Research Handbook on International Marine Environmental Law 1789909074, 9781789909074

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RESEARCH HANDBOOK ON INTERNATIONAL MARINE ENVIRONMENTAL LAW

RESEARCH HANDBOOKS IN ENVIRONMENTAL LAW This highly topical series addresses some of the most important questions and areas of research in Environmental Law. Each volume is designed by a leading expert to appraise the current state of thinking and probe the key questions for future research on a particular topic. The series encompasses some of the most pressing issues in the field, ranging from climate change, biodiversity and the marine environment through to the impacts of trade, regulation, and sustainable development. Each Research Handbook comprises specially-commissioned chapters from leading academics, and sometimes practitioners, as well as those with an emerging reputation and is written with a global readership in mind. Equally useful as reference tools or high-level introductions to specific topics, issues and debates, these Research Handbooks will be used by academic researchers, post-graduate students, practising lawyers and lawyers in policy circles. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com.

Research Handbook on International Marine Environmental Law SECOND EDITION

Edited by

Rosemary Rayfuse Emerita Scientia Professor, Faculty of Law and Justice, UNSW Sydney, Australia

Aline Jaeckel Associate Professor, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia and Research Associate, Institute for Advanced Sustainability Studies (IASS), Potsdam, Germany

Natalie Klein Professor, Faculty of Law and Justice, UNSW Sydney, Australia

RESEARCH HANDBOOKS IN ENVIRONMENTAL LAW

Cheltenham, UK • Northampton, MA, USA

© The Editors and Contributors Severally 2023 Cover image: NOAA Ocean Exploration, Hydrothermal Vent Chimeny. www.flickr.com/ photos/oceanexplorergov/27485515902 With the exception of any material published open access under a Creative Commons licence (see www.elgaronline.com), all rights are reserved and no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher.

Chapter 16 is available for free as Open Access from the individual product page at www. elgaronline.com under a Creative Commons Attribution NonCommercial-NoDerivatives 4.0 Unported (https://creativecommons.org/licenses/by-nc-nd/4.0/) license. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023931652 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781789909081

ISBN 978 1 78990 907 4 (cased) ISBN 978 1 78990 908 1 (eBook)

EEP BoX

Contents

List of contributorsvii Prefacexi PART I

MARINE ENVIRONMENTAL LAW IN THE 21ST CENTURY

1

International marine environmental law in the 21st century Rosemary Rayfuse, Aline Jaeckel and Natalie Klein

2

The UN Convention on the Law of the Sea – still relevant to protection of the marine environment? Robin Churchill

33

3

Fragmentation and coherence in the legal framework for the protection of the marine environment Alexander Proelss

57

PART II

2

LEGAL FRAMEWORKS FOR THE PROTECTION OF THE MARINE ENVIRONMENT

4

Basic principles of international marine environmental law Yoshifumi Tanaka

5

Compliance mechanisms under treaties relating to protection of the marine environment James Harrison

6

Resolving international disputes concerning the marine environment Natalie Klein and Millicent McCreath

7

Mapping progress and challenges for the UNEP Regional Sea Programme for the Mediterranean Nilufer Oral

8

The Indian Ocean region and marine environmental law Erika Techera

81

104 124

150 172

PART III POLLUTION AND THE MARINE ENVIRONMENT 9

Vessel-source pollution – some key developments Henrik Ringbom

v

196

vi  Research handbook on international marine environmental law 10

Regulating shipping under conditions of uncertainty: The Arctic Ocean and knowledge-based decision-making Tore Henriksen

218

11

From ocean dumping to marine geoengineering: The evolution of the London Regime Karen N Scott

240

12

Ocean acidification Ellycia Harrould-Kolieb and Tim Stephens

264

PART IV PROTECTING MARINE BIODIVERSITY 13

Protecting the marine environment of the deep seabed Michael Lodge

289

14

Protecting marine biodiversity and vulnerable marine ecosystems Rosemary Rayfuse

311

15

Marine mammals and migratory species Richard Caddell

333

PART V

MECHANISMS AND TOOLS FOR PROTECTING THE MARINE ENVIRONMENT

16

Public participation in the governance of deep-seabed mining in the Area Jeff Ardron, Hannah Lily and Aline Jaeckel

361

17

Marine scientific research and the protection of the seas and oceans Anna-Maria Hubert

385

18

New technology and the protection of the marine environment Hilde J Woker, Rozemarijn J Roland Holst and Harriet Harden-Davies

409

19

Implementing environmental impact assessment in areas beyond national jurisdiction: Epistemic, institutional and normative challenges Neil Craik and Kristine Gu

428

20

Enhancing marine protected areas and marine spatial planning through an ecosystem approach Vasco Becker-Weinberg

451

Index467

Contributors

Jeff Ardron has for more than 30 years worked in environmental governance, marine science, planning, and conservation, in a wide range of sectors – governmental, inter-governmental and non-governmental, private, research and academia. He has co-founded two non-governmental organisations, three international initiatives and served on boards for several others. He has more than 60 papers in the peer-reviewed literature, as well as co-authoring a textbook on marine policy. He conceived and currently leads the Commonwealth Blue Charter programme for the Commonwealth Secretariat, London. Vasco Becker-Weinberg is a professor and coordinator of the Masters of Law and Economics of the Sea at NOVA School of Law and a professor at the Faculty of Law of the Universidade Lusófona. He is a Judicial Clerk at the Portuguese Constitutional Court and was Legal Advisor to the Portuguese Government and a full-time scholar at the International Max Planck Research School for Maritime Affairs. He is also the founder and president of IPDM–Instituto Português de Direito do Mar (the Portuguese Institute of the Law of the Sea). Richard Caddell is a Reader in Law at Cardiff University and a member of the Wales Governance Centre at Cardiff University. He was previously a Senior Research Associate and Nippon Foundation Senior Nereus Fellow at the Netherlands Institute for the Law of the Sea, Utrecht University and has also held academic positions at the Universities of Swansea and Bangor. His primary research interests lie in the law of the sea and international environmental law, with a particular emphasis on wildlife conservation law, fisheries management, marine mammals, Polar law and marine environmental law at the international, EU, UK and devolved levels. Robin Churchill has been Emeritus Professor of International Law at the University of Dundee, UK since his retirement in 2016. Prior to his move to Dundee in 2006, he worked at the Universities of Cardiff (UK) and Tromsø (Norway). He has published widely in the law of the sea, including The Law of the Sea (with Vaughan Lowe and Amy Sander, 4th ed, Manchester University Press 2022) and many articles and book chapters on marine environmental law. Neil Craik is a Professor at the University of Waterloo with appointments to the Balsillie School of International Affairs and the School of Environment, Enterprise and Development, where he teaches and researches in the fields of international and Canadian environmental law. His current research examines the legal structure of global commons regimes. Professor Craik has particular interests in climate and geoengineering law and governance, deep seabed mining regulation and environmental impact assessment. Kristine Gu is a Master of Laws student at the University of Calgary and member of the Ontario Bar Association. Her current research focuses on the law of the sea and international environmental law, with a particular interest in the uses of strategic environmental assessments for marine areas beyond national jurisdiction. She was previously a Graduate Research Associate at the Balsillie School of International Affairs at the University of Waterloo. vii

viii  Research handbook on international marine environmental law Harriet Harden-Davies is a Research Fellow at the Australian National Centre for Ocean Resources and Security, University of Wollongong, and Deputy Director of the Nippon Foundation Ocean Nexus Centre. Harriet’s research interests span ocean science, stewardship and sustainability – the development of a new United Nations treaty for marine biodiversity beyond national jurisdiction is a key focus of her work. James Harrison is Professor of Environmental Law at the University of Edinburgh School of Law. His research interests include international environmental law and the international law of the sea, as well as how these international rules influence the evolution of national and sub-national environmental law. He has published widely on these topics and he regularly provides advice and consultancy to governments and non-governmental organisations on related issues. Ellycia Harrould-Kolieb is a Postdoctoral Researcher in Climate Law and Policy at the University of Eastern Finland Law School and a Visiting Academic at the School of Geography, Earth and Atmospheric Sciences at the University of Melbourne. Her teaching and research are focused on the international governance of the ocean and climate change and the interactions between them. Ellycia has published extensively on the topic of ocean acidification and its relationship with existing legal regimes. Tore Henriksen is Professor of Law at UiT the Arctic University of Norway. His research is within law of the sea, and particularly international fisheries law and international marine environmental law. Professor Henriksen was director of the KG Jebsen Centre for the Law of the Sea (2013–2019) and of the Norwegian Centre for the Law of the Sea – NCLOS (2019–21). He is now the Dean of the Faculty of Law, UiT the Arctic University of Norway. Anna-Maria Hubert is an Assistant Professor in the Faculty of Law at the University of Calgary and an Associate Fellow at the Institute for Science, Innovation, and Society at the University of Oxford. From 2013 to 2015, she was a researcher at the Institute for Advanced Sustainability Studies (IASS) in Potsdam, Germany. Her research interests lie generally in the law of the sea, international environmental law, international human rights law and international law and policy relating to science and emerging technologies. Aline Jaeckel is Associate Professor at the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong as well as a Research Associate at the Institute for Advanced Sustainability Studies (IASS) in Potsdam, Germany. Her research covers ocean governance and international law with a particular focus on deep seabed mineral mining. She is the author of The International Seabed Authority and the Precautionary Principle (Brill 2017) and the recipient of an Australian Research Council DECRA Fellowship. Natalie Klein is a Professor at UNSW Sydney’s Faculty of Law & Justice, Australia and an Australian Research Council Future Fellow. She previously served as Dean of Macquarie Law School and Acting Head of the Department for Policing, Intelligence and Counter-Terrorism at Macquarie University. Professor Klein’s research focuses on law of the sea and international dispute settlement. Hannah Lily is a British regulatory lawyer of over 20 years’ professional experience. Hannah has worked with countries in Africa, the Caribbean and the Pacific Islands region on legislative reform relating to extractive industries and ocean governance, including projects with the

Contributors  ix Commonwealth Secretariat, Pacific Community, and UNEP. She holds particular expertise in relation to seabed mining, has published two model laws in this area, and has advised more than 50 government delegations during international negotiations on seabed mining. Michael Lodge has been the Secretary-General of the International Seabed Authority since 2017. He received his law degree from the University of East Anglia, UK, and has an MSc in marine policy from the London School of Economics and Political Science. He is a barrister of Gray’s Inn. Mr Lodge has published and lectured extensively on the international law of the sea, with over 35 published books and articles on law of the sea, oceans policy and related issues. Millicent McCreath is a PhD candidate and Teaching Fellow at the UNSW Sydney Faculty of Law & Justice. She was previously a Research Associate with the Oceans Law and Policy programme at the National University of Singapore Centre for International Law. In 2016 Millicent was Tipstaff (judicial clerk) at the Land and Environment Court of New South Wales. Millicent has a BA (Environmental Studies)/LLB (Hons) from UNSW Sydney and LLM (Law of the Sea) from UiT the Arctic University of Norway. Nilufer Oral is Director of the Centre of International Law at the National University of Singapore, member of the UN International Law Commission and Co-Chair of the Study Group on Sea-level rise in relation to international law. Distinguished Fellow of the Law of the Sea Institute at Berkeley; member of the Committee of Legal Experts of the Commission of Small Island States on Climate Change and International Law; and member of the Steering Committee of the IUCN World Commission on Environmental Law. Alexander Proelss holds the Chair in the International Law of the Sea and International Environmental Law, Public International Law and Public Law at the Faculty of Law of the University of Hamburg. He is also the Co-Director of the Institute for Maritime Law and the Law of the Sea of that University. Rosemary Rayfuse has been Emerita Scientia Professor in International Law in the Faculty of Law and Justice at UNSW Sydney since her retirement in 2020. Prior to joining UNSW in 1994 she worked at the Lauterpacht Research Centre for International Law at Cambridge University and practised law in Vancouver, Canada. She has published widely in the law of the sea and other areas of public international law and was the editor of the first edition of the Research Handbook on International Marine Environmental Law (Edward Elgar 2015). She is a Fellow of the Academy of Social Sciences in Australia and a member of the UN’s Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP). Henrik Ringbom is Professor of Marine Law at Åbo Akademi University in Turku, Finland, and holds a part-time professorship at the Scandinavian Institute of Maritime Law (University of Oslo). His previous work experience includes being Head of Unit for Marine Environment, Training and Statistics at the European Maritime Safety Agency (EMSA) in Lisbon (2007–2012) and Administrator at the Maritime Safety Unit of the European Commission in Brussels (1997–2003). He has published widely in the field of European and international shipping law as well as environmental law and governance.

x  Research handbook on international marine environmental law Rozemarijn J Roland Holst is Assistant Professor in International Environmental Law at Durham Law School. Her research focuses on current challenges at the intersection of international environmental law, law of the sea and climate change law. Previously, Rozemarijn was Assistant Professor in Public International Law at Utrecht University and a senior research associate of the Netherlands Institute for the Law of the Sea. Karen N Scott is a Professor of Law at the University of Canterbury, New Zealand, President of the Australian and New Zealand Society of International Law (ANZSIL) and Editor-in-Chief of Ocean Development and International Law (ODIL). Karen is on the board of seven journals including Brill Research Perspectives on the Law of the Sea and the Australian Yearbook of International Law. She researches and teaches in the areas of public international law, law of the sea and international environmental law. Tim Stephens is Professor of International Law at the University of Sydney Law School and Fellow of the Australian Academy of Law. He teaches and researches in public international law, with his published work focussing on the international law of the sea, international environmental law and international dispute settlement. Yoshifumi Tanaka is Professor of International Law with a specific focus on the law of the sea, at the Faculty of Law, University of Copenhagen, Denmark. He holds a DES and a PhD from the Graduate Institute of International Studies, Geneva and a LLM from Hitotsubashi University, Tokyo. He has published widely in the fields of the law of the sea, international environmental law and peaceful settlement of international disputes. Erika Techera is a Professor of Law at The University of Western Australia. She is an international and comparative environmental lawyer with particular expertise in oceans governance issues across the Indo-Pacific. Her research interests include marine environmental and natural resources law in small island developing states, maritime heritage and history, and issues at the interface of science, technology and law. Her current projects focus on strengthening marine environmental law in the Indian Ocean to support the blue economy, shark conservation law and policy, and the legal protection of kelp and mangrove ecosystems. Hilde J Woker is Assistant Professor of Public International Law at Leiden University. Her research concerns the law of the sea, focusing on the relationship between law, science and technology and on the legal regime for the continental shelf. Hilde previously worked at the Norwegian Centre for the Law of the Sea (NCLOS) in Tromsø, Norway. She obtained her PhD degree from UiT The Arctic University of Norway.

Preface

While the jury may still be out as to whether life on earth emerged from the ocean or began on land,1 there is no doubt, whatsoever, that life on earth, in particular human life and well-being, is intrinsically linked to the health of the ocean. Clearly, it behooves us to look after it. Yet report after report details a depressing litany of continuing, newly emerging and ever-increasing threats to the marine environment, all of which are caused by humans and their activities in, on, under, over and around the ocean. When the first edition of this Research Handbook was published in 2015, the picture painted of the state of the marine environment was a bleak one. In the intervening years, the state of the global ocean has not improved. To make matters worse, the hiatus in international meetings caused by the global COVID-19 pandemic has seen much of international oceans management stagnate. Indeed, the mandate of the intergovernmental conference charged with negotiating a new international legally binding agreement on the protection of marine biodiversity in areas beyond national jurisdiction lapsed in March 2022 with no agreement having been reached. That mandate was renewed by the UN General Assembly in May 2022 and it remains to be seen whether any agreement will finally be reached. Looking on the bright side, however, the COVID-19 pandemic and the attendant reduction in human activity has given the ocean a bit of breathing space. Increased activity by marine life such as turtles was reported across the board when tourists stayed away from beaches. A reduction in land-based pollution followed the slow-down in industrial activity and some fish stocks were given a valuable break when fishing vessels remained docked in port. The quiet(er) time the oceans have experienced during the pandemic has shown us what it takes to help marine environments recover: do less. Humans, however, are not prone to doing less. Indeed, the whole concept of the Blue Economy, now being promoted at the international level, is premised on us doing more with the ocean and its resources to improve economic growth, livelihoods and jobs. The danger here is that we might not know what we’ve got until it's gone. If we are not willing to ‘do less’, we are going to have to ‘do smarter’ if we are to simultaneously ensure the sustainability of ocean resources and preserve the health of the ocean ecosystem. The chapters in this second edition of the Research Handbook explore some of the critical issues in international marine environmental law today and examine the emerging methods and means being developed to assist us to ‘do smarter’. The chapters build on but go beyond those in the first edition to provide new analysis and address new and emerging issues of current concern. In particular, the chapters in this second edition take a less siloed and more integrative approach to their topics, considering the impacts of cross-cutting issues such as legal fragmentation, public participation, the impacts of new technology, and the impacts of or developing responses to climate change on the particular areas of study. Rather than mere

See Rachel Brazil, ‘Debate rages between biologists and chemists over whether life began on land or under the sea’ 15 May 2017. 1

xi

xii  Research handbook on international marine environmental law updates of previous chapters in the book, each chapter presents a wholly new and original discussion of the chosen topic, many of which do not appear in the first edition. In effect, this book is less a second edition than a stand-alone research handbook in its own right. Unfortunately, even having deliberately delayed completion of the book, the one development we have not been able to cover is the adoption of a new agreement on biodiversity beyond national jurisdiction. Chapters were completed and all website access dates were current as of March 2022. Developments in other areas since that date are thus also not covered. Nevertheless, as with the first edition of this Research Handbook, it is hoped that the chapters presented here provide both a representative and extremely thorough, if not entirely comprehensive, analysis of the current and emerging issues of concern in the design and implementation of effective regulation of human activities that perturb the marine environment. As with any edited volume, this Research Handbook would not have been possible without the generosity, patience, understanding and hard work of the authors who have persevered with the project even in the face of innumerable delays. Given the effluxion of time some contributors to the first edition were unable to reprise their role. The astute reader will thus notice a number of new contributors to this volume. The editors are deeply indebted to all the contributors who expended considerable time and effort in producing excellent chapters, especially over the last two years when the global COVID-19 pandemic caused so many difficulties for so many. We greatly appreciate their willingness to engage with our suggestions and to share their extraordinary expertise in international marine environmental law. We are also grateful to Laura Mann at Edward Elgar for proposing the publication of this second edition of the Research Handbook and for her unwavering support and patience while we worked towards its completion. We also acknowledge the exceptional work of four higher degree research candidates in the Faculty of Law and Justice at UNSW Sydney who provided critical editorial assistance in completing this work. We thank Alice Bleby, Ayla Do Vale Alves, Millicent McCreath and Bruno Pegorari for all their hard work in this regard. Aline gratefully acknowledges funding from the Australian Research Council’s DECRA scheme (grant number: DE190101081). Natalie gratefully acknowledges funding from the Faculty of Law and Justice at UNSW Sydney and from UNSW SHARP funding for this collaborative endeavour. Finally, Aline and Natalie thank Rosemary for the opportunity to work with her on the second edition of her original Research Handbook. We have benefited enormously from her leadership, wisdom, high standards and tireless efforts in bringing this new edition to fruition. Rosemary Rayfuse Aline Jaeckel Natalie Klein Hobart, Wollongong and Sydney, June 2022

PART I MARINE ENVIRONMENTAL LAW IN THE 21ST CENTURY

1. International marine environmental law in the 21st century Rosemary Rayfuse, Aline Jaeckel and Natalie Klein

1. INTRODUCTION The marine environment covers more than 70 percent of the Earth and constitutes 95 percent of the biosphere.1 Known as the ‘planet’s life support system’,2 the ocean and its ecosystems provide significant benefits to humans including climate regulation, oxygen, food, coastal protection, employment, recreation and cultural well-being.3 These benefits, however, depend on the maintenance of ocean processes, marine biological diversity and related ecosystem services.4 In other words, they depend on a healthy marine environment. Unfortunately, it is now well established that the marine environment is under increasing threat from the cumulative effects of human activities. The first World Ocean Assessment, completed in 2015, concluded that many parts of the ocean were severely degraded, and that immediate remedial action was needed to avoid a destructive cycle of degradation in which the ocean could no longer provide many of the benefits on which humans rely.5 According to the second World Ocean Assessment (WOA II),6 completed in 2020, the situation has not improved. Despite some improvements in responses for mitigating or reducing pressures and their associated impacts on the ocean, human activities continue to degrade the ocean, including important marine and coastal habitats. The causes of this degradation are well known. They include climate change, unsustainable fishing, the introduction of invasive species, atmospheric pollution causing acidification and eutrophication, excessive inputs of nutrients and hazardous substances, including plastics, microplastics and nanoplastics, increasing amounts of anthropogenic light and noise, ill-managed coastal development, and the extraction of natural resources. Possible solutions are equally well known, all of which boil down to controlling, reducing and preventing marine pollution and habitat destruction and improving the management of human uses of the ocean through the adoption and implementation of appropriate management frameworks for conserving the marine environment and its resources, both living and non-living.

1 IPCC, ‘Summary for Policymakers’ in H-O Pörtner and others (eds), IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (CUP 2019) (SROCC) 3-35, 5 . 2 UN, ‘Foreword by UN Secretary General Antonio Guterres’ to The Second World Ocean Assessment (WOA II) (UN 2021) (WOA II). 3 SROCC (n 1) 5. 4 WOA II (n 2) 5. 5 UN, The First Global Integrated Marine Assessment: World Ocean Assessment I (UN 2015) (WOA I). 6 WOA II (n 2).

2

International marine environmental law in the 21st century  3 Improving management of human uses of the ocean is not, however, a simple matter. The ocean is a diverse, complex and continuous environment in which the adverse effects of an activity cannot easily be contained. As a legal matter, the allocation of rights and responsibilities with respect to the marine environment is complicated by the jurisdictional provisions of the UN Convention on the Law of the Sea (LOSC),7 which divide the marine environment into areas under national jurisdiction and areas beyond national jurisdiction. Even more challenging, the vast majority of marine pollution emanates from land-based sources, while coastal development contributes to massive habitat destruction and deterioration of the marine environment.8 While our understanding of the ocean continues to improve, our scientific knowledge of the marine environment is still limited. The United Nations Decade for Ocean Science for Sustainable Development, which runs from 2021 to 2030, hopes to fill many of the existing knowledge gaps and ‘to support efforts to reverse the cycle of decline in ocean health’.9 However, the focus of the Decade for Ocean Science is not on the protection of the marine environment but rather on providing ‘solution-oriented research needed for a well-functioning ocean in support of the 2030 [UN Development] Agenda’.10 In other words, the focus of the Decade is on science for sustainable development and promotion of the ‘Blue Economy’, rather than on science for the protection of the marine environment per se. It remains as true today as it was in 1970 that ‘the notion that the oceans are a vast cornucopia which will supply our future food and mineral needs and absorb our wastes is widespread but almost certainly wrong’.11 While States look to the ocean to expand their economies, the risk exists that this ‘blue acceleration’12 fuelled by ever more ocean-based activity will simply place further pressures on an already overtaxed marine environment. The challenge for international marine environmental law in the 21st century is thus to moderate between the development and environment agendas and to promote and develop integrated cross-sectoral cooperation, collaboration and coordinated approaches that balance our use of the oceans with their protection and conservation for current and future generations. This book is about the way in which international marine environmental law and governance is currently responding to these challenges. While the chapters present critical appraisals of the status quo, they also go beyond to suggest solutions for addressing these challenges.

United Nations Convention on the Law of the Sea (adopted and opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 8 WOA II (n 2). See also UN Environment, Global Environment Outlook – GEO-6: Healthy Planet, Healthy People (UNEP 2019) . 9 UNESCO Intergovernmental Oceanographic Commission, ‘United Nations Decade of Ocean Science for Sustainable Development (2021-2030)’ . 10 Ibid. 11 William W Murdoch, ‘The Ocean Harvest and Interference from the Land’ in Elisabeth Mann Borgese (ed) Pacem in Maribus Vol V: The Ocean Environment (Royal University of Malta Press 1971) 38. 12 ‘This year, we need to start taking our impact on the oceans seriously’, New Scientist, 20 April 2022 ; Graham Lawton, ‘How the blue acceleration is supercharging ocean exploitation’, New Scientist, 20 April 2022 ; Graham Lawton, ‘How four big industries are driving the exploitation of our oceans’, New Scientist, 20 April 2022 . 7

4  Research handbook on international marine environmental law The book is divided into five parts, the chapters in the first of which examine the broad question of the adequacy of the current global regime in addressing the marine environmental problems of the 21st century. The chapters in Part II on the legal frameworks for the protection of the marine environment examine in more detail the basic principles of marine environmental law and the mechanisms for ensuring its compliance and enforcement both globally and at the regional level. The challenges of fragmentation and coherence identified in Part I are particularly well illustrated in the chapters in Part II focusing on the legal frameworks in the Mediterranean and the Indian Ocean. The chapters in Part III of the book address issues relating to pollution of the marine environment, focusing, in particular, on aspects of the nexus between marine pollution and greenhouse gas emissions, while the chapters in Part IV of the book examine issues relating to the protection of marine biodiversity. The chapters in the final part, Part V, examine issues relating to the role of science and technology and the development of new and emerging mechanisms and tools for protection of the marine environment. The chapters in the book speak largely for themselves. In this chapter, we draw out and elaborate on some of the important themes that are explored in this book and examine some of the specific challenges and developments that have not been addressed in the chapters. To situate the discussion of these current challenges we begin with an overview of the background to and development of international marine environmental law.

2.

AN HISTORICAL OVERVIEW OF INTERNATIONAL LAW FOR THE PROTECTION OF THE MARINE ENVIRONMENT

The international legal regime for the protection of the marine environment has its origins in the late 19th century and attempts to control over-exploitation of marine living resources.13 The first major effort to plead conservation in an attempt to restrict exploitation of marine living resources came in the 1893 Bering Sea Fur Seals Arbitration,14 after which the notion of conservation irrevocably entered the marine environmental lexicon.15 Throughout the first half of the 20th century, resource issues (as well as territorial issues) remained the central focus of the law of the sea with scant attention being paid to the protection of the marine environment. Although a draft treaty dealing with oil pollution from ships was drawn up in 1926, it was never opened for signature.16 By the mid-20th century, however, emerging concerns over the increasing scale of marine pollution, particularly by oil, led to the adoption of

13 See, eg, Douglas M Johnston, ‘The Environmental Law of the Sea: Historical Development’ in Douglas M Johnston (ed) The Environmental Law of the Sea (IUCN 1981) 17. 14 Award between the United States and the United Kingdom, Relating to the Rights of Jurisdiction of United States in the Bering’s Sea and the Preservation of Fur Seals (United States v United Kingdom), Decision of 15 August 1893, RIAA XXVIII, 263. 15 For discussion of the history on conservation of marine living resources, see, Rosemary Rayfuse, ‘Article 117’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 805, 806-808. 16 See, R Michael M’Gonigle and Mark W Zacher, Pollution, Politics and International Law: Tankers at Sea (University of California Press 1979) 81-83; Robin R Churchill and AV Lowe, The Law of the Sea (3rd ed, Manchester University Press 1999) 333; Alan Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (1985) 79 American Journal of International Law 347.

International marine environmental law in the 21st century  5 the 1954 International Convention for the Prevention of Pollution of the Sea by Oil.17 A few years later, although short on substance and specificity, provisions concerning the prevention of pollution by oil and radioactive waste were included in both the 1958 Convention on the High Seas18 and the 1958 Convention on the Continental Shelf.19 However, it was accidents such as the Torrey Canyon disaster in 1967, a number of offshore oil-well blowouts in the 1970s, and the discovery of DDT in the marine food chain that galvanised the international community into developing more specific and more comprehensive regulatory regimes aimed at protecting the marine environment from the dangers posed by pollution.20 In 1972, the UN Conference on the Human Environment adopted the Stockholm Declaration on the Human Environment,21 Principle 7 of which specifically required States to ‘take all possible steps to prevent pollution of the sea 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’. The Action Plan for the Human Environment, which accompanied the Declaration, set out a number of recommendations relating to marine pollution, calling on States, inter alia, to accept and implement existing instruments on the control of marine pollution, to ensure the effectiveness of controls on vessel-source pollution and dumping at sea, and to participate in new efforts to bring all sources of marine pollution, including land-based sources under appropriate controls.22 These recommendations led directly to the adoption of a number of major treaties relating to the marine environment, including the 1972 London Dumping Convention (LC)23 and the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL Convention).24 In addition, a number of regional marine environmental treaties were adopted,25 as well as the first wildlife conservation treaties with coverage of marine species.26

17 International Convention for the Prevention of Pollution of the Sea by Oil (adopted 12 May 1954, entered into force 26 July 1958) 327 UNTS 3. 18 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 82. 19 Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311. 20 For a survey of these problems see, eg, Oscar Schachter and Daniel Serwer, ‘Marine Pollution Problems and Remedies’ (1971) 61 American Journal of International Law 84. 21 Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972 (1972) 11 International Legal Materials 1416 (Stockholm Declaration). 22 Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972: Recommendations for International Action UN Doc A/CONF.48/14/Rev.1. 23 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (LC). 24 International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL Convention). 25 See, eg, Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, into force 1978, amended and renamed 10 June 1995, entered into force 9 July 2004) 1102 UNTS 27. 26 See, eg, Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1975, entered into force 1 July 1975) 993 UNTS 243; Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333.

6  Research handbook on international marine environmental law Despite this extensive, albeit piece-meal, body of international marine environmental law, no global framework establishing the obligations, responsibilities and powers of States in all matters of marine environmental protection existed. This gap was largely filled in 1982 with the adoption of the LOSC. As its preamble makes clear, the aim of the LOSC is to establish ‘a legal order for the seas and oceans which will’, inter alia, ‘promote… the conservation of their living resources, and the study, protection and preservation of the marine environment’. To that end, Part XII of the LOSC is entirely dedicated to ‘protection and preservation of the marine environment’, while numerous other relevant provisions are also included in other parts of the Convention. In short, Part XII of the LOSC provides the overarching comprehensive legal framework for protection of the marine environment in which both existing agreements and future developments in knowledge of ocean ecology can be accommodated. Since the adoption of the LOSC, the control, reduction and elimination of marine pollution has become a major issue in the law of the sea. The initial focus on oil pollution has been expanded to include other pollutants. The range of pollution sources has also been broadened to include pollution from any source, including from vessels, sea-bed activities, dumping at sea, land-based activities, from or through the atmosphere, or resulting from the use of technologies or the introduction of alien or new species. The general focus of the law has also expanded beyond pollution, with international marine environmental law now firmly concerned not only with pollution but also with the conservation of marine living resources and marine biodiversity and the protection and preservation of rare or fragile marine ecosystems, the habitats of depleted, threatened or endangered species and other forms of marine life, the effects of climate change on the ocean, and the maintenance and integrity of the ecosystem services the ocean provides and on which humanity depends for its continued existence.

3.

THE INTERNATIONAL LEGAL FRAMEWORK FOR PROTECTION OF THE MARINE ENVIRONMENT

3.1

Core Principles of International Marine Environmental Law

While the LOSC provides the overarching framework, it is important to note that the legal framework for the protection of the marine environment derives from a variety of sources, including general international law principles that are drawn from international environmental law and that apply not only to the terrestrial environment but also to the marine environment. These ‘open-textured’ principles27 also perform a critical role in governing State decision-making, in addition to more prescriptive, or proscriptive, rules. Tanaka identifies four ‘pillars’ of international marine environmental law: the no harm principle (sic utere); sustainable development; the precautionary principle; and the principle of cooperation.28 The no harm principle was first articulated in the Trail Smelter29 arbitration where its application was limited to the context of transboundary harm to other States. Intrinsically linked

Yoshifumi Tanaka, ‘Basic Principles of International Marine Environmental Law’, Chapter 4 in this volume; Alexander Proelss, ‘Fragmentation and Coherence in the Legal Framework for the Protection of the Marine Environment’, Chapter 3 in this volume. 28 Tanaka, Chapter 4 in this volume. 29 Trail Smelter (USA v Canada) (1941) 3 RIAA 1905, 1965. 27

International marine environmental law in the 21st century  7 with the principle of permanent sovereignty over natural resources, the no harm principle limits the right of States to exploit their resources in accordance with domestic environmental and developmental policies by requiring that in doing so they cause no harm to other States. Application of the no harm principle was subsequently extended, in Principle 21 of the Stockholm Declaration, to areas beyond national jurisdiction thereby providing the foundation, for example, for the various prohibitions or restrictions on the dumping of wastes and other matter on and into the high seas articulated in the LC. The principle, and its extension to areas beyond national jurisdiction, was reiterated in Principle 2 of the 1992 Rio Declaration30 and its customary status was confirmed by the International Court of Justice (ICJ) in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.31 Of course the principle does not answer the questions as to what constitutes environmental damage, what level of damage or harm is prohibited, whether the obligation is one of absolute liability, strict liability, or fault-based liability, what the consequences of a violation might be or the extent of any liability. The answer to these questions must be found in treaties, cases and in State practice. For its part, the general principle that States should ensure the development and use of their resources in a manner that is ‘sustainable’ has been known in international law since at least the Bering Sea Fur Seals arbitration. However, the specific term ‘sustainable development’ has its origins in the 1987 Report of the World Commission on Environment and Development.32 Defined there as meaning ‘development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs’, sustainable development is perhaps best understood not as a specific principle of international law but rather as the end goal or final objective of human activities,33 a goal that is to be pursued through the implementation of other legal principles and instruments. Indeed, the ICJ refers to the term as a ‘concept’ rather than a ‘principle’34 and debate continues as to its normativity. Be that as it may, the concept is increasingly articulated in a number of international instruments relating to the conservation and sustainable use of marine resources. It has unequivocally entered the modern vernacular of the law of the sea with the adoption of the United Nations Sustainable Development Goals, Goal 14 of which specially addresses ‘conservation and sustainable use of the oceans, seas and marine resources for sustainable development’.35 The extent to which the concept can legally constrain the behaviour of States in order to reconcile economic development with protection of the marine environment remains to be seen. With respect to the precautionary principle, while some discussion persists as to its meaning and effect, the essential core of the principle is that in cases of possible serious

30 Declaration of the UN Conference on Environment and Development, UN Doc. A/CONF.51/26, (1992) 31 International Legal Materials 874 (Rio Declaration). 31 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) ICJ Reports 226. 32 Report of the World Commission on Environment and Development, Our Common Future (1987) 43. 33 See, eg. Alan Boyle and David Freestone, ‘Introduction’ in Alan Boyle and David Freestone (eds) International Law and Sustainable Development: Past Achievements and Future Challenges (OUP 1999) 1. 34 Gabčikovo-Nagymaros Project (Hungary v Slovakia), Judgment, (1997) ICJ Reports 7, para. 140 (Gabčikovo-Nagymaros). 35 UNGA, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A/ Res/70/1, 25 September 2015.

8  Research handbook on international marine environmental law or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.36 That there is no specific mention of the precautionary principle in the LOSC is hardly surprising given that the principle only emerged in international law in the mid-1980s, well after the adoption of the Convention.37 Nevertheless, precautionary thinking is arguably inherent in the definition of marine pollution in Article 1(1)(4), which defines ‘pollution of the marine environment’ as including the introduction of substances or energy into the marine environment that not only result in deleterious effects but also that ‘is likely to result’ in such effects.38 Moreover, precaution is also inherent in the role of courts and tribunals constituted under the LOSC deciding on provisional measures pending the resolution of a marine environmental law dispute.39 In any event, there is no doubt that the precautionary principle’s significance for marine environmental protection is now well recognised, and that the language of precaution has entered the lexicon of the law of the sea.40 Finally, the principle of cooperation, which imposes an obligation on States to cooperate in addressing international issues, is recognised as a fundamental rule of international law emanating from the principle of ‘good-neighbourliness’ enunciated in Article 24 of the UN Charter.41 While the precise nature and extent of the obligation is often a matter of contestation, its customary status is not.42 Neither is its importance in the context of addressing marine environmental issues which, due to the fluid nature of the marine environment and the range of human activities in, on and under the ocean, cannot be addressed by any one State alone. Admittedly, the obligation does not mandate a specific outcome.43 The bona fides of its implementation can thus be open to question. Nevertheless, it does require fulfilment of certain procedural obligations such as those relating to environmental assessment, exchange of information, notification, consultation and negotiation, all central obligations articulated in the LOSC and in other international instruments dealing with the marine environment. To Tanaka’s list, we would add the core importance of an ecosystem approach, or ecosystem-based management, as an essential unifying principle and of particular importance for reducing the influence of what are otherwise arbitrary divisions of ocean space to accommodate competing claims to authority in that space. Like the precautionary principle, there

36 For discussion see, eg Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (3rd ed, OUP 2009) 152-164. 37 Rosemary Rayfuse, ‘Precaution and the Protection of Marine Biodiversity in Areas Beyond National Jurisdiction’ (2012) 27(4) International Journal of Marine and Coastal Law 773. 38 Simon Marr, The Precautionary Principle in the Law of the Sea (Martinus Nijhoff 2003) 5-7. 39 LOSC, Art. 290. See further, eg, Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (ITLOS Cases No 3 & 4, 27 August 1999) (Separate Opinion of Judge Treves), para. 9 and (Separate Opinion of Judge Laing) para. 17; M/V ‘Louisa’ Case (Saint Vincent and the Grenadines v. Kingdom of Spain) (Provisional Measures) (ITLOS Case No 18, 23 December 2010) (Dissenting Opinion of Judge Wolfrum), para. 4. 40 Rayfuse (n 37). 41 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS xvi. 42 Gabčikovo-Nagymaros (n 34) paras 141-142; MOX Plant (Ireland v UK) (Provisional Measures) ITLOS Order 3 December 1981, para. 83. 43 Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) 2010 ICJ Reports 14 (Pulp Mills).

International marine environmental law in the 21st century  9 is no specific mention of the ecosystem approach in the LOSC. As Rayfuse notes,44 although first articulated in Article II of the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention)45 the approach only gained general recognition as a policy concept in 1995 with its inclusion in the 1995 UN Fish Stocks Agreement (FSA)46 and its adoption by parties to the Convention on Biological Diversity (CBD)47 as the primary framework for action to be taken under that Convention. Nevertheless, the concept is clearly inherent in the requirements of Article 194(5) of the LOSC, which requires the protection of rare and fragile ecosystems and the habitats of depleted, threatened and endangered species. 3.2

Marine Environmental Protection and the LOSC

Beyond these principles, concepts and approaches, as will be apparent from the chapters in this volume, any consideration of international marine environmental law must account for the constitutional importance of the LOSC. The LOSC is pivotal not only for its allocation of ocean areas under coastal States’ national jurisdiction but also for enshrining principles to regulate and guide conduct in areas beyond national jurisdiction. Foundational in this regard is that the LOSC intends for all areas of the marine environment (both under and beyond national jurisdiction) to be preserved and protected, and it imposes this obligation on ‘all States’.48 Part XII of the LOSC provides the starting point for any consideration of the legal landscape relating to protection of the marine environment. In addition to the general obligation to protect and preserve the marine environment,49 Article 194 imposes on States the obligation to take all measures ‘necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities’. This obligation extends to pollution resulting from the use of technologies as well as to the introduction of alien or new species to the marine environment (Article 196). Additional substance is provided in Articles 207 to 212, which require States to adopt laws and regulations to prevent, reduce and control pollution from vessels, land-based sources, seabed activities, activities in the Area, pollution from dumping and from or through the atmosphere and to enforce such laws and regulations. In the case of pollution from vessels, these laws and regulations must have at least the same effect as that of generally accepted international rules and standards (Article 211). In the case of seabed activities and activities in the Area they must be no less effective than the international rules, regulations, standards and recommended practices and procedures (Articles 208 and 209), and in the case of

Rosemary Rayfuse, ‘Protecting Marine Biodiversity and Vulnerable Marine Ecosystems’, Chapter 14 in this volume. 45 Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force on 7 April 1982) 1329 UNTS 48 (CAMLR Convention). 46 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, (adopted 4 August 1995, entered into force 11 Dec 2001) 2167 UNTS 3 (FSA). 47 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 48 LOSC, Art. 192. 49 LOSC, Arts 192 and 193. 44

10  Research handbook on international marine environmental law land-based pollution and pollution from or through the atmosphere these laws and regulations must take into account internationally agreed rules, standards and recommended practices and procedures (Articles 207 and 212). Although largely focused on pollution, as confirmed in both the Chagos Marine Protected Area50 and the South China Sea51 arbitrations, Article 194(5) expands the scope of the obligation in Article 192 to include rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. As described by Czybulka, this ‘laudable and far-sighted provision … permits and eventually demands the application of modern approaches and instruments of marine biodiversity conservation in implementing the Convention that go far beyond the “anti-pollution approach” historically contained in Art. 194 (1) – (3)’.52 Perhaps equally far-sighted, or at least prescient, Article 195 imposes an important obligation on States not to transfer damage or hazards from one area to another or to transform one type of pollution into another. This obligation is particularly relevant, for example, in the climate change context where atmospheric pollution in the form of excessive greenhouse gas emissions has been identified as the major cause of rapidly increasing ocean acidification.53 The LOSC also imposes obligations regarding assessing and monitoring effects of human activities on the ocean. Article 204 requires States to monitor the risks or effects of pollution and, where States have reasonable grounds for believing that any such planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, then Article 206 requires them to assess the potential effects of such activities on the marine environment. The point of conducting this assessment is to ensure that the proposed activity, including its manner of execution, is appropriate to the environmental context in which it is to be carried out. Importantly, the obligation to conduct an environmental impact assessment (EIA) articulated in Article 206 does not require any transboundary context. As confirmed by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) in the advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area,54 the obligation to conduct an EIA can be triggered in situations involving activities – including the use of new technologies – regardless of where the pollution or significant and harmful changes are expected to occur. Part XII of the LOSC is thus an important framework to address different sources of pollution and it creates standards and imposes duties for environmental protection. However, as Churchill notes, when drilling down into the provisions concerned with the protection of the marine environment, it can be seen that the provisions are often too open-textured or that the

Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award of 18 March 2015) PCA Case No 2011-03 (Chagos MPA). 51 South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19 (South China Sea Award). 52 Detlef Czybulka, ‘Article 194’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1298. 53 Ellycia Harrould-Kolieb and Tim Stephens, ‘Ocean Acidification’, Chapter 12 in this volume. 54 Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (Advisory Opinion) ITLOS Reports 2011, 10 (Seabed Advisory Opinion). 50

International marine environmental law in the 21st century  11 standard set for the protection of the marine environment is too low.55 Importantly, despite the constitutional importance of the LOSC, it does not explicitly address the three most pressing contemporary concerns in relation to the protection of the marine environment: namely, biodiversity loss, plastic pollution and climate change.56 3.3

Beyond the LOSC

Beyond the LOSC, it is readily observable that international marine environmental law is a vast field, comprising more than one hundred treaties concluded at the regional and multilateral level and addressing diverse issues that all relate to the marine environment. These treaties may be species-specific (such as protection of sharks or whales), region-specific, or issue-specific (focusing on, for example, vessel-source pollution or EIAs). Implementation of contemporary principles and approaches has also given rise to the development of a number of new legal and management tools, including marine protected areas and other area-based measures aimed at protecting vulnerable marine habitats and species from the adverse impacts of human activities such as fishing, shipping, sea-bed mining and bioprospecting. International environmental agreements that are not marine-focused may also have some bearing on the regulation of conduct at sea and/or be important for the protection of the marine environment. Important in this regard are, for example, the CBD, the UN Framework Convention on Climate Change (UNFCCC)57 and the Paris Agreement.58 What becomes critical in understanding the legal landscape of international marine environmental law is the interaction between these different agreements and their connection to the LOSC given its foundational importance. In his chapter, Churchill sets out five possible ways to update the LOSC for environmental purposes to ensure its ongoing relevance. These options are: implementation agreements; measures adopted by the International Seabed Authority (ISA); so-called ‘rules of reference’ (given so many concern the marine environment); UN General Assembly resolutions; and judicial interpretations. The continued relevance of the LOSC framework is also partly achieved because of techniques of treaty interpretation that allow for modern contexts to be taken into account59 and for subsequent State practice to have bearing, potentially, on the interpretation of different rights and obligations.60 There are limits, however, to relying on the rules of treaty interpretation because, among other reasons, the practice of international organisations and the agreements of those organ-

Robin Churchill, ‘The UN Convention on the Law of the Sea – Still Relevant to Protection of the Marine Environment?’, Chapter 2 in this volume. 56 Ibid. 57 United Nations Framework Convention on Climate Change (opened for signature 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 58 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) [2016] ATS 24; (2016) 55(4) International Legal Materials 740. 59 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 31(1). 60 Ibid, Art. 31(3)(b). See also, International Law Commission (ILC), ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties: Text of the draft conclusions adopted by the Drafting Committee on second reading’, UN Doc A/CN.4/L.907, 11 May 2018. 55

12  Research handbook on international marine environmental law isations are not concerned explicitly with the interpretation of the LOSC. Proelss notes that the entity best placed to make decisions or adopt agreements would be the meeting of the States Parties to the LOSC (SPLOS), but there is no expectation or history that SPLOS would provide such a role.61 Instead, ITLOS and arbitral tribunals constituted under the LOSC have, to some extent, stepped into the breach in elaborating on the principles set out in the LOSC.62 Important contributions in this regard include the endorsement of the meaning of ecosystem from the CBD,63 confirming that protection and preservation of the marine environment extends to the conservation and management of marine living resources,64 confirming that the obligation to preserve the marine environment in areas beyond national jurisdiction is an obligation erga omnes,65 and indicating the responsibility of flag States to ensure that their nationals do not violate requirements that support protection of the marine environment.66 The views of these judicial bodies have enhanced understanding of States’ rights and duties in relation to the marine environment, even when the decisions are not intended to bind States beyond those parties to the case or when the views are expressed in advisory opinions and are not formally binding. Also creating expectations as to the required standards for State conduct in protecting the marine environment are a vast number of informal agreements. Informal agreements (or soft law) are not legally binding but provide a means by which States (and other actors) may agree on what steps should be taken in addressing particular issues and/or what best practice might be for implementation into national laws and policies. Informal agreements may also facilitate cooperation between different actors, including institutions. Proelss refers to a series of memoranda of cooperation between international institutions intended to enhance coherency in approaches to international marine environmental law.67 These agreements may thus perform a procedural function to improve coordination, as well as indicating what substantive action may be needed in different circumstances. In the latter category, examples include the Food and Agriculture Organization’s (FAO) International Plans of Action,68 the Aichi Targets under the CBD,69 and the various codes, guidelines and recommendations adopted by the International Maritime Organization (IMO) including the Polar Code,70 which is not itself a binding instrument but the provisions of which have gained binding status by

Proelss, Chapter 3 in this volume. See also, Øystein Jensen, The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals (Edward Elgar 2020). 63 South China Sea, Award (n 51). 64 Southern Bluefin Tuna (n 39). 65 Seabed Advisory Opinion (n 54) para. 180. 66 Such as Illegal, Unreported and Unregulated (IUU) fishing and in relation to activities in the deep seabed. See, Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission [2015] ITLOS Reports 4, and Seabed Advisory Opinion (n 54). 67 Proelss, Chapter 3 in this volume. See, eg, Memorandum of Understanding between the OSPAR Commission and the International Seabed Authority (2010) . 68 Eg, FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2001). 69 CBD, Decision X/2, The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets, UNEP/CBD/COP/DEC/X/2, 29 October 2010. 70 International Code for Ships Operating in Polar Waters, IMO Res. MSC.385(94), 21 November 2014 and IMO Res MEPC.264, 15 May 2015, both effective 1 January 2017 (Polar Code). 61 62

International marine environmental law in the 21st century  13 virtue of amendments to various IMO conventions.71 These sorts of agreements may elaborate on broader rules in the LOSC or other international treaties, or fill in gaps left by those treaties, or reflect an early version of a rule to be adopted in a formal agreement to socialise the requirement and test its operation.72 There may be instances where informal agreements may contribute to the development of customary international law.73 Informal agreements are also important because they potentially fall within the category of ‘generally accepted international rules and standards’ that are referenced in different provisions of Part XII of the LOSC.74 ‘Standards’ may well encompass non-legally binding instruments, and the requirements within those instruments acquire treaty force through these so-called rules of reference. The rules of reference in the LOSC may thus be utilised to create coherence between different treaty regimes and the LOSC. According to Proelss, a query emerges as to the extent to which it is possible to rely on rules of reference when the external regimes were not in existence at the time the LOSC was drafted.75 Nevertheless, he argues that so long as the external regime is sufficiently related to the rule of reference in the LOSC then it should allow for possible updating and minimise fragmentation.76 Treaties addressing marine environmental issues are not only relevant in their own right and as rules of reference for the LOSC, but other treaties also hold importance as ‘implementing agreements’ of the LOSC.77 Since the adoption of the LOSC, States have adopted two implementing agreements, one concerning the deep seabed78 and the other filling a gap in the LOSC in regulating the conservation and management of highly migratory and straddling fish stocks.79 The latter agreement, the FSA, has been important for international marine environmental law because of its endorsement of the precautionary and ecosystem approaches, its emphasis on cooperation, and its effect of shifting the principle of the freedom of fishing further towards protection of marine biodiversity and its long-term conservation and sustainable use. Now of significance for the marine environment is the potential for a new implementing agreement concerning the protection of biodiversity beyond national jurisdiction. In addition, a further new treaty is now contemplated, albeit not an implementing agreement to the LOSC but nevertheless of critical importance for the marine environment, to address the endemic problem of plastic pollution.80 These future agreements are discussed further below.

71 Amendments to the International Convention for the Safety of Life at Sea 1974 (SOLAS), IMO Res. MSC.386(94) 21 November 2014, effective 1 January 2017; Amendments to MARPOL Convention Annexes I, II, IV and V, IMO Res. MEPC. 265(68), 15 May 2015, effective 1 January 2017. 72 These uses of informal agreements are discussed in Natalie Klein, ‘Meaning, Scope and Significance of Informal Lawmaking in the Law of the Sea’ in Natalie Klein (ed), Unconventional Lawmaking in the Law of the Sea (OUP 2022) 3. 73 Ibid. 74 See, eg, LOSC, Arts 197, 207 and 208(3). 75 Proelss, Chapter 3 in this volume. 76 Ibid. 77 See, Churchill, Chapter 2 in this volume. 78 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 1836 UNTS 3 (1994 Implementation Agreement). 79 FSA (n 46). 80 UN Environment Assembly, Resolution UNEP/EA.5/L.23/Rev.1, End plastic pollution: Towards an international legally binding instrument (2 March 2022), establishes an Intergovernmental Negotiating Committee that will begin its work in 2022, with the ambition of completing a draft global legally

14  Research handbook on international marine environmental law The vast complex of international law that results has led to suggestions that the legal protection of the marine environment is a ‘system’,81 and that a broader understanding of those rules is necessary to understand governance of the marine system. As with other observations about the vast nature of international marine environmental law, Proelss describes it as having a ‘cross-sectoral and multi-layered structure’.82 While fragmentation is certainly a risk, the fact that there are so many different avenues for enhancing protection of the marine environment is a recognition of the international importance of the many issues related to the marine environment. 3.4

Mechanisms for Compliance and Enforcement

While it may be heartening that the international legal framework for the protection of the marine environment has evolved to a great extent since the adoption of the LOSC, implementation of those rules remains, in many instances, a work in progress. Tanaka emphasises that while the four basic pillars of international marine environmental law are easily expressed, their application is not straight-forward.83 In his chapter, Tanaka notes that when discussing the implementation of the ‘no harm’ principle, for example, it is important to consider the exercise of due diligence, as well as potentially take into account best environmental practices and have regard to the conduct of an EIA. Similar considerations arise in trying to determine if obligations relating to precaution and cooperation have been met. The content of sustainable development is similarly unclear in its application. The challenges posed in assessing the implementation of these principles are laid bare in judicial settings.84 The traditional principles of State responsibility have limited utility because those rules assume that damage to the marine environment has already occurred. The pillars instead create obligations to prevent such harm. When environmental harm has occurred, the key responses for rectifying the problem in the international legal system are through compliance mechanisms or through dispute settlement processes. Compliance mechanisms are ‘dedicated procedures’ intended to facilitate the operation of the systems in place.85 Most commonly, these mechanisms review systematic compliance rather than individualised examinations of conduct. The implementation of the compliance mechanisms is thus essentially facilitative and undertaking capacity building programs and providing technical assistance will complement efforts at implementation.86 In his chapter in this volume, Harrison observes that within regional fisheries management organisations (RFMOs), there has been a move away from a facilitative approach and stricter enforcement measures have been instituted for serious non-compliance. In contrast

binding agreement addressing the full lifecycle of plastic including its production, design and disposal, by the end of 2024. 81 Tanaka has observed that when discussing international environmental law, it is important to consider that we are dealing with a system, and one that extends to cover activities in, on and around the ocean. Tanaka, Chapter 4 in this volume. 82 Proelss, Chapter 3 in this volume, 57. 83 Tanaka, Chapter 4 in this volume. 84 Ibid. 85 James Harrison, ‘Compliance Mechanisms Under Treaties Relating to Protection of the Marine Environment’, Chapter 5 in this volume. 86 Ibid.

International marine environmental law in the 21st century  15 to the facilitative approach of some compliance bodies in international environmental law, in RFMOs it is more likely for members to have their compliance status designated as compliant, non-compliant, or seriously non-compliant. While these designations may spotlight problems, the process of designation can, however, be complicated when the flag States themselves are responsible for providing most of the information for assessment, although in some circumstances NGOs and observers may also furnish relevant information. Moreover, in some instances, the need for consensus may prevent a designation of non-compliant where the offending State is able to block the decision. Also critical to the legal framework for the implementation of international marine environmental law are dispute settlement processes. These processes allow for opportunities to interpret and elaborate on legal requirements as well as producing different remedial options through diverse processes. As Klein and McCreath highlight, the resolution of environmental disputes may engage States as well as non-State actors with each turning to distinct processes, including more than one process, to seek compliance with international marine environmental law and to remedy environmental harm that has occurred.87 Challenges and shortcomings in dispute resolution may disincentivise actors from seeking a change in conduct and/or fail to produce the outcomes needed or desired. These efforts thus have varying impacts on the state of the marine environment itself. Harrison rightly observes that States must identify the cause of non-compliance and remedy what has caused the result, rather than remedying the result of non-compliance. The system that has developed is by no means perfect, and coherence is a decided challenge, albeit vital to accomplish. To begin with, coordination is essential to prevent forum shopping as to how an issue is addressed.88 Moreover, no matter how vast the system of laws, ultimately, the law is not enough on its own; processes and mechanisms must support these rules. In this respect, the concept of ocean governance allows for considerations beyond the law of the sea. Proelss observes, for example, that the ‘mechanisms of environmental governance take their place alongside the instruments of formal law’.89 For his part, Harrison notes that the compliance mechanisms contribute to good environmental governance in that they may enhance transparency and participation.90 Notably, in some instances, NGOs can trigger compliance. Harrison describes NGO involvement as ‘democratizing’ global governance; non-State actors participate in meetings of parties and in those fora are able to raise compliance issues. Indeed, public participation is a modern good governance standard and, as discussed by Ardron, Lily and Jaeckel in this volume,91 vital for allowing non-State actors to support implementation of and compliance with legal rules and for addressing some of the current challenges in ocean governance. In the end, cooperation is the key to coherence. Churchill concludes that the LOSC is ultimately more relevant to addressing contemporary issues than may first appear because of the different means by which it may be interpreted and applied to account for current concerns. Norms do exist that should have a bearing on State

Natalie Klein and Millicent McCreath, ‘Resolving International Disputes Concerning the Marine Environment’, Chapter 6 in this volume. 88 Proelss, Chapter 3 in this volume. 89 Ibid, 79. 90 Harrison, Chapter 5 in this volume. 91 Jeff Ardron, Hannah Lily and Aline Jaeckel, ‘Public Participation in the Governance of Deep-Seabed Mining in the Area’, Chapter 16 in this volume. 87

16  Research handbook on international marine environmental law decisions relating to biodiversity and greenhouse gases. The problem is more one of lack of political will rather than the terms of the LOSC itself. However, account should also be taken of the fact that solutions may well lie outside the LOSC regime, as, for example, is the case with respect to the use and manufacture of plastics. Thus, while the LOSC can provide many legal rules and opportunities for States to take steps to better protect and preserve the marine environment, political will and a competent forum in which to take decisions are all essential. Moreover, it is also crucial to consider more than the law of the sea and to account for the interaction with other international regimes and national policies. This need to look beyond the law of the sea is aptly illustrated by the three contemporary issues in international marine environmental law – biodiversity loss, plastic pollution and climate change – discussed in the following section.

4.

ADDRESSING CONTEMPORARY ISSUES IN INTERNATIONAL MARINE ENVIRONMENTAL LAW

As the chapters in this book identify, threats to the marine environment come in many guises. The three most pressing contemporary concerns in relation to the protection of the marine environment identified by Churchill are biodiversity loss, plastic pollution and climate change.92 Although worthy of separate consideration, it is important to note that these concerns are also intrinsically linked. While fishing has been identified as the largest contributor to biodiversity loss to date,93 both land and sea-based pollution and climate change and associated ocean acidification, as well as other human activities such as coastal development, shipping, offshore oil and gas activities and seabed mining contribute to marine biodiversity loss and other adverse effects on the entire marine ecosystem. The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services reports that over one-third of marine mammals and nearly one-third of sharks, shark relatives, and reef forming corals are threatened with extinction as a result of human activities.94 Climate change, particularly the failure to stem the continuing increase in global temperatures, is predicted to culminate in a mass extinction in the oceans rivalling the size and severity of the ‘Great Dying’ extinction event that wiped out 57 percent of biological families, 83 percent of genera, 81 percent of marine species, and 70 percent of terrestrial vertebrate species some 250 million years ago.95 These inextricable links are significant for the manner in which these modern challenges need to be addressed, namely in a cross-sectoral way, including both within the law of the sea and beyond. Plastic pollution, for example, cannot be solved through a stand-alone regime on marine litter. Rather, what is needed is a life cycle approach that reduces the use and improves the management of plastics across regimes, from shipping and fishing, to tourism,

Churchill, Chapter 2 in this volume. S Díaz and others (eds), Summary for policymakers of the global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES Secretariat 2019) 12. 94 IPBES, Global assessment report on biodiversity and ecosystem service (IPBES Secretariat 2019). 95 Justin L Penn and Curtis Deutsch, ‘Avoiding ocean mass extinction from climate warming’ (2022) 376(6592) Science 524. 92 93

International marine environmental law in the 21st century  17 waste management, greywater treatment, health, air quality and more.96 Similarly, the challenges presented by marine biodiversity loss, ocean acidification and climate change can only be addressed with a cross-sectoral approach that also engages with other international regimes. As several of the chapters in this book demonstrate, this need presents a fundamental challenge to international marine environmental law. The following sub-sections seek to highlight some of the issues raised by the authors in line with these three topical challenges. 4.1

Addressing Marine Biodiversity Loss

Addressing biodiversity loss requires protection not only of individual species but of the various and variable ecosystems of which they form part. In his chapter, Caddell discusses the challenges for international marine environmental law of conserving highly mobile marine species such as whales, highly migratory fish, turtles and sharks.97 Chief among these challenges is the physical reality of the extensive ranges these species traverse, often crossing numerous international boundaries and thus requiring high degrees of political will and national capacity which may not be present. These challenges are addressed in a wide array of both binding and non-binding international instruments; so wide, in fact, that Caddell refers to ‘treaty congestion’ and the ‘inability to fully coordinate regulatory priorities, strategies and approaches’,98 particularly in respect of species that often receive lesser regulatory attention than the charismatic megafauna such as whales. While the Convention on Migratory Species regime has facilitated the adoption of a range of subsidiary agreements and action plans in respect of particular species, and facilitates interactions between the various regulatory bodies concerned, lack of funding and lack of regulatory and administrative momentum mean that many of these ambitions remain unfilled. A similar problem of treaty congestion can be seen in the Mediterranean,99 while in the Indian Ocean, the issue is one of lack of treaty regime rather than congestion.100 Protection of individual species is, however, only part of the equation. Addressing marine biodiversity loss more broadly is now accepted as requiring the concerted implementation of the ecosystem approach. However, as both Rayfuse101 and Becker-Weinberg102 note in their chapters, the implementation of an ecosystem approach is anything but straightforward. In the fisheries context, RFMOs have increasingly updated their managerial mandates to require ecosystem-based management. Measures adopted increasingly go beyond traditional by-catch mitigation and reduction requirements to include obligations to assess the impacts of any proposed new or exploratory fisheries on both stocks and the ecosystems in which they are found. Increasingly, too, measures are being adopted to protect vulnerable benthic

Nils Simon and others, ‘A Binding Global Agreement to Address the Life Cycle of Plastics’ (2021) 373(6550) Science 43. 97 Richard Caddell, ‘Marine Mammals and Migratory Species’, Chapter 15 in this volume. 98 Ibid, 359. 99 Nilüfer Oral, ‘Mapping Progress and Challenges for the UNEP Regional Sea Programme for the Mediterranean’, Chapter 7 in this volume. 100 Erika Techera, ‘The Indian Ocean Region and Marine Environmental Law’, Chapter 8 in this volume. 101 Rayfuse, Chapter 14 in this volume. 102 Vasco Becker-Weinberg, ‘Enhancing Marine Protected Areas and Marine Spatial Planning Through an Ecosystem Approach’, Chapter 20 in this volume. 96

18  Research handbook on international marine environmental law ecosystems from the negative impacts of destructive bottom trawling.103 Nevertheless, fisheries management remains largely a single species regulatory technique and the efficacy of measures restricting bottom trawling remains an open question.104 New marine industries also pose a significant threat to marine biodiversity. Deep seabed mining, in particular, should it become a reality, will likely result in the destruction of benthic habitats and associated species as well as noise and light pollution, the production of damaging sediment plumes, and pollution from mine tailings.105 Moreover, pollution impacts from deep seabed mining will not be limited to the seafloor but will likely also affect midwater ecosystems,106 for which no ecological baselines exist, making it impossible to predict the impacts.107 A significant concern is that deep seabed mining may negatively impact on commercially relevant fish stocks.108 Indeed, scientists have warned that deep seabed mining will likely result in biodiversity loss109 and that the ‘scales of potential disturbances are enormous.’110 Based on these risks of serious environmental harm, many, including Peter Thompson, Special Envoy of the UN Secretary-General for the Ocean, are calling for a pause on deep seabed mining until the risks are better understood, particularly in light of the UN Decade for Ocean Science.111 Against this background, the International Seabed Authority (ISA) is tasked to regulate deep seabed mining in the Area.112 As Lodge outlines in his chapter,113 the ISA has a broad and far-reaching environmental mandate and has been actively working on the regulatory framework for commercial-scale mineral exploitation of the Area. One of the key challenges for the ISA is how to balance mineral exploitation with its obligation to protect the marine environment from the harmful effects of deep seabed mining.114

Richard Caddell, ‘Deep-Sea Bottom Fisheries and the Protection of Seabed Ecosystems: Problems, Progress and Prospect’ in Catherine Banet (ed) The Law of the Seabed: Access, Uses and Protection of Seabed Resources (Brill Nijhoff, 2020) 255. 104 Rayfuse, Chapter 14 in this volume. 105 Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume. 106 Jeffrey C Drazen and others, ‘Midwater Ecosystems Must Be Considered When Evaluating Environmental Risks of Deep-Sea Mining’ (2020) 117(30) Proceedings of the National Academy of Sciences of the United States of America 17455, 4. 107 Ibid. See also, Diva J Amon and others, ‘Assessment of Scientific Gaps Related to the Effective Environmental Management of Deep-Seabed Mining’ (2022) 138 Marine Policy 105006. 108 JMA van der Grient and JC Drazen, ‘Potential Spatial Intersection between High-Seas Fisheries and Deep-Sea Mining in International Waters’ (2021) 129 Marine Policy 104564. 109 Cindy Van Dover and others, ‘Biodiversity Loss from Deep-Sea Mining’ (2017) 10(7) Nature Geoscience 464. 110 Diva J Amon and others, ‘Heading to the Deep End without Knowing How to Swim: Do We Need Deep-Seabed Mining?’ (2022) 5(3) One Earth 220. 111 M Remaoun, ‘Statement on Behalf of the African Group on the Financial Model at the 25th Session of the Council of the ISA’ (25 February 2019) . See, ‘Marine expert statement calling for a pause to deep-sea mining’, signed by over 600 marine science and policy experts . 112 The Area is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. LOSC, Art. 1(1). 113 Lodge, Chapter 13 in this volume. 114 LOSC, Art. 145. 103

International marine environmental law in the 21st century  19 An added challenge is the fact that the ISA is tasked to regulate the Area as the common heritage of humankind.115 Ardron, Lily and Jaeckel116 argue that more public participation in the governance of seabed mining is needed in order to engage this broadest of constituencies and meet international environmental law and human rights norms around participatory governance. Ultimately, how we regulate and manage human activities that can harm biodiversity depends on the value we attribute to both the environment and the destructive activity. For such values to be represented in ocean governance institutions, transparent and participatory governance is key and particularly important for managing our global commons on the high seas and in the Area. One key set of tools that has been developed to support the implementation of the ecosystem approach in addressing marine biodiversity loss are area-based management tools (ABMTs). A traditional single sector management approach, area-based measures include everything from areas closed to fishing during spawning season to marine areas in which shipping or other human activities are regulated or restricted in some manner. In areas beyond national jurisdiction (ABNJ), area-based management tools are often used by RFMOs to close fisheries either to specified gear types, or for seasonal purposes, or once quotas have been reached.117 They are also manifest in the IMO’s designations of Special Areas and Particularly Sensitive Sea Areas118 and, in the deep seabed mining context, ABMTs are explicitly included in the ISA’s Exploration Regulations.119 The ABMT that has received the most attention in recent years is that of marine protected areas (MPAs), which are increasingly seen as a central element of both single and multi-sector ecosystem-based management. As Becker-Weinberg notes, however, global efforts to establish MPAs have, to date, been limited.120 In 2002, the World Summit on Sustainable Development called for the establishment of representative networks of MPAs by 2012.121 The CBD’s Aichi Biodiversity Targets adopted in 2010 called for 10 percent of coastal and marine areas to be conserved through MPAs by 2020,122 a target that was repeated in the UN’s Sustainable Development Goal 14 on Life below Water.123 As of 2022, none of

LOSC, Arts 136 and 137. Ardron, Lily and Jaeckel, Chapter 16 in this volume. 117 R Rayfuse, ‘Regional Fisheries Management Organisations’ in D Rothwell and others, Oxford Handbook of the Law of the Sea (OUP 2015) 439.  118 See, Henrik Ringbom, ‘Vessel-Source Pollution – Some Key Developments’, Chapter 9 in this volume. See further, Henrik Ringbom, ‘Vessel Source Pollution’ in Rosemary Rayfuse (ed) Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 105. 119 Nodules Regulations reg. 31(6) and Sulphides and Crusts Regulations reg. 33(6). See, Lodge, Chapter 13 in this volume. See further, Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’ in Rosemary Rayfuse (ed) Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 151. 120 Becker-Weinberg, Chapter 20 in this volume. 121 Plan of Implementation of the World Summit on Sustainable Development, para. 32(c). 122 This was originally to have been achieved by 2012; however, it became clear that target would not be achieved so the deadline was extended to 2020. CBD, 2010 Decision X/2, UNEP/CBD/COP/10/27. 123 Sustainable Development Goal 14: ‘Conserve and sustainably use the oceans, seas and marine resources for sustainable development’, Target 14.5: ‘By 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information’. UNGA, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (n 36). 115 116

20  Research handbook on international marine environmental law these targets has yet been met.124 This is in large part due to lingering uncertainties as to the rationale for and efficacy of these measures, many of which are designated in remote areas,125 lack management plans, allow many types of extractive activities,126 and are not enforced or monitored,127 as well as to their potential knock-on effects of excluding stakeholders either from their livelihoods entirely or from participation in the development and/or implementation of management measures.128 As Rayfuse discusses, a complicating factor in the acceptability and efficacy of MPAs as a management tool arises where these are established on a sectoral basis thereby undermining their comprehensiveness and creating the potential for inter-sectoral conflict. This is relevant, for example, where implementation and enforcement of an MPA designed to protect fish in the water column may interfere with other uses such as seabed resource extraction, wind farms and shipping, and vice versa; or where an MPA is adopted to protect from the adverse effects of one activity (ie seabed mining) but not others (ie cable laying, oil and gas extraction, wind farm construction or marine scientific research). Still greater levels of complication arise in the case of MPAs in ABNJ where no overarching management authority exists and individual treaty regimes are fragmented, sectorally, substantively, geographically and in terms of participation. Questions thus persist as to how MPAs (and other area-based measures) can be brought under an integrated protection scheme both within a particular sector and beyond and, more importantly, how cooperation and coherence, or harmonisation, between competent management authorities can be shaped in order to cross the sectoral divide.129 Whether these questions are answered by the adoption of the proposed implementing agreement on the conservation and sustainable use of marine biodiversity in ABNJ (the proposed BBNJ Agreement) remains to be seen. 4.2

Addressing Plastic Pollution in the Marine Environment

The definition of marine pollution refers to any substances or energy introduced by humans either directly or indirectly into the marine environment from any source, which results or is likely to result in harm to marine life, hazards to human health, impairment of water quality or interference with maritime activities.130 This expansive definition has allowed the focus to

Becker-Weinberg, Chapter 20 in this volume. PJS Jones and EM De Santo, ‘Viewpoint – is the race for remote, very large marine protected areas (VLMPAs) taking us down the wrong track?’ (2016) 73 Marine Policy 231-234. 126 MD Spalding and others, ‘Building towards the marine conservation end-game: consolidating the role of MPAs in a future ocean’ (2016) 26 (Suppl. 2) Aquatic Conservation: Marine and Freshwater Ecosystems 185-199. 127 R Devillers and others, ‘Reinventing residual reserves in the sea: are we favouring ease of establishment over need for protection?’ (2015) 25(4) Aquatic Conservation: Marine and Freshwater Ecosystems 48-504; P Leenhardt and others, ‘The rise of large-scale marine protected areas: conservation or geopolitics?’ (2013) 85 Oceans and Coastal Management 112-118; J Lubochenko and K Grorud-Colvert, ‘Making waves; the science and politics of ocean protection (2015) 350(6259) Science 382-383; AN Rife and others, ‘When good intentions are not enough…Insights on networks of ‘paper parks’ marine protected areas’ (2013) 6(3) Conservation Letters 200-212. 128 SC Gall and LD Rodwell, ‘Evaluating the social acceptability of Marine Protected Areas’ (2016) 65 Marine Policy 30-38, 30. 129 Rayfuse, Chapter 14 in this volume. 130 LOSC, Art. 1(1)(4). 124 125

International marine environmental law in the 21st century  21 broaden from oil pollution to a vast range of both noxious and non-toxic substances including sewage, agricultural run-off, chemical waste, cleaning agents, petroleum products and garbage. Increasingly, concerns are being expressed about other forms of marine pollution including noise131 and artificial light,132 as well as the amounts of antibiotics,133 caffeine134 and sunscreen135 affecting the marine environment and its living organisms. One particular pollutant of current global concern is plastic. Plastics are ubiquitous in terrestrial and marine environments, in human bodies and in the atmosphere.136 Entanglement in and ingestion of plastics is known to account for the deaths of millions of marine organisms, including sea birds, marine mammals, turtles and fish, annually.137 In addition to plastic litter, ingestion of microplastics, produced either for industrial purposes or as a by-product of the breakdown of larger pieces of plastic, poses a serious threat to both marine biota and humans, although the full extent of the adverse impacts and their downstream impacts on human health are not yet fully understood.138 One concerning estimate suggests that by 2050, the weight of plastics in the ocean will exceed that of fish.139 Between 8 million and 12 million tonnes of plastic make their way into the ocean each year accounting for up to 80 percent (and in some places up to 95 percent) of all debris entering the ocean.140 The occurrence of plastic in the marine environment is now so pervasive that it has been found in the deepest parts of the ocean.141 Marine plastic debris is now recognised 131 Abir Chahouri, Nadia Elouahmani and Hanan Ouchene, ‘Recent progress in marine noise pollution: A thorough review’ (2022) 291 Chemosphere 132983. 132 T J Smyth and others, ‘A global atlas of artificial light at night under the sea’ (2021) 9(1) Elementa Science of the Anthropocene 00049; Carolyn Gramling, ‘Even the sea has light pollution. These new maps show its extent’, ScienceNews, 17 March 2022 . 133 Sisi Liu and others, ‘Bioaccumulation and tissue distribution of antibiotics in wild marine fish from Laizhou Bay, North China’ (2018) 631-632 Science of the Total Environment 1398. 134 LR Vieira, AMVM Soares and R Freitas, ‘Caffeine as a contaminant of concern: A review on concentrations and impacts in marine coastal systems’ (2022) 286 Chemosphere 131675 . 135 Samuele Caloni and others, ‘Sunscreens’ UV Filters Risk for Coastal Marine Environment Biodiversity: A Review’ (2021) 13(8) Diversity 374. 136 Chelsea M Rochman and Timothy Hoellein, ‘The global odyssey of plastic pollution’ (2020) 368(6496) Science 1184; Antonio Ragusa and others, ‘Plasticenta: First evidence of microplastics in human placenta’ (2021) 146 Environment International 106274. 137 Murray R Gregory, ‘Environmental implications of plastic debris in marine settings – entanglement, ingestion, smothering, hangers-on, hitch-hiking and alien invasions’ (2009) 364(1526) Philosophical Transactions of the Royal Society B 2013. 138 GESAMP (2016) ‘Sources, fate and effects of microplastics in the marine environment: part two of a global assessment’ (PJ Kershaw and CM Rochman eds) (IMO/FAO/UNESCO-IOC/UNIDO/WMO/ IAEA/UN/ UNEP/UNDP Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection). Rep. Stud. GESAMP No. 93. 139 World Economic Forum, The New Plastics Economy: Rethinking the Future of Plastics (January 2016) 7, ; Jenna R Jambeck, ‘Plastic Waste Inputs from Land into the Ocean’ (2015) 6223 Science 347. 140 J Boucher and D Friot, Primary Microplastics in the Oceans: A Global Evaluation of Sources (IUCN 2017). 141 Rebecca Morelle, ‘Mariana Trench: Deepest-ever sub dive finds plastic bag’, BBC News, 13 May 2019 ; Sanae Chiba and others, ‘Human Footprint in the Abyss: 30 year records of deep-sea plastic debris’ (2018) 96 Marine Policy 204-212. See also, AJ Jamieson and others ‘Microplastics and synthetic particles ingested by deep-sea amphipods in

22  Research handbook on international marine environmental law as a serious global environmental problem negatively affecting the entire marine ecosystem and all ocean users142 and posing a potential planetary boundary threat.143 The environmental, economic and social impacts of marine debris in general, and marine plastic debris in particular, have been well documented in recent years. However, the ubiquitous origins and global effects of marine plastic debris make it difficult to regulate and control in the context of the current State-based, sectoral approach to ocean management. Up to 20 percent of marine plastic debris originates from sea-based activities such as fishing, aquaculture, shipping, and ocean dumping.144 Of particular concern is the problem of abandoned, lost or discarded fishing gear (ALDFG) which consists mostly of plastic and synthetic materials that do not degrade in seawater. ALDFG is estimated to account for up to 60 percent of ship-source plastic debris145 and one tenth, by volume, of all marine debris.146 At the global level, while admittedly not perfect, significant work has been undertaken under the auspices of the IMO and the FAO to address the problem of ship-source plastic pollution, including ALDFG, through the adoption of both binding and non-binding instruments.147 However, the majority of plastic pollution originates on land, which means the law of the sea cannot adequately regulate it. Notably only three of the 320 provisions in the LOSC refer specifically to land-based sources of pollution.148 This lack of ‘regime focus’ in the LOSC is hardly surprising given the LOSC’s role as the ‘constitution for the oceans’.149 However, when combined with the multiplicity of anthropogenic land-based sources of marine pollution, this lack of regime focus results not only in the need for cross-sectoral cooperation and collaboration within the law of the sea, but also for broader coordinated approaches beyond the law of the sea involving both State and non-State actors, the private sector and civil society. To date, coordination on the issue of land-based sources of marine pollution in general and plastics in particular has largely been carried out under the auspices of the UN Environment Programme (UNEP) and the non-legally binding Global Programme of Action for the six of the deepest marine ecosystems on Earth’ (2019) 180667 Royal Society Open Science 6 . 142 UNEP, Marine Litter: A Global Challenge (2009); UNEP, Resolution on Marine Plastics and Microplastics, UNEP/EA.4/L.7, 14 March 2019; UN, Report of the Secretary General on Oceans and the Law of the Sea, UN Doc A/71/74, 22 March 2016. 143 P Villarrubla-Gómez and others, ’Marine Plastic Pollution as a Planetary Boundary Threat – The Drifting Piece in the Sustainability Puzzle’ (2018) 96 Marine Policy 213. 144 Julien Boucher and Damien Friot, Primary Microplastics in the Oceans: A Global Evaluation of Sources (IUCN 2017). 145 C Morales-Caselles and others, ‘An inshore–offshore sorting system revealed from global classification of ocean litter’ (2021) 4 Nature Sustainability 484–493. 146 G MacFayden, T Huntington and R Cappell, ‘Abandoned, lost or otherwise discarded fishing gear’ in UNEP Regional Sea Reports and Studies, No 185; FAO Fisheries and Aquaculture Technical Paper, No 523 (UNEP/FAO 2009). 147 Karen N Scott, ‘From Ocean Dumping to Marine Geoengineering: The Evolution of the London Regime’, Chapter 11 in this volume; Rosemary Rayfuse, ‘Informal Lawmaking as a Panacea in the Absence of Regime Focus? Marine Debris, Plastics and Microplastics’ in Natalie Klein (ed) Unconventional Lawmaking in the Law of the Sea (OUP 2022) 290. 148 LOSC, Arts 194, 207 and 213. 149 Usually attributed to Tommy Koh, this term was used earlier by Elisabeth Mann Borgese. See, Elisabeth Mann Borgese, ‘A Constitution for the Oceans’ in Elisabeth Mann Borgese and David Kreiger (eds), The Tides of Change: Peace, Pollution and the Potential of the Oceans (Mason/Charter 1975) 340.

International marine environmental law in the 21st century  23 Protection of the Marine Environment from Land-based Activities, although some binding agreements have been adopted at the regional level.150 In her chapter in this book, Oral describes the efforts that have been made to deal with land-based sources of marine pollution in the Mediterranean under the auspices of the Barcelona Convention.151 However, current international law on plastic pollution is insufficient and, as Churchill notes in his chapter, what little law exists is poorly enforced.152 In recognition of the fact that the ubiquitous and pervasive problem of plastic pollution requires a global response, on 2 March 2022, the United Nations Environment Assembly adopted a resolution to commence negotiations on an international legally binding treaty to ‘end plastic pollution’ by the end of 2024.153 The new treaty is envisaged as applying to all sources of plastic pollution (land-based or otherwise) in order to achieve the ‘long-term elimination of plastic pollution, in marine and other environments’.154 Key to the success of the treaty will be a life-cycle approach to plastic pollution that addresses production, consumption, and circularity of plastics.155 This will require concerted effort and cooperation across land-based and ocean-based industries and regimes to address the range of sources of plastic pollution. 4.3

Addressing the Impacts of Climate Change on the Marine Environment

Climate change is the consequence of the accumulation of greenhouse gases in the atmosphere causing atmospheric warming. As the atmosphere has warmed, so too, has the ocean, with over 90 percent of this heat increase having been absorbed by the ocean through natural processes.156 This has led to ocean warming and deoxygenation. Ocean warming is associated with changes in species composition, abundance, distribution and interaction, and is exacerbated in some ecosystems by the impacts of fishing. Ocean warming also affects biomass production and ecosystem structure and functioning. Deoxygenation only compounds these impacts.157 Although the impacts on marine ecosystems and ecosystem services are regionally diverse, the rate and magnitude of decline in global biomass of marine animals is projected to be the highest in the tropics.158 Global warming also increases extreme weather events, which can affect ocean industries from ports to fishing.159 The most prevalent greenhouse gas by volume is CO2, derived primarily from the burning of fossil fuels and land use changes. As with heat, the ocean absorbs approximately 28 percent of atmospheric CO2 through natural processes.160 As atmospheric CO2 concentrations have See, Rayfuse, ‘Informal Lawmaking as a Panacea in the Absence of Regime Focus?’ (n 147). Oral, Chapter 7 in this volume. 152 Churchill, Chapter 2 in this volume. 153 UNEP/EA.5/L.23/Rev.1 (n 80). 154 Ibid, Preamble. 155 Simon and others (n 96). 156 IPCC, SROCC (n 1). See also, Lijing Cheng and others, ‘Improved Estimates of Ocean Heat Content from 1960 to 2015’ (2017) 3 Science Advances, e1601545. 157 IPCC, SROCC (n 1). 158 Ibid, 22. 159 Techera, Chapter 8 in this volume. 160 Dan Laffoley and others, ‘Ocean Acidification: Scientific Understanding and Challenges’ in David VanderZwaag, Nilüfer Oral and Tim Stephens, Research Handbook on Ocean Acidification Law and Policy, (Edward Elgar 2021) 11. 150 151

24  Research handbook on international marine environmental law increased, the ocean has absorbed ever increasing amounts of CO2 at a growing rate leading to ocean acidification. Ocean acidification is not the same as climate change and reducing emissions of greenhouse gases other than CO2 will have no effect on it. While uncertainty remains as to the overall long-term impact of ocean acidification at the ecosystem scale, significant negative impacts include reduced survival, impaired calcification, slowed growth and development rates, altered behaviour and predator-prey interactions and decreased abundance.161 Of particular concern is the possibility of exceeding biological ‘tipping points’ beyond which fundamental changes in ecosystem structure and function will occur, causing major impacts on oceanic food webs and thus on human food security.162 There is no question that greenhouse gas emissions and the absorption of CO2 into the ocean constitute a form of atmospheric pollution that States are required by Article 212 of the LOSC to prevent, reduce and control. However, like plastic pollution, addressing the impacts of climate change on the marine environment is a challenge that cannot be adequately addressed by international marine environmental law alone. Reducing greenhouse gas emissions is the remit of the international climate regime established by the UNFCCC and the Paris Agreement. Until recently, the ocean had received little attention in the climate regime, which is primarily concerned with the atmospheric effect of emissions, not their effect on the oceans. Indeed, the only mention of the ocean in the UNFCCC relates to the obligation to promote and cooperate in the conservation and enhancement of ‘sinks’, including the oceans.163 This provision has been read as meaning not only that parties must act to enhance the passive absorption of anthropogenic CO2 into the oceans but that they may also act to encourage the active sequestration of CO2 into the oceans.164 With respect to the latter, sub-seabed sequestration of CO2 is now regulated, albeit imperfectly, under the dumping regime as will be, assuming the relevant amendments ever come into force, the deliberate fertilisation of the ocean with iron or other nutrients in order to create a phytoplankton bloom with the aim of drawing down CO2 into the deep ocean. Scott’s chapter offers an in-depth discussion of this expansion of the dumping regime.165 With respect to the former, however, sequestering ever greater amounts of CO2 into the ocean can serve only to exacerbate ocean acidification. While the problem of ocean acidification has been acknowledged in a number of law of the sea regimes, including the dumping regime, the OSPAR Commission for the Protection of the Marine Environment of the North East Atlantic166 and the Commission on the Conservation of Antarctic Marine Living Resources,167 nowhere does the law of the sea acknowledge ocean acidification as a regime focus or provide for a concerted, coherent response to the problem. Moreover, while the preamble to the Paris Agreement notes the importance of ensuring the Ibid. IPCC, SROCC (n 1). 163 UNFCCC, Art. 4(1)(d). 164 Scientific Committee on Ocean Research and International Oceanographic Committee, ‘The Ocean in a High CO2 World’ (2004) 17 Oceanography 72. 165 See, Scott, Chapter 11 in this volume. 166 Kerry Tetzlaff, ‘Regional Seas Programs and Ocean Acidification’ in David L VanderZwaag, Nilüfer Oral and Tim Stephens (eds), Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 94. 167 Rosemary Rayfuse, ‘Regional Fisheries Bodies and Ocean Acidification’ in David L VanderZwaag, Nilüfer Oral and Tim Stephens (eds), Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 123. 161 162

International marine environmental law in the 21st century  25 integrity of all ecosystems, including oceans, the issue of ocean acidification continues to receive scant attention in the climate regime.168 Harrould-Kolieb and Stephens acknowledge that, ultimately, the appropriate place to deal with ocean acidification is probably within the climate regime but that a more purposive and integrated form of cross-sectoral governance is needed that both explicitly recognises ocean acidification and explicitly addresses its effects. They conclude, however, that at present ‘there is an absence of purposive regulation that would result in a substantial change in the trajectory of the problem [of ocean acidification] or alleviate its effects’.169 This absence of action, both within the law of the sea and the climate regime, is out of step with the urgency needed to avoid global warming beyond 1.5C. In fact, limiting the effects of climate change will require concerted effort across industries and regimes. This undertaking needs to include the shipping industry reducing its greenhouse gas emissions. Here, too, regime focus has been an issue, although Ringbom notes the decades-old debate as to whether greenhouse gas emissions from ships should be dealt with in the climate regime or by the IMO in the context of its role as chief regulator of global shipping including in respect of vessel-source pollution has, for now at least, been decided in favour of the IMO.170 Given the importance of shipping to the global economy and the continuing growth of shipping as an industry, increasing engine efficiency and reducing emissions represent significant potential contributions to the overall global reduction of greenhouse gases. Since the early 2000s, the IMO has adopted a number of technical and operational measures aimed at reducing exhaust and greenhouse gas emissions from ships, although these measures still fall short of what is needed to ‘bring shipping in line with the targets of the Paris Agreement, or even reduce the overall emissions of the sector in view of the projected growth in international trade’.171 It remains to be seen whether the IMO’s comprehensive strategy on the reduction of greenhouse gas emissions from ships, to be adopted in 2023, will be any more successful. In any event, Ringbom notes that technical and socio-economic issues as well as political divisions among the member States will play a key role in determining both the content and the successful implementation of the strategy. An illustration of the impacts of technical, socio-economic and political divisions on negotiations in the IMO when responding to climate change is provided by reference to the development of the ban on the carriage and use of heavy fuel oil in the Arctic discussed by Henriksen in his chapter.172 Perhaps the most widely publicised impact of ocean warming has been the opening up of hitherto ice-bound shipping routes in the Arctic.173 Indeed, changes to the ice pack as a result of climate change have already turned speculation about the possibility of safe, albeit still seasonal, trans-Arctic shipping, into a reality.174 Increased shipping

Ellycia R Harrould-Kolieb, ‘Implications of the Paris Agreement for action on ocean acidification within the UNFCCC’ in David L VanderZwaag, Nilüfer Oral and Tim Stephens (eds) Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 24. 169 Harrould-Kolieb and Stephens, Chapter 12 in this volume, 287. 170 Ringbom, Chapter 9 in this volume. 171 Ibid. 210. 172 Tore Henriksen, ‘Regulating Shipping Under Conditions of Uncertainty: The Arctic Ocean and Knowledge Based Decision-Making’, Chapter 10 in this volume. 173 Rosemary Rayfuse, ‘Climate Change and the Poles’ in Karen N Scott and David L VanderZwaag (eds) Research Handbook on Polar Law (Edward Elgar 2020) 413. 174 Ibid. 168

26  Research handbook on international marine environmental law activity, however, raises the potential for increased numbers of shipping accidents with their attendant detrimental human and environmental impacts. The IMO’s Polar Code,175 which came into force as from 1 January 2017, establishes standards and requirements to ensure that vessels operating in Polar waters are ‘fit for purpose’ in order to minimise potential safety and environmental hazards. In truth, the Polar Code is not a single document but rather a collection of amendments to the SOLAS and MARPOL Conventions, imposing safety and environmental norms on cargo vessels of 500 GT or more and on all passenger vessels operating in Polar waters.176 The Polar Code sets out uniform mandatory technical requirements relating to vessel design, construction, materials standards and certification depending on the ice classification of the vessel. The Polar Code also sets out mandatory requirements relating to ship-board equipment and communication systems as well as crew training. In particular, ships must be capable of receiving up-to-date information about ice conditions to ensure safe vessel operations and voyage planning.177 When adopted, the Polar Code did not prohibit the use or carriage of heavy fuel oil (HFO), but merely discouraged it.178 This failure is relevant because the use of HFO in ship engines results in the highest amount of black carbon (or soot) emissions compared to all other fuels.179 Black carbon is the second largest contributor, after CO2, to human-induced climate change,180 and has been described by the Arctic Council as ‘the most significant threat from ships to the Arctic marine environment.’181 HFO continues to be the most consumed fuel in the Arctic and black carbon emissions are expected to continue to rise, thereby exacerbating Arctic warming primarily by decreasing the albedo of Arctic snow and ice.182 The use and carriage of HFO has been prohibited in Antarctic waters since 2011.183 The ban on the use and carriage of HFO as fuel has finally been extended to the Arctic as well through its inclusion in the Polar Code, albeit subject to a ‘delayed phase-in period’ that will not see it fully implemented until 2029. Another part of the puzzle on climate change is the need to ensure that ocean industries do not reduce the ocean’s ability to store carbon. Disturbing the seafloor sediments on an industrial scale, such as through bottom trawling or seabed mining, can reduce the seabed’s carbon

Polar Code (n 70). For general discussion, see, Heike Deggim, ‘The International Code for Ships Operating in Polar Waters (Polar Code)’ in Lawrence P Hildebrand, Lawson W Brigham and Tafsir M Johansson (eds) Sustainable Shipping in a Changing Arctic, WMU Studies in Maritime Affairs 7 (Springer 2018) 15. 177 Polar Code (n 70) Part I-A. 178 Ibid, Part II-B. 179 Bryan Comer and others, Prevalence Of Heavy Fuel Oil and Black Carbon in Arctic Shipping, 2015 to 2025 (International Council of Clean Transportation, Washington, DC 2017) . 180 TC Bond and others, ‘Bounding the Role of Black Carbon in the Climate System: A Scientific Assessment’ (2013)118(11) JGR Atmospheres 5380. 181 Protection of the Arctic Marine Environment (PAME), Arctic Marine Shipping Assessment 2009 Report (Arctic Council 2009). 182 Comer and others (n 179) iv. 183 Decision 8 (2005), Use of Heavy Fuel Oil (HFO) in Antarctica, Final Report of the Twenty-Eighth Antarctic Treaty Consultative Meeting (ATCM-XXVIII Stockholm, 6-17 June 2005), 367; MARPOL, Annex I Regulation 43 (into force 1 August 2011, as amended in 2014). 175 176

International marine environmental law in the 21st century  27 storage.184 In recognition of the importance of intact seafloor ecosystems, seabed restoration of seagrasses and mangroves is practised, for example, in the Mediterranean, where climate change is having particularly acute effects, as Oral discusses in her chapter.185 In sum, as will be readily apparent, the ocean can be viewed as both a victim and a saviour in the climate change context. Responding to both these aspects requires legal frameworks that address the consequences not just of climate change but also of our mitigation and adaptation responses to it that must be integrated across all sectors. Moreover, the actual and anticipated differences in the extent and nature of climate change impacts on differing marine areas give rise to the need for diversified and regional approaches that are sensitive to local conditions. The chapters by Techera and Oral in this volume demonstrate both the potential for and the challenges associated with developing such regional approaches.

5.

THE ROLE OF SCIENCE AND EMERGING TECHNOLOGIES

A final theme emerging from the chapters in this book relates to the role of science and technology in the protection of the marine environment. Humans have used technology to explore and exploit the ocean and its resources since time immemorial. Sailors, fishers, miners, architects, engineers, and even warriors, have all played a role in the ‘dramatic endeavour’186 that is the history of ocean technology.187 Today, a dizzying array of technologies allow us to plumb the ocean’s depths, to navigate on, in and under the ocean, and to exploit the living and non-living resources of the water column, seabed and sub-seabed. New capabilities and new technologies continue to open up entirely new vistas of contemporary and prospective ocean uses. There is no doubt that new technologies have an important role to play in protecting and preserving the marine environment. Robotics, satellites, sensors, artificial intelligence, communication technologies and big data all provide new and better tools for marine observation, classification and mapping of ecological features, mapping and analysis of human activities and pressures, and improved monitoring, compliance and enforcement.188 New technologies can be used to improve our knowledge and understanding of the components of the marine environment and its processes. Increasingly sophisticated ship-based technologies are now being used for marine scientific research, including autonomous, human-occupied and remotely operated submersibles, which enable deeper and more detailed explorations of the marine environment.189 Submersible suction collectors enable collection of samples of the unique and fragile organisms found in the deep ocean. New observing systems and sensors,

Lisa A Levin and others, ‘Climate Change Considerations Are Fundamental to Management of Deep-Sea Resource Extraction’ (2020) 26(9) Global Change Biology 4664; Trisha B Atwood and others, ‘Global Patterns in Marine Sediment Carbon Stocks’ (2020) 7(March) Frontiers in Marine Science 1. 185 Oral, Chapter 7 in this volume. 186 Elisabeth Mann Borgese, The Drama of the Oceans (HN Abrams 1975) 83-188. 187 Johnston (n 13) 37. 188 Ralph Rayner, Claire Jolly and Carl Gouldman, ‘Ocean Observing and the Blue Economy’ (2019) 6 Frontiers in Marine Science 330; Enrica Zereik and others, ‘Challenges and Future Trends in Marine Robotics’ (2018) 46 Annual Reviews in Control 350. 189 For information on these technologies and tools and their applications see, NOAA, ‘Exploration Tools’ . 184

28  Research handbook on international marine environmental law such as sondes (small self-contained radio transmitters), CTDs (electronic instruments that measure conductivity, temperature and depth), floats, drogues and drifters, including Argo robotic floats, and acoustic doppler current profilers provide specific information about the ocean environment. Technologies for ocean acoustic monitoring detect acoustic signals from marine mammals, earthquakes and ships. Sophisticated net systems enable collection of intact benthic communities on seamounts, hydrothermal vents and the seafloor. Passive sampling devices like semipermeable membrane devices are used to monitor trace levels of organic contaminants while trawls are used to collect qualitative data on marine organisms including fish. Satellites and other airborne technologies, too, have a role to play in observing different characteristics and features of the ocean. In addition to improving our knowledge of the oceans, new technologies can contribute to reducing the environmental footprint of ocean industries, including the greening of ship design, construction and operation.190 Advanced rudder and propellor systems and effective anti-fouling systems help to reduce fuel consumption and thus polluting emissions. The use of LNG fuel for propulsion can further reduce (albeit not eliminate) air pollution from ships and, while it may be impracticable to expect a complete phase out of conventional fuels, retrofitted exhaust gas scrubbers and recirculation systems can significantly reduce the amount of polluting sulphur oxide (SOx) and nitrogen oxide (NOx) emissions from ships.191 Double hull tankers, oily-water separators and ‘no ballast’ ships are all designed to combat the negative environmental impacts of accidental and operational discharges from ships and the global transport and exchange of ballast water. Smart robotic technology is also hoped to significantly lower the potential environmental impacts of future deep seabed mining.192 New technologies can also be used to improve ocean management and ecosystem health.193 New generations and applications of geographic information systems are providing improved spatial analysis of ocean areas for the purpose of marine spatial planning. Data are used to visualise marine ecosystems as a basis, for example, for climate change impact studies, biodiversity priority setting, and studies on the responses of ecosystems to influences such as ocean acidification and other marine pollutants. New and improved technologies operated from a wide range of platforms and utilising the latest developments in computing and information systems technology are being used to support ecosystem classification and mapping, identify sensitive habitats, monitor threatened species, and understand human impacts in the ocean. The data provided by these technologies are critical to the design and implementation of ecosystem-based management, EIA and the adoption of marine protected areas. 190 See, eg, Mohit Kaushik, ‘14 Technologies to Make the Ultimate Green Ship’, Green Shipping (last updated 1 May 2020) . 191 See also, Ringbom, Chapter 9 in this volume. 192 ‘Impossible Mining’ . 193 See, eg, Sarah Carr, ‘New Technologies for improving ocean management and ecosystem health’, The SKIMMER on Marine Conservation and Management, 3 April 2017 . See also, J Leape and others, ‘Technology, Data and New Models for Sustainably Managing Ocean Resources’, World Resources Institute (2020) and Gretchen E Hofmann and Steven D Gaines, ‘New Tools to Meet New Challenges: Emerging Technologies for Managing Marine Ecosystems for Resilience’ (2008) 58(1) BioScience 43-52  .

