbd, by mandating the establishment of mpas, “provides for an action-guiding version of the precautionary principle by mandating preventive action.”58 Moreover, Article 8(g) requires that the Contracting Parties regulate, manage or control the risks associated with the use and release of living modified organisms and deals with uncertainty. Furthermore, Article 14 1 (a) which requires the states to implement procedures for eias for activities that “are likely to have significant adverse impacts on biological diversity,” may also be seen as a reflection of the precautionary principle. Birnie, Boyle and Redgwell note that the obligation on eias could accommodate that the precautionary principle is not explicitly adopted as a part of the Treaty.59 The normative force of the principle, or the weight it carries when interpreting and implementing the Convention, is not clear. Although vaguely expressed only in the Preamble, it is not without legal significance. Yet it is not easy to determine exactly how and in what situations the precautionary principle is relevant – and how it influences the interpretation – and when this precautionary principle could be decisive when balancing legal arguments. The principle is weakly expressed and the precise content is unclear. Birnie, Boyle and Redgwell also note that the formulation of the precautionary principle in the cbd is weaker than in the Rio Declaration.60 The formulation of the precautionary principle in the preamble of cbd differs from the formulation of the principle in the Rio Declaration Principle 15 where it is established that: Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing costeffective measures to avoid environmental degradation. 55

It follows from the Vienna Convention Article 31 (2), that the preamble is part of the context of a treaty. 56 Marr finds that “The 1992 Convention on Biological Diversity (cbd) contains a number of references to the precautionary principle to marine biodiversity,” see Marr, The Precautionary Principle in the Law of the Sea, 103. 57 Ibid. 58 Ibid., 104. 59 Birnie, Boyle and Redgwell, International Law and the Environment, 620. 60 Ibid.

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As it is expressed in the Preamble, it applies when there is a “threat of significant reduction of loss” of biological diversity. The threshold is thus very high. The principle’s weak normative character, together with the vague and general formulations, makes it difficult to apply since the principle only states that the taking of measures should not be postponed. It does not specify which measures ought to be adopted, nor does it clarify the acceptable level of loss. The formulation of the principle and the fact that it is included in the Preamble thus weakens, the weight of the principle when interpreting the obligations of the cbd. However, the practice of the cop related to conservation of marine biodiversity suggests that the principle has an important role when implementing the Convention. The cop has acknowledged that the precautionary principle is a basic principle for the implementation of the programme of work.61 The cop also states that the precautionary principle has “a central role in guiding all activities undertaken as part of the programme of work, and thus provide the foundation for its implementation.”62 At the ninth meeting, the cop recognised that the Rio Declaration’s principles play an important role in the conservation and sustainable use of marine biodiversity.63 The cop’s statements concerning the application of the precautionary principle strengthen the significance of the precautionary principle when it comes to implementing the obligations on conservation and sustainable use of marine biodiversity. The cop’s practice implies that the precautionary principle is relevant and significant at all stages, including the planning, establishment, and management of mpas. 7.2.7.2 The Principle of Sustainable Development While the principle of sustainable development is reflected in the Convention, it is not expressly included in the Convention. The principle of sustainable development as it is expressed by the Brundtland Commission or in the Rio Declaration is not included in the Convention. Different elements of the principle are however, expressed in the Preamble.64 According to the Preamble, the Contracting Parties are responsible for “using their biological resources in a sustainable manner.” Furthermore it follows from the Preamble that the Contracting Parties are determined to ensure “sustainable use of biological 61

cbd cop Decision VII/5, para. 4. The Programme of Work on Marine and Coastal Biological Diversity was adopted in cbd cop Decision IV/V. Fore more see below in Section 14.2. 62 Ibid. 63 cbd cop Decision IX/20, introduction. 64 For more about the different elements of sustainable development see Birnie, Boyle and Redgwell, International Law & the Environment, 116–122.

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diversity for the benefit of present and future generations.” This expresses the inter-­generational element of sustainable development. The definition of sustainable use in ­Article 2 of cbd contains both the elements of the sustainable use of resources and the inter-generational equity. Sustainable use of biological resources is identified in Article 1 as one of the objectives of the Convention, which is to be achieved through the obligations in Article 6 and 10. 7.2.7.3 The Sovereignty Principle According to Article 3 of cbd the states have: the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. The wording in this provision is similar to that in the Stockholm Principle 21 and Principle 2 in the Rio Declaration. The principle of sovereign rights over natural resources as expressed in Article 3 raises, some legal questions. First, it raises the question of whether a state’s sovereign right to exploit its resources is unlimited or absolute, and whether the environmental responsibility expressed in Article 3 only relates to damage on the environment of other states or damage to areas beyond the national jurisdiction. Another question, which is related to this first, concerns the significance of the sovereignty principle when interpreting the other provisions of cbd including the obligation to adopt measures for in situ conservation, such as the establishment of mpas. It is therefore necessary to define the scope and extension of the sovereignty principle of cbd. Sovereign rights over natural resources as expressed in cbd Article 3 are as shown above in Chapter 4 part of customary law. As Article 3 does not seem to set out anything that does not already follow from international customary law, one may question why the principle was included in an article of its own early in the treaty. The inclusion of the principle in the first substantive provision following the objectives of the treaty and the definition of terms, strongly emphasises the significance of the sovereign rights over the natural resources. The principle is in this way emphasised, and can be seen as a guiding principle for the general obligations on conservation and sustainable use.65 65

The developing countries emphasised the sovereignty principle during the negotiations. For more about the negotiations prior the adoption of Article 3 see Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 145–146.

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When discussing the scope and extension of the principle of sovereignty as expressed in the cbd, it is natural to draw a connection with Article 193 in the los Convention. The wording in the los Convention Article 193 is similar to the wording in Article 3 in the cbd, stating that “States have the sovereign right to exploit their natural resources pursuant to their environmental policies...”. However, Article 193 connects the right over natural resources with a positive duty to protect the environment as it states, “and in accordance with their duty to protect and preserve the marine environment.” In comparison, the principle of sovereign right in cbd is not qualified by any obligations to protect or conserve the environment and biodiversity.66 The placement of the principle before the substantive provisions on sustainable use and conservation further indicates that the principle is a starting point, or a premise for the Contracting Parties’ obligations. Therefore, both the wording of Article 3 that the states enjoy “sovereign rights …pursuant to their environmental policies” and the central placement of the principle could be used as arguments of an understanding of the sovereign rights over natural resources as an unlimited right and that the other following provisions must be interpreted and applied in the light of the sovereignty principle. Still, the principle expressed in Article 3 cannot be seen as an unlimited right for the Contracting Parties. Sovereign rights of states over their own resources do not mean that the rights are absolute.67 Environmental concerns and obligations interfere with the sovereignty principle. The principle of sustainable use, which is also included in the cbd, requires that Contracting Parties exploit their natural resources for the benefit of future and present generations. Furthermore, environmental protection must be integrated with economic development, which is one element of sustainable development, and is accepted as international law.68 In relation to this, Birnie, Boyle and Redgwell, argue that new concepts such as ecological protection imply a redefinition of the sovereignty principle.69 As underlined by these legal writers, the right of sovereignty must be exercised in a responsible manner.70 The principle must furthermore be seen in the light of the concept of ­“common concern” and understood in the context of the obligations on 66

Hans Christian Bugge, Rio-konferansen i rettslig lys in Utvalgte artikler i miljørett ii, eds. Inge Lorange Backer and Hans Christian Bugge, Institutt for offentlig retts skriftserie 9/1994,129. 67 Birnie, Boyle and Redgwell, International Law and the Environment, 146 and 192. 68 Iron Rhine Arbitration, para. 59. 69 Birnie, Boyle and Redgwell, International Law and the Environment, 192. 70 Ibid.

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c­onservation and sustainable use of biodiversity that constrain sovereign rights. The inclusion of the concept “common concern” on the one hand, and the emphasis on national sovereignty on the other hand, shows the tension in the cbd between the national interests of the states and the interests of the international community in ensuring conservation and sustainable use of biological diversity.71 As both of these interests are expressed in the cbd, the principle of sovereign rights must be balanced against the concept of common concern. As the cbd also emphasises biological diversity as a common concern, the treaty must be interpreted and applied so that the interests of the common community also are taken into account. This must necessarily constrain the scope and application of the sovereignty principle. However, whereas the principle of sovereignty is a part of the Convention, the concept of common concern is only set out in the Preamble. The legal scope and significance of the term common concern is, as stated above, also unclear. Nevertheless, this shows that there are limitations of the sovereign rights when the Contracting Parties exploit the biological resources within their national jurisdiction. Having established that the state’s sovereign rights over natural resources are not unlimited the influence of the principle when interpreting the other obligations remains to be seen. Does the sovereign right over natural resources override the obligation to take in situ measures such as mpas, so that the Contracting Parties themselves determine how to fulfil the obligations? Or is the principle a guiding principle that has great influence when interpreting the obligations? It does not follow from the Treaty that this principle is of such a fundamental character that the principle was meant to limit the scope of the obligations.72 The sovereignty principle in Article 3 must be interpreted in the context of the other provisions, which include obligations of sustainable use and conservation of biological diversity. The Contracting Parties have undertaken these obligations, thus the principle of sovereignty should not be applied in a manner that impedes these obligations. In support of this understanding, it must be noted that in the Preamble the Contracting Parties are reaffirming that they are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner. This responsibility of the Contracting Parties is reflected in the 71 72

Beyerlin and Marauhn, Law-Making and Law-Enforcement in International Environmental Law after the 1992 Rio Conference, 16. See Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 143–146, about the negotiations and interpretative statements from the states of the principle.

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o­ bligations set out in the Convention.73 These statements support the view that the Contracting Parties must exercise their sovereign rights in accordance with these obligations, and that the obligations therefore limit the scope and extension of national sovereignty. Conclusively, the principle does not considerably limit the scope of the Contracting Parties’ obligations. The sovereignty principle in the cbd allowing the parties to exploit their natural resources must be exercised in connection with their environmental duties. The principle is not an argument for adopting a restrictive interpretation of the scope and content of the duties to conserve biodiversity. On the other hand, the obligations adopted in the cbd leave much discretion to the Contracting Parties when implementing the obligations. The sovereignty principle may have been an underlying reason for leaving them with such wide discretion when implementing the Convention. The vague formulations and wide discretion make it possible for the Contracting Parties to secure national interests when implementing the obligations. The principle of sovereignty, may therefore, be an argument against strict or far-reaching interpretations of the obligations to which the Contracting Parties are committed. General Obligations of Conservation and Sustainable Use of Biodiversity 7.2.8.1 General The cbd sets out several general obligations dealing with conservation and sustainable use of biodiversity. The obligations are broad, as they include all biological diversity and apply to all activities that may affect biodiversity. Articles 6 to 10 include the most important obligations for the purpose of fulfilling the objectives of conservation of biological diversity and the sustainable use of its components. Article 8, which deals with in situ measures for conservation, including the establishment of protected areas is supplemented by ex situ conservation measures in Article 9. The content and characteristics of Article 8 is discussed more in detail below. Article 6 contains general measures for both the conservation and sustainable use of biodiversity, such as development of national strategies and integration into plans and programmes. Article 6 (a) provides that the Contracting Parties shall develop or adapt existing “national strategies, plans or programs for the conservation and sustainable use of biological diversity.” These strategies and plans shall “reflect, inter alia, the measures set out in this C ­ onvention.” 7.2.8

73

cbd, Preamble, para. 5 and Articles 5–10, in particular Articles, 6, 8 and 10. See discussions in Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,”48.

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Furthermore, Article 6 (b) requires that the Contracting Parties shall integrate “the conservation and sustainable use of biological diversity into relevant ­sectoral or cross-sectoral plans, programmes and policies.” Article 10 sets out general measures for sustainable use of the components of the biodiversity. According to Article 10 (a), the Contracting Parties shall “integrate consideration of the conservation and sustainable use of biological resources into national decision-making,” and according to (b), “adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on the biodiversity.” The general obligations in Articles 6 and 10 influence the establishment of mpas. Plans and strategies for conservation and sustainable use of biological diversity, which reflect measures set out in the Convention, must also include the use of protected areas. Moreover, the requirement to integrate consideration of conservation and sustainable use of biological diversity, and the duty to adopt measures on the use of biological resources, cover the use mpas. Article 7 (a) requires that the Contracting Parties identify the “components of biological diversity important for its conservation and sustainable use.” A reference is made to Annex 1 to the Convention, which includes an indicative list of categories that the Contracting Parties shall have regard to when implementing this obligation. Furthermore, Article 7 (b) requires that the Contracting Parties shall monitor these components. According to Article 7 (c), all Contracting Parties must also identify and monitor processes and activities that “have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity.” The legal duties of Article 7 to provide knowledge about biodiversity and damaging activities are of particular ­importance for the implementation of the obligations on conservation and sustainable use of biodiversity. The significance of this provision for the implementation of the obligations is also acknowledged in the Convention itself, as Article 7 states that the Contracting Parties shall carry out the required measures “in particular for the purposes of Articles 8 and 10.” 7.2.8.2 The Legal Duty of in situ Conservation of Biological Diversity Article 8 contains measures for in situ conservation including the tool protected area. In situ conservation is defined in Article 2 as “the conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.” According to this definition, “in situ conservation” is a method or a process of conservation of biodiversity by conserving ecosystems and natural habitats and populations of species in their natural surroundings. For achieving the in situ conservation of biological diversity, Article 8 requires a range of different measures such as protected areas, protection of

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­ecosystems and habitats in their natural surroundings, rehabilitation of degraded ecosystems and recovery of threatened species, and prevention of introduction of alien species as well as mitigation of threats. Article 8 differs from the other obligations on conservation and sustainable use in cbd as it includes more concrete measures to be taken by the parties. Protected areas are emphasised as a central measure for in situ conservation as Article 8 (a) and (b), as well as (c) and (e), directly relate to this tool. The cop also acknowledges the important role of protected areas for in situ conservation.74 mpas are also identified by the cop as one of the essential tools for conservation of marine and coastal biodiversity.75 Nevertheless, the establishment of mpas is, as reflected in the list of measures reflected in Article 8, among the other measures contained in cbd for achieving in situ conservation of biodiversity. Furthermore the measures for in situ conservation in Article 8 are also to be supplemented by the other obligations of cbd. A relevant question is, therefore, whether Article 8 contains a legal duty of in situ conservation? It is reasonable to read the Articles 1 and 8 together so that the objective of conservation of biological diversity is set forth as a legal obligation of in situ conservation in Article 8. Birnie, Boyle and Redgewell seem to argue a similar proposition when they, in relation to the objectives of the cbd, state that Articles 6–20 of the convention, “translate these guiding objectives into binding commitments in substantive provisions.”76 While Article 8 does not, however, explicitly formulate a legal duty to achieve in situ conservation, such a duty can be implied. The title of Article 8, “In-situ Conservation,” implies that all the measures included in the provision aim at achieving in situ conservation of biological diversity and therefore reflects such a duty. The measures listed in Article 8 clearly aim at achieving in situ conservation as they refer to the conservation of ecosystems, habitats, and species in their natural surroundings, as their objectives. Protected areas referred to in paragraphs (a),(b) (c), and (e) aim, according to its definition in Article 2, “to achieve specific conservation objectives” within a geographical limited area. Paragraph (d) directs the Contracting Parties to “promote the protection of ecosystems… in natural surroundings” and (f) requires the Contracting Parties to “rehabilitate or restore degraded ecosystems and promote recovery of threatened species.” Furthermore, the variation of the listed measures, ranging from protected areas to preventing the introduction of alien species to respect, preserve and 74 75 76

cbd cop Decision VII/8 para. (1). cbd cop Decision VII/5, para. (16). Birnie, Boyle and Redgwell, International Law & the Environment, 616.

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maintain the knowledge of indigenous people, to regulation and management of activities that may have significant adverse effect on biodiversity, indicates that they supplement each other and together purport to achieve in situ conservation of biological diversity. Moreover, Article 8 seems to provide an exhaustive list of measures. This indicates that the listed measures are the measures that necessary to achieve the result in situ conservation of biodiversity. This implies that the measures in paragraph (a) to (m) are parts of a whole, and a reflection of a general duty to achieve in situ conservation. The Preamble also supports the view that Article 8 reflects such a general duty. First, the parties reaffirm that they “are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.” Thereupon they emphasise the significance of in situ conservation of biological diversity as it is stated in the Preamble that: the fundamental requirement for the conservation of biological ­diversity is the in-situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings. That Article 8 is shaped as an obligation to apply different measures for achieving the particular result in situ conservation may also be supported by statements in legal theory. Birnie, Boyle and Redgwell also comment that, Article 8 lists the wide range of measures required to protect the diffuse elements which collectively constitute the essential elements of in-situ biodiversity.77 De Fountabert, Downes and Agardy put mpas in a similar perspective when stating that mpa is “one element of a comprehensive set of broader conservation measures.”78 These statements support the view that the individual conservation measures in Article 8 must be seen as part of legal duty of in situ conservation. The discussion has brought forward many arguments in favour of Article 8 as reflecting a general duty to of in situ conservation. This is not, however, an absolute or clearly defined duty. The required level of ambition remains unclear, as it is not defined when this level or factual situation is achieved. 77 78

Ibid., 623. De Fountabert, Downes and Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,”17.

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Due to the vagueness of the terms and the open-ended characteristics of in situ conservation of biodiversity, it could be argued that the result in situ conservation is not a substantive standard, but rather a goal or an objective.79 The obligations in the cbd on conservation and sustainable use are intended to create legal flexibility and make it possible to take national and local factors into considerations and to adopt measures that can adapt to changed circumstances and new environmental factors.80 Verschuuren and Oudenaarden see the concept of conservation of biological diversity as an ideal in their analyses.81 Although the legal duty of in situ conservation of biodiversity may not provide legal guidance when determining concrete actions, the legal writers emphasize the flexibility this term grants and the role of the concept in the stimulation of the legal development. It is, however, difficult to determine when the result in situ conservation is achieved, and which actions that are necessary to achieve this. On the other hand, it would not be difficult to determine whether a Contracting Party disregards this obligation.82 Even though in situ conservation is expressed in vague terms, it can be said that it requires a certain ecological standard as defined in Article 2, a situation that secure conservation of “ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.”83 This factual situation or living condition is thus a legal criterion for the fulfilment of the obligation in Article 8. There is a minimum level of state action to fulfil the obligation. The general duty of in situ conservation is, therefore, significant to the interpretation and implementation of the measures in Article 8, as they must be viewed in the light of this duty. 7.2.9 The cbd and the Ecosystem Approach The terms “biological diversity” and “ecosystem” were introduced as new legal terms through the adoption of the cbd.84 These new concepts require more holistic approaches to the management of the environment, such as 79 Ebbesson, Compatibility of International and National Environmental Law (Uppsala: Iustus Publishing Company, 1996), 164 where he states that the distinction between goaloriented substantive standards and objectives to be aimed at is not easy to draw. 80 Verschuuren and Oudenaarden, “The Role of Ideals in Legal Development: Sustainable Development and the Conservation of Biological Diversity as Cases in Point,” 241. 81 Ibid.,259. 82 For more general on goal-oriented norms see Ebbesson, Compatibility of International and National Environmental Law, 169. 83 Definition of in situ conservation in Article 2. 84 Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” 249.

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the ­ecosystem approach.85 This subsection focuses on how the ecosystem approach is reflected in the cbd, and the role and function this approach plays within the Convention. There are various definitions and descriptions of the concept of ecosystem approach, but there is, not a universal definition for the ecosystem approach.86 Many different terms are also applied to similar comprehensive integrated approaches to the conservation and management of living resources, such as holistic approach, ocean management and integrated marine management.87 The lack of a common understanding of the content of the approach may also, as pointed out by Henriksen, have consequences for its content and status.88 There is, however, consensus that the ecosystem approach has three core element in that it implies: (1) a holistic management of human activities (2) that is based on scientific knowledge on the structure, components, and dynamics of ecosystems and (3) includes humans in the ecosystems and their needs.89 The cbd defines ecosystem as a “dynamic complex of plant, animal and ­micro-organism communities and their non-living environment interacting as a functional unit.”90 The Convention does not, explicitly require an ecosystem approach, nor does it define this concept. The ecosystem approach is, however, reflected in a number of the provisions of the Convention. Ecosystems and the variability of ecosystems, including marine ecosystems, are included in the definition of biological diversity.91 Therefore, one may argue that all the obligations on the conservation and sustainable use of biological diversity also include the protection of ecosystems, reflecting the ecosystem approach. Two of the Convention`s three objectives also relate to ecosystems: conservation of biological diversity and sustainable use of biodiversity.92 The Contracting Parties also express that they are aware of the importance of conservation of

85 86

Ibid., 250. Hanling Wang, “Ecosystem Management and Its Application to Large Marine Ecosystems: Science, Law and Politics,” Ocean Development & International Law, 35 (2004): 43. 87 Ibid. 88 Henriksen, “Conservation and Sustainable use of Arctic Marine Biodiversity: Challenges and Opportunities,” 265. 89 Arie Trouwburst, “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,” Review of European Community & International Environmental Law, 18:1 (2009): 28. 90 cbd, Article 2. 91 cbd, Article 2. 92 Wang, “Ecosystem Management and Its Application to Large Marine Ecosystems: Science, Law and Politics,” 51.

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the ecosystems for the conservation of biodiversity, as it is noted in the Preamble that in situ conservation is fundamental for conservation of biodiversity.93 The definition of in situ conservation in Article 2 also reflects an ecosystem approach. The aim of in situ conservation to conserve ecosystems and habitats and maintain viable populations of species in their natural surroundings requires a holistic approach, which is reflected through the measures set out in Article 8. A number of the in situ measures in Article 8 specifically refer to ecosystems. Pursuant to Article 8 (d) the Contracting Parties shall “promote the protection of ecosystems.” The Contracting Parties are also required to “rehabilitate and restore degraded ecosystems” pursuant to Article 8 (f). According to (h), they must also prevent “introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.” Consequently, the obligations in Article 8 concerning in situ conservation reflect the ecosystem approach, and may also be seen as an adoption of the ecosystem approach.94 The ecosystem approach thus has a clear legal base in cbd, and is particularly reflected in Article 8. All the cbd’s references to ecosystems and the conservation of ecosystems and habitats in cbd further imply that the ecosystem approach is an underlying notion or philosophy of the Convention.95 The concept of ecosystem approach is thus an integrated part of the Convention, and is relevant to all aspects of the Treaty. Even though the concept ecosystem approach is not expressed as a principle or an obligation of the Treaty, it follows implicitly from the obligations. The ecosystem approach is therefore an obligatory consideration for the Contracting Parties when interpreting and applying the provisions. To conserve ecosystems it is necessary to adopt a holistic integrated approach to human activities and base the management on knowledge about the species and the interactions within them, and take into account the protection of the ecosystem’s physical elements. The ecosystem approach is an inherent and necessary element of conservation of ecosystems. However, the cbd does not clarify how this approach should be applied and how it may solve concrete problems.96

93 94 95 96

cbd, Preamble, para. 11. Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea,” 498. Sam Johnston, “The Convention on Biological Diversity: The Next Phase,” Review of European Community & International Environmental Law,” 6:3 (1997): 225. Trouwburst, “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,” 28.

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The cop describes the ecosystem approach as a method or a framework for implementing the obligations on conservation and sustainable use of biodiversity. The cop states that the ecosystem approach is “a strategy for integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way.”97 The concept is further developed through cop Decisions and principles for the ecosystem approach are adopted.98 The practice within the cbd with the adoption of 12 principles for the ecosystem approach contributes to an understanding of the content of this approach, as well as the function and role of this approach, and therefore provides guidance to the Contracting Parties. The cop has also provided guidelines for implementation of the principles.99 The work carried out within the cop on describing and elaborating the concept of ecosystem approach by establishing principles contributes to making the obligation in Article 8 to adopt in situ measures more operational and give guidance to the Contracting Parties when implementing the obligation. The principles are, however, general, and not easy to apply in concrete cases. The principles are also very broad, making it difficult succinctly to describe the core of the ecosystem approach.100 The cop has noted that when “applying the ecosystem approach, all its principles need to be applied in a holistic way, and appropriate weight given to each, according to local circumstances.”101 At the ninth meeting of the cop in 2008, the cop noted that the ecosystem approach is a useful normative framework, but that it needs to be translated into methods for further application.102 The cop urged the Contracting Parties to “Strengthen and promote the use of the ecosystem approach more widely and effectively...”103 The cop emphasizes the links between the ecosystem approach and the precautionary principle. In the cbd’s implementation guidance, with regard to the principles of ecosystem approach the cop states that: “Given the uncertainty associated with defining the limits to ecosystem functioning under most circumstances, the precautionary approach should be applied.”104 With regard to conservation of marine biodiversity, the cop has further stated that 97 98 99 100 101 102 103 104

cbd cop Decision V/6, A, para. 1. The principles for ecosystem approach are adopted in ibid., B, para. 6. cbd cop VII/11, Table 1. nou 2004:28, 186. cbd cop VII/11, Annex 1, para. 6. cbd cop IX/7, Preamble (a). Ibid., para. 1. (a). cbd cop VII/11, Table 1, Implementation guidelines para. 6.2.

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the ecosystem approach together with the precautionary principle is a basic principle for conservation of marine biodiversity and for the establishment of mpas.105 Here the cop links the precautionary principle and the ecosystem approach when setting forth these as basic principles for the implementation of the programme of work on marine conservation. The links between the two concepts are also examined in legal literature.106 Trouwburst concludes as follows on the relationship between the precautionary principle and the ecosystem approaches: the ecosystem approach should be taken into account in the application of the precautionary principle, whereas the latter is regarded an integral component of applying the ecosystem approach.107 105 cbd cop Decision IV/5, Annex, B, para. 1. 106 Trouwburst, “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,”; Tanaka, A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in International Law of the Sea, 82–87. 107 Trouwburst, “The Precautionary Approach and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,” 36.

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Regional Obligations and Implementation of Obligations on Conservation of Marine Biodiversity 8.1 General The global obligations to protect and conserve marine biodiversity are to be implemented at the national level. The marine ecosystems are however, large and species migrate across the maritime zones of different states. Moreover many threats to the marine biodiversity are transboundary in nature, which require that states cooperate with each other in establishing mpas and other environmental tools for conservation and sustainable use of the marine ­biological diversity. The importance of cooperating at the regional level in protecting the marine environment is emphasized in global legal and political instruments. The los Convention Article 197 requires that States shall “cooperate on global basis and, as appropriate, on a regional basis,... for the protection and preservation of the marine environment.” Moreover, both Agenda 21 and the wssd Plan of Implementation also focus on regional cooperation for protecting the oceans.1 Regional cooperation between states that share the same environmental problems and have the same interests may lead to more specific regulation and to stricter or higher levels of environmental standards; specifications when it comes to allowed discharges from ships, areas where ballast water can be emptied or specifications of species or habitats to be protected.2 The nature of the problems and the geographical and ecological characteristics may also be such that a regional approach will be a more effective way to safeguard the marine environment. There is not however, one comprehensive regional agreement in the marine Arctic. The ospar Convention applies to the Nort-East Atlantic and includes parts of the marine Arctic. The Arctic states of Norway, Denmark, Iceland, Sweden, and Finland, together with other European states

1 Agenda 21, see for instance para. 17 (1) where it is encouraged to take new approaches to the marine protection at the national, regional and global level, para. 30 and wssd Plan of ­Implementation, para. 30 (f). 2 Birnie, Boyle and Redgewell, pointed out that this is particularly true in the North Sea, the Baltic and the Mediterranean, in, International Law and the Environment, 392–393.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_009

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and the European Community, are Contracting Parties to the Convention.3 As Russia is not a party to the ospar Convention, it does not apply to the whole European part of the marine Arctic.4 Since there is no comprehensive regional environmental agreement for the Arctic, and not all of the Arctic states are parties to the global agreements (the los Convention and the cbd), political cooperation among the Arctic states through Arctic Council is important for the protection of the marine environment as well as conservation of marine biodiversity. 8.2 The ospar Convention: Obligations and Principles 8.2.1 General The ospar Convention was adopted in 1992 and came into force in 1998. It contains a comprehensive legal framework for the protection of the marine environment and the conservation of marine ecosystems in the North-East ­Atlantic from effects of human activities.5 The maritime area of the ospar Convention is described in Article 1. The geographical scope of the ospar extends to the east coast of Greenland in the west, south to the Straits of Gibraltar, and to the North Pole in the north.6 The maritime area is divided into five regions where region 1, the Arctic Waters, is the northern part of the ospar region and constitutes approximately 40% of the maritime area of ospar.7 The ospar Convention addresses all sources of marine pollution in addition to other adverse effects of human activities. The conventions that were replaced by the ospar Convention only dealt with marine pollution from

3 For an overview of the Contracting Parties, see http://www.ospar.org/organisation/­ contracting-parties (accessed January 2016). 4 The area of application for the Convention is described in the ospar Convention Article 1(a). 5 For general overviews of the ospar Convention see Louise de La Fayette, “The ospar Convention Comes into Force: Continuity and Progress,” The International Journal of Marine and Coastal Law, 14:2 (1999): 247–297; Ellen Hey, “The International Regime for the Protection of the North Sea: From Functional Approaches to a More Integrated Approach,” The International Journal of Marine and Coastal Law, 17:3 (2002): 325–350; Ellen Hey, Ton IJlstra and André Nollkaemper, “The 1992 Paris Convention for the Protection of the marine Environment of the North-East Atlantic: A Critical Analysis,” The International Journal of Marine and Coastal Law, 8:1 (1993): 1–76. 6 ospar Convention, Article 1 (a). 7 For more information of this region of the North-East Atlantic see http://www.ospar.org/ convention/the-north-east-atlantic/i.

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­certain sources.8 As ospar is broadened to cover also other human activities than activities that lead to pollution, it sets out a more comprehensive regime for protecting the marine environment than the previous agreements. The broadening of the scope of the ospar Convention is also evident in the title of the convention: “Convention for the Protection of the Marine Environment of the North-East Atlantic.”9 The scope of the Convention was also widened by the adoption of Annex v in 1998, which includes obligations on protection and conservation of ecosystems and biological diversity. Although the ospar Convention endeavours to take a comprehensive ­approach and protect the marine environment against all human activities that may have an impact on it, exemptions are made for some activities that are important to regulate for protecting the marine environment and for c­ onserving marine ecosystems and biodiversity. The ospar Convention does not address fishing activities, vessel source pollution and atmospheric pollution.10 A holistic ecosystem approach to conservation of marine biodiversity in this region requires cooperation with other agreements and institutions  such as the relevant regional fisheries organisations in particular the neafc, the eu and imo.11 There is however, a link and call for cooperation between ospar and other organisations in Article 4 (1) of Annex v where it is stated that the ospar Commission shall, if it considers that action relating to management of fisheries is desirable “draw that question to the attention of the authority or international body competent for that question.” Likewise, if it is desirable to take actions relating to maritime transport, the ospar Commission shall, as stated in Article 4 (2) of Annex v, draw the question to imo. This provision proved its importance as the ospar Commission required in a letter to the neafc that attention should be drawn to the damage of trawling on coldwater coral reefs.12 To strengthen the international cooperation and coordination of ­human ­activities, the ospar Commission has agreed on Memoranda 8

9 10 11

12

ospar Convention was replacing the Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircrafts of 15 February 1972 (932 unts 3) (1972) and the Convention for the Prevention of Marine Pollution from Land-based sources of 4 June 1974 (1546 unts 103). The emphasis is added by the author. This point is also made by Fayette, “The ospar Convention Comes into Force: Continuity and Progress,” 253. ospar Convention, Preamble para.12. The interlinkages between ospar and other institutions and agreements are discussed in Tanaka, A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in International Law of the Sea, 153–160. About the cooperation between the ospar commission and neafc see Tanaka, A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in

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of u ­ nderstanding or agreements with a number of relevant organizations and institutions including the neafc and the imo.13 The ospar Convention also includes obligations to undertake joint assessments of the quality state of the marine environment.14 These assessments include assessment of the effects of all activities including the effects of f­ ishing and vessel source pollution.15 The Commission shall according to Annex v ­Article 3 (1) (a) collect and review information of human activities “and their effects on ecosystems and biological diversity.” Consequently, although the ospar Convention lacks the competence within the important fields of fisheries and shipping, it promotes integrated management, in the sense that it provides for assessments of the marine environment within its area of application. The obligations in Annex v, together with the general obligation in Article 2 of the Convention, are of particular relevance and importance for the later analysis of the establishment and management of mpas under the ospar ­Convention. The main focus of the legal analyses of the ospar Convention in this section is therefore on these obligations. Furthermore, it examines how the ospar Convention reflects and implements the ecosystem approach to ocean management. 8.2.2 The Goals of the ospar Convention The goals of the ospar are expressed in the Preamble where it is stated that the Contracting Parties recognise the vital importance of the marine environment and the fauna and flora for all nations and the inherent worth of the marine environment. It is also expressed as an objective of the Convention to: prevent and eliminate marine pollution and to achieve sustainable ­ anagement of the maritime area, that is, the management of human m activities in such a manner that the marine ecosystems will continue to

­International Law of the Sea, 155–156. Information about the neafc in available http:// www.neafc.org (accessed January 2016). 13 See ospar, http://www.ospar.org/news/fisheries-and-environment-bodies-join-forces-tostrengthen-protection-of-the-north-east-atlantic, for information about the Memorandum of Understanding between the neafc and the ospar Convention (accessed January 2016). For more on memorandums of understanding and cooperation agreements between ospar and other organizations and institutions see http://www.ospar.org/about/­­international -cooperation/memoranda-of-understanding (accessed January 2016). 14 ospar Convention, Article 6. 15 ospar Commission, Quality Status Rapport 2010, available at http://qsr2010.ospar.org/ en/downloads.html (accessed January 2016).

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sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations.16 Through this objective, the ospar Convention reflects the principle or concept of sustainable development. 8.2.3 The Structure of the ospar Convention The ospar Convention includes general obligations for the Contracting ­Parties and obligations for the ospar Commission. The Commission governs the Convention and is made up of representatives from each of the Contracting Parties in the Convention.17 Article 2 in the ospar Convention sets out the general obligation for the Contracting Parties to “prevent and eliminate pollution” and to “take the necessary measures to protect the maritime area against the adverse effects of human activities.” This general obligation in ­Article 2 is specified through obligations in Articles 3 to 7. The obligations are further elaborated and specified through Annexes i–v and Appendices 1–3.18 The A ­ nnexes and Appendices are legally binding and have the same legal status, as the obligations established in the text of the Convention.19 The obligations in Articles 3 to 7 and Annexes i–iv cover issues and activities such as dumping, pollution from land-based sources, pollution from off shore sources, and assessment of the quality of the marine environment, which are important issues for the protection and conservation of marine ecosystems and biodiversity. Annex v includes general obligations on the protection and conservation of the ecosystems and the biological diversity. The ospar Convention is organised so that it first sets out general duties upon the Contracting Parties. Additionally, the ospar Commission has a legal duty to develop programmes, means, and measures to achieve the Convention’s goals.20 These are adopted either through decisions or recommendations, which the parties shall adopt.21 This regulatory technique is characterized as a two-step approach.22 The ospar Commission, therefore, plays an important 16 17 18

ospar Convention, Preamble, para. 3. ospar Convention, Article 10. The Convention text, the Annexes and the Appendices are available at http://www.ospar .org/convention/text (accessed January 2016). 19 ospar Convention, Article 14. 20 Ibid., Article 10. 21 Ibid., Article 13. 22 Frank, The European community and marine environmental protection in the international law of the sea: implementing global obligations at the regional level, 350.

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role in developing the substantive duties of the Contracting Parties.23 Moreover, the Commission plays an important role in ensuring compliance with the Convention. The Contracting Parties shall according to Article 22 periodically report to the Commission on the implementation of the Convention. On the basis of these reports, the ospar Commission shall as described in Article 23, assess their compliance and “when appropriate, decide upon and call for steps to bring about full compliance” with the Convention. 8.2.4 The General Obligation in Article 2 The starting point for the obligations of the Contracting Parties is the general obligation in Article 2 (1) (a). It follows from Article 2 (1) (a) that the Contracting Parties shall: take all possible steps to prevent and eliminate pollution and shall take the necessary measures to protect the maritime areas against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable restore marine areas which have been adversely affected. The general obligation is formulated so that the Contracting Parties shall take “all possible steps” to prevent pollution and “the necessary measures” to accomplish protection of the maritime areas against effects of human activities and to conserve marine ecosystems. Hence the general obligation is expressed in strict terms as the states are required “to take all possible steps” to “prevent” and “eliminate” marine pollution, and “the necessary measures” “to conserve marine ecosystems.” There is, however, only an obligation to “restore” marine areas “when practicable.” It is reasonable to assume that the wording “take all possible” steps is not read literally, but as a due diligence norm, where it is opened for taking economic and technical considerations into account when determining which actions are “possible steps.”24 23

24

About the duties of the ospar Commission, see Harm M. Dotinga, “Conservation of ­ iological Diversity in the North Sea: the Role of the ospar Convention” Paper presented B at the mare Conference: “People and the Sea: Maritime Research in the Social SciencesAn Agenda for the 21st Century.” Amsterdam (2001), 9–12. Available at http://www.ecolex .org/server2neu.php/libcat/restricted/li/MON-068360.pdf (accessed January 2016). See Nollkaemper about contextual obligations and due diligence obligations, André Nollkaemper, ““What you risks reveal what you value”, and other Dilemmas Encountered in the Legal Assaults on Risks” in The Precautionary Principle and International Law; The Challenge of Implementation, eds. David Freestone and Ellen Hey (The Hague: Kluwer Law International, 1996), 88–89.

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The title of Article 2 and the content of this obligation with the wording “take all possible steps” and “take the necessary measures” imply that this as a general obligation covering the other specific obligations, both in the text of the Convention and the Annexes. Article 2 also has a broader scope. The requirement that the Contracting Parties shall take all possible steps “to protect the maritime area against the adverse effects of human activities,” indicates that the obligation also includes a duty to regulate human activities that are not specifically ­regulated through the other obligations and annexes. This understanding is emphasised with the adoption of Annex v, which includes obligations to protect and conserve marine biodiversity. Annex v broadens the obligation and clarifies a responsibility to avoid environmental harm also from other activities than those that lead to marine pollution, – for example, sand gravel, oil and gas exploitation, – that may impact on the marine ecosystems and b­ iological diversity. The formulation “necessary measures” is very broad, and may include all types of measures that are necessary to comply with the objectives. The ­obligation to take necessary measures to conserve marine ecosystems is also included in Article 2 of Annex v, and it is therefore discussed below how this should be interpreted and which measures that are considered as “necessary measures.” Consequently, the general obligation in Article (2) (1) (a) in the Convention text includes more than just protection of the marine environment from pollution. It also requires the states to take “necessary measures” to conserve marine ecosystems. The Contracting Parties must also consider and regulate activities that do not lead to pollution of the maritime areas, but may have impact on conservation of marine ecosystems. 8.2.5 The Precautionary Principle The precautionary principle is included in Article 2 (2) (a). In comparison to cbd, the precautionary principle is included in the text of the Convention. The precautionary principle is formulated differently in this Convention than what follows from the Rio Declaration Principle 15 and cbd. It follows from Article 2 (2) (a) that the Contracting Parties shall apply: the precautionary principle, by virtue of which preventive measures are to be taken when there are reasonable grounds for concern that substances or energy introduced, directly or indirectly, into the marine environment may bring about hazards to human health, harm living ­resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea, even when there is no conclusive evidence of a causal relationship between the inputs and the effects.

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In complying with the Convention and the general obligation in Article 2 (1) (a), the Contracting Parties are therefore required to apply the precautionary principle and take preventive measures when there are “reasonable grounds” for expecting “hazards to human health, harm living resources and marine ecosystems.” 8.2.6 Annex v “On the Protection and Conservation of the Ecosystem and Biological Diversity” Annex v includes obligations on the Contracting Parties to protect and conserve ecosystems and the biological diversity. The annex was adopted in 1998 at the Sintra ministerial meeting, and entered into force in 2000.25 Together with Annex v, Appendix 3 was adopted, setting out criteria for human activities that may adversely affect the maritime area. At the same time, the Strategy on the Protection and Conservation on the Ecosystems and Biological Diversity was adopted along with an action plan to implement this strategy.26 Both the strategy and the plan were revised in 2003.27 A new strategy, building on the previous for the protection of the marine environment of the North-East Atlantic, was adopted by the ospar Commission in 2010.28 Although one may also argue that the principles of cbd were an underlying factor or a prerequisite for the adoption of the ospar Convention in 1998, the link to the cbd and the obligations to protect and conserve marine biodiversity, are with the adoption of Annex v, made more specific, and complement and broaden the ospar Convention at this point. Whereas the original text of the ospar Convention includes conservation of marine ecosystems, Annex v encompasses marine biological diversity as well. The legal writer de La Fayette points out that it was the wider and increased scope that was already adopted in the ospar Convention covering all human activities and conservation of marine ecosystems that permitted the adoption of Annex v, and the ­extension

25 26

27

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ospar Commission, “Sintra Statement,” Ministerial Meeting of the ospar Commission, 20–24 July 1998, Summary Record ospar 98/14/1-E, Annex 45. ospar, Commission, “ospar Strategy on the Protection and Conservation of the ­Ecosystems and Biological Diversity of the Maritime Area,” Ministerial Meeting of the ospar Commission, 20–24 July 1998, Summary Record ospar 98/14/1-E, Annex 37. ospar Commission, “2003 Strategies of the ospar Commission for the Protection of the Marine Environment of the North-East Atlantic,” Ministerial Meeting of the ospar ­Commission, 25 June 2003 Summary Record ospar 03/17/1-E, Annex 31. ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic 2010–2020,” ospar Agreement 2010–03.

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of the scope of the Convention to include protection and conservation of ­ arine biodiversity.29 m The general obligation in Article 2 (1) (a) of the ospar Convention that requires the Contracting Parties to “take all possible steps to prevent and eliminate pollution...” applies in parallel with the obligation in Article 2 of Annex v. There is a link between this obligation and the obligation in Article 2 of Annex v as this ­obligation is included in the introduction of the new obligation of ­Annex v. It follows from Article 2 of Annex v that: In fulfilling their obligation under the Convention to take, individually and jointly, the necessary measures to protect the maritime area against the adverse effects of human activities so as to safeguard human health and to conserve marine ecosystems and, when practicable, restore marine areas which have been adversely affected, as well as their obligation under the Convention on Biological Diversity of 5 June 1992 to develop strategies, plans or programmes for the conservation and sustainable use of biological diversity, Contracting Parties shall:… Article 2 of Annex v also makes an explicit reference to the obligation in the cbd to develop plans, programmes, and strategies for conservation and sustainable use of biological diversity, provided in the cbd Article 6. The two substantial obligations for the states, Article 2 (a) and (b) in Annex v, are not specific or detailed. In order to fulfilling the general obligation of the ospar Convention Article 2 and the obligation under cbd, the states shall implement Article 2 (a) and (b) of Annex v. The Contracting Parties are pursuant to Article 2 (a) under a duty to: take the necessary measures to protect and conserve the ecosystems and the biological diversity of the maritime area, and to restore, where practicable, marine areas which have been adversely affected; This obligation consumes the obligation in Article 2 (1) (a) in the ospar Convention to “take the necessary measures …to conserve marine ecosystems.” It follows from Article 2 (b) that the Contracting Parties are required to “cooperate in adopting programmes and measures for those purposes for the control of human activities identified by the application of the criteria in Appendix 3.” This cooperation can take place through political discussions in different settings and meetings between the states. Primarily, the cooperation takes place 29

De La Fayette, “The ospar Convention Comes into Force: Continuity and Progress,” 253.

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through the Commission and its subsidiary bodies.30 The Biodiversity Committee is important in facilitating implementation of Annex v and also the ospar Strategy.31 The broad wording of the obligations implies that states have discretion when implementing the obligations. The Contracting Parties have the freedom to determine by themselves which “necessary measures” to adopt to protect and conserve ecosystems and biodiversity. The requirement “necessary measures” is, however, reasonably understood as measures that are appropriate to achieve protection and conservation of marine ecosystems and biological diversity, including mpas. The obligation is examined more in detail below in Section 15.4. As the obligations of the Contracting Parties are not very specific, the duty of the ospar Commission in Article 3 (1) (a) (i) in Annex v to “draw up programmes and measures for the control of the human activities identified by the application of the criteria in Appendix 3,” is important for the implementation of the obligations of the Contracting Parties.32 In doing so, the ospar Commission shall, as follows from Article 3 (1) (b) (ii): develop means, consistent with international law, for instituting protective, conservation, restorative or precautionary measures related to ­specific areas or sites or related to particular species or habitats; Furthermore, the ospar Commission shall also, on the basis of Article 3 (1) (b) (iv), “aim for the application of an integrated ecosystem approach.” The duties of the ospar Commission are spelled out further in the ospar Strategy.33 The practice of the ospar Commission may thus make the obligation in ­Article 2 in Annex v more operational and more practical – through the adoption of decisions and recommendations. Whereas the obligations in ­Annex v do not specifically mention the use of mpas, the ospar Commission recognizes the use of this tool. At the ministereal meeting in Sintra in Portugal in 1998, the ospar Commission was encouraged to: 30 31 32 33

See also Dotinga, “Conservation of Biological Diversity in the North Sea: the Role of the ospar Convention,” 8. ospar Commission, “Terms of Reference for ospar’s Coordination Groups and Committees,” ospar Agreement 2011–4, Annex 2. Dotinga,“Conservation of Biological Diversity in the North Sea: the Role of the ospar Convention,” 8. ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic 2010–2020,” (2010) Part ii Biological Diversity and Ecosystems.

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promote the establishment of a network of marine protected areas to ensure the sustainable use and protection and conservation of marine biological diversity and its ecosystems;34 This work was continued in the Bremen ministerial meeting in 2003 where the Commission established the commitment to establish a coherent ecological network of mpas within 2010.35 To accomplish this, the ospar Commission ­adopted also in 2003 recommendations for the establishment of mpas,36 guidelines for the management of mpas37 as well as guidelines for the ­identification and selection of mpas.38 In the 2010 Strategy, the ospar Commission states that it will work with a view of achieving a network of mpas within 2012 that is well managed within 2016.39 8.2.7 ospar and the Ecosystem Approach The concept of the ecosystem approach is not adopted as a legal principle in the Convention text such as the precautionary principle and the polluter pays principle, nor is the concept explicitly adopted in any other provisions of the Convention. Still, the ecosystem approach is reflected in the text of the ospar Convention.40 The general obligation in the Convention in Article 2 (1)(a) ­requires that the Contracting Parties take “the necessary measures” to conserve marine ecosystems. The objectives of the Convention are also expressed in the Preamble, which reflects an ecosystem approach. The Preamble underlines the inherent worth of the marine environment and the importance of the marine 34 35 36 37

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ospar Commission, “Sintra Statement,” (1998). ospar Commission, “Bremen Statement,” Minesterial Meeting of the ospar Commission, 25 June 2003 Summary Record ospar, 03/17/1-E, Annex 33. ospar Commission, “ospar Recommendations 2003/3 on a Network of Marine Protected Areas,” (2003). ospar Commission, “Guidelines for the Management of Marine Protected Areas in the ospar Maritime Area,” Meeting of the ospar Commission, 23–27 June 2003, Summary Record ospar 03/17/1-E, Annex 11. ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” Meeting of the ospar Commission, 23–27 June 2003, Summary Record ospar 03/17/1-E, Annex 10. ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic,” (2010) Part ii, para. 1.2. (b). See Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: ­Reflections on a Dual Approach in International Law of the Sea,” 497–499; see also ­Trouwburst, “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages,” 31–32.

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­ecosystems for the needs of future generations.41 Additionally, both Article 2 (1)(a) of the Convention and Article 2 in Annex v suggest obligations to protect the maritime area against “adverse effects of human activities” and thus underline in this way the importance of a holistic and comprehensive approach to human activities; which is a central part of the ecosystem approach. The reflection of the ecosystem approach of the ospar Convention became more evident through the adoption of Annex v, with the obligation to protect and conserve ecosystems and biodiversity. The intention of adopting Annex v was to strengthen the framework for the conservation of ecosystems and marine biodiversity in this maritime region.42 As the ospar Convention refers to the definitions of “biological diversity,” “ecosystem,” and “habitat” in the cbd in Annex v, one may say that the Convention with Annex v in the same way as the cbd takes an ecosystem approach. The ecosystem approach is also adopted in other documents within the ospar. A statement on ecosystem approach to management of human activities, was adopted by the ministers at the meeting of the Biodiversity Committee in 2003.43 The Biodiversity Committee of the ospar Convention has ­defined the ecosystem approach as: the comprehensive integrated management of human activities based on the best available scientific knowledge about the ecosystem and its dynamics, in order to identify and take action on influences which are critical to the health of marine ecosystems, thereby achieving sustainable use of ecosystem goods and services and maintenance of ecosystem integrity.44 The ospar Commission and the Helsinki Commission (helcom) under the Helsinki Convention moreover agreed to apply and to further develop the ecosystem approach by 2010 at the joint ministerial meeting of the Helsinki and ospar Commissions.45 The two commissions therefore adopted a statement of their common visions of an ecosystem approach to manage human 41 See ospar Convention, Preamble, paras. 2 and 3. 42 ospar Commission, “Sintra Statement” (1998). 43 Biodiversity Committee, “Ecosystem Approach to Management of Human Activities,” Meeting of the Biodiversity Committee, 20–24 January 2003, Summary Record 2003, bdc 03/10/01-E, Annex 13. 44 Ibid., para. 6. 45 First Joint Ministerial Meeting of the Helsinki and the ospar Commission, “Declaration of the First Joint Ministerial Meeting of the Helsinki and ospar Commissions,” 25–26 June 2003, Record of the Meeting- Annex 8, para. 8.

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activities.46 The statement adopted the same definition, as did the Biodiversity Committee.47 It sets out the intentions, objectives and priorities of the two commissions in implementing the approach.48 The statement is thus a document for the ­further development of the ecosystem approach within the ospar by the Commission; it does not set out direct obligations for the Contracting Parties. In the new strategy of the ospar Commission adopted in 2010, the ecosystem approach has a more prominent role than in the previous strategies, as it is adopted as an overarching principle for the Commission in their work on developing the Convention.49 The 2010 ospar Strategy takes into account new legal commitments such as the eu Marine Strategy Framework Directive,50 and emphasises the use of the ecosystem approach as a means for achieving the overall goals of the ospar Convention.51 With the new ospar Strategy, the ecosystem approach is emphasised as it as expressed by Sands and Peel “places the ecosystem approach at the core of the ospar’ objectives.”52 The ospar Strategy also refers to the ospar Quality Status Report from 2010, and recognises that many of the marine environmental protection objectives have not been achieved, and further ­actions are therefore required.53 The ospar Strategy is not legally binding in itself, but supplements the duties of the ospar Commission according to the Convention and Annex v. The

46

47 48

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First Joint Ministerial Meeting of the Helsinki and the ospar Commission Joint Ministerial Meeting, Statement on the Ecosystem Approach to the Management of Human Activities: “Towards an Ecosystem Approach to the Management of Human Activities,” 25–26 June 2003, Record of the Meeting-Annex 5. Ibid., para. 5. The four elements that the helcom and ospar will focus on are; promoting understanding and acceptance by all stakeholders, monitoring and assessing ecosystems, setting ­objectives and managing human activities. ibid., para. 15. ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic,” (2010) Preamble, para. 2. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive). ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic,” (2010) paras. 1.3 and 2.1. Sands and Peel, Principles of International Environmental Law, 362. ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the Nort-East ­Atlantic,” (2010) Preamble, para. 4.

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ospar Commission also seems to be committed to the strategy and tends to follow it.54 Consequently, the ecosystem approach is an integrated part of the Convention. It is reflected in the objectives and obligations, primarily in Annex v and the strategy of the ospar Commission. 8.3

The Arctic Council

8.3.1 General The Arctic Environmental Protection Strategy (aeps)55 adopted together with the Rovaniemi Declaration56 by the eight Arctic states in 1991 was the basis for the foundation of the Arctic Council.57 It identified protection of the marine environment as a priority before the establishment of Arctic Council.58 The Artic Council was adopted in 1996 and is made up of the eight Arctic states: Canada, Denmark, Finland, Iceland, Norway, Sweden, Russia, and the United States with a permanent participation by regional indigenous peoples associations.59 According to Article 1 (a) of the Declaration on the ­Establishment of Arctic Council (the Ottawa Declaration),60 the Arctic Council was established as a forum to provide: a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities, and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.61 54 55 56 57

58 59 60 61

Information provided in a meeting with the ospar Secretariat, October 2009. Arctic Environmental Protection Strategy, 14 January 1991, Roveniemi, 30 ilm 1624. Declaration on the Protection of the Arctic Environment, 14 January 1991, Rovaniemi (the Rovaniemi Declaration). For more on the background for this strategy see Timo Koivurova and David VanderZwaag, “The Arctic Council at 10 years: Retrospect and Prospects,” University of British ­Columbia Law Review, 40:1 (2007): 121–194. Timo Koivurova, “Governance of protected areas in the Arctic”, Utrecht Law Review, 5:1 (2009): 54. Arctic Council, “Member States,” available at http://www.arctic-council.org/index.php/ en/about-us/member-states (accessed May 2015). Declaration on the Establishment of Arctic Council, 19 ­September 1996, Ottawa, 35 ilm 1387 (1996) (the Ottawa Declaration). Ottawa Declaration, para. 1 (a). For more on the transition from aeps to Arctic Council, see Timo Koivurova, “Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic Governance,” Polar Record 46:2 (2010), 146–148.

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The Arctic Council does not have the ability to adopt legally binding regulations, but serves as a forum for high-level political cooperation between the Arctic states.62 Over the last few years the Arctic Council has produced many significant scientific assessments such as Arctic Climate Impact Assessment (acia), the shipping assessment amsa, the Arctic Ocean Review (aor) and the Arctic Biodiversity Assessment.63 Although the Arctic Council is not a regulatory body, it has in recent years begun to contribute to the development of legally binding regulations and agreements.64 The agreement on search and rescue the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, was negotiated under the auspices of the Arctic Council and signed in May 2011.65 Moreover, the Agreement on Cooperation on Marine Oil Preparedness and Response in the Arctic66 was negotiated under the Arctic Council and signed in 2013. 8.3.2 The Working Groups under the Arctic Council The Arctic Council is organized into six working groups. The working groups are composed of representatives from sectoral ministries and government agencies, as well as researchers.67 The work on protected areas, including mpas, is carried out in the two working groups the Conservation of Arctic Flora and Fauna (caff) and the Protection of the Arctic Marine Environment (pame).68 These two working groups have provided the states with critical knowledge about the marine environment and the biological diversity in the Arctic, as well as current and future threats. The main tasks of these working groups are to collect data about the status of the environment and the biological diversity, 62

The Arctic Council is described as “consensus-based and project-driven and not an operational body” by Erik J. Molenaar and Timo Koivurova, International Governance and Regulation of the Marine Arctic, Three reports prepared for the wwf International Arctic Programme (Oslo, 2010), 16. 63 Susannah Stoessel, Elisabeth Tedsen, Sandra Cavalieri and Arne Riedel “Environmental Governance in the Marine Arctic,” in Arctic Marine Governance: Opportunities for T ­ ransatlantic Cooperation, eds. Elizabeth Tedsen, Sandra Cavalieri and R. Andreas ­Kraemer (Berlin/Heidelberg: Springer Verlag, 2014), 56. 64 Ibid. 65 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, 50 I.L.M.1119 (2011). 66 Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. 67 Arctic Council, “Working Groups,” available at http://www.arctic-council.org/index.php/ en/about-us/working-groups (accessed January 2016). 68 Koivurova, “Governance of protected areas in the Arctic,” 45.

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and to identify, monitor and assess the risks of human activities as a basis for advice to the Arctic states in their decision-making.69 The Arctic Council thus serves an important role in implementing the global obligations of the member states at the regional level.70 At the ministerial meeting in Nuuk in 1993, the ministers requested that caff prepared a plan for the development of a network of protected areas to ensure protection of the Arctic ecosystems.71 On this basis and that of the assessments of the biological diversity carried out under the caff, the Circumpolar Protected Areas Network (cpan) Strategy and Action plan for the establishment of a circumpolar network of protected areas, as well as a set of cpan Principles and Guidelines, was adopted in 1996.72 The cpan project is further assessed below in Section 16.2. The Arctic Marine Strategic Plan (amsp) was developed by pame and adopted by the Arctic Council ministerial meeting in 2004.73 Two of the amsp’s expressed goals were to reduce and prevent pollution in the Arctic marine environment and to conserve Arctic marine biodiversity and ecosystem functions.74 The amsp acknowledged that achieving the goal of conservation of the Arctic marine biodiversity and ecosystem functions requires an ecosystem approach.75 Moreover, the amsp emphasized that it is based on new environmental principles and obligations, and also embraced the ecosystem approach as its basic principle.76 The amsp further described the principle of ecosystem approach as a modern ocean management concept that requires the coordination of human activities to reduce their impact on the environment. It also included a possible methodology for the application of the ecosystem approach.77 The use of mpas as an environmental tool was also recognized and 69 70 71 72

73 74 75 76 77

Fore more about the work carried out under the working groups see Koivurova and VanderZwaag, “The Arctic Council at 10 Years: Retrospect and Prospects,” 137–153. Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities,” 268. Koivurova, “Governance of protected areas in the Arctic,” 49. Information and relevant documents and publications about cpan are available at caff, “Circumpolar Protected Areas Network,” available at https://oaarchive.arctic-council.org/ handle/11374/148 (accessed January 2016). See also Koivurova, “Governance of protected areas in the Arctic,” 49–53. pame, Arctic Marine Strategic Plan, 24 November 2004, available at http://pame.is/index .php/projects/arctic-marine-strategic-plan (accessed January 2016). Ibid. 3. Ibid., 5. Ibid., 8–9. Ibid., 9.

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emphasized in the amsp as the objective of the wssd of establishing a network of mpas is repeated here, stating that the Arctic Council shall: Promote wssd actions related to marine and coastal environment, including the application of an ecosystem approach and establishment of marine protected areas, including representative networks.78 The second strategic plan, the Arctic Marine Strategic Plan (2015–2025), was adopted in Akureyri in 2015.79 The updated Strategic Plan provides “a framework to guide its actions to protect the Arctic marine and coastal ecosystems and to promote sustainable development.”80 The Strategic Plan addresses challenges and opportunities for sustainable development and environmental protection and sets out four strategic goals.81 One of these goals is to “conserve and protect ecosystem function and marine biodiversity to enhance resilience and the provision of ecosystem services.”82 The Strategic Plan is based on environmental principles and approaches such as the sustainable development, the precautionary approach, the polluter pays principle and the ecosystem-based management. The new Strategic Plan builds on the work of the Arctic Council in defining ecosystem-based management and identifying principles, as well as developing methodology for applying for the ecosystem-based management.83 To comply with the goal to conserve and protect ecosystem function and biodiversity, the Strategic Plan sets out as one of the strategic actions to: Develop a pan-Arctic network of marine protected areas, based on the best available knowledge, to strengthen marine ecosystem resilience and contribute to human wellbeing, including traditional ways of life.84 The work plan of pame 2013 – 2015, states that pame was to establish an expert group to explore the development of a framework for mpas.85 The panArctic mpa network expert group was co-led by Canada, Norway, and the United States. A Framework for a pan-Arctic network of mpas, was drafted by 78 79

Ibid., 11. pame, The Arctic Marine Strategic Plan (2015–2025). available at http://pame.is/index .php/projects/arctic-marine-strategic-plan (accessed January 2016). 80 Ibid., 6. 81 Ibid., 5. 82 Ibid, 6. 83 The work on ecosystem-based management under the Arctic Council is addressed below in the next subsection. 84 pame, The Arctic Marine Strategic Plan (2015–2025), 10. 85 pame, Work Plan 2013–2015, 10.

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the ­expert group and approved at the ministerial meeting in Canada in April 2015.86 This Framework and ongoing cooperation for developing an Arctic network of mpas is further discussed below in Chapter 16. 8.3.3 Important Efforts under the Arctic Council Many significant initiatives and efforts are made under the Arctic Council for ensuring protection of the marine environment and conservation of the marine biodiversity. The prospects for shipping in the Arctic and its possible environmental impacts, are examined under the Arctic Council and presented in the amsa report. The amsa report provided several recommendations to promote safety and environmental protection.87 Among these was that the Arctic states should identify areas of ecological significance and also to explore the need for internationally designated areas for the purpose of environmental protection.88 As a follow up, a report was completed in December 2012 identifying 99 areas of heightened ecological significance.89 Additionally, pame on the basis of the amsa recommendation ii (D), initiated a project that will explore the need for and make recommendations regarding internationally designated areas to protect sensitive areas of the Arctic Ocean from the impacts of shipping, and consider the use of appropriate measures such as marpol Special Areas and pssas.90 The project specifically focuses on the areas beyond national jurisdiction. The report was finalized in March 2014 and presented at the Senior Arctic Officials (sao) meeting in 2014.91 The report recommends the use of pssas to protect vulnerable areas on the high seas from the impacts of shipping. The report recommends one or more “Core sea ice 86

87 88 89

90 91

pame, Framework for a Pan-Arctic Network of Marine Protected Areas, April 2015, pame, available at https://oaarchive.arctic-council.org/bitstream/handle/11374/417/MPA_final _web.pdf?sequence=1&isAllowed=y. amsa Report, 134–153 and 6–7. Ibid., 7 and 152. AMAP/CAFF/SDWG, 2013. Identification of Arctic marine areas of heightened ecological significance: Arctic Marine Shipping Assessment (amsa) iic. Arctic Monitoring and Assessment Programme (amap), Oslo. Available at http://www.amap.no/­documents/ doc/identification-of-arctic-marine-areas-of-heightened-ecological-and-cultural -­significance-arctic-marine-shipping-assessment-amsa-iic/869 (accessed January 2016). amsa Report, 7. Det Norske Veritas (dnv), Specially Designated Marine Areas in the Arctic High Seas, ­Report for Norwegian Environment Agency, Report No./DNV Reg No.: 2013–1442, available at http://www.pame.is/images/03_Projects/AMSA/Specially_Designated%20Marine _­Areas_in_the_Arctic/AMSA_Specially_Designated_Marine_Areas_in_the_Arctic_final _report_by_DNV_signed.pdf (accessed January 2016).

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area” protected as a pssa with areas to be avoided as an associated protective measure.92 As a follow up, it is stated in the pame Work plan from 2013 to 2015 that pame will encourage “the development of common or shared proposals to the extent possible among Arctic states for submission to imo.” The pame Work Plan from 2015 to 2017 states that pame will “explore possible international protection measures that could be pursued by Arctic States, individually or collectively, at the imo.”93 In the last few years, efforts in implementing the ecosystem-based approach have, as mentioned above, been made under Arctic Council. The Best Practices in Ecosystem-based Oceans Management Project94 was initiated by the Arctic Council and was developed as a series of case studies from seven of the eight member states during 2007–2009.95 The objective of the project was to present the practice and application of the Arctic states of the ecosystem-based approach to ocean management.96 One finding was that all the Arctic states had adopted ecosystem-based management as goal for ocean management. There were however, variations between the states with regard to the implementation of the ecosystem-based management.97 Furthermore, the expert group on ecosystem-based management was appointed in 2011. The outcome of the expert group, the report on the Ecosystem-Based Management, was presented at the 2013 ministerial meeting in Kiruna.98 In the report the expert group provides a definition of the concept as well as principles or ecosystem-based management in the Arctic.99 As mentioned above, these are included as fundamental principles and foundations for the new Arctic Marine Strategic Plan. 92

Ibid.,58. More about the concept of pssa and possible protective measures see Section 19.6. The report by dnv to pame is further addressed below in Sections 19.5 and 19.6. 93 pame, Work Plan 2015–2017, 4–5. 94 Alf Håkon Hoel, ed. Best Practices in Ecosystem-based Oceans Management in the Arctic, Norwegian Polar Institute; Report Series no. 129 (2009), available at https://rafhladan.is/ bitstream/handle/10802/8652/media.pdf?sequence=2 (­accessed January 2016). 95 Alf Håkon Hoel, “Integrated Oceans Management in the Arctic: Norway and Beyond,” A­rctic Review on Law and Politics, 1:2 (2010), 200. 96 Ibid., 201. 97 For an overview of the conclusions of the case studies see ibid., 201–203. 98 See Arctic Council, Kiruna Declaration, On the occasion of the Eigth Ministerial Meeting of the Arctic Council (Kiruna Declaration), 15 May 2013, Kiruna, Sweden. See also Ecosystem-Based Management in the Arctic, Report submitted to Senior Arctic Officials by the Expert Group on Ecosystem-Based Management May 2013, available at https://­oaarchive .arctic-council.org/bitstream/handle/11374/122/MM08_EBM_report%20%281%29 .pdf?sequence=1&isAllowed=y (accessed January 2016). 99 Ibid.

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Conclusions As a part of the legal development described here, there has been a shift from a functional to a more integrated holistic approach to the marine environment. The new approach, which Agenda 21 calls for is, “integrated in content” and “precautionary and anticipatory in ambit.”1 The analyses illustrate that newer environmental obligations, concepts, and principles, such as the obligation to protect biodiversity, the ecosystem approach, sustainable development and the precautionary approach require a new and different approach than that reflected through the traditional obligations of the los Convention. In order to conserve ecosystems and marine biodiversity and comply with the international obligations, the use of area-based management tools such as mpa are necessary.2 mpas endeavour to protect and conserve a habitat or an ecosystem as a whole within the designated area, and are therefore tools for the implementation of the ecosystem approach.3 The global obligations to conserve the marine biological diversity, as well as the ecosystem approach are implemented at the regional level, where the use of the tool mpas is emphasised. The ospar Convention does, not however, apply to the whole marine Arctic area. Whereas important efforts are made under the Arctic Council, at the regional level there is currently only a soft law approach to the protection and conservation or the marine environment and biological diversity in the marine Arctic.

1 Agenda 21, Chapter 17, para. 1. 2 Tore Henriksen, “Conservation of marine biodiversity and the International Maritime Orga­ nization,” in Rule of Law for Nature: New Dimensions and Ideas in Environmental Law, ed. Christina Voigt (Cambridge: Cambridge University Press, 2013), 332. 3 See Yosifumi Tanaka, “The Changing Approaches to Conservation of Marine Living Resources International Law,” Zeitschrift für ausländisches ôffentliches Recht und Völkerrecht 71:2 (2011): 309.

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part 3 Legal Obligations to Establish mpas

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Legal Obligations to Establish mpas – Introductory Remarks The use of mpas as an environmental tool is emphasised in many legal and political instruments and is an element of the development of international environmental law that requires new and integrated approaches to ocean management. As shown in the previous analyses, the coastal States have the authority to establish mpas in the territorial sea and in the eez. As for the high seas, States are obliged by the los Convention Article 192 to protect the marine environment and may cooperate to establish mpas to ensure the conservation of the marine ecosystems and biodiversity. This part of the book examines the global obligations to protect the marine environment and to conserve marine biodiversity in the los Convention and cbd at the global level and discusses whether they include a legal duty to establish mpas. Legal requirements concerning the management of mpas, such as the selection of mpas and the regulations of human activities therein, are thus also examined. This part also examines how global obligations to protect and conserve biological diversity through mpas are implemented at the regional level in the marine Arctic. This includes analyses of the ospar Convention and the efforts made under the Arctic Council in establishing mpas in the region. Although the aim is to clarify the legal duties of the states to establish mpas, it is important to understand and acknowledge the mpa tool in relation to the general obligations to protect the marine environment and its ecosystems and biological diversity. On the one hand, compliance with general obligations to protect and conserve the marine environment and marine biodiversity may rely on the establishment and effective management of this particular environmental tool concerning protected areas. On the other hand, the “normal regime” that applies outside the geographical limits of the mpas must be at such a level that marine biodiversity that is also outside the protected areas is maintained. It is not enough to protect the marine biodiversity only within protected areas.1 To achieve the objectives of conservation and sustainable use of biological diversity of the cbd, it is necessary to apply a wide range of different tools and measures. Merely establishing mpas cannot solve the complex issue of the conservation of marine biodiversity. 1 This is for instance reflected in cbd Article 8 paras. (c) and (e) and also in the general ­obligations in Articles 6 and 10. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_011

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The los Convention and Establishment and Management of mpas 11.1 General The los Convention does not make any references to the use of mpas as an environmental tool. However, the States have a duty to protect and preserve the marine environment, including measures to protect rare or fragile ecosystems and the habitats of depleted, threatened or endangered species and other forms of marine life.1 Moreover, the los Convention provides a legal framework for managing and conserving marine living resources. Although the coastal States enjoy sovereignty and full jurisdiction over the marine living resources in their territorial sea and their internal waters, they must at a minimum comply with the environmental obligations in Part xii when exploiting their marine living resources.2 As elaborated in Section 5.3, the los Convention contains duties for the coastal States concerning management and conservation of the living resources in the eez. Moreover, the los Convention recognizes a duty to c­ ooperate in the conservation and management of high seas living resources. The framework for marine living resources in the los Convention has however, an exploitation oriented approach with a primary ­focus on commercial fishing.3 This book does not address the extent to which the los Convention’s provisions on the conservation of living resources provide a legal basis for the establishment of mpas to comply with the obligations to conserve and manage the m ­ arine living resources.4 The question a­ ddressed here relates to whether the general obligations to protect and preserve the marine environment, laid down in the los Convention Articles 192 and 194 (5), contain a legal duty for the States to adopt mpas to ensure protection and conservation of biological diversity. 1 los Convention Articles 192 and 194 (5). 2 Nele Matz-Lück and Johannes Fuchs, “Marine Living Resources,” in The Oxford Handbook of the Law of the Sea, eds. Donald R. Rothwell et. al (Oxford: Oxford University Press, 2015), 493 and 498–499. 3 Ibid., 492–493. 4 The question is addressed in Frank, The European Community and Marine Environmental ­Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 335–336.

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Does the Obligation to Protect and Preserve the Marine Environment Include a Legal Duty to Adopt mpas?

It follows from Article 192 that States “have the obligation to protect and preserve the marine environment.” It is reasonable to understand that this broad and general obligation provides States with the discretion to decide which measures and tools to adopt to comply with it. A legal duty to adopt mpas would therefore constrain the discretion of the states in choosing the means to fulfil this obligation.5 The duty in Article 192 and the other obligations in Part xii relate to protecting and preserving the “marine environment.” “­Biological diversity” and “ecosystem approach” are relatively new legal terms that were ­introduced to international law, in particular, through the cbd.6 A relevant question in relation to los Convention Article 192 and the use of mpas is whether the term “marine environment” includes the concept of “biological diversity.” The term “marine environment” is not defined in the los Convention. It is natural to understand the term so that it encompasses the whole ocean space, both physical and chemical components, and all marine life within this space.7 In the Iron Rhine Arbitration, the term “environment” is referred to as “including air, water, land, flora and fauna, natural ecosystems and sites, human health and safety, and climate.”8 Article 194 (5) also requires States to adopt measures that are necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. A contextual interpretation of Article 192 in light of Article 194 (5) implies that the legal duty to protect the “marine environment” includes protection of “rare 5 The question related to the los Convention and possible obligations to establish mpas is also discussed in Ingvild Ulrikke Jakobsen, “Marine Protected Areas as a Tool to Ensure ­Environmental Protection of the Marine Arctic: Legal Aspects,” in Arctic Marine Governance: Opportunities for Transatlantic Cooperation, eds. Elisabeth Tedson, Sandra Cavelieri, R. ­Andreas Kraemer (Berlin/Heidelberg: Springer, 2014), 223–225. 6 Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Oppurtunities,” 249. 7 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 12. 8 Iron Rhine Arbitration, para. 58.

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or fragile ecosystems,” and the “habitat of depleted, threatened and endangered species” as well as “marine life.” Since the los Convention was adopted, the law has developed to protect the environment against single activities, such as fishing and other human ­activities; against marine pollution, such as shipping and seabed activities; to a broader approach of protecting the environment, by which ecosystems and biological diversity are conserved and protected. Subsequent instruments, such as the cbd and Agenda 21, spell out the need to take a holistic ecosystembased approach to the regulation of human activities together with an understanding of the natural variations of species and ecosystems. It follows from Article 31 (3) (c) of the Vienna Convention that, when a “rule” is interpreted, “any relevant rules of international law applicable in the relations between the parties” shall be applied as a source of interpretation.9 The term “marine environment” must therefore be interpreted in light of these “new” developments. Such dynamic interpretation also finds support in international case law.10 Yet, the suggested interpretation must remain within the wording and objective of the convention.11 However, the term “marine environment” is broad enough to encompass biological diversity, e.g. the diversity within species, between species, and of ecosystems.12 Therefore, an interpretation of “marine environment” that encompasses the newer legal term “biological diversity” is acceptable within the wording of the los Convention. The subject for analysis in this book is the integrated or cross-sectoral mpas, where potentially damaging activities may be restricted to protect ­biological diversity. However, the wording of Article 192 does not clarify the activities that the States must regulate or prohibit to comply with this obligation. The general obligation imposed by Article 192 is the starting point of Part xii, and the obligation is elaborated in the following provisions in Part xii. These other provisions focus specifically on marine pollution. It can therefore be questioned whether Article 192 relates only to marine pollution or whether it also includes a duty to protect the marine environment from threats from other human activities. This is significant, because the question is whether the l­ egal duty in Article 192 encompasses the establishment of integrated mpas that regulate human activities beyond those that lead to m ­ arine pollution, such as 9 10 11 12

Vienna Convention, Article 31 (3) (c). Article 31 (3) (c) is further addressed below in ­Subsection 17.4.4. See for instance Gabčikovo Nagymaros case para. 140 and the Iron Rhine Arbitration, para. 59. Such evolutionary interpretation is further addressed below in Subsection 17.4.4. Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 46. See definition in cbd, Article 2.

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fishing activities and other activities that may d­ isturb wild life or physically damage the environment. Although most of the provisions in Part xii refer to marine pollution, there are two exceptions. Article 193 establishes the sovereign right of the States to exploit their natural resources “in accordance with their duty to protect and preserve the marine environment,” whereas Article 196 deals with the intentional or accidental introduction of alien or new species, which is different than marine pollution, as marine pollution is defined in Article 1 (4) of the los Convention and requires the “introduction by man, directly or indirectly, of substances or energy into the marine environment.” The inclusion of Articles 193 and 196 therefore suggests that Part xii and Article 192 are not limited to marine pollution. The heading in Part xii, “Protection and preservation of the marine environment,” is similar to the wording of Article 192 “to protect and preserve the marine environment.” This formulation is broader than the heading of Article 194 and its provisions 207–212, which specifically refer to pollution. This indicates that the duty in Article 192 also encompasses protection from threats to the environment from other sources and other human activities. The term “protection and preservation” is consistently applied in Part xii.13 An analysis of the words “protection and preservation” may help to clarify the activities that the States are required to prohibit or regulate and how strict the measures must be that States must adopt. The term “protection” is understood as a reference to “prevention of prospective damage,” while “preservation” is considered to have a broader meaning, including a duty to take “active measures to maintain or improve the present condition of the marine environment.”14 The inclusion of the term “preservation,” which points to measures that ensure a certain quality or state of the environment, also implies that the general duty to protect the marine environment contains more than a duty to control and regulate marine pollution and relates more broadly to the regulation of threats. Furthermore, it can be questioned whether the term “protection and preservation” also encompasses the term “conservation.” The term “conservation” is not applied in Part xii, but it is applied in the terms that deal with living resources, such as Article 56 (1) (a) and Article 62. Article 193 requires that natural resources are exploited in accordance with the duty to protect and preserve the marine environment. Thus, the sovereign right of ­fisheries or mining,

13 14

Shabtai Rosenne and Aleksander Yankov, eds. United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv (Dordrecht: Martinus Nijhoff Publishers 1991), 40–41. Ibid., 40.

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oil or gas exploitation may not take place without considering and regulating the environmental damages caused by these activities. This suggests that the term “protection and preservation of the marine environment” also includes conservation of living resources. The order of the itlos in the Southern Bluefin Tuna cases seems to confirm this, as the itlos found that “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.”15 Moreover, the Preamble of the los Convention states that “the problems of ocean space are closely interrelated and need to be considered as a whole,” which is a further indication that Article 192 requires protecting the marine environment against all activities and threats that may cause damage and not only those that may cause marine pollution. This means that the States must adopt a broad approach to comply with the obligation. This could include, for example, a duty to ensure that the marine environment, such as coral reefs, is not damaged by shipping or oil, gas, and mining activities. When the coastal States exploit their living resources, they must also consider their duty to protect and preserve the marine environment. This includes both conservation of the species that are exploited and the impact of fishing on the marine environment, including the ecosystems and marine biodiversity. Measures to, for instance, avoid negative impacts on the marine environment by fishing with certain equipment, such as damage to the sea bottom due to the use of trawling, must therefore be considered part of the duty to protect the marine environment. However, the level at which the marine environment should be protected and preserved and how strict the regulations of damaging activities have to be to comply with the duty remain undefined. It is not an obligation with clearly defined substantive requirements. The term “preserve” implies as explained above, that a certain quality should be maintained. Still, it is not possible to define the required quality of the environment. Nevertheless, although the language in the legal obligation “shall protect and preserve” is strict, Article 192 is not an absolute obligation and does not require that all activities that may cause damage to the marine environment be prohibited. States are granted rights and obligations in the different maritime zones, which also circumscribe the legal duty to protect the marine environment.16 Conclusively, the term “protection and preservation of the marine environment” is broad enough to encompass the use of mpas to protect and conserve 15 Southern Bluefin Tuna Cases, para. 70. 16 Warner, Protecting the Ocean Beyond National Jurisdiction. Strengthening the International Law Framework, 48.

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ecosystems, habitats, species and biological diversity.17 The broad and open formulation of Article 192 with regard to measures for complying with the obligation does not, however, give any direction regarding which tools States must apply to achieve protection of the marine environment. The States are therefore free to choose which measures and tools they want to apply to fulfil the obligation, including mpas. One may question whether Article 194(5) provides a legal obligation to ­establish mpas. It is reasonable to understand that the requirement of measures “necessary to protect and preserve rare or fragile ecosystems” encompasses the requirement of mpas. The establishment of mpas with protective measures can be considered a necessary measure to protect a habitat or an ecosystem. However, the heading of Article 194 implies that the provision specifically relates to measures that prevent, reduce and control pollution. This suggests that Article 194 (5) includes only a possible obligation to establish mpas from activities that may cause damage by pollution.18 On the other hand, Article 194 (5) refers to “measures” that are “necessary” to protect ecosystems and habitats and not specifically to measures needed to prevent and control pollution as referred to in Article 194 (1) and (2). Therefore, from this perspective, one may argue that Article 194 (5) includes a duty of its own that is not limited to protection from pollution.19 Although Article 194 (1) establishes that the States must adopt measures that are necessary “to prevent, reduce and control pollution of the marine environment from any source,” the wording in Article 194 (5) requires the adoption of measures that are necessary to protect ecosystems and fragile habitats. This can be understood so that, if the ecosystem or habitat requires measures other than the regulation or prohibition of sources of pollution, such measures must be adopted.20 The extent to which Article 194 (5) includes a legal duty to establish crosssectoral integrated mpas is an open question. Nevertheless, the duty expressed in Article 194 (5) is significant in understanding Article 192 and supports the existence of a possible duty, as a part of the general duty, to adopt measures such as mpas to protect rare and fragile ecosystems etc. from damaging h ­ uman 17

See also Frank, The European Community and Marine Environmental Protection in the I­ nternational Law of the Sea: Implementing Global Obligations at the Regional Level, 335. 18 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 32. 19 Owen, “The Application of the Wild Birds Directive Beyond the Territorial Sea of ­European Community Member States,” 61. 20 Alex G. Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction,” The International Journal of Marine and Coastal Law 27 (2012): 231.

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activities including pollution. One may argue that the los Convention with Article 194 (5) envisages protecting marine ecosystems, habitats and endangered species. Article 194 (5) also has a general scope of application that applies to all sensitive ecosystems and fragile habitats, including those in areas beyond national jurisdiction.21 Article 194 (5) therefore supplements the general obligation of protection in Article 192 and thereby requires that States adopt measures that are adequate to protect rare or fragile ecosystems or habitats of depleted species. In concrete cases, States may thus be under a legal duty to establish an mpa where mining, oil and gas activities, fishing, shipping etc. are regulated to ensure adequate and efficient protection of vulnerable ecosystems. Although the general obligations in the los Convention, including Article 192 and 194 (5), do not contain a general duty to establish mpas, the use of mpas is consistent with the legal and political development after the adoption of the los Convention, and it is an appropriate way for the States to comply with their obligations. 11.3

The Obligation to Protect the Marine Environment in Areas beyond National Jurisdiction

The obligations in Part xii are general and apply in all maritime zones, ­including areas beyond national jurisdiction. Hence, the obligations of the States to protect and preserve the marine environment, including fragile ecosystems, are unlimited in geographical scope.22 However, the establishment of mpas in areas beyond national jurisdiction raises particular legal questions as already outlined in Section 2.6. The freedom of the high seas are not without limitations. It follows from Article 87 (2) that: These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with ­respect to activities in the Area.

21 22

Scovazzi, “Marine Protected Areas on the High Seas,” 5. Warner, “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-­ Evolution and Interaction with the Law of the Sea,” 753.