International marine environmental law in the 21st century  29 New technologies are also increasingly providing tools to effectively monitor and enforce.194 Instrument, or even animal-based, sensors can provide evidence of damage, or of non-compliance with environmental regulations. Vessel monitoring and remote sensing systems can detect unlawful activity, while sophisticated software systems can analyse compliance. Citizen-based web platforms, such as Global Fishing Watch,195 can track, monitor, and publicise vessel movements and provide evidence of non-compliance to anyone with a computer or the relevant app, while complex algorithms can reduce the time needed to review video and other information from monitoring systems to enable more effective enforcement. New technologies can even help us clean up the ocean, remove human detritus and combat ocean acidification and climate change.196 In short, technologies help us understand the ocean and see what activities are taking place. They can be used to protect the ocean from accidental or intentional damage, over-exploitation and other adverse anthropogenic impacts and to help us take action against those who do not play by the rules in order not only to reduce but also to remediate environmental damage caused. Unfortunately, however, many of these exciting innovations also carry risks themselves. As problems such as overfishing, marine pollution, destruction of vulnerable marine habitats, and increasing ocean acidification make clear, some technological developments, both marine-based and land-based, cause harm to the marine environment. The indescribably diverse range of ever-emerging technological advances gives rise to a correspondingly diverse range of ever-evolving legal issues. The example of ocean fertilisation, discussed in Scott’s chapter, serves as a prime example.197 Proliferation of, and access to, marine technology also raises equity concerns. As Woker, Roland Holst and Harden-Davies note, access to marine genetic resources, remote sensing and other enforcement technology can confer privileges on wealthy actors and States.198 The LOSC attempts to address this imbalance through its provisions on transfer of marine technology, though their implementation has been largely disappointing. Similarly, the LOSC aims to increase access to, and participation in, marine scientific research for developing States including through research cooperation.199 However, as Hubert discusses, until recently, there has been little focus on assessing the success of these provisions and on assisting developing States to expand their marine scientific research capacities.200 The approach of the law of the sea to technological development has traditionally been reactive rather than proactive.201 However, as demonstrated by the emergence of the legal 194 See, eg, Olaf Trieschmann, ‘Illegal Oil Spills from Ships: monitoring by Remote Sensing’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 213-229. 195 See, Global Fishing Watch, . 196 See, eg, ‘The Ocean Clean up, working to rid the ocean of plastics’ . See also, Hilde J Woker, Rozemarijn J Roland Holst and Harriet Harden-Davies, ‘New Technology and the Protection of the Marine Environment’, Chapter 18 in this volume. 197 Scott, Chapter 11 in this volume. 198 Woker, Roland Holst, and Harden-Davies, Chapter 18 in this volume. 199 See, eg, LOSC, Arts 143, 202, 242 and 244(2). 200 Anna-Maria Hubert, ‘Marine Scientific Research and the Protection of the Seas and Oceans’, Chapter 17 in this volume. 201 Rosemary Rayfuse, ‘Public International Law and the Regulation of Emerging Technologies’ in Roger Brownsword, Eloise Scotford and Karen Yeung (eds) The Oxford Handbook of Law, Regulation

30  Research handbook on international marine environmental law regime for deep seabed mining, the mere expectation of future technological development can also provide the impetus for the development of the law.202 In recent decades, as science and technological research have developed in power and capacity to transform the marine environment on a long-term and even permanent basis, the law of the sea has increasingly been called upon to proactively develop new forms of international regulation and governance capable, on the one hand, of promoting and harnessing the positive power of novel and emerging technologies and, on the other hand, of anticipating, assessing, minimising and mitigating the risks such technologies may pose to the marine environment. One tool that has become particularly useful for determining and analysing the likely environmental impacts of human activities, developing mitigation measures, and identifying activities that should not be authorised to proceed because the impacts will either be too severe or too uncertain, is that of environmental impact assessment (EIA). Part XII of the LOSC includes the obligation to monitor the risks or effects of pollution203 and, importantly, to carry out EIAs when States have reason to believe that planned activities that are under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment.204 The point of conducting an EIA is to ensure that the proposed activity, including its manner of execution, is appropriate to the environmental context in which it is to be carried out. Moreover, as Craik and Gu highlight, EIAs offer an avenue for the public to have a say in marine governance decisions.205 Importantly, the obligation to conduct an EIA articulated in Article 206 of the LOSC does not require any transboundary context. As confirmed by the Seabed Disputes Chamber of ITLOS in the Seabed Advisory Opinion the obligation to conduct an EIA can be triggered in situations involving activities – including the use of new technologies – regardless of where the pollution or significant and harmful changes are expected to occur.206 The general EIA obligation has been made more specific in some global agreements and in some sector-specific and regional agreements but there remain significant gaps with respect to a number of activities that have the potential to cause significant impacts to the marine environment, including seabed activities other than deep seabed mining and bottom trawling.207 With respect to the former, assessments of the environmental impacts of activities in the Area are mandated by the provisions of Part XI of the LOSC and its 1994 Implementing Agreement and have now been recognised as an obligation under customary international law.208 Detailed regulations for the conduct of such assessments have been incorporated into the ISA’s Exploration Regulations and are the subject of intense discussion in the ongoing and Technology (OUP 2017) 500. 202 Aline Jaeckel and Rosemary Rayfuse, ‘Conceptions of Risk in an Institutional Context: Deep Seabed Mining and the International Seabed Authority’ in Mónika Ambrus, Rosemary Rayfuse and Wouter Werner (eds), Risk and the Regulation of Uncertainty in International Law (OUP 2017) 161-176, 161-162. 203 LOSC, Art. 204. 204 LOSC, Art. 206. 205 Neil Craik and Kristine Gu, ‘Implementing Environmental Impact Assessment in Areas Beyond National Jurisdiction: Epistemic, Institutional and Normative Challenges’, Chapter 19 in this volume. See also, Ardron, Lily and Jaeckel, Chapter 16 in this volume. 206 Seabed Advisory Opinion (n 54) para 145. 207 E Druel, ‘Environmental impact assessments in areas beyond national jurisdiction’ Studies No 01/13 (IDDRI 2013). 208 Seabed Advisory Opinion, (n 54) para. 145.

International marine environmental law in the 21st century  31 negotiation of its exploitation regulations.209 With respect to the latter, assessment of the adverse impacts of bottom fishing activities on vulnerable marine ecosystems is required by UN Resolution210 and detailed EIA requirements have been developed in the FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas211 and adopted by a number of RFMOs. Nevertheless, objectively determining that harm thresholds have been or will be exceeded is challenging, particularly in ABNJ ‘due to a lack of baseline data, highly complex system interactions, and the introduction of novel activities that have no clear analogues from which assessment professionals can draw’.212 Moreover, no requirement exists to assess the cumulative impacts of human activities in ABNJ or to conduct cross- or inter-sectoral assessments. Instruments setting out specific EIA implementing provisions thus remain required to ensure appropriate assessment of the potential adverse impacts of new technologies on the marine environment. The current negotiations on the proposed BBNJ Agreement may result in the establishment of a default mechanism for the assessment and regulation of new and emerging activities as well as those not currently covered by EIA requirements and/or a standardised model for EIA requirements.213 However, as currently conceived, this would complement, rather than negate, the need for existing sectoral and regional EIA processes. In short, determining whether, and if so when, and how, the law should adapt in the face of technological evolution presents a number of challenges. As a policy matter it involves the balancing of economic and technological growth against environmental risks. This effort, as Ardron, Lily and Jaeckel write, should reflect public opinion.214 At the doctrinal level, it involves assessing the adequacy of pre-existing legal categories to determine whether a changed legal response is both appropriate and needed.215 In other words, do we actually need new law or does the existing law adequately address the situation? Is this a situation in which environmental protection may be better served by changed practices or, perhaps, by a total ban on particular activities? Such assessments can be particularly complicated where uncertainty and limited knowledge exist about the risk the new technology presents. Nevertheless, the common legal feature of all such assessments is that these technologies and their uses are subject to the general principles set out in Part XII of the LOSC, including the obligation in Article 192 to protect and preserve the marine environment and the obligation in Article 196 to take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under the State’s jurisdiction or control that may cause significant and harmful changes thereto. 209 A Jaeckel, The International Seabed Authority and the Precautionary Principle: Balancing Deep Seabed Mining and Marine Environmental Protection (Brill, Nijhoff 2017) 230-251. 210 UNGA, ‘Sustainable Fisheries’, UN Doc A/RES/61/105, 6 March 2007. 211 FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (FAO 2008). 212 Craik and Gu, Chapter 19 in this volume 429. 213 See, President’s Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, 18 November 2019, A/CONF.232/2020/3 . 214 Ardron, Lily and Jaeckel, Chapter 16 in this volume. 215 Gregory N Mandel, ‘Legal Evolution in Response to Technological Change’ in Roger Brownsword, Eloise Scotford and Karen Yeung (eds), The Oxford Handbook of Law, Regulation and Technology (OUP 2016) 225, 226.

32  Research handbook on international marine environmental law

6.

CONCLUDING REMARKS

We conclude by coming full circle to Churchill’s question as to whether the LOSC is still relevant to the protection of the marine environment. In short, the answer is yes. However, as the chapters in this book demonstrate, neither the LOSC nor the broader corpus of international marine environmental law can ‘go it alone’ any longer. The major challenges facing the ocean today – biodiversity, plastic pollution and climate change and associated ocean acidification – can only be addressed with cooperation between sectors and across regimes.

2. The UN Convention on the Law of the Sea – still relevant to protection of the marine environment? Robin Churchill1

1. INTRODUCTION The marine environmental issues of perhaps the greatest contemporary concern, all of which are the product of human actions, are the sharp decline in marine biodiversity;2 the pollution of the sea by plastics and microplastics; and the impact on the marine environment of increasing emissions of greenhouse gases from anthropogenic sources.3 The main causes of marine biodiversity loss are fishing (through the overfishing of some target species, the injury or killing of large numbers of non-target species, and damage to habitats caused by trawling on or close to the seabed); various forms of pollution; and uncontrolled development of coastal areas, resulting in the destruction of important habitats such as mangrove swamps and salt marshes. Plastic pollution of the oceans contributes to biodiversity loss through plastic materials being ingested by or entangling marine fauna, as well as causing damage to sensitive habitats such as coral reefs, and fouling beaches.4 The consequences of increasing anthropogenic emissions of greenhouse gases include warming waters (which disrupt marine ecosystems by bleaching coral, killing some species of fauna and displacing many others from their traditional habitats); acidification of seawater (which inhibits the development of coral and other species that require calcium carbonate to form their shells); deoxygenation of seawater (which inhibits the

This chapter is less a revised and updated version of my chapter for the previous edition of this book and more a new contribution. While examining some of the same issues as the earlier chapter, it does so from a different perspective. This has been prompted in part by changes in my own views on the environmental role of the LOSC and in part by various legal developments since the earlier chapter was written. I am very grateful to the editors of this book for their helpful comments on a previous draft of this chapter. All websites referred to in this chapter were last accessed on 20 March 2022. 2 For the details of such decline, see Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services, Global Assessment Report on Biodiversity and Ecosystem Services: Summary for Policymakers (2019) (ISPPBES, Global Assessment Report); United Nations (UN), The Second World Ocean Assessment (2021), Chs 6 and 7 ; UN Environmental Program (UNEP), Global Biodiversity Outlook 5 (2020), especially 58-64, 70-86 and 156-158. 3 The UN General Assembly (UNGA) also regards these three issues as ‘some of the greatest environmental concerns of our time’. See its annual resolutions on ‘Oceans and Law of the Sea’ in recent years, eg, UNGA, Oceans and the Law of the Sea, UN Doc A/RES/75/239, 5 January 2021, para. 219. 4 See further, Pew Charitable Trusts, Breaking the Plastic Wave: A Comprehensive Assessment of Pathways Towards Stopping Ocean Plastic Pollution (2020) ; UNGA, Oceans and the Law of the Sea: Report of the UN Secretary-General (on ‘marine debris, plastics and microplastics’), UN Doc A/71/74, 22 March 2016; UN, The Second World Ocean Assessment (n 2) Ch. 12. 1

33

34  Research handbook on international marine environmental law development of marine life); and sea level rise (which is likely to damage important habitats such as coral reefs, mangrove swamps and salt marshes).5 On all of these three issues, the United Nations (UN) Convention on the Law of the Sea (LOSC)6 has nothing directly to say. That is not surprising. Biodiversity loss and climate change did not emerge as issues of international concern until the late 1980s, several years after the LOSC had been adopted. Nor was plastic pollution a significant issue at that time. Nevertheless, the fact that the three issues are not directly addressed in the LOSC may lead some to question whether the LOSC is still relevant or has anything worthwhile still to contribute to protection of the marine environment from human activities. How relevant or otherwise one perceives the LOSC to be depends to some extent on one’s expectations of it. Anyone assuming that the LOSC is a comprehensive marine environmental treaty is bound to be disappointed. That was never the intention of its drafters. There were already important marine environmental treaties in existence at the time that the LOSC was being negotiated, such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (London Convention)7 and the International Convention for the Prevention of Pollution from Ships (1973) (MARPOL Convention or MARPOL),8 which it would have been pointless to duplicate. Furthermore, to have attempted to deal in detail with marine environmental issues in a treaty covering a very wide range of issues relating to the law of the sea would have made the LOSC very unwieldy and distorted its balance. It would also have necessitated its frequent amendment as knowledge of threats to the marine environment and the means to address them developed. Nor could the LOSC have dealt with marine environmental issues peculiar to particular regions, where different and higher standards of protection might be required. With the benefit of hindsight, we can see that the idea of a single global treaty devoted comprehensively to protection of the marine environment is a chimera. The present corpus of international marine environmental law comprises at least 100 global and regional treaties,9 as well as countless legally binding measures adopted by an array of global and regional bodies. The aim of this chapter is to consider whether the LOSC is still relevant to the protection of the marine environment today, and what (if anything) it has to contribute to such protection. Although the LOSC is not a comprehensive marine environmental treaty, it nevertheless forms the constitutional bedrock of international marine environmental law, as the following 5 See further, Greenpeace, In Hot Water: The Climate Crisis and the Urgent Need for Ocean Protection (2019) ; Intergovernmental Panel on Climate Change (IPCC), Special Report on the Ocean and Cryosphere in a Changing Climate (2019); UNGA, Oceans and the Law of the Sea: Report of the UN Secretary-General (on ‘the effects of climate change on oceans’), UN Doc A/72/70, 6 March 2017; and UN, The Second World Ocean Assessment (n 2) Ch. 10. 6 UN Convention on the Law of the Sea (adopted and opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 7 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 138 (London Convention). 8 International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL Convention). 9 See, Robin Churchill, Vaughan Lowe and Amy Sander, The Law of the Sea (4th ed, Manchester University Press 2022), table of treaties and chapters 14-17 passim.

UN Convention on the Law of the Sea – still relevant?  35 section of this chapter seeks to demonstrate. However, the LOSC is not limited to that role. It does contain substantive provisions on some aspects of marine environmental protection, albeit at a rather general level. Section 3 explains how over time those provisions have been, and continue to be, developed and made more detailed through various mechanisms. Section 4 returns to the specific environmental issues mentioned in the opening paragraph above and considers the relevance of the LOSC to them in the light of the discussion in sections 2 and 3. The chapter ends with some concluding observations.

2.

THE LOSC AS THE CONSTITUTIONAL FRAMEWORK FOR PROTECTION OF THE MARINE ENVIRONMENT

The LOSC has frequently been described as a ‘constitution for the oceans’, although that phrase appears nowhere in its text. The LOSC is thus perceived politically as being the basic foundation for the whole of the law of the sea and superior to any other treaty concerned with marine matters. Legally, that superiority results from Article 311, which provides that the LOSC prevails over pre-existing and future treaties inconsistent with it, and severely limits the capacity of its parties to conclude treaties that modify its provisions inter se. This basic constitutional status of the LOSC embraces international marine environmental law.10 Thus, the LOSC stipulates that obligations assumed by States under other marine environmental treaties ‘should be carried out in a manner consistent with the general principles and objectives’ of the LOSC,11 while a number of such treaties themselves provide that they are to be applied consistently with the LOSC.12 The role of the LOSC as providing the constitutional framework for protection of the marine environment has been acknowledged by the international community on numerous occasions. To give some examples from the past decade or so, ‘The Future We Want’, a declaration adopted at the UN Conference on Sustainable Development (2012) and subsequently endorsed by the UN General Assembly, states that the LOSC ‘provides the legal framework for the con-

10 For writers taking a similar view, see, Moira L McConnell and Edgar Gold, ‘The Modern Law of the Sea: Framework for the Protection and Preservation of the Marine Environment’ (1991) 23(1) Case Western Reserve Journal of International Law 83, 84 and 98; Detlef Czybulka, ‘Article 192’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1278. 11 LOSC, Art. 237(2). Note, however, that Art. 237(1) provides that the provisions of Part XII of the LOSC are ‘without prejudice to the specific obligations assumed by States under’ other marine environmental treaties. This provision clarifies that States may be parties to marine environmental treaties going beyond Part XII, provided that the obligation in Art. 237(2) is observed, something that might otherwise be called into doubt by Art. 311 of the LOSC. See further, Detlef Czybulka, ‘Article 237’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1597-1602. 12 See, eg, London Convention, Art. XII; MARPOL Convention, Art. 9(2); Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243 (CITES), Art. XIV(6); Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS), Art. XII(1); Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD), Art. 22(2).

36  Research handbook on international marine environmental law servation and sustainable use of oceans and their resources’.13 The same formulation is used in the UN’s Sustainable Development Goals (SDGs).14 In its annual ‘Oceans and Law of the Sea’ resolutions, the General Assembly ‘reaffirm[s] that the [Law of the Sea] Convention sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector’.15 There are also innumerable regional and bilateral environmental agreements that acknowledge that their provisions are to be interpreted and applied consistently with the LOSC. These affirmations are one pointer to the continuing relevance of the LOSC for protection of the marine environment. In more concrete terms, the LOSC has a number of elements as the constitutional framework for the protection of the marine environment. First, it lays down, in Article 192, a fundamental duty on States individually ‘to protect and preserve the marine environment’. The ambit of this provision is explored further in section 3.5 below. There are, of course, many other environmental obligations in the LOSC that apply to its parties individually, but they lack the all-embracing, quasi-constitutional nature of the general obligation in Article 192. A second element is the obligation for parties to the LOSC collectively to adopt international rules and standards to protect the marine environment. Most obviously, this is found in relation to marine pollution; the LOSC requiring its parties to adopt, or to ‘endeavour’ to adopt, international rules and standards to ‘prevent, reduce and control’ pollution of the marine environment from five of the six sources of marine pollution that it identifies (‘land-based sources’, ‘sea-bed activities subject to national jurisdiction’, ‘dumping [of waste]’, ‘vessels’, and ‘pollution from or through the atmosphere’),16 and requiring the International Seabed Authority (ISA) to adopt rules for the sixth source, ‘activities in the Area’.17 The LOSC is much more limited as regards the collective adoption of rules for marine environmental protection other than the control of pollution. Its main provisions are Article 118, which obligates flag States that have nationals fishing in the same area of the high seas to ‘enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned’;18 and Article 197, which requires States to cooperate ‘in formulating

UNGA, The Future We Want, UN Doc A/RES/66/288, 27 July 2012, para. 158. UNGA, Transforming our world: The 2030 Agenda for Sustainable Development, UN Doc A/ RES/70/1, 21 October 2015, Goal 14c. See also, UNGA, Our Ocean, Our Future: Call for Action, UN Doc A/RES/71/312, 14 July 2017, Annex, para. 11. 15 See, eg, UN Doc A/RES/75/239 (n 3) recital 7. The Assembly’s annual ‘sustainable fisheries’ resolutions are to similar effect. See, eg, UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/RES/75/89, 18 December 2020, para. 2. 16 See, LOSC, Arts 207(4), 208(5), 210(4), 211(1) and 212(3), respectively. 17 LOSC, Art. 209(1), read with Art. 145. The phrase ‘activities in the Area’ means exploration for and exploitation of mineral resources of the seabed and subsoil beyond the limits of national jurisdiction. See, LOSC, Arts 1(1) and (3) and 133. 18 See also, LOSC, Arts 63(2), 64, 65 and 120, which contain further cooperation obligations in relation to straddling fish stocks, highly migratory species and marine mammals. 13 14

UN Convention on the Law of the Sea – still relevant?  37 and elaborating international rules, standards and recommended practices and procedures . . . for the protection and preservation of the marine environment’.19 In addition, the LOSC has led indirectly to the collective adoption of marine environmental rules through resolutions of the General Assembly, adopted as part of the UN’s annual cycle of review of the LOSC.20 For example, from 2004 onwards the General Assembly expressed serious concern about the effects of deep-sea trawling on vulnerable marine ecosystems (VMEs), such as those associated with cold-water coral reefs, seamounts and hydrothermal vents, and called on States to take action to protect them from destructive fishing practices, both individually and through regional fisheries management organisations (RFMOs).21 In response, RFMOs and individual States have taken an array of actions,22 and the Food and Agriculture Organization (FAO) has adopted guidelines for the management of deep-sea 19 There are also further general environmental cooperation obligations in the LOSC, Arts 199-201 and in Art. 123 (on enclosed and semi-enclosed seas), but these provisions do not envisage the adoption of rules. 20 On the annual cycle of review, see section 3.4 below. 21 See, UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/RES/59/25, 17 January 2005; UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/RES/61/105, 6 March 2007. The General Assembly has repeated its calls for action in subsequent resolutions. See further, Richard Caddell, ‘Deep-Sea Bottom Fisheries and the Protection of Seabed Ecosystems: Problems, Progress and Prospects’ in Catherine Banet (ed), The Law of the Seabed: Access, Uses and Protection of Seabed Resources (Brill 2020) 255. 22 For reviews of actions taken by RFMOs and individual States, see the following reports of the UN Secretary-General: UNGA, Impacts of fishing on vulnerable marine ecosystems: actions taken by States and regional fisheries management organizations and arrangements to give effect to paragraphs 66 to 69 of General Assembly resolution 59/25 on sustainable fisheries, regarding the impacts of fishing on vulnerable marine ecosystems, UN Doc A/61/154, 14 July 2006; UNGA, Actions taken by States and regional fisheries management organizations and arrangements to give effect to paragraphs 83 to 90 of General Assembly resolution 61/105 on sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/64/305, 17 August 2009; UNGA, Actions taken by States and regional fisheries management organizations and arrangements in response to paragraphs 80 and 83 to 87 of General Assembly resolution 61/105 and paragraphs 113 to 117 and 119 to 127 of General Assembly resolution 64/72 on sustainable fisheries, addressing the impacts of bottom fishing on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks, UN Doc A/66/307, 15 August 2011; UNGA, Actions taken by States and regional fisheries management organizations and arrangements in response to paragraphs 113, 117 and 119 to 124 of General Assembly resolution 64/72 and paragraphs 121, 126, 129, 130 and 132 to 134 of General Assembly resolution 66/68 on sustainable fisheries, addressing the impacts of bottom fishing on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks, UN Doc A/71/351, 22 August 2016; UNGA, Actions taken by States and regional fisheries management organizations and arrangements in response to paragraphs 113, 117 and 119 to 124 of General Assembly resolution 64/72, paragraphs 121, 126, 129, 130 and 132 to 134 of General Assembly resolution 66/68 and paragraphs 156, 171, 175, 177 to 188 and 219 of General Assembly resolution 71/123 on sustainable fisheries, addressing the impacts of bottom fishing on vulnerable marine ecosystems and the long-term sustainability of deep-sea fish stocks, UN Doc A/75/157, 14 July 2020.

38  Research handbook on international marine environmental law fisheries in the high seas.23 Furthermore, UN General Assembly resolutions may generate or reflect new norms of customary international law. It is argued that this has happened, for example, in relation to the General Assembly’s call for a ban on large-scale driftnet fishing on the high seas.24 A third constitutional feature of the LOSC’s environmental provisions is its establishment of a jurisdictional framework for the protection of the marine environment. In relation to marine pollution, the LOSC sets out, in relatively precise terms, the rights of flag, coastal and port States and the ISA, as the case may be, to prescribe and enforce rules to control pollution from each of the six sources that it identifies (listed above). In many cases, there is not only a right to exercise such legislative and enforcement jurisdiction, but also an obligation to do so.25 In relation to the other main component of marine environmental protection, the conservation of marine biodiversity, the LOSC is less schematic,26 as well as being more limited in obligating States to exercise the jurisdiction that it confers to conserve marine biodiversity.27 Since the adoption of the LOSC, the jurisdictional framework that it establishes for protecting the marine environment has not been seriously questioned or challenged. That is a major achievement, given that for many years before the LOSC was adopted there was no agreement on such a framework, but instead greatly varying and frequently contested jurisdictional claims. It is true that there is uncertainty in relation to some aspects of the LOSC jurisdictional scheme: for example, the degree to which a port State may require foreign ships visiting its ports to observe its laws relating to the construction and equipment of ships that go beyond international standards,28 and the measures with which a coastal State may require foreign ships to comply in relation to a marine protected area that it has established in its exclusive FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (Rome 2009). The UN General Assembly has urged States to implement the Guidelines: see, eg, UNGA ‘Sustainable Fisheries’ Doc A/RES/75/89 (n 15) para. 191. 24 See further, Grant J Hewison, ‘The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing’ (1994) 25(4) Journal of Maritime Law and Commerce 557. See also, Richard Caddell, ‘International Fisheries Law and Interactions with Global Regimes and Processes’ in Richard Caddell and Erik J Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 133, 137-140. The main General Assembly resolutions are UNGA, Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world’s oceans and seas, UN Doc A/RES/44/225, 22 December 1989; UNGA, Large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas, UN Doc A/RES/46/215, 20 December 1991. 25 See, LOSC, Arts 21, 27, 42, 207-218, 220-222 and 233-234. 26 The scope of States’ competence to exercise legislative and enforcement jurisdiction to conserve marine biodiversity is set out principally in Arts 21(1) and 27 (relating to the territorial sea); Arts 56(1) and (2), 58(3) and 62(4) (relating to the exclusive economic zone (EEZ)); Art. 77 (continental shelf); Art. 92 (high seas); Arts 139(1), 145, 153(4) and (5), 162(2), Annex III, Arts. 17(2)(f) and 18 (the Area). None of these provisions uses the term ‘biodiversity’ since the LOSC was adopted before that term became current on the international legal and political agenda, but they all address matters related to the components of marine biodiversity. 27 For examples of such obligation, see, LOSC, Arts 61, 66 and 119 (re fisheries conservation: these articles provide that States ‘shall’ take various kinds of ‘measures’, which requires the exercise of legislative jurisdiction); Art. 145 (re the Area). 28 On which, see, for example, Robin Churchill, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships – What Degree of Extraterritoriality?’ (2016) 31(3) International Journal of Marine and Coastal Law 442; Sophia Kopela, ‘Port State Jurisdiction, Extraterritoriality and the Protection of Global Commons’ (2016) 47(2) Ocean Development and International Law 89; and literature cited there. 23

UN Convention on the Law of the Sea – still relevant?  39 economic zone (EEZ),29 but such uncertainties have been contained and have not led to serious disputes. Furthermore, the LOSC jurisdictional framework has also been used in most other marine environmental treaties.30 All this attests to the continuing relevance of the LOSC for the protection of the marine environment.

3.

MECHANISMS FOR DEVELOPING THE ENVIRONMENTAL PROVISIONS OF THE LOSC

Many of the substantive environmental provisions of the LOSC are inadequate (as will be illustrated by some examples below), either because the standard that they set for environmental protection is too low or because they are too broadly formulated and open-textured to be serviceable. Furthermore, there are a number of marine environmental issues whose existence or extent was not known when the LOSC was drafted, such as the impact of human activities on deep-sea environments and the consequences of greenhouse gas emissions for the oceans, and which consequently are not addressed in the LOSC. One way to address the environmental shortcomings of the LOSC would be through its amendment. Although the LOSC does provide for its amendment,31 the procedures for doing so, perhaps because of the LOSC’s constitutional nature, are too cumbersome to allow it to be easily updated and developed. Not surprisingly, they have not been used at all to date; and, in the view of many commentators, they are unlikely to be used in the foreseeable future.32 In this, the LOSC contrasts with most other marine environmental treaties, which tend to contain procedures allowing them to be amended and updated relatively easily by a body established by the treaty, such as the conference/meeting of the parties or a commission. Although the LOSC’s formal amendment procedures are in practice unusable, other mechanisms for updating it have been developed.33 The most important, as far as environmental issues are concerned, are: (1) implementation agreements; (2) measures adopted by the ISA; (3) rules of reference; (4) resolutions of the UN General Assembly; and (5) interpretation by international courts and tribunals. Each will be examined in turn.

On which, see, Churchill, Lowe and Sander (n 9) 744. See further, Jill Barrett, ‘The UN Convention on the Law of the Sea: A “Living” Treaty?’ in Jill Barrett and Richard Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (British Institute of International and Comparative Law 2016) 3, 33-36. 31 See, LOSC, Arts 312-316. 32 See, for example, Barrett (n 30) 16; David Freestone and Alex G Oude Elferink, ‘Flexibility and Innovation in the Law of the Sea: Will the LOS Convention Amendment Procedures Ever Be Used?’ in Alex G Oude Elferink (ed), Stability and Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff 2005) 169 and 179-183. 33 See further, Barrett (n 30); Alan Boyle ‘Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 40; Rozemarijn J Roland Holst, Change in the Law of the Sea: Context, Mechanisms and Practice (Brill, 2022). 29 30

40  Research handbook on international marine environmental law 3.1

Implementation Agreements

Two so-called ‘implementation agreements’ have been adopted to date, and a third may be concluded in the relatively near future. The possibility of such agreements is not contemplated in the LOSC: instead, they have been developed as a pragmatic response to perceived shortcomings in some of its provisions. The first agreement,34 which effectively amends Part XI of the LOSC (on the Area), contains no environmental provisions of significance and therefore is not considered further here. The second implementation agreement, commonly known as the Fish Stocks Agreement (FSA),35 was adopted in 1995 to develop the LOSC’s rather laconic provisions on the conservation and management of straddling and highly migratory fish stocks.36 The inadequacy of those provisions was demonstrated by a number of serious regional disputes in the early 1990s between coastal and high seas fishing States over the management of straddling stocks.37 The FSA is largely concerned with the management of straddling and highly migratory fish stocks on the high seas, primarily through the medium of RFMOs or regional fisheries management arrangements (RFMAs), on many of whose constituent treaties the FSA has had a significant influence. The most important environmental provisions of the FSA, setting out the principles that govern the conservation and management of straddling and highly migratory stocks, are contained in Articles 5 and 6, which importantly apply not only to the high seas but also to areas within national jurisdiction. The principles laid down in Article 5 include: ensuring the long-term sustainability of straddling and highly migratory fish stocks; applying the precautionary approach to their management (which is amplified in Article 6 and Annex II); assessing ‘the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks’; adopting conservation and management measures for species belonging to the same ecosystem or associated with or dependent upon target stocks, with a view to maintaining or restoring their populations above levels at which their reproduction may become seriously threatened; minimising pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species and impacts on associated or dependent species by using selective and environmentally-safe fishing gear; and protecting biodiversity. Although Article 5 does not use the term, a number of these provisions clearly refer to ecosystem-based management, which has been called for by, inter alia, the FAO,38 the Conference of the Parties (COP) of the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 1836 UNTS 3 (1994 Implementation Agreement). 35 The official, and rather cumbersome, title of the agreement is: 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3. 36 See, LOSC, Arts 63(2), 64. Straddling stocks are fish stocks that are found in both, or migrate between, the EEZs of one or more States and the high seas. Highly migratory species are those species that are listed in Annex I of the LOSC, of which the commercially most important are marlins, swordfish and various species of tuna. 37 For details, see, Olav Schram Stokke (ed), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (OUP 2001) Chs 5, 6, 7 and 9. 38 See, FAO, Fisheries Management: The Ecosystem Approach to Fisheries (FAO Technical Guidelines for Responsible Fisheries No. 4, Suppl. 2, 2003). 34

UN Convention on the Law of the Sea – still relevant?  41 Convention on Biological Diversity (CBD),39 and the UN General Assembly in its ‘Oceans and Law of the Sea’ and ‘Sustainable Fisheries’ resolutions.40 Most RFMOs and RFMAs have attempted to give effect to Articles 5 and 6. They have not always succeeded, as a considerable number of straddling and highly migratory stocks continue to be over-fished.41 The degree to which coastal States have implemented Articles 5 and 6 of the FSA is not clear. Interestingly, the FSA, unlike the LOSC, provides explicitly for its further development. Under Article 36, a conference to assess the effectiveness of the FSA and, if necessary, to propose means of strengthening it was to be held four years after its entry into force. That conference was held in 2006. It resumed in 2010 and 2016, and is due to do so again in 2023. The conference has produced a large number of recommendations.42 In addition, informal consultations between States Parties to the FSA are held annually to consider specific issues arising from its implementation, with a view to improving understanding, sharing experience and identifying best practices.43 Since 1995, no further implementation agreements have been concluded. However, in 2017 the UN General Assembly decided, based on the work of an ad hoc working group established in 2004, to convene an intergovernmental conference to ‘elaborate the text of an international legally binding instrument under [the LOSC] on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction’.44 Four sessions of the conference were to be held between 2018 and 2020. The first three sessions took place as planned, but by the time the fourth session was due to take place, in March/April 2020, the world was engulfed by the Covid-19 pandemic. The fourth session was therefore postponed, first to August 2021, and then to March 2022.45 That session did not reach agreement on the projected international legally binding instrument (ILB). However, sufficient progress was made that is was decided to request the UN General Assembly to authorise the holding of a fifth session in

See, CBD COP 5, Decision V/6 Ecosystem Approach, UNEP/CBD/COP/DEC/5/6, 15-26 May 2000. 40 See, eg, UN Doc A/RES/75/89 (n 15) paras 16, 20, 163, 170 and 183; UN Doc A/RES/75/239 (n 3) paras 198-200. 41 See, FAO’s Input to the UN Secretary-General’s Comprehensive Report for the 2016 Resumed Review Conference on the UN Fish Stocks Agreement (2016) 9, 14 and 21 . 42 See, Division for Ocean Affairs and the Law of the Sea (DOALOS), Compilation of the Recommendations Adopted at the Review Conference in 2006 and the Resumed Review Conference; Report of the resumed Review Conference on 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 Highly Migratory Fish Stocks, UN Doc A/ CONF.210/2016/5, 1 August 2016, 35-50, both available at . 43 For reports of the consultations, see, . 44 UNGA, International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/RES/72/249, 19 January 2018. 45 UNGA, Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, Decision 75/570, provisionally available as UN Doc A/75/L.69, 9 June 2021. 39

42  Research handbook on international marine environmental law August 2022.46 If agreement is eventually reached on an ILBI, which could take the form of a third implementation agreement, it is likely that its substantive provisions will address four main issues: marine genetic resources, area-based management tools, environmental impact assessment (EIA), and capacity-building and transfer of marine technology.47 A key test for the ILBI, if agreed, is whether it will be able effectively to address two of the currently greatest actual or potential threats to the marine environment of areas beyond national jurisdiction (ABNJ), namely fisheries (through the over-fishing of many target stocks, the killing of non-target species, and damage to vulnerable and important habitats) and the commercial mining of mineral resources (on which, see the following sub-section).48 Currently, the omens are not good. In its resolution convening the intergovernmental conference, the General Assembly stated that any instrument adopted should be ‘fully consistent with’ the LOSC and ‘not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies’.49 That suggests that the ILBI would be subservient to RFMOs and other high seas fisheries instruments, which have not (yet) succeeded in sufficiently mitigating the environmental harms caused by the fishing industry in high seas areas,50 and to the ISA, which, as suggested below, is unlikely to prevent serious environmental harm being caused by future deep-sea commercial mining. 3.2

Rule-making by the International Seabed Authority

In one respect, concerning the regime of the Area, the LOSC provides explicitly for its own development.51 As regards environmental issues, the LOSC both authorises and requires the ISA to adopt measures to protect the marine environment from the adverse effects of exploring for, and exploiting, mineral resources in the Area.52 To date, the ISA has adopted three sets of regulations, relating to the prospecting and exploration phases of seabed mining, that contain

46 For reports on the fourth session of the conference, see UN, 'Speakers Call for Conclusion of New Oceans Treaty on Biodiversity in 2022, as Intergovernmental Conference Agrees on Fifth Session', ; IISD, 'Report, 7-18 March 2022: 4th session of the Intergovernmental Conference (IGC) on BBNJ', . 47 See further, Tomas Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill 2020) Chs 2-7; Efthymios Papastavridis, ‘The Negotiations for a New Implementing Agreement under the UN Convention on the Law of the Sea concerning Marine Biodiversity’ (2020) 69(3) International and Comparative Law Quarterly 585. 48 The other main threats to marine biodiversity in areas beyond national jurisdiction come from the vast amounts of plastic waste in the oceans and the effects of greenhouse gas emissions. However, as will become evident from the discussion in section 4, any new agreement will be of limited relevance to those issues. 49 UN Doc A/RES/72/249 (n 44) paras 6 and 7. 50 See, Churchill, Lowe and Sander (n 9) 514-515, 582-585, and literature cited there. 51 In addition to the specific matters discussed below, LOSC, Art. 154 provides for periodic reviews ‘of the manner in which the international regime of the Area . . . has operated in practice.’ In the light of such reviews, the ISA may take measures that ‘will lead to the improvement of the operation of the regime.’ The first, and to date only, such review, took place in 2016-17. ISA, Final report on the periodic review of the International Seabed Authority pursuant to article 154 of the United Nations Convention on the Law of the Sea, ISBA/23/A/3, 8 February 2017, Annex. 52 LOSC, Art. 145 and Annex III, Art. 17(2)(f).

UN Convention on the Law of the Sea – still relevant?  43 various provisions to protect the marine environment.53 The regulations are comparatively easy to amend and update, as has already happened with the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (Nodules Exploration Regulations). All three sets of regulations mark an environmental advance on the LOSC by including concepts such as ‘a precautionary approach’ and ‘best environmental practices’, which are not found in the LOSC.54 It is generally considered that exploration, at least insofar as it does not involve test mining, has a limited impact on the environment of the Area and its superjacent waters. Test mining, which is allowed under an exploration contract, can have significant environmental impacts. That is even more the case with exploitation, ie mining on a commercial scale, which at the time of writing had not yet begun. It has become increasingly recognised that serious and long-lasting environmental damage will inevitably result from commercial seabed mining.55 Because of the likelihood of such damage, a number of bodies have called for a moratorium on commercial mining.56 Such a moratorium is very unlikely, however. On 25 June 2021 Nauru gave notice to the ISA under paragraph 15 of section 1 of the Annex to the 1994 Implementation Agreement.57 In accordance with that provision, the ISA must ‘complete the adoption’ of regulations to govern the exploitation of minerals in the Area within two years of ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/6/A/18, 13 July 2000, as amended by ISBA/19/C/17, 22 July 2013 (Nodules Exploration Regulations); ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010 (Sulphides Exploration Regulations); ISA, Regulations on Prospecting for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012 (Crusts Exploration Regulations). See further, Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume. See also, Churchill, Lowe and Sander (n 9) 439-440, 442-447, 694-697 and 723-734. 54 Nodules Exploration Regulations (n 53) Regs 5, 31(2) and (5); Sulphides Exploration Regulations (n 53) Regs 5, 33(2) and (5); Crusts Exploration Regulations (n 53) Regs 5, 33(2) and (5). 55 See, eg, Greenpeace, In Deep Water: The Emerging Threat of Deep Sea Mining (2019) 9-14; Lisa A Levin and others, ‘Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining’ (2016) 90 Marine Policy 245; Matthias Haeckel and others, ‘Environmental Impacts of Seabed Mining’ in Tomas Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill 2020) 327; Aline Jaeckel, ‘Benefitting from the Common Heritage of Humankind: From Expectation to Reality’ (2020) 35(4) International Journal of Marine and Coastal Law 660, 675-678; Eva Ramirez-Llodra, ‘Deep-Sea Ecosystems: Biodiversity and Anthropogenic Impacts’ in Catherine Banet (ed), The Law of the Seabed: Access, Uses and Protection of Seabed Resources (Brill 2020) 36; Erik Simon-Lledó and others, ‘Biological Effects 26 Years After Simulated Deep-Sea Mining’ (2019) 9 Scientific Reports 8040. 56 See, eg, Deep Sea Conservation Coalition, Position Statement on Deep Seabed Mining (2019) ; Deep-Sea Mining Science Statement, ‘Marine Expert Statement Calling for a Pause to Deep-Sea Mining’ ; ‘European Parliament Resolution of 16 January 2018 on International Ocean Governance: An Agenda for the Future of Our Oceans in the Context of the 2030 SDGs (2017/2055(INI))’, P8_TA (2018) 0004, 19 December 2018, para. 42; Greenpeace, In Deep Water (n 55) 25; UK Parliament Environmental Audit Committee, Sustainable Seas (2017-19, HC 980) para. 70. 57 ISA, Press Release, ‘Nauru requests the President of ISA Council to complete the adoption of rules, regulations and procedures necessary to facilitate the approval of plans of work for exploitation in the Area’, 29 June 2021 . See also, the Government of the Republic of Nauru, ‘Nauru requests the International Seabed Authority Council to adopt rules and regulations within 53

44  Research handbook on international marine environmental law Nauru’s request.58 If it has not done so, the ISA ‘shall none the less consider and provisionally approve’ the plan of work for exploitation that Nauru Oceans Resources Inc. (NORI), which is sponsored by Nauru, intends to submit by June 2023.59 It remains to be seen whether the ISA will have adopted the regulations by that date, and if so, what provisions to protect the marine environment they will contain.60 To date, the most extensive measure that the ISA has taken to protect the Area from the adverse impacts of seabed mining is the environmental management plan for the Clarion-Clipperton fracture zone that it adopted in 2012.61 The aims of the plan are to preserve ‘representative and unique’ ecosystems, habitats and species and to facilitate mining, ‘while minimizing as far as practically possible the impact of seabed mining activities’ on the marine environment.62 To achieve the first aim, the plan designates ‘on a provisional basis’, nine (subsequently increased to 13) Areas of Particular Environmental Interest within which no exploration or exploitation is permitted for five years or until further review by the ISA. There has been discussion about environmental management plans for other areas, such as the mid-Atlantic ridge and Western Pacific Ocean, but none has yet been adopted.63 The existing plan has been criticised as having significant deficiencies, as has the delay in adopting further plans.64 3.3

Rules of Reference

Scattered throughout the LOSC are what have been dubbed ‘rules of reference’. They are provisions that require parties to the LOSC to give effect to, or take into account, the provisions of other treaties, whether or not they are parties to those treaties. In many instances, they concretise broadly drawn obligations in the LOSC (as will be seen from the examples discussed below). Furthermore, as the substantive content of rules of reference evolves, as it does in most cases, the obligations of parties under the LOSC develop accordingly. Many rules of reference concern protection of the marine environment. They vary in their nature and their degree of normativity. The six sources of marine pollution identified by the two years’ (Statement) . 58 1994 Implementation Agreement, Annex, s. 1, para. 15 (b). The ISA has been in the process of developing exploitation regulations since 2014. The most recent draft at the time of writing was ISA, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/25/C/WP.1, 22 March 2019. 59 1994 Implementation Agreement, Annex, s.1, para. 15(c). NORI is a wholly-owned subsidiary of the Canadian mining company, The Metals Company (formerly DeepGreen). It is likely that the latter persuaded Nauru to make its request. See, Elham Shabahat, ‘Why Nauru is pushing the World towards Deep-Sea Mining’, Hakai Magazine, 14 July 2021 . 60 See further, Lodge Chapter 13 in this volume. 61 ISA, Decision of the Council relating to an environmental management plan for the Clarion-Clipperton Zone, ISBA/18/C/22, 26 July 2012. 62 ISA, Environmental Management Plan for the Clarion-Clipperton Zone, ISBA/17/LTC/7, 13 July 2011, paras 32, 33 and 35(a). 63 See, ISA’s website . 64 See, eg, Greenpeace, In Deep Water (n 55) 21-22; Amaya Menendez and others, ‘Controls on the Chemical Composition of Ferromanganese Nodules in the Clarion-Clipperton Fracture Zone, Eastern Equatorial Pacific’ (2019) 409 Marine Geology 1.

UN Convention on the Law of the Sea – still relevant?  45 LOSC are all the subject of rules of reference. At the firmest end of the spectrum of normativity is the rule of reference relating to pollution from ships, which is set out in Article 211(2) of the LOSC. It requires flag States to adopt laws and regulations for the prevention of pollution from ships having their nationality that ‘have at least the same effect as that of generally accepted international rules and standards’. Thus, flag States must adopt legislation equivalent in effect to the provisions of those treaties that represent ‘generally accepted international rules and standards’, even if they are not parties to them. The phrase ‘generally accepted international rules and standards’ is not defined in the LOSC. In the past, considerable ink has been spilt over its meaning and in attempting to determine which international rules and standards relating to pollution from ships could be regarded as ‘generally accepted’.65 Today those questions are largely academic. In the South China Sea case, the arbitral tribunal held that the Convention on the International Regulations for Preventing Collisions at Sea (COLREGS), which at the time of the tribunal’s award had 156 parties, and the ships of which accounted for more than 98 percent of the total world fleet by tonnage, came into the category of ‘generally accepted international regulations’ within the meaning of Article 94(5) of the LOSC, which requires its parties to take safety measures for their ships that ‘conform’ to such regulations.66 There are three main global conventions dealing with pollution from ships: the MARPOL Convention,67 the International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS Convention)68 and the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention).69 The MARPOL Convention and its first two Annexes have been ratified by 160 States, whose ships account for 99 percent of the total world fleet; its optional annexes III-V have been ratified by between 146 and 155 States (between 96.33 and 98.64 percent of the world fleet); optional annex VI by 101 States (96.75 percent); the AFS Convention by 91 States (96.13 percent); and the BWM Convention by 89 States (91.2 percent).70 On the basis of those figures (particularly the percentages of the world fleet to which those conventions apply), and the ruling in the South China Sea case, there can be little doubt that the three conventions are all ‘generally accepted international rules and standards’ for the purposes of Article 211(2) of the LOSC. This illustrates something of a paradox about rules of reference. The more certain it is that a particular treaty rule is ‘generally accepted’ because of the extent of participation in the treaty concerned, the less practical importance that rule will have as a rule of reference as the

See, eg, International Law Association (ILA), ‘Final Report of the Committee on Coastal State Jurisdiction relating to Marine Pollution’, in ILA, Report of the Sixty-Ninth Conference (ILA 2000) 443, 473-492; Bernard H Oxman, ‘The Duty to Respect Generally Accepted International Standards’ (1991) 24 New York University Journal of International Law and Politics 109. See also, Roland Holst (n 33) 150-66. 66 South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19, paras 1081-1083 (South China Sea, Award). 67 See n 8. 68 International Convention on the Control of Harmful Anti-Fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008) [2012] UKTS No. 12. 69 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36. 70 See, IMO, ‘Status of IMO Treaties’ . Figures refer to the position as at 10 February 2022. 65

46  Research handbook on international marine environmental law number of parties to the LOSC that are not parties to the treaty in question will tend to be quite small. However, in one respect at least, rules of reference are more important than this statement suggests. The LOSC’s dispute settlement procedures allow one party to a dispute concerning the LOSC to unilaterally refer that dispute to a court or tribunal for a legally binding decision. It is possible for a State Party to the LOSC that considers that another party is not complying with a rule of reference relating, for example, to the BWM Convention to institute judicial proceedings alleging a breach by the other party of Article 211(2). This possibility is particularly useful where the treaty containing the rule of reference contains no dispute settlement procedures that allow unilateral reference to a court or tribunal, as is the case with the BWM Convention. The LOSC’s dispute settlement procedures have not yet been used in this way in relation to environmental rules of reference, but they have been so used in relation to a non-environmental rule. That was in the South China Sea case, where the Philippines successfully argued that China was in breach of Article 94(5) of the LOSC through its non-observance of the COLREGs, which, as noted above, the tribunal had found was a rule of reference for the purposes of Article 94(5).71 The MARPOL, AFS and BWM Conventions are regularly updated by use of the International Maritime Organization’s (IMO) tacit amendment procedure. Under that procedure, once an amendment to a convention has been adopted, usually by the IMO’s Marine Environment Protection Committee (MEPC), it comes into force automatically, after a specified period of time, for all parties to the convention except those that have explicitly objected to the amendment. In practice, objections are rare because the Committee normally takes decisions by consensus. However, where a State has objected, as, for example, Brazil has done to an amendment to the MARPOL Convention adopted in 2011 laying down measures to reduce greenhouse gas emissions from ships,72 an interesting question arises. Under the MARPOL Convention, Brazil, having objected to the amendment, is not bound by it. However, the amendment is clearly a rule of reference under Article 211(2) of the LOSC, and therefore all flag States parties to the LOSC must enact legislation that has ‘at least the same effect’ as the amendment. In this way, their environmental obligations are updated. Is Brazil also obliged to update its legislation in this way? It would seem that it should do, even though it seems counter-intuitive. That is a consequence of being bound by Article 211(2) of the LOSC, even though as a party to MARPOL Brazil is not bound by the 2011 amendment. The LOSC contains rules of reference in relation to three other sources of marine pollution of a similar degree of normativity to Article 211(2), albeit somewhat differently formulated. Articles 208 and 209 require States to adopt laws, regulations and other measures to control pollution from seabed activities, both within their national jurisdiction and in the Area, that are ‘no less effective than international rules, standards and recommended practices and procedures’,73 while Article 210 requires States to adopt laws and regulations to control dumping South China Sea, Award (n 66) paras 1082-1083 and 1092-1109. Marine Environment Protection Committee (MEPC), Resolution MEPC.203(62): Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, MEPC Doc 62/24/Add.1, Annex 19, 15 July 2011. 73 For discussion of Art. 208, see, Catherine Redgwell, ‘The Never-Ending Story: The Role of GAIRS in the Offshore Energy Sector’ in Jill Barrett and Richard Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (British Institute of International and Comparative Law, 2016) 167 and 176-178. 71 72

UN Convention on the Law of the Sea – still relevant?  47 that are ‘no less effective . . . than the global rules and standards.’74 In relation to the two remaining sources of marine pollution, land-based sources and pollution from or through the atmosphere, the rules of reference in the LOSC are normatively very weak. LOSC parties are required to do no more than ‘tak[e] into account internationally agreed rules, standards and recommended practices and procedures’ when enacting legislation to control those sources of pollution.75 The LOSC is very underdeveloped when it comes to rules of reference relating to the conservation of marine biodiversity. The only such rules, which are normatively very weak, require coastal States and high seas fishing States, when adopting fishery conservation and management measures for the EEZ and high seas respectively, to ‘tak[e] into account . . . any generally recommended international minimum standards, whether subregional, regional or global.’76 Such standards may be found in treaties. It has also been argued that they include an array of soft law measures, such as the FAO’s Code of Conduct for Responsible Fisheries and its associated International Plans of Action, as well as decisions of the CBD COP.77 The tribunal in the South China Sea case has to some degree read rules of reference into Article 194(5) of the LOSC, which requires States to take measures ‘to protect and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species’. The tribunal, having noted that the term ‘ecosystem’ was not defined in the LOSC, held that its meaning should be determined by reference to ‘internationally accepted definitions’, such as that in Article 2 of the CBD.78 Further, the tribunal held that in order to ascertain the kinds of habitats to which Article 194(5) refers, recourse could be made to other treaties (notably the Convention on International Trade in Endangered Species of Wild Flora and Fauna) to determine which species are ‘depleted, threatened or endangered’ and thereby identify their habitats.79 3.4

UN General Assembly Resolutions

The UN General Assembly has adopted a large number of resolutions relating to the LOSC. The majority comprise its annual resolutions on ‘Oceans and Law of the Sea’, adopted as the culmination of the annual cycle of review of the LOSC,80 together with its companion annual resolutions on ‘Sustainable Fisheries’. The resolutions have developed the LOSC in two main ways. First, they have in some cases led directly to the adoption of a new marine environmental treaty under the auspices of the UN and within the framework of the LOSC. For discussion of this provision, see, Churchill, Lowe and Sander (n 9) 669. See, LOSC, Arts 207(1) and 212(1), respectively. 76 LOSC, Arts 61(3) and 119(1)(a). See also, FSA, Art. 10(c). 77 See James Harrison and Elisa Morgera, ‘Article 61’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017) 487-488; Rosemary Rayfuse, ‘Article 119’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017) 845-847. 78 South China Sea, Award (n 66) para. 945. 79 Ibid, para. 956. 80 The review, which has developed from UN practice rather than being provided for by the LOSC, has four components: reports by the UN Secretary-General; the Meetings of States Parties; the meetings of the Open-Ended Informal Consultative Process on Oceans and Law of the Sea; and the debate and adoption of resolutions by the General Assembly. Further on the cycle of review, see, Churchill, Lowe and Sander (n 9) 38-40. 74 75

48  Research handbook on international marine environmental law Thus, the General Assembly convened the diplomatic conference that resulted in the adoption of the FSA.81 As seen in section 3.1 above, the intergovernmental conference convened by the General Assembly to ‘elaborate the text of an international legally binding instrument’ on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction may also result in the adoption of a further treaty. Second, General Assembly resolutions may be regarded as ‘subsequent practice in the application’ of the LOSC by its parties,82 and therefore may be taken into account in interpreting the LOSC, in accordance with Article 31(3)(b) and 32 of the Vienna Convention on the Law of Treaties.83 It is true that there is not a complete alignment of parties to the LOSC and members of the General Assembly – four parties are not members of the General Assembly (the Cook Islands, European Union, Niue and Palestine) and 30 General Assembly members are not LOSC parties – but there is sufficient overlap that one can say that the resolutions constitute the collective view of the parties, especially as parties rarely, if ever, vote against the resolutions. An example of the use of General Assembly resolutions to interpret the LOSC concerns its provisions requiring coastal States in respect of their EEZs and States that have vessels fishing on the high seas to take measures when setting allowable catches that ‘are designed . . . to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield [MSY], as qualified by relevant environmental and economic factors’.84 In the past, it has been argued that the ‘economic factors’ qualification would allow a coastal State to set an allowable catch at practically any level in order to benefit its fishing industry, even if that resulted in fishing above the level of MSY.85 Although such an interpretation is said to reflect the intentions of the parties, it is doubtful that it can still be maintained in view of a host of General Assembly resolutions, adopted since 2000, calling for fish stocks to be restored or maintained at levels of MSY ‘as determined by their biological characteristics’, without mention of possible qualification by environmental or economic factors: see, for example, the General Assembly’s resolutions endorsing the Plan of Implementation adopted by the Johannesburg World Summit on Sustainable Development in 2002,86 and ‘The Future We Want’ adopted at the Conference on Sustainable Development in 2012;87 the resolution establishing the UN’s SDGs;88 and the sustainable fisheries resolutions.89 A second example of General Assembly resolutions constituting an authoritative interpretation of the LOSC concerns its resolutions relating to bottom-trawling and VMEs (discussed UNGA, United Nations conference on straddling fish stocks and highly migratory fish stocks, UN Doc A/RES/47/192, 29 January 1993. 82 See further International Law Commission (ILC), Subsequent agreements and subsequent practice in relation to the interpretation of treaties: Text of the draft conclusions adopted by the Drafting Committee on second reading, UN Doc A/CN.4/L.907, 11 May 2018, Conclusion 2, para. 3. 83 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331(VCLT). 84 LOSC, Arts 61(3) and 119(1)(a). 85 See, eg, William T Burke, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Clarendon Press 1994) 48-49, 52-55. 86 UNGA, World Summit on Sustainable Development, UN Doc A/RES/57/253, 21 February 2003, para. 31(a). 87 UN Doc A/RES/66/288 (n 13) Annex, para. 158. 88 UN Doc A/RES/70/1 (n 14) Goal 14.4. 89 See, eg, UN Doc A/RES/75/89 (n 15) para. 6. 81

UN Convention on the Law of the Sea – still relevant?  49 in section 2 above). Those resolutions may be regarded as a non-exhaustive interpretation of the kinds of measures to be taken under Article 194(5) to ‘protect and preserve rare and fragile ecosystems’. Apart from their normative consequences, General Assembly resolutions have been important in keeping the LOSC continuously in the consciousness of the international community, as well as identifying issues that the LOSC does not adequately address and putting them on the international political and legal agenda. More broadly, the resolutions, together with the reports of the Secretary-General and the Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS),90 have kept States, and the officials representing them, informed and educated about marine environmental issues. The General Assembly has also established the Regular Process for Global Reporting and Assessment of the Marine Environment, which was launched in 2005.91 This Process is ‘guided by international law, including the [LOSC] and other applicable instruments’. Two Assessments have so far been published, the first in 2016 and the second in 2021.92 They contain a wealth of information on the state of the marine environment, which is likely to guide future development of the environmental provisions of the LOSC. 3.5

Judicial Interpretation

While judicial interpretation is frequently said to be a means of developing the LOSC, it nevertheless has some significant limitations. First, it is dependent on the vagaries of international litigation. Although Part XV of the LOSC allows States unilaterally to refer disputes concerning its interpretation or application for judicial determination, a possibility that also exists under other jurisdictional bases, such as Article 36(2) of the Statute of the International Court of Justice (ICJ Statute) (the ‘optional clause’), there have been relatively few disputes concerning the LOSC referred to international courts and tribunals to date. Fewer still have concerned environmental issues, and about half of those terminated without a judgment on the merits, either because the tribunal concerned lacked jurisdiction or because the case was withdrawn by one or both of the parties.93 A second limitation is that where a court or tribunal

90 At each of its meetings, the UNICPOLOS discusses a single topic (selected by the Assembly). Since 2010, the majority have concerned environmental issues. The UNICPOLOS’s discussion is informed by a prior report from the UN Secretary-General, setting out the relevant factual information, policy considerations and the legal position for the topic concerned, and by presentations from experts at the meeting itself. The co-chairs’ reports of the discussion feed into the debate at the General Assembly preceding the adoption of its ‘Oceans and Law of the Sea’ resolutions. 91 UNGA, Oceans and the law of the sea, UN Doc A/RES/60/30, 8 March 2006, paras 89-96. 92 UNGA, The First Global Integrated Marine Assessment: World Ocean Assessment I (2016); UNGA, The Second World Ocean Assessment: World Ocean Assessment II (2021) . 93 Those cases are: Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Jurisdiction and Admissibility) (2000) XXIII RIAA (2006) 1; Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European Community) (Order of 16 December 2009) ITLOS Case No. 7; MOX Plant (Ireland v United Kingdom) (PCA Case No 2002-01 (Order No 6 on Termination of Proceedings, Order of 6 June 2008)); Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) PCA Case No 2004-05 (Award on Agreed Terms of 1 September 2005); Atlanto-Scandian Herring Arbitration (Denmark in respect of the Faroe Islands v the European Union) PCA Case No 2013-30 (Termination Order of 23 September 2014). In the first, third and fourth cases,

50  Research handbook on international marine environmental law is seised of a case, its role is confined to ‘interpretation and application’ of the LOSC.94 There are obviously limits as to how far a judicial body can go before ‘interpretation’ turns into (impermissible) law-making.95 A third limitation is that a judicial body’s interpretation of a LOSC provision is binding only on the parties to the case. The extent to which it persuades other States, and other courts (if the same provision comes before them), to follow that interpretation is likely to depend on the quality of the arguments used to support the interpretation and how far it corresponds to the conceptions and interests of other States. It is possible that the authority of an interpretation will also be weaker where the losing party to the case rejects the judgment and the winning party does not press the matter, as has happened in the South China Sea case. Two examples will be given here of environmental provisions of the LOSC that have been developed through judicial interpretation.96 The first concerns Article 192 (briefly mentioned in section 2 above), which provides with somewhat disarming simplicity that ‘States have the obligation to protect and preserve the marine environment’. In the past, it was sometimes suggested that this provision was essentially hortatory and contained no concrete obligations.97 That view was firmly rejected by the tribunal in the South China Sea case. It held that: Article 192 does impose a duty on States Parties, the content of which is informed by the other provisions of Part XII and other applicable rules of international law. This “general obligation” extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment . . . The content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements.98

ITLOS made orders of provisional measures that included consideration of some of the environmental provisions of the LOSC. 94 LOSC, Art. 288(1). 95 Harrison suggests that the tribunal crossed that boundary in its interpretation of Art. 192 of the LOSC (discussed shortly). See, James Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017) 23 (Saving the Oceans). See also, Boyle, ‘Further Development of the 1982 LOSC’ (n 33) 46-49, on the limits to interpretation. 96 For further examples, see Øystein Jensen (ed), The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals (Edward Elgar 2020) Chs 4, 5, 7; Alexander Proelss, ‘Contribution of the ITLOS to Strengthening the Regime for the Protection of the Marine Environment’ in Angela Del Vecchio and Roberto Virzo (eds), Interpretations of the United Nations Convention on the Law of the Sea by International Courts and Tribunals (Springer 2019) 93; Roland Holst (n 33) 218-230. 97 See, eg, Myron H Nordquist and others (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Martinus Nijhoff 1990) 36-37, 43. 98 South China Sea, Award (n 66) paras 941-942. For further discussion of the tribunal’s interpretation of Art. 192, see, Maria Gavouneli, ‘Protection Standards for the Marine Environment: Updating Part XII of the Law of the Sea Convention?’ in Stephen Minas and H Jordan Diamond (eds), Stress Testing the Law of the Sea Convention (Brill 2018) 254, 255-260; Harrison, Saving the Oceans (n 95) 23-25; James Harrison, The Protection of Species, Ecosystems and Biodiversity under UNCLOS in light of the South China Sea Arbitration: An Emergent Duty of Ecosystem Restoration, University of Edinburgh School of Law Research Paper Series No. 2019/20.

UN Convention on the Law of the Sea – still relevant?  51 According to the tribunal, a State’s obligations under Article 192 apply to all parts of the sea, both within and beyond the limits of national jurisdiction.99 In the Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion) the International Tribunal for the Law of the Sea (ITLOS) also found that the reference to the ‘marine environment’ in Article 192 included the conservation of the living resources of the sea and other marine life.100 In relation to non-State actors, there is an obligation on States to exercise due diligence to prevent their nationals from violating Article 192.101 The tribunal in the South China Sea case applied its interpretation to hold that China had breached Article 192, read together with Article 194(5), by causing ‘devastating and long-lasting damage to the marine environment’ of seven coral reefs in the Spratly Islands by its land reclamation and construction activities; and by failing to exercise due diligence to prevent Chinese vessels from harvesting endangered species (coral, giant clams and turtles) on a significant scale and from harvesting giant clams by using their propellers to break up coral, which was seriously destructive of the coral reef ecosystem.102 A further example of the development of the LOSC through judicial interpretation concerns Article 63(1), which deals with the situation where the same fish stock is found in the EEZ of two or more States. Article 63(1) provides that where States share stocks in this way, they ‘shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks’. The limitations of this provision are evident since nothing further is said, for example, about management objectives or allocation of the catch among the States concerned. ITLOS provided some useful clarification and concretisation of Article 63(1) in its SRFC Advisory Opinion. As regards the phrase ‘conservation and development’ in Article 63(1), ITLOS noted that Article 61 provided guidance on the meaning of ‘conservation’. The term ‘development’ suggested that shared stocks ‘should be used as fishery resources within the framework of a sustainable fisheries management regime. This may include the exploitation of non-exploited stocks or an increase in the exploitation of under-exploited stocks through the development of responsible fisheries, as well as more effective fisheries management schemes to ensure the long-term sustainability of exploited stocks.’103 The obligation in Article 63(1) to ‘seek . . . to agree’ on necessary conservation and development measures was one of ‘due diligence’, requiring ‘the States concerned to consult with one another in good faith . . . These consultations should be meaningful in the sense that substantial effort should be made by all States concerned, with a view to adopting effective measures necessary to ensure the conservation and development of shared stocks’.104 Such measures should be ‘aimed at preventing over-exploitation of such stocks that could undermine their sustainable exploitation’.105 Measures should be based on the best scientific evidence available. States sharing stocks must 99 See, South China Sea, Award (n 66) paras 927, 940. So, too, ITLOS in its Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission [2015] ITLOS Rep. 4 (SRFC Advisory Opinion), para. 120. 100 SRFC Advisory Opinion (n 99) paras 120 and 216. 101 South China Sea, Award (n 66) paras 944, 956, 959, 961 and 971. A similar position was taken by ITLOS in its SRFC Advisory Opinion (n 99) paras 120, 124 and 136. 102 South China Sea, Award (n 66) paras 950-966, 983 and 992-993. 103 SRFC Advisory Opinion (n 99) para. 198. 104 Ibid, para. 210. 105 Ibid, para. 211.

52  Research handbook on international marine environmental law also comply with the obligations in Articles 61(3) (on maximum sustainable yield), 61(4) (on taking into consideration associated and dependent species) and 61(5) (on exchanging scientific information) of the LOSC, as well as having due regard for the rights and duties of other States as required by Articles 56(2), 58(3) and 192 of the LOSC.106

4.

THE LOSC AND CURRENT MARINE ENVIRONMENTAL ISSUES

This section returns to the marine environmental issues of great contemporary concern referred to in the opening paragraph of this chapter, namely the sharp decline in marine biodiversity; the pollution of the oceans by plastics and microplastics; and the consequences for the marine environment of increasing emissions of greenhouse gases from anthropogenic sources. Although the LOSC does not directly deal with these issues, for the reasons explained earlier, it is nevertheless more relevant to addressing them than might at first appear. Each of the three issues will be considered in turn. As regards the decline in marine biodiversity, the main causes are activities by fishing vessels (the sustained over-fishing of one-third of global fish stocks,107 killing or injuring many non-target species, and damaging marine habitats); pollution; and the acidification, deoxygenation and warming of seawater caused by increasing anthropogenic emissions of carbon dioxide and other greenhouse gases.108 The last of these is considered separately below, as is pollution from plastics. As regards the impact of fishing on marine biodiversity, the rather weak norms of the LOSC (found principally in Articles 61 and 119) have been considerably strengthened since the conclusion of the LOSC in 1982. That strengthening has resulted, inter alia, from the FSA (see section 3.1 above); the adoption of various measures such as the Code of Conduct for Responsible Fisheries and decisions of the CBD COP that coastal and high seas fishing States have to take into account in their management of EEZ and high seas fisheries respectively (see section 3.3);109 the General Assembly’s resolutions on drift net fishing and VMEs and the interpretation of key fishery terms in the LOSC (see sections 2 and 3.4); and various judicial rulings, notably the tribunal’s interpretation and application of Articles 192 and 194(5) of the LOSC in the South China Sea case and the SRFC Advisory Opinion of the ITLOS (see section 3.5). Further strengthening may come if the Intergovernmental Conference eventually succeeds in adopting an effective agreement to conserve biodiversity beyond the limits of national jurisdiction (see further section 3.1). However, the real issue with trying to mitigate the impact of fishing on marine biodiversity is not a shortage of appropriate norms, but a lack of sufficient will or capacity on the part of both coastal and flag States to fully implement and enforce them.110 Ibid, paras 208-209 and 216. FAO, The State of World Fisheries and Aquaculture (FAO 2020) 7 and 47-48. 108 See further the references in (n 2). A future potential cause of biodiversity decline is the commercial mining of minerals in the Area, on which see section 3.2 above. 109 More broadly, some of these measures may be used to interpret the fisheries provisions of the LOSC in accordance with Art. 31(3)(c) of the VCLT as ‘relevant rules of international law applicable in the relations between the parties’: see further, Boyle, ‘Further Development of the 1982 LOSC’ (n 33) 46, 50-51 and 54. 110 Further on this question, see, Churchill, Lowe and Sander (n 9) 557-578, 585, 598 and 777-778. 106 107

UN Convention on the Law of the Sea – still relevant?  53 Turning to pollution as a cause of marine biodiversity decline, operational and intentional pollution from sources at sea is now adequately controlled through a variety of treaties. Under Articles 208, 210 and 211(2) of the LOSC, coastal and flag States must enact legislation applicable to their seabed installations and ships that is no less effective than the provisions of those treaties (see further section 3.3 above). It must be admitted that as regards land-based sources, which are responsible for the greatest amount of marine pollution entering the oceans (perhaps as much as 80 percent), the provisions of the LOSC are inadequate. Under Article 207(1), States must enact legislation to control pollution from land-based sources, ‘taking into account internationally agreed’ rules and standards. However, such rules and standards are very limited at the global level. There are more effective rules at the regional level, but they do not constitute ‘internationally agreed’ rules nor do they cover all marine regions.111 The second of the marine environmental issues highlighted at the beginning of this chapter was pollution of the oceans by plastics and microplastics. As regards sources of plastic pollution at sea, Annex V of the MARPOL Convention completely prohibits their discharge from ships and offshore installations, while the London Convention and its Protocol112 prohibit the dumping of wastes containing plastics. Those prohibitions are again rules of reference under Articles 208, 210 and 211(2) of the LOSC. Nevertheless, plastic continues to be discharged from ships, due primarily to defective implementation and enforcement by flag States. In recognition of this problem, the IMO has adopted both an action plan and a strategy to address marine plastic litter from ships.113 Their aim is to eliminate discharges of plastic waste from ships by 2025. In relation to plastic from land-based sources, the comments made above about the inadequacy of the LOSC in relation to such sources equally apply. A potentially major step to address all forms of plastic pollution was taken in March 2022 when the UN Environment Assembly adopted a resolution that establishes an intergovernmental negotiating committee to draft a treaty on plastic pollution, including in the marine environment, which should address the full life cycle of plastic. The committee is scheduled to start work in the second half of 2022, with the aim of completing its work by the end of 2024.114 Turning to the third issue, the consequences for the marine environment of increasing emissions of greenhouse gases from anthropogenic sources, such emissions clearly fall within the LOSC’s definition of pollution in Article 1(1)(4) where they are introduced into the marine environment since they constitute ‘substances or energy’ and have some of the deleterious consequences set out there. The major source of such pollution at sea is emissions from ship exhausts, which account for just under three percent of global greenhouse gas emissions.115 See further, ibid, 704-706. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1. 113 See, respectively, MEPC, Resolution MEPC 310(73): Action Plan to Address Marine Plastic Litter from Ships, MEPC Doc 73/19/Add.1, Annex 10, 5 December 2018 and Resolution MEPC 341(77), Strategy to Address Marine Plastic Litter from Ships, MEPC Doc 77/16/Add.1, Annex 2, 14 January 2022. 114 UNEA, End Plastic Pollution: Towards an internationally legally binding instrument, UNEA Doc UNEP/EA.5/L.23/Rev.1, 2 March 2022. See also, UNEP Press Release, 'Historic day in the campaign to beat plastic pollution: Nations commit to develop a legally binding agreement' 2 March 2022, . 115 MEPC, Fourth IMO Greenhouse Gas Study 2020: Final Report, MEPC Doc 75/7/15, 29 July 2020. 111 112

54  Research handbook on international marine environmental law Such emissions are being addressed by the IMO under Annex VI of the MARPOL Convention. Before 2018, the MEPC had adopted two fairly modest measures to address greenhouse gas emissions from ships, dealing with energy efficiency and the recording of fuel consumption.116 In 2018, it approved a more ambitious Initial IMO Strategy on Reduction of GHG Emissions from Ships,117 pursuant to which further measures are to be taken. The first such measure was adopted in 2021: it is designed to cut the carbon intensity of international shipping, thus leading to a reduction in greenhouse gas emissions from ships.118 This, along with the other measures so far adopted and any future measures, are rules of reference under Article 211(2) (see section 3.3 above). The overwhelming volume of greenhouse gas emissions come from sources on land. As far as the LOSC is concerned, such emissions come within Articles 207 and 213 (on land-based sources of marine pollution) and Articles 212 and 222 (on pollution ‘from or through the atmosphere’). These provisions stipulate that States shall adopt and enforce laws and regulations to prevent, reduce and control pollution of the marine environment from these sources, ‘taking into account internationally agreed rules, standards and recommended practices and procedures’. Currently, the main such rules are found in the Paris Agreement.119 The principal obligation under the Agreement is for each party to make ‘successive nationally determined contributions that it intends to achieve’ to meet the Agreement’s goal of limiting increases in global temperatures to well below 2o C, and if possible to no more than 1.5o C.120 The rules of reference in Articles 207 and 212 referred to above are of very limited utility in the context of the climate change treaties. For States that are parties to both the LOSC and the Paris Agreement, Articles 207 and 212 add nothing to those States’ obligations under the Paris Agreement (or the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol121). For the two States that are parties to the LOSC but not to the Paris Agreement (Iraq and Yemen), the articles require them to do no more than take into account the goal of the Paris Agreement since they have made no nationally determined contribution. Apart from Articles 207 and 212 of the LOSC, it has been argued that Articles 192 (discussed See MEPC Doc 62/24/Add.1 (n 72); MEPC, Resolution MEPC.278(70): Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Protection of Pollution from Ships, 1973, As Modified by the Protocol of 1978 Relating Thereto, MEPC Doc 70/18/Add.1, Annex 3, 28 October 2016. 117 MEPC, Resolution MEPC.304(72): Initial IMO Strategy on Reduction of GHG Emissions from Ships, MEPC Doc 72/17/Add.1, Annex 1, 13 April 2018. The Strategy is due to be revised and made more ambitious in 2023: see MEPC Doc 77/16, para 7.22, 16 December 2021. 118 MEPC, Resolution MEPC.328(76): Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, As Modified by the Protocol of 1978 Relating Thereto, MEPC Doc 76/15/Add.1, Annex 1, 2021. See also, IMO, ‘Further shipping GHG emission reduction measures adopted: International Maritime Organization (IMO) adopts key mandatory measures to reduce ships’ carbon intensity; establishes ship rating system’ (Press Briefing, 17 June 2021) . 119 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) (2016) 55(4) International Legal Materials 740 (Paris Agreement). There are also the very broad obligations of the United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), to which all parties to the LOSC are parties. 120 Paris Agreement, Arts 2(1) and 4(2). 121 UNFCCC, (n 119); Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 2302 UNTS 162. 116

UN Convention on the Law of the Sea – still relevant?  55 in section 3.5 above) and 194 (which, inter alia, requires States to ‘take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’) are also relevant to controlling greenhouse gas emissions,122 but again these provisions really add nothing to States’ obligations under the climate change regime.123 Given the success of NGOs in challenging the adequacy of some States’ climate change policies before national courts in recent years,124 and given the absence of compulsory dispute settlement procedures under the climate change regime, it is not unthinkable that an NGO might support a small island State at risk of disappearing beneath the waves as a result of sea level rise to utilise the LOSC’s dispute settlement machinery against a State that had put forward what was considered to be an inadequate nationally determined contribution under the Paris Agreement. The applicant State could argue that the respondent State’s contribution was in breach of its obligations under Articles 192 and 194 of the LOSC, as well as possibly Articles 206 (on environmental impact assessment), 207 and 212.125 If such an action were successful, it might not, however, necessarily result in the respondent State increasing its contribution, or have any influence on fellow laggards. The most plausible way to get such States to increase their contributions is through political persuasion and pressure within the climate regime, rather than through litigation under the LOSC.126 An alternative, and perhaps more realistic, way in which a LOSC dispute settlement body might become seised of an issue concerning the impact of climate change on the marine environment is by means of a request for an advisory opinion. This became a possibility in 2021, when a number of members of the Alliance of Small Island States concluded an agreement that establishes the Commission of Small Island States on Climate Change and International Law127. Article 2(2) of the agreement authorises the Commission to request advisory opinions from the International Tribunal for the Law of the Sea ‘on any legal question within the scope’ of the LOSC, ‘having regard to the fundamental importance of the oceans as sinks and reservoirs of greenhouse gases and the direct relevance of the marine environment to the adverse effects of climate change on small islands States.’

See, Alan Boyle, ‘Litigating Climate Change under Part XII of the LOSC’ (2019) 34(3) International Journal of Marine and Coastal Law 458, 463-469. 123 Daniel Bodansky, ‘The Ocean and Climate Change Law: Exploring the Relationships’ in Richard Barnes and Ronán Long (eds), Frontiers in International Environmental Law: Oceans and Climate Challenges (Brill 2021) 316, 323-325. On the relevance of the LOSC to climate change, see also Roland Holst (n 33) 248-280. 124 See, eg, the decision of the Dutch Supreme Court in State of the Netherlands v Stichtung Urgenda, ECLI:​NL:​HR:​2019:​2007, Judgment (Sup. Ct. Neth. 20 December 2019) . For an overview of national climate change litigation, see, Joana Setzer and Rebecca Byrnes, Global Trends in Climate Change Litigation: 2020 Snapshot (Grantham Research Institute on Climate Change and the Environment, London School of Economics, 2020) . 125 See also, Boyle (n 122) 474-480. 126 So, too, Bodansky (n 123) 325-326. 127 Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (adopted 31 October 2021, entered into force 31 October 2021 . 122

56  Research handbook on international marine environmental law

5.

CONCLUDING OBSERVATIONS

It is unrealistic to expect the LOSC to be a ‘one-stop shop’ to address the environmental problems of the oceans.128 That was never the aim of the LOSC’s drafters; and if it had been, it would have been impossible to fulfil. Nevertheless, even though the LOSC was drafted more than 40 years ago, it remains relevant to tackling the threats currently facing the marine environment, as has been widely recognised by the international community.129 The LOSC provides the basic jurisdictional framework for protection of the marine environment, and has also acted as a catalyst for action taken by States and international organisations to further such protection. Furthermore, some of the rather bare environmental bones of the LOSC have had flesh put on them by implementation agreements, measures adopted by the ISA, rules of reference, General Assembly resolutions and the decisions of international courts and tribunals. To say that the LOSC remains relevant to the protection of the marine environment is not, of course, the same as saying that it has been effective. Clearly, it has been of rather limited effectiveness, as witnessed by the current state of the marine environment and the need to conclude a host of other marine environmental treaties. The reasons why the LOSC has not protected and preserved the marine environment more effectively are not only shortcomings in its provisions,130 but also poor implementation and enforcement by States. Ultimately, however, protecting and preserving the marine environment is not just a matter of better law, and better implemented and enforced law: it requires major life-style changes by humans, as one of the editors of this book, and others, have emphasised.131

The quoted phrase is Redgwell’s. See, Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC “Enough” to Address Climate Change Impacts on the Marine Environment’ (2019) 34(3) International Journal of Marine and Coastal Law 440, 455. 129 See text at n 13-15. 130 On which see, inter alia, Churchill, Lowe and Sander (n 9) Chs 14-17 passim; Kristina M. Gjerde, ‘Challenges to Protecting the Marine Environment beyond National Jurisdiction’ (2012) 27(4) International Journal of Marine and Coastal Law 839, 844-846. 131 See Rosemary Rayfuse, ‘Biological Resources’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 362, 392-393. See also, inter alia, Partha Dasgupta, The Economics of Biodiversity: The Dasgupta Review (UK Treasury 2021) Ch. 21; ISPPBES, Global Assessment Report (n 2) 8-10; UNEP, Making Peace with Nature: A Scientific Blueprint to Tackle the Climate, Biodiversity and Pollution Emergencies (UNEP 2021) especially 15, 17, 101-104, 133 and 140. 128

3. Fragmentation and coherence in the legal framework for the protection of the marine environment Alexander Proelss

1. INTRODUCTION The international legal regime for the protection of the marine environment falls within the intersection of two sub-areas of international law, namely the international law of the sea on the one hand and international environmental law on the other. Due to the conclusion of numerous multilateral environmental agreements, the second sub-area has developed in a highly fragmented manner over time. Regardless of the continuing relevance of the general principles of environmental law, legal scholarship is increasingly paying attention to separate environmental legal regimes,1 most of which each interact in one way or the other with marine environmental law. In this context, climate change law, the law on the conservation of biodiversity and the law on the protection of species and habitats deserve to be mentioned in particular. Since the ocean is the source of living and non-living resources, further interrelations exist with, for example, international trade and investment law. All this shows that international marine environmental law is not a self-contained regime, but that it can only be fully understood if read and applied together with related legal regimes. The fact that marine environmental law is a cross-sectoral and multi-layered area of international law entails the risk of regime collisions or norm conflicts. On a general level, the risks involved in the diversification and expansion of international law were addressed by a Study Group of the International Law Commission (ILC) on ‘Fragmentation of International Law’ established in 2002.2 The Commission noted that ‘[t]he fragmentation of the international social world has acquired legal significance, as it has been accompanied by the emergence of specialized and (relatively) autonomous rules or rule complexes, legal institutions and spheres of legal practice’.3 It furthermore recognised that ‘fragmentation does create the danger of

1 See, eg, Daniel Bodansky, Jutta Brunnée and Lavanya Rajamani, International Climate Change Law (OUP 2017); Cinnamon P Carlarne, Kevin R Gray and Richard Tarasofsky (eds), Oxford Handbook of International Climate Change Law (OUP 2014); Michael Bowman, Peter Davies and Catherine Regdwell, Lyster’s International Wildlife Law (2nd ed, CUP 2011); Michael Bowman, Peter Davies and Edward Goodwin (eds), Research Handbook on Biodiversity and Law (Edward Elgar 2016); Geert Van Calster, Wim Vandenberghe and Leonie Reins (eds), Research Handbook on Climate Change Mitigation Law (Edward Elgar 2015); Charles R McManis and Burton Ong (eds), Routledge Handbook of Biodiversity and the Law (Routledge 2020). 2 ILC, ‘Report of the International Law Commission on the Work of its Fifty-fourth Session’ (2002) Yearbook of the International Law Commission, vol II/2, UN Doc A/57/10, 97, para. 493. 3 ILC, ‘Report of the International Law Commission on the Work of its Fifty-eighth Session’ (2006) Yearbook of the International Law Commission, vol II/2, UN Doc A/61/10, 175, 176, para. 243.

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58  Research handbook on international marine environmental law conflicting and incompatible rules, principles, rule-systems and institutional practices’4 – a situation which ultimately results in ‘problems of coherence in international law’.5 In the present context, too, it is therefore all the more important to pay attention not only to the individual instruments that apply to the preservation and protection of the marine environment, but also to the way in which these instruments interact with and influence each other. As was emphasised by the ILC, the fragmentation of the international legal system also has positive aspects. Indeed, it ‘reflects the expansion of international legal activity into new fields and the attendant diversification of its objects and techniques’.6 More specifically, regime overlaps do not necessarily result in conflicts, but may, depending on the circumstances, even enhance the level of protection of the environment. Indeed, as will be demonstrated in this chapter, several of the provisions codified in Part XII of the 1982 United Nations Convention on the Law of the Sea (LOSC),7 which specifically addresses the protection and preservation of the marine environment, demand further elaboration by other agreements. To give just one example, Article 210(6) of the LOSC on pollution by dumping prescribes that ‘[n]ational laws, regulations and measures shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards’. It seems to be generally accepted that this reference clause, or renvoi, must be understood as a reference to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention),8 taking into account that this treaty, as far as its geographical scope is concerned, is globally applicable9 and specifically deals with pollution by dumping.10 It can be seen from the regulatory mandates codified in Part XII of the LOSC11 that this Part merely provides a general legal framework that must be further developed and implemented through the adoption of more specific instruments on the levels of international, regional and national law – a fact that reflects the nature of the LOSC as ‘a constitution for the oceans’.12 Seen in this light, fragmentation and coherence do not necessarily contradict each other. Nevertheless, the ILC emphasised that ‘fragmentation raises both institutional and substantive problems’.13 With regard to the institutional issues, one commentator has observed that ‘[t]he risk of fragmentation is particularly acute in an area such as the law of the sea where a large number of organizations and institutions are working on overlapping issues’,14 and has suggested that ‘[c]ooperation between institutions in their law-making activities could

Ibid, 177, para. 246. Ibid, 177, para. 247. 6 Ibid, 177, para. 246. 7 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 8 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention). 9 As of 5 April 2022, the London Convention has 87 States parties. 10 IMO, Implications of the Entry into Force of the United Nations Convention on the Law of the Sea for the International Maritime Organization, LEG/MISC/3/Rev.1, 6 January 2003, 48. 11 See, eg, London Convention, Arts 194(1) and (2), 196(1) and 197. 12 Statement made by the President of the Third United Nations Conference on the Law of the Sea (UNCLOS III), TTB Koh, on the occasion of the adoption of the Convention 13 UN Doc A/61/10 (n 3) 177, para. 245. 14 James Harrison, Making the Law of the Sea (CUP 2011) 241. 4 5

Fragmentation and coherence in legal framework for protection of the marine  59 offer an important way in which to avoid fragmentation and normative conflict’.15 In the field of marine environmental protection law, horizontal approaches to such cooperation are embodied in, for example, a number of formal memoranda of cooperation which have been concluded by the Secretariat of the Convention on Biological Diversity (CBD)16 on the basis of Article 23(4)(h) of the CBD with the secretariats of other relevant multilateral agreements,17 all of which are applicable to the protection of marine species.18 These agreements include the Ramsar Convention on Wetlands of International Importance Especially As Waterfowl Habitat (Ramsar Convention),19 the Convention on the Conservation of Migratory Species of Wild Animals (CMS),20 the Convention for the Protection of the World Cultural and Natural Heritage (WHC)21 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).22 While more administrative than implementation oriented, and of unclear legal status, these memoranda provide a starting point for future cooperative activities within the family of (marine) biodiversity related treaties. Furthermore, as far as the areas beyond national jurisdiction (ABNJ) are concerned, the international legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, which is currently under negotiation at an intergovernmental conference,23 will play a leading role in ensuring the coherence of the marine protection regime in the future (provided that its negotiation is ultimately successful). Like the approach taken by the ILC,24 this chapter does not aim to provide a detailed assessment of existing forms of cooperation between institutions.25 Rather, it addresses the substantive perspective, namely the legal machinery that governs, or influences, interactions between individual sub-regimes and their actors in the specific field of marine environmental protection. In doing so, its emphasis is less on the rules, principles and instruments dedicated to the protection and preservation of the marine environment themselves – these are dealt with in the other chapters of this book – than on the legal links that contribute to a coherent regime. The focus is primarily on types of relationships between different sets of rules and principles, which, partly following the terminology introduced by the ILC,26 can be divided into implementation relationships, interpretation relationships and conflict relationships. Ibid, 242. Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 17 The texts of these agreements are available at . 18 For analysis see, Alexander Proelss and Katherine Houghton, ‘Protecting Marine Species’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Elgar 2015) 229, 246-257. 19 Convention on Wetlands of International Importance especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 96 UNTS 245 (Ramsar Convention). 20 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS). 21 Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151 (WHC). 22 Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1975, entered into force 1 July 1975) 993 UNTS 243 (CITES). 23 Information on the status of the negotiations is available at ‘Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction’ (UN) . 24 UN Doc A/61/10 (n 3) 177, para. 245. 25 For analysis see, Harrison, Making the Law of the Sea (n 14) 237-277. 26 See UN Doc A/61/10 (n 3) 178 (2nd conclusion). 15 16

60  Research handbook on international marine environmental law As far as the course of this chapter is concerned, Part XII of the LOSC forms the starting point of the analysis, taking into account its fundamental importance for any assessment of international marine environmental law. In a second step, this chapter addresses treaty-based mechanisms contributing to the coherence of the regime for marine environmental protection by focusing on renvoi provisions, provisions requiring implementation of the LOSC through international institutions, and conflict clauses. Third, regime overlaps will be analysed through the lens of treaty interpretation. The chapter ends by providing a set of conclusions.

2.

TREATY-BASED MECHANISMS CONTRIBUTING TO COHERENCE

2.1

Part XII of the LOSC as a Constitutional Framework

The LOSC is not primarily an environmental protection instrument per se. Rather, it establishes a legal framework that regulates the rights and obligations of States in different maritime zones and essentially governs all activities and uses of the ocean. Notwithstanding this, the Convention marked an important turning point in the protection of the oceans, as, for the first time in history, a multilateral agreement codified rules and principles for the protection and preservation of the marine environment that apply not only to individual maritime zones, but to the entire marine environment as such. The pertinent rules and principles are contained in Part XII of the LOSC. Part XII contains a number of general principles on environmental protection, which are then substantiated in the following sections with regard to individual sources of pollution.27 These principles include the principle of prevention (Articles 194, 204(2) and 206),28 the principle of origin (Article 195)29 and, even though not expressly mentioned in the text of the Convention, the precautionary approach.30

27 See, Yoshifumi Tanaka, ‘Basic Principles of International Marine Environmental Law’, Chapter 4 in this volume. For an overview, see, David M Dzidzornu, ‘Four Principles in Marine Environmental Protection: A Comparative Analysis’ (1998) 29 Ocean Development and International Law 91, 97ff. 28 See Gwenaele Rashbrooke, ‘The International Tribunal for the Law of the Sea: A Forum for the Development of Principles of International Environmental Law?’ (2004) 35 International Journal of Marine and Coastal Law 515, 519ff; for further references see, Alexander Proelss, ‘The Contribution of the ITLOS to Strengthening the Regime for the Protection of the Marine Environment’ in Angela Del Vecchio and Roberto Virzo (eds), Interpretations of the United Nations Convention on the Law of the Sea by International Courts and Tribunals (Springer 2019) 93, 95. 29 Detlef Czybulka, ‘Article 195’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017), 1298, paras 3-4 and 13; Alexander Proelss and Valentin J Schatz, Regulating Vessel Discharges on the International and EU Level (Brill 2021) 8. 30 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) [1999] ITLOS Reports 280, 296, para. 77 (Southern Bluefin Tuna, Provisional Measures); ibid, Separate Opinion Judge Laing, [1999] ITLOS Reports 305, 310-311; ibid, Separate Opinion Judge ad hoc Shearer, [1999] ITLOS Reports 320, 327; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), (Advisory Opinion of 2 April 2015), [2015] ITLOS Reports 4, 59, para. 280 (SRFC Advisory Opinion). See also, Simon Marr, The Precautionary Principle in the Law of the Sea (Martinus Nijhoff 2003) 52; David Freestone, ‘International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle’ in Alan E Boyle and David Freestone (eds),

Fragmentation and coherence in legal framework for protection of the marine  61 As far as the scope of these principles is concerned, the International Tribunal for the Law of the Sea (ITLOS) decided in the Southern Bluefish Tuna cases that ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’,31 thus recognising the applicability of the environmental principles enshrined in Part XII to the management of marine living resources, and not only to the prevention of pollution in terms of Article 1(1)(4). While ITLOS did not expressly refer to a legal basis for this finding, Article 194(5) clarifies that Part XII in general, and the environmental principles codified in Section 1 of Part XII in particular, must also be seen to be applicable to the protection of species, stocks, ecosystems and habitats.32 This view was confirmed by the arbitral tribunals established on the basis of Part XV of the LOSC in the Chagos Marine Protected Area and the South China Sea arbitrations. In Chagos, the Tribunal held that Article 194 would, against the background of its paragraph 5, ‘not [be] limited to measures aimed strictly at controlling pollution’, but that it would rather ‘extend […] to measures focussed primarily on conservation and the preservation of ecosystems’.33 The Tribunal in the South China Sea case further elaborated on this, concluding that the wording of Article 194(5) confirmed that Part XII is ‘not limited to measures aimed strictly at controlling marine pollution’.34 The question remains, though, how the elements contained in Article 194(5) (‘fragile ecosystems as well as the habitat of depleted, threatened or endangered species’) ought to be interpreted. This matter will be addressed in section 3.2 of this chapter. 2.2

References to External Rules

Several provisions codified in Part XII of the LOSC expressly refer to ‘external rules’, that is, rules and principles that have been accepted within the framework of other international agreements, documents or organisations. These provisions relate to notions such as ‘applicable international rules and standards’,35 ‘internationally agreed rules, standards, and recommended practices and procedures’,36 ‘generally accepted international rules and standards’,37 and ‘global rules and standards’.38 They require that the domestic laws and regulations enacted by the contracting parties ‘shall be no less effective’39 than, or must ‘conform[…]and give effect

International Law and Sustainable Development (OUP 1999) 135, 138; Bénédicte Sage-Fuller, The Precautionary Principle in Marine Environmental Law (Routledge 2013) 68. 31 Southern Bluefin Tuna, Provisional Measures (n 30) para. 70. 32 Rudiger Wolfrum, ‘The Protection of the Marine Environment after the Rio Conference: Progress or Stalemate?’ in Ulrich Beyerlin and others (eds), Recht zwischen Umbruch und Bewahrung (Springer 1995) 1003, 1009; Tullio Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations’ (2004) 25 International Journal of Marine and Coastal Law 1, 5; contra Julian Roberts, Marine Environment Protection and Biodiversity Conservation (Springer 2007) 32. 33 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award of 18 March 2015) PCA Case No 2011-03 (Chagos Marine Protected Area), para. 538. 34 South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19 (South China Sea, Award) para. 945. 35 LOSC, Arts 213, 214, 216(1) 217(1), 218(1), 219, 220(1)-(3), 222, 226(1)(c), 228(1) and 230(1)-(2). 36 LOSC, Arts 207(1) and 212(1). 37 LOSC, Arts 211(2) and (5), 211(6)(c) and 226(1)(a). 38 LOSC, Art. 210(6). 39 LOSC, Arts 210(6), 208(3) and 220(2).

62  Research handbook on international marine environmental law to’,40 these external rules, thus ensuring the coherence of the international regime for marine environmental protection at all levels of regulation (Part XII, external rules, national law). In this way, the external rules, or rules of reference respectively,41 are indirectly incorporated into the regime of the LOSC. Depending on how the reference clauses codified in the LOSC, which provide renvois to external rules, are framed,42 the external rules will indirectly become binding under the LOSC, regardless of whether they are legally binding in themselves, and whether they have been agreed to by the parties to the LOSC.43 As a matter of principle, this is in line with, and does not even constitute an exception to, the principle pacta tertiis nec nocent nec prosunt under Article 34 of the 1969 Vienna Convention on the Law of Treaties (VCLT),44 taking into account that the parties to the LOSC are not directly bound to the external rules, but only to the LOSC itself, that is the agreement containing the reference clauses, which they have, based on a sovereign decision, voluntarily ratified or acceded to.45 Theoretically, the methodological approach on which Part XII is based could be used not only to provide the coherence of the marine environmental protection regime, but also to keep it fit for the future.46 This would be the case if the reference clauses codified in the Convention were to apply regardless of whether the external rules concerned have come into existence prior or after the adoption or entry into force of the LOSC. In this case, adaptations of the external rules to new developments and findings, or the agreement of completely new external rules, would automatically be incorporated into the Convention. From the point of view of marine environmental protection, this understanding, which would indeed reflect the desire of the contracting parties to the LOSC to create a ‘living instrument’,47 would appear to be welcome. As the external rules, depending on the interpretation of the reference clauses of the LOSC,

LOSC, Art. 211(5). The matter discussed in this section is characterised by significant terminological uncertainty. Sometimes the term ‘rules of reference’ is used in relation to the LOSC provisions that refer to the external rules; see, eg, W van Reenen, ‘Rules of Reference in the New Convention on the Law of the Sea, in particular in Connection with the Pollution of the Sea by Oil from Tankers’ (1981) 12 Netherlands Yearbook of International Law 3-44; Harrison, Making the Law of the Sea (n 14) 166. In this chapter, the pertinent LOSC provisions are called ‘reference clauses’, or provisions containing a renvoi respectively, while the term ‘rules of reference’ is used for the external rules that are incorporated into the regime of the LOSC. The term ‘renvoi’ was, again, used by the Arbitral Tribunal in Chagos Marine Protected Area (n 33) paras 316 and 503. 42 For assessment see, Budislav Vukas, ‘Generally Accepted International Rules and Standards’ in Alfred HA Soons (ed), Implementation of the Law of the Sea Convention through International Institutions (Law of the Sea Institute 1990) 405, 406-408. 43 See Alan E Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (1985) 79 American Journal of International Law 347, 356; Donald R Rothwell and Tim Stephens, The International Law of the Sea (Hart 2010) 344. 44 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 45 See Alexander Proelss, ‘Article 34’ in Oliver Dörr and Kristen Schmalenbach (eds), Vienna Convention on the Law of Treaties – A Commentary (2nd ed, Springer 2018) 655, para. 57. 46 Yoshifumi Tanaka, The International Law of the Sea (3rd ed, CUP 2019) 334. 47 This nature of the LOSC can be demonstrated in particular by reference to paras 1, 3 and 4 of the preamble. For analysis see, Richard Barnes, ‘The Continuing Vitality of UNCLOS’ in Jill Barrett and Richard Barnes (eds), The United Nations Convention on the Law of the Sea: A Living Instrument (British Institute of International and Comparative Law 2016) 459-489. 40 41

Fragmentation and coherence in legal framework for protection of the marine  63 do not necessarily have to be legally binding,48 the Convention could be smoothly adapted to new scientific insights and developments without the need to conduct time-consuming treaty amendment procedures, and the level of protection could thus be steadily increased.49 The consequence of this view, however, would be that the continuous adaptation of the LOSC would also include developments that could possibly not have been foreseen by the contracting parties at the time of accession to the Convention, and its entry into force respectively. For example, can it really be assumed that the renvoi contained in Article 210(6) to ‘global rules and standards’ is not only applicable to the London Convention, but also to the 1996 London Protocol50 – notwithstanding the fact that this treaty was adopted after the adoption and entry into force of the LOSC? The answer to this question generally depends on how the pertinent reference clauses codified in the LOSC must be interpreted. With specific regard to Article 210(6), it has been suggested that the second sentence of Article 210(4) (‘Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary’) indicates that the contracting parties were perfectly aware of the fact that they would be confronted in future with revised and potentially unpredicted global rules. Consequently, Article 210(6), which refers to the global rules and standards (such as, for example, those contained in the London Protocol) established on the basis of Article 210(4), should also be interpreted broadly in a manner open to future developments.51 Furthermore, an attempt made by a small number of States during UNCLOS III to downgrade Article 210(6) to an obligation to merely ‘take into account’ the global rules and standards52 was unsuccessful. It should be noted, though, that an interpretation of Article 210(6), according to which this provision is also applicable to future developments of the external rules referred to therein, cannot automatically be extended to other reference clauses codified in the Convention. Rather, it remains the case that the question of whether future developments are also covered by the renvois depends on an interpretation of the respective reference clause.

For example, ‘generally accepted international rules and standards’ and ‘internationally agreed rules, standards, and recommended practices and procedures’ seem to include soft law instruments (‘standards’, ‘recommended practices and procedures’), provided that they are ‘generally accepted’, or ‘internationally agreed’ respectively. See, s. 2.4. 49 For further discussion see Robin Churchill, ‘The UN Convention on the Law of the Sea – Still Relevant to the Protection of the Marine Environment?’, Chapter 2 in this volume. 50 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, (opened for signature 7 November 1996, entered into force 24 March 2006) (1996) 36 International Legal Materials 1 (London Protocol). 51 F Wacht, ‘Article 210’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1407, para. 20, fn 62. See also, Louise de La Fayette, ‘The London Convention 1972: Preparing for the Future’ (1998) 13 International Journal of Marine and Coastal Law 515, 516. This view is shared by several parties to the London Convention: see, IMO, Report of the Seventeenth Consultative Meeting, IMO Doc LC 17/14, 28 October 1994, para. 2.5: ‘The Meeting took note of the opinion of several delegations that such States parties were not only bound to adopt requirements consistent with the current London Convention 1972 but also with future amendments adopted thereto’. 52 Third UN Conference on the Law of the Sea, Proposals or Amendments Informally Introduced as Conference Room Papers but not Agreed Upon by the Informal Sessions on Item 12 During the Third Session of the Conference, UN Doc A/CONF.62/C.3/L.30 and Add.1, 1975, reprinted in Official Records of the Third United Nations Conference on the Law of the Sea, Vol IV, 219ff. 48

64  Research handbook on international marine environmental law From a procedural viewpoint, it may be asked whether the jurisdiction of courts and tribunals under Part XV of the LOSC (‘LOSC tribunals’), which first and foremost extends to disputes ‘concerning the interpretation or application of this Convention’ (Article 288(1)), is limited to interpreting and applying the reference clauses codified in the LOSC, or whether it also extends to the rules of reference to which these clauses refer. In the latter case, it would be possible to litigate violations of external rules incorporated into the LOSC by virtue of its renvoi provisions – provided that these provisions require compliance with the external rules – before the compulsory dispute settlement bodies under Part XV. Based on this understanding, commentators have argued that the Paris Agreement53 sets out internationally agreed rules, standards and recommended practices and procedures in terms of Articles 207 and 212 of the LOSC ‘for protecting and preserving the marine environment from the deleterious effects of GHG emissions and climate change, whether through acidification or warming of sea water, or sea level rise’,54 articles whose violation could potentially be subjected to binding dispute settlement procedures under Part XV of the LOSC.55 While this matter cannot be discussed here in detail,56 it is beyond serious doubt that the scope of the reference clauses in question is indeed covered by the jurisdiction of LOSC courts and tribunals.57 These bodies could thus decide, for example, on whether and, if so, to what extent the legal obligations and soft law requirements set out in the Paris Agreement are to be considered as ‘internationally agreed rules, standards and recommended practices and procedures’.58 The question remains, however, whether it is really likely that the contracting

Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) UNTS No I–54113, (2016) 55(4) International Legal Materials 740 (Paris Agreement). 54 Alan E Boyle, ‘Litigating Climate Change under Part XII of the LOSC’ (2019) 34 International Journal of Marine and Coastal Law 458, 480. 55 In the affirmative, Boyle, ibid, 466–69, 480. See also, Catherine Redgwell, ‘Treaty Evolution, Adaptation and Change: Is the LOSC ‘Enough’ to Address Climate Change Impacts on the Marine Environment?’ (2019) 34 International Journal of Marine and Coastal Law 440, 449 and 452-454; Anna Petrig and Marta Bo, ‘The International Tribunal for the Law of the Sea and Human Rights’, in Martin Scheinin (ed), Human Rights Norms in ‘Other’ International Courts (CUP 2019) 353, 401-402 (concerning human rights). 56 For a detailed assessment of dispute settlement in relation to marine environmental protection, see Natalie Klein and Millicent McCreath, ‘Resolving International Disputes Concerning the Marine Environment’, Chapter 6 in this volume. 57 See South China Sea, Award (n 34) paras 1082–83, where the Arbitral Tribunal interpreted Art. 94 as establishing a renvoi to the Convention on the International Regulations for Preventing Collisions at Sea (adopted 20 October 1972, entered into force 15 July 1977) 1050 UNTS 16 (COLREGS). Consequently, ‘a violation of the COLREGS, as “generally accepted international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself’ (ibid, para. 1083). See also, ‘Enrica Lexie’ Incident (Italy v India) (Award of 21 May 2020) PCA Case No 2015-28 (Enrica Lexie) para. 565. 58 LOSC, Art. 212(3), which refers to ‘competent international organizations’ in the plural form, suggests that the IMO is not the only appropriate forum for States to establish global and regional rules, standards and recommended practices and procedures applicable to vessels to prevent, reduce and control pollution of the marine environment from or through the atmosphere (but see IMO, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc LEG/MISC.8, 30 January 2014, 80). At the same time, and irrespective of the fact that no reason exists why greenhouse gas emissions should not be regarded as pollution within the meaning of Art. 1(1)(4), it is highly doubtful whether the Paris Agreement, which does not individually oblige its parties to achieve 53

Fragmentation and coherence in legal framework for protection of the marine  65 parties to the LOSC intended to potentially broaden the scope of the Convention by way of reference to external rules to such a degree that it would also incorporate obligations from legal regimes that are not directly related to the law of the sea. In this respect, Judge Robinson argued in dissent in the ‘Enrica Lexie’ case, that the renvois contained in Articles 2(3), 56(2), 58(2) and 297(1)(a) cannot be read in such a way as to incorporate customary international law in general and the general rules of immunity in particular into the Convention regime.59 He went on to state that the restrictive approach taken by the International Court of Justice (ICJ) in the Immunities and Criminal Proceedings case60 vis-à-vis the matter of whether a treaty provision constitutes a renvoi to general international law was ‘deferential to, and protective of, the limits of a State party’s consent to jurisdiction in a compromissory clause conferring on the Court jurisdiction over a dispute concerning the interpretation or application of a treaty’.61 While the matter relevant here does not affect potential references to customary international law, and notwithstanding the compulsory character of the system of peaceful dispute settlement under the LOSC, the fact remains that the exclusive legal basis of jurisdiction is, as far as inter-State disputes are concerned, formal consent (and thus State sovereignty).62 This author has thus concluded that ‘international courts and tribunals are generally required to interpret and apply the individual elements that give rise to its jurisdiction in a cautious manner’.63 At the same time, if and to the extent to which the LOSC requires domestic laws and regulations enacted by the contracting parties to be no less effective, or to give effect to, external rules, it must be possible for the dispute settlement bodies under Part XV to examine whether the standards established by the applicable external rules have been observed. Determination of whether or not this is the case, again, presumes that these bodies are competent to interpret and apply the respective external rules in order to identify the standards to be observed by the contracting parties. Otherwise, it would not be possible to establish whether the contracting parties have complied with the specifications of the reference clauses that are particularly common within the framework of Part XII, and the dispute settlement system would, as far as the protection of the marine environment is concerned, remain ineffective. In order to harmonise these requirements with the fundamental role of consent in peaceful dispute settlement, it is submitted that the renvois codified in Part XII – and thus the jurisdiction ratione materiae of LOSC courts and tribunals under Article 288(1) – should generally be held to only cover external rules directly dedicated to the protection and preservation of the marine environment. This position reflects a more restrictive approach to the interpretation of the renvoi clauses codified in the LOSC than the approach taken by the Arbitral Tribunal in the the specified nationally determined contributions (NDCs), establishes meaningful benchmarks for legal proceedings under Part XV of the LOSC. 59 Enrica Lexie, Dissenting Opinion Judge Robinson, paras 31 and 50. The majority of arbitrators considered these provisions to be inapplicable on the facts and did not examine the question as to whether customary international law was imported into the LOSC on the basis of the provisions mentioned in the main text; see Enrica Lexie (n 57) para. 798. 60 Immunities and Criminal Proceedings (Equatorial Guinea v France) (Preliminary Objections, Judgment) [2018] ICJ Reports 292, 321, para. 93. 61 Enrica Lexie, Dissenting Opinion Judge Robinson (n 59) para. 37. 62 Alexander Proelss, ‘The Limits of Jurisdiction Ratione Materiae of UNCLOS Tribunals’ (2018) 46 Hitotsubashi Journal of Law and Politics 47, 48. 63 Ibid. A less restrictive position is taken, for example, by Yuval Shany, ‘Jurisdiction and Admissibility’ in Cesare PR Romano, Karen J Alter and Yuval Shany (eds), Oxford Handbook of International Adjudication (OUP 2013) 779, 798–800.

66  Research handbook on international marine environmental law Chagos case.64 Instead, it joins the view taken by Judge Robinson in his dissenting opinion in the ‘Enrica Lexie’ case,65 who drew a ‘strong a contrario inference’ against the incorporation into the Convention regime of rules on types of immunity other than the complete immunity in respect of warships and ships used on government non-commercial service from the fact that the LOSC was silent on such other types. If applied to the present context, a strong presumption exists that the reference clauses codified in Part XII only refer to external rules whose content is sufficiently related, in terms of substance, to the subject matter of the reference clauses. This would usually require that the reference clause and the external rule concern the same source of marine pollution, or component of the marine environment to be protected and preserved. 2.3

Treaty Implementation through International Institutions

Many reference clauses codified in Part XII refer in abstract language to ‘competent international organizations’ and/or ‘diplomatic conference’. The LOSC allocates broad powers in the implementation and further development of the regime for marine environmental protection, as well as in providing its coherence, to these institutions. Depending on the specific context, their tasks and powers differ in scope and degree. On the most general level, the role of these institutions is simply to enable and facilitate inter-State cooperation.66 Other provisions envisage in a more specific manner that new international rules, standards and practices shall be negotiated and adopted within the frameworks of ‘competent international organization(s)’ and/or ‘diplomatic conference’, which thus serve as forums for international lawmaking,67 or for facilitating compliance and enforcement respectively.68 Finally, in a few instances, the relevant LOSC provisions require national rules and standards dedicated to the protection and preservation of the marine environment to comply with the rules, standards and practices that have been adopted by the ‘competent international organization(s)’.69 In such situations, these rules serve as legal benchmarks for the measures to be adopted at national levels. 2.3.1 Competent international organisation(s) There seems to be general consensus that the term ‘competent international organization’, when used in the singular form and in connection with the adoption of international shipping rules and standards in matters concerning maritime safety, efficiency of navigation and the prevention and control of marine pollution from vessels and by dumping, refers exclusively to the International Maritime Organization (IMO).70 This is due to the global mandate of the IMO

Chagos Marine Protected Area (n 33) paras 293-294 and 499–536. Enrica Lexie, Dissenting Opinion Judge Robinson (n 59) para. 38. 66 See, eg, LOSC, Arts 197, 199, 200 and 201. 67 See, eg, LOSC, Arts 202, 207(4), 208(5), 210(4), 211(1) and 212(3). See also, ibid, Art. 145, which obliges the Authority to ‘adopt appropriate rules, regulations and procedures’ concerning the protection of the marine environment from harmful effects which may arise from activities in the Area. 68 See, LOSC, Arts 213, 214, 216(1), 217(1) and (4), 218(1) and (7) and 222. 69 LOSC, Art. 211(2) and (5). 70 IMO Doc LEG/MISC.8 (n 58) 7. 64 65

Fragmentation and coherence in legal framework for protection of the marine  67 as a specialised agency within the United Nations (UN) system established by the Convention on the International Maritime Organization.71 The situation is different, however, if reference to ‘competent international organizations’ is used in the plural form. Which institutions can be considered as being competent under the relevant reference clauses then depends on the context, or object and purpose, of the respective clauses.72 Article 197, which establishes a general legal duty to ‘cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations’, clarifies that such references may also include regional institutions, such as those established in the context of the Regional Seas Programme of the United Nations Environment Programme (UNEP).73 For example, with regard to the North-East Atlantic region, the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),74 an agreement which, while not having been developed by UNEP, cooperates with the Regional Seas Programme, has resulted in the establishment of the OSPAR Commission.75 This Commission is, inter alia, mandated to adopt legally binding decisions addressing all kinds of marine pollution covered by the scope of the LOSC,76 thus constituting a competent international organisation in terms of Articles 207(4), 208(5) and 210(4). The fact that these provisions require the contracting parties to the LOSC to act through the competent international organisations to establish, or endeavour to establish respectively, ‘global and regional rules, standards and recommended practices and procedures’ demonstrates that regional institutions may also be covered by the respective renvois. According to a non-authoritative list provided by the UN Division for Ocean Affairs and the Law of the Sea (UNDOALOS),77 other examples of ‘competent international organizations’, include the Food and Agriculture Organization of the UN (FAO),78 the International Atomic Energy Agency (IAEA),79 the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP),80 and the UN itself (through its General Assembly and

Convention Establishing the Intergovernmental Maritime Consultative Organization (IMCO) (adopted 6 March 1948, entered into force 17 March 1958). The name was changed in 1982 to the International Maritime Organization. 72 See also, Tim Stephens, ‘Article 197’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017), 1328, para. 17. 73 For information see, ‘Regional Seas Programme’ (UNEP) . 74 Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention). 75 See, OSPAR Convention, Art. 10(1). 76 See, OSPAR Convention, Arts 10(3) and 13(2). 77 UNDOALOS, ‘“Competent or Relevant International Organizations” under the United Nations Convention on the Law of the Sea’ (1996) 31 Law of the Sea Bulletin 78-95. 78 Under LOSC, Arts 197–206; see UNDOALOS ‘Competent or Relevant International Organizations’ (n 77) 85-86. For analysis see, Harrison, Making the Law of the Sea (n 14) 224-226. 79 Under LOSC Arts 198 and 207; see, Tim Stephens, ‘Article 198’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1333, para. 17; Frank Wacht, ‘Article 207’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1378, para. 14. 80 Under LOSC Arts 201 and 204; see, Tim Stephens, ‘Article 201’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1344, para. 3; Eike Blitza, ‘Article 204’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1356, para. 18. 71

68  Research handbook on international marine environmental law bodies such as UNEP and the UN Development Programme (UNDP)).81 Moreover, in view of Articles 145 and 209, there is no doubt that the International Seabed Authority (ISA) is a competent international organisation in the relevant context.82 The aforementioned institutions have in common that they deal directly with marine environmental protection issues. Unlike the treaty bodies (conferences of the parties (COPs), secretariats, etc) of other multilateral environmental agreements, they are not based on separate substantive legal regimes such as the regimes on climate change, the preservation of wildlife and the protection of the ozone layer. This is not to say that measures adopted by treaty bodies of other multilateral environmental agreements are without relevance for marine environmental protection law. What is meant here is merely that no implementation powers have been assigned to these bodies by Part XII. In contrast, as will be discussed in section 3.1 below, such measures may well influence the interpretation of the rules and principles of marine environmental protection codified in the LOSC. Regardless of the terminology used, the references included in Part XII of the LOSC to ‘international organizations’ should not be understood in a formal sense as exclusively covering institutions that have their own legal personality. The Convention in general, and Part XII in particular, contain numerous references to soft law instruments,83 and no reason exists why a different result should apply to the level of institutions. Insofar as the relevant provisions of Part XII recognise lawmaking, or standard-setting, powers of international organisations, it is, however, necessary that the organisation concerned is ‘competent’, that is, able to develop and adopt substantive rules and standards in the relevant field. This requirement is arguably lacking in the case of the Meeting of States Parties to the LOSC (SPLOS).84 2.3.2 Nature and scope of powers On all levels of institutionalised cooperation, different standards in relation to the required action are established by the applicable reference clauses codified in Part XII. As has been analysed by the IMO Secretariat, even where a legal obligation to apply IMO (or any other organisation’s) rules and standards is established, ‘[t]he specific form of such application relies to a great extent on the interpretation given by parties to UNCLOS to the expressions “take account of”, “conform to”, “give effect to” or “implement” in relation to IMO provi-

For example, under LOSC, Arts 202, 207 and 208; see James Harrison, ‘Article 202’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017), 1346, para. 8; Wacht, ‘Article 207’ (n 79) para. 15; Frank Wacht, ‘Article 208’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1391, para. 14. 82 Arguably, the situation is to be assessed differently in relation to the EU. The EU is an ‘international organization’ within the meaning of Art. 305(1)(f) of the LOSC in conjunction with Annex IX and, as such, a contracting party to the LOSC, but not an organisation mandated to set global standards in relation to the protection of the marine environment. This conclusion is supported by the broad powers of the EU that go far beyond issues of marine environmental protection. 83 To name just two examples, LOSC, Art. 61(3) refers to ‘international minimum standards, whether subregional, regional or global’, and Art. 211(5) speaks of ‘generally accepted international rules and standards’, thus distinguishing between binding law (‘rules’) and norms that do not necessarily have to be legally binding (‘standards’). For analysis see, Kristin Bartenstein, ‘Article 211’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1419, para. 12. 84 For discussion, see below, section 3.1. 81

Fragmentation and coherence in legal framework for protection of the marine  69 sions’.85 As far as the present context is concerned, Part XII thus contains both obligations of result and obligations of conduct. In situations where the relevant provisions of Part XII require national rules and standards dedicated to the protection and preservation of the marine environment to conform, or give effect, to rules and standards established through the competent international organisation or general diplomatic conference, the sovereignty of the contracting parties is safeguarded by the requirement that these measures must be ‘generally accepted’.86 Against this background, clarification is needed as to when an international rule or standard is generally accepted. This issue has been the subject of considerable academic discussion.87 The most restrictive view is that international rules and standards must have developed into customary international law in order to be generally accepted.88 Another group of commentators has taken the view that such rules and standards must have been incorporated in international agreements, but they disagree as to whether these agreements must have been globally accepted, enjoy universal character, or merely have entered into force.89 According to a third interpretation, which seems to be shared by the IMO Secretariat,90 it is sufficient that the measures in question have received widespread acceptance – by whatever form of international consent.91 This would potentially include standards contained in IMO Resolutions or, where the applicable reference clause is not per se limited to the IMO, measures adopted by other relevant ‘competent international organizations’ that have been adopted by consensus92 as well as rules and standards contained in conventions that have received a considerable number of ratifications (whatever that means). In any event, it would arguably be necessary that the respective rules and standards have been accepted by States that are representative of the various interests regarding the relevant issue (for example States representing the majority of world shipping by tonnage).93

IMO Doc LEG/MISC.8 (n 58) 10. See LOSC, Art. 211(2), (5) and (6)(c); see also LOSC, Art. 226(1)(a). 87 For detailed analysis see, Bernard H Oxman, ‘The Duty to Respect Generally Accepted International Standards’ (1991) 24 New York University Journal of International law and Politics 109, 155-158; Erik J Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer 1998) 148-167 and 172-178; Henning Schult, Das völkerrechtliche Schiffssicherheitsregime (Duncker & Humblot 2005) 77-83; Bartenstein (n 83) paras 33-38; Harrison, Making the Law of the Sea (n 14) 171-179. 88 van Reenen (n 41) 12. 89 Boyle ‘Marine Pollution under the Law of the Sea Convention’ (n 43) 356; Mario Valenzuela, ‘IMO: Public International Law and Regulation’ in Douglas M Johnston and Norman G Letalik (eds), The Law of the Sea and Ocean Industry: New Opportunities and Restraints (Law of the Sea Institute 1984) 141, 145. Tanaka (n 46) 334 takes the view that entry into force cannot be sufficient in the case of ‘recent treaties that have just entered into force but have much lower participation rate.’ 90 IMO Doc LEG/MISC.8 (n 58) 11, referring to ‘the degree of acceptability and worldwide implementation’. 91 Kari Hakapää, Marine Pollution in International Law (Academia Scientiarum Fennica 1981) 120 has suggested that it may not be necessary for the convention which contains the respective rules and standards to have entered into force, provided that it has been signed by a significant number of States. 92 Cf Harrison, Making the Law of the Sea (n 14) 175-176, according to whom ‘the existence of consensus among members of the IMO may make it more likely that a standard will be generally accepted’, but who at the same time insists that ‘[t]he mere adoption or approval of an international standard by an international organization is not sufficient to establish general acceptance.’ 93 See, Molenaar (n 87) 156-157. 85 86

70  Research handbook on international marine environmental law None of these views is likely to be completely convincing (for example, rules and standards that have developed into customary international law must be observed anyway by the contracting parties), and so a comparatively flexible approach to the ‘generally accepted’ requirement has become established at the level of international practice.94 As has been demonstrated by one commentator, this practice is not limited to that of individual contracting parties, but also includes the concerted actions taken through the competent international organisations such as the IMO or by the UN General Assembly.95 The flexibility involved in the matter relevant here is somewhat surprising, given that the question of whether a particular rule, standard or procedure is ‘generally accepted’, at least in the context of Article 211(5), determines whether a contracting party to the LOSC is bound by that standard. One can only speculate about the reasons for this situation. One commentator has suggested that coastal States may assume that international rules and standards are generally accepted ‘sometimes due to the sole fact that they are themselves bound by them’.96 Be that as it may, it can be concluded that the broad implementation powers of the IMO in the field of marine pollution from ships seem to be predominantly accepted – a result which clearly contributes to the coherence of the regime applicable to marine pollution from ships. 2.4

Conflict Clauses

Where the contracting parties to the relevant agreements are subject to conflicting obligations, regime overlaps may result in inactivity of the respective contracting parties and thus ultimately in a further deterioration of the state of the marine environment. For example, with regard to ocean iron fertilisation (OIF), a controversy arose over whether this activity, which was addressed by the respective COPs in partially different ways,97 should be considered to be primarily governed by the rules and principles of the CBD or those of the London Convention and Protocol, or by both – a situation that temporarily threatened to result in a legal vacuum.98 It is therefore essential that such collisions are avoided and the general coherence of the framework for the protection of the marine environment is safeguarded. This can potentially be achieved by recourse to conflict clauses, such as those found in Articles 237 and 311 of the

94 For an assessment of State practice see, ibid, 177-178; Erik Franckx (ed), Vessel-Source Pollution and Coastal State Jurisdiction: The Work of the ILA Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991–2000) (Brill 2001) 24-27. 95 Harrison, Making the Law of the Sea (n 14) 176-178. 96 Bartenstein (n 83) para. 38. 97 CBD, Decision IX/6, Biodiversity and Climate Change, UNEP/CBD/COP/DEC/IX/16, 9 October 2008; IMO, Regulation of Ocean Fertilization, Resolution LC–PL.1 (2008), 31 October 2008. 98 For early assessments see, Rosemary Rayfuse, MG Laurence and Kristina M Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas Uses’ (2008) 23 International Journal of Marine and Coastal Law 297, 317-319; Ralph Bodle, ‘Geoengineering and International Law: The Search for Common Legal Ground’, (2010) 46(2) Tulsa Law Review 305, 313-320.

Fragmentation and coherence in legal framework for protection of the marine  71 LOSC,99 or Article 22(2) of the CBD.100 Both Article 237(1) of the LOSC and Article 22(2) of the CBD concern the relationship between the law of the sea and obligations under other agreements on the protection and preservation of the marine environment. Whereas the first provision confirms that the provisions of Part XII ‘are 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’, the latter states that ‘Contracting parties shall implement this Convention [the CBD] with respect to the marine environment consistently with the rights and obligations of States under the law of the sea’. However, as has been observed by the Study Group of the ILC on fragmentation, these clauses, while ‘undoubtedly useful’, are subject to limits ‘to what they can achieve’ (in particular taking into account that they cannot affect the rights of third parties), and ‘their meaning or effect may sometimes be obscure’.101 This can be demonstrated by reference to Article 22(2) of the CBD. While prima facie, this provision seems to establish superiority of the LOSC over the CBD in relation to the protection of the marine environment, it has been observed by commentators that Article 22(2) neglects a broader category of legal elements – namely approaches and principles – which do not constitute rights and obligations per se.102 In addition, it has been stated that ‘many of the conflict clauses in the [LOSC] are quite open-ended and refrain from setting up neat priorities’,103 and this is particularly true for Article 237(1). This provision simply states that the LOSC is without prejudice to certain obligations entered into by States under existing agreements for the protection of the marine environment. At the same time, however, it underlines the nature of the LOSC as a framework convention, or constitution for the oceans, recognising that its provisions – in this case those of Part XII – need to be further developed through other multilateral agreements. Thus, neither Articles 237 and 311 of the LOSC nor Article 22(2) of the CBD can be held to provide any clear answer on the relationship between the two agreements.104 If no conflict clause is available or applicable, regime collisions must be addressed by reference to principles of conflict resolution such as the lex specialis and lex posterior principles,105 and by attempts to interpret potentially conflicting norms, based on Article 31(3) of 99 It has been noted that LOSC, Art. 237(1) is lex specialis to Art. 311(2) and (3). See Detlef Czybulka, ‘Article 237’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1596, para. 2; Nele Matz-Lück, ‘Article 311’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 2009, para. 18. 100 See also, IMO Doc LEG/MISC.8 (n 58) 8: ‘The application of IMO treaties should also be guided by the provisions contained in articles 311 and 237 of UNCLOS’. 101 All quotations from: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission (Finalized by Martti Koskenniemi), UN Doc A/CN.4/L.682, 13 April 2006, 137, paras 269-270. 102 Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Springer 2003) 125. 103 UN Doc A/CN.4/L.682 (n 101) 141, para. 278. 104 Wolfrum and Matz (n 102) 125; Alan E Boyle and Christine Chinkin, The Making of International Law (OUP 2007) 256-257; Alan E Boyle and Catherine Redgwell, Birnie, Boyle and Redgwell’s International Law and the Environment (4th ed, OUP 2021) 772-773. See also, UN Doc A/CN.4/L.682 (n 101) 137-138, para. 271. 105 The ILC Study Group on Fragmentation considered the maxim lex specialis derogat legi generali ‘a generally accepted technique of interpretation and conflict resolution in international law’ (UN Doc

72  Research handbook on international marine environmental law the VCLT, in a harmonised manner. However, all of these options are subject to limitations. Determination of which of the overlapping treaties is the more specific one regularly causes difficulties where the respective treaties regulate different issues and pursue different objectives.106 Similarly, the lex posterior principle is pushed to its limits in situations where the overlapping international agreements are parts of different regimes of international law (for example, the law of the sea on the one hand and international wildlife law on the other), or where the parties to the subsequent treaty are not identical to the parties of the earlier treaty.107 With the potential exception of ‘systemic integration’ by harmonised interpretation which will be discussed in section 3 below, the relevance of the traditional rules of conflict resolution thus seems to be limited. The lack of a hierarchically structured system, or sufficient links between separate treaty regimes respectively, leads to well-known problems of fragmentation, especially in the field of marine species protection. In this respect, the fact that certain endangered marine species have been included in the annexes to several agreements applicable in parallel may prepare the legal ground for forum shopping.108 While uniform regulation under the relevant agreements is not only desirable but necessary for effective preservation of the species in question, there is arguably no general legal obligation of States to provide for such uniformity. This is where the cooperation between the institutions of the applicable treaty regimes, to which reference has already been made in the introduction, comes into play. For example, a memorandum of understanding concluded by the secretariats of the CMS and the International Whaling Commission (IWC)109 states that ‘[t]he UNEP/CMS and IWC Secretariats will to the extent possible, coordinate their programme of activities to ensure that their implementation is complementary and mutually supportive’.110 As far as the relationship with the CBD is concerned, the Sixth CBD COP explicitly recognised in its decision VI/20 ‘the Convention on Migratory Species as the lead partner in conserving and sustainably using migratory species over their entire range’ and ‘that the Convention on Migratory Species provides an international legal framework through which range States can cooperate on migratory species issues’.111 While the approach of entering into memoranda of understanding may seem to embody a mere stopgap in the light of the fact that these memoranda do not subject the States parties to the overlapping agreements to any legal obligations, they have apparently been proven to

A/61/10 (n 3) 178 (5th conclusion)). The lex posterior principle is codified in Art. 30 VCLT (n 44). For analysis see, Boyle and Chinkin (n 104) 248-255. 106 Wolfrum and Matz (n 102) 157-158, who refer to the example of a conflict between the CBD and the Kyoto Protocol. 107 See UN Doc A/61/10 (n 3) 181 (25th and 26th conclusions). 108 For analysis in relation to large whale species see, Alexander Gillespie, ‘Forum Shopping in International Environmental Law: The IWC, CITES, and the Management of Cetaceans’ (2002) 33 Ocean Development and International law 17, 25-27 and 31-38. 109 The IWC was established on the basis of the International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (ICRW). 110 UNEP, Memorandum of Understanding between the Secretariat of the International Whaling Commission (IWC Secretariat) and the Secretariat of the Convention on the Conservation of Migratory Species of Wild Animals (CMS) (UNEP/CMS Secretariat), Annex I, UNEP/CMS/Conf.7.11, 21 August 2002. 111 UNEP, Cooperation with other Organizations, Initiatives and Conventions, Annex I, Decision VI/20, UNEP/CBD/COP/6/20, 19 April 2002, 212. See also, UNEP, 44th Meeting of the Standing Committee, Cooperation between CMS and CBD, UNEP/CMS/StC44/18.1 (2015).

Fragmentation and coherence in legal framework for protection of the marine  73 make forum shopping more difficult.112 In addition to these forms of horizontal cooperation between the secretariats of multilateral environmental agreements, the UN General Assembly has established UN Oceans, an ‘inter-agency mechanism that seeks to enhance the coordination, coherence and effectiveness of competent organizations of the United Nations system and the International Seabed Authority […] in conformity with the United Nations Convention on the Law of the Sea […]’.113 In terms of an institutional framework, UN Oceans gathers numerous UN organs, commissions, specialised agencies, departments and programmes whose competencies are in one way or the other related to activities related to ocean and coastal areas. Although it is difficult, if not impossible, to assess the work of UN Oceans from a formal legal perspective, its very establishment embodies the insight that interinstitutional cooperation is necessary because coherence of the marine environmental protection regime cannot be ensured by means of formal rules and principles alone. In other words: what is needed is comprehensive governance of the oceans that brings together and relates the numerous multilateral agreements, soft law instruments and actors relevant to marine environmental protection in a coordinated manner.

3.

ADDRESSING REGIME OVERLAPS THROUGH TREATY INTERPRETATION

3.1

The Role of International Organisations

Leaving aside the – direct or indirect – implementation powers that have been allocated to international organisations by Part XII, it may be asked whether the relevant institutions may also influence coherence of the regime for marine environmental protection on the level of treaty interpretation. For example, is there a legal basis for regarding the IMO as enjoying unlimited discretion in deciding what it considers ‘global rules and standards’ under Article 210(6), thus being mandated to influence the interpretation of that provision by way of its own practice? On a more general level, would it be possible to rely on, say, a statement or resolution of the SPLOS to influence the scope and content of Part XII? It is generally accepted that the practice of an international organisation or treaty body may well constitute ‘subsequent practice’ in terms of Article 31(3)(b) of the VCLT where States have entrusted that organisation or body by way of a treaty to perform activities under that treaty. In its advisory opinion concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the ICJ confirmed that the practice of an international organisation is part of the ‘elements which may deserve special attention when the time comes to interpret these constituent treaties’ under Article 31(3)(b) of the VCLT.114 Draft conclusion 12 on constituent instruments of international organisations, which was adopted by the ILC in its work on subsequent agreements and subsequent practice in relation to the interpretation of treaties, confirms in its paragraph 2 that ‘[s]ubsequent agreements and subsequent practice of the parties

Margaret A Young, Trading Fish, Saving Fish: The Interaction between Regimes in International Law (CUP 2012) 154-188. 113 UNGA, Oceans and the Law of the Sea, UN Doc A/68/L.18, Annex, 27 November 2013, para. 1. 114 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion of 8 July 1996) [1996] ICJ Reports 66, 75, para. 19. 112

74  Research handbook on international marine environmental law under article 31, paragraph 3, or subsequent practice under article 32, may arise from, or be expressed in, the practice of an international organization in the application of its constituent instrument’.115 However, it is arguably impossible to extend such subsequent practice to the interpretation of an international agreement other than the constituent treaty of an international organisation and the measures adopted by its organs, even where, as in the case of the LOSC, the organisation(s) concerned have been tasked through reference clauses with the implementation of the agreement (in the present case: the LOSC). This is due to the fact that the ‘competent international organization(s)’ in terms of Part XII have not been established by the parties to the LOSC, but by those to another treaty. The subsequent practice of such organisations cannot be held to reflect ‘the agreement of the parties [to the LOSC] regarding its interpretation’116 and can thus not be attributed to the contracting parties of the LOSC.117 Therefore, while the practice of, say, the IWC may, depending on the circumstances, influence the interpretation of the International Convention for the Regulation of Whaling (ICRW),118 it cannot as such be referred to as subsequent practice under Article 31(3)(b) of the VCLT with regard to the interpretation of the LOSC. To conclude, while the practice of the IMO, or other competent international organisations respectively, can indeed be relevant in terms of Article 31(3)(b) of the VCLT for the interpretation of the external rules and standards adopted within their frameworks,119 this does not apply to the interpretation of LOSC provisions establishing renvois to external rules. The matter may potentially be evaluated differently with regard to the SPLOS. In contrast to other international agreements, where treaty bodies such as the COPs or meetings of the parties (MOPs) have been tasked with a broad range of issues,120 the SPLOS is rarely mentioned in the

ILC, Report of the International Law Commission on the Work of its Seventieth Session, UN Doc A/73/10 (2018), ch IV, 11, 15, para. 3 of draft conclusion 12 adds that ‘[p]ractice of an international organization in the application of its constituent instrument may contribute to the interpretation of that instrument when applying articles 31 and 32.’ 116 VCLT, Art. 31(3)(b). 117 As has been demonstrated elsewhere, the case law of the ICJ addressing whether the practice of international organisations can be regarded as subsequent practice exclusively refers to the interpretation of the constituent treaties of these organisations, not to that of other ‘related’ treaties. See Oliver Dörr, ‘Article 31’ in Oliver Dörr and Kristen Schmalenbach (eds), Vienna Convention on the Law of Treaties – A Commentary (2nd ed, Springer 2018) 559, para. 86. 118 In Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment of 31 March 2014) [2014] ICJ Reports 226, 248, para. 46, the ICJ held that recommendations adopted by the IWC, even though not legally binding per se, ‘may be relevant for the interpretation of the Convention or its Schedule […] when they are adopted by consensus or by a unanimous vote.’ 119 Even in such situations, however, uncertainties remain. For example, in 2011, the IMO Intersessional Working Group on Ocean Fertilization agreed that ‘the IMO Legal Affairs and External Relations Division should be requested to advise the governing bodies in October 2011 about the procedural requirements in relation to a decision on an interpretative resolution and, in particular, whether or not consensus would be needed for such a decision’. IMO, Report of the 3rd Meeting of the Intersessional Working Group on Ocean Fertilization, IMO Doc LC 33/4 (2011), para. 4.15.2. 120 See, eg, United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), Arts 2, 4 and 7; CBD, Art. 23; London Convention, Arts XIV(4) and XV; London Protocol. Art. 18. 115

Fragmentation and coherence in legal framework for protection of the marine  75 text of the Convention,121 and no explicit substantive, or decision-making, powers have been allocated to it. Notwithstanding this, it has been observed by one commentator that examples exist where the SPLOS has not only sought to interpret the text of the Convention, but rather seems to have modified individual provisions.122 While these instances have so far concerned ‘relatively minor amendments to administrative aspects of the Convention regime’,123 it can perhaps not be excluded that the SPLOS may decide in future to adopt decisions which aim at influencing the scope and content of Part XII of the LOSC in order to avoid the necessity of relying on the formal amendment procedures codified in Articles 312 and 313. In such case, the SPLOS would de facto assume powers that are sometimes allocated to COPs/MOPs – even though strictly speaking, such a body was not formally established by the LOSC.124 It is therefore worthwhile to look at the ILC’s deliberations on the relevance of COP/MOP decisions in relation to the interpretation of treaties. Indeed, the draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, together with commentaries thereto, adopted by the ILC during its 68th session (2016) included a conclusion (number 11) which expressly addresses the relevance of ‘decisions adopted within the framework of a Conference of States parties’.125 This draft conclusion emphasises that ‘[t]he legal effect of a decision adopted within the framework of a Conference of States parties depends primarily on the treaty and any applicable rules of procedure’.126 It then goes on to state that ‘[d]epending on the circumstances, such a decision may embody, explicitly or implicitly, a subsequent agreement under article 31, paragraph 3 (a), or give rise to subsequent practice under article 31, paragraph 3 (b), or to subsequent practice under article 32’.127 According to the commentary of the ILC, whether or not this is the case depends on several factors, including (1) ‘the rules that govern the Conferences of States parties, notably the constituent treaty and any applicable rules of procedure’,128 (2) ‘the specificity and the clarity of the terms chosen in the light of the text of the Conference of States parties’ decision as a whole, its object and purpose, and the way in which it is applied’,129 and (3) ‘if there exists agreement in substance among the parties concerning the interpretation of a treaty’.130 If measured against these requirements, while it cannot be denied that ‘there appears to be scope for considering that these decisions have the practical effect of amending some

121 See, LOSC, Art. 319(2)(e) and (3)(b), annex II Art 2(3), annex VI Arts 4(4), 18(5)-(7) and 19(1), and Resolution I of annex I to the ‘Final Act of the Third United Nations Conference on the Law of the Sea’, para. 10. 122 Harrison, Making the Law of the Sea (n 14) 77. 123 Ibid, 80. 124 Ibid, 70. Note that the contracting parties have adopted Rules of Procedure for Meetings of States parties. See, SPLOS, Rules of Procedure for Meetings of States parties, Doc SPLOS/2/Rev.4, 24 January 2005. 125 UN Doc A/73/10 (n 115) 15. 126 Ibid, para. 2 of draft conclusion 11. 127 Ibid. 128 UN Doc A/73/10 (n 115) 84, para. 5. 129 Ibid, 89, para. 23. 130 Ibid, 91, para. 31. The ILC expressly stated that adoption by consensus of the COP decision in question is not sufficient for this requirement to be met. But see Harrison, Making the Law of the Sea (n 14) 82.

76  Research handbook on international marine environmental law provisions of the LOSC’,131 it is questionable whether the identified effect can be extended to substantive issues related to the protection and preservation of the marine environment. There are two reasons for this conclusion, one legal and one factual. First, it can arguably not be ignored that the SPLOS, in contrast to the COPs/MOPs referred to above, has simply not been allocated any substantive decision-making or implementation powers by the Convention. Second, the contracting parties have to date fundamentally disagreed on whether the SPLOS holds interpretative, or even law-making, powers.132 Against this background, it seems difficult to transfer the findings made by the ILC on the significance of COP/MOP decisions for treaty interpretation to the SPLOS.133 Its potential to contribute to the prevention of regime conflicts in the field relevant here through its practice thus seems to be limited. 3.2

The Role of Courts and Tribunals under Part XV of the LOSC

Part XV of the LOSC establishes a compulsory system of peaceful dispute settlement. Provided that a dispute cannot be settled by recourse to the peaceful means referred to in Section 1 of Part XV, Article 286 foresees that the dispute can be submitted at the request of any of the parties to an international court or tribunal having jurisdiction under Section 2 of Part XV. As a general rule, the jurisdiction of the courts and tribunals listed in Article 287(1) covers ‘any dispute concerning the interpretation or application’ of the LOSC, including its Part XII.134 Taking into account that Article 293 requires these courts and tribunals to apply the Convention and ‘other rules of international law not incompatible with this Convention’, Part XV seems to provide a further mechanism to ensure the coherence of the law of the sea in general and the marine environmental protection regime in particular.135 As far as the legal mechanism for the application of ‘other rules of international law not incompatible with this Convention’ is concerned, reference is due to Article 31(3)(c) of the VCLT. This provision, which according to the Study Group of the ILC on fragmentation ‘gives expression to the objective of “systematic integration”’,136 demands that any ‘relevant rules of international law applicable in the relations between the parties’ shall be taken into account when interpreting a treaty. At the same time, the wording of Article 31(3)(c) reveals the limits of such a harmonious interpretation (‘applicable in the relations between the parties’). According to the ILC, ‘[s]uch other rules are of particular relevance where parties to the treaty under interpretation are also parties to the other treaty, where the treaty rule has passed into or expresses customary international law or where they provide evidence of the common understanding of the parties as to the object and purpose of the treaty under interpretation or as to the meaning of a particular term.’137

Tanaka (n 46) 35. See, eg, SPLOS, Report of the 12th Meeting of States parties, SPLOS/91, 13 June 2002, paras 111–116. For an overview see, Harrison, Making the Law of the Sea (n 14) 72-73. 133 It is perhaps not without relevance that while the ILC cites numerous COPs and MOPs as examples in its comments on draft conclusion 11, it does not mention the SPLOS in a single word. 134 But see the partial limitation on the applicability of the compulsory procedures entailing binding decisions arising from LOSC, Art. 297(1)(c). 135 See also, Boyle and Chinkin (n 104) 274-275. 136 See, UN Doc A/61/10 (n 3) 180 (conclusion 17). 137 Ibid, 180 (conclusion 21). 131 132

Fragmentation and coherence in legal framework for protection of the marine  77 Furthermore, it should be noted that reference to ‘other rules of international law not incompatible with this Convention’, in terms of Article 293 of the LOSC, presupposes that the jurisdiction of the court or tribunal concerned has already been established.138 It is not possible for courts and tribunals to rely on Article 293 in order to determine that ‘some treaty other than the Convention has been violated, unless that treaty is otherwise a source of jurisdiction, or unless the treaty otherwise directly applies pursuant to the Convention’.139 Taking account of the rules of interpretation codified in Articles 31-33 of the VCLT (which themselves are part of the ‘other rules’ in terms of Article 293(1) of the LOSC),140 ‘other rules of international law’ can only be referred to by the court or tribunal in question in order to substantiate, or inform respectively, the meaning of the terms of the LOSC.141 As far as the protection and preservation of the marine environment is concerned, and leaving the existing international case law relating to the scope of the general principles of marine environmental protection aside,142 the approach taken by the Annex VII Tribunal in the South China Sea arbitration is perhaps the most striking example of such an integrated reading of the LOSC.143 First, the Tribunal applied the CBD in order to interpret the term ‘ecosystem’ under Article 194(5).144 Secondly, it referred to CITES, in particular to the fact that sea turtles are listed under its Appendix I as species threatened with extinction and subject to the strictest level of international controls on trade. The Tribunal considered that ‘CITES is the subject of nearly universal adherence, including by the Philippines and China, and in the Tribunal’s view forms part of the general corpus of international law’ and concluded therefrom that the general obligations codified in Articles 192 and 194(5) must be understood as containing a duty to prevent the harvest of endangered species as well as the destruction of their habitats.145 Peter Tzeng, ‘Jurisdiction and Applicable Law under UNCLOS’ (2016) 126 Yale Law Journal 242, 247. 139 Arctic Sunrise Arbitration (Netherlands v Russia) (Award on the Merits of 14 August 2015) PCA Case No 2014-02, para. 192. See also, MOX Plant (Ireland v United Kingdom) (Order No 3 on Suspension of Proceedings on Jurisdiction and Merits, and Request for Further Provisional Measures, Order of 24 June 2003) PCA Case No 2002-01, para. 19: ‘there is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1, of the Convention […] and the law to be applied by the Tribunal under article 293 of the Convention […]’. But see, M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (Judgment of 1 July 1999) [1999] ITLOS Reports 10, 61-62, para. 155; Guyana v Suriname (Award of the Arbitral Tribunal of 17 September 2007) PCA Case No 2004-04, para. 405. For critical analysis see, Tzeng (n 138) 247-249; Petrig and Bo (n 55) 399-400. 140 See Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (Advisory Opinion of 1 February 2011) [2011] ITLOS Reports 10, 28, para. 57. For discussion of the relationship between LOSC, Art. 293 and VCLT, Art. 31(3)(c) see, Petrig and Bo (n 55) 396-398. 141 Proelss, ‘The Contribution of the ITLOS to Strengthening the Regime for the Protection of the Marine Environment’ (n 28) 103-104. 142 See section 2.1 above. 143 In its award on jurisdiction and admissibility, the Arbitral Tribunal expressly referred to VCLT Art. 31(3) and LOSC Art. 293(1). See South China Sea Arbitration (Philippines v China) (Award on Jurisdiction and Admissibility of 29 October 2015) PCA Case No 2013-19 (‘South China Sea, Jurisdiction and Admissibility’) para. 282. In its award on the merits, it then held that the ‘general obligation in Art. 192 is further detailed in the subsequent provisions of part XII, including Art. 194, as well as by reference to specific obligations set out in other international agreements, as envisaged in Art. 237 of the Convention’. South China Sea, Award (n 34) para. 945. 144 South China Sea, Award (n 34), para. 945. 145 Ibid, paras 956 and 959. 138

78  Research handbook on international marine environmental law To conclude, interpreting the LOSC in conformity with other pertinent instruments that address the protection and preservation of the marine environment may indeed result in a strengthening of the coherence of the entire regime. Admittedly, a separate risk of fragmentation arises from the fact that the merits of environmental cases have in most instances been addressed, and will likely continue to be addressed, by ad hoc arbitral tribunals established on the basis of Annex VII of the LOSC.146 That said, it has been observed that the recent case-law of these tribunals is characterised by a striking coherence between the approaches pursued by ITLOS and the ICJ147 – a fact that arguably reflects a common understanding according to which the regime for the protection and preservation of the marine environment must be interpreted in the most consistent manner possible.

4. CONCLUSION The international legal regime for the protection of the marine environment is characterised by a cross-sectoral and multi-layered structure, a fact that, on the one hand, entails the risk of fragmentation, but which at the same time reflects that the international community has paid, and continues to pay, increasing attention to the protection of the marine environment. It is therefore all the more important to provide for the coherence of the pertinent regime, that is, to make sure that conflicting practice is, to the extent possible, avoided, legal security is safeguarded, and forum shopping is prevented – for the sake of effective protection and preservation of the marine environment. Against this background, it is arguably not adequate to approach the issue from an isolated angle. The significant increase in the number of relevant treaties and concepts that has occurred in recent decades makes it, rather, essential to focus on the question of how the existing interactions between the different instruments and categories may best be tackled. This chapter has attempted to demonstrate that Part XII of the LOSC, which can be described as the constitutional foundation of the international legal regime for marine environmental protection, offers various tools in order to achieve the objective of safeguarding coherence. This is partly due to the organisation and approach of Part XII. First, the provisions of this Part require that they are implemented, and further developed, on different levels of the law (global, regional, national), and by different actors, in the specific ways provided for in the Convention. Second, numerous references to external rules codified in Part XII result in these external rules being incorporated into the regime of the Convention. Third, harmonising interpretations of overlapping treaty regimes, especially by courts and tribunals adjudicating on the basis of Part XV, can contribute to the integrity of the regime of marine environmental protection. Overall, it can be said that the LOSC largely exhausts the existing possibilities available under international treaty law to ensure coherence. This also applies to the further development of the LOSC regime through implementation agreements (a matter not dealt with in this chapter), provided that the parties to the LOSC on the one hand and those to the implementation agreement concerned on the other overlap as much as possible. 146 See, Alan E Boyle, ‘The Environmental Jurisprudence of the International Tribunal for the Law of the Sea’ (2007) 22 International Journal of Marine and Coastal Law 369, 380. 147 Proelss, ‘The Contribution of the ITLOS to Strengthening the Regime for the Protection of the Marine Environment’ (n 28) 105.

Fragmentation and coherence in legal framework for protection of the marine  79 Of course, Part XII cannot fully ensure that multilateral environmental agreements concluded before the adoption and entry into force of the LOSC, as well as those concluded beyond its framework or for its further development, are based on coherent regulatory approaches. In this respect, the integrity of the regime of marine environmental protection first and foremost depends on the cooperation of the parties to the existing environmental agreements, and of the treaty bodies and institutions established by them. At this point, mechanisms of environmental governance take their place alongside the instruments of formal law.

PART II LEGAL FRAMEWORKS FOR THE PROTECTION OF THE MARINE ENVIRONMENT

4. Basic principles of international marine environmental law Yoshifumi Tanaka1

1. INTRODUCTION Like international law in general,2 international law for the protection of the marine environment (ie international marine environmental law) is not merely a mosaic of specific rules; rather it must be considered as a system governing international relations among States and other entities in respect of their activities both on and in relation to the oceans. An understanding of the systemic aspects of international marine environmental law requires an examination of the basic legal principles and concepts applicable in this field. To that end, this chapter examines the basic principles and concepts of international marine environmental law. Before doing so, however, some mention must be made of the role of ‘principles’ in international law. Unlike rules, the content and legal status of principles remain less clear because of their open-textured and general character. As a consequence, the invocation of principles does not lead to a particular decision.3 However, this does not mean that principles are less important than rules. Three functions of principles, in particular, merit highlighting. First, principles have a valuable role to play in setting out normative frameworks for integrating various legal, economic, social and political considerations into specific fields of international law. Second, principles provide guidance in the interpretation and application of relevant rules in situations of conflicting interpretation. Faced with competing norms, for instance, international courts and tribunals may call upon principles to inform their judicial decision. Third, principles provide predictable parameters for environmental protection and, in appropriate circumstances, provide orientation for the development of law.4 In summary, principles char-

This chapter relies on the author’s chapter of the first edition of this volume with modifications and updates. I would like to thank Rosemary Rayfuse, Natalie Klein and Aline Jaeckel, the editors of this book, for their useful comments and suggestions on a previous draft of this chapter. 2 In this regard, the International Law Commission (ILC) explicitly stated that: ‘International law is a legal system’. ILC, ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law’ (2006) Yearbook of the International Law Commission, vol II, 177, para. 251(1). This view was echoed by Judge Greenwood in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea, (Judgment, Declaration of Judge Greenwood) [2012] ICJ Rep 394, para. 8. See also, Christian Dominicé, ‘La Société Internationale à la Recherche de Son Équilibre: Cours Général de Droit International Public’ (2013) 370 Recueil des Cours Académie de Droit International de La Haye 9, 35; James Crawford, Chance, Order, Change: The Course of International Law (Brill/Nijhoff 2014) 179ff. 3 Ronald Dworkin, Taking Rights Seriously (Bloomsbury 1997) 24 and 26. 4 Lluís Paradell-Trius, ‘Principles of International Environmental Law: An Overview’ (2000) 9(2) Review of European Community and International Environmental Law 93, 95-97; Laurence Boisson de Chazournes, ‘Features and Trends in International Environmental Law’ in Yann Kerbrat and Sandrine 1

81

82  Research handbook on international marine environmental law acterise the essential nature of a legal system and systematise relevant rules within that legal system, while rules further elaborate principles and set out specific measures concerning the rights and obligations of States. Admittedly, usage of the term ‘principles’ is not uniform in the academic literature. ‘Principles’ sensu stricto refer to norms of general or customary international law. However, more often than not, the term ‘principles’ is also used as a word stressing the importance of concepts of international law. Accordingly, principles sensu lato may include both customary norms and key concepts in international law. As opinions of writers may be divided as to the customary law character of a norm of international law, the distinction between principles sensu stricto and principles sensu lato is not always clear-cut. For the purposes of this chapter, however, the term ‘principles’ is used sensu lato. While there is no generally agreed catalogue of principles governing marine environmental protection,5 this chapter focuses particularly on four elements: (1) sic utere tuo ut alienum non laedas (the no harm principle); (2) sustainable development; (3) the precautionary principle/ approach; and (4) the principle of cooperation. Indeed, many environmental norms and concepts have an affinity with these principles, and these four elements can be regarded as pillars of international marine environmental law. The following section (section 2) examines, as a preliminary consideration, the paradigm shift implicit in international law governing marine environmental protection. Section 3 analyses the no harm principle. Section 4 then examines the concept of sustainable development. Section 5 moves on to address the precautionary principle or approach. Finally, section 6 discusses the principle of cooperation, before conclusions are offered in section 7.

2.

THE OBLIGATIONS TO PROTECT AND PRESERVE THE MARINE ENVIRONMENT UNDER THE UN CONVENTION ON THE LAW OF THE SEA

2.1

The General and Comprehensive Legal Framework for the Protection of the Marine Environment

Traditionally, subject only to the few limitations imposed by customary international law, States had a wide discretion to pollute the oceans; and where environmental damage had been caused in other States’ territory, the law of State responsibility came into play. However,

Maljean-Dubois (eds), The Transformation of International Environmental Law (Pedone and Hart 2011) 11; Yoshiro Matsui, International Law of the Environment: Its Fundamental Principles (in Japanese, Tokyo 2010) 58ff. 5 For instance, Sands and Peel identify the following principles of international law of the environment: (1) States have sovereignty over their natural resources and the responsibility not to cause transboundary environmental damage; (2) the principle of preventive action; (3) the principle of cooperation; (4) the principle of sustainable development; (5) the precautionary principle; (6) the polluter pays principle; and (7) the principle of common but differentiated responsibility. Philippe Sands and Jacqueline Peel, with Adriana Fabra and Ruth MacKenzie, Principles of International Environmental Law (4th ed, CUP 2018) 197ff.

Basic principles of international marine environmental law  83 the 1982 United Nations Convention on the Law of the Sea (LOSC)6 marked a milestone in the history of international law by establishing a general and comprehensive framework for protecting the marine environment. It is general in the sense that Part XII of the LOSC establishes an obligation on all States to prevent marine pollution.7 To that end, Article 192 places a general obligation on States to protect and preserve the marine environment, which includes the ocean as a whole. According to the South China Sea arbitral award, the ‘general obligation’ under Article 192 extends both to ‘protection’ of the marine environment from future damage and ‘preservation’ in the sense of maintaining or improving its present condition.8 Accordingly, Article 192 entails a positive obligation to take active measures to protect and preserve the marine environment, and a negative obligation not to degrade the marine environment at the same time. As the International Tribunal for the Law of the Sea (ITLOS) has observed, ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’,9 and Article 192 also requires the protection and preservation of marine species and biological diversity.10 While general, the framework established in the LOSC is also comprehensive, in that it covers all sources of marine pollution. Indeed, Article 194(1) obliges States to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities. Likewise, Article 194(3) provides that the measures taken pursuant to Part XII shall deal with all sources of pollution of the marine environment. Pollution is defined broadly in Article 1(1)(4) of the LOSC to include the release of ‘substances or energy into the marine environment’ that ‘[are] likely to result’ in deleterious effects. The reference appears to imply that potential harmful effects on the marine environment can also be the object of regulation. Notably, Article 194(5) requires that the measures taken in accordance with Part XII are to ‘include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of … endangered species and other forms of marine life’. In summary, under the LOSC, the primary focus is not on obligations of responsibility for damage, but on general and comprehensive regulation to prevent marine pollution. Thus, the LOSC reflects a paradigm shift in the international law governing marine environmental protection; from the discretion of States to an obligation to prevent marine pollution.11

6 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (hereafter LOSC). For the role of the LOSC in the protection of the marine environment, see, Robin Churchill, ‘The UN Convention on the Law of the Sea – still relevant to protection of the marine environment?’, Chapter 2 in this volume. 7 Part XII of the LOSC is devoted to the protection and preservation of the marine environment. Rules concerning conservation of marine living resources are also provided in other parts of the Convention, in particular, Part V governing the exclusive economic zone and Part VII relating to the high seas. Thus, the LOSC provides two distinct legal regimes governing the protection of the marine environment and conservation of marine living resources. 8 South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19, para. 941 (South China Sea, Award). 9 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 280, para. 70 (Southern Bluefin Tuna, Provisional Measures). 10 South China Sea, Award (n 8) para. 956; Yoshifumi Tanaka, The South China Sea Arbitration: Toward an International Legal Order in the Oceans (Hart Publishing 2019) 135-136. 11 Yoshifumi Tanaka, The International Law of the Sea (3rd ed, CUP 2019) 333.

84  Research handbook on international marine environmental law 2.2

Marine Environmental Protection as an Obligation Erga Omnes

Attention must also be paid to the erga omnes character of the obligation to protect and preserve the marine environment.12 In this regard, the Seabed Disputes Chamber of ITLOS, in its first Advisory Opinion, noted that: Each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area.13

The reference to ‘[e]ach State Party’ implies that the obligation relating to preservation of the environment of the high seas and the Area is an obligation erga omnes partes which, in light of the obligation under Article 192 to ‘protect and preserve the marine environment’ applies to the ocean as a whole.14 Moreover, the obligation to protect and preserve the marine environment under Article 19215 is now generally accepted as reflecting a rule of customary international law.16 Accordingly, there may be a basis for considering that the environmental obligation under Article 192 is regarded as an obligation erga omnes.17 This has significant implications for the locus standi of States seeking to invoke a breach of such an obligation before an international court or tribunal.18 As noted by the Institut de Droit International:

For a definition of the obligation erga omnes, see Institut de Droit International, ‘Resolution: Obligations Erga Omnes in International Law’ (Krakow Session 2005) Art. 1 . 13 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, Case No 17, 1 February 2011, para. 180 (Seabed Advisory Opinion). For an analysis of this paragraph, see, Yoshifumi Tanaka, ‘Obligations and Liability of Sponsoring States Concerning Activities in the Area: Reflections on the ITLOS Advisory Opinion of 1 February 2011’ (2013) 60(2) Netherlands International Law Review 205, 226-227. 14 Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar 2018) 138, 327; Tanaka, South China Sea (n 10) 195; Rachael L Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Nijhoff 2015) 223. 15 The UN Secretary-General, in his 1989 report, stated that ‘articles 192 and 193 are generally regarded as statements of customary international law on the extent of the environmental responsibility of States towards the oceans’. UNGA, Protection and Preservation of the Marine Environment: Report of the Secretary-General, UN Doc A/44/461, 18 September 1989, 10, para. 29. In addition, the OSPAR Convention, in its Preamble, recalled ‘the relevant provisions of customary international law reflected in Part XII of the United Nations Law of the Sea Convention’. Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention), Preamble. 16 This view is supported by commentators, including: Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (3rd ed, OUP 2009) 387; Sands and Peel (n 5) 462; Detlef Czybulka, ‘Article 192’ in Alexander Proelss (ed), The United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017) 1277, 1284-1285; James Harrison, Saving the Oceans Through Law: The International Leal Framework for the Protection of the Marine Environment (OUP 2017) 24-25. 17 Harrison (n 16) 24-25; Yoshifumi Tanaka, ‘Changing Paradigms in the Law of the Sea and the Marine Arctic’ (2020) 35(3) International Journal of Marine and Coastal Law 439, 441-443. 18 Yoshifumi Tanaka, ‘Legal Consequences of Obligations Erga Omnes in International Law’ (2021) 68(1) Netherlands International Law Review 1. 12

Basic principles of international marine environmental law  85 In the event of there being a jurisdictional link between a State alleged to have committed a breach of an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to bring a claim to the International Court of Justice or other international judicial institution in relation to a dispute concerning compliance with that obligation.19

It follows that all States, including States that are not directly injured, can have locus standi to invoke responsibility for a breach of the obligation to protect and preserve the marine environment before an international court or tribunal, where that court or tribunal can establish its jurisdiction.20

3.

THE PRINCIPLE OF SIC UTERE TUO UT ALIENUM NON LAEDAS

Building on the fundamental elements outlined above, the following sections examine basic principles and concepts regarding the protection of the marine environment. The first principle that needs consideration is the principle of sic utere tuo ut alienum non laedas. 3.1

Sic Utere Tuo Ut Alienum Non Laedas as a Fundamental Principle in Environmental Protection

It is well established that no State has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another State. This principle of sic utere tuo ut alienum non laedas means ‘use your own property so as not to injure that of another’ and is commonly referred to as ‘the no harm principle’. The principle, first articulated in the Trail Smelter arbitration,21 was explicitly reflected in Principle 21 of the 1972 Stockholm Declaration22 and Principle 2 of the 1992 Rio Declaration.23 The latter states:

Institut de Droit International, 2005 Resolution (n 12) Art. 3. Chandrasekhara Rao, former Judge of ITLOS, and Philippe Gautier, former Registrar of ITLOS, took the view that ‘any State Party to the Convention is entitled to institute proceedings with respect to a violation of provision of the Convention relating to the preservation of the marine environment, committed outside marine areas under its jurisdiction’. Rao and Gautier (n 14) 327. See also Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v UK) (Preliminary Objections, Dissenting Opinion of Judge Crawford) [2016] ICJ Rep 833, 1102, para. 22; Tanaka ‘Legal Consequences’ (n 18) 24. 21 The Arbitral Tribunal ruled that: ‘[U]nder the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’. Trail Smelter Arbitration (Canada v. USA) (1938 and 1941) 3 Reports of International Arbitral Awards 1905, 1965. 22 Stockholm Declaration of the United Nations Conference on the Human Environment UN Doc A/CONF.48/14/Rev.1, Ch. I (5-16 June 1972) 11 International Legal Materials 1416 (Stockholm Declaration). 23 Rio Declaration on Environment and Development, in UN, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol. I), Annex I, 12 August 1992 (Rio Declaration). 19 20

86  Research handbook on international marine environmental law 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 own environmental and developmental 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.

Whereas the formulation articulated in the Trail Smelter arbitration dealt only with transboundary harm to other States, the formulation set out in Principle 2 of the Rio Declaration requires States to also protect the environment beyond the limits of national jurisdiction. It follows that the obligation not to cause environmental damage is no longer solely bilateral in nature but relates to the protection of the high seas or the global atmosphere.24 The formulation of the Rio Declaration was echoed by the International Court of Justice (ICJ) in its Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons, stating: [T]he 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.25

The principle is considered as part of customary international law and, as such, applicable to the protection of the marine environment. The principle is also embodied in Article 194(2) of the LOSC. 3.2

The Limits of the Principle of Sic Utere Tuo Ut Alienum Non Laedas

While statement of the principle is straightforward, its application is less so. It is generally understood that the no harm principle provides an obligation to exercise due diligence to avoid causing transboundary damage.26 Indeed, the obligation of due diligence lies at the heart of the principle and a State is therefore not responsible for damage if it has exercised such due diligence.27 However, ‘due diligence’ is an elusive concept and the degree of ‘due diligence’ may vary depending on the nature of specific activities, technical and economic capabilities of States, and other matters such as the effectiveness of territorial control. Moreover, the content of the requirement may evolve with the passage of time. As articulated by the ITLOS Seabed Disputes Chamber: ‘due diligence’ is a variable concept. 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.28 Birnie, Boyle and Redgwell (n 16) 145. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 241-242, para. 29. 26 Phoebe Okowa, ‘Procedural Obligations in International Environmental Agreements’ (1996) 67(1) British Yearbook of International Law 275, 332; Riccardo Pisillo-Mazzeschi, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’ (1992) 35 German Yearbook of International Law 9, 38. 27 Seabed Advisory Opinion (n 13) para. 114. 28 Ibid, (n 13) para. 117 (emphasis added). The evolutionary nature of due diligence was also highlighted by the ILC, in its Commentaries on Draft Articles on Prevention of Transboundary Harm from Hazardous Activities. ILC, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous 24 25

Basic principles of international marine environmental law  87 Given its variable nature, it is difficult for an international court or tribunal to determine a breach of the general obligation of ‘due diligence’. There is thus a need to explore an evolving standard of due diligence that can take account of changes in technology and environmental knowledge over time.29 A possible solution to this difficulty may be to link the obligation of due diligence with the obligation to apply best environmental practices and/or best available techniques. Such a link was highlighted by the Seabed Disputes Chamber, which stated: The adoption of higher standards in the more recent Sulphides Regulations would seem to indicate that, in light of the advancement in scientific knowledge, member States of the Authority have become convinced of the need for sponsoring States to apply ‘best environmental practices’ in general terms so that they may be seen to have become enshrined in the sponsoring States’ obligation of due diligence.30

Admittedly, the Seabed Disputes Chamber did not provide a clear definition of the concept of best environmental practices. By way of example, however, the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) defines this concept as ‘the application of the most appropriate combination of environmental control measures and strategies’.31 Appendix 1, paragraph 8 of the OSPAR Convention highlights the evolutionary nature of best environmental practices, providing that ‘best environmental practice for a particular source will change with time in the light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding’. Likewise, since ‘best available technique’ means the technique at the latest stage of development, it also develops over time.32 In summary, where States are under the obligation to apply best environmental practices and best available techniques, they are required to review and update their technology and practice with regard to environmental protection in light of technological and scientific advances. If a State’s activities have caused serious environmental damage and the State has failed to fulfil this obligation, it will be difficult to claim that due diligence has been exercised.33 However, the identification of best environmental practices and best available techniques may not be a simple matter. Given differing political, economic, ecological and technical conditions between States and regions, a standard that represents best environmental practices in one region may not do so in another region.34 Moreover, as long as technological capacity in developing States remains inadequate, it may be difficult for those States to use best available techniques and best environmental practices that meet the demanding regulatory requirements elsewhere. Thus, technical assistance to and capacity building for developing countries are of

Activities with Commentaries’ (2001) Yearbook of the International Law Commission, vol. II/2, Commentary to Article 3, 154, para. 11. 29 On this issue, see, Yoshifumi Tanaka, ‘Reflections on Time Elements in the International Law of the Environment’ (2013) 73 ZaöRV (Heidelberg Journal of International Law) 139, 161-165. 30 Seabed Advisory Opinion (n 13) para. 136. 31 OSPAR Convention, Appendix 1, para. 6. 32 OSPAR Convention, Appendix 1, para. 2. 33 Birnie, Boyle and Redgwell (n 16) 148. 34 André Nollkaemper, ‘Balancing the Protection of Marine Ecosystems with Economic Benefits from Land-Based Activities: The Quest for International Legal Barriers’ (1996) 27(1-2) Ocean Development and International Law 153, 159.

88  Research handbook on international marine environmental law critical importance to properly effectuate the obligation to apply best environmental practices and best available techniques.35 A related issue that deserves consideration in this context concerns the link between the obligation of due diligence and the obligation to conduct an environmental impact assessment (EIA).36 An EIA is a procedure to detect environmental risks and likely impacts of a proposed project and integrate environmental concerns into the decision-making process before authorising or funding the project.37 By way of example, the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) defines EIA as ‘a national procedure for evaluating the likely impact of a proposed activity on the environment’.38 The obligation to conduct an EIA in a context of transboundary context is now generally regarded as a rule of customary international law.39 Arguably, therefore, a State cannot deny a breach of the due diligence obligation if the State has not conducted an EIA and its activities cause serious environmental harm. This view is supported by the ICJ in the Pulp Mills judgment, where the Court held that: [D]ue diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the regime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.40

Generally on this issue, see, eg, David Freestone, ‘Capacity Building and the Implementation of the Law of the Sea Convention: A View from the World Bank’ in Myron H Nordquist and others (eds), Law, Science and Ocean Management (Brill/Nijhoff 2007) 313; Ariel W González, ‘Cutting a Gordian Knot?: Towards a Practical and Realistic Scheme for the Transfer of Marine Technology’ in Myron H Nordquist and others (eds), Law, Science and Ocean Management (Brill/Nijhoff 2007), 345; Vladimir Golitsyn, ‘Capacity Building: A View from the United Nations’ in Myron H Nordquist and others (eds), Law, Science and Ocean Management (Brill/Nijhoff 2007) 381. 36 Yoshifumi Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment (EIA) in International Adjudication: Interaction between Law and Time’ (2021) 90(1) Nordic Journal of International Law 86, 89-94. 37 Birnie, Boyle and Redgwell (n 16) 165; Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 87. Neil Craik and Kristine Gu, ‘Implementing Environmental Impact Assessment in Areas Beyond National Jurisdiction: Epistemic, Institutional and Normative Challenges’, Chapter 19 in this volume. Generally on EIA, see, Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (CUP 2008). 38 Convention on Environmental Impact Assessment in a Transboundary Context (opened for signature 25 February 1991, entered into force 10 September 1997) 1989 UNTS 310 (Espoo Convention) Art. 1, para. vi. For a recent study of the Espoo Convention, see, Timo Koivurova, ‘Could the Espoo Convention Become a Global Regime for Environmental Impact Assessment and Strategic Environmental Assessment?’ in Robin Warner and Simon Marsden (eds), Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate 2012) 323-342. 39 This view was echoed by ITLOS and the ICJ. See Seabed Advisory Opinion (n 13) para. 145; Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) (2010) ICJ Rep 14, para. 204 (Pulp Mills, Merits); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Merits) [2015] ICJ Rep 665, para. 104 (Construction of a Road). Furthermore, the Rio Declaration refers to an EIA in Principle 17. According to Birnie, Boyle, and Redgwell, ‘Rio Principle 17 affords the strongest evidence of international support for EIA’: Birnie, Boyle, and Redgwell (n 16) 166. 40 Pulp Mills, Merits (n 39) para. 204. See also Construction of a Road (n 39) para. 104. 35

Basic principles of international marine environmental law  89 Thus, the obligation to conduct an EIA provides a legal procedure for effectuating a due diligence obligation in the context of environmental protection.41 In any event, it must be noted that the principle of sic utere tuo ut alienum non laedas is closely linked to State responsibility in the sense that this principle functions after damage has been caused in the other State’s territory for the purpose of establishing State responsibility.42 Thus the breach of the obligation of due diligence by a State will be at issue only after environmental damage has arisen. However, environmental damage can be irreversible.43 Accordingly, the traditional State responsibility-oriented approach, by which States are only responsible for damage that has already occurred, is of limited value where environmental protection is concerned. Thus, there is a need to explore new concepts and approaches to the protection of the marine environment.

4.

SUSTAINABLE DEVELOPMENT

4.1

Sustainable Development in Marine Environmental Protection

A fundamental issue that arises in the context of the protection of the environment, including the marine environment, is how one can reconcile the need for environmental protection with development. Here the concept of sustainable development comes into play.44 In the words of the ICJ in the Gabčíkovo-Nagymaros Project case, ‘[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development’.45 The basic idea of sustainable development was already evident in the 1972 Stockholm Declaration, although the term ‘sustainable development’ was not used.46 Later, the concept of sustainable development was given currency by the Report of the World Commission on Environment and Development (WCED), ‘Our Common Future’, which defined the concept as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.47 More recently, UN General Assembly Resolution, ‘Transforming Our World: the 2030 Agenda for Sustainable Development’, adopted in 2015,

Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 89-94. Matsui, International Law of the Environment (n 4) 108. 43 Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Reports 7, para. 140 (Gabčíkovo-Nagymaros Project). 44 For a study on the concept of sustainable development, see, in particular, Philippe Sands, ‘International Law in the Field of Sustainable Development’ (1995) 65(1) British Yearbook of International Law 303. See also, Nico Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Brill/Nijhoff 2008); Duncan French, ‘Sustainable Development’ in Malgosia Fitzmaurice, David M Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar 2010) 51-68. 45 Gabčíkovo-Nagymaros Project (n 43) para. 140. The essence of the concept of sustainable development was confirmed by the ICJ in Pulp Mills, Merits (n 39) para. 117. See also Iron Rhone Arbitration (Belgium/Netherlands) (Award of 25 May 2005) 27 Reports of International Arbitral Awards 35, 66-67, para. 59. 46 Edith Brown Weiss, Establishing Norms in a Kaleidoscopic World (Brill/Nijhoff 2020) 190-191. See also Stockholm Declaration (n 22) Principle 13. 47 WCED, Our Common Future (OUP 1987) 43. 41 42

90  Research handbook on international marine environmental law specified 17 Sustainable Development Goals and 169 targets as a new universal agenda.48 Goal 14 concerns conservation and sustainable use of the oceans and marine resources for sustainable development and deals with a wide range of issues, including: reduction of marine pollution of all kinds; protection of marine and coastal ecosystems; minimisation of the impacts of ocean acidification; regulation of illegal, unreported and unregulated fishing; and conservation and sustainable use of oceans and their resources. It appears that sustainable development is a cardinal concept that directs prevention of multiple threats to the marine environment. Sustainable development is an inter-temporal concept in the sense that sustainability concerns longevity and persistency in the most fundamental sense.49 Indeed, the WCED explicitly refers to ‘future generations’ in its definition of the term. The concept of sustainable development thus seeks to safeguard the needs of present generations without compromising the ability of future generations to meet theirs.50 In other words, the concept of sustainable development can be seen as a reflection of ‘intergenerational equity’.51 4.2

Interstitial Function of the Concept of Sustainable Development

Despite its frequent reference in international instruments, the concept of sustainable development raises a number of issues that need further consideration with respect to its normativity. First is the uncertainty of the content of the concept.52 While some writers attempt to enumerate relevant components of the concept,53 there is no uniform understanding on this matter. By way of example, the International Law Association’s New Delhi Declaration enumerates 48 UNGA, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A/ Res/70/1, 25 September 2015. 49 Schrijver regards the time dimension as one of the seven main elements of the concept of sustainable development. Schrijver (n 44) 208. See also Pulp Mills, Merits (n 39) Separate Opinion Judge Cançado Trindade, para. 133. 50 Schrijver (n 44) 214; Yoshiro Matsui, ‘The Road to Sustainable Development: Evolution of the Concept of Development in the UN’ in Konrad Ginther, Erik Denters and Paul JIM de Waart (eds), Sustainable Development and Good Governance (Kluwer 1995) 53, 69. 51 International Law Association, New Delhi Declaration of Principles of International Law Relating to Sustainable Development (6 April 2002) para. 2.1, (New Delhi Declaration). The document is reproduced in Schrijver (n 44) 251. As regards the concept of intergenerational equity, Weiss argued that: ‘[A]ll generations,− past, present and future − are partners in caring for and using the Earth. The present generation, which means everyone living today, must pass the Earth and our natural (and cultural) resources to future generations in at least as good condition as we received them so that future generations can meet their own needs’ (footnote omitted). Weiss (n 46) 283. 52 Schrijver (n 44) 221-223; Yoshifumi Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Ashgate 2008) 71-73. 53 For instance, Pierre-Marie Dupuy considered that the concept of sustainable development would include: (i) Principle of integration between the environment and development; (ii) Precautionary principle; (iii) Principle of common concern of humanity; (iv) Principle of State sovereignty with State responsibility; (v) Principle of common but differentiated responsibility; (vi) Principle of global partnership and cooperation; (vii) Polluter-pays principle; and (viii) Principle of participatory and informed decision making. Pierre-Marie Dupuy, ‘Où en est le Droit International de l’Environnement à la Fin du Siècle’ (1997) 101(4) Revue General du Droit International Public 873, 888-891. Sands and Peel selected four recurring elements of the concept of sustainable development: (i) the principle of intergenerational equity; (ii) the principle of sustainable use; (iii) the principle of equitable use, or intragenerational equity; and (iv) the principle of integration. Sands and Peel (n 5) 219. See also Sands (n 44) 338ff.

Basic principles of international marine environmental law  91 seven principles that are instrumental in pursuing the objective of sustainable development: (1) the duty of States to ensure sustainable use of natural resources; (2) the principle of equity and the eradication of poverty; (3) the principle of common but differentiated responsibilities; (4) the principle of the precautionary approach to human health, natural resources and ecosystems; (5) the principle of public participation and access to information and justice; (6) the principle of good governance; and (7) the principle of integration and interrelationship, in particular in relation to human rights and social, economic and environmental objectives.54 Yet it appears that the normative nature of each component varies and that the interrelationship between components remains unclear. At this stage, there remains considerable uncertainty as to the normative content of the concept of sustainable development, which seems to be no more than a label for a set of various components of international environmental law at a high level of abstraction. However, the label is not, itself, law.55 Whether and to what extent this concept can legally constrain the behaviour of States is thus debatable.56 A second issue concerns the justiciability of the concept of sustainable development.57 In this regard, it is of particular importance to note that the concept of sustainable development ultimately requires a change in the quality and patterns of life. In the words of the WCED: In essence, sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations.58

Considering that sustainable development is a matter of national policy of a State, it is difficult to determine, a priori, specific measures to achieve sustainable development in international law. It is thus difficult for international courts and tribunals to review the validity of national action by applying the concept of sustainable development.59 It is therefore open to debate whether the concept itself constitutes an independent rule for adjudication. In the absence of authoritative third-party decision-making, it remains difficult to elaborate its content.60 This is not to suggest that the concept of sustainable development is unimportant in international adjudication. The role of norms is not limited to their function as rules of conduct and/ or rules for adjudication. Norms also perform an interstitial function to adjust overlapping or conflicting norms. It is here that the normative force of the concept of sustainable development should be sought. As Lowe argues, sustainable development is ‘a legal concept exercising

New Delhi Declaration (n 51) paras 1.1ff. Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development, Past Achievements and Future Challenges (OUP 1999) 19, 26. 56 Ibid, 23-25. 57 Tanaka, A Dual Approach to Ocean Governance (n 52) 73-75. 58 WCED (n 47) 46. See also, Rio Declaration (n 23) Principle 8. 59 Alan Boyle and David Freestone, ‘Introduction’ in Boyle and Freestone (n 55) 1, 16; Alan Boyle, ‘The Gabčíkovo-Nagymaros Case: New Law in Old Bottles’ (1997) 8(1) Yearbook of International Environmental Law 13, 18. 60 Günther Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ (1990) 1(1) Yearbook of International Environmental Law 3, 25; Peter Malanczuk, ‘Sustainable Development: Some Critical Thoughts in the Light of the Rio Conference’ in Konrad Ginther, Erik Denters and Paul JIM de Waart (eds), Sustainable Development and Good Governance (Kluwer 1995) 23, 50. 54 55

92  Research handbook on international marine environmental law a kind of interstitial normativity, pushing and pulling the boundaries of true primary norms when they threaten to overlap or conflict with each other’.61 Faced with competing norms, international courts and tribunals may take this concept into account in making a judicial choice to determine an outcome. In this regard, the Sofia Guiding Statements on the Judicial Elaboration of the 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development explicitly state that: ‘[T]reaties and rules of customary international law should be interpreted in the light of principles of sustainable development’.62 Thus the concept of sustainable development can perform an interstitial function in the judicial process.63 An example of this interstitial function is provided in US-Shrimp, where the WTO Appellate Body interpreted the preamble of the WTO Agreement, which explicitly acknowledges ‘the objective of sustainable development’. As this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement, in this case, the GATT 1994. We have already observed that Article XX(g) of the GATT 1994 is appropriately read with the perspective embodied in the above preamble.64

Even though the Appellate Body concluded that the United States measure failed to meet the requirements of the chapeau of Article XX and was therefore not justified under Article XX of the General Agreement on Tariffs and Trade (GATT) 1994,65 it is noteworthy that the Appellate Body took account of the concept of sustainable development when interpreting the WTO Agreement. Following the logic of the Appellate Body, where a treaty refers to sustainable development, its provisions must therefore be interpreted consistent with the perspective of achieving sustainable development. It is notable that a number of treaties concerning prevention of marine pollution explicitly refer to sustainable development.66 It follows, then, Lowe (n 55) 31. 2012 Sofia Guiding Statements on the Judicial Elaboration of the 2002 New Delhi Declaration of Principles of International Law Relating to Sustainable Development, para. 2 . 63 Lowe (n 55) 34-35. 64 Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (adopted 6 November 1998) para. 153. 65 Ibid, para. 187(c). 66 See, for instance, Article VI(2) of the 1990 Kuwait Protocol for the Protection of the Marine Environment against Pollution from Land-Based Sources (adopted 1990, entered into force 1993) ; Article 4(1) of the 1995 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (adopted 10 June 1995, entered into force 9 July 2004), amending Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention); Preamble of the Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (entered into force 13 August 2010) . In addition, as of 2019, the Preamble of the draft text of an Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction refers to sustainable development. See, UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/Conf.232/2020/3, 18 November 2019. 61 62

Basic principles of international marine environmental law  93 that sustainable development must be considered as a factor in the interpretation of their provisions. In summary, while sustainable development cannot be regarded as an independent rule for adjudication, it can nevertheless be taken into account as a factor orienting the behaviour of States and guiding the proper interpretation of relevant rules in the judicial process.67 In this respect, as demonstrated by US-Shrimp, the concept of sustainable development may have a useful role to play in the marine environmental context, particularly in the protection of marine living resources and biological diversity.

5.

THE PRECAUTIONARY PRINCIPLE

5.1

The Precautionary Principle in the Context of Marine Environmental Protection

Whilst the definition of the precautionary approach or principle varies,68 Principle 15 of the 1992 Rio Declaration formulates this approach as follows: In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Although the precautionary principle is not explicitly included in the LOSC, many writers have expressed the view that the provisions of the LOSC must be interpreted in accordance with this principle.69

An obligation to apply the precautionary principle has been incorporated into a growing number of international instruments.70 In the context of the prevention of pollution from seabed mining, for example, the Regulations regarding prospecting and exploration of mineral resources in the Area include an obligation to apply the precautionary approach.71 Although not binding, the Arctic Offshore Oil and Gas Guidelines adopted by the Arctic Council in

Lowe (n 55) 31, 34-35; Tanaka, A Dual Approach to Ocean Governance (n 52) 75. It appears that the terminology of ‘the precautionary approach’ or ‘the precautionary principle’ is not unified. On this issue, see Birnie, Boyle and Redgwell (n 16) 155. In this chapter, the terms ‘precautionary approach’ or ‘precautionary principle’ are used interchangeably. 69 Aline L Jaeckel, The International Seabed Authority and the Precautionary Principle: Balancing Deep Seabed Mineral Mining and Marine Environmental Protection (Brill Nijhoff 2017) 135. 70 For a survey of international instruments referring to the precautionary principle, see, Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law (Kluwer 2002) 63ff; Nicolas de Sadeleer, ‘The Precautionary Principle in International Law’ in Yann Kerbrat and Sandrine Maljean-Dubois (n 4) 73ff. 71 ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013, Annex VI, Regs 2(2), 5(1), 31(2), 31(5), and Annex IV, s. 5.1; ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/ Rev.1, 7 May 2010, Annex IV, Regs 2(2), 5(1), 33(2), 33(5), and Annex IV, s. 5.1; ISA, Regulations on Prospecting for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 22 July 2012, Regs 2(2), 5(1), 33(2), 33(5) and Annex IV, s. 5.1. 67 68

94  Research handbook on international marine environmental law 2009 state that Arctic offshore oil and gas activities should be based on ‘the principle of the precautionary approach’.72 In the context of prevention of marine pollution, Article 2(2)(a) of the OSPAR Convention73 places an explicit obligation upon the Contracting Parties to apply the precautionary principle. Likewise Article 3(2) of the 1992 Convention on the Protection of the Marine Environment of the Baltic Sea (Helsinki Convention), which seeks to prevent marine pollution from multiple sources including shipping, explicitly obliges the Contracting Parties to apply the precautionary principle as one of the fundamental principles and obligations.74 Article 4(2) (a) of the 2010 Nairobi Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities75 and Article 5(2) of the 2012 Additional Protocol to the Abidjan Convention76 also incorporate an obligation to apply the precautionary principle. In addition, the 1996 amended Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities refers to the ‘precautionary principle’ in its Preamble.77 As regards the regulation of dumping, Article 3(1) of the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol) places an explicit obligation upon the Contracting Parties to apply ‘a precautionary approach to environmental protection from dumping of wastes or other matter …’.78 In the context of conservation of marine living resources,79 Article 6(1) of the UN Fish Stocks Agreement (FSA)80 places a clear obligation upon States to apply the precautionary approach widely to conservation, management, and exploitation of straddling fish stocks and highly migratory fish stocks. In this regard, Annex II of the FSA provides Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling 72 Arctic Council, The Arctic Offshore Oil and Gas Guidelines (29 April 2009) 6 . 73 See also, OSPAR Convention, Preamble and Annex V, Art. 3(1)(b)(ii). 74 Convention on the Protection of the Marine Environment of the Baltic Sea Area (opened for signature 9 April 1992, entered into force 17 January 2000) 2099 UNTS 195 (Helsinki Convention). 75 Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (not yet in force) . 76 Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of the Marine and Coastal Environment from Land Based Sources and Activities in the Western Central and Southern African Region (not yet in force) . 77 Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (LBS Protocol) (as amended 7 March 1996) (signed 17 May 1976, entered into force 11 May 2008) to the Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention) . 78 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1 (London Protocol). 79 See also, Rosemary Rayfuse, ‘Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction’ (2012) 27(4) International Journal of Marine and Coastal Law 773, 774. 80 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 of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3.

Basic principles of international marine environmental law  95 Fish Stocks and Highly Migratory Fish Stocks. More recently, the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA), in its Preamble, refers to the precautionary approach.81 Furthermore, Article 2 of the CAOFA makes clear that its objective is ‘to prevent unregulated fishing in the high seas portion of the central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks’. This raises the issue of the relationship between the precautionary approach and ecosystem approach which aims to conserve ecosystem structure and functioning within ecologically meaningful boundaries in an integrated manner. As with the precautionary approach, the ecosystem approach is increasingly enshrined in treaties regarding conservation of marine living resources, although its practical application remains challenging given our limited knowledge of marine ecosystems. In light of the scientific uncertainty relating to the mechanisms and functioning of marine ecosystems, some precautionary considerations are needed in the application of the ecosystem approach. In this sense, the ecosystem approach is connected to the precautionary approach.82 5.2

The Limits of the Precautionary Principle

Despite its articulation in treaties, to date both the ICJ and ITLOS have been wary of applying the precautionary principle in international disputes,83 although some judges have expressed support for the precautionary approach in dissenting or separate opinions.84 In neither the Nuclear Tests II case85 nor the Gabčíkovo-Nagymaros Project case86 did the ICJ make any explicit mention of the precautionary principle, although the applicability of this principle was at issue before the Court. In the MOX Plant case, Ireland argued that the manufacture of MOX fuel at Sellafield involved significant risks for the Irish Sea, since such manufacture would inevitably lead to discharges of radioactive substances into the marine environment. According to Ireland, the precautionary principle was applicable as a rule of customary inter Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted 3 October 2018, entered into force 25 June 2021) Official Journal of EU, 15 March 2019, L73/3 (CAOFA). 82 See Stuart M Kaye, International Fisheries Management (Kluwer 2001) 273-274; Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (Routledge 1996) 289; Tanaka, A Dual Approach to Ocean Governance (n 52) 82-87. 83 Pierre-Marie Dupuy, ‘Le Principe de Précaution et le Droit International de la Mer’ in Laurent Lucchini and Jean Pierre Quéneudec (eds) La Mer et Son Droit : Mélanges offerts à Laurent Lucchini et Jean Pierre Quéneudec (Pedone 2003) 205, 215-220; Nico Schrijver, ‘The Status of the Precautionary Principle in International Law and Its Application and Interpretation in International Litigation’ in Jean-Pierre Cot (ed) Liber Amicorum Jean-Pierre Cot: Le Procès International (Bruylant 2009) 241-253; Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 98-100. 84 See, eg, Pulp Mills, Merits (n 39) Dissenting Opinion Judge ad hoc Vinuesa, para. 100; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (Judgment) [2014] ICJ Reports 266, Separate Opinion Judge ad hoc Charlesworth 455-56, paras 6-10 (Whaling in the Antarctic); ibid, Separate Opinion Judge Cançado Trindade, 371-375, paras 60-71. See also, Jaeckel (n 69) 133-134. 85 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case (Order of 22 September 1995) [1995] ICJ Reports 288. For New Zealand’s argument on the precautionary principle, see ibid, 298, para. 34. See also Written Pleadings by New Zealand, 53-57, paras 105-110. 86 Gabčíkovo-Nagymaros Project (n 43) para. 97. The ICJ indicated that Hungary referred to the precautionary principle. 81

96  Research handbook on international marine environmental law national law. However, ITLOS declined to prescribe the provisional measures requested by Ireland on the ground that there was no urgency given the imminent constitution of the Annex VII arbitral tribunal that would be charged with hearing the merits of the case.87 It is true that ITLOS considered that ‘prudence and caution require that Ireland and the United Kingdom cooperate in exchanging information concerning risks or effects of the operation of the MOX Plant and in devising ways to deal with them, as appropriate’.88 However, no explicit mention was made with respect to the precautionary principle or approach in this case. Again, in the Land Reclamation case,89 ITLOS made no explicit reference to the precautionary approach, although the application of the precautionary principle was discussed by Malaysia.90 The customary status of the precautionary principle has similarly been a matter of consternation in the WTO. In the Hormones case, for example, the WTO Appellate Body took the view that: ‘[w]hether it [the precautionary principle] has been widely accepted by Members as a principle of general or customary international law appears less than clear’.91 Similarly, the WTO Panel in the Biotech Products case considered that the ‘legal debate over whether the precautionary principle constitutes a recognized principle of general or customary international law is still ongoing.’92 However, the Seabed Disputes Chamber of ITLOS, in its Advisory Opinion of 2011, seemed to take a more positive view, stating that Principle 15 of the Rio Declaration had initiated ‘a trend towards making this [precautionary] approach part of customary international law’.93 Nevertheless, ‘there has, to date, been no authoritative decision by an international court or tribunal which recognizes the precautionary principle as a principle of general or customary international law.’94 This judicial reticence is not without reason. In fact, the precautionary principle faces difficulties with regard to its practical application in at least three respects. First, the application of the precautionary principle may entail the risk of restricting economic and industrial activities of States. A difficult question thus arises as to how it is possible to reconcile environmental protection with economic interests. In response, there is a need to consider not only scientific factors but also, inter alia, the cost-effectiveness of proposed measures, States’ economic and social priorities, and their technical capabilities.95 As a conse87 MOX Plant (Ireland v United Kingdom) (Provisional Measures, Order of 3 December 2001) ITLOS Reports 2001, 95, para. 81 (MOX Plant, Provisional Measures). 88 Ibid, 110, para. 84. 89 Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures, Order of 8 October 2003) ITLOS Reports 2003, 10 (Land Reclamation, Provisional Measures). 90 Ibid, Request for Provisional Measures by Malaysia, 4 September 2003, para. 18; Presentation by Professor Schrijver, Verbatim Record, ITLOS/PV.03/02/Corr.1, 25 September 2003, 17 and 19-20. 91 WTO, Report of the Appellate Body, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998, 45-46, para. 123 (original footnotes omitted). 92 WTO Panel Report, European Communities-Measures Affecting the Approval and Marketing of Biotech Products (Biotech Products), WT/DS291/R, WT/DS292/R, WT/DS293/R, 29 September 2006, para. 7.88. 93 Seabed Advisory Opinion (n 13) para. 135. 94 Biotech Products (n 92) para. 7.88. 95 Laurent Lucchini, ‘Le Principe de Précaution en Droit International de l’Environnement: Ombres Plus que Lumières’ (1999) 45 Annuaire Française de Droit International 710, 727-729; Birnie, Boyle and Redgwell (n 16) 163-164. Principle 15 of the Rio Declaration makes an explicit reference to ‘cost-effective measures’: Rio Declaration (n 23) Principle 15.