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Moreover, the freedom of the high seas must be balanced against the corresponding duties of the States to protect and preserve the marine environment, including rare and fragile ecosystems and habitats of threatened species as provided in Articles 192 and 194 (5). States must apply and comply with environmental obligations of customary law and international environmental treaties by which they are bound.23 The freedom of the high seas must therefore be interpreted in the light of applicable relevant rules of international law and may also be restricted by other specific treaties that lay down obligations on conservation of living resources and protection of the marine environment.24 As pointed out by Oude Elferink: Developments in international environmental law since the adoption of the Convention are relevant to the exercise of freedom of the high seas in accordance with the Convention.25 To comply with the duty imposed by Article 194 (5) to protect a certain habitat or ecosystem, it may be necessary to take an integrated approach to environmental protection, such as by the use of area-based measures as mpas.26 As outlined in Section  2.6, on the legal basis of mpas on the high seas, no single state is competent to establish an mpa unilaterally with protective measures that bind other states and vessels. Still, States are obliged to cooperate in protecting the marine environment and in conserving and managing living resources pursuant to Articles 197 and 118. The obligation of the States to cooperate in protecting the marine environment pursuant to Article 197 does not clarify how they must cooperate. However, the duty to cooperate is formulated in a mandatory language.27 This means that the States cannot choose not to cooperate in protecting the marine environment. The cooperation may, however, take place both on a global level and on a regional level. The establishment of mpas in areas beyond national jurisdiction under the ospar Convention shows that States may comply with the obligation to cooperate for the protection of the marine environment through such a regional cooperation.28 23 24 25 26 27 28

Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction,” 212. Vienna Convention Article 31 (3) (c). See also Tanaka, The International Law of the Sea, 156–157. Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction,” 212. See ibid., 231 where Oude Elferink argues that Article 194 (5) may require an integrated approach to the protection of the marine environment. Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction,” 221. The establishment of mpas in areas beyond national jurisdiction under the ospar Convention is adressed below in section 15.6.

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Although the duty of states to cooperate provides the States with the opportunity to establish mpas on the high seas, it does not require that States apply this particular legal tool.29 29

For more on the content of the obligation to cooperate, see Oude Elferink, “Governance Principles for Areas beyond National Jurisdiction,” 217–222, and Robin Warner, Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework, 50–51.

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Is There a Legal Duty to Establish mpas under the cbd? 12.1

Introduction – The Implications of “as far as possible and as appropriate” for the Legal Duty to Establish mpas

This chapter discusses whether a legal duty exists to apply the particular tool mpa. As stated in Subsection 7.2.8.2, Article 8 reflects a general obligation of in situ conservation of biological diversity by the use of different in situ measures. It follows from Article 8 (a) that the states “shall, as far as possible and as ­appropriate” establish “a system of protected areas or areas where special measures need to be taken to conserve biological diversity.” The use of the word “shall” in the introduction of Article 8 indicates that there is a legal duty to use the measures listed in Article 8, including mpas. As Article 8 is included in a legally binding agreement, such as the cbd, the starting point is therefore that the states are legally obligated to establish mpas. However, the obligation in Article 8 is modified and weakened by the chapeau “as far as possible and as appropriate,” which applies to the listed measures in Article 8 (a) to (m). This raises a question about the significance and impact of this qualifier on the apparent legal duty to take in situ measures. The terms “as far as possible” and “as appropriate” seem to provide the Contracting Party with wide discretion when implementing the measures in Article 8. How or by whom the phrase “as far as possible and as appropriate” is to be interpreted remains unclear. Thus, it is unclear whether the measures, including mpas, are mandatory means for achieving in situ conservation of biological diversity or if they are optional. Therefore, although Article 8 by the use of the word “shall” requires the establishment of protected areas, one can ask whether the in situ measures, such as mpas, in reality are voluntary environmental tools for in situ conservation. The binding force of this obligation, the normative content of Article 8, must thus be determined through an analysis of the qualifier “as far as possible and as appropriate.” A clear understanding of the meaning and s­ ignificance of this qualifier and the implications of this clause for the existence of a legal duty is therefore central for the legal analyses in this chapter.1 1 In international law, there are different types of norms with different legally binding force. For more about this, see Dinah Shelton, “Normative Hierarchy in International Law”, The

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Criticisms in Legal Theory of the Vague Obligations and the Use of a Qualifier

The term “as far as possible and as appropriate” is repeatedly applied in the cbd.2 Other similar expressions used in the Convention are “in accordance with its particular conditions and capabilities” and “promote,” “taking into account special needs” and “minimize.”3 The obligations of sustainable use and conservation of biodiversity in the Convention are far reaching due to their wording, but their scope and application are limited by the use of such qualifiers.4 Different views and criticisms of the cbd because of its lack of clear legal obligations are expressed in legal theory. Several legal writers also seem to agree that the cbd is ambiguous, consisting of broad language and vague obligations often further weakened by the extensive use of qualifiers.5 The legal writer Boyle emphasises that one of the weak and insufficient parts of the text is that its “central obligations of conservation and sustainable use are weak, potentially contradictory and may prove difficult to operate in practice.”6 Referring explicitly to the term “as far as possible and as appropriate,” Boyle adds that this qualifier makes it uncertain whether the states really are committed to doing anything.7 The phrase has also been referred to as an “escape hatch” for the states.8 It is also argued that, through the use of qualifiers such as American Journal of International Law, 100:2 (2006): 291–323; Kai Raustiala, “Form and substance in international agreements”, American Journal of International Law, 99:3 (2005): 581–614. 2 See cbd Articles 5 to 11, and 14. 3 See Birnie, Boyle and Redgwell, International Law and the Environment, 617. 4 Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement”, Yearbook of International Environmental Law 3:1 (1992):51. 5 Boyle, “The Rio Convention on Biological Diversity,” 49; Burhenne-Guilmin and CaseyLefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 51; Birnie, Boyle and Redgwell, International Law and the Environment, 617; Desireé Mcgraw, “The cbd – key characteristics and implications for implementation,” Review of European Community & International Environmental Law, 11 (2002): 17–28; Veit Koester, “The Five Global Biodiversity-Related Conventions: A Stocktaking”, Review of European Community & International Environmental Law, 11:1 (2002): 96–103 and Chris Wold, “The Futility, Utility, and Future of the Biodiversity Convention,” Colorado Journal of International Environmental Law and Policy, 9:1 (1998):1–42. 6 Boyle, “The Rio Convention on Biological Diversity,” 49. 7 Ibid., 48–49. 8 John C. Kunich, “Losing Nemo: The mass extinction now threatening the world’s ocean hotspots,” Columbia Journal of Environmental Law, 30:1 (2005): 60.

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“as far as possible and as appropriate,” the Convention defines objectives for the states instead of legal obligations.9 Other legal writers seem, however, to be more positive on the use of these qualifiers. Burhenne-Guilmin and Casey-Lefkowitz argue that qualifiers like these are often used in global environmental conventions, and they refer specifically to the los Convention Articles 194, 197 and 204. They argue in favour of the use of these qualifiers that the alternative would be to weaken the obligations themselves.10 The legal writers further argue that the will and means of the parties to carry out the requirements are most important and that the use of these qualifiers provides the states with more options in choosing an effective way to implement their commitments.11 12.3

Which Evaluations Do the Terms “as far as possible and as appropriate” Require?

12.3.1 General The phrase “as far as possible and as appropriate” indicates that the qualifier includes two separate and cumulative conditions. The Expert Committee, who proposed the Norwegian Nature Diversity Act that aims to comply with Norway’s obligations on the basis of the CBD, adopted an interpretation of “as far as possible” as referring to the required level of implementation or the duty to perform. In this official Norwegian r­eport, the term “as appropriate” was understood to regulate the manner of performance when implementing the conservation measures.12 If the term “as far as possible” is understood as a reference to the level of implementation, the states are required “as far as possible” to take in situ conservation measures, such as protected areas. Consequently, it is only when it is beyond “as far as possible” and when mpas are not “appropriate” that the discretion of the states includes the freedom to choose not to apply this tool. When the criteria are met, the states are under a legal duty to establish protected areas. In legal literature, as referred to above, it is often concluded that the states have wide discretion without further analyses of which ­judgements 9

See Lee A. Kimball, “The Biodiversity Convention: How to make it work,” Vanderbilt J­ ournal of Transnational Law, 28 (1995): 765. 10 Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 51. 11 Ibid. 12 Nou 2004:28, 160.

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or ­evaluations must be made under “as far as possible and as appropriate.” This  section discusses the issue of whether this interpretation should be adopted. 12.3.2 “As far as possible” and “as appropriate” as References to the Level and the Manner of Implementation The phrases “as far as possible” and “as appropriate” can reasonably be understood as referring respectively to the duty to perform or to act and to the manner of performance. Another argument in favour of this interpretation is that it clarifies which evaluations the states must undertake, what the states are obliged to do, and what is left for them to decide. Hence, this understanding of the phrases “as far as possible” and “as appropriate” is supporting the existence of a legally binding obligation to adopt in situ measures which be presumed to exist, as it is included in a legally binding treaty. It is also reasonable to assume that the Contracting Parties intended to commit themselves to taking actions that would make it possible to achieve the objectives of the Convention. An understanding of the qualifier as a requirement to implement the conservation measures “as appropriate” when this is “possible” will indicate more clearly the nature and extent of the Contracting Parties’ commitments. This interpretation would therefore strengthen the possibility of achieving the objectives of the obligation and of the Convention and would therefore give effect to the intentions of the Contracting Parties. It is not likely that the intention to adopt the qualifier was primarily to reduce the binding character of the obligation.13 There would not be much point in including the qualifier “as far as possible and as appropriate,” if the Contracting Parties did not intend that the provision include a legally binding obligation. It is therefore not reasonable to adopt an interpretation of the qualifiers which in reality leave it completely to the Contracting Parties themselves to decide both which measures to take and how far they should go in taking in-situ conservation measures. This supports the suggested understanding of the terms, as it becomes clearer which considerations the states shall make. Although many legal writers argue that the cbd entails few specific legally  binding obligations, the opinion that Article 8 includes a legally binding duty to establish mpas has also found support in legal theory.14 Frank expresses that; 13 14

See Raustiala, “Form and substance in international agreements”, 589. See for instance Koester, “The Five Global Biodiversity-Related Conventions: A Stocktaking,” 100.

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The cbd is the only global Treaty, together with the Ramsar Convention, setting out a positive legal duty to create protected areas. However, the “as far as possible and as appropriate” clause makes the implementation of this duty highly discretionary.15 Frank does not discuss the phrase “as far as possible and as appropriate.” She briefly states that the cbd includes a positive legal duty to establish mpas. Although she finds the obligation “highly discretionary,” she does not seem to read the qualifier so that it changes the legally binding character of the ­obligation. Ringbom states that there are obligations in international law to establish protected areas, citing the obligation in Article 8 (a) in the cbd as an example.16 It is reasonable to understand the intended role and function of the qualifier as a reference to the principle of differentiated responsibility among the different states. The principle “common but differentiated responsibility” can be observed in other international agreements; in addition to the cbd.17 The principle of differentiated responsibility is not, however, explicitly adopted as a part of the Treaty. There are no preparatory works from the negotiations that explicitly say that this is the legislative background of the adoption of “as far as possible and as appropriate” in Article 8. Still, the notion and principle of differentiated responsibility was central under the negotiations and is one of the underlying principles of the Convention.18 In this context, it is reasonable to understand the term “as far as possible” and other formulations, such as “in accordance with its particular conditions and capabilities,” which are applied in many of the obligations, as references to the principle differentiated responsibility for the developed and the developing states. In support of this, it is set out in the Preamble in relation to the responsibility of developing states that “economic and social development and poverty eradication are the first and overriding priorities of developing countries.”19 The natural understanding of the phrase “as far as possible” also supports this understanding, as it implies that states are not required to act beyond 15 Frank, The European community and marine environmental protection in the international law of the sea: implementing global obligations at the regional level, 342. 16 Ringbom, The eu Maritime Safety Policy and International Law, 471. See also Kachel, ­Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 92. 17 Birnie, Boyle and Redgwell, International Law and the Environment, 128–131. 18 Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement”, 51. 19 cbd, Premable, para. 18.

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their resources and capabilities. This interpretation furthermore finds support in legal theory. Birnie, Boyle and Redgwell state that, although the principle of differentiated responsibility is not directly in the cbd, the references “possible and appropriate” and other qualifiers imply that the each party does not bear the same burdens.20 Burhenne-Guilmin and Casey-Lefkowitz explain that The purpose of most of the qualifiers is to make the level of implementation conditional on the capacities of each party to meet the obligation at hand.21 It is therefore reasonable, due to the intention of the use of the qualifier and in the context of the other Articles, to understand the phrase “as far as possible” as a reference to the different capabilities of the states and not solely as a qualifier to deprive the provision of legally binding obligations for the Contracting Parties. This understanding is also reasonable when interpreting the phrase in the context of “as appropriate.” The phrase “as appropriate” indicates discretion in the manner of implementation and that the implementation takes place at the national level pursuant to national regulation.22 This leaves it quite open for the Contracting Parties to choose the way to implement their commitments within their respective capabilities.23 There are no judicial decisions in international law concerning the cbd that interpret or discuss the phrase “as far as possible and as appropriate.” A case decided by the High Court of Australia concerning the World Heritage Convention, however, is of interest.24 In the decision Tasmanian Dam case the High Court interpreted Articles 4 and 5 of the World Heritage Convention.25 20 21

22 23 24

25

Birnie, Boyle and Redgwell, International Law and the Environment, 133. See also Boyle, “The Rio Convention on Biological Diversity”, 44–45. Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement,” 51. They argue that “as far as possible and as appropriate” is the most common qualifier in the Convention but that it is the one that is most difficult to measure, unless, they argue, it is “interpreted as referring to the capabilities of each party.” Catherine J. Tinker, “Introduction to biological diversity: law, institutions, and science,” Buffalo Journal of International Law, 1:1 (1994): 14. Burhenne-Guilmin and Casey-Lefkowitz, “The Convention on Biological Diversity: a hard won global achievement”, 51. For an analysis of the case, see Philippe Sands, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2003), 612–615, and Wold, “The Futility, Utility, and Future of the Biodiversity Convention,” 15–17. Commonwealth v Tasmania (“Tasmanian Dam case”) [1983] hca 21; (1983) 158 clr1 (1 July 1983), available at http://www.austlii.edu.au/au/cases/cth/HCA/1983/21.html (accessed July 2015).

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It follows from Article 5 of this Convention that the states “shall endeavour, in so far as possible, and as appropriate for each country” to adopt policies and adopt services for the protection, conservation and presentation of cultural and natural heritage.26 The language used in the World Heritage Convention is similar to the language in the cbd. The interpretation of these obligations ­adopted by the High Court may therefore throw some light on the interpretation of “as far as possible and as appropriate” in Article 8 of the cbd. The question discussed in the case that is of interest here was whether Australia was under an international obligation to protect the area included on the list and, if so, the nature of that obligation. The majority and the minority of the judges came to different conclusions as to whether the treaty included a legal duty. This illustrates the difficulties and the implications which such qualifiers may have for the normative content of obligations adopted in international treaties. These difficulties are, from a legal point of view, quite similar for both the cbd and the World Heritage Convention. The arguments used by both the minority and the majority at this point are therefore relevant to the interpretation of the phrase “as far as possible and as appropriate” in the cbd. The minority commented upon Article 5 that: Thus each State Party is required to endeavour, in so far as possible, and as appropriate, to adopt a general policy with the aim described in par. (a). That obligation could hardly be more vaguely expressed.27 It was further argued by the minority that the nature of these obligations ­indicates that the State Parties did not intend to impose any legal obligations, as they would be “of the most onerous and far-reaching kind.”28 The minority, which included the Chief Justice, concluded that “although the C ­ onvention imposes on States Parties to the Convention certain obligations, Arts. 4, 5 and 6 do not impose any obligation to take any specific action,” and that the ­Convention leaves it to the each State Party to “decide whether it shall take any action at all to carry out what purport to be the obligations imposed by the relevant Articles.”29 Therefore, the obligations are, according to the minority, “political or moral, but not ­legally binding.”30 The majority argued differently. As explained by Wold, the majority took a  more “realistic view of international treaty negotiations and the differing 26 Wold, “The Futility, Utility, and Future of the Biodiversity Convention,” 15. 27 Tasmanian Dam case, 470. 28 Ibid., 471. 29 Ibid., 472. 30 Ibid.

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­obligations arising from unique legal systems and financial abilities.”31 Judge Mason and the majority found that Article 5 imposed a legal obligation on each state and stated: Article 5 cannot be read as a mere statement of intention. It is expressed in the form of a command requiring each party to endeavour to bring about the matters dealt with in the lettered paragraphs.32 With regard to the use of the qualifiers, he stated: Indeed, there would be little point in adding the qualifications “in so far as possible” and as “appropriate for each country” unless the article imposed an obligation.33 Concerning the meaning of these qualifiers, Judge Mason further held that the first qualification, “as far as possible,” meant “in so far as practicable,” whereas the second, “as appropriate,” “takes account of the difference in the legal systems.”34 With regard to the impact of these qualifiers and the element of discretion in the provision, Judge Mason and the majority stated that the qualifications and the elements of discretion in this provision were not inconsistent with the existence of a legal obligation.35 This was further elaborated by the majority and Judge Mason: There is a distinction between discretion as to the manner of performance and discretion as to performance and non-performance. The latter, but not the former, is inconsistent with a binding obligation to perform.36 The minority argued from a textual point of view and concluded that such general language could not imply any legal obligations. In their view, the ­nature of these obligations implied that the intentions of the parties could not have been to commit themselves, as the legal obligations without the qualifiers would have been too far reaching. The majority, on the other hand, took a different approach to the treaty interpretation, as they reasoned more on the intentions 31 Wold, “The Futility, Utility, and Future of the Biodiversity Convention,” 16. 32 Tasmanian Dam case, 490. 33 Ibid. 34 Ibid. 35 Ibid. 36 Ibid.

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of the states. They found it reasonable that the states intended to engage in a legally binding obligation, even if the text was expressed in general language. Therefore, the majority applied the principle of effectiveness and adopted the interpretation that gives effect to the intentions of the parties. This decision does not solve the question about how the qualifier “as far as possible and as appropriate” should be understood in the context of the cbd. However, the case is applied in legal literature when interpreting the cbd.37 Hence, the reasoning put forward by the majority supports the interpretation suggested here concerning the evaluations that “as far as possible and as appropriate” points to. The distinction made in this case between the duty to perform or to take actions and the discretion with regard to which actions to be taken is valuable for the discussion concerning how “as far as possible and as appropriate” in Article 8 in the cbd should be understood. 12.4 Conclusions The shaping and wording of Article 8 indicate legal duties for the Contracting Parties to carry out the in situ measures listed from (a) to (m), including mpas. However, the obligation to carry out the different in situ measures is qualified and not absolute. The use of the qualifiers “as far as possible and as appropriate” makes the provision both imprecise and soft, but it does not alter the legal status of this obligation. The two conditions, “as far as possible” and “as appropriate,” apply cumulatively and point to two different evaluations, respectively to the level of implementation and the manner of implementation. Consequently, the Contracting Parties are under certain circumstances under a legal duty to establish mpas. Within the required level of implementation “as far as possible,” they must ­establish mpas “as appropriate.” The Contracting Parties cannot choose not to carry out the measures in Article 8 without considering whether the measure is “possible” and “appropriate” first. This means that the Contracting Parties must undertake these evaluations; they cannot just declare that establishing mpas is not possible or not an appropriate tool. The conditions “as far as possible” and “as appropriate” thus demand a certain procedure or evaluation upon which the decision on the establishment on mpas must be based. If a Contracting Party does not make such an evaluation, it does not comply with the o­ bligation. It still remains to be examined which considerations the ­Contracting Parties are allowed to make when evaluating the two conditions and when these criteria are fulfilled so that the legal duty arises. 37

Wold, “The Futility, Utility, and Future of the Biodiversity Convention,” 15–18.

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When is there a Legal Obligation under the cbd to Establish mpas? 13.1 Introduction This chapter aims to define the situations in which a legal duty exists to establish mpas. The purpose is not, however, to describe all situations in which mpas should be established. It is not possible to identify all cases or all types of ecological factors that generate the specific duty to apply the mpas or to define very specific criteria for when the duty is generated and thereby give an exhaustive description of when such a duty exists. On the other hand, as it is a legal duty to establish mpas, there must be some situations in which the Contracting Parties are required to apply this particular tool. Article 8 (a) also includes an alternative to protected areas, as it provides that the Contracting Parties shall establish “a system of protected areas or areas where special measures need to be taken to conserve biological diversity.” The word “or” indicates that these are alternatives for the states when implementing the obligation. The wording of Article 8 (a) moreover requires the states to adopt “a system” of protected areas. This raises the question whether the legal duty to establish mpas includes both a duty to adopt individual mpas and a more general duty to adopt a system or network of mpas. The next two sections study these aspects of the legal duty in Article 8 (a). They are followed by analyses of the considerations that are relevant and the weight that they carry when determining what is “as far as possible” and “as appropriate” to clarify the circumstances under which the legal duty to apply this particular conservation instrument arises. 13.2

The Duty to Adopt Protected Areas or Areas Where Special Measures Need to be Taken

The obligation in Article 8 (a) to establish “a system of protected areas or areas where special measures need to be taken to conserve biological diversity” can be understood in different ways. First, it can be seen as an elaboration of ­protected areas, as an emphasis of the need to take special measures within protected areas. This requirement follows clearly from the definition

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of ­protected areas in cbd Article 2 and the definition of mpas provided by the cop.1 This understanding of the phrase “or areas where special measures need to be taken to conserve biological diversity” would therefore not add anything to the alternative protected areas, which does not follow from the definition of the term. Another possible interpretation of the alternative is that it provides protection of particular sites or habitats with protective measures within certain a­ reas without formally meeting the definition of “protected areas.” Accordingly, sites do not have to be designated and reserved by law as protected areas. The other alternative allows states to establish other types of area-based regimes for conservation of biological diversity than protected areas. However, in the same way as the definition of protected areas, the alternative “areas where special measures are taken to conserve biodiversity” implies that protective measures for conservation of biological diversity must be adopted within the area. The phrase “areas where special measures need to be taken” also implies that the sites that need protection must be identified in the same way as required for protected areas according to the definition in Article 2 of the cbd. This means that the two alternatives in reality are not very different. The alternative in Article 8 (a) implies, however, that the formalities concerning how areas are protected are not decisive. 13.3

The Duty to Establish a System of mpas

It follows from the wording of Article 8 that the states must establish a “­system of protected areas.” The cop under the cbd endorsed the wssd target to adopt a representative network of mpas by 2012.2 The deadline for achieving this ­objective, was later extended by the cop to 2020.3 A network of protected areas is of particular importance for the conservation of marine biodiversity.4 The marine ecosystems are large; they are connected with each other and with terrestrial ecosystems. Species migrate large distances; the biodiversity is transboundary, as species do not pay attention to the geographical b­ oundaries 1 See discussions of the definitions of mpas in Subsection 1.2.2. It follows from the definition of protected area in the cbd Article 2 that “‘Protected area’ means a geographically defined area, which is designated or regulated and managed to achieve specific conservation objectives.” 2 cbd cop Decision, VII/5, para. 19. 3 cbd cop IX/29, para. 4 and para. 16. 4 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 14 and 20–21.

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of mpas. As the mobility of marine species is greater than the mobility of ­terrestrial species, it is necessary to see ecosystems and different marine areas in connection with each other to guarantee protection.5 Protection of all components of biological diversity within an area can be achieved only through a network of mpas. Article 8 (a) does not include the term “network,” but requires the states to establish a “system of protected areas.” The cop ­expresses as a goal of the programme of work on mpas to establish a global network of marine and coastal protected areas…to maintain the structure and functioning of the full range of marine and coastal ecosystems, in order to provide benefits to both present and future generations.6 One may argue that this expressed goal to adopt “a global network of mpas” is the interpretation by the cop of the terms “system of protected areas” and that Article 8 (a) should therefore be read as a legal duty to establish a network of mpas. In any event, the terms “system” and “network” both indicate the use of protected areas as part of a systematic establishment of mpas or part of a wider plan for conservation of biological diversity. A network of mpas means more than one mpa. It refers to a set or a collection of mpas. The terms “­system” or “network” therefore indicate something else and something more than just ad hoc protection of areas as acute actions to protect the areas. The call for a network of mpas also implies something more than just a collection of individual mpas. A network contributes to creating a coherent protection of biodiversity by, for instance, accommodating the dependencies between different species and between areas.7 The Contracting Parties cannot, therefore, meet this obligation by establishing mpas on an ad hoc basis as a response to the identification of critical habitats or harmful activities. A random selection of mpas would not fulfil the obligation of a “system” of mpas. The reference to the establishment of a “system of protected areas” does not, however, mean that a concrete or individual duty does not exist to apply this tool to protect rare or vulnerable habitats or other areas that need protection. When the Convention aims at achieving a system or network of mpas, this should be understood as an assurance for creating enough protected a­ reas of

5 nou 2004:28, 341. 6 cbd cop Decision VII/5, Annex, Programme element 3, Goal. 7 About networks and connectivity between mpas, see cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 20–21.

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sufficient quality to achieve the conservation goals.8 It is expressed as a goal by the cop to adopt a network of mpas “to maintain the structure and functioning of the full range of marine and coastal ecosystems.”9 The call for a network of mpas should rather be understood as a reflection of the need to conserve all ecosystems, representative, unique, special and threatened, and to ensure that there is connectivity between them.10 The cop states for instance that the areas in which extractive uses are permitted may serve as a buffer for areas in which extraction is excluded.11 Moreover, a system or network of mpas consists of individual mpas established on the basis of different ecological considerations. This can be a collection of representative areas protected as mpas or areas connected with each other, for instance that the ecosystems are connected. This can also be ­networks consisting of different areas that are protected, because they contain particularly valuable or vulnerable ecosystems and habitats.12 This indicates that the duty to establish mpas exists at two levels: at a general level to establish a network of mpas and at a more specific level to instigate targeted or temporary action in part to establish a network of mpas and as acute or temporary action in specific situations and particular circumstances. An individual duty to establish mpas to protect certain specific areas is also reflected and supported by other obligations in the cbd and by other sub paragraphs in Article 8. According to Article 7, the states must identify and monitor ­important components for conservation of biodiversity and identify processes and activities that “have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity.”13 Annex 1 to ­Article 7 provides an indicative list of threatened species or communities that support the existence of an individual duty to establish mpas, such as, for instance, an acute or temporary establishment of mpas as part of the obligation. Furthermore, Article 8 (l) requires that, when a “significant adverse effect on biological diversity has been determined pursuant to Article 7,” the activity should be managed or regulated. This could in some scenarios require the establishment of an mpa, if, for ­instance, it is ­necessary to prohibit all uses of resources within the area 8 See also nou 2004:28, 287–288. 9 cbd cop Decision VII/5, Annex, Programme element 3, Goal. 10 The cop states that networks of mpas are “essential” to protecting marine biodiversity within an area, see ibid., Appendix 3, para. 4. 11 Ibid., Appendix 3, para. 9. 12 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 16, see also cbd cop Decision VII/5, para. 21 (a) and (b). 13 cbd Article 7 (a) and (c).

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and remove or ­minimise all potential threats.14 Furthermore, Article 8 (d) and (f) support the understanding of Article 8 (a) as a specific duty to establish mpas in c­ oncrete cases. These provisions refer to the protection of ecosystems and the rehabilitation and restoration of degraded ecosystems and threatened species. In ­situations when the ecological considerations are crucial, either ­because a habitat is under a ­serious threat, a species is endangered or rare, or an area is particularly valuable, for instance, as a spawning area and cannot be sufficiently protected by other means, the establishment of an mpa could be necessary to “promote protection of ecosystems” in (d) or to “rehabilitate or restore a degraded ecosystem” pursuant to (f). Consequently, the obligation in Article 8 includes a legal duty to establish a system or a network of mpas. The obligation also contains a potential individual legal duty in concrete situations in which Contracting Parties have to apply this particular tool for certain areas to protect a particular habitat or an area to restore degraded ecosystems or protect threatened species. The Contracting Parties are provided wide discretion to identify and select areas that should be established as mpas and be part of the network of mpas. Whether there are requirements to the selection of areas as mpas is addressed below in Subsection 14.6.2. 13.4

Which Considerations Must be Made under the Term “as far as possible”?

13.4.1 General The phrase “as far as possible” implies that the Contracting Parties are not obliged to do anything that is not “possible” and therefore limits the obligation to take actions that go beyond their capacities. The limit of what is “possible” differs from state to state, as it depends on each state’s c­ apabilities, meaning their economic, financial, personnel and technical resources. The question of whether it is possible to implement any of the conservation measures is relevant in developing states. The costs of establishing mpas can be high, and when establishing mpas in developing countries, social and ­economic considerations are particularly important and must be emphasised together with the environmental considerations. On the other hand, it is difficult for developed countries, such as the coastal Arctic states, to argue that it is not possible to establish a protected area and to prohibit, for instance, oil d­ rilling or fishing activities within this area. For developed states, the i­mplementation of the 14

The significance of Articles 7 and 8 (l) for the requirements of the content of the o­ bligation to establish mpas is addressed below in the next chapter.

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conservation measures on the national level involves more political questions. Whether mpas should be established is a question of political will to give priority to environmental considerations as opposed to other interests and not a question whether this is “possible.”15 The formulation “as far as possible” does not define the strictness of the ­obligation or the required level of actions. The minimum level of what is required from the Contracting Parties and how far they must go in their implementations to comply with the obligation remain unclear. Since the phrase “as far as possible” makes the obligation dependent on the capacity of the state, one may question whether this means that there is a duty for developed states to perform in all cases. Is it an absolute obligation, an unconditional duty to act when “possible”? Or does the term “possible” imply that a Contracting Party is allowed to take into account other relevant considerations, such as social and economic considerations? 13.4.2 Does “as far as possible” Allow a Balance of Interests? To determine the required level of action, the question addressed here is whether the phrase “as far as possible” allows a balance of different interests, or must it be read literally to do “as much as possible.” A reflection of the normative structure, or the type of obligation in Article 8, may contribute to defining when there is a duty under the phrase “as far as possible” for the Contracting Parties to take actions and also to defining the required intensity of such actions. Norms that are not absolute, that do not set out precise requirements upon the states, are often used in the field of international environmental law. Different types of international environmental norms are described and categorised by Ebbesson. In his study of international obligations, he identifies five different ways of defining the international obligations concerning pollution.16 One of the definitions includes “balancing norms,” which may throw light on the question of what level of actions the states are required to take on the basis of Article 8. Both obligations of customary law on due diligence and environmental treaty obligations are defined by balancing norms.17 Balancing norms are international norms expressed in terms such as “possible,” “necessary” or “appropriate,” similar to the provision in Article 8.18 Balancing norms are defined by Ebbesson as: 15 Ulfstein, “Fisheries Management and the 1992 Convention on Biological Diversity,” 50. 16 Ebbesson, Compatibility of International and National Environmental Law, 85. 17 Ibid., 103–135. More about due diligence obligations see Birnie, Boyle and Redgwell, ­International Law & the Environment, 147–150. 18 Ebbesson, Compatibility of International and National Environmental Law, 111–112. Article 8 also may also, as pointed out by Ebbesson, be characterised as a goal-oriented norm, ibid., 170, footnote no.24. The Contracting Parties are required by Article 8 to maintain a

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a particular kind of regulatory technique, a legal approach, for defining obligations, whereby the balance takes place “within” the norm. This ­approach is used in regulations aimed at balancing different interests, often held by different groups in the society, against each other, by bringing out arguments and considerations in favour of the one or the other solution.19 As argued above, the notion of differentiated responsibility is an argument that “as far as possible” should be understood as a reference to the capabilities of the states. Birnie, Boyle and Redgwell point out that the notion of common but differentiated responsibility can be compared with due diligence obligations.20 Both types of obligations allow differentiated standards of conduct. The due diligence obligations do not, however, include the element of solidarity, which is evident in the obligations of differentiated responsibility. Due diligence obligations are also referred to as contextual norms in legal theory.21 Magraw differentiates among three types of international norms: “differential norms”; which he explains as norms that give different, often favourable treatment to developing countries; “contextual norms” that provide identical treatment of all states, but involve consideration and balance of characteristic and values that may vary due to the economic development in different countries; and finally “absolute norms” that are more precise and do not permit or require considerations of factors that may vary among the different states.22 By committing themselves to norms that are not absolute, the states are granted flexibility and discretion. Ebbesson has expressed this flexibility and variation in the required standards of national implementation when international obligations are defined as balancing norms as follows: “Once techniques improve or the economic situation changes, the outcome of the balance should lead to other normative solutions regarding protective measures.”23 A characteristic of the norms that Ebbesson calls balancing norms is that they do not provide a “normative solution.” Ebbesson explains that “to arrive at a particular result and quality, namely the conservation of biodiversity, which fits therefore into what Ebbesson describes as goal-oriented norms, ibid., 163. 19 Ibid., 87. 20 Birnie, Boyle and Redgwell, International Law and the Environment, 149. 21 The concept of contextual norms is discussed in Daniel Barstow Magraw, “Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms,” Colorado Journal of International Environmental Law and Policy, 1 (1990): 74–76. 22 Ibid., 73–76. 23 Ebbesson, Compatibility of International and National Environmental Law, 134.

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normative solution, whether a particular activity is lawful or not, someone has to undertake the subsequent balancing process.”24 Accordingly, when implementing the international obligation, each state must consider and balance different interests and arguments against each other.25 When balancing different interests, the state brings to light considerations in favour of one or another solution. Different obligations give different directions, either implicitly or explicitly, for how the balance between the interests and arguments should be carried out. Other obligations leave it to the states to determine how environmental considerations should be balanced against other interests.26 A particular feature with balancing norms is thus that the minimum level of what is required is often vaguely defined leaving the required level of implementation unclear.27 Accordingly, to determine which evaluations the Contracting Parties must carry out when implementing Article 8 requires a determination whether “as far as possible” in the context of the cbd allows or requires a balance of different interests and factors when deciding if any of the in situ measures must be taken. The question is thus whether the qualifier “as far as possible” must be interpreted so that the Contracting Parties are allowed to balance different interests, such as ecological interests, social, technical and cost-effective interests, when implementing the obligation. One could argue that, on the basis of a strict reading of the phrase “as far as possible,” such a balance of different interests is not allowed. According to this understanding, states are required to everything within their power to comply with the obligation. On the other hand, it can be argued that “as far as possible” should not be understood literally, but rather as a reference to a balance between the need to take actions to conserve the biological diversity and the capabilities and capacities of the states. When looking at the term like this, it could be held that the states are required in the light of their capabilities and the relevant circumstances to take actions that are reasonable due to economic and practical considerations.28 There seems to be a widespread opinion both in legal theory and a widespread practice in treaty interpretation that

24 25 26 27 28

Ibid., 87. (Emphasis is in the original). Ibid., 88. Ibid., 103. Ibid., 95–96. See discussions by Nollkaemper about the interpretation of the term “possible” in other conventions, in Nollkaemper, ““What you risks reveal what you value”, and other ­Dilemmas Encountered in the Legal Assaults on Risks,” 88.

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phrases like this are interpreted so that they allow the balancing of different interests where conservation and protection of biodiversity in this case would be one of the interests.29 Ebbesson argues in general about the formulation of such balancing norms that: The formulations may indicate that no balance is allowed in the application of the rule. It is generally understood, however, at least in the international context, that when determining what is “possible” or “practicable”, the environmental protection may be balanced against other interests. One may speak of an “optimization” of the environmental protection, i.e. a striving for as strict environmental protection as possible after due consideration is paid to economic and other factors.30 Further, Magraw argues that the term possible “indicates a contextual norm that takes into account resources and technical and regulatory capabilities.”31 On this basis, it is reasonable to understand the phrase “as far as possible” to allow a balance of environmental considerations against other interests and considerations. The nature of the obligation to ensure in situ conservation of biodiversity also implies that different interests and considerations must be made. When the Contracting Parties decide, for instance, to establish a protected area, a number of conflicting different interests of a local and national character arise. Social and economic interests, as well as industrial interests etc. are all important and need to be evaluated. This evaluation of interests cannot be solved on the basis of an international norm; they must be balanced at a national level on a case-by-case basis. Furthermore, the different values of biodiversity, including its social, ­economic and recreational values, are acknowledged in the Preamble of the Convention and support the view that other interests than merely ecological considerations are allowed to contribute to determining whether and which actions to take. The point of view that the establishment of mpas relies on an assessment of different criteria, in particular social, ecological and economic criteria, is expressed in legal literature by de Fountabert, Downes and Agardy who argue:

29 Ibid., 88–89. 30 Ebbesson, Compatibility of International and National Environmental Law, 88–89. 31 Magraw, “Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms,” 91.

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The precise criteria used for identifying and creating mpas would vary from nation to nation but would reflect weighing of social, economic and ecological criteria, and depend primarily on a society’s overall conservation objectives.32 Social criteria encompass recreational, educational and cultural aspects. Other social considerations are the interests of the stakeholders and the desire to avoid conflicts between the different users of an area where the regulation of a certain human activity is planned. Economic criteria mean that the decisionmakers may take into account the economic value of a species if an area is considered to be protected or other cost-effective considerations when regulating or restricting certain human activities within or outside such areas to ensure conservation or sustainable use of the biodiversity.33 Conclusively, the Contracting Parties are provided with some discretion when ­determining the balance between different considerations, such as economic development and environmental protection. A clearly defined minimum level of when it is required to implement the in situ measures does not exist and must be determined on a case-by-case basis in light of the relevant circumstances. 13.4.3 How Should the Relevant Considerations be Weighed against Each Other? To define the duty to establish mpas more precisely, it is necessary to determine the weight of the relevant considerations. Are the Contracting Parties free to determine themselves how to value environmental protection concerns as opposed to ecological or social concerns? Or does Article 8 imply that priority should be given to ecological considerations? The provision does not give any clear direction on how the different interests, such as economic and conservation interests, should be weighed against each other. Churchill points out as a general weakness of other existing agreements for the protection of habitats that the obligations do not give any explicit direction for how the conservation interests should be weighed against the other relevant interests.34 This is also the case for the obligations of the cbd. Such direction can, however, follow implicitly from the norm. 32

De Fountabert, Downes and Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,” 776. 33 Ibid. 34 Robin Churchill, “The Contribution of Existing Agreements for the Conservation of ­Terrestrial Species and Habitats to the Maintenance of Biodiversity” in International Law and the Conservation of Biological Diversity, eds. Michael Bowman and Catherine Redgwell (The Hague: Kluwer Law International, 1996), 87.

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We have seen that the phrase “as far as possible” implies that this is a balancing norm. This norm must, however, be applied in the context of facts, other legal arguments and other legal norms.35 Ebbesson argues in this respect that balancing norms are: rather frameworks, which need to be complemented by information on interests and by facts as well as other legal considerations before a normative solution is drawn.36 The general duty of in situ conservation reflected in Article 8 is significant for the balance of interests that takes place when the states make their evaluations of whether the in situ measures, including mpas, should be established. Article 8 is an obligation that is aimed both at results and means for in situ ­conservation. Therefore, the Contracting Parties must look to the result of the application of Article 8 in total and ensure that the obligation is implemented in such a way that the requirement of in situ conservation can be achieved. This means that the required state of nature, in situ conservation of the biodiversity, gives directions for the balance of different interests under the condition “as far as possible.” The general duty to ensure in situ conservation, which Article 8 reflects, therefore limits the scope of the discretion of the Contracting Parties when implementing the obligation. However, it is difficult to define precisely which consequences the duty to ensure in situ conservation has for the application of the rule in Article 8 (a). It is reasonable to require that the Contracting Parties do as much as possible to comply with the general obligation of in situ conservation. This means that an interpretation of the norm where the conservation interests carry more weight than social and economic considerations would give effect to the objectives of the convention and should thus be adopted. When the balance of interests is carried out, the objective of conservation is, at the end of the day, the overall goal and objective. Although it is difficult to determine the exact level of implementation in terms of what is required to ensure conservation of biodiversity, the actions of the states must to comply with the obligation endeavour to achieve this objective. In general, the norm must therefore be interpreted so that it gives priority to conservation interests when valuing such interests against economic, financial or technical interests etc. under the condition “as far as possible.” The discussions show that the Contracting Parties are granted some freedom to consider environmental benefits and costs, such as the cost-effectiveness of 35 Ebbesson, Compatibility of International and National Environmental Law, 87. 36 Ibid.

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the tools, when implementing the obligation. This means that, if the conservation interests in the particular case are already sufficiently safeguarded or can be safeguarded by other less cost-effective means than mpas, the Contracting Parties may comply with the obligation through such measures. However, as it is argued that conservation interests carry more weight, which means at least that, in cases where the ecological interests are crucial, these interests must prevail. For instance, in an area in which sensitive or important biological diversity is threatened by different activities, economic interests cannot determine that, to establish a protected area or to take other in situ conservation measures, would be beyond “as far as possible” and therefore beyond the limit of what the Contracting Parties are required to do. A result of the understanding that environmental interests carry more weight than other considerations is that, when considering either the establishment of mpas or another in situ conservation measure with fewer costs, the alternative that gives the best conservation ­result must be chosen. A possible exception could be if this measure would result in unreasonable costs.37 Other legal norms and principles may limit the discretion that the phrase “as far as possible” gives to the parties. The precautionary principle emphasises that uncertainties and the risks should be considered. Although the precautionary principle is included only in the Preamble of the Treaty, it is relevant as a factor of interpretation.38 If the Contracting Party is considering whether an mpa should be established, or whether another conservation measure with less costs should be established, the precautionary principle could serve as a relevant argument in favour of the establishment of a protected area. Furthermore, if a threat of significant loss of biological diversity in a concrete area is identified, the precautionary principle could suggest that an mpa be established to deal with the uncertainty related to the environmental risks. If in such situations it is uncertain whether other measures may ensure effective protection of an ecosystem or a habitat, the precautionary principle is an argument in favour of the establishment of an mpa.39 The precautionary principle may therefore lead to a stricter interpretation of the norm when there is such a threat of significant loss of biodiversity. In this way, the precautionary principle could limit the discretion of the obligation to establish an mpa. Also as argued above in Subsection 7.2.7.1, the n ­ ormative force of the precautionary principle is strengthened, as the cop has adopted the precautionary principle as a basic principle for the i­mplementation of 37 38 39

See ibid., 112. See discussions above in Subsection 7.2.7.1. nou 2004:28, 193–194.

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the programme on conservation of marine and coastal biodiversity.40 However, the precautionary principle does not in itself determine whether an mpa should be established, but it is a relevant and significant argument in that direction. 13.5

Which Considerations Must be Made under “as appropriate”?

It is already established that the phrase “as appropriate” points to the manner of implementation, how the duty to establish mpas is carried out. The phrase “as appropriate” indicates that the implementation of the obligation takes place at the national level subject to national regulation. By adding the term “as appropriate,” the provision therefore grants flexibility and discretion to the manner of implementation and the means taken to ensure in situ ­conservation. The states may carry out the conservation measures so that they are ­tailored to meet the particular threats in an area and consistent with l­ ocal ­biodiversity considerations. The requirement to act “as appropriate” must therefore be ­considered in concrete cases. Literally, it is reasonable to understand the phrase “as appropriate” as a requirement to implement the in situ measures in a manner that is suitable. Furthermore, it is reasonable to understand what is appropriate or suitable in relation to the purpose of the obligation. “As appropriate” thus indicates the implementation of the measures at the national level in a way that serves the objective of in situ conservation. Subject to this understanding of “appropriate,” the Contracting Parties are in concrete situations free to decide which in situ measures and which content these protective measures should have on the basis of what is suitable under the circumstances in a concrete situation. For instance, if the party discovers a rare habitat or some endangered species, it is up to the party to take the appropriate measures to protect it. This means that, if an mpa is not “appropriate” in a concrete situation as a tool for conserving a viable population of species or for controlling a particular threat, then the Contracting Parties are not obliged to implement this tool. In that situation, the Contracting Parties have discretion not to establish mpas. To clarify when there is a duty to establish mpas, it is necessary to discuss further which interests or considerations are valid as arguments under the evaluation of “as appropriate.” It is argued above that it is reasonable to 40

cbd cop Decision VII/5, Annex 1, para. 4.

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­ nderstand “as appropriate” as pointing to a different assessment than “as far u as possible.” Other relevant interests and values of biodiversity than ecological considerations are already safeguarded, as they are considered when the states assess what is within “as far as possible.” The phrase “as appropriate” is therefore best understood as a reference to an assessment of the suitability of a concrete measure based on ecological considerations. This way of interpreting “appropriate” also corresponds with and gives effect to the purpose of Article 8 and the emphasis the Contracting Parties have put on in situ conservation in the Preamble.41 It is therefore reasonable that “as appropriate” refers to the manner of implementation of conservation obligations and requires that they be implemented on a basis of relevant ecological considerations. These considerations include such criteria as the richness, sensitivity, representativeness of the area, species, habitats or ecosystems that are under threat, knowledge of the types of activities that threaten the biodiversity in a given area, and which measures are needed to protect biodiversity. This understanding of “as appropriate” contributes to the achievement of the objectives at the national level, as the Contracting Parties evaluate under local circumstances which conservation measures should be adopted, where, and how they should be shaped in the different areas. The interpretation of appropriate as a reference to what is “appropriate” from ecological considerations is supported by the principle of effectiveness, as this promotes the purpose Article 8 and the general obligation to ensure in situ conservation. The decision whether a measure is appropriate is to be decided on the basis of whether the measure in a given case is suitable to accomplish the objective of in situ conservation and the underlying objectives of the Convention, conservation and sustainable use of biological diversity. This interpretation also finds support in legal theory. Ulfstein for instance argues: The reference to “as appropriate” would probably mean that such areas shall be established unless other measures are more convenient and will have the same protective effect on biodiversity.42 Ulfstein further suggests that the formulation “appropriate” in Article 6 (b) should be understood so that it refers to how conservation of biodiversity “should be integrated into the relevant sectoral or cross-sectoral plans, programmes, and policies” and not only as a requirement for the state when it

41 42

Preamble, para. 10. Ulfstein, “Fisheries Management and the 1992 Convention on Biological Diversity,” 50.

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finds it appropriate.43 This suggested interpretation of “appropriate” in the context of Article 6 supports the point of view that the ecological considerations concerning conservation of biodiversity are the valid arguments. This interpretation means that, if a coral reef is discovered in an area where extensive fisheries activities are carried out, and it would not be enough to protect the reef by prohibiting bottom trawling in this area or by regulating the fisheries in another way, for instance, because it is necessary to protect areas close to the reef that are ecologically linked to the reef or because the reef is vulnerable to a number of different threats, the requirement “as appropriate” could indicate that an mpa should be established. If this also is within “as far as possible,” then one could argue that in this concrete situation there is a duty to establish an mpa. The term “as appropriate” implies that it is the given circumstances that determine how the obligation should be implemented. Therefore, the duties in Article 7 of identifying and monitoring biodiversity and the activities that may have significant adverse impacts on biodiversity are relevant to the implementation of the conservation measures in Article 8 “as appropriate.” Scientific knowledge of biodiversity is a prerequisite for proper conservation. The scientific data or knowledge that the states must acquire on the basis of Article 7 is relevant to the evaluation of “as appropriate” when implementing Article 8 (a) and the duty to establish mpas. Article 7 also specifically indicates that it serves a role for the implementation of Articles 8 to 10, as it states “in particular for the purposes of Article 8 to 10.” If the Contracting Party has provided knowledge about components of particular importance for the conservation of biodiversity and about a particular activity that may cause damage to it, such as land based pollution, this will give directions for which measures that should be adopted and the manner of implementation of the concrete conservation measures. This understanding is further supported by Article 8 (l) where the states, if they identify an activity that has “significant adverse effect on the ­biodiversity,” must “regulate or manage the relevant processes and categories of activities.” The required regulation or management can be to establish an mpa. The decision about what is appropriate must thus be made in relation to what ecological values, what components of the biodiversity one wants to conserve and in relation to the threats to which it is exposed. Therefore, no general

43

Geir Ulfstein, Rettslige sider ved biologisk mangfold i havet, Utredning for Biomangfoldlovutvalget, Oslo, 2003. (Unpublished legal report prepared for the committee appointed by the Norweigan Ministry to review the legislation relevant to biological diversity).

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answers can be given to what “appropriate” is, as this must be determined on a case-by-case basis and will vary depending upon which ecosystems or habitats need to be protected and which activities that are threatening them. It can therefore be argued that “as appropriate” requires that the Contracting Parties, in a given situation where the conservation of biodiversity is necessary, must apply this specific measure. This will be the case if no other measures can have the same protective effect on the biodiversity.44 Consequently, the ­Contracting Parties are in a given situation under a legal duty to establish mpas. In such a situation, the discretion will encompass only the precise content of the protective measures and the legal and administrative means of implementation and not the application of the tool as such. The discussion here has mainly focused on whether an mpa is “appropriate” in concrete cases in which a particular threat or habitat etc. is discovered. With regard to the general duty that follows from Article 8 (a) to have or establish a network of mpas, it is difficult for a state to argue that it does not find this tool appropriate for the purpose of in situ conservation and thereby refrain from the selection and establishment of such areas. The significance of mpas in the in situ conservation of biodiversity is repeatedly expressed through the practice of the cop. The cop states that: marine and coastal protected areas are one of the essential tools and approaches in the conservation and sustainable use of marine and coastal biodiversity.45 Consequently, with regard to the general duty to establish a network of mpas, the emphasis on the use of mpas within the cbd considerably limits the discretion when considering whether mpas should be established to comply with the duty. The discussions show that the condition “as appropriate” is relevant to the question of when there is a duty to establish mpas. The evaluation gives direction to the Contracting Parties when determining whether any of the conservation measures in Article 8 should be adopted. It is not possible to give a precise definition of when an mpa is the “appropriate” measure and therefore must be established. The term “appropriate” requires a contextual analysis. Whether and how a measure should be taken must be determined concretely. It is necessary to make a concrete evaluation whether a suggested measure fits

44 45

Ulfstein, “Fisheries Management and the 1992 Convention on Biological Diversity,” 50. cbd cop Decision VII/5, para. 16.

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in a concrete situation.46 The phrase “as appropriate” refers to an assessment that also is relevant to how the measures should be implemented. The different measures including protected areas may be implemented in different ways; the phrase “as appropriate” indicates a requirement to implement the measure in a manner that is tailored to meet the ecological considerations and potential threats in each particular area. 13.6

Interactions between “as far as possible” and “as appropriate”

Although it is emphasised that the conditions “as far as possible and as appropriate” must be evaluated separately and based on different considerations, they are cumulative conditions and must also be seen together. If the biodiversity is of particular importance or sensitive, it can be argued that the threshold for when there is a duty for the Contracting Parties to act is lower. If it is necessary to take a comprehensive and expensive conservation measure, such as an mpa, it may imply that the states must tolerate extra costs when determining what is within “as far as possible.” This shows that there are interactions between the assessments of the two conditions “as far as possible” and “as appropriate.” In situations where the ecosystem or the rare or vulnerable habitat needs to be protected by an mpa, because this is the “appropriate” conservation measure, it is also likely that the ecological considerations are of such a character that they should prevail over the other relevant interests in the evaluation of what is “possible.” This shows that, although it is settled that the two terms “possible” and “appropriate” point to two different evaluations, the criteria must be seen in the context of each other. When the ecological criteria are crucial in the sense that they can be protected only through strict measures, for instance by a highly protected mpa, the limit for what is possible, the level of action required from the states is higher than in other situations. This understanding is supported by the objective of Article 8 and of the Convention; the establishment and design of the mpas must be so that they are effective and meet their objectives of conservation.47 Decisions on the establishment of mpas, their selection, location and management, require analyses of the cost-effectiveness of the tool; assessments of what is possible due to available 46 47

Magraw, “Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms,” 91. cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 22.

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resources and what is necessary to ensure appropriate conservation for achieving the underlying objectives.48 This implies that the conditions are seen in relation to each other. As a general rule, due to the understanding of “as far as possible and as appropriate,” a Contracting Party cannot choose to adopt a measure that provides less protection but has lower costs. On the other hand, what if a concrete measure offers less protection, but the costs of other measures are unreasonable high? The answer to this is not clear. However, the evaluation of “as far as possible” and the right to make economic considerations suggest that the Contracting Parties are allowed to take a “less appropriate” measure.49 13.7 Conclusions The result of the legal analyses is that cbd Article 8 includes a legal duty to establish mpas when doing so pursuant to a concrete evaluation is within what is possible for the Contracting Parties and when an mpa, after a consideration of the marine biodiversity within the area, the potential threats and the available measures or tools for handling these threats, is the appropriate measure or the measure that offers the most effective protection of the biodiversity. The legal duty pursuant to Article 8 includes both a general duty to establish a network of mpas and an individual duty to establish an mpa in certain situations for areas that are in need of protection due to their vulnerability, richness, uniqueness etc. 48 49

The cost-effective approach is described by the secretariat of the cbd ibid., 22–23. See Magraw,“Legal Treatment of Developing Countries: Differential, Contextual, and ­Absolute Norms,” 91,who argues in relation to the World Heritage Convention Article 5, that the term “appropriate” probably would allow a less effective action to be taken due to the available resources.

chapter 14

The Management of mpas under the cbd Convention 14.1 Introduction It is not enough to designate areas as mpas to achieve the objectives of conservation and sustainable use of marine biological diversity. The mpas must also be managed.1 However, it is not clear how mpas adopted under cbd shall be selected or managed. The general and broad duty in Article 8 (a) to establish “a system of protected areas,” without further specifications, leaves the ­Contracting Party broad discretion when implementing the obligation. N ­ either the definition of a protected area in Article 2 “as a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives” gives much guidance to the question of how the areas must be managed to comply with the legal duty to establish mpas. The freedom in defining the content of the mpas when implementing the obligation is also supported by the provision in Article 8 (b) where it is left to the ­Contracting Parties to “develop, where necessary, guidelines for the selection, establishment and management of protected areas.” The concept of biodiversity itself requires flexible rules due to its vagueness and open-ended character.2 To achieve in situ conservation of biological diversity, it is necessary to give the Contracting Parties the freedom to choose the manner in which to achieve the conservation goals. It is not possible or desirable to create specific rules that take all relevant circumstances into account and also adapt to changes in the background knowledge on the existence of species, rare ­habitats, how the marine ecosystems function, and what effect human a­ ctivities have on biodiversity.3 The use of protected areas as a measure for conservation of biological diversity involves strong national and local interests, both economic and social, and affects the interests of different

1 See Gillespie, “Protected Areas and International Environmental Law,” 131. 2 Verschuuren and Oudenaarden, “The Role of Ideals in Legal Development: Sustainable ­Development and the Conservation of Biological Diversity as Cases in Point,” 238–239. 3 Verschuren and Oudenaarden state that the drafting of the Convention as a framework ­convention should be “appraised more positively,” ibid., 255.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_015

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s­ takeholders. It is thus necessary to have a flexible framework to be able to take such local circumstances into account.4 On the other hand, as result of the wide discretion and freedom regarding the management of mpas could be that the effectiveness of the Treaty is limited. As the Contracting Parties have different environmental priorities, and develop and apply different environmental criteria and goals for the national implementation of the legal duty to establish mpas, they may therefore form a heterogeneous practice that may make the achievement of the overall objectives of the Convention difficult. The analyses in this chapter, therefore, aim to contribute to translating the broad duty to establish mpas into more concrete legal requirements for the management of mpas. The chapter includes analyses of potential procedural requirements such as requirements to establish mpas as part of a wider strategy or framework and to carry out eias, and substantive requirements relating to the selection of sites and the adoption of protective measures to regulate and control human activities. The analyses are carried out through an interpretation of Article 8 and the relevant legal sources, bringing forward the relevant legal arguments that the states must evaluate and balance when they implement the obligation to establish mpas. The relevant decisions of the cop elaborate upon the obligation to establish mpas, and are also of significance for the management of mpas. 14.2

Development of Criteria for Selection and Management of mpas

The Secretariat of cbd and international organisations such as iucn provide recommendations and guidelines on the basis of science, practice, and experience for the establishment and management of mpas. Such guidelines are not legally binding, but they are useful when implementing the obligation to establish mpas.5 iucn has provided a set of Guidelines where the aim is to help the countries to establish mpas. These are, however, vague guidelines that must be made concrete by the states and adapted to their particular ­circumstances.6

4 Ibid., 241, where Verschuren and Oudenaarden state that in addition to being unfeasible in practice, strict global rules are also undesirable due to the need for taking local considerations into account. 5 See cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas” and Kelleher, Guidelines for Marine Protected Areas. 6 iucn has developed different categories of protected areas, see Subsection 1.2.3.

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Nevertheless, these guidelines, together with the different legal regimes for protected areas, constitute a practice for the management of mpas.7 The cop has prioritised to strengthen the cbd regime on conservation and sustainable use of marine biodiversity since the adoption of the Treaty, and has elaborated upon the obligations through their decisions. The process, from the adoption of the Jakarta Mandate at the second cop meeting to the adoption of the programme of work on marine and coastal biodiversity at their fourth meeting, has contributed to complementing and developing the text of the convention in terms of clarifying criteria for the selection, planning, and management of the mpas.8 The cop later adopted an elaborated programme of work on marine and coastal biodiversity conservation, and provided guidance for the adoption of a national framework of marine protected areas.9 In the programme of work, the cop elaborates upon the agreed goals of mpas into operational objectives, sets out ways and means of achieving the goals, and identifies activities for the states.10 In addition, other decisions and work programmes of a more general character – so called cross-cutting issues such as programme of work on protected areas and the principles for ecosystem approach – are relevant to the establishment and management of mpas under the cbd.11 The cop has also adopted Guidelines for environmental impact assessments that are important for the procedural requirements of establishing mpas.12 The recommendations and guidelines provided by the cop and the iucn are starting points for the following legal analyses of requirements with regard to selection and management of mpas. 14.3

The Significance of the Term “as far as possible and as appropriate” for the Management of mpas

As shown above, the clause “as far as possible and as appropriate” provides the Contracting Parties with discretion when implementing the legal duty to 7

8 9 10 11 12

See also Alexander Gillespie, “The Management of Protected Areas of International ­Significance” New Zealand Journal of Environmental Law, 10 (2006): 93–94 who aims to “provide a framework, to show that a clear practice is evolving in international law with regard to protected areas, that their management and planning require the endorsement of at least eight considerations.” cbd cop Decision II/10 and cbd cop Decision IV/5. cbd cop Decision VII/5, para. 20–28 and Annex 1. The elements of a national framework for marine and coastal biodiversity management framework is elaborated in Appendix 3. Ibid., Annex 1, programme element 3. cbd cop Decision VII/28; cbd cop Decision VIII/24. cbd cop Decision VIII/28.

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establish mpas. The Contracting Parties´ leeway when establishing mpas is ­determined by these terms, as they are only free to determine if and how mpas should be established within what is “as far as possible and as appropriate.” This means that the clause also gives directions for the content and shaping of the mpas. As the wording “as far as possible” allows for the balancing of interests, as concluded above in Subsection 13.4.2, there is not an absolute obligation that all potential damaging activities are restricted within an mpa. On the basis of other interests than environmental considerations, more “limited” or less strict mpas may be adopted. Social or economic considerations could, therefore, imply the establishment of an mpa where sustainable use of resources or other uses such as shipping or oil and gas extraction or extraction of other mining resources is allowed. However, as the ecological considerations carry more weight than other considerations when balancing relevant interests, the Contracting Parties must adopt strict regulations or prohibit human activities that may impede other interests such as social interests or interests related to the fisheries industry etc., if they are necessary to protect the objective of conservation, the vulnerable ecosystem or a habitat etc. that is protected by the mpa.13 The second qualification “as appropriate” implies that the Contracting ­Parties have discretion as to how to implement the legal duty. First, this means that they may take national or local interests and circumstances into account when establishing mpas. Secondly, the term has significance for the management of mpas as it implies that the Contracting Parties must implement the duty in a manner suitable to achieving in situ conservation.14 This requires that the regulations of the mpas must be designed in order to ensure in situ conservation. The term “as appropriate” therefore also limits the discretion, as mpas must be managed so that this underlying objective may be achieved. 14.4

The Significance of the Legal Obligation on in situ Conservation for the Management of mpas

The purpose and objective of mpas is to accomplish the legal duty of in situ conservation set out in Article 8. This also means that the legal obligation of in situ conservation is significant for the shaping and management of mpas. Whether the Contracting Parties comply with the overall obligation of in situ conservation of their biological diversity must, however, be evaluated on the basis of the implementation of Article 8 in total. mpas may therefore be 13 14

See Subsection 13.4.3. See Section 13.5.

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­supplemented by other measures included in Article 8, so that the result of in situ conservation is achieved. Nevertheless, in order to achieve the required result of in situ conservation, all the available tools or measures in Article 8 should be aimed at and implemented so that the general duty can be fulfilled. The legal duty of in situ conservation points, however, not to any precise standards for the required environmental result. Therefore, it is difficult to define exactly when this ecological situation for ecosystems, natural habitats, and species is achieved. There is not an absolute and precisely defined legal duty of in situ conservation. Nevertheless, it is still a legal duty, which implies responsibility on the Contracting Parties, and if the required standard or result of in situ conservation is not achieved, they could be in violation of the treaty. When the Contracting Parties determine whether mpas should be established in a concrete area and which protective measures that should be adopted within it, they must take into account the general duty to ensure in situ conservation. The obligation to achieve in situ conservation, therefore, directs them both on the selection of ecosystems or habitats as mpas, and for the management of these areas. A representative ecosystem or a rare or important habitat may be under a threat even though other conservation initiatives or measures are set out. Actions that are made, for instance, on the basis of Article 8 (c) or Article 8 (l), may be insufficient to conserve the ecosystem or the habitat in its natural surroundings and the states might be required to establish an mpa. It could also be that a stricter management regime within an established mpa is needed to ensure that it meets its conservation objective, for instance to ensure that the ecological function of an ecosystem is maintained or that a sensitive habitat is protected. The general duty is, thus, significant both for the choice of in situ measures, and the manner or shaping of them, as to which activities that should be regulated and how strict regulations that should be adopted within the mpas. Conclusively, even though the substantive level of in situ conservation is difficult to determine, the legal obligation on in situ conservation is the backdrop to which the implementation of mpas must be held up against. The mpas must thus be shaped and managed so that they are aimed at achieving in situ conservation. 14.5

Procedural Requirements to the Establishment of mpas?

14.5.1 General The obligation in Article 8 (a), with its imprecise terms and wide discretion, ­provides the Contracting Parties with flexibility to deal with the complex ­issue of conservation and sustainable use of biological diversity. However, the

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substantive requirements of the obligation are difficult to determine, which suggests that the procedural elements of the obligation are of additional importance for complying with the objectives of the obligation. Procedural requirements may, as pointed out in literature by Hey, increase the accountability of conservation and sustainable use of biodiversity, and thus play an important role in achieving the objectives of the obligation.15 The aim of this section is to discuss and clarify potential procedural requirements for the Contracting Parties when establishing and managing mpas. Article 8 does not include any specific procedural requirements as to how the in situ measures should be implemented. The obligation to establish mpas must however, be interpreted and implemented in light of other general obligations of conservation and sustainable use in cbd. cbd does not include many procedural rules for conservation and sustainable use of obligations. However, Article 7 (a), which calls for the identification and monitoring of components of biological diversity “important for its conservation and sustainable use” and in (c) of “processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity…” is important. Although Article 7 is an obligation in itself, it may serve as a procedural rule for the other obligations of conservation and sustainable use, as knowledge about biodiversity and the threats to biodiversity are a prerequisite for adopting appropriate measures for conservation and sustainable use. The general obligations of Articles 6 and 10 requiring the parties to set out general measures such as strategies and plans, may also imply procedural requirements to include the establishment and management of mpas as part of these general strategies and plans. Finally, cbd includes a provision on eia in Article 14. This raises the question whether the Contracting Parties are required to carry out eias for activities that may result in damage on biodiversity within mpas. Requirements related to these procedural issues are further discussed in the following subsections. 14.5.2 mpas as Part of a Wider Policy or Strategy for Conservation of Marine Biodiversity On the basis of scientific research and practice, it is generally acknowledged that in order to be successful, it is necessary to place the mpas in a wider context as part of a broader strategy for conservation of biodiversity.16 ­Practice 15

Ellen Hey, “Increasing Accountability for the Conservation and Sustainable Use of Biodiversity: an Issue of Transnational Global Character,” Colorado Journal of International ­Environmental Law and Policy, 6:1 (1995): 4–6. 16 Kelleher, Guidelines for Marine Protected Areas, 1–9. See also Biliana Cicin-Sain and S­ tefano Belfiore, “Linking Marine Protected Areas to Integrated Coastal and Ocean ­Management: A Review of Theory and Practice,” Coastal & Ocean Management 48:11–12 (2005): 848.

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of mpas has shown that isolated mpas have not succeeded in achieving their objectives due to effects from activities outside the protected area.17 The iucn Guidelines state that “the successful establishment and management of mpas depends upon their being an overall framework for resource management, conservation, and sustainable use.”18 Similar advice is provided by the cop and  of cbd, which encourage the application of an Integrated Marine and Coastal Management (imcam) framework.19 The secretariat describes the imcam as a precautionary framework that addresses all coastal and marine areas, all biodiversity, and all values of biodiversity as they are expressed in the Preamble. It is emphasised that this framework comprises both the network of mpas, as well as sustainable management practices of the wider marine and coastal areas.20 There seems thus to be a consensus that is necessary to adopt a comprehensive policy or strategy for the whole marine area, in which its biodiversity and potential threats are addressed, with the establishment of mpas as one element of this strategy. Ad hoc solutions with mitigation of threats or immediate temporary protection of areas or species are not appropriate means of maintaining the marine ecosystems, natural habitats, and viable populations of species. These experiences also correspond to, and may be accommodated by, the new holistic approaches to the marine environmental protection such as the integrated ocean management and the ecosystem approach, which aim at addressing the whole marine area where all potential threats and activities are seen together in an integrated manner. The need for adopting mpas as part of an ecosystem-based regime is also underlined in the iucn Guidelines for mpas where it is stressed that: Because of the highly connected nature of the sea, which efficiently transmits substances and forcing factors, an mpa will rarely succeed ­unless it

17

Charle N. Ehler, “Integrating management of marine protected areas with coastal and ocean governance: Principles and practices,” Ocean & Coastal Management 48: 11–12 (2005): 1; Cicin-Sain and Belfiore, “Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice,” 848. 18 Kelleher, Guidelines for Marine Protected Areas, 1. 19 See cbd Secretariat, “Technical advice on the establishment and management of a ­national system of marine and coastal protected areas,”15–19 and cbd cop Decision II/10 and cbd cop IV/5 Annex, C, Programme element 1. 20 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 15.

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is embedded in, or is so large that it constitutes, an integrated ecosystem management regime.21 As the benefits and success of mpas depend on the wider policy for the protection and conservation of the marine environment, it may be questioned whether there are requirements for the development of a wider marine and coastal policy or strategy of which mpas are a part. Both Articles 6 and 10 include general obligations on development of plans and strategies and on the integration of conservation and sustainable use of biological diversity into plans and programmes and national decision-making. The Contracting ­Parties shall, pursuant to Article 6 (a), develop “national strategies, plans or programmes for the conservation and sustainable use of biological diversity.” And, according to Article 6 (b) integrate “conservation and sustainable use of biological diversity into relevant sectoral and cross-sectoral plans and policies.” Articles 6 does not, however include any references to Article 8 (a), nor is it explicitly stated in Article 6 that national plans or strategies shall include a plan for protected areas. The obligation refers to conservation and sustainable use in general, without specifying any components of biodiversity, any particular threats, or any particular tools. Nevertheless, it is reasonable to read Article 6 as dealing with all elements of marine biodiversity. Furthermore, the formulation of Article 6 (a) in which it is stated that plans, programmes and strategies should “reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned:,” implies that Article 6 points to a consideration of the different available tools for conservation and sustainable use of biodiversity, such as protected areas, regulation of activities that threaten or are likely to cause harm to biodiversity, or regulation of biological resources important for the conservation and sustainable use of biodiversity.22 States must therefore incorporate mpas within their plans and strategies that they are required to develop under Article 6.23 This may help ensure the systematic implementation of mpas and avoid ad hoc protection of areas and regulation of immediate threats, as it requires a broader strategy for conservation. ­Moreover, the implementation of Article 6 also contributes to the conservation and sustainable management of biodiversity outside the mpas. However, Article 6 is a general obligation and does not specify how the ­Contracting Parties shall proceed to ensure that mpas are established within a 21 22 23

Kelleher, Guidelines for Marine Protected Areas, xiii, Box 1. Article 8 a), 7 c), 8 l) and 8 c). See also de Fountabert, Downes and Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,” 775–776.

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wider framework. The implementation of comprehensive plans and strategies at the national level may be challenging due to the more traditional sectorial approach to environmental protection through the decision-making by environmental agencies, fisheries authorities, and maritime authorities.24 The work the cop carried out within cbd on the strengthening and implementation of the convention with regard to conservation and sustainable use of m ­ arine and coastal biodiversity may, however, contribute to clarifying the requirement pursuant to Article 6 to develop a broader and more integrated approach to decision-making at the national level. The cop urges the states “to make efforts to adopt, as a matter of high priority” a wider marine and coastal framework.25 Elements of such a wide marine and coastal framework, which the cop encourages the states to take into account, are also included.26 It is stated that: An effective marine and coastal biodiversity management framework would comprise sustainable management practices and actions to ­protect biodiversity over the wider marine and coastal environment, including integrated networks of marine and coastal protected areas …27 The cop’s practice somewhat contributes to clarifying the links between Article 6 and the obligation to establish protected areas in Article 8. The cop clearly encourages the Contracting Parties to adopt a wider framework for conservation and sustainable use where mpas are included and play a central role. Although the decisions are not legally binding, the cop strongly ­encourages and urges the Contracting Parties to adopt such a framework. Furthermore, the cop clearly expresses that an effective framework consists of both sustainable management over wider marine and coastal management, and networks of marine and coastal protected areas.28 According to the cop, mpas should be a part of the wider management framework. The cop also provides advice for the sustainable management of the wider environment, of which the mpas should be a part.29 This advice includes management of issues that threaten the effectiveness of mpas, protect coral reefs, and protect wide-ranging marine ­biodiversity species that are difficult to address through 24 25 26 27 28 29

Henriksen, “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Oppurtunities,” 250. cbd cop Decision VII/5, para.20. Ibid., Annex 1, Appendix 3 Ibid., Annex 1, Appendix 3, para. 5. Ibid. See also cbd cop Decision VII/5, para. 21. cbd cop Decision VII/5, Annex 1, Appendix 3, para. 16–17.

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site-specific measures.30 The cop also urges the Parties to urgently address all threats “through appropriate integrated marine and coastal management approaches.”31 The requirement of a wider framework of marine and coastal management in which mpas are included is also reflected in the programme element of ­i mcam, adopted by the cop. imcam was adopted as a part of the Jakarta Mandate and is further elaborated upon by the cop as an element of the ­programme of work on marine biodiversity.32 The cop encourages the Contracting Parties to adopt imcam as the appropriate framework for addressing human impact on marine and coastal biodiversity and to promote conservation and sustainable use of marine and coastal biodiversity.33 As an element of this, the cop also encourages the parties to establish or strengthen administrative or legal arrangements for the development of integrated marine and coastal ecosystems.34 The framework imcam aims at moving from sectoral approaches to the ­management of marine and coastal biodiversity towards a holistic management based on the precautionary approach and the ecosystem approach.35 The goal of this programme element is “to promote and improve the implementation of imcam at the local, national and regional level.”36 The cop has further established operational objectives to achieve this goal. The first objective is to “apply appropriate policy instruments and strategies, including building of capacity, for the effective implementation of imcam.”37 The second operational objective is to “undertake direct action to protect the marine ­environment from negative impacts.”38 The cop suggests as an activity to achieve this objective: to promote adequate protection of areas important for reproduction such as spawning and nursery areas and restoration of such areas and other important ­habitats for marine living resources.39 30 31 32 33 34 35 36 37 38 39

Ibid., Annex 1, Appendix 3, para. 17. Ibid., para. 26. cbd cop Decision IV/5, programme element 1. cbd cop Decision II/10, para. 2. Ibid., para. 3. cbd cop Decision VII/5, Annex 1, ii Basic Principles. Ibid., Annex 1, Programme element 1, Goal. Ibid., Annex 1, Programme element 1, Operational objective 1.1. Ibid., Annex 1, Programme element 1, Operational objective 1.2. Ibid., Annex 1, Programme element 1, Operational objective 1.2: (a).

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Consequently, the cop encourages the implementation of imcam, where human activities are regulated under the precautionary approach and an ecosystem-based management, which also includes the protection of certain ­valuable or sensitive areas. The framework imcam, in light of its objectives and suggested activities, thus clearly interacts with mpas and contributes to placing mpas into a wider ecosystem-based management regime. imcam and mpas are two different concepts and tools for the conservation of biological diversity. By establishing an mpa, an area specifically dedicated for conservation purposes is set aside, whereas imcam is a strategy for an ecosystem-based management where all sectors, including nature conservation, are integrated. The practice under the cbd reflects, however, that there are links between the imcam and mpas.40 On the one hand, the success of mpas relies on a strategy for conservation and sustainable use of the areas outside the protected areas. On the other hand, the cop has stated that one suggested activity for achieving the goal of protecting the marine environment from negative impacts, which is an operational objective for imcam, is to ensure adequate protection of important areas and habitats.41 In conclusion, there are clear requirements in the cbd to address mpas as an element of a broader framework or strategy for conservation of marine biodiversity. Primarily, the obligation in Article 6 to adopt plans and strategies, which encompass the use of mpas, is relevant here and may create the legal ­basis for such a requirement. As the obligation is general and open, the Contracting Parties have discretion as to how to carry it out. The practice under cop on imcam provides however, guidance to them when implementing mpas as part of wider strategy and policy. 14.5.3 Requirements to Obtain Knowledge about Marine Biodiversity and Threats Knowledge about marine biodiversity and its threats are a prerequisite to achieving the objectives of conservation and sustainable use. To obtain such knowledge, it is necessary to identify and monitor biodiversity and its threats. Knowledge about marine biodiversity is, however, scarce. We are not aware of all marine species, nor do we fully understand the complexity of marine biodiversity, the natural functioning of ecosystems, or how different human activities affect marine biodiversity. One reason for this is that the marine 40

41

For a discussion of the linkages between mpas and imcam see Cicin-Sain and Stefano Belfiore, “Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice,” 847–868. cbd cop Decision VII/5, Annex 1, Programme element 1, operation goal 1.2: (a).

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­biodiversity is less accessible, which also means that environmental degradation is less obvious to scientists. As a result, it is likely that the degradation or the loss of biodiversity can be disastrous before it is recognised and ­addressed.42 Knowledge about biodiversity, the potential damaging activities, and alternative measures for conservation and sustainable use, are crucial for an effective implementation of the cbd and the achievement of its goals.43 Such knowledge is also necessary to be able to take the appropriate conservation measures in different situations. The evaluation between conservation interests and social and economic interests, which is necessary when establishing and managing an mpa, requires knowledge about the biodiversity and its threats. If a certain fishery should be allowed within an mpa that is protected, for instance, for the recovery of certain species, it is necessary to know what impact it has on the ecosystem. Article 7 requires that the Contracting Parties obtain knowledge about ­marine biodiversity and its threats. Article 7 (a) and (b) places duties on the Contracting Parties with regard to identifying and monitoring components of biological diversity, whereas (c) requires that they Identify processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity. With this obligation, the identification and monitoring of biodiversity is a national responsibility as the Contracting Parties are left to identify biodiversity and threats at the national level. They shall, however, pursuant to Article 7 (a) have “regard to” the indicative list of categories of ecosystems, habitats, and species included in Annex 1. The indicative list included in Annex 1 may contribute to international consistence when Contracting Parties implement the obligation at the national level. The link between Article 7 and the measures in Article 8 is not entirely clear. It follows from the introduction of Article 7 that the actions set out on the basis of this obligation shall be taken “in particular for the purposes of Articles 8 and 10.” This wording underlines the significance of knowing the components of biodiversity and effects on biodiversity from human actions when implementing the measures for conservation and sustainable use. As Article 7 also 42 43

cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 14. See de Fountabert, Downes and Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,” 808.

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includes duties to monitor the identified components of biodiversity, identify activities that may have significant adverse impacts on conservation and sustainable use of biodiversity, and monitor the effects of activities, it plays an ­important role when conservation measures or measures for sustainable use are adopted. If through identification and monitoring, for instance, it is revealed that an activity has negative effects on the area outside an mpa, such as pollution, it might be necessary to regulate this activity. The case could also be that through monitoring of the effects of an activity that is allowed within an mpa information is provided, which implies that the activity must be restricted or prohibited. It is also possible that the monitoring of an activity, for instance a regulated fishery, shows that there are no or only minor negative effects on the conservation or sustainable use of biodiversity, and therefore can be allowed, or even that fisheries may be permitted at a larger scale. Article 7 is therefore relevant to planning, selection, and management of mpas. The duty to identify and monitor biodiversity and its threats implies requirements to an adaptive management of the mpas, which means that the management is reviewed and revised on the basis of the monitoring of the components of the biological diversity and their threats.44 This could imply that the protective measures must be strengthened. It remains unclear to what extent the obligation to identify components of biological diversity and activities that may have significant adverse impacts on the conservation and sustainable use of biodiversity constitute situations in which states have a duty to take actions e.g., by the establishment of an mpa. On the one hand, one may argue that the duty to provide knowledge is not connected to duties to take actions. Although Article 7 refers to Articles 8–10, a duty to take action on the basis of the acquired knowledge about biodiversity and its threats does not explicitly follow from these Articles. The cbd however, requires the Contracting Parties to take actions to ensure conservation and sustainable use. It is, therefore, reasonable to understand Article 7 so that when components important for conservation or sustainable use are identified pursuant to Article 7 (a), this generates a duty to take actions as prescribed in cbd Articles 8 or 10. Article 10 (b), for instance, requires that the Contracting Parties adopt measures related to the use of biological resources to “avoid or minimize adverse impacts on biological diversity.” Which measures they shall adopt is, however, within the discretion of the states. In this way, Article 7 makes the general obligations operational, by providing “parameters” or “indicators” that help to achieve the objectives of the substantive obligations. 44 The iucn Guidelines state that the planning and management of mpas should be adaptive as a result of monitoring, see Kelleher, Guidelines for Marine Protected Areas, 44–45.

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When it comes to the duty in Article 7 (c) to identify activities that may have significant adverse impacts on the conservation of biological diversity, there is a corresponding legal duty to mitigate in Article 8 (l). It follows from Article 8 (l) that where a significant adverse effect on biological diversity has been ­determined pursuant to Article 7, the Contracting Parties “shall regulate or manage the ­relevant processes and categories of activities….” This regulation or management could be to establish an mpa with appropriate protective measures. The duty to identify threatening activities and to take the necessary measures to avoid and mitigate the threats in Article 7 (c) and 8 (l) applies only to activities that may have “significant adverse effect.” It seems, therefore, that the C ­ ontracting Parties are not obliged to identify and monitor activities with minor impact on biodiversity, or where it is difficult to predict the harmful impacts, or to mitigate the threats of such activities. From an environmental perspective this is a weakness of the convention. The seas are threatened by a number of activities. It is often the collective or total pressure from all activities that create ecological problems. The high threshold seems to exclude ­minor damage or where the scope of the potential of damage is difficult to predict and does not comply very well with the ecosystem approach or the precautionary principle. It is, however, reasonable that the threshold is understood relatively, where the level of “significant adverse effect” is not the same in all areas or for all ecosystems, habitats, or species. Conclusively, Article 7 is significant both as part of a process that the ­Contracting Parties undertake prior to the establishment of mpas, and for ­ensuring effective management of the mpas. 14.5.4 Environmental Impact Assessment 14.5.4.1 Introduction cbd Article 14 (1) (a) regulates the use of eias of projects that are likely to have “significant adverse effects” on biodiversity. The idea of an eia is to provide the decision-makers with information about possible environmental damage or effects when deciding whether permission should be issued for a planned activity.45 The obligation on eias in cbd may ensure that impacts on biodiversity are part of the considerations in the decision-making process and prevent that activities that lead to loss of biodiversity are permitted. This enables more solid decisions on the basis of knowledge of biodiversity and threats, which contribute to achieving the objectives of the Convention. 45

eia is defined as “a national procedure for evaluating the likely impact of a proposed activity on the environment” in Article 1 of the Convention on Environmental Impact ­Assessment in a Transboundary Context 1991, 1989 unts 309 (Espoo Convention).

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The obligation in Article 14 is a general obligation, which is not particularly linked to the planning, establishment or managing mpas. The focus here is on eia as a tool for the planning and management of mpas. The subsection discusses whether Article 14 contains a legal duty to institute eia procedures of activities that may have effects on the biodiversity within the mpas. Furthermore, the threshold for requiring eias in relation to activities or projects that may cause damage within mpas is addressed. 14.5.4.2 The Use of eias in Relation to Planning and Management of mpas Management and control of human activities to protect the marine biodiversity from negative impacts is a crucial part of the planning, establishment, and management of mpas.46 To achieve the conservation objectives, the planning and management of mpas must be effective. The use of eias for proposed projects that may have negative effects on biodiversity is, therefore, of great importance for the success of the mpas, as it may ensure that projects or developments with potential environmental impacts are assessed before permission is given.47 During the phases of planning, establishment, and management of mpas, conflicting values such as industrial economic interests, social interests, and conservation of biodiversity must be balanced against each other. Information provided by impact assessments of the environmental consequences of different activities is therefore useful for the decision-maker when determining whether activities should be prohibited, restricted or allowed.48 The Secretariat of the cbd also emphasized the use of eias as a tool in the decision-making process when managing mpas.49 Additionally, the cop recognizes the importance of using eias through its decisions.50 In the programme of work on protected areas, the cop has expressed as a part of a goal to prevent and mitigate the negative impacts of key threats to protected areas by 2008, that the states should apply the eia as appropriate “to any plan or project with the potential to have effects on protected areas.”51 Furthermore, the cop has adopted voluntary guidelines on biodiversity-inclusive impact assessment, which applies to all the thematic programmes of work, including 46 Kelleher, Guidelines for Marine Protected Areas, 43–50. 47 Gillespie emphasises eia as a critical management tool for protected areas. See Gillespie, Protected Areas and International Environmental Law, 157. 48 Tinker, “Introduction to biological diversity: law, institutions, and science,”16. 49 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 28. 50 An overview of cop Decisions on Article 14 is available at https://www.cbd.int/impact/ decisions.shtml (accessed June 2015). 51 cbd cop Decision VII/28 Annex, Programme element 1, para. 1.5.1.