Basic principles of international marine environmental law  97 quence, the decision-making process involved in the application of the precautionary principle is highly complicated. In essence, this process is a matter of national or international policy, not law. In light of this political nature, it is difficult for international courts to judge the validity of any national decisions regarding the application of this principle. Second, the inter-temporality of the precautionary principle must be noted.96 This principle aims to take protective measures in order to respond to probable or potential risks, including risks arising from ongoing activities, that cannot be fully identified through present-day science but might create environmental damage in the future. However, ‘risk’ is a complex concept, which comprises the probability and scale of harm, the causes and effects of harm on human health, the processes in question, and their interaction over time.97 The assessment of potential risks that may trigger the application of the precautionary approach is often difficult because such risks may not be well known or it may not be possible to discover them through present-day science.98 Non-foreseeability or immeasurability of potential risks can be considered an essential element of uncertainty with regard to the implementation of the precautionary approach. Moreover, since scientific knowledge and technology are constantly developing, appropriate preventive measures to respond to potential risks also change over time. The level of environmental risk that is socially acceptable also varies over time. In short, inter-temporality poses an inherent difficulty with the application of the precautionary approach.99 Hence, it seems difficult for international courts and tribunals to judge a breach of the obligation to apply the precautionary approach in a particular case. Third, the precautionary principle contains no legal guidance as to how to control environmental risks. The application of this principle itself does not automatically specify measures that should be taken. In other words, the precautionary approach can be applied in different ways in different contexts. In light of the differentiated economic and technological capacities between States, not all States can adopt the same measures with regard to the implementation of the precautionary principle.100 It can therefore be difficult for international courts and tribunals to decide whether or not a State has breached the obligation to apply the precautionary principle in a particular case. If a treaty provides an obligation to apply the precautionary principle and specifies the contents of precautionary measures, then, to a certain extent, the obstacle that judges face can be mitigated when applying that treaty. Despite the growing reference to the precautionary principle in treaties, however, more often than not these treaties lack specificity with regard to the content of the principle.101

Tanaka, ‘Reflections on Time Elements’ (n 29) 167; Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 97-98. The importance of the time factor in the application of the precautionary approach is also stressed by Judge Cançado Trindade in Whaling in the Antarctic (n 84) Separate Opinion Judge Cançado Trindade, para. 71. 97 Birnie, Boyle and Redgwell (n 16) 153. 98 Pascale Martin-Bidou, ‘Le Principe de Précaution en Droit International de l’Environnement’ (1999) 103 Revue Générale de Droit International Public 631, 647. 99 Tanaka, ‘Reflections on Time Elements’ (n 29) 173. 100 Fernando Gonsález-Laxe, ‘The Precautionary Principle in Fisheries Management’ (2005) 29(6) Marine Policy 495, 496. 101 For instance, the Helsinki Convention does not specify the measures that must be taken in the application of the precautionary principle. The same holds true of the OSPAR Convention and the London Dumping Protocol. 96

98  Research handbook on international marine environmental law This is not to suggest that the precautionary principle has no normative force. On the contrary, it can be used as an element of interpretation of existing rules of international law.102 Indeed, in the Pulp Mills case the ICJ explicitly stated that ‘a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute [of the River Uruguay]’.103 In the Southern Bluefin Tuna cases, ITLOS ruled that: ‘the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stocks of southern bluefin tuna’.104 The Tribunal then went on to state that although it could not ‘conclusively assess the scientific evidence presented by the parties’, it did consider ‘that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock’.105 While not referring explicitly to the precautionary principle, ITLOS thus appeared to take account of the precautionary approach as an element of the interpretation of the requirement of urgency under Article 290 of the LOSC.106 A further issue to be considered is how the normative force of the precautionary principle can be enhanced. In approaching this issue, particular attention must be paid to the link between the precautionary principle and EIA.107 It seems difficult to detect potential risks that may trigger the application of the precautionary principle unless an effective EIA is carried out before a proposed project has begun. Hence, it may be argued that a State that is obliged to apply the precautionary principle must also conduct an effective EIA.108 Failure to do so would result in a breach of the obligation to apply the precautionary principle.109

6.

PRINCIPLE OF COOPERATION

6.1

Obligation to Cooperate in Marine Environmental Protection

The duty to cooperate is one of the basic principles of international law110 and the same holds true of the international law of marine environmental protection. Since damage to the marine Yoshifumi Tanaka, ‘Rethinking Lex Ferenda in International Adjudication’ (2008) 51 German Yearbook of International Law 467, 489-493; Alan Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54(3) International and Comparative Law Quarterly 563, 573-574. 103 Pulp Mills, Merits (n 39) para. 164. 104 Southern Bluefin Tuna, Provisional Measures (n 9) para. 77. 105 Ibid, para. 80. 106 Ibid, Separate Opinion Judge Treves, 1645, paras 8-9. See also, ibid, Separate Opinion Judge Laing, 1642, para. 19; ibid, Separate Opinion Judge ad hoc Shearer, 1650; Tullio Treves, ‘Disputes in International Environmental Law: Judicial Settlement and Alternative Methods’ in Yann Kerbrat and Sandrine Maljean-Dubois (n 4) 290. 107 Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 97-102. 108 Pulp Mills, Merits (n 39) para. 204. See also, Tanaka, ‘Obligation to Conduct an Environmental Impact Assessment’ (n 36) 102. 109 Pulp Mills, Merits (n 39) Separate Opinion of Judge Cançado Trindade, paras 63 and 96. Related to this, it must also be noted that EIA must be complemented by a monitoring system since there is a need to continue monitoring the ongoing environmental risks and impacts after a project has begun. Pulp Mills, Merits (n 39) para. 205. 110 Fourth principle of the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV), 24 October 1970. See also, Weiss (n 46) 152-162. 102

Basic principles of international marine environmental law  99 environment is not necessarily constrained by human-made delimitation lines, the protection of the marine environment from pollution or overexploitation of resources can hardly be achieved by a single State. International cooperation is also needed with a view to effectuating various international obligations relating to marine environmental protection. The importance of cooperation to marine protection and preservation has been repeatedly stressed by ITLOS.111 The obligation to cooperate is embodied in many treaties and other international instruments.112 Indeed, multiple provisions of the LOSC require cooperation with a view to preventing marine pollution and protecting the marine environment.113 The obligation to cooperate in the establishment of relevant rules is also indirectly incorporated into the LOSC provisions concerning land-based pollution,114 pollution from sea-bed activities subject to national jurisdiction,115 pollution from dumping,116 pollution from vessels,117 pollution from or through the atmosphere,118 physical investigation of foreign vessels,119 and responsibility and liability.120 Furthermore, the LOSC includes an obligation to cooperate in conservation of marine living resources in the high seas.121 The obligation to cooperate can influence the interpretation or application of relevant rules concerning marine environmental protection, including conservation of marine living resources.122 An illustrative example is provided by the Whaling in the Antarctic case,123 in which the ICJ held: [T]he States parties to the ICRW [the 1946 International Convention for the Regulation of Whaling] have a duty to co-operate with the IWC [International Whaling Commission] and the Scientific Committee and thus should give due regard to recommendations calling for an assessment of the feasibility of non-lethal alternatives.124

Following the dictum of the Court, States Parties to a treaty are required to give due regard to resolutions or recommendations adopted by a treaty commission in accordance with a duty to cooperate. As a consequence, resolutions or recommendations of a treaty commission may affect the interpretation and application of treaty provisions. It is suggested that the States Parties to the ICRW must pay due regard to the evolution of the regulation of whaling through IWC resolutions when implementing relevant provisions of the ICRW, even if the resolutions 111 MOX Plant, Provisional Measures (n 87) para. 82; Land Reclamation, Provisional Measures (n 89) para. 92; Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) ITLOS Reports 2015, 4, 43, para. 140. See also, South China Sea, Award (n 8) para. 985. 112 Sands and Peel (n 5) 203. 113 See, eg, LOSC, Arts 123, 197 and 199. 114 LOSC, Art. 207(4). 115 LOSC, Art. 208(5). 116 LOSC, Art. 210(4). 117 LOSC, Art. 211(1). 118 LOSC, Art. 212(3). 119 LOSC, Art. 226(2). 120 LOSC, Art. 235(3). 121 LOSC, Arts 117, 118. 122 Yoshifumi Tanaka, ‘Toward Sustainable Management of Marine Natural Resources’ in Markus Kotzur and others (eds), Sustainable Ocean Resource Governance: Deep Sea Mining, Marine Energy and Submarine Cables (Brill/Nijhoff 2018) 120-122. 123 Whaling in the Antarctic (n 84) 226. 124 Ibid, 247, para. 45.

100  Research handbook on international marine environmental law are not legally binding. In so doing, it may be said that the Court incorporated a temporal element, that is, the evolution of whaling regulation, into the interpretation and application of provisions of the ICRW via the duty to cooperate. Following the Court’s approach, the obligation to cooperate can open the way to the incorporation of temporal elements into treaty interpretation.125 6.2

Securing Compliance with an Obligation to Cooperate

Disputes can arise, however, with regard to compliance with the obligation to cooperate set out in multiple provisions of the LOSC. In the South China Sea arbitration, the question arose as to whether China had fulfilled an obligation to cooperate under Articles 123 and 197 of the LOSC. The Tribunal held that China had breached both Articles since there was no convincing evidence of China’s attempting to cooperate or coordinate with the other States bordering the South China Sea with regard to China’s island-building programme.126 Nevertheless, the obligation to cooperate does not, itself, specify the measures that must be taken. It is therefore difficult to determine whether a breach of the obligation to cooperate has occurred. An issue thus arises as to how international cooperation in marine environmental protection can be secured. In this respect, two points in particular merit highlighting. The first point concerns the role of international institutions as a mechanism for securing international cooperation in the conservation of marine living resources and the regulation of marine pollution. Here, the role of regional fisheries management organisations (RFMOs) and treaty commissions created by environmental treaties merits particular attention. Whilst the mandates and functions of RFMOs vary, it is clear that they facilitate institutionalisation of international cooperation. Thus, membership in an RFMO may be considered as fulfilling the obligation to cooperate in conserving marine living resources. Indeed, Article 8(3) of the FSA places an explicit obligation upon the Contracting Parties to be a member of a relevant RFMO, although this provision is binding only upon the Contracting Parties to the FSA.127 Commissions created by environmental treaties can also facilitate international cooperation between Contracting Parties through international supervision. For example, the OSPAR Commission is equipped with a compliance procedure combined with a reporting system.128 Article 22 of the OSPAR Convention obliges the Contracting Parties to report to the OSPAR Commission at regular intervals on the legal, regulatory, or other measures taken by them for the implementation of the provisions of the Convention, on decisions and recommen-

Tanaka, ‘Toward Sustainable Management’ (n 122) 121. South China Sea, Award (n 8) paras 986, 993. See also Tanaka, South China Sea (n 10) 144-145. 127 Erik Franckx, ‘Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea’ (2000) 8 Tulane Journal of International and Comparative Law 49. As of January 2021, 91 States are parties to the FSA. Related to this, it is relevant to note that under Article 118 of the LOSC, States whose nationals exploit identical living resources, or different living resources in the same area must, ‘as appropriate, co-operate to establish subregional or regional fisheries organisations to this end’. See further, Rosemary Rayfuse, ‘Article 118’ in Alexander Proelss (ed), The United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos, 2017) 817-830. 128 Reporting systems provide the foundation for international supervision. Yoshifumi Tanaka, ‘Reflections on Reporting Systems in Treaties Concerning the Protection of the Marine Environment’ (2009) 40(2) Ocean Development and International Law 146. 125 126

Basic principles of international marine environmental law  101 dations adopted thereunder, and on the effectiveness of these measures. Under Article 23 of the OSPAR Convention, the Commission is empowered to assess compliance with that Convention and the decisions and recommendations adopted thereunder on the basis of the aforementioned periodic reports and any other reports submitted by the Contracting Parties. It can also decide upon, and call for steps to bring about, full compliance with the Convention and decisions adopted thereunder, and promote the implementation of recommendations, including through the adoption of measures to assist a Contracting Party to carry out its obligations.129 The OSPAR Convention reflects an advanced model of a compliance procedure in the context of the protection of the marine environment. A second point relates to the role of international courts and tribunals in securing international cooperation. In this respect, it is noteworthy that ITLOS has on occasion prescribed specific measures to secure international cooperation between parties to a dispute. In the MOX Plant case, in which the specific content of the obligation to cooperate was at issue, ITLOS unanimously ordered Ireland and the United Kingdom to cooperate in order to, inter alia: (a) exchange further information with regard to possible consequences for the Irish Sea arising out of the commission of the MOX plant; and (b) monitor risks or the effects of the operation of the MOX plant for the Irish Sea.130 Likewise, in the Land Reclamation case between Malaysia and Singapore, ITLOS unanimously prescribed provisional measures requiring Malaysia and Singapore to cooperate in order to: (a) establish a group of independent experts to conduct a study on the effects of Singapore’s land reclamation and to propose measures to deal with any adverse effects of such land reclamation; (b) exchange information on and assess risks or effects of Singapore’s land reclamation works; and (c) implement the commitments noted in the Order.131 To take another example, in the Southern Bluefin Tuna cases, ITLOS prescribed provisional measures ordering that: (e) Australia, Japan and New Zealand should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna; (f) Australia, Japan and New Zealand should make further efforts to reach agreement with other States and fishing entities engaged in fishing for southern bluefin tuna, with a view to ensuring conservation and promoting the objective of optimum utilization of the stock.132

These provisional measures would contribute to securing cooperation between the disputing parties in the conservation of the southern bluefin tuna stock. It can be argued that the ITLOS provisional measures have a valuable role to play in securing cooperation between disputing parties in the prevention of marine pollution and the conservation of marine living resources.133 At the same time, it is important to note that the obligation to cooperate prescribed by provisional measures is short-lived, since those measures are limited to the period ‘pending the 129 Emphasis added. According to Lagoni, ‘measures to assist’ could include administrative or technical or scientific help. Rainer Lagoni, ‘Monitoring Compliance and Enforcement of Compliance Through the OSPAR Commission’ in Peter Ehlers, Elisabeth Mann-Borgese and Rüdiger Wolfrum (eds), Marine Issues (Kluwer 2002) 155, 161. 130 MOX Plant, Provisional Measures (n 87) para. 89. 131 Land Reclamation, Provisional Measures (n 89) para. 106. 132 Southern Bluefin Tuna, Provisional Measures (n 9) para. 90. 133 See further, Yoshifumi Tanaka, ‘Juridical Insights into the Protection of Community Interests through Provisional Measures: Reflections on the ITLOS Jurisprudence’ (2014) 14 The Global Community Yearbook of International Law and Jurisprudence 249.

102  Research handbook on international marine environmental law final decision’134 or ‘pending the constitution of an arbitral tribunal to which a dispute is being submitted’ under section 2 of Part XV of the LOSC.135

7. CONCLUSION It has been argued that principles of international law can perform three functions: to integrate legal, economic and technological elements into a legal framework; to provide guidance in the interpretation and application of relevant rules; and to provide predictable parameters and orientation for the development of law. The four elements discussed in this chapter – the no harm principle, the concept of sustainable development, the precautionary principle and the principle of cooperation – constitute basic principles governing the protection of the marine environment in international law. However, the effectiveness of international marine environmental law cannot be secured by the articulation of principles alone. Rather, the further development of specific norms is needed. In this regard, four points merit discussion. The first point concerns the link between substantive and procedural rules.136 More often than not, substantive rules of international law governing environmental protection remain general and open-textured. Accordingly, it is difficult for an international court or tribunal to find a breach of substantive rules regarding environmental protection. In this regard, the interlinkage between substantive and procedural rules, such as an obligation to conduct an EIA, merits attention. Indeed, it is argued that a State undertaking activities that create serious environmental damage will not be able to deny breach of an obligation of due diligence and an obligation to apply the precautionary principle on grounds of non-foreseeability if it has not conducted an EIA. In other words, the EIA obligation provides a procedural means to effectuate the obligation of due diligence and the obligation to apply the precautionary principle. As such, the procedural rule of an EIA contributes to strengthening the substantive rules of environmental protection. It appears that effectuating substantive environmental norms by procedural rules is an approach well worth considering. The second point pertains to the systemic interpretation of norms governing marine environmental protection. To protect the marine environment, complex webs of treaties are developing. As the ICJ stated in the Namibia (South West Africa) Advisory Opinion, ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.137 Accordingly, there is a need to interpret relevant rules and principles governing marine environmental protection in a systemic manner,138 in accordance with Article 31(3)(c) of the Vienna Convention on the Law of Treaties.139 In par-

LOSC, Art. 290(1). LOSC, Art. 290(5). 136 Generally on this issue, see, Jutta Brunnée, Procedure and Substance in International Environmental Law (Brill 2020). 137 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, para. 53. 138 See also, Whaling in the Antarctic (n 84) Separate Opinion Judge Cançado Trindade, 357-358, paras 25-26. 139 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. Generally on this issue, see, Panos Merkouris, Article 31(3)(c) VCLT and the 134 135

Basic principles of international marine environmental law  103 ticular, attention must be paid to the connections between norms concerning the prevention of marine pollution, conservation of marine living resources and biological diversity.140 The third point concerns inter-temporal dimensions in international marine environmental law. As ecological conditions of the oceans may change over time, there is a need to adapt existing rules governing marine environmental protection to new circumstances. Furthermore, since today’s protection and conservation measures may affect future generations, inter-temporal considerations are of particular importance in the interpretation and application of the international law of marine environmental protection. It is notable that rules and principles of international marine environmental law include several temporal elements. In particular, the temporal elements are reflected in: the obligation of due diligence; the concept of sustainability; probable risks that trigger the application of the precautionary principle; EIA as a procedure to detect future environmental risks; the obligation to apply best environmental practices; and in the obligation to apply best available techniques. Finally, compliance with relevant principles and rules regarding marine environmental protection deserves serious consideration. In this regard, non-compliance procedures are noteworthy. As distinct from international adjudication, a compliance procedure is a non-adversarial and assistance-oriented procedure for preventing a breach of treaty obligations and facilitating compliance with the obligations through a treaty committee or meeting of the parties. Compliance procedures are enshrined in many multilateral environmental treaties.141 In light of the importance of the prevention of environmental harm, the creation of compliance procedures in marine environmental treaties appears to be an option well worth considering with a view to enhancing the effectiveness of the protection of the marine environment in international law.

Principle of Systemic Integration: Normative Shadows in Plato’s Cave (Brill/Nijhoff, 2015); Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54(2) International and Comparative Law Quarterly 279; Duncan French, ‘Treaty Interpretation and the Incorporation of Extraneous Legal Rules’ (2006) 55(2) International and Comparative Law Quarterly 281; Ulf Linderfalk, ‘Who Are “the Parties”? Article 31, Paragraph 3(c) of the 1969 Vienna Convention and the “Principle of Systemic Integration” Revisited’ (2008) 55(3) Netherlands International Law Review 343. 140 See, Yoshifumi Tanaka, ‘Reflections on the Implications of Environmental Norms for Fishing: The Link between the Regulation of Fishing and the Protection of Marine Biological Diversity’ (2020) 22(3-4) The International Community Law Review 389. 141 See further, James Harrison, ‘Compliance Mechanisms under Treaties Relating to Protection of the Marine Environment’, Chapter 5 in this volume. See also, Yoshifumi Tanaka, The Peaceful Settlement of International Disputes (CUP 2018) 323ff; Yoshifumi Tanaka, ‘Compliance Procedures: Multilateral Environmental Agreements (MEAs)’ in Hélène Ruiz Fabri (ed), Max Planck Encyclopedia of International Procedural Law (MPEiPro) (OUP 2021).

5. Compliance mechanisms under treaties relating to protection of the marine environment James Harrison

1. INTRODUCTION The number of international treaties that have been concluded for the purpose of protecting the marine environment has expanded over the past decades. These instruments contain rules that seek to regulate harmful activities and prevent significant harm to marine ecosystems. Yet, effectively addressing the protection of the marine environment not only requires the adoption of appropriate rules, but also action on the part of States to give effect to those rules. When entering into a treaty, States are under an obligation to perform their obligations in good faith1 and failure to do so will entail their international responsibility.2 Many modern treaties reinforce these basic obligations by establishing mechanisms to permit scrutiny of actions taken by States to give effect to the treaty. Such mechanisms are particularly significant in the context of marine environmental treaties given the integral nature of most obligations, meaning that the rules will only achieve their desired result if all States comply.3 Dispute settlement procedures offer one mechanism to solve disputes concerning the interpretation and application of a treaty. Whilst several marine environmental treaties do provide for the unilateral submission of disputes to arbitration or adjudication,4 as does the United Nations Convention on the Law of the Sea (LOSC),5 these procedures are rarely invoked in practice for a number of reasons, including challenges of establishing standing, the time and costs involved,6 not to mention the limits on participation in adversarial proceedings involving the common interests of States.7

1 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 26. 2 See, ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) Yearbook of the International Law Commission, vol. II/2, 32. 3 See, Joost Pauwelyn, ‘A Typology of Multilateral Treaty Obligations’ (2003) 14 European Journal of International Law 907-951. 4 Eg, International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 184, Arts 8 and 10. 5 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC), pt. XV. 6 See, Daniel Bodansky, The Art and Craft of International Environmental Law (HUP 2010) 247; Jan Klabbers, ‘Compliance Procedures’ in Daniel Bodansky and others (eds), Oxford Handbook on International Environmental Law (OUP 2008) 1001; Robin Churchill, ‘Trends in Dispute Settlement in the Law of the Sea: Towards the Increasing Availability of Compulsory Means’ in Duncan French and others (eds), International Law and Dispute Settlement (Bloomsbury 2012) 149. 7 See, Alan E Boyle and James Harrison, ‘Judicial Settlement of International Environmental Disputes’ (2013) 4 Journal of International Dispute Settlement 245, 262-266.

104

Compliance mechanisms  105 In contrast, the role of international institutions as a more flexible and effective method of treaty supervision has long been recognised.8 In this context, States have increasingly developed dedicated procedures to oversee the implementation of a treaty. Even by the late 1990s, so-called compliance mechanisms were described as ‘an indispensable element of [multilateral environmental agreements]’9 and where treaties did not originally contain compliance mechanisms, they have often been added. The purpose of this chapter is to consider the extent to which marine environmental treaties have incorporated compliance mechanisms and the manner in which those mechanisms have operated. Much of the existing scholarly work in this area focuses on the key design features of compliance mechanisms,10 such as how the mechanism can be triggered, who is involved in the process, and what actions may be taken to promote compliance. This chapter seeks to build upon this scholarship by considering both the design of compliance mechanisms developed under marine environmental treaties as well as their practical operation. It is only through such an analysis that we can discover the circumstances in which compliance mechanisms are triggered in practice and the successes and challenges associated with compliance control. Section 2 provides an overview of compliance mechanisms, identifying their key features and functions, as well as the factors that can be used to differentiate between variants of compliance mechanisms. Section 3 then considers practice in the operation of compliance mechanisms across a number of marine environmental treaties, including the global dumping treaties, regional seas treaties, treaties regulating pollution from ships, and regional fisheries treaties. This analysis will form the basis for the general conclusions in section 4.

2.

OVERVIEW OF COMPLIANCE MECHANISMS: KEY FEATURES AND FUNCTIONS

There is no single definition of a compliance mechanism, but the term generally refers to the body of rules and procedures employed by a treaty institution in order to identify and respond to situations in which a party to a treaty may not have fulfilled its obligations thereunder. Compliance mechanisms can take a number of forms but, in contrast to litigation, they tend to be ‘non-adversarial’11 and ‘pro-active’12 in character, focussing on identifying why compliance has not occurred and, at least in the first instance, assisting States to comply. Whilst the design

Alan E Boyle, ‘Saving the World? Implementation and Enforcement of International Environmental Law through International Institutions’ (1991) 3 Journal of Environmental Law 229, 230. 9 Günther Handl, ‘Compliance Control Mechanisms and International Environmental Obligations’ (1997) 5 Tulane Journal of International and Comparative Law 29, 32. 10 See, eg, Karen N Scott, ‘Non-Compliance Mechanisms and Dispute Resolution Mechanisms under International Environmental Agreements’ in Duncan French and others (eds), International Law and Dispute Settlement (Bloomsbury 2012) 225-258; Tullio Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TM Asser 2009); Nils Goeteyn and Frank Maes, ‘Compliance Mechanisms in Multilateral Environmental Agreements’ (2011-12) 10 Chinese Journal of International Law 791. 11 UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, 9 February 2001 (UNEP Guidelines), para. (d)(iii). 12 Klabbers (n 6) 1003; Handl (n 9) 34. 8

106  Research handbook on international marine environmental law of compliance mechanisms is usually adapted to the context in which they operate,13 there are several common features of compliance processes. First, a compliance mechanism operates under an institutional framework. This role may be performed by the general meeting of the parties, but it is increasingly common to establish a dedicated organ to consider compliance matters.14 In this respect, a key distinction can be drawn between those compliance bodies composed of representatives of the parties, compared to compliance bodies involving independent experts in the review of compliance issues. There may be perceived benefits of delegating compliance decisions to experts, not least that they can act independently from broader State interests. Yet, even when independent compliance bodies are established, they often have to report to the parties to the treaty, which usually have the ultimate say on what action to take, reflecting the inherently political nature of decisions about responses to non-compliance in this context.15 How compliance mechanisms can be triggered is another key issue for understanding compliance mechanisms. Most mechanisms allow cases to be raised either by other parties to the treaty or through self-referral by a State that is struggling with compliance. Many compliance mechanisms also introduce other routes to raise compliance issues, for example initiation of proceedings by a compliance body itself or the possibility for members of the public or representatives of civil society to refer a matter for consideration. This latter characteristic has been highlighted as an important means of improving compliance because ‘NGOs are better informed and more appropriately placed to respond to non-compliance than affected states’16 and the involvement of civil society ‘has the important effect of legitimizing and “democratizing” global governance.’17 Often, compliance bodies also have a broader function of identifying systemic issues that might hinder compliance. These problems include ambiguous provisions that could be clarified through interpretation, or common weaknesses in implementation, which could be addressed through the provision of training or technical assistance. This function is often linked to the reporting duties under a treaty, which have been described as a ‘fundamental basis of compliance control.’18 Finally, an important consideration is the outcome of the process. Some mechanisms focus exclusively on assisting States to comply, based upon the assumption that failure to comply is often related to factors such as indeterminacy of treaty language or limitations on the capacity of parties to carry out their obligations, rather than bad faith.19 This so-called managerialist approach insists that ‘the fundamental instrument for maintaining compliance with treaties at an acceptable level is an iterative process of discourse among the parties.’20 Other authors

Goetyn and Maes (n 10) 798; UNEP Guidelines (n 11) para. 5. See Scott (n 10) 235-236. 15 Bodansky, The Art and Craft of International Environmental Law (n 6) 248; Kal Raustiala, Reporting and Review Institutions in 10 Multilateral Environmental Agreements (UNEP 2001) 70. 16 Scott (n 10) 250. 17 Raustiala (n 15) 72. 18 Dorota Englender and others, ‘Co-operation and Compliance Control in Areas beyond National Jurisdiction’ (2014) 49 Marine Policy 186, 187. But see, Edith Brown Weiss, ‘Understanding Compliance with International Environmental Agreements’ (1999) 32 University of Richmond Law Review 1555, 1573-1576. 19 Abram Chayes and Antonia H Chayes, The New Sovereignty (HUP 1995) 10. 20 Ibid, 25. 13 14

Compliance mechanisms  107 have challenged exclusive reliance upon facilitative measures, arguing that ‘when the legal obligation is clear, negotiations have been held, positive inducements have been made and a time to comply is given, coercive enforcement is needed.’21 In reality, both approaches offer advantages and disadvantages22 and they can only be effectively employed ‘when a sufficiently strong body of shared understandings and legitimate processes has developed within the regime.’23 Typically, compliance mechanisms set out a range of options available to parties to a treaty to address identified situations of non-compliance. Yet, in order to fully understand the mechanics of compliance mechanisms under a particular treaty, it is necessary to analyse their actual operation:24 when is a mechanism triggered and what measures are taken when non-compliance is identified? As the case studies in this chapter reveal, the approach to compliance under a particular treaty may evolve as States begin to understand the challenges associated with promoting compliance, as well as the strengths and weaknesses of the options available to them. With this in mind, the following section will consider the manner in which compliance mechanisms have been integrated into treaties in four fields of international marine environmental law: global dumping treaties, regional seas treaties, global shipping treaties and regional fisheries treaties.

3.

COMPLIANCE MECHANISMS UNDER MARINE ENVIRONMENTAL TREATIES

3.1

The Global Dumping Regime

The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) was amongst the first global treaties adopted to address the prevention of marine pollution. As an early multilateral environmental agreement, the London Convention only contains rudimentary provisions for oversight25 and a 1978 amendment to introduce compulsory dispute settlement never entered into force. Nevertheless, the annual Meeting of Contracting Parties played an active role in overseeing implementation of the Convention and it regularly discussed allegations that certain parties were not abiding by their commitments. Indeed, questions of compliance were often raised by non-State actors participating as observers in the meeting.26 Yet, this meeting lacked formal powers to address any identified non-compliance and it relied exclusively on persuasion of the States concerned.

21 Peter H Sand, ‘Enforcing CITES’ (2013) 22 Review of European, Comparative and International Environmental Law 251, 256. 22 Brown Weiss (n 18) 1586; Raustiala (n 15) 72-73. 23 Jutta Brunnée, ‘Multilateral Environmental Agreements and the Compliance Continuum’ in Gerd Winter (ed), Multilevel Governance of Global Environmental Change (CUP 2006) 406-407. 24 See Raustiala (n 15) 3. 25 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention), Art. 10. 26 See, Rémi Parmentier, ‘Greenpeace and the Dumping of Waste at Sea: A Case of Non-State Actors’ Intervention in International Affairs’ (1999) 4 International Negotiation 433; Brown Weiss (n 18) 1579-1580.

108  Research handbook on international marine environmental law When States decided to update the global dumping regime through the negotiation of the 1996 London Protocol, they agreed that a more formalised compliance mechanism was desirable.27 A compliance procedure was duly adopted in 2007,28 which establishes a Compliance Group of up to 15 individuals selected on the basis of their scientific, technical or legal expertise29 and serving objectively.30 The Compliance Group has a mandate to consider individual situations of compliance of a particular party, which may be raised by the Meeting of Contracting Parties, by a party regarding itself or by ‘a Party that has reservations about another Party’s non-compliance with the obligations under the Protocol when it has an interest that is affected or likely to be affected by the possible non-compliance.’31 There is no formal role for NGOs to trigger the compliance procedure, although as noted below, evidence provided by NGOs may provide a source of information that can be taken into account by the Compliance Group in the exercise of its functions.32 One of the more unusual functions of the Compliance Group is providing advice to non-parties in order to facilitate their becoming a party to the London Protocol.33 Following consideration of an individual situation of compliance, the Compliance Group may ‘recommend’ to the Meeting of Contracting Parties a number of actions, namely the provision of advice and recommendations; the facilitation of cooperation and assistance; the elaboration of compliance action plans; or the issuing of a formal statement of concern.34 Whilst the final decision on measures is taken by the Meeting of Contracting Parties,35 the Compliance Group may ‘provide advice and guidance to a Party pending consideration by the Meeting of Contracting Parties.’36 In practice, no individual situations of non-compliance have been submitted to the Compliance Group to date and its work has focussed on fulfilling its broader function of considering ‘systematic compliance issues referred to it or that it proposes to pursue.’37 Whilst the Compliance Group has discretion to ‘propose’ systematic issues for review, it is required

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1 (London Protocol), Art. 11. 28 IMO, Report of the twenty-ninth Consultative Meeting and the second Meeting of Contracting Parties, IMO Doc LC 29/17, Annex 7, 14 December 2007. The procedure was amended by ‘Report of the thirty-ninth Consultative Meeting and the twelfth Meeting of Contracting Parties’, IMO Doc LC 39/16/ Add.1, Annex 5, 27 October 2017 (LDP Compliance Procedure). 29 Ibid, para. 3.2. 30 Ibid, para. 3.3. Even though members serve objectively, it was agreed it would be a conflict of interest for a member of participate in the consideration of a matter involving the country that nominated the member. IMO, Report of the thirtieth Consultative Meeting and the third Meeting of Contracting Parties, IMO Doc LC30/16 Annex 7, 9 December 2008, para. 5.3. 31 LDP Compliance Procedure, para. 4.1.3. For a critique of the conditions attached to the State-to-State trigger, see, Scott (n 10) 242. 32 The rules of procedure allow non-party observers to attend meetings of the Compliance Group ‘except that when individual situations of compliance are under consideration by the Compliance Group, the meeting shall be closed if the Party whose compliance is in question so requests’: LDP Compliance Procedure, para. 3.9. 33 Ibid, para. 2.2.8. 34 Ibid, para. 5.1. 35 Ibid, para. 5.4. 36 Ibid, para. 2.2.7. 37 Ibid, para. 2.2.2. 27

Compliance mechanisms  109 to submit its future work programme for ‘consideration and approval by the Meeting of Contracting Parties’38 and it is therefore questionable whether it can pursue any matter proprio motu.39 Indeed, the Meeting of Contracting Parties has emphasised that the general mandate of the Compliance Group should not be used to circumvent the procedures designed to address the situations of individual parties. For example, when the Compliance Group decided to flag potential interpretational issues that could lead to non-compliance based upon a submission by Greenpeace concerning Japanese plans for treatment and disposal of liquid radioactive waste accumulating at the Fukushima Daaichi Nuclear Power Plant,40 the Meeting of the Contracting Parties decided that ‘there would need to be a formal submission on any possible non-compliance for it to be considered by the Meeting of Contracting Parties and referred to the Compliance Group.’41 As part of its broader mandate to systematically review compliance, the Compliance Group shall also ‘review and provide advice to the Meeting of the Contracting Parties’ on reports and records submitted by parties under relevant provisions of the London Protocol.42 In carrying out this function, the Compliance Group may liaise with the Scientific Group and it has agreed that the latter should take the lead on reviewing individual reports on dumping permits, with the Compliance Group focussing itself on overall reporting.43 Reporting has been a significant problem, with a long-standing decline in reporting by parties.44 This deficiency is a fundamental challenge given that ‘non-reporting … reduces transparency and makes it difficult to know whether Parties have implemented their obligations.’45 To address this problem, the Compliance Group initially focussed its efforts on education, by producing a summary of reporting requirements in order to help parties to understand their obligations,46 as well as regularly issuing circulars to remind parties of their obligations to report within a particular deadline. The Compliance Group has also developed templates for reporting

Ibid, para. 6.6.3. Cf, Seline Trevisanut, ‘The Compliance Procedures and Mechanism of the 1996 Protocol to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter’ in Tullio Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TM Asser 2009) 56. 40 International Maritime Organization (IMO), Report of the forty-first Consultative Meeting and the fourteenth Meeting of Contracting Parties, IMO Doc LC41/17/Add.1, Annex 3, 29 October 2019, para. 11.2. See also, para. 13.1.6. 41 IMO, Report of the forty-first Consultative Meeting and the fourteenth Meeting of Contracting Parties, IMO Doc LC41/17, 17 October 2019, para. 7.25. 42 LDP Compliance Procedure, para. 2.2.6. 43 IMO, Report of the thirty-first Consultative Meeting and the fourth Meeting of Contracting Parties, IMO Doc LC 31/15, Annex 6, 30 November 2009, para. 7.3. The Compliance Group has made clear that references from the Scientific Group are not to be used as a conduit for triggering individual cases of non-compliance; IMO, Report of the thirty-seventh Consultative Meeting and the tenth Meeting of Contracting Parties, IMO Doc LC37/16, Annex 4, 22 October 2015, para. 5.2. 44 IMO, Report of the fortieth Consultative Meeting and the thirteenth Meeting of Contracting Parties, IMO Doc LC 40/16, 29 November 2018, para. 5.2. 45 IMO, Report of the thirty-third Consultative Meeting and the sixth Meeting of Contracting Parties, IMO Doc LC33/15, Annex 4, 8 November 2011, para. 6.3.2. 46 IMO, Identification and Review of Factors Contributing to the Difficulties Experienced by Protocol Parties in Fulfilling their Reporting Obligations under Article 9.4.1 of the Protocol. Summary of all Reporting Requirements under the Protocol Submitted by a Member of the Compliance Group, IMO Doc LP-CG 3/7, 23 August 2010. 38 39

110  Research handbook on international marine environmental law on national implementation.47 Given that non-reporting rates remained high, since 2011 the Compliance Group has also followed up on incidents of non-reporting by sending out letters to non-reporting parties reminding them of their obligations, but also inquiring about the reasons for non-submission and extending an offer of assistance or support.48 Other initiatives have also been tested, such as distributing questionnaires concerning non-reporting at the annual Meeting of the Contracting Parties,49 outreach during coffee breaks at annual meetings, as well as informal interviews with country representatives.50 The emphasis of outreach is not only to explain the requirements, but to make clear that the Compliance Group can provide support for States.51 These examples illustrate the experimentalism that can emerge through permanent compliance bodies, whilst also underlining the challenges of dealing with systematic non-compliance. It is worth noting that the compliance mechanism is not the only means through which implementation of the London Protocol has been promoted, and States have also pursued more general capacity building programmes in accordance with Article 13 of the Protocol. The ‘Barriers to Compliance’ project was initiated in 2006 in order to strengthen marine environmental protection capacities of countries, with a particular emphasis on controlling dumping and promoting alternatives thereto. A key objective was to ‘identify barriers to accession to, implementation of, and compliance with international sea dumping controls in developing countries’ and to ‘propose follow-up action to design, develop and provide resources for programmes to remove these barriers.’52 The project was jointly funded by the International Maritime Organization (IMO) and UN Environment Programme and the final report identified a series of activities and proposed several pilot countries as initial recipients of technical assistance. The contracting parties subsequently adopted an implementation plan, which is overseen by a project steering group.53 Over the years, a number of national and regional workshops have taken place, alongside the production of more general materials promoting effective implementation of the London Protocol.54 The project has been executed through close cooperation with the Compliance Group in order to avoid duplication of work,55 but the lack of reporting makes it difficult to tell how successful it has been. 3.2

Regional Seas Treaties

Regional seas treaties first emerged in the 1970s as a means to address various sources of marine pollution at the regional level. Today, there are 18 regional seas conventions or 47 IMO, Report of the third-nineth Consultative Meeting and the twelfth Meeting of Contracting Parties, IMO Doc LC39/16, 27 October 2017, para. 5.9.1. 48 IMO Doc LC33/15 (n 45), para. 7.2. See also, para. 10.4. 49 IMO Doc LC41/17 (n 41), para. 6.10. 50 Ibid, para. 6.12. 51 IMO, Report of the thirty-eighth Consultative Meeting and the eleventh Meeting of Contracting Parties, IMO Doc LC38/16, Annex 3, 18 October 2016, para. 10.10.4. 52 IMO, Report of the twenty-ninth Consultative Meeting and the second Meeting of Contracting Parties, IMO Doc LC29/6, Annex, 12 September 2007, para. 1.3. 53 IMO Doc LC30/16 (n 30) para. 7.19 and Annex 9. 54 IMO Doc LC39/16 (n 47) Annex 7 (Revised Guidance for National Implementation of the London Protocol); IMO, Technical Cooperation and Assistance, Guidance on how to Seek Assistance, Note by the Secretariat, IMO Doc LC37/8, 7 July 2015. 55 IMO Doc LC38/16 (n 51) para. 8.4.

Compliance mechanisms  111 action plans, spanning most parts of the globe.56 The precise nature, scope and ambition of the arrangements vary significantly from region to region and therefore it is no surprise that approaches to compliance are also diverse. From the outset, regional seas treaties tended to establish some institutional arrangement, usually in the form of a commission57 or meeting of the contracting parties58 with powers of oversight. For example, the Baltic Sea Commission was given the power ‘to keep the implementation of the present convention under continuous observation.’59 As these treaty regimes have evolved, more specific procedures for compliance control have emerged in some regions. The leading example is provided by the Barcelona Convention, covering the Mediterranean region, which provides for the Meeting of the Parties to ‘assess the compliance with the Convention and its Protocols as well as the measures and recommendations.’60 On the basis of this provision, the Meeting of the Parties has developed a compliance procedure under the auspices of a dedicated Compliance Committee composed of seven members with a recognised competence in the matters dealt with by the Convention, elected by the Meeting of the Parties but serving in their individual capacity.61 Indeed, the mechanism explicitly acknowledges that whilst members of the Compliance Committee must be nationals of the contracting parties62, ‘the contracting parties may consider the nominations of candidates from civil society and academia.’63 The Committee may consider specific situations of non-compliance by individual parties, based upon submissions from a party itself or from another party.64 Unlike the London Protocol, there is no requirement for a referring party to demonstrate an interest that is affected or likely to be affected by the possible non-compliance. Even so, no such referrals have been made in practice. It is also possible for the Secretariat of the Barcelona Convention to make a submission if it becomes aware of potential non-compliance from the reports submitted by a party and the Secretariat has not been able to resolve the matter directly with the party concerned.65 The wording of this provision would seem to prevent the Secretariat raising compliance issues based upon information received from other sources, such as NGOs, members of the public or even other bodies established under the Barcelona Convention and related

56 See, UNEP, ‘Regional Seas Programme’ . 57 Convention on the Protection of the Marine Environment of the Baltic Sea Area (opened for signature 9 April 1992, entered into force 17 January 2000) 2099 UNTS 195 (Helsinki Convention), Art. 12. 58 Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention), Art. 14(1). The Barcelona Convention was amended and renamed as Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (adopted 10 June 1995, entered into force 9 July 2004). 59 Helsinki Convention, Art. 13(a). 60 Barcelona Convention, Art. 27. 61 UNEP, Decision IG 17/2, Procedures and mechanisms on compliance under the Barcelona Convention and its Protocols, Annex V, 18 January 2008, para. 11 (the procedure has been amended several times). 62 Ibid, para. 7. 63 Ibid, para. 8. 64 Ibid, para. 18. 65 Ibid, para. 23.

112  Research handbook on international marine environmental law instruments.66 To some extent, this drawback has been overcome by an amendment introduced in 2013, which gives the Committee its own power of initiation67 and expressly permits cases to be considered based not only upon reports from the parties, but from ‘any other relevant information.’68 This provision opens up the possibility for members of the public or NGOs to make submissions, as confirmed by the admissibility criteria adopted by the Committee.69 Indeed, the Committee decided to accept its first submission from an NGO at its 15th meeting based upon information supplied by Ecologistas en Accíon de la Regíon Murciana, which concerned the implementation by Spain of the Protocol concerning Specially Protected Areas and Biological Diversity.70 Consideration of this submission is in progress, but it nevertheless illustrates how the functioning of a compliance mechanism can rapidly evolve if powers of initiation are vested independently of the parties themselves. The Meeting of the Parties has also conferred a broad mandate on the Compliance Committee to investigate ‘general compliance issues, such as recurrent non-compliance problems’,71 which has allowed the Committee to undertake a systematic review of compliance, as discussed below. Despite the broader set of triggers, the actions that may be taken by the Compliance Committee are very similar to those exercised by the Compliance Group under the London Protocol. Thus, the Committee may provide advice and facilitate assistance; request the party to develop an action plan; invite the party to submit progress reports; and make recommendations to the Meeting of the Parties.72 The language used suggests that measures proposed by the Committee are not mandatory and even the Meeting of the Parties is limited to making ‘recommendations’ and ‘request[ing] the party concerned to submit progress reports on achievement of compliance with the obligations under the Convention and its Protocols.’73 It is possible that ‘in the event of a serious, ongoing or repeated situation of non-compliance by a party’, the Meeting of the Parties may additionally issue a caution and a ‘report of non-compliance regarding that party’,74 but the mechanism does not provide for any sanctions. Reporting is a topic to which the Committee dedicated much of its attention during its first years of operation.75 As well as preparing materials to assist countries with the preparation of reports, recommending improvements to the reporting process, and organising information

See Irini Papanicolopulu, ‘Procedures and Mechanisms on Compliance under the 1976/1995 Barcelona Convention on the Protection of the Mediterranean Sea and its Protocol’ in Tullio Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TM Asser 2009) 162. 67 UNEP, Decision IG.21/1 on the Compliance Committee including renewal of members, the modification of the rules of procedure and the Programme of Work of the Compliance Committee, UNEP(DEPI)/MED IG.21/9, Annex II, 6 December 2013. 68 Decision IG 17/2 (n 61) para. 23.bis. 69 See UNEP, Decision IG 23/2, Compliance Committee: biennium 2016-2017, UNEP(DEPI)/MED IG.23/23, Annex I, 20 December 2017. 70 UNEP, Decision IG.24/1, Compliance Committee, UNEP/MED IG.24/22, Annex I, 5 December 2019, paras 20-25. 71 UNEP, Decision IG 19/1, Rules of Procedure of the Compliance Committee and its work during the 2010-2011 biennium, UNEP(DEPI)/MED IG.19/8, 5 November 2009. 72 Decision IG 17/2 (n 61) para. 32. 73 Ibid, para. 33. 74 Ibid, para. 34. 75 UNEP, Activity Report of the Compliance Committee (2012-2013 Biennium), Doc UNEP(DEPI)/ MED IG.21/8, 20 November 2013, para. 17. 66

Compliance mechanisms  113 sessions for parties, the Committee has taken a more proactive approach to the matter by invoking its powers to recommend censure of parties not in compliance with their reporting obligations. Whilst the matter was addressed as a ‘general compliance matter’, the Committee expressly identified eight countries that had not fulfilled their reporting obligations for the 2010-2011 biennium, of which four had also not submitted reports during the 2008-2009 biennium and were therefore identified as being in a situation of ‘serious and repeated non-compliance.’76 On this basis, these countries received a warning from the Meeting of the Parties and they were instructed to submit their reports within two months along with ‘a note explaining how they will proceed in the future to prepare their reports and detailing the means and resources they have mobilized to submit their reports.’77 The countries concerned did not take immediate action to rectify their omissions and at the next session, the Committee agreed to send a formal notice to the relevant governments that the Committee would use its formal powers of initiation if the countries did not confirm their intention to comply.78 Whilst some progress has been made, several reports remain outstanding,79 illustrating the weaknesses of purely facilitative measures. For those reports that have been submitted, analysis by the Compliance Committee reveals significant shortcomings in the implementation of the Convention and related instruments. In 2019, the Committee undertook a systematic review of compliance under the various instruments adopted under the Barcelona Convention and they presented their findings to the Meeting of the Parties.80 The report does not name individual States but it illustrates which obligations are not being met based upon the reports that are submitted. For example, five out of 17 reporting States have not yet set up institutional frameworks for conducting environmental impact assessments (EIAs) or notifying other States in the case of transboundary EIAs as required by Article 4(3) of the Convention. Similarly, seven out of 17 reporting States have not implemented a legal framework to allow for public participation in the process of authorisation of proposed activities likely to cause damage to the marine environment, as required by Article 15(2). Similar findings are repeated across all of the protocols adopted under the Barcelona Convention. Given the difficulties of persuading States to comply with its recommendations, the Committee has explored further options to promote compliance. One suggestion has been to condition the opportunity for States to participate in the Bureau of the Convention on their compliance therewith.81 No such action has been taken to date, but such a change would arguably change the nature of this compliance mechanism from one that is largely facilitative in nature to one that involves stronger incentives to comply. The parties themselves would have to agree to such a change, however, and it remains to be seen how this matter will evolve. Although the challenges of promoting compliance have become apparent through the work of the Compliance Committee, the Barcelona Convention nevertheless must be recognised for the development of these procedures in the first place, as it remains an outlier for its progres Ibid, Annex 1, para. 35A. Decision IG.21/1 (n 67). 78 UNEP, Decision IG.22/15, Compliance Mechanisms and Procedures, Membership and Working Programme of the Compliance Committee for the Biennium 2016-2017, UNEP(DEPI)/MED IG.22/28, Annex I, 12 February 2016, para. 18. 79 Decision IG.24/1 (n 70) Annex I, paras 11-12. 80 Ibid, Appendix I. 81 See, Decision IG.22/15 (n 78) para. 34. 76 77

114  Research handbook on international marine environmental law sive and transparent approach to compliance. Despite having very similar treaty provisions on ‘compliance control’, most other regional seas treaties have not yet developed an independent compliance committee along the lines of the Barcelona Convention. Yet there are signs that other regions may follow. For instance, the 2009 Amended Black Sea Land-based Sources Protocol provides in Article 17 that ‘the Contracting Parties shall develop non-confrontational and non-judicial procedures of consultative nature to ensure compliance with the provisions of this Protocol.’82 Similarly, Article 27(2) of the 2010 Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean83 provides that ‘the Contracting Parties shall … establish and adopt procedures and mechanisms necessary to assess and promote compliance with and enforcement of this Protocol, including mechanisms for the open exchange of information between the Contracting Parties’ and the accompanying Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities says that the contracting parties shall develop such procedures ‘within three years of entry into force of this Protocol.’84 None of these treaties are yet in force, however, which means no further progress on compliance monitoring has been made. 3.3

Global Shipping Treaties

A number of international treaties have been adopted under the auspices of the IMO to address pollution from ships. Perhaps the most important is the 1973/78 International Convention on the Prevention of Pollution from Ships (MARPOL), which contains standards relating to pollution by oil, chemicals, substances in packaged form, sewage, litter, and atmospheric emissions from ships.85 Traditionally, the implementation of global shipping standards has been left to flag States,86 subject to checks on individual vessels through port State inspection and control.87 However, widespread concerns about the prevalence of substandard shipping88 led to the development of other oversight procedures, culminating in the adoption of the so-called IMO Member State Audit Scheme (MSAS). The MSAS has its roots in the efforts of the Flag State Implementation Sub-Committee to identify reasons why States may have difficulties in complying with relevant IMO instruments and considering proposals to assist States in implementing IMO instruments. Initially, 82 Protocol on the Protection of the Marine Environment of the Black Sea from Land-Based Sources and Activities (adopted 7 April 2009, not yet in force) . 83 Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean (adopted 31 March 2010, not yet in force) . 84 UNEP, Final Act of the Conference of the Plenipotentiaries for the Adoption of the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-based Sources and Activities, Doc UNEP(DEPI)/EAF/CPP.6/11/Suppl., 31 March 2010, Art. 10(1). 85 International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 184 (MARPOL). 86 MARPOL, Art. 4(1). See also, LOSC, Arts 94 and 220. 87 MARPOL, Art. 5(2). 88 See, eg, Elizabeth R DeSombre, Flagging Standards: Globalisation and Environmental, Safety and Labor Regulations at Sea (MIT Press 2006).

Compliance mechanisms  115 the Sub-Committee produced a self-assessment form, which was intended to assist States in identifying deficiencies in their processes of monitoring vessels flying their flag.89 The Sub-Committee then developed the MSAS, which was first applied voluntarily from 200590 until it was made mandatory from 1 January 2016.91 This initiative signified an important change in the way that the IMO oversees the implementation of regulatory treaties, although it operates very differently from compliance mechanisms under other treaties. The overall objective of the MSAS is to ‘promote the consistent and effective implementation of applicable IMO instruments and to assist Member States to improve their capabilities, whilst contributing to the enhancement of global and individual Member State’s overall performance in compliance with the requirements of the instruments to which it is a party.’92 The MSAS covers all obligations of States under applicable IMO treaties, including in their capacity as flag State, coastal State and port State. Audits are also conducted by reference to the IMO Instruments Implementation Code, which provides guidance to States on the implementation of their obligations.93 It is expected that all IMO Member States will be audited at least every seven years.94 Audits are carried out by independent auditors, chosen from a list of individuals nominated by Member States. Minimum requirements for auditors are set by the IMO and the IMO Secretary-General verifies that nominations meet those standards.95 Auditors produce a report identifying both good practices and deficiencies and this report will be shared with the audited State and the IMO Secretary-General. The scheme is overseen by the Sub-Committee on the Implementation of IMO Instruments (III Sub-Committee), established to replace the Flag State Implementation Sub-Committee. In common with other facilitative compliance mechanisms, the MSAS is intended to be ‘positive and constructive in approach’,96 with the aim of providing feedback to audited States. The idea is that States will then respond to this feedback and improve their performance. Indeed, States are required to formulate a programme of action to address the findings of the audit.97 This action plan will then form the basis of an audit follow-up in order to ensure that corrective actions have been completed by the audited State.98 Key differences with other compliance procedures are the systematic and technical nature of the audit scheme, which ensures that the compliance of individual Member States is reviewed by independent experts on a regular cycle, but also the fact that the audit process is subject to a significant degree of confidentiality.99 The procedure provides that an executive summary report of the audit may be released to the public but only ‘subject to the authorisation of the See IMO, Report of the Maritime Safety Committee at its Seventy-Fourth Session, IMO Doc MSC 74/24/Add.1, Annex 11, 15 June 2001. 90 IMO, Framework and Procedures for the Voluntary IMO Members State Audit Scheme, IMO Res A.974(24), 1 December 2005. 91 Amendments to eight IMO treaties, including the MARPOL Convention, make it obligatory for States to undergo an audit of the way in which they implement their commitments. 92 IMO, Framework and Procedures for the IMO Member State Audit Scheme, IMO Res A.1067(28), 4 December 2013, para. 4.1. 93 IMO, IMO Instruments Implementation Code (III Code), IMO Res A.1070(28), 4 December 2013. 94 IMO Res A.1067(28) (n 92) para. 4.1.1. 95 Ibid, para. 4.4.1. 96 Ibid, para. 6.1.1. 97 Ibid, para. 7.2.1. 98 Ibid, para. 9.1. 99 Ibid, paras 6.2.4-6.2.5. 89

116  Research handbook on international marine environmental law Member State concerned prior to the audit.’100 A consolidated audit summary report is also produced by the IMO Secretariat on a periodic basis, but it is required to be ‘anonymous.’101 Thus, the MSAS does not involve direct oversight of compliance by other parties to the treaty. As a result, the MSAS does not provide an opportunity to leverage compliance by States. An important secondary objective of the MSAS is to ‘provide all Member States with feedback on generic lessons … so that benefits can be widely shared’ whilst also providing ‘[systematic] feedback [on] any lessons learned from the audits, as may be appropriate, for further consideration by the [IMO] of the effectiveness and appropriateness of its legislation.’102 The consolidated audit summary report is the basis for such discussions by the III Sub-Committee, although such reports are not the only source of information to identify deficiencies in implementation. For example, the Sub-Committee has also shown an intention to draw upon reports from port State control activities in order to identify trends in poor shipping standards.103 A number of options are available to the III Sub-Committee once it has identified a particular systemic issue. First, it can propose that issues are addressed through the IMO’s technical cooperation programme.104 Fostering capacity building and the provision of related technical assistance is a key objective of the MSAS105 and the III Sub-Committee has already proposed certain topics that should be addressed through technical cooperation, such as the establishment of necessary oversight programmes for recognised organisations carrying out survey work on behalf of flag States, as well as training for flag State surveyors.106 In this respect, it is important to note that the IMO has a dedicated Technical Cooperation Committee, which oversees the IMO’s extensive capacity building programme.107 Secondly, the Sub-Committee may identify requirements under IMO instruments that might need to be interpreted or reviewed.108 Furthermore, the Sub-Committee may propose additional guidance to assist States with implementation. One issue that has been addressed in this way is reporting by Member States, which is a serious problem in the IMO, as it is under other treaties. In 2019, the IMO Assembly adopted Guidance on the Communication of Information by Member States, which recommends that each Member State produce a reporting plan as well as a mechanism to self-evaluate the effectiveness of their communication.109 Although this response could be seen as an overly bureaucratic requirement to report about reporting, it acknowledges that reporting is not spontaneous, but demands that States have systems in place to ensure that data is effectively collected, shared and coordinated between Ibid, para. 6.3.4. Ibid, para. 6.3.5. 102 Ibid, paras 5.2.3-5.2.4. 103 See, eg, IMO, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, IMO Doc III 3/14, 15 August 2016, paras 6.1-6.9. 104 IMO, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, IMO Doc III 1/18, 29 July 2014, paras 9.8-9.24. 105 IMO Res A.1067(28) (n 92) para. 5.2. 106 IMO Doc III 1/18 (n 104) para. 9.14 107 See, Convention on the International Maritime Organization (adopted 6 March 1948, entered into force 17 March 1958) 289 UNTS 3 (IMO Convention), Arts 42-46. 108 IMO Doc III 1/18 (n 104) paras 9.8-9.24. See also, IMO, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, IMO Doc III 5/15, 28 September 2018, para. 7.30 and Annex 11, figure 2. 109 IMO, Guidance on Communication of Information by Member States, Assembly Resolution, IMO Res A.1139(31), 4 December 2019. 100 101

Compliance mechanisms  117 various units within national government. Where shortcomings are identified, Member States are encouraged to develop a corrective action plan. Of course, IMO Assembly Resolutions are non-binding and so it remains to be seen whether this guidance will have any impact on reporting rates. At present, the IMO lacks any coercive powers that it can wield against Member States failing to comply with their treaty obligations.110 3.4

Regional Fisheries Treaties

Regional fisheries management organisations (RFMOs) emerged after the Second World War as a way to manage shared fish stocks and today they are the main vehicle for promoting the sustainable use of high seas fish resources. The key functions of RFMOs are described in the United Nations Fish Stocks Agreement; but whilst this instrument calls for cooperation ‘to ensure compliance with and enforcement of subregional and regional conservation and management measures’,111 its focus for compliance is on promoting high seas inspection regimes112 and port State measures.113 These tools have undoubtedly been important in the fight against illegal, unreported and unregulated (IUU) fishing, both in relation to members and non-members of RFMOs,114 but the 2001 International Plan of Action on IUU Fishing also calls upon States, acting through relevant RFMOs, to ‘take action to strengthen and develop innovative ways, in conformity with international law, to prevent, deter and eliminate IUU fishing’, including the ‘development and implementation of comprehensive arrangements for mandatory reporting’ and ‘compliance measures’.115 In response, most RFMOs have developed institutional arrangements to monitor and respond to non-compliance. Indeed, many of the more recent treaties that establish or reform RFMOs include express treaty provisions requiring the establishment of dedicated compliance bodies.116 These procedures share a similar objective with the compliance mechanisms under treaties concerned with marine pollution, discussed above, but they have a number of distinct characteristics.

See, however, IMO Convention, Art. 61 on the consequences for failing to pay budgetary contributions. 111 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3, Art. 20. 112 Ibid, Art. 21. 113 Ibid, Art. 23. 114 See, eg, Rosemary Rayfuse, ‘To Our Children’s Children’s Children: From Promoting to Achieving Compliance in High Seas Fisheries’ (2005) 20 International Journal of Marine and Coastal Law 509; Eva R van der Marel, ‘Problems and Progress in Combatting IUU Fishing’ in Richard Caddell and Erik J Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 291-318. 115 FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome 2001) para. 80. 116 Convention on the Conservation and Management of Fisheries Resources in the South East Atlantic Ocean (with annex) (adopted 20 April 2001, entered into force 13 April 2003) 2221 UNTS 189, Art. 9; Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean (opened for signature 1 April 2012, entered into force 19 July 2015) Art. 11. 110

118  Research handbook on international marine environmental law One RFMO to recognise the importance of compliance early on was the Inter-American Tropical Tuna Commission (IATTC), which established a Permanent Working Group on Compliance in 2000 in order to review and monitor compliance with conservation and management measures adopted by the IATTC.117 Following the entry into force of the Convention for Strengthening of the Inter-American Tropical Tuna Commission (Antigua Convention) in 2010, the Working Group was replaced by a Committee for the Review of Implementation of Measures.118 The mandate of the Committee is inter alia to ‘review and monitor compliance with conservation and management measures adopted by the Commission’ and provide recommendations to the Commission.119 This work is based upon a report compiled by the Secretariat, drawing upon responses to a questionnaire circulated annually to all parties about the steps that they have taken to comply with relevant conservation and management measures.120 It follows that this procedure operates through a systemic review of compliance rather than responding to complaints of non-compliance by an individual member. One weakness of this sort of procedure is the reliance on information provided by the flag State or their fishing vessels, although some steps are made to cross-check and verify this information. To address this shortcoming, it is also possible to allow consideration of other sources of evidence, such as information provided by port inspections, onboard observers, or even NGO reports.121 Based upon the report of the Secretariat, the Committee reviews the compliance of each party and co-operating non-party (CPCs) with a view to identifying areas for possible improvement and recommended actions. It has been stressed that ‘the aim of the debate [in the Committee] is not to criticise the actions of CPCs, but to identify problems they confront in the application of the resolutions, in order to help them to take the necessary corrective actions.’122 It is ultimately up to the Commission to decide on actions for improving compliance. The only action expressly identified in the procedure is a letter from the Chair of the Commission identifying areas of possible improvement – if such a letter is sent, the recipient is required to ‘submit a plan of action for such improvement within three months of the end of the Commission’s ordinary meeting.’123 Yet, the IATTC has been criticised for failing to exercise these powers clearly and consistently.124 On the positive side, the IATTC has developed a Special Fund for strengthening the institutional capacity of developing countries and territories for the sustainable development of fisheries of highly migratory species, resourced

See, IATTC, Minutes of the 1st Meeting of the Permanent Working Group on Compliance (San Jose, Costa Rica, 9-10 June 2000) Doc WG Jun 00, Appendix 2, Rules of Procedure. 118 Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (adopted 27 June 2003, entered into force 27 August 2010) (Antigua Convention) Art. 10. 119 Ibid, Annex III. 120 See, IATTC, Resolution on the Process for Improved Compliance of Resolutions Adopted by the Commission, IATTC Res C-11-07, 8 July 2011. 121 See, Rayfuse (n 114) 522. 122 IATTC, Minutes of the Third Meeting of the Committee for the Review of Implementation of Measures Adopted by the Commission (La Jolla, California (USA) 20-21 June 2012) Doc COR-03, 3. 123 IATTC Res C-11-07 (n 120) para. 8. 124 Moss Adams, Inter-American Tropical Tuna Commission and Agreement on the International Dolphin Conservation Program Performance Review (IATTC 2016) 41. 117

Compliance mechanisms  119 through a fixed annual contribution of 2 percent of the Commission’s budget, as well as any voluntary contributions.125 The purpose of this fund is expressly linked to allowing developing countries and territories to ‘duly follow and comply with their obligations established under the Antigua Convention.’126 This model of compliance control is followed by most RFMOs, albeit with slight variations introduced as experience of addressing non-compliance has evolved. For example, under the Compliance and Monitoring Scheme adopted under the 2009 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean,127 the Compliance and Technical Committee is charged with assisting the Commission in evaluating compliance based upon a draft compliance report compiled by the Secretariat.128 In this particular case, the Compliance and Technical Committee assigns each CPC with an individual compliance status; individual countries are judged as compliant, non-compliant, priority non-compliant or seriously/persistently non-compliant. This classification permits ‘a graduated response to non-compliance, taking into account the type, severity, degree and cause of the non-compliance in question.’129 Where a State is non-compliant with minor or technical obligations, it is simply required to carry out a compliance review in order to identify implementation gaps and improve compliance. This status is often utilised, for example, in relation to the late submission of reports or in relation to missing data, where States commit to provide such data in future.130 In contrast, where a CPC is considered ‘priority non-compliant’, it will be asked to develop a compliance action plan to respond to and rectify the non-compliance. Implementation of compliance action plans will be reviewed by the Committee and the Commission on an annual basis.131 The plan may include technical assistance or other forms of capacity building where appropriate. This status is thus designed for more serious infractions that require the ongoing attention of the Commission, for example, providing port services to a vessel that was included on the IUU fishing vessel list.132 For cases of persistent non-compliance, the scheme suggests that additional compliance remedies should be agreed and this may include ‘penalties and any other actions as may be necessary to promote compliance’,133 although it does not specify what measures. Whilst the classification of non-compliance can be useful to distinguish between different types of infractions, it is not without problems. For example, the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) also classifies parties accord125 IATTC, Amendment of Resolution C-11-11 on the Creation of the Special Sustainable Development Fund for Fisheries for Highly Migratory Species to Strengthen the Institutional Capacity of Developing Countries and Territories, IATTC Res C-14-03, 18 July 2014. 126 Ibid, para. 5. 127 Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (adopted 14 November 2009, entered into force 24 August 2012) 2899 UNTS 211. 128 South Pacific Regional Fisheries Management Organisation (SPRFMO), Conservation Measure 10-2020 on the Establishment of a Compliance and Monitoring Scheme in the SPRFMO Convention Area, Doc CMM 10-2020, 20 May 2020. 129 Ibid, para. 19. 130 See, eg, SPRFMO, 7th Compliance and Technical Committee Meeting Report, Doc SPRFMO CTC7 Report 2020, 12 February 2020, paras 65-67. 131 Doc CMM 10-2020 (n 128) para. 3. 132 SPRFMO, 6th Compliance and Technical Committee Report, Doc SPRFMO CTC6–Report, 21 January 2019, para. 12. 133 Doc CMM 10-2020 (n 128) para. 19.

120  Research handbook on international marine environmental law ing to various compliance statuses, namely compliant, minor non-compliant, non-compliant, and seriously, frequently or persistently non-compliant.134 However, the fact that the Commission and its sub-committees operate by consensus has led to some difficulty in agreeing compliance statuses.135 To avoid this situation, some RFMOs have adopted rules, which provide that a CPC ‘may not block agreement on its own compliance assessment.’136 Yet, it has also been observed that ‘the consideration of the status often deviates Members from the true purpose of compliance evaluation, which is reviewing contracting parties’ compliance and any subsequent actions that have been taken to ensure full compliance with CCAMLR conservation measures and advice.’137 Whereas most RFMOs take a predominantly facilitative approach to compliance, some have developed stricter enforcement measures to remedy serious non-compliance, a trend that has been encouraged by independent performance reviews of RFMOs.138 The International Commission for the Conservation of Atlantic Tunas (ICCAT) provides a good example as it has developed a regime of penalties for failure to submit information to the Commission, whereby ‘CPCs that do not report [mandatory] data, including zero catches, for one or more species for a given year … shall be prohibited from retaining such species as of the year following the lack or incomplete reporting until such data have been received by the ICCAT Secretariat.’139 The Corrective Actions Policy of the Commission on the Conservation of Southern Bluefin Tuna (CCSBT) also illustrates this trend as it requires a Member to ‘pay back’ any catch in excess of agreed quotas at a ratio of 1:1 over a time period specified by the Commission, whilst also raising the possibility that ‘where there are specific aggravating factors a higher ratio of quota payback may be determined.’140 Other RFMOs have been encouraged to develop ‘fair, consistent, and transparent pre-agreed scheme[s] of response to non-compliance.’141 Yet, even when such a scheme exists, there is still an element of discretion in determining what precise course of action is appropriate. In the case of the CCSBT, in light of the fact that the Commission operates by consensus, there is a degree of negotiation between the non-complying Member and other Members about the appropriate response. This feature of the process was criticised by the second CCSBT per-

CCAMLR, Compliance Evaluation Procedure Conservation Measure, Doc 10-10, 2 November 2018. It can also assign three other categories, namely additional information required, need of interpretation and no compliance status assigned. 135 CCAMLR, Report of the Standing Committee on Implementation and Compliance (SCIC), 25 October 2019, para. 69 (where it was not possible to reach consensus on two cases). 136 North Pacific Fisheries Commission (NPFC), Conservation and Management Measure for the Compliance Monitoring Scheme, CMM 2019-13, 29 November 2019, para. 15. 137 Report of the Standing Committee on Implementation and Compliance (SCIC) (n 135) para. 100. 138 See, eg, ICCAT, First ICCAT Report of the Independent Performance Review of ICCAT (ICCAT 2009) 81. See also, UNGA, Report of the resumed Review Conference on 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 Highly Migratory Fish Stocks, UN Doc A/ CONF.210/2016/5, 1 August 2016, para. 69. 139 ICCAT, Recommendation by ICCAT on Penalties Applicable in Case of Non Fulfilment of Reporting Obligations, Doc Rec 11-15, 2011. 140 CCSBT, Compliance Policy Guideline 3, Doc CPG3, 18 October 2018. 141 See, eg, CCAMLR, Second Performance Review of CCAMLR – Final Report of the Panel, Doc CCAMLR-XXXVI/01, 31 August 2017, para. 49. 134

Compliance mechanisms  121 formance review, which recommended that ‘the CCSBT should … consider mandating that a Member who is being considered for a sanction under its policies may not participate in the decision-making on that issue.’142 Yet it remains the case that the Commission can put significant pressure on countries to bring themselves into compliance. This situation is illustrated by the identification of overfishing by Indonesia in 2019 and 2020. Indonesia’s initial response was to underline its status as a developing country coastal State with a significant fisheries sector and it asked the CCSBT to ‘consider its over-catch as exceptional circumstances and not require Indonesia to pay back its over-catch for 2019 and 2020.’143 During discussions, the other Members emphasised the importance of keeping within agreed quotas, particularly at a time when the stock was rebuilding, so that ‘not paying back its over-catch is not an option and not a precedent to be opened.’144 Ultimately, Indonesia agreed to pay back its over-catch from 2019 in the 2020 period and it also submitted a plan of how it intended to pay back its over-catch from 2020 over a period from 2022 to 2026. Indonesia was also required to submit a plan to demonstrate how it will ensure that its 2021 catch remains within its allocation, although this plan was criticised for its lack of detail.145 Several RFMOs also have powers to adopt trade-related responses to non-compliance. ICCAT is again the leading example of this approach and it is empowered under Recommendation 06-13 to agree on ‘non-discriminatory trade restrictive measures, consistent with other international obligations.’146 The recommendation makes clear, however, that ‘trade restrictive measures should be implemented only as a last resort where other measures have proven unsuccessful.’147 In practice, there is one instance of trade measures being applied to an ICCAT Member, when imports of bluefin tuna and its products from Equatorial Guinea were prohibited following its failure to comply with applicable conservation and management measures,148 although several Members lodged an objection to this enforcement action.149 The sanctions were ultimately lifted once Equatorial Guinea had brought itself back into compliance, but it is worth noting that this was only achieved with technical assistance from the ICCAT Secretariat.150 This example illustrates that even where it has been deemed appropriate to adopt an enforcement approach to compliance, other managerial methods may still be applied in parallel.

142 Serge M Garcia and Holly R Koehler, Performance of the CCSBT 2009-2013: Independent Review (CCSBT 2014) 71. 143 CCSBT, Report of the 15th meeting of the Compliance Committee, 10 October 2020, para. 74. 144 CCSBT, Report from the Extended Scientific Committee, Doc CCSBT-EC/2010/09, 2020, para. 44. 145 Ibid, para. 49. 146 ICCAT, Recommendation by ICCAT concerning Trade Measures, 06-13 GEN, 2006, para. 7. See also, FAO, IOTC Resolution 10/10 Concerning Market Related Measures, 2010. 147 06-13 GEN (n 146), preamble. 148 See, ICCAT, Recommendation by ICCAT Regarding Equatorial Guinea Pursuant to the 1996 “Recommendation Regarding Compliance in the Bluefin Tuna and North Atlantic Swordfish Fisheries, Rec 99-10 COMPLY, 15 June 2000; ICCAT, Resolution by ICCAT on the Shark Fishery, Res 03-17 BYC, 19 December 2003. 149 See, Rayfuse (n 114) 522. ICCAT has also applied trade measures to co-operating non-parties and non-parties. 150 ICCAT, Recommendation by ICCAT Concerning the Lifting of Trade Sanctions Against Equatorial Guinea, Rec 04-13 SANC, 2004.

122  Research handbook on international marine environmental law

4. CONCLUSION This chapter has considered the role of compliance mechanisms in a number of treaties concerned with the protection of the marine environment. Whilst the analysis is not exhaustive, it reveals a range of approaches to compliance, which are influenced by the characteristics of the particular treaty. There is significant variety in terms of the bodies involved, the means for triggering the procedures, the transparency of the mechanisms, and the available responses when non-compliance is identified. This observation reinforces the fact that compliance mechanisms are designed to fit within a particular treaty regime. As such, they provide some indication of the parties’ attitude towards that treaty as well as their expectations of compliance versus the need for flexibility in responding thereto. At the same time, those expectations are not fixed.151 The discursive nature of compliance mechanisms demands that parties regularly revisit the question of compliance under a particular treaty, which in turn can lead to progressive development of the mechanisms as experience of handling situations of non-compliance evolves.152 Sometimes, the need for review is built into the mechanism,153 but most of the case studies demonstrate the inherently dynamic nature of compliance mechanisms, which can evolve either through experimentation with particular forms of engagement, as demonstrated by the work of the Compliance Group under the London Protocol, or through formal amendment, as seen with the extension of the powers of the Compliance Committee under the Barcelona Convention. The IMO has also gradually developed its MSAS from a voluntary scheme to a mandatory one and it is possible that the MSAS may continue to evolve in the future. The dynamism of compliance mechanisms has in some cases led to a shift from a primarily facilitative framework to one that places greater emphasis on enforcement. Such a trend is exemplified in the practice of many RFMOs, which have incorporated the use of sanctions in their compliance mechanisms, often through encouragement from performance reviews and other external processes. Some RFMOs have even developed pre-agreed schemes of response in order to promote greater predictability in the application of compliance procedures. Another important development has been formalising the role of NGOs in raising compliance problems, as seen in the case of the Barcelona Convention. As NGOs often have considerable expertise in their relevant field, they may be able to gather credible evidence of non-compliance and they can independently highlight potential individual cases of non-compliance, thereby overcoming the reluctance of States to raise claims against each other. Whatever form of compliance mechanism is in place, it is true for all the treaties analysed in this chapter that achieving high levels of compliance across all parties remains a momentous challenge. This observation does not necessarily discredit the work of compliance mechanisms, as the process of revealing the scale of the problem is itself an important step in addressing non-compliance. Nevertheless, it does emphasise that compliance cannot be taken for granted154 and increased efforts at identifying the causes of non-compliance and introducing remedial measures are required. In this respect, see the insights of Jutta Brunnée and Stephen Toope, Legitimacy and Legality in International Law (CUP 2010) 111. 152 See, Raustiala (n 15) 73. 153 Doc CMM 10-2020 (n 128) para. 20. 154 See, Brown Weiss (n 18) 1560. 151

Compliance mechanisms  123 In this respect, the dynamism of compliance mechanisms must be embraced and opportunities to strengthen their performance must be seized. One strategy is to promote the exchange of experiences between treaty regimes. Whilst compliance mechanisms are inevitably tailored to the particular treaty under which they operate, it is clear that there has been cross-fertilisation in practice. This is particularly the case for treaties operating within the same sector, such as regional fisheries treaties,155 but there are also examples of other compliance bodies looking beyond their own treaty in order to identify best practices that can be adapted to their particular context. For example, members of the Barcelona Convention Compliance Committee have been invited as observers to meetings of the Compliance Group under the London Protocol in order to ‘share common experiences’ relating to compliance issues156 and the latter has expressed an intention ‘to stay informed about enforcement guidelines being developed by the Barcelona Convention Compliance Committee.’157 For its part, the Barcelona Convention Compliance Committee has also drawn inspiration from other regional and global compliance regimes.158 It has even been proposed to establish ‘a network of compliance committees for multilateral environmental agreements that could share experiences and approaches to solving problems.’159 These proposals underline the iterative character of compliance mechanisms and the benefits that can be derived from cross-fertilisation.160 Finally, it must also be remembered that not all treaties concerned with the protection of the marine environment have developed compliance mechanisms. In particular, there are gaps in a number of regional seas treaties, which could be usefully plugged by drawing upon the experience of compliance mechanisms in other relevant regimes.161 The question of monitoring compliance will also arise for new treaties that are negotiated in this field, such as the proposed internationally legally binding instrument on biodiversity beyond national jurisdiction.162 Experiences from existing compliance mechanisms will provide useful guidance to States on what measures may be most appropriate in this context, as well as some of the more difficult challenges that are associated with compliance control. Ultimately, non-compliance will only be reduced if this issue continues to receive the dedicated attention of treaty regimes and parties are willing to experiment with different approaches to compliance control until satisfactory results are obtained.

Such cross-fertilisation has been encouraged. See, eg, Penelope Ridings and others, Report of the South Pacific Regional Fisheries Management Organisation Performance Review Panel (1 December 2018) para. 278(c). 156 IMO Doc LC 40/16 (n 44) Annex 3, para. 1.6. 157 IMO Doc LC41/17/Add.1 (n 40) para. 6.25. 158 UNEP, Decision IG.24/12: Updated Guidelines Regulating the Placement of Artificial Reefs at Sea, Doc UNEP/MED IG.24/22, 5 December 2019, para. 14. 159 IMO Doc LC 40/16 (n 44) Annex 3, para. 6.2.2. 160 See, Raustiala (n 15) 64. 161 See, eg, Nele Matz-Lück and Johannes Fuchs, ‘The impact of OSPAR on protected area management beyond national jurisdiction’ (2014) 49 Marine Policy 155, 164. 162 See, UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/CONF.232/2020/3, 18 November 2019, Art. 53(3). 155

6. Resolving international disputes concerning the marine environment Natalie Klein1 and Millicent McCreath

1. INTRODUCTION As the chapters in this volume clearly illustrate, a vast array of human activities involving diverse actors impact the marine environment in many ways, both positive and negative. This broad scope of activities and actors is regulated by the complex body of legal rules adopted by the international community that forms the core of international marine environmental law. Given the various, often competing and sometimes conflicting, interests involved, international legal disputes concerning the marine environment are bound to emerge. In this respect, the dispute settlement procedures available in Part XV of the United Nations Convention on the Law of the Sea (the LOSC)2 have an important role to play. The broad substantive rules on the protection and preservation of the marine environment in the LOSC potentially encompass a wide variety of activities, including harmful fishing practices, island-building, and the transporting and processing activities that may arise from the exploitation of the deep seabed.3 Moreover, the LOSC contains many rules of reference whereby States may be held to account for violating generally agreed international rules and standards in other treaties as a violation of the LOSC.4 In addition, the expansive substantive framework in the LOSC may potentially be enforced through resort to arbitration or adjudication by the 168 parties to the Convention.5 The availability of compulsory jurisdiction for the resolution of disputes in such an important constitutive instrument in international affairs is unusual,6 and the cases resolved under Part 1 Natalie Klein acknowledges the helpful research assistance provided to her by Jack McNally in preparing part of this chapter. 2 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 3 All these activities may potentially lead to violations of Articles 192 and 194 of the LOSC. See South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19, paras 815-993 (South China Sea, Award); Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) ITLOS Case No 17, 1 February 2011, 10, para. 97 (Seabed Advisory Opinion). 4 See Robin Churchill, ‘The UN Convention on the Law of the Sea – Still Relevant to the Protection of the Marine Environment?’, Chapter 2 in this volume; Alexander Proelss, ‘Fragmentation and Coherence in the Legal Framework for the Protection of the Marine Environment’, Chapter 3 in this volume. 5 As at 9 March 2022. UN Treaty Collection, ‘Status of Treaties: LOSC’ . 6 For discussion of the Part XV model, see, eg, Bernard Oxman, ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015); AO Adede, The System of Settlement of Disputes under the United Nations Convention on the Law the Sea: A Drafting History and Commentary (Martinus Nijhoff 1987); Alan

124

Resolving international disputes concerning the marine environment  125 XV of the LOSC, to date, are only beginning to indicate its potential utility in the protection and preservation of the marine environment.7 However, when considering how international marine environmental law disputes may be resolved, it is important to look beyond Part XV of the LOSC and to consider, more broadly, the various dispute settlement mechanisms and approaches that might be pursued, including, but not limited to, international courts and tribunals. It is also important to consider the actors involved in seeking to resolve these disputes, as well as the various substantive and procedural legal issues that may arise in efforts to resolve these disputes. The aim of this chapter is to take this broader approach in considering how particular international marine environmental law disputes have been resolved. To that end, it looks beyond the confines of the Part XV procedures and frames the discussion of the issues through an examination of four case studies that seek to highlight some of the mechanisms and techniques available to resolve different types of disputes relating to the marine environment and some of the key issues in international dispute resolution that are relevant to the resolution of disputes relating to the marine environment. The case studies have been selected to reflect the different types of marine environmental law conflicts that may emerge as well as the various actors, avenues, methods and considerations that may or did arise in their resolution. It will be seen that the stakeholders involved, the substantive law at issue as well as the procedural mechanisms available are all influential in what may happen or has happened in responding to international disputes relating to the marine environment. It is acknowledged at the outset that many similarities exist between dispute settlement pertaining to the marine environment and other international environmental law, or general international law, disputes. For example, as with all other inter-State conflict, international disputes relating to the marine environment must be settled peacefully,8 and States may utilise different means to do so, including negotiation, mediation, conciliation, arbitration, adjudication and resolution through international or regional organisations.9 These similarities, discussed briefly in Section 2, provide the basic foundation for the various dispute settlement techniques and considerations that emerge in relation to the four case studies that follow. Section 3 reflects on the dispute over whaling in Antarctic waters, focusing on the role played by both international institutions and non-State actors in bringing about an end to the disputed whaling activities. Section 4 examines the claims concerned with harm to marine biodiversity in the South China Sea arbitration, with particular focus on the role of expert evidence in affecting the judicial resolution of marine environmental disputes. Section 5 considers the legal mechanisms that have evolved to ascribe liability and provide compensation for

E Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46(1) International and Comparative Law Quarterly 37. 7 Key cases resolved under the LOSC dispute settlement regime to date with relevance for the marine environment include Southern Bluefin Tuna provisional measures (finding that conservation and management of living marine resources is part of the protection and preservation of the marine environment): Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 280 (Southern Bluefin Tuna, Provisional Measures); South China Sea, Award (n 3) (discussed in more detail in this chapter); and Seabed Advisory Opinion (n 3) (addressing environmental concerns relating to deep seabed mining). 8 Charter of the UN (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) Arts 2(3), 2(4). 9 UN Charter, Art. 33.

126  Research handbook on international marine environmental law environmental harm as a primary response to competing claims emerging after oil pollution disasters. Section 6 examines possible disputes concerning the impacts of ocean acidification on the marine environment. In this instance, there are difficult substantive and procedural issues that are likely to arise, including the important questions of standing and remedies. Overall, as reflected in Section 7, it will be shown that the conflicts that occur with respect to marine environmental harm between international actors may be redressed through different processes and these claims necessitate consideration of both substantive and procedural law questions. Regard must be had to the actors (State actors, treaty parties, non-State actors, international institutions), the processes (courts, claims mechanisms, international meetings) as well as the law (covering primary substantive claims, secondary rules of State responsibility, and procedural law on matters such as evidence and standing).

2.

THE GENERAL FRAMEWORK FOR SETTLING DISPUTES CONCERNING THE MARINE ENVIRONMENT

The prevention of disputes is of course a critically important function of international law, especially in situations involving the marine environment where it is always preferable to avoid environmental harm at the outset rather than to seek a remedy after the fact. In this regard, procedural obligations such as the duty to conduct environmental impact assessments,10 and the duties of notification or consultation are equally relevant in the context of ocean activities as they are for other environmental domains.11 Similarly, substantive obligations such as the duty to cooperate or the duty to implement a precautionary approach, both derived from the broader corpus of international environmental law, are now firmly established in the context of ocean management and use.12 Admittedly, the general duty to cooperate is formulated more narrowly in Article 197 of the LOSC as requiring cooperation only for the elaboration of international rules, standards and recommended practices and procedures. However, this provision has been interpreted more broadly in cases resolved under the LOSC,13 and other provisions of the LOSC reference general duties of cooperation in specific contexts.14 Where disputes cannot be prevented, however, other considerations common to international law in general arise. In other words, the core principles of international law inevitably frame the settlement of marine environmental disputes as they do any other dispute. For example, there may be questions as to the status of a particular rule and whether it reflects customary international law binding on all States or its application is confined to parties to a relevant treaty. Alternatively, or in addition, disputing parties may differ in their interpretation of an

LOSC, Arts 205 and 206. Philippe Sands, Jacqueline Peel and Adriana Fabra, Principles of International Environmental Law (3rd ed, CUP 2012) 638-640. 12 For example, cases resolved under the LOSC have referred to the need to exercise prudence and caution. See, eg, Southern Bluefin Tuna, Provisional Measures (n 7) para. 77. 13 See, MOX Plant (Ireland v United Kingdom) (Provisional Measures, Order of 3 December 2001) ITLOS Reports 2001, 95, para. 82 (MOX Plant (Provisional Measures)); and South China Sea, Award (n 3) paras 984-986. 14 Such as cooperation in the conservation and management of living resources in the high seas, and in the exercise of rights and duties in enclosed or semi-enclosed seas. See LOSC, Arts 118 and 123, respectively. 10 11

Resolving international disputes concerning the marine environment  127 applicable treaty provision.15 In such cases, the general rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties will thus be relevant.16 The basic principles of State responsibility will also be relevant to issues of attribution, causation and reparation.17 One area in which the LOSC differs from many multilateral environmental agreements is in the absence of any dedicated compliance mechanism specifically established under the Convention.18 Moreover, no single dedicated mechanism exists for States to review each other’s compliance with the Convention.19 Instead, the LOSC requires States to proceed expeditiously to an exchange of views as to dispute settlement options when differences emerge,20 and emphasises the need to resolve disputes peacefully through a variety of means.21 Part XV of the LOSC further provides for the compulsory settlement of disputes concerning the interpretation or application of the Convention. The inclusion of compulsory jurisdiction in such an important constitutive treaty is a rarity in international law but considered essential to maintain the balance of compromises existing throughout the Convention.22 Where States are not able to resolve disputes relating to the interpretation or application of the LOSC (or are not required under Articles 281 or 282 to use alternative dispute settlement means), a State may institute arbitration or adjudication. Under Article 287 of the LOSC, States may select either the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), a special arbitral tribunal constituted under Annex VIII to resolve marine environmental disputes, or an arbitral tribunal otherwise constituted under Annex VII of the LOSC. If States select different fora or do not select a preferred forum, the default procedure is Annex VII arbitration.23 Even if judicial or arbitral proceedings are commenced, there may be times when environmental harm is occurring, or is feared to be about to occur, and the consequences of such harm will be felt long before any judgment on the merits is reached. In this situation, an applicant State may request the prescription of provisional measures, which may include orders to prevent serious harm to the marine environment pending any judgment on the merits. Such 15 See, eg, Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Reports 226 (Whaling in the Antarctic) (disputing the meaning of Article VIII of the International Convention for the Regulation of Whaling). 16 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Arts 31 and 32. 17 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its Fifty-Third Session in 2001, UN Doc A/56/10 (ILC Articles). 18 For an overview of these mechanisms, see Gerhard Loibl, ‘Compliance Procedures and Mechanisms’ in Malgosia Fitzmaurice, Marcel Brus and Panos Merkouris (eds), Research Handbook on International Environmental Law (2nd ed, Edward Elgar 2021) 293. See also, James Harrison, ‘Compliance Mechanisms under Treaties Relating to Protection of the Marine Environment’, Chapter 5 in this volume. 19 Art. 319(2)(e) of the LOSC provides that the Secretary General shall ‘convene necessary meetings of States Parties in accordance with this Convention’. The meeting of State parties to the LOSC performs only an administrative function. See UN Division for Ocean Affairs and the Law of the Sea (DOALOS), ‘Meetings of States Parties to the 1982 United Nations Convention on the Law of the Sea’ (UN Oceans & Law of the Sea, 16 March 2022 (last updated)) . 20 LOSC, Art. 283. 21 LOSC, Art. 280. 22 Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (CUP 2005) 2-3. 23 LOSC, Arts 287(3) and (5).

128  Research handbook on international marine environmental law orders may be requested of the court or tribunal before which the case is to be heard or, as per Article 290(5) of Part XV of the LOSC, ITLOS may prescribe provisional measures pending the constitution of the Annex VII arbitral tribunal, which is to be established to hear the particular case.24 ITLOS has both considered environmental concerns in its orders for provisional measures,25 and insisted on consultations between the parties, as well as reports of efforts undertaken pursuant to its orders, as part of its adjudicative function.26 An array of literature has been written on dispute settlement in the law of the sea and in international environmental law.27 In the following sections, this chapter focuses on just four case studies intended to highlight the different types of international marine environmental law disputes that arise, as well as the variety of issues that emerge in seeking to resolve those disputes.

3.

WHALING UNDER SPECIAL PERMIT IN ANTARCTIC WATERS

Conservation and management of whales has been a long-standing international concern due, historically, to the economic importance of whales and, more recently, to the recognised importance of these marine mammals for the marine ecosystem. The key tension that has emerged between States is focused on what, if any, conservation measures are needed to manage whaling activities. These differences have primarily been manifested within the International Whaling Commission (IWC), the main organisation addressing the conservation and management of whales. This case study examines the dispute that crystallised within the IWC over Japan’s use of special permits for whaling in Antarctic waters and the dispute settlement techniques that were at play. The examination reveals the many dispute settlement avenues that may be used by both States and non-State actors, including possible referral to an international court, and the important role of science and experts in resolving marine environmental disputes.

LOSC, Art. 290(5). See, eg, MOX Plant (Provisional Measures) (n 13) para. 89. 26 See, eg, Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures, Order of 8 October 2003) ITLOS Reports 2003, 10, dispositif. 27 Including by the present authors: Natalie Klein, ‘International Environmental Law Disputes Before International Courts and Tribunals’ in Lavanya Rajamani and Jacqueline Peel (eds), The Oxford Handbook of International Environmental Law (2nd ed, OUP 2021) 1041; Natalie Klein and Danielle Kroon, ‘Settlement of International Environmental Law Disputes’ in Malgosia Fitzmaurice, Marcel Brus and Panos Merkouris (eds), Research Handbook on International Environmental Law (2nd ed, Edward Elgar 2021) 231; Natalie Klein, ‘The Vicissitudes of Dispute Settlement under the Law of the Sea Convention’ (2017) 32(2) International Journal of Marine and Coastal Law 332; Natalie Klein and Kate Parlett, Judging the Law of the Sea: Judicial Contributions to the UN Convention on the Law of the Sea (OUP 2022); Millicent McCreath, ‘The Potential for UNCLOS Climate Change Litigation to Achieve Effective Mitigation Outcomes’ in Jolene Lin and Douglas A Kysar (eds), Climate Change Litigation in the Asia Pacific (CUP 2020) 120. 24 25

Resolving international disputes concerning the marine environment  129 3.1

Background to the Dispute

The IWC is established under the 1946 International Convention on the Regulation of Whaling (ICRW),28 which is one of the earliest treaties dealing with the conservation and management of marine species. The ICRW has a Schedule, which is an integral part of the treaty,29 that details the steps to be taken by contracting parties to manage whale stocks. The two-fold purpose of the ICRW is to ensure both ‘the proper conservation of whale stocks’ and ‘the orderly development of the whaling industry’.30 Most relevantly for present purposes, in response to the plummeting numbers of whales and the steady decline in catch quotas, in 1982 the IWC agreed to a historic amendment to Section 10(e) of the Schedule, establishing a zero-catch quota for all commercial whaling with effect from 1986.31 Colloquially referred to as a moratorium on commercial whaling, this measure was to be kept under review, ‘based on the best scientific advice’.32 Japan initially objected to this change in the Schedule, and hence was not bound by this amendment.33 However, Japan subsequently agreed to adhere to the zero-catch quota due to pressure from the United States.34 Shortly after the moratorium came into effect for Japan, Japan began issuing special permits under Article VIII of the ICRW for whales to be harvested for scientific research. Article VIII(1) provides in relevant part: Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.

Although scientific research was considered essential for the ongoing viability of the zero-catch quota, with the increasing quantity of whales being taken and ongoing use of lethal techniques, some States became concerned that Japan was conducting commercial whaling under the guise of scientific whaling. Based on the scientific evidence collected, Japan sought, repeatedly, to have the zero-catch quota changed within the IWC. However, the member States were divided between those supporting Japan and those States seeking to maintain the moratorium to enhance conservation efforts.35

28 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (ICRW). 29 Ibid, Art. I(1). 30 Ibid, Preamble. 31 International Whaling Commission (IWC), 1982 Chair’s Report, Report of the International Whaling Commission 33, 1983, Appendix 6. 32 ICRW, Schedule, s. 10(e). 33 ICRW, Art. III. 34 See Maria Clara Maffei, ‘The International Convention for the Regulation of Whaling’ (1997) 12(3) International Journal of Marine and Coastal Law 287, 298; Michal Kolmaš, ‘International Pressure and Japanese Withdrawal from the International Whaling Commission: When Shaming Fails’ (2021) 75(2) Australian Journal of International Affairs 197, 203. 35 IWC, Resolution 1995-8: Resolution on Whaling under Special Permit in Sanctuaries, 47th Annual Meeting, Report of the International Whaling Commission 47, 1995.

130  Research handbook on international marine environmental law In 2005, Japan announced that it was commencing the Japanese Whale Research Program under Special Permit in the Antarctic II (JARPA II), which would commence immediately upon conclusion of a two-year feasibility study for an indefinite period of time and would also include the taking of fin and humpback whales, in addition to increasing the number of Antarctic minke whales that Japan was already harvesting.36 States opposing Japan’s efforts sought to resolve their differences within the IWC and its organs through negotiations and consultations, as well as informal mediation.37 The ICRW does not, however, contain a dispute settlement procedure. As attempts to resolve the impasse dragged on, non-governmental organisations (NGOs) became increasingly active in opposition to Japan’s whaling activities, and Australia faced considerable pressure from domestic constituencies to refer the dispute to the International Court of Justice (ICJ). 3.2

Non-State Actor Involvement in Dispute Resolution

While non-State actor initiatives do not necessarily constitute a means of dispute settlement in their own right, it is clear that their actions can influence State behaviour and negotiations that take place both bilaterally and within international fora. In the context of the whaling dispute, opposition to Japan’s issuance of special permits for scientific whaling was not limited to the efforts of States opposing Japan’s research programs in the IWC and at the ICJ. Non-State actors also engaged in a range of activities aimed at influencing Japan’s whaling activities and bringing the dispute to broader international attention. Most controversially, the conservation direct action group, Sea Shepherd, undertook physical interventions in Antarctic waters, interposing its vessels between the Japanese whaling vessels and the whales, throwing cannisters of butyric acid on to the decks of the Japanese vessels, and boarding the Japanese vessels with demand notes.38 According to Sea Shepherd, these actions were consistent with the non-binding World Charter for Nature, which allows individuals to inter alia ‘[e]nsure that activities within their jurisdictions or control do not cause damage to the natural systems located within other States or in the areas beyond the limits of national jurisdiction’.39 Although the legality of their actions was heavily contested

Government of Japan, Plan for the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA II) – Monitoring of the Antarctic Ecosystem and Development of New Management Objectives for Whale Resources, SC/57/01, 2005 . 37 Most notable in this regard was a compromise brokered by New Zealand and the United States for consideration at the 2010 meeting, but ultimately not adopted. See ‘Whaling compromise under attack’ (Sydney Morning Herald, 9 April 2010) . 38 See, Anthony L I Moffa, ‘Two Competing Models of Activism, One Goal: A Case Study of Anti-Whaling Campaigns in the Southern Ocean’ (2012) 37(1) Yale Journal of International Law 201, 209-210. 39 UNGA, World Charter for Nature, UN Doc A/RES/37/7, 28 October 1982, Art. 21(d). See further, Sea Shepherd, ‘Sea Shepherd’s Mandate’ . 36

Resolving international disputes concerning the marine environment  131 by Japan,40 their actions did contribute, on several occasions, to Japan’s decision to finish their whaling expeditions earlier than initially planned.41 Conservation advocacy groups also sought to influence State actions and the resolution of the dispute over the legality of Japanese whaling by engaging in various initiatives at the national level. Humane Society International, for example, instituted proceedings before Australia’s Federal Court seeking injunctions against the Japanese whaling company under Australia’s Environmental Protection and Biodiversity Conservation Act to prevent whaling in Australia’s declared Exclusive Economic Zone (EEZ) off the Australian Antarctic Territory.42 Greenpeace members within Japan pursued a campaign to expose the sale of whale meat derived from the so-called ‘scientific’ expeditions, activities for which they were prosecuted before Japanese courts.43 The International Fund for Animal Welfare organised expert panels of lawyers to write reports relating to different aspects of Japan’s whaling activities. These legal opinions were used as part of the NGO’s advocacy campaigns and interactions with IWC member States.44 In sum, it is clear that, as in any area of international law, advocacy and political pressure undoubtedly have roles to play in bringing about the resolution of disputes regarding conduct affecting the marine environment. In this instance, the engagement of civil society was influential, albeit not determinative, in Australia’s decision to institute proceedings against Japan at the ICJ.45 3.3

Resolution at the International Court of Justice

In 2010, after Japan commenced JARPA II, Australia decided to institute proceedings against Japan at the ICJ, primarily arguing that Japan’s whaling was not for the purposes of scientific research as required by Article VIII of the ICRW.46 The Court’s jurisdiction was based on each State’s acceptance of compulsory jurisdiction under Article 36(2) of the Court’s Statute.47 New Zealand, also a member of the IWC, intervened in the proceedings in light of its shared interest in the questions before the Court concerning interpretation of the ICRW.48 Joseph Elliott Roeschke, ‘Eco-Terrorism and Piracy on the High Seas: Japanese Whaling and the Rights of Private Groups to Enforce International Conservation Law in Neutral Waters’ (2009) 20(1) Villanova Environmental Law Journal 99, 101, 125-128. 41 See, eg, Moffa (n 38) 209. 42 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116, 154 FCR 425 (14 July 2006); [2008] FCA 3, 165 FCR 510 (Allsop J) (injunction granted); [2015] FCA 1275 (fine for contempt of court). See further, Natalie Klein and Nikolas Hughes, ‘National Litigation and International Law Repercussions for Australia’s Protection of Marine Resources’ (2009) 33(1) Melbourne University Law Review 163. 43 Kolmaš (n 34) 206. 44 See, eg, Independent Panel Report on Whaling, ‘Report of the International Panel of Independent Legal Experts On: Special Permit (“Scientific”) Whaling Under International Law’ (Paris, 12 May 2006); Sydney Panel Executive Summary in International Fund for Animal Welfare, Australian Government Can Stop Japan Whaling (7 May 2007) (on file with authors). Discussed in ‘Only Courts can Save Whales’ (The Daily Telegraph, 24 May 2007) . 45 Henry Burmester, ‘Civil Society and the Instigation of International Court Litigation: The Australian Experience’ (2021) 21(3) Melbourne Journal of International Law 772, s. II(C). 46 Whaling in the Antarctic (n 15). 47 Ibid, paras 31-41. 48 UN, Statute of the International Court of Justice (18 April 1946) 33 UNTS 993, Art. 63(2). 40

132  Research handbook on international marine environmental law The core of the case concerned the question of whether catches taken pursuant to JARPA II were taken ‘for the purpose of scientific research’ consistent with Article VIII of the ICRW. To interpret this provision, the ICJ had to grapple with scientific evidence that had been disputed within the IWC. Australia and Japan both sought to establish their scientific cases to support their respective legal positions on the interpretation of Article VIII. In addition to written evidence, Australia and Japan each presented witnesses giving expert scientific testimony who were cross-examined by the other side during the oral arguments.49 This method was utilised as a response to the ICJ’s feedback from the Pulp Mills judgment, which had also concerned contested scientific evidence in relation to alleged environmental harm, that it was less useful for State parties to have scientific experts present their evidence as advocates in the case.50 As advocates, there were fewer opportunities for the other party to challenge the information provided and assist with the Court’s work. The ICJ did not ultimately provide a definition of ‘scientific research’,51 but instead sought to interpret the language of Article VIII by reference to a range of indicia. In the latter respect, the Court had regard to ‘decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme co-ordinates its activities with related research projects’.52 The Court concluded that the special permits issued by Japan were not for the purposes of scientific research in violation of Article VIII of the ICRW and held that Japan had not acted in conformity with section 10(e) of the ICRW Schedule. Following the Court’s judgment, Japan declared that it would abide by the decision and cease JARPA II.53 The Whaling in the Antarctic case is thus an important example to illustrate how marine environmental law cases may be referred to an international court. In this instance, the ICJ was available because the ICRW did not set out any specific dispute settlement procedure that had to be followed and the two States in question had both consented in advance to the Court’s jurisdiction. Compulsory jurisdiction before an international court or tribunal will not always be available, although Australia did potentially have the option of casting the dispute as one relating to the interpretation or application of the LOSC,54 and proceeding under its Part XV dispute settlement system.55 The Whaling in the Antarctic case also demonstrates how an international court may need to grapple with competing scientific evidence, and the procedural tools that may be brought to bear to hear and test this evidence.

Whaling in the Antarctic (n 15) paras 14-17 and 20-21. Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Rep 14, para. 167. 51 Whaling in the Antarctic (n 15) para. 86. 52 Ibid, para. 88. See further, ibid, paras 129-132; 149; 158-59; 203-205 and 214-222. For further analysis of the Court’s decision: Malgosia Fitzmaurice and Dai Tamada (eds), Whaling in the Antarctic: Significance and Implications of the ICJ Judgment (Brill 2016). 53 See Shigeki Sakamoto, ‘The Whaling in the Antarctic Case from a Japanese Perspective’ (2015) 58 Japanese Yearbook of International Law 247, 268. 54 Arising under Articles 65 and 120 of the LOSC relating to marine mammals and conservation and management of marine living resources on the high seas. 55 For discussion of this option, see, Natalie Klein, ‘Whales and Tuna: The Past and Future of Litigation between Australia and Japan’ (2009) 21(2) Georgetown International Environmental Law Review 143, 193. 49 50

Resolving international disputes concerning the marine environment  133 Following the ICJ decision, Japan formulated a new scientific research program that sought to meet the requirements that had been set out in the Court’s judgment56 and which had been adopted in an IWC resolution.57 However, disagreements over this program ensued and Japan ultimately opted to withdraw from the ICRW and re-commence commercial whaling in its own EEZ.58 Japan took the additional step of changing its acceptance of compulsory jurisdiction before the ICJ so as to preclude any further cases against it concerning the management and conservation of marine living resources being heard by the Court.59 With Japan limiting its whaling activities to its own EEZ, Japan may hold the view that third-party dispute settlement under the LOSC is now also precluded. This argument may be correct in relation to the characterisation of the dispute as one relating to coastal State actions over living resources in its EEZ.60 However, it would not necessarily be true for any case that challenged Japan’s continued whaling activities as violating the provisions of Part XII of the LOSC that are concerned with the protection and preservation of the marine environment.61

4.

SOUTH CHINA SEA AND DISPUTES CONCERNING THE PROTECTION AND PRESERVATION OF MARINE BIODIVERSITY

It is well known that the biodiversity of the ocean is under threat from a wide range of sources, including climate change, ocean acidification, overfishing and pollution.62 The LOSC is one of the few international agreements that presents a realistic avenue for the third-party settlement of disputes concerning the protection of marine biodiversity. The jurisprudence of LOSC courts and tribunals has contributed to the development of international law for the protection of marine biodiversity, both in terms of substance and also procedural rules applicable to

56 Institute of Cetacean Research, ‘Outline of the New Scientific Whale Research Program in the Antarctic Ocean (NEWREP-A)’ . See also, Richard Caddell, ‘Dispute Resolution and Scientific Whaling in the Antarctic’ (2016) 1(1) Asia-Pacific Journal of Ocean Law and Policy 139, 141. 57 IWC, ‘Resolution on Whaling under Special Permit’, Resolution 2014-5 . See also, Matt DiCenso, ‘Trouble on the High Seas: A Need for Change in the Wake of Australia v Japan’ (2016) 39(3) Boston College International and Comparative Law Review 13, 21. 58 Chief Cabinet Secretary of Japan, ‘Cabinet Decisions and Other Announcements: Statement’ (Statement, 26 December 2018) . For discussion, see, Sekiguchi Yuga, ‘Why Japan Withdrew from the IWC’ (NHK World-Japan, 11 February 2019) ; Chie Kojima, ‘Japan: Japan’s Decision to Withdraw from the International Convention for the Regulation of Whaling’ (2019) 4(1) Asia-Pacific Journal of Ocean Law and Policy 93. 59 Japan’s reservation to compulsory jurisdiction now includes ‘any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea’. Government of Japan, ‘Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice under Article 36, paragraph 2, of the Statute of the Court’, 6 October 2015. 60 LOSC, Art. 297(3). 61 LOSC, Art. 297(1)(c). 62 See, eg, UN, The Second World Ocean Assessment (vol. 1, 2021) 11.

134  Research handbook on international marine environmental law dispute settlement.63 This part discusses the South China Sea case, which was submitted by the Philippines to a LOSC Annex VII tribunal, claiming, among other matters, that China’s actions in the South China Sea had breached its obligations to protect and preserve the marine environment and particularly marine biodiversity. This case study focusses on the way that expert evidence was used in that case and the significance of the case for future marine biodiversity disputes. 4.1

Background to the Marine Environmental Aspects of the South China Sea Dispute

The South China Sea is a semi-enclosed sea bordered by the Philippines, Malaysia, Brunei, Indonesia, Singapore, Thailand, Cambodia, Vietnam, China and Taiwan. It is rich in biodiversity and home to internationally-important populations of species, including mangroves, corals, clams, crabs and fish.64 It is also a vitally important commercial fishing ground, contains major trade and shipping routes, and is believed to have vast potential oil and gas resources. The South China Sea is also the centre of long-running disputes concerning sovereignty over maritime features and entitlement to maritime zones, as well as disputes over ocean uses and the right to conduct certain activities.65 In the South China Sea arbitration, one claim pursued by the Philippines was that China’s activities in the South China Sea were in violation of its obligations to protect and preserve the marine environment. Two main categories of activities were said to have breached China’s marine environmental protection obligations: the fishing practices of Chinese fishers and the Chinese government’s role in those practices, as well as the construction and expansion of islands and other maritime features. The Philippines presented evidence that Chinese fishers had been deploying harmful fishing practices such as the use of explosives, cyanide and propellers to harvest fish and other species in the South China Sea, with the support or cognisance of the Chinese government.66 The Philippines argued that by tolerating, encouraging and failing to prevent environmentally destructive fishing practices by its nationals, China had violated its duty to protect and preserve the marine environment in Articles 192 and 194.67 The Philippines’ claims in relation to island-building were based on Chinese construction activities on seven features in the Spratly Islands. The Philippines argued that building works on those seven features had had a ‘catastrophic’ environmental impact, threatening the ecological integrity of the South China Sea.68 Accordingly, the Philippines claimed that China’s island-building activities were in violation of the LOSC. The final Award rendered in 2016 represented the most extensive engagement with the provisions of the LOSC on the protection and preservation of the marine environment in a con See, eg, Natalie Klein, ‘The Vicissitudes of Dispute Settlement under the Law of the Sea Convention’ (n 27). 64 Vu Hai Dang, ‘Biodiversity and Conservation’ in Keyuan Zou (ed), Routledge Handbook of the South China Sea (Routledge 2021) 278, 279. 65 Keyuan Zou, ‘Introduction’ in Keyuan Zou (ed), Routledge Handbook of the South China Sea (Routledge 2021) 1, 2. 66 South China Sea, Award (n 3) paras 826-848. 67 Ibid, para. 894. 68 Ibid, para. 901. 63

Resolving international disputes concerning the marine environment  135 tentious case to date. Moreover, it contained highly significant findings on the obligations of States to protect marine biodiversity. The tribunal found that Chinese fishing vessels had been involved in the harvesting of threatened or endangered species including corals, giant clams and endangered turtles.69 Relying on the Convention on International Trade in Endangered Species of Wild Fauna and Flora,70 the tribunal found that the Article 192 general obligation to protect and preserve the marine environment ‘includes a due diligence obligation to prevent the harvesting of species that are recognised internationally as being at risk of extinction and requiring international protection.’71 The tribunal also found that Article 192 ‘extends to the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat’.72 Due to their harmful effects on non-target species, the tribunal found that the use of cyanide and explosives amounted to ‘pollution of the marine environment’ pursuant to Article 1 of the LOSC.73 The tribunal also held that the use of cyanide and explosives threatened the ecosystem of the coral reefs and the habitats of endangered species.74 In relation to China’s responsibility for the actions of its fishers for harvesting endangered species, the tribunal held that where a State is aware that vessels flying its flag are harvesting endangered species or are causing significant damage to rare or fragile ecosystems or the habitat of depleted, threatened or endangered species, it is obliged under the LOSC to ‘adopt rules and measures to prevent such acts and to maintain a level of vigilance in enforcing those rules and measures.’75 The tribunal also determined that China’s island-building activities breached its obligation under Article 192 to protect and preserve the marine environment, and also that its dredging activities were polluting the marine environment with sediment in breach of Article 194(1).76 Further, the tribunal found that China had breached its obligation under Article 194(5) to protect and preserve rare or fragile ecosystems and the habitat of depleted, threatened or endangered species.77 4.2

Questions of Evidence

As the Part XII obligations in the LOSC include obligations of due diligence, the Philippines case was not that China itself used harmful fishing practices and harvested endangered species but rather that China had tolerated, encouraged, and failed to prevent such activities by its nationals.78 Therefore the Philippines had to establish not only that Chinese fishers were engaged in harmful fishing practices, but also that the Chinese government was responsible for breaches of the LOSC in connection with those activities. The Philippines produced evidence showing that Chinese government vessels had at times accompanied its fishing vessels79 and

71 72 73 74 75 76 77 78 79 69 70

Ibid, paras 950-953. Ibid, para. 956. Ibid. Ibid, para 959. Ibid, para. 970. Ibid. Ibid, para. 961. Ibid, para. 983. Ibid. Ibid, para. 894. Ibid, para. 721.

136  Research handbook on international marine environmental law were involved in stand-offs between the Philippine Navy and Chinese fishing vessels.80 The Philippines also presented evidence of its communications with China expressing its concern regarding the practices of Chinese fishers.81 In relation to the island-building activities, the tribunal stated that ‘there is no question’ that it is ‘part of an official Chinese policy and program implemented by organs of the Chinese State’.82 Although the activities concerning harm to marine biodiversity from harvesting living resources in the South China Sea are and were occurring on an ongoing basis, the Philippines mostly based its claims on specific discrete incidents. For example, in relation to the harvesting of endangered species, the Philippines largely based its claim on incidents that took place near Scarborough Shoal on 10, 23 and 26 April 2012, where Philippines naval vessels witnessed the harvesting of corals and giant clams.83 The Philippines presented contemporaneous official government documents outlining the incidents, as well as notes verbale exchanged by the Philippines and China concerning the incidents.84 The tribunal found that Chinese fishing vessels had been involved in the harvesting of threatened or endangered species on a number of specific occasions from 1998-2012, ‘based on contemporaneous reports of naval, coastguard and fisheries authorities, diplomatic exchanges and photographic evidence’.85 The tribunal also found that ‘in recent years’ Chinese fishing vessels had been using boat propellers for the widespread harvesting of giant clams, ‘based on its review of satellite imagery, photographic and video evidence, contemporaneous press reports, scientific studies and the materials from [expert] Professor McManus’.86 Expert evidence played a prominent role in the South China Sea arbitration, especially in relation to the protection of marine biodiversity. In addition to the expert oral and written evidence on which the Philippines relied, the tribunal appointed several independent experts. The tribunal relied heavily on the evidence of its independent experts to make its findings on China’s responsibility for the harvesting of endangered species, the use of harmful fishing practices, and harm caused to the marine environment from the island-building activities. The tribunal’s active engagement with the independent expert evidence was demonstrated by its request to its own expert to seek clarification directly from a scientist whose work had been cited during the hearing.87 That scientist in turn provided to the tribunal a revised version of the work that was cited during the hearing,88 and on which the tribunal relied.89 The tribunal’s procedure concerning its independent experts was governed by a detailed rule in its Rules of Procedure. 90 According to Mbengue, this rule ‘goes well beyond the traditional rules on experts before international courts and tribunals’, and the case ‘reveals that there is room for procedural law-making and innovation with respect to the use of scientific experts in

Ibid, para. 836. Ibid, para. 841. 82 Ibid, para. 976. 83 Ibid, paras 895 and 835-844. 84 Ibid, paras 835-844. 85 Ibid, para. 950. 86 Ibid, para. 953. 87 Ibid, para. 849. 88 Ibid, para. 850. 89 See, eg, ibid, para. 958. 90 South China Sea Arbitration Tribunal, Rules of Procedure, PCA 101991, 27 August 2013, Art. 24 (South China Sea Arbitration, Rules of Procedure). 80 81

Resolving international disputes concerning the marine environment  137 the system of international courts and tribunals.’91 In accordance with their duty under Article 6 of Annex VII of the LOSC to facilitate the work of the arbitral tribunal, Article 24 of the Rules of Procedure required the parties to ‘give the expert any relevant information or produce for his or her inspection any relevant documents or goods that he or she may require of them’.92 While the rules and circumstances will vary from one ad hoc arbitration to another, the tribunal’s in-depth engagement with expert evidence in this case would seem to indicate that expert evidence may feature prominently in future marine environmental disputes. 4.3

Significance for Other Marine Biodiversity Disputes under the LOSC

The South China Sea case holds significance for future disputes concerning marine biodiversity brought under the LOSC. In addition to the far-reaching findings on the substance of Part XII of the LOSC, the case has provided guidance regarding the procedural aspects of a marine biodiversity case. For example, it appears that specific discrete incidents of harm caused to biodiversity or the marine environment are a sufficient basis for a claim that the Part XII due diligence obligations have been breached. However, the evidence required to establish that those incidents occurred will be substantial. The tribunal’s reliance on party- and tribunal-appointed experts was both extensive and active, and could provide a model for future disputes concerning marine biodiversity or the marine environment more broadly. In terms of substance, the tribunal was willing to read the general marine environmental protections in Part XII of the LOSC in light of other rules of international environmental law.93 This approach to the interpretation of Part XII led the tribunal to define a ‘very high standard of due diligence’.94 As the LOSC is one of the only multilateral environmental agreements that provides for compulsory binding third party dispute settlement, this welcoming approach to other rules of international environmental law presents opportunities for the settlement of disputes concerning a wider range of international environmental issues. If the approach of the tribunal is followed by future courts or tribunals, there would appear to be no impediment to a State bringing a case concerning harm to the marine environment in a disputed zone. The tribunal swiftly dealt with the issue concerning the status of the waters of the South China Sea by simply noting that ‘the obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it’.95 It is notable that the Philippines did not seek any remedy beyond a declaration. This lack of a substantive remedy, in conjunction with the wisdom of hindsight which reveals that the tribunal’s decision has not led to any beneficial environmental outcomes, may discourage a would-be claimant State attracted by the tribunal’s expansive findings on jurisdiction and the substance of the Part XII due diligence obligations. How to remedy harm to the marine Makane Moïse Mbengue, ‘The South China Sea Arbitration: Innovations in Marine Environmental Fact-Finding and Due Diligence Obligations’ (2016) 110 American Journal of International Law Unbound 285, 287-288. 92 South China Sea Arbitration, Rules of Procedure (n 90) Art. 24(3). 93 Mbengue (n 91) 286; Yoshifumi Tanaka, ‘The South China Sea Arbitration: Environmental Obligations under the Law of the Sea Convention’ (2018) 27(1) Review of European Community and International Environmental Law 90, 92. 94 Mbengue (n 91) 286. 95 South China Sea, Award (n 3) para. 940. 91

138  Research handbook on international marine environmental law environment in international disputes has prompted different alternatives, as reflected in our next case study.

5. THE TORREY CANYON AND LEGAL RESPONSES TO MARINE ENVIRONMENTAL HARM CAUSED BY OIL POLLUTION In 1967, the Liberian-flagged supertanker Torrey Canyon spilled approximately 120,000 tons of crude oil into the English Channel, which spread across English and French coastlines.96 After failed attempts at salvage, the United Kingdom bombed the vessel to sink it and prevent further damage. The significant harm caused to the marine environment from the oil pollution and the large costs incurred in responding to the disaster resulted in numerous claims from different injured parties, including State and non-State actors. Both the French and British governments sought compensation from the vessel owner for their clean-up efforts as well as for economic losses due to harm to tourism and fishing industries. However, pursuing those claims before national courts was complicated due to difficulties in establishing jurisdiction over the foreign vessel owner.97 While the owner ultimately agreed to submit to the jurisdiction of the English courts, there were limits on the amount of compensation available and what precisely could be compensated under English tort law at the time.98 The claims were ultimately settled out of court.99 For present purposes, the Torrey Canyon disaster stands as an interesting case study for demonstrating varied responses to international marine environmental law disputes. The first section below shows how States have responded to competing claims regarding international marine environmental law through the development of new laws to prevent future harm to the marine environment and to clarify rights and obligations. Despite such efforts, oil pollution disasters at sea have continued and the predominant claims that emerge commonly relate to compensation for economic losses incurred, rather than contests over the applicable substantive law. The Torrey Canyon disaster served as the catalyst for the establishment of a civil liability regime aimed at ensuring the resolution of both inter-State and non-State actor claims to compensation arising from major oil spills into the marine environment. This case study also discusses the evolution of these regimes and their limitations in remedying damage to the marine environment. 5.1

Dispute Prevention through Lawmaking

Although not strictly a dispute settlement process, it is worth noting that responses to contestations about marine environmental law have led to changes to that law. Through modifications 96 Adam Vaughan, ‘Torrey Canyon Disaster – the UK’s Worst-ever Oil Spill 50 Years On’ (The Guardian, 18 March 2017) . 97 Steven Rares, ‘Ships that Changed the Law: The Torrey Canyon Disaster’ (Speech, Maritime Law Association of Australia and New Zealand, 5 October 2017) paras 21-24. 98 See, GW Keeton, ‘The Lessons of the Torrey Canyon: English Law Aspects’ (1968) 21(1) Current Legal Problems 94, 97, 111. See also, Rares (n 97) paras 25-37. 99 Rares (n 97) para. 36.

Resolving international disputes concerning the marine environment  139 to and updates of international marine environmental law, States have endeavoured not only to prevent or reduce the likelihood of the cause of further marine environmental damage but also avoided future disputes through the clarification or development of the law. In addition, responsive lawmaking has also shaped international mechanisms for compensation through civil liability regimes, which are discussed further below. The bombing of the Torrey Canyon was controversial both in terms of causing further environmental harm, rather than reducing the harm caused,100 and in relation to the legal basis for the British action.101 In terms of clarifying the law, the British response of bombing the Torrey Canyon prompted the adoption of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties.102 Subsequently, Article 221 of the LOSC was adopted to permit States to take measures to protect their coastline ‘or related interests’ from pollution or the threat of pollution consequent to a maritime casualty. The Torrey Canyon disaster was also the catalyst for other significant lawmaking efforts to protect the marine environment at the International Maritime Organization (IMO). Most notably, IMO members adopted MARPOL, which is aimed at preventing future damage to the marine environment from vessel source pollution, be it accidental or intentional.103 The LOSC complements the requirements in MARPOL,104 as well as recognising a role for compulsory insurance and compensation funds.105 5.2

The Evolution of Civil Liability Regimes

Further in the aftermath of the Torrey Canyon disaster, France and the United Kingdom proposed the development of an international civil liability regime at the International Maritime Consultative Organization (the current IMO).106 The result was the adoption of the 1969 International Convention on Civil Liability for Oil Pollution Damage (CLC)107 and 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention).108

See, Vaughan (n 96). See, ED Brown, ‘The Lessons of the Torrey Canyon: International Law Aspects’ (1968) 21(1) Current Legal Problems 113, 124-131; Albert E Utton, ‘Protective Measures and the “Torrey Canyon”’ (1968) 9(3) Boston College Law Review 613. 102 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (adopted 29 November 1969, entered into force 6 May 1975) 970 UNTS 211. 103 Notably the adoption of the International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61. 104 See, eg, LOSC, Art. 211; see also, Churchill, Chapter 2 in this volume (n 4); Proelss, Chapter 3 in this volume (n 4). 105 LOSC, Art. 235(3). 106 Brown (n 101) 114-116; Joseph C Sweeney, ‘Oil Pollution of the Oceans’ (1968) 37(2) Fordham Law Review 155, 193-194. 107 International Convention on Civil Liability for Oil Pollution Damage (opened for signature 29 November 1969, entered into force 19 June 1975) 973 UNTS 3 (CLC). 108 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (opened for signature 18 December 1971, entered into force 16 October 1978) 1110 UNTS 57 (Fund Convention). 100 101

140  Research handbook on international marine environmental law The 1969 CLC provided for the strict liability of the shipowner for ‘pollution damage’, which was defined as ‘loss or damage caused outside the ship carrying oil by contamination resulting from the escape or discharge of oil from the ship, wherever such escape or discharge may occur, and includes the costs of preventive measures and further loss or damage caused by preventive measures’.109 It covered damage to territory, as well as the territorial sea, and claims could be made by individuals, private and public bodies. Under the CLC, the shipowner was required to hold insurance to cover claims made against it for pollution damage and claims for compensation could only be pursued against the shipowner. The Fund Convention was an important component of this liability regime. The States party to the Fund Convention contribute money to a separately managed International Oil Pollution Compensation Fund based on the quantity of oil each country imports. The fund provides additional compensation for oil pollution damage where the amount of compensation required for losses suffered is in excess of the amounts provided for under the CLC, or in cases where the shipowner is otherwise unable to pay. The availability of this mechanism obviated the need for an injured State to rely on principles of State responsibility (including the right of diplomatic protection in presenting claims on behalf of nationals) or to utilise traditional inter-State dispute mechanisms to seek reparations. In the years following the adoption of the CLC and the Fund Convention, it became clear that the amount of compensation provided for in the case of a major oil spill was inadequate. The extent of environmental devastation caused by the Amoco Cadiz disaster in 1978 prompted an increase in the amounts available from the Fund Convention, as well as amendments allowing the shipowner greater recourse against a wider range of stakeholders including the charterer, manager or vessel operator. These agreements were reflected in protocols adopted in 1984.110 However, the entry into force of the 1984 protocols was dependent on US participation, which did not eventuate.111 In 1992, following the Exxon Valdez disaster, another protocol was adopted to the CLC which extended its application to damage occurring in the EEZ as well as the territorial sea and further increased the amount of compensation possible. Also amended was the definition of ‘pollution damage’, to include: ‘compensation for impairment of the environment other than loss of profit from such impairment [which] shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken’.112 The 1992 protocols did not require US participation and effectively replaced the earlier conventions.113 In 2003, a Supplementary

CLC, Art. I(6). Protocol of 1984 to amend the CLC (did not enter into force); Protocol of 1984 to amend the Fund Convention (did not enter into force). See, NJJ Gaskell, ‘The Amoco Cadiz: (I) Liability Issues’ (1985) 3(3) Journal of Energy and Natural Resources Law 169, 193. 111 Louise Angélique de La Fayette, ‘New Approaches for Addressing Damage to the Marine Environment’ (2005) 20(2) International Journal of Marine and Coastal Law 167, 180-181. 112 Protocol of 1992 to amend the Civil Liability Convention (opened for signature 27 November 1996, entered into force 30 May 1996) 1956 UNTS 258, Art. I(6) (hereafter 1992 CLC). 113 1992 CLC; Protocol of 1992 to amend the Fund Convention (opened for signature 27 November 1992, entered into force 30 May 1996) 1956 UNTS 255. For discussion, see, David Wilkinson, ‘Moving the Boundaries of Compensable Environmental Damage Caused by Marine Oil Spills: The Effect of Two New International Protocols’ (1993) 5(1) Journal of Environmental Law 71. 109 110

Resolving international disputes concerning the marine environment  141 Fund Protocol was adopted that provided funds additional to what was available under the 1992 Fund Convention.114 Since the adoption of the CLC, further liability regimes relating to marine environmental damage have been created. Notable among these are the 2010 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea115 and the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage.116 Like the CLC, these treaties adopt the strict liability standard. A key advantage of these civil liability regimes is that they typically allow for a relatively simple and quick process to recover compensation for damages rather than necessitating litigation for such claims.117 5.3

The Limitations of Civil Liability Regimes

While the liability regimes have the advantage of avoiding certain limitations in national court systems and shifting the burden on to actual polluters, difficulties persist in their application. First, they apply only in relation to pollution events occurring in the territorial sea or the EEZ, and not on the high seas.118 As a result, if oil pollution occurs beyond national jurisdiction, States may not be incentivised to undertake mitigation efforts if there is no likelihood of compensation for that damage from the pre-established funds. This approach cuts against the views of the Seabed Disputes Chamber, which recognised that the protection of the marine environment is an erga omnes obligation.119 Second, as treaty regimes, they are dependent on States consenting to be parties to these agreements and those State parties that import the most oil contributing to the International Oil Pollution Compensation Fund as required. The 2003 Supplementary Fund Protocol only applies to about 16 percent of the world tonnage of

114 2003 Protocol to the Fund Convention (adopted 16 May 2003, entered into force 3 March 2005) Can TS 2010 No 4; Cm. 8490. See further, Michael Faure and Wang Hui, ‘The International Regimes for the Compensation of Oil-Pollution Damage: Are They Effective?’ (2003) 12(3) Review of European Community and International Environmental Law 242, 245. 115 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (adopted 30 April 2010, not yet in force). This convention was preceded by a 1996 treaty, which did not enter into force. The 1996 treaty was subsequently amended by a 2010 protocol to become known as the 2010 HNS Convention. See IMO, International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS) (adopted in 1996, superseded by Protocol www​ .imo​ .org/​ en/​ About/​ Conventions/​ of 2010 to the HNS Convention (not yet in force)) . 116 International Convention on Civil Liability for Bunker Oil Pollution Damage (adopted 23 March 2001, entered into force 21 November 2008) 40 ILM 1493. 117 Gaetano Librando, ‘Influence of the Torrey Canyon Incident on the Liability and Compensation Regimes Developed under the Auspices of the IMO’ in Norman A Martínez Gutiérrez (ed), Serving the Rule of International Maritime Law: Essays in Honour of Professor David Joseph Attard (Routledge 2009) 315, 319. 118 Nicholas Gaskell, ‘Liability and Compensation Regimes: Pollution of the High Seas’ in Robert C Beckman and others (eds), High Seas Governance: Gaps and Challenges (Brill 2019) 229, 235. 119 The Seabed Disputes Chamber referred to ‘the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area’. Seabed Advisory Opinion (n 3) para. 180.

142  Research handbook on international marine environmental law shipping based on the States party to that treaty, whereas the 1992 CLC and Fund Convention now encompass about 95 percent of the world tonnage of shipping through widespread State participation in the regime.120 Third, while the legal regime relating to claims resulting from vessel-source pollution has evolved, there remains a gap in relation to pollution from oil rigs and/or platforms.121 This issue was highlighted following the Deepwater Horizon disaster in the Gulf of Mexico,122 where domestic litigation in the US courts was the only avenue through which affected individuals and other entities, including three Mexican states, could seek compensation for damages to the environment and to their livelihoods.123 This gap is yet to be filled. A final difficulty with the liability regimes is that there has been ongoing resistance to compensate for ‘pure environmental damage’ where the harm to the environment was not obviously linked to commercial loss.124 Indeed, the extent of reparations awarded by the International Court of Justice in Construction of a Road indicates that challenges remain in identifying and sufficiently documenting claims for compensation for pure environmental harm,125 even for internationally protected environments such as wetlands protected under the Ramsar Convention.126 The United Nations Compensation Commission (UNCC), which was established through a resolution of the UN Security Council to determine compensation payable by Iraq for inter alia environmental harm and depletion of natural resources following its invasion of Kuwait,127 stands as a precedent whereby damages would be payable for ‘pure environmental damage’.128 However, while proposals were considered to expand the bases for

IMO, ‘Status of Treaties’, . 121 For discussion, see, Marissa Smith, ‘The Deepwater Horizon Disaster: An Examination of the Spill’s Impact on the Gap in International Regulation of Oil Pollution from Fixed Platforms’ (2011) 25(3) Emory International Law Review 1477; Thomas J Schoenbaum, ‘Liability for Damages in Oil Spill Accidents: Evaluating the USA and International Law Regimes in Light of Deepwater Horizon’ (2012) 24(3) Journal of Environmental Law 395. 122 A similar problem was evident following the 2009 Montaro oil well spill, which released oil into the Timor Sea for 74 days. See Gaskell (n 118) 238-239. 123 Alexandria Sage, ‘Mexico Could Join Suits over BP Oil Spill-Attorney’ (Reuters, Mexico City, 30 September 2010) ; Nina Lakhani, ‘“We’ve Been Abandoned”: A Decade Later, Deepwater Horizon Still Haunts Mexico’ (The Guardian, 19 April 2020) . 124 de La Fayette (n 111) 175. 125 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment, Compensation owed by the Republic of Nicaragua to the Republic of Costa Rica) [2018] ICJ Rep 15 (hereafter Construction of a Road (Compensation)). 126 Convention on Wetlands of International Importance especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 245. See further Construction of a Road (Compensation) (n 125) Dissenting Opinion Judge ad hoc Dugard, 131, para. 32. 127 UNSC, Resolution 687, UN Doc S/RES/687, 3 April 1991, para. 16. 128 Philippe Gautier, ‘Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and the Settlement of Disputes: Liber Amicorum Judge Thomas A Mensah (Brill 2007) 177, 209. 120

Resolving international disputes concerning the marine environment  143 compensation to cover pure environmental damage during efforts to revise the original CLC and Fund Convention, they were not ultimately adopted.129 Damages for pure environmental harm caused by pollution to the marine environment may, nevertheless, be further endorsed in the future. The experience of the UNCC may still be relevant to consider as it sought to ‘restor[e] the environment to pre-invasion conditions, in terms of its overall ecological functioning rather than on the removal of specific contaminants or restoration of the environment to a particular physical condition’.130 Where ecological services were irreversibly lost then ecological services that were roughly equivalent in value were considered the appropriate remediation.131 The Seabed Disputes Chamber has ‘speculate[d] that pure environmental harm may be compensable’.132 Moreover, discussions on the issue are currently ongoing in the International Seabed Authority in the context of its development of regulations for the exploitation of the mineral resources of the deep seabed.133 Otherwise, it remains to be seen what remedies – perhaps looking beyond compensation to restitution requirements – may be sought by a State that turns to the LOSC dispute settlement regime in challenging another State party’s unlawful pollution of the marine environment.

6.

FUTURE OCEAN ACIDIFICATION DISPUTES

The twin problems of climate change and ocean acidification pose both substantive and procedural challenges for dispute resolution, particularly relating to issues of causation and standing. The impacts of climate change on the marine environment include ocean deoxygenation, changes to ocean circulation, sea level rise, reduction in biomass of marine mammals and a shift in species composition.134 Ocean acidification is not caused by climate change, but rather by the emission of one of the greenhouse gases (GHG), carbon dioxide. It is the process by which carbon dioxide emissions into the atmosphere are absorbed by the ocean, changing the ocean’s chemistry and lowering its pH.135 Ocean acidification lowers the stability of mineral forms of calcium carbonate,136 affecting the ability of animals such as corals to form calcium carbonate structures.137

de La Fayette (n 111) 182-183. UN Compensation Commission, Report and Recommendations made by the Panel of Commissioners Concerning the Third Instalment of “F4” Claims, UN Doc S/AC.26/2003/31, 18 December 2003, para. 48. 131 Peter H Sand, ‘Compensation for Environmental Damage from the 1991 Gulf War’ (2006) 35(6) Environmental Policy and Law 244, 247. 132 Aline Jaeckel, ‘Deep seabed mining’ in Øystein Jensen (ed), The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals (Edward Elgar 2020) 168, 178. 133 See, Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume. 134 Intergovernmental Panel on Climate Change (IPCC), Special Report on the Ocean and Cryosphere in a Changing Climate (Summary for Policy Makers, CUP 2019) (IPCC SROCCC). 135 IPCC, AR6 Climate Change 2021: The Physical Science Basis (2021) ch. 5, 48 (full report not finalised at time of writing) (IPCC AR6). 136 IPCC SROCCC (n 134) 469. 137 Ellycia Harrould-Kolieb and Tim Stephens, ‘Ocean Acidification’, Chapter 12 in this volume. 129 130

144  Research handbook on international marine environmental law Increasingly, States most affected by climate change are exploring avenues for international litigation to hold those most responsible for GHG emissions to account.138 In the case of ocean acidification, it has been suggested that an international case concerning a State’s failure to prevent ocean acidification may raise its profile as an issue at international climate change negotiations and clarify the obligations of States to prevent ocean acidification.139 This case study examines the substantive and procedural framework for such a dispute under the compulsory binding third party dispute settlement procedures in Part XV of the LOSC, which could provide one avenue for an eventual contentious case.140 6.1

Jurisdiction and Applicable Law in Ocean Acidification Disputes

The first issue for any claimant State to consider is always that of the appropriate forum in which to bring a case, the determination of which may affect the substantive law to be applied. A court or tribunal empowered to decide a case under the LOSC has jurisdiction ‘over any dispute concerning the interpretation or application’ of the LOSC.141 Any claim submitted pursuant to Part XV will therefore need to be framed as a law of the sea dispute rather than a dispute concerning the interpretation or application of the United Nations Framework Convention on Climate Change (UNFCCC)142 or the Paris Agreement.143 Merely because a case concerns both the LOSC and another treaty is not, however, a barrier to the case being characterised as a LOSC dispute.144 Moreover, once a case is within jurisdiction, the court or tribunal shall apply, in addition to the LOSC itself, ‘other rules of international law not incompatible’ with the LOSC.145 Therefore, although the court or tribunal will only be empowered to rule on the question of a breach of a LOSC obligation,146 other rules of international law, for

See, Sabin Centre for Climate Change Law, ‘Global Climate Change Litigation Database’ (Columbia University) ; Bernadette Careon, ‘Vanuatu to Seek International Court Opinion on Climate Change Rights’ (The Guardian, 25 September 2021) . 139 Dean Bialek and Judah Ariel, ‘Ocean Acidification: International Legal Avenues under the UN Convention on the Law of the Sea’ in Michael B Gerrard and Gregory E Wannier (eds), Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (CUP 2013) 473, 481-483. 140 States parties to the LOSC consent to the compulsory binding third party dispute settlement procedures on their ratification of the convention. 141 LOSC, Art. 288(1). 142 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 143 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 55(4) ILM 740. 144 James Harrison, ‘Defining Disputes and Characterizing Claims: Subject-Matter Jurisdiction in Law of the Sea Convention Litigation’ (2017) 48(3-4) Ocean Development and International Law 269, 376. 145 LOSC, Art. 293(1). 146 Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe) (Award of 5 September 2016) PCA Case No 2014-07, paras 207-210; Natalie Klein, ‘Adapting UNCLOS Dispute Settlement to Address Climate Change’ in Jan McDonald, Jeffrey McGee and Richard Barnes (eds), Research Handbook on Climate Change, Oceans and Coasts (Edward Elgar 2020) 94, 103-105. 138

Resolving international disputes concerning the marine environment  145 example relating to climate change, may be used to interpret the LOSC provision to determine whether there is a LOSC violation.147 The emission of carbon dioxide leading to ocean acidification falls under the definition of ‘pollution of the marine environment’ in the LOSC.148 Consequently, parties are bound by the obligation to take all necessary measures to prevent, reduce and control carbon dioxide emissions that cause ocean acidification.149 This requirement is in addition to the overarching general obligation on all States to protect and preserve the marine environment.150 Due to the interconnectedness of the ocean and atmospheric system, carbon dioxide emissions from activities under the jurisdiction or control of a single State contribute to the acidification of the ocean as a whole. This source of marine pollution therefore potentially has transboundary effects and States are bound to take all measures necessary to ensure that carbon dioxide emissions from their territory do not cause acidification of the ocean under the jurisdiction of other States or the high seas.151 The LOSC obligations to protect and preserve the marine environment are, however, generally obligations of due diligence, meaning that while States are not required to eliminate all sources of pollution absolutely, they must adopt appropriate rules or measures as well as ‘a certain level of vigilance in the enforcement and control of the rules’.152 The obligation in Article 212 of the LOSC to prevent, reduce and control pollution of the marine environment from or through the atmosphere is also relevant to ocean acidification.153 However, this obligation derives much of its content from ‘internationally agreed rules, standards and recommended practice and procedures’, none of which are specifically applicable to the prevention of ocean acidification. As it stands, Article 212 obliges States to adopt laws and regulations to prevent, reduce and control pollution for the marine environment from ocean acidification, as well as the due diligence obligation to take ‘other measures as may be necessary to prevent, reduce and control such pollution’.154 As LOSC courts and tribunals may apply other rules of international law, recourse may be had to the international climate change regime to identify the applicable international rules and standards for ocean acidification. The two primary instruments of the international climate change regime, the UNFCCC and the Paris Agreement, impose obligations on States to reduce their GHG emissions. It has been argued in relation to climate change mitigation more broadly that the international climate change obligations are the applicable international rules and standards for the purposes of the interpretation of the LOSC pollution prevention obligations relevant to climate change mitigation.155 However, particularly in relation to ocean acidification, there are two major reasons why compliance with the UNFCCC and the Paris Agreement cannot be sufficient to satisfy the LOSC obligation to prevent, reduce and control carbon dioxide emissions that lead to ocean acidification. First, the Paris Agreement is tied to an overall temperature goal, rather than a pH goal, and the temperature goal is only indirectly See also the analysis in Proelss, Chapter 3 in this volume, (n 4) section 3.2. LOSC, Art. 1(1)(4). 149 LOSC, Art. 194(1). 150 LOSC, Art. 192. 151 LOSC, Art. 194(2). 152 South China Sea, Award (n 3) para. 974. 153 LOSC, Art. 212. 154 Ibid. 155 Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ (2012) 27(4) International Journal of Marine and Coastal Law 831, 835-836. 147 148

146  Research handbook on international marine environmental law relevant to the mitigation of ocean acidification, which is not caused by global heating.156 Secondly, the climate change rules do not specify which GHG States must reduce.157 Ocean acidification is caused by the emission of carbon dioxide, not the numerous other greenhouse gases. As the LOSC places on all parties the obligation to prevent, reduce and control marine pollution ‘from any source’, parties must specifically reduce their carbon dioxide emissions in order to mitigate ocean acidification.158 Therefore while there is a lack of applicable international rules and standards specifically targeted at the prevention of ocean acidification, the LOSC Part XII obligations to protect and preserve the marine environment place due diligence obligations on States to take all necessary measures to prevent ocean acidification. Apart from the question of the precise content of the LOSC obligations to prevent ocean acidification, there remain difficult questions relating to the burden of proof and the sufficiency of evidence required to prove a case. Arguably, given the strength of the scientific evidence establishing the link between carbon dioxide emissions and ocean acidification, any State failing to comply with its due diligence obligations to take genuine measures to reduce its carbon dioxide emissions may be in breach of its LOSC obligations. The burden on the applicant State to establish the link between the harm to the marine environment and the respondent State’s failure to prevent ocean acidification may depend on the remedy sought, a question which is discussed further below. 6.2

Standing in Ocean Acidification Disputes

Before getting to the substantive issues involved in litigating disputes concerning the harm caused by ocean acidification, however, a potential claimant State must face a number of procedural challenges, including the important issue of standing. In short, given the global nature of both the causes and effects of ocean acidification, the question is: which State has standing to bring a case, and against which State? Pursuant to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, a State can invoke the responsibility of another State either as an ‘injured state’ or as a ‘state other than an injured state’.159 The LOSC obligations to prevent harm to the marine environment, and therefore ocean acidification, are owed to ‘a group of states’, being all States parties to the LOSC. To be classified as ‘injured’ the claimant State must therefore be ‘specially affected’ by the alleged breach.160 An injured State is entitled to full reparation for the injury caused, including restitution, compensation and satisfaction, while a non-injured State may only seek cessation of the internationally wrongful act, assurances and guarantees of non-repetition, and reparation on behalf of the injured State (if any).161 In the context of ocean acidification, cessation, properly performed, is likely to be the most effective remedy in any case.

156 Nilüfer Oral, ‘Ocean Acidification: Falling Between the Legal Cracks of UNCLOS and the UNFCCC?’ (2018) 45(1) Ecology Law Quarterly 9, 21-22. 157 James Harrison, Saving the Oceans Through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017) 257; McCreath (n 27) 129. 158 McCreath (n 27) 129. 159 ILC Articles (n 17) Arts 42 and 48. 160 Ibid, Art. 42(b)(i). 161 Ibid, Art. 48(2).

Resolving international disputes concerning the marine environment  147 States that are likely to suffer more severely from ocean acidification, for example States that rely on corals as habitats for their fisheries or for tourism, may be particularly motivated to bring a case against another State under the LOSC for an alleged failure to prevent ocean acidification. Whether such a State would be considered ‘specially affected’ and therefore injured would depend on the circumstances. The Commentary to the ILC Articles refers to ‘particular adverse effects on one State or on a small number of States’. Considering the global reach of ocean acidification and the likelihood that a substantial number of States would suffer severe effects in addition to any State that claims to be specially affected, it may be more appropriate to make a claim as a non-injured State, despite the limited remedies. In order to have standing as a non-injured State, the would-be claimant would need to establish that obligations to prevent ocean acidification are owed to a group of States including that State (most obviously the parties to the LOSC) and established to protect a collective interest of the group, or that they are owed to the ‘international community as a whole’.162 In other words, that they are either obligations erga omnes partes or obligations erga omnes, meaning that they are owed to all States, even those not party to the LOSC. It is widely accepted that obligations to protect the marine environment are established to protect collective interests163 and it is possible that a court or tribunal would find that a non-injured State would have standing to challenge an alleged breach of obligations to prevent ocean acidification. 6.3

Remedies in Ocean Acidification Disputes

Bringing a case as a non-injured State limits the potential remedies available, though in any case restitution, in the sense of repairing the damage that has already been caused, would most likely be ‘materially impossible’ in the case of ocean acidification.164 Compensation cannot be claimed by a non-injured State in its own right but it could be claimed ‘in the interest of the injured state’.165 In any event, an order for cessation, in the form of a reduction in carbon dioxide emissions, is likely to be the objective of the applicant State, and is available to both injured and non-injured States. While seeking only limited remedies potentially reduces the utility of the litigation, the threshold for an order of cessation is lower than for compensation. For an order of cessation, the claimant State would only need to prove a breach of the respondent State’s due diligence obligation to prevent pollution of the marine environment rather than prove that the particular actions of the respondent State caused or contributed in a defined way to specific harm to the marine environment from ocean acidification. Assuming that restitution is materially impossible, a claim for compensation would require the applicant State to prove the link between the respondent State’s failure to reduce its carbon dioxide emissions and the harm suffered to them or another injured State by ocean acidification. Although proving the link between the respondent’s breach and the harm would be challenging, recent developments in scientific research on attributing climate change impacts to the activities of individual emitters of carbon

Ibid, Art. 48(1). See, eg, Harrison (n 157) 3; Millicent McCreath ‘Community Interests in the Protection of the Marine Environment within National Jurisdiction’ (2021) 70(3) International and Comparative Law Quarterly 569, 569-603. 164 ILC Articles (n 17) Art. 35(a). 165 Ibid, Art. 48(2)(b). 162 163

148  Research handbook on international marine environmental law dioxide could be used to allocate to the respondent State its contribution to the harm caused by ocean acidification to the claimant State.166 As discussed above, there is precedent for the reference to expert scientific evidence in international marine environmental litigation. This enquiry based on attribution science would, however, be separate to the related issue of the need to establish the value of the harm caused by ocean acidification, including economic losses for example to the tourism and fishing industries, as well as environmental loss. Again, expert evidence may be presented to substantiate the losses claimed. However, as noted in the case study on civil liability regimes in Section 5 above, while compensation for economic losses is well established, the notion of compensation for pure environmental loss has been a contested one. Damages for harm to the environment, including the loss of ecosystem services, were awarded by the ICJ in the Construction of a Road (Compensation) case between Costa Rica and Nicaragua concerning excavation works in the vicinity of a protected wetland.167 While this case was an important milestone in that damages were awarded for pure environmental harm, the amount of compensation awarded (US$378,890.59) was significantly less than the sum Costa Rica claimed (US$7,213,682.54).168 The presumably high cost of obtaining extensive expert evidence to demonstrate the precise cost of losses, as well as the difficulty of establishing a specific claim for compensation against a respondent, may be dissuasive for a potential claimant State to pursue a compensation claim.

7. CONCLUSION In sum, the resolution of international marine environmental law disputes engages the interests of a number of different stakeholders. Our case studies have reflected the participation of diverse actors, including States, international organisations, ship owners, insurers, civil society actors, scientists, national courts and international courts. Each actor may have a distinct role to play in relation to what claims are made for harm to the marine environment, as well as in how and where legal rights are asserted. For international disputes, the options for States may further depend on whether a State is a party to a specific treaty or has accepted the jurisdiction of an international court. The avenues and processes available for asserting and resolving claims pertaining to the marine environment are also varied. While the starting assumption is that legal claims are to be resolved in a court, the case studies reflect that States (and other actors) may have a choice of fora. Third-party processes may include conciliation or mediation efforts, as well as claims commissions (as demonstrated with the work of the UNCC). International institutions, like the International Whaling Commission or the IMO, may be important sites for raising and resolving claims relating to harm to the marine environment and alleged international law violations. Civil society actors may bring pressure to bear on a contentious environmental issue through international institutions, national courts or direct action. In the event that international courts are utilised to resolve marine environmental law disputes, questions for resolution include the choice of forum (whether to proceed at the ICJ 166 Rupert F Stuart-Smith and others, ‘Filling the Evidentiary Gap in Climate Litigation’ (2021) 11 Nature Climate Change 651, 654. 167 Construction of a Road (Compensation) (n 125) 15. 168 Ibid.

Resolving international disputes concerning the marine environment  149 or under the LOSC dispute settlement procedures), what law may be applicable and where or when claimants will have standing. To substantiate claims, scientific evidence may be crucial and the involvement of experts may also be an important component in establishing a breach of international law. Assessing violations of international marine environmental law may entail an examination as to whether a State has exercised the necessary due diligence. The difficulty with the latter standard is that a State may have demonstrated due diligence but harm to the marine environment has nonetheless occurred. Remedying damage to the marine environment remains an unsatisfactory dimension to the resolution of these international disputes. On the one hand, States may be satisfied with a declaration of illegality and cessation of conduct as the outcome of a dispute settlement process. On the other hand, claims for compensation are asserted and economic losses may be redressed either through the civil liability schemes or through an international court case or claims proceeding. Yet calculating and paying for ‘pure environmental damage’ is contested and elusive in resolving international marine environmental law disputes. The remediation of the marine environment needs to become the focus of resolving marine environmental law disputes, rather than just settling political differences or recalibrating economic concerns.

7. Mapping progress and challenges for the UNEP Regional Sea Programme for the Mediterranean Nilufer Oral1

1.

INTRODUCTION: THE MEDITERRANEAN SEA AND THE STATE OF THE ENVIRONMENT

The Mediterranean Sea is a closed basin with 21 coastal States and a total coastal population of about 210 million. Mediterranean countries are the top tourist destinations in the world, with around 360 million visitors every year. The Mediterranean Sea receives waste from coastal zones, as well as from many large rivers flowing through largely urbanised cities. Additionally, more than 20 percent of global maritime traffic passes through the Mediterranean Sea.2 Its diverse marine and coastal ecosystems have facilitated trade, development, and through all that, a rich cultural heritage. Today, even though the Mediterranean amounts to less than one percent of the ocean surface, it is a natural habitat for around 18 percent of the world’s marine species. According to the International Union for Conservation of Nature (IUCN) Red List, the Mediterranean basin is recognised as a biodiversity hotspot with some 15,000 to 25,000 flora species, 60 percent of which are unique to the region.3 The state of the environment in the Mediterranean, however, continues to be under significant threat of degradation. Due to ongoing tourism, plastic and chemical pollution, unsustainable fishing, and rapidly increasing coastal population densities, marine species are dramatically decreasing while their fragile habitats are destroyed day by day.4 In the past five decades, 78 percent of fish stocks have been overfished and 40 percent of Mediterranean marine mammal populations have been lost.5 Some 56 percent of cetaceans are threatened.6 There has been a reduction of some 34 percent of the Mediterranean seagrass Posidonia

1 The author extends her appreciation to the assistance of Jiang Zhifeng, LLB (NUS’ 23), BA (Yale-NUS’ 23) and Tutku Bektas (Called to the Bar of England and Wales as Astbury Scholar of the Honourable Society of Middle Temple). BA (Oxon), LLM (NYU). 2 United Nations Environment Programme (UNEP), Mediterranean Action Plan (MAP) and Plan Bleu, State of the Environment and Development in the Mediterranean (2020) (UNEP, SoED Report 2020) 137-138. 3 IUCN, ‘Red List: The Mediterranean: A Biodiversity Hotspot under Threat’ (2008)  (IUCN, Red List). 4 UNEP, SoED Report 2020 (n 2); Marina Gomei et al, Towards 2020: How Mediterranean countries are performing to protect their sea (World Wildlife Fund 2019) (WWF, Towards 2020). 5 WWF, Towards 2020 (n 4). 6 IUCN, Red List (n 3).

150

Mapping progress and challenges for the UNEP Regional Sea Programme  151 oceanica.7 Considering that 730 tonnes of plastic waste are dumped into the Mediterranean Sea on a daily basis, fish stocks are expected to be outweighed by plastic waste in the sea by 2050 in terms of tonnage.8 Furthermore, the ecological balance and environmental resilience of the whole region are severely threatened by climate change and other threats such as pollution. While 9.68 percent of the Mediterranean has been designated as marine protected areas (MPAs), only 1.27 percent of the Mediterranean is protected by MPAs that effectively implement their management plans, and a tiny 0.03 percent is covered by fully protected areas.9 Fully protected areas or ‘no-take zones’ refer to areas where all extractive activities are prohibited. In contrast, partially protected areas refer to areas where certain uses and activities are allowed or regulated.10 The primary purpose of an MPA is to ‘achieve the long-term conservation of nature with associated ecosystem services and cultural values’.11 Against this background, the current state of the environment in the Mediterranean is far from reaching the commonly set objectives and goals under international frameworks such as the United Nations 2030 Agenda for Sustainable Development12 and the United Nations Framework Convention on Climate Change (UNFCCC)13 as well as regional frameworks including the Barcelona Convention14 and the 2016-2025 Mediterranean Strategy for Sustainable Development.15 The existence of more than 20 coastal States bordering the Mediterranean Sea and the uneven socio-economic development between these States pose challenges to the creation of coordinated and harmonised marine environment protection standards. This chapter maps and analyses the evolution and the current status of the regional framework for the protection of the Mediterranean Sea under the UNEP Regional Seas Programme. It lays out the complex framework of legal instruments adopted under the Barcelona Convention, including those that exist only within the context of the UNEP Mediterranean Action Plan (UNEP/MAP) Barcelona Convention System, and the various implementing strategies and programmes aimed at addressing the multiple risks, notably, the different sources of pollution, loss of biodiversity and the adverse impacts of climate change. The UNEP/MAP demonstrates that despite having a robust and sophisticated regional regime for cooperation, reversing environmental harm continues to be an elusive challenge. Nonetheless, the UNEP/

WWF, Towards 2020 (n 4). UNEP, SoED Report 2020 (n 2); World Economic Forum, ‘The New Plastics Economy: Rethinking the future of plastics’ (World Economic Forum, January 2016) 14, . 9 WWF, Towards 2020 (n 4) 14. 10 Ibid. 11 Bruno Meola and Chloe Webster, ‘The Status of Marine Protected Areas in the Mediterranean: 2016 Edition’ (MedPAN and SPA/RAC 2019) . 12 UNGA, Transforming our World: the 2030 Agenda for Sustainable Development, UN Doc A/ RES/70/1, 21 October 2015. 13 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 14 Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention). 15 UNEP, Mediterranean Strategy for Sustainable Development 2016-2025: Investing in environmental sustainability to achieve social and economic development (2016) . 7

8

152  Research handbook on international marine environmental law MAP provides a model framework for regional cooperation. This is because it has provided a scientific, technical and legal framework comprising an active regional governance process, as evident from the body of the Conference of the Parties and the different subsidiary bodies responsible for implementation of the decisions.

2.

THE EVOLUTION OF THE LEGAL REGIME FOR THE PROTECTION OF THE MEDITERRANEAN SEA UNDER THE UNEP REGIONAL SEAS PROGRAMME

Among the 18 UNEP Regional Sea Programmes (RSPs),16 the UNEP/MAP deserves close attention because it is not only one of the most innovative and comprehensive, but also demonstrates a robust level of regional cooperation among 22 countries. The Mediterranean Sea was the first of the regional seas to be included under the RSP, which was established pursuant to the 1972 United Nations Conference on the Human Environment (UNCHE)17 and Principle 24 of the Stockholm Declaration.18 The core of the UNEP RSP is based on Regional Seas Conventions and Action Plans (RSCAP). Some, but not all, RSPs have a framework convention with implementing protocols. The Mediterranean Sea RSP ranks among the most developed of the RSCAPs with a framework convention and seven protocols. The activities of the Mediterranean RSP are implemented through the UNEP/MAP of which its Phase I was adopted in 1975 and Phase II in 1995.19 The legal framework of the UNEP/ MAP comprises the Convention for the Protection of the Mediterranean Sea against Pollution (the Barcelona Convention) as well as its Protocols. The Barcelona Convention was adopted in 1976, providing the general objectives, obligations, principles, operational structure, and implementing protocols based on specific activities or sectors. However, in response to the important evolution of environmental law that took place after the 1992 Earth Summit,20 the Barcelona Convention was amended in 1995 and renamed the Convention for the Protection

16 For a more fulsome discussion, see Nilufer Oral, ‘Forty Years of the UNEP Regional Seas Programme: From Past to Future’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 339. 17 UNGA, Institutional and financial arrangements for international environmental cooperation, UN Doc A/RES/27/2997, 15 December 1972. See, Patricia Birnie, ‘The Development of International Environmental Law’ (1977) 3(2) British Journal of International Studies 169. 18 UN Doc A/RES/27/2997 (n 17); Peter C Schröder, ‘UNEP’s Regional Seas Programme and the UNCED Future: Aprés Rio’ (1992) 18(1) Ocean and Coastal Management 101; Mark Allan Gray, ‘The United Nations Environmental Programme: An Assessment’ (1990) 20(2) Environmental Law 291. 19 For an interesting study conducted on the institutional effectiveness of the MAP, see Sofia Frantzi, ‘What Determines the Institutional Performance of Environmental Regimes? A Case Study of the Mediterranean Action Plan’ (2008) 32(4) Marine Policy 618. See also, Ljubomir Jeftic, ‘The Role of Science in Marine Environmental Protection of Regional Seas and Their Coastal Areas: The Experience of the Mediterranean Action Plan’ (1992) 25(1-4) Marine Pollution Bulletin 66; Adalberto Vallega, ‘Regional Level Implementation of Chapter 17: The UNEP Approach to the Mediterranean’ (1995) 29 Ocean and Coastal Management 251; Evangelos Raftopoulos, ‘The Barcelona Convention System for the Protection of the Mediterranean Sea against Pollution: An International Trust at Work’ (1992) 7(1) International Journal of Estuarine and Coastal Law 27. 20 United Nations Conference on Environment and Development (UNCED) (Earth Summit) (Rio de Janeiro, 3-14 June 1992).

Mapping progress and challenges for the UNEP Regional Sea Programme  153 of the Marine Environment and the Coastal Region of the Mediterranean.21 The revised Convention incorporated important new environmental law principles and concepts such as the polluter pays principle, the precautionary principle, the use of environmental impact assessment, and use of best available technologies, which had been introduced by the Rio Declaration and Agenda 21.22 The Convention Protocols were also amended and renamed: the Dumping Protocol became the Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea,23 and the Protocol in Cases of Emergency, Combating Pollution of the Mediterranean Sea (Prevention and Emergency Protocol) replaced the Protocol Concerning Co-operation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency Protocol).24 The Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (Land-based Sources Protocol)25 was replaced with the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources.26 In addition, the Regional Oil Combating Centre for the Mediterranean Sea (ROCC), which had been established in 1976 to assist the Mediterranean coastal States in the implementation of the Emergency Protocol, was subsequently renamed the Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC). The REMPEC is governed by the Contracting Parties to the Barcelona Convention and administered by the

Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (adopted 10 June 1995, entered into force 9 July 2004), amending Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27. 22 Rio Declaration on Environment and Development, in UN, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol. I), Annex I, 12 August 1992. For discussion see: Maria Gavouneli, ‘Mediterranean Challenges: Between Old Problems and New Solutions’ (2008) 23(3) International Journal of Marine and Coastal Law 477; Maria Gavouneli, ‘New Forms of Cooperation in the Mediterranean System of Environmental Protection’ in Myron H Nordquist, John Norton Moore and Said Mahmoudi (eds), The Stockholm Declaration and Law of the Marine Environment (Brill Nijhoff, 2003) 223-236. 23 Protocol for the Prevention of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 92 (Dumping Protocol). The Dumping Protocol was amended and recorded as Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (adopted 10 June 1995, terminated) UNEP Doc UNEP(OCA)/MED IG. 6/7. 24 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (adopted 25 January 2002, entered into force 17 March 2004) (Emergency Response Protocol) . This Protocol replaced the Protocol Concerning Cooperation in Combating Pollution of the Mediterranean Sea by Oil and other Harmful Substances in Cases of Emergency (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 122. 25 Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (as amended 7 March 1996) (signed 17 May 1976, entered into force 11 May 2008) (LBS Protocol) . 26 Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (adopted 17 May 1980, entered into force 17 June 1983) 1328 UNTS 119 . 21

154  Research handbook on international marine environmental law International Maritime Organization (IMO) with financing from the Mediterranean Trust Fund. The REMPEC serves an important role in the Mediterranean Sea by providing vital emergency response in cases of pollution by oil and other hazardous substances, and by providing valuable training and education regarding vessel-source pollution. Of the 18 RSPs, the Mediterranean,27 the Wider Caribbean Sea28 and the North West Pacific Region (NOWPAP)29 have each established emergency response centres, with the Mediterranean being the first to do so. The UNEP/MAP has been innovative in its approaches, which is evident from how the Contracting Parties to the Barcelona Convention have adopted a number of legal instruments in relation to the Mediterranean Sea not yet found in the other RSPs. For example, the Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA and Biodiversity Protocol or SPAMI Protocol), which replaced the Protocol concerning Mediterranean Specially Protected Areas,30 was the first to create a legal framework that allowed for the collaborative establishment of MPAs between two or more Contracting Parties, and created the possibility for the designation of MPAs in areas beyond national jurisdiction.31 The Pelagos Sanctuary for Mediterranean Marine Mammals (formerly known as the Ligurian Sea sanctuary), which was established under the SPAMI Protocol in 1999, is the only MPA in the Mediterranean Sea that includes areas of the high seas.32 Other innovative instruments adopted include the Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (Izmir Protocol).33 This Protocol goes further than the globally applicable Basel Convention 27 Emergency Response Protocol (n 24). The Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea (REMPEC) assists the Mediterranean coastal States in ratifying, transposing, implementing, and enforcing international maritime conventions related to the prevention of, preparedness for and response to marine pollution from ships, see . 28 The Regional Marine Pollution Emergency Information and Training Center for the Wider Caribbean (REMPEITC-Caribe) is a Regional Activity Center (RAC) for the Protocol Concerning the Cooperation in Combating Oil Spills in the Wider Caribbean Region (adopted 24 March 1983, entered into force 11 October 1986) . 29 The Northwest Pacific Region Programme does not have an emergency response protocol but UNEP and the International Maritime Organization (IMO) have together established an emergency response centre to develop effective regional cooperative measures in response to marine pollution incidents including oil and hazardous and noxious substance (HNS) spills: ‘Northwest Pacific Action Plan (NOWPAP)’, . 30 Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (adopted 10 June 1995, entered into force 12 December 1999) 2102 UNTS 203 (SPAMI Protocol). Annexes to the SPAMI Protocol were adopted on 24 November 1996. This Protocol replaced the Protocol concerning Mediterranean Specially Protected Areas (adopted on 3 April 1982, entered into force 23 March 1986) . 31 Tullio Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations’ (2004) 19(1) International Journal of Marine and Coastal Law 1. 32 Tullio Scovazzi, ‘The Mediterranean Marine Mammals Sanctuary’ (2001) 16 International Journal of Marine and Coastal Law 132. 33 Protocol for the Prevention of Pollution of the Mediterranean by Transboundary Movements of Hazardous Wastes and Their Disposal (Hazardous Wastes Protocol) (adopted 1 October 1996, entered into force 19 January 2008). UNEP Register of International Treaties and Other Agreements in the Field of the Environment (2005) 622 .

Mapping progress and challenges for the UNEP Regional Sea Programme  155 on Control of the Transboundary Movement of Hazardous Wastes and their Disposal,34 by, for example, providing a broader definition of waste, which includes radioactive wastes, as well as requiring prior notice to and written consent from coastal transit States.35 The UNEP/MAP was also the first of the RSPs to adopt in 2008 a Protocol for Integrated Coastal Zone Management (ICZM Protocol), which is the first instrument under the UNEP/ MAP to make express reference to climate change.36 The Protocol defines ICZM as: a dynamic process for the sustainable management and use of coastal zones, taking into account at the same time the fragility of coastal ecosystems and landscapes, the diversity of activities and uses, their interactions, the maritime orientation of certain activities and uses and their impact on both the marine and land parts.37

It provides a clear obligation on States to prohibit construction in coastal zones from the highest winter waterline, taking into account, inter alia, the areas directly and negatively affected by climate change and natural risks.38 Among the general principles adopted is the obligation to apply an ecosystem approach to coastal planning and management to ensure the sustainable development of coastal zones.39 In 2012, the Contracting Parties adopted an Action Plan for the implementation of the ICZM Protocol between 2012 and 2019.40 The ICZM protocol marks an important statement of the priority given to ensuring sustainable coastal management through a holistic and integrated manner, which includes spatial management of the land–sea interface. However, one of the key challenges is implementation. As observed by Ramieri, Bocci and Markovic, ‘ICZM requires integration at different levels, that is, across zones, time, sectors and disciplines… There is no uniform approach to coastal management, and therefore there is no single way to apply ICZM in the Mediterranean’.41 This observation challenges the notion of a holistic approach to the entire Mediterranean Sea basin. It is too early to assess the success of the ICZM Protocol, which is still in its implementation phase. Nonetheless, a number of projects are dedicated to promoting its implementation, such as the EU-funded project, Pegaso Integrated Coastal Zone Management in the Mediterranean: From Vision to Action (2010-2018), the main outcome of

34 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 57. 35 See, Tullio Scovazzi, ‘The Transboundary Movement of Hazardous Waste in the Mediterranean Regional Context’ (2000-2001) 19(1) UCLA Journal of Environmental Law and Policy 231. 36 Protocol on Integrated Coastal Zone Management in the Mediterranean (adopted 21 January 2008, entered into force 24 March 2011) (ICZM Protocol) . See also, UNEP, Adoption of the Action Plan for the implementation of the ICZM Protocol for the Mediterranean (2012-2019), UNEP Doc UNEP(DEPI)/ MED IG 20/8, 21 January 2012 (ICZM Action Plan) ); Julien Rochette and Raphaël Billé, ‘ICZM Protocols to the Regional Seas Conventions: What? Why? How?’ (2012) 36(5) Marine Policy 977. 37 ICZM Protocol (n 36) Art. 2(f). 38 Ibid, Art. 8(2)(a). 39 Ibid, Art. 6(c). 40 ICZM Action Plan (n 36) Annex II, Decision IG 20/2. 41 Emiliano Ramieri, Martina Bocci and Marina Markovic, ‘Linking Integrated Coastal Zone Management to Maritime Spatial Planning: The Mediterranean Experience’ in Jacek Zaucha and Kira Gee (eds), Maritime Spatial Planning: Past, Present, Future (Palgrave Macmillan 2019) 276.

156  Research handbook on international marine environmental law which was a shared ICZM Governance Platform to enhance the sharing of information and build a network across the region of scientists and end-users.42 The UNEP/MAP Barcelona Convention System also broke new ground in 2008 when the first compliance and enforcement mechanism in an RSP was adopted.43 Designed to facilitate implementation, it does not envision any punitive measures. The measures that can be taken to promote compliance are: (a) To give advice and, as appropriate, facilitate assistance; (b) To invite and/or assist the Party concerned to draw up a plan of action to bring the Party into compliance; (c) To invite the Party concerned to submit progress reports on its efforts to comply with its obligations under the Barcelona Convention and its Protocols; and (d) To make recommendations to the meetings of Contracting Parties on cases of non-compliance.44

Raftopoulos outlines the different evolutionary stages of the compliance mechanism under the Barcelona Convention.45 The initial stage was based on the general duty of the parties to fulfil their obligations (pacta de contrahendo). This stage was changed in 1995 with the amended Barcelona Convention, which gave the Meeting of the Contracting Parties the competence to review compliance based on periodic reports by the parties and to make recommendations. The third phase was the ‘institutionalisation’ of the compliance process in light of the establishment of the Compliance Committee in 2008. The Compliance Committee is composed of seven persons (and seven alternates) nominated by the Contracting Parties.46 The Compliance Committee meets at least once a year. Its recommendations are adopted in a final report.

PEGASO Project, People for Ecosystem-Based Governance in Assessing Sustainable Development of Ocean and Coast, Integrated coastal zone management in the Mediterranean: From Vision to Action (2010-2018) . Another project to promote the implementation of the ICZM Protocol in the Mediterranean Sea is: Global Environmental Facility (GEF) funded, ClimVar & ICZM – Integration of climatic variability and change into national strategies to implement the ICZM Protocol in the Mediterranean (2012-2015) . 43 UNEP, 15th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols (15-18 January 2008, Almeria, Spain) UNEP Doc No. UNEP(DEPI)/MED IG.17/1018, 5. 44 See, UNEP Coordinating Unit for the Mediterranean Action Plan (UNEP/MAP), ‘Governing and Subsidiary Bodies’ . 45 Evangelos Raftopoulus, ‘Compliance Procedure: Barcelona Convention for the Protection of the Mediterranean Sea’ in Oxford Public International Law (OUP 2019) . 46 UNEP, Decision IG 17/2: Procedures and Mechanisms on Compliance under the Barcelona Convention and its Protocols, UNEP Doc UNEP(DEPI)/MED IG.17/10, Annex V, 2008; UNEP, Decision IG.19/1: “Rules of Procedure for the Compliance Committee and Its Work During 2010-2011 Biennium, UNEP Doc UNEP(DEPI)/MED IG.19/8, Annex II, as amended by UNEP, Decision IG. 21/1 on the Compliance Committee including renewal of members, the modification of the rules of procedure and the Programme of Work of the Compliance Committee, UNEP Doc UNEP(DEPI)/MED IG.21.9, Annex II – Thematic Decisions. 42

Mapping progress and challenges for the UNEP Regional Sea Programme  157 Another first, as discussed in more detail in Section 6 below, is the adoption by the Member States of the UNEP/MAP Barcelona Convention System of the first legally binding instrument to address marine litter and plastic.47 In addition to the above-mentioned legal instruments, in 1996 the Contracting Parties to the Barcelona Convention established the Mediterranean Commission on Sustainable Development (MCSD) and adopted the Mediterranean Strategy for Sustainable Development (MSSD) in 2005. The first is a standing permanent subsidiary body of the UNEP/MAP and the second the first of a series of strategies to provide the Contracting Parties with guidance for developing national policies to further sustainable development in their respective countries. Other regional centres established include the Plan Bleu Regional Activity Centre (PB/ RAC),48 the Priority Actions Programme Regional Activity Centre (PAP/RAC),49 the Regional Activity Centre for Sustainable Consumption and Production (SCP/RAC)50 and the Regional Activity Centre for Information and Communication (INFO/RAC).51 The PB/RAC produces studies aimed at raising the awareness of Mediterranean stakeholders and decision-makers on regional environment and sustainable development issues.52 The PAP/RAC supports the Mediterranean countries in improving sustainable management of their coasts and promotes marine spatial planning (MSP) within the Barcelona Convention system, which implements the ecosystem approach in the Mediterranean Basin.53 The SCP/RAC builds capacity and contributes to the exchange of knowledge in areas including green public procurement, and best environmental practices on reducing the use and generation of hazardous chemicals.54 The INFO/RAC seeks to provide adequate information, communication services, and infrastructure technologies to Contracting Parties to the Barcelona Convention to assist them to implement Barcelona Convention Article 12 on public participation and Article 26 on reporting.55 Since 2004, UNEP has adopted the four-year Regional Seas Strategic Directions (RSSD) to strengthen the RSPs by linking them to global processes, thereby enabling regional implementation of global commitments. There have been five RSSDs to date: 2004-2007, 2008-2012, 2013-2016, 2017-2020 and most recently, 2022-2025. The RSSDs also serve to implement the UNEP/Medium-Term Strategy (MTS), which has the specific goal of strengthening the implementation of the United Nations 2030 Agenda for Sustainable Development and its 17 Sustainable Development Goals, as well as the Rio+20 Outcome document ‘The Future We 47 UNEP, Decision IG.21/7: Regional Plan on Marine Litter Management in the Mediterranean in the Framework of Article 15 of the Land Based Sources Protocol, UNEP Doc UNEP(DEPI)/MED IG.21/9, Annex II – Thematic Decisions (UNEP, Decision IG.21/7). 48 Plan Bleu Regional Activity Centre (PB/RAC), ‘Who we are’ . 49 European Maritime Spatial Planning Platform ‘Priority Actions Programme Regional Activity Centre (PAP/RAC)’ . 50 Regional Activity Centre for Sustainable Consumption and Production (SCP/RAC) . 51 Regional Activity Centre for Information and Communication (INFO/RAC) . 52 PB/RAC (n 48). 53 PAP/RAC (n 49). 54 SCP/RAC (n 50); ‘About Us: SCP/RAC’ . 55 INFO/RAC (n 51).

158  Research handbook on international marine environmental law Want’. There have been two UNEP/MTSs adopted to date: 2018-202156 and 2022-2025.57 The UNEP/MAP, in parallel with the global level, has also adopted regional Medium-Strategy Directions (MAP/MSDs), which cover a six-year period of time. Two MAP/MSDs have been adopted for 2016-2021 and 2022-2027.

3.

UNEP AND UNEP/MAP STRATEGIES

As noted above, the UNEP/MAP has adopted a number of MTSs and MSDs over the years, all of which are implemented through two-year Programmes of Work. The vision of the recently completed 2016-2021 UNEP/MAP MTS was ‘[a] healthy Mediterranean with marine and coastal ecosystems that are productive and biologically diverse contributing to sustainable development for the benefit of present and future generations’.58 The three core themes of the strategy were ‘land and sea-based pollution’, ‘biodiversity and ecosystems’, and ‘land and sea interactions and processes’.59 Additionally, it included three cross-cutting themes: integrated coastal zone management; sustainable consumption and production; and climate change adaptation. These themes were applicable to all three core themes. However, it is evident from the message delivered from the meeting of the Parties to the Barcelona Convention held in Antalya in December 2021 (COP 22) that the efforts to reverse the adverse impacts of human activities on the marine environment have not been successful. Despite its celebratory tone, the 2021 Antalya Ministerial Declaration expressed deep concern for ‘the unfolding interrelated global climate, biodiversity and pollution crises and their results in the Mediterranean, in particular the current state of the marine and coastal environment of the Mediterranean region’.60 The COP 22 website describes the Mediterranean Basin as ‘reeling under the combined impacts of pollution, biodiversity loss and climate change’.61 The 2022-2027 UNEP/MAP MTS was adopted at COP 22.62 It aims for ‘achieving transformational change and in substantively progressing the implementation of the Barcelona Convention and its Protocols by the Contracting Parties, strengthening enforcement and compliance with their provisions and implementation of the ecosystem approach for achieving and maintaining Good Environmental Status (GES) and substantively progressing in achiev-

UNEP, Medium Term Strategy: 2018‑2021, May 2016 . 57 UNEP, Agenda Item 2: Consideration of UNEP Medium-Term Strategy 2022-2025 and Programme of Work 2022‑2023, UNEP Doc UNEP/SC/2020/1/2, 27 November 2020 . 58 Ibid, para. 23. 59 Ibid, para. 30. 60 UNEP, Decision IG.25/1: UNEP/MAP Medium-Term Strategy 2022-2027, UNEP Doc UNEP/ MED IG.25/27 . 61 UNEP, 22nd Meeting of the Contracting Parties to the Barcelona Convention and its Protocols: Overview, 7-10 December 2021 . 62 UNEP, Decision IG.25/1 (n 60). 56

Mapping progress and challenges for the UNEP Regional Sea Programme  159 ing the SDGs in the Mediterranean’.63 It is based on a number of assessments,64 including the First Mediterranean Assessment Report (MAR1) on ‘Climate and Environmental Change in the Mediterranean Basin – Current Situation and Risks for the Future’.65 Based on the results of these assessments, the MTS observes that ‘despite notable progress, Mediterranean countries are not on track to achieve and fully implement the agreed upon goals, including the Sustainable Development Goals (SDGs) and Ecological Objectives for Good Environmental Status of the Mediterranean Sea and Coast’.66 The 2022-2027 UNEP/MAP MTS comprises seven programmes relating, inter alia, to the reduction of pollution and marine litter, climate resilience, sustainable use of resources and the development of a circular and a blue economy, healthy ecosystems and enhanced biodiversity, governance, monitoring, informed decision-making and education and communication. Defined objectives, outcomes, targets and indicators are included for each programme.67 As in previous MTSs, the implementation of the 2022-2027 UNEP/MAP MTS is done through the two-year Programmes of Work and Budget. Funding comes from the Mediterranean Trust Fund and other external sources. The MTS recognises funding as a challenge for implementation. However, it also acknowledges the ‘good practice’ of mobilising additional funds for projects and lists a number of projects that will be important for achieving the objectives.68 In addition to the 2022-2027 UNEP/MAP MTS, the MedProgramme 2020-2024 was adopted in 2020 with a budget of 43 million US dollars funded by the GEF (Global Environmental Facility). Its objective is to reduce major environmental stresses, strengthen climate resilience and water security, and improve the health and livelihoods of coastal

Ibid, 117. Eg, UNEP/MAP, Mediterranean Quality Status Report, 2017; UNEP, SoED Report 2020 (n 2); Joint EEA-UNEP/MAP, Towards a cleaner Mediterranean: a decade of progress: Monitoring Horizon 2020 regional initiative, July 2020; MedPAN and SPA/RAC, The 2016 Status of Marine Protected Areas in the Mediterranean, 2019, updated in 2021 (and used as baseline reference for the post-2020 progress on MPAs); and numerous other thematic assessments by UNEP/MAP, IUCN, WWF, European Union (EU), and Joint Research Centre (JRC) and others. 65 UNEP/MAP, Mediterranean Experts on Climate and Environmental Change (MedECC), Climate and Environmental Change in the Mediterranean Basin: Current Situation and Risks for the Future: First Mediterranean Assessment Report, 2020 (MAR1); MedECC MAR1 – Climate and Environmental Change in the Mediterranean . 66 Barcelona Convention COP22 (n 61) 124, para. 29. 67 The targets and indicators are found in the appendices. Ibid, 160. 68 These are: GEF-UNEP, Mediterranean Sea Programme (MedProgramme): Enhancing Environmental Security, 2020-2025; EU IMAP-MPA, Towards achieving the Good Environmental Status of the Mediterranean Sea and Coast through an Ecologically Representative and Efficiently Managed and Monitored Network of Marine Protected Areas, 2019-2023; EU EcAp-MED III, Support to Efficient Implementation of the Ecosystem Approach-based Integrated Monitoring and Assessment of the Mediterranean Sea and Coasts and to delivery of data-based 2023 Quality Status Report in synergy with the EU MSFD, 2020-2023; EU Marine Litter MED II, 2020-2023, which will strengthen and support the Contracting Parties to the Barcelona Convention to prevent and effectively manage marine litter through the implementation of the Regional Plan on Marine Litter Management in the Mediterranean; EU Second Phase of the SwitchMed Project, Supporting the Transition of Mediterranean Countries to Sustainable Consumption and Production, 2019-2023. Barcelona Convention COP22 (n 61) 158, paras 135-136. 63 64

160  Research handbook on international marine environmental law populations in the Mediterranean region.69 The goals complement but do not directly overlap with the UNEP/MAP MTS. Rather, the MedProgramme 2020-2024 is fully integrated into the 2022-2027 UNEP/MAP MTS.70 The MedProgramme 2020-2024 consists of seven projects deploying more than 100 coordinated actions at regional and national levels. These seven projects are: (1) Pollution from Harmful Chemicals and Wastes in Mediterranean Hotspots and Measuring Progress to Impacts; (2) Mediterranean Pollution Hot Spots Investment Project; (3) Water Security, Climate Resilience and Habitat Protection in relation to Mediterranean Coastal Zones; (4) Managing the Water-Energy-Food and Ecosystems Nexus in relation to Mediterranean Coastal Zones; (5) Enhancing Regional Climate Change Adaptation in the Mediterranean Marine and Coastal Areas; (6) Management Support and Expansion of Marine Protected Areas in Libya; and (7) Mediterranean Sea Large Marine Ecosystem Environment and Climate Regional Support Project.71 The MedProgramme also seeks to strengthen the implementation of the ICZM Protocol and the SPAMI Protocol.72 In addition, there is the Mediterranean Strategy for Sustainable Development 2016-2025, (MSSD),73 which aims at providing an integrative approach for implementing the UN 2030 Agenda for Sustainable Development at the regional, sub-regional and national levels within the Mediterranean region. Adopted at COP 19, held in Athens in February 2016,74 the MSSD is built around the vision for a: prosperous and peaceful Mediterranean region in which people enjoy a high quality of life and where sustainable development takes place within the carrying capacity of healthy ecosystems. This is achieved through common objectives, strong involvement of all stakeholders, cooperation, solidarity, equity and participatory governance.75

The MSSD has six objectives: (1) Ensuring sustainable development in marine and coastal areas; (2) Promoting resource management, food production and food security through sustainable forms of rural development; (3) Planning and managing sustainable Mediterranean cities; (4) Addressing climate change as a priority issue for the Mediterranean; (5) Transition towards a green and blue economy; and (6) Improving governance in support of sustainable development.76 Lastly, in relation to the development of the post-2020 Global Biodiversity Framework (GBF) under the Convention for Biological Diversity, a recent report assessed the importance and advantages of integrating ocean-related elements of the GBF into RSCAPs.77 On the

 UNEP/MAP, ‘The MedProgramme: a new push to depollute the Mediterranean Sea and coast and underpin ecosystem integrity’ (Press Release, 24 June 2020) . 70 Ibid. 71 Ibid. 72 Ibid. 73 UNEP, Decision IG.22/2: Mediterranean Strategy for Sustainable Development 2016-2025, UNEP Doc UNEP(DEPI)/MED IG.22/28. 74 Ibid. 75 Ibid. 76 Ibid. 77 David E Johnson, Maria Adelaide Ferreira and Christopher Barrio Froján, Regional Seas Biodiversity under the post-2020 Global Biodiversity Framework (UNEP Regional Seas Working Paper, 69

Mapping progress and challenges for the UNEP Regional Sea Programme  161 positive side, the report noted that the RSPs have ‘governance mechanisms in place, regional convening power, extensive expert networks, and an established track record of environmental protection’.78 At the same time, the report observes variance among the RCSAPs in commitments to the GBF, where some have been active and others not. The report specifically mentions the connections between the European Union Marine Strategy Framework Directive (MSFD) requirement to achieve Good Environmental Status in Europe and the Barcelona Convention Contracting Parties’ decision to achieve Good Environmental Status in the Mediterranean, as will be discussed below.79 Moreover, specific reference is also made to incorporation of Global Biodiversity Framework (GBF) in the 2022-2027 UNEP/MAP MTS.80 As the above demonstrates, there is certainly no lack of ambition or activities for the UNEP/ MAP Barcelona Convention System, implemented through a series of strategies with respective objectives and activities. However, despite these efforts, the marine environment of the Mediterranean still remains at risk, as recognised in the assessment reports and by official declarations, thereby demonstrating the immense challenge of reversing decades of environmental harm.

4.

THE MEDITERRANEAN SEA AND MARINE PROTECTED AREAS

Marine protected areas provide an important tool in protecting and conserving global ocean ecosystems.81 Studies have shown that in the Mediterranean Sea, well-enforced and well-managed MPAs double the biomass of fish in comparison to unprotected marine areas.82 As noted earlier, the UNEP/MAP includes the innovative SPAMI Protocol.83 The Protocol provides for the establishment of a List of Specially Protected Areas of Mediterranean Interest (the SPAMI List).84 According to the 2020 SPAMI report, a total of 39 sites have been included in the SPAMI List, including one ‘high seas’ area, the Pelagos Sanctuary between France, Monaco and Italy.85 The high seas lie beyond the national jurisdiction of coastal States and, thus, beyond their legal competence to prescribe rules and enforce them. However, within the regional context, through collective agreement, States can adopt and enforce rules and regulations for protection of the marine environment with respect to the parties to such agreements.

February 2021) . 78 Ibid, 4. 79 Ibid, 6. 80 Ibid, 53, Box 4.1. 81 Dan Laffoley and others, ‘Marine Protected Areas’, in Charles Sheppard (ed), World Seas: An Environmental Evaluation (2nd ed, Academic Press 2019) 549. 82 WWF, Towards 2020 (n 4) 7. 83 SPAMI Protocol (n 30). 84 Ibid. 85 UNEP/MAP-SPA/RAC, SPAMIs in the Mediterranean, January 2020 . The only high seas SPAMI is the Pelagos Sanctuary for Mediterranean Marine Mammals which was established on 25 November 1999 between France, Italy and the Principality of Monaco. See also, Scovazzi, ‘The Mediterranean Marine Mammals Sanctuary’ (n 32).

162  Research handbook on international marine environmental law The Pelagos Sanctuary is one of the early examples of such cooperative efforts, showing again the innovative approach under the UNEP/MAP. However, to date there has been no creation of additional joint SPAMIs. This may be attributed, in part, to the fact that areas of high seas in the Mediterranean Sea currently exist only because of challenges in delimitation of overlapping maritime zones that have yet to be agreed upon by the coastal States.86 Once all coastal States have established their maritime zones, there will no longer be areas of high seas in the Mediterranean. Joint action may then no longer be necessary or appropriate. One important institutional creation of the SPAMI Protocol is the Regional Activity Centre for Specially Protected Areas (RAC/SPA), headquartered in Tunis. The RAC/SPA actively promotes and works with the Mediterranean countries and stakeholders to promote the implementation of the SPAMI Protocol and provides assistance in identifying, establishing and managing MPAs. Together with the Mediterranean Marine Protected Areas Network (MedPAN),87 the RAC/SPA has been working to reach the international objectives set out in Aichi Target 1188 and the SDG 14, to achieve effective management in all the existing MPAs in the Mediterranean, and to ensure that the current network is representative of the Mediterranean’s marine biodiversity.89 The RAC/SPA and MedPAN developed a ‘Roadmap: Towards a comprehensive, ecologically representative, effectively connected and efficiently managed network of Mediterranean Marine Protected Areas by 2020’,90 which was adopted in 2016 at the Barcelona Convention COP19.91 The Roadmap lays out four objectives relating to the strengthening and improving of networks of Mediterranean MPAs both within and beyond national jurisdiction and their management, promoting the sharing of their environmental and socio-economic benefits, and ensuring their financial sustainability.92 In addition, the Roadmap provides for suggested actions for each of the objectives to be taken by the Contracting Parties and regional and international organisations. Despite this Roadmap, however, at the time of writing, the Mediterranean coastal States have collectively barely met the target to designate at least 10 percent of the coastal and marine areas (9.68 percent) under Aichi Target 11.93 Individually, only 15 out of the 21 States have met the quantitative 10 percent goal for MPA coverage called for in Aichi Target 11.94 However,

86 Irini Papanicolopulu, ‘The Mediterranean Sea’ in Donald Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 604. 87 MedPAN is a network of 100 organisations that either have direct management of MPAs or are involved in the development and management of MPAs in the Mediterranean. See ‘MedPAN’ . 88 CBD, ‘2020 Aichi Biodiversity Targets’ (2010) . 89 Meola and Webster (n 11). 90 UNEP/MAP, Roadmap for a comprehensive coherent network of well-managed MPAs to achieve Aichi Target 11 in the Mediterranean,  2017 . 91 UNEP, Decision IG.22/13: Roadmap for a Comprehensive Coherent Network of Well-Managed Marine Protected Areas (MPAs) to Achieve Aichi Target 11 in the Mediterranean, UNEP Doc UNEP(DEPI)/MED IG.22/28, February 2016. 92 Ibid. 93 See (n 4). According to the 2016 study conducted by RAC/SPA and MedPan, there was a total MPA coverage of 6.81 percent of the Mediterranean and a total number of 1215 MPAs (all designations combined). Meola and Webster (n 11). 94 WWF, Towards 2020 (n 4) 25.

Mapping progress and challenges for the UNEP Regional Sea Programme  163 the target also requires that these MPAs be ‘effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures’. In this regard, it is clear that more effort is required. According to the 2019 World Wildlife Fund (WWF) report, there is also an imbalance in the geographic representativeness with most of the MPAs located in the north, raising clear questions on the notion of ‘connectivity’.95 Moreover, with only 2.48 percent of the Mediterranean Sea MPAs having management plans, and of these, only 1.27 percent being effectively implemented, there is still much progress that needs to be achieved in the Mediterranean Sea.96 Addressing this will require concerted efforts to strengthen political will across all geographic areas. On this issue, WWF makes clear both the lack of political will with a lack of engagement by decision-makers, as well as the existence of strong lobbying and economic interests against MPAs.97 In addition, the implementation and enforcement of MPAs face significant practical challenges such as insufficient funding. For example, in assessing MPA management and effective protection status, a questionnaire was sent to 180 entities that possess the legal authority to formulate, enact, and apply regulations to an MPA. The responses reveal the very practical challenges facing MPA management. For example, of the 80 answers received from 18 States, only 64 reported that the boundaries and zoning of their MPA were ‘clearly defined’ or ‘partially with a need for clarification’; only 61 replied that the associated uses and regulations were either clearly or partially defined in the legislation; three reported that there was no management of the site; 31 reported either not having a management plan or not implementing it.98 Other challenges include the need for more permanent staff and insufficient funding for proper management.99 The report further made recommendations for national decision-makers, institutional frameworks, MPA managers, scientists and researchers, the business sector and NGOs. Coupled with the responses from MPA management entities, it is clear that much work lies ahead in fulfilling the promise of establishing representative, ecologically coherent and well-managed MPAs covering the full 10 percent of the Mediterranean Sea. Indeed, with growing calls for attaining protection of 30 percent,100 the challenges will only increase. In 2021 the UNEP/MAP COP 22 adopted an ambitious decision as part of the ‘Post-2020 Regional Strategy For Marine and Coastal Protected Areas and other Effective Area Based Conservation Measures in the Mediterranean’, aiming to have ‘by 2030 at least 30 percent of the Mediterranean Sea [is] protected and conserved through well connected, ecologically representative and effective systems of marine and coastal protected areas and other effective area-based conservation measures, ensuring adequate geographical balance, with the focus on areas particularly important for biodiversity’.101

97 98 99

Ibid, 14. Ibid, 19 Ibid, 25. Meola and Webster (n 11) 107-116. Ibid, 111. 100 IUCN, ‘First Draft of the Post-2020 Global Biodiversity Framework’ (2021) IUCN’s Key Messages Position Paper . 101 UNEP, Decision IG.25/12: Protecting and conserving the Mediterranean through well connected and effective systems of marine and coastal protected areas and other effective area-based conservation measures, including Specially Protected Areas and Specially Protected Areas of Mediterranean 95 96

164  Research handbook on international marine environmental law The pressing question is how the UNEP/MAP will achieve success that is far more ambitious than the Post-2020 GBF when it was unable to fully achieve the more modest Aichi Target 11.

5.