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the programme of conservation of marine and costal biodiversity.52 The adoption of these guidelines is based on the growing recognition of the need to take biodiversity considerations into account when making eias, and they purport to help overcoming some of the problems when doing it. The Guidelines state that they “aim at a better integration of biodiversity-related considerations into the eia process.”53 14.5.4.3

The Relationship between Article 14 (1) (a) and Other Obligations of cbd Article 14 (1) (a) deals with the situation in which a project that is “likely to have significant adverse effects on biodiversity” is proposed. The duty in Article 14 must be seen in relation to other obligations of cbd and, hereby, in particular in the context of Articles 7(c), 8 (l) and 10 (b).54 The duty in Article 7 (c) ­requires Contracting Parties to identify processes and activities that are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity. When such activities states are identified, the Contracting Parties are required to manage and regulate them on the basis of Article 8 (l), whereas Article 10 (b) addresses the adoption of measures on sustainable use of biological resources to avoid or minimize adverse impacts on biological diversity. Article 7(c) provides a general obligation for the Contracting Parties to identify threats from activities that may have significant adverse impacts on the biological diversity in order to determine which conservation measures that should be applied in which areas.55 Article 14, on the other hand, deals with proposed individual projects. The obligation in Article 7 (c) may therefore function as a “screen” for projects that should be subject to eias by identifying the process and activities that may provide damage above the required threshold in Article 14. Article 14 (1) (a) includes a requirement to mitigate potential damaging activities, due to the wording “with a view to avoiding and ­minimizing” adverse effects on the biological diversity. This duty is formulated in a weak manner, as it does not require that such effects be avoided. However, the duty in Article 8 (l) to “regulate or manage” activities identified under 7 (c), 52 53 54 55

cbd cop Decision VIII/28. The guidelines are elaborated on the basis of the Guidelines adopted in cbd cop Decision VI/7. cbd cop Decision VIII/28, Annex, para. 1. cbd Secretariat, Handbook of the Convention on Biological Diversity (London: Earthscan, 2001), 149. De Fountabert, Downes and Agardy, “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats,” 808.

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that may have significant adverse impacts on the conservation or sustainable use of biological diversity, apply alongside Article 14. Article 14 1 (a) and eias must also be seen in relation to the precautionary principle. As shown above, the precautionary principle is included in the Preamble of the cbd. The obligation on eias deals with scientific uncertainties in the same way as does the precautionary principle. Therefore, Article 14 on eias may arguably offset the weak status of the precautionary principle in cbd.56 14.5.4.4 A Legal Duty to Introduce eia Procedures Pursuant to Article 14? It follows from Article 14 (1) (a) that the Contracting Parties “as far as possible and as appropriate” shall: Introduce appropriate procedures requiring environmental impact ­assessment of its proposed projects that are likely to have significant ­adverse effects on biological diversity with a view to avoiding or ­minimizing such effects and, where appropriate, allow for public participation in such procedures. The use of the word “shall” clearly implies a legal duty for the Contracting Parties to introduce procedures for eias. Still, the qualifier “as far as possible and as appropriate” makes the obligation qualified and discretionary. Boyle argues that the qualifier “may enable parties to avoid an eia altogether where they find it inconvenient to conduct one.”57 Birnie, Boyle and Redgwell, express a similar opinion: By leaving much detail to the individual judgement of states parties, as well as requiring them to act only ‘as far as possible and as appropriate’ to assess whether or not particular projects and programmes are ‘likely to have a significant adverse impact’, the parties may well escape any form of eia,...58 Hey points to eias in cbd as a procedure that would enhance accountability for the conservation and sustainable use of biological diversity, but concludes that cbd does not set out an “adequate regulatory framework” for eias.59 ­According to Hey Article 14: 56 57 58 59

Birnie, Boyle and Redgewell, International Law and the Environment, 620. Boyle, “The Rio Convention on Biological Diversity,” 40–41. Birnie, Boyle and Redgwell, International Law and the Environment, 621. Hey, “Increasing Accountability for the Conservation and Sustainable Use of Biodiversity: an Issue of Transnational Global Character,” 13.

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makes undertaking environmental impact statements for proposed projects and adopting appropriate arrangements for programs likely to have adverse impacts on biodiversity dependent on the abilities of the contracting parties and the appropriateness of such procedures.60 A key issue in the analysis of the legal status of the obligation is, as it is with most of the other obligations in cbd, how “as far as possible and as appropriate” is interpreted. The questions raised here overlap with the discussions about how the clause “as far as possible and as appropriate” should be interpreted in sections 13.4 and 13.5 are therefore limited to questions that are r­ elevant to the application of the term in relation to Article 14 specifically. The starting point for the further discussion is that the Contracting Parties, according to the word “shall” in Article 14 (1) (a), are “as far as possible and as appropriate” under a legal duty to “introduce procedures requiring” eias. The concrete decision regarding the introduction of eia procedures is not given by an interpretation of Article 14. The legal bounds of the discretion of the Contracting Parties when implementing the obligation are determined on the basis of the relevant factors and considerations in the assessment of what is “possible” and “appropriate.” The Contracting Parties cannot, however, choose not to introduce eia procedures pursuant to Article 14 without carrying out an assessment or a balance of the different relevant considerations in the same way as in relation to the legal duty to establish mpas. A decision not to introduce procedures requiring eias is only lawful when eia procedures go beyond what is “possible” and “appropriate.” The wording of the obligation “introduce procedures requiring” eias signals that the consideration of what is “as far as possible and as appropriate” relates to the introduction of eia procedures and not to the undertaking of eias in concrete cases. However, the legal duty to introduce procedures requiring eias, cannot be understood so that it is enough that the Contracting Parties establish and have such procedures without applying them, as this interpretation would result in an obligation with no effect. As a consequence, the assessment of whether introduction of procedures for eias is within “as far as possible and as appropriate” must be made under the presumption that eias are undertaken for all projects “that are likely to have significant adverse effects on biological diversity” as prescribed in Article 14 (1) (a). Due to legal technical reasons and consistency between the different ­Articles in the Convention, the wording “as far as possible and as appropriate” should be interpreted similarly everywhere they are applied. The terms are, 60 Ibid.

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however, contextual norms, which means that whether they are fulfilled must be ­determined on the basis of the concrete situation and local ­circumstances.61 As different interests and considerations are relevant depending on what measures or actions the Contracting Parties are implementing, different evaluations must therefore be made to determine whether an mpa should be established pursuant to Article 8 (a), whether procedures for eias should be introduced after Article 14 (1) (a), or whether measures for ensuring sustainable use described in Article 10 should be taken. When the Contracting Parties consider whether introducing procedures ­requiring eias is within “as far as possible,” the term “possible” allows them as argued above, to also take economic considerations into account.62 It is thus relevant to consider the difficulties and costs of assessing different types of activities. Routines or systems for eias may be expensive and difficult to prioritise for developing and poor countries. On the other hand, since “as far as possible” refers to the capabilities of the states, it is difficult for developed countries to justify that such procedures are not introduced due to economic considerations. Furthermore, the necessity of such procedures for fulfilling the objective of the obligation and the objectives of cbd, implies, in the same way as argued above in relation to Article 8, that environmental considerations carry more weight when balancing different considerations.63 The term “as far as possible” may, however, justify the possibility that the Contracting Parties with limited capabilities may introduce procedures that are less comprehensive or far-reaching than prescribed in Article 14 (1) (a). As ­concluded in Section 13.5 the term “appropriate” indicates that the Contracting Parties have discretion when it comes to the manner of the implementation of the provision. Whereas Article 14 prescribes the threshold for which projects that shall be assessed, the Contracting Parties are free to determine the form and shaping of the ­procedures “as appropriate.” Consequently, the Contracting Parties are under a legal duty to establish eia within what is “as far as possible and as appropriate.” The application of the term “as far as possible and as appropriate” does therefore not leave it completely to the discretion of the Contracting Parties to determine whether they shall adopt procedures for eia. The decision must be made on the basis of an evaluation of what is “possible” and “appropriate.”

61 62 63

See discussions above in Sections 13.4 and 13.5. See Subsection 13.4.2. See discussions above in Subsection 13.4.3.

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14.5.4.5 The Meaning of “appropriate procedures” The Contracting Parties shall, according to Article 14 (1) (a), introduce “appropriate procedures.” It is reasonable to understand “appropriate procedures” as procedures that meet the conditions set out in Article 14 (1) (a) regarding when eias should be done, hereby that proposed projects that are likely to have significant adverse effects on biodiversity undergo eias. Furthermore, it is reasonable to understand the wording “appropriate procedures” to take into account the particular challenges related to assessments of threats and risks to biodiversity. The word “appropriate” implies due to this understanding a ­requirement that the procedures ensure that relevant and necessary information about the effect of the proposed projects to the biodiversity come to light. The concept of biological diversity and the objectives of cbd on conservation and sustainable use, moreover, imply that a broader and more comprehensive approach to the assessment is necessary. Consequently, “appropriate” should be seen as a reference to procedures that may provide adequate information about the potential damage of the proposed activity to the biodiversity, and as a reference to the particular challenges that exist when evaluating the potential impacts of human activities to biodiversity. This interpretation of the term appropriate finds support in the objectives of cbd. By requiring procedures where biodiversity considerations are integrated and provide adequate information about impacts on biodiversity, this may contribute to the achievement of the Convention’s objectives.64 If the procedures provide the relevant information, it contributes to an evaluation and decision-making process, which ensures that projects that are permitted have minimal impact on the biodiversity. If procedures for eias already exist at the national level, it may be argued that the ­requirement “introduce appropriate procedures” implies that the existing ­procedures are reviewed to ensure that they take into account biodiversity considerations, and are suitable for achieving the purpose of eias in relation to conservation and sustainable use of biological diversity. The guidelines the cop adopted set out a framework for biodiversity-­ inclusive eias. They are structured according to “internationally accepted sequence of procedural steps characterizing good-practice environmental impact assessment (eia).”65 Since the cop Decisions are not legally binding, and the guidelines explicitly express that they are voluntary, the Contracting Parties are not required to adopt these guidelines. They have however, agreed

64 65

cbd Article 1. cbd cop Decision VIII/28, Annex, para.1.

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upon them, and it is reasonable to see these guidelines as a common understanding of how the procedures should be developed and implemented at the ­national level to comply with Article 14. It is also reasonable to expect that the states will follow these guidelines in their implementation. Furthermore, it is ­possible to maintain that the guidelines adopted by the cop are procedures that, ­according to the cop’s understanding, are “appropriate procedures” for  eias  that states should implement. The cop also urges the Contracting Parties: to apply the voluntary guidelines on biodiversity-inclusive environmental impact assessment as appropriate in the context of their implementation of paragraph 1 (a) of Article 14 of the Convention …66 Still, incorporation of these guidelines is not the only way the Contracting ­Parties can comply with the requirements in Article 14. As the guidelines are not binding upon the Contracting Parties, and as the term appropriate indicates discretion, they may therefore adopt procedures that differ from these guidelines provided that they are “appropriate.” 14.5.4.6 Which Activities Require eias? The obligation in Article 14 (1) (a) covers national procedures to assess impacts both within the territory of the states and beyond areas of national jurisdiction.67 This follows from the broad formulation “impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity…”. According to Article 14 1 (a) the Contracting Parties are only committed to undertake eias of: “its proposed projects.” The word “its” refers to projects of the Contracting Parties to the cbd.68 The duty to undertake eias relates to “proposed projects.” The term “project ” is a wide term and can include all kinds of activities; such as fishing, oil drilling and shipping. The term project also encompasses larger developments such as establishment of a sea lane for shipping or installations for oil drilling. The duty in Article 14 (1) (a) is broadly formulated and therefore leaves the Contracting Parties the discretion to determine more precisely which ­activities that must undergo eias.69 The obligation applies, however, only 66 67 68 69

Ibid., para.5. See also Rio Declaration Principle 17. Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,”158. Birnie, Boyle and Redgwell, International Law & the Environment, 621.

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to activities “that are likely to have significant adverse effects on biological ­diversity.” The threshold for harm on the environment is “significant,” whereas the probability for the harm to occur is “likely.” The Contracting Parties are thus not required to adopt eia procedures for activities that may have less serious impacts. When determining whether or not an eia should be carried out, the Contracting Parties must decide whether the proposed plan or project is “likely to have significant adverse effects on biological diversity.” Hereby they must consider both the degree of the damage or impacts and the likelihood of damage. This means that the states must determine whether a project may have such impacts before an eia has been conducted.70 The level of the potential damage on biological diversity and the likelihood for this to occur is, however, not always easy to predict. This is on a more general level, pointed out by Birnie, Boyle and Redgwell as a potential weakness of eas as an environmental tool.71 The threshold in Article 14 for which activities that require an eia is high. Projects that may only have minor impacts on the biological diversity are beyond the scope of the provision. On the other hand, it is not required that the project leads to damage on biodiversity. It is enough that it is likely to have significant adverse effects. It is also not required that it is certain that these “serious adverse effects” occur. The provision therefore reflects the precautionary principle set out in the Preamble of the Convention. Boyle argues however, that the threshold is too high and that the word likely should have been replaced with “possible adverse impacts,” as this would better take into account the inherent uncertainty when dealing with biological diversity.72 A consequence of setting the threshold so high is that a number of activities will not undergo eias before a licence is provided. In particular, this is the case if the risks are long term and difficult to predict, or if the activities only may cause minor adverse impacts.73 The guidelines on biodiversity-inclusive impact assessment provide guidance to which projects that should be assessed.74 The screening and scoping phases that are described in the guidelines also contribute to determining which activities and potential impacts should be assessed.75

70 71 72 73 74 75

Boyle, “The Rio Convention on Biological Diversity,” 41. Birnie, Boyle and Redgwell, International Law and the Environment, 171. Boyle, “The Rio Convention on Biological Diversitiy,” 41. See also, Birnie, Boyle and Redgwell, International Law & the Environment, 621. cbd cop Decision VIII/28, Annex. Ibid., Annex. The different phases are described in Annex part A, and regulated in part B.

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The Threshold for Requiring eias Pursuant to Article 14 in Relation to Projects that may Cause Damage on mpas For areas that are protected as mpas due to their vulnerability, minor impacts on biodiversity can be serious. Moreover, it is important to protect an mpa against damage that may occur but are difficult to predict. Uncertainties in relation to whether the impacts occur or not, may result in permission to carry out projects that turn out to damage biodiversity within an mpa. This may ­contradict the practice under the cop, where the precautionary principle is emphasised as a basic principle for the programme of work on marine and coastal biodiversity, and a “foundation for its implementation.”76 Another issue is that mpas should be protected from the total impacts of all activities that affect biodiversity. If each and every one of the activities that take place within and outside an mpa only has the potential of causing minor harms, they may still in sum lead to serious loss of biodiversity. In this subsection some consideration of the threshold for requiring eias on the basis of Article 14 in relation to planned projects that may cause damage within mpas, are made. eias are crucial for mpas as the success or failure of mpas to a large extent depends on how human activities with the potential of damaging or causing the loss of the biodiversity is managed or controlled. The iucn’s Guidelines for mpas state that eias should be done for a range of activities such as “large ­infrastructure developments; plans to increase waste disposal; the development of new fisheries; and proposals to increase the number of tourists ­visiting an area.”77 In spite of this expressed need for the application of the tool eia in relation to effective management of protected areas, the cbd does not clarify whether the use of eias for activities that may cause damage within the mpas is required. Article 8 does not include a duty to make eias for such activities. Further, ­Article 14 only requires eias for activities that exceed the threshold both when it comes to the level of certainty and potential seriousness. The wording of Article 14 (1) (a) does not clearly indicate whether the requirements to when an eia should be conducted are relative, meaning that they should be adjusted depending on the environmental values in the areas where the impacts occur. However, when evaluating whether an activity may impact the biodiversity at the prescribed level, it is not only the activity itself and its “inherent dangers” which are relevant. The receiving environment must also be relevant. Although this does not explicitly follow from the wording of Article 14 (1) (a), it must thus be of relevance if the area where the damage might occur 76 cbd cop Decision VII/5, Annex 1, ii. Basic principles, para. 4. 77 Kelleher, Guidelines for Marine Protected Areas, 48.

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is ­protected either because of vulnerability or representativeness, or because it is of particular importance. Minor impacts may cause damage in a vulnerable area, or to a threatened ecosystem. Furthermore, if an area is protected due to its representativeness, minor impacts may disturb or “change” the ecological interactions in this area. The requirement “significant adverse effects” is thus not an o­ bjective requirement. The threshold will vary on the basis of the ­particular circumstances in each concrete situation, and there are reasons to be particularly cautious if planned activities may have negative impacts within the mpas, as the damage would then occur in an area with particular conservation values. Practice under cbd by the cop supports this view. The guidelines adopted by the cop describe the different stages of the eias.78 At the screening stage it is determined which projects that should be subject to eia.79 The guidelines suggest projects that require eias and identify projects where eias should be carried out.80 It follows from this set of criteria that eias are mandatory for activities within protected areas and activities in threatened ecosystems outside protected areas.81 The criteria for the screening stage adopted by the cop, suggesting when eias are mandatory, focus on the receiving nature and environment for the activities. In this respect, protected areas are emphasised, as are activities in habitats for threatened species, or in areas known to provide important ecosystems services. This advice from the cop indicates how the superior body of the cbd understands the relationship between the obligation to establish protected areas in Article 8 (a) and eias in Article 14. Even though the guidelines are not mandatory, it is legitimate to emphasise this advice as an argument in favour of the solution that eias are mandatory for activities within the protected areas and in threatened ecosystems outside the protected areas. The fact that the cop has repeated the importance of applying the tool eia for the management of mpas strengthens this understanding.82 As mentioned above, the cop suggests that the Contracting Parties: “apply, as appropriate, timely environmental impact assessments to any plan or project with the 78 79 80

81 82

cbd cop Decision VIII/28, Annex, The stages in the process are described in Annex, part A, para. 5 (a) to (g). Ibid., See Annex. Part B. cbd cop Decision VIII/28, Annex B, para.1. See also Appendix  1 where the cop has ­adopted an indicative set of screening criteria to be further developed at national levels. These criteria are separated into two categories: activities where eias are mandatory and activities where the need for and level of eias need to be determined. Ibid., Appendix 1, Category A. cbd cop Decision VII/5, see para. 32, 33 and 34.

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­potential to have effects on protected areas.”83 Here, the cop calls for eias for a broader range of projects with a lower level of likelihood for damage than what follows from the wording of Article 14. Consequently, there are good reasons for advocating that there is a legal duty to undertake eias for activities, which may have effects within mpas. When the purpose is to set aside a geographically limited area in order to conserve components of the biodiversity within the area, it is also reasonable to require that the Contracting Parties assess the effects of the different activities before being given permission to engage in such activities. 14.6

Substantive Requirements to the Content of mpas

14.6.1 Introduction Neither the obligation to establish and manage mpas in Article 8 (a), nor any of the other obligations on conservation and sustainable use in the cbd, ­specify substantive requirements or provide clear legal duties for the states. The ­purpose of this section is to examine the substantive requirements and define the content of the obligation to establish mpas more precisely. The analyses include requirements with regard to: (i) selection criteria for mpas; (ii) objective of conservation; and (iii) management of mpas; hereby which activities that should be regulated and the level of strictness of the regulations adopted within the mpas. These criteria or requirements are also identified and emphasised in literature and in advice or Guidelines for mpas as important criteria for the content of the mpas, based on science, research and experiences.84 In addition, other criteria for mpas could, however, be relevant or necessary for the success and effectiveness of the mpas.85 14.6.2 Selection of Sites for mpas 14.6.2.1 General The selection of sites as mpas is a process in which possible sites are identified by ecological criteria. cbd does not contain any duty to protect specific 83 84

85

cbd cop Decision VII/28 Annex, programme element 1, para. 1.5.1. See Kelleher, Guidelines for Marine Protected Areas and cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas.” It is, for instance, also in the iucn Guidelines focused on the importance of planning and zoning mpas, see Kelleher, Guidelines for Marine Protected Areas, 43–57. For a broader discussion of considerations of significance for the management of protected areas see Gillespie, Protected Areas and International Environmental Law, especially Chapters v and vii.

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a­ reas such as those of most importance for conservation of biodiversity, or areas of particular global importance.86 Attempts to adopt listing of areas of global importance, such as cold-water coral reefs, failed during the negotiation process.87 This subsection discusses however, on the basis of an interpretation of cbd including practice by the cop, possible requirements to the selection of sites for mpas. The selection process for the sites for mpas is emphasised in the Guidelines of iucn as a crucial element of the establishment of mpas and an important factor for the success of this instrument.88 The non-legally binding iucn Guidelines may help states in this process as they provides advice for the selecting of sites for mpas.89 In the selection criteria in the iucn Guidelines it is distinguished between biographic criteria and ecological criteria and they further include the criteria naturalness, economic importance, social importance, scientific importance, international or national importance and practicality or feasibility.90 The criteria for selection of mpas provided in the iucn Guidelines are very broad and difficult to use in practice. To contribute in the selection process at the national level, the criteria by national or international bodies must be made more concrete and tailored to the particular conditions to which they are going to apply.91 There is a close connection between selection of areas and the objectives of marine conservation. The object of protection is decisive for the selection of areas as they contain the ecological qualities that one wants to protect.92 Considerations that the states must undertake with regard to the objective of conservation are discussed below in subsection 14.6.3. 14.6.2.2

Deriving Criteria for the Selection of mpas by Interpretation of cbd The cbd does not list criteria for which areas should be designated as mpas and made part of the system of mpas. The Contracting Parties shall according to Article 8 (b), as far as possible and as appropriate, develop “where necessary, guidelines for the selection, establishment and management of protected ­areas.” Accordingly, the Contracting Parties have the freedom to 86

De Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 162. 87 Ibid. 88 Kelleher, Guidelines for Marine Protected Areas, 37. 89 Ibid., 37–41. 90 Ibid., 41, Box 5.1. 91 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 43. 92 Ibid., 45.

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f­ ormulate ­criteria for which areas that should be selected when implementing the ­obligation to establish “a system” of mpas. Still, criteria for the selection or choice of areas that are designated as a part of the “system of protected ­areas” may be derived through the interpretation of the obligation in the context of its objectives and other obligations of cbd as well as decisions adopted by the cop. The wording “system of protected areas” in Article 8 (a) refers to a systematic designation of mpas, a network of mpas. This is a reflection of the notion or acknowledgement that marine ecosystems are best conserved through the establishment and management of networks of mpas.93 It is acknowledged that although separate mpas have many benefits, they are only capable of protecting a limited fraction of marine biodiversity. With networks of mpas it is possible to achieve conservation of the full range of biodiversity.94 The sites that are part of the network cannot merely be selected by coincidence or to achieve a certain number of mpas. Designations of a number of isolated mpas will not constitute a network or a system of mpa. This is made clearer with the wssd’s target of “ecological representative network of mpas,” which the cbd also endorses.95 The overall objective of mpas and Article 8, in situ conservation of biodiversity, may also give directions for the Contracting Parties when selecting sites. The system or network of protected areas must be established with a view to comply with the obligation of in situ conservation of biodiversity. Consequently, all components of biodiversity, ecosystems, habitats, and viable populations of species should be addressed. This also implies that biodiversity over the whole marine area within the national jurisdiction of the states should be considered as potential areas for the mpas. The obligation of in situ conservation of biological diversity reflected in Article 8 is general and covers all biodiversity, not only threatened or critical habitats or ecosystems. To accomplish in situ conservation of biological diversity, mpas should therefore be established for maintaining a wide range of ecosystems, viable populations, and habitats. In addition, the duty in Article 7 (a) to “identify components important for its conservation and sustainable use,” contributes to the selection of sites for mpas. The duty to obtain knowledge of such components constitutes a legal duty to take actions as concluded above in Subsection 14.5.3, and at times may 93 94

95

Ibid., 44. Secretariat of the Convention on Biological Diversity (2004), “Biodiversity issues for ­consideration in the planning, establishment and management of protected area sites and networks,” Montreal, scbd, cbd Technical Series no.15, 52. cbd cop Decision VII/5, para. 19.

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imply a duty to establish mpas. When the Contracting Parties comply with the duty to identify its biological diversity, they should have “regard to the indicative list of categories set down in Annex 1.” The list includes different ecosystems and habitats due to their high diversity, large numbers of threatened species, wilderness, or due to their social, economic, cultural or scientific importance or because they are representative or unique. Notably, Annex 1 ­includes both areas that are representative and areas that are rich in biodiversity and critical or threatened habitats. Annex 1 is not mandatory for the selection of mpas, but it provides guidance as it provides an indicative list of components important for the conservation and sustainable use. The list is general and broad, but it may nevertheless serve as a starting point for the development of more concrete selection criteria for the implementation of the duty to establish mpas at the national level.96 In addition to the identification of ecological criteria, the identification of threats or damaging activities may create legal duties to establish an mpa in order to protect a concrete area. The obligation in Article 7 (c) which requires the Contracting Parties to identify “processes and activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity” as well as Article 14 (1) (a) which obliges states to undertake procedures for eias, may be relevant in the process of selecting sites for mpas. Identification of activities that may threaten biodiversity may activate the obligation to establish mpas pursuant to Article 8 (a). The link between knowledge that is determined on the basis of Article 7 (c), and the duty to take actions is reflected in Article 8 (l), requires the states to regulate or manage activities that may have adverse impact on the biodiversity. The precautionary principle may also be relevant to the process of selecting sites. Where there is a threat of “of significant reduction or loss of biological diversity” within an area, the precautionary principle could be an argument in favour of protection of the area.97 The cop also acknowledges the relevance and importance of the precautionary principle for the implementation of the programme of work on marine and coastal c­ onservation, hereby marine and coastal protected areas. Together with the ecosystem approach, the 96 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 342; de Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 162. 97 Marr argues that the obligation to establish mpas in cbd entails an application of the ­precautionary principle, see Marr, The Precautionary Principle in the Law of the Sea: ­Modern Decision making in International Law, 104.

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­ recautionary principle is acknowledged as a basic principle, and both should p therefore be guiding principles for the implementation of the activities under the programme of work and are therefore in the view of the cop central also to the selection of sites.98 The cop has adopted decisions elaborating on the criteria for the selection of sites as mpas. In Decision IV/5 it adopted the operational goal of developing criteria for the establishment and management of mpas.99 To achieve this goal the cop stated that it would assist in developing criteria for selection of areas as mpas, where the cop identified critical habitats for marine living resources as an important criterion.100 At the meeting of the cop in 2005, the cop ­adopted as a goal for the work on mpas under cbd that: The establishment and maintenance of marine and coastal protected areas that are effectively managed, ecologically based and contribute to a global network of marine and coastal protected areas, building upon national and regional systems, including a range of levels of protection, where human activities are managed, particularly through national ­legislation, regional programmes and policies, traditional and cultural practices and international agreements, to maintain the structure and functioning of the full range of marine and coastal ecosystems, in order to provide benefits to both present and future generations.101 This overall goal by the cop provides some guidance for the Contracting Parties in the process of selecting sites as mpas to comply with the obligation. The goal to establish mpas that contribute to “a global network of marine and coastal areas” to “maintain the structure and functioning of the full range of marine and coastal systems” requires that all of the biodiversity over the whole marine area be addressed. To achieve this overall goal of the programme of work, it is in the elaborated programme of work on mpas set out as an operational goal to establish and strengthen national and regional networks of mpas, which are integrated in the global networks to contribute to achieving the globally agreed-to goals.102 The cop calls for “integrated networks of marine and coastal protected areas”

98 99 100 101 102

cbd cop Decision VII/5, Annex 1, II, para. 4. cbd cop Decision IV/5, Annex. cbd cop Decision IV/5, Annex Operational objective 3.2 (b). cbd cop Decision VII/5, para. 18. Ibid. Annex 1, Goal and operational objective 3.1.

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that consist of areas in two categories. This network should according to the cop consist of a balance between: (a) Marine and coastal protected areas, where threats are managed for the purpose of biodiversity conservation and/or sustainable use and where extractive uses may be allowed; and (b) Representative marine and coastal protected areas, where extractive uses are excluded, and other significant human pressures are removed or minimized, to enable the integrity, structure and functioning of ecosystems to be maintained or recovered;…103 There are not, however, any clear criteria for the selection of these two groups. The latter group is selected due to the criteria “representative,” whereas the first group may be selected on the basis of criteria such as sensitiveness, richness or uniqueness. The cop states that the appropriate balance between the two categories of mpas should be selected by the state itself.104 Some further guidance on what a representative network means, is provided by the Secretariat of cbd: A representative network will include protected areas incorporating all habitat types, with the amount of each habitat type being sufficient to cover the variability within it, and to provide duplicates (as a minimum), so as to maximise potential connectivity and minimise the risk from large-scale effects.105 The Secretariat of cbd further emphasises that the aim of a representative network of mpas is to create a “coherent whole.” The mobile life and the ­fluent nature of water imply that connectivity and ecological coherence between the mpas that are part of the network is crucial.106 This requires consideration ­during the process of selecting areas as mpas, as to whether the mpas 103 Ibid., paragraph 21 (a) and (b) and 22, and Annex 1, Operational objective 3.1 (a) (i) and (ii). Appendix 3 to Annex 1 to this decision describes the two categories in the paragraphs 8–15. 104 Ibid., para. 22 and Annex 1, Operational objective 3.1. 105 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 25. 106 cbd Secretariat, “Biodiversity issues for consideration in the planning, establishment and management of protected area sites and networks,” 53; cbd Secretariat, “Technical ­advice on the establishment and management of a national system of marine and coastal ­protected areas,” 16 and 20.

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­constitute an ecological representative system of mpa, and there is connectivity between the areas. 14.6.2.3

Criteria for Ecologically or Biologically Significant Areas under the cbd At the eighth meeting of the cop in 2006, a call was made for an expert workshop to “refine and develop a consolidated set of scientific criteria for identifying ecologically or biologically significant marine areas in need of protection, in open ocean waters and deep sea habitats.”107 Following this, the cop adopted at its ninth meeting in 2008 scientific criteria for identifying ecologically or biologically significant areas (ebsa) in need of protection in open-ocean waters and deep-sea habitats. In addition, the cop adopted scientific guidance for designing representative networks of mpas.108 Furthermore, the cop also adopted initial steps to be considered in the development of representative networks of mpas at this meeting.109 Annex 1 of the cop Decision IX/20 lays down scientific criteria for identifying ebsa in need of protection in open-ocean waters and deep-sea habitats. The criteria for identifying areas of ecological and biological significance are uniqueness of rarity, special importance to life history stages of species, ­importance for threatened, endangered or declining species and/or habitats, vulnerability, fragility, sensitivity, or slow recovery, biological productivity, ­biological diversity (rich) and naturalness. Open-ocean waters and deep-sea habitats are not connected to jurisdictional zones. The work under cbd on ebsas was originally based on the commitment to establish mpas beyond national jurisdiction.110 The ebsa was however, broadened to include other types of area-based measures and to encompass areas both within and beyond national jurisdiction. At the tenth meeting of the cop in 2010, the cop noted that areas that meet these criteria may require protection, and that this may be carried out through a variety of conservation measures.111 The ebsa is thus not limited to the use of mpas. Annex ii of the cop Decision IX/20 includes a scientific guidance for selecting areas to establish a representative network of mpas.112 This scientific guidance is based on best practices with respect to the creation of networks 107 108 109 110

cbd cop Decision VIII/24, Annex II, para. 1. See also paras. 42–44. cbd cop Decision IX/20, para 14, and Annex 1 and Annex 2. cbd cop Decision IX/20, Annex 3. Daniel C. Dunn et al., “The Convention on Biologial Diversity’s Ecologically or Biologically Significant areas: Origins, development, and current status,” Marine Policy (2014): 1. 111 cbd cop Decision X/29, para. 24. 112 In the title it is stated, “including in open ocean waters and deep-sea habitats,” this ­therefore apply in both eez and on the high seas.

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of mpas. Components of networks of mpas are ecologically and biologically significant areas, representativity, connectivity, replicated ecological features, adequate and viable sites. These criteria are broad, and reflect the obligation of in situ conservation, as they encompass all biodiversity. The cop also provides in Annex I of the COP Decision IX/20 definitions of the criteria, rationale, examples and consideration in application that may provide guidance when the Contracting Parties apply the scientific criteria for EBSAs. The cop “urges” the Parties to apply the scientific criteria adopted in the cop Decision IX/20.113 This is a strong request from the cop, as the term “urges” is more demanding than other terms such as “invites” or “calls upon.” The cop has thus set out criteria for areas in need of protection in open-ocean waters and d­ eep-sea habitats and criteria for establishing network of mpas, including in open-ocean areas and deep-sea habitats. These criteria are not binding, but the cop strongly requests that they are applied. However, both the scientific criteria and the scientific guidance for networks of mpas are broad and need to be more concrete when implemented at the national level. 14.6.3 The Objective of Conservation 14.6.3.1 General The iucn and the Secretariat of the cbd recommend that states adopt objectives both for the individual mpa and the networks of mpas, which steer the planning and management of the mpas.114 Legal literature also expresses that the purpose of the planning and management of the mpas is to fulfil the objectives of conservation.115 The issue here is to examine the criteria for the d­ efinition of objectives of conservation for the mpas, under cbd. With the ­objective of conservation, it is meant what is protected, or the purpose of the mpa or the network of mpas. The importance of defining the objective of conservation for the mpas is described as follows in the iucn Guidelines: “An mpa must have clearly defined objectives against which its performance is regularly checked.”116 The iucn Guidelines provide states with advice to develop the legal framework of mpas in 113 cbd cop Decision IX/20, para. 18. 114 Kelleher, Guidelines for Marine Protected Areas, 14–15 and 43. See cbd, Secretariat, “­Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 21. 115 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 47. See also Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 333. 116 Kelleher, Guidelines for Marine Protected Areas, Executive Summary, p. xiii. The importance of defining the objective of conservation is included in a list of “key lessons learnt.”

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which the objectives of mpas should be specified in the l­ egislation.117 The iucn Guidelines also emphasise that the purpose of the planning and ­management of the mpas is to achieve the objectives.118 Moreover, the S­ ecretariat of cbd emphasises the importance of establishing objectives of conservation. It is expressed here that it is “vital to clearly establish the objectives of each mcpa and mcpa networks.”119 In the advice from the Secretariat of the cbd it is further explained how the choice of objective should influence the choice of location, the type of mpas, the management regime and the p ­ rocess of evaluating the mpas. 14.6.3.2

Connection between the Objective of Conservation and the Selection of Sites for mpas There are connections between the objectives of conservation and the process of selecting mpas. The selection criteria provide guidance as to areas that should be protected to achieve in situ conservation of biodiversity by the use of mpas. The Guidelines and the Secretariat therefore recommend that the objectives are established before the selection of the areas, and that the states should apply the criteria to select areas that meet the objectives.120 If a certain marine area that also is an important area for fisheries is designated as an mpa to protect a representative area, it may be possible to choose another representative area for the mpa that would not affect fisheries and the coastal livelihood. The Convention does not outline a procedure where the objectives of conservation are clarified before the selection of areas as mpas. Support for this procedure when establishing mpas, can however, be found in Articles 6 and 7 where the Contracting Parties are required to develop national strategies, plans and policies for conservation and sustainable use of marine and coastal biodiversity, and to identify and monitor components that are important for these purposes. 14.6.3.3

Requirements to Identify Objectives of Conservation for mpas under the cbd The legal duty in Article 8 (a) to establish a system of protected areas does not require that the Contracting Parties define particular objectives of conservation for these areas. The definition of protected area in Article 2 as a geographically defined area that is designated or regulated and managed for “specific conservation objectives,” indicates, however, that conservation objectives for the protected areas must be established. What the objectives might be is not, 117 Ibid.,12. 118 Ibid., 43. 119 cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 21. 120 Kelleher, Guidelines for Marine Protected Areas, 39; ibid., 21.

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however, ­specified. It is only required that they are “specific.” Similarly, the definition of mpa ­adopted by the cop does not specify the objectives of the mpas. This definition only states that marine and coastal biological diversity within the designated area has “a higher level of protection” than outside the area.121 The wording of the cbd in Article 8 and in the definition of protected area in Article 2 thus imply that the objectives for the mpas and the networks of mpas are identified, but that there is a freedom or discretion for the parties to choose the objectives for which the tool mpas is used. Protected area is a measure for in situ conservation, which is defined as ­conservation of ecosystems, habitats, and viable population of species “in their natural surroundings.”122 mpas could therefore be established to maintain certain species or to protect a vulnerable habitat or an ecosystem within the geographical area. The objective could also be the whole area within the designated area, all the components of the biological diversity within the area as a representative area, or wilderness protection. To achieve the objective of in situ conservation, and comply with the general obligation reflected in Article 8, the objective of conservation of the mpas must be specified. Article 8 (a) does however, not specify explicitly the links between the ­conservation of objective and the shaping and management of the mpas. ­However, the definition of protected areas “to achieve specific conservation objectives” and the definition of mpas adopted by the cop, where it is stated that the biodiversity within these areas “have a higher level of protection,” clearly imply that measures shall be adopted with the purpose of achieving the conservation objective.123 Consequently, Article 8 (a) includes requirements to the identification of the objectives of conservation and to the adoption of relevant and adequate protective measures. The cop also acknowledges the importance of identifying the objectives of the mpas. In order to achieve the goal of a global network of mpas, the cop recommends that the Contracting Parties establish two types of mpas with different objectives of conservation and management regimes, hereby mpas where activities are regulated and ­representative areas where extractive uses are excluded.124 The cop sets this as a goal to achieve effective management of the mpas, and therefore, recommends that the Contracting Parties address all threats to the mpas to maximise the effectiveness of the mpas and achieve their objectives.125 121 cbd cop decision VII/5, para. 10. 122 cbd, Article 2. 123 This link is also established in the alternative to protected areas in Article 8 (a) “or areas where special measures need to be taken to conserve biological diversity.” 124 cbd cop Decision, Annex 1, Programme element 3, operational objective 3.1.(a), (i) and (ii). 125 Ibid., Annex 1, Programme element 3, operational objective 3.3.

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14.6.4 The Adoption of Protective Measures 14.6.4.1 General It is acknowledged that the mpas must be managed effectively so that their objectives are achieved.126 An effective management of mpas requires protective measures that regulate or prohibit activities that may damage or threaten the objectives or values that the mpa is intended to protect or maintain.127 ­However, as the mpas may be established for a range of different purposes, it is not possible to determine as a general rule which activities that should be permitted, prohibited, or regulated within the mpas, nor how strict these regulations should be. The aim of this subsection is thus to examine the requirements under cbd with regard to the adoption of protective measures. This includes both legal requirements with regard to which activities that must be restricted or regulated as well as the level of regulation. 14.6.4.2 Which Activities Should be Regulated within the mpas? The cbd Article 8 (a) does not regulate or specify which activities should be regulated within mpas. The qualifier “as far as possible and as appropriate” ­emphasises the freedom the parties have when it comes to the management of the mpas. Furthermore, the Contracting Parties are, according to Article 8 (b), to develop guidelines for “selection, establishment and management of protected areas.” The mpas are established at the national level based on national ­legislation and the Contracting Parties themselves design and adopt the protective measures. This freedom or discretion enables the parties to take the ecological characteristics of the particular area, current threats and other local circumstances into account. As concluded above, the obligation to establish mpas must be understood so that it is a duty to adopt mpas with clearly defined objectives of conservation. There are, however, uncertainties as to which activities that must be regulated. Should all activities that exceed a certain threshold when it comes to level of threat or extent of damage always be regulated? Or should all activities, which may have negative effects within an mpa be addressed? Or is a certain

126 The cbd Secretariat states that the “purpose of management is to ensure that the mcpa or network is able to achieve the intended objectives.” See cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” 26. 127 Kachel states that “the purpose of management is to ensure that the objectives set for an mpa or an mpa network are met” see Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 47.

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level of loss of biodiversity within the mpas acceptable so that activities that cause damage or potential damaging activities are permitted? First, the definition of protected area provided in cbd Article 2, as a geographically defined area which is “designated or regulated and managed to achieve specific conservation objectives,” implies that a protected area must either be designated or regulated but shall anyhow be managed. The wording “managed to achieve specific conservation objectives” implies both the ­existence of appropriate measures, that prohibitions or restrictions on human activities must be established and made applicable within the geographically designated area, and also makes demands with regard to the result of the management. That an mpa must include protection measures that regulate human activities also follows from the definition of mpa, as endorsed by the cop, due to the wording “any defined area…with the effect that its marine and/or coastal diversity enjoys a higher protection than its surroundings.”128 It is thus reasonable, on the basis of these definitions, to conclude that the Contracting Parties shall adopt measures that are adequate to achieve the objectives of conservation. Although the Contracting Parties themselves make the decisions on which human activities to regulate, the obligation to establish mpas thus requires considerations on the basis of what the mpa purports to protect and due to the current threats in the area. This is the “core” of the concept of mpas, and the establishment of mpas and adoption of protective measures without considering regulation of the activities that may threaten the objective of conservation would not be consistent with the obligation to establish mpas. This understanding of the concept of mpa gives effect to the objectives of the obligation to establish mpas as a means for in situ conservation. A consequence of the required links between the objective of conservation and the management of the mpas is that activities that may be contrary to the objective must not be allowed within the protected area.129 When a given area is protected for the purpose of protecting a specific coral reef, the Contracting Parties cannot allow activities that cause damage to this reef. This would not be an mpa that is “managed to achieve specific conservation objectives.” The requirement that the area is “managed to achieve specific conservation ­objectives” implies that all activities, which may damage the objective or purpose are addressed. Consequently, the concept of mpas and how they are ­understood due to the definitions and the objective of in situ conservation suggest a broad requirement for the states with respect to which activities that

128 The definition is endorsed by the cop in cbd cop decision VII/5, para. 10. 129 nou 2004:28, 51.

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should be managed. On this basis all activities that may have negative effects on the objective of conservation must be regulated or restricted. This must however, be understood in a more nuanced manner due to the clause “as far as possible and as appropriate.” According to the term “as far as possible” the Contracting Parties are allowed to take into account social and economic considerations when they determine which activities that are permitted and which that are restricted or prohibited. Therefore, the design of the mpa must not exclusively be based on conservation considerations. Activities, which are of significance, due to social or economic considerations, may be allowed within the mpa. As an example, fisheries with certain equipment or in certain zones of mpas may be allowed. On the other hand, if an activity may cause damage that undermines the objective of conservation, the conservation interests carry more weight and such activities must due to this interpretation be managed.130 If an activity threatens or may damage the very reason for establishing an mpa, the objective of conservation and interests of conservation must in such a situation be given priority when the relevant interests are balanced. Also “as appropriate” is significant for evaluating which activities are permitted, regulated, or prohibited. As the criterion “as appropriate” relates to ­ecological and conservation considerations, the Contracting Parties may establish mpas in a manner they find suitable or adequate for achieving in situ conservation. It is up to the Contracting Parties to determine the shape of the mpa, on the basis of the ecological considerations and the threats in the particular area. If the mpa is established as means for protecting a rare habitat, the criterion “as appropriate” implies that the protected area must be shaped and designed so that this particular habitat is safeguarded. On the other hand the requirement to establish mpas “as appropriate” means that activities that do not have negative effects on the mpas may be permitted. Furthermore, the general duty of in situ conservation is significant for which activities that should be regulated or prohibited within the mpas. The Contracting Parties cannot refrain from adopting regulations or restrictions of activities that are necessary for achieving in situ conservation. However, the level of in situ conservation is blurred and one may not decide exactly when the required state of conservation is achieved. It is not an absolute level, and some loss of biodiversity is acceptable, without violating the norm. The general ­obligation does not therefore mean that all activities that may have ­negative impacts on the biological diversity are prohibited. Other obligations in cbd are relevant for the consideration of which activities that should be addressed within the mpas. The Contracting Parties are 130 See discussions above in Subsection 13.4.3.

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pursuant to 7 (c) required to identify activities and projects that are likely to have significant adverse effects on the biodiversity. Furthermore, they are required to regulate or manage such processes or activities, which are identified, due to Article 8 (l). Article 8 (l) is comprehensive and relates to all types of activities, including shipping activities and the laying of cables.131 The case could be that shipping within a certain area has or is likely to have significant adverse effects within an mpa. This could either be because a coral reef needs to be protected against physical damage from vessels, a breeding area needs to be protected against the disturbance of vessels, or an area is particularly sensitive to operational or accidental pollution. Statements by the cop in their cop Decisions are of relevance for the ­considerations of which activities that should be addressed. It is established as  a goal for the cop to establish and maintain mpas that are effectively ­managed to achieve their objectives, which are “to maintain the structure and functioning of the full range of marine and coastal ecosystems.”132 Furthermore the cop: Urges Parties to urgently address…, all threats…, in order to maximise the effectiveness of marine and coastal protected areas and networks in achieving their marine and coastal biodiversity objectives…133 The word “urge” is quite strong, and the cop indicates that all activities that threaten the mpa should be addressed and not only activities that “have or are likely to have significant adverse effects” on biodiversity as indicated by Article 8 (l). As mentioned above it is established as an objective of the programme of work on mpas to: “achieve effective management of existing marine and coastal protected areas.”134 To achieve effective management of mpas, the cop also includes as suggested activities: To achieve effective management of marine and coastal protected areas  through good governance, clear legal or customary frameworks to prevent damaging activities, effective compliance and enforcement…135 131 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 93. 132 cbd cop Decision VII/5, para 18. 133 Ibid., para. 26. 134 Ibid., Annex 1, programme element 3, operational objective 3.3, suggested activities (a) and (b). 135 Ibid., Annex 1, programme element 3, operational objective 3.3, suggested activities (a).

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Although these statements by the cop are not legally binding, they strongly direct the parties to address and manage all activities that threaten and cause damage within the mpas. These statements are therefore arguments in favour of the solution that all activities that may damage the objective of conservation are managed, not only activities that may cause “significant adverse effects” as required in Article 8 (l). The precautionary principle and the ecosystem approach are relevant principles or considerations when the Contracting Parties, as a part of the establishment and management of the mpas, are determining which activities to address and manage.136 The precautionary principle is relative and one may argue that it carries more weight as an argument when there is a threat of significant damage within an mpa that is established to protect a critical habitat or for the recovery of a threatened species. The precautionary principle could also imply that activities are regulated in a situation where there are no concrete threats, but where there are uncertainties about the ecological criteria, or uncertainties as to whether an activity may cause threat or damage within an area, which for instance is protected as a representative area.137 The ecosystem approach may in different ways be significant for arguments as to which activities that should be regulated. One element of the ecosystem approach is to integrate use and conservation of the biological diversity. Due to the ecosystem approach, one should also maintain the structure and functioning of ecosystems.138 A management of the mpas in line with the ecosystem approach implies that activities that are not in consistence with long-term sustainability or that are threatening the ecological functions of an ecosystem should not be permitted. Here there are links to the precautionary principle as it is often difficult to predict if an activity may threaten or damage the ecological functions. Another important element of the ecosystem approach, which the concept of mpa itself also encompasses, is that all human activities should be seen in relation to each other. All threats should be together as the cumulative e­ ffects could be threatening to the ecological functioning of an ecosystem.139 Therefore, a potential damaging activity should be seen as part of a whole and not isolated. Operational pollution from shipping may for instance pose minor

136 See cbd cop Decision VII/5, Annex, ii. 137 See nou 2004:28,193–194. 138 See the principles for ecosystem approach in cbd cop Decision V/6 and cbd cop ­Decision VII/11. 139 Ibid.

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damage, but could when addressing the threat together with all potential sources of pollution, cause damage to the functions of an ecosystem. To conclude, the Contracting Parties shall, as a part of the management of mpas, regulate or manage all activities that are damaging to the clarified objectives of conservation. However, this requirement is limited by the qualifier “as far as possible and as appropriate,” which could justify that not all such activities are regulated or prohibited. On the other hand, the obligation of in situ conservation implies that the mpas must be managed so that such conservation may be achieved, which imply restrictions on which activities that may be permitted within the mpas. As the obligation of in situ conservation is not absolute, activities within the mpas that affect biological diversity, but do not threaten the objective of conservation, could be permitted. 14.6.4.3 The Level of Strictness A relevant question in relation to the content of the obligation to establish mpas is what level of protection should be accorded? Should the mpas be areas with strict regulations, with a high level of environmental protection, or areas where sustainable use of resources may take place? The iucn has provided different categories of protected areas in which the level of strictness varies with the objective of protection. The cop also endorses these categories.140 The Secretariat of cbd also emphasizes that mpas with different levels of strictness should be adopted.141 The obligation of Article 8 (a) does not explicitly require a specified level of protection within the mpas. The analyses above are also relevant to the question of the level of strictness. Some remarks of particular importance for the level of strictness is, however, made here. The identified objective of conservation is decisive for the regulations of activities therein. Not only for that activities that are regulated within the mpas, but also the level of strictness. When a critical habitat is protected, or an area is protected to conserve a threatened species or representative areas are  ­protected, a high level of protection is thus required. This means strict ­regulations or prohibitions of activities.142 The general obligation of in situ conservation contained in Article 8 requires that the regulations are at a level necessary for achieving in situ conservation. But this obligation is not absolute. This is also evident as Article 8 on in situ 140 cbd cop Decision VII/28, para. 31. 141 See the cbd Secretariat, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,”15. 142 See Ibid., 21,on the importance of highly protected areas.

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conservation encompasses measures at different levels, including sustainable use. Furthermore, as sustainable use is an objective of the Convention and biodiversity may also be conserved through sustainable use, it is not reasonable to understand cbd to require mpas where all uses are regulated. The clause “as far as possible and as appropriate” is also relevant to the level of strictness of the regulations. First, “as far as possible” allows that other ­considerations, such as economic and social considerations, be made, and therefore provides discretion at the level of implementation. Whereas “­appropriate” indicates freedom to choose the manner of implementation, the ­measures should be shaped so that the objective of in situ conservation is achieved. This suggests that measures at the level necessary to achieve in situ conservation must be adopted. As emphasised above, the cop expresses that the mpas should consist of marine and coastal protected areas where threats are managed and where extractive uses may be allowed and representative marine and coastal protected areas where extractive uses are excluded.143 To comply with the general obligation to establish a network of mpas, the Contracting Parties should therefore adopt areas of both these types. Consequently, the level of strictness must be determined concretely on a case-by-case basis. Of particular importance here is the objective of conservation that the mpa was established to protect. To achieve the obligation of in situ conservation different types of mpas, and the cop presume different levels of protection are necessary, ranging from multi use areas where extractive uses are allowed, to highly protected areas. 14.6.5 Conclusions The analyses show that there are procedural and substantive requirements to the content of the mpas. These requirements are not absolute rules, but may also vary under specific circumstances, such as the ecological values, the objective of conservation, and the current threats. The requirements are therefore relative to the particular circumstances and may be evaluated different ways in different situations. It should be underlined that the procedural requirements to establish and manage mpas as a part of a wider strategy, to provide knowledge of biodiversity and of harmful activities and undertaking of eias for proposed activities, due to the very vague substantive requirements, are particularly important for establishing mpas that accomplish their objectives.

143 cbd cop Decision VII/5, appendix 3, para. 5.

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The ospar Convention and mpas 15.1 Introduction The ospar Convention includes general obligations to protect the marine environment and to protect and conserve ecosystems and marine biodiversity in the North-East Atlantic and provides for the establishment of mpas.1 Under the ospar Convention, there has been ongoing work to establish a framework for mpas since the adoption of Annex v on the conservation of biological diversity and ecosystems in 1998. Progress has been made, and the ospar network of mpas is highlighted in legal literature as “the best example of a comprehensive effectively managed and ecologically representative regional system” of mpas.2 This chapter provides an overview of the framework of mpas within the ospar Convention, and examines whether the obligation in Article 2 of Annex v, as well as the framework of mpas developed under Annex v, include a legal duty to establish mpas at the regional level. Important measures are taken ­under the ospar Convention in the establishment of mpas in areas ­beyond national jurisdiction. None of the mpas in the areas beyond national jurisdiction are located within region 1 of the ospar maritime area, the Arctic Waters. Nevertheless, this process may have an effect on the future work done to safeguard the Arctic marine environment, and is therefore also addressed in this chapter. 15.2

The Development of a Framework of mpas within ospar

The development of mpas within ospar was first initiated at the ministerial meeting in Sintra in 1998. At this meeting, the Contracting Parties adopted ­Annex v, as well as a new Appendix  3 to the Convention, and the Strategy on the Protection and the Conservation of the Ecosystem and Biodiversity.3 1 See discussions of ospar and its general obligations and principles above in Section 8.2. 2 Lahonde, “Marine Protected Areas in the Arctic,” 105. 3 ospar Commission, “ospar Strategy on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” (1998) and “The Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” Ministerial Meeting of the ospar Commission, 20–24 July 1998, Summary Record ospar 98/14/1-E, Annex 31.

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To implement the strategy, the ospar Commission took action by, inter alia, promoting: the establishment of a network of marine protected areas to ensure ­sustainable use and protection and conservation of marine biological ­diversity and its ecosystems.4 To comply with this, the Commission stated that it would: as a first step develop by 2003 the most necessary programmes and measures to achieve the purposes of the Annex.5 As a follow up, the ministerial meeting in Bremen in 2003 adopted a number of documents on mpas. Of particular importance is the Recommendation on a Network of mpas, which “recalls the commitment made in the Sintra Statement.”6 The Contracting Parties also agreed to the commitment to establish an ecologically well-managed network of mpas by 2010.7 To support the implementation of this Recommendation, the ospar Commission adopted documents as guidance to the Contracting Parties. These documents include guidelines on the identification and selection of mpas,8 as well as guidelines for the management of mpas.9 In the revised strategy of 2003, the OSPAR Commission committed itself to continue to draw up programmes and measures in accordance with Annex V, including for the selection of sites that need protection.10 The ospar Commission agreed in their Recommendation on mpas that the network would consist of mpas both within and beyond national jurisdiction.11 The strategy of 2003 further elaborates on the establishment of mpas in areas 4 ospar Commission, “Sintra Statement,” (1998). 5 Ibid. 6 ospar Commission, “ospar Recommendation 2003/3 on a Network of Marine Protected Areas,” (2003), Preamble. 7 Ibid., para 2. 8 ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” (2003). 9 ospar Commission, “Guidelines for the Management of Marine Protected Areas in the ospar Maritime Area,” (2003). 10 ospar Commission, “ospar Strategy on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” (2003), para 2.2 and 2.3. 11 ospar Commission, “ospar Recommendation 2003/3 on a Network of Marine Protected Areas” (2003), para. 1.1.

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beyond national jurisdiction, stating that the ospar Commission will commit itself to take actions to include mpas in areas beyond national jurisdiction in the ospar network of mpas.12 The ospar Commission amended the Recommendation on mpas in 2010.13 The amended Recommendation notes that despite the efforts of the Contracting Parties to the ospar Convention, the network of mpas in 2010 “is not yet considered to be ecologically coherent throughout the entire ospar maritime area.”14 On this basis, the Recommendation adopted as a new purpose to ensure that an ospar network of ecologically coherent sites in the ospar maritime area was established by 2012 and well managed by 2016.15 The amended ­Recommendation on MPAs further clarified the task of the Contracting Parties to contribute to assessments of areas beyond national jurisdiction, which may be selected as ospar mpas under the criteria set out in the identification and selection guidelines.16 Additionally, the amended Recommendation on mpas, stated that the Contracting Parties should also propose to the ospar Commission the areas in areas beyond national jurisdiction that should be selected as components of the ospar Network of mpas.17 Also the revised 2010 ospar Strategy put emphasis on mpas, and provided further guidance to the ospar Commission in accomplishing the purpose set out in the amended Recommendation.18 The Status Reports on the ospar network of mpas aim to summarise the ­information from the Contracting Parties on their respective mpas, as nominated to the ospar Commission, and on this basis assessing the progress made toward achieving the objectives for establishing a network of mpas as set out

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14 15 16 17 18

ospar Commission, “2003 Strategies of the ospar Commission for the Protection of the Marine Environment of the North-East Atlantic,” (2003), para. 4.4 (d) and (e). See also ­Molenaar and Oude Elferink, “Marine protected areas in areas beyond national jurisdiction: The pioneering efforts under the ospar Convention,” 15. ospar Commission, “ospar Recommendation 2010/2 on amending Recommendation 2002/3 on a Network of Marine Protected Areas,” Meeting of the ospar Commission, 20–24 September 2010, ospar 10/23/1-E, Annex 7. ospar Commission, “ospar Recommendation 2003/3 on a network of Marine Protected Areas,” (Consolidated text), Preamble. Ibid., 2.1. (a) and (b). Ibid., para. 3.1 (c). Ibid., para. 3.1 (d). ospar Commission,“The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East ­Atlantic 2010–2020” (2010), part ii Biological Diversity and Ecosystems.

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in the Recommendation on mpas.19 According to this report the ospar Network of mpas now has a total of 403 mpas in national waters and 10 mpas outside national eezs.20 It is emphasised that the distribution of the mpas is imbalanced, as most mpas are located in territorial waters and the coverage in offshore areas, i.e., the eez remains law.21 Currently, ospar mpas cover 6.02% of the areas beyond the limits of the eezs.22 The distribution of mpas in the different ospar regions is also imbalanced, which results in major gaps in the ospar network.23 The lowest coverage of mpas is in the Arctic Waters, region 1 of the ospar maritime area, with a coverage of only 1.94% of ospar mpas.24 The Norwegian nomination of three mpas in the waters around the Svalbard archipelago and the Jan Mayen site constitute substantial parts of the ospar Network of mpas in this region.25 15.3

The Legal Status and Significance of the Recommendation on a Network of mpas

This section addresses the legal status and significance of the Recommendation on mpas adopted by the ospar Commission, as this is of relevance for the later analyses of whether Article 2 of Annex v contains a legal obligation to establish mpas. The legal basis and duties for the ospar Commission are set out in Article 10 of the ospar Convention. The ospar Commission is obliged to elaborate the Convention according to Article 10 (2). To comply with their obligation, the ospar Commission may adopt recommendations or decisions.26 In relation to the protection and conservation of ecosystems and biological diversity, the duties of the Commission are set out in Annex v, Articles 3 and 4. The ospar Strategy further elaborates the duties of the ospar Commission.27 As 19

ospar Commission, 2014 Status Report on the ospar Network on Marine Protected ­Areas, 4. 20 Ibid, 8. 21 Ibid., 14. 22 Ibid. 23 Ibid., 15. 24 Ibid.,16. 25 Ibid. 26 ospar Convention, Articles 10 (3) and 13. 27 ospar Commission, “The North-East Atlantic Environment Strategy: Strategy of the ospar Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020,” (2010) see in particular, Part ii Biological Diversity and Ecosystems.

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the ­obligations of the Contracting Parties are not very specific, the duties of the ospar Commission are important for the implementation of them.28 Decisions and recommendations adopted by the ospar Commission make the obligations of the Contracting Parties more operational and practical. As prescribed in Article 3 (1) (a) (i) of Annex v, the ospar Commission shall “draw up programmes and measures for the control of the human activities identified by the application of the criteria in Appendix 3.” When doing this, the Commission is, according to Article 3 (1) (b) (ii), required to: develop means, consistent with international law, for instituting protective, conservation, restorative or precautionary measures related to specific areas or sites or related to particular species or habitats; Further, the ospar Commission shall, based on Article 3 (1) (b) (iv), “aim for the application of an integrated ecosystem approach.” Hence, the adoption of the Recommendation by the Commission on a network of mpas and the accompanying guidelines on selection and management of the mpas are integrated as part of the obligations of the ospar Commission, according to Article 3 of Annex V, and in consistence with the ospar Strategy for conservation and protection of ecosystems and marine biodiversity.29 It follows from Article 13 (5) of the OSPAR Convention that recommendations “shall have no binding force.” When discussing the legal status of recommendations adopted by the ospar Commission, recommendations can be distinguished by their status at the internal level, and by their legal status or normative force upon the Contracting Parties. Although recommendations are not legally binding for the Contracting Parties, it is reasonable to argue that the Commission itself and its subsidiary bodies feel committed. It is also, based on Article 23 of the ospar Convention, a duty for the ospar Commission to assess the compliance and promote the implementation of recommendations and decisions. Dotinga expresses a similar point of view as he finds that: In the practice of the ospar Commission recommendations carry ­almost  the same weight as decisions, even though from a legal point

28

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of view  Contracting Parties would not be strictly bound to implement them.30 Even though recommendations are not legally binding upon the Contracting Parties, they are not without legal significance. Different arguments may be brought forward in support of the view that the Recommendation of the ospar Commission to adopt a network of mpas, is of relevance when interpreting the duty of the Contracting Parties to take “necessary measures to protect and conserve the ecosystems and the biological diversity” of the ospar maritime area, as set forth in Article 2 (a) of Annex v. First, the Recommendation on mpas has a strong political force, as it reflects a common opinion regarding the use of applying mpas for the protection and conservation of biodiversity. As early as 1998, in the Sintra Statement, the ministers put emphasis on the need to protect species, habitats, and ecosystems, and set forth that the ospar Commission would promote the establishment of a network of mpas. In the following years, the use of mpas is also emphasised in the ospar strategies. The Recommendation on mpas is thus an expression of the intentions of the states, and reflects a steady motivation to protect and conserve ecosystems and biological diversity through the use of mpas. Recommendations are normally adopted unanimously by the Contracting Parties.31 This suggests that the parties are likely to feel committed and also legitimate that the Recommendation is a relevant source when interpreting the obligations upon the Contracting Parties under Annex v. Nollkaemper has examined international norms for the protection of the North Sea. He argues that non-legal norms can be relevant when interpreting treaties. In relation to the ospar Convention, Nollkaemper points out as an example that this is the case for recommendations adopted by the OSPAR Commission.32 The Recommendation sets out a clear goal to establish an ecologically ­coherent network of mpas by 2012 that is well managed within 2016.33 The 30 31 32

33

Dotinga, “Conservation of Biological Diversity in the North Sea: the Role of the ospar Convention,” 6. ospar Convention, Article 13 (1). André Nollkaemper, “The Distinction Between Non-Legal and Legal Norms in International Affairs: an Analysis with Reference to International Policy for the Protection of the North Sea from Hazardous Substances,” The International Journal of Marine and Coastal Law, 13:3 (1998): 363–367. ospar Commission, “ospar Recommendations 2003/3 on a Network of Marine Protected Areas,” (Consolidated text), para. 2 (1) (a) and (b).

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measures the Contracting Parties are encouraged to adopt are f­ormulated in rather mandatory terms. As an example, para. 3 (1) (b) states that the ­Contracting P ­ arties should “report to the ospar Commission the areas it has selected as components of the ospar Network of Marine Protected Areas.”34 The Contracting Parties, should, according to the Recommendation, report to the Commission on the areas that they have selected as ospar mpas and on the implementation of the Recommendation itself.35 The reporting requirements are based on a presumption that the Contracting Parties will comply with them. Nollkaemper points to the reporting requirements specified in the recommendations themselves, as well as the obligation of Article 22 (a) of the ospar Convention to report on the implementation of recommendations, as “treaty like” features of ospar recommendations.36 Based on this, Nollkaemper argues that the recommendations are legal relevant and not something the Contracting ­Parties may just ignore.37 Therefore, although the recommendations according to Article 13 (b) “have no binding force,” it is presumed in the Recommendation that the Contracting Parties are implementing the practice of establishing a network of mpas. The shaping and formulation of the Recommendation on mpas and the ­inclusion of its para. 5 with time limits on implementation reports provides a normative content which suggests that the Recommendation may have lasting legal ­effects in the interpretation of the obligations of the Contracting Parties pursuant to Article 2 of Annex v. 15.4

A Legal Duty to Establish mpas in the North-East Atlantic?

This section addresses whether the duty to “take the necessary measures to protect and conserve the ecosystems and the biological diversity” as set out in Article 2 (a) of Annex v, includes a legal duty for the Contracting Parties to establish mpas within their national jurisdiction. According to Article 2 (a) of Annex v, when fulfilling their obligation under the ospar Convention to protect the maritime area against adverse effects of human activities and to 34 35 36

37

Ibid., para. 3 (1) (b). Ibid., para. 5. Nollkaemper, “The Distinction Between Non-Legal and Legal Norms in International ­Affairs: an Analysis with Reference to International Policy for the Protection of the North Sea from Hazardous Substances,” 360. Ibid., 360–362.

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conserve marine ecosystems, and their obligation under the cbd to develop strategies, plans, or programmes for the conservation and sustainable use of biological diversity, the Contracting Parties shall: take the necessary measures to protect and conserve the ecosystems and the biological diversity of the maritime area, and to restore, where practicable, marine areas which have been adversely affected;38 Hence, the provision provides a legal basis for the implementation of conservation measures such as mpas to fulfil the general obligations to protect and preserve the marine environment in the los Convention and the obligations of cbd as well.39 Although neither Article 2 of the ospar Convention nor ­Article 2 of Annex v explicitly require the establishment of mpas, the obligations and practice of the ospar Commission clearly envisage the use of this environmental tool. mpas are, as shown above, emphasised in a number of documents and in the ospar Strategy. As also addressed above, it is in line with ­Article 22 of the Convention, adopted a system for implementation reports of mpas in the Recommendation on mpas.40 Additionally, the tool appears to have a major position among measures developed for achieving the objective of protection and conservation of ecosystems and biological diversity. This implies that the Commission and the Contracting Parties find the establishment of a network of mpas a primary tool for complying with the obligation set forth in Annex v. Article 2 (a) of Annex v formulates the obligation in rather strict terms, as it requires that Contracting Parties shall take the “necessary measures to protect and conserve the ecosystems and the biological diversity.” Due to the wording, one may therefore argue that, to the extent the establishment of mpas is a “­necessary measure” for conservation of ecosystems and biological diversity, the Contracting Parties under the ospar Convention are required to use this tool. The o­ bligation in Annex v does not, however, specify which measures the Contracting Parties shall take. Therefore, it provides the Contracting Parties with discretion to implement the obligation, and to determine which measures are “necessary measures” to ensure sufficient protection and conservation of ecosystems and biological diversity. Legal writers argue on this basis that the ospar Convention does not include a legal duty to establish mpas, as 38 39 40

ospar Convention, Annex v, Article 2 (a). Koivurova and Molenaar, International Governance and Regulation of the Marine Arctic, 21. ospar Commission, “ospar Recommendation 2003/3 on a Network of Marine Protected Areas,” (consolidated text), para. 5.

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Annex v does not include any specific requirements to establish such areas to protect the biodiversity. Frank establishes that: There is no legal requirement under the ospar Convention and A ­ nnex v to establish mpas or manage and assess the environmental impact of ­human activities therein.41 Dotinga points out that there are no specific requirements for the Contracting Parties to establish mpas and that there are no decisions on mpas adopted by the Commission. The Contracting Parties are, according to Dotinga; “therefore currently not under a specific legal obligation to identify, select and establish specially protected areas and manage activities therein.”42 In the view of these legal writers, it is therefore within the discretion of the Contracting P ­ arties to decide whether to establish mpas. It can, however, be argued that the discretion of the Contracting Parties when implementing the legal duty in Article 2 of Annex v is more limited. First, although the obligation is broad, it is a rather strictly formulated obligation that implies a requirement to act. The Contracting Parties are not free to determine themselves whether they shall take action to conserve and protect the ecosystems and the biological diversity. Secondly, the fact that the obligation specifically does not require the use of mpas does not mean that no such duty exists. The term “necessary measures” must be interpreted on the basis of the relevant principles and factors for treaty interpretation. In this respect, both the practice within ospar and international norms developed outside the Convention are relevant factors of interpretation. The objective of the Recommendation on mpas is, as shown above, to establish an ecologically coherent network within 2012, which is well managed within 2016.43 To accomplish this, it follows from the Recommendation that the Contracting Parties should consider areas within their national jurisdiction that may be selected as mpas due to the criteria set out in the identification and selection guidelines.44 The Contracting Parties must report to the ospar Commission the areas it has selected as components to the ospar 41 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 351. 42 Dotinga, “Conservation of Biological Diversity in the North Sea: the Role of the ospar Convention,” 12. 43 ospar Commission, “ospar Recommendation 2003/3 on a Network of Marine Protected Areas,” (consolidated text), para. 2.1. 44 Ibid., para 3.1. (a).

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­Network of mpas.45 On the basis of the Recommendation, the Contracting Parties should also contribute to assessments of, as well as propose areas beyond national jurisdiction to the ospar Commission that may be selected as ospar mpas.46 The actions ­described in the Recommendation on mpas indicate an agreed opinion that mpas are a significant measure, and that the application of this tool is essential to comply with the obligation in Article 2 in Annex v and to achieve the objectives of the obligation and the Convention. This supports the view that mpas is a measure that is necessary “to protect and conserve the ecosystems and the biological diversity” as required in Article 2 of Annex v. The ospar Convention takes a broad approach to the protection of the marine environment against adverse human activities. The establishment of mpas as a “necessary measure” to conserve ecosystems and biological diversity contributes to complying with the obligation in Article 2 in the ospar Convention “to protect the maritime area against the adverse effects of human activities,” which also is included in Article 2 of Annex v. The Preamble of the ospar Convention further states that the Contracting Parties are recognising the “inherent worth of the marine environment of the North-East Atlantic and the necessity for providing coordinated protection of it.” The ecosystem approach is also adopted as a guiding principle in the latest ospar Strategy of 2010. Therefore, a requirement to apply the tool of mpas complies with the integrated ecosystem approach to human activities as reflected in the Convention. Annex v was adopted to strengthen the obligation to protect and conserve biological diversity and to implement the obligations and principles of cbd at the regional level in the ospar maritime area.47 Both the Preamble to the ­Decision adopting Annex v, and Articles 1 and 2 of the Annex refer to cbd.48 This raises the question as to whether and how the obligation in Annex v must be interpreted in light of the legal duty to adopt mpas in cbd Article 8 (a). It follows from the Vienna Convention Article 31 (3) (c) that any “relevant rules of international law applicable in the relations between the parties” shall be taken into account when interpreting a treaty. The scope of Article 31 (1) (c) is not clear and there is limited jurisprudence here.49 In the Dispute ­Concerning 45 46 47 48 49

Ibid. para. 3.1. (b). Ibid., para. 3.1 (c) and (d). For more on the adoption of Annex v, see de La Fayette, “The ospar Convention comes into force: Continuity and Progress,” 265–270. ospar Commission, “The Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” (1998), Preamble. Campbell McLachlan, “The principle of systemic integration and article 31 3 (c) of the Vienna Convention,” International Law & Comparative Law Quarterly 54 (2005): 279. The

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Access to Information Under Article 9 of the ospar Convention (the ospar Arbitration), the Arbitral Tribunal made an explicit reference to the Vienna Convention Article 31 (3) (c).50 The Arbitral Tribunal accepted that it was allowed “to draw upon international law and practice, when interpreting the obligations of the ospar Convention.”51 However, the Arbitral Tribunal found that none of the instruments contended by Ireland were applicable between the parties and did not therefore apply them.52 Still, the statements made by the Arbitral Tribunal supports the view that cbd, which is applicable to the Contracting Parties to the OSPAR Convention as all of them are also parties to the cbd, is a relevant factor when interpreting the obligation in Annex v.53 In the Import Prohibition of Certain Shrimp and Shrimp Products (the Shrimp/ Turtle case), the wto Appellate Body referred to the Rio Declaration, the los Convention and the cbd when interpreting the term “exhaustible natural resources” in the 1947 gatt Agreement.54 The wto Appellate Body stated that the particular Article in question here had to be interpreted “in the light of contemporary concerns of the community of nations about the protection and conservation of the environment.”55 In relation to this decision, Boyle argues that interpretation by other rules of international law may take place when interpreting terms “which necessarily import – or at least suggest – a reference to current general international law.”56 In line with this, it is reasonable to argue that the wording “necessary measures to protect and conserve ecosystems and the biological diversity” must be understood in light of the development outside the ospar Convention. The content of the requirement to take “necessary measures” pursuant to the ospar Convention Article 2 of Annex v, will vary with developments of the application of Article 31 (3) (c) is examined more in detail below in Subsection 17.4.4 as a mechanism for solving potential conflicts between the cbd and the los Convention. 50 Dispute Concerning Access to Information Under Article 9 of the ospar Convention (ospar Arbitration) (Ireland versus United Kingdom) Permanent Court of Arbitration, Final Award (2003) xxiii riaa 59, para. 101. 51 Ibid. 52 Ibid., 93–105. 53 For more on the ospar Arbitration see McLachlan, “The principle of systemic integration and article 31 3 (c) of the Vienna Convention,” 299–302. 54 Import Prohibition of Certain Shrimp and Shrimp Products (Shrimp/Turtle case)(1998) wto Appellate Body Report, Doc. WT/DS58/AB/R, paras. 130–131. See also Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 45 and in McLachlen, “The ­Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 302–304. 55 Shrimp/Turtle case, para. 129. 56 See Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 45.

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outside world, such as new knowledge, research, technology, and legal development. Hence, the understanding of the wording “necessary measures” relies on development of programmes within ospar, due to the two-tracked system of ospar with d­ uties for the ospar Commission to develop the Convention. The wording is also open for interpretation in light of other relevant instruments, as well as the development of the law outside the Convention. In this regard, the prominent role of protected areas in cbd indicates that this tool is a “necessary measure” for conservation of biological diversity. It is, however, not clear how far the general obligation of Annex v may be  ­interpreted and “supplemented” by the duty to establish mpas in cbd ­Article 8 (a). It follows from the Vienna Convention Article 31 (3) (c) that other rules of international law “shall be taken into account.”57 The calls and requirements of the use of the tool mpas within cbd, along with other fora and instruments, indicate a common global understanding of the need to establish mpas to ensure sufficient protection and conservation of ecosystems and biological diversity. This suggests that mpa is a “necessary measure” for achieving the aims of the ospar Convention and its Annex v, and therefore an environmental tool that the Contracting Parties at least are required to consider using. Other arguments support this view. All the Contracting Parties also are parties to the cbd, and the purpose of Annex v is to strengthen the protection and conservation of biological diversity and to implement cbd at the regional level.58 The ospar Convention explicitly expresses linkages to the cbd. Article 1 refers to the definitions of “biological diversity,” “ecosystems,” and “habitat” as provided in the cbd. It follows from Article 2 of Annex v that the obligation to take “necessary measures to protect and conserve the ecosystems and the biological diversity of the maritime area” aims to fulfil the general obligation under the ospar Convention as well as the obligation under cbd “to develop strategies, plans or programmes for the conservation and sustainable use of biodiversity.” Although there are clear linkages between Annex v and the cbd, Article 2 of Annex v does not, however, explicitly refer to the more concrete obligation to adopt in situ conservation measures, such as is required for protected areas as set forth in Article 8 of cbd.59 Instead, Article 2 of Annex v refers to 57 58 59

See further discussion on the weight of other rules in the process of interpretation in Subsection 17.4.4. ospar Commission, “The Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area,” (1998), Preamble. Dotinga, “Conservation of Biological Diversity in the North Sea: the Role of the ospar Convention,” 8.

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the more general obligation to develop strategies, plans, or programmes that is contained in Article 6 of cbd.60 This indicates that the discretion available when it comes to choice of environmental tools for protection and conservation of ecosystems and biological diversity is wider under the ospar Convention as compared to the cbd. On the other hand, the Contracting Parties shall, ­according to cbd Article 6, review the use of different conservation measures set out in cbd, including mpas.61 It thus follows that the legal duty in cbd ­Article 8 (a) to adopt protected areas carries weight when interpreting the obligation in Article 2 of Annex v. However, the obligations of cbd are rather vague and discretionary, which reduces its weight when interpreting the obligation in ­Article 2 of Annex v. Conclusively, the term “necessary measures” does not include a legal duty for the Contracting Parties to adopt mpas, within their national jurisdiction. Still, in concrete cases it could nevertheless be a legal duty for the Contracting Parties to establish mpas when this is a necessary measure to achieve the objectives of the obligation. Although there is not a legal duty for the Contracting Parties of the ospar Convention to establish mpas, it is reasonable to argue that when complying with the obligation, there is a legal duty to consider the establishment of mpas. On the basis of the practice within ospar, there are strong directives for complying with the obligation by establishing mpas. The Contracting Parties are under the ospar Convention required to adopt measures that ensure appropriate protection and conservation of ecosystems and biological diversity. Conservation of biological diversity and ecosystems may require the use of area-based conservation or management tools that regulate human activities in an integrated manner.62 If the Contracting Parties do not establish mpas, they may therefore be required to adopt other area-based management tools to comply with the obligation in Article 2 of Annex v. 15.5

Selection and Management of mpas under the ospar Convention

The ospar Commission has, in order to assist the Contracting Parties with establishing mpas in their domestic maritime zones, adopted recommendations on identifying and selecting areas that may be included in the network, as well

60 Ibid. 61 See discussions above in Subsection 7.2.8. 62 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 332.

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as recommendations on the management of mpas.63 The guidelines provide that the aim of the ospar network of mpas is to: • protect, conserve and restore species, habitats, and ecological processes which are adversely affected as a result of human activities; • prevent degradation of and damage to species, habitats, and ecological processes, following the precautionary principle; • protect and conserve areas that best represent the range of species, habitats, and ecological processes in the ospar maritime area.64 None of these documents are legally binding for the Contracting Parties. ­However, the documents provide guidance to them to ensure that the marine environment, biological diversity, and ecosystems within the ospar area are protected by the use of mpas. The Contracting Parties are free to determine which areas should be selected as part of the ospar network of mpas, and also determine how the mpas are shaped – i.e., what human activities that are regulated or restricted therein. The mpas should, however, be selected and managed to achieve the aims of the network of mpas, as mentioned above.65 The method of identification and selection of mpas is described in the Guidelines as a process in two stages.66 First, the possible sites are identified based on the ecological criteria/considerations listed in Appendix  1 to the Guidelines on identification and selection of mpas67 Following this, the ­identified sites must be prioritized. The ecological criteria/considerations in Appendix 1 should be reapplied to help in this process.68 The ecological criteria provided in Appendix 1 are broad, and do not include specific requirements to the areas that are identified and selected. The criteria pointed out are: (1) threatened or declining species and habitats/biotopes; (2) important species and habitats/biotops; (3) ecological significance; (4) high 63

64

65 66 67 68

ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area” (2003) and “Guidelines for the Management of ­Marine Protected Areas in the ospar Maritime Area,” (2003). ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” (2003), para. 2, and “Guidelines for the Management of Marine Protected Areas in The ospar Maritime Area,” (2003), para. 2. Dotinga, Conservation of Biological Diversity in the North Sea: The Role of the ospar Convention, 13. ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” (2003), para. 3. Ibid., para. 3.1. Ibid., para. 3.2.

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natural biological diversity; (5) representativity; (6) sensitivity; and (7) naturalness. According to the Guidelines on identification and selection of mpas, an area qualifies as an mpa if it meets several of the criteria, but not necessarily all of them.69 The Guidelines also provide practical criteria and considerations for the identification and selection of areas as mpas and guidance on which criteria should be used to select areas as components of the ospar Network to meet the aims of the ospar Network of mpas.70 Moreover, the Commission has adopted a document to provide guidance to the Contracting Parties when interpreting the concept “ecologically coherent network.”71 When it comes to the management and regulation of activities within mpas, the ospar Convention takes a broad and holistic approach, as it aims to protect the marine environment and ecosystems against all human activities. There are, however, explicit exceptions made for fisheries management and shipping in the ospar Convention, specifically found in the Preamble and Annex v, Article 4. This means that the ospar Commission is not legally competent to adopt recommendations and decisions where these activities are restricted. However, where the ospar Commission finds that action in relation to fisheries or shipping is desirable, it shall as shown above pose the question to the relevant authority or international body.72 Therefore, there is not a legal obligation for the Contracting Parties to regulate these activities under the ospar Convention. Nevertheless, the ospar Convention lays down obligations in Article 6 and Annex iv on the assessment of the quality of the marine environment. These obligations are broad and holistic as it refers to the quality of the marine environment, and include assessments of the effectiveness of measures taken for the protection of the marine environment, without any exception for shipping or fishing activities. The Quality Status Report of 2010 includes assessments of all human activities that may impact the marine environment, including ­fishing and shipping activities.73 The precautionary principle is part of the ospar Convention and it also takes an ecosystem approach to the protection of the marine environment. 69 70 71 72 73

ospar Commission, “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” (2003), Appendix 1. Ibid., para. 3.3. See also Appendix 2 and 3. ospar Commission, “Guidance on Developing an Ecologically Coherent Network of ospar Maritime Area,” ospar Agreement 2006–3. ospar Convention, Article 4 of Annex v, see also above Subsection 8.2.1. ospar Comission, Quality Statues Report (2010). See also Molenaar and Oude Elferink, “Marine protected areas in areas beyond national jurisdiction: The pioneering efforts ­under the ospar Convention,”14.

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These principles could imply that when adopting mpas, the Contracting ­Parties  are obliged to cooperate through the relevant organizations such as imo and rfmos to ensure appropriate protection of the mpas. For instance, one may argue that it could be a duty under the ospar Convention for a Contracting Party to cooperate with the imo and get approval for a traffic regulation such as a sea lane in the eez to ensure protection of an mpa against shipping activities. It follows from the guidelines for the management of the mpas that the Contracting Parties should form an ecologically coherent network of well-managed mpas.74 These guidelines also provide a list of activities that may need to be regulated to achieve the conservation objectives of the mpas.75 Both fishing and shipping are included in this list. Further, the guidelines on management of mpas emphasise the use of management plans for achieving the above-mentioned aims of the ospar Network of mpas.76 The guidelines also provide guidance to the Contracting Parties in establishing such management plans.77 15.6

mpas in Areas beyond National Jurisdiction under the ospar Convention

ospar has made progress on the establishment of mpas on the high seas. As early as in 1998 at the Sintra ministerial meeting, as well as in the following recommendations and strategies adopted by the ospar Commission, the establishment of mpas beyond national jurisdiction was addressed. At the meeting of the ospar Commission in Brussels in 2009, the document “ospar’s Regulatory Regime for establishing Marine Protected Areas mpas in Areas Beyond National Juridiction (abnj) of the ospar Maritime Area” (ospar’s Regulatory Regime), was drafted.78 ospar’s Regulatory Regime sets out advice and described the legal basis and legal competence of the ospar Commission in establishing mpas in areas beyond national jurisdiction. The ospar Commission affirms 74 75 76 77 78

ospar Commission, “Guidelines for the Management of Marine Protected Areas in the ospar Maritime Area,” (2003), para. 6. Ibid., para. 5. Ibid., para. 3. Ibid, para. 4. ospar Commission, “ospar’s Regulatory Regime for establishing Marine Protected Areas (mpas) in Areas Beyond National Jurisdiction (abnj) of the ospar Maritime Area,” Meeting of the ospar Commission 22–26 June 2009; Summary Record ospar 09/22/1-E, Annex 6.

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here that it is competent to identify and establish mpas with ­corresponding protective measures in areas beyond national jurisdiction in consistence with the los Convention.79 In 2009, the ospar Commission identified eight areas as potential mpas on the high seas, and in 2010 six areas were established as mpas.80 These are: Charlie-Gibbs South mpa (146,032 km2); Milne Seamount Complex mpa (20,914 km2); Mid-Atlantic Ridge north of the Azores High Seas mpa (93,570 km2); Altair Seamount High Seas mpa (4,384 km2); Altair High Seas mpa (2,807 km2); and Josephine Seamount Complex High Seas mpa (19,363 km2). Following this, the Charlie Gibbs north mpa (178,094 km2) was adopted in 2012.81 In addition to these mpas that are established collectively by all Contracting Parties, the United Kingdom has protected the seabed and subsoil in three mpas located in areas that are subject to a submission to the clcs for an extended continental shelf.82 The legal competence of ospar when it comes to the regulation of human activities is based both on the los Convention and the ospar Convention itself.83 The ospar Commission points out in the ospar’s Regulatory Regime that the Commission has a wide mandate to identify and assess specific areas within the ospar maritime area in need of protection.84 Furthermore it is emphasized that ospar serves an important role, as no other international organization has the mandate for setting in place an integrated process for the protection of an area in abnj having regard to human activities and their cumulative impacts on the basis of the ecosystem approach (including i.a. the assessment of the status of the environment, the identification of features to be protected, the establishment of objectives and monitoring measures).85

79 80

Ibid., para. 2. ospar Commission, 2014 Status Report on the ospar Network on Marine Protected Areas, 18. For more of this development within the ospar Convention, Molenaar and Oude Elferink, “Marine Protected Areas in areas beyond national jurisdiction: The pioneering efforts under the ospar Convention,” 13–17. 81 ospar Commission, 2014 Status Report on the ospar Network of Marine Protected Areas, 18–19. The Status Report provides also an overview of the jurisdiction of the ospar mpas in areas beyond national jurisdiction on the pages 20–21. 82 Ibid., 19. 83 ospar Commission, ospar’s Regulatory Regime, para. 2.21. 84 Ibid. 85 Ibid.

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In ospar’s Regulatory Regime it is provided a list of activities that may be regulated in the ospar mpas beyond national jurisdiction. These include scientific research, cable laying, dumping, construction of installations and artificial islands, and deep-sea tourism.86 Annex 1 of ospar’s Regulatory Regime provides an overview of the applicable legal regime, as established by the los Convention and the ospar Convention, to clarify the legal competence over the management of maritime human uses that may take place either now or in the future within the areas beyond national jurisdiction in the ospar Maritime Area.87 Annex 2 contains an overview of the legal competence of other international organisations relating to the different human uses in areas beyond national jurisdiction. Although the ospar Commission is legally competent to designate mpas in the areas beyond national jurisdiction, the legal competence to adopt protective measures is limited. As mentioned above, the ospar Commission is not competent to adopt decisions or recommendations regarding fishing or shipping, the two major threats to marine biodiversity. It is, therefore, to a large extent up to the Contracting Parties to cooperate with each other and for the competent international organizations to adopt conservation measures within the mpas.88 Whereas all the mpas in the areas beyond national jurisdiction are established on the basis of legally binding decisions, the conservation measures are adopted in recommendations for each of the mpas.89 These recommendations are not legally binding for the Contracting Parties.90 The effectiveness of these mpas is thus debatable. However, even if the protective measures were adopted in legally binding decisions under the ospar Convention, and thereby legally binding upon the Contracting Parties, this would not provide any enforcement jurisdiction over the vessels that violate the regulations, as the coastal States do not have enforcement jurisdiction on the high seas. As mentioned above, there is however, a possibility that the Contracting Parties agrees to enforce violations of the restrictions against all vessels that fly the

86 87 88 89 90

Ibid., 2.23. Ibid., Annex 1. Matz-Lück and Fuchs, “The impact of ospar on protected area management beyond national jurisdiction: Effective regional cooperation or a network of paper parks?” 159. Documents available at www.ospar.org. For a discussion of whether the ospar regime is effective in regional cooperation on protected areas beyond national jurisdiction, see Matz-Lück and Fuchs, “The Impact of ospar on protected areas management beyond national jurisdiction: Effective regional cooperation or a network of paper parks?”

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flag of the Contracting Parties.91 Such a mutual enforcement agreement would contribute to more effective protection of the conservation objectives.92 None of the high seas mpas are, currently established within the marine Arctic areas. At the meeting of the Biodiversity Committee in 2015, a nomination for an Arctic Ice High Seas mpa was prepared by wwf. The proposal was accompanied by a draft ospar decision and a draft recommendation of protective measures. Different views from the Contracting Parties were made during the plenary discussions of the proposed mpa. It follows from the report of the meeting that several of the Contracting Parties considered that the mpa objectives were unrealistic, and that the management measures did not address the relevant issues.93 These Contracting Parties felt that the main threats came from climate change and pollution outside of the Arctic, and they were uncertain whether mpa was the best measure to address this.94 Several C ­ ontracting Parties gave their support for the proposal, but expressed that drafting improvement of the proposal was necessary.95 The Biodiversity ­Committee ­concluded that, based on the discussions, the Contracting Parties did not agree on the proposal. However, the Committee set as a goal to have a new pro forma for the Arctic High Seas mpa ready for the next meeting of the Intersessional Correspondence Group on Marine Protected Areas (icg-mpa) in October 2015.96 A new proposal was presented at the icg-mpa meeting in Lisbon.97 Most of the Contracting Parties were supportive of the proposal as this would contribute to fill the gap in the ospar Network of MPAs in the Arctic region.98 The Arctic coastal States Denmark and Iceland, were however, not in favour of this proposal. Norway stated that a process of establishing the Arctic High Seas High mpa must be seen in the light of future developments under the Arctic Council.99 The conclusion was however, that the majority of

91 92 93

Ibid., 157. Ibid., 165. ospar Commission, Meeting of the Biodiversity Committee (bdc), Cork: 2–6 Mars 2015, Summary Record BDC15/10/1-E., para. 5.24. 94 Ibid. 95 Ibid. 96 Ibid.,para. 5.31. 97 ospar Commission, Meeting of the Intersessional Correspondence Group on Marine Protected Areas (icg-mpa), Lisbon, Portugal: 13–15 October 2015, ICA-MPA15/9/1-E, para. 4.3. 98 Ibid., 4.4. 99 Ibid., 4.4.

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the Contracting Parties were content for the finalised proposal to be submitted to Biodiversity Committee meeting in 2016 for re-consideration.100 15.7 Conclusions The Contracting Parties are not obligated to establish mpas under the ospar Convention, except in particular circumstances when it is a necessary measure to protect and conserve the ecosystems and the marine biodiversity. There are, however, strong directions for the Contracting Parties to comply with the obligation in Article 2 of Annex v of establishing mpas. The competence of the ospar Commission is limited with regard to management of human activities, as shipping and fisheries are excluded. The application of the precautionary principle is, however, mandatory under the ospar Convention. When the Contracting Parties are complying with the obligation of Article 2 in Annex v, with the establishment and management of mpas, they may, due to this, be required to regulate fishing and shipping within the sites, in cooperation with the relevant authority or international body. The approaches made under the ospar Convention to protect the marine environment and biological diversity beyond national jurisdiction are groundbreaking in international law. ­Although no such mpas are adopted in the Arctic part of the ospar region, it will be exciting to follow the future progress on the proposed Arctic High Seas mpa. 100 Ibid., 4.6.

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mpas under the Arctic Council 16.1 Introduction The Arctic Council has for many years also addressed issues such as the conservation of biological diversity and protection of the marine environment. The Arctic Biodiversity Assessment, which was released by the caff in 2013,1 aims to synthesize and assess the status and trends of biological diversity in the Arctic. The synthesis of status and trends of Arctic biodiversity will serve as a baseline against which further change can be measured.2 The description of the current state and trends in the Arctic´s ecosystems and biodiversity is also important for informing and guiding the Arctic states in the future work of the Arctic Council.3 Other efforts under the Arctic Council to protect the marine environment and conserve biological diversity are addressed above in Subsection 8.3.3, such as the recommendations under the amsa report to identify marine areas of heightened ecological significance and consideration of the use of such tools as the pssa to protect the high seas of the Arctic Ocean from the impacts of shipping. The “Framework for a Pan-Arctic Network of Marine P ­ rotected Areas” was drafted by the mpa Network Expert Group under the pame and adopted in 2015 at the Arctic Council ministerial meeting.4 This chapter assesses developments and efforts made under the Arctic Council to establish and manage mpas in the marine Arctic. First, Section 16.2 presents achievements in the cooperation regarding mpas under the Arctic Council. Following this, Section 16.3 examines the Framework for a pan-Arctic network of mpas that was adopted in 2015. This includes analyses of the common visions, objectives and principles for the international cooperation among the Arctic states to create a network of mpas in the region.

1 caff, Arctic Biodiversity Assessment: Report for Policy Makers, 3. 2 Ibid. 3 caff, Arctic Biodiversity Assessment: status and trends in Arctic biodiversity, Conservation of Arctic Flora and Fauna (caff), Arctic Council, 2013, 10. 4 Arctic Council, Iqaluit Declaration, On the occasion of the Ninth Ministerial Meeting of the Arctic Council, Iqaluit, Canada, 24 April 2015, para. 40.

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Work on mpas under the Arctic Council – Background

Cooperation under the Arctic Council regarding mpas has taken place within the two work groups, caff and pame. Already in the aeps, the strategy which predates the adoption of the Arctic Council, the establishment of a network of protected areas was stated as a guiding principle.5 Protected areas have thus been high on the agenda since the establishment of the Arctic Council. At the ministerial meeting in Nuuk in 1993, the ministers delegated the task of developing a network of protected areas to the caff.6 As a response the cpan was adopted.7 The use of protected areas was recognized in the cpan as an effective and necessary tool to ensure conservation and sustainable use of biological diversity.8 The goal of the cpan was to establish “an adequate and well managed network of protected areas that has a high probability of maintaining the dynamic biodiversity of the Arctic region.”9 According to the cpan Strategy and Action Plan, this network should, as far as possible, cover the large variation of ecosystems in the Arctic.10 The aim of the cpan was to provide a common framework for states for the selection and management of protected areas to ensure the protection of significant areas at national, regional, and circumpolar levels.11 Under the cpan, guidelines for the selection and designation of protected areas were therefore adopted in 1996.12 The cpan Strategy and Action Plan, moreover emphasised that the development of the cpan would contribute to the implementation of the obligation of the states pursuant to the cbd Article 8(a).13 However, as observed by Koivurova, the cooperation ­under the cpan programme halted in 2004 and became dormant in 2005.14 At

5 6 7 8

The Arctic Environmental Protection Strategy (aeps), Principles viii, 11. Koivurova, “Governance of protected areas in the Arctic,” 49. Lalonde, “Marine Protected Areas in the Arctic,” 99. caff, Circumpolar Protected Areas Network (cpan) – Strategy and Action Plan, caff Conservation Report No. 6 (1996), Directorate for Nature Management, Trondheim, Norway, 7. 9 Ibid. 10 Ibid. 11 Ibid., 12. 12 caff, Circumpolar Protected Area Network (cpan) – Principles and Guidelines. caff Habitat Conservation Report No. 4 (1996). 13 caff, Circumpolar Protected Areas Network (cpan) – Strategy and Action Plan, 12. 14 Koivorova, “Governance of protected areas in the Arctic,” 52.

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the caff board meeting in 2006, it was determined that the programme would “not move forward until a country steps up to take the lead.”15 Until the last few years, pame has not taken concrete actions to establish a network of mpas in the Arctic.16 pame developed and adopted the amsp in 2004, which was updated for the period 2015–2025.17 In this updated Arctic Marine Strategic Plan, the development of a network of mpas in the Arctic was set out as a strategic action.18 Hence, some positive initiatives to accomplish the establishment of a network of mpas in the Arctic have thus been made in recent years.19 With the new Framework for a pan-Arctic network of mpas, there is a renewed focus on the use of the tool mpas within pame as a means of protecting the Arctic marine environment and biodiversity. 16.3

Toward a Pan-Arctic Network of mpas?

16.3.1 General The Framework for a pan-Arctic network of mpas sets out a common vision for international cooperation in mpa network development and management that is based on best practices and previous Arctic Council initiatives.20 This Framework aims to enhance the development of mpas and networks of mpas that are located within the national jurisdiction of Arctic states.21 Hence, the Framework offers guidance to the states, but it is not legally binding. Each Arctic state works toward the development of the network based on its own authorities, priorities and timelines.22 The Framework emphasizes that a pan-Arctic network of mpas will contribute to several of the objectives of the ­Arctic Council, including elements of the Kiruna Declaration,23 in particular to ­protect the marine environment, to implement the ecosystem approach and to 15

caff Management Board Meeting Minutes 13–15 February 2006 Helsinki, Finland, ­Record of Decisions, 4. Available at http://www.caff.is/publications/view_document/ 179-caff-board-meeting-summary-helsinki-finland-february-13-15-2006 (January 2015). See also Koivorova, “Governance of protected areas in the Arctic,” 52. 16 Koivurova, “Governance of protected areas in the Arctic,” 55 and Lalonde, “Marine ­Protected Areas in the Arctic,”102. 17 See above in Subsection 8.3.2. 18 pame, The Arctic Marine Strategy Plan (2015–2025), 14. 19 See also Lalonde, “Marine Protected Areas in the Arctic,”102. 20 pame, Framework for a Pan-Arctic Network of Marine Protected Areas, 5. 21 Ibid. 22 Ibid. 23 Arctic Council, Kiruna Declaration.

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respond to recommendations provided and processed under the Arctic Council, such as the Arctic Biodiversity Assessment, the Arctic Oil and Gas Assessment and the amsa report.24 16.3.2 Vision of the Pan-Arctic Network of mpas The vision of the pan-Arctic network of mpas is developed in the context of the efforts under the Arctic Council in implementing the ecosystem-based management and is formulated as follows: An ecologically connected, representative and effectively-managed network of protected and specially managed areas that protects and promotes the resilience of the biological diversity, ecological processes and cultural heritage of the Arctic marine environment, and the social and economic benefits they provide to present and future generations.25 This vision is set out in the Framework as a common vision for the Arctic states. To achieve this vision, the Framework sets out principles, goals and objectives for the pan-Artic network. The Framework acknowledges that protection and conservation of the Arctic marine environment and biodiversity is a priority for the Arctic Council. Furthermore, the Framework emphasises that international cooperation is required to address the complex and interconnected and transboundary character of the drivers and pressures on the Arctic marine environment, such as climate change with diminishing sea ice, which causes the loss of habitats for species and leads to increased access to the Arctic for activities, such as shipping, mining, fishing, tourism and oil and gas activities. The Framework is a response to this need for enhanced cooperation to ensure conservation of the coastal and marine environment.26 To accomplish the vision of the pan-Arctic network of mpas, it is further acknowledged in the Framework, that a network of mpas can fulfil ecological aims more effectively and comprehensively than individual sites, since a network provides spatial links between the mpas that are necessary to maintain the connectivity of the ecological processes.27 16.3.3 Geographical Limits of the Pan-Arctic Network The Framework focuses on establishing mpas within the eezs of the Arctic States. However, the Framework aims to create an ecologically connected 24 25 26 27

Ibid. and pame, Framework for a Pan-Arctic Network of Marine Protected Areas, 5. pame, Framework for a Pan-Arctic Network of Marine Protected Areas, 6. Ibid., 7. Ibid., 5.

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­network of mpas. Therefore, it follows from the Framework that it also acknowledges links to the land territories and to the high seas.28 The Framework does not, however, pursue approaches to establishing mpas in areas beyond national jurisdictions. The term “marine” comprises coastal areas, estuaries and other areas that are connected to Arctic marine ecosystems consistent with the Arctic Marine Strategic Plan for 2015–2025.29 16.3.4 Definitions The Framework applies the definition of mpas that is provided by the iucn for the purpose of the Framework.30 Furthermore, it follows from the Framework that mpas that are selected sites to be included in the pan-Arctic network meet the following three criteria: (1) the mpa meets the criteria in the iucn definition; (2) the mpa contributes to achieve at least one of the pan-Arctic network goals in addition to one or more of the corresponding objectives; and (3) there is a corresponding management plan or a protection regime explicitly specified in supporting legislation or regulation, and the plan is implemented.31 The framework also provides a definition of the pan-Arctic network of mpas, which also supports the Aichi Biodiversity Target 11.32 The pan-Arctic mpa network is defined as follows: An ecologically representative and well-connected collection of individual marine protected areas and other effective area-based conservation measures in the Arctic that operate cooperatively, at various spatial scales, and with a range of protection levels, in order to achieve the longterm conservation of the marine environment with associated ecosystem services and cultural values more effectively and comprehensively than individual sites could alone.33 The mpas that constitute the network should be operated “cooperatively” according to this definition. The importance of coordination and cooperation among the Arctic states in the management and planning of mpas is ­emphasized also in the Framework, as it is set out as an objective to establish “mechanisms for intergovernmental coordination and cooperation for mpa

28 Ibid., 11. 29 Ibid. 30 Ibid. See also above in Subsection 1.2.2 for definitions of mpas. 31 pame, Framework for a Pan-Arctic Network of Marine Protected Areas, 11. 32 Ibid., 12. 33 Ibid.

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network management and planning.”34 Further, the definition provides that the network should consist of mpas with a range of protection levels. Of importance, in addition to protected areas, the pan-Arctic mpa network includes “other effective area-based conservation measures.” Such other conservation measures in the context of the Framework are further addressed below. 16.3.5 Other Area-Based Conservation Measures In the same way as the Aichi Biodiversity Target, the Framework also encompasses “other effective area-based conservation measures.” The Framework does not precisely define such other measures. However, they are described in the Framework as measures that are place-based or spatial conservation measures that provide some protection under the national law or policy or regional management, but that do not meet the iucn definition of an mpa.35 Examples of such measures, which are also listed in the Framework, are the areas in the Norwegian integrated management plans for the Barents Sea and the Norwegian Sea that are identified as “particularly valuable and sensitive areas that require a special attention.”36 The Framework also includes the global process under the cbd in describing EBSAs. This process is reviewed above in Subsection  14.6.2.3. A cbd regional workshop for the Arctic took place in Helsinki in 2014.37 The workshop found that the 11 areas in the marine Arctic met the scientific criteria for ebsas. The Framework includes in its overview of planned and established mpas and other area-based conservation measures areas that meet the ebsa criteria, as it acknowledged that the ebsa process will provide useful information when designing the network of mpas. The Framework acknowledges, however, that the description of ebsa areas is a separate process and that just because an area meets the ebsa criteria does not mean that it is protected or that a particular protection regime applies to that area.38 16.3.6 Principles, Goals and Objectives of a Pan-Arctic Network The Framework sets out nine common principles by which the development and implementation of the network of mpas should be guided.39 First, 34 Ibid., 10. 35 Ibid., 12. 36 Ibid., 39. See below in Subsection 16.3.7. 37 Meeting documents are available at https://www.cbd.int/doc/?meeting=EBSAWS-2014-01 (accessed February 2016). 38 PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, 15. 39 Ibid., 9.

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the ­Arctic states should take a coherent and systematic approach to the ­development of the pan-Arctic mpa network. Therefore, the Arctic states should, according to the Framework, ensure where possible that mpas networks are linked to ecosystem-based management efforts within broader areas, across the boundaries of the eezs, in the high seas and with terrestrial areas.40 It is also set out as a principle that the right of government authorities and the provisions of a­ pplicable agreements and treaties should be respected. This includes considering the harvesting carried out by indigenous peoples and activities carried out in accordance with licensing regulations and agreements.41 Another principle that should guide the development and implementation of the pan-Arctic mpa network is the use of the best available knowledge.42 According to the Framework, this includes the use of the best available scientific, traditional, community, and industry knowledge regarding conservation efforts. Linked to this principle, the Framework encourages the use of the precautionary ­approach when considering policy decisions made regarding the protection of priority areas. The vision of the pan-Arctic network of mpas is a network of protected areas that protects and promotes the resilience of biological diversity.43 Ecosystem resilience is explained in the Framework as the capacity of an ecosystem to respond to a “perturbation or disturbance by resisting degradation and recovering quickly.”44 To strengthen ecological resilience is formulated as one of four interrelated goals of the panArctic network of mpas with corresponding objectives.45 To achieve the vision and goals of the pan-Arctic network of mpas, focusing on resilience and adaption to change is also formulated as a guiding principle.46 Hence, the need to design and implement the network of mpas in the context of climate change is particularly emphasised. M ­ oreover, the pan-Arctic network of mpas will have cultural and socio-­economic benefits that the Arctic states should take into account.47 These benefits can be direct economic values or cultural and heritage values.48 Another principle included in the Framework is to apply ­appropriate protection measures.49 The Arctic states are encouraged to “make every effort” to ensure the necessary level of protection to achieve the stated 40 Ibid. 41 Ibid. 42 Ibid. 43 Ibid., 6. 44 Ibid., 7. (Emphasis in the original). 45 Ibid., 9–10. 46 Ibid., 9. 47 Ibid. 48 Ibid., 7. 49 Ibid., 9.

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goals and objectives for individual mpas and the network.50 In the prolongation of this principle, the Framework emphasises that the pan-Arctic network of mpas and the area-based conservation measures should provide sufficient protection to allow Arctic ecosystems to be resilient. Moreover, the Framework sets out as a principle to develop and implement management plans for both individual mpas and mpa networks to ensure that they are effective in achieving their con­servation objectives.51 This includes monitoring and reporting on the effectiveness of the management, so that the measures can be adjusted based on new information or emerging issues. Finally, the Framework sets out as a principle to ensure cooperation and integration of relevant institutions to achieve more effective planning and management of mpas in the Arctic. This may include cooperation and integration of national, multilateral, and international institutions or organizations.52 To achieve the common vision, the Framework also formulates four interrelated goals for the pan-Arctic Network of mpas. These are: (1) to strengthen ecological resilience; (2) to support integrated stewardship; (3) to enhance public awareness; and (4) to foster coordination and collaboration among ­Arctic states.53 To achieve the goals of the pan-Arctic network of mpas, the Framework has also formulated corresponding objectives of each of the goals. As explained above, the Framework also sets out criteria for the inclusion of mpas in the pan-Arctic network, which require that the mpa contributes to at least one of the four network goals and to one or more of the network’s corresponding objectives.54 In this way, the Arctic states are encouraged to include mpas that actually contribute to achieving the goals and objectives of the ­pan-Arctic network of mpas. 16.3.7 Steps for Developing and Implementing the Network The pan-Arctic network of mpas is composed of the mpas and networks of mpas of the individual Arctic states. The development of the pan-Arctic network of mpas is therefore based on the efforts of each Arctic state to develop mpas and networks of mpas within their national waters.55 The Framework acknowledges that this requires contact and coordination among the Arctic states. This coordination will be served by a mechanism within the Arctic 50 Ibid. 51 Ibid. 52 Ibid. 53 Ibid. 54 Ibid., 11. 55 Ibid., 17.

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Council.56 The kind of mechanism that may be used in the future is unclear, but the mpa Network Expert Group currently serves this coordination role.57 As part of the description of the steps for network development, the report describes the different approaches of the Arctic states to the design and management of mpas.58 Also attached to the Framework is information about the existing and planned mpas for each of the Arctic states.59 That information emphasises that ecosystem-based management plans for the Norwegian seas were promised in 2001.60 An integrated management plan of the Barents Sea was adopted in 2006.61 The plan was updated in 2010.62 This integrated management plan identifies areas that are particularly valuable and vulnerable and thus require special caution, such as the marginal ice zone, the polar front, and the Bear Island.63 The integrated management plan establishes in particular that no petroleum activities will take place in these areas.64 However, the integrated management plans are political plans that do not provide any legal protection of the areas that are identified as particularly valuable or vulnerable. Further, Norway submitted the marine parts of seven protected area reserves in Svalbard as part of the ospar network of mpas. The aim of designating these mpas as ospar mpas is to ensure the protection of habitats and species on the ospar list.65 Moreover, a network of mpas is to be established along the coast of Norway to conserve marine biodiversity and to ensure that certain areas are undisturbed to facilitate research and monitoring. The potential areas for mpas in Norwegian waters are identified, but the final selection of areas has not been made.66 Work on the plan for mpas began in 2003, but the

56 Ibid. 57 Ibid., 58 Ibid., 17–18. 59 Ibid., Annex 4. 60 Ibid., 18. 61 The Norwegian Ministry of the Environment, “Integrated Management of the Marine ­Environment of the Barents Sea and the Sea Areas off the Lofoten Islands,” Report No. 8 to the Storting (2005–2006). 62 Norwegian Ministry of the Environment,“First update of the Integrated Management of the Marine Environment of the Barents Sea- Lofoten Area,” Meld. St. 10 (2010–2011) Report to the Storting (white paper). Oslo, 2011. 63 Ibid, 22–25. 64 Ibid., 137. 65 pame, Framework for a Pan-Arctic Network of Marine Protected Areas, 18. See also ­Section 15.5 above. 66 Ibid.

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process has taken longer than expected, partly because of uncertainty about the legislation for mpas in the Norwegian waters.67 16.4 Conclusions All Arctic states are obliged to protect and preserve the marine environment, including rare ecosystems and habitats.68 Moreover, all of the Arctic states, with the exception of the United States, are Contracting Parties to the cbd, which includes a legal duty for the states to adopt mpas. In the Ilulissat Declaration, the five Arctic coastal States, Denmark, Norway, Russian Federation, Canada and the United States, agreed that the Arctic Ocean is a unique ecosystem, which they “have a stewardship role in protecting.” Moreover, the five Arctic coastal States agreed that they will cooperate to ensure the protection of the fragile marine environment of the Arctic Ocean.69 The Framework for a pan-Arctic network of mpas helps the Arctic states in implementing their global obligations to protect and conserve the marine environment, including biological diversity, and to comply with the stewardship role that the Arctic coastal States have acknowledged is theirs. Whereas, the obligations under the ospar Convention apply only to parts of the marine Arctic, this Framework aims to develop an ecologically connected network of mpas across the whole marine Arctic. The development of this Framework that aims to establish a pan-Arctic network of mpas will also contribute to fill gaps in the ospar network of mpas in the Arctic region of the ospar maritime area.70 However, as with all other efforts under the Arctic Council, the Framework is not legally binding upon the states. Still, the Framework contains criteria for the mpas in the pan-Arctic network, where the Arctic states should ensure that the mpas they include contribute to the goals of the pan-Arctic network and to their corresponding objectives. There are thus requirements upon states concerning the mpas they nominate as part of the network. This will help achieve the 67

Information of the mpas in Norwegian waters is available at the Norwegian Environment Agency, “Offisiell kunngjøringsside for marin verneplan,” http://www.miljodirektoratet .no/no/Tema/Verneomrader/Marin-verneplan/Offisiell-kunngjoringsside-for-marin -verneplan (accessed October 2015). It follows from the information provided here that the first three mpas were adopted in 2013. 68 The obligations to protect and preserve the marine environment in Part xii of the los Convention reflect customary law, see Subsection 5.2.3. 69 The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 28 May, 2008. 70 ospar Commission, 2014 Status Report on the ospar Network of Marine Protected Areas, 16.

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vision of the pan-Arctic network of mpas. To set up a network of mpas in the large Arctic region involving many states and different competent international ­organizations, such as the imo, is complex. The Framework emphasises also the need for coordination and cooperation in the establishment and management of the mpas. However, there is little guidance in the Framework as to how this cooperation and coordination should take place. The development of a permanent mechanism to facilitate the cooperation would be useful to ensure the implementation of the Framework and the achievement of the vision and goals of the pan-Arctic network of mpas. With the pressing need to conserve the Arctic marine biodiversity, the development and endorsement among the Arctic states of the Framework for a pan-Arctic network of mpas are promising steps in the right direction. Efforts made by the Arctic states under the Arctic Council are essential for realizing a network of mpas in the Arctic.

part 4 The Duties and Rights to Establish and Manage mpas versus the Rights of Other States

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The Relationship between the cbd and the los Convention – Conflicting Norms and Mechanisms for Solving Them 17.1

Introduction – Overview of the Legal Questions

It is concluded on the basis of the discussions above that the Contracting Parties to the cbd are under a legal duty to establish mpas in the areas within national jurisdiction. Furthermore, there are also certain procedural and substantive requirements to the management of the mpas with which they must comply to act in accordance with the obligation in cbd Article 8 (a). When complying with the duty to establish mpas, it may be necessary to adopt ­protective measures that can affect the exercise of the rights of other States. For instance, Contracting Parties must address activities that may threaten or damage biodiversity within the mpas, including shipping activities. The previous discussions also show that States are under legal obligations to protect the marine environment, including biological diversity, also in areas beyond their national jurisdiction. States are required by los Convention ­Articles 192 and 194 (5) to protect the marine environment, including biological diversity and rare and fragile habitats and ecosystems. However, due to the principle of the freedom of the seas that applies on the high seas, States ­cannot unilaterally adopt an mpa. However, they are obliged by los Convention ­Article 197 to cooperate with other States in protecting the marine ­environment. F­ urther, Contracting Parties to the cbd must according to cbd Article 5 cooperate with other Contracting Parties in respect of areas beyond national jurisdiction. This mutual duty of cooperation may also include the establishment and management of mpas in areas beyond national jurisdiction. The l­ egitimacy in international law for establishing mpas on the high seas, has previously, been discussed.1 Yet, practice with the establishment of mpas in areas beyond national jurisdiction in the North-East Atlantic under the ospar ­implies that such mpas can be established, on the basis of an agreement between states. Scovazzi emphasises that the traditional principle of freedom on the high seas, is not an obstacle to such cooperation between states.2 1 Tanaka, The International Law of the Sea, 353. See discussions above in Section 2.6. 2 Scovazzi, “Marine Protected Areas on the High seas: Some Legal and Policy Considerations,” 5.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_018

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­ egulations and ­restrictions adopted in such an agreement is legally binding R on its states parties.3 The legal starting point, is thus that an agreement on mpas on the high seas cannot be applicable to nationals or vessels flying the flag of third states.4 Still, regulations on the high seas such as routeing measures under solas or Special Areas under the marpol Convention adopted by the imo, will be binding on nearly all vessels.5 More recently, Churchill argues that, third states may be bound by agreements on regulation of shipping within high seas mpas, also without the involvement of imo.6 This might be the case for regulations such as measures to control noise or ballast water discharge, which are not yet regulated by the imo.7 If third states do not respect such regulations, this could, as explained by Churchill, violate the duties to cooperate and to protect the marine environment in Part xii and also the obligation of “due regard” in Article 87.8 While none of the mpas established on the high seas under the ospar Convention includes restrictions on navigation, it is reasonable that future mpas will contain regulations of shipping activities.9 The legal situation is not settled, but there is arguably an evolution where the duty to protect the marine environment e.g. by the use of mpas is influencing the content and exercise of the high seas freedoms. This chapter aims to clarify the relationship between the environmental obligations of states to adopt mpas, primarily on the basis of the cbd, within national jurisdictions and the rights of other states within these zones, in particular in relation to shipping.10 The duties to establish mpas on the basis of the cbd do not enhance or add any jurisdiction to the coastal States in their maritime zones.11 Even though the obligations in Parts v and xii of the los Convention may have been strengthened by the cbd, and the obligations of 3 Vienna Convention Article 34. 4 Tanaka, The International Law of the Sea, 353. 5 See Subsection 2.6.2.2. 6 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 83. 7 See discussions above in Subsection 2.6.2.3. 8 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 83–86. 9 See discussions in ibid., 87–88. 10 Allthough Contracting States are obliged to cooperate with each other in resoect of areas beyond national jurisdiction, on the basis of cbd Article 5, the cbd is only applicable to the components of the biological diversity within national juridcition, pursuant to Articte 4 (a). 11 Lagoni argues that the cbd “presupposes it and dwells upon it”, see Lagoni, “Marine ­Protected Areas in the Exclusive Economic Zone,” 166.

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the los Convention, in Articles 192 and 194 (5) are interpreted and applied so that they include a legal duty to adopt mpas, the coastal State must when establishing mpas in a vulnerable marine area respect the rights guaranteed to other States under the los Convention, such as the freedom of navigation in the eez. It follows from Article 4 that the cbd applies “subject to the rights of other States” within the areas of national jurisdiction. This formulation must be seen in relation to Article 22 (2), which states that the cbd must be implemented “consistently with the rights and obligations of States under the law of the sea.” When shipping, either due to operational pollution, accidental pollution or the physical destruction of habitats, cause damage or threaten damage to marine biodiversity within an mpa, the question therefore arises whether the los Convention and the rights of other States pursuant to this Convention prevail over the cbd so that appropriate regulations on navigation to protect a habitat or a sensitive ecosystem etc. may not be adopted. If this is the case, it is relevant to ask whether and to what extent the duty to establish mpas may be achieved within the legal regime of the los Convention. Does the regime of the los Convention accommodate the establishment of effectively managed mpas so that vulnerable, rare or unique habitats and ecosystems may be conserved? An mpa is an instrument for integrated management that addresses all potential damaging or threatening activities. If appropriate measures to protect an mpa against the impacts of shipping may not be established within the mpas, this may prevent such a holistic integrated management. A closer examination of the relationship between the two conventions is thus called for, both as to how they relate to each other in interpretation and as the treaties may conflict. As part of the analyses of the relationship between the cbd and the los Convention, it is questioned whether the adoption by a coastal State of regulations on navigation to protect an mpa to comply with the cbd constitutes a legal conflict between the obligations of the cbd and the rights of other States established in the los Convention. This is an important discussion, as legal conflicts may undermine the achievement of the objectives of legal instruments and should be reasoned legally and resolved on the basis of the conflict solving procedures in international law.12 The relationship between the treaties is also examined through analyses of the conflict clauses in the cbd Article 22 and the los Convention Articles 311 and 237, as is the potential for solving legal conflicts between the treaties through treaty law and interpretation.13 12 13

See Wolfrum and Matz, Conflicts in International Environmental Law, 6. The discussions in this chapter may be seen from the perspective of the debate on the fragmentation of international law, see ilc, Report of the Study Group on F­ ragmentation

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Legal Conflicts between the los Convention and the cbd?

17.2.1 What is a Legal Conflict? There are mechanisms in international law for solving legal conflicts between treaties. Potential conflicts may be resolved either through interpretation, where the conflict is avoided, or by application of treaty clauses, or principles of general international law for resolving conflicts.14 An identification of ­possible legal conflicts and discrepancies is also important to initiate necessary amendments of the legal instruments or even the development of more appropriate instruments. To determine how the potential conflicts or discrepancies between the cbd and the los Convention should be resolved, it must be determined whether this is a legal conflict in international law, which must be resolved as such. In many situations, provisions that are prima facie in conflict may not actually conflict when they are interpreted. It is reasonable to assume that the parties to a treaty did not intend to conclude and attend a treaty which is not in consistence with other obligations.15 The icj stated this principle in the case concerning Right of Passage over ­Indian Territory: It is a rule of interpretation that a text emanating from a Government must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it.16 This may also explain why there is very little judicial practice on normative conflicts.17 Another explanation is that, due to diplomacy or policy reasons, in their implementation of treaty obligations states refrain from conduct that violates or comes close to violating other obligations. When one obligation is vague, the state will typically choose an interpretation which is consistent with the other norm and thereby avoid the potential conflict. Under the Vienna Convention Article 26 treaties must be performed by the states “in good faith.”

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of International Law: Difficulties Arising from the Diversification and Expansion of International Law (18 July 2006), unga, 58th sess., un Doc A/CN.4/L.682. For more on mechanisms for solving conflicts in international law, see Sadat-Akhavi, Methods for Resolving Conflicts between Treaties. ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 25. Right of Passage over Indian Territory (Portugal v. India) [1957] icj Rep. 125, para. 142. ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 27.

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This obligation limits the extent to which potential conflicts may be resolved through interpretation and harmonisation.18 There are different understandings of what a legal conflict is. A definition of a normative conflict in international law which is adopted in legal literature and in practice is that a conflict between two norms arises when a party to two treaties “cannot simultaneously comply with its obligations under both treaties.”19 Borgen states: A conflict in the strict sense occurs when a party to two treaties cannot simultaneously honor its obligations under both.20 Kelsen defines a legal conflict as existing: between two norms when that which one of them decrees to be obligatory is incompatible with that which the other decrees to be obligatory, so that the observance or application of one norm necessarily or possibly involves the violation of another.21 However, the traditional strict definition of what constitutes a legal conflict seems to be in retreat or must be complemented by other different views. Other legal writers argue in favour of a broader definition of legal conflicts, which encompasses not only situations in which two mandatory obligations are contradictory, but also when there is a conflict between a permissive and a mandatory norm.22 A permissive norm is described by Sadat Akhavi as a norm that provides “the freedom to do or not to do something.”23 The legal writer Vranes argues for instance in favour of a broader definition when he states: “The problem with this strict definition is that it does not recognize that a permissive norm may conflict with an obligation or a prohibition.”24

18 Ibid. 19 Erich Vranes, “The Definition of ‘Norm Conflict’ in International Law and Legal Theory,” The European Journal of International Law 17:2 (2006): 395–396. 20 Christopher J. Borgen, “Resolving Treaty Conflicts,” George Washington International Law Review 37 (2005): 573. 21 Hans Kelsen, General theory of norms (Oxford: Clarendon Press, 1991), 123. (Emphasises in the original) 22 Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 5–6. 23 Ibid., 5. 24 Vranes, “The Definition of ‘Norm Conflict’ in International Law and Legal Theory,” 395–396.

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By adopting a strict definition of what a legal conflict is when studying how obligations in two different treaties relate to each other, there is a risk that potentially conflicting situations are overlooked.25 Vranes also points out that, with a strict definition of what a norm conflict is other types of conflicts or divergences between treaties are “defined away.”26 As a result, permissive or less strict obligations might not prevail, even though they are later in time and more specific, because the principles of lex posterior and lex speciales are not applicable since such contradictions are not defined as legal conflicts.27 The obligations in international environmental law are often vague, and the states have the freedom to comply with them in different ways. The writers Wolfrum and Matz emphasize, that in international environmental law, the legal norms more often lead to discrepancies and overlap than incompatibility between the norms.28 Although there is less likelihood of establishing a clear incompatibility between such treaties, or between an environmental agreement and another treaty, such as between the cbd and the los Convention, the interplay between the treaties may be complicated, and discrepancies may arise between them.29 Wolfrum and Matz argue in relation to vague environmental agreements that although these inconsistencies could be made “­compatible without abolishing the substantive content of either of the ­regulations,” they have the same negative effects, as they may lead to a less effective interpretation and implementation of the environmental rules and should thus be included within a study of legal conflicts.30 These arguments favour adopting a broader definition, which also includes other collisions, overlaps and divergences than a legal conflict in a strict sense, where two obligations can not be satisfied at the same time without violating one of them.31 With a broader understanding of the term “conflict,” more potential conflicts are discovered and considered. The mechanisms for resolving conflicts can then be applied to avoid the negative effects of the potential conflicts. An 25

See Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict between Climate Measures and wto Law (Leiden: Martinus Nijhoff Publishers, 2009), 198–202, who discusses definitions of legal conflicts and adopts a broad ­definition in her study on the relationship between international climate regulations and wto rules. 26 Vranes, “The Definition of ‘Norm Conflict’ in International Law and Legal Theory,” 404. 27 Ibid. 28 Wolfrum and Matz, Conflicts in International Environmental Law, 6. 29 Ibid. 30 Ibid. 31 See definition in Borgen, “Resolving Treaty Conflicts,” 573.

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awareness of potential legal conflicts may also influence the process of interpretating treaties. By applying principles of treaty interpretation such as the Vienna Convention Article 31 (3) (c) one may arrive at acceptable solutions that avoid potential conflict through the interpretation. An awareness of overlaps between norms or potential conflicts, therefore can contribute to avoiding the situation in which the norm that is “weaker” or vaguely formulated always gives way, thereby underining the effectiveness of the norm. A broader definition of norm conflict in international law can thus contribute to strengthening the effectiveness of international environmental obligations. The International Law Commission (ilc) has acknowledged the need to apply a broad definition of conflict. First the ilc has stated that the strict ­understanding of conflict is that two norms are incompatible, that an “obligation may be fulfilled only by thereby failing to fulfil another obligation.”32 Thereupon it ­acknowledged that there are other “looser understandings of conflicts as well” and that a: treaty may sometimes frustrate the goals of another treaty without there being any strict incompatibility between their provisions. Two treaties or sets of rules may possess different background justifications or emerge from different legislative policies or aim at divergent ends.33 Consequently, the ilc adopted a broader or wider notion of what a conflict is: This Report adopts a wide notion of conflict as a situation where two rules or principles suggest different ways of dealing with a problem. ­Focusing on a mere logical incompatibility mischaracterizes legal reasoning as logical subsumption. In fact, any decision will involve interpretation and choice between alternative rule-formulations and meanings that cannot be pressed within the model of logical reasoning.34 On this basis, a wide or broad definition of a legal conflict is adopted for the purpose of the analyses in this chapter. Therefore the understanding of what constitutes a legal conflict encompasses situations in which a permissive rule conflicts with a more mandatory rule. A permissive rule provides the state with

32

ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 19. 33 Ibid. 34 Ibid.

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discretion in implementing the obligation. The states are allowed to choose different alternative conducts to comply with the obligation, which may conflict with other mandatory rules, and the available choices are thus limited. Consequently, there is also a legal conflict in a situation in which the state has discretion to comply with a permissive norm in different ways, but the policy choices are limited, because they would conflict with another mandatory norm. The understanding of legal conflicts adopted here, also includes conflicts that may arise in situations where two conventions have different objectives and where the compliance of one obligation may frustrate or impede the objectives of another obligation.35 This is important in relation to environmental instruments. When a vague environmental obligation is interpreted so that it does not conflict with another obligation, this other obligation, although not in conflict with the environmental obligation, arguably conflicts with its objective.36 17.2.2 Characterising the Potential Legal Conflicts between the los Convention and the cbd The potential conflicts between the los Convention and the cbd may occur when the coastal State takes actions to protect habitats or ecosystems, but when it has limited jurisdiction. The obligation in Article 8 (a) to establish mpas and the obligations in (d) and (f) to promote the protection of ecosystems and natural habitats and to restore degraded ecosystems may conflict with the obligations in the los Convention to respect the right of innocent passage in the territorial sea and the freedom of navigation in the eez.37 Conflicts may also occur if the establishment of mpas infringe with the right of other States to lay submarine cables and pipelines on the continental shelf on the basis of Article 58.38 In the territorial sea, the coastal States have sovereignty and have to accept only the right of innocent passage established in the los Convention Article 17. The coastal States may on the basis of their sovereignty adopt their own environmental legislation and are allowed to regulate innocent passage.39 35 36

37 38 39

Wolfrum and Matz, Conflicts in International Environmental Law, 8–9. Wolfrum and Matz categorise the conflicts as conflicts in the implementation phase, policy conflicts, conflicts between objectives or obligations. The legal writers emphasise however, that there are not any clear-cut distinctions here and that cross-cutting conflicts may occur, e.g. obligations with approaches, implementation with approaches, and objectives with other objectives, see ibid., 6–13. See Wolfrum and Matz, Conflicts in International Environmental Law, 22–24. The focus of this chapter is however, on the potential conflicts between mpas and navigational rights. los Convention Articles 21 and 211 (4).

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An exception from this relates to cdem standards.40 The legislation shall not “hamper” the right of innocent passage.41 The potential conflict in this zone relates to whether regulations of navigation will conflict with the right to innocent passage that other States enjoy. For instance, if Norway prohibits vessels from sailing through one or more mpas, there may be a conflict between the obligations in the cbd and the los Convention. Norway could argue that it is exercising its coastal State jurisdiction to comply with its duties to protect marine biodiversity. On the other hand, the flag State may argue that the ban hampers the right of innocent passage. When a ban on navigation is necessary to protect an ecosystem or a habitat as an mpa, and such a ban will violate the right of innocent passage, there is a normative conflict between the obligations of the cbd and the los Convention. In the eez, coastal State jurisdiction is even more limited with regard to restricting navigation within mpas. Other States enjoy freedom of navigation pursuant to Article 58 (1). With regard to marine living resources, however, the coastal State enjoys sovereign rights: with regard to the protection of the marine environment, it is granted “jurisdiction as provided for in the relevant provisions of this Convention.”42 As a part of this jurisdiction, the coastal State may pursuant to Article 211 (5) adopt regulations that comply with gairs to prevent or control vessel source pollution. The coastal States will exceed their prescriptive jurisdiction if they adopt protective measures within the mpas that have not obtained status as gairs, even if the measures are adopted to protect habitats or ecosystems as required by the cbd. Such regulations would therefore violate the freedom of navigation of other States provided in Article 58 (1). The duty of the coastal States to respect the freedom of navigation can thus be an obstacle to an interpretation and implementation of the obligation that ensures that the underlying objectives of the cbd are achieved. When a coastal State discovers a coral reef or a sensitive ecosystem in the eez, the coastal State can argue that it is necessary to establish an mpa where shipping is restricted or prohibited to ensure that the coral reef or ecosystem is protected and conserved in situ, even though, in the concrete situation no appropriate gairs is available. However, other States can claim that their right to navigate in the eez is violated and argue that the obligations under the cbd can not be interpreted so that the Contracting Parties are required to adopt protective measures within the mpas, that exceed their prescriptive 40 41 42

los Convention, Article 21 (2). los Convention Articles 24 (1), see also Article 211 (4). The limits of the prescriptive jurisdiction over vessels in innocent passage is discussed more in details below in Section 18.5. los Convention Articles 56 (1) (a) and 56 (1) (b) (iii).

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jurisdiction. The potential conflict between the los Convention and the cbd in the eez thus raises the question whether the coastal States have sufficient and adequate competence to adopt the necessary measures for implementation of the obligations of the cbd. A ban on shipping activities in a certain area or banning of certain vessels or vessels carrying dangerous cargo can be necessary to protect and conserve sensitive or unique habitats or ecosystems. As the competence to adopt rules or standards extends only to GAIRS, the states may lack the means or tools to protect the mpas from operational or accidental pollution or physical damage from vessels. There might therefore be a legal gap between the measures that the Contracting Parties to the cbd should take to fulfil their environmental obligations and the measures they have the legal competence to adopt. The potential conflict between the los Convention and the cbd is thus different in the eez than in the territorial sea, as the coastal States have a wider legal competence to take measures to protect and conserve the marine biodiversity in the territorial sea. As Article 8 (a) does not include a positive legal duty to prohibit shipping within mpas, this is not a traditional legal conflict in a strict sense. The vague and open formulation of the obligation in Article 8 (a) limits the practical possibility for a conflict between the cbd and the los Convention. The duty to establish mpas does not imply that all activities that may damage the biodiversity are restricted or prohibited.43 However, to achieve the objective of in situ conservation, the mpas must be effectively managed. This requires that human activities that threaten or damage the protected habitat or ecosystem are addressed. This may also include a duty to regulate or restrict shipping within the mpas.44 How the mpas should be designed and which protective measures they must include according to the cbd, is to a wide extent within the discretion of the Contracting Parties. As means for safeguarding vulnerable habitats, the coastal State may for instance wish to restrict navigation by prohibiting shipping within certain areas, require prior notification, and adopt maximum speed restrictions or anchoring restrictions within the mpas. The obligation of the coastal States to respect the right of innocent passage and the freedom of the navigation may, however, be an obstacle to establishing and managing mpas in a manner that the coastal State finds necessary to ensure in situ conservation of marine biodiversity. Therefore, even though it may not be considered mandatory for the parties to the CBD to establish mpas, including navigational measures that collide with the rights of other States, this situation may still be 43 44

See also Wolfrum and Matz, Conflicts in International Environmental Law, 24. See discussions in Subsection 14.6.4.

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characterised as a legal conflict. As argued above, legal conflicts may arise not only between two mandatory rules, but also when permissive rules conflict with mandatory rules. The obligation in Article 8 (a) is a discretionary norm, which to a wide extent allows the Contracting Parties to adopt the protective measures they find appropriate in the concrete case. This discretionary obligation is, however, limited by the mandatory obligations of the coastal State to respect the rights of other States. Wolfrum and Matz argue that, although the practical relevance of a conflict between the cbd and the los Convention is limited, “the policy choices available for the achievement of the protection of the marine environment” are restricted due to the freedoms of other States under the los Convention.45 As the Contracting Party cannot make full use of the wide discretion of Article 8 (a) to adopt flexible and tailored regulations to achieve in situ conservation, the potential conflict between cbd and the los Convention should be labelled a legal conflict. The normative conflict between Article 8 (a) and the rights of the los Convention is due to the vague formulation of the obligation in the cbd, not clear or apparent when looking at the wording of the obligations. Legal conflicts between the treaties may, however, appear during the phases of interpretation and implementation of the treaties.46 In a concrete situation were the interpretation of the cbd does not imply that there is a duty to restrict shipping within an mpa, a conflict may still occur at the level of implementation, where the states wish to adopt regulations of navigation. This might easily be the case when interpreting and implementing the obligation in the cbd, due to the wide discretion to design the mpas to achieve the underlying objectives of conservation of biodiversity. Moreover, the potential conflict between the cbd and the los Convention may also be categorised as a legal conflict in the sense that the duties to respect the navigational rights may come into conflict with the objectives of the cbd and Article 8 (a) to achieve in situ conservation of marine biodiversity. Compliance with the obligation to respect the rights of navigation may thus undermine the objectives of the cbd. The rights of other States to freedom of navigation in the eez and innocent passage in the territorial sea versus the duties to protect marine biodiversity within for instance protected areas emerge from treaties based on different interests. Although the los Convention also aims to protect the marine environment, the freedoms of the sea such as the navigational rights are provided due to other interests. The rules that may conflict are developed to protect

45 46

Wolfrum and Matz, Conflicts in International Environmental Law, 24. Ibid., 6–13.

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different interests, shipping and economic interests versus environmental considerations.47 A result of the potential conflicts could be that Contracting Parties to the cbd adopt less strict interpretations of the obligation to establish mpas under cbd and less strict protective measures, or that they refrain from regulating shipping at all to avoid such conflicts. Even though the prescriptive jurisdiction may include a right to establish mpas where navigation is restricted or prohibited under certain circumstances, states are unwilling to adopt such regulations. The failure or refusal of coastal States to apply their competence to protect mpas against the impacts of shipping is limiting the effect of the obligations under the cbd and may thus have a negative effect on rare or sensitive habitats or vulnerable ecosystems, as they might not be protected in an optimal manner. Considering the relationship between mpas and the navigational rights as a potential legal conflict can contribute to avoiding these negative consequences, as the treaties can be harmonised by means other than by taking a minimalist approach to the interpretation and implementation of the obligations of the cbd. 17.3

Conflict Solving Procedures

17.3.1 General When a coastal State adopts measures for the protection of vulnerable ecosystems against shipping activities, for instance by prohibiting an oil tanker from navigating in a fragile area, it must be determined whether this is an acceptable and permissible action pursuant to the duties in the cbd, or whether it conflicts with the rights of other States pursuant to the los Convention. In this section, possible ways of solving potential normative conflicts between the cbd and the los Convention are discussed. Conflicts between treaties may be resolved either through treaty interpretation, the general principles in international law, lex posterior and lex speciales, or conflicting resolution clauses in the relevant agreements. Both the los Convention and the cbd include provisions that regulate their relationship to 47

ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 19. According to the ilc, although “policy-conflicts” do not lead into logical incompatibilities between obligations upon a single party, they may nevertheless also be relevant for fragmentation. See also Wolfrum and Matz, Conflicts in International Environmental Law, 11–13, where they discuss political conflicts as a type of conflict between norms.

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other treaties and that direct which treaty should prevail in case of a conflict. Articles 237 and 311 of the los Convention and cbd Article 22 are examined below to clarify how a potential conflict between measures adopted to protect vulnerable ecosystems in accordance with the duties in the cbd versus rights of shipping and other freedoms of the sea pursuant to the los Convention should be resolved. cbd Article 22 specifically regulates the relationship between the cbd and the law of the sea, and it is therefore focused on this provision. First, the conflicts clauses of the cbd and the los Convention and the extent to which they are capable of resolving the potential legal conflicts are examined. Whether and to which extent potential conflicts may be resolved or harmonised through interpretation is discussed in the next section. 17.3.2 Conflicts Clauses 17.3.2.1 General The subsection considers the conflicts clauses in the cbd and the los Convention, and the extent to which these clauses are suitable to resolve the potential conflicts that may arise when a coastal State establishes an mpa in the territorial sea or in the eez where shipping is regulated or restricted in a manner that may violate the rights of other States. There are different types of conflicting clauses in different treaties.48 The objective of such clauses is of course to resolve situations when two legal rules conflict with each other. It is generally pointed out in legal literature that there are two main categories of conflicts clauses: (1) clauses that give priority to the treaty in which they are incorporated and (2) clauses that give priority to other treaties, existing or future.49 Conflicts clauses also play a role in creating coherence between treaties by providing directions regarding the interpretation and implementation of the treaties. The ilc mentions cbd Article 22 and los Convention Article 311 as examples of open-ended conflicts clauses that provide a wide room for interpretation. Such clauses appeal to harmonisation and mutual interpretation of the treaties.50 The analyses of the clauses in the los Convention and the cbd are thus significant beyond resolving concrete legal conflicts, as the clauses

48

49 50

For an overview of different types of conflicting clauses see Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 85–97; ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 135–138. See Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 87–97. ilc, Report of the Study Group on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, 140–143.

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may provide for a reasonable application of the treaties consistently with each other. 17.3.2.2 cbd Article 22 a) General It follows from Article 22 that: (1) The provisions of this Convention shall not affect the rights and ­obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. (2) Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea. The cbd regulates its relationship to other agreements in Article 22. Article 22 (1) refers to existing rights and obligations of the Contracting Parties without referring to any particular agreement, whereas Article 22 (2) deals with the relationship to the law of the sea. The wording of Article 22 is unclear and both paras. (1) and (2) raise questions concerning their meaning. Moreover, the ­relationship between the two provisions is also unclear. There was much debate concerning the relationship between the cbd and other treaties during the negotiations of the Convention, and Article 22 is the result of a compromise among the delegates.51 According to Chandler, it was agreed that the cbd should “supplement, not supplant, prior wildlife conservation agreements.”52 The delegations did not, however, agree on whether the cbd should affect other agreements, such as fisheries agreements or trade agreements.53 The relationship between the cbd and the law of the sea was also subject to discussions during the negotiations.54 Furthermore, it was discussed whether future agreements should be required to confirm with the cbd. Some delegations did not want the issue to be addressed in the Convention: they wanted to leave the question to be resolved by the general rules of 51 52 53 54

See Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 148–150, about the negotiation of this provision. Ibid., 149. Ibid., 149. Ibid., 151–154.

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interpretation in the Vienna Convention.55 Different proposals to the text were made during the negotiations, but the Contracting Parties finally adopted the wording of Article 22 as a compromise among the delegates.56 b) The Relationship between cbd and Existing Rights and Obligations It is established in the first part of Article 22 (1) that the cbd “shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement.” This formulation establishes that cbd does not replace other conventions relating to nature conservation or wildlife protection.57 On the contrary, it is stated that the cbd does not affect existing rights and obligations in other treaties.58 This type of conflicts clause is an exception from normal treaty law where a newer treaty prevails over an earlier treaty, and establishes therefore another priority between the treaties for their parties.59 Preference for prior treaties is a common type of conflicts clause in treaties.60 It is established in Article 22 (1) that the cbd does not affect existing “rights and obligations.” Therefore, only “rights and obligations” of earlier treaties are given priority. This suggests that principles and objectives set out in earlier treaties, for instance in earlier nature conservation treaties, are not provided preference over the cbd. Although the cbd does not prevail over rights and obligations in earlier treaties, the cbd influences on their interpretation and implementation.61 The relationship between the cbd and other nature conservation instruments must therefore be determined through the use of the clause in Article 22 (1), together with the law of treaties, the Vienna Convention Article 30 and the principles for interpretation in Articles 31–32. According to Werksman, this formulation was adopted as “an effort to maintain the treaty’s universal application and to promote its fundamental 55 56 57 58

59 60 61

Ibid., 149. Some delegations were dissatisfied with the formulation of Article 22 and gave interpretative statements, see ibid., 150–151, note 30. De Klemm and Shine, “Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems,” 24. cbd does not include a provision dealing with the relationship with international ­customary law in general. Here the general rules of interpretation of treaties apply, see ­Vienna Convention Article 31 (3) (c). See Chandler, “The Biodiversity Convention: ­Selected Issues of Interest to the International Lawyer,” 151. See Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 92. Wolfrum and Matz, Conflicts in International Environmental Law, 122. The relationship between the cbd and other nature conservation treaties is discussed ibid., 63–78.

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objectives.”62 In this way, cbd does not replace earlier treaties, but may complement and influence them. The reference to existing rights and obligations in Article 22 is general and does not refer to any particular conventions.63 The provision thus applies to all treaties, other conservation treaties, environmental treaties and treaties from other sectors, such as fisheries law and trade law.64 One suggestion during the negotiations was that it should mean any existing treaty related to or compatible with the conservation and sustainable use of biological diversity.65 However, the Contracting Parties were worried that such a formulation would leave unanswered questions relating to which treaties were compatible or related to conservation and sustainable use. Furthermore, the United States was concerned that, with an unclear or ambiguous formulation, the provision ignored prior obligations. As a result, the United States suggested another formulation that explicitly said that nothing in the cbd should derogate from rights and obligations in other treaties. As a compromise, the provision provided that the cbd would affect rights and obligations provided in other agreements only “where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity.”66 Article 22 (1) thus provides priority for all existing rights and obligations only as long as they do not cause “serious damage or threat to biological diversity.” The second phrase of para. (1) provides an important exception from the priority of existing treaties. After stating in the first phrase that rights and obligations of existing treaties are unaffected, the provision changes the priority between existing treaties and the cbd under the circumstances where the exercise of rights and obligations would cause “serious damage or threat to biological diversity.” Wolfrum and Matz describe this as an unusual exception, which “can lead to a de facto precedence of the Convention on Biological

62

63 64 65

66

See Jacob D. Werksman, “Formal Linkages and Multilateral Environmental Agreements,” (Background Paper prepared for the International Conference on Synergies and Coordination between Multilateral Environmental Agreements), Tokyo, 14–16 July 1999, 4, available at http://archive.unu.edu/inter-linkages/1999/docs/jake.PDF (accessed January 2016). Wolfrum and Matz, Conflicts in International Environmental Law, 123. De Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 25. See Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 149–150, see also the interpretive statements of states which remained ­dissatisfied with the compromise, 150, note 30. Ibid., 150.

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Diversity in respect to other instruments.”67 Consequently, only the existing rights and obligations which would not cause serious damage or threat to ­biodiversity prevail over the cbd.68 Another method for giving a conditional preference to existing rights and obligations is, as mentioned above, to state that existing rights that are “compatible” with the new treaty are not affected.69 An important difference with the formulation in Article 22 (1) compared to such a formulation in which priority is given to existing treaties that are compatible with the new treaty is that it cannot be determined in advance on a general basis which treaties are subordinated to the cbd. Since the cbd prevails over every other treaty, when the exercise of its rights or ­obligations “would cause serious damage or threat to biological diversity,” this must be determined concretely on the basis of an analysis of the factual situation. Consequently, the cbd has precedence over a fishing agreement for instance, if the exercise of a right to engage in fisheries activities pursuant to this agreement would cause “serious damage or threat to biological diversity.” A problem with Article 22 (1) is that it creates uncertainty with regard to the relationship between the cbd and other treaties. It is difficult to determine in advance the priority between the cbd and rights and obligations, as the exercise of the rights and obligations may lead to a factual situation in which the priority is changed. Therefore, Article 22 does not precisely address the relationship between the cbd and other agreements, or when the conditions are met, and the cbd prevails over rights and obligations provided in existing treaties. As the cbd does not provide any criteria for determining when the exercise of rights and obligations pursuant to existing agreements may cause serious damage and threat, Article 22 (1) is difficult to apply. The discretion of the Contracting Parties is wide. Accordingly, the extent to which the clause is suitable to serve its purpose to resolve legal conflicts is questionable.70

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68 69

70

Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 475. See also Wolfrum and Matz, Conflicts in International Environmental Law, 124–125 and de Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 25, note 16. Wolfrum and Matz, Conflicts in International Environmental Law, 125. Compare with los Convention Article 311 (2) which provides a “conditional” priority of existing treaties, by providing priority for existing rights and obligations that are compatible with the los Convention, see Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 92. Wolfrum and Matz, Conflicts in International Environmental Law, 125.

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The provision is unclear, and is subject to different interpretations.71 ­ bviously, minor harm on biodiversity does not imply priority for the cbd. O On the other hand, it is also reasonable that “serious damage or threat” is ­understood as a relative term, because the threshold requirement of being “­serious” may vary depending on the ecological characteristics of an area where a right of another treaty is exercised. Yet, it is difficult to determine in advance when the exercise of a right or obligation will cause serious damage or threat. However, as Article 22 (1) includes the wording “threat on biological diversity,” the damage need not have materialised. The precautionary principle referred to in the Preamble is in this respect relevant when determining whether the exercise of a right derived from an existing treaty imposes a threat to biodiversity, which implies that the cbd prevails. It follows from the reference to the precautionary principle in the Preamble that in a situation where there is such a threat, “lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.” Thus, when it is scientifically uncertain as to whether a threat will lead to damage, or to the required threshold of “serious damage,” the precautionary principle suggests that the Contracting Parties may take actions to avoid or minimise the threat due to the exercise of the particular right, by giving the obligations under the cbd priority over the rights and obligations of other agreements.72 Another question is whether the threat must also be serious. According to the wording it seems that a “threat” to biological diversity is enough to comply with the condition. However, it is reasonable to understand the provision so that, when it is required that the damage occurring from the exercise of rights and obligations deriving from other international agreements must be serious, this is also required for a threat to the biodiversity. The clause would be very far 71

72

Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 475; The Study Group on Fragmentation provides an overview of different conflicts clauses and notes that the meaning or effect of Article 22 is obscure as it seems unclear “what is in fact overridden by what by these formulations.” see ilc, Report of the Study Group on Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, 137; see also Erik Franckx, “The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship between cites and losc,” in The Law of the Sea: Progress and Prospects, ed. David Freestone, Richard Barnes and David Ong (New York: Oxford University Press, 2006), 231, note 137. Werksman argues that “the phrase “serious damage or threat” bears comparison to the precautionary principle, which enjoins decision-makers, when faced with such a threat, to act even if the science may be uncertain”, Werksman, “Formal Linkages and Multilateral Environmental Agreements,” 4.

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reaching if any threat to the biological diversity deriving from the exercise of a right from another agreement implied the superiority of the cbd.73 With the inclusion of this clause it must be determined on a case-by-case basis which treaty prevails. This does not ensure legal predictability with regard to the relationship between the cbd and other treaties.74 The clause also raises other practical questions such as who should determine when the exercise of rights and obligations of another treaty may seriously harm biodiversity. What are the consequences in a situation where the threshold is exceeded; does the cbd prevail without limits, or only as far as necessary to avoid the threat or damage to the biodiversity? Although the clause in Article 22 (1) is difficult to apply in practice, it serves a role as a directive when interpreting and implementing rights and obligations of existing treaties. The Contracting Parties should act cautiously when the exercise of rights and obligations of existing treaties can cause serious damage or threat to the biodiversity. c) The Relationship between the cbd and the Law of the Sea As cbd pursuant to Article 4 also applies in the maritime zones within national jurisdiction and with regard to processes and activities carried out under their jurisdictional control, regardless of where their effects occur, it was anticipated during the negotiations of the Convention, that conflicts between the cbd and the los Convention could arise, and a special provision for the relationship with the law of the sea was included.75 Although there was consensus on the application of the cbd to the marine environment, there were discussions on the relationship between the cbd and the law of the sea.76 According to Article 22 (2), the cbd must be implemented “consistently with the rights and obligations of States under the law of the sea.” The term “law of the sea” was used to include the principles and obligations in the los Convention that reflect customary law. Some of the delegates had difficulties with a formulation that bound them to an agreement that was not yet in force or to which they were not bound to, but they agreed on the formulation “law of the sea.”77 73 74 75 76 77

See also Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 150, note 29. Werksman, “Formal Linkages and Multilateral Environmental Agreements,” 5. Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 463. See Chandler, “The Biodiversity Convention: Selected Issues of Interest to the International Lawyer,” 151–154. Ibid., 152–153.

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The formulation “rights and obligations of States under the law of the sea” is unclear and leaves some questions unresolved. The wording could be understood so that it is only the provisions of the los Convention and customary law that constitute rights and obligations that are superior to the cbd. On the other hand, the clause could be interpreted in a broader way to mean that the whole of the los Convention, including the provisions that reflect certain approaches, principles or organisational matters, prevail over the cbd.78 There are strong arguments in favour of adopting the first mentioned narrow interpretation of Article 22 (2). As observed by Wolfrum and Matz, if the intention was to ensure prevalence of the law of the sea in general, and not only when the implementation of the cbd would violate rights and obligations under the law of the sea, a different formulation could easily have been adopted.79 Another argument in favour of the narrow interpretation is that it would otherwise be difficult to apply the cbd in the maritime zones to ensure conservation of the marine biodiversity. If the broader interpretation were adopted, there would be little point in making the cbd applicable in the maritime zones, because this would mean that the principles for conservation of living resources in the los Convention would prevail and could not be supplemented by the obligations under the cbd.80 Wolfrum and Matz describe Article 22 (2) and the relationship between the cbd and the los Convention as follows: Article 22 para. 2 of the Convention on Biological Diversity instead means that the two regimes exist in parallel and supplement and reinforce each other. Only if the application of the Convention on Biological Diversity does infringe upon the rights and obligations of states, the law of the sea rules prevail.81 Conclusively, Article 22 (2) does not provide a general superiority for the law of the seas over the cbd. The law of the sea prevails only when the implementation of the cbd conflicts with rights and obligations of the law of the sea. 78

79 80

81

The two possible interpretations are discussed by Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 475–476. Ibid., 476; Wolfrum and Matz, Conflicts in international environmental law, 125. Also pointed out by Wolfrum and Matz, Conflicts in International Environmental Law, 125; Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 476. Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 476.

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Consequently, the coastal States may not establish an mpa on the basis of the cbd and disregard the navigational rights of other States. On the other hand, if the exercise of the right of innocent passage may “cause a serious ­damage or threat” to biodiversity, it is not clear whether the law of the sea prevails or if the exception clause in Article 22 (1) applies to the exercise of rights and obligations under the law of the sea. d) The Relationship between Articles 22 (1) and 22 (2) The relationship between Article 22 (1) and (2) is unclear. Whether the exception in para. (1) also applies to rights and obligations pursuant to the law of the sea is an open question. If the exception clause in para. (1) also applies to para. (2) this means that there is only a priority for rights and obligations in the law of the sea as far as the exercise of these rights and obligations do not exceed the threshold “serious damage or threat to biological diversity.” It is possible to argue for both solutions. Article 22 (1) can be seen as the general clause governing the relationship to other international agreements, except for the relationship to the law of the sea which is regulated in Article 22 (2). From this point of view, one can argue that the exception in Article 22 (1) does not apply to the los Convention, and that the rights and duties deriving from this convention prevail over cbd even when the exercise of these may lead to “serious damage or threat to the biological diversity.” Some legal writers argue that the wording implies that the clause in Article 22 (1) does not apply to the law of the sea. For instance, de Klemm and Shine comment on Article 22 (1) as follows: Strangely, this provision does not seem to apply to the Law of the Sea treaty, as the Biological Diversity Convention states that Parties must implement the Convention consistently with the rights and obligations of States under the law of the sea.82 Furthermore, Kachel argues: Interestingly, a qualifier similar to the one of Paragraph 1 has not been included. From the wording it seems that parties to unclos are bound by its rights and duties even if their exercise leads to damage or threats of the biodiversity,...83 82

Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 25. 83 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 93.

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Other legal writers have expressed different opinions regarding the relationship between paras. (1) and (2) of Article 22.84 Boyle interprets Article 22 so that the clause in para. (1) also applies to the los Convention, as he argues that the Contracting Parties to the cbd cannot interpret and implement the los Convention provisions to justify fisheries that lead to “serious damage or threat of damage.”85 Redgewell states that the clause applies to the exercise of rights and obligations under the los Convention, but underlines that this is an “unlikely event.”86 A strict reading of the wording indicates that the clause does not apply to the exercise of rights and duties pursuant to the law of the sea, as the clause is only included in para.(1), and no reference is made to it in para.(2). However, arguments may be asserted in support of the opposite interpretation. One may read Article 22 (1) as the general rule concerning the relationship between the cbd and other treaties, and conclude that Article 22(2) just underlines or emphasises the general preference of the rights and obligations pursuant to the law of the sea, as potential conflicts might occur when taking measures to protect marine biodiversity. When the exercise of the rights or obligations may lead to serious damage or threat, the exception in Article 22 (1) applies due to this understanding regardless of whether those rights and obligations are ­derived from the law of the sea or any other international agreement. The intention of the exception clause in Article 22 (1) is to prevent serious damage or serious threats on biological diversity, due to rights and obligations of existing treaties. As the cbd is applicable also to the marine areas, it is n ­ atural that the cbd protects the marine biodiversity and the terrestrial biodiversity against “serious damage and threat.” Nevertheless, the jurisdictional balance of the los Convention and navigational rights are safeguarded through Article 22 para. (2), as the Contracting Parties must implement the cbd “consistently with the rights and obligations of the law of the sea.” In the light of its objective, it is reasonable that the cbd prevails also when the

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See Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 57; Malgosia Fitzmaurice and Olufemi Elias, Contemporary ­issues in the law of treaties (Utrecht: Eleven International Publishing, 2005), 334; Nele Matz, “The Interaction Between the Convention on Biological Diversity and the un Convention on the Law of the Sea,” in Marine Issues: From a scientific, Political and Legal Perspective, eds. Peter Ehlers, Elisabeth Mann-Borgese and Rüdiger Wolfrum (London: Kluwer Law ­International, 2002), 475. Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 57. Catherine Redgewell, “From Permission to Prohibition; The 1982 Convention on the Law of the Sea and Protection of the Marine Environment,” in The Law of the Sea; Progress and Prospects, eds. David Freestone, Richard Barnes and David Ong (Oxford: Oxford University Press, 2006), 185.

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exercise of rights and obligations pursuant to the law of the sea would cause “serious damage or threat.” Allowing the exercise of the rights and obligations under the los Convention to prevail even when they cause serious damage to the biological diversity would not comply very well with the objective of ­conservation and sustainable use of biodiversity. Consequently, the interpretation of Article 22 (2) adopted here implies that the cbd must be implemented consistently with the rights and obligations of the los Convention, but this does not mean that navigational rights and other freedoms of the sea always prevail. The cbd will prevail when the exercise of other rights and duties would cause “serious damage or threat to biological diversity.” The coastal State is therefore not obliged to respect the right of another State provided for by the los Convention, if the exercise of this right will lead to such damage or threat. The exercise of fisheries could have “serious damage or threat” on biological diversity. A consequence of the interpretation of Article 22 (2) adopted here is that the obligation pursuant to the los Convention Article 62 (1) to promote the optimum utilization of fish stocks in the eez would not have priority over the obligation to conserve marine biodiversity, in a situation where this causes serious damage or threat to biodiversity. Thus a Contracting Party may not claim a right to carry out fisheries in a manner which is consistent with the weaker obligations in the los Convention, for instance when protecting associated or dependent species pursuant to Article 61 (4), if this would cause serious damage on biological diversity.87 A consequence of Article 22 (2) read in conjunction with (1) is arguably that the obligations on conservation and management of living resources of the LOS Convention must be read together with the obligations under cbd, and that the obligations under the LOS Convention do not allow a practice that causes serious damage or threat to biological diversity. For instance although the los Convention does not include an obligation which prohibits the use of certain equipment’s that may damage biological diversity, fisheries with certain equipment, such as trawls could be prohibited under cbd. As argued by Boyle: While in general terms the effect of Article 22 is to ensure that the lsoc will normally prevail, States parties to the cbd cannot rely on the losc to justify – or to tolerate – fishing which causes or threatens serious damage to biodiversity.88

87 88

Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 57. Ibid. Boyle raises the question whether this is permissible under the los Convention ­Article 311 (3). See discussions below in Section 17.3.2.3.

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Another question is the practical relevance of the exception in Article 22 (1) with regard to the exercise of navigational rights under the cbd. Operational pollution from vessels does not normally qualify as “serious damage.” Therefore, the navigational rights would normally prevail over the obligations under the cbd pursuant to Article 22 (2). However, it is not required that the damage actually occurs. Article 22 could at this point justify regulations that restrict or prohibit shipping in sensitive areas, if navigation through these areas would be a serious threat. As argued above, the exception clause in Article 22 (1) is difficult to apply in practice and might therefore also have a limited role in solving potential conflicts between the navigational rights and the obligation to establish and manage mpas. Still, the provision may have a practical relevance, as it would mean that flag States must ensure that their vessels are not exercising their rights in a manner that would cause serious damage or threat to biodiversity. This would however, be subject to flag State jurisdiction. Nevertheless, Article 22 serves an important role in clarifying the relationship between the cbd and the law of the sea at a broader level. The legal writer Boyle describes the relationship between the los Convention and the, cbd appropriately as he argues: we can see from the relationship between UNCLOS and the cbd that international law on conservation of marine living resources and ecosystems is not the exclusive preserve of either treaty. A coherent and comprehensive understanding for the present law requires consideration of both treaties.89 Conclusively, Article 22 should be read as an acknowledgement that the treaties to a great extent are compatible with each other, and that they should be interpreted and applied in the context of each other.90 Article 22 (2) acknowledges that the cbd and the los Convention are treaties with related aims, namely the protection of marine environment and management and the conservation of marine living resources, but that overlap and collisions may arise when implementing the cbd due to the rights of other States and the duty to respect these rights. The cbd may not, however, be implemented in a manner that interferes with the rights and obligations of other States under the los Convention. Article 22 (2) in conjunction with (1) also implies that rights and 89 90

Ibid., 58. ilc, Report of the Study Group on Fragmentation of International Law: Difficulties ­Arising from the Diversification and Expansion of International Law, 137.

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obligations may not be exercised when they cause serious damage or threat to biological diversity. However, the relationship between the treaties is not settled by this clause. 17.3.2.3 The los Convention Article 311 In this subsection the relevance of the los Convention Article 311 for resolving ­potential conflicts between the cbd and the los Convention is examined. Article 311 regulates the relationship to other agreements at a general level. In addition, a special provision, Article 237, is applicable to Part xii of the LOS Convention and is also a relevant conflicts clause for solving potential conflicts when establishing mpas. Article 237 is addressed below. Article 311 includes three key provisions, paras. (1), (2) and (3). In para. (1) the relationship to the Geneva Convention is clarified. Furthermore, it follows from Article 311 (2) that the los Convention shall not: alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention. As explained by Sadat-Akhavi, this clause provides a “conditional” priority for existing treaties over the los Convention.91 The los Convention prevails over all other treaties that are not compatible and treaties that affect the enjoyment by other States Parties of their rights or the performance of obligations under the Convention. It may be discussed whether the general stipulation in 311 (2) that the “­Convention shall not alter the rights and obligations of States Parties which arise from other agreements…” indicates that it relates only to existing treaties or also to subsequent treaties.92 When reading Article 311 (2) in connection with Article 311 (3), it seems logical to understand Article 311 (2) as giving priority both to existing and future agreements that are compatible and do not alter the rights and obligations of other States Parties under the los Convention.

91 Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 129. 92 Sadat-Akhavi deals with Article 311 (2) as a clause regulating the relationship to existing treaties in ibid., 89–90. Franckx, points out that Article 311 (2) establishes priority for the los Convention over all other treaties, existing and future, Frankckx “The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship between cites and losc,” 219.

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Article 311 (3) provides the States Parties with a conditional right to adopt future agreements that modify or suspend the los Convention. If they intend to conclude such an agreement, they must follow the procedures in Article 311 (4). The formulation of Article 311 (3) sets out three conditions for the adoption of such agreements: 1) the agreements shall not relate to a provision derogation that is incompatible with the object and purpose of the los Convention: 2) they shall not affect the application of the basic principles: and 3) the provisions shall not affect the rights and obligations of other States Parties under the los Convention. The aim of Article 311 (3) is thus to limit the right of the states to derogate from the treaty in subsequent treaties.93 The procedures for modifying the los Convention in Article 311 (4) were not applied when the cbd was adopted, and there is nothing that suggests that the States Parties intended to modify the los Convention when the cbd was adopted. On the contrary, the geographical scope of the cbd in Article 4 and the adoption of Article 22 (2) indicate that the cbd was considered compatible with the los Convention, and that it shall be interpreted and implemented consistently with the rights and obligations of the los Convention. The implication of Article 311 is that the cbd must be interpreted and ­implemented to be compatible and so that it does not affect the rights and obligations of other States under the los Convention.94 Hence, both Articles 22 in the cbd and 311 in the los Convention establish that the cbd must be implemented with respect to rights and obligations of others and that, in case of a conflict, the los Convention will prevail.95 Article 22 (2) provides for the application of the cbd in the maritime zones to protect the marine biodiversity consistently with the rights and obligations of other States. Under Article 22 (2), the los Convention prevails only if the implementation of cbd is conflicting with the rights and obligations under the los Convention. However, as shown above, the obligations and principles of the cbd may influence the interpretation of the environmental obligations of the los Convention. This means that the objectives, principles and obligations of the cbd apply in the maritime zones and may influence the environmental obligations of the los Convention. In this regard, it may be questioned 93 94 95

Wolfrum and Matz, Conflicts in International Environmental Law, 127 and Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 54. See Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 334. Frankckx “The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship between cites and losc,” 228, note 117. See also Craig H. Allen, “­Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Vent Resource ­Conservation and Management,” Georgetown International Law Review 13 (2001): 608.

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whether Article 311 allows an interpretation, where the environmental regime of the los Convention due to the influence of the cbd is strengthened. It is argued, for instance, that the obligations regarding conservation and sustainable use and the ecosystem approach of the cbd have influenced and modified the regime on conservation and management of living resources in Part v of the los Convention.96 The coastal States enjoy sovereign rights over the living resources in the eez and have discretion to adopt stricter regulations on management and conservation of living resources than provided for in the los Convention, to comply with the cbd. This does not lead to incompatibility between the two treaties. As concluded in the chapter above, the clause in Article 22 (1) applies in the relationship between the cbd and the law of the sea. Consequently, the cbd is given priority if the exercise of the rights and obligations of the los Convention would cause serious damage on biodiversity. This makes the relationship between Articles 22 of the cbd and 311 of the los Convention more complicated. As both Articles 22 (1) and 311 (3) claim priority over each other, there appears to be a logical inconsistency here. In theory, it is even argued that there is a contradiction between the clauses in Article 22 (1) and 311 (3) and that these clauses are “mutually exclusive” in a situation where the exercise of a right under the los Convention causes serious damage or threat to biological diversity.97 Wolfrum and Matz describe the relationship between the two clauses as not “fully compatible.”98 Boyle therefore questions if the cbd with Article 22 (1) that provides priority over the los Convention, has de facto modified the los Convention.99 However, it is arguable that Article 311 (3) allows for an interpretation where the cbd prevails under the special circumstances described in Article 22 (1). The “compatibility” condition is not defined in the los Convention. The States Parties of the los Convention are therefore provided with wide discretion when interpreting and implementing existing treaties and when concluding

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Richard Barnes. “The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?” in The Law of the Sea: Progress and Prospects, ed. David Freestone, Richard Barnes and David Ong (New York: Oxford University Press, 2006), 250–251. See Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 334; ILC, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 138. Wolfrum and Matz, Conflicts in International Environmental Law, 125. Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 57.