MARINE LITTER AND PLASTIC POLLUTION IN THE MEDITERRANEAN SEA

Another new challenge confronting the Mediterranean Sea is plastic pollution. While plastic pollution is a global issue, marine litter is a particularly critical issue in the Mediterranean. More than 730 tonnes of plastic are entering the Mediterranean Sea every day.102 Plastics are the prevailing type of marine litter, accounting for up to 95 to 100 percent of total floating marine litter and more than 50 percent of seabed marine litter. This is partly due to the fact that the Mediterranean Sea is a closed basin, with a coastal population of about 210 million inhabitants. Moreover, Mediterranean countries are the number one tourist destination in the world, with around 360 million visitors every year. In addition, the Mediterranean Sea receives waste from coastal zones, as well as from many large rivers flowing through largely urbanised cities. The problem of marine litter is further compounded by the fact that more than 20 percent of global maritime traffic passes through the Mediterranean Sea.103 Indeed, the Mediterranean Sea has become one of the most marine litter-affected areas in the world.104 The 2020 UNEP/MAP State of the Environment and Development in the Mediterranean (SoED) Report found that the total amount of municipal solid waste produced in Mediterranean countries in 2016 was around 183 million tonnes, ie an estimated one kilogram per capita per day on average.105 Despite showing encouraging signs of improvement, the solid waste management capacity of Mediterranean countries remains inadequate to cope with the ever-growing volume of waste being generated. For the entire Mediterranean basin, it is predicted that the amount of plastic dumped may rise by a factor of more than two before 2025 if there are no management measures.106 The SoED Report associates the root causes of marine litter with unsustainable consumption and production patterns, coupled with deficiencies in water management.107 Historically, global plastic production increased from two million tonnes in 1950 to 380 million tonnes in 2015, ie an annual growth rate of 8.4 percent,108 and is projected to continue to grow rapidly.109 Importance, UNEP Doc UNEP/MED IG.25/27 . 102 Ibid, 137; UNEP/MAP, Marine Litter Assessment in the Mediterranean (UNEP/MAP 2015) . 103 UNEP/MAP, SoED Report 2020 (n 2) 137–138. 104 UNEP/MAP, Marine Litter Assessment in the Mediterranean (n 102). 105 UNEP/MAP, SoED Report 2020 (n 2). 106 Francois Galgani and Tatjana Hema, ‘Marine Litter in the Mediterranean Sea’ (Sixth International Marine  Debris  Conference,  12‑18  March  2018) . 107 UNEP/MAP, SoED Report 2020 (n 2) 137. 108 Roland Geyer, Jenna R Jambeck and Kara Lavender, ‘Production, Use, and Fate of All Plastics Ever Made’ (2017) 3(7) Science Advance 1. 109 WWF, ‘Stop the Flood of Plastic: How Mediterranean Countries Can Save Their Sea’ (WWF, June 2019) .

Mapping progress and challenges for the UNEP Regional Sea Programme  165 The EU is responsible for 18 percent of this production110 and around 40 percent of plastic demand is for packaging.111 In 2013, the Contracting Parties to the Barcelona Convention adopted the Regional Plan on Marine Litter Management in the Mediterranean in the Framework of Article 15 of the Land Based Sources Protocol (RPML).112 This is the first and only legally-binding instrument to address marine litter among the 18 RSPs. Additionally, with the support of the UNEP/ MAP Barcelona Convention System, prevention measures have been adopted in the majority of Mediterranean countries at the national level in furtherance of the RPML.113 The RPML provides a potential model for best practice for the other RSPs. It builds upon key principles that guide the Contracting Parties in its implementation. These principles, as listed in Article 4, include the integration principle by virtue of which marine litter management shall be an integral part of solid waste management and other relevant strategies. Also included are the prevention principle, the precautionary principle, the polluter pays principle, as well as the ecosystem-based approach, the principles of public participation and stakeholder involvement and the principles of sustainable consumption and production. Importantly, Article 5 of the RPML imposes clear obligations for the prevention of marine litter underscored by the imperative language in the chapeau that Contracting Parties shall undertake specific actions with clear targets. For example, in relation to land-based sources of pollution: [b]y the year 2025 at latest, [contracting parties are] to base urban solid waste management on reduction at source, applying the following waste hierarchy as a priority order in waste prevention and management legislation and policy: prevention, preparing for re-use, recycling, other recovery, e.g. energy recovery and environmentally sound disposal.114

In addition, ‘[b]y the year 2019 [contracting parties are to] implement adequate waste reducing/reusing/recycling measures in order to reduce the fraction of plastic packaging waste that goes to landfill or incineration without energy recovery’.115 Article 10 requires the Contracting Parties: where it is environmentally sound and cost effective to remove existing accumulated litter, subject to Environmental Impact Assessment procedure, in particular from specially protected areas and

Ricardo Barra and Sunday A Leonard, Plastics and the Circular Economy (STAP Document, June 2018) . 111 Plastic Europe, Plastics - The Facts 2018: An Analysis of European Plastics Production, Demand and Waste Data  (PlasticsEurope 2018)  . 112 See, UNEP, Decision IG.21/7 (n 47); UNEP/MAP, ‘Regional Plan for the Marine Litter Management in the Mediterranean’ UNEP Doc UNEP (DEPI)/MED WG. 379/5, 28 May 2013 . 113 Marine Markovic and Tatjana Hema, Action Plan on Implementing the PoM and the NAPs by integrating regional and EU MSFD Requirements, ActionMed 11.0661/2015/712631/SUB/ENVC.2 (UNEP/ MAP,  December  2016) . 114 UNEP Doc UNEP (DEPI)/MED WG. 379/5 (n 112) Art. 9(1). 115 Ibid, Art. 9(2). 110

166  Research handbook on international marine environmental law Specially Protected Areas of Mediterranean Importance (SPAMI) and litter impacting endangered species listed in Annexes II and III of the SPA and Biodiversity Protocol.116

Admittedly, other provisions qualify the obligations with language such as ‘to the extent possible’ or simply require the Parties to ‘explore’. For example, Article 10 requires Contracting Parties to undertake to ‘explore’, among other things, the identification of accumulations/hotspots of marine litter and the implementation of potential national programmes on their regular removal and sound disposal and the adoption of cost recovery programmes for the use of port reception facilities. Nevertheless, the RPML sets out a clear plan of action and promotes the shift to sustainable consumption and production patterns, removal of existing marine litter using environmentally sound practices such as fishing for litter, clean up campaigns, port reception facilities, monitoring, assessment and reporting on implementation of measures as well as enforcement of national legislation. The RPML also specifically promotes cooperation with businesses such as through the development of voluntary agreements with retailers and supermarkets to establish targets for the reduction of plastic bag consumption and/or the establishment of plastic bag taxes. Regarding monitoring and assessment,117 the UNEP/MAP has been instrumental in supporting a regionally coordinated approach with regards to the environmental status of the Mediterranean Sea. In 2014, COP 19 adopted the Integrated Monitoring and Assessment Programme (IMAP), which contains 11 Ecological Objectives and related targets covering pollution and marine litter, biodiversity, non-indigenous species, coastal ecosystems and hydrography.118 Most recently, the Naples Declaration, adopted at COP 21 in 2019, sets out ambitious commitments made by the Mediterranean States and the EU to prevent and significantly reduce plastic leakage into the Mediterranean Sea, including measures to boost the Green Economy and circular approaches, and to ‘achieve 100 percent plastic waste collection and recycling by 2025’.119

6.

CLIMATE CHANGE

Similar to other parts of the world, climate change and its effects on the marine environment present another issue of critical concern in the Mediterranean Sea region. The Mediterranean Basin is one of the most vulnerable and prominent hotspots of climate change.120 The region is warming 20 percent faster than the global average,121 and its average temperature is approxi-

Ibid, Art. 10. Ibid, Arts 11, 12. 118 UNEP, Decision IG.22/7: Integrated Monitoring and Assessment Programme of the Mediterranean Sea and Coast and Related Assessment Criteria, UNEP Doc UNEP(DEPI)/MED IG.22/28. 119  UNEP, Naples Ministerial Declaration, UNEP Doc UNEP/MED IG.22/22, paras 4‑5 . 120 Go-Un Kim, Kyong-Hwan Seo and Deliang Chen, ‘Climate Change over the Mediterranean and Current Destruction of Marine Ecosystem’ [2019] Scientific Reports 9, 18813. 121 MedECC, Risks Associated to Climate and Environmental Changes in the Mediterranean Region: A preliminary assessment by the MedECC Network Science-policy interface (2019)  (MedECC, Risks Associated to Climate and Environmental Changes). 116 117

Mapping progress and challenges for the UNEP Regional Sea Programme  167 mately 1.5°C higher than the global average.122 Under current policies and without additional mitigation, regional temperature increase is expected to be 2.2°C by 2040.123 The waters of the Mediterranean are also warming.124 Consequently, the region is expected to suffer significantly from the adverse impacts of climate change on the terrestrial, coastal and marine environment. Precipitation is expected to decrease by between 10 to 30 percent, while there has already been an increase in the magnitude and frequency of climate-induced extreme events such as floods, fires, heat waves and droughts. Sea level is expected to rise at approximately 3cm per decade, resulting in a projected rise of between 52 to 190cm by 2100. Moreover, ocean acidification is a threat to the marine life and ecosystems in the Mediterranean Sea.125 The results of scientific studies consistently underscore the need for special attention to protect the marine ecosystems of the Mediterranean region against climate change. Climate change became a focus theme for the UNEP/MAP as reflected in the 2008 ICZM Protocol, the 2016-2021 MTS, the 2022-2027 MTS and the 2016-2025 MSSD. In addition, at the UNEP/MAP COP 19, the Parties adopted the Regional Climate Change Adaptation Framework for the Mediterranean Marine and Coastal Areas,126 which seeks to increase the region’s resilience to the adverse impacts of climate variability and change by 2025, in the context of sustainable development. The first ever climate and environment assessment conducted by MAR1127 has clearly placed climate change at the centre of the 2022-2027 MTS. Within the legal framework of the UNEP/MAP, the 2008 ICZM Protocol is the only legally binding instrument to expressly take into account the impacts of climate change on coastal areas.128 It makes specific reference to Article 4(e) of the UNFCCC on commitments by Parties to, inter alia, ‘cooperate in preparing for adaptation to the impacts of climate change; develop and elaborate appropriate and integrated plans for coastal zone management’.129 This commitment is reflected in Article 1 of the ICZM Protocol according to which Parties are obligated to create ‘a common framework for the integrated management of the Mediterranean coastal zone’. Article 5 specifically addresses climate change because one of its objectives is to ‘prevent and/or reduce the effects of natural hazards and in particular of climate change, which can be induced by natural or human activities’.130 On this point, the overall UNEP/MAP promotes the restoration of seagrass and mangroves as part of coastal ecosystems.131

Ibid; UNEP/MAP, ‘SoED Report 2020 (n 2). UNEP/MAP, SoED Report 2020 (n 2), 2.2.1.1. 124 MAR1 (n 65) para. 2.1.9. 125 MedECC, Risks Associated to Climate and Environmental Changes (n 121); Kim, Seo and Chen (n 120). 126 UNEP/MAP, Decision IG.22/6: Regional Climate Change Adaptation: Framework for the Mediterranean Marine and Coastal Areas, UNEP Doc UNEP(DEPI)MED IG.22/8 (UNEP/MAP). 127 MAR1 (n 65). 128 ICZM Protocol (n 36). 129 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 130 Ibid. 131 UNEP, Out of the Blue: The Value of Seagrasses to the Environment and to People (UNEP/ GRID-Arendal/UNEP-WCMC 2020) ; UNEP, ‘Why protecting & restoring blue carbon ecosystems matters’, . 122 123

168  Research handbook on international marine environmental law The importance of seagrass for the Mediterranean Sea is highlighted in MAR1: ‘Seagrass meadows in the Mediterranean Sea cover 1.35 to 5 million hectares, between 5 and 17% of the worldwide seagrass habitat. The current loss rate of seagrass is approx. 5% in the Mediterranean’.132 The restoration of seagrass in the Mediterranean Sea represents an ecosystem-based approach, which comes directly within the scope of the ICZM Protocol. Although it does not mention the ICZM Protocol, MAR1 promotes integrated approaches that involve ecosystem-based management of coastal areas as part of the adaptation process for the Mediterranean.133 As discussed in Section 2 above, the ecosystem-based approach is core to the ICZM Protocol. Ecosystem-based adaptation methods provide both mitigation and adaptation benefits by providing natural carbon sequestration and coastal protection against sea level rise, and by overall resilience building of coastal and marine ecosystems.134 However, an important limitation on the effectiveness of the ICZM Protocol is that only 12 of the 22 Parties to the Barcelona Convention have acceded to it, thereby limiting its ability to create ‘a common framework for the integrated management of the Mediterranean coastal zone’, a core objective under Article 1. Concerted and coordinated efforts are essential to addressing the adverse impacts of climate change on the Mediterranean through ecosystem-based approaches, notably restoring and preserving seagrass and other nature-based solutions. Another limitation of the ICZM Protocol in addressing the broader challenges of climate change, such as warming and acidification, is its narrow focus on coastal area management. It is clear that there is no single solution to addressing the adverse impacts of climate change on the marine environment and that no single thematic legal instrument will suffice to address a complex region such as the Mediterranean Sea. Finally, as mentioned above, in 2016 the UNEP/MAP adopted the Regional Climate Change Adaptation Framework for the Mediterranean Marine and Coastal Areas (Adaptation Framework).135 The Adaptation Framework is built around four strategic objectives relating, inter alia, to: increasing awareness and stakeholder engagement; developing best practices for effective and sustainable adaptation to climate change impacts; access to existing and emerging international and domestic finance mechanisms; and improving decision-making through research and scientific cooperation producing and utilising reliable data, information and tools.136 As the foregoing discussion illustrates, the UNEP/MAP has undertaken a multi-prong approach to climate change. The foundation is thus well established; the proof will be in its implementation.

MAR1 (n 65) para. 4.2.1.3. Ibid, para. 4.2.3. 134 UNEP, Out of the Blue (n 131); UNEP, ‘Why protecting & restoring blue carbon ecosystems matters’ . 135 UNEP/MAP, Decision IG.22/6 (n 126). 136 Ibid, 15. 132 133

Mapping progress and challenges for the UNEP Regional Sea Programme  169

7.

THE MEDITERRANEAN SEA AND THE EUROPEAN UNION

There is an important connection between the EU and the UNEP/MAP Barcelona Convention System, in that the EU and the EU Member States Italy, France, Spain, Malta, Greece and Croatia are parties to the Barcelona Convention and its protocols. This gives the EU a direct link and responsibility to implement the decisions and policies of the Mediterranean Sea RSP. The close relationship between the EU and the UNEP/MAP was noted in the 2022-2027 UNEP/MAP MTS which observes that the ‘MAP system cooperates closely with the EU institutions (in particular the European Commission and EEA), especially since the EU is a Contracting Party’.137 The 2022-2027 UNEP/MAP MTS describes the EU Marine Strategy Framework Directive and its implementation framework as being ‘extremely important’ for the implementation of the UNEP/MAP Ecosystem Approach Roadmap138 and its IMAP.139 Over the years, the EU has developed a robust framework for protection of the marine environment. The Marine Strategy Framework Directive (MSFD)140 is the core legislation addressing protection of the marine environment and natural resources for the sustainable use of marine waters of oceans and seas around the EU so as to achieve ‘good environmental status in the marine environment’ by 2020.141 Under the MSFD, the ecosystem-based approach is a legally binding principle applicable to all EU seas, including the Mediterranean, to the extent of EU jurisdiction.142 In Article 4, the MSFD also highlights the important ties to other regional seas, including the Mediterranean Sea. In relation to cooperation with regional seas, the MSFD provides that ‘Member States shall, where practical and appropriate, use existing regional institutional cooperation structures, including those under Regional Sea Conventions, covering that marine region or subregion’ and coordinate their actions with third States.143 Taken together, there is a close link between EU legislation and actions and the Mediterranean RSP. In 2008, the Conference of the Parties of the Barcelona Convention also adopted the ecosystem-based approach to achieve good environmental status in the Mediterranean Sea.144 This was followed in 2009 with the adoption of a roadmap for the implementation of the ecosystem-based approach with objectives, indicators and a timetable for implementation.145

UNEP, Decision IG.25/1 (n 60) 157, para. 132. UNEP, ‘Ecosystem Approach Roadmap’ . 139 UNEP, Decision IG.25/1 (n 60) 122, para. 23. 140 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) [2008] OJ L 164/19 (MSFD). 141 Ibid, Art. 1(1). The MSFD is implemented in 6-year cycles. 142 Ibid, Art. 1(3). 143 Ibid, Art. 6. 144 UNEP, Decision IG.17/6: Implementation of the ecosystem approach to the management of human activities that may affect the Mediterranean marine and coastal environment, UNEP Doc UNEP(DEPI)/ MED IG.17/10, 18 January 2008; UNEP, Decision IG.21/3 on the Ecosystems Approach including adopting definitions of Good Environmental Status (GES) and targets, UNEP Doc UNEP(DEPI)/MED IG.21/9, Annex II – Thematic Decisions (UNEP, Decision IG.21/3). 145 UNEP, Decision IG.20/4: Implementing MAP ecosystem approach roadmap: Mediterranean Ecological and Operational Objectives, Indicators and Timetable for implementing the ecosystem approach roadmap, UNEP Doc UNEP(DEPI)/MED IG 20/8, Annex II; UNEP, Decision IG.21/3 (n 144). 137 138

170  Research handbook on international marine environmental law The process adopted under the UNEP/MAP is not, however, an implementation of the MSFD. While both share the same objective of achieving good environmental status, the MSFD imposes specific obligations on Member States, such as preparing marine strategies, conducting initial assessments of their respective marine waters,146 and identifying measures to be taken to achieve good environmental status.147 In contrast, the UNEP/MAP operates collectively by taking the Contracting Parties’ adopted decisions, such as in developing a seven-step process towards a more effective ecosystem-based management that includes six ecological objectives for implementation of the ecosystem-based approach.148 The 2020 report by the European Commission on the first implementation cycle of the MSFD highlighted the importance of the relationship with the UNEP RSPs by stating that the regional sea conventions generally became, in most cases during the last decade, ‘good platforms for implementing the MSFD where contracting parties collaborated and shared approaches, in close collaboration with the MSFD common implementation strategies’ including adoption of the ecosystem-based approach.149

8.

FINAL COMMENTS

The UNEP RSP for the Mediterranean Sea stands out for many reasons. It was the first of the RSPs to be established and has developed a robust legal framework for marine environment protection since its adoption in 1974. This legal framework has evolved to incorporate legal developments embodied in the 1992 Rio Declaration. The Contracting Parties to the Barcelona Convention have adopted innovative protocols and approaches. The SPAMI Protocol allows for the establishment of joint specially protected marine areas between Member States, including in areas beyond national jurisdiction. The UNEP/MAP was also the first RSP to adopt a protocol for integrated coastal zone management with a detailed roadmap for the application of ecosystem-based management, the first to establish a compliance mechanism, and is the only UNEP RSP, to date, to have adopted a binding instrument to address the marine plastic and litter problem. In assessing the overall framework of the UNEP/MAP with its multiple legal instruments, strategies and programmes, including the recent SoED and MAR1 reports, threats to the marine environment from traditional and newer sources, such as marine litter and plastics, remain to be abated. While the SPAMI Protocol provides an excellent legal framework for establishing MPAs, including in cooperation with other Parties, the Member States of the UNEP/MAP have barely achieved the quantitative target of Aichi Target 11 for conservation of at least 10 percent of coastal and marine areas, and are woefully below the qualitative requirements for effectively and equitably managed, ecologically representative and well-connected systems of protected areas. The ICZM Protocol is a key instrument for providing a regional integrated approach to coastal management based on the ecosystem approach, and the only instrument to

MSFD (n 140) Art. 8. Ibid, Art. 13. 148 SPA/RAC, ‘The Ecosystem Approach (EcAp)’ . 149 Report from the Commission to the European Parliament and the Council on the Implementation of the Marine Strategy Framework Directive (Directive 2008/56/EC), EC Doc COM(2020) 259 final, 25 June 2020, para. 2.5. 146 147

Mapping progress and challenges for the UNEP Regional Sea Programme  171 make express reference to addressing climate change, but it has not yet garnered the ratification of all Member States. The ICZM Protocol alone is inadequate in responding to all the negative impacts of climate change, such as ocean warming and acidification. The threat of the adverse impacts of climate change requires additional measures and actions. The 2022-2027 UNEP/ MAP MTS is an important step in this direction because it holistically addresses climate change together with biodiversity and pollution. In addition, its adoption by all Member States, which ensures a comprehensive regional implementation, could compensate for the lack of full participation under the ICZM Protocol. Moreover, the strategic directions play an important role in linking regional actions to global commitments. The UNEP/MAP Barcelona Convention System demonstrates the challenges of addressing the multiple threats to the marine environment, despite the existence of a robust legal framework. Without rigorous implementation by all Contracting Parties, achieving good environmental status remains elusive. The Mediterranean Sea is a crowded region with 21 heavily populated countries engaged in multiple activities placing daily pressures on the environment. The development of such a robust legal framework, that keeps up with new and emerging issues such as marine plastic litter and climate change, reflects a well-functioning and proactive system of cooperation, that meets annually through the COPs. Nevertheless, there is still a need for greater political will to implement commitments, and, where necessary, additional support for capacity building and financial support.

8. The Indian Ocean region and marine environmental law Erika Techera

1. INTRODUCTION The Indian Ocean encompasses almost 30 percent of global ocean areas.1 It is particularly rich in marine biodiversity, which supports national economies, livelihoods and communities. Geographically, the region includes large continental countries and small island States, extending from the tropics to the sub-Antarctic area. The Indian Ocean plays a critical role in maritime trade through shipping and transport, and the marine environment supports an array of other maritime activities including fishing, tourism, mining and energy production.2 Despite, or perhaps because of, the dependence on the ocean and its resources, the Indian Ocean marine environment is under threat as fishing, shipping and coastal communities place pressure on species and environments. Climate change will also increasingly affect the ocean and the human communities that depend upon it. Indian Ocean States have increasing populations and are seeking to grow their economies, which is likely to place further pressure on the marine environment. Against this backdrop, this chapter explores and analyses marine environmental governance in the Indian Ocean region, with a view to contributing to the legal literature on this region, particularly with respect to harmonising laws across the region and building legal capacity. The chapter commences by explaining the key biodiversity, geographic, economic and legal features of the region, as well as marine environmental challenges. Thereafter, international and regional marine environmental law is examined to identify gaps and challenges across the areas of marine pollution, biodiversity conservation, fisheries regulation and climate change. The chapter concludes with some suggestion for future-focused strategies to better protect the marine environment.

2.

INDIAN OCEAN CONTEXT

The Indian Ocean marine environment is rich in marine living resources, evidenced by nine significant marine ecoregions,3 79 Ecologically and Biologically Diverse Marine Areas

Mohideen Wafar and others, ‘State of Knowledge of Coastal and Marine Biodiversity of Indian Ocean countries’ (2011) 6(1) PLoS one e14613. 2 Ibid. 3 Mark D Spalding and others, ‘Marine Ecoregions of the World: A Bioregionalization of Coastal and Shelf Areas’ (2007) 57(7) BioScience 573. 1

172

The Indian Ocean region and marine environmental law  173 (EBSAs),4 nine large marine ecosystems (LMEs)5 and four marine biodiversity hotspots.6 The western Indian Ocean is particularly rich in marine and coastal biodiversity, second only to the Pacific Coral Triangle.7 This biological diversity also includes 30 percent of global coral reef cover, and 40,000km2 of mangroves,8 with Indonesia alone accounting for 19 percent of global mangrove forests.9 Although much is known about the marine biodiversity in the region, there are gaps in knowledge, with some species and areas, such as benthic biodiversity and sea mounts, remaining under-researched.10 The region is landlocked to the north, and this creates a unique pattern of wind circulation that reverses direction twice a year, helping to support biological productivity, and, in turn, human communities and economies.11 Another noteworthy feature is the difference in rainfall between the west Indian Ocean (with the Arabian coast averaging less than 100mm per year) and the east (exceeding an average of 3,000mm per year).12 Regional productivity from the ocean includes 16 percent of global capture fisheries including 20 percent of the world’s tuna.13 Fish and other marine living resources are a vital source of food for many coastal communities; artisanal fishing provides valuable livelihoods, and the fisheries sector more broadly contributes crucially to national economies.14 In addition, marine-based tourism, involving 4 EBSAs are an initiative of the CBD which are based on seven scientific criteria – uniqueness or rarity, special importance for 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 and naturalness: CBD, ‘Background on the EBSA Process’ . 5 LMEs encompass coastal areas to the outer continental shelves where primary productivity is greater than in the open ocean: Kenneth Sherman and Gotthilf Hempel (eds), The UNEP Large Marine Ecosystem Report: A Perspective on Changing Conditions in LMEs of the World’s Regional Seas (UNEP 2008). The nine LMEs in the Indian Ocean are Agulhas Current, Somali Current, Red Sea, Arabian Sea, Bay of Bengal, Gulf of Thailand, West Central Australian Shelf, Northwest Australian Shelf and Southwest Australian Shelf. The Bay of Bengal is one of the largest in the world and home to significant areas of mangroves, seagrass and coral reefs. 6 Callum M Roberts and others, ‘Marine Biodiversity Hotspots and Conservation: Priorities for Tropical Reefs’ (2002) 295 Science 1280. Hotspots are areas of high endemism also facing significant threats: ibid. 7 Alison Clausen, ‘Protecting the Western Indian Ocean’s Fantastic Biodiversity’ (Wildlife Conservation Society United Nations Ocean Conference Blog, 10 June 2017) . 8 Wafar and others (n 1). 9 Global Mangrove Alliance, ‘FAO Reviews 30 Years of Global Forest Data’ . 10 Abiju Kumar, ‘The Biodiversity of Indian Ocean Benthos and Taxonomic Impediment: The Way Forward’ in Compendium on Advances in Benthic Studies (Cochin University of Science and Technology 2019) . 11 Wafar and others (n 1). 12 Ibid. 13 Anthony Bergin, ‘Australia’s Approach to Indian Ocean Fisheries: Towards Closer Regional Engagement’ (2018) 14(1) Journal of the Indian Ocean Region 100, 100-113. 14 SK Mohanty and others, Prospects of Blue Economy in the Indian Ocean (Research and Information System for Developing Countries (RIS) 2015) 4; Rudy van der Elst, ‘Fish, Fishers and Fisheries of the Western Indian Ocean: Their Diversity and Status: A Preliminary Assessment’ (2005) 363(1826) Philosophical Transactions: Mathematical, Physical and Engineering Sciences 263, 281-282.

174  Research handbook on international marine environmental law activities in the coastal zone, including activities involving marine species interactions, makes up a significant percentage of national gross domestic product in the region.15 Furthermore, the Indian Ocean hosts a quarter of the world’s most significant ports, carrying 25–30 percent of global shipping.16 The Port of Singapore, for example, is the second largest global port by volume;17 other significant ports include Jebel Ali (Dubai, United Arab Emirates), Salalah (Oman), Mumbai (India) and Colombo (Sri Lanka).18 The extent of marine-based activities has placed pressure on the ocean and its resources, and high coastal populations have led to degradation of coastal habitats and impacts on marine biodiversity, including through land-based marine pollution from sewerage and industrial waste.19 Marine debris is a known problem both in the open ocean20 and when it is deposited on Indian Ocean beaches.21 Plastic debris, largely emanating from south Asian river systems, has formed a ‘leaky garbage patch’ in the southern Indian Ocean.22 A recent study has demonstrated that Aldabra, a remote island in the Seychelles, has one of the largest accumulations of plastic on any island in the world.23 This marine debris comprises discarded fishing nets, buoys and ropes, as well as plastics, including shoes and bottles. In addition, the northern Indian Ocean already has considerable oil pollution problems from coastal and marine activities,24 and a study in South Africa indicates similar effects of shipping and industrial activities.25 The 2021 disaster in Sri Lanka, where toxic chemicals and plastic pellets were lost from a Singaporean registered Significant numbers of local people are employed in the small-scale fisheries sector, in some countries; in other countries, the sector is smaller, but fish consumption is very high: See Narriman S Jiddawi and Marcus C Öhman, ‘Marine Fisheries in Tanzania’ (2002) 31(7/8) Ambio 518, 518-527; Vyddiyaratnam Pathmanandakumar, ‘The Effectiveness of Co-management Practices: The Case of Small-scale Fisheries in Sri Lanka’ (2017) 8(9) Journal of Aquatic Resource Development 35; Julian Clifton and others, ‘Marine Conservation Policy in Seychelles: Current Constraints and Prospects for Improvement’ (2012) 36 Marine Policy 823, 824. 15 Christian M Rogerson, ‘Coastal and Marine Tourism in the Indian Ocean Rim Association States: Overview and Policy Challenges’ (2020) 29(2) GeoJournal of Tourism and Geosites 715. 16 Lyndon E Llewellyn and others, ‘A Roadmap to a Sustainable Indian Ocean Blue Economy’ (2016) 12(1) Journal of the Indian Ocean Region 52. 17 World Shipping Council, ‘The Top 50 Container Ports’ . 18 Ajay Menon, ‘Major Container Ports and Port Operators in the World in 2021’ (Marine Insight, 3 September 2021) . 19 Wafar and others (n 1). 20 Mirjam van der Mheen and others, ‘Role of Indian Ocean Dynamics on Accumulation of Buoyant Debris’ (2019) 124 Journal of Geophysical Research: Oceans 2571. 21 See, for example, Jennifer L Lavers and others, ‘Significant Plastic Accumulation on the Cocos (Keeling) Islands, Australia’ (2019) 9 Scientific Reports 7102; Aurélie V Duhec and others, ‘Composition and Potential Origin of Marine Debris Stranded in the Western Indian Ocean on Remote Alphonse Island, Seychelles’ (2015) 96(1-2) Marine Pollution Bulletin 76. 22 Mirjam van der Mheen and others, ‘There’s No “Garbage Patch” in the Southern Indian Ocean, so Where Does All the Rubbish Ggo? The Conversation, 16 April 2019 ; van der Mheen and others (n 20). 23 April J Burt and others, ‘The Costs of Removing the Unsanctioned Import of Marine Plastic Litter to Small Island States’ (2020) 10 Scientific Reports 14458. 24 SZ Qasim and others, ‘Pollution of the Seas Around India’ (1988) 97 Proceedings: Animal Science 117. 25 Phindile TZ Sabela-Rikhotso and others, ‘A Critical Analysis of the Legal Frameworks Governing Oil Spill Management in South Africa’ (2021) 127 Marine Policy 104433.

The Indian Ocean region and marine environmental law  175 vessel when it sank, highlighted these problems.26 Vessels from outside the region have also caused severe impacts, such as in Mauritius where, in 2020, 1,000 tonnes of oil were spilled into coastal waters from a Japanese vessel.27 Although the impact of marine invasive species does not appear to be significant in the Indian Ocean,28 there is relatively little scientific data compared to other regions.29 In terms of marine living resources, fish catches have consistently increased since the 1980s, resulting in harvests of some wild fish stocks reaching, or approaching, their maximum sustainable yield.30 Overall, a greater percentage of stocks are fished at unsustainable levels in the Indian Ocean than in the Pacific Ocean.31 Again, data is poor as there is limited use of Automatic Identification Systems (AIS) in larger ships and many small-scale fishing boats operate without AIS at all, resulting in only a ‘partial picture of the total fishing vessels and their activity’.32 Indeed, the ‘largest discrepancy between AIS-based information and other fishing data occurs for fishing activity in the Eastern Indian Ocean’.33 The stock assessments also do not account for illegal, unreported and unregulated (IUU) fishing, which has also been increasing in the region,34 and has been deemed to be a national security threat in States such as India.35 Combined with these challenges, the Indian Ocean is warming faster than many other global ocean areas.36 The marine environment will be impacted as oceans warm and acidify, and through increased storm activity and coastal degradation.37 Shipping, marine transport and port infrastructure will also be affected by climate change, due to more extreme weather events, with recent research suggesting that Indian Ocean ports ‘appear to be at extremely high risk’.38 26 Sarah Cahlan and others, ‘Tons of Toxic Cargo’ Washington Post, 15 June 2021 . 27 ‘Japanese ship company behind oil spill that led to environmental disaster in Mauritius caused by ‘human error’’ ABC News, 18 December 2020 . 28 World Ocean Review, ‘Marine ecosystem’ (2010) . 29 Nepal C Nandi and MK Dev Roy (2017) ‘Marine Invasive Alien Crustaceans of India’ (2017) 5(2) Journal of Aquaculture and Marine Biology 00115. 30 FAO, The State of World Fisheries and Aquaculture 2020 (FAO 2020) 15. 31 FAO, The State of World Fisheries and Aquaculture 2018 – Meeting the sustainable development goals (FAO 2018) 49. 32 Ibid, 45 and 53. 33 Ibid, 185. 34 WWF, Unregulated Fishing on the High Seas of the Indian Ocean (WWF/TMT 2020) . 35 Pooja Bhatt, ‘IUU Fishing as a National Security Threat: Revisiting India’s Domestic Framework and Compliance with International Regimes’ (2020) 96 International Law Studies 442. 36 Juliet C Hermes and others, ‘A Sustained Ocean Observing System in the Indian Ocean for Climate Related Scientific Knowledge and Societal Needs’ (2019) 6 Frontiers in Marine Science 355. The IPCC note that the Indian Ocean has already warmed faster than the global average: Valérie Masson-Delmotte and others (eds) Climate Change 2021 The Physical Science Basis: Summary for Policymakers (IPCC 2021) . 37 Erika J Techera, ‘Supporting Blue Economy Agenda: Fisheries, Food Security and Climate Change in the Indian Ocean’ (2018) 14(1) Journal of the Indian Ocean Region 7, 8. 38 Cristina Izaguirre and others, ‘Climate Change Risk to Global Port Operations’ (2021) 11 Nature Climate Change 14.

176  Research handbook on international marine environmental law In addition, although the region is relatively stable in terms of political, security and other conflicts, maritime piracy has presented a challenge in recent times,39 and there are remaining unresolved issues surrounding dependent territories and former colonies.40 Effective marine environmental law for the Indian Ocean region is, therefore, vital. The Indian Ocean region is home to a third of the world’s human population and is economically growing faster than other regions, with nations dispersed across the spectrum of development comprising developed, developing, small island and least developed States.41 This disparity results in practical challenges to enhancing marine environmental law. Furthermore, almost every legal system in the world is represented in the region: customary, sharia, common and civil law (the last of these with French, Portuguese and Dutch-Roman variations). Thus, there is less common legal ground in the Indian Ocean region than in regions such as the South Pacific, making harmonised marine environmental governance difficult. Nevertheless, there are some important commonalities. A particular feature of the region is the sharp uptake of national policies focused on the blue economy, which involves sustainable development of the oceans through expanded shipping, fishing, marine-based tourism, seabed mining and ocean energy sectors.42 Whilst the blue economy could provide a common oceans focus for State cooperation, there are also risks that the marine environment could become further degraded, potentially leading to conflict. This highlights the need for careful consideration of marine environmental protection in implementing blue economy plans, including preventing marine pollution, ensuring sustainable utilisation and management of marine living resources, and conserving marine habitats, species and ecosystems. Relevantly, this has been recognised by the pan-regional inter-governmental organisation – the Indian Ocean Rim Association (IORA).43 The goals of the IORA are to ‘promote sustained growth and balanced development’ within six priority areas, four of which are relevant to marine environmental protection: maritime safety and security, fisheries management, disaster risk management, and the blue economy.44 The IORA has further recognised the importance of the blue economy through a detailed Work Plan,45 which includes important activities relevant to improving marine environmental governance: (1) implementing measures to address IUU fishing and implementing enforcement procedures; (2) promoting the adoption of the Port State Measures Agreement (PSMA);46 (3) strengthening regional safety standards to promote and implement fisheries

For a detailed analysis see Jade Lindley, Somali Piracy: A Criminological Perspective (Taylor and Francis 2016). 40 See for example, the UK-Mauritius dispute in relation to the Chagos Archipelago and the award in Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award of 18 March 2015) PCA Case No 2011-03; the France-Comoros-Madagascar disputes regarding Glorioso Islands and Mayotte: Christian Bouchard and William Crumplin, ‘Two Faces of France: “France of the Indian Ocean”/”France in the Indian Ocean”’ (2011) 7(2) Journal of the Indian Ocean Region 161. 41 Ganeshan Wignaraja and others, ‘Is the Indian Ocean Economy a New Global Growth Pole?’ Lakshman Kadirgamar Institute, 5 October 2018 . 42 Ibid. 43 IORA member States include 22 Asian, African and Middle Eastern, island and continental nations: IORA, ‘Member States’ (2017) . 44 IORA, ‘Overview’ (2017) . 45 IORA, Working Group on the Blue Economy: Work Plan 2018-2021 (IORA 2020). 46 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2016) [2016] ATS 21. 39

The Indian Ocean region and marine environmental law  177 and aquaculture open markets; (4) sharing best practice and lessons learned in management of plastic waste; and (5) protecting and conserving coastal and marine biodiversity through sustainable tourism. These activities recognise the need to harmonise responses to the challenges, and to build legal capacity, but the question remains as to how these goals will be achieved. The sections that follow examine marine pollution, biodiversity conservation, fisheries regulation and climate change by analysing the international and regional law in each area, before exploring how the IORA might advance marine environmental governance in the region, including the role it could play in harmonising laws and building legal capacity in member States.

3.

INTERNATIONAL LAW AND INDIAN OCEAN UPTAKE

As explored in other chapters in this volume, there is a wealth of international marine environmental law. Much of this law has been catalysed by, and aligns with, the United Nations Convention on the Law of the Sea (LOSC).47 All Indian Ocean States are parties to the LOSC, and the international institutions and treaty frameworks explored below have built upon this foundation. Added to this hard law are the Sustainable Development Goals (SDGs), providing targets and indicators to catalyse further action. SDG 14 is focused on ‘Life Below Water’, and SDG14.c explicitly seeks to ‘enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in’ the LOSC.48 Although relatively comprehensive in coverage, the marine environmental law landscape is fragmented and, with respect to the Indian Ocean States, IORA could play a significant role in terms of coordinating and harmonising existing law and building legal capacity for member State implementation of treaty obligations. 3.1

Prevention of Marine Pollution in the Indian Ocean

As outlined above, marine pollution is a challenge in the region, including oil, toxic waste and plastic debris emanating from ships and land. Several key international marine pollution treaties predate the LOSC, including the International Convention for the Prevention of Pollution from Ships (1973 as amended by the 1978 Protocol) (MARPOL)49 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972) (LC) and Protocol (1992) (LP).50 Other instruments are more recent, such as the

47 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 48 Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A/Res/70/1, 25 September 2015, Goal 14: Conserve and sustainably use the oceans, seas and marine resources . 49 The International Convention for the Prevention of Pollution from Ships (1973) and the 1978 Protocol are read as a single instrument: International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 184 (MARPOL). 50 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention); Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

178  Research handbook on international marine environmental law International Convention on the Control of Harmful Anti-fouling Systems on Ships 2001 (AFS Convention),51 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) 2004,52 and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (Hong Kong Convention).53 Table 8.1 highlights the ratification status of these and other relevant international instruments. MARPOL seeks to prevent incidental and accidental marine pollution from vessels, with general obligations set out in the main treaty, and specific annexes focusing upon substances such as oil, noxious liquids, harmful packaged substances, sewerage, garbage and air pollution. Table 8.1 demonstrates that whilst there is broad adoption of the main treaty, Annex VI, in particular, has not been so well-endorsed, although Singapore, which is one of the top ten flag States in the world, has ratified MARPOL and all its Annexes. Improving the ratification of Annex VI is important as it relates to marine-based air pollutants which, given the percentage of global shipping traversing the Indian Ocean, can contribute to marine pollution. In addition, MARPOL provides for the establishment of Special Areas and the International Maritime Organization (IMO) can designate parts of the ocean as Particularly Sensitive Sea Areas (PSSAs). A MARPOL Special Area is a part of the ocean over which, because of oceanographic or ecological conditions, specific methods to prevent marine pollution can be mandated. PSSAs may be established for places that need special protection, including for ecological reasons if the area includes unique or rare ecosystems or is particularly vulnerable.54 Within PSSAs, controls on maritime activities can include routing measures, strict discharge standards and the use of vessel tracking systems. There are no designated PSSAs in the Indian Ocean, and the only Special Areas are the Gulf of Aden and Oman area of the Arabian Sea with respect to Annex I oil pollution.55 Given the number of EBSAs and biodiversity hotspots noted above, the lack of PSSAs needs further investigation, particularly as shipping expands in the region, potentially placing these areas at risk. The LC and LP address the deliberate dumping of waste in the ocean. As Table 8.1 indicates, adoption of the LC and the LP is limited. Although it is unclear how much marine pollution is caused by dumping, given the high levels of oil, plastic, toxic and other waste in Indian Ocean waters, it can be assumed that some of it has been deliberately disposed of in the oceans, either in areas under national jurisdiction with or without the consent of the relevant coastal State, or in areas beyond national jurisdiction by vessels flagged in States that are not party to, or are not in compliance with, the LC or the LP. Domestic legislation on dumping varies between nations

and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1 (London Protocol). 51 International Convention on the Control of Harmful Anti-fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008) [2008] 15 ATS 525 (AFS Convention). 52 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36 (BWM Convention). 53 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (adopted 15 May 2009, not yet in force) IMO Doc SR/CONF/45 (Hong Kong Convention). 54 IMO, ‘Particularly Sensitive Sea Areas’ . 55 Ibid; IMO, ‘Special Areas under MARPOL’ .

X

X

X

X

X

X

Singapore

Somalia

South Africa

Sri Lanka

Tanzania

Thailand

X

X

-

X

-

X

X

-

X

X

X

X

X

X

-

-

X

-

X

X

-

-

X

X

X

X

X

-

-

X

X

X

X

-

X

X

FSA

-

-

X

-

X

X

X

-

X

X

X

X

X

-

X

X

-

X

-

-

X

X

PSMA

-

X + I-V

X

X + 1-V

X + I-V

X + I-VI

-

X + I-VI

X

X + I-V

X + I-VI

X + I-VI

X+V

X + I-VI

X + I-V

X + I-VI

X + I-VI

X + I-VI

X + I-VI

X + I-V

X + I-VI

X + I-VI

ANNEXES

MARPOL +

-/X

X/-

-/-

X/-

-/-

X/X

-/-

-/-

X/-

X/-

-/-

-/-

-/-

-/-

-/X

X/X

X/X

-/-

-/-

-/-

-/-

X/X

LC/LP

-

X

-

-

-

X

-

X

X

-

-

-

X

X

X

X

X

X

-

-

-

X

-

-

-

-

-

-

X

-

X

-

X

-

-

-

X

X

X

X

-

X

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

-

X

-

-

-

Convention

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

INTERNATIONAL TREATY RATIFICATIONS BWMC AFS Hong Kong CBD

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

CITES

Source: Data is drawn from United Nations Treaty Series Online. https://​treaties​.un​.org/​pages/​AdvanceSearch​.aspx​?tab​=​UNTS​&​clang​=​_en

Yemen

Emirates

signed

X

Seychelles

United Arab

X

Oman

X

X

X

X

Maldives

Mauritius

X

Malaysia

Mozambique

X

X

Madagascar

-

X

X

signed

X

X

-

X

X

AGT

Kenya

X

Indonesia

1994

Impl.

Iran

X

X

Comoros

India

X

X

Australia

LOSC

Ratification of key international treaties as at June 2021

Bangladesh

State

Table 8.1

X

X

-

X

X

X

X

-

X

-

X

X

X

-

X

X

X

-

X

-

X

X

CMS

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

UNFCCC

signed

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

signed

X

X

X

X

X

PA

The Indian Ocean region and marine environmental law  179

180  Research handbook on international marine environmental law (even amongst those that have ratified these international instruments), with some States, such as South Africa for example, permitting the controlled dumping of cargo in some circumstances,56 and other States having older legislation (often contained in several instruments) with differing levels of engagement with monitoring, reporting, enforcement and liability.57 The BWM Convention addresses marine pollution in the context of invasive species and biosecurity risks transported by ballast water; it has been adopted by only 11 States. As noted above, marine invasive species have not yet been demonstrated to be a significant problem in the region, but with predicted increases in shipping and maritime transport this may become a future challenge, particularly for Indian Ocean ports. The AFS Convention is focused on preventing pollution from anti-fouling materials painted on the hull of vessels rather than preventing non-indigenous species adhering to the hulls. Scientific analysis has shown that marine bio-fouling may be a more important vector than ballast water in the Indian Ocean and so establishing anti-fouling standards is important for the region.58 Finally, three of the world’s most significant shipbreaking nations (by tonnage) are in the Indian Ocean region: Bangladesh, India and Pakistan.59 As Table 8.1 indicates, only India has ratified the Hong Kong Convention. The Convention covers the design and construction of vessels, operations during their lifetime, and preparations for their transit to a recycling facility. When it enters into force, it could, therefore, provide valuable safeguards for the Indian Ocean marine environment, if ratified by relevant States. In seeking to catalyse the development of further law, the LOSC makes many references to regional cooperation, as well as to international standards, to prevent, reduce and control pollution.60 The Regional Seas Programme (RSP) was established in 1974 and is led by the UN Environment Programme (UNEP). The RSP consists of regional seas agreements (RSAs) covering 18 regions of the world including five in the Indian Ocean: Eastern Africa Region, Red Sea and Gulf of Aden, Regional Organization for the Protection of the Marine Environment (ROPME) Sea Area, South Asian Seas and East Asian Seas.61 In 1995 the South Asian Seas Programme adopted the South Asian Seas Action Plan, which contains key components including ‘Environmental Assessment, Environmental Management, Environmental Legislation & Institutional and Financial Arrangements.’62 Four priority areas were identified including integrated coastal zone management, protection of the marine environment from land-based sources, and development of national and regional oil and chemical spill contingency plans. There has been consistent activity, with the most tangible outcomes being Sabela-Rikhotso (n 25). See for example, Sri Lanka’s Marine Pollution Prevention Act 1981 and Coast Conservation and Coastal Resource Management Act 1981; the Seychelles’ Dumping at Sea Act 1974. 58 IUCN, ‘Marine Menace’ ; J McDonald and others, ‘Likelihood of Marine Pest introduction to the Indian Ocean Territories’ Fisheries Research Report No 264, Department of Fisheries, Western Australia, 2015 . 59 NGO Shipbreaking Platform, ‘The Toxic Tide: 2020 Shipbreaking records’ . 60 Robin Churchill, ‘The UN Convention on the Law of the Sea – Still Relevant to Protection of the Marine Environment?’, Chapter 2 in this volume. 61 UNEP, ‘Regional Seas Programme’ . 62 SACEP, ‘South Asian Seas Programme – Action Plan’ . 56 57

The Indian Ocean region and marine environmental law  181 the adoption of a Regional Marine Litter Action Plan and a Regional Marine and Coastal Biodiversity Strategy for the South Asian Seas Region in 2019.63 The ROPME includes amongst its members Oman and United Arab Emirates.64 It adopted some early instruments including the Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution,65 and Protocols on oil spills and emergency response, protection from land-based pollution, control of marine transboundary movements of waste, and marine pollution from exploration and exploitation of the continental shelf.66 State of the environment reports have not been produced since 2013, making it difficult to assess whether the laws have been effective. The most recent action appears to be in the area of climate change with a status report on coral reefs produced in 2020, and marine climate change impacts and blue carbon inventory reports in 2021.67 The East African Regional Seas Programme was established in 1980, and in 1985 the parties adopted the Eastern Africa Action Plan and also signed the Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (Nairobi Convention).68 The Nairobi Convention coordinates member States’ efforts to strengthen their capacity to protect, manage and develop their coastal and marine environment sustainably. It also provides a forum for intergovernmental discussions and promotes sharing of information and experiences. Outputs include the Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities and the Protocol Concerning Co-operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region. Together these instruments should provide a platform for collaboration at the sub-regional level, yet their effectiveness is unclear. The Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden (PERSGA) was established in 1995 as an output of the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (1992) (Jeddah Convention).69 Alongside the Convention, an Action Plan for the Conservation of the Marine Environment and Coastal Areas in the Red Sea and Gulf of Aden and a Protocol Concerning Regional Cooperation in Combating Pollution by Oil and Other Harmful Substances in Cases of Emergency were adopted.70 Subsequent developments include the Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (2005) and the Protocol Concerning Technical Cooperation to Borrow and Transfer Experts, Technicians, Equipment and Materials in Cases of Emergency (2009). The most 63 SACEP, ‘SASP Milestone’ . 64 ROPME, ‘ROPME Sea Area’ . 65 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution (opened for signature 24 April 1978, entered into force 1 July 1979) 1140 UNTS 133. 66 ROPME, ‘Protocols’ . 67 ROPME, ‘Technical Reports’ . 68 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (adopted 21 June 1985, entered into force 30 May 1996, amended 2010) (1993) UNEP Register 228. 69 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (adopted 14 February 1982, entered into force 20 August 1985), (1983) 22 International Legal Materials 219 (Jeddah Convention). 70 PERGSA, ‘Consolidated Jeddah Convention’ .

182  Research handbook on international marine environmental law significant progress since then has been an analysis of marine debris, a regional action plan on marine litter, and guidelines on assessment and monitoring, with guidelines on preparing national action plans to manage marine litter still in development.71 The Coordinating Body on the Seas of East Asia (COBSEA) – which includes the Indian Ocean States of Indonesia, Malaysia, Singapore and Thailand – also adopted an Action Plan early in its life, and later developments include Strategic Directions 2018–2022, and the Regional Action Plan on Marine Litter (2019).72 The SDGs complement the global and regional hard law obligations by setting targets and establishing indicators by which achievements can be measured. Of relevance is SDG 14.1, which seeks to ‘prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution’ by 2025.73 It seems unlikely that this goal will be met given the progress to date,74 yet it is also clear that the RSPs are all engaged in similar work in these areas. This suggests that there may be a role for a body such as the IORA in coordinating activities in the region across these bodies. Although UNEP has a coordinating role across all RSAs, a regional approach would allow the specific Indian Ocean marine debris concerns and responses to be considered. 3.2

Protection of Marine Biodiversity

The Indian Ocean region is rich in marine biodiversity, but this biodiversity is at risk from over-harvesting, habitat loss and environmental degradation. The LOSC establishes broad obligations to protect and preserve the marine environment, but there have been few direct international law developments under the Convention until recently.75 The commencement of negotiations for a new international legally binding instrument (ILBI) with respect to Areas Beyond Natural Jurisdiction (ABNJ) was endorsed by the United Nations General Assembly in 2017.76 The proposed ILBI is expected to address governance gaps for the conservation and sustainable use of marine biodiversity in ABNJ, and the draft text focuses on four key areas: environmental impact assessment (EIA), marine genetic resources, capacity building and the transfer of marine technology, and area-based protection.77 If adopted, sensitive areas and genetic resources in and around seamounts (south west and east of Madagascar and elsewhere

PERSGA, ‘Marine Litter Program’ . COBSEA, ‘What We Do’ < https://​www​.unep​.org/​cobsea/​what​-we​-do>. 73 UN Doc A/Res/70/1 (n 48) SDG 14. 74 UN, ‘SDG 14 Progress and Info’ . 75 Until the Biodiversity Beyond National Jurisdiction (BBNJ) negotiations, the only other instruments under the LOSC have been the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force provisionally 16 November 1994, and definitively 28 July 1996) 1836 UNTS 3 (1994 Implementing Agreement); and 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 Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (FSA). 76 UN, ‘Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction’ . 77 See UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/CONF.232/2020/3, 18 November 2019, Art. 8 and Part III. 71 72

The Indian Ocean region and marine environmental law  183 in the region) and the Mascarene Plateau (north east of Madagascar), for example, could be the subject of high seas Marine Protected Areas (MPAs).78 Furthermore, potential impacts from increased activities associated with the blue economy could be mitigated by the requirement for EIA under the ILBI.79 With respect to areas under national jurisdiction, the UN Convention on Biological Diversity (CBD) is the principal global treaty covering all biodiversity, including marine species, ecosystems and genetic resources. The treaty imposes obligations on States for the conservation of biodiversity, the sustainable use of its components and the equitable sharing of the benefits of the use of genetic resources. The CBD has been ratified by all Indian Ocean States and has been the catalyst for development of National Biodiversity Strategies and Action Plans (NBSAPs) and National Reports. These documents include details of actions to be taken to protect biodiversity and some assessment of outcomes. A detailed analysis is needed to determine how successful these have been. However, reference to the implementation of the CBD Aichi Biodiversity Targets, adopted in the CBD Strategic Plan for Biodiversity 2011–2020, together with implementation of the SDGs, is instructive. By exploring the NBSAPs and National Reports it is evident that targets 6 (all fish and invertebrate stocks and aquatic plants are managed and harvested sustainably and legally) and 11 (designation of 10 percent of coastal and marine areas as protected areas), coupled with SDG targets 14.2 (sustainable management of marine and coastal ecosystems), 14.4 (effective regulation of harvesting and ending overfishing) and 14.5 (conservation of at least 10 percent of coastal and marine areas) have led to increased marine environmental protection in the Indian Ocean. Nevertheless, most Indian Ocean States have protected less than one percent of marine areas under their jurisdiction, falling short of the Aichi targets and the SDGs which were to be achieved by 2020; Mauritius is an outlier at 29 percent and Australia has protected 10 percent of its waters.80 While the limited establishment of MPAs may be due to a lack of technical and financial capacity in the Indian Ocean States, there is also limited political will to achieve this goal.81 As far as high seas MPAs are concerned, globally very few have been established to date, and whether this changes with the adoption of the proposed ILBI remains to be seen. The only existing high seas MPA in the Indian Ocean is the Indian Ocean Whale Sanctuary established by the International Whaling Commission.82 Further initiatives under the CBD include Regional Biodiversity Strategies and Action Plans formulated through pre-existing regional organisations such as the Southeast Asian Fisheries Development Center Fran Humphries and Harriet Harden-Davies, ‘Practical Policy Solutions for the Final Stage of BBNJ Treaty Negotiations’ (2020) 122 Marine Policy 104214. 79 At the time of writing the Fourth Session of the Intergovernmental Conference to elaborate the text of the ILBI had been postponed, although intersessional work continues: UN, ‘Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction’ . 80 Marine Conservation Institute, ‘Marine Protection Atlas’ (2021) . 81 Additional, large MPAs have been declared in the Indian Ocean external territories of the United Kingdom (Chagos MPA) and France (Marine Nature Park of Mayotte and the Glorieuses Archipelago Natural National Reserve) but the status of the British Indian Ocean Territories remains in dispute ; Lawrence Sisitka and Matthew D Richmond, Western Indian Ocean Marine Protected Areas Outlook: Towards achievement of the Global Biodiversity Framework Targets (UNEP and WIOMSA 2021) . 82 IWC, ‘Whale Sanctuaries’ . 78

184  Research handbook on international marine environmental law (SEAFDEC), the East African Community and South African Development Community,83 and the EBSA programme, which has mapped and analysed the special areas in the Indian Ocean that serve important purposes to support the healthy functioning of the ocean and the many services that it provides.84 Other relevant wildlife law includes the Convention on International Trade in Endangered Species (CITES), which utilises a three-tier listing mechanism to regulate and manage the international trade in listed species. Those species with the highest level of protection (Appendix I) cannot be commercially traded internationally, and there are restrictions around such trade for species listed on Appendices II and III.85 Relevantly, all marine turtles and whales are listed on Appendix I and over 50 species of shark are listed on Appendices I and II combined. Many of these species are found in the region, and, as most Indian Ocean States have ratified CITES, it offers some protection to those species which would otherwise be internationally traded, such as sharks and turtles. Several multilateral capacity building initiatives have been developed under the auspices of CITES to address significant issues in the Indian Ocean. Examples include the Bay of Bengal regional cooperation on sharks and rays in relation to capacity building in understanding CITES measures in place and implementation challenges at the subnational level.86 A further example is the EU-UNODC-CMS-CITES coordinated action program to address the challenge of illegal trafficking of wildlife in East Africa and the Indian Ocean.87 The program focuses on the combined activities of CITES with respect to the reduction of the illegal killing of wildlife in priority protected areas, the UN Office of Drugs and Crime (UNODC) which works on reducing trafficking through container controls and improving criminal justice responses, and the Convention on Migratory Species (CMS) with its focus on developing and strengthening governance. The CMS seeks to protect migratory species, including marine animals, and encourages range States to enter into agreements for their conservation.88 The CMS is relevant to the Indian Ocean, which is home to a number of migratory marine megafauna including sharks, whales, tuna and dolphin; the south west Indian Ocean, for example, is an important breeding ground for five of the seven species of the world’s marine turtles.89 The CMS utilises a listing mechanism to identify species at risk for which range States have obligations, including the development of tailored agreements for those species.90 Although not as well-ratified as CITES, it still has a broad membership (see Table 8.1). There are no CMS agreements of rele83 CBD, Decision adopted by the Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting X/2: The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets, UNEP/CBD/COP/DEC/X/2, 29 October 2010, para. 5. 84 CBD, ‘Background on the EBSA Process’ (n 4). 85 Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1975, entered into force 1 July 1975) 993 UNTS 243 (CITES) Arts III-V. 86 CITES, ‘FAO and CITES support India’s effort in coordinating the Bay of Bengal regional cooperation on sharks and manta rays’ (12 January 2021) . 87 CITES, CMS, EU, UNODC, ‘European Union invests 30 million Euro to counter the illegal killing and trafficking of wildlife in Southern, Eastern Africa and the Indian Ocean’ (5 December 2017) . 88 Range States are those nations through which a specific species migrates. 89 Roderic B Mast and others (eds), State of the World’s Sea Turtles Report Volume VII (SWOT 2012) . 90 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS) Arts I-VI.

The Indian Ocean region and marine environmental law  185 vance to the Indian Ocean, and only two non-binding memoranda of understanding (MOU).91 The first is specific to Indian Ocean turtles, and all Indian Ocean range States have signed, apart from Somalia.92 The second is the Sharks MOU, which is global but includes a number of Indian Ocean range States. Of the Indian Ocean States, only Australia, Sri Lanka, Somalia, Kenya, Madagascar and South Africa are signatories, with 12 other Indian Ocean States yet to sign.93 This low participation is problematic as the MOU seeks to catalyse shark and habitat conservation, improved fishery management (including reduction in bycatch) and capacity building. It is also somewhat surprising given the endorsement of the CITES shark initiatives referred to above and national shark-based conservation measures in these jurisdictions.94 In addition to global instruments, there are some regional agreements that are aimed at enhancing environmental protection and coordinating regional initiatives. Most significant is the African Convention on the Conservation of Nature and Natural Resources (ACCNNR),95 which requires parties, among other things, to manage and protect marine species and environments.96 The ACCNNR was revised in 2003, but is relatively poorly ratified, and only came into force in 2016.97 There is, as yet, little evidence of implementation and effectiveness of the revised Convention.98 Further multilateral developments include initiatives such as CMS, ‘Agreements’ ; CMS, ‘Memoranda of Understanding’ . Other regions of the world do have such agreements: Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (adopted 24 November 1996, entered into force 1 June 2001) 2183 UNTS 303 (ACCOBAMS); Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (adopted 17 March 1992, entered into force 29 March 1994) 1772 UNTS 217 (ASCOBANS). 92 CMS, Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia (CMS and IOSEA 2001) < https://​www​.cms​ .int/​iosea​-turtles/​sites/​default/​files/​basic​_page​_documents/​IOSEA​_MOUtext​_inclCMP​_2009​_English​ .pdf>; IOSEA Marine Turtles, ‘Signatories and Range States’ . China is also a range State but located outside the region; it has not signed the MOU. 93 CMS, Memorandum of Understanding on the Conservation of Migratory Sharks (CMS 2018) . CMS Sharks MOU, ‘Signatories and Range States’ . 94 For example, CMS range States such as Bangladesh, India, Indonesia, Malaysia, Mauritius, Mozambique, Oman, Seychelles, Tanzania and Thailand have all drafted and/or adopted National Plans of Action for Sharks: FAO, ‘International Plan of Action for Conservation and Management of Sharks, National and Regional Plans of Action’ . 95 African Convention on the Conservation of Nature and Natural Resources (with annexed list of protected species) (entered into force 16 June 1969) 1001 UNTS 3) (ACCNNR) (not signed by South Africa, India or Maldives). 96 Ibid, Arts IX and X. 97 Ibid, Comoros and South Africa have signed and ratified it; Kenya, Somalia, Mozambique, Madagascar, Tanzania have signed it; but Mauritius, Seychelles have neither signed nor ratified the revised Convention: ‘List of Countries Which Have Signed, Ratified/Acceded to the Revised African Convention on The Conservation of Nature and Natural Resources’ . 98 Bolanle T Erinosho, ‘The Revised African Convention on the Conservation of Nature and Natural Resources: Prospects for a Comprehensive Treaty for the Management of Africa’s Natural Resources’ (2013) 21(3) African Journal of International and Comparative Law 378. 91

186  Research handbook on international marine environmental law the General Transfrontier Conservation and Resource Area Protocol between South Africa, Mozambique and Swaziland. This Protocol has led to the development of the Ponto do Ouro-Kosi Bay Marine and Coastal Transfrontier Conservation and Resource Area (TCRA), which links the Greater St Lucia Wetlands World Heritage Site (in South Africa) with the coastline of Mozambique.99 Given the migratory patterns of some marine species, and the joint activities of neighbouring States in marine areas, there is potential for the development of further transboundary MPAs. The Protocol and Mozambique-South Africa TCRA may provide an exemplar of value to other States in the region. The Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, under the Nairobi Convention, referred to above, requires member States to adopt measures to protect endangered species listed under the Protocol, prevent the introduction of alien species, establish protected areas, provide management guidelines and encourage scientific research and public engagement.100 A draft revised Protocol was designed in 2018 but has yet to come into force. It introduced obligations to apply integrated ecosystem-based management and precautionary approaches, and to restore marine areas and ecosystems. A similar instrument was adopted under the Jeddah Convention with respect to the Red Sea: the Protocol Concerning the Conservation of Biological Diversity and the Establishment of Network of Protected Areas in the Red Sea and Gulf of Aden (2005).101 Relevant outcomes include guidelines for marine protected areas, reports on living marine resources legislation and the extent to which they have mainstreamed ecosystem-based management principles, and tangible recommendations for strengthening national laws.102 Added to these agreements are many non-binding, cooperative arrangements. The concept of large marine ecosystems (LMEs) has been developed and applied in inter-State, ecosystem-based collaborations covering many highly productive ocean areas. The Indian Ocean is home to nine LMEs including the extensive Bay of Bengal area. Relevantly, the LME Hub, funded by the Global Environment Facility (GEF) and implemented by the UN Development Program (UNDP) and Intergovernmental Oceanographic Commission of UNESCO (UNESCO-IOC), provides a clearinghouse of LME information which is a valuable resource for States wishing to enhance their marine environmental protection.103 3.3

Fishery Regulations

As noted above, some Indian Ocean fish stocks are already at their sustainable limit. In addition, bycatch is a recognised problem, as is illegal fishing, and discarded fishing gear contributes to marine plastic debris in the region. The LOSC confirms that within their exclusive economic zones (EEZ), coastal States have the sovereign right to explore and exploit living marine resources, determine the total allowable catch for a given species, assess the maximum 99 Republic of South Africa, ‘Transfrontier Conservation Areas’ . The World Heritage site is home to coral reefs, 800 species of fish, and migratory whales, sharks and rays: Ibid. 100 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region (adopted 21 July 1985, entered into force 30 May 1996) . 101 PERGSA, ‘Consolidated Jeddah Convention’ (n 70). 102 PERGSA, ‘Reports and Guidelines’ . 103 LME Hub, ‘Large Marine Ecosystems Hub: A Regional Perspective on the World’s Ocean’.

The Indian Ocean region and marine environmental law  187 sustainable yield, and adopt conservation and management measures to avoid overexploitation.104 Most Indian Ocean States have some form of fisheries regulation, although this varies considerably in terms of sophistication, currency and effectiveness.105 Indeed, some States have had to take the drastic step of temporarily closing coastal waters to fishing in order to rebuild fish stocks.106 Where States cannot fully fish their waters, however, they may offer the right to other nations to do so, with the goal of achieving optimum utilisation of the living resources of the EEZ.107 Some Indian Ocean States have authorised exploitation by third party States within their waters, including through granting licences to distant water fishing nations to fish in their EEZs,108 but this has sometimes resulted in conflict with local fishers.109 Where fish stocks occur within two EEZs (transboundary stocks) or straddle between EEZs and the high seas (straddling and highly migratory stocks), the LOSC encourages States to ‘agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks’ through regional organisations.110 In addition, the Agreement for the Implementation 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 (FSA)111 has been ratified by most States in the region. The Indian Ocean includes significant tuna stocks and therefore the conservation-focused principles in the FSA, including the precautionary approach, adoption of conservation measures, preventing overfishing and promoting research are vital.112 There are five regional fishery bodies in the Indian Ocean dealing with different species and/or geographic areas. Three of these bodies have a management mandate while the others have an advisory function only. Some of these bodies apply only to areas under national jurisdiction, others only to areas beyond national jurisdiction and several to both. The Indian Ocean Tuna Commission (IOTC), for example, has managerial competence over all tuna and tuna-like species in the Indian Ocean, and also contributes more broadly to marine species management by collating data on non-target, associated and dependent species affected by tuna fishing operations and maintaining an IUU vessel list.113 The Southern Indian Ocean Fisheries Agreement (SIOFA) has managerial competence over all non-tuna fish stocks within a limited sub-region covering most of the high seas portion of the Indian Ocean,114 and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) is responsible for

LOSC, Art. 61. For an analysis of some aspects of this domestic law see Erika Techera, ‘Indian Ocean Fisheries Regulation: Exploring Participatory Approaches to Support Small-scale Fisheries in Six States’ (2020) 16(1) Journal of the Indian Ocean Region 27. 106 ‘Bangladesh bans fishing for 65 days to save fish’ (BBC News, 20 May 2019) . 107 LOSC, Art. 62. 108 See, for example, Marine Living Resources Act (1998) (South Africa). See also, Oddvar Hollup, ‘Structural and Sociocultural Constraints for User-group Participation in Fisheries Management in Mauritius’ (2000) 24 Marine Policy 407, 410. 109 See for example, Easton R White and others, ‘Distant Water Industrial Fishing in Developing Countries: A Case Study of Madagascar’ (2021) bioRxiv 1. 110 LOSC, Art. 63. 111 FSA. 112 Ibid, Art. 2. 113 IOTC, ‘Indian Ocean Tuna Commission’ . 114 SIOFA, ‘Southern Indian Ocean Fisheries Agreement’ . 104 105

188  Research handbook on international marine environmental law the management of southern bluefin tuna throughout its distribution including in the Indian Ocean.115 The objectives of these bodies are generally to ensure the long-term conservation and sustainable use of the fishery resources under their management and to encourage the sustainable development of fisheries. Advisory bodies, such as the South West Indian Ocean Fisheries Commission, and the Bay of Bengal Programme Inter-Governmental Organization work to promote the sustainable utilisation of the living marine resources in their areas of application and to address common problems of fisheries management and development faced by their members. Fisheries bodies and regional fisheries management organisations (RFMOs) are playing a growing role in protection of the marine environment not only through regulation of targeted catch but through regulation of bycatch, adoption of measures aimed at the protection of other animals such as sea birds, sharks and turtles, and the adoption of measures for the protection of vulnerable marine ecosystems from destructive fishing practices such as bottom-trawling.116 The RFMOs also work collaboratively with other organisations to address critical issues. One example of this is the IOTC-CITES cooperation arrangement to share data and build capacity on addressing non-target sharks as bycatch in tuna fisheries.117 The issue of IUU fishing is a significant one in the Indian Ocean and if unaddressed can lead to over-harvesting of marine species, disruption of food webs within ecosystems, and loss of livelihoods.118 The global Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA) is aimed at preventing, deterring and eliminating IUU fishing by restricting vessels engaged in such fishing from entering ports to land their catches and providing enhanced rights to inspect and seize catches.119 Indian Ocean States have broadly endorsed the PSMA, yet many domestic fisheries laws have not yet been revised. The IORA Blue Economy Work Plan includes the objective of combatting IUU fishing including through harmonisation of port State measures and implementing enforcement measures against IUU vessels. Other regional initiatives include the work of the RFMOs identifying IUU vessels, the work of bodies such as the Indian Ocean Commission (IOC)120

CCSBT, ‘Commission for the Conservation of Southern Bluefin Tuna’ . See Rosemary Rayfuse, ‘Protecting Marine Biodiversity and Vulnerable Marine Ecosystems’, Chapter 14 in this volume. 117 CITES and IOTC, ‘Cooperation between IOTC and CITES: Improving capacity and data availability for CITES Parties in the Indian Ocean region’ (FactSheet No 9, CITES Secretariat, 2016) . 118 UN Doc A/Res/70/1 (n 48) SDG 14.4 aims to effectively regulate harvesting and end overfishing, IUU fishing and destructive fishing practices by 2020, a goal unlikely to be achieved. 119 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2016) [2016] ATS 21 (PSMA). 120 The IOC is an inter-governmental organisation established in 1984 with five member States: France, Comoros, Madagascar, Mauritius and the Seychelles. It focuses on four key areas, one of which is environment and sustainable management of natural resources: ‘Indian Ocean Commission’ . 115 116

The Indian Ocean region and marine environmental law  189 in regional planning, joint surveillance, pooling assets and sharing data,121 and NGO projects highlighting illegal fishing hotspots.122 3.4

Climate Change

The UN Framework Convention on Climate Change123 and the Paris Agreement124 are not focused on protection of the marine environment. Nevertheless they are relevant because Indian Ocean States have included in their Nationally Determined Contributions (NDCs) a number of mitigation and adaptation initiatives including conservation and restoration of marine ecosystems for blue carbon, food security and nature-based solutions to climate change.125 Therefore, these NDCs demonstrate that States are aware of the impacts upon, recognise the value of, and are prepared to commit to, protecting the marine environment, although it is, as yet, too early to assess the implementation of these NDCs. At the regional level, many of the organisations and instruments referred to above are also addressing climate change. For example, the IOTC Strategic Science Plan 2020–2024 includes plans to investigate the impacts of climate change on tuna stocks to inform adaptation plans,126 and, as noted above, the RSPs have a range of climate change related projects. 3.5 Other The development and transfer of marine technology and the establishment of marine scientific and technology research centres are other areas where regional cooperation is encouraged by the LOSC.127 One such recent regional initiative is IORA’s Blue Carbon Hub, which is designed to build knowledge and capacity in protecting and restoring blue carbon ecosystems (including mangroves, seagrasses and tidal marshes) throughout the Indian Ocean.128 Technology transfer is likely to become more important as Indian Ocean States pursue their blue economy plans, and other States seek to ensure they do so sustainably.

IOC, Indian Ocean Commission, Annual Report 2020 (IOC 2021) . See also, IOC, ‘Introducing a state-of-the-art Maritime Security Architecture in service of the Blue Economy’ . 122 Global Fishing Watch, ‘Illegal Fishing Hotspot Identified in Northwest Indian Ocean’ . 123 United Nations Framework Convention on Climate Change (adopted 29 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 124 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) (2016) 55(4) ILM 740 (Paris Agreement). 125 UNFCCC, ‘NDC Registry’ ; Erika Techera, ‘Can nature-based solutions to climate change catalyse coastal ecosystem conservation? A case study of Indo-Pacific SIDS’, paper presented at the 8th Frontiers in Environmental Law Colloquium, 9-11 February 2022 . 126 IOTC, ‘Support to the IOTC Scientific Committee Program of Work’ . 127 LOSC, Arts 268, 270, 272, 276 and 277. 128 IORA, ‘Blue Carbon Hub’ . 121

190  Research handbook on international marine environmental law Another issue of relevance to the Indian Ocean is seabed mining which potentially poses risks to the seabed, seamounts and benthic species.129 Part XI of the LOSC and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea 1994 (1994 Implementation Agreement) provide a framework for seabed mining, including rules for the protection and preservation of the marine environment beyond national jurisdiction.130 Deep sea ecosystems are not fully explored, and detailed regulations have not yet been adopted to protect them, but exploration permits have already been issued in the Indian Ocean.131 In areas under national jurisdiction, several nations have indicated interest in seabed mining but only India and Singapore have developed domestic law to date.132 The IORA, through its Blue Economy Work Plan, has an objective to promote sustainable seabed exploration and has highlighted the need for effective governance frameworks to be developed swiftly. The IORA could facilitate harmonised domestic laws that incorporate best practice governance arrangements. Other approaches and concepts broadly endorsed across the region include integrated coastal zone management (ICZM) and marine spatial planning (MSP). ICZM was promoted early through the Arusha Resolution133 which ‘set the stage for increased national support for, and efforts in, coastal management, and successfully began a dialogue between the scientific community and high-level policy makers’.134 MSP involves coordinated management and distribution of multiple ocean uses and users and is therefore a useful tool to manage and/ or prevent cumulative impacts of shipping, fishing, tourism and mining.135 The IORA Blue Economy Work Plan includes activities to ‘[p]romote and implement Capacity Building programmes on sustainable management and development of coastal and marine tourism through Marine Spatial Planning (MSP) and Integrated Coastal Zone Management (IZCM) approaches’.136 Again, it is too early to say how effective these activities may be, but their adoption by IORA member States is encouraging, as are other collaborations such as the Océan Metiss project with the IOC to share international expertise on the blue economy and ‘implement

129 Olive Heffernan, ‘Seabed mining is coming — bringing mineral riches and fears of epic extinctions’ Nature News Feature, 24 July 2019 . 130 Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume. 131 ISA, ‘Exploration Areas’ . 132 ISA, ‘National legislation database’ . 133 Mauritius, Mozambique, Madagascar, Seychelles, Tanzania and later Kenya were signatories of the Arusha Resolution: Louis Celliers and others, ‘Pathways of Integrated Coastal Management from National Policy to Local Implementation: Enabling Climate Change Adaption’ (2013) 39 Marine Policy 72. The Secretariat for Eastern African Coastal Area Management (SEACAM), The Voyage from Seychelles to Maputo: Successes and failures of integrated coastal zone management in Eastern Africa and Island states, 1996-2001 (SEACAM 2001) .

For example, South Africa’s Integrated Coastal Management Act 2008 and Marine Spatial Planning Act, 2018. See also Seychelles Marine Spatial Plan Initiative . 139 SPREP, ‘Parties to international and regional MEAs relevant for SPREP activities – Updated in: July 2017’, Pacific Environmental Portal, MEA Database, 2017 . 140 MEPSEAS, ‘Protecting South East Asian Seas’ (IMO 2019) . 141 MEPSEAS, ‘Progress Chart’ (IMO 2019) . 142 SPREP, ‘Pacific Environment Portal – Environmental Information for Decision Making’ . 143 SPREP, ‘Pacific Environmental Portal’ . 138

192  Research handbook on international marine environmental law Ocean initiatives have largely focused on sub-regional agreements (such as in east Africa and south Asia), there is an argument for greater coordination amongst these various initiatives. Furthermore, a whole of region approach is warranted with respect to certain activities because of the interconnectedness of the ocean in general, as marine species (including fish) migrate across sub-regional boundaries, and as the unique monsoonal and oceanographic conditions mean pollutants can be widely distributed across the region. Furthermore, despite the diversities of Indian Ocean nations, blue economy goals are common amongst them and, if pursued with any degree of alacrity, could have a profound impact on the marine environment. Therefore, a tailored Indian Ocean approach developed under the auspices of the IORA would appear to be best suited to ensure coordination and comprehensiveness, and indeed the Blue Economy Work Plan appears to support this. In the area of fisheries regulation, activities occur within and beyond national jurisdictional boundaries and at varying scales, from subsistence and artisanal fishing to large-scale commercial harvesting. Ensuring sustainable harvests of wild fish is challenging, but is crucial if livelihood, food security and blue growth outcomes are to be secured without significant environmental impacts. Domestic fisheries legislation differs significantly amongst Indian Ocean States necessitating tailored laws in each jurisdiction. Nevertheless, model laws may assist in harmonising and enhancing regulations, by providing a common structure for legislation (including sections for objectives, principles, management requirements, monitoring and enforcement etc), best practice principles and management approaches, and compliance and enforcement options. Regional tensions caused by fisheries-related conflicts are increasing144 and some focused activities under the auspices of the IORA Fisheries Support Unit may be warranted, particularly in areas identified by member States as being of strategic importance such as collecting and sharing fisheries data, promoting technologies to improve fish production, fish trade and IUU fishing.145 There is also significant potential to develop cooperative arrangements focusing on IUU fishing, particularly in terms of data sharing and enforcement efforts. The Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region provides a useful model.146 Where there are gaps in international marine environmental law, these could be filled by regional treaties. The most obvious example is land-based marine pollution, where a regional approach would be appropriate. Some of the Indian Ocean RSPs have adopted a marine litter protocol, and lodged regional plans under the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities147 and the Global Partnership on Marine Litter; Australia, Indonesia and Malaysia have also lodged national plans of action.148 An Indian Ocean land-based marine pollution or marine plastics debris work programme or action plan could be adopted – to achieve the goals articulated in the IORA Blue Economy 144 Jessica Spijkers and others, ‘Global Patterns of Fisheries Conflict: Forty Years of Data’ (2019) 57 Global Environmental Law 101921. 145 IORA, Draft Action Plan for the IORA Fisheries Support Unit (FSU) 2020 – 2025. 146 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (adopted 9 July 1992, entered into force 20 May 1993) 1974 UNTS 45. 147 UNEP, ‘Global Programme of Action for the Protection of the Marine Environment from Land-based Activities’ . 148 Global Partnership on Marine Litter, ‘All Resources’ .

The Indian Ocean region and marine environmental law  193 Work Plan – drawing on examples from other regions of the world.149 Again, the Pacific provides a useful model in the form of its Regional Action Plan on Marine Litter.150 A further area for regional development is in the context of environmental impact assessment (EIA) in a transboundary context, given the extent of blue growth plans and the proximity of many EEZs to each other. However, the issue of EIA does not feature in the IORA Blue Economy Work Plan, or within the programs of the RSAs. Nevertheless, the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) is a potential model that could be considered in an Indian Ocean context.151 The ABNJ ILBI, if adopted, may provide another potential model for best practice EIA.

5. CONCLUSION Protection of the marine environment is vital for Indian Ocean States, because of their dependence on the ocean for food and livelihoods, and their development goals focused on blue growth. Marine environmental problems can impact locally, on more than one State, or across the entire Indian Ocean. In particular, if multiple States across the region pursue similar blue growth plans, the cumulative effects of their activities are likely to exceed the carrying capacity of the ocean. Whilst international marine environmental laws have been endorsed by Indian Ocean States to varying degrees, there remains significant scope for regional coordination of existing work, and the development and adoption of agreements capable of filling gaps and addressing the challenges facing the region. Admittedly, the diversity of legal systems in the region means that there may be less opportunity for regional standards and model laws than in other contexts. Regional agreements, however, can still provide guidance on the implementation of international law, and on the harmonisation of domestic legislation. In addition, regional action plans and programmes can catalyse sub-regional and national legal developments. Further research is needed to identify specific areas where regional initiatives might be most effective, and the vehicles and mechanisms regional agreements might include. The above analysis has suggested some areas and possible exemplars from which to draw. No doubt marine environmental governance could be improved under the auspices of the IORA, but it has limited authority to do so and, currently, no formal rules and legal structures. Nevertheless, it has developed a Blue Economy Work Plan that makes specific reference to international law and governance areas where it can play a role in the protection of the marine environment. It remains to be seen whether the IORA will take the lead in strengthening the adoption of international marine environmental law and in developing regional frameworks and programmes for the Indian Ocean. Regardless of the vehicle and mechanism, ways must In the European Union, the Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention) is one such example. 150 SPREP, ‘Pacific Regional Action Plan: Marine Litter 2018-2025’ . 151 Timo Koivurova, ‘Could the Espoo Convention Become a Global Regime for Environmental Impact Assessment and Strategic Environmental Assessment?’ in Simon Marsden and Robin Warner (eds) Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate 2012). 149

194  Research handbook on international marine environmental law be identified for States and stakeholders to work cooperatively, coherently and effectively to improve marine environmental protection in the Indian Ocean region.

PART III POLLUTION AND THE MARINE ENVIRONMENT

9. Vessel-source pollution – some key developments Henrik Ringbom

1. INTRODUCTION Compared to many other marine environmental concerns, ship-source pollution is quite comprehensively regulated at the global level. Firstly, the jurisdictional rules on what actions States can and cannot take to protect the marine environment from ships are set out in considerable detail in the 1982 United Nations Convention on the Law of the Sea (LOSC). These rules lay down the general framework for which rules and measures States or organisations may or may not adopt to address pollution from ships, differentiated for each maritime zone. The LOSC, frequently referred to as the ‘Constitution for the Oceans’, is today widely ratified worldwide and, as far as its provisions on vessel-source jurisdiction are concerned, generally considered to represent customary international law.1 Secondly, technical rules lay down the more detailed standards for ships and their operators, on a variety of matters that affect vessel-source pollution, such as ships’ equipment and construction requirements and conditions for discharging substances into the sea. These technical rules are predominantly developed by the International Maritime Organization (IMO) and form a dynamic relationship with the rules of the LOSC through a complex web of references and cross-references. The main treaty on the subject is the 1973/78 International Convention for the Prevention of Pollution from Ships (MARPOL).2 Many of the key technical rules, including MARPOL, are also widely ratified and moreover include innovative mechanisms to ensure that their standards apply to the entire global commercial fleet.3 By June 2021, the United Nations (UN) Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC) had 168 parties, including the European Union (EU). The United States is not among these but has consistently considered that the LOSC provisions discussed here represent customary international law. 2 International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL). 3 For example, by implicitly relying on port State jurisdiction, discussed in Section 2.2 below, many key International Maritime Organization (IMO) conventions establish that there shall be no difference in treatment between ships flying the flag of parties and non-parties to the conventions when visiting ports of States parties. See, eg, MARPOL, Art. 5(4). Moreover, in order to ensure a broad participation in the numerous amendments to the conventions, a specific amendment procedure has been introduced to many conventions, which makes the amendments automatically binding on all parties unless they specifically object to them. See, eg, MARPOL, Art. 16. The precise number of parties to MARPOL Annexes and the percentage of the world fleet that these States represent were as follows as at June 2021: Annexes I (oil) and II (noxious liquid substances in bulk), 160 States representing 99 percent of the world’s tonnage; Annex III (harmful substances in packaged form): 150 States, 98 percent; Annex IV (sewage): 146 States, 96 percent; Annex V (garbage): 155 States, 99 percent; and Annex VI (air pollution): 100 States, 97 percent. Two more key environmental IMO conventions adopted in early 2000 have the corre1

196

Vessel-source pollution – some key developments  197 In short, it is fair to say that the regulatory situation for vessel-source pollution is both relatively clear and reasonably well settled. As a general rule, little uncertainty exists about what standards apply or where to look for the limits of applicability of national requirements to foreign ships. Yet, the jurisdictional stability in this field does not mean that the matter is legally settled or free from legal controversies. Uncertainties arise at a number of different levels. To begin with, not all matters are conclusively regulated – or even addressed – in the LOSC. Indeed, much of the unilateral regulatory activity in the field of ship-source pollution over the past decades has taken place in areas where the LOSC provides very little guidance, in particular through the exercise of jurisdiction by port States (Section 2.2 below). Moreover, as technology, scientific knowledge and political priorities relating to the marine environment evolve, new issues keep arising, exposing new legal voids and imperfections that need to be addressed. Even where rules are in place, the need for their interpretation in specific situations gives rise to legal uncertainties. This challenge is not insignificant, as the LOSC includes numerous deliberately flexible – and vague – provisions, but also establishes a dynamic interplay between the jurisdictional rules and the continuously changing technical (IMO) standards, formed by a number of cross references on both sides. An interpretation issue that has arisen relatively recently, following some recent international cases, relates to non-flag States’ jurisdiction on the high seas (Section 2.3). Finally, at the technical level, significant regulatory voids remain. The most obvious and urgent example of environmental challenges that are not yet subject to comprehensive international rules relates to the reduction of greenhouse gases (GHGs) from ships. This issue is discussed in some detail in Section 3, as it is not only the most important regulatory challenge for the IMO today, but also unusually complex in technical, institutional and political terms. The present chapter does not, accordingly, seek to provide a full overview of the regulatory picture regarding ship-source pollution today, whether from a jurisdictional or technical perspective.4 Rather, it highlights some of the legal developments that are of jurisdictional relevance some four decades after the conclusion of the LOSC, and thereby also studies the role and relevance of the convention in this field today.

sponding figures: the IMO, International Convention on the Control of Harmful Anti-fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008), IMO Doc AFS/CONF/26 (AFS Convention), 91 States, representing 96 percent of the world tonnage; and the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36 (BWM Convention), 86 States, representing 91 percent of world tonnage. 4 A broader overview of the topic is provided in the previous edition of this book, in Henrik Ringbom, ‘Vessel-Source Pollution’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 105.

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2.

THE JURISDICTIONAL RULES

2.1 General The provisions on jurisdiction relating to vessel-source pollution are among the most detailed in the entire LOSC; the rights and obligations of flag, coastal and port States are dealt with in considerable detail in several different parts of the convention,5 which qualify the more general obligations of States to protect the marine environment outlined in the beginning of Part XII of the LOSC.6 In general, the interests of flag and coastal States are balanced differently for each maritime zone, with different provision made in respect of the jurisdiction to legislate (prescriptive jurisdiction) and the jurisdiction to take measures to enforce those rules. Enforcement jurisdiction is more limited than prescriptive jurisdiction in the sense that the right of a coastal State to regulate a particular matter is not necessarily coupled with a corresponding right to take enforcement measures against ships that fail to comply with the requirement.7 Since the adoption of the LOSC, the general direction of legal developments has been towards ‘creeping jurisdiction’, ie claims subjecting further matters to national jurisdiction at the expense of navigational freedoms.8 These claims have arisen, in large part, from a widespread lack of trust in flag States’ willingness and ability to address maritime safety and environmental protection issues in a satisfactory way due to the often faint link between the flag State and the ownership and operation of the ship, combined with the fact that few ships ever even visit the waters of their own flag States.9 In this section, two issues are highlighted, both of which go to the heart of any jurisdictional argument relating to ships, ie the balance of rights and obligations between the flag State and other States. Firstly, the development of port State jurisdiction has played a key role in refining the jurisdictional balance between flag States and other States since the LOSC was adopted. This development has been an incremental one – mostly through State practice, but sometimes manifested in treaties too – and finds its jurisdictional justification beyond the law of the sea, in rules and principles of general international law. Secondly, the rights and obligations of non-flag States with respect to violations committed on the high seas has recently been addressed in international case law and has given rise to a debate on the exclusivity of flag State jurisdiction. The two issues are linked, as port States are likely to be closely involved in the subsequent enforcement of any illicit action by ships on the high seas.

In particular in LOSC, Parts II, III, V and XII. Notably LOSC, Arts 192 and 194. 7 One example is the discrepancy in Part III of the LOSC between coastal States’ right to impose legislation with respect to ships exercising their right of innocent passage in their territorial sea, and the limitations linked to enforcing that legislation. See also the differences in this respect between Art. 211 on prescriptive jurisdiction and Art. 220 on enforcement jurisdiction. 8 Tullio Scovazzi, ‘The Evolution of International Law of the Sea: New Issues, New Challenges’ in Collected Courses of The Hague Academy of International Law (No. 286, Brill 2000). See also, Victor Alencar Mayer Feitosa Ventura, Environmental Jurisdiction in the Law of the Sea: The Brazilian Blue Amazon (Springer 2020) Ch. 6. 9 See, eg, UNCTAD, e-Handbook of Statistics 2021 (2021) . See also, Doris König ‘Flags of Convenience’ in Max Planck Encyclopedia of Public International Law (OUP 2008). 5 6

Vessel-source pollution – some key developments  199 2.2

Port State Jurisdiction

In contrast to the rigid limitations of coastal State jurisdiction over foreign ships, port States are largely left outside the jurisdictional scheme of the LOSC. Only a few provisions tentatively address the reach of port States’ jurisdiction over foreign ships that (voluntarily) enter their ports or internal waters.10 This shortage of legal provisions has meant that matters of relevance to the extent of port States’ jurisdiction are left to be governed by general international law.11 Internal waters may, for jurisdictional purposes, be assimilated to the land territory of the State.12 Ships, through their voluntary presence in the port or internal waters of another State, subject themselves to the territorial jurisdiction of that State. As a starting point, a port State is hence free to impose its national rules on foreign ships and to enforce those rules by (reasonable) means of their choice, at least as far as they do not relate to matters that are completely internal to the ship.13 It is also widely recognised that ships enjoy no general right of access to foreign ports under international law.14 This implies, a fortiori, a right for the port State to make access to its ports conditional on compliance with specific requirements.15 The absence of specific limitations on port State jurisdiction has offered an opportunity for States to strengthen the conditions and requirements that they apply to foreign ships. A gradual recognition of port States’ rights to impose conditions and requirements on foreign ships has led to an increasingly widespread use of such measures, both in terms of prescriptive requirements and in terms of the consequences of failing to comply with those requirements. In reality, port State jurisdiction has become the main vehicle for advancing maritime regulation outside the IMO.16 Port States’ jurisdiction to impose access conditions and other requirements on foreign ships entering their ports is not without limits, however. Limitations include the restraints that may follow from treaty commitments, whether imposed by bilateral or multilateral, maritime, commercial or other treaties, and from principles of general international law, such as the pro Eg, LOSC, Arts 25(2), 211(3) and 255. According to the final paragraph of the LOSC, Preamble, ‘matters not regulated by this Convention continue to be governed by the rules and principles of general international law’. 12 LOSC, Art. 8. 13 See, eg, Robin Churchill and Vaughan Lowe, The Law of the Sea (Manchester University Press 1999) 65-69. 14 Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) (Merits) [1986] ICJ Reports 1986, para. 213. See also, AV Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review 597; Louise de la Fayette, ‘Access to Ports in International Law’ (1996) 11(1) International Journal of Marine and Coastal Law 1. 15 See also, to this effect, LOSC, Arts 25(2) and 211(3). 16 Generally, see, Bevan Marten, Port State Jurisdiction and the Regulation of International Merchant Shipping (Springer 2014); Erik Jaap Molenaar, ‘Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage’ (2007) 38(1-2) Ocean Development & International Law 225 (‘Port State Jurisdiction’); Henrik Ringbom, The EU Maritime Safety Policy and International Law (Brill 2008) (EU Maritime Safety Policy); Cedric Ryngaert and Henrik Ringbom, ‘Introduction: Port State Jurisdiction: Challenges and Potential’ (2016) 31(3) International Journal of Marine and Coastal Law 379; Robin Churchill, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships—What Degree of Extra-territoriality?’ (2016) 31(3) International Journal of Marine and Coastal Law 454; Sophia Kopela, ‘Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’ (2016) 47(2) Ocean Development & International Law 89. 10 11

200  Research handbook on international marine environmental law hibition of discrimination or of abuse of rights.17 Proportionality requirements may also place limitations on the enforcement measures that may reasonably be taken against ships that fail to comply with the port State’s requirements.18 This type of limitation is clearly less specific and more dependent on the circumstances of the individual case than the relatively clear-cut, maximum limits imposed on coastal States for regulating passing ships in their maritime zones. Identifying the precise boundaries of port State jurisdiction is further complicated by the fact that different types of rules raise different jurisdictional questions. Rules relating to ‘static’ features of ships, such as their design, construction, equipment or manning, ‘follow’ the ship wherever it is. Well-known examples include the US and EU requirements on the double hull constructions of oil tankers.19 In such cases, the ship either complies with the requirement or not, irrespective of its geographical location. Since a ship operator cannot easily change this type of feature during a voyage, this type of requirement is often considered to be most intrusive with respect to ships’ navigational freedom. Paradoxically, however, static port State requirements are easier to justify in jurisdictional terms. If a ship fails to comply with a port State’s requirement on static features it will be in violation even while within the port or internal waters of the State, where its prescriptive jurisdiction is uncontested.20 Aside from the occasional judgment suggesting differently,21 it seems widely accepted that port States may impose this type of requirement on foreign ships.22 Even where the subject matter in question is subject to international rules, port States retain their right to impose additional requirements relating to static features, as long as the international rules in question do

See also, LOSC, Arts 227 and 300. Eg, LOSC, Arts 225 and 232. See also, International Law Association (ILA), Committee on Coastal State Jurisdiction relating to Marine Pollution over Vessel-Source Pollution, ‘Final Report’ (2000) 456, 495, 497 (ILA Report); Ringbom, EU Maritime Safety Policy (n 16) 228-229. 19 The US requirements were introduced in the Oil Pollution Act 1990 (33 USC 2701-2761) in the aftermath of the Exxon Valdez oil spill in Alaska in 1989. The EU double hull requirements (EU Regulation (EC) No 417/2002 of the European Parliament and of the Council of 18 February 2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers [2002] OJ L 64, and Regulation (EC) No 1726/2003 of the European Parliament and of the Council of 22 July 2003 amending Regulation (EC) No 417/2002 on the accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers [2003] OJ L 249/1) were based on MARPOL standards but accelerated the timetable, following the sinking of the Erika and Prestige tankers in European Atlantic waters in 1999 and 2002. 20 This is different with respect to passing ships. Coastal States’ jurisdiction to regulate static features of foreign ships passing through the territorial sea is specifically limited in LOSC, Art. 21(2) to ‘generally accepted international rules or standards’. On the interpretation of this phrase, see, eg, ILA Report (n 18) 473-481. 21 See, notably, Sellers v. Maritime Safety Inspector [1999] 2 NZLR 44 (CA) (NZ). 22 See, eg, sources referred to in n 16. 17 18

Vessel-source pollution – some key developments  201 not specifically exclude such complementary standards.23 The existence of such residual jurisdiction of port States is explicitly recognised in the text of some recent maritime conventions.24 The jurisdictional setting is somewhat different with respect to rules that are not static in the above sense. Here, the scope of port State rules that relate to specific conduct (or other operational conditions) needs to be determined in geographical terms, and it cannot be assumed that the violation has necessarily (also) taken place within the port State’s own waters. In case the port State seeks to regulate conduct that takes place beyond the areas over which it has explicit prescriptive jurisdiction (under the coastal State jurisdiction provisions of the LOSC), the requirement has clear extra-territorial features, and the jurisdictional foundation for the requirement may be doubted.25 Well-known examples of this type of requirement have been provided in Australian domestic legislation,26 and, to some extent, in EU law.27 However, even for such cases, it is conceivable that the required (prescriptive) jurisdictional basis for port State requirements could be found outside the realm of the LOSC, notably in the principles of extra-territorial jurisdiction under general international law.28 In addition, the jurisdictional acceptability of the port State requirement depends on the enforcement measure taken. Enforcement measures that are unproblematic from a point of view of international law, such as denying the non-complying ship the right to certain services in port, or perhaps even access to port, may be justified even if the prescriptive basis for extra-territoriality is weak; 23 See also, to this effect, Ted L McDorman, ‘Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention’ (1997) 28(2) Journal of Maritime Law and Commerce 314; Erik Jaap Molenaar, ‘Residual Jurisdiction under IMO Regulatory Conventions’ in Henrik Ringbom (ed), Competing Norms in the Law of Marine Environmental Protection, Focus on Ship Safety and Pollution Prevention (Kluwer 1997) 201-216; Lindy S. Johnson, Coastal State Regulation of International Shipping (Oceana Publications, 2004) 40; Alan Boyle, ‘EU Unilateralism and the Law of the Sea’ (2006) 21(1) International Journal of Marine and Coastal Law 24; Swedish Case No. M 8471-03, Svea Court of Appeal, Environmental Court of Appeal (Miljööverdomstolen), Judgment of 24 May 2006. 24 See, eg, AFS Convention, Art. 1(3); BWM Convention, Art. 2(3); MARPOL, Reg. I/21(8)(2). See also, FAO, Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2016) [2016] ATS 21, Art. 4(1)(b). 25 In the specific context of vessel-source pollution, it could also be argued that LOSC, Art. 218 (referred to in Section 2.1 above) a contrario suggests that there is no such extra-territorial port State jurisdiction in this field. 26 Eg, Great Barrier Reef Marine Park Act 1975 (Cth), s 59C, under which the punishable offence is ‘to enter an Australian port after navigating without a pilot if (a) a regulated ship navigates without a pilot in the compulsory pilotage area; and (b) the ship enters an Australian port under the command of the master who was in command of the ship during the navigation referred to in paragraph (a).’ Another example is the (now removed) Australian rule from 2001 obliging ships to exchange ballast water on the high seas before entering Australian ports. That rule was modified in 2015 to align with international rules that had become applicable in the meantime. 27 See, eg, the reporting and notification requirements of the Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a Community vessel traffic monitoring and information system [2002] OJ L 208/10; and Regulation 2015/757 of the European Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport [2015] OJ L 123/55. See also, Bevan Marten, ‘Port State Jurisdiction over Vessel Information: Territoriality, Extra-Territoriality and the Future of Shipping Regulation’ (2016) 31(3) International Journal of Marine and Coastal Law 470; Kopela (n 16) 96-102. 28 The most widely recognised principles are: active personality principle; the passive personality principle; the protective principle and the universality principle. See, eg, Cedric Ryngaert, Jurisdiction in International Law (2nd ed, OUP 2015).