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new agreements.100 It follows from the wording that “the effective execution of the object and purpose” of the Convention must be considered. The other conditions in Article 311 (3) also provide guidance when determining whether a subsequent agreement is compatible with the los Convention. New agreements shall not “affect the application of the basic principles” or the enjoyment of other States Parties of their rights and obligations under the los Convention. Boyle points out that states that are Contracting Parties to the cbd may not rely on fisheries that may cause serious damage or threat to biological diversity and discusses whether this is a modification that is permissible within Article 311 (3). Boyle concludes that it probably is. He emphasises that the objects and purposes of the los Convention may be interpreted “to include measures aimed at protection of marine biodiversity.”101 Furthermore, the los Convention also includes obligations regarding the environment and on conservation of marine living resources, and one may argue that rights and obligations that other States enjoy under the los Convention do not extend as far as an exercise that would have “serious damage or threat to the biological diversity.” In particular, all States are pursuant to Article 194 (5) obliged to protect and preserve rare and fragile habitats and ecosystems. Concerning the relationship between the los Convention and the cbd, Redgwell argues that it is “unlikely that the exercise of rights and obligations under the losc” would “cause serious damage or threat to biological diversity” and thereby lead to the prevalence of the cbd.102 To conclude: both Articles 311 and 22 (2) state that in the case of a potential conflict in which navigation is regulated or prohibited within an mpa, the los Convention prevails if these regulations are in conflict with the navigational rights under the los Convention. It is a possible contradiction between Article 22 (1) and Article 311 (3). However, the interpretation of Article 22 of the cbd where the cbd prevails if the exercise of rights under the los Convention may cause serious damage or threat may, be maintained within the terms of Article 311 (3). A reading of Articles 311 and 22 reveals, however, that the relationship between the treaties is complex and that potential conflicts may not

100 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 142. 101 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 57. 102 Redgwell, “From Permission to Prohibition; The 1982 Convention on the Law of the Sea and Protection of the Marine Environment,” 185.

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be solved in a satisfactory way only through the application of the conflicts clauses. 17.3.2.4 The los Convention Article 237 Article 237 is also relevant to the relationship between the cbd and the los Convention, and may serve as a potential instrument for resolving conflicts that may arise when mpas are established with protective measures to protect a habitat or an ecosystem against the impacts of shipping. Article 237 is in Part xii and has a narrower scope than Article 311 as it deals only with the relationship between the los Convention and agreements that relate to the protection and preservation of the marine environment. While Article 311 is the relevant provision for the relationship to fisheries agreements and agreements for conservation of living resources, Article 237 is the relevant provision for matters dealt with in Part xii. Article 237 deals both with existing and new agreements. It was thus an aim of Article 237 to implement all agreements dealing with marine protection within the overall framework of the los Convention or the “umbrella” of Part xii.103 Pursuant to Article 237 (1), the States may adopt new agreements relating to protection and preservation of the marine environment. It follows from Article 237 (1) that: The provisions of this Part are without prejudice … to agreements which may be concluded in furtherance of the general principles set forth in this Convention. When it comes to prior agreements, Article 237 (1) states that the provisions in Part xii are also without prejudice: to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment. It follows, thus, from Article 237 (1) that existing agreements, both specific obligations and agreements, dealing with protection and preservation of the marine environment are given priority over the los Convention. However, it is a condition for new agreements that they are “concluded in furtherance of 103 Rosenne and Yankov, eds. United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv, 423.

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the general principles” of the los Convention. Furthermore, it follows from Article 237 (2) that: Specific obligations assumed by States under special conventions, with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.104 Article 237 para. (2) stipulates that the States should carry out other agreements “in a manner consistent with the general principles and objectives of the Convention.” This raises the question how the word “should” is understood. Does it mean that the States are encouraged, but not obliged, to carry out other agreements in this manner? The question is discussed in literature by Sadat-Akhavi, who points to the French version of the Convention which expresses an obligation for the States and therefore concludes that “should” must be understood as shall.105 This interpretation also provides consistency between paras. (1) and (2) of Article 237. Consequently, the los Convention provides priority to earlier treaties that are carried out consistent with the general principles and objectives of the los Convention and to future agreements that are concluded in furtherance of the general principles of the Convention. As Article 311 is the general provision dealing with the relationship to other agreements, Article 237 overrides Article 311 as lex speciales.106 The question is thus what implications Article 237 has for the relationship between the cbd and the los Convention and as a conflicts clause for solving potential conflicts if the coastal States establish an mpa where shipping activities are prohibited or restricted. The wording of Article 237 suggests that the possibilities to adopt new agreements pursuant to this provision are wider than what follows from Article 311. Article 237 does not require that treaties are compatible as follows from Article 311.107 It is agreed in legal theory that Article 237 provides the States with a wider scope for adopting new agreements that relate to protection and preservation of the marine environment than what 104 It may be discussed whether 237 para. (2) refers both to prior and new agreements or only to prior agreements. See discussion in Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 132, note 110 and in Rosenne and Yankov, eds. United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv, 425. 105 See Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 132–133. 106 Rosenne and Yankov, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv, 425. 107 Ibid., 425.

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follows from Article 311. Boyle argues for instance that the States have “much greater latitude to depart from the terms of Part xii than from other parts of the Convention.”108 As concluded above, the general obligation to protect and preserve the marine environment in Article 192 encompasses the protection and conservation of biological diversity. The cbd has therefore specified and strengthened the environmental obligations in Part xii of the los Convention. Furthermore, the obligation to establish mpas pursuant to the cbd may be considered as a requirement for the implementation of Articles 192 and 194 (5). Additionally, the holistic or ecosystem approach of the cbd, which sees all human activities together, arguably modifies the sectoral approach of Part xii, with a focus on marine pollution.109 As Part xii deals with the protection and preservation of the marine environment and protection of habitats, ecosystems and marine life are included in these obligations, it is permissible within the terms of the los Convention Article 237 that cbd may influence and strengthen the environmental agreements through interpretation. This interpretation and implementation of the cbd is also “consistent with the general principles and ­objectives” of the los Convention. One may, however, question whether Article 237 allows mpas to be adopted where shipping is prohibited. It is natural to understand the phrase “in furtherance of the general principles” so that it encompasses both environmental obligations and the rights of navigation which are reflected through the right of innocent passage and the freedom of navigation in Articles 17 and 58. On the other hand, one may argue that, as Article 194 (5) requires protection of habitats and ecosystems, mpas established to protect a valuable area or particularly sensitive area against human activities, including shipping, would therefore be consistent with the environmental obligations and objectives of the los Convention. The phrase “should be carried out in a manner consistent with the general principles and objectives” of the los Convention in Article 237 (2) provides discretion for the States and permits an interpretation and implementation of the cbd that allows mpas to be established, with protective measures that constrain the navigational rights for the purpose of protecting the marine biodiversity. This suggests that it is permissible within Article 237 to interpret and implement the cbd and Article 8 (a) so that some constraints on the right of innocent passage and the freedom of navigation are accepted. However, as Article 22 (2) of the cbd states that the cbd shall be implemented consistently 108 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 56. See also, Kachel, Particularly Sensitive Sea Areas, 302. 109 See Kachel, Particularly Sensitive Sea Areas, 93.

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with the rights and obligations of the los Convention, this indicates that the Contracting Parties to the cbd did not intend to adopt a treaty that could departure from the general principles of the los Convention in such a manner. Therefore, Article 22 (2) of the cbd and Article 237 of the los Convention are consistent. Furthermore, it follows from cbd Article 22 (1) that the cbd prevails in a situation in which shipping or the exercise of other rights under the los Convention would cause serious damage or threat. An interpretation and implementation of obligations under the cbd that aims to protect marine biodiversity from serious damage or threat must be considered to be within the general principles and objectives of the los Convention. A prevalence of the navigational rights in a situation described in Article 22 (1) cannot be an unacceptable constraint of the rights of navigation, which would mean that the conditions for the priority of the cbd do not apply pursuant to Article 237. Consequently, except for the situations in which shipping would cause ­serious damage or threat on biological diversity, the coastal States must also, pursuant to Article 237, read together with Article 22 (2), respect the right of innocent passage and the freedom of navigation when implementing the CBD. Protection of the marine environment and biological diversity is also however, within the general principles and objectives of the los Convention. 17.4

Solving Conflicts through Treaty Law

17.4.1 General This section examines the extent to which treaty law may contribute or add anything to the solution of the potential conflict between the cbd and the los Convention, which may arise when a coastal State establishes mpas where shipping is restricted or prohibited. First, it discusses whether the Vienna Convention Article 30, which deals with the application of subsequent treaties with the “same subject-matter” as an earlier treaty, is relevant as a mechanism for resolving the potential conflict. Thereafter, it examines the potential for resolving the conflict through the principles of treaty interpretation and in particular looks at whether the principle in Article 31 (3) (c) may contribute to solving the potential conflict between the cbd and the los Convention.110

110 Wolfrum and Matz discuss the capacity of the law of the treaties to solve conflicts in ­Wolfrum and Matz, Conflicts in International Environmental Law, 129–159.

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17.4.2 Is the Vienna Convention Article 30 Applicable to the Potential Conflict between the los Convention and the cbd? Article 30 in the Vienna Convention includes provisions that address the relationship between treaties and includes principles that determine the prevalence of treaties and that resolve conflicts between treaties. Article 30 is based on the principle of the priority of a later treaty over an earlier treaty. However, the principles in Article 30 apply only to successive treaties with the “same subject-matter.”111 As both the cbd and the los Convention include environmental obligations to protect the marine environment and to conserve and protect ecosystems, habitats and species, it may be questioned whether this provision has any relevance when determining the relationship between the two conventions. There are arguments in favour of both a liberal and restrictive interpretation of the term the “same subject-matter.” It is held in literature that the condition the “same subject-matter” should be interpreted restrictively, where a general treaty has impact on the content of an earlier treaty.112 On the other hand, the ilc emphasises that too strict an interpretation is not reasonable, as this could exclude conflicts between for instance environmental law and trade law.113 The cbd is an environmental agreement; whereas the los Convention has a much wider scope, allocating jurisdictional rights between States and dealing with all the activities that take place in the oceans. The cbd and the los Convention are part of two different regimes of international law, respectively environmental law and the law of the sea. As suggested by the ilc the term “same subject-matter” does not, however, mean that the Article is not applicable to treaties that are part of different regimes or areas of international law, such as trade law, environmental law or the law of the sea. The names of the different legal regimes in international law are just labels; the instruments may still relate to the same “subject-matter.”114 Even though the los Convention also includes obligations on environmental protection, and some of the obligations in the two conventions therefore overlap, the two treaties deal to some extent with different aspects of 111 For more on Vienna Convention Article 30 see Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 59–84; Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 314–348. 112 Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 320. 113 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 129. 114 Ibid., 17–18.

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environmental law, and have different aims and scope.115 The cbd has in this relation a wider scope, as it is holistic in the sense that it deals with all sectors and all types of human activities. The cbd reflects the new integrated perspective on the protection of the marine environment as it focuses on human activities holistically and not functionally.116 Their underlying aims and approaches are also different. Whereas the los Convention has a more exploitation-oriented approach to the management and conservation of marine living resources, the cbd clearly adopts an ecosystem approach to the conservation and sustainable use of the marine biodiversity. The cbd further acknowledges the intrinsic value of the biological diversity, whereas the aim of the conservation and management obligations of the los Convention is to achieve the MSY, which indicates that it has a more short term approach to the conservation.117 However, even though the conventions have different objectives, this does not in itself imply that the Vienna Convention Article 30 is not applicable. It is difficult however, to argue that the los Convention and the cbd deal with the “same subject-matter.” Wolfrum and Matz argue that, “even if their focus on marine environment overlaps to some extent; the scopes and primary aims of both agreements are too different.”118 The characteristics of the cbd as a framework convention with principles and broad obligations does, furthermore, imply that the cbd was not intended to replace the los Convention or other agreements, but rather to supplement them. It is, possible however, to argue that specific provisions of the Convention are dealing with the “same subject-matter” and can be resolved by the Vienna Convention Article 30. The potential conflict between protected areas in cbd Article 8 (a) and the provisions that set out the navigational rights in los Convention Articles 17 and 58, however, deal with very different matters.119 Consequently, Article 30 is not applicable as a rule to define the relationship between the los Convention and the cbd or to resolve potential conflicts between these treaties.120

115 Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 474. 116 Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 333. 117 Matz, “The Interaction between the Convention on Biological Diversity and the un ­Convention on the Law of the Sea,” 214. 118 Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 473–474. 119 Wolfrum and Matz, Conflicts in International Environmental Law, 150. 120 Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 473. See also Fitzmaurice and Elias, ­Contemporary Issues in the Law of Treaties, 333.

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17.4.3 Harmonisation of the los Convention and the cbd through Interpretation of Terms 17.4.3.1 General As Vienna Convention Article 30 is not applicable to the potential conflicts between the cbd and the los Convention, the general principles of interpretation of treaties in Articles 31 and 32 are thus more relevant for addressing the discrepancies between the treaties.121 Of particular interest is whether the principle of interpretation expressed in the Vienna Convention Article 31 (3) (c) may contribute to harmonising the reading of the los Convention and the cbd and thereby avoid the potential conflicts between the treaties that may arise in connection with the establishment of mpas.122 Legal conflicts are identified through the interpretation of treaties. Through this process it may be determined whether the conflicts are real or false.123 False conflicts are those that may be resolved through the process of interpretation by determining the meaning of terms. Voigt refers to this as apparent conflicts and states that an “apparent conflict is a situation where a conflict of norms exists, but where the conflicting norms can be harmonised or ‘interpreted away’.”124 The relationship between the interpretation of treaties and the resolution of conflicts is described as follows by the ilc: “Whether there is a conflict and what can be done with prima facie conflicts depends on the way the relevant rules are interpreted.”125 When the meaning and scope of the terms are clarified by textual interpretation within their context and with a view to the objective and purpose of the treaty, something which first seemed to be a conflict may not be.126 However, the primary aim of the principles of 121 See also Matz, “The Interaction between the Convention on Biological Diversity and the un Convention on the Law of the Sea,” 216; Wolfrum and Matz, “The Interplay of the U ­ nited Nations Convention on the Law of the Sea and the Convention on Biological ­Diversity,” 474. 122 Boyle discusses the relationship between international environmental law and other branches of international law and discusses interpretation as a tool of integration, see Boyle, “Relationship between International Environmental Law and other Branches of International Law,” in The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunée and Ellen Hey (New York: Oxford University Press, 2007), 128–132. 123 See Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 25–45. 124 See Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict between Climate Measures and wto Law, 198. 125 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties ­Arising from the Diversification and Expansion of International Law, 207. 126 Vienna Convention, Article 31 (1).

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treaty interpretation is, to clarify the meaning and scope of a norm. It is emphasised both in practice and by legal writers that interpretation serves to clarify unclear or ambiguous terms and that it is not an instrument to amend or revise a treaty, for the purpose of harmonising treaties or conflicting terms.127 In the Interpretation of Peace Treaties case it is stated: “It is the duty of the Court to interpret the Treaties, not revise them.”128 With its vague terms and the qualifier “as far as possible and as appropriate,” the duty to establish mpas laid down in cbd Article 8 (a) is not an absolute duty. The wording “as far as possible and as appropriate” also provides considerable scope for interpretation.129 Hence, the duty to establish mpas may easily be interpreted so that it does not include a legal duty to regulate navigation in a manner that may infringe upon the rights of other States pursuant to the los Convention. In this way, the potential conflict is avoided through the interpretation of Article 8 (a). It is therefore normally possible to avoid conflicts by choosing an alternative solution which gives way to the rights and obligations of the los Convention. However, although this interpretation creates harmony between the treaties and thereby contributes to a coherent legal system, the result of such an interpretation could be that it is difficult to achieve the objectives of the cbd.130 An interpretation and application of the cbd so that the duties pursuant to the cbd to establish mpas are pursued in a manner that always avoid potential conflicts with rights and obligations pursuant to the los Convention would undermine the objectives of cbd. One result of such an interpretation and application of the cbd could be that it does not ensure effective in situ conservation of marine biodiversity and is therefore not acceptable. Therefore, although the norm conflict may be avoided by interpretation, conflicts between and among the objectives of mpas, the cbd and the navigational rights of other States, remain. The obligation to respect the rights of other States under the los Convention may limit the opportunity of the coastal States to adopt the tool mpas, so that the objectives of in situ conservation are achieved. It is important therefore, to assess what the principle in the Vienna Convention Article 31 (3) (c) may add through a harmonising interpretation, so that 127 Sadat-Akhavi, Methods for Resolving Conflicts between Treaties, 28 and Wolfrum and Matz, Conflicts in International Environmental Law, 139. 128 Interpretation of Peace Treaties (second phase), Advisory Opinion: [1950], icj Rep 221, 229. 129 Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity,” 474. 130 This does not follow from cbd Article 22 either. As concluded above in Subsection 17.3.2.2 there is not a general priority for the los Convention over the cbd.

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the objectives of the cbd and of the obligation to establish mpas may be achieved through the regime of the los Convention. If two treaties have the same objectives, coherence between the treaties may be achieved through the application of the basic principles in the Vienna Convention Article 31(1) and (2), as the wording is interpreted in accordance with its object and purpose.131 It is established in the Iron Rhine Arbitration: Although the clauses contained within Article 31 are not hierarchical, there is no doubt that the starting point for interpretation is the ordinary meaning to be given to the terms, taking them in context, and having regard also to the object and purpose of the treaty.132 If the conflicting treaties are not brought into harmony at this stage of the interpretation, the treaties may with the application of the principle in the Vienna Convention Article 31 (3) (c) be coordinated by reference to other rules or circumstances outside of the treaty.133 The duty to establish mpas emerges from new acknowledgements and ­approaches to the protection of the marine environment and to the conservation of marine biodiversity. Hereby, the ecosystem approach and the understanding of the need to address all threatening and damaging human activities and to take a holistic approach and coordinate all uses of the seas, provides an important rationale for mpas.134 To protect marine biodiversity it is necessary to protect vulnerable marine habitats and species from all damaging activities, occasionally also shipping. Therefore, this subsection examines how far, if at all, the principle of treaty interpretation in the Vienna Convention Article 31 (3) (c) is applicable and suitable to create coherence between the conflicting duty to establish mpas and the rights of other States to engage in innocent passage and navigate in the eez. The question is whether it is possible to resolve the potential conflicts by taking into account the development of international law and the evolving new approaches to the marine environment. Such a harmonising of the treaties can take place through an interpretation of provisions that provide the coastal States with prescriptive jurisdiction. The balance of jurisdictional rights and duties struck in the los Convention is not settled. The right of innocent passage and the principle of freedom of 131 132 133 134

Wolfrum and Matz, Conflicts in International Environmental Law, 137. Iron Rhine Arbitration, para. 47. Wolfrum and Matz, Conflicts in International Environmental Law, 139. See Kachel, Particularly Sensitive Sea Areas, 39–42, where he discusses the protection of ecosystems and the ecosystem approach as a basic rationale for mpas.

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navigation may also be interpreted in different ways.135 The rights and obligations of the los Convention, such has the right of the coastal State to regulate the innocent passage according to Article 21, are also subject for interpretation. Moreover, the jurisdictional balance may be elaborated through the adoption of new rules that qualify as gairs.136 An interpretation of these provisions in the light of the legal development can justify providing the coastal States with broader rights to adopt navigational measures within mpas. However, such an interpretation must first be further examined with regard to the extent to which coherence may be created between the treaties by interpreting the terms in the los Convention with a reference to the obligations in the cbd.137 17.4.4 The Application of Article 31 (3) (c) It follows from the Vienna Convention Article 31 (3) when an agreement is interpreted: There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which ­establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. Article 31 (3) (c) is characterised as a principle of systemic integration.138 The reasoning for this principle is that the rules set out in treaties are not 135 Scovazzi states that the principle of freedom of navigation must be understood “in relation to the evolution of legal systems and in the light of the peculiar circumstances under which it should apply” see Tullio Scovazzi, “Marine Specially Protected Areas under International Law,” in Marine Specially Protected Areas: The General Aspects and the Mediterranean Regional System, ed. Tullio Scovazzi (The Hague: Kluwer Law International, 1999),19. 136 The concept of gairs is discussed below in Subsection 18.7.2. 137 French points out that one reason for a tribunal to refer to other rules of international law in interpreting a treaty could be to contribute to the aim of creating coherence within the international legal order, see Duncan French, “Treaty interpretation and the incorporation of extraneous legal rules,” International Law & Comparative Law Quarterly 55 (2006): 282. 138 See ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 208; see also McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 279–320.

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­ egotiated and established without regard for other treaty obligations or n ­general laws. Higgins observes that: “International law is not rules. It is a normative system.”139 This observation is also relevant for the rationale of this principle. As expressed by the ilc rights and obligations in treaty provisions “can only be approached through a process of reasoning that makes them ­appear as parts of some coherent and meaningful whole.”140 This principle of systemic integration implies that treaties should be interpreted within their normative environment.141 McLachlen points out that the international legal system and the content of the international law is constantly changing and that one therefore must have an approach to interpretation of treaties which responds to this dynamic.142 Article 31 (3) (c) is not frequently applied in judicial practice in international law. It is even expressed by Sands that there “seems to be general reluctance to Article 31 (3) (c).”143 However, the principle is applied in newer judicial practice.144 As a result, there has also been an increasing focus in legal writing on the potential of this principle for creating coherence in international law.145 Additionally, the ilc has dealt with the principle in a section of its own in the report on the fragmentation of international law, and emphasises the role of the principles as a “systemic principle.”146

139 Rosalyn Higgins, Problems & Process International Law and How We Use it (Oxford: ­Clarendon Press, 1994), 1. 140 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties ­Arising from the Diversification and Expansion of International Law, 208. 141 Ibid. 142 McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 282. 143 Philipe Sands, “Treaty, Custom and International Law,” in Past Achievements and Future Challenges, ed. Alan Boyle (New York: Oxford University Press, 1999), 50. See also French, “Treaty interpretation and the incorporation of extraneous legal rules”, 300. 144 The principle is applied for instance in the ospar Arbitration, the Shrimp/Turtle case; Oil Platforms (Islamic Republic of Iran v. United States of America) [2003] icj Reports 2003, 161. The European Court of Human Rights has also applied the principle in a number of cases. For a discussion of the case law, see ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 219–232 and McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 295–309. 145 A detailed analysis is provided in: McLachlen, “The Principle of Systemic Integration and Article 31(3) (c) of the Vienna Convention,” 279–320. 146 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 206–244, Section F.

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To determine the extent to which Article 31 (3) (c) may contribute to r­esolving the potential conflict between the cbd and the los Convention through interpretation, when and how the principle may be applied must be clarified. The wording of Article 31 (3) (c) is very general, and it is not clear when it comes to its scope or the normative force of “relevant rules of international law a­ pplicable in the relations between the parties.”147 In the Gabcíkovo-­ Nagymaros case Judge Weeramantry points out that Article 31 (3) (c) “scarcely covers this aspect with the degree of clarity requisite to so important a matter.”148 When looking at the wording of Article 31 (3) (c), several questions remains unanswered. It follows from this provision that there shall be taken into account “any relevant rules of international law applicable in the relations between the ­parties.” It is not clear, for instance, what the term “any relevant rules of international law” includes. Is it limited to rules that existed when the treaty was concluded? The international rules that are taken into account must furthermore be “relevant” and “applicable” between the parties. Does the term “rule” also include general principles and soft law? Furthermore what does it mean that these rules shall be “taken into account”? How much weight do other rules carry in the interpretation of a treaty? As argued above there has been an increased focus on the principle in Article 31 (3) (c) as a tool for creating coherence in international law.149 It is pointed out by McLachlen, that the question is not whether this principle may play a role in treaty interpretation, but rather how the principle may be operationalized so that it may “more fully perform its purpose, and, in the process, reduce fragmentation and promote coherence in international law.”150 A clarification of the principle to develop it into an appropriate tool for creating coherence in international law must take place through judicial practice and legal science.151 One question of significance for the application of Article 31 (3) (c) is whether it is the international rules that were applicable between the parties when the treaty was concluded or when the treaty is being interpreted and applied that shall be taken into account. The wording covers both solutions. This 147 Article 31 (3) (c) is criticised for being unclear when it comes to how and when it should be used, see McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 281. 148 Gabčíkovo-Nagymaros case (Separate Opinion of Judge Weeramantry), para. 114. 149 See French, “Treaty interpretation and the incorporation of extraneous legal rules,” 285. 150 McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 281. 151 Sands, “Treaty, Custom and International Law”, 60.

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question was also discussed during the negotiations of the Convention. The ilc emphasises in its commentaries to the draft articles to the Vienna Convention that the correct temporal element would be indicated through an interpretation of the term in good faith.152 In the Namibia case, the icj states the need for “the primary necessity of interpreting an instrument in accordance with the intentions of the parties at the time of its conclusion” and also acknowledges that treaties are to be “interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”153 Traditionally, treaties are interpreted in the light of applicable international rules when they were negotiated and concluded.154 However, judicial practice has also allowed a dynamic interpretation, where one treaty is adapted to new circumstances, new approaches or objectives.155 Whether the treaty should be interpreted in the light of the rules that are contemporary with it or a dynamic, evolutionary interpretation which recognizes that the meaning of words may change over time in the light of the development of the law should be adopted, must be determined on the basis of an interpretation of the treaty.156 In this regard, the ilc has pointed that a treaty may provide for an evolutionary interpretation, by the use of evolutionary terms, or by expressing an intention that terms should be understood in light of the development or through adoption of very general terms.157 Interpreting treaty provisions in its normative environment at the time of the interpretation permits changes in policy and values and considerations of newer environmental problems that are encompassed in newer legal instruments, treaties or principles, to be reflected. With regard to whether the potential conflict between the cbd and the los Convention in relation to restricting navigation within mpas may be resolved through interpretation, it is significant to determine when such evolutionary interpretation is accepted.

152 See ilc, Report of the International Law Commission on the Work of its Eighteenth ­Session, 4 May–19 July 1966, Official Records of the General Assembly, Twenty-first ­Session, Supplement No. 9 (A/6309/Rev.1), 222. 153 Legal Consequences for States of the Continued Presence of South Africa in Namibia (Namibia case) (Advisory Opinion) [1971] icj Reports 1971, 16, para 53. See Boyle, “Relationship between International Environmental Law and other Branches of International Law,” 129. 154 See ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 240 and 242. 155 Namibia case, para. 53; the Shrimp/Turtle case, paras. 127–134. 156 See ilc, Report of the International Law Commission on the Work of its Eighteenth ­Session, 222. 157 Ibid., 242–243.

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The principle of evolutionary interpretation was applied in the GabcíkovoNagymaros case. The Court first described the interference with nature by ­humans and the development of the environmental law as follows: Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scieritific insights and to a growing awareness of the risks for mankind – for present and future generations – of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades.158 The Court then stated that, when interpreting and applying environmental norms, one must also take new norms into account: Such new norms have to be taken into consideration, and such new ­standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.159 In relation to “evolutionary provisions” the Court asserted: By inserting these evolving provisions in the treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not static, and is open to adapt to emerging norms of international law.160 In legal practice evolutionary interpretation is limited to terms that are evolutionary, which as explained by Boyle, “necessarily import or suggest reference to current international law.”161 Boyle points out that the terms with which evolutionary interpretation is permissible under Article 31 (3) (c) have been 158 Gabčíkovo-Nagymaros case, para. 140. 159 Ibid., para. 140. This dictum is repeated in the Iron Rhine Arbitration, para. 59. 160 Gabčíkovo-Nagymaros case, para 112 See also the discussions in the Separate Opinion of Judge Weeramantry in Gabčíkovo-Nagymaros case (Separate Opinion of Judge Weeramantry), 113–115, where he emphasises that it is the environmental standards in force at the time of the application of the treaty that is the governing standards. 161 See Boyle, “Relationship between International Environmental Law and other Branches of International Law” 129–130.

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“narrowly circumscribed in the jurisprudence.”162 In the Namibia Case, evolutionary terms are described as terms that are “not static, but were by definition evolutionary.”163 Boyle provides examples from the los Convention that may provide for evolutionary interpretation, such as “conservation of living resources,” “jurisdiction” or “natural resources.”164 In case law, it is held that evolutionary interpretation finds support in the intentions of the parties.165 Reference to the intention of the parties as support for an evolutionary interpretation is also found in the Aegean Continental Shelf case, where the Court emphasised that the parties when applying a “­generic term denoting any matters comprised within the concept of territorial status under general international law, the presumption necessarily arises that its meaning was intended to ­follow the evolution of the law.”166 In addition, in the Shrimp/Turtle case, the wto Appellate Body found that certain terms such as “exhaustible n ­ atural resources,” were intended to be interpreted in light of the development of the law.167 The ilc has identified three typical situations in which Article 31 (3) (c) normally will apply.168 These are when a term is unclear or ambiguous, where a term in a treaty has a well-recognised meaning in customary law, if the term is “generic” or by its nature is open-ended, and interpretation by other treaties will help to give the term meaning.169 In these described situations, it is reasonable to understand the treaty provisions as they were intended to be interpreted in the light of the development of law, where the meaning of terms evolve.170 Although the scope and function of Article 31 (3) (c) seems to be limited, the wording does not limit the application to situations focused on by the ilc

162 163 164 165

Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 45–46. Namibia case, para 53. Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 45. French discusses the problems with use of such presumptions to determine subjective ­intention in French, “Treaty interpretation and the incorporation of extraneous legal rules,” 297–300. 166 Aegean Sea Continental Shelf (Greece v. Turkey) [1978], icj Rep., 3, para. 77. 167 Shrimp/Turtle case, paras 129–131. 168 See ilc, Report of the International Law Commission on the Work of its Eighteenth ­Session, 222; French, “Treaty interpretation and the incorporation of extraneous legal rules,” 303. 169 See also Wolfrum and Matz, Conflicts in international environmental law. 146. 170 Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict ­between Climate Measures and wto Law, 284–285.

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or to “evolutionary provisions,” to which state practice appears to limit the ­evolutionary interpretation to.171 In the Iron Rhine Arbitration it is stated: In the present case it is not a conceptual or generic term that is in ­issue, but rather new technical developments relating to the operation and ­capacity of the railway. But here, too, it seems that an evolutionary interpretation, which would ensure an application of the treaty that would be effective in terms of its object and purpose, will be preferred to a strict application of the intertemporal rule.172 The Arbitral Tribunal expresses a more general support for evolutionary interpretation, and argues that such an interpretation of treaties also may be adopted when the question at issue does not relate to a conceptual or generic term. It is argued here that the objective and purpose of a treaty may open for dynamic interpretation.173 A broader notion of the usefulness of Article 31 (3) (c), which extends beyond clarifying terms and concepts, is also expressed in legal literature.174 Article 31 (3) (c) is seen as a tool with the potential to create coherence between treaties by harmonising and providing a coordinated reading of the treaties. One reason why tribunals may go beyond a treaty to determine the correct meaning, is according, to French to create coherence and to prevent disintegration into the different sub-disciplines in international law such as environmental law, humanitarian law etc.175 Sands seems to take a similar view, as he argues that there are challenges within international law both with the emergence of new norms “within particular subject-matter areas, as well as the application of norms across the different subject-matter areas of international law” and points to the use of Article 31 (3) (c) as an available tool.176 How far the principle in Article 31 (3) (c) may be applied, beyond situations where a term is unclear and ambiguous or there is a very general term which must be interpreted, is not clear. One may argue, however, that there 171 French points out that the wording itself suggests that the principle may be applied whenever there are “relevant rules …applicable in the relations between the parties,” but that practice would seem to be against such a view, see French, “Treaty interpretation and the incorporation of extraneous legal rules,” 303. 172 Iron Rhine Arbitration, para. 80. See also Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict between Climate Measures and wto Law, 275. 173 See Iron Rhine Arbitration, paras. 80–83. 174 French, “Treaty interpretation and the incorporation of extraneous legal rules,” 303. 175 Ibid., 285. 176 Sands, “Treaty, Custom and International Law”, 60.

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appears to be a growing acceptance for a broader application of the principle. To which international rules the Article refers to, and the weight they carry when interpreting the treaty, are other questions of relevance when determining the application of Article 31 (3) (c), as a principle for resolving the potential conflicts between the cbd and the los Convention. It follows from the provision that one may take into account “any relevant rules on international law.” The term “rule” implies that concepts or principles which are not expressed as rules are not included.177 International customary law, general principles and treaties are comprised by the term.178 One particular question is whether principles established in soft law instruments can be applied when interpreting a treaty in accordance with Article 31 (3) (c). Boyle suggests the possibility that soft law may have an impact when interpreting a treaty.179 The most obvious conlcusion is that principles expressed in soft law instruments do not qualify as a “rule.” On the other hand, principles expressed as soft law may have achieved the status of general principles of law, and thereby be relevant for the interpretation of other rules. The rule outside of the treaty which is interpreted must further be “­relevant” and “applicable in the relations between the parties.” It is reasonable to understand “relevant” with regard to the subject matter; the rule must have some kind of relation to the treaty which is interpreted.180 The term ­applicable r­ efers to the legal character of the rule – it must be legally binding on the states which are part of the dispute.181 Since, most of the states are parties both to the cbd and the los Convention, the obligations of the cbd will normally qualify as a “relevant international rule applicable in the relations between the parties.” The influence of other international rules in the process of interpretation depends upon how much weight they are given. According to the wording such rules shall be “taken into account.” This formulation does not give a clear direction concerning how weighty arguments derived from other rules are when determining the content of a treaty provision. A relevant and applicable rule “shall” be taken into account, which means that, when the meaning of a term is unclear or ambiguous, it is not a choice for the states whether 177 McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 290. 178 See also ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 211–212. 179 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 50–52. 180 Sands, “Treaty, Custom and International Law,” 57. 181 Ibid.

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other international rules should be taken into account. Sands argues that the wording “take into account” is stronger than “take into consideration, but weaker than “apply.”182 A reasonable understanding of “to take into account” is that the other rule shall have a real impact on the interpretation of the treaty provision. One cannot just consider and disregard it. The ilc does not provide any answers to this question but states that this must be solved on a case-bycase basis.183 When trying to establish how far a rule can be used as an argument when interpreting a treaty, the starting point for the application of Article 31 (3) (c) is that interpretation has its clear limits. Interpretation is a process which aims to clarify a vague, unclear or ambiguous text. The principle cannot be invoked to amend another treaty.184 However, the precise limits between an evolutionary interpretation which extends the wording beyond its natural meaning consistent with the intentions of the parties and an interpretation which changes or modifies the treaty is not easy to draw.185 In the Oil Platforms case, which is considered a far-reaching application of the principle in 31 (3) (c), the judges expressed different views upon treaty interpretation in their separate opinions.186 When interpreting the Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran, the icj stated: The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation ­entrusted to the Court by Article xxi, paragraph 2 of the 1955 Treaty.187 The icj then applied rules of general international law concerning the use of force to the actions that were taken by the United States against the Iranian oil platforms and concluded that they were not justified under international 182 Ibid., 58. 183 ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 240. 184 Wolfrum and Matz, Conflicts in international environmental law, 141. 185 As described by French: “There is thus an interpretative continuum from clarification, through modification, possibly right to contradiction, and it will not always be easy to discern where a decision of a tribunal precisely falls.” See French, “Treaty interpretation and the incorporation of extraneous legal rules,” 283. 186 Oil Platforms case, for more on this case, see ilc, Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 228–232; McLachlen, “The Principle of Systemic Integration and Article 31 (3) (c) of the Vienna Convention,” 306–309. 187 Oil Platforms case, para. 41.

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law as acts of selfdefence, and cannot therefore fall within the “correct inter­ pretation, by that provision of the Treaty.”188 Judge Higgins opposed this interpretation and argued in her Separate Opinion: The Court has, however, not interpreted Article xx, paragraph 1 (d), by reference to the rules on treaty interpretation. It has rather invoked the concept of treaty interpretation to displace the applicable law. It has replaced the terms of Article xx, paragraph 1 (d), with those of international law on the use of force and all sight of the text of Article xx, paragraph 1 (d), is lost.189 One may understand Higgins so that interpretation of terms, also by reference to other rules of international law, has its limits, which the Court in her view exceeded. Interpretation should be understood in its literal sense and must be undertaken in accordance with the wording of the treaty and the intentions of the states. One cannot displace the norm that is interpreted through interpretation.190 However, the limitations of this principle and of its capacity to resolve conflicts and create harmony is also emphasised in legal literature. Voigt argues: Treaty interpretation, including interpretation with reference to outside rules, cannot function as a priority or conflict solution to the extent of overall ‘systemic integration’. It can contribute to promoting harmonization and unity of the international legal system. But treaty interpretation cannot not by itself, accomplish this.191 It must therefore be concluded that although it has potential for harmonising treaties, the application of Article 31 (3) (c) has limited potential for resolving conflicts, both because it may be applied only in limited situations, and because it is a principle of interpretation, and, while interpreting provisions, one must remain faithful to the wording and intention. In relation to the potential conflict between the cbd and the los Convention, it follows from this that one may not resolve this conflict through an interpretation of the provisions that provide for the coastal State jurisdiction and 188 Ibid., para. 78. 189 Ibid. (Separate opinion of Judge Higgins), para. 49. 190 Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict between Climate Measures and wto Law, 285. 191 Ibid., 290.

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the legal competence to establish mpas, where navigation is regulated, to such an extent that the rights of navigation are abolished. 17.4.5 Harmonisation of the Treaties by Interpretation of Terms in the los Convention So to what extent is Article 31 (3) (c) open for a dynamic interpretation of the los Convention to resolve the potential conflicts between the obligation to establish effectively managed mpas and the obligation to respect the navigational rights of other States? The principles of treaty interpretation, including Article 31 (3) (c) apply to all treaties. It is argued, however, that due to the global character of the los Convention one should be cautious to interpret the treaty in an evolutionary manner, that is with a view to newer international norms and policy considerations.192 The los Convention can be described as the “constitution of the oceans.” Constitutions are characterised as laws which prevail over others, they are difficult to change or amend, and they are based on comprehensive or broad policy considerations.193 Due to its characteristics as a constitution, its global character and comprehensiveness, as it is dealing with all activities and applying to all maritime zones, it could be argued that the los Convention is less open to influence from other rules or principles of international law than other treaties. It must therefore be questioned whether it is possible to interpret terms in the los Convention by reference to the cbd to harmonise the treaties. Yet the los Convention is not a self-contained regime that consists independently of other legal rules.194 On the contrary, it is adopted implementing agreements that amend or strengthen the regime of the law of the sea, and the text of the treaty itself refers to rules and standards outside the treaty itself, such as the gairs.195 The system of the los Convention with general obligations, which are specified and developed by processes outside of the Convention such as within the imo, show the comprehensive approach of the los Convention. The los Convention aims to create “a legal order for the seas.”196 192 See discussions in Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 43. 193 Ibid. For a discussion about the los Convention as a constitutional regime see Shirley V. Scott, “The los Convention as a Constitutional Regime for the Oceans,” in Stability and Change in the Law of the Sea: The Role of the los Convention, ed. Alex G. Oude Elferink (Leiden: Martinus Nijhoff Publishers, 2005), 9–39. 194 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 43. 195 Ibid. 196 los Convention, Preamble, para. 4.

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With the rules of reference adopted in a number of the provisions in the los Convention, it provides for the application and development of the treaty in conjunction with the development of the law outside of the los Convention. Another example of a provision that refers to other international rules is Article 58 (3), which provides that the States shall, when exercising their rights and duties, comply with “other rules of international law in so far as they are not incompatible with this Part.” Furthermore, the los Convention allows regional cooperation for developing and evolving the treaty through Articles 197 and 237. The existence of these rules implies that the los Convention is a Treaty that exists as a part of a broader legal system. The los Con­vention itself includes provisions that bring in other international rules when interpreting and applying the treaty. This implies that it also should be integrated within the system of international law, through the further development of the law of the sea.197 It seems also to be accepted that the los Convention is a dynamic treaty that may adapt to legal development and to new environmental concerns, such as the protection of biological diversity and sustainable use. For instance, it is suggested on the basis of the Southern Bluefin Tuna cases that the precautionary principle has modified the interpretation of the obligations of conservation of the los Convention.198 The precautionary principle is not however, explicitly mentioned by the itlos, but it is stated that: the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent s­ erious harm to the stock of southern bluefin tuna.199 It is natural to understand itlos to require a precautionary approach to the conservation of the southern bluefin tuna, which suggests that the obligations of conservation are influenced by a general principle of law that is developed outside of the los Convention.200 The principle of interpretation in Article 31 (3) (c) appears to be limited to the interpretation of ambiguous, general or open-textured provisions, which 197 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 43. 198 Ibid., 51; see also Birnie, Boyle and Redgewell, “International Law and the Environment,” 160. 199 See Southern Bluefin Tuna cases, para. 77. See also para. 79 where it is referred to scientific uncertainty with regard to the conservation of the southern bluefin tuna. 200 It may also be argued that this approach already follows from the provisions of the los Convention, see Birnie, Boyle and Redgwell, International Law and the Environment, 160.

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are indented to be evolutionary. It does not therefore, provide for a general ­application of the los Convention in an evolutionary or dynamic way. However, there are terms in the los Convention that can be interpreted in light of cbd and may broaden the competence of the coastal States to adopt relevant and necessary restrictions within mpas. Examples of such terms are “conservation of living resources” and “preservation of the environment” adopted in Article 21 (1), where the prescriptive jurisdiction of the coastal States to regulate the innocent passage is regulated. It is therefore a potential for harmonising the treaties, through the application of Article 31 (3) (c). However, there are not many such terms in provisions that apply in the eez. Here, the jurisdictional competence is determined through the reference to gairs. One may argue, however, that a lenient interpretation of the term gairs must be adopted in light of the obligation to protect habitats and ecosystems as mpas. In relation to Article 56 and a possible legal basis to regulate navigation on the basis of the sovereign rights over living resources, the obligations in the cbd may be relevant and significant. The limits of the coastal States jurisdiction to adopt regulations on shipping within mpas are examined in the next chapter. However, although evolutionary interpretation of the terms in the los Convention seems to be permissible, Boyle argues that “the limits of evolutionary interpretation recognized by international tribunals are particularly pertinent in this context.”201 The reason for this is according to Boyle that, “if the integrity and the global character of the Convention, are to be preserved, courts must necessarily approach interpretation with reference to Article 31 (3) (c) with some caution.”202 Still, limitations of interpretation by rules outside the treaty follow from the nature of the process of interpretation itself, and do not apply in particular when interpreting this particular Convention. Conclusively, ­evolutionary interpretation is possible when the terms in the los Convention are broad, unclear or ambiguous or where the intention of the terms was ­intended to be evolutionary. 17.5 Conclusions Article 31 (3) (c) may serve a role for integrating the cbd and the los Convention through interpretation. When interpreting the evolutionary provisions of the los Convention, one may arrive at solutions that provide the coastal States with wider jurisdiction, which may accommodate the establishment of mpas 201 Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 46. 202 Ibid.

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that may achieve their objectives of in situ conservation. Within the acceptable limits of interpretation, such a broadening of the jurisdiction is justified by an interpretation of the Treaty in light of the development of the law since the time of its conclusion. How far this will be successful depends on the willingness of the states parties to harmonise the reading of the treaties. Interpretation of treaties has its limits, however, and the potential conflict between the obligation to establish mpas and the rights of navigation may not be solved on the basis of interpretation alone.

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Regulation of Navigation in mpas 18.1

Introduction – Legal Questions and Aims of the Discussions

Shipping may have severe environmental consequences for the sensitive environment in the marine Arctic. A main finding in the amsa report to the Arctic Council is that the melting of the sea ice provides greater marine access and longer periods of navigation.1 Access to natural resources is the main driver for increased shipping in the Arctic region.2 The amsa report to the Arctic Council reviewed the environmental consequences of Arctic shipping.3 A finding was that the most serious threat from shipping is the release of oil from accidental or illegal discharges.4 In the Arctic, oil pollution may have more severe consequences than in other areas. One reason for this is that the infrastructure is poorly developed, which will make it difficult to respond to oil spills.5 Also, the amsa report recognized that the Arctic marine environment is sensitive to discharges of substances from operational pollution of the vessels.6 Shipping may also have other impacts on the environment and the marine biological diversity such as physical damage on habitats and by introducing alien species through the ballast water and noise pollution.7 Based on the findings of the amsa, several recommendations were developed to provide guidance for the future action of Arctic Council and the Arctic states and others.8 These recommendations include the support of updating and mandatory application of the imo guidelines for Arctic shipping. amsa also recommended that the Arctic states identify areas of ecologically (and cultural) significance and explore the need for internationally designated areas to protect the Arctic Ocean from the environmental impacts of shipping. Some areas that are identified or designated as mpas could be sensitive to the environmental impacts of shipping activities. The effective protection of 1 amsa Report, 4. 2 Ibid., 5. 3 Ibid., 134–153. 4 Ibid., 5. 5 Ibid. 6 Ibid., 138–141. 7 Ibid., 145–150. 8 Ibid., 6–7.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_019

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such areas could therefore require the prohibition or restriction of shipping within the area.9 Other areas protected as mpas are not yet particularly sensitive to shipping, but restrictions or prohibitions on navigation could, however, be necessary to maintain them as reference areas with minimal influence from human activities. Save for the situations that fall within the exception clause in cbd Article 22 (1), the coastal States must respect the right of innocent passage in the territorial sea and the freedom of navigation in the eez, when implementing the duties to establish mpas. The overall question to be addressed in this chapter is what legal opportunities the coastal States have to ensure protection of the environment and ecosystems against the impacts of Arctic shipping. The focus of this chapter is to examine the possibility of regulating navigation within mpas in maritime zones of the coastal States. It may, however, also be adopted mpas on the high seas, where regulatory shipping measures are adopted.10 As coastal States do not have the jurisdiction to regulate transArctic shipping across the high seas of the Arctic, the vessels operating here are only subject to international rules and standards adopted by the imo and applied by the flag State. However, since natural resources development and regional trade are the main drivers for the increase in Arctic shipping, ship traffic through 2020 will be overwhelmingly destinational, rather than transArtic.11 The highest density of traffic is also within the maritime zones of the coastal States.12 Most of the Arctic shipping follows the routes of the Northwest Passage and the Northern Sea Route. But with the further melting of ice, the Central Arctic Ocean Route may also be an option for the vessels.13 The purpose of this chapter is thus to define the limits of the prescriptive jurisdiction of the coastal States to adopt regulations that prohibit or regulate shipping activities within the mpas. The analyses includes a discussions of how far the coastal States may go in adopting unilateral measures, and for which measures

9 Ibid. 10 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 87. 11 amsa Report, 120–121. 12 dnv, Specially Designated Marine Areas in the Arctic High Seas, 11. 13 Erik J. Molenaar, “Status and reform of the Arctic Shipping Law,” in Arctic Marine Governance: oppurtunities for Transatlantic Cooperation, eds. Elizabeth Tedsen, Sandra Cavalieri and R. Andreas Kraemer (Berlin: Springer-Verlag Berlin Heidelberg, 2014), 130. The extention of the coastal State jurisdiction in the North West Passage and the Northern Sea Route is, however, contested, see Michael Byers, International Law and the Arctic (New York: Cambridge University Press, 2013) 128–169.

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they have to submit proposals to imo for approval before implementing them as means to protect the mpas. The questions regarding the right of the coastal States to establish mpas that include regulations of shipping activities reflect a historical debate about the rights and necessities of the coastal States to protect their nearby marine areas and resources, and the rights of the flag States to enjoy the freedom of navigation.14 However, the questions raised here are more than questions about the traditional relationship between the coastal and flag States. By establishing mpas, the coastal States are not only acting out of self-interest. The coastal States are, through the adoption of mpas, complying with international obligations to conserve marine biodiversity. As conservation of biological diversity is considered a “common concern,” in the cbd, the coastal States are also serving the interests of the international community when they establish mpas. Compared to the historical debate about the balance of interests between the coastal States and flag States, there has been a shift of interests, where the conservation of marine biodiversity is important for all states and the international community. The los Convention is developing and evolving with international law outside the Convention. Hence, environmental obligations to protect marine biodiversity by mpas, as well as environmental principles such as the precautionary principle, may influence the interpretation of the scope of the coastal State jurisdiction.15 18.2

The Relevance of the Discussion in Light of the Legal Development

In spite of the developments in international requirements to establish mpas, in particular the obligation in cbd Article 8 (a), this has not lead to the establishment of mpas seriously challenging navigational rights.16 Most of the mpas established in Norwegian waters are established in the territorial sea to protect and conserve the marine life at the sea bottoms, and include re­strictions on the use of trawls and other activities that cause damage here.17 14 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 2–3. 15 See Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 56. 16 See de Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 259–262 and also Ringbom, The eu Maritime Safety Policy and International Law, 471. 17 Information of the mpas in Norwegian waters is available at “Offisiell kunngjøringsside for marin verneplan,” Norwegian Environment Agency, http://www.miljodirektoratet .no/no/Tema/Verneomrader/Marin-verneplan/Offisiell-kunngjoringsside-for-marin -­verneplan (accessed October 2015).

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An exception is the ban on use and carriage of heavy fuel oil that applies within the mpas established in the territorial sea of the Svalbard archipelago where Norway, on the basis of the Svalbard Treaty,18 enjoys “full and absolute sovereignty.”19 With increasing knowledge about the marine environment and particular valuable or vulnerable areas, the interactions between species, habitats, ecosystems and physical impacts of the environment, together with increasing awareness of environmental impacts of shipping, it is likely that mpas where shipping activities are restricted will be suggested. Incidents causing accidental pollution, such as the grounding of the tanker “Full City” outside the Langesund in Norway causing oil contamination in 37 bird reserves and protected areas, may activate regulations of shipping within or close to mpas.20 Another such incident may be the May 2009 incident in which the Russian cargo vessel Petrozavodsk grounded on the cliffs of the Bear Island in the Barents Sea, which is protected as a nature reserve extending out to 12 nautical miles.21 The fact that small areas of the oceans worldwide are protected as mpas and that few mpas are established where shipping activities are also prohibited or restricted may have different explanations. One likely explanation may be a fear of infringing the traditional navigational rights by regulating shipping activities. The writer Spadi notes that, for this reason, states may be reluctant or unwilling to regulate the navigation for environmental purposes within mpas.22 Similarly, Shine and de Klemm point out that there are strong objections to regulating or prohibiting navigation.23 Nevertheless, the legal duty to establish mpas and protect and conserve biological diversity in cbd, may, as shown above, also require the regulation

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Treaty Concerning the Archipelago of Spitsbergen, 1920, 2 lnts 7 (The Svalbard Treaty). Regulations on large nature conservation areas and bird reserves in Svalbard as adopted in 1973, Section 4. The regulations implement the Svalbard Environmental Protection Act, Act of 15 June 2001, No. 79, submitted by the Ministry of Climate and Environment, a­ vailable at https://www.regjeringen.no/en/dokumenter/regulation-nature- ­consrevation-areas-bird -reserves-svalbard/id2355095/ (accessed October 2015). See the Norwegian Coastal Administration, www.kystverket.no, for updated information of the incident and its consequences for the marine environment. See the Norwegian Coastal Administration, http://www.kystverket.no/Beredskap/Arkiv -over-aksjoner/MV-PETROZAVODSK/ (accessed February 2016). Fabio Spadi, “Navigation in Marine Protected Areas: National and International Law,” Ocean Development & International Law, 31:3 (2000), 286–289. De Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 260.

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of shipping.24 Furthermore, Agenda 21, the action plan of the United Nations, encourages states to undertake measures to maintain biological diversity including by establishment and management of protected areas.25 States are also encouraged to act individually and within imo to assess “the need for additional measures to address degradation of the marine environment.”26 To do this, Agenda 21 calls on states to assess the state of pollution caused by ships in particularly sensitive areas identified by imo and taking actions to implement applicable measures, where necessary, within such areas to ensure compliance with generally accepted international regulations.27 Moreover, states should take actions to respect areas designated within their eez “consistent with international law, in order to protect and preserve rare or fragile ecosystems, such as coral reefs or mangroves.”28 The reference in Agenda 21 to particularly sensitive areas is reasonable to understand as a reference to the concept of pssa within imo, which provides for protective measures on the basis of imo instruments such as the marpol Special Areas and the los C ­ onvention Article 211 (6).29 Agenda 21 clearly recognises the importance of protecting the marine environment, sensitive areas, and marine ­living resources, and encourages states to use and develop appropriate measures through imo. Agenda 21 may, although it is not legally binding, play a continuous role in encouraging the coastal States to use their legal authority to protect sensitive areas from the impacts of shipping. It is reasonable to expect that the obligation of Annex v of the ospar ­Convention, as well as the ongoing work under the ospar to establish a network of mpas, will activate the establishment of mpas in the Arctic region of the ospar Maritime area. So far, there are no mpas on the high seas in this region. But an mpa on the high seas of the Arctic Ocean has been proposed and may be adopted in the near future.30 The ospar Convention gives effect 24 See cbd cop Decision VII/5, Annex 1, programme element 3, operational objective 3.3 (b); See also ospar Commission, “Guidelines for the Management of Marine Protected Areas in the ospar Maritime Area,” (2003), para. 5, where shipping is mentioned as an activity that should be addressed. 25 Agenda 21, para. 17.7. 26 Ibid., para. 17.30. 27 Ibid., para. 17.30 (a) (iv). 28 Ibid., para. 17.30. (a). (v). 29 André Nollkaemper, “Agenda 21 and prevention of sea-based marine pollution: A spurious relationship?” Marine Policy, 17 (1993): 554. 30 See Section 15.6.

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to ­environmental obligations and principles developed after the los Convention, such as the precautionary principle, sustainable development, conservation of marine biodiversity, and the ecosystem approach.31 Even though the ospar Convention does not cover shipping, one may argue that the precautionary principle, which is mandatory under the Convention, requires that the Contracting ­Parties utilize the possibilities within the los Convention and imo instruments to regulate shipping in order to achieve the objective and comply with the general obligation of the ospar Convention and Annex v. Article 4 (2) in Annex v of the ospar Convention also requires the Contracting Parties to cooperate on the regional implementation of imo instruments.32 As shown above, the Arctic region is the region within the ospar maritime area with the lowest coverage of mpas. There may be multiple explanations for this. Some states argue that the threats to the Arctic marine environment are not best met through the use of mpas.33 Another explanation may be that the Arctic coastal States that are Contracting Parties to the ospar do not want to overlap with the work under the Arctic Council. Efforts made under the Arctic Council, both relating to protecting sensitive areas from the impacts of Arctic shipping and the development of the pan-Arctic Framework for mpas could encourage the Arctic coastal States to establish mpas and cooperate with each other and imo in adopting regulations on shipping to ensure adequate protection of the environment and biological diversity.34 Therefore, although the implementation of the obligations to establish mpas, so far does not challenge the regime of navigation either in the maritime areas of the Arctic or other geographical areas, it is reasonable to assume that mpas that also include regulations of shipping will be adopted in the coming years. New environmental principles, concepts, and obligations include requirements that the states address all activities in an integrated manner. Increased shipping is a consequence of climate change in the Arctic region, and the increase of this human activity adds pressure to the Arctic marine ecosystems.35 This is likely to lead to a practice where the states establish mpas that also address shipping activities in the marine Arctic. It is a therefore increasingly likely that the 31

32 33 34 35

Boyle points out the role of the regional agreements in giving effect to and meeting the goals of sustainability and integrated ecosystem management expressed in Agenda 21 and in wssd, see Boyle, “Further Development of the 1982 Convention on the Law of the Sea,” 53. Molenaar, “Status and Reform of International Arctic Shipping Law,”148. ospar Commission, Meeting of the Biodiversity Committee (bdc) (2015), para. 5.24. See discussions above in Section 16.3. Arne Riedel, “The Arctic Marine Environment,” in Arctic Marine Governance: Opportunities for Transatlantic Cooperation, eds. Elizabeth Tedsen, Sandra Cavalieri and R. Andreas Kraemer (Berlin: Springer-Verlag Berlin Heidelberg, 2014), 35–37.

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coastal States will apply their legal competence to address shipping to ­protect the marine environment and the marine biodiversity against pollution and the physical impacts of shipping, both in the Arctic region and other geographical regions. An analysis of the limits of the prescriptive jurisdiction is thus both relevant and significant. 18.3

The International Legal Regime of Shipping in the Arctic

18.3.1 General Shipping in the marine Arctic is subject to international regulations, which have been mostly adopted by the imo. The aim of this section is to provide an overview of the international legal framework for Arctic shipping as a basis for the main questions addressed in this chapter concerning the possiblities of regulating shipping activities within mpas.36 The los Convention applies globally without any geographical limitations and therefore also applies to the marine Arctic. There is no special regime for the Arctic, and the coastal States may exercise their sovereignty, sovereign rights, and jurisdiction in their respective maritime zones within the Arctic Oceans and its adjacent seas.37 Similary, all States enjoy navigational rights within the martitime zones and the high seas.38 Whereas the main obligations of environmental protection and jurisdictional rights are established by the los Convention, the technical and detailed regulations of the maritime traffic and marine environmental protection are developed and adopted by other international bodies and in other instruments outside the Convention. Such technical and detailed regulations are implemented by the rules of reference of the los Convention.39 The prescriptive jurisdiction of the coastal States is therefore connected to rules and standards developed and adopted in international instruments adopted by other organizations and bodies, in particular

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For more on the international regime of Arctic shipping see Aldo Chircop, “The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?” The International Journal of Marine and Coastal Law 24:2 (2009): 355–380; Molenaar, “Status and Reform of International Shipping Law,” 127–154. Tore Henriksen, “The future of navigation in ice-covered areas: a view from the Arctic,” Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea – legal implications and liabilities, eds. Richard Cadell and Rhidian Thomas (Oxon: Lawtext Publishing Limited, 2013), 9. los Convention Articles 17, 58 and 87. This includes Articles 21 (2), 22 (3) and 211(1), (2), (5) and (6).

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imo, through the notion of “gairs.”40 Similarly, flag States, as prescribed in the los Convention, Article 94 and 211 (2), are required to adopt regulations on vessel source pollution that, at a minimum, has the same level as “garis.” In this way, the los Convention incorporates new regulations, detailed and technical rules and standards that adapt to technological developments, knowledge about the marine environment, as well as legal developments within the international environmental law. Hence, the role of imo and its relationship to the los Convention, as well as the role of other regional bodies, in particular the Arctic Council, in developing and facilitating the development of international regulations for Arctic shipping, is also addressed in this section. 18.3.2 The Relationship between imo and the LOS Convention The un established the imo as a specialized agency under the un with the adoption of the imo Convention in 1948. The imo Convention entered into force in 1958 and the organisation met for the first time the next year. imo is a global organisation with 171 member states.41 The legal basis or foundation for the activity of imo is the imo Convention. The purpose of imo is set out in the imo Convention Article 1, which states: To provide machinery for co-operation among governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest possible standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships… To achieve these objectives, imo has developed numerous conventions and non-binding soft law instruments relating to shipping, navigation, and marine pollution from vessels. Besides adopting new instruments, imo also plays an active role in amending conventions and in providing guidelines and recommendations to governments with regard to the implementation of particular conventions or instruments.42 imo has thus played an important role in developing the law of the sea. Churchill and Lowe observe that imo is probably the organisation that has had most substantial effect upon the law of the sea.43 40 Molenaar, “Status and Reform of International Shipping Law,” 134. 41 imo “Member States, igos and ngos” http://www.imo.org/en/About/Membership, (accessed September 2015). 42 Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” 32. 43 Churchill and Lowe, The Law of the Sea, 23.

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The relationship between imo and the los Convention is not defined in either the los Convention or the imo Convention. There is only one explicit reference to imo in the los Convention, which appears in Article 2 of Annex viii. It may therefore be questioned whether imo is the only “competent ­international organisation” referred to in the los Convention. Most of the provisions on shipping in the los Convention such as Article 22 (3) and 211 (1), (2) and (5), refer to “the” competent international organisation. The reference to the competent international organisation in the singular thus implies that imo is the exclusive competent organisation with regard to the adoption of regulations to prevent and control marine pollution from shipping. This view is also widely accepted in legal theory and stated by the Secretariat of imo in the study of the implications of the los Convention for imo.44 In comparison, the provisions on dumping and land-based sources in Articles 207 (4) and 210 (4) refer to competent international organizations in a plural form.45 Several provisions in the los Convention refer to operational regulations developed by imo to which the State shall “implement,” “conform to” and “give effect.”46 Article 211 (1) of the los Convention requires States to act through “the competent international organisation” and establish international rules and standards to prevent or control pollution of the marine environment. ­Article 211 (1) explicitly states that the States shall promote the adoption of “routeing systems designed to minimize the threat of accidents which might cause pollution of the marine environment.” The los Convention thus gives the imo responsibility to develop such regulations. As the los Convention also includes environmental obligations to protect the marine environment, in Articles such as 192 and 194, which apply to all States in all zones, it also influences the ­regulatory role of imo in developing new regulations and standards. That the los Convention has influenced imo and its approach to the 44

Rosenne and Yankov, eds. United Nations Convention on the Law of the Sea 1982: A Commentary, Volume iv, 201; Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” 35; Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 55. imo Secretariat, “Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization,” 19 January 2012, LEG/MISC.7, 7. 45 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 27, see note 102. 46 For an overview of these provisions see imo Secretariat, Implications of the United ­Nations Convention on the Law of the Sea for the International Maritime Organization, 8–10.

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r­ egulation of vessel source pollution is also acknowledged in legal literature. Birnie, for instance, observes that the los Convention is a “significant instrument affecting the regulatory role of imo and its function in international society” as it has “set new objectives and laid new responsibilities on imo.”47 Conventions adopted by imo that relate to the protection of the marine environment must, according to Article 237, be adopted “in the furtherance of the general principles” of the los Convention. The practice within imo also reflects the understanding that regulations adopted by imo must be consistent with the los Convention. It is, for instance, expressed in solas V/10 (9) that routeing measures must be consistent with the los Convention. Similarly, the marpol Convention stipulates that the Convention is not prejudicing the jurisdiction of states under the law of the sea.48 Another example from practice is the discussion of the conformity of proposed measures to the navigational rights of the los Convention in relation to the proposal of the Western Europe pssa.49 In recent years, imo has been influenced by the development of the international marine environmental law when developing regulations on safety of the navigation and prevention of marine pollution. Agenda 21 has had an impact as it encourages states to cooperate and act through imo to prevent the degradation of the marine environment. Agenda 21 also encourages imo to adopt appropriate measures.50 Moreover, the obligation to cooperate in cbd Article 5 may also include an obligation to cooperate through imo to develop appropriate measures to protect marine biodiversity from shipping activities. imo is, in this way, influenced by international environmental obligations, concepts, and principles. Examples of this influence is the development and adoption of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (the Ballast Water Convention)51 and the

47

48 49 50

51

Patricia Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” in Competing Norms in the Law of Marine Environmental Protection, ed. Henrik Ringbom (London: Kluwer Law International, 1997), 34. marpol Convention, Article 9 (2). imo Legal Committee, Report of the Legal Committe on the Work of its eighty-seventh session, 23 October 2003, leg 87/17, para. 196–197. Agenda 21 para. 17.30. For more on Agenda 21 and prevention of marine pollution see Nollkaemper, “Agenda 21 and prevention of sea-based marine pollution: A spurios relationship,” 537–556. International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004, imo Doc. BWM/CONF/36.

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development of the concept of pssa, which may be seen as reflections of the obligation to conserve marine biodiversity.52 The links between pssa and cbd are addressed in literature.53 Gjerde and Freestone argue that the pssa may serve as a mechanism for implementing obligations under cbd.54 Birnie also argues that the environmental obligations of the los Convention and Agenda 21 will influence the imo practice as the organisation starts to apply and interpret environmental principles when developing international regulations.55 In fact, de La Fayette refers to imo as the “unsung hero” of our time due to its work on environmental protection.56 Henriksen examines whether developments in international environmental law such as conservation of marine biodiversity have been introduced to imo legislation.57 According to his analyses of practices under solas, marpol and the pssa Guidelines, the conservation of marine biodiversity is a relevant concern when regulating shipping. Still, Henriksen concludes that the imo is “reluctant to let ecological and other biodiversity values dictate mandatory routeing measures.”58 Hence, the los Convention and the imo influence each other. The los Convention requires the States to act through imo to develop international regulations, establishes environmental obligations, and lays down the jurisdictional balance, which provides the limits for the regulations adopted by imo. At the same time the law of the sea is elaborated through the regulatory regime under imo. imo plays an important role in developing international norms that in turn incorporate newer environmental concepts and principles to the los Convention through the rules of reference. In this way imo may 52

53

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55 56

57 58

About the relationship between the concept of pssa and the cbd, see Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 107–109. See Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 107–109. See also Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 331–346. Kristina Gjerde and David Freestone, “Introduction: Particularly Sensitive Sea A ­ reas-An Important Environmental Concept at a Turning-Point,” The International Journal of ­Marine and Coastal Law 9:4 (1994): 462. See Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” 41. Louise de La Fayette, “The Marine Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law,” The International Journal of marine and Coastal Law 16:2 (2001): 159. Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 331–346. Ibid., 346.

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elaborate on the los Convention by introducing norms that qualify as gairs, and hereby incorporate environmental principles such as the precautionary ­principle and the ecosystem approach, which are not explicitly reflected in the los Convention itself.59 18.3.3 imo Instruments 18.3.3.1 General As the jurisdictional rights and duties of the states are elaborated by technical and navigational rules and standards developed and adopted by imo, certain knowledge about the relevant imo instruments is necessary to determine the scope of the jurisdiction to regulate navigation within mpas. The aim of this subsection is, therefore, to outline the most important conventions that include measures that may be adopted to protect an ecosystem or a habitat within an mpa against accidental pollution, operational pollution, or other impacts of shipping. The imo has developed and adopted numerous regulations to achieve its objective of maritime safety and environmental protection, including a broad range of protective measures such as discharge standards, cdem standards, or routeing measures, which may be adopted by the coastal States to protect the mpas.60 The most important imo instruments that include measures of practical significance for mpas are the marpol Convention, the solas Convention, and the C ­ onvention on the International Regulations for Preventing Collisions at Sea (colreg Convention).61 These international conventions were adopted to regulate shipping, have a global scope, and apply to the marine Arctic as well as other marine areas.62 The imo has also adopted the Ballast Water Convention with accompanying guidelines, which aims at preventing and minimising the risks to the environment arising from the transfer of harmful aquatic organisms and pathogens by enacting requirements to control and mange ships’ ballast water management and sediments. This Convention has not, however, entered into force, and has not been dealt with any further.63 Before the adoption of the Polar Code by imo in 2015, no mandatory rules 59 60 61 62 63

See further discussions of the concept of gairs below in Subsection 18.7.2. An overivew of the different standards is provided in Molenaar, “Status and Reform of International Arctic Shipping Law,” 141–143. Convention on the International Regulations for Preventing Collisions at Sea, 1972, 1050 unts 16 (colreg Convention). As pointed out by Henriksen, there “is no sui generies regime for the Arctic,” see Henriksen,­ “The future of naviagation in ice-covered areas: a view from the Arctic,” 9. For more on the ballast water convention and its status, see “bmw Convention and Guidelines,” imo, http://www.imo.org/en/OurWork/Environment/BallastWaterManagement/ Pages/BWMConventionandGuidelines.aspx (accessed September 2015).

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addressed the particular challenges related to Arctic shipping.64 The voluntary Polar Shipping Guidelines included more specific cdem standards and operational standards for shipping were applicable in the Arctic and Antarctica.65 Even though the general imo Conventions apply to Arctic shipping, and imo has approved routeing measures for environmental purposes, only a few routeing measures have been adopted in the marine Arctic to ensure protection and conservation of the marine environment and biological diversity from the impacts of s­ hipping.66 In the northern part of the Norwegian eez, a traffic separation scheme consisting of shorter mandatory and recommended routes was adopted from Vardø to Røst, to protect the areas that are sensitive to oil spills from vessels.67 Routeing measures may also be adopted to address the risks from shipping posed to marine life such as noise and collisions between vessels and marine mammals.68 For instance, the mammals in the Bering Strait are physically restricted to a small corridor; with the increasing traffic they are exposed to increased risks for collisions with vessels.69 There is, however, no comprehensive mandatory or voluntary routeing system in the Arctic.70 The imo instruments that are relevant for protection of environmental sensitive or valuable areas, such as mpas from environmental impacts of shipping, consist both of conventions and soft law instruments. The soft law instruments adopted by imo are resolutions, which consist both of guidelines and decisions.71 Some resolutions are adopted by a committee as non-binding imo resolutions and later incorporated in one of the conventions and made legally binding. imo also develops and adopts regulations that are guiding and 64

Chircop, “The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?” 362. 65 The Arctic Shipping Guidelines were adopted in 2002, but were revised and amended in 2009, imo Assembly, Guidelines for Ships Operating in Polar Waters, 2 December 2009, imo Asembly Resolution A.1024 (26). 66 See Chircop, “The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?” 362–363. 67 imo Sub-Committee on Safety of Navigation, Report to the Maritime Safety Committee, 15 August 2006, nav 52/18. 68 See amsa Report, 146–149. 69 See ibid., 147. For more on the potential use of routeing measures to protect whales, see Ainsly S. Allen, “The development of ships’ routeing measures in the Berng Strait: Lessons learned from the North Atlantic right whale to protect local whale populations,” Marine Policy 50 (2014): 215–226. 70 Erik J. Molenaar, “Arctic Marine Shipping: Overivew of the International Legal Framework, Gaps and Options,” Journal of Transnational Law & Policy 18:2 (2009): 313. 71 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 150.

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­elaborating on the imo Conventions. The solas Convention, for instance, refers to the General Provisions on Ships’ Routeing (gpsr).72 The legal status of certain imo instruments may, therefore, be unclear and the relationship between the binding and non-binding regulations adopted by imo is somewhat blurred.73 18.3.3.2 Maritime Safety a) The solas Convention The solas Convention of 1974, along with the corresponding protocols of 1978 and 1988, are considered the most important international instrument on the safety of shipping.74 The Convention was first adopted in 1914 as a response to the Titanic disaster and amended many times after that.75 The main objective of the solas Convention is expressed in Article 1 to specify minimum standards for the construction, equipment, and operation of ships that are compatible with their safety. Flag States are responsible for ensuring that ships under their respective flag comply with its requirements. The solas Convention, Chapters ii–iv, include minimum requirements for the construction, equipment, and operation of ships.76 Chapter v addresses ships’ routeing measures, ship reporting systems, and vessel traffic services.77 In relation to questions regarding the possibility of adopting regulations to protect mpas from the impacts of shipping, Chapter v on safety of navigation is of particular importance. The adoption of the new Chapter v is one of the 72

imo, General Provisions on Ships’ Routeing, 20 November 1985, imo Assembly Resolution A.572 (14), as amended. (Hereafter gpsr) The routeing measures are incorporated in imo, Ships’ Routeing, 2013 Edition (London: International Maritime Organization, 2013). New routeing measures may for instance be adopted as part of the gpsr and be adopted as mandatory routeing measures on the basis of solas V/10. 73 Henrik Ringbom, “Introduction,” in Competing Norms in the Law of Marine Environmental Protection, ed. Henrik Ringbom (London: Kluwer Law International, 1997), 4. See also Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” 31–57. 74 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 210. 75 For the history of the solas Convention, see imo, “solas 1974: Brief History – List of amendments to date and where to find them,” http://www.imo.org/en/Knowledge­Centre/ ReferencesAndArchives/HistoryofSOLAS/Documents/SOLAS%201974%20-%20Brief %20History%20-%20List%20of%20amendments%20to%20date%20and%20how%20 to%20find%20them.html (accessed September 2015). 76 For more on the rules and standards see, Ingvild U. Jakobsen and Tore Henriksen, “Norway and Arctic Marine Shipping,” fram Centre Report Series No. 2 (2015), 15. 77 The relevant regulations are 10, 11 and 12.

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amendments of solas that took place during the 1990s.78 solas regulation V/10 provides for the establishing of ship routeing measures. The Contracting Parties may apply for the mandatory routeing system in their maritime zones and on the high seas. The routeing measures include traffic-separation schemes, two-way routes, recommended tracks, deep-water routes, precautionary areas, and areas to be avoided.79 The gpsr adopted by the imo specifies the types of measures that may be adopted, as well as procedures for establishing the routeing systems.80 The amendments of the solas Convention, with the adoption of the new Chapter v, developed the los Convention as the los Convention contains few references to navigational measures. It is argued that the development of mandatory routeing systems as a part of the solas Convention, and by providing for the application of such measures beyond the territorial sea, the jurisdictional regime of the los Convention, is also elaborated.81 Ringbom notes, for instance, that these amendments adopted by imo have influenced the ­jurisdictional balance between maritime and coastal States.82 b) The colreg Convention The colreg Convention was adopted in 1972 and entered into force in 1977. The Convention includes both operational and equipment regulations. The traffic separation schemes in the colreg Convention are especially important. This is a frequently applied routeing measure, which is a relevant measure for avoiding ship collisions.83 Traffic separation schemes are dealt with in colreg, rule 1 (d) and 10, and may be mandatory for its parties. In this way, the ­c olreg ­Convention supplements the navigational measures set out in the solas ­Convention, Part v. 78

For an overview of the solas amendments see imo, www.imo.org. Chapter v was revised in 2000, and the amendments entered into force on 1 July 2002. See also Ringbom, The eu Maritime Safety Policy and International Law, 441, note 226. 79 gpsr, para. 2.1. 80 Ibid., para. 2.1. and 3. 81 The los Convention addresses routeing measures specifically in Article 21 (1) (a) and in 22. solas V/10 does not distinguish between the adoption of such measures in the territorial sea or in the other maritime zones. 82 Ringbom, The eu Maritime Safety Policy and International Law, 443, and 454–455, see also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 382. Molenaar also emphasises on 526–529, the change of role for imo in this regard, moving from standard setting to an approval role. 83 See Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 191.

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18.3.3.3 Protection of the Marine Environment – The marpol Convention The marpol Convention was adopted in 1973 in the wake of the Torrey Canyon accident in 1967, and modified in 1978 by a protocol.84 In the Preamble, the Parties to the convention expressed the “need to preserve the human environment in general and the marine environment in particular” and the marpol Convention was adopted with ambitious objectives such as to achieve “the complete elimination of intentional pollution of the marine environment” both from oil and from other harmful substances, as well as achieve “the minimization of accidental discharge of such substances.”85 Article 1 imposes an obligation on the Parties to the Convention to give effect to the provisions of the Convention and its Annexes to achieve its objective “to prevent the pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention.” The marpol Convention includes both standards to prevent operational and accidental discharges from oil and other pollutants. The main focus of marpol is on operational discharges and the term “discharge” is broadly defined in Article 2 (3) so that it includes “any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying.” Thus, marpol deals with almost all types of pollution from ships except dumping. In this regard, Article 3 (2) (b) (i) refers to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, the London Convention.86 The main body of marpol includes general obligations such as enforcement and inspection, whereas the Annexes include technical regulations on oil and other substances in each annex. Annex i and Annex ii are, under Article 14 (1) binding on all Parties.87 Whereas Annex i and ii are mandatory for the states that are Parties to marpol, the other Annexes iii, iv, v and vi are optional. Each of the Annexes deals with discharge standards from different

84 The marpol Convention replaces the 1954 International Convention for the Prevention of Pollution of the Sea by oil, 327 unts 3 (The 1954 London Convention), for more on marpol and the amendments to the Convention see imo, http://www.imo.org/ en/About/Conventions/ListOfConventions/Pages/International-Convention-for-the -­Prevention-of-Pollution-from-Ships-(MARPOL).aspx (accessed September 2015). 85 marpol Convention, Preamble. 86 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other ­Matter, 1972, 1046 unts 120 (London Convention). 87 It is an agreed opinion that these Annexes qualify as gairs, see Birnie, Boyle and Redgwell, International Law and the Environment, 404.

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substances.88 Four of the Annexes, numbers i, ii, iv and v, dealing respectively with oil, noxious liquid substances, sewage and garbage, include regulations on Special Areas, which means that these areas have stricter measures for controlling pollution than elsewhere.89 Annex i includes regulations for the prevention of pollution of oil from discharges, equipment, construction, special areas, and reception facilities. Standards for the permissible amount of oil discharges are included in Regulation 9 of Annex 1. Furthermore, Annex i includes r­egulations for the designations of Special Areas in which higher standards may be required or prohibited, see regulation 10.90 The Annex also includes regulations of port reception in Regulations from 10 to 12. Regulations from 13 to 17 include cdem standards for oil tankers to prevent accidental oil pollution. Examples here include segregated ballast tankers and equipment for the retention of oil on board.91 Amendments to Annex i requiring double hulls for certain oil tankers were initiated by imo in 1993 as a response to major oil spills from accidents. New amendments to Annex 1 requiring double hulls for carrying heavy crude oil etc. entered into force in 2007.92 The substantive provisions of the Special Areas are set forth in provisions in Annex i, ii, iv and v and may be established on the basis of the criteria stipulated in the Special Area Guidelines adopted by imo. The marpol Special Areas, criteria for selection of such areas, and discharge standards that may be adopted within these areas, are discussed below in Subsection 19.5. 18.3.3.4 The Polar Code The imo and its member states acknowledged that it was necessary to regulate shipping in the Arctic and Antarctica to protect the sensitive environment in

88 The marpol regulations are assessed in details in Churchill and Lowe, The Law of the Sea, 339–340; Birnie, Boyle and Redgwell, International Law and the Environment, 403–413 and Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 96–104. 89 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 79–80. 90 Guidelines for Special Areas under the marpol Convention are adopted by imo, Guidelines for the Designation of Special Areas under marpol 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 15 January 2002, imo Assembly Resolution A. 927 (22). (hereinafter Special Area Guideline). 91 See Churchill and Lowe for an outline of the regulations of Annex 1, in The Law of the Sea, 340. 92 See imo, “Tanker Safety – preventing accidental pollution,” Available at http://www.imo .org/en/OurWork/Safety/Regulations/Pages/OilTankers.aspx (accessed November 2015).

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these regions.93 Two sets of Guidelines related to shipping in the Arctic and Antarctic were adopted by the imo: the “Guidelines for Ships Operating in the Arctic Ice-Covered Waters in 2002,” and the amended 2009 “Guidelines for Ships Operating in Polar Waters.” These guidelines were non-binding, and addressed the particular risks and challenges to which vessels operating in the Polar Waters are exposed. The Polar Guidelines of 2009 intended: to address those additional provisions deemed necessary for consideration beyond existing requirements of the solas and marpol Conventions, in order to take into account the climatic conditions of polar ­waters and to meet appropriate standards of maritime safety and pollution prevention.94 As already mentioned, the Arctic Council recommended in the amsa report that the Arctic states, cooperate and support efforts under the imo to strengthen and update international standards for vessels operating in the Arctic, including the mandatory application of the guidelines.95 On the initiative of the Arctic coastal States, Norway, Denmark and the Unites States, the imo committees the Maritime Safety Committee (mcs) and the Marine Environment Committee (mepc) agreed to add the development of a mandatory Polar Code for ships operating in Polar waters, as a new high-priority work programme under the sub-committee on Ship Design and Equipment (de).96 The date for completing the Polar Code was set in 2012, but the negotiations and progress was slow. The members in the sub-committee could not agree on issues such as whether to include environmental protection regulations in the Polar Code or to adopt amendments in the relevant regulations of the marpol and other imo instruments.97 The Maritime Safety Committee (msc) decided in 2012 that the Polar Code would not be adopted as one comprehensive treaty, but as amendments to other existing imo Conventions, such as the solas Convention and the marpol Convention.98 Slow implementation 93 94 95 96

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Vijay Sakhuja, “The Polar Code and Arctic Navigation,” Strategic Analyses 38:6 (2014), 805. imo, Guidelines for Ships Operating in Polar Waters, P-1-3. amsa Report, 6. imo Maritime Safety Committee, Report of the Maritime Safety Committee on its ­Ninety-first Session, 17 December 2012, msc. 91/22. For more see J. Ashley Roach, “A Note on Making the Polar Code Mandatory,” in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDormann (Leiden/Boston Brill Nijhoff 2015), 129–131. Sakhuja, “The Polar Code and Arctic Navigation,” 807–808. For more details, see Roach, “A Note on Making the Polar Code Mandatory,” 128–133.

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by some of the Arctic states is also said to have delayed the progress of the Code.99 Finally, the Polar Code was adopted by the imo in May 2015, and will enter into force in 2017. The Polar Code contains a Preamble and a general part that sets forth goals and provides definitions, as well as Part A and Part B that contain mandatory measures for maritime safety and marine environmental protection, respectively. Both parts on safety measures and the environment protection measures also include additional non-mandatory guidance for the mandatory measures.100 The vessels to which the code applies are divided into categories A, B and C.101 Part 1 – A on safety measures contains 12 chapters. Each chapter sets out an overall goal for the chapter, functional requirements to achieve the goal, and regulations. The safety measures consist of a broad range of measures, including ship structure, fire safety and lifesaving equipment, safety navigation such as nautical information and navigational equipment, communication, voyage planning and manning and training. Part ii A on pollution prevention measures contains five chapters. The pollution prevention measures include requirements related to the prevention of pollution by oil, control of pollution by noxious liquid substances (in bulk), prevention of pollution by harmful substances and by garbage from ships. The Polar Code includes in Part ii A, Chapter 1, which deals with prevention of pollution from oil, a ban on discharges from oil. According to para.1.1.1, any discharge into the sea of oil or oily mixtures from any ship is prohibited. The Code also includes a prohibition of discharges of noxious liquid.102 Consequently, stricter pollution prevention regulations than what normally apply have been adopted for the Arctic Waters, without designating the area as Special Areas under the marpol Convention. This means that with the Polar Code, the level of protection of the Arctic Waters becomes more similar to that of the Antarctica, which is designated as a special area under Annex i, ii and v of the marpol Convention. The gap between the standards for vessel source pollution applying to the Antarctic and the Arctic, respectively is thus narrowed by the adoption of the Code.103 The environmental part is however, criticised for not being strict enough. In particular it is emphasised as a weakness that the Code does not 99 Sakhuja, “The Polar Code and Arctic Navigation,” 808. 100 Polar Code, Part i-B and Part ii-B. See also Roach, “A Note on Making the Polar Code mandatory,” 131–132. 101 Polar Code, Introduction, para. 2.1, 2.2. and 2.3. 102 Polar Code, Part ii-a, para. 2.1.1. 103 Karen Scott and David L. VanderZwaag, “Polar Oceans and Law of the Sea” in The Oxford Handbook of the Law of the Sea eds. Donald R. Rothwell et.al. (Oxford: Oxford University Press, 2015), 728–729.

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include a ban on the use of heavy fuel, similar to the ban adopted in the Antarctica in 2010.104 18.3.4 The Role of Arctic Council in Developing Regulations of Arctic Shipping Regulations of navigation and vessel source pollution are primarily developed by imo. Although imo is the most important international body for the international regulation of shipping, other international organization and institutions may also play a role in regulating maritime safety and environmental protection and regulation of marine pollution.105 Arctic Council is of particular importance for the regional cooperation on common Arctic issues, including Arctic shipping. Although the Arctic Council does not have the legal competence to adopt legally binding agreements or decisions, it has played an increasingly important role as a forum for addressing issues related to shipping in the Arctic.106 The Arctic Council has, as pointed out by Molenaar, produced outputs relevant to Arctic shipping.107 In this regard, the amsa report is the most important effort made under the Arctic Council.108 On the basis of the findings in this report, the amsa recommends that the Arctic states cooperatively support efforts of imo by strengthening, updating and harmonising international standards for vessels operating in the Arctic, including the updating and mandatory application of the Arctic Guidelines.109 This recommendation is implemented as the Polar Code is adopted by the imo. Moreover, amsa also recommended the explorations of the need for internationally designated areas for the purpose of environmental protection by the use of appropriate tools such as Special Areas under the marpol or pssa.110 Also, the final report from the aor, carried out by pame, sets out recommendations to the Arctic states on Arctic marine operations and shipping that might lead to new initiatives from the Arctic Council.111 The negotiation of the new treaties the Search 104 The Arctic Journal, “Insufficient, but necessary: Full Polar Code in place, but gaps remain,” Available at http://arcticjournal.com/climate/1588/full-polar-code-place-gaps-remain (accessed October 2015). See also Sakhuja, “The Polar Code and Arctic Navigation,” 808. 105 Sakhuja, “The Polar Code and Arctic Navigation,” 808. 106 See also above in Section 8.3.3. 107 Molenaar, “Status and Reform of International Arctic Shipping Law,” 146. 108 Ibid. 109 amsa Report, 6. 110 See Section 8.3.3. The potential use of these tools are adressed in the next session. 111 Arctic Council, Arctic Ocean Review Project 2009–2013 (aor), Final Report Phase ii 2011– 2013, 8th Arctic Council Ministerial Meeting Kiruna, Sweden 15 May 2013, 94. See also Molenaar, “Status and Reform of International Arctic Shipping Law,” 157.

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and Rescue Agreement concluded in 2011 and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response adopted in 2013, under the auspices of the Arctic Council, as means to implement the amsa recommendations, is described as an innovation.112 Based on these developments, it is argued that the Arctic Council has developed a policy-shaping and even a law-making role.113 18.4

Coastal State Prescriptive Jurisdiction of Shipping for the Purpose of Protecting the Marine Environment

The further sections in this chapter analyses the limits of the coastal States’ jurisdiction in the territorial sea and the eez, respectively, to adopting legislation to protect mpas against the impacts of shipping. The aim is to clarify what possible measures the coastal States may adopt to protect the mpas against the environmental impacts of shipping. The prescriptive jurisdiction to regulate innocent passage to protect the mpas in the territorial sea and the limitation of regulations that are hampering innocent passage is examined in Sections 18.5 and 18.6 whereas Sections 18.7 and 18.8 aim at clarifying the competence to regulate shipping within mpas located in the eez. Particular questions in this regard are the definition of the concept of “gairs” and whether the coastal States may regulate shipping activities within mpas on the basis of their sovereign rights over living resources.114 The analyses include examinations of a selection of possible regulations that may be adopted within an mpa to protect an ecosystem, species, or a habitat against the environmental impacts of shipping. The alternative protective measures that are examined here are categorized as follows: (i) ban on navigation; (ii) routeing measures; (iii) discharges; (iv) cdem standards; and (v) prior notification. A ban on navigation and the adoption of routeing measures within mpas are particularly relevant as measures to protect ecosystems, habitats, etc., against the impacts of shipping, as vessels could be led outside 112 David L. VanderZwaag, “The Arctic Counil and the future of Arctic Ocean governance: edging forward in a sea of governance challenges,” in Polar Oceans Governance in an Era of Environmental Change, eds. Tim Stephens and David L. VanderZwaag (Cheltenham: Edward Elgar Publishing Limited, 2014), 338. 113 Scott and Vanderzwaag, “Polar Oceans and Law of the Sea,” 736. For more details see Erik J. Molenaar, “Current and Proseptive Roles of the Arctic System within the Context of the Law of the Sea.” International Journal of Marine and Coastal Law 27:3 (2012): 553–595. 114 See Subsection 18.7.2 and Section 18.9.

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the mpas or safely through them. In this way, the risk of accidents with oil spills, illegal discharges, and dumping, and physical impacts on the marine environment, may be avoided or minimised. Hence, the analyses focus in particular on the possibility of banning navigation within mpas and on the competence to adopt routeing measures. Other measures such as discharge standards, cdem standards, and prior notification are addressed more briefly. The navigational regulations, and in particular a ban on navigation or routeing measures, may have implications for the right of innocent passage and the freedom of navigation as they prohibit navigation within certain marine areas. The potential legal conflicts between the obligation to conserve marine biodiversity in situ by mpas and the rights of other States to engage in shipping activities may therefore arise in these situations. Thus it is helpful to examine the possibility of adopting such measures as means for complying with the obligation to establish integrated and effectively managed mpas. 18.5

Coastal State Prescriptive Jurisdiction in the Territorial Sea

18.5.1 The Competence to Adopt Laws and Regulations of the Innocent Passage to Ensure Protection of mpas It follows from Article 21 (1) that the coastal States may “adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage….” The wording “relating to innocent passage” implies that all aspects of innocent passage may be subject to regulation; including the operation of the vessel. However, the laws and regulations must relate to any of the listed purposes in Article 21 (1) (a) to (l), as follows from the wording “in respect of all or any of the following” in the introduction to the Article. Of particular relevance and significance for the question concerning the possibility of regulating shipping activities within mpas are the purposes of (a) “the safety of navigation and the regulation of maritime traffic,” (d) “the conservation of the living resources of the sea,” and (f) “the preservation of the environment of the coastal state and the prevention, reduction and control of pollution thereof.” The competence of the coastal States pursuant to Article 21 (1) (a) to adopt regulations for the purpose of “the safety of navigation and the regulation of maritime traffic,” is broad and produces a variety of measures for the coastal States to adopt to protect the mpas. Similarly, the terms “conservation of the living resources” and “preservation of the environment” in Article 21 (1) (d) and (f) are so broad that they may cover all types of regulations of navigation within the mpas. The competence of the coastal States provided by these

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provisions is therefore wide enough to cover regulations of innocent passage that are necessary to protect both species, ecosystems, habitats and the physical environment. Consequently, the coastal States have a general competence and wide discretion to adopt relevant regulations of shipping to safeguard the marine environment and living resources that they have protected as mpas from the impacts of shipping, such as routeing measures, reporting systems, and discharge standards.115 The coastal States may, furthermore, under Article 22 (1) “where necessary having regard to the safety of navigation” require foreign ships to use “sea lanes” or “traffic separation schemes.” Whereas Article 22 (1) deals specifically with these two types of measures, Article 21 (1) (a) does not imply any restrictions when it comes to the types of navigational measures that may be adopted. One may therefore question whether the specification of the measures in Article 22 (1) implies a limitation of the broad competence provided in Article 21 (1). A contextual interpretation of the provisions suggests, however, that Article 21 (1) is the primary provision that provides the jurisdictional competence to adopt regulations on innocent passage, and that this competence is further specified when it comes to sea lanes and traffic separation schemes in Article 22 (1).116 The competence to require foreign vessels to use sea lanes and traffic separation schemes in Article 22 (1) is qualified through the wording “where necessary having regard to the safety of navigation.”117 This wording could mean that sea lanes and traffic separation schemes may not be adopted for environmental purposes but only for the safety of navigation in a stricter sense, which would limit the possibility of protecting ecosystems and habitats within mpas from the impacts of shipping. This question is further discussed below in Subsection 18.6.2.2. It follows from Article 22 (3) (a) that the coastal States shall, when designating sea lanes or traffic separation schemes, take into account “the recommendations of the competent international organisation.” The possible limitations of this provision for the competence of the coastal State to adopt mandatory regulations are also further discussed below in Subsection 18.6.2.3. When it comes to passage of nuclear-powered ships and ships carrying nuclear or other inherently noxious substances and dangerous cargo, under Article 23 they shall “carry documents and observe special precautionary 115 See also Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 70. 116 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 203. 117 Molenaar notes that “Article 22 must therefore be seen as specifying and qualifying in certain circumstances an already existing competence.” Ibid., 203–204.

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measures established for such ships by international agreements.” Envi­ ronmentally risky vessels as described in Article 23 and tankers may, under Article 22 (2), in particular be required to confine their passage to sea lanes established in Article 22 (1). One may question whether the provisions in Articles 22 and 23 express the limits or the maximum of coastal State jurisdiction over these vessels, or if the general provision in Article 21 applies to these vessels as well.118 It is however, not reasonable to read the provisions so that the jurisdiction of the coastal States over these risky vessels is more limited than over vessels in general.119 The coastal States may not under Article 21 (2) adopt regulations of cdem standards, unless they give effect to gairs. This means that the coastal State may not require that vessels comply with a specific technical standard before sailing into mpas unless the regulation qualifies as gairs. The wording of this provision is subject to interpretation and it may be questioned which regulations the limitation in Article 21 (2) applies to.120 Conclusively, the coastal States have broad authority to regulate all aspects of the passage of vessels within mpas established in the territorial sea. The general authority to adopt regulations or laws relating to innocent passage in Article 21 (1) is not limited to international regulations, as are the cdem standards in Article 21 (2). Consequently, the coastal States are, with the exception of cdem standards, free to adopt regulations to protect their mpas regardless of the existence of international regulations adopted by imo. Notwithstanding this, regulations adopted based on Article 21 (1) must, as follows from Article 24 (1), not hamper the right of innocent passage. 18.5.2 When is the Innocent Passage “hampered”? In order to determine the scope of the regulations of innocent passage that the coastal States may adopt within the mpas to protect the areas from environmental impacts of shipping, what measures they may take and how onerous measures they may apply, it is necessary to examine the principle of Article 24 (1). It follows from Article 24 (1) that “the coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention.” The wording used in Article 24 (1) suggests it is 118 See Johnson, Coastal state regulation over international shipping, 69–70. 119 Ibid., 70. See also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 204–205. 120 Johnson, Coastal state regulation over international shipping, 73. For a discussion on whether the limitation applies to fuel quality or not, see Ringbom, The eu Maritime Safety Policy and International Law, 433–435.

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not prohibited to “hamper” the innocent passage, when this is “in accordance with this Convention.” The coastal States may therefore hamper the innocent passage for instance when exercising their enforcement jurisdiction in accordance with the los Convention.121 With regard to regulations adopted ­pursuant to the los Convention, the term “hamper” is elaborated in 24 (1) (a). It follows from the provision that: In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not: (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or The coastal States may thus adopt regulations on passage pursuant to Articles 21 and 22 to protect their mpas against impacts of shipping. However, these regulations must not “have the practical effect of denying or impairing the right of innocent passage.” The word “practical” implies that the los Convention means the practical or real hindering of passage, rather than in theory or principle.122 To define the scope of the right to adopt regulations of the innocent passage it is necessary to define the terms “denying” and “impairing.” A common understanding of denying is to make the right of innocent passage impossible to conduct. It is more uncertain when a restriction of the innocent passage has the effect of “impairing” the right of innocent passage. The los Convention does not define the term “impairing” or provide any direction to how this term is to be interpreted. Molenaar points out that any regulation could be regarded as “impairing” the right of innocent passage, and that this term does not provide any more guidance than “hamper.”123 The shaping of the provision, could, suggest that “impairing” refers to a stronger influence or impact on the passage than “hamper,” as regulations adopted in accordance with the los Convention may “hamper” but not have the practical effect of “impairing the right of innocent passage.” The term “hamper” is synonymous with hinder, whereas impair is synonymous with damage, hurt, or harm.124 Following, the wording “impairing” does not seem to refer to impacts on the innocent passage 121 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 202. 122 Sam Bateman and Michael White, “Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment,” Ocean Development & International Law 40:2 (2009): 195. 123 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 202. 124 Oxford Learner’s Dictionaries, http://www.oxfordlearnersdictionaries.com (accessed ­October 2015).

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that are stronger than the term hamper. The question is, however, how onerous may regulations be to be acceptable without “impairing the right of innocent passage”? It is necessary to define the term “impairing” more closely in order to examine the threshold of accepted impacts regulations may have on the passage. The wording “denying and impairing” is formulated as two alternatives that both have the effect of hampering innocent passage. A contextual interpretation of “impairing” in relation to the terms “denying” and “hamper” suggests that there must be a considerable interference before the right of innocent passage is impaired. It is argued in legal literature that the regulations must interfere with the navigation quite seriously in order to qualify as “impairing” the right of innocent passage.125 The legal writers McDougal and Burke define the limit of acceptable regulations as regulations that are “so stringent either that access becomes impossible or that passage becomes too burdensome to be practical.”126 Conclusively, the regulations may have a considerable impact on navigation without hampering the right of innocent passage. Having clarified that considerable impact on shipping activities may be made to protect the mpas, it must then be determined how the accepted level of interference with the right of innocent passage should be defined more precisely. The right of innocent passage is an exception to the sovereignty of the coastal States; their authority to regulate this passage due to their interests is limited and balanced in Article 24 with the rights of other States to engage in such passage. When determining what level of interference that is allowed, the different interests must therefore be held up against each other in each concrete case. As the territorial sea is an area where the coastal States have sovereignty, it is reasonable that while taking into account the interests of navigation, the coastal States should be allowed to adopt measures that are necessary for protection of their interests such as protecting mpas established for conservation of habitats or ecosystems. In such a case it could be reasonable that other States must tolerate a significant impact on the exercise of the right of innocent passage. In other situations where there is not the same need to interfere with the right of innocent passage, the level of accepted infringement of the right of innocent passage is lower. The evaluation of whether laws and regulations are impairing the right of innocent passage shall, therefore, be 125 Johnson, Coastal state regulation of international shipping, 80–81. See also Bateman and White, “Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment,” 196 who discuss the threshold “impairing” in relation to transit passage of shipping. 126 See Myres S. McDougal and William T. Burke, The Public order of the Oceans: A contemporary International Law of the Sea (New Haven/London: Yale University Press, 1962), 255. The observation by McDougal and Burke is made in relation to Article 14 of The 1958 ­Territorial Sea Convention, which was replaced by the los Convention Article 19.

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undertaken pursuant to a flexible and relative norm, where the accepted level of impact may vary with the particular circumstances. Molenaar suggests that whether a regulation hampers innocent passage must be determined based on a balance of the relevant interests “in the light of the circumstances or other relevant factors” where “reasonableness” may play a decisive role in this process.127 A similar approach is expressed by Dubner, who states that the regulations of innocent passage under international law “have to be reasonable and necessary and cannot have the practical effect of denying or impairing the right of innocent passage.”128 The interests and necessity of the coastal States to adopt the regulations and the burdens on the passage, such as whether the passage becomes dangerous, expensive, unpractical or inconvenient, must thus be balanced. As the burdens may be quite high, it is not enough that the passage is merely more expensive or inconvenient to be “impairing the right of innocent passage.” This is supported by the need of the coastal States to protect their rights and interests within their own territory. The coastal States are, according to Article 21 (1) (d) and (f), allowed to adopt regulations for the purposes of “the conservation of living resources” and for “the preservation of the environment of the coastal State and the prevention, reduction and control of pollution.” It is reasonable to understand the wording “preservation of the environment” and “prevention, reduction and control of pollution” in light of the obligations in Part xii of the los Convention, and also with a view to the obligations to protect and conserve marine biodiversity pursuant to the cbd.129 A ban on navigation or restrictions on vessels carrying dangerous cargo are examples of regulations that could be considered as necessary measures for ensuring effective protection of the sensitive areas. To accomplish the obligations to protect marine biodiversity, habitats, and sensitive areas, other and maybe more onerous measures than what was considered necessary when the los Convention was adopted, may be necessary to protect the mpas. Conservation of marine biodiversity requires precautionary and holistic ecosystem approaches to the regulation of human activities. The precautionary principle is part of the context of cbd as it is included in the Preamble of the Convention, and therefore relevant 127 Molenaar, Coastal State Jurisdiction over Vessel Source Pollution, 202. 128 Barry Hart Dubner, “On the Interplay of International Law of the Sea and the Preven­tion of Maritime Pollution – How Far Can a State Proceed in Protecting Itself from Conflicting Norms in International Law,” George Washington International Law Review 11 (1998– 1999): 152. 129 See also Satya N. Nandan and Shabtai Rosenne, eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Volume ii (Dordrecht: Martinus Nijhoff Publishers, 1993), 201.

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to interpreting and implementing the obligations of the cbd. Moreover, the precautionary principle is mandatory for the Contracting Parties to the ospar Convention. Even though the precautionary principle might not have achieved status as customary law, it is also relevant for all states as a consideration when balancing the interests.130 We have, for instance, scarce knowledge about the impacts of operational pollution from vessels in the sensitive Arctic marine environment. The precautionary principle could, therefore, imply that a state should adopt an mpa where shipping is prohibited to protect a specific area or ecosystem/habitat. The interest of the international community is also a relevant consideration when determining the scope of acceptable regulations of navigation within mpas. Conservation of biological diversity is acknowledged as a common concern in the cbd. The establishment of mpas to protect vulnerable or particularly rich areas from the environmental impacts of human activities would benefit the whole international community. This suggests that the necessity of protecting mpas against environmental impacts of shipping is a significant consideration when balancing the interests and determining how onerous regulations that may be adopted. One may therefore argue that more onerous burdens on shipping are acceptable when regulations are adopted within mpas established to comply with international obligations. This is also supported by Article 19 (1), which states that the passage shall be exercised “in conformity … with other rules in international law.” As most of the states are parties to both the los Convention and the cbd, it is not unreasonable that measures necessary to protect and conserve habitats or ecosystems protected as mpas are emphasised when balancing the relevant interests. In conclusion, other States must tolerate considerable interference with the right of innocent passage. Necessary regulations to ensure protection and conservation of biodiversity within mpas against pollution or physical damage of shipping that imply significant impacts on the right of innocent passage, may, due to a concrete evaluation, be reasonable and acceptable. 18.6

Potential Measures Adopted Within mpas in the Territorial Sea to Protect the Areas against the Impacts of Shipping

18.6.1 Ban on Navigation In order to ensure conservation of ecosystems, fragile habitats, or habitats important for biodiversity, prohibition of all navigation within the area could be an important measure for preventing marine pollution and as a 130 See Birnie, Boyle and Redgwell, International Law & the Environment, 27–28.

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precautionary action for avoiding accidents and acute oil spills. A ban on navigation within a protected area to safeguard a coral reef would also ensure protection from physical damage of vessels. This is also an effective measures for avoiding strikes between vessels and mammals, and other disturbance of wild life. The effectiveness of prohibiting shipping within mpas is observed by Spadi as he argues: Prohibiting passage of all ships (or certain types of ships) can be extremely effective for safeguarding mpas. On the one hand, there is elimination of a source of disturbance for various animal species (especially vulnerable during breeding, nesting etc.) On the other hand, a series of polluting activities, strictly connected with navigation, even though not classified as such, is prevented.131 Notwithstanding that a ban on navigation with mpas is an effective measure for protecting the area from the impacts of shipping, such a prohibition is likely to conflict with the right of innocent passage in the territorial sea. The key question discussed in this subsection is whether a ban on navigation within the geographically limited area of an mpa may be permissible under the jurisdiction of the coastal States. May the coastal States close certain areas of the territorial sea for shipping within an mpa, or does the right of innocent passage include a right of passage everywhere within the territorial sea? A regulation of innocent passage where shipping is prohibited must, to be justified, be adopted as a measure for the listed purposes of the regulations in Article 21 (1) (a) to (h), and must not “have the practical effect of denying or impairing the right of innocent passage.” The relevant purposes for such a regulation are the provisions in (d) and (f) that provide the coastal States with the competence to adopt regulations for “the conservation of marine living resources of the sea” and for “the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof.” It is not specified which regulations of innocent passage the coastal States are allowed to adopt in respect to these purposes. Furthermore, the purposes are expressed in such broad terms that they arguably also cover a ban of navigation within geographically limited areas protected as mpas. As regulations of innocent passage must relate to the listed purposes, it is a key question whether a ban on navigation within mpas is a relevant measure for the purpose of “the conservation of living resources” and “the preservation of the environment” and “the prevention, reduction and control of pollution 131 Spadi, “Navigation in Marine Protected Areas: National and International Law,” 285–286.

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thereof.” The formulation “conservation of living resources” is reasonably understood in the same way as it is in Part v of the los Convention.132 In the light of the development of the law, primarily in relation to the obligations of cbd, as well as Agenda 21 and the 1995 Fish Stock Agreement, which specifically includes a duty to conserve biological diversity and includes an ecosystem approach, it is reasonable that the competence to adopt regulations of the innocent passage for the purpose of “conservation of living resources” also includes competence to adopt measures for conservation of habitats and marine ecosystems, of which species are part. It may therefore be argued that coastal States have the authority to close certain areas from passage of vessels to protect coral reefs or other habitats important for conservation of living resources either from physical damage or disturbance. A ban on navigation could be considered necessary to maintain a spawning or nesting breeding area or for the recovery of threatened species, as this would prevent disturbance from vessels and contribute to conservation of living resources. It is also argued in legal literature that Article 21 (1) (d) provides coastal States with a competence to deny navigation in certain areas on this basis.133 Moreover, the wide formulations “preservation of the environment” and “prevention ... of pollution” of Article 21 (1) (f) imply that the coastal State can also ban navigation within an mpa. With the terms “preservation” and “prevention ... of pollution,” Article 21 (1) (f) opens both for regulation of innocent passage for protection of the environment from physical damage and from pollution.134 A ban on navigation could, as argued above, be an effective measure to ensure protection against both of these types of environmental impacts. The purpose of regulating innocent passage expressed in Article 21 (1) (f) is linked to the general obligation in Part xii on protection and preservation of the marine environment.135 The obligation of Article 194 (5) to adopt measures that are necessary to protect rare or fragile ecosystems and habitats is relevant when defining the scope of the competence in Article 21 (1) (f). It is reasonable that the legislative competence of the coastal States also includes a right to take measures that are necessary to achieve the environmental obligations. In order to protect habitats or fragile ecosystems, it could be necessary to avoid the passage of ships to protect an area against pollution from dumping and accidental 132 See Nandan and Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume ii, 200. 133 Spadi, “Navigation in Marine Protected Areas: National and International Law,” 289. 134 See discussions above in Section 11.2. 135 Nandan and Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary, Volume ii, 201.

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pollution and in order to protect the sea bottom or a coral reef from anchoring. A fragile ecosystem or habitat may also be sensitive to operational pollution. This implies that a ban on navigation is a relevant measure for the purpose of “preservation of the environment” and “prevention, reduction and control of pollution” in Article 21 (1) (f). It should also be noted that Article 21 (1) (f) refers to the environment, not the “marine environment” as in Article 211 (4). According to Molenaar, this implies that the costal States also have the competence to adopt regulations for protecting their coast line.136 Article 21 (1) (f) thus provides for the possibility to ban navigation within certain areas of the territorial sea outside sensitive coastal areas such as important wetlands. The possibility to deny innocent passage within specific areas of the territorial sea is, however, not without limitations. A ban on navigation within the territorial sea must be evaluated on a case-by-case basis against the principle in Article 24 (1), based on the required balance of relevant interests and circumstances. The necessity of adopting a ban on navigation within an mpa to protect a habitat or a fragile ecosystem is a relevant and important consideration in this evaluation. On the other hand, a ban on navigation within designated areas is an onerous measure, which may infringe upon the right of innocent passage as it prohibits other States from exercising their rights within a certain area. A ban on navigation may therefore imply unreasonable burdens upon the right of other states to innocent passage by making the passage so difficult, hazardous, or leads to so increased expenses, or in other ways makes it so inconvenient that it has the practical effect of “impairing the right of innocent passage.” On the other hand, as argued above, when it is necessary to protect the interests of the coastal States, other States must tolerate significant impacts on the right of innocent passage. It is, however, difficult to draw a precise line, as the evaluation must be solved concretely, and the necessity for the coastal State to adopt such a strict measure must be held up against the burdens of other States. For example, a ban on navigation could be necessary for ensuring effective protection of the mpas and accomplishing the obligations in Articles 192 and 194 (5), as well as the obligation to conserve marine biodiversity by establishing protected areas in cbd Article 8 (a), such as to protect a spawning area, a fragile ecosystem, or a critical habitat. It is reasonable that the coastal States have the authority to adopt regulations to comply with their obligations. Moreover, as a ban on navigation may also serve the interests of the international community, it may be justified in situations where a ban on navigation is necessary to protect a particular valuable or vulnerable area. Other States must then accept more onerous burdens on their right to innocent passage, than in 136 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 200.

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other situations, or in other areas if the territorial sea. In view of this, it is not unreasonable that the coastal States can ban passage within certain areas of the t­ erritorial sea. In literature, some writers accept a right to ban navigation within certain areas of the territorial sea. Spadi argues that the coastal States may prohibit passage in certain areas but may not require that vessels leave or avoid its territorial sea. Spadi points out that this would be unacceptable even for a short distance.137 The legal writers de Klemm and Shine, argue in favour of a right to ban navigation within certain areas as they compare closure of areas within the territorial sea for environmental reasons with the closure of areas for military reasons when they argue that: Coastal States find it quite natural to close certain areas to navigation for national defence reasons. There is nothing that prevents them from doing so for conservation purposes.138 mpas differ, however, both in shape and size. A ban on navigation could not be adopted within mpas that are so large that the ban would cover the whole or nearly all of the territorial sea.139 In such a situation a ban could easily make navigation so burdensome that it has “the practical effect of denying or impairing the right of innocent passage.” Similarly, a ban on navigation in several mpas that constitute a network of mpas could make it unreasonably difficult to navigate around the mpas, and therefore easily impair the right of innocent passage. To what extent it would be possible to protect a large mpa by other less strict measures would be a relevant consideration. If the mpa could be sufficiently protected by prohibiting the navigation within a certain zone, or by adopting a routeing measure, a ban on navigation may be improper. On the other hand, if such a prohibition is adopted in one or a few mpas that do not cover very large areas of the territorial sea, and navigating around them does not involve particular costs or in other ways are very inconvenient, this may not be an unreasonable interference with the right of innocent passage and would therefore be acceptable. 137 Spadi, “Navigation in Marine Protected Areas: National and International Law,” 290. 138 See de Klemm and Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems, 261. See also Matz and Wolfrum who seem to have an opposite view in Wolfrum and Matz, “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on biological diversity,” 476. 139 Spadi argues that the coastal States may not close an area for shipping that covers “the full breadth of the territorial sea,” see Spadi, “Navigation in Marine Protected Areas: National and International Law,” 290.

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In conclusion, a ban on navigation within mpas may be acceptable within the limits of Article 24 (1). There may, however, be different opinions and uncertainties as to the limits of the coastal States’ authority that could lead to disputes. The interpretation of cbd Article 22 (1) and (2) adopted above in Subsection 17.3.2.2 implies that the right of innocent passage does not prevail in a situation where shipping within an mpa “would cause a serious damage or threat to biological diversity.” In such a situation, a ban on navigation would also be acceptable even if it is “impairing the right of innocent passage” on the basis of cbd Article 22 (1). However, this clause is difficult to apply in practice as its application requires that the shipping activities would cause “serious damage or threat.” The discussions carried out here imply, however, that as far as a ban on navigation is not “impairing the right of innocent passage,” as set out in Article 24, the measure is acceptable under Article 21 (1), and the coastal State does not have to establish that the navigation would cause “serious ­damage or threat to biological diversity” to justify the regulation. 18.6.2 Routeing Measures 18.6.2.1 General This subsection examines to what extent the coastal States may apply routeing measures to protect sensitive or valuable areas protected as mpas from the impacts of shipping.140 Vessels are usually not required to follow certain routes. By requiring vessels to follow certain routes, establishing schemes for separate traffic in opposite directions, or by other measures for accommodating the navigation, collisions and accidents may be avoided. Routeing measures constitute a category of measures adopted by the coastal States for the purpose of maritime safety and protecting the marine environment from marine pollution and physical damage from shipping. While the objective of solas is to promote navigational safety, the amended Chapter v of the Convention on routeing measures includes environmental protection as an objective. The amendments came as a response to the recognition that vessels, by their navigation, threaten the marine environment by pollution and other physical impacts.141 By applying the available routeing measures, the coastal States 140 For more on the application of ships’ routeing measures as means to regulate shipping for the purpose of protecting the marine environment and for conservation of marine biodiversity see Julian Roberts, “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” The International Journal of Marine and Coastal Law, 20:1 (2005): 135–159. 141 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 333.

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may lead traffic outside an mpa. In this way, coastal States may take necessary actions to avoid environmental damage in case of an incident and protect the marine environment from other impacts of shipping.142 Routeing measures may, in the same way as a ban on navigation in certain areas, contribute to protection of sensitive or representative areas from operational or accidental pollution from vessels and physical harm to the environment. It follows from solas V/10 (1) that: Ships’ routeing systems contribute to safety of life at sea, safety and efficiency of navigation and/or protection of the marine environment. Ships’ routeing systems are recommended for use by, and may be made mandatory for, all ships, certain categories of ships or ships carrying certain cargoes, when adopted and implemented in accordance with the guidelines and criteria developed by the Organisation. The wording “the guidelines and criteria developed by the Organisation” should be read as a reference to i.a. the gpsr, adopted by imo, pursuant to regulation V/10 of the soals Convention. The solas regulation V/10 also includes an accompanying footnote that explicitly refers to the gpsr. Consequently, the provisions in the solas Convention V/10 and the gpsr must be read together.143 The objective of the routeing measures is, according to the gpsr, “to improve the safety of navigation.”144 Furthermore it follows from gpsr para. 1.1. that ships routeing may be used for the purpose of preventing or reducing the risk of pollution or other damage to the marine environment caused by ships colliding or grounding or anchoring in or near environmentally sensitive areas. The precise objectives of routeing measures are further defined in para. 1.2. where it is laid down in 1.2.6. that routeing systems may be used to organize the “safe traffic flow in or around or at a safe distance from environmentally sensitive areas.”

142 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Se Area Concept, 59. 143 The solas Convention V/10 (2) recognizes imo as the only competent organisation to adopt routeing measures. 144 gpsr, para. 1.1.

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The gpsr is adopted as a resolution and is not legally binding. The instrument includes, however, both procedural and substantive procedures for the adoption of the routeing measures.145 The available routeing measures that may be adopted are specified in para. 2.1, and include measures such as traffic separation scheme, traffic lane, deep-water route, precautionary area, areas to be avoided (atba), no anchoring area, etc. Whereas the solas Convention provides a legal basis for adopting mandatory routeing measures, the gpsr elaborates the Convention by specifying the possible routeing measures that may be adopted. Mandatory routeing systems may have implications for the navigational rights of other States. This may particularly be the case for the routeing measure atba, as this measure may exclude vessels within an area.146 The measure atba is defined in the gpsr 2.1.13 as a routeing measure comprising an area within defined limits in which either navigation is particularly hazardous or it is exceptionally important to avoid causalities and which should be avoided by all ships, or certain classes of ships. Consequently, there are available routeing measures that can protect ecosystems, habitats or species protected as mpas by directing vessels outside or safely through the protected area. It may, however, be questioned whether the los Convention Articles 21 and 22 pave the way for the adoption of navigational measures for environmental purposes.147 The following subsections discuss the possibilities of adopting routeing measures and, in particular sea lanes and traffic separation schemes, for solely environmental purposes. It is also examined whether the coastal States unilaterally may adopt mandatory routeing measures within mpas located in the territorial sea, or if imo approval is necessary for adopting such measures, with legal binding force. 18.6.2.2

The Use of Routeing Measures for Protection of the Marine Environment According to Article 21 (1) (a) the coastal States enjoy a right to adopt regulations for “the safety of navigation and regulation of traffic.” Furthermore, it follows from Article 22 (1) that the coastal States may:

145 See ibid., para. 3–8. 146 The implications of the measure atbas has been discussed within imo. Fore more on this see Ringbom, The eu Maritime Safety Policy and International Law, 441–442, note 229. 147 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 203–204.

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where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. A strict reading of the wording “safety of navigation” indicates that the routeing measures, sea lanes, and traffic separation schemes should be adopted for the purpose of safety of navigation to avoid incidents and collisions, and not for protecting sensitive areas or vulnerable or rare habitats.148 The wording “safety of navigation” is, however, wide enough to also cover environmental purposes, not only safety in a strict meaning of the word. Furthermore, the context of Articles 21 (1) (a) and Article 22 (1) suggests that one should not adopt a restrictive interpretation of the wording.149 Article 22 (2) opens the possibility for the adoption of sea lanes for vessels that pose ­particular environmental threats as it is stated here that: In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes. That Article 22 (2) particularly specifies the use of sea lanes and traffic separation schemes for vessels that represent a higher environmental risk supports a broader interpretation in which such routeing measures also may be adopted for environmental purposes.150 Moreover, Article 21 (1) (d) and (f) provides authority to regulate innocent passage for the purposes of conservation of living resources, and preservation and protection of the environment. A contextual reading of Articles 21 and 22 together also with Article 211 (1) thus implies that regulations of navigation such as sea lanes and traffic separation schemes may also be adopted for environmental purposes.151 To this it may be added that there is not a sharp distinction between navigational safety and environmental protection.152 A collision between two oil 148 This understanding seems to be supported by Nandan and Rosenne, United Nations ­Convention on the Law of the Sea 1982: A Commentary, Volume ii, 211–212. 149 Johnson, Coastal state regulation of international shipping, 70–71. 150 See also Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” 750–751. 151 Roberts, “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” 138. See also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 204. 152 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 204.

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tankers or grounding of a tanker may lead to major oil spill and enormous environmental consequences. The close links between safety of navigation and environmental protection, and the development at this point, is expressed by Roberts: It is widely acknowledged that protection of the environment is a secondary benefit of the enhancement of navigational safety, since measures for the security of maritime traffic usually prevent environmental hazards as well. However, as described in further detail below, international and national state practice has evolved to recognize the legitimacy of using navigation measures for the primary purpose of protecting the marine environment from pollution and other damage from ships.153 This is reasonable since, as also pointed out by Spadi, the need for adopting routeing measures such as sea lanes for safety reasons will often arise in areas where environmental considerations are also strong, such as in areas of swallow waters or reefs.154 The navigational standards were primarily developed by imo for the purpose of maritime security. State practice and practice under imo show, however, that there is an acceptance for the adoption of navigational measures for environmental purposes.155 This is particularly the case for routeing measures, ship reporting, and vts.156 The relevant imo instruments such as solas and gpsr have been amended and it is now clearly expressed in the instruments that the measures may be adopted for environmental purposes.157 To conclude, routeing measures may be established for environmental protection, both to prevent accidental and operational pollution, as well as other damage to the marine environment. The coastal States are free to adopt routeing measures such as no anchoring areas, precautionary areas, and other 153 Roberts, “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” 136. 154 Spadi, “Navigation in Marine Protected Areas: National and International Law,” 289. 155 Examples of state practice is provided by Johnson, Coastal state regulation of international shipping, 71, note 243; see also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 226–242. See also analyses by Henriksen on the relevance of environmental consideration for the application of area-based measures in practice, in “Conservation of marine biodiversity and the International Maritime Organization,” 335–340. 156 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 119. 157 solas Convention V/10, no. 1 and gpsr, paras. 1.2.6 and 3.6.

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navigational measures for environmental purposes. This also includes a right to adopt atba, which is a strict measure where vessels may be excluded from certain areas. However, as the sovereignty is limited by the rights of innocent passage, the routeing measures cannot under Article 24 (1) have the practical effect of denying or impairing the right of innocent passage. In the evaluation of whether a routeing measure is acceptable, the necessity of adopting the measure to protect the mpa, and the burden the measure imposes on the right of innocent passage, must be evaluated. Of particular significance for determining whether a routeing measure denies or impairs the right of innocent passage, is the size of the area where navigation is prohibited, and how onerous the measure is for the shipping. 18.6.2.3

The Adoption of Sea Lanes and Traffic Separation Schemes for Protecting mpas The los Convention Article 22 (1) provides the coastal States with legal competence to adopt sea lanes and traffic separation schemes “where necessary” having regard to the safety of navigation. Article 22 (1) differs from Article 21 (1) at this point, as Article 21 (1) does not limit the states when it comes to which measures that may be adopted. The authority to adopt sea lanes and traffic separation schemes is therefore more limited than the authority to adopt ­navigational measures under Article 21.158 The los Convention does not clarify in what situations these measures are “necessary.” The coastal States must themselves determine whether to establish a sea lane is necessary based on the relevant circumstances in a concrete case. It follows, however, from Article 22 (3) that the coastal States shall take certain considerations into account when designating sea lanes or traffic separation schemes. The recommendations by imo and the density of traffic are mentioned as relevant considerations in this evaluation. The wording “where necessary” suggests that there is a concrete need for such measures due to particular circumstances in a given area. It is already established that the terms “safety of navigation” must be broadly interpreted to encompass environmental considerations as well. That an mpa is established does not, however, automatically mean that the coastal States may adopt a sea lane and guide traffic around it. mpas may be adopted for a number of reasons, where restrictions and avoidance of shipping within the areas not necessarily 158 According to Molenaar Article 22 must be seen as “specifying and qualifying in certain circumstances an already existing competence,” see Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 203–204.

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must be adopted to ensure appropriate protection of the area. On the other hand, the formulation “where necessary for the safety of navigation” provides the coastal States with broad discretion when interpreting and implementing the provision. Thus there is a wide scope in which the coastal States can argue that it is necessary to establish a sea lane to guide traffic outside areas that are protected as mpas because of their vulnerability, rareness, uniqueness, or representativeness. Where a coastal State has established a network of mpas on the basis of different ecological criteria to comply with the obligation of cbd and the target of establishing a network of mpas, the coastal State may find it necessary to establish a sea lane to guide the traffic outside the mpas to ensure protection of the environmental values that are protected by the mpa. A sea lane established in the outer limits of the territorial sea, located for instance 10–11 nautical miles from the baselines, could serve as a tool to direct the traffic outside and at distance from mpas located in the territorial sea. Rothwell asks whether: a requirement that vessels navigate in a corridor 10–12 miles offshore so as to protect the coastal environment an impairment of a traditional right of innocent passage, or rather a legitimate coastal State initiative for the preservation of the environment of the coastal State?159 Rothwell does not discuss this question further but states that the question is not “adequately dealt with in unclos and can only be determined through other international laws, State practice, and increasingly international organisations such as the imo.”160 Sea lanes or traffic separation schemes established on the basis of Article 22 (1) must be balanced on the basis of the principle in Article 24 (1) and must not have “the practical effect of denying or impairing the right of innocent passage.” As for a long sea lane established on the outer limit of the territorial sea one may argue that it would have so onerous burdens on the navigation that it is not reasonable, and that it, therefore, would hamper the right of innocent passage. On the other hand, it is reasonable that the coastal States may lead the traffic outside a system of sensitive areas that they have protected as mpas by establishing a long sea lane located as far out as possible within the 159 See Donald R. Rothwell, “Innocent Passage in the Territorial Sea: The unclos Regime and Asia Pacific State Practice,” in Navigational Rights and Freedoms and the New Law of the Sea, eds. Donald D. Rothwell and Sam Bateman (Leiden: Martinus Nijhoff Publishers, 2000), 82. 160 Ibid.

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territorial sea. Many of the most vulnerable areas are located close to the coast, and the designation of sea lanes close to the outer limits of the territorial sea will ensure that there is such a distance between vessels that represents an environmental risk and the coastal areas. A sea lane adopted to protect an mpa or a network of mpas must not, however, have the effect of making the journey so expensive, inconvenient, or so practically difficult that the burden on the navigation is unreasonable. A long sea lane which is located in the outer part of the territorial sea would in reality close access to the areas closer to the coast. A vessel may for instance to avoid heavy weather navigate closer to the coast. This suggests that the sea lane can not be too long without hampering the right of innocent passage. If the other States are only allowed to navigate within a narrow corridor over a very long distance, this could thus be an unreasonable burden. Furthermore, the sea lane could be too narrow so that a vessel would be forced out of the territorial sea. This would not be acceptable as the right of innocent passage would be denied. According to Spadi, a coastal State may within the limits of Article 24 forbid navigation within a protected area, but it cannot require ships “to leave or avoid its territorial sea and navigate outside it, even for a short distance.”161 The precise limits of what burdens on the navigation that are reasonable must be determined concretely on a case-by-case basis, with a view to the particular circumstances. Of relevance, is an evaluation of the necessity of the coastal State to designate the sea lane contra the burden on the right of innocent passage. Conclusively, there is a wide scope for the coastal States to adopt a sea lane or traffic separation schemes to protect mpas. The sea lane must, however, not be so long or be designated so that it creates unreasonable burdens on the navigation. A particular question is, however, to what extent the coastal States are required to designate sea lanes that are in consistence with advice from imo. It follows from Article 22 (3) that the coastal States shall take recommendations of imo into account when determining whether the designation of a sea lane is acceptable. It is reasonable to understand “recommendations” as the instruments on routeing measures adopted by imo, such as the solas V/10, the gpsr, as well the practice under imo Regulations on traffic separation schemes that are contained in colreg rule 1 (d) and 10.162 In the gpsr it is established in 1.2.6. as an objective of establishing routeing measures, to address “the organisation of safe traffic flow in and around or at safe distance 161 See Spadi, “Navigation in Marine Protected Areas: National and International Law,” 290. 162 See imo Secretariat, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, 29.

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from environmentally sensitive areas,” which indicates that imo recognises the use of routeing measures as a tool to protect environmentally sensitive areas. Furthermore, it follows from gpsr para. 3.6. (1) that imo will consider whether “the proposed routeing measure can reasonably be expected to significantly prevent or reduce the risk of pollution or other damage.” This shows that imo encourages the use of routeing measures such as sea lanes to protect sensitive sea areas, and supports the establishment of sea lanes for the purpose of guiding the traffic outside a network of mpas. On the other hand, it also follows from Article 22 (3) that the coastal State should take into account the density of traffic in the designation of sea lanes. This could suggest a practice where routeing measures are not adopted and made mandatory in an area with low density of traffic, such as in areas of the marine Arctic. It also follows from the gpsr para 3.6. (2) that the imo will consider whether use of routeing systems to prevent damage to the marine environment, “could have the effect of unreasonable limiting the sea area available for navigation.” Consequently, although the imo encourage the use of routeing measures it sets a high threshold for the use of routeing measures for environmental purposes.163 This high threshold is also reflected in the ­practice under imo.164 It may be questioned what significance Article 22 (3) has for the authority of the coastal States to adopt sea lanes and traffic separation schemes. Kachel finds that Article 22 (3), in conjunction with Article 24 (1), requires that routeing measures conform to the gpsr to be in conscience with the los Convention.165 The coastal States are, due to the wording of Article 22 (3), not required to follow recommendations of imo. The recommendations shall be taken “into account,” which means that they are not the only permissible considerations or decisive for the decision whether a sea lane should be designated. Hence, it must be determined concretely based on Article 24 (1) whether a sea lane adopted without taking the recommendations of imo into consideration is hampering the right of innocent passage. Although the recommendations of imo are significant in this evaluation, considerations and practice within imo as to whether sea lanes should be adopted could prioritise maritime interests to an extent that is not necessarily reflecting the balance of interests that follows from Article 24 (1). It follows for instance from the gpsr as shown above, that imo when determining whether routeing measures should be designated, 163 Henriksen, “Conservation of marine biodiversity and International Maritime Organization,” 337. 164 For examples, ibid., 338–340. 165 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine A ­ reas, 194. A similar view is also reflected in Molenaar, Coastal State Jurisdiction over V ­ essel-Source Pollution, 204.

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will consider whether it can “reasonably be expected to significantly prevent or reduce the risk of pollution or other damage to the marine environment.”166 When the coastal States adopt mpas, it may be done as a precautionary action, where one is not certain which impacts human activities, including shipping, have on the ecological values of the area. At what level, operational discharges from vessels may affect the fragile marine environment in the Arctic, may be uncertain. Adoption of sea lanes could therefore be part of a precautionary approach that the coastal State takes for the protection and conservation of the marine environment and biodiversity. Such a precautionary approach does not seem to be reflected here in the recommendations of imo. Hence the gpsr sets out as a requirement that the routeing system “can reasonably be expected to significantly prevent or reduce the risk of pollution or other damage to the marine environment” and appear to require a high level of certainty with regard to the effects of the measure in ensuring protection of the marine environment. Conclusively, the legality of sea lanes and traffic separation schemes must be determined concretely based on the evaluation of Article 24(1), where conformity with recommendations adopted by imo is not a decisive, but rather an important factor, in this evaluation. 18.6.2.4

May the Coastal States Adopt Mandatory Routeing Measures to Protect the mpas? To what extent routeing measures such as atba or a sea lane adopted pursuant to Article 21 (1) (a) or 22 may be adopted as mandatory measures by the coastal State is a relevant question. Whether foreign vessels have to comply with routeing measures, or whether the vessels may choose to follow them, is of significance for the level of protection of the sensitive areas or mpas. A particular question is moreover, whether the adoption of mandatory navigational measures to protect the mpas or other areas of the territorial sea, must be approved by imo. The starting point is that regulations adopted within the territorial sea under Articles 21 and 22, may be adopted as mandatory due to the territorial sovereignty of the coastal States. One may, however, argue that when it comes to the adoption of sea lanes and traffic separation schemes the regulations under Article 22 (3) must conform to the gpsr to be mandatory. However, as discussed above, the wording suggests that imo only has a recommendatory role, where their recommendations must be taken into account, but not that they have to be followed to be legally binding for other States. As for the competence to adopt navigational measures pursuant to Article 21 (1), the los

166 gpsr, para. 3.6 (1).

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Convention does not require any consent or recommendations on behalf of imo to be taken into account. Nevertheless, the possibility to adopt mandatory measures under Article 21 (1) to protect mpas, may however, be questioned as the solas Convention V/10 could be understood so that it limits the right of the coastal State to adopt measures in the territorial sea. According to solas V/10 (1) routeing measures may be made mandatory. It follows however, from solas V/10 (1) that the measures to be mandatory are “adopted and implemented in accordance with the guidelines and criteria developed by the Organisation.”167 It is not clear whether solas requires endorsement by imo to adopt mandatory routeing measures in the territorial sea. The regulation of routeing measures in solas does not make a distinction between areas within and outside national jurisdiction. It follows furthermore from solas V/10 (4) that: Ships’ routeing systems should be submitted to the Organisation for adoption. However, a Government or Governments implementing ships’ routeing systems not intended to be submitted to the Organization for adoption or which have not been adopted by the Organization are encouraged to take into account, wherever possible, the guidelines and criteria developed by the Organisation. In this regulation, solas indicates however, that routeing measures should be submitted to imo, but that this is not a prerequisite for adopting mandatory measures. This is also supported by the solas V/10 (10), which states that the routeing measures do not prejudice rights and duties of international law. This suggests that the right in Article 21 (1) to adopt navigational measures without imo approval is not limited by solas.168 Furthermore, it is implied in the gpsr that the coastal States have the authority to adopt routeing measures and make them mandatory in the territorial sea.169 Moreover, a requirement of approval from imo, does not comply with the territorial sea as an area where the coastal States enjoy sovereignty. This point of view is also supported in legal 167 See however, solas V/10 (7) where it follows that “A ship shall use a mandatory ships’ routeing system adopted by the Organisation as required for its category or cargo carried and in accordance with the relevant provisions in force unless there are compelling reasons not to use a particular ships’ routeing system.” 168 Ringbom, The eu Maritime Safety Policy and International Law, 442, see also note 231. 169 It follows from the gpsr para. 3.11 that the states must make a proposal to imo for adoption of routeing measures in areas beyond the territorial sea. See also gpsr para. 3.14–3.16.

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­literature.170 State practice also indicates that coastal States are adopting routeing measures without endorsement by imo.171 Conclusively, the coastal States may adopt routeing measures, including also sea lanes and traffic separation schemes, that are mandatory for other States. However, the coastal States may prefer to obtain approval from imo as this would increase the recognition of the measure and would also more likely be complied with.172 18.6.3 Discharge Standards 18.6.3.1 General Although shipping is generally seen as an environmentally friendly transport, shipping leads to operational pollution. In fact, most of the pollutants emerge from operation of the vessels, and not from accidents from tankers.173 The most significant type of oil pollution comes from deliberate discharges such as through washing of oil out of oil tankers.174 It is recognized that the Arctic environment is vulnerable to operational discharges from the vessel.175 Thus, it is important to examine the scope for the coastal States to adopt standards for discharges to protect vulnerable, rare, or fragile ecosystems. The aim of this subsection is to determine how far the coastal States may adopt discharge standards for controlling discharges of dangerous marine pollutants within the mpas. By discharge standards, it is meant standards that establish the maximum amount of pollutants that may be released from the operation of vessels.176

170 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 213; Roberts, “­Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” 138 and 151 and Ringbom, The eu Maritime Safety Policy and International Law, 442, note 231. 171 See Johnson, Coastal state regulation of international shipping, 72. See also Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 226–228. 172 Molenaar Coastal State Jurisdiction over Vessel-Source Pollution, 228 and Roberts, “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” 151. Governments are also requested in the gpsr to submit routeing measures within the territorial sea to imo for adoption, see gpsr 3.14. 173 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 152. 174 Frank, The European community and marine environmental protection in the international law of the sea: implementing global obligations at the regional level, 189–190. 175 amsa Report, 138–141. 176 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 21–22.

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18.6.3.2 The Possibility to Adopt National Discharge Standards As operational pollution from shipping normally does not deprive the vessel of its status of innocent passage, a coastal State may wish to adopt stricter discharge standards within the mpas to protect them from operational pollution, and thereby minimise the total environmental impacts of an area. Coastal States have pursuant to Articles 21 (f) and 211 (4) a wide discretion to adopt regulations for the purpose of prevention, reduction, and control of pollution from foreign vessels. marpol provides international regulations of the level of substances that may enter into the sea through the operation of vessels. A relevant question is thus whether the coastal States within mpas located in the territorial sea have the competence to adopt national discharge standards that are stricter than what marpol established. There is no exception in the competence to adopt discharge standards for international regulations in Articles 21 (1) and 211 (4), similar to the exception for cdem standards. Unlike in the eez, where the competence to adopt measures to prevent pollution is limited to gairs, such limitations are not adopted in other cases than for cdem standards. This implies that the coastal States may adopt discharge standards that are stricter than generally international accepted standards, and make them applicable in the territorial sea, or in certain areas of the territorial sea such as within mpas. The view that coastal States are allowed to adopt stricter national discharge standards is maintained in legal literature.177 State practice also supports that there is a right for the coastal States to adopt stricter national discharges.178 Nevertheless, the regulations adopted must, as stated in Article 211 (4) and according to Article 24 (1) not hamper the right of innocent passage. Regulations that adopt stricter discharge standards than those adopted by ­m arpol must therefore not have the “practical effect of denying or impairing the right of innocent passage.” To protect an ecosystem or habitat within an mpa against vessel source pollution, it may be necessary to adopt special standards within the mpas and even extend to a zero-discharge policy. The question is thus whether the coastal States are permitted to establish mpas with a zerodischarge level to protect areas that are particularly vulnerable to pollution. Such areas would benefit conservation of biodiversity. For areas that are particularly sensitive to marine pollution, even small amounts of operational pollution could lead to serious damage.179 In other areas, such a regulation 177 See Ringbom, The eu Maritime Safety Policy and International Law, 410, with further references in note 115. 178 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 221. 179 See the Royal Norwegian Ministry of the Environment, “Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands,” 8,

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could be necessary because there are uncertainties related to the impacts of operational pollution to for instance a coral reef. Moreover, in some areas the overall environmental pressures and impacts from human activities are heavy, and it could be useful to protect a certain area from the steady pollution of operational discharges. The necessity of the coastal States to adopt areas with very strict discharge standards or zero-discharge standards must be evaluated against the burden the regulation has for the navigation. If such a regulation in reality imposes a ban on navigation, the regulation may be an unreasonable interference with the right of innocent passage as it may have “the practical effect of denying or impairing the right of innocent passage.”180 The necessity of adopting stricter discharge standards than the international standards could however, be questioned. It is maintained that the international standards are high enough and that the problem is not the level of discharge standards, but the compliance and enforcement of violations of such regulations. Molenaar finds that as violations of the international discharges are difficult to discover and enforce, zero-level discharge areas may have its advantages.181 There is a connection between discharge standards and cdem standards, which the coastal States are not allowed to adopt pursuant to the exception in Article 21 (2). marpol includes both types of regulations. Following this, regulations that require the vessels to have certain technology to minimize the discharges, which marpol did not adopt as a standard, nor did any other international regulation qualifying as gairs, would go beyond the competence of the coastal State and may not be adopted. For instance if the coastal States require that the vessels have a separate ballast water tank to enter into an area, this would be a cdem standard. Such a regulation adopted within the mpa, may only give effect to an international regulation.182 On the other hand, the coastal State could adopt regulations that prohibit the vessels to wash their empty tankers within a certain area, as this is not a cdem requirement.183 Conclusively, stricter national discharges, extending even to zero-discharge areas may be adopted within the territorial sea to protect mpas. where it is emphasised that the steady pressure on the environment rom operational discharges will have negative impacts on sea bird populations. 180 los Convention Article 24 (1) (a). 181 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 201. 182 Such regulations are included in the marpol Convention, Annex 1. 183 Molenaar argues that exception to sovereignty over the territorial sea should be interpreted restrictively, and the minor impediments to cdem standards may be accepted if this is not the purpose of the regulations, see Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 200.

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18.6.4 cdem Standards Regulations that require higher technical standards within mpas could be an effective measure to minimise risks of accidents and reducing or avoiding operational pollution.184 Nevertheless, there is with the exception in Article 21 (2) a very narrow scope for the coastal States to regulate cdem standards also in the territorial sea. The right to regulate innocent passage does not cover a right to adopt cdem standards unilaterally. Hence, the coastal States have the competence to regulate the innocent passage but not adopt cdem standards. The coastal States may thus only adopt cdem standards that comply with gairs to protect their mpas. At this point, the prescriptive jurisdiction in the territorial sea is equally limited in the territorial sea and in the eez. Nevertheless, after the Prestige accident Spain, France and Portugal agreed to prohibit the transit of dangerous vessels such as Prestige, single hulled tankers over fifteen years with heavy fuel oil, through their eezs.185 This measure included a ban on a group of vessels that (at that time) complied with international standards, and the regulation was therefore widely criticized as not being in conformity with the los Convention.186 This example illustrates however, the practical effect such regulations could have, prohibiting vessels that imply an environmental risk. This would be an effective measure for protecting mpas or other vulnerable areas. The coastal States may not however, protect their mpas neither in the territorial sea nor in the eez against groups of vessels that they find risky, as long as the vessels comply with international regulations. Which standards that qualify as cdem standard is however, subject to interpretation, for instance whether a regulation would be a discharge standard or a cdem standard.187 In relation to Arctic shipping, a particular question is if the cdem standards adopted in the Polar Code may develop into gairs and be applied by the coastal States, as mandatory technical standards. The question is raised by the legal writer Henriksen. Henriksen points to that rules and standards must have a certain level of precision to qualify as gairs.188 As the cdem standards set out in the Polar Code are formulated as goal oriented 184 See Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: ­u nclos iii and Beyond,” 729–730. 185 See Ringbom, The eu Maritime Safety Policy and International Law, 476–478. For a discussion see also Veronica Frank, “Consequences of the Prestige sinking for European and International law,” The International Journal of Marine and Coastal Law, 20:1 (2005): 1–65. 186 Ringbom, The eu Maritime Safeety Policy and International Law, 477. 187 Johnson, Coastal state regulation of international shipping, 78–79. 188 Tore Henriksen, “Protecting polar environments: coherency in Arctic shipping” in Research Handbook in International Marine Environmental Law, ed. Rosemary Rayfuse (Cheltenham: Edward Elgar Publishing: 2015) 377–378.

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norms with a wide discretion and discretionary norms, Henriksen concludes that they are not adequate for developing into gairs as there are no specific rules or standard that may be prescribed or enforced.189 To protect sensitive habitats and ecosystems within an mpa against the environmental risk of vessels that are not in a good technical condition, the coastal States may on the basis of Article 21 (f) with regard to cdem standards only require that vessels comply with the international standards. However, it could be argued that vessels that for instance due to their construction or equipment impose “serious damage or threat to biodiversity” while exercising their right of innocent passage could be denied such passage, on the basis of Article 22 (1) in cbd. However, this clause is as explained above difficult to apply in practice. 18.6.5 Prior Notification Another relevant measure which may contribute to protecting mpas against shipping activities is a requirement of the coastal States of prior notification for certain vessels before entering into the territorial sea or before approaching the mpas. In addition, vessels that carry dangerous cargo have as shown before, the right of innocent passage.190 As the coastal States have limited possibilities to deny such vessels navigating in the territorial sea a possible protective measure for the coastal States could be to require prior notification, so that it may be prepared in case of accidents causing oil pollution. The discussion is limited to a discussion of the legality of adopting a requirement of prior notification. A few remarks is however, made on the possibility of adopting a requirement of prior authorisation. A requirement of prior authorisation for a vessel would violate the right of innocent passage set out in the los Convention Article 17.191 It is not acceptable that coastal States may deny the exercise of innocent passage, by refusing to give an authorisation to engage in such passage. On the other hand, such a requirement could be justified if it applies to vessels passing through certain areas within the territorial sea such as an mpa. Such a requirement could be adopted based on Article 21 (d) or (f). Whether this measure is acceptable or not must be evaluated in light of Article 24 (1). If the coastal State refuses to give such an authorisation 189 Ibid. 378. 190 See discussions above in Subsection 2.3.2.2. 191 Churchill states that a requirement of prior authorisation is incompatible with the right of innocent passage, see Robin R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the los Convention,” in Stability and Change in the Law of the Sea: The Role of the los Convention, ed. Alex G. Oude Elferink (Leiden: Martinus Nijhoff Publihseres, 2005), 115.

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this would in reality mean a ban on navigation within a certain area. The same arguments as when determining whether a ban on navigation is acceptable are relevant with regard to this regulation. When the interests of the coastal States are very strong, and such a measure would be necessary to protect the biodiversity or a fragile habitat, this regulation could be acceptable, see discussions above under Section 18.6.1. The purpose of preservation of the environment and protection from pollution in Article 21 (1) (f) is wide enough to cover a requirement of prior notification. Also Article 21 (1) (a) and the purpose of maritime safety may include such a requirement. An argument against a right for the coastal States to include such a requirement is that proposals to require prior notification by vessels carrying hazardous cargo were not included in the treaty.192 One may therefore argue that such a requirement was not intended to be adopted, as these vessels enjoy the right of innocent passage under Article 19. On the other hand the coastal States may, pursuant to Article 22, adopt sea lanes, which vessels like these are required to follow. A requirement of prior notification could be applied in connection with this measure. In relation to this Molenaar argues that it would be an odd situation if the coastal State may adopt sea lanes which it requires vessels carrying hazardous cargo to follow, but was not allowed to require prior notification with information of for instance the type of cargo that the vessels are carrying.193 The precautionary principle also supports this view.194 Moreover, the interpretation that allows the coastal States to require prior notification, may promote the obligation to protect the marine environment including sensitive habitats and ecosystems laid down in Articles 192 and 194 (5). There appears also to be a growing acceptance of such a right. Molenaar seems to argue that there is a movement in the direction of accepting prior notification.195 Churchill finds that although the state practice is diverging at this point, a requirement of prior notification arguably is permitted on the basis of Article 21 (1) (a) and (f).196 It may be concluded that the coastal States are competent to adopt regulations that require prior notification of vessels before entering into the territorial sea or when they are entering certain areas such as an mpa. Such regulations 192 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 205. 193 Ibid., 205–206. 194 Hakapää and Molenaar, “Innocent passage – past and present,” 144, argue that a requirement of the coastal State for prior notification may reflect an awareness in the international community to take precautionary actions to protect the marine environment. 195 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 241. 196 See discussions in Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the los Convention,” 115–119.

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must however, be evaluated in the context of the requirement in Article 24. Whether such a requirement is acceptable depends, in the same way as other regulations on an evaluation on the necessity of the regulation and how great impacts it has on the right of innocent passage. This must be determined on a case-by-case basis. Nevertheless, the environmental risk of shipping and in particular the navigation of certain types of vessels in sensitive or valuable areas can be high. Therefore when balanced against the threat of environmental damage and interference with vital interests of the coastal States, and also the interests of the coastal States to protect marine biodiversity, the burden on the navigation is not unreasonable. A requirement of prior notification for vessels that pose an environmental threat, will normally not imply unreasonable burdens and “hamper” the right of innocent passage. Conclusively, the coastal States may require prior notification for vessels sailing through mpas. 18.7

Coastal State Prescriptive Jurisdiction in the eez

18.7.1 General This section examines the competence of the coastal States to prohibit or regulate navigation within mpas established in the eez. The starting point for the discussion is the principle of freedom of navigation that all States enjoy in the eez, provided in Article 58 (1). The los Convention does not define the principle of freedom of navigation. Legal literature describes the freedom of navigation as the right to move around in the eez and on the high seas. This freedom of navigation covers also the right of stopping and anchoring.197 It is the normal passage and operation of ships that is included in this right. Activities such as illegal discharges or groundings are not part of the navigation.198 The principle of freedom of navigation does however, not mean an unrestricted right of navigation. Limitations of the principle follow from the los Convention itself. First, the freedom of navigations is qualified by the obligations of the flag States to adopt and enforce regulations over their vessels under Article 94 and 211 (2). Furthermore, it follows from Article 58 (1) that States enjoy the freedom of “subject to the relevant provisions of this Convention.” 197 Glen Plant, “The Relationship between International Navigation Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems,” in Competing Norms in the Law of Marine Environmental Protection, ed. Henrik Ringbom (London: Kluwer Law International, 1997), 26. 198 Johnson, Coastal state regulation of international shipping, 101.

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The freedom of navigation is therefore subject to the jurisdictional provisions for vessel source pollution in Part xii, and the sovereign rights over natural resources in Part v.199 States shall, as laid down in Article 58 (3), exercise their freedom of navigation with “due regard to the duties and rights of the coastal State” and in accordance with the provisions of the los Convention and “other rules of international law” that are compatible with Part v of the Convention. Newer environmental obligations and principles may therefore influence the interpretation of the scope of the coastal State jurisdiction with regard to how far they can adopt regulations to protect the mpas. The competence of the coastal State to adopt regulations to protect mpas in the eez against pollution from vessels is pursuant to Article 211 (5) limited to adopting regulations that qualify as gairs. The content and scope of term gairs is examined below. The relationship between Part v on sovereign rights over living resources and Part xii on the jurisdiction over the marine environment is as mentioned above in Subsection 2.4.4 not clearly defined in the los Convention. The possibility to adopt regulations for protecting the mpas against shipping activities based on the sovereign rights over living resources could enhance the possibility of ensuring effective protection of mpas, in situations where no appropriate gairs are available. To what extent coastal States may regulate navigation within eez based on their sovereign rights over living resources, is addressed below. 18.7.2 The Concept of gairs and the Jurisdiction of the Coastal States to Adopt Regulations to Protect mpas against the Impacts of Shipping In contrast to the wide jurisdiction of the coastal States to adopt their own environmental law and the wide authority to regulate the innocent passage within the mpas in the territorial sea, the prescriptive competence in the eez is much more limited. The coastal States enjoy however, a certain prescriptive jurisdiction pursuant to 211 (5) to adopt gairs. It follows from Article 211 (5) that the coastal State may: adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. In order to determine the scope of the right to adopt regulations for protecting mpas located in the eez from vessel source pollution, it is necessary to define 199 See Churchill and Lowe, The Law of the Sea, 264.

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the term gairs. The formulation “conforming to and giving effect to” indicates the maximum level of the regulations that the coastal States may adopt. The coastal States are, pursuant to the word “may” not obliged to adopt laws and regulations, but if they do, these regulations must conform and give effect to gairs. In this way, the rule of reference in Article 211 (5) secures that international rules and standards for the prevention of vessel source pollution apply in the eezs, instead of national standards. The los Convention does not define, or provide any guidance as to how the concept of gairs should be understood. Furthermore, there is not any case law directing when an international rule or standard becomes a gairs.200 Legal literature and state practice are therefore relevant legal sources for defining the concrete meaning of the level “generally accepted” and for determining whether a rule or standard qualify as gairs. The concept of gairs has been a subject for discussions over many years in legal literature.201 The ila Committee on coastal State jurisdiction relating to marine pollution also examines the concept in detail.202 First, as a starting point, it is reasonable that the reference to gairs encompasses more than customary law. A reference to customary law would be unnecessary.203 The international rules and standards that qualify as gairs may thus develop into customary law, but they do not have to obtain such ­status to be binding for states, through the rules of reference. Also the ila Committee understands the term gairs broader than encompassing only rules and standards that are part of customary law as they argue that gairs “can hardly be equated with customary law.”204 Similarly, it is also logical that the concept of gairs also encompasses more than the treaties that the States concerned are bound by, as a reference to treaties that the States are bound by outside the los Convention would be redundant.205 Consequently, a particular State may through the reference to gairs in the los Convention be bound

200 Ringbom, The eu Maritime Safety Policy and International Law, 394. 201 See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 140–168, Ringbom, The eu Maritime Safety Policy and International Law, 393–400, Johnson, Coastal state regulation of international shipping, 74–77 and Churchill and Lowe, The law of the sea, 346–347. 202 ila Committee, Final Report, 31–39. 203 Ringbom observes that if the intention was to make a reference to customary international law, the drafters could have settled with the more common reference to “international obligations.” Ringbom, The eu Maritime Safety Policy and International Law, 393–394. 204 ila Committee, Final Report, 36. 205 Ibid. See also Ringbom, The eu Maritime Safety Policy and International Law, 393–394.

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by international regulations included in treaties which they are not party to, and which would otherwise not be legally binding for the State as part of customary law. The key question when determining whether an international rule or standard qualify as gairs, is whether the rule or standard is “generally accepted.” The concrete meaning of the wording “generally accepted”; how many states that must have accepted the rule or standard, is not defined by the los Convention. The adopted formulation implies that not all parties to the los Convention have to accept the rule or standard. On the other hand, it is reasonable to understand the requirement “generally accepted” so that the majority of states accepts the potential regulation. According to the ila committee, “quantitative as well as functional majorities appear to be important.”206 The threshold “widespread and representative participation” appears to have gained support in legal literature.207 The ila Committee has identified three different views expressed from different legal writers, which range from a restrictive view, a moderate view, and a progressive view concerning which rules and standards that gairs covered. The ila Committee places itself in the last group.208 Whereas the moderate group accepts customary law and imo treaties that have entered into force, irrespective of the State concerned is party to the treaty or not, the last group takes a wider approach.209 From the perspective of this more progressive view of group three it is emphasised that the States, when ratifying the los Convention, accepted that they would be bound by certain international rules and standards.210 The wording of Article 211 (5) covers any type of law or regulation for the purpose of “the prevention, reduction and control of pollution from vessels,” which qualify as gairs. The formulation is reasonable to understand so that it includes not only measures which deal with pollution in a strict sense, such as discharges, but also navigational measures which protect areas from accidental pollution by directing the traffic out of sensitive areas and in this way contribute to avoiding accidents are included. Article 211 (1), which requires, 206 ila Committee, Final Report, 38. 207 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 156–157 and Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 26. 208 ila Committee, Final Report, 34–38. 209 See Ringbom, The eu Maritime Safety Policy and International Law, 394, note 54. 210 For more on the different interpretations of gairs, see Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 152–156.

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all States to adopt regulations for controlling pollution, specifically refer to “routeing systems designed to minimize the threat of accidents,” supports this interpretation. With regard to navigational measures, a particular question is however, whether measures such as sea lanes or other navigational measures such as ship reporting may be considered as “generally accepted.” Can for instance a routeing measure meet this requirement, since it by nature applies locally? Molenaar raises that question whether navigational measures that are designed for each particular situation and for each particular area, in contrast to discharge standards that may be applied everywhere, may comply with the requirement “generally accepted.”211 On the other hand, one may argue that even though navigational measures apply locally to particular areas, this does not mean that such measures may not be generally accepted.212 In addition, discharge standards such as mparpol Special Areas would also apply in specific areas. It is thus not a sharp distinction between measures, which may apply everywhere and navigational measures, which apply locally in particular areas. It is decisive whether the navigational measure such as traffic separation scheme etc. has achieved the widespread and representative acceptance, as required to be “generally accepted.”213 For instance, the routeing measures traffic separation shcemes which are set out in colreg rule 10, must be considered as “generally accepted.” If a coastal State adopts a traffic separation scheme in a particular part of an eez and approved by imo, this navigational measure would be binding as gairs for States that are not parties to colreg, but parties to the los Convention. In literature Molenaar, emphasises as an argument in favour of approving routeing measures as gairs, that otherwise the routeing measures “will not operate directly within the framework of losc” and that this “would undermine the function of the losc as a regulatory framework for vessel-source pollution.”214 In contrast to the situation in the territorial sea where navigational measures may be adopted unilaterally, the imo must endorse navigational measures adopted in the eez. Both colreg and solas require approval from imo for establishing mandatory navigational measures in the eez.215 211 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 364. 212 solas, colreg and marpol Annex i and ii are imo Conventions that so many states have accepted, and are parties to that they qualify as gairs, ila Committee, Final Report, 37–38. 213 The ila Committee argues that formal acceptance is not decisive, but whether the international rules are accepted in the state practice, see ibid. 214 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 365. See also, Ringbom, The eu Maritime Safety Policy and International Law, 442–443, note 232. 215 See further discussions below in Subsection 18.8.2.

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Another question, which has been discussed, is whether the concept of gairs includes not only legally binding law such as treaty law and customary law, but also recommendations, or other soft law instruments. This is a question of practical significance as imo plays an active role in the law making of shipping, maritime security and protection of the marine environment, both through the adoption of conventions, but also by amendments to these ­conventions, and by codes, guidelines and recommendations. The instruments adopted under imo are thus of varying legal status. There appears to be different opinions as to whether soft law may qualify as gairs.216 The ila ­Committee emphasises that: As such, it appears not only less important whether the legal instrument referred to containing the specific rules and standards is by itself legally binding, but the conclusion must be reached that in this respect the latter instrument is only of secondary importance. The central element, on the contrary, to determine the generally accepted character of a specific rule or standard appears to be the practice of states, no matter in what form the rule or standard might have been expressed. This may well be by means of a non-binding document, an agreement which at the time of adoption was rejected by a certain number of states but later on n ­ evertheless became acceptable to all as reflected in state practice, a resolution of an international organization, e.a.217 Whereas, the wording “rules” normally is understood as legally binding rules, the term “standard” opens for standards set out in both legally and non legally binding instruments. This suggests that soft law imo instruments such as guidelines and resolutions may be legally binding through the rule of reference under Article 211 (5), if they are widely accepted in state practice, and thereby qualify as gairs. Still, the prescriptive jurisdiction of the coastal States is significantly limited when it comes to the possibility of unilaterally adopting measures to protect certain areas from the impacts of shipping. Some legal writers have expressed concern with regard to the limitation of the prescriptive jurisdiction of the coastal States to merely adopting gairs.218 Although imo, influenced by Agenda 21 and the development of the international marine environmental 216 Birnie, “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on imo Norms,” 45–47. 217 ila Committee, Final Report, 37–38. 218 See for instance Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” 767–771. See also Ringbom, The eu Maritime Safety Policy

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law after the Rio conference, has adopted a number of important environmental regulations and implemented the principle of conservation of biological diversity through the concept of pssa, it is an organisation for shipping, with a purpose of creating a universal regulatory framework for the shipping industry that ensures safety, security and environmental protection and efficiency. It is, therefore, not unlikely that the interests of shipping as an international industry may collide with the interests and need for the coastal States to protect their living resources and their marine biodiversity. The contradicting interests of the coastal States and the flag States are reflected in the shape and content of gairs. As expressed by Molenaar, the most important objective of gairs is to promote the traditional coastal States interests on the one hand, and the interests of the flag States in maintaining the freedom of navigation on the other hand.219 It is thus questionable whether regulations that could benefit the concerns of the coastal States and contribute to ensuring effective protection of mpas, such as permitting a ban of navigation within areas sensitive to shipping, will be widely accepted among states and qualify as gairs. The concept of gairs opens for different interpretations and for a wide discretion when determining whether a rule or standard is a gairs. Different views on how to interpret both the terms “generally accepted” and “rules and standards” have been expressed.220 A negative consequence of this is that it is difficult to determine precisely when a rule or standard qualify as “generally accepted,” and therefore also to define the scope and extent of the coastal States jurisdiction to prescribe environmental standards generally, and in this case for protecting mpas located in the eez. On the other hand, the concept of gairs grants flexibility, and provides for development of the los Convention in the context of the legal development outside the los Convention. This flexibility may open for and allow a development of the coastal States rights over foreign vessels in line with current threats and environmental challenges. The concept of gairs may thus develop so that the coastal States have the opportunity to take appropriate actions to safeguard their legitimate interests and concerns, such as developing regulations that benefit the protection of mpas, and that have the potential of being “generally accepted” through the practice of states. The jurisdiction of the coastal States to adopt appropriate measures to protect mpas established in the eez, may be enhanced either and International Law, 399 who points out that this limitation does not enjoy “universal policy support.” 219 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 152. 220 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 87.

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through the interpretation of gairs, or by development of new stricter regulations ­appropriate for protecting mpas which qualify as gairs. To begin with, a broader and more lenient interpretation of the concept of gairs may enhance the jurisdictional competence of the coastal States to adopt measures for protecting their environmental interests. Ringbom notes that: Historically, coastal States’ interests have tended to gain supremacy over maritime interests over time. If this process continues, a more relaxed understanding of “general acceptance” might very well be a vehicle for achieving an alteration in the jurisdictional balance between coastal and maritime interests without upsetting the entire balance laid down in unclos.221 Secondly, new rules and standards suitable for protecting mpas may be developed within the limits of Article 211 (5) and the concept of gairs. Bodansky argues that the los Convention favours maritime interests, but that the states may develop new international rules and standards, which address new concerns of the coastal States and of the international community. This would be possible within the jurisdictional balance of the los Convention.222 Bodansky notes however, that maritime states have not taken a great interest so far, in developing international rules and standards, which take the interests of coastal States into account. As an example Bodansky refers to the development of the Protocol Concerning Specifically Protected Areas and Wildlife in the Caribbean, where the United States opposed a right to regulate shipping within sensitive areas, and a provision which preserves the balance between coastal and flag States as expressed in the los Convention was adopted instead.223 In addition, Henriksen finds that imo Conventions with the exception of the Ballast Water Convention, not explicitly have addressed the threats that shipping pose to the marine biological diversity.224 The interpretation of the concept of gairs covering soft law regulations may also enhance the prescriptive jurisdiction of the coastal States. Accepting soft law such as gairs, provided they are generally accepted, creates room for a dynamic development of the law. Instruments which are not legally binding 221 Ringbom, The eu Maritime Safety Policy and International Law, 399. 222 Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” 772. 223 Ibid., 772–773. 224 Henriksen, “Conservation of the Marine Biodiversity and the International Maritime Organization,” 345–346.

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may be developed more rapidly, and capture new values and crucial environmental interests and concerns, which may develop into gairs at an earlier stage than rules and standards adopted in treaties. This may contribute to a legal development of measures that benefit the possibility of the coastal States to protect the ecosystems or habitats protected as mpas in an effective manner. On the other hand, with the large amount of soft law instruments adopted within imo and with the difficulties with determining whether they are “generally accepted” or not, these benefits could be offset by an increased uncertainty and disputes concerning the legitimacy of coastal State measures. The imo resolution gpsr is in this regard an example of an imo resolution that is widely supported in state practice and qualifies as gairs.225 It is concluded above, in Subsection 17.4.5 that there is a limited scope for achieving harmony between the establishment of mpas that regulate shipping pursuant to and the principle of freedom of navigation laid down in the in los Convention through interpretation. However, the flexibility of the concept of gairs and the potential for adopting a broader interpretation and application of the concept of gairs may however, contribute to bringing the two treaties, the cbd and the los Convention, in harmony. A progressive interpretation of when a rule or standard qualify as gairs and a continuing process of developing new rules and standards which are appropriate for protecting sensitive areas from the negative impacts of shipping, may thus accommodate the implementation of cbd and its requirements to establish mpas which are effectively managed in the eez. To conclude, the concept of gairs limits the authority of the coastal States to adopt measures that are tailored to protect the concrete environmental values protected by mpas. Hence, whether the sensitive marine environment within an mpa located in the eez may be sufficiently protected from vessel source pollution and other environmental damage depends upon whether there is a gairs that may provide the appropriate protection available in the particular case. 18.8

Potential Measures to Protect the mpas in the eez against Impacts of Shipping

18.8.1 Ban on Navigation Within mpas in the eez As other States enjoy freedom of navigation within the eez pursuant to Article 58 (1), the coastal States do not have the competence to close the eez for 225 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 209.

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navigation of foreign vessels. If the coastal State wishes to ban navigation within an mpa established in the eez, under Article 211 (5) this regulation would have to conform to and give affect to a gairs. There is however, not adopted such a regulation under imo which allows the coastal States to unilaterally adopt a ban on navigation within certain areas of the eez to protect the area from pollution.226 A regulation that provides for a ban on navigation within sensitive or valuable areas protected as mpas, could, however, be adopted and develop into a gairs.227 The coastal States may however, with the endorsement of imo adopt the routeing measure atba, which is adopted under solas and gpsr and which qualifies as a gairs.228 It follows from the definition of atba in the gpsr 2.1.13 that this is a routeing measure that covers an area within defined limits where “either navigations is particularly hazardous” or “it is exceptionally important to avoid casualties” and which should be avoided by all vessels or certain vessels. In a situation where it is necessary to protect an mpa, or a part of an mpa that meet this definition, against all traffic, atba may be adopted as a mandatory measure and provide protection of sensitive areas within mpas, from threat and damage by operational and accidental pollution, and from physical damage of shipping.229 The application of atba and other routeing measures is a routeing measure and is further addressed below. Following the Prestige accident, France, Portugal and Spain adopted as mentioned above, bans on navigation on single hulled tankers carrying heavy crude oil in their territorial sea and eezs. It is however, agreed that these regulations exceed the competence of the coastal State under the los Convention.230 These vessels were complying with the technical standards of marpol, and although they posed a higher environmental risk, it was beyond the 226 Spadi provides an example from Guyana, where the state claims a right to regulate the passage of vessels in designated areas of the eez in Spadi, “Navigation in Marine Protected Areas: National and International Law,” 294. 227 Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” 772–774, argues that maritime states should be willing to develop measures which serve the interests of coastal States in protecting sensitive areas against the effects of shipping. 228 solas Convention ,V/10 and gpsr para. 2.1.13. 229 The solas Convention V/10(1). 230 See Robin R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the los Convention,” 130. See also Ringbom, The eu Maritime Safety Policy and International Law, 477.

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competence of the coastal States to prohibit these vessels to navigate in the eez. The possibility to deny certain risky vessels to navigate within mpas established in the eez is thus very limited. However, the routeing measure atba may be adopted also to prohibit certain vessels.231 If the coastal States wish to ban navigation within certain areas, beyond the available gairs they must act through imo. Article 211 (6) provides a legal basis for adopting special mandatory measures is special, when gairs are “inadequate to meet special circumstances.” It could be questioned whether this provision allows a ban on navigation within the defined area. An outline of the substantive and the procedural conditions, and the protective measures that may be adopted on this basis, is provided below in Section 19.3 As for icecovered areas, Article 234 may provide for the unilateral coastal State jurisdiction to ban navigation in certain areas.232 In a situation where the obligations under cbd require that a sensitive area, ecosystem, or habitat in the eez, must be protected against shipping activities to achieve the objectives of in situ conservation, there is a potential conflict between cbd and the freedom of navigation set out in the los Convention. According to Article 22 (1) cbd prevails in a situation where shipping “would cause serious damage or threat to biological diversity.” Even though the obligation to conserve biological diversity under cbd prevails in such a situation, the coastal State does not have the competence under 211(5) to avoid such damage by adopting a ban on navigation within the mpas. Nevertheless, this implies duties for flag States that are parties to both cbd and the los Convention, to exercise their freedom of navigation cautiously.233 18.8.2 Routeing Measures The question addressed here is to what extent routeing measures may be adopted to protect mpas established in the eez. The provision in the solas Convention V/10 does not distinguish between routeing measures adopted within or beyond the territorial sea. It follows from solas V/10 that routeing measures, may be mandatory, when adopted and implemented by imo and in accordance with the guidelines and criteria of imo.234 Routeing 231 See solas V/10 (1), and gpsr para. 2.1.13. 232 See further discussions below in Section 19.4. 233 Vessels are within the national jurisdiction of the flag State when navigating in the eez of other states and the obligations of cbd is applicable to this activity, pursuant to the cbd, Article 4 (b). 234 solas V/10 (1).