202  Research handbook on international marine environmental law while punitive measures, such as sanctions, require a firmer prescriptive jurisdictional basis.29 With regard to enforcement, any measures taken by port and coastal States are also subject to certain important ‘safeguards’ as listed in Section 7 of Part XII of the LOSC.30 2.3

Jurisdiction of Non-Flag States on the High Seas

On the high seas all States enjoy the freedom of the seas, including the freedom of navigation.31 No State may subject any part of the high seas to its sovereignty.32 As a corollary of this, ships are subject to the exclusive jurisdiction of the flag State in the high seas ‘save in exceptional cases expressly provided for in international treaties or in [the LOSC]’.33 Two such express exceptions in the LOSC specifically deal with vessel-source pollution. First, Article 221 grants specific jurisdiction to coastal States in case of ‘maritime casualties’ or related acts that may reasonably be expected to result in major harmful consequences for the State. In such cases, the coastal State may ‘take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution’. This rule, which represents a maritime application of the doctrine of necessity and is based on the 1969 Intervention Convention,34 accordingly sets aside the general jurisdictional regime in cases of pollution of a given severity and provides a more extensive jurisdiction to coastal States to protect their interests, including in the EEZ and on the high seas.35 Second, Article 218 permits port States to take enforcement measures against foreign ships for violations of international discharge standards, even if the discharge took place on the high seas or in other States’ coastal waters. This provision departs from theories of jurisdiction prevailing at the time of the adoption of the LOSC as it does not condition the enforcement actions on the effect of the pollution on the enforcing (port) State. Although sparingly used

29 See, Molenaar, ‘Port State Jurisdiction’ (n 16); Erik J Molenaar, ‘Port and Coastal States’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 280. 30 In particular LOSC, Arts 226, 228 and 230, which provide for limitations on the inspections of ships in ports and on the penalties to be employed, but also establish a requirement to not unnecessarily delay ships in ports, and a possibility for the flag State, under certain conditions, to take over the proceedings instituted by the port State. 31 LOSC, Art. 87(1). 32 LOSC, Art. 89. 33 LOSC, Art. 92(1). 34 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (adopted 29 November 1969, entered into force 6 May 1975) 970 UNTS 212 (Intervention Convention). 35 While the Intervention Convention only referred to the high seas, it seems accepted that Art. 221 also encompasses enforcement measures in the EEZ. See, eg, IMO Secretariat, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc LEG/MISC.8, 30 January 2014, 70; Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (Kluwer 1998) 388. In such cases, Art. 221 presumably overrules Art. 220(6), which lays down a seemingly more restrictive enforcement regime in respect of the same types of incidents. See also, Aage Thor Falkanger, Maritime Casualties and Intervention: Coastal State Measures When Casualties Pose the Threat of Pollution (Fagbokforlaget 2011).

Vessel-source pollution – some key developments  203 in practice, Article 218 gained renewed prominence through its collective application by EU Member States pursuant to Directive 2005/35 on ship-source pollution.36 Beyond such explicit treaty-based exceptions, the jurisdiction of non-flag States to take measures against ships for breaching environmental requirements on the high seas has recently been the subject of some controversy. In the Norstar case, decided by the International Tribunal for the Law of the Sea (ITLOS) in 2018,37 a key question was whether the exclusivity of the flag State jurisdiction as referred to in Article 92(1) of the LOSC extended to prescriptive jurisdiction or whether it is limited to at-sea enforcement jurisdiction against ships (on the high seas).38 While the minority favoured the latter position, the majority favoured the former, whereby the exclusivity of flag State jurisdiction would rule out subsequent enforcement by other States, for example in port or by means of judicial proceedings. The practical relevance of the question is amplified given the increasing technological possibilities to monitor ships’ activities on the high seas without being physically present, for example through satellite technology. Indeed, it is undisputed both in theory and in practice that nothing prevents a non-flag State from enforcing its laws against its own nationals even if the violation in question has taken place on a foreign ship on the high seas. The high seas are therefore not a zone of lawlessness even in the absence of flag State enforcement. Rather, a State’s jurisdiction to take (subsequent) enforcement measures in respect of violations that have occurred on the high seas, for example when a ship enters a port after the violation, depends on whether (prescriptive) jurisdiction for the violation in question can be based on any of the recognised jurisdictional bases for extra-territorial jurisdiction under international law. The difficulty here is that, aside from jurisdiction based on the nationality principle (of persons or corporations), the status of the other extra-territorial jurisdictional principles is fairly unsettled in international law.39 Moreover, the narrower interpretation, supporting the limitation of exclusive flag State jurisdiction to (at-sea) enforcement measures, also appears to find support in State practice. Exceptions to at-sea enforcement jurisdiction on the high seas have tended to be addressed through treaty development, whereas the extra-territorial reach of subsequent enforcement measures has developed through national and regional legislation without any foundation in

36 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L 255, 11. 37 M/V ‘Norstar’ Case (Panama v Italy) (Judgment of 10 April 2019) ITLOS Case No 25 (Norstar, Judgment). 38 In Norstar, Judgment, the former view prevailed. See, in particular, para. 225, where the Tribunal found that ‘the principle of exclusive flag State jurisdiction is an inherent component of the freedom of navigation ... [which ] ... prohibits not only the exercise of enforcement jurisdiction on the high seas by States other than the flag State but also the extension of their prescriptive jurisdiction to lawful activities conducted by foreign ships on the high seas.’ This passage has since been reiterated and endorsed in ‘Enrica Lexie’ (Italy v. India) (Award of the Arbitral Tribunal of 2 July 2020) PCA Case No 2015-28, para. 527 (Enrica Lexie, Award). 39 See, eg, Ryngaert (n 28) Ch. 4.

204  Research handbook on international marine environmental law treaties.40 The narrower interpretation is also the preferred interpretation by most academics who have explored the matter.41 It is accordingly difficult to agree with the very extensive interpretation of the reach of exclusive flag State jurisdiction adopted by the majority in the Norstar judgment.42 Other States are not prevented from exercising subsequent (enforcement or adjudicative) jurisdiction against foreign ships for violations on the high seas, provided that a basis for that jurisdiction can be found in the principles of jurisdiction accepted under general international law. 2.4 Assessment Some four decades after the adoption of the LOSC, the convention’s jurisdictional regime still stands firm. The authority of the ‘Constitution for the Oceans’, including its detailed provisions on vessel-source pollution that feature in several parts of the convention, is by and large intact. Somewhat paradoxically, though, it is equally clear that since the time when the LOSC was being negotiated, there has been a shift in the balance between navigational and environmental interests, towards coastal (environmental) interests, at the expense of navigational rights and the exclusive authority of the flag State. This paradox represents a reflection of the ingenuity of the convention, having managed to keep up with societal developments without losing its status as the undisputed authority for rights and obligations relating to ocean usage. A key reason behind this regulatory feat is that the main jurisdictional developments in this field have taken place in areas that are not subject to detailed regulation in the LOSC. In particular, as the LOSC regime places important limitations on coastal States’ opportunities to regulate foreign ships, the absence of similar restraints on port States has been used to develop the regulatory toolkit against foreign ships. Port State jurisdiction has gradually and discretely evolved into an accepted jurisdictional basis for both prescribing and enforcing rules that go beyond the internationally agreed ones, applied to any ship visiting ports of the regulating State or region. Such requirements have usually been introduced by larger port States or regions that are less exposed to the commercial risk that ships avoid their requirements by diverting to a neighbouring port. However, the practical relevance of the option to introduce such requirements

For some more examples, see, Henrik Ringbom ‘Ships in ABNJ - Broadening Jurisdictional Opportunities for Non-Flag States’ in Vito de Lucia, Lan Nguyen and Alex G Oude Elferink (eds), International Law and Marine Areas beyond National Jurisdiction: Current Status and Future Trends, (Brill 2022, forthcoming). A seven-judge strong minority in Norstar, Judgment similarly held that ‘nothing in the text of the Convention, in its travaux préparatoires, in other international treaties, in customary international law, or in the practice of States suggests that art. 87 and its corollary art. 92 altogether excludes the right of non-flag States to exercise their prescriptive criminal jurisdiction with respect to activities on the high seas.’ Norstar, Judgment (n 37) Joint Dissenting Opinion Judges Cot, Pawlak, Yanai, Hoffmann, Kolodkin and Lijnzaad and Judge ad hoc Treves, para. 19. 41 For an overview of academic opinions on this matter, see, Aaron N Honniball, ‘The Exclusive Jurisdiction of Flag States: A Limitation on Pro-active Port States?’ (2016) 31(3) International Journal of Marine and Coastal Law 499, 504-509, 519-525. 42 The passage in Norstar, Judgment quoted in (n 38) has since been reiterated and endorsed in Enrica Lexie, Award (n 38) para. 527, which is even less explicit on the reasons for taking this view. See, Aaron Honniball, ‘The “Enrica Lexie” Incident Award and Exclusive Flag State Jurisdiction’ (Centre for International Law National University of Singapore, 10 August 2020) . 40

Vessel-source pollution – some key developments  205 goes beyond the concrete cases where such measures have actually been introduced. The mere availability of the option has come to play an important role in the negotiation of international shipping standards. By raising the possibility of introducing unilateral measures, States are placing pressure on the IMO to advance their efforts at technical regulation. The IMO, for its part, wishes to maintain global harmonisation in shipping standards, and carefully listens to States that indicate they may break from the global consensus if their desire is not accepted at the global level. This practice also points to one of the other main reasons for the stability of the existing regulatory regime for vessel-source pollution: the readiness of the IMO to respond to regulatory demands, by adopting new standards to meet the environmental concerns of its membership, which is studied more closely in the next section. Port State jurisdiction over matters occurring beyond national jurisdiction also lies at the heart of ongoing controversy related to the interpretation of the long-standing principle that ships are subject to the exclusive jurisdiction of their flag States on the high seas. Is this, as is suggested by ITLOS in the Norstar case, to be understood as including subsequent enforcement measures, for example by port States, or is it limited to actual enforcement measures taken at sea? A discrepancy seems to be developing between, on the one hand, academic opinion and the developments in practice on jurisdiction over ships and, on the other hand, recent international case law on this matter. In particular, two recent judgments on the matter, the Norstar and Enrica Lexie, have emphasised the exclusive nature of flag States’ jurisdiction over their ships for acts taking place beyond other States’ jurisdiction. However, these cases are unlikely to alter the general trend of development, as both judgments include too many question marks in respect of their reasoning to be authoritative beyond the confines of those cases. In conclusion, port State jurisdiction offers a powerful tool for non-flag States that wish to make use of jurisdictional bases outside the immediate law of the sea framework for regulating foreign ships, in excess of what existing international standards provide for. So far, such requirements have tended to focus on static requirements, hence emphasising the territorial presence of the foreign ship in the port State, but nothing excludes the possibility that other prescriptive bases, such as that of nationality (of the persons or of the operating company) could be similarly used as a ground for the port State to exercise (adjudicative) enforcement jurisdiction against non-complying ships. The ongoing negotiations on an agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ)43 would have provided a good opportunity for the world community to specify the extent of non-flag States’ jurisdiction over matters taking place on the high seas, and hence to clarify some of the confusion introduced by the Norstar and Enrica Lexie judgments. However, that opportunity does not seem to have been seized,44 which leaves the matter to be regulated by general international UN, Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, ‘Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (General Assembly resolution 72/249)’. Information on the status of the negotiations is available at . 44 The (heavily bracketed) draft text of 18 November 2019 does not include a role for non-flag States in implementing and enforcing the obligations. UNGA, Revised Draft Text of an Agreement under the UN LOSC on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction, UN Doc A/CONF.232/2020/3, 18 November 2019. 43

206  Research handbook on international marine environmental law law and advanced by State practice. As far as State practice is concerned, there are no signs that the tendency towards increasing acceptance of jurisdiction by port States will go away, whether for high seas violations or otherwise. On the contrary, technical developments permitting monitoring of ships without physical presence at sea is likely to increase the demand for subsequent enforcement measures by non-flag States. The introduction of unilateral measures by a State or region is always controversial in shipping and involves certain political and commercial risks. Legally, however, port State jurisdiction is less objectionable and the ‘latent’ jurisdiction it offers has proven to be an important safety valve for States that consider that the prevailing international safety or environmental standards offer insufficient protection for their needs, hence also allowing the jurisdictional balance between flag States and other States to develop over time.

3.

THE TECHNICAL RULES: REGULATING GHG EMISSIONS FROM SHIPS45

3.1

General Starting Point

The IMO has played a central role in developing the international regulatory regime for shipping. Out of the 50 or so conventions adopted by the organisation, roughly half deal with environmental protection. These conventions cover a broad range of issues, including rules for ship construction and equipment, operational and management standards for marine pollution and air emissions, pollution response activities and civil liability rules.46 However, the regulatory task of minimising the environmental impact of shipping is not complete. One of the key contemporary regulatory challenges for the IMO relates to climate change and the reduction of GHG emissions from ships. This matter is the key environmental issue currently on the IMO’s agenda47 and presents an unusually complex mix of regulatory, policy and technical challenges. It also aptly illustrates the dynamism between the LOSC, the IMO and general international law, as well as the various pressures that underlie the work of the IMO. Two quite basic regulatory questions aptly highlight those complexities. The first question is which institution should be in charge of regulating this matter. Should it be the IMO, or should it be the global framework for regulating climate change? Is the question, in other words, to be regarded as a shipping matter or a measure akin to other (national) measures aimed at mitigating climate change? This discussion has existed from the outset and is still not entirely resolved.

45 This text is inspired by, and to some extent reproduces, parts of Henrik Ringbom, ‘Regulating Greenhouse Gases from Ships - Some Light at the End of the Funnel?’ in Elise Johansen, Signe Veierud Busch and Ingvild Ulrikke Jakobsen (eds), The Law of the Sea and Climate Change: Solutions and Constraints (CUP 2020) 129. 46 For a fuller overview, see, Ringbom ‘Vessel-Source Pollution’ (n 4). 47 International maritime transport contributes, mainly through burning fossil fuels, some 2-3 percent of the total anthropogenic emissions of carbon dioxide (CO2), and this share is widely expected to grow. See, eg, Marine Environment Protection Committee (MEPC), Fourth IMO Greenhouse Gas Study 2020: Final Report, MEPC Doc 75/7/15, 29 July 2020 (Fourth IMO Study). Another issue that remains unregulated is ships’ underwater noise.

Vessel-source pollution – some key developments  207 The question of competent institution has important substantive implications and has, in particular, been linked to the question of what principle should guide the responsibility for taking the necessary measures. In the climate change framework, the principle of ‘common but differentiated responsibility’ (CBDR) has been the guiding principle from the outset,48 whereas the IMO has traditionally relied on the principle that all ships should be treated in the same way.49 Transport is far from excluded from the global climate change regime.50 The Paris Agreement includes all GHG emissions within its long-term mitigation aims. Its aim is ‘to strengthen the global response to the threat of climate change’ by containing the increase of temperature within the limits referred to in Article 2(1)(a).51 In order to achieve those goals ‘Parties aim to reach global peaking of greenhouse gas emissions as soon as possible ... so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’.52 As a minimum, it therefore seems clear that allowing the emissions of shipping to increase by a factor of two or more until 205053 would jeopardise the climate goals set in the Paris Agreement and therefore would not be consistent with the agreement. A climate regime for shipping within the UNFCCC could thus, in theory, be developed on the basis of existing provisions and would not require an amendment of its existing mandate.54 Nor would the reference in the LOSC to a single ‘competent international organization’ when it comes to ship-source pollution constitute a limit in this regard. The reference is commonly understood as referring to the IMO, but there is no limitation to that effect in the LOSC itself.55 The climate change regime could very well be the organisation competent for regulating GHG UN Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC), Art. 3(1). In the Kyoto Protocol to the UNFCCC, 2303 UNTS 148, 10 December 1997 (Kyoto Protocol), the main part of the obligations was limited to (developed) States listed in Annex 1. In the Paris Agreement to the UNFCCC (adopted 12 December 2015, entered into force 4 November 2016) 55(4) ILM 740 (Paris Agreement), the CBDR principle features in Arts 2(2) and 4, but is moderated as the Agreement includes all States in mitigation efforts. 49 See, eg, the examples given in n 3. 50 UNFCCC refers to contribution by ‘all economic sectors’, and even includes certain references to transport in some of the key provisions (Arts 3 and 4(1)(c)). In Art. 2(2) of the Kyoto Protocol, matters relating to bunker fuel from shipping and aviation was specifically left for the IMO and the International Civil Aviation Organization (ICAO) to regulate, but such a provision no longer features in the Paris Agreement. 51 Paris Agreement, Art. 2(1). 52 Paris Agreement, Art. 4(1). 53 See, Joanne Scott and others, ‘The Promise and Limits of Private Standards in Reducing Greenhouse Gas Emissions from Shipping’ (2017) 29(2) Journal of Environmental Law 231, 235. 54 See also, Aoife O’Leary and Jennifer Brown, ‘Legal bases for IMO Climate Measures’ (Environmental Defense Fund, Sabin Center for Climate Change Law, Columbia Law School, 2018) . 55 The use of the word ‘organization’ in the singular in some parts of the LOSC that deal with ship-source pollution (eg, Art. 211(1)), does not preclude that several organisations are competent for different aspects of the topic (note eg, the division of competence between the IMO and ILO on different aspects of regulation of seafarers). It is also to be noted that the reference is frequently coupled with the phrase ‘or general diplomatic conference’ (eg, Art. 211(2)). This addition was originally made to the LOSC precisely to preclude a monopoly for a single organisation. See, eg, Daniel Bodansky, ‘Protecting the Marine Environment from Vessel-Source Pollution’ (1991) 18(4) Ecology Law Quarterly 719, 772. 48

208  Research handbook on international marine environmental law emissions from shipping, in view of its better understanding of the global challenge underlying the need for regulation. Nor is there anything in the LOSC precluding a sharing of the competence for a topic between two or more international organisations. In more practical terms, however, a shift of the regulatory initiative to the UNFCCC would involve some challenges. The mitigation tools offered by the Paris Agreement, ie the national reduction pledges, are not well suited for emissions caused by international shipping. Moreover, the UNFCCC framework offers fewer opportunities for the speedy adoption of globally applicable amendments than does the IMO’s procedures.56 The UNFCCC framework also includes no tools for ensuring a workable monitoring and enforcement regime for internationally movable objects like ships. For the moment, it seems widely accepted, also within the global climate change framework, that the IMO is the most suitable body for addressing GHG emissions from ships.57 Regulatory measures and implementation tools, discussed in Section 4.2 below, have strengthened the IMO’s position in this respect in past years. Nevertheless, while the debate as to the appropriate regulatory forum is more settled than it has been for decades, a continued consensus on the matter is dependent on results by the IMO in terms of concrete emissions reductions from the shipping sector in coming years. A second key question is what can reasonably be asked from shipping in terms of emission reductions. To achieve a contribution equal to that of other sectors in achieving the climate goals (50 percent probability of attaining the 2 degrees limit to global temperature rise), shipping emissions must be reduced by 50 percent from 2012 levels by 2050 and reach zero emissions by 2080.58 Yet, even dramatic improvements in fuel efficiency of ships would not achieve overall reductions in the cumulative emissions from ships. Indeed, total emissions have been projected to rise by 50 percent to 250 percent of 2012 levels by 2050, due to estimated increases in world trade.59 The dominant role of the increase in world trade in the projected increase of emissions raises two issues. First, is it fair to demand that shipping reduce its total emissions when the cause of the increase lies in factors beyond shipping? While ship-based reduction targets may be easier to justify, it is more difficult to establish a ‘fair share’ of the total emission reduction by the sector as a whole, as the growth in trade is neither known nor controllable by the industry itself. Second, how is the balance to be struck between technical feasibility and promotion of innovation? On the one hand, it appears widely accepted that technological solutions and fuels that are currently in use will not be able to achieve reductions of the magnitude required,60 which make very ambitious reduction requirements seem unrealistic. On the other hand, it is equally well-understood that stringent forward-looking requirements with a clear goal are needed to foster technological change and promote investments and research and development into new technologies, in this case notably regarding alternative fuels for ships. See n 3. Beatriz Martínez Romera, ‘The Paris Agreement and the Regulation of International Bunker Fuels’ (2016) 25(2) Review of European Community & International Environmental Law 215, 221. 58 See, Scott and others (n 53) 234. 59 Ibid. See also, MEPC, Third IMO GHG Study 2014: Final Report, MPEC Doc 67/INF.3, 25 July 2014, and the somewhat moderated predictions made in Fourth IMO Study (n 47). 60 See, eg, various presentations in the Symposium on Alternative Low-Carbon and Zero-Carbon Fuels (9 and 10 February 2021) . 56 57

Vessel-source pollution – some key developments  209 Against the backdrop of such challenges, a closer look is undertaken below, first, on the measures (Section 3.2) and strategy (Section 3.3) so far adopted by the IMO, followed by a quick review of some of the remaining gaps and key institutional pressures that surround the activities of the IMO in this field (Section 3.4). 3.2

Technical and Operational Measures

Emission of GHGs is not a new topic for the IMO. Since the late 1990s, the organisation has sought to address the reduction of GHGs from ships, with a particular focus on CO2, which is directly related to the amount of fuel consumed by ships. The first regulatory progress was achieved in 2011, when new design requirements for the energy efficiency of new ships were introduced as Chapter 4 to MARPOL Annex VI, which entered into force on 1 January 2013.61 These rules make mandatory the Energy Efficiency Design Index (EEDI) for new ships. The index is based on a formula dividing the emissions (from main and auxiliary engines, subject to various correction factors) by the benefits for society (capacity and speed of the ship), and establishes index levels that new-built ships (differentiating between different categories of ships) have to comply with before they are entitled to operate. The index requirements will be gradually strengthened, so as to require higher energy efficiency by ships built in the future than by those built today.62 The reduction factors and reference line values, which form the basis of the energy efficiency requirements, are to be reviewed subject to technical developments and the first adjustments have already been made.63 However, since the measure only covers new ships (or major conversions), a significant time lag for its impact on global emissions is inevitable. Ships normally have a commercial life of some 30 years, and it will therefore take several decades until all ships have been built to the EEDI standards. The addition of the new Chapter 4 to MARPOL Annex VI in 2011 also included a provision aimed at reducing GHG from ships by means of operational measures.64 However, the normative effect of the requirement is limited, as it only represents a requirement that a Ship Energy

61 MEPC, Resolution. MEPC.203(62): Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, MEPC Doc 62/24/Add.1, (MEPC, Resolution 203(62)) Annex 19, 15 July 2011. 62 MARPOL, Annex VI: Prevention of Air Pollution from Ships (entered into force 19 May 2005) (MARPOL, Annex VI), Reg. 21, as amended in 2011. 63 The EEDI originally covered only the largest and most energy-intensive segments of the world’s merchant fleet, ie tankers, bulk carriers, gas carriers, general cargo ships, container ships, refrigerated cargo carriers and combination carriers. In 2014, MARPOL, Annex VI was amended to extend the scope of EEDI to: LNG carriers, ro-ro cargo ships (vehicle carriers), ro-ro cargo ships; ro-ro passenger ships and cruise passenger ships having non-conventional propulsion. For certain types of ship, the implementation dates were strengthened in May 2019. See, MEPC, Report of the Marine Environment Protection Committee on its Seventy-Fourth Session, MEPC Doc 74/18, 9 June 2019. 64 All ships above 400gt are, based on MARPOL, Annex VI (n 62) Reg. 22, required to have a Ship Energy Efficiency Management Plan (SEEMP). The plan seeks to help ship operators to improve the energy efficiency of a ship by means of operational measures (eg through improved voyage planning or more frequent hull cleaning, or introduction of technical measures such as waste heat recovery systems or a new propeller).

210  Research handbook on international marine environmental law Efficiency Management Plan (SEEMP) exists. It does not include any standards on the content of the plan, nor any reduction targets that ships must meet.65 Some further developments to both requirements were approved in June 2021.66 The Energy Efficiency Existing Ship Index (EEXI) will extend the principles of the EEDI to existing ships,67 while the ‘Annual operational carbon intensity indicator’ (CII) requires ships to determine the annual reduction factor needed to ensure continuous improvement of the ship’s operational carbon intensity and to document the achieved annual operational CII in the SEEMP.68 Failure to attain the CII targets will not, under the current rules, automatically result in operational limitations or other forms of sanctions.69 However, many details about the practical applications of these measures remain to be settled through further guidelines, on, inter alia, exemptions, corrections, methods for setting the targets and on the enforcement of the rules.70 A global data collection system for maritime transport was adopted in 2016 to address the absence of reliable ship emission data and to facilitate the development of further regulatory measures.71 Starting from 2020, IMO’s data collection system requires all ships above 5,000 gross tonnage to collect consumption data for each type of fuel oil they use, as well as other, additional, specified data including proxies for transport work. The data is reported by owners to the flag State on a yearly basis. 3.3

The Initial IMO Strategy

The above technical and operational measures will not suffice to bring shipping in line with the targets of the Paris Agreement, or even reduce the overall emissions of the sector in view of the projected growth in international trade. Following the adoption of the Paris Agreement in 2015, the IMO adopted a Roadmap for developing a ‘Comprehensive IMO strategy on

MARPOL, Annex VI (n 62) Reg. 22. See also, MEPC, Guidelines for voluntary use of the EEOI, IMO Doc MEPC.1/Circ.684, 17 August 2009. 66 MEPC, Report of the Marine Environment Protection Committee on its Seventy-Fifth Session, MEPC Doc 75/18, 15 December 2020; MEPC, Consideration and Adoption of Amendments to Mandatory Instruments, MEPC Doc 76/3, 16 February 2021; MEPC, Draft Report of the Marine Environmental Protection Committee on its Seventy-Sixth Session, MEPC Doc 76/WP.1/Rev.1, 23 June 2021, para. 3.32 (MEPC, Draft Report 2021). 67 IMO, MEPC Resolution 328(76), MEPC Doc 76/15/Add.1, Annex, 24 August 2021 (Revised MARPOL, Annex VI), Regs 23 and 25. 68 Ibid, Reg. 24. 69 Ibid, Reg. 28. 70 MEPC, Draft Report 2021 (n 66) paras 7.1–7.60. 71 MPEC, Resolution MEPC.278(70): Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Protection of Pollution from Ships, 1973, As Modified by the Protocol of 1978 Relating Thereto, MEPC Doc 70/18/Add.1, Annex 3, 28 October 2016 (MPEC, 70/18/Add.1), introducing a new Reg. 22A to MARPOL, Annex VI, including two new appendices. See also, MEPC, Resolution MEPC.293(71): 2017 Guidelines for the Development and Management of the IMO Ship Fuel Oil Consumption Database, MEPC Doc 71/17/Add.1, 7 July 2017, Annex 17; MEPC, Resolution MEPC.292(71): 2017 Guidelines for Administration Verification of Ship Fuel Oil Consumption Data, MEPC Doc 71/17/Add.1, 7 July 2017, Annex 16, including guidance for shipowners. See also, IMO, MARPOL amendments enter into force - ship fuel oil reporting requirements, garbage classification and IOPP certificate (5 March 2018) . 65

Vessel-source pollution – some key developments  211 reduction of GHG emissions from ships’.72 In line with the Roadmap, an ‘Initial IMO Strategy’ for dealing with the matter was agreed in 2018,73 to be replaced by a comprehensive strategy in 2023. Even if it is not a binding instrument, the strategy establishes certain important goals for the organisation in dealing with GHGs from ships and at the same time bridges some of the previous issues of contention.74 The Initial IMO Strategy envisages a reduction in carbon intensity of international shipping (to reduce CO2 emissions per transport work, as an average across international shipping, by at least 40 percent by 2030, pursuing efforts towards 70 percent by 2050, compared to 2008), and that total annual GHG emissions from international shipping should be reduced by at least 50 percent by 2050 compared to 2008. The strategy also makes a bridge to the global climate change framework by acknowledging that the Paris Agreement temperature goals form part of the levels of ambition that direct the strategy75 and that both non-discrimination and the CBDR principles represent guiding principles for the strategy.76 The Initial IMO Strategy includes a list of possible short-, mid-, and long-term further measures, with timelines, to be revised as appropriate as additional information becomes available. The short-term measures (to be agreed between 2018 and 2023) include further improvement of the EEDI and SEEMP tools for improving energy efficiency, along with a series of measures to stimulate the adoption of innovative technologies. There are five mid-term measures (2023–2030), one of which is ‘new/innovative emission reduction mechanism(s), possibly including Market-based Measures (MBMs), to incentivize GHG emission reduction’.77 The long-term goals focus on pursuing the development and provision of zero-carbon or fossil-free fuels and facilitating the general adoption of other innovative emission reduction mechanisms. As noted above, by June 2021, the IMO’s focus has been almost exclusively on short-term measures (EEXI, CII and related measures), whereas the discussions on the more divisive issue of MBMs have barely started. 3.4

Remaining Measures and Pressures

Of the measures discussed to date, MBMs have proven by far the most controversial. MBMs refer to a broad range of measures that provide for economic incentives for ship operators to

MPEC, 70/18/Add.1 (n 71) Annex 11. See also, MEPC, Reduction of GHG Emissions from Ships: Development of a Road Map to Determine a Possible IMO Fair Share Contribution, MEPC Doc. MEPC 70/7/8, 19 August 2016. 73 MEPC, Resolution MEPC.304(72): Initial IMO Strategy on Reduction of GHG Emissions from Ships, MEPC Doc 72/17/Add.1, Annex 1, 13 April 2018 (MEPC, Resolution 304(72)). 74 The legal status of the Initial Strategy was boosted through the 2021 revision of MARPOL, Annex VI, which included a new Regulation, outlining the goal of the relevant chapter as being ‘to reduce the carbon intensity of international shipping, working towards the levels of ambition set out in the Initial IMO Strategy’. IMO Doc MEPC Resolution 328 (76), Annex (n 67), Reg. 20. 75 MEPC, Resolution 304(72) (n 73) para. 3.1.3. 76 Ibid, para. 3.2.1. 77 Ibid, para. 4.8.3. The only candidate longer-term measures (beyond 2030) listed in para. 4.9 are to ‘pursue the development and provision of zero-carbon or fossil-free fuels to enable the shipping sector to assess and consider decarbonization in the second half of the century’ and to ‘encourage and facilitate the general adoption of other possible new/innovative emission reduction mechanism(s).’ 72

212  Research handbook on international marine environmental law reduce their bunker fuel consumption.78 They range from various forms of ‘levies’ or ‘carbon taxes’ on bunker fuel to efficiency credit trading programs and fully fledged ‘cap and trade’ emission trading schemes where emission rights could be sold and purchased on a market. The two main proposals are: an emissions trading system; and an international levy imposed on bunker fuel at purchase, established by a given cost level per tonne of fuel bunkered. Both measures have the potential to generate significant funds, which could be used for emission reduction measures where they can be most cost-effectively implemented (including emission reductions outside the realm of shipping, if so decided). MBMs have been discussed at the IMO since 2003, and in some greater depth from 2006.79 The organisation’s members have been deeply divided on whether and how to include MBMs, and in the event they are included, whether it should be a system for the shipping sector alone or whether reduction measures could be taken in other sectors. Deep divisions have also existed as to whether, and if so in what manner, the system should accommodate the CBDR principle. Indeed, the topic proved so divisive that in 2013 it was decided to suspend the discussions.80 Discussions on MBMs have yet to resume at the IMO, but pressure to reach a result in this field further increased in 2016 when the International Civil Aviation Organization (ICAO) succeeded in adopting a global emission reduction scheme.81 Apart from the tensions in relation to other global institutions, the regulation of GHGs at the IMO is subject to unusually strong pressures from certain other directions as well. Notably, the European Union has voiced its concerns with the slow progress at the IMO for a long time, more recently coupled with the observation that shipping is by now the only sector not expressly addressed by an EU emissions reduction objective or specific mitigation measures.82 Climate change is currently among the main policy priorities of the EU and the European

The Organisation for Economic Co-operation and Development (OECD) has defined market-based measures more narrowly by stating that they ‘seek to address the market failure of “environmental externalities” either by incorporating the external cost of production or consumption activities through taxes or charges on processes or products, or by creating property rights and facilitating the establishment of a proxy market for the use of environmental services.’ See, OECD, ‘Glossary of Statistical Terms: Market-Based Instruments’ (23 July 2017) . See also, Harilaos N Psaraftis, ‘Market-Based Measures for Greenhouse Gas Emissions from Ships: A Review’ (2012) 11(2) WMU Journal of Maritime Affairs 211. 79 IMO, ‘Market-Based Measures’ . 80 MEPC, Report of the Marine Environment Protection Committee on its Sixty-Fifth Session, MEPC Doc 65/22, 24 May 2013, 44. 81 ICAO Assembly, Resolution A39-3: Consolidated statement of continuing ICAO policies and practices related to environmental protection – Global Market-based Measure (MBM) scheme, 2016 , setting up the ‘Carbon Offsetting and Reduction Scheme for International Aviation’ (CORSIA). The scheme entered its pilot phase in 2021, but individual reduction obligations, which represent the real incentive for air operators to reduce their emissions, will only apply from 2030. Nevertheless, it is clear that its establishment has contributed to a convergence of regimes governing international and national emissions and that many of the arguments relating to the impossibility of finding solutions for international bunker fuels have weakened along the way. 82 See, eg, Directorate-General for Climate Action, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2015/757 in order to take appropriate account of the global data collection system for ship fuel oil consumption data, EC Doc COM(2019) 38 final, 4 February 2019, 1 (EU, COM(2019) Proposal). 78

Vessel-source pollution – some key developments  213 Parliament adopted a proposal in 2020 to include shipping in the European emission trading scheme.83 While the final outcome of the EU proposals is uncertain at time of writing, they indicate a preparedness within two key institutions to take a tougher stance on the issue of GHG emissions from shipping. To back potential future regional reduction measures, the EU has already developed its own scheme for monitoring, reporting and verification of CO2 emissions from ships.84 Clearly, regional MBMs, such as inclusion of international shipping in the EU emission trading scheme, would give rise to a number of intricate international law questions and policy concerns,85 as was already seen when a similar proposal to include international aviation was approved in 2008.86

In a partial decision of 16 September 2020, the European Parliament considered that ships with a gross tonnage of 5,000 or more should be included in the EU ETS in order to contribute to the achievement of the climate neutrality objective for the EU economy as a whole, along with a series of other proposals, including rules relating to methane emissions from ships and to shore-side electricity for ships at berth (European Parliament, Global data collection system for ship fuel oil consumption data, EU Doc P9_TA(2020)0219). As of June 2021, the matter had not been discussed by the Council, where the EU Member States are represented. In addition, the European Commission is reported to be preparing proposals on, inter alia, carbon intensity standards on fuels used by ships and zero emissions at berth. See, eg, Anastassios Adamopoulos, ‘The EU is about to push the first-ever fuel carbon intensity measure on shipping’ Lloyd's List, 5 February 2021 . 84 Commission Implementing Regulation (EU) 2017/757 of 28 April 2017 on the issue of licenses for importing rice under the tariff quotas opened for the April 2017 subperiod by Implementing Regulation (EU) No 1273/2011 [2017] OJ L 113/42 (EU Regulation 2017/757) was adopted ahead of the approval of the IMO’s data collection system. The two systems are not identical and are unlikely to be so, even if a current EU proposal seeks to align the two systems, at least as far as reporting is concerned. See, EU, COM(2019) Proposal (n 82), which is still being discussed among the EU institutions. European Parliament, ‘Carbon dioxide emissions from maritime transport: global data collection system for ship fuel oil consumption data’, Procedure 2019/0017 (COD). 85 The international law concerns centre around the extent to which a State (or region) may require foreign ships to comply with unilateral requirements that extend beyond its territorial jurisdiction, on the basis of its temporary presence in the port. It is, in other words, closely related to the discussion on port State jurisdiction in Section 2.2 above. See also, Henrik Ringbom, ‘Global Problem – Regional Solution? – International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships’ (2011) 26(4) International Journal of Marine and Coastal Law 613. 86 The EU’s legislation on the regional emission trading system was amended by Directive 2008/101/ EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/ EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L 8/3 to include aviation within the scope of the EU ETS as from 2012. However, due to strong protests from third countries, it was decided to postpone application of this amendment for flights between the EU and third countries. Intra-EU flights remain included in the ETS, while the future inclusion of flights to and from third countries will depend on regulatory progress made at ICAO. See, European Commission Climate Action, ‘Reducing emissions from aviation’ . The application of EU rules to non-EU flights raised legal concerns, too, but in Case C-366/10 Air Transport Association of America and Others v Secretary of State for Energy and Climate Change [2011] ECR I-13755, the Court of Justice of the EU considered that the extension did not amount to a breach of international law. The judgment has been criticised in legal literature for being too superficial on the question of extraterritorial jurisdiction. See, eg, Geert De Baere and Cedric Ryngaert, ‘The ECJ’s Judgment in Air Transport Association of America and the International Legal Context of the EU’s Climate Change Policy’ (2013) 18(3) European Foreign Affairs Review 389, 402. 83

214  Research handbook on international marine environmental law Finally, reducing the climate impact of shipping involves an uncharacteristically broad range of non-State actors. Bottom–up approaches adopted by individual corporations have not been common in shipping governance, though they have played a key role in the development of the global climate regime more generally.87 In the context of GHG regulation, however, certain industry players have developed their own requirements at industry level in response to slow progress at the IMO.88 Examples include systems that monitor the carbon footprint of transport,89 set up a certification and benefit scheme in ports90 or an environmental index for ships,91 or address more general sustainability questions in maritime transport.92 To date, such initiatives have complemented existing regulation and have not, therefore, challenged the authority of the IMO. Nevertheless, these developments are still indicative of a governance trend in shipping towards broader participation by non-State actors in the regulatory process and bottom–up initiatives by individual industry sectors, which in the future could represent additional pressures on the IMO to increase its level of ambition in this area. 3.5 Assessment Despite decades of work aimed at reducing GHG emissions from ships, the IMO’s progress is not impressive in terms of emission reduction. The work has been hampered by uncharacteristically difficult political divides among its membership, but also unprecedented pressures from other regulatory authorities at global and regional levels, as well as other non-governmental stakeholders. While it is still far too early to claim success, several recent developments in this field indicate a shift towards a better regulatory environment, allowing the IMO to focus on meeting the aims of its initial strategy. The adoption of the Paris Agreement and the subsequent developments at the IMO have removed some of the longstanding difficulties that have beset the regulation of GHGs from international shipping. This advance may give reason for some optimism with respect to regulatory progress in the future. The institutional battle has entered a period of consolidation and relative ‘truce’ since the adoption of the Paris Agreement in 2015 and with the unanimous approval of the Initial IMO Strategy. The regime currently provides for ‘dynamic stability’, with the IMO clearly positioned in the driving seat. The truce is not without its conditions,

The Paris Agreement specifically recognises ‘the importance of the engagements of all levels of government and various actors ... in addressing climate change’ (Paris Agreement, Preamble, para. 15) and refers to public and private sector participation in the implementation of nationally determined contributions (Art. 6(8)(b)). See also, UNFCCC COP, Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, UN Doc FCCC/CP/2015/10/ Add.1, 29 January 2016, Decision 1/CP.21, paras 134-137. 88 See, eg, Jane Lister, René Taudal Poulse and Stefano Ponte, ‘Orchestrating Transnational Environmental Governance in Maritime Shipping’ (2015) 34 Global Environmental Change 185; Lindsay Wuisan, Judith van Leeuwen and CSA (Kris) van Koppen, ‘Greening International Shipping Through Private Governance: A Case Study of the Clean Shipping Project’ (2012) 36(1) Marine Policy 165; Scott and others (n 53). 89 The Environmental Ship Index (ESI) . 90 Green Award . 91 Clean Shipping Index . 92 Sustainable Shipping Initiative . 87

Vessel-source pollution – some key developments  215 however, and a key milestone for measuring the IMO’s success in the field will be in 2023.93 Much of the result will depend on how the organisation manages to face the challenge of MBMs and, in the longer term, on the pace of the industry’s shift towards alternative zero-carbon fuels. With respect to guiding principles, the shift made in the Paris Agreement towards a more nuanced form of differentiation between States has paved the way for convergence between the two competing principles on whether and how to differentiate between States’ obligations (the non-differentiation principle and the CBDR principle), which had been so problematic for the work at the IMO. There now seems to be a good basis for continuing the IMO tradition of regulating ships without differentiation as to their flag in this field. As acknowledged by the Initial IMO Strategy, the objectives of the CBDR principle remain relevant – but that principle may be expected to feature mainly in the form of allocation of revenues to developing countries for financing mitigation and adaptation measures, or through technical assistance, while playing a limited role (if any) in the design of technical, operational or MBMs as such. This development is indeed welcome, and a condition for an effective regulatory regime in shipping. While reaching consensus on these goals and principles is significant in light of the earlier divisions in the IMO, the Initial Strategy is still very far from producing any reductions in emissions from shipping. The document is an expression of objectives rather than of actions, in a legally non-binding format, and includes no concrete commitment in the form of reduction measures to be undertaken. In reality, existing technologies may not be sufficient to achieve the longer-term reduction goals. Moreover, even if the reduction goals expressed in the Initial Strategy are achieved, these will not be sufficient to meet the climate goals of the Paris Agreement.94

4.

CONCLUDING OBSERVATIONS

As noted at the outset, the legal framework for vessel-source pollution is more settled than it has ever been before. The LOSC comprehensively deals with the jurisdictional aspects of the matter, it is broadly accepted in formal terms and its detailed provisions on vessel-source pollution are widely recognised as representing customary international law. At the technical level, the IMO has been productive in responding to new environmental challenges by adopting and continuously updating a broad range of conventions on the topic, which have contributed to a very comprehensive set of standards aimed at minimising ships’ environmental impact. Upon closer analysis, however, the regime is neither as stable nor as comprehensive as it may first appear. As the BBNJ negotiations illustrate, our increased knowledge and altered 2023 is not only the time for the review of IMO’s GHG Strategy, but also the year for the first global stocktake of the Paris Agreement and the deadline set by the EU for IMO measures that ‘duly contribute’ to achieving the climate goals of the Paris Agreement under Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/181 [2018] OJ L 76/3, Recital No 4. 94 For criticism of the IMO in this respect, see, eg, Faig Abbasov, ‘Shipping body’s climate plan “ignores Paris Agreement”’ (Transport & Environment, 30 October 2020) . 93

216  Research handbook on international marine environmental law perception of the environmental challenges facing the oceans calls, at times, for additional treaty-making efforts to fill the most pressing jurisdictional gaps. The jurisdictional regime is also subject to change through State practice. In reality, jurisdictional boundaries have been, and continue to be, shifted through a complex and not so obvious web of developments in law and practice, at global, regional and national levels. One example of key relevance for the overall jurisdictional scheme of shipping is the development of port State jurisdiction, where small advances have gradually come to adjust the boundaries of what is legally permissible, in particular in relation to the imposition of prescriptive requirements on foreign ships. The general direction of these developments, in subsequent treaty law as well as through State practice, has clearly been towards increased possibilities for non-flag States to exercise authority over ships. Nevertheless, the development has taken place without calling into question the position of the LOSC as the ‘Constitution for the Oceans’ and the main authority for jurisdictional matters relating to maritime activities. As with jurisdictional developments, continuous development of technical standards has also occurred, with the main developments having taken place at the IMO. Indeed, the IMO has both been granted and has used its privileged position in the international law of the sea to actively manifest itself as the chief regulator of global shipping, including in respect of vessel-source pollution. In general, the competence of the IMO with respect to vessel-source pollution has remained unchallenged and it has delivered a significant body of authoritative regulatory instruments in the field. The main exception to its regulatory efficacy is to be found in the field of climate change. Despite decades of work aimed at reducing GHG emissions from ships, the IMO’s progress has been slow, due to, inter alia, uncharacteristically difficult political divides among its membership and pressures from other regulatory authorities at global and regional levels, as well as other non-governmental stakeholders. All in all, GHGs represent a formidable challenge for the IMO. From a technical point of view the problem is not only difficult to understand, quantify and concretise, there is also a shortage of technical solutions available to address the matter at reasonable cost. In terms of regulatory design, the challenge lies in the many potential ways to address it, all of which involve hugely complex issues in terms of robustness, coverage, avoiding loopholes and other forms of ‘leakages’, along with various international legal uncertainties linked to establishing economic requirements at the global level. Politically, the matter is unusual for the IMO as the underlying problem to be solved extends well beyond shipping, which implies not only the involvement of a series of national policies from other sectors but also scrutiny by a wide spectrum of actors that are understandably engaged in the matter. Finally, in terms of regulatory authority, as has been noted above, the matter also potentially involves an unusual plurality of institutions. At the global level, the UNFCCC regime remains an option while, as highlighted by the determination by the current EU leadership to include shipping among the industries covered by EU reduction measures, the prospect of regional rules also looms in the background as a legal alternative. As the GHG discussions illustrate, the IMO does not have a regulatory monopoly or a particular ‘constitutional’ claim to fend off competing regulatory initiatives on shipping emissions by others. Thus, the possibility of competing regulatory action by individual States, regions or other international organisations constantly hangs over the regulatory work of the IMO. The IMO’s handling of GHG emissions from shipping will therefore be a critical test for assessing its capacity to deal with pressing environmental concerns. It is by far the most

Vessel-source pollution – some key developments  217 significant challenge the IMO has faced in its history and many different types of measures will be needed to meet the objectives the IMO has set for itself. While the ultimate solution for shipping may lie in technical inventions to permit a shift to new types of fuel, the main role of regulation in the meantime is to reduce emissions in the interim and to develop technical, operational and MBMs to steer development towards the necessary technological and operational change, not least, by reducing the economic risks linked to innovations. Currently, at long last, there are signs indicating progress in this field, but the main work is yet to be done if the goals of the Initial IMO Strategy and the Paris Agreement are to be met. The regulation of GHG emissions from ships has been on the IMO’s regulatory agenda for many years. While several recent developments in this area suggest that regulatory progress may be in the making, all indications are that it will remain so for decades to come.

10. Regulating shipping under conditions of uncertainty: The Arctic Ocean and knowledge-based decision-making Tore Henriksen

1. INTRODUCTION This chapter discusses the role of scientific research in regulating shipping in Arctic waters. Scientific research is a major provider of knowledge relevant to environmental protection, including that of the marine Arctic. Put bluntly, scientific research is essential in identifying an environmental ‘problem’, in providing an adequate diagnosis, and in prescribing solutions to the problem.1 In other words, scientific research provides assessments of the scope and potential negative impacts of environmental threats. This knowledge then provides the basis on which to craft legal measures to resolve the particular problem.2 Climate change is one such problem. Climate change is transforming the marine Arctic,3 opening up new shipping opportunities, among other things. However, according to Solan and others, the pace of change is ‘such that our understanding of the way in which Arctic systems are structured and function is outdated, and insufficient to inform management, mitigation, and adaptation efforts across the region.’4 Still, there is a need to regulate human activities, including shipping, even in the face of these uncertainties. Navigation in Arctic waters is subject to different hazards including sea ice, low temperatures, darkness, rapidly changing weather conditions, and remoteness to search and rescue and oil pollution prevention and preparedness infrastructure. These hazards may cause or exacerbate accidents and subsequent marine pollution. States have recognised the need to address the special hazards inherent in Arctic shipping through the adoption of the International Code for Ships Operating in Polar Waters (Polar Code) developed under the auspices of the International Maritime Organization (IMO).5 However, a proposal to include a ban on transport and use of heavy grade fuel oil (HFO) in Arctic waters in the Polar Code was rejected on

Steinar Andresen and Jon Birger Skjærseth, ‘Science and Technology: From Agenda Setting to Implementation’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2007) 185-186. 2 Ibid. 3 Martin Solan and others, ‘The Changing Arctic Ocean: Consequences for Biological Communities, Biogeochemical Processes and Ecosystem Functioning’ (2020) 378(2181) Philosophical Transactions of the Royal Society A 1. 4 Ibid. 5 International Maritime Organization (IMO), International Code for Ships Operating in Polar Waters, Resolution MSC.385(94), 21 November 2014 and Resolution MEPC.264(68), 15 May 2015 (IMO, Polar Code). 1

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Regulating shipping under conditions of uncertainty  219 the basis that such a ban was premature 6 as the scientific basis for supporting the need for such a ban was inadequate. A somewhat modified ban on transport and use of HFO was eventually approved and adopted in 2021.7 The process that resulted in the adoption of the Polar Code and the later ban on use and transport of HFO as fuel raises questions as to the role of scientific information in the protection of the marine environment. In general, the role of science can be analysed in two distinct phases: the extent to which scientific information identifies or introduces a ‘problem’ to decision-makers (agenda-setting); and the extent to which scientific information is used later in the decision-making process when deciding on/prescribing a solution to the problem. The importance of science in the agenda-setting phase is considered ‘crucial’ for several environmental protection regimes,8 whereas the impact of science in decision-making is not always clear-cut. Other factors may affect, including whether there is consensus or controversy over the available knowledge, whether the available solution is feasible or available, whether it is a neutral or value-laden issue, and the degree of political conflict regarding the issue.9 This chapter examines the work of the IMO in regulating shipping in the Arctic in the face of scientific uncertainty. More specifically, it considers the role of science in the work of the IMO on the protection of the marine environment with particular reference to the role of science in adopting the Polar Code and in banning the use and transport of HFO as fuel in Arctic waters. In doing so, the chapter examines whether, as Elizabeth Kirk claims, ‘the role of science [in the IMO] is not in practice always as significant as one might hope.’10 Using the two-phase model noted above, the chapter starts with an examination of whether the United Nations Convention on the Law of the Sea (LOSC)11 provides any normative signals on the role of science in the protection of the marine environment and the extent to which this is left to the different regional or global sectoral regimes such as the IMO (Section 2). It then turns to a discussion of the role of science in the decision-making processes of the IMO (Section 3) and of the Polar Code (Section 4). In doing so the chapter both clarifies the role of science in the development of the Polar Code, including the most recent amendment, and provides insight into the more general practice of the IMO. The chapter concludes (Section 5) that while the adoption of the Polar Code signals a more pro-active role of the IMO prompted by science, the role of science within the IMO remains, nevertheless, unclear.

IMO, Report of the Marine Environment Protection Committee on Its Sixtieth Session, MEPC 60/22, 12 April 2010, para. 21.9 (MEPC 60/22 Report). 7 IMO, Amendments to MARPOL Annex I: Prohibition on the use and carriage for use as fuel of heavy fuel oil by ships in Arctic waters, Resolution MEPC.329(76), MEPC 76/15/Add.2, 17 June 2021, Annex 2. 8 Steinar Andresen, ‘The Role of Scientific Expertise in Multilateral Environmental Agreements: Influence and Effectiveness’ in Monika Ambrus and others (eds), The Role of ‘Experts’ in International and European Decision-Making Processes: Advisors, Decision Makers or Irrelevant Actors? (CUP 2014) 114-115. 9 Ibid, 121; Zhen Sun, ‘Closing Gaps of Fuel Use Regulation of Arctic Shipping’ (2020) 35(3) The International Journal of Marine and Coastal Law 570, 587. 10 Elizabeth Kirk, ‘Science and the International Regulation of Marine Pollution’ in Donald Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 517, 530. 11 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 6

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2.

SCIENCE IN THE PROTECTION OF THE MARINE ENVIRONMENT UNDER THE LOSC

The following sub-section, 2.1, investigates whether the LOSC requires States – including when collaborating through the IMO – to provide scientific information in complying with the duty to protect and preserve the marine environment. This is a necessary precondition both for the role of science in agenda-setting (identifying the problem) as well as for stipulating possible solutions. Sub-section 2.2 then investigates whether the LOSC provides any guidance on the influence of scientific information in the process leading to a decision on proscribing measures (the solution) to protect and preserve the marine environment. 2.1

A Duty to Provide Scientific Information

The general obligations under Articles 192 and 194 of the LOSC to protect and preserve the marine environment do not provide any explicit requirement to base preventive action on scientific information. However, it may be derived from the duty to use ‘the best practical means at their disposal’ as set out in Article 194(1). In complying with their duty to conserve living marine resources, however, States are explicitly required to ‘take into account the best scientific evidence available’.12 Interestingly, under Articles 211 and 234, which specify the obligation to prevent pollution from vessels, there are presumptions that regulations are to be adopted based on scientific information. A coastal State is required to submit scientific and technical evidence to the IMO in support of the need for special protective measures within its Exclusive Economic Zone (EEZ).13 Under Article 234, a coastal State may adopt and enforce unilateral regulations for the prevention of marine pollution in ice-covered areas. However, such regulations shall be based on the ‘best available scientific evidence’. In both cases, the burden of proof is on the State arguing for the need for measures that are more stringent than those adopted through the IMO.14 One of the purposes of the requirement of scientific evidence is to ensure that restrictions on navigational rights for the benefit of the protection of the marine environment are justifiable.15 Part XII of the LOSC further includes obligations to promote scientific research as part of the environmental protection obligations of States. Pursuant to Article 200, States are obliged to cooperate directly or through competent international organisations in promoting scientific studies and undertaking scientific research as well as exchanging data on pollution. The duty includes participation in programs to ‘acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies.’ The latter resonates

LOSC, Arts 61(2) and 119(1)(a). LOSC, Art. 211(6). 14 Kristin Bartenstein, ‘Article 211 Pollution from Vessels’, in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck, Hart, Nomos 2017) 1419, 1439; Aldo Chircop, ‘The Growth of International Shipping in the Arctic: Is Regulatory Review Timely?’, 24 The International Journal of Marine and Coastal Law (2009) 355, 372. 15 Tore Henriksen, ‘Coastal State Jurisdiction in Ice-Covered Areas”. The Impacts of Climate Change and the Polar Code’ in Jacques Hartman and Urfan Khaliq (eds) The Achievements of International Law. Essays in Honour of Robin Churchill (Hart 2021) 175, 187-188 and 198-199. 12 13

Regulating shipping under conditions of uncertainty  221 with the role of science in environmental protection as helping to identify problems, diagnose causes, and provide for remedies or approaches to address them. In addition to utilising general scientific knowledge, States are required under Article 204(1) not only to monitor the state of the marine environment and the risks or effects of pollution of the marine environment, but also to measure, evaluate, and analyse the risks or effects. As these actions are to be based on ‘recognised scientific methods’ they are clearly of a scientific and not a managerial or political character. This signals that science is to have an active and targeted role in the protection of the marine environment. Furthermore, the obligation underscores the dynamic nature of scientific knowledge, which may result in the need for re-examination of existing measures.16 Both Article 200 and 204 require States to cooperate on scientific research either directly or through ‘competent international organizations’. This is an obligation relevant in respect of environmental protection measures adopted through the IMO, to be addressed in subsequent sections. A third provision that presupposes the conduct of scientific research for the acquisition of scientific knowledge about the effects of pollution on the marine environment is Article 206 on the obligation to undertake Environmental Impact Assessment (EIA). This obligation comes into play where there are reasonable grounds for believing that a planned activity may cause substantial pollution or significant and harmful changes to the environment.17 This involves undertaking, ‘as far as practicable’, prior assessment of the potential effects of the planned activity on the marine environment and the obligation either to publish reports of the results obtained or to report the results of such assessments to the competent international organisations which should then make the results available to all States. The EIA obligation is clearly linked to, and informs, the due diligence duty to prevent damage to the marine environment and contributes to ensuring that any deliberation and decision to permit an activity with potentially negative environmental effects is based on scientific knowledge.18 EIAs thus provide a knowledge basis for decision-making by the State under whose jurisdiction the planned activity is to be undertaken. However, for a planned activity to be identified as requiring an EIA there must be some indication or scientific information that suggests it poses a risk to the environment. The use of the phrase ‘planned activities’ suggests that the obligation applies to major industrial projects, the laying of submarine cables, and establishment and use of installations intended for renewable energy or aquaculture and geoengineering. It could also be envisaged that the possible environmental impacts of increased vessel operations in Arctic waters could enliven the obligation to conduct an EIA, which would then assist in assessing the need for additional regulatory measures. However, given the diverse nature of shipping operations they have traditionally not been considered ‘planned activities’; the activities of individual vessels generally not being considered to pose such risks that there is a need for a prior assessment

16 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), Case No 17, 1 February 2011, 10, para. 117 (Seabed Advisory Opinion). 17 LOSC, Art. 206. 18 Eike Blitza, ‘Article 206’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck, Hart, Nomos 2017) 1369, 1370. See also Neil Craik and Kristine Gu, ‘Implementing Environmental Impact Assessment in Areas Beyond National Jurisdiction: Epistemic, Institutional and Normative Challenges’, Chapter 19 in this volume.

222  Research handbook on international marine environmental law procedure.19 An exception to this relates to the planned transport of ultrahazardous and nuclear cargos, which may require the prior undertaking of an EIA and notification to relevant States.20 The generally ambiguous formulation of the EIA obligation in Article 206 thus leaves States a broad discretion in deciding on the threshold for its application, the scope of the assessment, the involvement of affected parties, and what activities are subjected to EIA.21 Moreover, an EIA obligation may be viewed as violating the fundamental freedom of navigation. As noted above, States arguing for stricter regulation of navigation are required to provide scientific and technical evidence. In addition, the fact that States are required under LOSC Article 211(1) to cooperate through the competent international organisation for the establishment and re-examination of regulations to prevent pollution from vessels suggests that shipping is not subjected to the general EIA regime. In this context it would appear to be within the mandate of the IMO to adopt procedures for EIA to provide the basis for its decisions.22 2.2

Relevance and Weight of Science in Decision-Making

Having examined the obligations to provide scientific information, this sub-section examines whether the LOSC provides any guidance on its application or influence in decision-making processes. Pursuant to Article 211(1) of the LOSC States are required to ‘establish international rules and standards to prevent, reduce and control pollution of the marine environment’ and to ‘re-examine [such rules and standards] from time to time as necessary’. In other words, the rules and standards for the protection of the marine environment adopted through the IMO are to be dynamic. This suggests that States are required to propose, review, and adopt new regulations or amendments to existing regulations through the IMO based on new scientific information or technological information. Pursuant to Article 201 States are further to cooperate directly or through competent international organisations in establishing ‘appropriate scientific criteria’ for adopting and developing such rules and standards. When read together with Article 200, this obligation has at least three implications. First, the measures taken to protect and preserve the marine environment shall be based on scientific information. Second, scientific information is a determinant for designing, scoping and timing such measures. Third, States are expected to comply with this obligation to use appropriate scientific criteria when acting through the IMO. Article 201 is described as providing a ‘sound scientific basis for rules and regulations.’23 What remains unclear, however, is how much weight scientific information should be accorded when deciding whether to adopt measures to protect and preserve the marine environment, and if so, which measures to adopt – including through the IMO. In the decision-making

Karin Andersson and others, ‘Methods and Tools for Environmental Assessment’ in Karin Andersson and others (eds), Shipping and the Environment: Improving Environmental Performance in Marine Transportation (Springer 2016) 265, 269. 20 Jon M Van Dyke, ‘The Legal Regime Governing Sea Transport of Ultrahazardous Radioactive Materials’ (2002) 33 Ocean Development and International Law 77, 84. 21 Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (CUP 2008) 88. 22 Convention on the International Maritime Organization (adopted 6 March 1948, entered into force 17 March 1958) 289 UNTS 48, as amended (IMO Convention), Art. 1(a). 23 Tim Stephens, ‘Article 201’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck, Hart, Nomos 2017) 1344-1346. 19

Regulating shipping under conditions of uncertainty  223 stage, scientific information is inevitably weighed against socio-economic and other relevant considerations. As explained by the International Tribunal for the Law of the Sea (ITLOS) Seabed Disputes Chamber, the obligation on States is determined by the context of the situation; it is dynamic, and the level of diligence required depends on the risk of the activity and level of knowledge.24 How, then, does scientific uncertainty affect the obligation of States to take decisions on measures to protect the marine environment? It is clear that new scientific or technological knowledge may require States to act.25 However, may States await further and more certain scientific information to quantify a risk or causal links before they are required to act? The precautionary principle is a concept that informs how to deal with scientific uncertainty.26 The most widely used articulation of the precautionary principle is found in Principle 15 of the 1992 Rio Declaration, which states that ‘where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’27 The precautionary principle does not involve an explicit duty of conduct but rather indicates when and what type of considerations States are to take account of in decision-making situations where there are concerns as to the negative impacts of an activity on the environment but there is scientific uncertainty as to the causal link and/or the magnitude of the impact. The LOSC does not expressly refer to the precautionary principle, which was introduced to international law after the adoption of the LOSC.28 However, it has been widely adopted and included in subsequent treaties such as the 1995 UN Fish Stocks Agreement (FSA)29 and is likely to be included in a legally binding agreement on conservation and sustainable use of biodiversity in areas beyond national jurisdiction.30 The Seabed Disputes Chamber of ITLOS has stated that the precautionary principle is an integral part of the due diligence obligation to protect and preserve the marine environment.31 The due diligence obligation is applicable in ‘situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.’32

Seabed Advisory Opinion (n 16) para. 117 Ibid. 26 The precautionary principle and the precautionary approach are often used interchangeably. See Philippe Sands and others, Principles of International Environmental Law (4th ed, CUP 2018) 230-240. 27 Rio Declaration on Environment and Development, in UN, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol. I), Annex I, 12 August 1992. 28 Arguably, it is implicit in the LOSC as well. See Rosemary Rayfuse, ‘Precaution and the Protection of Marine Biodiversity in Areas beyond National Jurisdiction’ (2012) 27(4) The International Journal of Marine and Coastal Law 773. 29 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (FSA). 30 UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/CONF.232/2020/3, 18 November 2019, Art. 5. 31 Seabed Advisory Opinion (n 16) paras 131-132. 32 Ibid. See also Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Reports 14, para. 164 (Pulp Mills, Merits). 24 25

224  Research handbook on international marine environmental law Thus, even if the principle is not accepted as a stand-alone obligation under international law, it may still inform the interpretation of existing obligations. The requirement to utilise scientific information is a component of the obligation to protect and preserve the marine environment. It includes a duty to provide scientific information to inform decision-making as to whether, when and what decisions are to be taken. There seems to be acceptance that the precautionary principle informs the obligation, requiring States to exercise prescriptive as well as enforcement jurisdiction in situations where there are environmental risks linked to human activities but the scientific information available is inadequate. However, the LOSC does not provide explicit directives as to the weight to be accorded to scientific information in the decision-making of States.

3.

THE IMO AND KNOWLEDGE-BASED DECISIONS

This section examines the role of scientific information in the decision-making of the IMO. The purpose is both to assess the role of science in developing and revising IMO instruments in general and to provide background for assessing the role of science in developing the Polar Code, to be addressed in Section 4. Section 3.2 examines how scientific information is provided and its effect on the agenda of the IMO, while Section 3.3 examines how this information is used in decision-making.33 First, however, an introduction to the IMO and the conventions that provide the legal basis for the Polar Code is necessary. 3.1

The IMO and its Mandate

The mandate of the IMO includes maritime safety and the protection of the marine environment.34 Fulfilment of this mandate involves considering and adopting recommendations based on submissions by member States and other international organisations, as well as drafting conventions for the considerations of member States, and providing a machinery for consultation and exchange of information and for technical cooperation.35 It may be asked whether the IMO qualifies as a competent international organisation under Articles 200 and 204 of the LOSC as it does not have a distinct scientific function and it has not established any subsidiary body with scientific advisory functions.36 However, the IMO does provide a forum through which its member States may fulfil their obligations to exchange scientific information and suggest new research to be undertaken. For itself, the IMO is one of the sponsoring organisations of the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) which was established in 1969 and tasked with advising the IMO and the other sponsoring organisations in the UN system on scientific aspects of marine environmental protection.37 GESAMP is involved in both regional and global environmental assessments and

Andresen (n 8) 111-112. IMO Convention, Art. 1(a). 35 IMO Convention, Art. 2. 36 IMO Convention, Art. 11. 37 Peter G Wells, Robert A Duce and Michael E Huber, ‘Caring for the Sea: Accomplishments, Activities and Future of the United Nations GESAMP (the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection)’ (2002) 45 Ocean and Coastal Management 77, 79. 33 34

Regulating shipping under conditions of uncertainty  225 may also undertake analyses and provide advice on specific topics as and when requested.38 The influence of GESAMP can be seen in its contribution to the legal definition of pollution that is now found in both the LOSC and the International Convention for the Prevention of Pollution from Ships (MARPOL).39 GESAMP has, moreover, produced a number of studies, inter alia, evaluating environmental hazards of harmful substances carried by ships which are regulated by Annex II of MARPOL.40 Several of the IMO conventions are relevant for the protection of the marine environment, including the International Convention for the Safety of Life at Sea (SOLAS),41 MARPOL,42 the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention),43 the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention)44 and the International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS Convention).45 The Maritime Safety Committee (MSC) and the Marine Environmental Protection Committee (MEPC) of the IMO have treaty body functions under SOLAS and MARPOL respectively.46 Under its mandate the MEPC may consider ‘any matter within the scope of the organization concerned with the preservation and control of pollution from ships’.47 In executing its function the MEPC shall ‘provide for the acquisition of scientific, technical and any other practical information on the prevention and control of marine pollution from ships for dissemination to States’.48 The MEPC is thus responsible for coordinating the acquisition of relevant scientific information and sharing that information among its member States. The MEPC does not have the capacity of its own to undertake scientific research itself but rather relies on input from GESAMP or/and the individual member States.49 Neither SOLAS nor MARPOL include any explicit scientific or technical criteria for the adoption or amendment of maritime safety and marine protection regulations.50 Nevertheless, the rules and technical standards are regularly reviewed on the initiatives of member States or

GESAMP, ‘Work Programme’ (Our Work) . Wells, Duce and Huber (n 37) 80. 40 GESAMP, ‘Working Groups’ (Our Work) Work Groups 1 and 34 . 41 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 278 (SOLAS). 42 International Convention for the Prevention of Pollution from Ships (as modified by the Protocol of 1978 relating thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 61 (MARPOL). 43 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36. 44 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (adopted 7 July 1978, entered into force 28 April 1984) 1361 UNTS I-23001 (STCW Convention). Its Annex has been amended: IMO, STCW Convention Conference of Parties (COP), ‘Adoption of Amendments to the Annex to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), 1978’, IMO Doc STCW/CONF.2/DC/1, 24 June 2010. 45 International Convention on the Control of Harmful Anti-fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008) IMO Doc AFS/CONF/26, 18 October 2001. 46 IMO Convention, Arts 27–31 (Maritime Safety Committee (MSC)) and Arts 37–41 (MEPC). 47 IMO Convention, Art. 38. 48 IMO Convention, Art. 38(c). 49 See n 38. 50 SOLAS, Art. VIII; MARPOL, Art. 16. 38 39

226  Research handbook on international marine environmental law industry representatives. In combination with the tacit amendment procedure,51 this provides for flexibility and regular re-examination of rules and standards as also prescribed by the LOSC.52 3.2

The Role of Science in the Agenda-Setting of the IMO

As noted at the outset, the availability of scientific information plays an important role in identifying and determining the nature of environmental problems and can strengthen the problem-solving capacity of a regime.53 The more comprehensive and accepted the science, the better the chances of solving the particular environmental problem.54 However, science may easily be politicised, weakening its value and legitimacy.55 Andresen underlines the importance of ensuring the autonomy and independence of science from political or economic stakeholders.56 He also highlights the importance of their involvement in the handling of the scientific information, which must be usable in practice.57 The procedures for providing scientific information in the agenda-setting phase are regulated in guidelines adopted by the IMO. A proposal for a new regulation or amendment of an existing regulation under SOLAS or MARPOL must first be included on the agenda of either the MSC or the MEPC before it can be considered by the relevant committee and its sub-committees.58 The proposing member State(s), or NGO supported by a member State, is required to provide adequate information and documentation on the risks or hazards to be addressed by the proposal and to document the benefits as well as the costs of the proposal for maritime safety and environmental protection.59 If the need for the proposed measure is adequately ‘justified and documented’, the proposal will be included in the agenda.60 The burden of proof is on the proponent who is required to provide evidence demonstrating the need for the proposed measure,61 and that it is directed at a risk that is considered necessary to address.62 Depending on the type of risk the proposed measure is to address, the evidence 51 The tacit amendment procedure is an alternative to the entry into force of an amendment when accepted by 2/3 of the contracting parties, which may take years to reach. The tacit amendment entails that an amendment enters into force at a specified date, unless before this date objections to the amendment are received from a specified number of contracting parties. See eg, SOLAS, Art. VIII. 52 Aldo Chircop, ‘The IMO, Its Role under UNCLOS and its Polar Shipping Regulation’ in Robert C Beckman and others (eds), Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States (Brill Nijhoff 2017) 112. 53 Andresen (n 8) 112. 54 Ibid, 117. 55 Peter M Haas, ‘Science Policy for Multilateral Environmental Governance’ in Norichika Kanie and Peter M Haas (eds), Emerging Forces in Environmental Governance (United Nations UP 2004) 115, 116-117. 56 Andresen (n 8) 113 and 120-121. 57 Ibid. 58 IMO, Organization and Method of Work of the Maritime Safety Committee and the Marine Environment Protection Committee and their Subsidiary Bodies, MSC-MEPC.1/Circ.5/Rev.2, 10 December 2020. 59 Ibid, paras 4.6-4.12, and Annex 1, paras 2,4, 5. 60 Ibid, para. 4.15.3. 61 IMO, MSC-MEPC.1/Circ.5/Rev.2 (n 58) para. 4.6, and Annex 1, para. 2.2. 62 Ibid, para. 4.6, cf Annex 1 Information Required in Submissions of Proposals for Inclusion of an Output, para. 2.1.

Regulating shipping under conditions of uncertainty  227 may include scientific information. For example, the US, Canada and Australia have proposed the revision of the 2014 Guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life based on references to new scientific data,63 and the MEPC has included the proposal on its agenda.64 However, the burden of proof does not only include scientific or technical information.65 The member State must also provide an assessment of the feasibility and proportionality of the proposed measure.66 This includes information on the balance between the benefits (such as maritime safety and protection of the environment) and the costs to industry, as well as on the urgency of the matter. This information then feeds directly into the decision-making processes of the relevant IMO body.67 Clearly, the potential bias generated by scientific information being provided by only one or a limited number of member States may lead to it not being perceived as neutral. Scientific information may thus not resolve the lack of consensus on the existence of a problem and the need for its resolution.68 Furthermore, the scientific information may be overshadowed by the other political, economic, and social factors already under consideration in the agenda-setting phase. 3.3

Science as a Premise for Decision-Making

Once a proposal has been placed on the agenda, the MSC or MEPC must assess whether the proposed new or amended measure is necessary, consistent, proportionate, fit for purpose, resilient and clear.69 This assessment may be based on scientific information as well as other considerations. The IMO has developed different methods or tools for evaluating proposals for new regulations to assist in the decision-making process. These tools include risk-based considerations, impact assessments and the precautionary approach. Risk-based considerations are used to analyse the implications of proposals.70 This includes identification of hazards (including environmental impacts), risk analysis, options for controlling the risk, and cost-benefit analysis of the options and recommendations for decision-makers. Possible damage to the environment is included in the cost-benefit analysis.

IMO, Work Programme of the Committee and Subsidiary Bodies: Proposal for a new output concerning a review of the 2014 Guidelines for the reduction of underwater noise from commercial shipping to address adverse impacts on marine life (MEPC.1/Circ.833) and identification of next steps, Submitted by Australia, Canada, and United States, MEPC 75/14, 27 December 2019 (MEPC 75/14). 64 IMO, MEPC, Report of the Marine Environment Protection Committee on Its Seventy-Sixth Session, MEPC 76/15, 10-17 June 2021, Item 12.2-12.4. 65 IMO, MSC-MEPC.1/Circ.5/Rev.2 (n 58) Annex 1, paras 3-5 and 9. 66 Ibid. 67 Ibid, para. 4.15. 68 Andresen (n 8) 121-122. 69 IMO Assembly, Resolution A.1103(29): Principles to be Considered When Drafting IMO Instruments, IMO Doc A 29/Res.1103, 8 December 2015. 70 IMO, MSC and MEPC, Revised Guidelines for Formal Safety Assessment (FSA) for Use in the IMO Rule-Making Process, MSC-MEPC.2/Circ.12/Rev.2, 9 April 2018; Anish A Hebbar and others ‘The IMO Regulatory Framework for Arctic Shipping: Risk Perspectives and Goal-Based Pathways’ in Aldo Chircop et al. (eds), Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation (Springer, 2020) 229, 234. 63

228  Research handbook on international marine environmental law The requirement of an impact assessment (IA) originated in the Initial IMO Strategy on the reduction of Green House Gases (GHG) emissions.71 IA has been introduced in the most recent amendments of the Polar Code and will be addressed in Section 4.3. For now, suffice to say that a guiding principle is ‘the need for evidence-based decision-making balanced with the precautionary approach’.72 In contrast to EIA, the purpose of IA is not to assess the impacts of shipping on the marine environment but rather the impact of possible restrictions on shipping. Impact assessment, also known as policy assessment or regulatory impact assessment, is part of a general development in recent years that may involve a systematic ex ante appraisal of the social, economic, and environmental impacts of proposed regulations and other kinds of policy instruments.73 The precautionary principle is incorporated into the IMO’s work through the 1995 provisional MEPC Guidelines on Incorporation of the Precautionary Approach in the Context of Specific IMO Activities.74 Under the Guidelines the precautionary principle is to be applied both when developing policies or programmes and when taking concrete actions. One of its functions is to prevent environmental problems ‘arising from any regulatory activities of IMO.’75 The Guidelines recommend that decision-making should be preceded by environmental assessment and risk analyses to identify environmental impacts of proposed activities and alternative options.76 Where the options involve uncertainty, all options are to be assessed consistent with the precautionary principle. This involves choice of cost-effective practices and practical solutions.77 Uncertainties should be addressed by obtaining and providing baseline and other data which may identify and explain environmental changes.78 These Guidelines, consistent with Article 200 of the LOSC, promote national and international research, analysis and information programmes to identify, understand and disseminate information about threats to the environment.79 The question is whether such research is, in fact, being undertaken. This will be further explored under the discussions in Section 4 on the Polar Code. Neither the IMO Conventions nor the supplementary guidelines and policy documents provide clear instructions as to the role of science in developing IMO regulations. Consequently, it may be difficult to determine whether, how and to what degree scientific information, particularly that relating to environmental considerations, constitutes a premise for the adoption of new regulations or amendments to existing regulations, or how scientific

IMO, MEPC, Procedure for Assessing Impacts on States of Candidate Measures, MEPC.1/ Circ.885, 21 May 2019. 72 IMO, MEPC, Initial IMO Strategy on Reduction of GHG Emissions from Ships, MEPC 72/17/ Add.1, Annex 11: Resolution MEPC.304(72) (adopted on 13 April 2018), para. 3.2.4; Aldo Chircop, ‘The IMO Initial Strategy for the Reduction of GHGs from International Shipping: A Commentary’ (2019) 34(3) The International Journal of Marine and Coastal Law 482, 496. 73 Camilla Adelle and Sabine Weiland, ‘Policy Assessment: The State of the Art’ (2012) 30(1) Impact Assessment and Project Appraisal 25. 74 IMO, MEPC, Report of the Marine Environment Protection Committee on its Thirty-Seventh Session, MEPC 37/22/Add.1, 18 March 1996, Annex 10: Resolution MEPC.67(37) (adopted on 15 September 1995): Guidelines on Incorporation of the Precautionary Approach in the Context of Specific IMO Activities. 75 Ibid, para. 4.1. 76 Ibid, para. 4.5. 77 Ibid, paras 4.3, 4.4. 78 Ibid, para. 4.6. 79 Ibid, para. 4.7. 71

Regulating shipping under conditions of uncertainty  229 uncertainty is addressed in decision-making, particularly as decisions are made through collective bodies with representatives of all member States. A two-thirds majority is needed to adopt an amendment to SOLAS or to MARPOL.80 In practice, amendments are taken by consensus after reaching a compromise on the changes.81 Consequently, a proposal will only be included on the agenda, and hence lead to amendments of an IMO instrument, once there is consensus on the need for the regulation and on the science. Therefore, when proposing amendments to regulations, member States may be driven more by what is realistic to have accepted than by what is called for by the available scientific information.

4. REGULATING SHIPPING IN ARCTIC WATERS Having examined the role of science in the LOSC and the IMO, this section turns to a case study of the role of science in the development of the Polar Code. In particular, it focuses on the role of science in the adoption of a ban on use and transport of heavy fuel oil (HFO) in the Arctic. 4.1

The Polar Code – an Overview

The Polar Code, adopted by the IMO in 2015, sets out binding regulations and non-binding recommendations for vessels operating in polar waters, including both Arctic and Antarctic waters. The two parts of the Polar Code are directed at promoting maritime safety (Part I-A and I-B) and preventing pollution (Part II-A and II-B). The Polar Code aims at addressing the special risks of operating in polar waters such as sea ice and low temperatures, which are not adequately regulated through existing IMO instruments.82 The inclusion of both maritime safety and environmental protection measures in the same instrument means that the two goals are interconnected, as the safety measures taken will reduce the risk of accidents to the benefit of the environment.83 The Polar Code itself is not a legally binding instrument. Rather, the mandatory status of the provisions of the Code is established through amendments to the relevant IMO Conventions, SOLAS and the STCW Convention (Part I-A maritime safety measures) and MARPOL (Part II-A pollution prevention measures), which entered into force on 1 January 2017.84 SOLAS, Art. VIII(b) (iv); MARPOL, Art. 16(2)(d). James Harrison, Making the Law of the Sea: A Study in the Development of International Law (CUP 2011) 161; Chircop, ‘The IMO, Its Role’ (n 52) 112. 82 IMO, Polar Code (n 5), Preamble 3, Introduction para. 3. 83 Ibid, Introduction para. 1, cf Preamble 5. 84 SOLAS, Report of the Maritime Safety Committee on Its Ninety-Fourth Session, MSC 94/21/ Add.1, 27 November 2014, Annex 7: Resolution MSC.386(94) (adopted on 21 November 2014): Amendments to the International Convention for the Safety of Life at Sea, 1974, as amended; STCW, Report of the Maritime Safety Committee on Its Ninety-Seventh Session, MSC 97/22/Add.1, 6 December 2016, Annex 8: Resolution MSC.416(97) (adopted on 25 November 2016): Amendments to the International Convention On Standards Of Training, Certification And Watchkeeping For Seafarers (STCW), 1978, as amended, and Annex 9: Resolution MSC.417(97): Amendments to Part A of The Seafarers’ Training, Certification and Watchkeeping (STCW) Code; MARPOL, Report of the Marine Pollution Prevention Committee on its Sixty-Seventh Session, MEPC 67/20, 31 October 2014, Annex 11: Draft amendments to MARPOL Annexes I, II, IV and V. 80 81

230  Research handbook on international marine environmental law The mandatory safety measures set out in Part I-A are organised in 12 chapters, supplemented by the recommendations of Part I-B. These measures range from requirements for ship construction to withstand pressure from sea ice to fire safety equipment that can operate in low temperatures, to lifesaving appliances that may provide shelter at low temperatures and under sea ice conditions in areas distant from rescue capabilities to requirements for training of officers to be able to operate ships under polar conditions. The mandatory pollution prevention measures set out in Part II-A are organised in four chapters and are also supplemented by recommendations in Part II-B. These measures are aimed at reducing discharges of harmful substances through restriction of operational discharges (ranging from a ban on discharges of oil and oily mixtures to restrictions on discharges of sewage and garbage), and through structural requirements (eg separation of the oil fuel tank from the bulk).85 The current iteration of the Polar Code is not the final word in the regulation of polar shipping. As the legal framework of the Polar Code does not provide for mandatory application of its maritime safety measures to non-SOLAS vessels, negotiations have been initiated to develop mandatory maritime safety measures applicable to these vessels, as well as to fishing and other smaller vessels.86 In addition, as discussed in Section 4.3 below, there have been negotiations on measures aimed at reducing the risks associated with the use and transport of HFO in Arctic waters similar to those measures already in place for Antarctic waters.87 4.2

Scientific Information and the Polar Code

The proposal for developing a mandatory Polar Code came at a time of heightened international attention to the Arctic generated by the impacts of climate change and prospects of increased vessel operations in the region. Two reports commissioned by the Arctic Council – the 2004 Arctic Climate Impact Assessment (ACIA) and the 2009 Arctic Marine Shipping Assessment (AMSA) – were particularly influential in documenting and establishing the need for additional regulation of Arctic shipping.88 The main work on developing the Polar Code was carried out and coordinated by a sub-committee under the MSC.89 During the early stages of the Polar Code negotiations, some delegations and environmental groups had broad visions of the environmental risks that

Analyses of the Polar Code are provided inter alia by Aldo Chircop, ‘The Polar Code and the Arctic Marine Environment: Assessing the Regulation of the Environmental Risks of Shipping’ (2020) 35(3) The International Journal of Marine and Coastal Law 533; Øystein Jensen, ‘The International Code for Ships Operating in Polar Waters: Finalization, Adoption and Law of the Sea Implications’ (2016) 7(1) Arctic Review on Law and Politics 60. 86 IMO, MSC, Report of the Maritime Safety Committee on its Ninety-Eight Session, MSC 98/23, 28 June 2017, para. 10.29. See subsequent reports of MSC sessions: IMO, MSC, Report of the MSC on its Ninety-Ninth Session, MSC 99/22, 5 June 2018, paras 7.13-7.16; IMO, MSC, Report of the MSC on its One Hundredth Session, MSC 100/20, 10 January 2019, para. 7; IMO, MSC, Report of the MSC on its 101st Session, MSC 101/24, 12 July 2019, para. 7. 87 IMO, MEPC, Report of the Marine Environment Protection Committee on Its Seventy-First Session, MEPC 71/17, 24 July 2017, para. 14.13 (MEPC 71/17 Report). 88 ACIA Secretariat, Arctic Climate Impact Assessment (CUP 2005); Arctic Council, Arctic Marine Shipping Assessment 2009 Report (Arctic Council/Protection of the Arctic Marine Environment (PAME), April 2009). 89 IMO, MSC, Report of the Maritime Safety Committee on Its Eighty-Sixth Session, MSC 86/26, 12 June 2009, para. 23.32. 85

Regulating shipping under conditions of uncertainty  231 should be addressed by the Polar Code.90 However, these visions were not based on any specific comprehensive environmental assessment as recommended by the IMO guidelines on the precautionary approach.91 They were rather grounded on general scientific knowledge about the polar waters and the known hazards increased shipping posed to the marine environment. Illustrative was a hazard matrix developed at a 2011 workshop with the participation of 15 IMO member States and observers from different NGOs that provided valuable ‘technical input’ to the drafting of the Polar Code.92 The matrix mapped environmental risks related to operational discharges and impacts of accidents in polar waters. It identified potential hazards, their causes, impacts, amplification factors of polar waters and options for risk control measures. This risk assessment built on generalised information on the Arctic marine environment and its components and how it is affected by human activities. It is striking that in concluding, the workshop delegations identified a ‘wish list’ of future information or system requirements.93 The list included a desire for more detailed knowledge of acute and chronic toxicity effects of vessel-source pollution on polar organisms, and a need for better understanding of possible persistence and biomagnification processes in polar waters.94 This was clearly an acknowledgment that there were scientific uncertainties regarding the impacts of maritime operations and the need for more scientific information. But how was this scientific research to be conducted and by whom? Evidently, it would have to be the responsibility of individual member States. The dependency on initiatives of individual States, however, only served to underscore the potential for a lack of coordination and the risk that some interests might be highlighted over others. Even if there was consensus on the need for a legally binding Polar Code, some of the proposed regulations were questioned. Some delegations were concerned that the analyses envisaged by the Norwegian paper95 setting out the agenda for the environmental chapter were premature.96 Representatives from industry and some member States argued that the need for several of the proposals was not supported by actual environmental impact assessment, cost-benefit analysis or other scientific justification.97 Russia was particularly alarmed by the proposal to ban the use and transport of HFO.98 It was concerned that a ban would lead to

Chircop, ‘The Polar Code’ (n 85) 548. Resolution MEPC.67(37) (n 74) para. 4.5. 92 IMO, Sub-Committee on Ship Design and Equipment, Development of a Mandatory Code for Ships Operating in Polar Waters: Workshop on Environmental Aspects of the Polar Code, IMO Doc DE 56/INF.3, 17 November 2011, Annex 3: Polar Code Hazard Identification Workshop Report, Tables 1-2. 93 Ibid, Workshop Report, Annex 3: Polar Code Hazard Identification, para. 6.0. 94 Biomagnification is the accumulation of a chemical by an organism from water and food exposure that results in concentration that is greater than would have resulted from water exposure only and thus greater than expected from equilibrium. See KG Drouillard, ‘Biomagnification’ (ScienceDirect, 2008) . 95 IMO, MEPC, Environmental aspects of polar shipping: Submitted by Norway, MEPC 60/21/1, 12 January 2010. 96 IMO, MEPC 60/22 Report (n 6) para. 21.8. 97 IMO, MEPC, Report of the Marine Environment Protection Committee on Its Sixty-Fifth Session, MEPC 65/22, 24 May 2013, para. 11.46; IMO Sub-Committee on Ship Design and Equipment, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, DE 57/25, 5 April 2013, para. 11.43. 98 IMO, MEPC 60/22 Report (n 6) para. 21.9. 90 91

232  Research handbook on international marine environmental law a significant increase in shipping costs in Arctic areas.99 Russia argued that the proposal did not consider the relevance of the proposed structural protective measures (e.g. location of fuel tank) for the prevention of HFO spills.100 While not excluding the possibility of future adoption of such regulations, the MEPC ultimately concluded that it was premature to regulate the use of HFO on ships operating in Arctic waters.101 The reason for the postponement of this decision was not necessarily the quality of the scientific information, which inter alia had been collected and reviewed through working groups established by the Arctic Council. Rather, it appears that the socio-economic effects of a ban had not been adequately assessed. This goes to show that scientific information is relevant but not necessarily the decisive factor in the decision-making of the IMO. 4.3

A Ban on Use and Transport of HFO as Fuel

As the Polar Code entered into force in 2017, the MEPC placed ‘measures to reduce risks of use and carriage of heavy fuel oil in the Arctic’ on its agenda.102 This item was initiated by seven member States including the US, Finland and the Netherlands.103 Their concern was that accidental oil spills are the most significant threat from ships in the Arctic and that, with increased shipping in the region, the threat of such spills would increase.104 Even if a global sulphur cap that was due to enter into force in 2020 meant that more vessels would shift from HFO fuel to marine distillate fuel, the proposers were concerned that this cap would not fully eliminate the use of HFO as fuel and there would thus still be a risk of accidental pollution.105 4.3.1 The scientific basis for the proposal In accordance with the guidelines on the organisation and methods of work of MSC and MEPC (Section 3.2), the proposers sought to demonstrate and document the need for the proposed agenda item in terms of the risks described.106 Referring to the goal of the Polar Code to reduce the environmental impacts of shipping in Arctic waters, they argued that the Polar Code did not adequately protect against HFO spills following groundings, collisions or similar incidents. They argued that the potential environmental damage following HFO spills had been documented in several reports and studies made available to the IMO.107 Their arguments were

IMO Sub-Committee on Ship Design and Equipment, Report to the Maritime Safety Committee and the Marine Environment Protection Committee, DE 56/25, 28 February 2012, Annex 21: Statement by the Delegation of the Russian Federation (on Agenda item 10). 100 Ibid. 101 IMO, MEPC 65/22 (n 97) para. 11.53. 102 IMO, MEPC 71/17 Report (n 87) para. 14.13. The mandate of the work was further specified, see IMO, MEPC, ‘Report of the Marine Environmental Protection Committee on Its Seventy-Second Session’, MEPC 72/17, 3 May 2018, para. 11.9 (MEPC 72/17 Report). 103 MEPC, Work Programme of the Committee and Subsidiary Bodies: Measures to reduce risks of use and carriage of heavy fuel oil as fuel by ships in Arctic waters (Canada, Finland, Germany, Iceland, Netherlands, Norway, and the United States), MEPC 71/14/4, 31 March 2017, para. 2. 104 Ibid, para. 4. 105 The sulphur content of any fuel on board ships was reduced to 0.50 percent m/m from 1 January 2020. MARPOL, Annex VI, Reg. 14.1.3. 106 IMO, MSC-MEPC.1/Circ.5/Rev.2 (n 58) para. 4.3, Annex 1. 107 IMO, MEPC 71/14/4 Work Programme (n 103) para. 7; MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Summary of 99

Regulating shipping under conditions of uncertainty  233 based on several reports, in particular reports commissioned by Protection of the Arctic Marine Environment (PAME), one of the working groups of the Arctic Council.108 Responsible for the follow-up of the 2009 AMSA Report, PAME has provided scientific and technical information on the use and carriage of HFO as fuel. In 2019 it estimated that 10 percent of vessels operating in Arctic waters as defined by the Polar Code used a type of HFO as fuel.109 One of the reports commissioned by PAME concluded that ‘significant risk reduction will be achieved if the onboard oil is of distillate type rather than heavy fuel oil’.110 This was due both to the toxicity and slower decomposition of HFO. The risk of environmental damage as a result of the use of distillate type oil is thus lower. The member States also referred to studies documenting that a spill of HFO would threaten Arctic marine environments and coastal ecosystems.111 They proposed that the IMO develop measures aimed at reducing the risk of use and carriage of HFO as fuel.112 Environmental NGOs also provided reports on the environmental risks of carrying and using HFO as fuel.113 4.3.2 Science as a premise in the adoption of the ban The mandate for the IMO to consider ‘measures to reduce risks of use and carriage of heavy fuel oil in the Arctic’ included deciding on a definition of HFO, developing guidelines on mitigating measures and the adoption of ban on use and carriage of HFO as fuel.114 The guidelines on mitigation measures, which could include routing measures in Arctic waters, appear to have been added to accommodate Russian concerns that the risks of use and carriage of HFO were better managed by ships’ routing measures rather than a ban on its use and carriage.115 In spite of the scientific information provided, both the proposing member States and other member States were concerned about the socio-economic effects of a ban. They emphasised the work undertaken by the Arctic Council’s Protection of the Marine Environment Working Group on Heavy Fuel Oil (Canada, Denmark, Finland, Iceland, Norway), MEPC 72/INF.14, 2 February 2018; Jiayu Bai and Aldo Chircop, ‘The Regulation of Heavy Fuel Oil in Arctic Shipping: Interests, Measures, and Impacts’ in Aldo Chircop and others (eds), Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation (Springer, 2020) 265, 268-270; Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Summary of the work undertaken by the Arctic Council’s Protection of the Marine Environment Working Group on Heavy Fuel Oil (Canada, Denmark, Finland, Iceland, Norway), MEPC 72/INF. 14. 108 See PAME, ‘Heavy Fuel Oil in the Arctic’ . 109 PAME, ‘Heavy Fuel Oil (HFO) Use by Ships in the Arctic in 2019’ (PAME, Arctic Shipping Status Report (ASSR) No 2, 2020) 110 Det Norske Veritas (DNV), Heavy Fuel in the Arctic (Phase 1) (Report for PAME, Report No/DN Reg No 2011-0053, 2011), cited in MEPC 71/14/4 (n 103) para 7. 111 Ibid. 112 IMO, MEPC 71/14/4 (n 103) paras 11 and 17. 113 IMO, MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Heavy Fuel Oil Use in the IMO Polar Code Arctic: Summarized by Ship Type, Submitted by CSC, FOEI, Greenpeace, Pacific Environment and WWF, MEPC 72/INF.20, 2 February 2018. 114 MEPC 72/17 Report (n 102) para. 11.9. 115 IMO, MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Proposal for possible measures to reduce risks of use and carriage of HFO as fuel by ships in Arctic Waters, Submitted by the Russian Federation, MEPC 72/11, 2 February 2018.