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­ easures such as a sea lane or an atba is as mentioned before relevant to m ensure protection of an mpa, as these measures lead the traffic outside the mpas and protect the areas against accidental and operation pollution, and also against the physical impacts of shipping. It follows however, from Article 211 (5) that the coastal States may adopt regulations that comply with gairs, for the purpose of the “prevention, reduction and control of pollution from vessels.” This wording indicates that Article 211 (5) does not provide for the coastal States to adopt measures that protect the marine environment against other impacts of shipping than pollution, which could be necessary to protect habitats or spawning areas from physical impacts and disturbance. Due to Article 211 (1), it is however, reasonable that the provision in Article 211 (5) also includes navigational measures, including routing measures.235 The links between routeing measures for the safety of navigation and protection of the marine environment are as argued above in Subsection 18.6.2.2, close, and it is accepted that routeing measures are applied for the purpose of protecting the environment from pollution and other impacts of shipping. According also to Ringbom, the jurisdiction of the coastal States to prescribe environmental regulations based on Article 211 (5) extends beyond discharge standards and includes navigational measures that both aims at ensuring maritime safety and environmental protection.236 Developments within imo through the amendments of solas and elaboration of routeing measures with a broader purpose to protect the marine environment from other impacts than pollution, support this understanding. As mentioned also above, both the solas Convention, and the gpsr have made it clear that routeing measures may also be adopted for the protection of the marine environment.237 solas and the other regulations on routeing measures adopted by imo now elaborate on and broaden the jurisdiction of the coastal States compared to what follows from the wording of Article 211 (5).238 Consequently, coastal States may, adopt mandatory routeing measures with the approval of imo, that enhance the safety of navigation and contribute to avoiding accidental pollution and where a secondary or indirect advantage of the measure is protection of the wildlife of an area from disturbance or of a coral reef or another sensitive habitat from physical damage. This includes measures such as routeing measures such as sea lanes, atba, deep water routes 235 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 364. 236 Ringbom, The eu Maritime Safety Policy and International Law, 390. 237 solas V/10 (1) and gpsr para. 1.1, 1.2.6., 3.4.2., and 3.6. 238 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 527; Ringbom, The eu Maritime Safety Policy and International Law, 443.

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etc. which are relevant measures to protect a coral reef or a sensitive habitat or area from other impacts of shipping as well as from pollution. With the acceptance for the use of routeing measures that indirectly benefit or promote protection of the marine environment from all impacts of shipping, including pollution and physical damage, and the developments within solas and gpsr that provide for the adoption of mandatory use of routeing measures solely on environmental purposes, the coastal States have increased possibilities to protect sensitive areas or mpas established in the eez from the impacts of navigation. In other cases, where the routeing measures are not relevant as pollution measures, such as for instance a no anchoring area, the situation is different. No anchoring area is included in the gpsr, and is described as a measure that are: “comprising an area within defined limits where anchoring is hazardous or could result in unacceptable damage to the marine environment.”239 The measures “no anchoring areas” is thus included as a routeing measures in the gpsr, and can be adopted and be legally binding on all states that are parties to the solas Convention.240 The possibility to adopt mandatory routeing measures that apply within mpas that do not aim at preventing pollution on the basis of the prescriptive jurisdiction of the coastal State is limited due to the wording Article 211 (5). There is therefore a gap between the legal obligations of the all States in Part xii to protect and preserve the marine environment under Article 192 and 194 (5), and the competence of the coastal States to address threats other than pollution. To what extent regulations that affect navigation may be adopted on the basis of the sovereign rights over living resources in Part v is addressed below. The coastal States must rely on the approval from imo to adopt routeing measures such as sea lanes and atbas as mandatory routeing measures, to ensure ­protection of areas designated as mpas against the impacts of shipping.241 It follows from the solas V/10 (1) that routeing measures may be made mandatory “when adopted and implemented in accordance with the guidelines and criteria developed by the Organization.” Furthermore, it is set out in soals V/10 (9) that the routing measures shall be consistent with the los Convention. The wording of Article 211(5) read in the context of Article 211(1) 239 gpsr, para. 2.1.14. 240 The background for the incorporation of no anchoring areas as a routeing measure, was the adoption of no anchoring areas to protect the Flower Garden Banks in Florida in us. See below in Section 18.9.1. 241 See discussions above on Article 21 and 22, where it is established that the coastal States may unilaterally adopt mandatory measures.

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and 211 (6) does not provide the coastal States with the authority to unilaterally adopt mandatory routeing measures. The coastal States may, therefore, under Article 211 (5), only adopt routeing measures that qualify as gairs with the approval of imo. The practice and considerations made within imo when deciding whether to adopt such a measure, is therefore of significance for determining the possibilities of coastal States to adopt measures that provide adequate protection of the mpas established to comply with international obligations to conserve marine biodiversity. imo appears however, to prefer recommended routeing measures.242 In literature, Kachel also states that the imo approved measures are mostly recommendatory.243 Kachel also argues that although there are increased possibilities to adopt mandatory measures, this has “not yet led to a proliferation of mandatory routeing systems.”244 Proposals on mandatory routeing systems to the imo, has been controversial and met resistance.245 An example of this is the proposal of the mandatory traffic separation schemes, in the eez from Vardø in Finmark to Røst in ­Lofoten Islands.246 Norway got approval from imo in 2006 for the adoption of traffic separation schemes from Vardø to Røst. Norway originally applied for one mandatory traffic separation scheme of 560 nautical miles, but the imo did not accept the proposal. Norway then revised the proposal, and eight shorter traffic separation schemes, in combination with seven recommended routes, did not, according to the committee, represent a disproportionate ­burden on international shipping.247 As mandatory routeing measures are interfering with freedom of navigation, the imo will carefully consider the burdens of these measures on international shipping before giving approval to such measures. The considerations that imo will make when determining whether to approve a mandatory routeing measure are elaborated in the gpsr.248 There are rather strict guidelines 242 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 337. 243 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 196. See also analyses in Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 338–340. 244 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 195. 245 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 339. 246 Ibid., 339–340. 247 imo Sub-Committee on Safety of Navigation, “Report to the Maritime Safety Committee,” 15 August 2006, nav 52/18, para. 3.37. 248 gpsr, paras.3.5 and 3.6.

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for the use of mandatory measures established in the gpsr. It follows from the gpsr para. 3.6.1. that imo will consider whether routeing measures that are intended to protect the marine environment can “reasonably be expected to significantly prevent or reduce the risk of pollution or other damage to the marine environment of the area concerned.” Furthermore, it follows from gpsr para. 3.6.2. that imo will consider whether the routeing measure, in relation to the size of the area to be protected and the number of environmentally sensitive areas established or identified in the geographical region “could have the effect of unreasonably limiting the sea area available for navigation.” It is explicitly stated that in relation to the measure atba, imo will consider whether this measure has such impact on the freedom of navigation. It follows also from para. 3.7. of the gpsr that: “imo will not adopt a proposed routeing system until it is satisfied that the proposed system will not impose unnecessary constraints on shipping.” It follows also from the design criteria of routeing measures that the use of mandatory systems are restricted, as it follows from gpsr para. 6.18: that: The extent of a mandatory routeing system should be limited to what is essential in the interest of safety of navigation and the protection of the marine environment. The routeing measure atba could serve a particularly important role in protecting ecosystems and habitats within mpas, as the measure ensures protection both against vessel source pollution and other impacts of shipping. The measure can also protect a sensitive area against disturbances from shipping, or a coral reef from groundings, as vessels are denied the right to navigate within such an area. However, there appears to be established a strict practice within imo. The definition of atba adopted in gpsr in para. 2.1.13 indicates that the measure is intended to be applied in an area which is “particularly hazardous” to navigate within and where it is “exceptionally important to avoid casualties.” The strict conditions imply that these measures can only be adopted in certain areas under particular circumstances. The ecological characteristics such as a critical habitat protected as an mpa could qualify as a reason to adopt this measure within an area, if it is “exceptionally important to avoid casualties.” due to such values. A large mpa, for instance an area that it established for protecting marine ecosystems as a reference area, but where the density of traffic is not very high or there are no characteristics of the area that make navigation particularly hazardous, would therefore not be accepted as an atba. Even though the area is an environmentally sensitive area, the size of the area is an important consideration for the imo. A large area would not be approved as a

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mandatory atba even if the area is a sensitive marine area, as it would impose unreasonable burdens upon the freedom of navigation. Kachel also observes that the practice indicates that atbas have only been accepted for small sensitive areas, or “to preclude obstructions to navigation caused by certain features of an area.”249 It appears therefore that atba is not a tool that may be adopted in all types of mpas. There is a high threshold for applying the tool, as it will easily infringe upon navigational rights. The Baltic pssa may illustrate this where the proposal included mandatory ATBAs. The sub-committee nav found however, that the proposal did not justify mandatory atbas, but accepted the adoption of two recommended abtas.250 A precautionary area, provided for in gpsr para. 2.1.12 could also serve to protect an mpa. This is defined as a “routeing measure comprising an area within defined limits where ships must navigate with particular caution.” This measure does not set out any strict conditions such as atba. It is also pointed out in literature that this measure has a limited significance or benefits for protection of the environment, as it does not include any measures that the vessels have to comply with.251 Conclusively, mandatory routeing measures that are suitable to protect mpas against the environmental impacts of shipping such as sea lanes and atba, exist and may be adopted to prohibit or lead all vessels or certain categories of vessels outside the protected sites. These measures must be submitted to imo and approved in order to be mandatory. Practice within imo indicates that imo is reluctant to approve mandatory routeing measures, and suggests that such measures, in particular the tool atbas will not be widely approved for the purpose of protecting mpas or other sensitive areas of the eez. 18.8.3 Discharge Standards The coastal States are according to Article 211 (5) limited to adopting discharge standards that comply with gairs to protect mpas against discharges from vessels. The marpol Convention, Annexes i and ii are binding on the states that are parties to the marpol, and it is agreed that these annexes qualify as 249 See Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 193. 250 imo Sub-Committee on Safety of Navigation, Report to the Maritime Safety Committee, 4 July 2005, nav 51/19, para.3.50. 251 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 192.

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gairs.252 The coastal States, within the eez, may therefor adopt the discharge standards adopted under these annexes. As for the other annexes, it is a question whether they are “generally accepted.” In a situation where the normal standards established in the Annexes of the marpol Convention do not provide sufficient protection of an mpa, the coastal State may act through imo and propose the adoption of Special Area under marpol, where stricter standards for discharges may be adopted. Such stricter standards may also be adopted under the los Convention 211 (6) and as a protective measure within a pssa, as will be further discussed below in Chapter 19. However, in the Arctic, bans on discharges of oil and noxious liquid are adopted in the Polar Code.253 18.8.4 cdem Standards Coastal States do not, in the same way as those in the territorial sea, have legal competence to adopt regulations that require vessels to comply with higher technical standards than what follows from gairs to navigate within mpas adopted in the eez. cdem standards must qualify as gairs to be acceptable under ­Article 211 (5). Coastal States do not need, however, approval from imo to adopt such standards. cdem standards adopted in the marpol Convention Annex i, ii, and probably v as well as in the solas Convention qualify as gairs, and may be adopted as requirements for navigating within mpas.254 The ban on single hulled tankers from the eezs of France, Spain, and Portugal is mentioned above as an example of a regulation that in reality is a regulation of a cdem standard. The possibilities for the coastal States to unilaterally protect their mpas against certain vessels that impose an environmental threat due to their construction or equipment are equally limited for mpas established in the territorial sea and in the eez. Johnson argues that on the basis of a strict interpretation of cdem standards and a broad interpretation of the concept of gairs, for instance through a lenient understanding of when a regulation is generally accepted, it is possible to argue in favour of a wider scope for the coastal States to adopt such standards to protect the environment from the impacts of ­shipping.255 A more appropriate way would however, be to cooperate with 252 It is also argued that Annex v qualify as gairs, see Kachel, Particularly Sensitive Sea A ­ reas: The imo’s Role in Protecting Vulnerable Marine Areas, 102. 253 See Subsection 18.3.3.4. 254 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 172–173, and ila Committee, Final Report, 37–38. 255 Johnson, Coastal state regulation of international shipping, 78–79.

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imo, and develop international standards necessary for ensuring sufficient protection of sensitive sea areas. One may also question whether stricter cdem standards may be adopted based on Article 211 (6) or as a protective measure within areas designated as pssas. The criteria and possible measures that may be adopted within Special Areas and pssas are discussed in the next chapter. 18.8.5 Prior Notification A regulation that requires prior notification by the vessels before entering an mpa, must be adopted as a measure in an international instrument and qualify as gairs to be acceptable. From an environmental perspective, there are good reasons for allowing the coastal States to require a prior notification. There are also examples of states requiring this, such as Morocco, which has claimed a right of prior notification. However, as Churchill pointed out, it is not possible to state whether this is a practice that reflects an agreed upon interpretation of the Convention.256 Molenaar also indicates that there are few claims of prior notification in the eez, and that it is not sufficient to conclude that a rule of customary law has been developed on this basis.257 One could argue that a requirement of a prior notification before sailing into sensitive areas protected as an mpa, would not impose any heavy burdens on navigation and therefore is acceptable. On the other hand, there is no gairs available that provide for this instrument. Consequently, the coastal States may not require prior notification from vessels based on 211 (5) to protect mpas against the impacts of shipping. The coastal States must therefore act through imo and propose the adoption of this measure through the regime of pssa or 211 (6). 18.9

May the Coastal States Adopt Regulations to Protect the mpas from Impacts of Shipping Based on the Sovereign Rights Over Living Resources?

18.9.1 General Given the above discussions, it is opportune to examine whether there is a legal basis to regulate shipping activities on the basis of the sovereign rights over living resources set out in Article 56 (1) (a) to protect certain areas such as an mpa, within the eez. Whereas Article 192 and 194 (5), supplemented by cbd contains legal duties to protect the marine environment and the biological 256 Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the los Convention,” 130. 257 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 381.

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diversity, the responsibilities between the coastal States vs. the flag States when implementing them are not clear.258 The prescriptive jurisdiction of the coastal States is limited to adopt gairs for the purpose of prevention and reduction of pollution from vessels. Routeing measures and other navigational standards which qualify as gairs and may be adopted based on 211 (5) are protecting certain areas such as mpas from impacts of navigation, for instance by leading traffic outside areas with particularly high density of biodiversity or vulnerable marine ecosystems. Shipping may, however, have other impacts on the marine environment and biological diversity than does pollution. Subject issue here is whether the sovereign rights over living resources provide such a legal basis for regulating navigation in a situation where the coastal States are obliged to or wishes to protect habitats or ecosystems, for instance coral reefs against physical damage of shipping, caused by for instance anchoring or strikes between vessels and marine mammals. Also, ballast water discharges falls outside the definition of marine pollution in los Convention Article 1 (1) (4) and thus the prescriptive jurisdiction of the coastal State in the eez.259 An example, from state practice, is the United States who claimed the right to establish a no anchoring area in Flower Garden Banks based on their ­sovereign rights to protect coral reefs from physical impacts of shipping.260 The imo approved of the adoption of such a measure as it has endorsed no anchoring areas in the Flower Garden Banks National Sanctuary and in the Flower Garden pssa.261 Following this, imo amended the gpsr and included no anchoring areas as routeing measure in 2000.262 This amendment was a response to a proposal from the United States.263 The United States’ position is based on the view that the establishment of no anchoring areas is not a

258 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 345. 259 Molenaar, “Arctic Marine Shipping: Overview of the International Legal Framework, Gaps and Options,” 305–306. 260 See Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 74. 261 See Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 193. 262 imo Maritime Safety Committee, Report of the Maritime Safety Committee on its ­Seventy-Third Session, 14 December 2000, msc 73/21/Add. 3. The measure is incorporated in gpsr, para. 2.1.14. 263 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 74.

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measure for pollution control, but rather a measure for resource control.264 The no anchoring area in Florida is an example of the potential of the sovereign rights over living resources as a possible legal basis to adopt appropriate measures to protect the environment from other impacts of shipping than vessel source pollution. There are also other examples in state practice from the United States and Canada where navigation within sanctuaries has been restricted to avoid striking between vessels and whales.265 18.9.2 Is There a Legal Basis for Regulation of the Physical Impacts of Shipping? The wording “sovereign rights” for the purpose of “conserving and managing the natural resources” is broad and covers regulations of activities that are necessary for maintaining the living resources. It is acknowledged in legal ­literature that the sovereign rights over living resources includes a right to adopt regulations that affect the navigation of fisheries vessels for the purpose of conservation of living resources.266 The wording may also include regulations of shipping to avoid physical damage on the environment or habitats of species. The physical elements of the marine environment are necessary elements for conservation of living resources, and one may therefore argue that regulations of shipping for avoiding physical damage on coral reefs, for instance, are covered by the wording. The distinction, which is maintained between the sovereign rights to conserve and manage living resources in Article 56 (1) (a) and the competence to regulate navigation by adopting gairs in Article 211 (5), may however, preclude the possibility to regulate the navigation of other vessels than fisheries vessels on the basis of the sovereign rights. The relationship between Article 211(5) and Part v is not clear and it is, however, argued that there is a legal basis 264 See Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: ­u nclos iii and Beyond,” 766–767. 265 For more, see Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 75 and David L VanderZwag, “Shipping and Marine Environmental Protection in Canada: Rocking the Boat and Riding A Restless Sea” in Navigational Rights and Freedoms and the New law of the Sea, eds. Donald R. Rothwell and Sam Bateman (The Hague: Kluwer Law International, 2000), 223. For more on the right whale restrictions see also “Fisheries home-Protected resources,” National Oceanic and Atmospheric Administration (noaa), available at http://www.nmfs.noaa.gov/pr/shipstrike/ (accessed October 2015). 266 Churchill and Lowe, The Law of the Sea, 175; Burke, The New International Law of Fisheries; unclos 1982 and Beyond, 315–330; Nandan and Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary ii, 565.

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to regulate shipping activities that pose other threats to the marine environment based on Article 56. Ringbom states that: it may well be that certain matters relating to the navigational rights of foreign ships could be decided by reference to the jurisdictional regime under Part v.267 Molenaar argues that the state practice of the United States supports this view when it comes to anchoring.268 Molenaar has however, also expressed concern that the reasoning of the United States of the anchoring restrictions in Flower Garden Banks as resource control and not pollution control, may interfere with the balance of navigational interests and environmental protection in Part xii.269 Some writers have expressed a flexible view of the relationship between Parts v and xii than the views expressed above. Bodansky raises the question whether the sovereign rights over the natural resources may “include a right to impose and enforce environmental regulations.”270 Bodansky does not answer this question, but notes that if this is acceptable: it opens the door to other assertions of “protective jurisdiction” by coastal States in their eez, and the issue again becomes one of assessing the impact of these regulations on the navigational interests of maritime states.271 According to Johnson, the coastal States may adopt measures that impact navigation on the basis of the sovereign rights over living resources.272 It is emphasised by Johnson that in situations where the: navigation of a ship in the eez results or is likely to result in the damage or destruction of a coastal State’s territory, territorial sea or eez ­resources. In such cases, it could be argued that the activity of the ship is more akin 267 Ringbom, The eu Maritime Safety Policy and International Law, 390. 268 Molenaar, “Arctic Marine Shipping: Overview of the International Legal Framework, Gaps and Options,” 305. 269 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 417–418. 270 Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: unclos iii and Beyond,” 766. 271 Ibid., 766–767. 272 See Johnson, Coastal state regulation of international shipping, 103–106, and 116–118.

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to “fishing” or using a coastal State’s resources and should thus be subject to regulation by a coastal State under its sovereign rights authority.273 Also Roberts acknowledges a right to adopt navigational measures on the basis of the sovereign rights under Part v of the los Convention, to protect the environment from environmental damage that is not directly related to pollution, when the effects are tied to the living resources and the economic exploitation of them.274 Roberts, emphasises, however, that while Article 56 (1) (a) is important for legitimating coastal State jurisdiction, the provisions of Part xii and especially the Articles 192 and 194 (5) is providing a broader mandate for imo to adopt measures to ensure environmental protection and conservation of biological diversity.275 A more appropriate way, in order to prevent, disputes is also to involve imo and with their approval establish available routeing measures to protect the biodiversity against physical impacts from shipping.276 Still, as pointed out by Roberts, it might be necessary to establish measures that are not developed or approved by imo.277 The answer to the question whether the sovereign rights provide an adequate legal bases for the coastal States to regulate navigation on the basis of sovereign rights is however, not clear. In the light of the obligations of all States to protect and preserve the marine environment, including sensitive ecosystems, as well as the legal obligations to conserve the marine biological diversity under the cbd, and with the limited possibilities for the coastal States to regulate other threats to the biodiversity than pollution from shipping activities, there are good reasons for arguing that there is certain scope for regulating navigation on the basis of their sovereign rights in the eez. The regulations must however, be tied directly to the potential impacts of the shipping activies, with the aim of protecting the living marine resources.278 273 Ibid., 117. 274 Roberts, “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures,” 141 and also Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 74–75. 275 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 75. 276 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 345. 277 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 75. 278 See Henriksen, “Conservation of marine biodiversity and the International Maritime ­Organization,” 345.

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18.10 Conclusions The coastal States have a wide competence to adopt regulations to ensure protection of ecosystems or habitats within mpas located in the territorial sea. In this zone, the coastal State may ban navigation within the mpas and adopt a wide range of routeing measures to protect the mpas, as far as the measures are not impairing the right of innocent passage. When it comes to the adoption of bans on navigation, the legal situation is uncertain as this regulation may impose too onerous burdens on the right of innocent passage. However, when necessary to protect the objective of conservation within mpas, and such a measures does not have unreasonable burdens on the right of innocent passage, such a ban is acceptable. The exception from the right to regulate cdem standards beyond international standards, limits the possibility to ensure protection of the mpas from potential environmental damage. Still, it may be concluded that it is possible to adopt integrated cross-sectoral mpas in the territorial sea where shipping is regulated, or under certain circumstances, prohibited. The legal competence to adopt protective measures against the impacts of shipping is much more limited in the eez, than in the territorial sea. To ensure appropriate and sufficient protection of mpas, the coastal States must rely on the existence of a gairs, and for many measures, an imo approval. Practice within imo show that routeing measures often are adopted as recommended measures that may not be enforced and are left to the willingness of the flag States to implement. The coastal States lack the legal competence to unilaterally adopt the necessary protective measures tailored to protect a vulnerable ecosystem, a representative area, or a critical habitat. This reduces the possibility for the coastal States to adopt measures that are flexible and tailored to the ecological characteristics of a certain area, which is necessary to ensure in situ conservation of marine biodiversity. The limited jurisdiction to take unilateral actions to protect the mpas against the impacts of shipping makes it difficult to establish and manage integrated mpas in this zone. Consequently, although the coastal States have obligations under both the los Convention and cbd to protect and conserve ecosystems and habitats, species, and the marine biodiversity, they are not provided with the necessary means or tools in the los Convention to meet these requirements. Even though coastal States have the legal authority to establish mpas in this zone, they lack the means to unilaterally establish mpas with the necessary protective measures to achieve the objective of in situ conservation. The flag States that are Parties to cbd are, however, committed to complying with their obligations

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and must ensure that vessels that are flying their flags are not causing serious damage or threatening biodiversity. It is, however, difficult to ensure that the flag States comply with this obligation, and this is not a satisfactory solution from the perspective of the coastal States. In order to ensure sufficient protection of mpas from the impacts of shipping, the coastal States could adopt far reaching interpretations of the term gairs or adopt broad interpretations of the legal basis to adopt measures on the basis of the sovereign rights over living resources. A practice in which coastal States regulate shipping on the basis of the sovereign rights may, however, lead to legal uncertainty and creeping jurisdiction.279 A more appropriate method for coastal States is, therefore, to act through international cooperation as encouraged by Agenda 21, and call for the development of adequate measures to protect mpas. In this way, new regulations that provide for appropriate protection of marine biodiversity could be developed into gairs that could provide the coastal States with the flexibility to ensure mpas are protected on the bases of ecological criteria, tailored to the characteristics of the specific area, without attention to the jurisdictional boundaries. This also requires that maritime states without strong coastal interests recognise the importance of developing measures that benefit protection of sensitive or valuable areas, although the adoption of new rules tailored to ensure protection of mpas will infringe upon the freedom of navigation. Only in this way will the regime of the los Convention and the cooperation between states through imo develop and ensure compliance with the environmental obligations to establish and effectively manage mpas. 279 Ibid.

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Specially Designated Areas to Protect the Marine Environment against Impact of International Shipping Activities 19.1

Challenges to the Establishment and Management of Integrated mpas

Despite the obligations reflected both at the global and regional levels and the encouragement to establish mpas reflected in non binding instruments, few effective mpas have been established, globally and regionally. Although it is agreed that mpas are significant tools for the conservation of marine biodiversity at both the global and regional level, the experience is that there are too few mpas established, and even these are not effective.1 The Arctic region especially has a mere few mpas.2 Furthermore, the network of mpas in the ospar maritime area, which covers parts of the marine Arctic, is not considered welldistributed or an ecological coherent network.3 Moreover, the mpas are also often not really integrated mpas as, for instance shipping is rarely regulated or prohibited within the protected areas.4 There are many obstacles when establishing effective mpas that succeed in achieving their objectives. One problem at the national level is that the ­establishment of effective mpas requires that states must have the proper ­legal framework and institutions in place. Conservation of marine biodiversity is a complex issue and requires that all threatening or damaging activities be ­addressed. It must be dealt with by different national and local authorities. Institutional fragmentation is, however, stressed as an obstacle against appropriate implementation of the obligations.5 The fragmented way in which the 1 http://wwf.panda.org/about_our_earth/blue_planet/problems/inadequate_protection/ (accessed November 2015) According to the World Wildlife Fund (wwf) only 3, 4% of the world’s oceans are protected as mpas. 2 Only 1, 94% of the Arctic Waters are covered by ospar mpas, ospar Commission, 2014 ­Status Report on the ospar Network of Marine Protected Areas, 16. 3 Ibid., 27. 4 See discussions above in Section 18.2. 5 Frank, The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level, 375.

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competence of different state authorities is divided is emphasised as a critical aspect for the effectiveness of the mpas.6 In Norway, the Nature Diversity Act7 of 2009 provides a legal basis to ­establish mpas within territorial waters.8 There are no legal bases for integrated crosssectoral mpas beyond the limits of the territorial waters as the ­provisions on protected areas do not apply here.9 The Marine Resources Act10 does, however, provide a legal basis for adopting a limited type of protected areas where harvesting and other forms of use of wild living marine resources may be prohibited. The Nature Diversity Act aims to integrate and coordinate environmental considerations in the decision-making process within all sectors and authorities.11 Environmental principles such as the precautionary principle and the ecosystem approach/cumulative effects are incorporated into the Nature Diversity Act, and shall serve as guidelines for all exercise of pubic authority beyond the territorial waters. Thus the Norwegian fisheries authorities and the petroleum authorities for instance, are required to take into account these environmental principles when making decisions regarding the continental shelf or in the eez when there may be an effect on the biological diversity. At the national level in Norway, the problem in coordinating different national authorities is also accommodated by the adoption of the integrated management plans adopted for the North Sea-Skagerak, the Norwegian Sea, and the Barents Sea-Lofoten Area.12 These plans aim for ecosystem-based ocean management and integrated management of the human activities that take place within the areas of the plans. The Barents Sea plan covers parts of the marine Arctic.13 The management plan for the Barents Sea identifies, as also mentioned above in 6 7 8 9 10 11

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Scovazzi, “Marine Specially Protected Areas under Domestic Legislation,” 15. Nature Diversity Act, Act of 19 June 2009 No.100 Relating to the Management of Biological, Geological and Landscape Diversity. Ibid, Section 39. Ibid., Section 2. Marine Resources Act, Act of 6 of June 2008 No. 37 Relating to management of wild living marine resources, Section 19. Nature Diversity Act, Section  1 and the Norwegian Ministry of Environment, “Om lov om forvaltning av naturens mangfold (naturmangfoldoven)”, Ot.prp. nr. 52 (2008–2009), 13–16. For information about the plans, see Ministry of Climate and Environment,”Management plans for marine areas,” https://www.regjeringen.no/en/topics/climate-and-environment/ biodiversity/innsiktsartikler-naturmangfold/forvaltningsplaner-for-havomrada/ id2076485/ (accessed December 2015). Norwegian Ministry of the Environment,”First update of the Integrated Management of the Marine Environment of the Barents Sea-Lofoten Area,” 12–13.

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Subsection 16.3.7 areas that are particularly valuable and vulnerable and thus require special caution, such as the marginal ice zone and the polarfront, as well as the Bear Island.14 The use of mpas as a spatial tool for achieving an integrated ocean management is also emphasised in this plan.15 As concluded above there are uncertainties when it comes to whether and when states are obliged to establish mpas, and with regard to the content of the mpas such as which regulations and how strict they should be. The establishment and effective management of mpas depend on the political will to designate areas in which to prohibit or restrict human activities for environmental purposes. The obligations to establish mpas impose constraints on the use of the marine areas for which there might not be a political will at the national level to carry out. The creation of mpas include various conflicting interests such as an oil reserve discovered close to an area that is considered sensitive or valuable such as spawning grounds or coral reefs. Large areas in the Barents Sea are managed as sensitive and valuable sea areas according to the Integrated Management Plan for the Barents Sea-Lofoten Area, and thus closed for petroleum activities.16 In the last years there has, however, been a political debate in Norway about opening these northern areas for petroleum activities. Another problem in ensuring effectively managed mpas is that there are no mechanisms for sufficient compliance with the obligations or enforcing the regulations adopted within the mpas. Enforcement mechanisms in international environmental law are generally weak, which also is the case with cbd. States must rely on the enforcement jurisdiction and mechanisms available in the los Convention. This is, however, insufficient from a coastal State ­perspective. The purpose of regulations for the navigation within mpas is to avoid operational pollution, regulate the traffic within the mpas to avoid ­accidental damage, or protect a breading or nesting area from disturbance. As shown above in Section 2.7, there are limited possibilities for the effective ­enforcement of violations of routeing measures, such as a sea lane or an atba established to guide traffic outside an mpa, if the violation does not result in major damage or a threat of damage.17

14 15 16 17

Ibid., 22–27. Ibid., 134. Ibid., 22–27 and 136–138. los Convention Article 220 (3)–(6). See Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 344–345. For more details see Molenaar, Coastal State Jurisdiction over Vessel Source Pollution, 382–388.

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Moreover, the environmental problems and threats are of such a ­character that it is not possible to establish effective mpas solely on the basis of n ­ ational regulation. The Arctic Waters are threatened by pollution from most of the ­marine pollution land-based activities and from long-transport pollution, which regulations within the mpas are not capable of protecting the biological diversity and ecosystems against. Moreover, species that are protected within one mpa are wandering and may be threatened by human activities in other areas. Climate change represents one of the greatest challenges to the environment in our time. mpas may, however, not be able to protect their species and ecosystems from the environmental impacts of climate change.18 A significant threat to marine biodiversity is the acidification of the oceans, which is a ­consequence of the increasing levels of atmospheric co2, and is also a problem that cannot solely be solved by the use of mpas. Consequently, mpas alone may not be able to ensure sufficient and appropriate environmental protection and ensure conservation of marine biodiversity. In addition to the establishment and management of mpas, there must be cooperation and coordination of activities at an international level – between both states and between organisations. Global environmental problems such as long-transport pollution, climate change, and illegal fishing that threaten the biological diversity are global problems that require global cooperation through international organisations and international instruments. Thus, within several fields, the establishment of effective integrated mpas require international cooperation between states and between states and organisations.19 Therefore, there are limitations as to how far states may succeed when adopting mpas by unilateral actions at the national level. In the literature, Tanaka argues that it is necessary with a multi-disciplinary consideration to ensure conservation of biodiversity.20 To be effective, mpas must be established as a part of a wider integrated ecosystem-based management of the oceans.21 Moreover, the analyses in the previous chapters show that the establishment and management of mpas raises problems in the meeting of the requirements of establishing integrated mpas within the traditional regime of the 18

On the other hand, mpas may serve a role in combating the impacts of climate change by protecting the marine environment from other external pressures within certain areas. 19 ospar includes as shown above in Subsection 8.2.1 and in Section 15.5, obligations in Article 4 for the OSPAR Commission and the Contracting Parties to cooperate with fisheries ­organizations and imo. 20 Tanaka, A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in International Law of the Sea, 191–197. 21 Cicin-Sain and Belfiore,”Linking Marine Protected Areas to Integrated Coastal and Ocean Management: A Review of Theory and Practice,” 850–854.

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los Convention. In this traditional legal regime, the jurisdictional b­ oundaries ­providing the coastal States with varying legal competence to regulate and ­enforce ­shipping do not necessarily match the ecological characteristics of the  different areas. Thus this chapter discusses to what extent the specially designated area, or the area-based management tools provided for by the imo with the marpol Special Areas and the pssa or the los Convention with the special area set out in Article 211 (6) and the ice-covered areas in Article 234, may contribute to overcoming the jurisdictional obstacles in establishing mpas and  provide for the establishment of mpas where shipping is restricted or ­prohibited. The aim of this chapter is thus to examine to what extent these ­regimes are suitable for accommodating the establishment of integrated mpas by providing the authority to adopt protective measures that are particularly tailored to a certain area. In order to clarify to what extent the application of these regimes may accommodate the establishment of effectively integrated mpas, the criteria for the designation of these areas, what protective measures that may be established within the areas, and their legal status under international law are examined. In particular, the chapter focuses on the concept of pssa. A pssa may address all effects of shipping, as all available imo measures may be a­ dopted and combined to protect a certain geographical area, and therefore appears to be the tool that best reflects and facilitates the new ecosystem-based, integrated approach to ocean management, and the complex issue of biodiversity conservation.22 19.2

Introduction to Specially Designated Areas for Protecting Certain Areas against the Environmental Impacts of Shipping

The international regimes adopted to regulate shipping that are addressed in this chapter are described and referred to as a kind of mpas by some legal ­writers.23 mpas as defined in the cbd and the ospar Convention are crosssectoral, providing comprehensive protection from all activities that must 22

23

Ingvild Ulrikke Jakobsen,”The Adequacy of the Law of the Sea and International Environmental Law to the Marine Arctic: Integrated Ocean Management and Shipping,” Michigan State International Law Review, 22:1 (2013): 316. Tanaka refers to them as “mpa-related concepts”, The International Law of the Sea, 347 See also de La Fayette,”The Marine Environment Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law,” 186. For further references see also Julian Roberts, Aldo Chircop and Siân Prior, ”Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” The ­International Journal of Marine and Coastal Law 25 (2010): 498.

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be addressed within environmentally sensitive sea areas. The international regimes for specially designated areas are however, designed to address the problem of vessel source pollution and environmental damage caused by shipping activities. marpol Special Areas, pssa and the los Convention 211 (6) and 234, provide for the regulation of shipping activities within a certain area and can be classified as area-based management tools. There are both some similarities and differences between these concepts or tools. First, they all provide for protection of certain areas from environmental impacts of shipping. A common feature with regard to the marpol Special Area, pssa and the los Convention Article 211 (6), is that imo is involved in the process of establishing these special regimes. Article 234 of the los Convention provides however, for the jurisdiction for the coastal States to adopt stricter regulations against shipping within ice-covered areas. In contrast to the other regimes addressed here, Article 234 does not involve the imo when the coastal State exercise jurisdiction on this basis. 19.3 The los Convention 211 (6) Article 211 (6) provides for stricter regulation within certain areas of the eez, under certain circumstances, and due to specific procedures than provided for by Article 211 (5).24 imo envisages the establishment of a special area where “­international rules and standards ... are inadequate to meet special circumstances.” Article 211 (6) (a) to (c) is therefore an exception from the prescriptive jurisdiction of the coastal States that is limited to establishing regulations that comply with gairs. A special area under Article 211 (6) is a “clearly ­defined area” of the coastal State’s eez where “the adoption of special mandatory ­measures for the prevention of pollution from vessels is required” due to the criteria stipulated in the provision. The adoption of a special area is subject to several cumulative conditions prescribed in Article 211 (6) (a). First “international rules and standards” must be “inadequate to meet special circumstances.” The area must be clearly defined by its respective exclusive economic zone – which suggests that it may not be the entire eez. However, as pointed out by Molenaar – it should be understood so that areas of the territorial sea can be included.25 Moreover 24 25

For a detailed discussion of Article 211 (6), see Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 402–419. Ibid., 402–403.

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the provision contains requirements to the special area as it follows from the provision that the adoption of the special mandatory measures is required for recognized technical reasons in relation to its oceanographical and ecological conditions, as well as its utilization or the protection of its resources and the particular character of its traffic,… The requirement of “ecological conditions” and “the protection of its resources” imply that an area may be defined under 211 (6) for the purpose of conservation and protection of ecosystems, habitats, species, or biological diversity as such. imo determines whether the area complies with these conditions and may be defined as a special area under 211 (6). This follows from the detailed procedural conditions set out in Article 211 (6)(a). When imo has determined that the area meets the requirements, it follows further from the provision that the Coastal states may, for that area, adopt: laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the ­organization, for special areas. Consequently, within the special area the limitation of gairs that follows from Article 211 (5) does not apply. Here “international rules and standards or navigational practices” that are made applicable by imo for special areas may be adopted. It is not entirely clear from the wording of 211 (6) whether the coastal State is free to adopt mandatory measures within the special area, or whether imo must approve them first. The wording of Article 211(6) could be read to mean that when imo has determined that the defined area meets the conditions prescribed in Article 211(6) (a), the coastal States may adopt ­mandatory measures within the special area without the approval of imo. However, the wording “made applicable, through the organization, for special areas” indicates that the measures must be approved by imo individually. Moreover, as the measures adopted on the basis of 211 (6) may go beyond gairs, approval from imo for each protective measure is required. The approval of imo ­provides the measures with legitimacy through consent by the international community. In the literature, the question is discussed by Molenaar, who a­ rgues that imo approval is needed for the measures adopted as well as for the ­designation of the area.26 26

Ibid., 405–406.

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It is not specified what measures may be taken. According to Article 211 (6) (a), the coastal States may adopt “laws and regulations for the p ­ revention, ­reduction and control of pollution from vessels.” These laws and ­regulations are limited to “implementing such international rules and standards or ­navigational practices as are made applicable, through the organization, for special areas.” First it should be noted that the measures adopted under 211 (6) are restricted to measures for the “prevention, reduction and control of pollution from vessels.” In the same way as what follows from Article 211 (5), this includes standards such as discharge standards and stricter discharge standards under marpol Special Areas, navigational measures under solas, including both routing measures, ship reporting and vessel traffic services, as well as cdem standards.27 Whereas Article 211 (6) provides for a possibility to adopt measures beyond the existing gairs and broad jurisdiction to adopt mandatory measures, the competence of the coastal State is limited as both the decision of establishing the special area and the concrete measures require approval from imo. In a situation where the coastal State requests regulations that impede the freedom of navigation, but consider it necessary for protecting a sensitive ecosystem or a threaten species, it might not get the approval from imo. However, Article 211 (6) (c) provides legal competence to adopt “additional laws and regulations” for the prevention, reduction, and control of pollution from vessels. These laws and regulations may relate to: discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards;… Such laws and regulations must be communicated to the imo and apply to foreign vessels 15 months later, provided that imo agrees with them.28 So what regulations can be adopted on the basis of Article 211 (6) (c)? It is natural to understand the provisions so that the possibilities to adopt protective measures are wider under (c) than (a), due to the wording “additional laws.” The reference to “additional laws” implies that the provision allows for all kinds of regulations, except for cdem standards beyond gairs. Also, the competence is not, as in (a), limited to “implementing such international rules and standards or navigational practices that are made applicable, through the organization, for special areas.” Article 211(6) (c) could be important in relation 27 28

Ibid., 405. los Convention Article 211 (6) (c).

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to the protection of mpas. As (c) does not refer to measures that are available in international rules and standards as (a) does, new measures, which are not part of any imo instrument or made applicable for special areas by imo, may be adopted. This provides a possibility to adopt a ban on navigation within the special area.29 In this way, Article 211 (6) (c) could contribute to sufficient protection of an area protected as an mpa where, for instance, no operational pollution should take place or where the area is particularly sensitive to accidental pollution, or needs protection from physical damage of shipping. However, the measures adopted on the basis of (c) must also be approved by imo. Article 211 (6) is a complicated provision with strict procedural conditions prescribed in (a) and (c). This may explain why the powers provided in this provision have not yet been applied by the States. Churchill notes that “As far as I am aware, no State has yet made use of the powers given by Article 211 (6) to adopt measures that go beyond the general international rules on pollution from ships.”30 Another possible explanation could be, as pointed out by Molenaar, that the States do not “feel a great need for special pollution prevention areas which extend beyond the territorial sea and certain special measures applicable therein.”31 However, with increasing awareness of the need to protect areas as mpas in the eez, and an increasing reflection upon the legal obligations to do so, there could be an increased application of Article 211 (6) to provide for appropriate protection of an mpa against vessel source pollution. The provision is, however, impractical to provide the coastal States with sufficient authority to protect their mpas, as the conditions for being a special area are strict and not necessarily met by the areas that are protected under the cbd or the ospar, and the procedures for adopting measures are complicated. Thus both the substantive and the procedural conditions are complex and limit the application of the provision.32 Nevertheless, as shown below, in relation to protection of sensitive areas or mpas against the impacts of shipping, Article 211 (6) could gain renewed significance as it is included in the pssa Guidelines as a legal basis for protective measures that may be adopted within pssas. With new possibilities for shipping and increased pressure on ecosystems in the Arctic, we might witness an increase in or new uses of this provision. 29 Lagoni, “Marine Protected Areas in the Exclusive Economic Zone,” 162. 30 Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the los Convention,” 130. 31 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 457. 32 Johnson argues in relation to this that: “Article 211 (6) is confusing and is unlikely to provide a reliable vehicle to address coastal State concerns.” Johnson, Coastal state regulation of international shipping, 110.

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Article 234 – Ice-Covered Areas

Article 234 – “the Arctic exception” – provides the coastal States with enhanced jurisdiction to regulate and enforce shipping regulations in ice-covered areas.33 According to Article 234, the coastal State may adopt and enforce “non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas.” The background or reasoning for this provision is that ice-covered areas are recognized as particular sensitive to vessel-source pollution.34 The interpretation and application of Article 234 has, however, been discussed. The article is not very clearly formulated, and leaves open questions such as its geographical application. It is unclear due to the wording “within the limits of the exclusive economic zone” whether it applies only within the eez or if it also encompasses the territorial sea.35 Henriksen points out that if the wording is understood so that the provision only includes the eez, the coastal States would have broader jurisdiction here than in the territorial sea, which is inconsistent with the system in the los Convention. Henriksen thus concludes that when the criteria for the exercise of jurisdiction pursuant to Article 234 is met, it applies in the eez, the territorial sea, the internal waters, and international straits lying within 12 nautical miles from the baselines.36 The enhanced jurisdiction of the coastal State applies within areas “where particularly severe climatic conditions and the presence of ice covering such areas for most of the year.” It is unclear what is meant both with “particularly severe” climatic conditions and “most of the year.” An ice-coverage of 6 months 33

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36

For more on Article 234 see Kristin Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” Ocean Development of International Law 42:1–2 (2011): 22–52 and Molenaaar, Coastal State Jurisdiction over Vessel-Source Pollution, 419–431. See also Tore Henriksen, “Rollen til kyststaten i regulering av arktisk skipsfart,” in Juss in Nord: Hav, fisk og urfolk, En hyllest til det juridiske fakultet ved Universitetet i Tromsøs 25-årsjubileum, eds. Tore Henriksen and Øyvind Ravna (Oslo: Gyldendal Norsk Forlag, 2012), 71–92. For more on the aim and negotiations of Article 234, see Bartenstein, “The ‘Arctic Exception’ in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?” 24–27. For a discussion of this see ibid., 28–30. See also Henriksen,”The future of navigaiton in ice-covered areas: a view from the Arctic,” 31 and Henriksen,”Rollen til kyststaten i ­regulering av arktisk skipsfart,” 75–80. See Henriksen,”The future of navigation in ice-covered areas: a view from the Arctic,” 31 and Henriksen,”Rollen til kyststaten i regulering av arktisk skipsfart,” 76–80. See also ­Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 419.

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is suggested as qualifying for “most of the year” in the literature.37 Areas with shorter periods of ice-coverage would not comply with the provision. The continuing melting of sea ice due to the climate change could, however, have implications for the future application of Article 234.38 According to the provision, the climate conditions must create “obstructions or exceptional hazards to navigation.” The provision does not clarify when the climate and sea ice ­create such hazards to shipping, but this may be caused by strong winds and low temperatures leading to the icing of vessels.39 Moreover, it is set out as a condition that the marine pollution could damage or disturb the environment due to the wording, “and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance.” It is reasonable to understand the term “ecological balance” in a newer legal context so that it provides for jurisdiction to regulate shipping when components of the biological diversity, ecosystems, and species may be harmed or disturbed.40 The amsa report emphasizes that accidental pollution from shipping is the most serious threat to species and ecosystems.41 In particular, sea ice habitat species such as polar bears and seagulls are sensitive to pollution from oil spills, and the Arctic cod is sensitive to oil and other pollutants in the water.42 The provision is complex and contains cumulative and strict conditions. Consequently, the provision is only applicable for a few areas. Currently, the Arctic coastal States of Denmark (in relation to Greenland), Norway in relation to Svalbard, Russia, Canada, and the United States could exercise jurisdiction on the basis of Article 234.43 Norway has not, however, established an eez in the waters off Svalbard, which is a prerequisite for the exercise of jurisdiction pursuant to Article 234.44 The provision is so far only applied by Russia and Canada, which have adopted far-reaching regulations that are stricter than the regulations that may be adopted on the basis of Article 211 (5).45 As pointed 37 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 420. 38 Henriksen,”Rollen til kyststaten i regulering av arktisk skipsfart,” 81–82. See also Henriksen,”The future of navigation in ice-covered areas: a view from the Arctic,” 31. 39 Henriksen “Rollen til kyststtaten i regulering av arktisk skipsfart,” 81. 40 Ibid., 85. 41 amsa Report, 136. 42 dnv, Specially Designated Marine Ares in the Arctic High Seas, 39–43. 43 See Molenaar, “Status and Reform of International Arctic Shipping Law,” 138. For further analyses of the Canadian and Russian legislation, see Jakobsen and Henriksen, Norway and Arctic Marine Shipping, 66–71 and Henriksen, “The future of navigation in ice-­ covered areas: a view from the Arctic,” 29–31. 44 Henriksen, “Rollen til kystaten i regulering av akrtisk skipsfart,” 84. 45 For more on these regulations see amsa Report, 66–69.

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out by Molenaar, it has been questioned to what extent these regulations are consistent with international law.46 When the cumulative conditions are met, the coastal State is granted with wide discretion to adopt regulations on shipping. The provision may therefore accommodate the lack of international regulations of shipping that are specific to the Arctic. Article 234 thus provides the Arctic coastal States with the possibility to act unilaterally, and thereby respond quickly when the sensitive marine environment is threatened by shipping activities. The provision does not, however, clarify what type of regulations may be adopted. Article 234 aims to protect the ice-covered areas from marine pollution. Thus it is reasonable to argue that the regulations as according to Article 211 (1) and (5) may relate to construction, design, equipment, manning requirements of the vessel, and discharge and navigational standards. The coastal State may, for instance, adopt a ban on vessels carrying dangerous cargo or a ban for vessels that do not comply with certain cdem standards that are necessary to navigate in the area. Article 234 also provides for enforcement jurisdiction for the coastal States. As the enforcement jurisdiction is not further circumscribed or restricted as it is in the eez, pursuant to Article 220 (3) it is reasonable to understand the scope of this jurisdiction as similar to the prescriptive jurisdiction laid out in Article 234.47 It is clear that the prescriptive jurisdiction contained in Article 234 provides for the adoption of more stringent rules and regulations than gairs. The Article does not, however, clarify how strict the regulations may be to protect ice-covered areas from marine pollution. It follows from Article 234 that the coastal State “shall have due regard to navigation and the protection and preservation of the marine environment.” The difference with this formulation and the formulation in Article 56 (2) from which it follows that the coastal States in exercising its rights in the eez, shall have “due regard to the rights and duties of other States.” It is suggested that since Article 234 does not refer to the right of freedom of navigation, other consideration should be made here. Both navigational and environmental considerations should, due to the wording of Article 234, be evaluated. The formulation in Article 234 suggests that the two considerations are equally significant. This could mean that if an mpa covers an ice-covered area and the need for environmental protection is crucial, the environmental considerations may be prioritized in favor of the navigational considerations. When determining the limits of the unilateral jurisdiction of the coastal States on the basis of Article 234, one may question the role of imo instruments that apply to Arctic shipping and in particular the new Polar Code. The relationship between the Polar Code and the los Convention is not 46 47

Molenaar, “Status and Reform of International Arctic Shipping Law,” 138. Henriksen, “Rollen til kyststaten i regulering av arktisk skipsfart,” 88.

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clear.48 One may argue that the Polar Code, as it deals with Arctic shipping, limits the competence of the coastal States under Article 234. It is reasonable to hold that the coastal States, when balancing navigational and environmental considerations, must consider and coordinate their unilateral regulations with the development of international regulations of shipping within the competent organization imo.49 However, as pointed out by Henriksen, the regulations adopted in the Polar Code are of a general character.50 In order to ensure sufficient environmental protection, there might be a need to adopt other regulations that are particularly tailored to local circumstances. This flexibility is provided to the coastal State through Article 234.51 Conclusively, it is clear that Article 234 facilitates environmental protection of ice-covered areas. Within specific areas that meet the conditions of Article 234, stricter regulations of shipping may be prescribed and enforced. In this way Article 234 provides for area-based measures that may accommodate the establishment of effective mpas as shipping regulations tailored to a particular area may also be adopted; these regulations may include routing measures, ban of carriage of dangerous cargo, a ban on the use of heavy fuel oil, or ban on navigation within certain areas. Still, the provision has had, in practice, limited significance due to the narrow scope of its application. 19.5

marpol Special Areas

It is acknowledged that with its sensitive marine environment, the Arctic Ocean is subject to harm from operational pollution and vessel discharges.52 marpol Special Areas may be an adequate tool to ensure protection of this region’s sensitive and pristine marine environment, as stricter standards with regard to the release of oil and other substances may be provided within these designated areas. The marpol Convention is one of the first international conventions that address specially protected areas as a protective measure.53 A marpol Special Area is designed to prevent marine pollution from discharges by ships 48

49 50 51 52 53

For a discussion on this issue, see Ted L. McDormann, “A Note on the Potential Conflicting Reaty Rights and Obligation between the imo’s Polar Code and Article 234 of the Law of the Sea Convention,” 141–160. Henriksen, “Rollen til kyststaten i regulering av arktisk skipsfart,” 91. Ibid., 90. Ibid., 90–91. amsa Report, 138–141. Fore more on marpol Special Areas, see Molenaar, Coastal State Jurisdiction over VesselSource Pollution, 431–443 and Kachel, Particularly Sensitive Sea Areas: The imo’s Role in ­Protecting Vulnerable Marine Areas, 96–104.

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in a given area. In the designated Special Area, strict discharge ­restrictions on vessels that are navigating in vulnerable marine areas may be imposed. The marpol Convention Annexes i (oil) ii (noxious liquid substances) and v ­(garbage) allow for the adoption Special Areas where stricter discharge standards apply. Annex vi, moreover, allows for the use of sox ­Emissions Control Areas. Whereas all eight Arctic states are Contracting Parties to the marpol Convention and Annex i and ii, the situation is somewhat different when it comes to Annexes iii – vi.54 All Arctic states are parties to Annex iii and as Annex v.55 Iceland and the United States are not, however, parties to Annex iv, and Iceland is not a party to Annex vi.56 No Special Areas have been adopted in the marine Arctic.57 One possible explanation for this could be that there are few ports in the Arctic, which makes it difficult to meet the requirements for reception facilities under the marpol Convention.58 imo has as mentioned before, adopted Guidelines for the designation of Special areas u ­ nder the marpol Convention. The Guidelines are not legally binding, but aim to help Contracting Parties in the formulations and submissions of application for designation of Special Areas.59 They also aim to ensure that all interests, including the interests of the coastal State, flag State, and the environmental and shipping interests, are considered on the basis of the relevant scientific, technical, economic, and e­ nvironmental information.60 A Special Area is defined as: a sea area where for recognised technical reasons in relation to its oceanographical and ecological conditions and to the particular character of its traffic, the adoption of special mandatory methods for the prevention of sea pollution by oil, noxious liquid substances, or garbage, as applicable, is required.61

54 55

Lahonde, “Marine Protected Areas in the Arctic,” 91. imo, “Status of multilateral Conventions and instruments in respect of which the ­International Maritime Organization or its Secretary-General performs depositary or other functions”, available at http://www.imo.org/en/About/Conventions/StatusOf Conventions/ (accessed December 2015). 56 Ibid. 57 imo, “Special Areas under marpol”, http://www.imo.org/en/OurWork/Environment/ SpecialAreasUnderMARPOL/ (accessed December 2015). 58 Chircop, “The Growth of International Shipping in the Arctic: Is a Regulatory Review timely?” 375–376. 59 Special Area Guidelines, para. 1.1. 60 Ibid. 61 marpol 73/78, Annex 1, Regulation 1(10) and Special Area Guidelines, para. 2.1.

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marpol Special Areas are adopted by imo upon the proposal of one or more states. To be designated as a Special Area, the three criteria – ecological conditions, oceanographic conditions and traffic characteristics – must be met cumulatively.62 Information on each of the criteria should be provided in the proposal submitted to the imo.63 The criteria for designation of Special Areas are elaborated through Guidelines adopted by imo.64 The ecological conditions indicate that the area is in need of protection, such as threatened species, high biological productivity, fragile ecosystems, and critical habitats for marine resources.65 In light of the way in which the ecological criteria are outlined, the Guidelines imply that Special Areas under marpol may be designated for the purpose of conservation of marine biological diversity. The oceanographic conditions are those that may cause concentration of harmful substances in the waters or sediments and include conditions such as particular circulation patterns, extreme ice state, and adverse wind conditions.66 Areas within the marine Arctic may clearly comply with several of the ecological ande oceanographic conditions.67 Designation of a Special Area requires also that the area comply with vessel traffic characteristics. The area must according to the Guidelines para. 2.6 be: used by ships to an extent that the discharge of harmful substances by ships when operating in accordance with the requirements of marpol 73/78 for areas other than Special Areas would be unacceptable in the light of the existing oceanographic and ecological conditions in the area. Even though the marine environment is sensitive to discharges from oil and other substances, it may be difficult to comply with this requirement due to relatively limited traffic in the marine Arctic. This is in particularly the case for the high seas of the Arctic Ocean.68 Henriksen however, points out that with the particular ecological and oceanographic conditions of the Arctic marine environment, minor operational discharges may threaten its marine environment. Also, Henriksen points to that in the assessment imo should be guided by the precautionary approach, which could require the designation of 62 Special Area Guidelines, para. 2.3. 63 Ibid. 64 Ibid., paras. 2.3–2.6. For more on the criteria for marpol Special Area see Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 237–238. 65 Special Area Guidelines, para. 2.5. 66 Ibid., 2.4. 67 dnv, Specially Designated Marine Areas in the Arctic High Seas, 49. 68 Ibid. Analyses of the shipping traffic on the high seas of the Arctic is provided in ibid., 8–18. See also assessments on the future Arctic shipping in the amsa Report, 92–121.

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Special Areas.69 Special Areas under marpol may encompass areas within the maritime zones of states and areas of the high seas.70 Most of the Special Areas adopted so far lie within national jurisdiction, but there are also examples of Special Areas that include areas of the high seas such as the Mediterranean Sea (Annex i and v) and the Antarctic Special Area (Annex i, ii and v).71 Within the Special Areas, stricter discharge standards may be adopted than what could be adopted outside. For instance many Special Areas adopted under Annex i and ii include zero discharge requirements for oil and noxious liquid substances. The stricter discharge standards, with regard to Special Areas adopted under Annex i and ii and possibly v, which qualify as gairs, are binding on all States including those that are not parties to the marpol on the basis of the los Convention Article 211 (5). The reasoning for the regime Special Areas is that the regime within this area is stricter than outside and a criteria for designation of a Special Area is that the normal discharge requirements under the marpol Convention are “unacceptable in the light of the existing ecological and oceanographic conditions in the area.”72 Nevertheless, it is pointed out in theory by Molenaar, that the significance of the Special Area is decreasing as the discharge standards outside these areas are strengthened, while a similar strengthening of the standards within the Special Areas has not taken place.73 Churchill agrees with this and points out that in the period after Molenaar wrote this, the requirements outside Special Areas were even further strengthened.74 Still, the designation of sensitive areas as Special Areas within the marine Arctic may have symbolic value.75 The concept of marpol Special areas is also narrow as it only provides for stricter regulations on discharges of oil and other substances. The concept does not provide for the protection of the marine environment against other impacts from shipping, such as acute oil pollution from accidents or physical damage and disturbance. marpol Special Areas may be simply one tool for implementing the legal obligations to protect the marine environment 69 70 71

Henriksen, “The future of navigation in ice-covered areas: a view from the Arctic,” 25. Special Areas Guidelines, para. 2.2. Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 80. An overview of the designated Special Areas is provided by imo, “Special Areas under marpol”, http://www.imo.org/en/OurWork/Environment/SpecialAreas UnderMARPOL/Pages/Default.aspx (accessed December 2015). 72 Special Area Guidelines, para. 2.6. 73 Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 431. 74 Churchill, “The growing establishment of high seas marine protected areas: implications for shipping,” 81. 75 Ibid.

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and the biological diversity, but it is not capable of providing protection and conservation of marine biodiversity by itself. States may submit to imo a proposal for an area that is protected as an mpa, or in conjunction to an mpa, which is sensitive to operational discharges, as a Special Area under marpol. marpol Special Areas in this way may complement the protection of mpas against discharges from vessels. If an mpa established to comply with cbd or ospar is proposed as a marpol Special Area, it must however, meet the requirements and be adopted by imo. It is not enough that the area is ecologically sensitive or rich in biodiversity, the area must also comply with the traffic characteristics set out in the Guidelines. As shown above, the Polar Code bans discharges of oil and of noxious liquid substances. These new regulations do not imply that the Arctic Ocean is designated as a Special Area. The exploration of the possibility for the designation of Special Area in the marine Arctic was recommended in the amsa report.76 However, with the new regulations set out in the Polar Code, there might be less need for the designation of Special Area(s) in the marine Arctic. In the report by Veritas (dnv) to pame, on internationally designated areas on the high seas of the Arctic Ocean, the applicability of the requirements of Special Areas under the respective Annexes are evaluated. The conclusion here is that, for the high seas of the Arctic, there is not a significant gap between the current level of protection contained in the normal marpol regulations and what is offered through the designation of Special Areas. This is particularly true when one considers the new requirements in the Polar Code.77 However, it is emphasised that requirements for emissions to air under Annex vi provides stricter regulations in the SOX Emissions Control Areas. According to the findings in the report, such requirements could also be investigated as possible protective measures in (a) pssa(s) designated on the high seas of the Arctic Ocean.78 19.6

pssa

19.6.1 General about the Concept of pssa pssa is an area of the seas that need special protection from the impacts of shipping. The imo is the only international body that may designate areas as pssas and adopt associated protective measures, and only states that are

76 77 78

amsa Report, 7. dnv, Specially Designated Marine Areas in the Arctic High Seas, 49–52. Ibid., 52.

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members of imo may submit an application for identification as a pssa.79 pssa is defined in the pssa Guidelines as: an area that needs special protection through action by imo because of its significance for recognized ecological, socio-economic, or scientific attributes, where such attributes may be vulnerable to damage by international shipping activities.80 There are currently 15 designated pssas, none of which are located in the marine Arctic.81 pssa is not established by a convention such as the marpol Special Areas and the special area of the los Convention, Article 211 (6), but has developed through imo practice since the 1970s and is adopted on the basis of Guidelines.82 The pssa Guidelines do not have any binding force, and the pssa concept itself is not legally binding. The associated protective measures adopted within the pssa may, however, be legally binding. In this section it is examined to what extent the concept of pssa provides for such a regulation of shipping within certain areas in that it may accommodate and supplement mpas established under the cbd or the ospar Convention for the purpose of conservation of marine biodiversity. This requires further analyses of the criteria for the designation of areas as pssas, as well as analyses of what protective measures that may be adopted within these sensitive sea areas. 19.6.2 pssa Criteria To be designated as a pssa, the area must, as outlined in the pssa Guidelines, be vulnerable due to ecological, social, economic, cultural or scientific criteria.83 It follows from the Guidelines para. 4.4 that an area “should meet at least one” of these listed criteria. The criteria for pssa designation are very broad, 79

80 81 82

83

imo, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (hereinafter pssa Guidelines), 1 December 2005, imo Assembly Resolution A.982(24) para. 3.1. pssa Guidelines, para. 1.2. For an overivew of the designated pssas see imo, “Particularly Sensitive Sea Areas”, http://www.imo.org/en/OurWork/Environment/PSSAs (accessed in December 2015). For a discussion of the background of the concept of pssa, see Kristina M. Gjerde and David Freestone, “Introduction: Particularly Sensitive Sea Areas – An Important Environmental Concept at a Turning-Point,” The International Journal of Marine and Coastal Law, 9:4(1994): 425–46 and Gerhard Peet, “Particularly Sensitive Sea Areas – A documentary history,” The International Journal of Marine and Coastal Law, 9:4 (1994): 469–506. For a discussion of the criteria for pssa, see Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Areas, 163–166.

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and it is therefore pointed out in legal literature that an area is unlikely to fail to meet any of these criteria.84 The ecological criteria listed in the pssa Guidelines include ecological significance of the area because of its uniqueness or rarity, critical habitat, dependency, representativeness, diversity, productivity, spawning or breeding grounds, naturalness, integrity, vulnerability, and biographic importance. These listed criteria are similar to the selection criteria for mpas under cbd and ospar.85 The concerns for the protection of unique or rare ecosystems, critical habitats, and representative areas, which are reflected in these environmental instruments, are thus also implemented in the pssa Guidelines. The concept of pssa may therefore contribute to fulfilling the general obligations of protecting the marine environment in Part xii of the los Convention, in particular the obligation in 194 (5) to protect rare and fragile ecosystems and habitats, as well as the obligations to conserve marine biodiversity pursuant to the cbd.86 With this overlap in the ecological criteria, the instrument pssa also enables the adoption of relevant shipping measures to protect sensitive areas that are designated as mpas.87 A second condition for an area to be designated as a pssa is that it is threatened by international shipping activities. It follows from para. 5.1 that: In addition to meeting at least one of the criteria listed in 4.4, the recognized attributes of the area should be at risk from international shipping activities. Whether the area meets this requirement shall be determined by considering the factors that relate to vessel traffic considerations and natural ­factors.88 These factors include reflections of vessel types, the density of traffic, whether vessels carrying dangerous cargo are passing, and metrological and oceanographic factors. The Guidelines do not, however, provide an exhaustive list of relevant considerations as evidenced by the wording in para. 5.1 stating that 84 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 105. 85 Compare, for instance, with the criteria for selection of mpas provided by the ospar Commission in “Guidelines for the Identification and Selection of Marine Protected Areas in the ospar Maritime Area,” (2003). 86 De La Fayette, “The Marine Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law,” 186. 87 Roberts, Chircop and Prior, “Area-based management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” 498. 88 pssa Guidelines, para. 5.1.

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this “­involves consideration of the following factors.”89 The Guidelines also refer to other information in para. 5.2 that might be relevant when determining the vulnerability of the area such as stresses from other environmental impacts than shipping.90 Although shipping activities in the Arctic are increasing, the volume of shipping is limited, especially on the high seas.91 Therefore, a strict interpretation of the condition of the vulnerability to impacts from international shipping can make it difficult to comply. Arctic shipping, however, poses a threat to the unique ecosystems in the Arctic.92 The most serious threat is the release of oil and other toxic chemicals. The consequences of an oil spill may be more serious in the marine Arctic than in other areas.93 The drifting pack ice in the central Arctic Ocean, for instance, considered globally unique, and species such as polar bears, bowhead whale, and ivory gull and Ross’ gull are particularly sensitive to shipping activities, especially oil spills but also ship strikes and disturbances and noise.94 A precautionary approach could, therefore, justify that the criteria is met even though there are relative few ships navigating at least in some parts of this region.95 In the literature, Chircop argued that: A low volume of shipping that qualitatively has the potential of greater impact could provide sufficient justification for pssa designation, as long as the threat is demonstrated.96 According to the pssa Guidelines, there is a requirement that the proposed protective measures provide protection from the identified vulnerability of international shipping.97 The requirement of a link between the threat and the protection provided by the proposed protective measures is significant for the 89 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Protecting Vulnerable Marine Area, 167. 90 The pssa Guidelines, para. 5.2.4. 91 See amsa Report, 92–122 and assessemnts for the shipping in the high seas in dnv, Specially Designated Marine Areas in the Arctic High Seas, 8–18. 92 amsa Report, 152. 93 Ibid., 136–138. 94 dnv, Specially Designated Marine Areas in the Arctic High Seas, 34–44. 95 Henriksen argues in a similar way with regard to the criteria for Special Areas under the marpol Convention, in Henriksen, “The future of navigation in ice-covered areas: a view from the Arctic,” 25. 96 Chircop, “The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?,” 376. 97 pssa Guidelines, paras. 1.5. and 7.5.2.1.

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effectiveness of a pssa.98 The dnv report concluded that it is difficult to find support for the designation of Special Areas under the marpol due to the limited traffic in the area.99 The primary vulnerability from shipping activities in the high seas of the Arctic Ocean is, as concluded in this report, the risk of oil spills from accidents in addition to ship strikes and noise and disturbance of wild life.100 Whereas this vulnerability could not be addressed by stricter standards for discharge available under the different Annexes of the marpol Convention, dnv finds that it may be addressed by the use of other suitable measures such as routing measures or ship reporting systems and other measures provided for in the pssa Guidelines.101 19.6.3 Associated Protective Measures Available to Protect the pssa At the time of the adoption of a pssa, at least one associated protective measure must have been adopted to address the threat or identified vulnerability of the area.102 This section examines which protective measures may be ­adopted to protect the pssa from the impacts of shipping. The associated protective measures that may be adopted are set out in the Guidelines para. 6.1. First, the area may be designated as Special Area under Annexes i, ii or v, or a SOx Emission Control Area under marpol Annex vi, or application of special discharge restrictions to vessels operating in a pssa.103 Second, routing measures and reporting systems under the solas Convention may be adopted.104 Finally, other measures aimed at protecting specific sea areas against environmental damage from ships may also be developed and adopted provided that they have “an identified legal basis.”105 Whereas measures under solas, marpol and other imo instruments may be adopted regardless of the adoption of a pssa, the pssa Guidelines add the possibility to develop and adopt other and new protective measures. The pssa Guidelines allow for the possibility to adopt measures that are specifically tailored to meet the threats from shipping that the particular area is faced with, which could not have been adopted without the pssa status. 98 Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 115. 99 dnv, Specially Designated Areas in the Arctic High Seas, 49–52. 100 Ibid., 43–44. 101 Ibid., 47. 102 pssa Guidelines, para. 1.2. 103 Ibid., para. 6.1.1. 104 Ibid., para. 6.1.2. 105 Ibid., para. 6.1.3.

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Such other measures must, however, have an identified legal basis.106 What this “identified legal basis” may be is clarified in para. 7.5.2.3. The possible legal bases for associated protective measures are as follows: (i) any measure that is already available under an existing imo instrument; or (ii) any measure that does not yet exist but could become available through amendment of an imo instrument or adoption of a new imo instrument. The legal basis for any such measure would only be available after the imo instrument was amended or adopted, as appropriate; or (iii) any measure proposed for adoption in the territorial sea, or pursuant to Article 211 (6) of the United Nations Convention on the Law of the Sea where existing measures or a generally applicable measure (as set forth in subparagraph (ii) above) would not adequately address the particularized need of the proposed area.107 This means that protective measures such as discharge restrictions, cdem standards and navigational measures provided for in the marpol Convention and the solas Convention and other existing imo measures may be adopted within a pssa, as well as any measures that become available in new or amended imo instruments. The third category provides for the opportunity to adopt any protective measure that a member state would be able to adopt either in the territorial sea or in special areas as provided for in LOS Convention Article 211 (6).108 Then the protective measure has sufficient legal basis according to the pssa Guidelines, and does not need to be adopted in a particular imo instrument.109 The Guidelines thus provide flexibility in situations where measures included in (i) or (ii) (­existing or new imo instrument) are not appropriate for the particular area. The third category is, however, more controversial than the two first as the scope of the measures that may adopted, especially on the basis of Article 211(6), is uncertain.110 In the earlier Guidelines it was possible to adopt “other measures” without the requirement of an “identified legal basis.” The possibility to provide 106 Ibid. 107 ibid., Annex, para. 7.5.2.3. 108 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 187–188. 109 Ibid. 110 Henrik Ringbom, “Regulatory Layers in Shipping,” in The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues, eds. Davor Vidas and Peter Johan Schei (Leiden/Boston: Martins Nijhoff Publishers, 2011), 351–352.

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acceptance for exceptional measures, without a precise legal basis, was also pointed out as the greatest advantage of the pssa concept. 111 The purpose of the revisions and amendments in the current pssa Guidelines was, however, to clarify and strengthen certain aspects and procedures for the identification and designation of pssas.112 This amendment may be seen as a response to the adoption of controversial associated measures, such as the application of the Western European pssa.113 Nevertheless, there are still uncertainties with regard to what protective measures may be adopted within the pssa according to para. 7.5.2.3 (iii). First, one may question whether the pssa Guidelines provide for the adoption of all measures that may be adopted within the territorial sea even if the pssa or parts of it lies beyond 12 nm. Secondly, as already mentioned, the scope of what protective measures that may be adopted is unclear, particularly as Article 211 (6) is somewhat unclear and allows for a very broad range of measures.114 A pssa may, as set out in the pssa Guidelines, be adopted within and beyond the limits of the territorial sea.115 A natural reading of 7.5.2.3 (iii)’s reference to “the proposed area,” implies that there are not any limitations on the potential protective measures that may be adopted within a pssa.116 This is also in conformity with the notion of pssas in general as it aims at ensuring protection from all threats from international shipping within a geographical area that is determined by the pssa criteria and is not confined to particular maritime zones.117 Hence, protective measures that may be adopted within the territorial sea and on the basis of 211 (6) may be adopted and made applicable in the whole pssa, even if it covers maritime zones beyond the l­ imits of the territorial sea. Kachel also observes that para. 7.5.2.3.(iii) “contributes 111 imo, Marine Environment Protection Committee, Report of the Third International Meeting of legal Experts on Particularly Sensitive Sea Areas, 4 August 1994, mepc 36/21/4, para. 12. 112 About the revision of the Guidelines see Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 204–207. 113 Ibid., 204. 114 See Ringbom, “Regulatory Layers in Shipping,” 352 and also Angelo Merialdi “Legal ­Restraints on Navigation in Marine Specially Protected Areas,” in Marine Specially Protected Areas: The General Aspects and the Mediterranean Regional System, ed. Tullio Scovazzi (The Hague: Kluwer Law International, 1999), 33–35. 115 pssa Guidelines, para. 4.3. 116 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 188. 117 Ibid.

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­significantly to levelling the differences between the regimes traditionally envisaged for the eez and the territorial sea to facilitate the uniform application of protective measures.”118 The third category of potential legal bases outlined in the pssa Guidelines para. 7.5.2.3 (iii) provides the member states with flexibility when submitting a proposal for pssa designation with associated protective measures.119 The provision is however, accompanied by a footnote stating that “this provision does not derogate from the rights and duties of coastal States in the territorial sea.” This means that when a protective measure is proposed, the legal regime for the territorial sea must be considered. It also follows from the Preamble of the pssa Guidelines which outline that “these Guidelines are to be implemented in accordance with international law.”120 A reasonable understanding is thus that the protective measures regulations must not affect the jurisdictional balance of the los Convention, so that they may not hamper innocent passage. But what about cdem standards? May cdem standards that go beyond gairs be adopted in spite of the restriction in los Convention Article 21 (2)? As shown above, Article 211 (6) (a), which is the alternative legal basis pursuant to the pssa Guidelines para. 7.5.2.3 (iii), opens up the possibility for the adoption of cdem measures that go beyond gairs when the international rules and standards are “inadequate to meet special circumstances.” There appears to be differnt views on this. Kachel points out that the footnote intends to clarify that the “whole unclos regime for the territorial sea must be taken account of, e.g. limits concerning cdem standards.”121 Detjen, however, argues that the provision only makes sense if it allows for measures beyond generally accepted international rules.122 As Detjen explains, the ­footnote clarifies that the measures have to be proportionate and must not hamper innocent passage.123 Thus under this view, it is only lawful to adopt and make applicable to foreign vessels, cdem standards that are reasonable and with the prior a­ pproval by the imo.124 Detjen’s arguments also suggest that 118 Ibid., 189. 119 Ibid., 186. 120 pssa Guidelines, Preamble. 121 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 188. 122 See discussions in Markus Detjen, “The Western European pssa – Testing a unique ­international concept to protect imperilled marine ecosystems,” Marine Policy 30:4 (2006): 449. 123 Ibid. 124 Detjen, “The Western European pssa – Testing a unique international concept to protect imperilled marine ecosystems,” 449.

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cdem requirements beyond gairs may be accepted within the pssa. In general however, the scope of adopting cdem standards is restricted due to the need for uniform international standards. It may therefore be assumed that such proposals will be met by resistence from other member states and not be approved imo.125 None of the pssas adopted so far include any cdem requirements.126 An example from practice is the Western European pssa where it was proposed to prohibit the carriage of heavy grades of oil through the pssa in single-hull tankers of more than 600 dwt.127 The proposal was, however, later withdrawn, as many member states contested it over concerns regarding the legal basis for the measure and argued that it was contrary to the principle of freedom of navigation and had an unclear legal basis.128 Several of the ­p ssas do, however, include measures such as routing measures or reporting measures for particular vessels, such as large vessels or vessels carrying dangerous cargo.129 Thus, all protective measures, provided they have a legal basis in imo instruments or the los Convention, may be adopted within the pssas. Additionally, the protective measure must, as mentioned above, be linked to an identified vulnerability of the area, as the pssa Guidelines states that the application must identify the proposed protective measures and “describe how they ­provide the needed protection from the threats of damage posed by international maritime activities occurring in and around the area.”130 The proposal 125 Roberts, Chircop and Prior note in “Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” 510, that “it might be reasonable assumed that cdem standards may not be readily applied to pssas.” 126 For an overivew of the pssas and the associated protective measures, see imo, “pssa Particularly Sensitive Sea Areas help protect fragil environments from the risks posed by shipping”, http://pssa.imo.org/#/intro (accessed December 2015). 127 imo, Marine Environment Protection Committee, Identification and Protection of ­Special Areas and Particularly Sensitive Sea Areas: Designation of a Western European Particularly Sensitive Sea Area, 11 April 2003, mepc 49/8/1. 128 imo, Marine Environment Protection Committee, Report on the Marine Environmental Protection Committee on its Forty-Ninth Session, 8 August 2003, mepc 49/22 paras 8.12–8.26. See also Roberts, Chircop and Prior, “Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” 510 and ­Detjen, “The Western European pssa – Testing a unique international concept to protect imperilled marine ecosystems,” 450. See also Julian Roberts et al. in “The Western European pssa Proposal: ‘a Politically Sensitive Sea Area’,” Marine Policy 29 (2005) 431–440, for a full discussion of the proposal. 129 See imo, “pssa Particularly Sensitive Sea Areas help protect fragile environments from the risks posed by shipping”, http://pssa.imo.org (accessed December 2015). 130 pssa Guidelines, para. 7.5.2.1.

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is submitted to the mepc to consider the application including whether the proposed measures are appropriate to address the vulnerability of the area.131 The appropriate sub-committee or committee evaluate the application and determine if the protective meets the requirements of the legal instrument under which it is proposed.132 After the approval of the protective measures from, the mepc may designate the area as a pssa.133 It follows from the pssa Guidelines that the protective measures must be consistent with international law and the los Convention.134 The precise limit of what impact on navigation that is acceptable is not clarified.135 In the analysis by the un Division for the Ocean Affairs and the Law of the Sea (doalos) in relation to the proposed measures in the Western European pssa, it was maintained that if the Sub-Committee on Safety of Navigation (nav) “approves the measure as being in conformity with imo requirements, then it would also be in conformity with unclos, as unclos defers to imo on navigational rules, regulations and regulations and standards.”136 In practice so far, the adopted protective measures have not been controversial.137 However, as Ringbom points out in literature “one should adopt a flexible understanding of the available protective measures” as long as they are agreed upon by imo and its appropriate committees.138 Analyses of practice under imo, however, suggests that the designation of an area as pssa does not have any particular effect on routing measures compared to such measures adopted directly under the solas.139 In the same way as in other areas, not many mandatory routing measures have been a­ dopted.140 The proposal of the Baltic pssa, which is described as a “globally unique and

131 132 133 134 135

Ibid., paras. 8.1–8.3. Ibid., paras. 8.3.2 and 8.3.3. Ibid., para. 8.3.7. Ibid., Preamble and paras. 7.5.2.5, 7.9, and 9.2. Roberts, Chircop and Prior, “Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” 507. 136 imo, leg 87/17, Annex 7, 2. 137 Ringbom, “Regulatory layers in shipping,” 353. 138 Ibid, 352. For analyses of potential protective measures see Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 224–231. 139 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 341–342. 140 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 195.

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sensitive” ecosystem, included a proposal of mandatory atbas.141 The nav Committee considered the proposal but concluded that it did not justify the establishment of mandatory atbas.142 Instead, the committee approved recommendary atbas.143 The nav Committee’s conclusion suggests that the proposal did not put forward enough information or strong enough arguments for the adoption of mandatory routing measures for which the s­ olas Convention provides.144 This is consistent with the gprs which outlines that imo will, when deciding whether or not to adopt a mandatory routing system, consider if “proper and sufficient justification for the establishment of a mandatory routing system has been provided.”145 The gpsr states that imo will consider whether atbas in particular could have the effect of “unreasonably limiting the sea area available for navigation.”146 Also, it is outlined that imo will not adopt a proposed routine system, unless it is certain that such system will not impose “unnecessary constraints on shipping.”147 The threshold for adopting mandatory routing measures is thus high. Hence, it must be noted that the identification and designation of the Baltic pssa, due to its globally unique ecosystems, was not considered sufficient for the adoption of mandatory atbas when balancing the interests of the navigation against the need for environmental protection of this sensitive environment. Moreover, although the pssa Guidelines provides for the flexibility to adopt new protective measures, there are not many examples of this is practice.148 The proposal of the ban on single hull vessels carrying dangerous cargo in the Western European pssa was a new protective measure, but it was met with considerable opposition and was withdrawn. The proposal of am ­ andatory ­pilotage regime in the Torres Strait was also contested.149 Some 141 imo, Marine Environment Protection Committee, Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area, 22 July 2005, mepc. 136 (53). 142 imo, nav 51/19, para. 3.50. 143 Ibid., para. 3.51. 144 Roberts, Chircop and Prior, “Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept,” 514. 145 gpsr, para. 3.5.1. 146 Ibid., 3.6. 147 Ibid., 3.7. 148 Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 342. 149 imo, Marine Environment Protection Committee, Identification and Protection of ­Special Areas and Particularly Sensitive Sea Areas: Extension of Existing Great Barrier Reef pssa to Include the Torres Strait Region, 10 April 2003, mepc 49/8.

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delegates ­argued that compulsory pilotage did not have an appropriate legal basis and also that such an requirement would violate the principle of transit passage 150 The result, however, was the adoption of a recommendary pilotage scheme.151 To sum up, the pssa Guidelines provide for the possibility to adopt and develop protective measures that are tailored to protect the sensitive sea area against the impacts of shipping. According to Merialdi, the pssa concept can be seen as a “safety valve” for measures under exceptional circumstances.152 It remains to be seen how the concept of pssa will evolve in practice to ensure protection of sensitive areas and ecological values. However, as pointed out by Ringbom, the concept of pssa provides for the possibility for states “to go ­beyond their regular environmental jurisdiction in exceptional circumstances,” and may therefore serve as a moderate reviser of the los Convention.153 19.6.4 Potential Application of pssa at the High Seas of the Arctic Ocean As mentioned before, in response to the recommendations made in the amsa report, in a report to pame the dnv has explored the need for and made recommendations regarding internationally designated areas in the high seas of the Arctic Ocean. Whereas dnv did not find support for the designation of marpol Special Area, it recommended the application of a pssa for providing environmental protection of the Arctic High Seas. Three potential alternatives for a pssa designation is explored in the report. The first option is to designate the high seas of the Arctic in its entirety with different protective measures such as routing measures and ship reporting measures including atbas.154 The next possibility was to designtate the whole area as a pssa, with the protective measures vessel traffic system and ship reporting system.155 Whereas the report concludes that it will be diffucult to gain political support for the first alternative, and that it also was considered to be in violation of the freedom of ­navigation, the second option would only provide limited protection for the area.156 The report therefore states that the most feasible way is to 150 imo, Legal Committee, Report of the Legal Committee on the Work of its Eigth-Ninth Session, 4 November 2004, leg 89/16, paras. 222–241. See also Henriksen, “Conservation of marine biodiversity and the International Maritime Organization,” 342. 151 imo, Marine Environment Protection Committee, Designation of Torres Strait as an ­Extension of the Great Barrier Reef pssa, 22 July 2005, mepc. 133(53). 152 Merialdi, “Legal Restraints on Navigation in Marine Specially Protected Areas,” 38. 153 Ringbom, “Regulatory Layers in Shipping,” 354. 154 dnv, Specially Deisgnated Marine Areas in the Arctic High Seas, 55–56. 155 Ibid., 56–57. 156 Ibid.

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e­ stablish one or more “Core sea ice area,” to protect the unique and vulnerable marine ecosystems in the Arctic through pssa designation with the atba as a protective measure.157 There are not yet any designated pssas on the high seas. The Guidelines open up the possibility, however, for the establishment of a pssa “within and beyond the limits of the territorial sea.”158 This has been understood so that the Guidelines implicitly state that pssa may be designated on the high seas.159 The imo is the comeptent orgainzation to regulate shipping for the purpose of maritime safety and environmental protection, including on the high seas. The designation of a pssa itself, either covering areas both within and beyond national jurisdiction or completly within high seas, does not violate international law. Neither the Los Convention nor the pssa Guidelines or other imo instruments, prohibit the adoption of protective measures on the high seas. As formulated by Roberts, Chircop and Prior it therefore: seems logical to conclude that it is within the mandate of imo to ­approve an apm for the high seas, provided it is agreed that this is in conformity with the losc and that any restriction on navigations freedoms is ­acceptable and /or justifiable in terms of the environmental protection derived.160 The protective measures adopted within a pssa located on the high seas must thus be carefully considered as to whether they may be adopted as binding on other states and whether they can be enforced.161 It remains to be seen whether the Arctic states will make a proposal to the imo on the designation of a pssa on the high seas of the Arctic Ocean. At the pame meeting in 2014, the recommendation of designating a PSSA ­covering one or more “Core sea ice area” of the high seas was not embraced by the A ­ rctic States. The member states decided instead to take further steps to provide more knowledge and certainty as to whether it is possible for imo to establish 157 Ibid., 56–57. 158 The pssa Guidelines, para. 4.3. 159 See Roberts, Chircop and Prior, “Area-based Management on the High Seas: Possible ­Application of the imo’s Particularly Sensitive Sea Area Concept,” 501 see also Frank, The European Community and Marine Environmental Protection in the Internaitonal Law of the Sea: Implementing Global Obligations at the Regional Level, 370–371. 160 Roberts, Chircop and Prior, “Area-based Management on the High Seas: Possible ­Application of the imo’s Particularly Sensitive Sea Area Concept,” 507–508. 161 Kachel, Particularly Sensitive Sea Areas: The imo’s Role in Particularly Sensitive Sea Areas, 280–282.

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dynamic atbas (­reflecting the movement of the ice and vulnerable resources), and whether imo may establish pssas located exclusively in the high seas of the Arctic Ocean. Also, the member states of pame decided to explore additional options for protection of the area.162 19.7 Conclusions Some advantages for the protection of the marine biodiversity against shipping may be achieved through the adoption of marpol Special Area, the los Convention 211 (6), or pssa. Nevertheless, these regimes are, each in different ways, insufficient to ensure protection and conservation of the marine biodiversity within the mpas. Whereas marpol only provides for discharge standards, the relevance and significance of the los Convention 211 (6) is limited due to its complicated structure and strict conditions. Article 234 provides the coastal State with wide prescriptive and enforcement jurisdiction to unilaterally adopt regulations on shipping to protect sensitive ice-covered areas from marine pollution. The practical significance of accommodating protection of mpas against impacts of shipping is, however, limited due to its narrow scope of application. Even though pssa is the only regime that is not legally binding, it appears to provide for the most adequate protection of particular areas designated as mpas against the environmental impacts of shipping. The concept of a pssa provides for a broader range of protective measures, including measures for protection of the designated area against physical impacts of shipping or disturbance of wildlife, for instance in nesting or breeding areas, caused by traffic. In the face of the development with melting of ice and increasing activities in the marine Arctic, it is crucial that sensitive or vulnerable areas are protected against the impacts of shipping. pssas may cover maritime zones beyond the territorial waters and thus may bridge the jurisdictional gaps. This means the entire marine ecosystems may be protected, regardless of the jurisdictional limits of the law of the sea. Although pssas primarily will consist of measures that the states could have adopted without pssa status, the process of identifying and designating the area may be valuable.163 imo considers the sensitivity of the area and provides 162 pame, Working Group Meeting Report, pame-ii 2014, 16–18 September. 163 About the benefits of pssa, see Roberts, Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the imo’s Particularly Sensitive Sea Area Concept, 257–258.

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for the adoption of measures tailored for the particular area. The designation of an area as a pssa in combination with the protection of an area as an mpa may also be of symbolic significance. Thus, the political value of a pssa designation may be important. If an area protected as an mpa complies with the ­obligations of the cbd or the ospar Convention and is designated as a pssa, the sensitivity of the area is internationally recognised. In this respect it may be of practical importance that pssas are marked on charts. A result of the pssa status could be that vessels exercise their navigational rights more cautiously.164 164 The intrinsic value of the pssa designation is emphasised by Lynda M. Warren and Mark W. Wallace, “The Donaldsson Inquiry and its Relevance to Particularly Sensitive Sea Areas”, The International Journal of Marine and Coastal Law 9:4 1(994), 528.

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Final Remarks The use of mpas is emphasized as an environmental tool to protect the environment and to conserve the marine biodiversity. The need to apply area-based management tools to conserve and protect vulnerable marine ecosystems and marine biodiversity also in areas beyond national jurisdiction has been recognized by the states through the decision of the unga in 2015 to develop a new legally binding instrument under the los Convention on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The melting of the sea ice due to climate change will leave large areas of the high seas of the Arctic Ocean ice free and part of the high seas. This development will provide opportunities for new human activities, such as fishing, shipping, oil and gas activities and tourism. Hence, in addition to climate change, which has extensive environmental consequences for the Arctic marine environment, the region is faced with new and increasing threats. With increased human activities in the region, it is necessary to identify and protect sensitive and valuable areas that may contribute to the global network of mpas. A new implementation agreement clarifying the legal bases and opportunities for states to adopt mpas in areas beyond national jurisdiction is therefore desirable. Without the necessary legal bases to protect areas beyond national jurisdiction, it is not possible to establish an ecologically coherent network of mpas due to the transboundary character of biological diversity. The obligation to establish mpas is an element of the new holistic approach to protecting and conserving the marine environment and biological diversity. There is a legal duty to establish mpas on the basis of the cbd within the national jurisdiction of the Contracting Parties. Additionally, there is a rather strict obligation to conserve and protect ecosystems and biological diversity under the ospar Convention. Despite the global obligations set out in the los Convention and the cbd to protect the marine environment, including marine biodiversity, as well as the regional obligations in the ospar Convention, there is not currently a network of mpas in the Arctic region. There is a pressing need to take action to conserve the Arctic marine biodiversity. Still, the lowest coverage of mpas is in the Arctic region of the maritime area of the ospar Convention. The development of the Framework of mpas in the marine Arctic is a positive step. Efforts made by the Arctic states to implement the Framework for a pan-Arctic network of mpas and thereby contribute to

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004324084_021

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the i­mplementation of their international obligations to protect the marine environment are essential. So far, few mpas include the regulation of shipping activities as protective measures. However, due to the potential damage and threat to the marine biodiversity posed by shipping activities, it is likely that mpas will be suggested where shipping activities are restricted. The increasing shipping activities also represent a major threat to the sensitive environment in the marine Arctic. Whereas the analyses have clarified that there are broad possibilities to regulate innocent passage within the territorial sea, the possibilities to regulate or restrict navigation unilaterally within mpas in the eez are limited. Therefore, the discussions presented in this book demonstrate that the obligations to establish effective and integrated mpas where threats to the biodiversity are addressed cannot be sufficiently implemented within the regime of the los Convention. The functional and sectoral regime of the los Convention is an obstacle for the establishment of integrated mpas that are ecologically based, where the ecological structures determine the limits of the mpas, and the ­activities that should be restricted or regulated, not the jurisdiction of the different states. The available mechanisms for resolving conflicts in the treaties, the conflicts clauses or a harmonising interpretation, may not offset the lack of legal competence to adopt appropriate and tailored measures to protect and conserve marine biodiversity in the eez. New measures have been developed within the imo that provide for the protection of ecologically sensitive or valuable areas. Further cooperation between states through the imo to develop and adopt necessary measures, such as routing measures tailored to be adopted within mpas, is necessary to succeed in protecting sensitive or valuable areas against the threats of shipping. In this way, there will be a better chance to ensure the conservation of biodiversity, as the obligation to establish mpas through integrated and effectively managed mpas may be achieved. Further cooperation between the A ­ rctic states and the imo in using the available mechanisms to ensure integrated mpas where shipping is also addressed is significant. In particular, pssa under the imo provides flexibility to adopt measures that are tailored to protect valuable and sensitive ecosystems, including on the high sea.

Bibliography Allen, Craig H. “Protecting the Oceanic Gardens of Eden: International Law Issues in Deep-Sea Resource Conservation and Management.” Georgetown International Law Review 13 (2001): 565–660. Allen, Ainsly S. “The development of ships’ routeing measures in the Bering Strait: ­Lessons learned from the North Atlantic right whale to protect local whale populations.” Marine Policy 50 (2014): 215–226. Barnes, Richard. “The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Conservation?” In The Law of the Sea: Progress and Prospects, ­edited by David Freestone, Richard Barnes and David Ong, 233–260. New York: ­Oxford University Press, 2006. Bartenstein, Kristin. “The ‘Arctic Exception’ in the Law of the Sea Convention: A ­Contribution to Safer Navigation in the Northwest Passage?” Ocean Development International Law 42:1–2 (2011): 22–52. Bateman, Sam and Michael White, “Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment.” Ocean Development & International Law, 40: 2 (2009): 184–203. Beyerlin, Ulrich and Thilo Marauhn. Law-Making and Law-Enforcement in International Environmental Law after the 1992 Rio Conference, Umwelt Bundes Amt Berichte 4:1997 (Berlin: Erich Schmidt Verlag, 1997). Beyerlin, Ulrich, and Thilo Marauhn. International Environmental Law. Oxford: Hart Publishing, 2011. Birnie, Patricia. “The Status of Environmental ‘Soft Law’: Trends and Examples with Special Focus on IMO Norms.” In Competing Norms in the Law of Marine Environmental Protection, edited by Henrik Ringbom, 31–57. London: Kluwer Law International, 1997. Birnie, Patricia, Boyle Alan, and Catherine Redgwell. International Law & The Environment, 3rd ed. New York: Oxford University Press, 2009. Bodansky, Daniel M. “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond.” Ecology Law Quarterly 18:4 (1991): 719–777. Bodansky, Daniel M. “International Law and the Protection of Biological Diversity.” Vanderbilt Journal of Transnational Law 28 (1995): 623–634. Borgen, Christopher J. “Resolving Treaty Conflicts”. George Washington International Law Review 37 (2005): 573–648. Boyle, Alan, “Marine Pollution under the Law of the Sea Convention.” The American Journal of International Law 79:2 (1985): 347–372. Boyle, Alan, “Protecting the marine environment: Some problems and developments in the law of the sea.” Marine Policy 16:1 (1992): 79–85.

408

Bibliography

Boyle, Alan. “Further Development of the 1982 Convention on the Law of the Sea.” In The Law of the Sea: progress and prospects, edited by David Freestone Richard Barnes and David Ong, 40–60. New York: Oxford University Press, 2006. Boyle, Alan. “Relationship between International Environmental Law and other Branches of International Law.” In The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunée and Ellen Hey, 125–146. New York: Oxford University Press, 2007. Boyle, Alan E. “The Rio Convention on Biological Diversity.” In International law and the conservation on biological diversity, edited by Michael Bowman and Catherine Redgewell, 33–51. London: Kluwer Law International, 1996. Bugge, Hans Christian. “Rio-konferansen i rettslig lys” in Utvalgte artikler i miljørett II, eds. Inge Lorange Backer and Hans Christian Bugge, Institutt for offentlig retts skriftserie 9/1994: 121–137. Oslo: Institutt for Offentlig Rett, Universitetet i Oslo, 1994. Burhenne-Guilmin, Françoise, “Biodiversity and International Law: Historical Perspectives and Present Challenges: Where do we come from, Where are we going?” In Biodiversity, Conservation, Law + Livelihoods: Bridging the North–south Divide, edited by Michael I. Jeffery, Jeremy Firestone and Karen Bubna-Litic, 26–43. Cambridge: Cambridge University Press 2008. Burhenne-Guilmin, Françoise and Susan Casey-Lefkowitz, “The Convention on ­Biological Diversity: a hard won global achievement.” Yearbook of International E­ nvironmental Law 3:1 (1992): 43–59. Burke, Wiliam T, The New International Law of Fisheries; UNCLOS 1982 and Beyond. New York: Oxford University Press, 1994. Byers, Michael. International Law and the Arctic. New York: Cambridge University Press, 2013. Chandler, Melinda. “The Biodiversity Convention: Selected Issues of Interest to the ­International lawyer.” Colorado Journal of International Environmental Law and Policy 4 (1993): 141–176. Chircop, Aldo. “The Growth of International Shipping in the Arctic: Is a Regulatory Review Timely?” The International Journal of Marine and Coastal Law 24:2 (2009): 355–380. Churchill, Robin. “The Contribution of Existing Agreements for the Conservation of Terrestrial Species and Habitats to the Maintenance of Biodiversity.” In International Law and the Conservation of Biological Diversity, edited by Michael Bowman and Catherine Redgwell, 71–90. London: Kluwer Law International, 1996. Churchill, Robin. “The Impact of State Practice on the Jurisdictional Framework Contained in the LOS Convention.” In Stability and Change in the Law of the Sea: The Role of the LOS Convention, edited by Alex G. Oude Elferink, 91–144. Leiden: Martinus Nijhoff Publishers, 2005.

Bibliography

409

Churchill, Robin. “The Growing Establishment of High Seas Marine Protected Areas: Implications for Shipping.” In Shipping, Law and the Marine Environment in the 21st Century: Eerging Challenges for the Law of the Sea – Legal implications and Liabilities, edited by R. Caddell and R. Thomas, 53–88. Oxford: Lawtext Publishing, 2013. Churchill, Robin R. and Alan V. Lowe. The Law of the Sea, 3rd ed. Manchester: Manchester University Press, 1999. Cicin-Sain, Biliana and Stefano Belfiore. “Linking Marine Protected Areas to Integrated Coastal and Ocean mManagement: A review of theory and practice.” Ocean & Coastal Management 48:11–12 (2005): 847–868. Czybulka, Detlef and Thomas Bosecke.“Marine Protected Areas in the EEZ in light of international and European Community law – Legal basis and aspects of implementation.” In Progress in Marine Conservation in Europe: Natura 2000 sites in G ­ erman Offshore Waters, edited by Henning von Nordheim, Dieter Boedecker and Jochen C. Krause, 27–46. Berlin/Heidelberg: Springer Verlag, 2006. Detjen, Markus. “The Western European PSSA- Testing a unique international concept to protect imperilled marine ecosystems.” In Marine Policy 30:4 (2006) 442–453. Dotinga, Harm M. “Conservation of Biological Diversity: the Role of the OSPAR Convention.” Paper Presented at the MARE conference: “People and the Sea: Maritime Research in the Social Sciences- An Agenda for the 21st Century.” Amsterdam: 1. September, 2001. Drankier, Petra. “Marine Protected Areas in Areas beyond National Jurisdiction.” In The International Journal of Marine and Coastal Law 27:2 (2012). Dubner, Barry Hart. “On the Interplay of International Law of the Sea and the Prevention of Maritime Pollution – How Far Can a State Proceed in Protecting Itself from Conflicting Norms in International Law.” George Washington International Law R ­ eview 11 (1998–1999): 137–169. Dunn, Daniel C., Jeff Ardron, Nicholas Bax, Patricio Bernal, Jesse Clearly, Ian Cresswell, Ben Donnelly, Piers Dunstan, Kristina Gjerde, David Johnson, Kristin Kaschner, Ben Lascelles, Jake Rice, Henning Von Nordheim, Louisa Wood and Patrick N. Halpin. “The Convention on Biological Diversity’s Ecologically or Biologically Significant Areas: Origins, development, and current status”. Marine Policy, 49 (2014): 137–145. Dux, Thomas. Specially Protected Marine areas in the Exclusive Economic Zone (EEZ): The Regime for the Protection of Specific Areas of the EEZ for Environmental Reasons under International Law. Berlin: LIT Verlag, 2011. Ebbesson, Jonas. Compatibility of International and National Environmental Law. ­Uppsala: Iustus Forlag, 1996. Ehler, Charles N. “Integrating management of marine protected areas with coastal and ocean governance: Principles and practices.” Ocean & Coastal Management 48 (2005): 843–846.

410

Bibliography

Elferink, Alex G. Oude. “Governance Principles for Areas Beyond National Jurisdiction”. The International Journal of Marine and Coastal Law 27(2012): 205–259. Fayette, Louise de La. “The OSPAR Convention Comes into Force: Continuity and Progress.” The International Journal of Marine and Coastal Law 14 (1999): 247–297. Fayette, Louise de La. “The Marine Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law.” The International Journal of ­Marine and Coastal Law 16:2 (2001): 155–238. Fisher, D.E. “Legal and Paralegal Rules for Biodiversity Conservation: A Sequence of Conceptual, Linguistic, and Legal Problems.” In Biodiversity, Conservation Law + Livelihoods: Bridging the North–south Divide, edited by Michael I. Jeffery, Jeremy Firestone and Karen Bubna-Litic, 94–132. New York: Oxford University Press, 2008. Fitzmaurice, Malgosia and Olufemi Elias. Contemporary Issues in the Law of Treaties. Utrecht: Eleven International Publishing, 2005. Fountabert, Charlotte de, David R. Downes and Tundi S. Agardy. “Biodiversity in the seas: implementing the Convention on biological diversity in marine and coastal habitats.” Georgetown International Environmental Law Review 10:3 (1998): 753–854. Franckx, Erik. “The Protection of Biodiversity and Fisheries Management: Issues Raised by the Relationship between CITES and LOSC.” In The Law of the Sea: Progress and Prospects, edited by David Freestone, Richard Barnes and David Ong, 210–232. New York: Oxford University Press, 2006. Frank, Veronica. “Consequences of the Prestige sinking for European and International law.” The International Journal of Marine and Coastal Law, 20:1 (2005): 1–64. Frank, Veronica. The European Community and Marine Environmental Protection in the International Law of the Sea: Implementing Global Obligations at the Regional Level. Leiden: Martinus Nijhoff Publishers, 2007. French, Duncan, “Treaty interpretation and the incorporation of extraneous legal rules.” International Law & Comparative Law Quarterly 55 (2006): 281–314. French, Duncan A., “A reappraisal of sovereignty in the light of global environmental concerns.” Legal studies, 21:3 (2001): 376–399. Gavouneli, Maria. Functional Jurisdiction in the Law of the Sea. Leiden: Martinus Nijhoff Publishers, 2007. Gillespie, Alexander. “The Management of Protected Areas of International Significance.” New Zealand Journal of Environmental Law 10 (2006): 93–127. Gillespie, Alexander. Protected Areas and International Environmental Law. Leiden: Martinus Nijhoff Publishers, 2007. Gjerde, Kristina M and David Freestone. “Introduction: Particularly Sensitive Sea Areas-An Important Environmental Concept at a Turning-Point”. The International Journal of Marine and Coastal Law 9:4 (1994): 425–468. Gjerde, Kristina M. and Anna Rulska-Domino. “Marine Protected Areas beyond ­National Jurisdiction: Some Practical Perspectives for Moving Ahead”. The International Journal of Marine and Coastal Law 27:2 (2012): 351–373.

Bibliography

411

Hakapää, K and E.J Molenaar. “Innocent passage – past and present.” Marine Policy 23 (1999): 131–145. Henriksen, Tore. “Conservation and Sustainable Use of Arctic Marine Biodiversity: Challenges and Opportunities.” Arctic Review on Law and Politics 1 (2010): 249–278. Henriksen, Tore. “Rollen til kystaten i regulering av arktisk skipsfart.” In Juss in Nord: Hav, fisk og urfolk, En hyllest til det juridiske fakultet ved Universitetet i Tromsos 25-­arsjubileum, edited by Tore Henriksen and Øyvind Ravna, 71–92. Oslo: Gyldendal Norsk Forlag, 2012. Henriksen, Tore. “Conservation of marine biodiversity and the International Maritime Organization”. In Rule of Law for Nature: New Dimensions and Ideas in Environmental Law, edited by Christina Voigt, 331–346. Cambridge: Cambridge University Press, 2013. Henriksen, Tore. “The future of navigation in ice-covered areas: a view from the Arctic.” In Shipping, Law and the Marine Environment in the 21st Century: Emerging Challenges for the Law of the Sea- legal implications and liabilities, edited by Richard Cadell and Rhidian Thomas, 8–34. Oxon: Lawtext Publishing Limited, 2013. Henriksen, Tore. “Protecting polar environments: coherency in Arctic shipping” in ­Research Handbook in International Marine Environmental Law, ed. Rosemary Rayfuse, 363–384. Cheltenham: Edward Elgar Publishing: 2015. Hey, Ellen. “Increasing Accountability for the Conservation and Sustainable Use of ­Biodiversity: an Issue of Transnational Global Character.” Colorado Journal of International Environmental Law and Policy 6 (1995): 1–29. Hey, Ellen. “The International Regime for the Protection of the North Sea: From ­Functional Approaches to a More Integrated Approach.” The International Journal of Marine and Coastal Law 17:3 (2002): 325–350. Hey, Ellen, Ton IJlstra and André Nollkaemper. “The 1992 Paris Convention for the Protection of the marine Environment of the North-East Atlantic: A Critical Analysis.” The International Journal of Marine and Coastal Law 8 (1993): 1–76. Higgins, Rosalyn. Problems & Process International Law and How We Use it. Oxford: Clarendon Press (1994). Hoel, Alf Håkon. “Do We Need a Legal Regime for the Arctic Ocean?” International Journal of Marine and Coastal Law 24 (2009): 443–456. Hoel, Alf Hakon. “Integrated Oceans Management in the Arctic: Norway and Beyond.” in Arctic Review on Law and Politics, 1:2 (2010): 186–206. Jakobsen, Ingvild Ulrikke. “The Adequacy of the Law of the Sea and International Environmental Law to the Marine Arctic: Integrated Ocean Management and Shipping”. In Michigan State International Law Review. 22:1 (2013): 291–319. Jakobsen, Ingvild Ulrikke. “Marine Protected Areas as a Tool to Ensure Environmental Protection of the Marine Arctic: Legal Aspects.” In Arctic Marine Governance: ­Opportunities for Transatlantic Cooperation, edited by Elisabeth Tedson, Sandra Cavelieri, R. and Andreas Kraemer, 215–233. Berlin/Heidelberg: Springer Verlag 2014.

412

Bibliography

Jakobsen, Ingvild U. and Tore Henriksen, “Norway and Arctic Marine Shipping,” Fram Centre Report Series No. 2 (2015). Jeffery, Michael. “An International Legal Regime for Protected Areas”. In International Environmental Governance: An International Regime for Protected Areas, edited by John Scanlon and Francoise Burhenne-Guilmin, 9–41. Gland, Switzerland and Cambridge, UK: IUCN, 2004. Johnson, Lindy. Coastal state regulation of international shipping. New York: Oceana Publications, Dobbs Ferry, 2004. Johnstone, Rachel Lorna. Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility. Leiden/Boston: Brill, 2014. Johnston, Sam. “The Convention on Biological Diversity: The Next Phase”. Review of European Community & International Environmental Law 6 (1997): 219–229. Kachel, Markus J., Particularly Sensitive Sea Areas: The IMO’s Role in Protecting Vulnerable Marine Areas. Berlin/Heidelberg: Springer Verlag, 2008. Kelleher, Graeme. Editor. Guidelines for Marine Protected Areas. Gland, Switzerland and Cambridge, UK: IUCN, 1999. Kelsen, Hans. General Theory of Laws. Oxford: Clarendon Press, 1991. Kimball, Lee. “The Biodiversity Convention: How to make it work.” Vanderbilt Journal of Transnational Law 28 (1995): 763–775. Klemm, Cyrille de. “Fisheries Conservation and Management and Conservation of Marine Biological Diversity.” In Developments in International Fisheries Law, edited by Ellen Hey, 423–500. The Hague; Kluwer Law International, 1999. Klemm, Cyrille de and Clare Shine, Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems. Gland, Switzerland and Cambridge, UK: IUCN, 1993. Koester, Veit. “The Five Global Biodiversity-Related Conventions: A Stocktaking.” Review of European Community & International Environmental Law 11:1 (2002): 96–103. Koivurova, Timo. “Governance of Protected Areas in the Arctic”. Utrecht Law Review 5 (2009): 44–60. Koivurova, Timo. “Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic Governance.” Polar Record 46:2 (2010): 146–156. Koivurova, Timo and David VanderZwaag, “The Arctic Council at 10 years: Retrospect and Prospects”. University of British Columbia Law Review, 40:1 (2007): 121–194. Koivurova, Timo and Erik J. Molenaar. International Governance and Regulation of the Marine Arctic, Three reports prepared for the WWF International Arctic Programme, Oslo 2010. Kunich, John Charles. “Losing Nemo: The mass extinction now threatening the world’s ocean hotspots.” Columbia Journal of Environmental Law 1 (2005): 1–80. Lagoni, Rainer. “Marine Protected Areas in the Exclusive Economic Zone.” In International Marine Environmental Law; Institutions, Implementation and Innovations, edited by Andree Kirchner, 157–167. The Hague: Kluwer Law International, 2003.

Bibliography

413

Lahonde, Suzanne. “Marine Protected Areas in the Arctic.” In The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes, edited by Erik J. Molenaar, Alex G. Oude Elferink, and Donald R. Rothwell, 85–111. Leiden: Marinus Nijhoff Publishers, 2013. MacDougal, Myres Smith and William Thomas Burke. The Public order of the Oceans: A contemporary International Law of the Sea. Leiden: Martinus Nijhoff Publishers, 1962. Magraw, Daniel Barstow. “Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms.” Colorado Journal of International Environmental Law and Policy 1 (1990): 69–99. Marr, Simon. The Precautionary Principle in the Law of the Sea: Modern Decision Makinging in International Law. The Hague: Martinus Nijhoff Publishers/Kluwer Law International, 2003. Matz, Nele. “The Interaction Between the Convention on Biological Diversity and the UN Convention on the Law of the Sea.” In Marine Issues: From a scientific, Political and Legal Perspective, edited by Peter Ehlers, Elisabeth Mann-Borgese and Rüdiger Wolfrum, 203–220. London: Kluwer Law International, 2002. Matz-Lück, Nele and Johannes Fuchs. “The impact of OSPAR on protected areas beyond national jurisdiction: effective regional cooperation or a network of paper parks?” Marine Policy 49 (2013): 155–166. Matz-Lück, Nele and Johannes Fuchs. “Marine Living Resources” in The Oxford ­Handbook of the Law of the Sea, edited by Donald R. Rothwell, Alex G. Oude ­Elferink, karne N. Scott and Tim Stephens, 491–515, Oxford: Oxford University Press, 2015. McDormann, Ted L. “A Note on the Potential Conflicting Reaty Rights and Obligation between the IMO’s Polar Code and Article 234 of the Law of the Sea Convention”, in International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, eds. Suzanne Lalonde and Ted L. McDorman, 141–160. Leiden/Boston: Brill Nijhoff, 2015. Mcgraw, Desireé. “The CBD – key characteristics and implications for implementation.” Review of European Community & International Environmental Law 11:1 (2002): 17–28. McLachlen, Campell. “The principle of systemic integration and article 31 (c) of the Vienna Convention.” International Law & Comparative Law Quarterly 54 (2005): 279–320. Merialdi, Angelo. “Legal Restraints on Navigation in Marine Specially Protected Areas,” in Marine Specially Protected Areas: The General Aspects and the Mediterranean Regional System, ed. Tullio Scovazzi, 30–43. The Hague: Kluwer Law International, 1999. Molenaar, Erik Jaap. Coastal State Jurisdiction over Vessel-Source Pollution. The Hague: Kluwer Law International, 1998.

414

Bibliography

Molenaar, Erik J. “Addressing Regulatory Gaps in High Seas Fisheries.” The International Journal of Marine and Coastal Law 20:3 (2005): 533–570. Molenaar, Erik J. “Managing Biodiversity in Areas Beyond National Jurisdiction.” The International Journal of Marine and Coastal Law 22 (2007): 89–124. Molenaar, Erik J. “Arctic Marine Shipping: Overview of the International Legal ­Framework, Gaps and Options.” Journal of Transnational Law & Policy, 18:2 (2009): 289–326. Molenaar, Erik J. “Status and reform of the Arctic Shipping Law”. In Arctic Marine Governance; Opportunities for Transatlantic Cooperation, edited by Elizabeth Tedsen, Sandra Cavalieri and R. Andreas Kraemer, 127–157. Berlin/Heidelberg: Springer Verlag, 2014. Molenaar, Erik J., Timo Koivuvora, Elizabeth Tedsen, Andrew Reid and Hossain. kamrul “Introduction to the Arctic.” In Arctic Marine Governance: Oppurtunities for Transatlantic Cooperation, edited by Elizabeth Tedsen, Sandra Cavalieri and R. Andreas Kraemer, 3–19. Berlin/Heidelberg: Springer Verlag, 2014. Molenaar, Erik Jaap. “Current and Prospective Roles of the Arctic System within the Context of the Law of the Sea.” International Journal of Marine and Coastal Law 27 (2012): 553–595. Molenaar, Erik J. and Alex G. Oude Elferink. “Marine protected areas in areas beyond national jurisdiction: The pioneering efforts under the OSPAR Convention.” Utrecht Law Review 5 (2009): 5–20. Mossop, Joanna. “Reconciling activities on the extended continental shelf with protection of the marine environment.” in Research Handbook on International Marine Environmental Law, edited by Rosemary Rayfuse, 170–189. Cheltenham: Edward Elgar Publishing Limited, 2015. Nandan, Satya N., and Shabtai Rosenne (editors), M.H. Nordquist (editor in chief). United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II. Dordrecht: Martinus Nijhoff Publishers, 1993. Nollkaemper, André. “Agenda 21 and prevention of sea-based marine pollution: A spurious relationship?” Marine Policy 17 (1993): 537–556. Nollkaemper, André. ““What you risks reveals what you value”, and other Dilemmas Encountered in the Legal Assaults on Risks.” In The Precautionary Principle and ­International Law; The Challange of Implementation, edited by David Freestone and Ellen Hey, 73–97. The Hague: Kluwer Law International, 1996. Nollkaemper, André. “The Distinction Between Non-Legal and Legal Norms in International Affairs: an Analysis with Reference to International Policy for the Protection of the North Sea from Hazardous Substances.” The International Journal of Marine and Coastal Law 13 (1998): 355–371. Oral, Nilufer. “Protection of vulnerable marine ecosystems in are areas beyond national jurisdiction: Can international law meet the challenge?” In Unresolved Issues and

Bibliography

415

New Challenges to the Law of the Sea: Time Before and Time After, edited by Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos, 85–108. Leiden/Boston: Martinus Nijhoff Publishers, 2006. Owen, Daniel. “The Application of the Wild Birds Directive Beyond the Territorial Sea of European Community Member States.” Journal of Environmental Law 13:1 (2001): 39–78. Peet, Gerhard. “Particularly Sensitive Areas-A documentary history.” In The International Journal of Marine and Coastal Law 9:4 (1994): 469–506. Plant, Glen. “The Relationship between International Navigation Rights and Environmental Protection: A Legal Analysis of Mandatory Ship Traffic Systems.” In Competing Norms in the Law of Marine Environmental Protection, edited by Henrik Ringbom, 11–29. London: Kluwer Law International, 1997. Raustiala, Kai. “Form and substance in international agreements.” American Journal of International Law 99 (2005): 581–614. Rayfuse, Rosemary. “Melting Moments: The Future of Polar Oceans Governance in a Warming World.” Review of European Community & International Environmental Law 16:2 (2007): 196–216. Rayfuse, Rosemary. “Biological Resources.” In The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Bruneè and Ellen Hey, 362–393. New York: Oxford University Press, 2007. Redgewell, Catherine. “From Permission to Prohibition; The 1982 Convention on the Law of the Sea and Protection of the Marine Environment.” In The Law of the Sea; Progress and Prospects, edited by David Freestone, Richard Barnes and David Ong, 180–191. Oxford: Oxford University Press, 2006. Riedel, Arne. “The Arctic Marine Environment.” In Arctic Marine Governance: Oppor­ tunities for Transatlantic Cooperation, edited by Elisabeth Tedsen, Sandra Cavalieri, R. and Andreas Kraemer, 215–233. Heidelberg/Berlin: Springer Verlag, 2014. Ringbom, Henrik. “Introduction.” In Competing Norms in the Law of Marine Environmental Protection, edited by Henrik Ringbom, 1–10. London: Kluwer Law International, 1997. Ringbom, Henrik. The EU Maritime Safety Policy and International Law. Leiden: Martinus Nijhoff Publishers, 2008. Ringbom, Henrik. “Regulatory Layers in Shipping,” In The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues, edited by Davor Vidas and Peter Johan Schei, 345–370. Leiden/Boston: Martins Nijhoff Publishers, 2011. Ringbom, Henrik. “Vessel-source pollution,” in The Research Handbook on International Marine Environmental Law, edited by Rosemary Rayfuse, 105–131. Cheltenham: Edward Elgar Publishing, 2015.

416

Bibliography

Roach, J. Ashley. “A note on making the Polar Code mandatory.” In International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand, edited by Suzanne Llonde and Ted L. McDormann, 125–140. Leiden: Brill, 2015. Roberts, Julian. “Protecting Sensitive Marine Environments: The Role and Application of Ships’ Routeing Measures.” The International Journal of Marine and Coastal Law 20:1 (2005): 135–159. Roberts, Julian. Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the IMO’s Particularly Sensitive Sea Area Concept. Berlin/Heidelberg: Springer Verlag, 2007. Roberts, Julian, Ben M. Tsamenyi, Tims Workman and Lindy Johnson. “The Western European PSSA Proposal: a ‘Politically Sensitive Sea Area’.” In Marine Policy 29 (2005). Roberts, Julian, Aldo Chircop and Siân Prior, “Area-based Management on the High Seas: possible Application of the IMO’s Particularly Sensitive Sea Area Concept.” The International Journal of Marine and Coastal Law 25 (2010): 483–522. Rosenne, Shabtai and Alexander Yankov (editors), M.H. Nordqust (editor in chief). United Nations Convention on the Law of the Sea 1982: A Commentary, Volume IV. Dordrecht: Martinus Nijhoff Publishers 1991. Rothwell, Donald D. “Innocent Passage in the Territorial Sea: The UNCLOS Regime and Asia Pacific State Practice.” In Navigational Rights and Freedoms and the New Law of the Sea, edited by Donald D. Rothwell and Sam Bateman, 74–93. Leiden: Martinus Nijhoff Publishers, 2000. Rothwell Donald D. and Tim Stephens. The International Law of the Sea. Oxford: Hart Publishing, 2010. Sadat-Akhavi, Seyed Ali. Methods for Resolving Conflicts between Treaties. Leiden: Martinus Nijhoff Publishers, 2003. Sage, Bènèdicte. “Precautionary coastal states’ jurisdiction.” Ocean Development & International Law 37:3–4 (2006): 359–387. Sage-Fuller, Bènèdicte. The Precautionary Principle in Marine Environmental Law, With Special References to High Risk Vessels. Abingdon: Routledge, 2013. Sakhuja, Vijay. “The Polar Code and Arctic Navigation.” Strategic Analysis 38:6 (2014): 803–811. Sands, Philippe. “Treaty, Custom and International Law.” In Past Achievements and Future Challenges, edited by Alan Boyle, 39–61. New York: Oxford University Press, 1999. Sands, Philippe. Principles of International Environmental Law. 2nd ed Cambridge: Cambridge University Press, 2003. Sands, Philippe and Jacqueline Peel. Principles of International Environmental Law, 3rd ed. Cambridge: Cambridge University Press, 2012. Scovazzi, Tullio. “Marine Specially Protected Areas under Domestic Legislation.” In ­Marine Specially Protected Areas: The General Aspects and the Mediterranean

Bibliography

417

R ­ egional System, edited by Tullio Scovazzi, 3–16. The Hague: Kluwer Law International, 1999. Scovazzi, Tullio. “Marine Specially Protected Areas under International Law.” In ­Marine  Specially Protected Areas: The General Aspects and the Mediterranean Regional ­System, edited by Tullio Scovazzi, 17–27. The Hague: Kluwer Law International, 1999. Scovazzi, Tullio “Marine Protected Areas on the High Seas: Some Legal and Policy Considerations.” The International Journal of Marine and Coastal Law, 19:1 (2004): 1–17. Shaw, Malcolm N. International Law (Cambridge: Cambridge University Press, 2008). Shelton, Dinah. “Normative Hierarchy in International Law.” The American Journal of International Law 100 (2006): 291–333. Scott, Karen N. “Conservation on the High Seas: Developing the Concept of High Seas Marine Protected Areas.” The International Journal of Marine and Coastal Law 27:2 (2012): 849–857. Scott, Karen N. and David L. Vanderzwaag. “Polar Oceans and Law of the Sea.” In The Oxford Handbook of the Law of the Sea, edited by Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens, 724–751. Oxford: Oxford University Press, 2015. Scott, Shirley V. “The LOS Convention as a Constitutional Regime for the Oceans.” In Stability and Change in the Law of the Sea: The Role of the LOS Convention, edited by Alex G. Oude Elferink, 9–39. Leiden: Martinus Nijhoff Publishers, Leiden, 2005. Stoessel, Susannah, Elisabeth Tedsen, Sandra Cavalieri and Arne Riedel. “Environmental Governance in the Marine Arctic.” In Arctic Marine Governance: Opportunities for Transatlantic Cooperation, edited by Elizabeth Tedsen, Sandra Cavalieri and ­Andreas R. Kraemer, 45–69. Berlin/Heidelberg: Springer Verlag, 2014. Spadi, Fabio. “Navigation in Marine Protected Areas: National and International Law.” Ocean Development & International Law 31:3 (2000): 285–302. Tanaka, Yoshifumi. “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea.” The International Journal of Marine and Coastal Law 19 (2004): 483–514. Tanaka, Yoshifumi. A Dual Approach to Ocean Governance: The Case of Zonal and Integrated Management in International Law of the Sea. Cornwall: Ashgate, Publishing, 2008. Tanaka, Yoshifumi. “The Changing Approaches to Conservation of Marine Living Resources International Law,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 71:2 (2011): 291–330. Tanaka, Yoshifumi. The International Law of the Sea, 2nd.ed. Cambridge: Cambridge University Press, 2015. Tinker, Catherine J. “Introduction to biological diversity: law, institutions, and science.” Buffalo Journal of International Law 1 (1994): 1–25.

418

Bibliography

Trouwburst, Arie. “The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages.” Review of European Community & International Environmental Law 18 (2009): 26–37. Trouwburst, Arie. “Prevention, Precaution, Logic and Law – The Relationship between the Precautionary Principle and the Preventive Principle in International Law and Associated Questions.” Erasmus Law Review 2:2 (2009): 105–127. Ulfstein, Geir. “Fisheries Management and the 1992 Convention on Biological Diversity,” in Laws on Marine Environmental Protection in China, Russia and Norway, ed. by Hege Brækhus, Det Juridiske Fakultet Skriftserie 50 (2002): 40–54. Ulfstein, Geir, Rettslige sider ved biologisk mangfold i havet, Utredning for Biomangfoldlovutvalget, Oslo 2003. VanderZwaag, David L. “Shipping and Marine Environmental Protection in Canada: Rocking the Boat and Riding A Restless Sea.” In Navigational Rights and Freedoms and the New law of the Sea, edited by. Donald R. Rothwell and Sam Bateman, 209– 229. The Hague: Kluwer Law International, 2000. VanderZwaag, David L. “The Arctic Counil and the future of Arctic Ocean governance: edging forward in a sea of governance challenges.” In Polar Oceans Governance in an Era of Environmental Change, edited by Tim Stephens and David L. VanderZwaag, 308–338. Cheltenham: Edward Elgar Publishing Limited, 2014. Van Dyke, M. Jon “The Legal Regime Governing Sea Transport of Ultrahazardous ­Radioactive Materials.” Ocean Development & International Law 33 (2002): 77–108. Verschuuren, Jonathan and Timon Oudenaarden. “The Role of Ideals in Legal Development: Sustainable Development and the Conservation of Biological Diversity as Cases in Point.” In The Importance of Ideals: Debating Their Relevance in Law, Morality, and Politics, edited by Wibren van der Burg and Sanne Taekema, 231–262. Bruxells: P.I.E. – Peter Lang 2004. Voigt, Christina. Sustainable Development as a Principle of International Law: Resovling Conflicts between Climate Measures and WTO Law. Leiden: Martinus Nijhoff Publishers, 2009. Vranes, Erich. “The Definition of ‘Norm Conflict’ in International Law and Legal ­Theory.” The European Journal of International Law 17:2 (2006): 395. Wang, Hanling. “Ecosystem Management and Its Application to Large Marine Ecosystems: Science, Law and Politics.” Ocean Development & International Law 35 (2004): 41–74. Warner, Robin. Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework. Leiden: Martinus Nijhoff Publisheres, 2009. Warner, Robin. “Conserving Marine Biodiversity in Areas Beyond National Jurisdiction: Co-Evolution and Interaction with the Law of the Sea.” In The Oxford Handbook of the Law of the Sea, edited by Donald R. Rothwell, Alex G Oude Elferink, Karen N. Scott and Tim Stephens, 752–776. Oxford: Oxford University Press, 2015.

Bibliography

419

Warren, Lynda M. and Mark W. Wallace. “The Donaldsson Inquiry and its Relevance to Particularly Sensitive Sea Areas,” The International Journal of Marine and Coastal Law, 9:4 (1994), 523–534. Werksman, Jacob D. “Formal Linkages and Multilateral Environmental Agreements.” Background Paper prepared for the International Conference on Synergies and Co-ordination between Multilateral Environmental Agreements, Tokyo, July 14–16, 1999. Wold, Chris. “The Futility, Utility, and Future of the Biodiversity Convention.” Colorado Journal of International Environmental Law and Policy 9:1 (1998): 1–42. Wolf, Sarah and Jan Asmus Buschoff, “Marine Protected Areas.” Max Planck ­Encyclopedia of Pulic International Law (2013). Wolfrum, Rüdiger and Nele Matz. “The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity.” In Max Planck ­Yearbook of United Nations Law 4 (2000), edited by Jochen A. Frowein, Rüdiger Wolfrum and Christian E. Philipp, 445–480. The Hague: Kluwer Law International, 2000. Wolfrum, Rüdiger and Nele Matz. Conflicts in International Environmental Law. ­Heidelberg: Springer, 2003. Wright, Glen, Julien Rochette and Elisabeth Druel, “Marine protected areas in areas beyond national jurisdiction” in Research Handbook on International Marine Environmental Law, edited by Rosemary Rayfuse, 272–290. Cheltenham: Edward Elgar Publishing Publishing Limited, 2015.

EU Directives Directive 2008/56/EC of European Parliament and of the Council of 17 June 2008, ­establishing a framework for community action in the field of marine e­ nvironmental policy. Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds.

International Declarations and Other Instruments Agenda 21: Programme of Action for Sustainable Development, 14 June 1992, UN Doc. A/Conf.151/26. Arctic Environmental Protection Strategy, 14 January 1991, 30 ILM. 1624.

420

Bibliography

Declaration on the Establishment of Arctic Council, 1996, 35 ILM 1387 (Ottawa Declaration). The Ilulissat Declaration, Arctic Ocean Governance, Ilulissat Greenland, 28 May, 2008. Rio Declaration on Environment and Development (1992) 11 ILM 1416 (Rio Declaration). Stockholm Declaration on the Human Environment (1972) 11 ILM 1416 (Stockholm Declaration). World Summit on Sustainable Development, Plan of Implementation, of he World Summit on Sustainable Development, 4. September 2002, UN Doc. A/Conf.199/20, Annex (WSSD Plan of Implementation).

United Nations General Assembly Outcome of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservationa and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs’ summary of discussion, A/Res./69/780 (13 February 2015). Report of the Ad-Hoc Open-ended Informal Working Group, to study issues relating to conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction, A/61/65 (20 March 2006). Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, A/58/95 (26 June 2003). Report of the World Commission on Environment and Development, “Our Common Future,” A/42/427 (5 August 1987). Resolution adopted by the General Assembly, A/Res./59/24 (17 November 2004). Resolution adopted by the General Assembly, A/Res./63/111 (5 December 2008). Resolution adopted by the General Assembly, A/Res./66/231 (24 December 2011). Resolution adopted by the General Assembly, “The future we want,” A/Res./66/288 (27 July 2012). Resolution adopted by the General Assembly, A/Res./68/70 (9 December 2013).

International Law Commission Report of the Study Group on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UNGA, 58th session, UN Doc A/CN.4/L.682 (18 July 2006). International Law Commission (ILC), Draft articles on Prevention of transboundary harm from hazardous activities, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifthysixth session, Supplement No 10 A/56/10 (November 2001).

Bibliography

421

Report of the International Law Commission on the Work of its Eighteenth Session, Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.1) (4 May-19 July 1966).

CBD Documents Decisions

CBD COP, Decision II/10. CBD COP, Decision IV/5. CBD COP, Decision V/6. CBD COP, Decision VI/7. CBD COP, Decision VII/5. CBD COP, Decision VII/11. CBD COP, Decision VII/28. CBD COP, Decision VIII/24. CBD COP, Decision VIII/28. CBD COP, Decision IX/7. CBD COP, Decision IX/20. CBD COP, Decision IX/29. CBD COP, Decision X/29.



Other CBD Documents

CBD Secretariat, Handbook of the Convention on Biological Diversity. Earthscan Publications Ltd, London, UK 2001. Secretariat of the Convention on Biologcial Diversity, 2004, “Technical advice on the establishment and management of a national system of marine and coastal protected areas,” SCBD, CBD Technical Series no.13. Secretariat of the Convention on Biological Diversity, 2004, “Biodiversity issues for consideration in the planning, establishment and management of protected area sites and networks.” Montreal, SCBD, CBD Technical Series no. 15.

OSPAR Documents

OSPAR Commission

OSPAR Strategy on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area, Ministerial Meeting of the OSPAR Commission, 20–24 July 1998, Summary Record OSPAR 98/14/1-E, Annex 37. Sintra Statement, Ministeral Meeting of the OSPAR Commission, 22–24 July 1998, Summary Record OSPAR 98/14/1-E, Annex 45.

422

Bibliography

The Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area, Ministerial Meeting of the OSPAR Commission, 20–24 July 1998, Summary Record OSPAR 98/14/1-E, Annex 31. Bremen Statement, Ministerial Meeting of the OSPAR Commission, 25 June 2003, ­Summary Record OSPAR 03/17/1-E, Annex 33. Guidelines for the Identification and Selection of Marine Protected Areas in the OSPAR Maritime Area, 23–27 June 2003, Summary Record OSPAR 03/17/1-E, Annex 10. Guidelines for the Management of Marine Protected Areas in the OSPAR Maritime Area, Meeting of the OSPAR Commission, 23–27 June 2003, Summary Record OSPAR 03/17/1-E, Annex 11. OSPAR Recommendations 2003/3 on a Network of Marine Protected Areas, Meeting of the OSPAR Commission, 23–27 June 2003, Summary Record OSPAR 03/17/1-E, ­Annex 9. 2003 Strategies of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic, Ministerial Meeting of the OSPAR Commission, 25 June 2003, Summary Record OSPAR 03/17/1-E Annex 31. Guidance on Developing an Ecologically Coherent Network of OSPAR Marine ­Protected Areas, OSPAR Agreement 2006–3. OSPAR’s Regulatory Regime for establishing Marine Protected Areas (MPAs) in ­Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area, meeting of the OSPAR Commission 22–26 June 2009, Summary Record OSPAR 09/22/1-E, Annex 6. OSPAR Recommendation 2010/2 on amending Recommendation 2002/3 on a network of Marine Protected Areas, Meeting of the OSPAR Commission, 20–24 September 2010, OSPAR 10/23/1, Annex 7. The North-East Atlantic Environment Strategy: Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020, OSPAR Agreement 2010–03. Quality Status Report 2010, London. Terms of Reference for OSPAR’s Coordination Groups and Committees, OSPAR Agreement 2011–4. 2014 Status Report on the OSPAR Network on Marine Protected Areas, Biodiversity and Ecosystems Series, 2015.



Biodiversity Committee

Ecosystem Approach to Management of Human Activities, Meeting of the Biodiversity  Committee, 20–24 January 2003, Summary Record 2003, BDC 03/10/01-E, Annex 13. Meeting of the Biodiversity Committee (BDC), 2–6 March 2015, Summary Record-BDC 2015, BDC 15/10/1-E.

Bibliography



423

Joint Ministerial Meeting of the Helsinki and the OSPAR Commission

Declaration of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions, 25–26 June 2003, Record of the Meeting, Annex 8. Statement on the Ecosystem Approach to the Management of Human Activities; ­Towards an Ecosystem Approach to the Management of Human Activities, 25–26 June 2003, Record of the Meeting, Annex 5.

Other OSPAR Documents

Meeting of the Intersessional Coresspondence Group on Marine Protected Areas (ICG-MPA), 13–15 October 2015, ICA-MPA15/9/1-E.



Arctic Council Documents

AMAP/CAFF/SDWG, 2013. Identification of Arctic marine areas of heightened ecological significance: Arctic Marine Shipping Assessment (AMSA) IIC. Arctic Monitoring and Assessment Programme (AMAP), Oslo. Arctic Ocean Review Project 2009–2013 (AOR), Final Report Phase II 2011–2013, 8th ­Arctic Council Ministerial Meeting, Kiruna Sweden, 15 May 2013. CAFF, Arctic Biodiversity Assessment: Report for Policy Makers. (CAFF)Akureyri, ­Iceland, 2013. CAFF, Arctic Biodiversity Assessment: status and trends in Arctic biodiversity, ­Conservation of Arctic Flora and Fauna (CAFF), Arctic Council, 2013. CAFF, Circumpolar Protected Areas Network (CPAN) – Principles and Guidelines CAFF Habitat Conservation Report No. 4 (1996). CAFF, Circumpolar Protected Areas Network (CPAN) – Strategy and Action Plan, CAFF Conservation Report No. 6 (1996), Directorate for Nature Management, Trondheim, Norway. CAFF Management Board Meeting Minutes 13–15 February 2006. Helsinki Finland, ­Record of Decisions, 4. Ecosystem-Based Management in the Arctic, Report submitted to Senior Arctic ­Officials by the Expert Group on Ecosystem-Based Management, May 2013. Iqaluit Declaration 2015, On the occasion of the Ninth Ministerial Meeting of the ­Arctic Council, Iqaluit Canada, 24 April 2015. Kiruna Declaration, On the occasion of the Eight Ministerial Meeting of the Arctic Council (2013), Kiruna Sweden, 15 May 2013. PAME, Arctic Marine Shipping Assessment 2009 Report. PAME Work Plan 2013–2015. PAME Work Plan 2015–2017. PAME; Arctic Marine Strategic Plan, 24 November 2004.

424

Bibliography

PAME, Arctic Marine Strategy Plan (2015–2025), April 2015. PAME, Framework for a Pan-Arctic Network of Marine Protected Areas, April 2015 PAME, Working Group Meeting Report, PAME-II 2014, 16–18 September.



IMO Documents

IMO Assembly, General Provisions on Ships’ Routeing, 20 November 1985, IMO Resolution A.572 (14), as amended. IMO Assembly, Guidelines for Special Areas under the MARPOL Convention are adopted by IMO, Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 15 January 2002, IMO Assembly Resolution A. 927 (22). IMO Assembly, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, 1 December 2005, IMO Assembly Resolution A.982(24). IMO Assembly, Guidelines for Ships Operating in Polar Waters, 2 December 2009, IMO Assembly Resolution A.1024 (26). IMO Legal Committee, Report of the Legal Committee on the Work of its eightyseventh session, 23 October 2003, LEG 87/17. IMO Legal Committee, Report of the Legal Committee on the Work of its Eigth-Ninth Session, 4 November 2004, LEG 89/16. IMO Marine Environment Protection Committee, Report of the Third International Meeting of legal Experts on Particularly Sensitive Areas, 4 August 1994, MEPC 36/21/4. IMO Marine Environment Protection Committee, Identification and Protection of Special Areas and Particularly Sensitive Sea Areas: Designation of a Western European Particularly Sensitive Sea Area, 11 April 2003, MEPC 49/8/1. IMO Marine Environment Protection Committee, Report on the Marine Environmental Protection Committee on its Forty-Ninth Session, 8 August 2003, MEPC 49/22. IMO Marine Environment Protection Committee, Identification and Protection of Special Areas and Particularly Sensitive Sea Areas: Extension of Existing Great Barrier Reef PSSA to Include the Torres Strait Region,10 April 2003, MEPC 49/8. IMO Marine Environment Protection Committee, “Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area,” 22 July 2005, MEPC. 136 (53). IMO Marine Environment Protection Committee, Designation of Torres Strait as an Extension of the Great Barrier Reef PSSA, 22 July 2005, MEPC. 133(53). IMO Marine Environment Protection Committee, International Code for Ships Operating in Polar Waters, Resolution MEPC. 264(68),15 May 2015, MEPC 68/21/Add.1, Annex 10.

Bibliography

425

IMO Maritime Safety Committee, Report of the Maritime Safety Committee on its Seventy-Third Session, 14. December 2000, MSC 73/21/Add. 3. IMO Maritime Safety Committee, Report of the Maritime Safety Committee on its Ninety-first Session, 17 December 2012, MSC 91/22. IMO Secretariat, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, Study by the Secretariat of International maritime Organization, 19 January 2012, LEG/MISC 7. Ships’ Routeing, 2013 Edition. London: International Maritime Organization, 2013. IMO, Sub-Committee on Safety of Navigation, Report to the Maritime Safety Committee, 4 July 2005, NAV 51/19. IMO Sub-Committee on Safety of Navigation, Report to the Maritime Safety Committee, 15 August 2006, NAV 52/18.

Reports Det Norske Veritas, Specially Designated Marine Ares in the Arctic High Seas, Report for Norwegian Environment Agency, Report No./DNV Reg No.: 2013–1442. Earth Negotiations Bulletin, Vol.25 No 83, 14 May 2012. Legal Experts Group of World Commission on Environment and Development, ­Environmental Protection and Sustainable Development: Legal Principles and ­Recommendations, in Environmental Protection and Sustainable Development London: Graham & Trotman/Martinus Nijhof, 1986. Hoel, Alf Håkon (ed.). “Best Practices in Ecosystem-based Oceans Management in the Arctic.” Norwegian Polar Institute: Report Series no. 129. Tromsø 2009. International Law Association, Committee on Coastal State Jurisdiction Relating to Marine Pollution, ILA Final Report (London Conference, 2000). Millenium Ecosystem Assessment, 2005. Ecosystems and Human Well- being: Synthesis. Island Press, Washington DC.



Norwegian Legislation, Preparatory Work/White Papers.

Nature Diversity Act, Act of 19 June 2009 No.100 Relating to the Management of Biological, Geological and Landscape Diversity. Marine Resources Act, Act of 6 June 2008 No.37 Relating to management of wild living resources. Svalbard Environmental Protection Act, Act of 15 June 2001 No. 79 Relating to the ­Protection of the Environment in Svalbard.

426

Bibliography

Norwegian Ministry of the Environment, NOU 2004:28, 149. Lov om bevaring av natur, landskap og biologisk mangfold. (Official Norwegian Report) Oslo 2004. Norwegian Ministry of the Environment. “Integrated Management of the Marine ­Environment of the Barents Sea and the Sea Areas off the Lofoten Islands,” Report No. 8 to the Storting (2005–2006), (White paper). Oslo 2006. Norwegian Ministry of the Environment. “First update of the Integrated Management of the Marine Environment of the Barents Sea- Lofoten Area,” Meld.St. 10 (2010– 2011) Report to the Storting (White paper). Oslo, 2011.



National Statements and Strategies

United States, (The White House) National Strategy for the Arctic region, 10 May 2013. United States, (President Ronald Reagan) Statement on United States Ocean Policy, 10 March 1983.

Table of Cases

International Arbitration

Arbitration regarding the Iron Rhine (IJzeren Rijn) Railway (Belgium v. The N ­ etherlands), Award of 24 May 2005, xxvii riaa 35. Dispute Concerning Access to Information Under Article 9 of the ospar Convention (­Ireland v. United Kingdom), Final Award of 2 July 2003, xxiii riaa 59. Trail Smelter arbitration (United States v. Canada) 16 April 1938 and 11 March 1941, iii riaa 1905.



International Court of Justice

Aegan Sea Continental Shelf (Greece v. Turkey) [1978], icj Reports, 3. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) [1970] icj Reports, 3. Corfu Channel Case (United Kingdom v. Albania) [1949] icj Reports 4. Gabčikovo-Nagymaros Project (Hungary v. Slovakia) [1997] icj Reports 7. Interpretation of Peace Treaties (Bulgaria, Hungary and Romania) (Second Phase) ­Advisory Opinion [1950] icj Reports, 221. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Advisory Opinion) [1971] icj Reports, 16. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996], icj ­Reports, 226. Oil Platforms (Islamic Republic of Iran v. United States of America) [2003] icj Reports, 161. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) [1969] icj Reports, 3. Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010] icj Reports, 14. Right of Passage over Indian Territory (Portugal v. India) [1957] icj Reports, 125.



International Tribunal for the Law of the Sea

The M/V “Saiga” Case (Saint Vincent and the Grenadines v. Guinea), Judgement of 4. December 1997, International Tribunal for the Law of the Sea, itlos Reports, Case No. 1

428

Table of Cases

The M/V Vigrinia G Case (Panama v. Guinea-Bissau), Judgement of 14 April 2014, ­International Tribunal for the Law of the Sea, itlos Reports, Case no. 19. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), 1 February 2011, International Tribunal for the Law of the Sea: Seabed Dispute Chamber Case No. 17. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Order for ­Provisional Measures), 27 August 1999, International Tribunal for the Law of the Sea Case No. 3 and 4.



World Trade Organization

Shrimp/Turtle: United States – Import Prohibition of Certain Shrimp and Shrimp Products (Report of the Appellate Body) wto (12 October 1998) Doc. WT/DS58/ AB/R.



National Courts



Australian High Court

Commonwealth v Tasmania [1983] hca 21; (1983) 158 clr1 (1 July 1983).

Table of Treaties Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, 50 i.l.m.1119 (2011). Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, 15 May 2013. Convention on Biological Diversity 1992, 1760 unts 79 (cbd Convention). Convention on the Conservation of European Wildlife and Natural Habitats 1979, 1284 unts. 209 (Bern Convention). Convention Concerning the Protection of the World Cultural and Natural Heritage 1972, 1037 unts 151 (World Heritage Convention). Convention on the Conservation of Migratory Species of Wild Animals 1979, 1651 unts 333 (Bonn Convention). Convention on the Continental Shelf, 1958, 499 unts 311. Convention on Environmental Impact Assessment in a Transboundary Context 1991 (1991) 1989 unts 309 (Espoo Convention). Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958, 559 unts 285. Convention on the International Maritime Consultative Organization 1948, 289 unts 48 (The 1948 imo Convention). Convention on the International Regulations for Preventing Collisions at Sea, 1972, 1050 unts 16 (colreg Convention). Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircrafts 1972, 932 unts 3 (Oslo Convention). Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, 1046 unts 120 (London Convention). Convention for the Prevention of Marine Pollution from Land-based sources 1974, 1546 unts 103. Convention for the Protection of the Mediterranean Sea against Pollution 1976, 1102 unts 27 (Barcelona Convention). Convention on the Protection of the Marine Environment of the Baltic Sea Area 1992, 1507 unts 167 (Helsinki Convention). Convention for the Protection of the Marine Environment of the North-East Atlantic 1992, 2354 unts 67 (ospar Convention). Convention on the Territorial Sea and the Contiguous Zone 1958, 516 unts 205. Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971, 996 unts 245 (Ramsar Convention). International Convention for the Control and Management of Ships´ Ballast Water and Sediments, 2004, imo Doc. BWM/CONF/36 (Ballast Water Convention).

430

Table of Treaties

International Convention for the Prevention of Pollution of the Sea by Oil, 1954, 327 unts 3 (The 1954 London Convention). International Convention for the Prevention of Pollution from Ships, 1973 and the ­Protocol of 1978 Relating Thereto, 1340 unts 62 (marpol Convention). International Convention for the Regulation of Whaling 1946, 161 unts 72. International Convention for the Safety of Life at Sea 1974, 1184 unts 278 (solas Convention). Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean 1995, 2102 unts 203. Treaty Concerning the Archipelago of Spitsbergen, 1920, 2 lnts 7 (The Svalbard Treaty). United Nations Agreement for the Implementation of the Provisions of the United ­Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995, 2167 unts 88 (Fish Stocks Agreement). United Nations Convention on the Law of the Sea, 1833 unts 3 (los Convention). Vienna Convention on the Law of Treaties 1969, 1155 unts 331 (Vienna Convention).

Index Ad Hoc Open-ended Informal Working Group to study issues issues relating to the conservation and sustainable use of marine biodiversity (Ad Hoc Working Group) 13, 15n79, 49n139 Ad Hoc Technical Group on Marine and Coastal Protected Areas 8 Agenda 21 9n35, 11–15, 66, 66n7, 77, 77n17, 83, 83n13–17, 84, 84n18, 112, 112n1, 131, 131n1, 138, 302, 302n25, 302n29, 303n31, 307, 307n50, 308, 327, 352, 370 Aichi Biodiversity Targets 12 Arctic Biodiversity Assessment 3n1, 3n4, 3n6, 4, 126, 233, 233n1, 233n3, 236 Arctic Biological Diversity 3, 4 Arctic Climate Impact Assessment (acia) 126 Arctic Council Arctic Council’s Conservation of Arctic Flora and Fauna Working Group (caff) 3n1, 3n4, 3n6, 4, 16n76, 126, 127,   127n72, 129n89, 233–235, 233n1–3, 234n8,   234n12, 234n13, 235n15, 423 Protection of the Marine Environment working group (pame) 4n10, 4n11, 12n57,   126–130, 127n73, 128n79, 128n84–86,   130n92, 130n93, 233–236, 235n18, 235n20,   236n24, 236n25, 237n31, 238n38, 241n65,   317, 389, 400–402, 402n162, 423, 424 Arctic Environmental Protection Strategy (aeps) 125, 125n61, 234, 234n5 Arctic Ice High Seas mpa 231 Arctic Marine Shipping Assessment (amsa) 4n11, 26n37, 126, 129, 129n87,   129n89–91, 233, 236, 298, 298n1, 299n11,   310n68, 315, 315n95, 317, 317n109, 318,   341n175, 383, 383n41, 383n45, 385n52,   387n68, 389, 389n76, 392n91, 392n92,   400, 423 Arctic Marine Strategic Plan (amsp) 127, 128, 235 Arctic Ocean 4, 4n10, 10, 16, 126, 129, 233, 242, 242n69, 298, 299, 302, 304, 315n96, 317n111, 318n112, 385, 387, 389, 392, 393, 400–402, 404

Arctic Ocean Review (aor) 4n10, 126, 317, 423 Arctic states 16, 53, 85, 112, 113, 125–127, 129, 130, 158, 233, 235–237, 239–243, 298, 315–317, 386, 401, 404, 405 Area-based management tools 6, 15, 65, 131, 225, 377, 378, 404 Areas beyond national jurisdiction 5n15, 12n59, 13–16, 14n66, 15n75, 19, 51n146, 51n149, 52n153, 53n158, 54, 54n162, 75n7, 77, 96, 129, 141n20, 142–144, 142n22, 143n23, 143n25, 143n27, 143n28, 144n29, 213, 215, 215n12, 222, 227n73, 228–232, 228n78, 229n80, 299n81, 231n90, 247, 248n10, 404 Areas to be avoided (atba) 332, 332n146, 335, 339, 356–359, 361, 362, 375, 399–402 Balancing norms 159–162, 164 Ban on navigation 255, 318, 319, 324–331, 343, 346, 355–357, 381, 385 Barents Sea 35n79, 238, 241, 241n61, 241n62, 301, 342n179, 374, 374n13, 375, 375n16 Bern Convention 11, 11n50, 85 Biological Diversity 3, 22, 66, 84, 85, 131, 135, 136, 145, 154, 172, 213, 233, 47, 298, 374, 404 Bonn Convention 10, 10n41, 85, 85n1 Brundtland Commission 82, 99 cdem standards 33, 46, 61, 255, 309, 310, 314, 318, 319, 321, 342–345, 343n183, 363–364, 369, 380, 384, 394, 396, 397 Circumpolar Protected Areas Network. see cpan Classification of Protected Areas 8–9 Climate Change 3, 5, 15, 231, 236, 239, 303, 376, 383, 394n110, 404 Coastal States 16, 18, 78, 83, 95, 135, 136, 210, 284, 299, 377 colreg Convention 309, 309n61, 312–314

432 Common but differentiated ­responsibility 149, 160 Conflicts clauses 259–278, 264n71, 405 Continental Shelf 36, 37, 41, 47–50, 47n129, 47n131, 148n132, 50n141, 50n143, 60, 61, 95, 229, 254, 289, 289n167, 374 Convention on Biological Diversity (cbd) Application 95–96, 265, 272, 282 Common concern 89–91, 101, 102, 300, 325 Ecosystem approach 107–111, 273, 277, 280 General obligations 97, 103–104, 177 In situ conservation 104–107 Objectives 91–95, 105, 255, 257, 282, 283 Precautionary principle 97–99, 110 Sovereignty principle 100–103 Sustainable development 99–100, 118, 188 The concept of biological diversity 8n31, 67, 86–88, 191 Values 88–89 Convention on Biological Diversity, ­Contracting Parties 18, 53, 85, 187–190,   197, 247, 255–258, 260–264, 325 Convention Concerning the Protection of the World Cultural and Natural Heritage. see World Heritage Convention Convention on the Conservation of European Wildlife and Natural Habitats. see Bern Convention Convention on the Conservation of Migratory Species of Wild Animals. see Bonn Convention Convention on the International Regulations for Preventing Collisions at Sea. see colreg Convention Convention for the Protection of the Marine Environment of the North-East Atlantic. see ospar Convention Convention on the Protection of the Marine Environment of the Baltic Sea Area. see Helsinki Convention Convention on Wetlands of International Importance especially a Waterfowl Habitat. see Ramsar Convention Circumpolar Protected Areas Network (CPAN) 127, 127n72, 234, 234n8, 234n12, 234n13, 423 Criteria for Ecologically or Biologically Significant Areas (ebsa) 202, 238

Index Cross-sectoral or integrated mpas 5, 104, 138, 167, 179, 369, 374 Customary international law 34n71, 48, 68, 69, 77, 349n203 Damage 16, 20, 22, 27, 28, 30, 31, 42, 49, 60, 61, 68–73, 75–77, 81, 96–98, 100, 114, 118, 139–141, 168, 177, 185–187, 191, 193–196, 206–211, 226, 247, 249, 256, 260, 262–264, 264n72, 265, 267–271, 273, 274, 278, 298, 300, 322, 325–327, 330, 331, 334, 335, 338, 339, 342, 345, 347, 355–361, 365–370, 375, 378, 381, 388, 393, 397, 405 Design, construction, manning and equipment standards. see cdem standards Discharge Standards 309, 313, 314, 319, 320, 341–343, 351, 358, 362–363, 380, 386, 388, 402 Due diligence 72, 73, 117, 159, 160 Ecosystem Approach 12, 66, 67, 107–111, 108n89, 109n96, 110n98, 111n106, 111n107, 114, 115, 121–124, 122n40, 123n43, 124n46, 125, 127, 128, 131, 137, 174, 178, 181, 185, 199, 210, 210n138, 217, 222, 227, 229, 235, 273, 277, 280, 283, 283n134, 303, 309, 324, 327, 374 Ecosystem-based management 11, 128, 128n83, 130, 130n98, 182, 236, 239, 241, 376 Enforcement jurisdiction 18, 19, 21, 22, 36, 58–62, 230, 322, 375, 384, 402 Environmental impact assessment (eia)  96, 96n49, 98, 173, 177, 185–196, 185n45, 186n47, 195n80, 199, 212 Erga Omnes 89, 89n20, 90 Evolutionary interpretation 138n10, 287–290, 292, 296 Exclusive Economic Zone (eez) 20, 34–47, 38n92, 39n93, 39n96, 39n97, 40–43, 40n104, 44n119, 44n124, 45, 46, 48, 59–61, 59n193, 79, 80, 95, 135, 136, 202n112, 216, 228, 236, 239, 249, 254–257, 259, 269, 273, 283, 296, 299, 302, 310, 318, 342, 344, 347–349, 351, 353, 355–364, 356n226, 357n233, 374, 378, 381–384, 396, 405 Legal status 35–38

433

Index Flag States 18n2, 60, 61, 270, 300, 305, 311, 347, 353, 354, 357, 365, 369, 370 Freedom of navigation 17, 18, 37, 38, 40, 42, 51, 54, 58, 60, 249, 254, 255, 257, 277, 278, 284, 299, 300, 319, 347, 348, 353, 355, 357, 360–362, 370, 380, 384, 397, 400 Freedom of the sea 17, 20, 38n92, 51, 52, 74, 247 gairs 33, 33n68, 44, 46, 57, 60, 255, 284, 284n136, 294, 296, 305, 309, 309n59, 313n87, 318, 321, 342–345, 348–350, 350n210, 351–358, 351n212, 360, 362–366, 363n252, 369, 370, 378–380, 384, 388, 396, 397 General Provisions on Ships’ Routeing (gpsr) 311, 311n72, 312, 312n79, 331,   331n144, 332, 334, 334n157, 337–340,   339n166, 340n169, 341n172, 355, 356,   356n228, 357n231, 358–362, 358n273,   359n239, 360n248, 365, 365n262, 399,   399n145 Generally accepted international rules and standards. see gairs Goal-oriented norms 107n82, 160n18 Hazardous cargo 27, 29, 346 Helsinki Convention 10, 10n45, 66, 123 High seas 4, 5n13, 16–62, 48n135, 49n138, 50n140, 51n146, 52n151, 52n155, 53n156, 53n157, 54n163, 55n167, 55n168, 56n171, 56n173–175, 57n176, 58n186, 65, 65n3, 70, 78n19, 78n21, 83n16, 96, 129, 129n91, 135, 136, 142, 142n21, 143, 202n112, 228–233, 237, 239, 247, 247n2, 248, 248n6, 299, 299n10, 299n12, 302, 304, 312, 314n89, 347, 377n23, 383n42, 387–389, 387n67, 387n68, 388n71, 388n74, 389n77, 391n87, 392, 392n91, 392n94, 393n99, 397n125, 397n128, 398n135, 399n144, 400–402, 400n154, 401n160 Ice Covered Areas 6, 47, 304n37, 309n62, 377, 378, 382–385, 382n35, 382n36, 383n38, 383n43, 388n69, 392n95, 402 Innocent passage Hamper or impairing innocent ­passage  33, 33n64, 59, 255, 318, 321–325, 336–338, 342, 347, 396

When is the passage innocent 22–32 In situ Conservation 92, 93, 100, 104–107, 107n83, 109, 145, 147, 148, 162, 164–167, 169, 172, 175–176, 198, 203–205, 208, 211, 212, 224, 256, 257, 282, 297, 357, 369 Integrated Marine and Coastal Management (imcam) 178, 181, 182, 182n40 Integrated ocean management 66, 178, 375, 377n22 Integrated management plan for the Barents Sea 375 International Convention for the ­Prevention of Pollution from Ships. see marpol Convention International Convention for the Safety of Life at Sea. see solas Convention International Maritime Organization (imo) Purpose of imo 305 Relationship between imo and the los Convention 305–309 International Seabed Authority 19 International Union for the Conservation of Nature (iucn) 6–9, 7n24, 86n3, 173, 173n6, 174, 178, 184n44, 194, 196n85, 197, 203, 204, 211, 237, 238 Jakarta Mandate 174, 181 Kiruna Declaration 130n98, 235, 235n23 Legal conflict 17, 249–258, 252n25, 259, 263, 281, 319 Leper ships 29n51, 30, 30n55 los Convention Article 211 (6) 6, 46, 302, 357, 363–364, 377, 378–381, 381n32, 390, 394–396 Marine Arctic (def.) 4 Marine environment 74–80, 137–144, 318–319, 373–403 Obligation on global and regional cooperation 52–53, 76, 112, 143–144 Obligations to protect and preserve the marine environment 39, 40, 40n102, 44, 52, 74–78, 137–144, 220, 242n68 Marine living resources 65, 74, 79–81, 83, 83n16, 87, 131n3, 136, 136n2, 181, 200, 255, 270, 274, 280, 302, 326

434 Marine Protected Areas (mpas) Definitions 6–8, 155n1, 237n30 Environmental Impact Assessment  185–196, 185n45 Objective of Conservation 196, 197, 203–205, 207, 208, 211, 212, 369 Procedural requirements to the ­establishment of mpas 176–196 Protective measures 176, 184, 185, 206–212, 229 Selection of sites 173, 196–204 Substantive Requirements to mpas  173, 196–212, 247 System or network of mpas 155–158 Marine scientific research 36, 44, 45 Maritime safety 18n3, 21n17, 27n39, 37n88, 39n97, 46n127, 55, 59n189, 149n16, 300n16, 305, 309, 310n67, 311–314, 315n96, 316, 317, 321n120, 330, 332n146, 340n168, 341n170, 346, 349n200, 349n201, 349n203, 349n205, 350n209, 351n214, 352n218, 254n221, 356n230, 358, 360n247, 401 marpol Convention 6, 6n20, 56, 57, 248, 307, 307n48, 309, 313–316, 343n182, 362, 363, 385, 386, 388, 392n95, 393, 394 Special Areas 129, 302, 314, 377, 378, 380, 385–390 Maximum sustainable yield 79, 79n28, 80, 280 Nature Diversity Act 147, 374, 374n7, 374n11 Natural resources 18, 36, 41, 42, 45, 47–49, 61, 68, 68n3, 75, 76, 89, 96, 97, 100–103, 139, 223, 289, 298, 299, 348, 366, 367 neafc (North-East Atlantic Fisheries ­Commission) 53, 114, 114n12, 115, 115n13 No-harm principle (the duty not to cause transboundary environmental damage) 68 Northern Sea Route 299, 299n13 Northwest Passage 299, 382n33, 382n34 ospar Commission 8n30, 12, 50n145, 54, 114–117, 114n12, 115n15, 117n23, 119, 119n25–28, 121–125, 121n31, 121n33, 122n34–39, 124n46, 124n49, 124n51, 124n53, 213n3, 214–232, 214n4–11, 215,

Index 215n12–14, 215n18, 242n70, 302n24, 303n33, 373n2, 391n85 ospar Convention Annex v 119–122, 219–225 Ecosystem approach 114, 115, 122–125, 122n40, 123n43, 124n46, 127, 128 General obligation 115–122 Goals 115–116, 124 mpas in areas beyond national jurisdiction 54, 143, 143n28, 213, 215, 228–232 Precautionary principle 118–119, 122 Selection and management of mpas  225–228 ospar Recommendation on a Network of mpas 8n30, 122n36, 214n6, 214n11, 215n13,   217n29, 218n33, 219, 220n40, 221n43 Legal status and significance of the Recommendation 216–219 Ottawa Declaration 125, 125n60, 125n61 Pan-Arctic network of mpas Definitions 237–238 Principles, goals and objectives 238–240 Vision 235, 236, 239, 240, 243 Particularly Sensitive Sea Area (pssa) Application at the high seas 397n125, 397n128, 398n35, 399n144, 400–402 Associated Protective Measures 389, 393–400, 397n126 Concept 130n92, 302, 308, 308n52, 353, 377, 389–391, 390n82, 400 pssa Criteria 390–393, 395 Polar Code 17, 17n77, 309, 314–317, 315n93, 315n96–98, 316n100–102, 317n104, 344, 363, 384, 385, 385n48, 389 Precautionary Principle 24n27, 26, 26n38, 27n41, 31, 46, 66, 66n9, 67, 69n10, 70n18, 70n19, 71n23, 71n25, 71n29, 72n30, 82, 83, 97–99, 108n89, 110, 111, 111n106, 117n24, 118–119, 122, 122n40, 165, 166, 185, 188, 193, 194, 199, 199n97, 200, 210, 226, 227, 232, 264, 264n72, 295, 300, 303, 309, 324, 325, 346, 374 Preventive principle 69n10, 70n18, 70n19, 71, 71n22, 71n23, 71n25, 71n29, 72, 72n30, 77 Prior authorization 345, 345n191 Prior notification 29, 256, 318, 319, 345–347, 346n194, 364

Index Programme of work on marine and coastal biological diversity 99n61 Protected area 4, 19, 66, 78n19, 83, 94, 122,   135, 137n5, 145, 154, 172, 213, 233, 247n2,   299n10, 373 Qualifiers 17, 145–150, 150n21, 151–153, 161, 188, 206, 211, 267, 282 Ramsar Convention 10, 10n39, 85, 85n1, 86, 149 Regional cooperation 61, 112, 143, 230n88–90, 295, 317 Rio +20 Conference 15 Rio Declaration on Environment and ­Development (the Rio ­Declaration)    69, 69n9, 77, 82, 82n7, 96, 98–100, 118,   192n67, 223 Routeing measures 248, 307–312, 310n69, 311n72, 312n81, 318–320, 330–341, 334n153, 340n169, 341n170, 340n172, 351, 356–362, 365, 368, 368n274, 369, 375 Sea lanes 28, 34, 320, 321, 332–339, 341, 346, 351, 358, 359, 362 Seabed Disputes Chamber 72, 72n34 Sedentary species 48–50, 61 Soft law 9, 84, 131, 286, 291, 305, 305n42, 306n44, 307n47, 308n55, 310, 311n73, 352, 352n216, 354, 355 solas Convention 56, 56n171, 56n172, 57, 309, 311–312, 311n75, 315, 331, 331n143, 332, 334n157, 340, 356n228, 359n229, 357–359, 363, 393, 394, 399 Sovereign rights 18, 19, 36, 37, 39–44, 44n119, 45–48, 52, 59, 62, 69, 75–77, 79, 89, 97, 100–103, 273, 296, 304, 318, 348, 359, 364–368, 370 Sovereignty 18, 19, 21, 22, 29, 32, 38, 41, 52, 53, 68, 68n3, 71, 74, 79, 89n18, 100–103, 100n65, 136, 254, 301, 304, 323, 335, 339, 341, 343n183 Sovereignty over natural resources 68, 68n3 Stockholm Declaration on the ­Human Environment (the Stockholm ­Declaration) 68, 68n6

435 Submarine cables and pipelines 18, 37, 254 Sustainable development 9, 9n35, 9n36, 11, 66, 66n10, 77, 82, 83, 88n11, 92n31, 94n40, 97, 99, 99n64, 100, 101, 107n80, 116, 125, 128, 131, 172, 252n25, 281n124, 289n171, 290n173, 293n191, 303 Sustainable use 3n4, 3n5, 10, 13–16, 49n139, 83, 83n16, 85, 86, 88, 90–96, 96n46, 96n51, 97, 99–105, 107, 107n84, 108, 108n88, 110, 112, 120, 122, 123, 127n70, 135, 137n6, 146, 157, 163, 167, 169, 172, 174–191, 196, 198, 199, 201, 204, 211, 212, 214, 220, 224, 234, 262, 269, 273, 280, 295, 404 Svalbard 216, 241, 301, 301n18, 301n19, 383 Territorial Sea 17, 18, 21–34, 21n13, 21n14, 21n17, 23n23, 23n25, 30n55, 36, 39n99, 41, 46, 47, 58–61, 79, 95, 135, 141n19, 254, 256, 257, 259, 299–301, 312, 312n81, 318–326, 328, 329, 329n139, 332, 333, 336, 336n159, 337, 339, 340, 340n169, 341n172, 342–346, 343n183, 348, 351, 356, 357, 363, 367, 369, 378, 381, 382, 394–396, 401 Total allowable catch 79 Traffic Separation Schemes (tss) 34, 310, 312, 320, 332, 333, 335–339, 341, 351, 360 United Nations Conference on Environment and Development 82–84 United Nations General Assembly (unga) 13–15, 13n60, 13n62, 13n64, 13n65,   14n67, 14n70, 15n72–74, 49n139, 82n6,   250n13, 404 World Heritage Convention 10, 10n40, 85, 85n1, 86, 150, 151, 171n48 World Summit in Sustainable Development’s Plan of Implementation (wssd Plan of Implementation) 9, 9n36, 11–12, 11n53,   112, 112n1