234  Research handbook on international marine environmental law the need to ‘develop a pragmatic solution that effectively addresses environmental concerns, considers impacts on Arctic communities and economies, and facilitates transition for industry.’116 Germany, Finland and Norway, among others, argued for a ban on the use and carriage of HFO as fuel, but recognised the need to delay its implementation with respect to Arctic communities and industries to enable them to adjust their port and ship operations to accommodate the ban.117 Consequently, there was an early recognition – at least among member States – that before adopting a ban the possible social, economic and other impacts on the Arctic communities in all coastal States would need to be taken into account.118 Environmental NGOs, however, were concerned that a delay in the implementation of a ban would not adequately reduce the environmental risks of the use and carriage of HFO as fuel.119 Consequently, the adoption of a ban on use and carriage of HFO as fuel was premised on the prior undertaking of impact assessments (IA), as referred to in Section 3.2 above. IA involves a systematic appraisal of the social and economic impacts of proposed regulations.120 With different and potentially conflicting interests at stake, it was important for the legitimacy of a ban that all benefits and costs related to it were identified and accounted for. The environmental NGOs argued for including all components – including the environmental impacts – in the assessment.121 The methodology for the IA was approved by MEPC in 2019.122 Each Arctic coastal member State was charged with undertaking a comprehensive IA assessing its societal costs and benefits, inter alia, for the protection of the marine environment.123 The IA methodology included five steps:124 (1) defining the scope of the impact assessment (identifying the social, environmental, and economic considerations, adverse as well as beneficial impacts); (2) identifying the policy objective of a ban (reduce risks of use and carriage of HFO as fuel); MEPC 71/14/4 Report (n 103) para. 11. IMO, MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Proposal to ban heavy fuel oil use and carriage as fuel by ships in Arctic waters, Submitted by Finland, Germany, Iceland, the Netherlands, New Zealand, Norway, Sweden, and the United States, MEPC 72/11/1, 2 February 2018, para. 5. 118 Sun (n 9) 527. 119 IMO, MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Proposal to ban heavy fuel oil use and carriage as fuel by ships in Arctic waters, Submitted by CSC, FOEI, Greenpeace, Pacific Environment, and WWF, MEPC 72/11/5, 16 February 2017. 120 Adelle and Weiland (n 73) 25. 121 IMO, MEPC, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Comments on document MEPC 73/9 on ‘Report of the informal correspondence group on the determination of an appropriate impact assessment methodology’, Submitted by FOEI, Greenpeace International, WWF, Pacific Environment and CSC, MEPC 73/9/3, 4 September 2018, paras 3-4. 122 IMO, MEPC, Report of the Marine Environment Protection Committee on Its Seventy-Fourth Session, MEPC 74/18, 9 June 2019, para. 10.24; IMO Sub-Committee on Pollution Prevention and Response (PPR), Report to the Marine Environment Protection Committee, PPR 6/20/Add.1, 26 March 2019, Annex 16: Draft Methodology to Analyse Impacts of a Ban on The Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters. 123 Leah Beveridge, ‘Inuit Nunangat and the Northwest Passage: An Exploration of Inuit and Arctic Shipping Conceptualizations of and Relationships with Arctic Marine Spaces in Canada’ in Aldo Chircop and others (eds), Governance of Arctic Shipping: Rethinking Risk, Human Impacts and Regulation (Springer 2020) 137, 141. 124 PPR 6/20/Add.1, Annex: Draft Methodology (n 122). 116 117

Regulating shipping under conditions of uncertainty  235 (3) setting out the different policy options (such as developing on a fixed time scale a ban or alternately developing a ban on an appropriate time scale considering other factors);125 (4) analysing the impacts of a ban;126 and (5) comparing policy options and recommending preferred option(s), resulting in selecting one of the options. The Arctic coastal States conducted and submitted their individual IAs to the IMO.127 The two major Arctic coastal States, Canada and Russia, highlighted the socio-economic costs to their indigenous communities and local industries.128 Whereas Russia stated that the benefits of a ban were unclear, Canada emphasised the ‘environmental benefits following a reduced risk of accidental pollution.’129 The Russian delegation reiterated that the proposed HFO ban was ‘one more example when prohibitive measures – and this mainly concerns environmental restrictions – are developed without sufficient scientific and technical study, one could say in haste.’130 The Russian IA did not include any assessment of the environmental benefits of a ban. A delayed implementation of the ban would, according to Canada, mitigate the negative socio-economic effects as the fuel market would change following the 2020 sulphur cap. Norway, however, questioned whether a ban would reduce the environmental risk given the uncertainties as to whether new fuels do, in fact, have fewer problematic impacts than HFO.131 These three IAs illustrate that the scientific information on the environmental effects of HFO spills was accorded different weight or a different role depending on the coastal State. Differences ranged from considering the information to be inadequate, to considering it to be balanced against the societal cost, to considering it to outweigh the societal costs. The assessments and positions of the coastal States were, clearly, heavily influenced by the societal impacts and costs of a ban. In 2020, the sub-committee on Pollution Prevention and Response (PPR) of the MEPC agreed that a ban on use and carriage of HFO as fuel should include a ‘delayed phase-in period’, giving consideration to all the IAs to ‘address the factors identified by the assessments as far as possible.’132 The sub-committee reached a compromise, agreeing on a ban on the use and transport of HFO as fuel to enter into force from 1 July 2024, but its implementation will be delayed for five years until 1 July 2029 for vessels complying with the oil fuel tank

Ibid, para. 15. Ibid. This includes assessing both the costs and benefits to indigenous and local communities, industries, economies, and the coastal and marine ecosystems of the Arctic. 127 IMO, MEPC Sub-Committee on Pollution Prevention and Response, Report to the Marine Environment Protection Committee, PPR 7/22, 24 April 2020, para. 14.9 (PPR 7/22 Report). 128 Ibid, paras 14.9-14.11. 129 IMO, MEPC Sub-Committee on Pollution Prevention and Response, Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Assessment of the benefits and impacts associated with a ban on the use and carriage of heavy fuel oil as fuel by ships operating in the Arctic, Submitted by Canada, PPR 7/INF.16, 13 December 2019. 130 IMO, MEPC Sub-Committee on Pollution Prevention and Response, Report to the Marine Environment Protection Committee, PPR 7/22/Add.1, 24 April 2020, Annex 22: Statement by the delegation of the Russian Federation (PPR 7/22/Add.1 Report). 131 IMO, MEPC Sub-Committee on Pollution Prevention and Response: Development of Measures to Reduce Risks of Use and Carriage of Heavy Fuel Oil as Fuel by Ships in Arctic Waters: Impacts of a ban on heavy fuel oil use and carriage as fuel by ships in the Norwegian Arctic waters, Submitted by Norway, PPR 7/INF.14, 13 December 2019. 132 PPR 7/22 Report (n 127) para. 14.16. 125 126

236  Research handbook on international marine environmental law protection requirements of the Polar Code.133 Furthermore, the Arctic coastal States may, until 1 July 2029, waive the ban in respect of vessels flying their flag while operating in waters under their sovereignty or jurisdiction.134 The waivers are to be granted taking into account guidelines to be adopted by the IMO which are expected to primarily include vessels used for supplying local communities. The compromise was approved and finally adopted by the MEPC in 2021.135 4.3.3 A science-based decision? As noted in Section 4.2, the negotiations on what resulted in the Polar Code were premised on scientific information on the need for additional and mandatory regulation of shipping in polar waters provided by member States. This included information on the risks to the Arctic marine environment of the use and transport of HFO. However, due to concerns over the adequacy of the information contained in the proposal available at the time the Polar Code was negotiated, and in particular over the possible negative socio-economic effects of a ban, the initial proposal for a ban on transport and use of HFO was deferred. The subsequent negotiations on a possible ban on use and transport of HFO as fuel were based on more extensive scientific documentation on and justification for the need for such regulation, provided inter alia through the work of PAME. As Bai and Chircop note, the Arctic Council provided ‘background information on HFOs in Arctic shipping’ and the IMO provided ‘the negotiation platform.’136 Information from PAME was considered along with the IAs that the MEPC had received from the individual Arctic coastal States. The acquisition and sharing of this further information, together with the subsequent discussions, provides more insight into the process that resulted in the adoption of the HFO ban. It should be noted that the 2020 cap on sulphur emissions was helpful in promoting the ban as HFO contains high levels of sulphur. Nevertheless, even though the IA methodology includes identification and assessment of the environmental aspects of a ban (in terms of the benefits to the environment and the local population), given that the ban is not to be effectively implemented until 2029, it is clear that the more short-term socio-economic considerations that came to the fore during the negotiations were given more weight than the environmental factors. A contributing factor to this outcome was undoubtedly that the costs and benefits were mostly assessed on the basis of essentially incomparable variables. Whereas the environmental benefits were described in general terms, the costs of a ban were calculated in monetary terms

Ibid, para. 14.24; PPR 7/22/Add.1 Report (n 130) Annex 12 Draft Amendments to MARPOL Annex I (Prohibition on the use and carriage for use as fuel of heavy fuel oil by ships in Arctic waters), Draft regulation 43A para. 2. The relevant requirement of the Polar Code is found in Part II-A, chapter 1.2 on structural requirements requiring vessels to have oil tanks or to carry oil separated from the outer shell by a specified distance. 134 PPR 7/22/Add.1 Report (n 130) Annex 12, ‘Regulation 43A’, para. 4. 135 IMO, MEPC 76/15 (n 64) para. 3.35. The regulation enters into force 1 November 2022 under the procedures of MARPOL Art. 16(2)(f)(ii). The text of the new Regulation 43A of MARPOL Annex I is available in MEPC 76/15/Add.2 Report, Resolution MEPC.329(76) (n 7) Annex 2 to the aforementioned report. 136 Bai and Chircop (n 107) 269-270. 133

Regulating shipping under conditions of uncertainty  237 (higher fuel prices or transport costs).137 Thus, it was always likely that the costs would appear to be more compelling than the benefits. The compromise was, unsurprisingly, subject to criticism from several environmental NGOs (including Greenpeace International and WWF)138 who were concerned that the exceptions and the waiver would allow 74 percent of the HFO-fuelled fleet to continue the use of HFO until 2029.139 Admittedly, the 2020 sulphur cap will lead to the transition to new types of fuel and the IAs conducted by the coastal States did consider the benefits or costs of alternative fuels. However, Norway, referring to reports prepared for the Arctic Council, raised concerns that if the same definition of HFO was used in the Arctic as has been used in the regulation on the use and carriage of oils in Antarctic waters,140 the ban would not necessarily reduce the risk to the environment because some of the low sulphur marine fuel oils may pose similar challenges to those associated with HFO with regard to spill clean-up, and there are still significant uncertainties as to their toxicity.141 Nevertheless, the definition of HFO used in respect of Antarctic waters142 was adopted by the IMO despite concerns that it was a premature decision because of uncertainties about the properties of the new fuel oils.143 One can speculate that the reason for incorporating the Antarctic definition may well have been due to the ongoing technical and economic barriers to the use of new and more environmentally friendly fuels.144 In any event, what can be said about the IMO’s decision-making process on the HFO fuel debate is that it was not characterised by a process of an overall assessment of the environmental costs versus the economic, and social costs of a ban on use and transport of HFO and of costs and benefits of the alternatives to a ban on HFO. Scientific information was vital to maintain an HFO ban on the IMO agenda, assisted by the implications of stricter sulphur regulations. The environmental benefits of a ban – documented by science – were balanced against primarily socio-economic considerations. Future regulation of fuels in Arctic waters will probably be influenced more by technology developments. They are likely to affect the costs of maritime operations, which have been decisive in the decision-making by the IMO.

See e.g. the Impact Assessments of Canada (PPR7/INF.16) and of the Russian Federation (PPR 7/ INF.13). 138 IMO, MEPC, Pollution Prevention and Response: Comments on document MEPC 75/10/Add.1, para. 3.5 on draft amendments to MARPOL Annex I to incorporate a prohibition on the use and carriage for use as fuel of heavy fuel oil by ships in Arctic waters, Submitted by FOEI, Greenpeace International, WWF, Pacific Environment and CSC, MEPC 75/10/7, 25 September 2020. 139 Ibid, para. 5. 140 PPR 7/22/Add.1 Report (n 130) Annex 12, ’Regulation 43A’ with reference to ‘Regulation 43’, para. 1.2. 141 PPR 7/22 Report (n 127) para. 14.9; PAME, ‘Alternative Fuels in the Arctic’ (DNV GL, Report No 2019-0226, 2019) ; Christina Jönander and Ingela Dahllöf, ‘Short and Long-term Effects of Low-sulphur Fuels on Marine Zooplankton Communities’ (2020) 227 Aquatic Toxicology 105592. 142 MARPOL Annex I, Regulation 43.1. 143 IMO, MEPC, Sub-Committee on Pollution Prevention and Response, Report to the Marine Environment Protection Committee, PPR 6/20, 19 March 2019, para. 12. 144 PAME, ‘Alternative Fuels in the Arctic’ (n 141); Sun (n 9) 593. 137

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5. CONCLUSION This chapter has examined the role of scientific information in the decision-making processes of the IMO, with a particular focus on the Polar Code and the HFO ban adopted in 2021. It has taken as its working premise that scientific information is vital to identifying problems, challenges, and threats to the environment, to identifying their causes, and to assisting in finding solutions. Science thus has a natural function and self-evident position in a legal framework such as that provided by the LOSC, and in the regulatory regimes adopted under the auspices of the IMO. If they are to meet their environmental mandates, these legal frameworks must facilitate procedures for the initiation, collection, communication, interpretation, and use of scientific information for the protection of the marine environment. Part XII of LOSC, on the protection and preservation of the marine environment, includes obligations of States to collect scientific information, to assess the status of the environment and to utilise the information in decision-making. These are general obligations that necessarily need to be specified within the different regimes addressing threats to the marine environment. Indeed, the provisions of Part XII of the LOSC signal a role for science in the drafting and re-examination ‘from time to time’145 of the regulations adopted directly or through the competent international organisation (in practice, primarily the IMO). There may be other reasons for re-examination of regulations, such as technological developments. However, under the LOSC the adoption of regulations that restrict navigational freedoms and rights requires an adequately documented scientific basis. This indicates a need to undertake a balancing of interests in the decision-making of the IMO. The IMO is mandated to provide for adoption of international regulations for the purpose of maritime safety and the protection of the marine environment.146 However, neither the IMO Convention nor the relevant conventions adopted through the IMO stipulate if and how scientific documentation is to be acquired or used in decision-making processes leading to the amendment of existing or the adoption of new regulations. The IMO has adopted guidelines for the decision-making processes of the MSC and the MEPC, obviously to ensure that the IMO are not overwhelmed by proposals for new or amended regulations and that all aspects of a proposal are addressed. Nevertheless, initiatives to amend or adopt new regulations are primarily the responsibility of the member States who are also charged with presenting the necessary scientific and other documentation of the need for the regulation, its urgency, its costs, and proportionality. The extent to which the proposing member State is successful will be dependent on whether it is able to achieve consensus on the need for the proposed regulation, and whether the need is adequately scientifically documented. Ultimately, however, the proposal will need to reflect what is realistically acceptable given the prevailing socio-economic factors. The process involved in the adoption of the Polar Code and the associated amendments of the IMO conventions was both innovative and based on a common understanding of the state of the marine environment of polar waters and of the major threats of increased shipping. The Polar Code may be described as applying a precautionary principle as regulations were introduced in an early phase in the development of the industry and before more detailed scientific

LOSC, Arts 211(1). IMO Convention, Art. 1(1).

145 146

Regulating shipping under conditions of uncertainty  239 information on the impacts of shipping was available. However, even if the natural science was clear, the socio-economic aspects and the possible regulatory options were contested, particularly those relating to the pollution prevention measures and, more specifically, to the regulation of the use and transport of HFO in Arctic waters as fuel. States were only able to agree on these regulations by going beyond the natural sciences into socio-economics and politics. Thus, while scientific information was important for the agenda-setting stage, other factors were more influential in the ultimate adoption of the measures. The outcome – the phased-in ban – is a result of the balancing of the interests of environmental protection as against different socio-economic considerations. The example of the Polar Code illustrates that, while the IMO may not generate its own science, it can and will make use of scientific information provided through other international institutions such as the Arctic Council. Nevertheless, the findings of this chapter accord with the observation of Elizabeth Kirk that ‘the role of science [in the IMO] is not in practice always as significant as one might hope.’ The existence of a scientific or expert advisory body within the institutional framework of the IMO could contribute to giving scientific and other technical information a clearer role in the agenda-setting stage and greater influence in decision-making. The challenge is that a scientific advisory body composed by representatives of the member States may easily become entangled in politics. Perhaps, then, it is better to stick with the flexibility employed by the IMO in responding to new scientific information?

11. From ocean dumping to marine geoengineering: The evolution of the London Regime Karen N Scott

1.

INTRODUCTION TO THE LONDON DUMPING REGIME

The regime developed for the regulation and management of dumping of wastes and other matter at sea1 celebrates its 50th anniversary in 2022, predating the adoption of the 1982 United Nations Convention on the Law of the Sea (LOSC)2 by a decade. The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention or LC)3 is part of the suite of environmental instruments that marked the beginning of the modern global environmental movement, heralded by the United Nations Conference on the Human Environment convened in Stockholm that year. The LC was the first global instrument to regulate the general disposal of waste at sea4 but is notable for its breadth of ambition. Article I of the Convention obliges parties to ‘individually and collectively promote the effective control of all sources of pollution of the marine environment’ in addition to specific measures to prevent the dumping of waste and other matter.5 Under Article XII, parties For literature on the London regime generally, see, Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law & the Environment (3rd ed, OUP 2009) 466-472; RR Churchill and AV Lowe, The Law of the Sea (3rd ed, Manchester Press 1999) 363-367; Louise de la Fayette, ‘The London Convention 1972: Preparing for the Future’ (1998) 13(4) International Journal of Marine and Coastal Law 515; Catherine Redgwell, ‘From Permission to Prohibition: The 1982 Convention on the Law of the Sea and Protection of the Marine Environment’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 180; Donald Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing 2016) 402-406; David L VanderZwaag, ‘The International Control of Ocean Dumping: Navigating from Permissive to Precautionary Shores’ in Rosemary Rayfuse, Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 132; David L VanderZwaag and Anne Daniel, ‘International Law and Ocean Dumping: Steering a Precautionary Course Aboard the 1996 London Protocol, but Still an Unfinished Voyage’ in Aldo Chircop, Ted L McDorman and Susan J Rolston (eds), The Future of Regime Building: Essays in Tribute to Douglas M. Johnston (Martinus Nijhoff 2009) 515. 2 United Nations (UN) Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 3 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention or LC). 4 Erik Jaap Molenaar, ‘The 1996 Protocol to the 1972 London Convention’ (1997) 12(3) International Journal of Marine and Coastal Law 396, 396. Dumping of radioactive waste at sea was the subject of obligations under Article 25(1) of the Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 1. 5 Emphasis added. This commitment has been reiterated, in slightly more modern terms, in Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1

240

From ocean dumping to marine geoengineering  241 pledge to promote the protection of the marine environment from vessel-source pollution, radioactive pollutants from all sources, agents of chemical and biological warfare and waste from seabed mining. From the outset, therefore, the LC’s mandate arguably extended beyond the dumping of waste at sea. This broad mandate has been deliberately expanded by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (London Protocol or LP), adopted in 1996, which, despite its nomenclature, is not an instrument subsidiary to the Convention, but rather, a stand-alone treaty designed to ultimately replace the Convention.6 In addition to modernising the dumping regime, the Protocol extends to carbon dioxide (CO2) pollution and climate impacts on the ocean more generally. Shortly after entering into force, in 2006, Annex I of the Protocol was amended to include CO2 streams from CO2 capture processes as matter that can be considered for dumping where it is to be disposed of into a sub-seabed geological formation.7 This amendment provides the LP with a clear global mandate to regulate offshore CO2 sequestration as a climate change mitigation measure. Two years later, in 2008, the parties recommended that ocean fertilisation activities other than scientific research should be considered contrary to the aims and objectives of the Convention and Protocol8 and, in 2010, adopted a non-binding risk assessment framework for ocean fertilisation scientific research.9 Amendments to the Protocol were adopted in 2013 to provide a legal framework for regulating ocean fertilisation and, more generally, to develop a mandate to potentially regulate other forms of marine geoengineering.10 Once these amendments enter into force the LP will be the first (and potentially only) global legally binding regime to explicitly regulate marine geoengineering for climate purposes. As a consequence of these developments, the London regime is, rather surprisingly given its original focus, playing a leading role in mediating the ocean/climate nexus and regulating the exploitation of the oceans and seabed as a CO2 sink and a means to mitigate atmospheric climate change.11 This new role for the dumping regime comprises the principal focus of this chapter, which evaluates the expansion of the LP’s mandate through formal (treaty amendment) and informal or unconventional mechanisms (non-binding resolutions).12 The tension between these modes (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1 (London Protocol or LP), Art. 2. 6 LP, Art. 23. 7 LP, Annex 1, paras 1.8 and 4. See the discussion in Section 3.1 of this chapter, below. 8 International Maritime Organization (IMO), Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting Parties, LC 30/16, 9 December 2008, Annex 6: Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, adopted 31 October 2008 (IMO, LC 30/16 Report). 9 IMO, Report of the Thirty-Second Consultative Meeting and the Fifth Meeting of Contracting Parties, LC 32/15, 9 November 2010, Annex 5: Resolution LC-LP.2 (2010) on the Assessment Framework for Scientific Research Involving Ocean Fertilization, adopted 14 October 2010 (IMO, LC 32/15 Report). 10 IMO, Report of the Thirty-Fifth Consultative Meeting and the Eighth Meeting of Contracting Parties, LC 35/15, 21 October 2013, Annex 4: Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Marine Geoengineering Activities, adopted 18 October 2013 (IMO, LC 35/15 Report). Ocean fertilisation and marine geoengineering is discussed in Section 3.2 of this chapter, below. 11 See also, Ellycia Harrould-Kolieb and Tim Stephens, ‘Ocean Acidification’, Chapter 12 in this volume. 12 For an excellent survey of formal and informal approaches to law-making in the law of the sea more generally, see, Natalie Klein (ed), Unconventional Lawmaking in the Law of the Sea (OUP 2022),

242  Research handbook on international marine environmental law of expanding the Protocol’s mandate, in particular, as a consequence of the failure of formal amendments to enter into force even many years after their adoption, should perhaps give the parties pause for thought before extending its mandate further. Other issues on the current agenda of the regime that ostensibly challenge the traditional parameters of the regime include marine litter and microplastics, seabed mining, the discharge of radioactive wastewater from the Fukushima Daiichi nuclear power plant, noise and the deposition of materials jettisoned during the launch of space vehicles. While there is little indication at present that any of these issues will be subject to formal regulation under the regime, initiatives focused on research, education and cooperation demonstrate a desire on the part of at least some of the parties to extend the soft (or informal) reach of the regime. Overall, the dumping regime is regarded as one of the most successful in the context of pollution prevention and control. The most environmentally damaging materials that were routinely dumped in the 1970s and 1980s, such as radioactive waste or industrial waste, may not be dumped under either the LC or the LP today.13 The transformational shift from what was effectively a licence to pollute in the 1970s to a much more robust obligation to protect and conserve the marine environment was marked by the decision, in 1992, to refer, in the future, to the ‘London Convention’ instead of the ‘London Dumping Convention’.14 The LP strengthens this approach and notably, in Article 2, commits parties to ‘prevent, reduce and where practicable eliminate pollution caused by dumping or incineration at sea or other matter’.15 Having been adopted in the wake of the 1992 United Nations Conference on Environment and Development in 1992, the LP explicitly incorporates key modern environmental principles including the precautionary approach,16 the polluter pays principle17 and the principle that damage is not to be transferred, directly or indirectly, from one part of the environment to another or transformed from one type of pollution into another.18 Institutionally, the regime is robust with the International Maritime Organization (IMO) responsible for secretariat duties19 and annual joint LC/LP consultative meetings responsible for keeping these instruments under continuous review and for adopting amendments and collaborating with global and regional partners as appropriate.20 Continually evolving the LC/LP to adopt a more protectionist approach to marine pollution has been critical to its success, and the tacit amendment procedure, which applies to the amendment of its annexes rather than the main body of text, has been a crucial part of this process.21

in particular, Natalie Klein, ‘Meaning, Scope, and Significance of Informal Lawmaking in the Law of the Sea’ (chapter 1). 13 Molenaar (n 4) 397. 14 Ibid. 15 Emphasis added. 16 LP, Art. 3.1. See also, IMO, Resolution LDC.44(14): The Application of a Precautionary Approach in Environmental Protection within the Framework of the London Dumping Convention, LDC 14/16, Annex 2, 1991. 17 LP, Art. 3.2. 18 LP, Art. 3.3. 19 LC, Arts XIV(2), XIV(3); LP, Art. 19. 20 LC, Art. XI(4); LP Art. 18. 21 LC, Art. XV(2); LP, Art. 22. In contrast to amendments to the main body of the Convention (which must be ratified in the normal way and enter into force once they have been accepted by two-thirds of the parties), the tacit amendment procedure means that amendments to the annexes approved by a two-thirds

From ocean dumping to marine geoengineering  243 Nevertheless, there is little room for complacency when contemplating the future of the dumping regime. As discussed below, the regime suffers from low compliance levels and, while the LP introduced dispute settlement procedures22 (amendments adopted in 1978 to the LC introducing a dispute settlement process have never entered into force), the parties have yet to deliver on their undertaking to develop liability procedures arising from dumping or incineration of wastes at sea.23 More fundamentally, only 100 States are party to the LC and the LP in combination, with a mere 53 States (as of 2021) having ratified the LP.24 This raises practical questions as to the global reach of the regime and, although the standards under the 1972 Convention have been incorporated into Article 210 of the LOSC,25 there is uncertainty as to whether the revised, tighter standards of the LP have such global reach by means of this mechanism.26 Furthermore, it is reasonable to conclude that given the definition of dumping under the LOSC,27 the evolving standards under the LP relating to CO2 sequestration and, more particularly, marine geoengineering, cannot be considered rules and standards for the purposes of Article 210 of the LOSC.28 It is thus unsurprising that increasing membership and compliance with (in particular) the reporting requirements under both instruments is core to the Convention/Protocol Strategic Plan, which was adopted in 2016.29 The remainder of this chapter critically evaluates the evolution of the dumping regime from an approach that could be characterised as a ‘licence to pollute’ to one that emphasises an obligation to protect. It focuses on how dumping is defined for the purposes of the regime, and how that definition has evolved to deal with challenges including the storage of waste below the seabed and the toppling of platforms in situ. It examines the shift from the black/grey/white list to the reverse list approach as part of the endorsement of an explicitly precautionary approach to pollution. The chapter then explores the expansion of the Protocol’s mandate to address marine geoengineering and concludes with a more general discussion of selected issues facing the parties to the London regime with a particular focus on compliance and liability.

majority of those present at the meeting will enter into force 100 days later for all parties except those who have declared otherwise. 22 LP, Art. 16. 23 LP, Art. 15. See also, LC, Art. X. See the discussion in Section 5, below. 24 There are 87 parties (as of 2021) to the LC. Some of these States are also party to the LP, but not all. 25 See (n 56) and accompanying text. 26 See the discussion in Section 2.3, below. 27 LOSC, Art. 1(5). 28 See also, Alexander Proelss, ‘Fragmentation and Coherence in the Legal Framework for the Protection of the Marine Environment’, Chapter 3 in this volume. 29 See, IMO, Report of the Thirty-Eighth Consultative Meeting and the Eleventh Meeting of Contracting Parties, LC 38/16, 18 October 2016, para. 3.15, Annex 2: Strategic Plan for the London Protocol and London Convention (IMO, LC 38/16 Report).

244  Research handbook on international marine environmental law

2.

THE EVOLUTION OF THE LONDON REGIME: FROM LICENCE TO POLLUTE TO AN OBLIGATION TO PROTECT

2.1

Defining Dumping under the London Regime

Dumping is defined by the LC as ‘any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea’ including the disposal of the vessels, aircraft, platforms and structures themselves.30 The definition specifies that dumping does not include the disposal of waste or other matter incidental to the normal operation of ships, aircraft and platforms, the disposal of waste or other matter related to the exploration and exploitation of offshore minerals and the ‘placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims’ of the Convention.31 This definition implicitly excludes land-based pollution. What is less clear is whether the Convention covers the disposal of waste and other matter under the seabed. This issue was extensively debated in the 1980s and early 1990s in the context of the disposal of radioactive waste beneath the seabed,32 and arose again in the 2000s in the context of sub-seabed sequestration of CO233 but has never been definitively resolved. Nevertheless, the LC definition of dumping was largely incorporated into the LOSC, with the exception of the exclusion relating to the disposal of wastes and other matter associated with offshore minerals processing.34 Under the LP, the definition of dumping was both expanded and narrowed in order to clarify, as far as possible, the scope of the instrument. It clarified dumping as comprising ‘any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms and other man-made structures at sea’ as well as the disposal into the sea of vessels, aircraft etc.35 Importantly, it broadened the definition to specify that ‘storage of wastes and other matter in the seabed and the subsoil thereof from vessels, aircraft or other man-made structures at sea’ constituted dumping. The LP also addressed the controversial issue of offshore platforms by confirming that the ‘abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal’ was included in the definition.36

LC, Art. III(1)(a). LC, Art. III(1)(b)(1), (c) and (b)(ii). 32 IMO, Resolution LDC.41(13): Disposal of Radioactive Wastes into Sub-sea-bed Repositories Accessed from the Sea, LDC 13/15, Annex 7, 1990, confirmed that the Convention was the appropriate body to address the issue of disposal of low-level radioactive waste into sub-seabed repositories accessed from the sea and that such disposal was subject to the ban on disposal of radioactive waste under LDC21(9). The ban was confirmed in IMO, Resolution LC.51(16) (1993): Amendments to the Annexes to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 Concerning Disposal at Sea of Radioactive Wastes and Other Radioactive Matter, but expressly without prejudice to whether such disposal could be considered ‘dumping’ within the meaning of the Convention. 33 See Karen N Scott, ‘The Day After Tomorrow: Ocean CO2 Sequestration and the Future of Climate Change’ (2005) 18(1) Georgetown International Environmental Law Review 57, 75-79. 34 LOSC, Art. 1(5). 35 LP, Art. 1(4)(1)(1) (emphasis added). The definition of dumping under the Protocol replaced the term ‘at sea’ used by the LC with the more specific phrase ‘into the sea’. 36 LP, Arts 1(4)(1)(3) and (4) (emphasis added). IMO, Report of the Forty-First Consultative Meeting and the Fourteenth Meeting of Contracting Parties, LC 41/17/Add.1, 29 October 2019, Annex 8: Revised Specific Guidelines for Assessment of Platforms or Other Man-made Structures at Sea (IMO, 30 31

From ocean dumping to marine geoengineering  245 It added an additional exclusion to the list of activities not classed as dumping under the LC: the abandonment of cables, pipelines, marine research devices and other matter for a purpose other than mere disposal thereof.37 While the amendments to the definition of dumping were designed to address a number of disputed issues that had arisen under the LC, the broadening of the definition of dumping to definitively apply to activities taking place in the seabed and its subsoil would prove crucial to the expansion of its mandate to address climate change and sub-seabed sequestration of CO2. 2.2

Dumping under the London Regime

As noted above, the LC and LP take quite different approaches to regulating what may be dumped into the sea. Under the LC, waste and other matter listed in Annex I may not be dumped, while waste and other matter listed in Annex II may be dumped subject to a prior special permit and all other waste with a general permit. Often referred to as the black/grey/ white list approach,38 the London Convention thus initially provided a licence to pollute with an emphasis on controlling rather than banning dumping. Nevertheless, over the years the contracting parties have gradually adopted measures of increasing stringency limiting and banning altogether the dumping of certain categories of waste.39 Banned waste and other matter currently listed in Annex I40 include organohalogen, mercury and cadmium compounds, persistent plastics and radioactive waste. Waste that may be dumped subject to a special permit is listed in Annex II and includes arsenic, lead, cyanides and some pesticides. When considering whether to grant a dumping permit, parties must consider the characteristics of the matter to be dumped, the dumping site and the method of deposit as well as the effects on amenities and marine life, and on the practical availability of land-based methods of treatment.41 By contrast, the Protocol adopts a reverse listing approach whereby the dumping of waste and other matter is prohibited with the exception of substances listed in Annex 1.42 The Protocol thus marks a significant shift from the licence to pollute reflected in the London Convention and this is demonstrated by its explicit incorporation of the precautionary approach in Article 3(1) of the Protocol. The type of wastes that may be dumped under the LP include dredged material, sewage sludge, fish waste, and vessels, platforms and other man-made structures at sea. In 2006, Annex 1 was amended to include CO2 streams from carbon sequestration43 and stronger emphasis was placed on waste prevention and management.44

LC 41/17/Add.1 Report). See, Youna Lyons, ‘The New Offshore Oil and Gas Installation Abandonment Wave and the International Rules on Removal and Dumping’ (2014) 29(3) International Journal of Marine and Coastal Law 480. 37 LP, Art. 1(4)(2)(3). 38 Rothwell and Stephens (n 1) 402. 39 For a concise overview of these restrictions, see, Molenaar (n 4) 397-398. 40 Exceptions to the permit requirements apply where dumping is necessary to secure the safety of human life, or vessels, aircraft or platforms in cases of force majeure, where dumping is the only way of averting the threat. See, LC, Art. V. 41 LC, Art. IV(2), Annex III. 42 But see the exception in LP, Art. 8. 43 LP, Annex 1, paras 1.8 and 4. This is discussed in Section 3.1, below. 44 LP, Annex 2, paras 2-5.

246  Research handbook on international marine environmental law Detailed guidance relating to nine categories of waste that may be dumped under both the LC/LP have been adopted45 in addition to the general guidelines for site selection and monitoring, which were revised in 2021.46 Under both instruments, records must be kept of permits issued and reported to and evaluated by the meeting of the parties.47 Finally, under the LP, parties must not ‘allow the export of wastes or other matter to other countries for dumping or incineration at sea’.48 Although this obligation has the laudable aim of ensuring that parties are not able to evade Protocol rules through exporting their waste to non-parties,49 Article 6 of the Protocol has unexpectedly proven to present an obstacle for States seeking to engage in collaborative large-scale sub-seabed CO2 sequestration. Although Article 6 was amended in 2009 to address this issue, this amendment has yet to enter into force.50 The requirements under the LC and the LP apply in the territory of parties and to vessels, aircraft and platforms registered to them or otherwise under their jurisdiction where the loading takes place in the territory of a State not party to the Convention.51 The requirements also apply to the internal waters unless the party has alternative permitting or regulatory measures in place to control activities classified as dumping by the Protocol.52 2.3

The London Regime and the LOSC

Under Part XII of the LOSC, parties are required to adopt laws and regulations to prevent, reduce and control pollution of the marine environment by dumping, including through competent organisations and conferences.53 National laws, regulations and measures must be no less effective than the global rules and standards,54 and dumping may only take place with the permission of the competent authorities of States, including the coastal State where dumping

See, IMO, Waste Assessment Guidance (Our Work: Environment) . Note that the platforms and structures guidelines were revised in 2019. See, IMO, LC 41/17/Add.1 Report (n 36) Annex 8. These guidelines also apply to dumping under the LC. 46 See, IMO, Report of the Forty-Third Consultative Meeting and the Sixteenth Meeting of Contracting Parties, LC 43/17/Add.1, Annex 2: Guidelines for Selecting Sites for the Dumping of Wastes and other Matter at Sea and for Developing Site Management and Monitoring Plans, 18 November 2021 (IMO, LC 43/17/Add.1 Report). 47 LC, Art. VI(4); LP, Arts 9.4, 9.5. 48 LP, Art. 6. 49 Article 6 of the LP parallels similar developments under other global treaties dealing with waste or hazardous materials. See, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 57, Art. 4; Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119, Art. 3. 50 IMO, Resolution LP.3(4) on the Amendment to Article 6 of the London Protocol, 30 October 2009 (IMO, Resolution LP.3(4)). This issue, as well as the 2009 amendment, is discussed in Section 3.1.2, below. 51 LC, Arts VI(2), VII; LP, Art. 9.2. But see the exceptions regarding sovereign immunity in LC, Art. VII(4); and LP, Art. 10.4. 52 LP, Art. 7. 53 LOSC, Art. 210(1) and (4). For an overview of the negotiating history of Article 210, see, Frank Wacht, ‘Article 210’ in Alexander Proelss, United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017) 1407. 54 LOSC, Art. 210(6). 45

From ocean dumping to marine geoengineering  247 takes place under its maritime jurisdiction.55 Obligations relating to enforcement by coastal, flag and port States are set out in Article 216 of the LOSC. The global rules and standards referred to in Article 210(6) of the LOSC are generally accepted to include, at a minimum, the LC.56 As such, while the 1972 Convention has been ratified by 87 parties, its rules and standards are essentially of universal application by virtue of Article 210(6) of the LOSC. However, it remains less clear whether the London Protocol, which sets out tighter standards, is also captured by Article 210(6). On the one hand, it might be argued that although in force, with only 53 parties, it cannot be said to have replaced the more widely ratified London Convention. On the other hand, it is without doubt that the Protocol constitutes a ‘global standard’, and it is notable that Article 210(4) of the LOSC stipulates that ‘such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary’ foreshadowing ‘their further dynamic development’. This supports the argument that the Protocol should also be considered as setting global standards for the purposes of Article 210,57 although it is unclear whether the Protocol can be said to have replaced the Convention standards or whether they can both be applied simultaneously with States having the discretion to choose which standards to apply. However, Article 210 refers only to ‘dumping’, and it is thus unlikely that global standards developed under the Protocol relating to ocean fertilisation or marine geoengineering more generally, which arguably fall outside the definition of dumping under the LOSC, could be incorporated within this provision. Nevertheless, as Redgwell has perceptively noted: neither the LOSC nor the dumping conventions… are self-contained regimes, hermetically sealed from the intrusion of general international law, rather they constitute mutually reinforcing integrated regimes which serve together comprehensively to regulate protection of the marine environment from dumping.58

3.

THE LONDON PROTOCOL AND CLIMATE CHANGE

The London regime is notable as a global institution that has taken regulatory action to address ocean-based carbon dioxide removal technologies (CDR). While the regulation of CO2 sequestration has involved a relatively small expansion of its mandate and indubitably involves the placement if not the disposal of waste or other matter in the oceans, the management of marine geoengineering activities represents a more significant departure from its original mandate. 3.1

Sequestration of Carbon Dioxide in the Oceans

Sequestration of carbon dioxide, commonly referred to as CO2 capture and storage (CCS), is defined by the Intergovernmental Panel on Climate Change (IPCC) as ‘a process consisting of the separation of CO2 from industrial and energy-related sources, transport to a storage LOSC, Art. 210(3) and (5). The meaning was confirmed at the 17th Conference of the Parties to the London Convention in 1994: IMO, Report of the Seventeenth Consultative Meeting, LC 17/14, 28 October 1994, para. 2.5. See also, Birnie, Boyle and Redgwell (n 1) 466. 57 See Wacht (n 53) 1418. 58 Redgwell, ‘From Permission to Prohibition’ (n 1) 190 (footnote omitted). 55 56

248  Research handbook on international marine environmental law location and long-term isolation from the atmosphere’.59 It is characterised by the IPCC as ‘an option in the portfolio of mitigation actions for stabilization of atmospheric greenhouse gas concentrations’.60 Marine or offshore CO2 sequestration naturally comprises CDR options that store CO2 in the water column, as well as on or under the seabed. Interest in the sequestration of CO2 in the water column or on the seabed was proposed over 40 years ago61 but remains largely theoretical62 in 2022 owing to uncertainties over its effectiveness as a climate change mitigation measure63 and the obvious environmental risks.64 Moreover, sequestration from a vessel or platform or structure at sea is expressly prohibited under the London Protocol65 and arguably falls within the prohibition on the dumping of industrial waste materials generated by manufacturing or processing operations under Annex I of the London Convention.66 By contrast, disposing of CO2 beneath the seabed is considered a largely safe and permanent climate change mitigation measure.67 As of 2019, there were 43 large-scale CCS projects with 18 in operation and five in construction, although these are mainly on rather than offshore.68 While the United States dominated early initiatives, there are now 20 CCS projects (on and offshore) at various stages of development in Europe, China and Australia.69 In 2020, global carbon and capture injection (on and offshore) stood at approximately 40 million metric tons a year.70 This notwithstanding, CCS is, to date, ‘extremely expensive and technologically difficult’ and in many States – including the United States, Canada, the United Kingdom, Norway, China and Australia – by necessity, the State is playing a significant role in their development.71 The question of whether CCS activities would be compatible with the London Convention and Protocol was initially raised in 1999 at the 21st consultative meeting, and the specific 59 Intergovernmental Panel on Climate Change (IPCC), Bert Metz and others (eds), IPCC Special Report on Carbon Dioxide Capture and Storage (CUP 2005) 3. 60 Ibid. 61 See Cesare Marchetti, ‘On Geoengineering and the CO2 Problem’ (1977) 1 Climatic Change 59. 62 Plans to inject CO2 into the oceans off the coasts of Hawaii and Norway in 2002 were abandoned owing to public protest. See, Virginia Gewin, ‘Carbon Study to Quit Hawaii’ (2002) 417 Nature 888; Jim Giles, ‘Norway sinks Ocean Carbon Study’ (2002) 419 Nature 6. 63 See, eg, Norikazu Nakashiki, ‘Lake-Type Storage Concepts for CO2 Disposal Option’ (1997) 17(5-6) Waste Management 361. 64 See, Peter M. Haugan and Helge Drange, ‘Effects of CO2 on the Ocean Environment’ (1996) 37(6-8) Energy Conversion and Management 1019; Yoshihisa Shirayama, ‘Biodiversity and Biological Impact of Ocean Disposal of Carbon Dioxide’ (1997) 17(5-6) Waste Management 381; Brad A Seibel and Patrick J Walsh, ‘Potential Impacts of CO2 Injection on Deep-sea Biota’ (2001) 294(5541) Science 319. 65 LP, Annex 1, para. 4 stipulates that carbon dioxide streams can only be considered for dumping if disposal is into a sub-seabed geological formation. 66 Scott, ‘The Day After Tomorrow’ (n 33) 68-79 and 85-93. 67 See, Yihua Teng and Dongziao Zhang, ‘Long-term Viability of Carbon Sequestration in Deep-sea Sediments’ (2019) 4(7) Science Advances 1. 68 Natalia Romasheva and Alina Ilinova, ‘CCS Projects: How Regulatory Frameworks Influences their Deployment’ (2019) 8(4) Resources 181. 69 Ibid. 70 Carbon Sequestration Leadership Forum (CSLF), 2021 Carbon Sequestration Technology Roadmap, 2 . 71 Romasheva and Ilinova (n 68).

From ocean dumping to marine geoengineering  249 matter of offshore sub-seabed sequestration was added to the work program of the Convention in 2004.72 As noted above, the application of the London Convention to the disposal of waste and other matter beneath the seabed was never definitively resolved. By contrast, the London Protocol defined dumping to expressly include the storage of wastes or other matter in the seabed and its subsoil.73 However, carbon dioxide was not listed in Annex I and could therefore not be sequestered unless such sequestration was directly related to offshore minerals activities, which are excluded from the definition of dumping under the Protocol.74 The Working Group on CO2 Sequestration reported, in 2005, that there were different views on whether offshore CCS activities could be considered compatible with the Convention or Protocol, noting that neither instrument was drafted with CCS technology in mind and that there were differing interpretations on how they might apply to such activities.75 The Working Group concluded that it ‘seemed unlikely that it would be possible to achieve consensus’ on the issue.76 Nevertheless, the Meeting endorsed the view of the Working Group that ‘CO2 sequestration in sub-seabed geological structures had a role to play, as part of a suite of measures to tackle the challenge of climate change and ocean acidification’77 and agreed: that the London Convention and Protocol, which provide the specific global framework for the protection of the marine environment against pollution from dumping at sea, were appropriate global instruments to address the implications of CO2 sequestration in sub-seabed geological structures for the marine environment.78

The majority of delegates felt that the focus of potential amendments should be the Protocol rather than the Convention, with some delegations asserting that amendment of the Convention itself would not be appropriate.79 There were three principal issues to be addressed in order to create a regulatory regime for sub-seabed sequestration of CO2 under the London Protocol:80 the amendment of Annex 1 to include CO2 disposal; the management of cooperative arrangements and shared facilities in the context of Article 6 of the LP; and liability. The first issue was addressed successfully early on. The second issue has yet to be formally resolved for all parties and there has been no attempt to address the issue of liability for damage caused by CO2 sequestration activities.

Scott, ‘The Day After Tomorrow’ (n 33) 78. LP, Art. 1.4.1.3. 74 LP, Art. 1.4.3. The equivalent exception under the LC is found in Art. III(1)(c). 75 IMO, Report of the 27th Consultative Meeting, LC 27/16, 16 December 2005, paras 6.18-6.21. 76 Ibid, para. 6.21. 77 Ibid, para. 6.24.1. 78 Ibid, para. 6.24.2. 79 Ibid, para. 6.26. 80 See also, Rosemary Rayfuse and Robin Warner, ‘Climate Change Mitigation Activities in the Ocean: Turning Up the Regulatory Heat’ in Robin Warner and Clive Schofield (eds), Climate Change and the Oceans: Gauging the Legal and Policy Currents in the Asia Pacific and Beyond (Edward Elgar 2012) 234; Rosemary Rayfuse, ‘Climate Change and the Law of the Sea’ in Rosemary Rayfuse and Shirley V Scott (eds), International Law in the Era of Climate Change (Edward Elgar 2012) 147. 72 73

250  Research handbook on international marine environmental law 3.1.1 Authorising the sub-seabed sequestration of CO2 Shortly after the LP entered into force, Annex 1 was amended to include CO2.81 A number of States expressed concern at the 2006 Meeting over the amendment, highlighting that the feasibility of CO2 sequestration and its risks were poorly understood, that it might be interpreted as a means for failing to reduce CO2 emissions at source, that it should be regulated in a separate annex as it conflicted with the definition of dumping and may open the door to other types of waste to be added to Annex 1, or that its adoption should be postponed until specific technical guidelines were in place.82 The meeting was unable to achieve consensus, so the amendment was adopted by vote, with 12 Protocol parties in favour83 and five abstaining.84 The amendment added ‘carbon dioxide streams from carbon dioxide capture processes for sequestration’ to the list of wastes and other matter that can be considered for dumping provided disposal is into a sub-seabed geological formation and ‘they consist overwhelmingly of carbon dioxide’.85 The preamble to Resolution LP.1(1) highlighted the parties’ serious concern for the implications of climate change and ocean acidification and stressed that CCS is no substitute for reducing CO2 emissions at source. Being an amendment to the Annex rather than the Protocol, the amendment entered into force 100 days after the date of its adoption, on 10 February 2007. In 2007, ‘Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations’ were adopted, addressing issues including site selection, risk assessment, potential impacts, monitoring and providing for mitigation or remediation in the event of a CO2 leak.86 3.1.2 Cooperative CCS arrangements and transboundary movement of CO2 While establishing the basis for regulating sub-seabed sequestration of CO2 was relatively straightforward, the issue of managing transboundary cooperation in CCS activities has proven more challenging. The issue was Article 6 of the Protocol, which stipulates that ‘Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration’. The first Meeting of the Legal and Technical Working Group on Transboundary CO2 Sequestration Issues in 2008 concluded that Article 6 of the Protocol prohibited the deliberate export of CO2 streams to both parties and non-parties, and considered, without reaching a conclusion, whether Article 6 would apply where CO2 is transferred from

IMO, Resolution LP.1(1) on the Amendment to Include CO2 Sequestration in Sub-Seabed Geological Formations in Annex 1 to the London Protocol, 2 November 2006. 82 IMO, Report of the Twenty-Eighth Consultative Meeting and the First Meeting of Contracting Parties, LC 28/15, 6 December 2006, paras 83-87, 96 (IMO, LC 28/15 Report). 83 Australia, Canada, France, Germany, Mexico, New Zealand, Norway, Saudi Arabia, Spain, Sweden, the United Kingdom and Vanuatu. See, ibid, para. 101. 84 Belgium, China, Denmark, Egypt and South Africa. See, ibid. 85 LP, Annex 1, paras 1.8 and 4. 86 IMO, Report of the Twenty-Ninth Consultative Meeting and the Second Meeting of Contracting Parties, LC 29/17, 14 December 2007, Annex 4: Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations (IMO, LC 29/17, Specific Guidelines Report). These were revised in 2012. See, IMO, Report of Thirty-Fourth Consultative Meeting and the Seventh Meeting of Contracting Parties, LC 34/15, 23 November 2012, Annex 8: 2012 Specific Guidelines for the Assessment of Carbon Dioxide for Disposal into Sub-seabed Geological Formations (IMO, LC 34/15, Specific Guidelines Revision). 81

From ocean dumping to marine geoengineering  251 a party to the high seas.87 Although the Group agreed that unintended migration of CO2 streams within sub-seabed geological formations would not constitute an ‘export’ under Article 6, they reached no conclusion on whether a deliberate migration would constitute an export within the terms of Article 6.88 On this interpretation, transboundary cooperation, whereby CO2 is exported from one State to another for final disposal or where CO2 is deliberately injected into a sub-seabed facility that crosses jurisdictional boundaries would be contrary to Article 6, notwithstanding that potential collaboration was envisaged under the 1997 Kyoto Protocol as well as under EU law as a legitimate response to mitigating climate change.89 While the Protocol parties agreed that such transboundary cooperative CCS activities should be permitted under the Protocol, there was no consensus on whether Article 6 be amended or whether an interpretive resolution be adopted to facilitate this.90 This question was, however, resolved in 2009, when the decision was taken to formally amend Article 6. Resolution LP.3(4),91 which was again adopted by a vote when consensus could not be achieved,92 amends Article 6 to confirm that ‘the export of carbon dioxide streams for disposal in accordance with annex 1 may occur, provided that an agreement or arrangement has been entered into by the countries concerned’.93 As detailed in the relevant Guidance on the implementation of Article 6.2, adopted in 2013,94 the agreement/arrangement must set out the permitting responsibilities between the exporting and receiving countries, which must be consistent with the Protocol, and where the agreement/arrangement is with a non-party, the provisions must be at least equivalent to the Protocol requirements and must not derogate from obligations to protect and preserve the marine environment.95 The contracting party must notify the IMO of any such agreement.96 The relationship between Article 6 and the transboundary movement of CO2 (deliberate or otherwise) within sub-seabed storage facilities has also been clarified. Resolution LP.3(4) stipulates that ‘transboundary movement of carbon dioxide after injection (migration) is not export for dumping and therefore not prohibited by Article 6’.97 The CO2 Guidelines98 were revised in 2012 to confirm that it is the State within which the injection of CO2 occurs that is IMO, Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting Parties, LC 30/16, 9 December 2008, paras 5.14.3-5.14.4 (IMO, LC 30/16 Report). 88 Ibid, para. 15.14.5. 89 Viktor Weber, ‘Are We Ready for the Ship Transport of CO2 for CCS? Crude Solutions from International and European Law’ (2021) 30(3) Review of European, Comparative and International Environmental Law 387, 387-388. 90 IMO, LC 30/16 Report (n 87) para. 15.14.20. 91 IMO, Resolution LP.3(4) (n 50). 92 IMO, Report of the Thirty-First Consultative Meeting and the Fourth Meeting of Contracting Parties, LC 31/15, 30 November 2009, para. 5.16. 93 LP, Art. 6.2 (as amended) (amendment not in force). For a helpful overview of the amendment, see, David Langlet, ‘Exporting CO2 for Sub-Seabed Storage: The Non-Effective Amendment to the London Protocol and its Implications’ (2015) 30(3) International Journal of Marine and Coastal Law 395. 94 IMO, LC 35/15 Report (n 10), Annex 6: Guidance on the Implementation of Article 6.2 on the Export of CO2 Streams for Disposal in Sub-seabed Geological Formations for the Purpose of Sequestration. 95 LP, Arts 6.2.1 and 6.2.2 (as amended) (amendment not in force). 96 Ibid. 97 IMO, Resolution LP.3(4) (n 50) Preamble. 98 IMO, LC 29/17, Specific Guidelines Revision (n 86). 87

252  Research handbook on international marine environmental law responsible for implementing the Protocol and its guidelines in the context of a transboundary sub-seabed geological formation.99 While the Guidelines do not set out detailed provisions relating to such transboundary geological formations, they nevertheless reinforce general international law principles relating to the need to obtain consent prior to using a shared geological formation, cooperation and information sharing.100 The Guidelines do not explicitly refer to the Area in the context of the migration of CO2, however, parties are required to act ‘without prejudice to international law including as reflected in the relevant provisions of [the LOSC]’,101 and this would include Part XI of the LOSC, which applies to the seabed beyond national jurisdiction. Moreover, parties must cooperate with other relevant States and ‘other relevant entities’,102 which would include the International Seabed Authority (ISA) where sequestered CO2 migrates from a geological formation under the jurisdiction of a State into the Area. As the new Article 6.2 comprises an amendment to the Protocol itself, the tacit amendment procedure does not apply and the amendment will enter into force on the 60th day after two thirds of the contracting parties have accepted it.103 Over a decade on from its adoption, there is little sign that will occur any time soon with only seven States having accepted the amendment as of July 2021.104 With the benefit of hindsight, the more pragmatic option of an interpretive resolution – which was discussed during the negotiations – confirming that Article 6 was not intended to apply to CCS activities should have been adopted in 2009 on the basis that such activities were not contemplated by the negotiators, and that in contrast to disposal of waste more generally, CO2 sequestration is designed for the environmental good (climate change mitigation).105 A decade on from the adoption of the amendment, a number of CCS projects that are likely to involve the transboundary export of CO2 were ‘reaching maturity’.106 For example, the Longship and Northern Lights project in Norway whereby CO2 from (initially) the Oslo-fjord region but later, from third States, will be transported to an offshore terminal in the North Sea off the coast of Norway for permanent sub-seabed storage. Phase one of the project is due to be completed in 2024 with a capacity to store up to 1.5 million tonnes of CO2 per year.107 Thus, in 2019, the Netherlands and Norway proposed to the Meeting of the Parties that the amendment to Article 6 be applied provisionally. They argued that the failure of the amendment to enter into force was preventing ‘cross-boundary collaboration between carbon capture and storage (CCS) projects and was a barrier to reducing costs through economies of scale and risk sharing alongside allowing countries without ready access to offshore storage sites to deploy

Ibid, para. 1.10. Ibid. See, Nigel Bankes, ‘The Use of Sub-Seabed Transboundary Geological Formations for the Disposal of Carbon Dioxide’ in Catherine Banet (ed), The Law of the Seabed: Access, Uses and Protection of Seabed Resources (Brill 2020) 397, especially 411-413. 101 IMO, LC 29/17, Specific Guidelines Revision (n 86) para. 1.10. 102 Ibid (emphasis added). 103 LP, Art. 21.3. 104 Estonia, Finland, Iran, the Netherlands, Norway, Sweden and the United Kingdom. 105 This position is also supported by Weber (n 89) 390-391. 106 IMO, Report of the Forty-First Consultative Meeting and the Fourteenth Meeting of Contracting Parties, LC 41/17, 17 October 2019, para. 6.9 (IMO, LC 41/17 Report). 107 See, Northern Lights, ‘About the Longship Project’ . 99

100

From ocean dumping to marine geoengineering  253 CCS’.108 The provisional application of a treaty (or, in this case, a treaty provision) is permitted under Article 25 of the 1969 Vienna Convention on the Law of Treaties109 if the treaty itself provides for provisional application or if the negotiating States have in some other manner agreed to it.110 As the 1996 Protocol does not provide for provisional application, the parties needed to agree a resolution authorising the provisional application of the 2009 amendment. In the event, there was overwhelming support for the Norway/Netherlands proposal111 and Resolution LP.5.14 (2019) on the Provisional Application of the 2009 Amendment to Article 6 of the London Protocol was adopted. Again, in an effort to frame CCS as a transitional technology, Resolution LP.5.14 emphasises that CO2 sequestration is not a substitute for emissions reductions and does not remove the obligation under the Protocol to reduce the need for such disposal as well as complementary commitments under the United Nations Framework Convention on Climate Change.112 While a pragmatic solution, the provisional application of the amendments to Article 6 creates the undesirable situation whereby two sets of conflicting rules relating to the export of CO2 for sub-seabed storage are simultaneously applicable under the Protocol. This, together with the uncertainty as to whether sub-seabed disposal of CO2 is permissible under the London Convention, and therefore whether the LOSC provisions relating to dumping under Article 210 apply to offshore CCS activities, creates a complex global regulatory regime for CCS. 3.1.3 Liability for environmental damage caused by sub-seabed sequestration of CO2 The final issue, which has yet to be addressed, is liability in the event of a leak of CO2 from a geological facility or from a vessel or platform directly injecting CO2 beneath the seabed or from an accident involving a vessel carrying CO2 to an offshore facility.113 This is not addressed in the Protocol, CO2 Guidelines or the 2013 guidance relating to the implementation of Article 6.2. This is unsurprising as the development of procedures relating to liability more generally under the London regime has made minimal progress in the 25 years since the adoption of the Protocol.114 However, the absence of longer-term liability rules for geological

IMO, LC 41/17 Report (n 106) para. 6.11. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 110 See, Heike Krieger, ‘Article 25: Provisional Application’ in Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd ed, Springer 2018) 441. 111 IMO, LC 41/17/Add.1 Report (n 36) Annex 8, para. 6.14. 112 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 113 In the latter case, pending entry into force of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention) (adopted in 1996, superseded by Protocol of 2010 to the HNS Convention (not yet in force)), the carriage of CO2 is currently covered by the Convention on Limitation of Liability for Maritime Claims (LLMC) (adopted 19 November 1976, entered into force 1 December 1986) (see also the Protocol of 1996 to the LLMC, adopted 2 May 1996, entered into force 13 May 2004). Discussion of potential liability issues associated with the carriage of CO2 goes beyond the scope of this chapter. See Weber (n 89). 114 See the discussion in Section 5, below. 108 109

254  Research handbook on international marine environmental law storage facilities,115 combined with other policy issues and public concern has meant that offshore CCS has struggled ‘to attract sufficient interest from industry and investors’.116 3.2

Ocean Fertilisation and Marine Geoengineering

Around the same time that the parties to the London Protocol were discussing sub-seabed sequestration of carbon dioxide, a second major issue associated with climate change and ocean acidification became a regular Meeting of the Parties agenda item: ocean fertilisation and marine geoengineering.117 Marine geoengineering comprises the deliberate manipulation of the ocean’s natural processes for purposes such as to counteract the impacts of climate change. Commonly proposed techniques include: ocean fertilisation, mineralisation, macroalgal cultivation, ocean pumping, enhancing ocean alkalinity, increasing ocean albedo and marine cloud brightening.118 The most advanced of these techniques in terms of research and, controversially, deployment is CDR through ocean fertilisation, which seeks to enhance the natural transfer of CO2 into the oceans by virtue of the biological pump through the deliberate fertilisation of unproductive parts of the ocean (such as the Southern Ocean and the Equatorial Pacific) with iron or other nutrients in order to create a phytoplankton bloom with the aim of drawing down CO2 into the deep ocean.119 There have been 13 artificial and six natural iron fertilisation experiments carried out since 1990, but there is little evidence thus far that ocean fertilisation has the potential to meaningfully mitigate climate change.120 Moreover, there are also potential risks to the local and wider marine environment, including the introduction of toxic algae, oxygen depletion and ocean acidification.121

Tim Dixon, Sean T McCoy and Ian Havercroft, ‘Legal and Regulatory Developments on CCS’ (2015) 40 International Journal of Greenhouse Gas Control 431, 446. 116 Langlet (n 93) 397. 117 See generally, David Freestone and Rosemary Rayfuse, ‘Ocean Iron Fertilization and International Law’ (2008) 364 Marine Ecology Progress Series 227; Rosemary Rayfuse, ‘Drowning Our Sorrows to Secure a Carbon Free Future? Some International Legal Considerations Relating to Sequestering Carbon by Fertilising the Oceans’ (2008) 31(3) UNSW Law Journal 919; Rosemary Rayfuse, Mark G Lawrence and Kristina M Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas Uses’ (2008) 23(2) International Journal of Marine and Coastal Law 297. 118 For an overview of these and other proposals, see, Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) Working Group 41, Philip Boyd and Chris Vivian (eds), High Level Review of a Wide Range of Proposed Marine Geoengineering Techniques (IMO, Micropress Printers, Rep. Stud. GESAMP No. 98, 2019) (GESAMP, ‘Geoengineering Review’). 119 Ocean fertilisation was first proposed by John Martin in 1990. See, John H Martin, ‘Glacial-interglacial CO2 Change: The Iron Hypothesis’ (1990) 5(1) Paleoceanography 1. The literature on ocean fertilisation is now extensive. For a recent and helpful overview, see, Joo-Eun Yoon and others, ‘Reviews and Synthesis: Ocean Iron Fertilization Experiments: Past, Present and Future Looking to a Future Korean Iron Fertilization Experiment in the Southern Ocean (KIFES) Project’ (2018) 15(19) Biogeosciences 5847. 120 Ibid. See also, Philip Williamson and others, ‘Ocean Fertilization for Geoengineering: A Review of Effectiveness, Environmental Impacts and Emerging Governance’ (2012) 90(6) Process Safety and Environmental Protection 475. 121 See Williamson (n 120) 480-488; Quirin Schiermeier, ‘The Oresmen’ (2003) 421 Nature 313; Aaron Strong and others, ‘Ocean Fertilization: Time To Move On’ (2009) 461 Nature 347, 348; Yoon and others (n 119) 5869-5871. 115

From ocean dumping to marine geoengineering  255 In response to a number of ocean fertilisation proposals, including a proposal by private corporation Planktos to fertilise a 10,000km2 area 300 NM west of the Galapagos Islands,122 the 2007 Meeting of the London Convention/Protocol endorsed a ‘Statement of Concern’ on large-scale fertilisation that had been adopted by the Scientific Group earlier that year, and agreed that the scope of work of the London Convention and Protocol included ocean fertilisation activities owing to their mandates to protect and preserve the marine environment from all sources of pollution.123 In 2008, the parties adopted Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, which again confirmed that the scope of the Convention and Protocol includes ocean fertilisation activities,124 and that ocean fertilisation for the purposes of legitimate scientific research ‘should be regarded as placement of matter for a purpose other than the mere disposal thereof under Article III.b(1)(ii) of the London Convention and Article 1.4.2.2 of the London Protocol’.125 Ocean fertilisation activities other than legitimate scientific research should be considered contrary to the aims of the Convention and Protocol and thus do not qualify for any exemption from the definition of dumping under either instrument.126 For the purposes of Resolution LC-LP.1 (2008), ocean fertilisation was defined as ‘any activity undertaken by humans with the principle [sic] intention of stimulating primary production in the oceans’.127 The definition does not cover conventional aquaculture, mariculture or the creation of artificial reefs.128 In 2008, the parties to the 1992 Convention on Biological Diversity (CBD)129 decided to reject ocean fertilisation activities until there is ‘an adequate scientific basis on which to justify such activities, including assessing associated risks, and a global, transparent and effective control and regulatory mechanisms is in place’.130 In response, the parties to the London Convention/Protocol adopted, in 2010, a risk assessment framework for evaluating ocean fertilisation scientific research.131 The assessment framework132 adopts a two-stage process requiring parties to first determine whether an activity falls within the definition of ocean fertilisation and has proper scientific attributes and is thus an eligible activity under the Convention/Protocol before carrying out an environmental assessment of the proposed activity.133 The assessment framework largely follows the format for guidelines for assessing waste and other matter for dumping, and requires parties to assess the disposal site, potential risks and impacts and to provide for appropriate risk management including monitoring, adaptive

IMO, LC 29/17, Specific Guidelines Revision (n 86) para. 4.18. Ibid, para. 4.23. 124 IMO, LC 30/16 Report (n 8) Annex 6: Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, para. 1. 125 Ibid, para. 3. 126 Ibid, para. 8. 127 Ibid, para. 2. 128 Ibid, para. 2, footnote 3. 129 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 130 CBD, ‘Decision IX/16: Biodiversity and Climate Change’, UN Doc UNEP/CBD/COP/DEC/ IX/16, 9 October 2008, s. C, para. 4. The moratorium does not apply to small scale scientific studies in coastal waters. 131 IMO, LC 32/15 Report (n 9) Annex 5: Resolution LC-LP.2 (2010) on the Assessment Framework for Scientific Research Involving Ocean Fertilization. 132 Ibid, Annex 6: Assessment Framework for Scientific Research Involving Ocean Fertilization. 133 Ibid, paras. 1.3.1 and 1.3.2. 122 123

256  Research handbook on international marine environmental law management, intervention and remediation. Consent must be sought from all countries with jurisdiction that may be affected and ‘if the risks and/or uncertainties are so high as to be deemed unacceptable, with respect to the protection of the marine environment, taking into account the precautionary approach, then a decision should be made to seek revision of or reject the proposal’.134 By virtue of these resolutions, the parties have thus taken a highly precautionary, albeit non-binding, approach to the management of ocean fertilisation for scientific purposes under the Convention/Protocol. Building on the 2008 and 2010 resolutions, the parties to the London Protocol, in 2013, adopted amendments to the Protocol that introduce mandatory regulation of ocean fertilisation and provide a mandate for the future regulation of marine geoengineering more generally.135 The amendments introduce Article 6bis entitled ‘Marine Geoengineering Activities’, which stipulates that: Contracting Parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other man-made structures at sea for marine geoengineering activities listed in annex 4, unless the listing provides that the activity or subcategory of an activity may be authorized under a permit.136

Marine geoengineering activities are defined in Article 1.5bis as: a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/ or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be wide-spread, long lasting or severe.137

It is notable that the definition of geoengineering under the Protocol thus is not confined to activities that are solely designed to mitigate climate change or activities that involve the placement of matter into the ocean, although Article 6bis is currently restricted to geoengineering involving the placement of matter into the sea. Permits may only be issued for activities in Annex 4 and must comply with a revised risk assessment framework as set out in Annex 5 to the Protocol.138 Article 6bis.3 confirms that Article 4 of the Protocol (which regulates the dumping of wastes and other matter) does not apply to activities listed in Annex 4.139 Currently, Annex 4 of the 1996 Protocol lists only ocean fertilisation for legitimate scientific

Ibid, para. 4.3. IMO, LC 35/15 Report (n 10) Annex 4: Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Marine Geoengineering Activities. For discussion of these amendments and their implications for the regulation of geoengineering, see, Karen N Scott, ‘Geoengineering and the Marine Environment’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 451, 458-461; Karen N Scott, ‘Not an Intractable Challenge: Geoengineering MSR in ABNJ’ in Myron Nordquist and Ronan Long (eds), Biodiversity Beyond National Jurisdiction: Intractable Challenges & Potential Solutions (Brill Nijhoff 2021) 189, 202-204. See also, Harald Ginzky and Robyn Frost, ‘Marine Geo-Engineering: Legally Binding Regulation under the London Protocol’ (2014) 8(2) Carbon and Climate Law Review 82. 136 LP, Art. 6bis.1 (not in force). 137 Amendment not in force. 138 Annex 5 is not yet in force. 139 LP, Art. 6bis.3 (not in force). 134 135

From ocean dumping to marine geoengineering  257 research as an activity that may be authorised by a permit in accordance with the risk assessment framework set out in Annex 5.140 The 2013 amendments are not currently in force, having been ratified, at time of writing, by only six parties.141 Given that there is no apparent strong opposition to these amendments by parties it appears that disinterest or a lack of priority is the primary reason for the low level of ratification. As a consequence of the failure of these amendments to enter into force almost a decade after their adoption, ocean fertilisation activities are at present subject to the non-binding provisions and risk assessment framework as set out in resolutions LC-LP.1 (2008) and LC-LP.2 (2010) as well as the Convention/Protocol more generally142 in addition to general international law.143 While there is evidence that States appear to be broadly complying with these resolutions,144 as of 2019, there have been no known approaches to have an ocean fertilisation study tested by the assessment framework.145 Nonetheless, the framework has been criticised for deterring legitimate scientific groups and creating ‘bureaucratic barriers to research experiments while failing to provide any incentives for an increase to the research desperately needed for accurate risk analysis’.146 There has been at least one unauthorised ocean fertilisation activity to date: the dumping of 100 tonnes of iron sulphate off the west coast of Canada by the Haida Salmon Restoration Corporation in 2012.147 Nevertheless, at least two ocean fertilisation experiments have been proposed recently in the scientific literature and it will be interesting to see if they are taken forward through the risk assessment process under the Protocol.148

Annex 4 is not yet in force. Estonia, Finland, Germany, the Netherlands, Norway and the United Kingdom. 142 For a discussion of how the Convention/Protocol might apply to ocean fertilisation without the benefit of the amendments, see, Karen N Scott, ‘Regulating Ocean Fertilization under International Law: The Risks’ (2013) 7(2) Carbon and Climate Law Review 108, 111-114. 143 See generally, Karen N Scott, ‘International Law in the Anthropocene: Responding to the Geoengineering Challenge’ (2013) 34(2) Michigan Journal of International Law 309. 144 Canada, for example, confirmed in 2018 that it was treating a fish enhancement project as ocean fertilisation and subject to the two resolutions. See, IMO, Report of the Fortieth Consultative Meeting and the Thirteeth Meeting of Contracting Parties, LC 40/16, 29 November 2018, para. 5.14 (IMO, LC 40/16 Report)). Germany considered the 2009 LOHAFEX experiment coordinated by German and Indian scientists in the context of both the CBD and the LC/LP resolutions adopted in 2008, while acknowledging that there was confusion between the standards set out by these resolutions and it was unclear whether the six tonnes of dissolved iron sulfate constituted ‘small scale’. See, Michael C Branson, ‘A Green Herring: How Current Ocean Fertilization Regulation Distracts from Geoengineering Research’ (2014) 54(1) Santa Clara Law Review 163, 177-178. 145 GESAMP, ‘Geoengineering Review’ (n 118) 82. 146 Branson (n 144) 186. 147 Although subject to international condemnation and an investigation by the Canadian authorities, Canada reported, in 2019, that no prosecution would take place as there was no reasonable prospect of conviction based on the evidence available. See, IMO, LC 41/17 Report (n 106) para. 5.19. See also, Branson (n 144) 182-186. Chile reported in 2018 on an ocean fertilisation project off its coast apparently driven by Oceanos Environmental Solutions. See IMO, LC 40/16 Report (n 144) para. 5.6.3. However, by 2019, no application for authorisation had been received and there was no evidence that any activity had been undertaken. See IMO, LC 41/17 Report (n 106) para. 5.17. 148 See, Yoon and others (n 119); David Emerson, ‘Biogenic Iron Dust: A Novel Approach to Ocean Iron Fertilization as a Means of Large Scale Removal of Carbon Dioxide from the Atmosphere’ (2019) 6 Frontiers in Marine Science 1. 140 141

258  Research handbook on international marine environmental law The broader significance of the 2013 amendment lies not only in formally expanding the mandate of the London Protocol to address ocean fertilisation CDR activities, but also in establishing a basis to address marine geoengineering more generally. The parties adopted guidance in 2014 on the process for considering other marine geoengineering activities that should be considered for regulation under the Protocol.149 An Intersessional Correspondence Group on Marine Geoengineering has been established to make recommendations on the inclusion of other geoengineering activities in Annex 4,150 and in 2021, reported that they were examining six geoengineering techniques: fertilisation for fish stock enhancement; macroalgae cultivation for sequestration including artificial upwelling; reflective particles/ materials placed on the surface of the ocean; adding alkaline material directly to the ocean; coastal spreading of olivine; and mineralisation in rocks under the seabed.151 In addition, Australia offered to provide information on marine cloud brightening to the Group in 2022.152 While some of these techniques involve the deliberate placement of matter in the marine environment, it is clear that others, such as marine cloud brightening, do not. Given that there is no other alternative global regime with an appropriate remit to regulate or otherwise manage marine geoengineering activities, it is not unreasonable for the London Protocol to expand its mandate to do so. Nevertheless, the reluctance of parties to adopt the 2013 geoengineering amendments may demonstrate some concern over this direction. Moreover, as discussed above in the context of CO2 sub-seabed sequestration, but which is arguably much clearer in the context of geoengineering, the regulatory regime (once it enters into force) would be unlikely to constitute a global rule or standard for the purposes of Article 210 of the LOSC, which is confined to the regulation of ‘dumping’ as defined by the Convention.

4.

BEYOND DUMPING: DEVELOPING A MANDATE TO ADDRESS MARINE POLLUTION GENERALLY?

The expansion of the London Protocol’s mandate to embrace ocean fertilisation and, more generally, geoengineering, is only one example of an attempt to broaden the agenda of the London regime beyond dumping and analogous activities. The parties have, for example, also taken an interest in marine litter and microplastics and adopted, in 2016, a recommendation to encourage action to combat marine litter.153 The Scientific Group established a Correspondence Group on the topic, which has been

IMO, Report of the Thirty-Sixth Consultative Meeting and the Ninth Meeting of Contracting Parties, LC 36/16, 10 November 2014, Annex 5: Guidance for Consideration of Marine Geoengineering Activities. 150 The Group was re-established at the 2021 meeting. See IMO, Report of the Forty-Third Consultative Meeting and the Sixteenth Meeting of Contracting Parties, LC 43/17, 11 November 2021, para. 3.14 (IMO, LC 43/17 Report). 151 Ibid, para. 5.10. 152 Ibid, para. 5.14. 153 IMO, LC 38/16 Report (n 29) paras 9.23-9.31, Annex 8. It should be noted that on 2 March 2022, the United Nations Environment Assembly adopted a resolution initiating negotations on an international legally binding instrument to end plastic pollution. See, United Nations Environment Program (UNEP), Draft Resolution: End Plastic Pollution: Towards and Internationally Binding Instrument, UN Doc UNEP/EA.5/L.23/Rev.1, 2 March 2022. 149

From ocean dumping to marine geoengineering  259 re-established on an annual basis (most recently, under the leadership of Germany and Nigeria in 2021)154 and, in 2019, the Meeting established a Working Group on Marine Litter and Microplastics led by Germany and Vanuatu tasked with developing a communications strategy on the importance of upstream controls on all sources of litter and microplastics.155 The Correspondence Group has agreed to examine issues including the scrapping of leisure boats, microplastics from anti-fouling paint and hull coatings and plastics in dredging materials and sewage sludge with the aim of making recommendations associated with source control and waste management.156 While plastics are also a dumping concern in that waste permitted for dumping (such as dredged material and sewage waste) may contain plastics, it is clear the parties are also interested in sources that are not connected with dumping such as microplastics from anti-fouling paint. Another regular agenda item is the Fukushima Daiichi nuclear power plant in Japan that was damaged in the 2011 earthquake and tsunami,157 particularly in light of Japan’s controversial decision, in 2021, to discharge contaminated waste water from the plant into the sea.158 Notwithstanding that this is indubitably a land-based source of pollution entirely unconnected with dumping, the discussion within the regime has proceeded presumably on the basis of the general obligation to protect the marine environment under Article 2 of the Protocol.159 Japan, the United States and France have, however, objected to its inclusion on the agenda on the basis that the London Convention/Protocol is not the appropriate forum to discuss land-based pollution.160 Nevertheless, the Secretariat was asked to provide legal advice on the scope of the LC/LP with a particular focus on discharges from land-based facilities to the 2022 Meeting.161 Other topics that have been considered to variable degrees include underwater noise162 and the disposal of wastes from mining activities and cooperation with the ISA.163 While the former does not involve the disposal or placement of waste or matter in the marine environment, the latter is excluded from the definition of dumping by Articles III(1)(c) and 1.4.3 of the LC/LP respectively. A third issue that has been the subject of recent discussion is materials jettisoned during the launch of space vehicles. With respect to the latter, the Meeting, in 2018, IMO, Report of the Forty-Fourth Meeting of the Scientific Group of the London Convention and the Fifteenth Meeting of the Scientific Group of the London Protocol, LC/SG 44/16, 29 April 2021, paras 8.14.2.1-8.14.2.3. See, IMO, Progress report from the Correspondence Group on Marine Litter and Microplastics, LC 43/9, 20 August 2021 (IMO, LC 43/9 Report). 155 IMO, LC 41/17 Report (n 106) para. 9.1. A meeting of the Working Group determined that there was no need for a separate communication strategy beyond the planned LC/LP brochure on marine litter and microplastics. 156 See, IMO, LC 43/9 Report (n 154); ibid. 157 See, eg, the extensive discussion of the issue in 2019. IMO, LC 41/17 Report (n 106) paras 11.2-11.11. 158 See, Bianca Nogrady, ‘Scientists OK plan to release 1 million tonnes of waste water from Fukushima’ (Nature News, 7 May 2021) . 159 See also, LC, Art. I. 160 IMO, LC 43/17 Report (n 150) paras 11.1-11.5. 161 Ibid, para. 11.5.5. Japan objected to the decision as, surprisingly, did Korea although the basis of the latter’s objection was that the advice should focus specifically on the Fukushima power plant rather than land-based facilities more generally. 162 See, eg, LC 43/17 Report (n 150) paras 10.25-10.27. 163 See, IMO, LC 41/17 Report (n 106) paras 10.15-10.18, where it was agreed to hold the Correspondence Group on Mine Tailings in abeyance until the GESAMP report on the impact of mine waste had been published. 154

260  Research handbook on international marine environmental law endorsed the decision of the Scientific Groups to establish an Intersessional Correspondence Group on the topic164 and to initiate a dialogue with the Chair of the UN Committee on the Peaceful Uses of Space. The work continues and currently focuses on collecting information from and continuing outreach with the United Nations Office for Outer Space Affairs.165 While it might be an interesting question whether a space vehicle can be considered an ‘aircraft’ for the purposes of the regime, the jettisoning of material is presumably incidental to its ‘normal operation’ and thus likely excluded from the definition of dumping under Article III(1)(b)(i) of the Convention and Article 1.4.2 of the Protocol. While these issues continue to be debated and studied, there is no serious proposal – in contrast to marine geoengineering – that any be formally regulated by the London Convention/ Protocol. Nonetheless, there is no doubt that the broad mandate to protect the marine environment from all sources of pollution has and is providing a platform to extend the soft if not the hard reach of the regime. While this is positive, particularly where the topic falls into a legal lacuna (such as material jettisoned from space launches) or where it is inadequately regulated at the global level (as is the case for land-based pollution), there are also potential risks in this approach. Specifically, it has the potential to cause division between the parties to the Convention/Protocol and possibly undermine its work in other areas where there would otherwise be consensus. It is notable that in respect of sub-seabed sequestration of CO2 and ocean fertilisation, issues on which there is apparent broad agreement, there is currently little demonstrable support for the respective amendments to the Protocol a decade on from their adoption. This reluctance on the part of States to formally expand the remit of the Protocol should give the parties pause for thought before attempting to broaden its mandate further.

5.

COMPLIANCE AND LIABILITY

As noted above, a major innovation of the 1996 Protocol was the provision for a compliance procedure (Article 11), complementing a new obligation to develop procedures regarding liability arising from dumping or incineration at sea of waste or other matter (Article 15). Compliance procedures and, to a lesser extent, liability are now standard features within many modern multilateral environmental agreements.166 However, neither the compliance procedure nor negotiations on liability under the Protocol can be described as particularly successful features of the dumping regime to date. A Compliance Group was established under the Protocol in 2006, comprising 15 members.167 Detailed procedures were adopted in 2007,168 revised in 2017,169 and permit the IMO, LC 40/16 Report (n 144) paras 9.65-9.68. IMO, LC 43/17 Report (n 150) para. 14.16.6. 166 See, James Harrison, ‘Compliance Mechanisms under Treaties Relating to Protection of the Marine Environment’, Chapter 5 in this volume. 167 IMO, LC 28/15 Report (n 82) Annex 7: Amendments to the Base Text for Compliance Procedures and Mechanisms, Pursuant to Article 11 of the London Protocol. 168 IMO, Report of the Twenty-Ninth Consultative Meeting and the Second Meeting of Contracting Parties, LC 29/17, 14 December 2007, Annex 7: Compliance Procedures and Mechanisms Pursuant to Article 11 of the 1996 Protocol to the London Convention 1972. 169 IMO, Report of the Thirty-Ninth Consultative Meeting and the Twelfth Meeting of Contracting Parties, LC 39/16/Add.1, 16 November 2017, Annex 5: Revised 2017 Compliance Procedures and Mechanisms. 164 165

From ocean dumping to marine geoengineering  261 Meeting of Contracting Parties, the party in non-compliance or any other party that has an interest affected or likely to be affected to refer a matter of non-compliance to the Group.170 The responses available to the Group are primarily facilitative in that it can provide advice, make recommendations, facilitate cooperation and assistance in addition to issuing a formal statement of concern regarding a party’s compliance with the situation.171 It is nevertheless the Meeting of the Parties that retains the overall responsibility for compliance matters.172 In addition to dealing with specific incidences of non-compliance, the Compliance Group is also charged with monitoring compliance with the reporting requirements relating to the issue of permits, the amount of waste and other matter dumped and the adoption of relevant domestic legislation and administrative processes and procedures under Articles 9 and 10 of the Protocol.173 Reporting, however, notwithstanding the compliance process, is particularly poor under the Protocol and has significantly deteriorated since the mid-2000s. In 2021, only 21 of the 100 parties to the Convention and Protocol reported on the permits they issued to authorise dumping in the previous year.174 By contrast, in 2003, 51 of the then 82 parties provided reports.175 Fifty-four contracting parties did not provide any report over a five-year period between 2015 and 2019176 and developing countries are notable in their general failure to report.177 A number of factors have been cited for the low compliance rate, including: perceptions of difficulty; capacity issues; misunderstanding of where reporting is required; and confusion about what data is provided to the Secretariat from regional seas agreements;178 as well as technical challenges and, in particular, the slow development of a function allowing States to enter ‘nil’ in response to the number of permits issued.179 The parties are seeking to address low compliance through the Barriers to Compliance Project180 and the Convention/Protocol Strategic Plan, which was adopted in 2016 and is essentially focused on increasing ratifications of the Protocol and reporting under it.181 The Strategic Plan aims to have 75 percent of all

Ibid, para. 4.1. Ibid, para. 5.1. 172 Ibid, para. 1.1.4. 173 Ibid, paras 6.1-6.6. It is worth noting that the compliance procedures relate only to legal obligations under the Protocol and not to the non-binding regime that has been established to manage ocean fertilisation. Thus, while Canada provided regular reports on the unauthorised ocean fertilisation experiment in its waters in 2012, and considered action at the domestic level, the compliance procedures were not engaged. 174 IMO, Compliance Issues: Status of compliance with the notification and reporting requirements under article VI(4) of the London Convention 1972 and article 9.4 of the London Protocol, LC 43/INF.3, 16 August 2021 (IMO, LC 43/INF.3, Compliance Issues). 175 Ibid. 176 IMO, Compliance Issues: Status of compliance with the notification and reporting requirements under article VI(4) of the London Convention 1972 and article 9.4 of the London Protocol, LC 43/7/2, 16 August 2021. 177 IMO, LC 43/INF.3, Compliance Issues (n 174). 178 IMO, LC 41/17/Add.1 Report (n 36) Annex 3: Report of the Twelfth Meeting of the Compliance Group under the London Protocol, para. 5.5. 179 IMO, LC 43/17/Add.1 Report (n 46) Annex 3: Report of the Thirteenth Meeting of the Compliance Group under the London Protocol, para. 6.3. 180 The latest update on the project was, ibid, para. 7. 181 See, IMO, LC 38/16 Report (n 29) para. 3.15, Annex 2: Strategic Plan for the London Protocol and London Convention. 170 171

262  Research handbook on international marine environmental law parties report as required under the Convention/ Protocol by 2022 and 100 percent by 2030.182 This is ambitious given that the current rate of reporting is under 25 percent, although rates may have been negatively affected by COVID-19 over the last two years. However, the challenges relating to compliance are not limited to the issue of annual reports. Although there should be 15 geographically representative members of the Compliance Group, this has not always been the case and, in 2021, there were only 11 members.183 This indicates a certain malaise when it comes to compliance under the Protocol, and while there have been no apparent incidences of non-compliance with the substantive dumping rules under the Protocol in the last few years, this is difficult to independently assess owing to the very low rates of reporting on permits issued and waste and other materials dumped pursuant to the Protocol. The question of liability for dumping has been a long-standing issue that is no closer to resolution, notwithstanding the reproduction (in essentials) of Article X of the London Convention as Article 15 in the London Protocol, which requires the parties to develop liability procedures regarding dumping. A helpful and historical overview of the issue was published in 2019.184 In summary, there has been and remains disagreement on whether Article X/15 requires the creation of a separate binding liability regime185 or a more informal set of procedures.186 Other, equally challenging issues have been discussed over the years. For example, diverging views exist on: the role of civil liability schemes versus State liability; how damage from dumping might be assessed; and the availability of insurance and limitation of liability.187 Parties remain divided over the need to specify rules around liability and whether the absence of those rules constitutes a barrier to accession to the dumping regime.188 In 2019, the United States argued that the existing principles of State responsibility are sufficient to provide the necessary framework while other delegations noted the complexity of the issue.189 In any event, negotiations on this issue will continue.190 Finally, as noted above, the absence of clear rules relating to liability is proving particularly problematic for both States and private operators in the context of sub-seabed sequestration of CO2. Similar issues may also arise should geoengineering activities expand beyond the limits of scientific research.

Ibid. IMO, LC 43/17 Report (n 150) para. 7.18. The Strategic Plan has as a target that 15 members representing all five UN regions be appointed by 2022. See, ibid. 184 IMO, LC 41/17 Report (n 106) paras 15.1-15.8. 185 Such as the Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal Basel (adopted 10 December 1999) UN Doc UNEP/CHW.1/WG/1/9/2. 186 IMO, LC 41/17 Report (n 106) paras 15.1 and 15.3. 187 Ibid, para. 15.4. 188 Ibid, para. 15.1. 189 Ibid, paras 15.7.1 and 15.7.4. 190 Ibid, para. 15.8.2. 182 183

From ocean dumping to marine geoengineering  263

6.

CONCLUDING REMARKS

The founders of the London regime had the foresight, in 1972, to set the parameters of the Convention broadly: calling on parties to ‘individually and collectively promote the effective control of all sources of pollution of the marine environment’.191 While the regime has been undoubtedly successful in addressing and reducing ocean dumping over the last 50 years, it has also, through formal and informal means, extended its reach into sources of pollution not considered by the original negotiators. The regime has been particularly active in relation to climate change and ocean-based CDR activities. Operating across and between climate law and the law of the sea, ocean-based CDR now appears to be an emerging modern focus of the LP and potentially sets a precedent for the expansion of the regime’s mandate into other sources of pollution not otherwise addressed under binding international law. Moreover, the LP’s role as mediator of the ocean-climate nexus is likely to increase in both importance and extent in the future. The IPCC Sixth Assessment Report on Mitigation of Climate Change, released in April 2022, concluded, for the first time, that ‘the deployment of CDR to counterbalance hard-to-abate residual emissions is unavoidable if net zero CO2 or GHG emissions are to be achieved’.192 It nevertheless warned that upscaling CDR depends on improved tools for governance with a particular emphasis on risk assessment, management, reporting and verification.193 The LP has an important role to play in this process in the context of ocean-based CDR activities such as CO2 sequestration, ocean fertilisation and potentially other activities that can be classed as geoengineering for the purposes of the Protocol. Nevertheless, there is little room for complacency. As discussed above, a number of amendments to the Protocol that provide the foundation for CO2 and ocean fertilisation governance have yet to enter into force nothwithstanding their adoption more than a decade ago. The regime has failed to develop rules relating to liability for environmental damage caused by activities under the LC/LP and compliance with, particularly, the reporting requirements under both instruments appears to be in decline. Moreover, the LP is relatively poorly ratified in comparison with other IMO conventions and this ultimately may compromise its success in terms of reach, ambition and effective governance. Fundamentally however, the London regime has strong institutions, processes and an impressive track record in steadily reducing pollution by dumping. Its greatest success lies in its pivoting from a permissive to a precautionary marine pollution regime while maintaining and growing international support. Whether the London regime proves able to pivot again, into successful ocean-based CDR and marine geoengineering governance, on the basis of that original mandate set out in Articles I/2 of the LC/LP, remains to be seen.

LC, Art I. IPCC, Climate Change 2022: Mitigation of Climate Change (Working Group III contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, Summary for Policy Makers) para. C.11 . 193 Ibid, para. C.11.5. 191 192

12. Ocean acidification Ellycia Harrould-Kolieb and Tim Stephens

1. INTRODUCTION ‘Ocean acidification’ refers to changes in the chemistry of the ocean as it absorbs carbon dioxide (CO2) from the atmosphere. The carbonation of the ocean through the absorption of around a third of all CO2 released by humanity into the atmosphere1 has resulted in the rapid decline of its pH (ie an increase in acidity).2 This has wide ranging effects on marine ecosystems and fisheries, and carries major implications for the societies and economies dependent upon them.3 The threat of ocean acidification has been acknowledged at the highest levels of policy making, with ocean acidification the focus of Target 14.3 of the Sustainable Development Goals (SDGs), which seeks to ‘[m]inimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels’.4 However, ocean acidification is neither defined nor referred to in any binding international legal instrument. Accordingly, it is not possible to turn to one treaty, such as the United Nations Convention on the Law of the Sea (LOSC),5 for a solution. Rather, ocean acidification is addressed (to varying degrees) under an array of environmental regimes, including for example, the ocean dumping regime and regimes relevant to the protection of marine biodiversity.6 Moreover, ocean acidification intersects with several environmental and social issues already addressed by international treaties, including climate change, biodiversity conservation, marine environmental protection, sustainable development and economic prosperity. Ocean acidification is therefore an issue that is simultaneously of relevance to, yet falls between, the mandates of a number of international environmental regimes, and has therefore been described as sitting ‘at a rather cracked interface between the climate, biodiversity and oceans regimes’.7 One of the challenges of responding to ocean acidification is therefore that it has emerged in an era of environmental

David Archer, The Global Carbon Cycle (Princeton University Press 2010) 116. Ken Caldeira and Michael E Wickett, ‘Oceanography: Anthropogenic Carbon and Ocean pH’ (2003) 425 Nature 365; Jean-Pierre Gattuso and Lina Hansson, ‘Ocean Acidification: Background and History’ in Jean-Pierre Gattuso and Lina Hansson (eds), Ocean Acidification (OUP 2011) 1. 3 Scott C Doney and others, ‘The Impacts of Ocean Acidification on Marine Ecosystems and Reliant Human Communities’ (2020) 45 Annual Review of Environment and Resources 83. 4 UNGA, Transforming Our World: the 2030 Agenda for Sustainable Development, UN Doc A/ RES/70/1, 25 September 2015. 5 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 6 See Rachel Baird and others, ‘Ocean Acidification: A Litmus Test for International Law’ (2009) 4 Carbon and Climate Law Review 459. 7 Rakhyun E Kim, ‘Is A New Multilateral Environmental Agreement on Ocean Acidification Necessary?’ (2012) 21 Review of European Community and International Environmental Law 258. 1 2

264

Ocean acidification  265 regime complexity and proliferation, rendering it difficult to be controlled by any existing standalone treaty.8 This chapter examines how ocean acidification is addressed in international law, and what the future may hold for the regulation of one of the most pressing threats to the marine environment. The chapter opens with an overview of the causes and consequences of ocean acidification and then outlines the types of measures that are required to address the problem. This is followed by a summary of the responses by international regimes to date. The subsequent section introduces a governing framework that has been proposed as a guide for establishing coherent action on ocean acidification and compares it against existing activities initiated by this emergent ocean acidification ‘regime complex’ to see where the strengths of this regime complex lie, to highlight the gaps in governance, and to determine where additional efforts are needed.9 Possible avenues for strengthening the regime complex and filling these governance gaps are also explored.

2.

OCEAN ACIDIFICATION: CAUSES AND CONSEQUENCES

Ocean acidification is a relatively straightforward chemical process. When CO2 dissolves in water, it reacts with H2O to form carbonic acid (H2CO3), which dissociates to form hydrogen carbonate ions (HCO3-, also called ‘bicarbonate’) and hydrogen ions (H+). Hydrogen ions combine with carbonate ions (CO32-) in the water to form further bicarbonate ions. This means that there is less carbonate available for calcifying organisms, including corals and shellfish, to build their calcium carbonate structures, such as shells and skeletons. In addition, as the acidity of the ocean water increases, not only does it become too difficult for calcifiers to continue to build their shells and skeletons, but existing structures begin to erode as well. While over long time-scales of thousands to tens of thousands of years ocean acidification will gradually decline through natural buffers, ongoing acidification is occurring at a rate far faster than natural buffering processes. Importantly, ocean acidification is happening at a scale, both in terms of magnitude and rate, that cannot be adapted to by most marine species. Recognising the special importance of the ocean in the climate system and the carbon cycle, the Intergovernmental Panel on Climate Change (IPCC) produced a ‘Special Report on the Ocean and Cryosphere in a Changing Climate’ (SROCCC).10 The SROCCC provides an updated assessment of climate science as it relates to the ocean and ice-covered areas and is the first IPCC report to address ocean acidification in significant detail.11

8 On regime complexity in international environmental law generally, see, Margaret A Young, Trading Fish, Saving Fish: The Interaction Between Regimes in International Law (CUP 2011). See also, Daniel Drezner, ‘The Power and Peril of International Regime Complexity’ (2009) 7 Perspectives on Politics 65. 9 The term ‘regime complex’ describes the phenomenon whereby a field or problem is addressed by multiple treaties or other types of regulatory regimes: Kal Raustiala and David G Victor, ‘The Regime Complex for Plant Genetic Resources’ (2004) 58 International Organization 277. 10 Hans-Otto Pörtner and others (eds), IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (2019) . 11 There appears to have been only one comprehensive regional assessment of ocean acidification, namely that undertaken by the Arctic Monitoring and Assessment Program in relation to the Arctic Ocean. See, AMAP, AMAP Assessment 2013: Arctic Ocean Acidification (AMAP, Oslo, Norway, 2013)

266  Research handbook on international marine environmental law In relation to carbon chemistry, the SROCCC notes that it is very likely that the oceans have taken up between 20 and 30 percent of CO2 emissions since the 1980s.12 The surface of the ocean has undergone increasing acidification,13 declining in pH by between 0.017 and 0.027 pH units per decade since the late 1980s.14 This is very likely to have placed the pH of 95 percent of the surface ocean outside the range of background natural variability.15 Continued carbon uptake is virtually certain to result in the decrease of open ocean surface pH by around 0.3 pH units by 2081–2100 relative to 2006–2015 if concentrations of greenhouse gases in the atmosphere continue to increase at current rates.16 This is equal to a 150 percent increase in acidity compared to pre-industrial levels. Areas of the ocean, including the polar and sub-polar oceans, are likely to shift to being undersaturated with respect to aragonite (the form of carbonate used by many calcifiers to build their shells and skeletons) before the end of this century.17 This means that the level of carbonate ions will be too low for unprotected calcium carbonate structures to remain stable and they will thus be in a state of dissolution. The changing chemical conditions resulting from ocean acidification are likely to have a direct impact on marine organisms in a variety of ways: including, making calcium carbonate precipitation more difficult due to the decreasing availability of carbonate ions, the dissolution of calcium carbonate structures due to the increasing areal extent of undersaturation, and the disruption of acid-base relationships.18 As a result, ocean acidification is likely to interrupt important physiological processes, such as calcification, gene expression, reproduction, growth, development, metabolism, acid-base regulation and even behaviour in some species.19 Impacts at the molecular, cellular and organismal levels may be expressed as disturbances at

; and AMAP, AMAP Assessment 2018: Arctic Ocean Acidification (AMAP, Tromsø, Norway, 2018) . 12 Ibid, 9. 13 Ibid, 8. 14 Ibid, 9. 15 Ibid, 9. 16 Ibid, 21. 17 Ibid, 21. 18 Scott C Doney and others, ‘Ocean Acidificatio: The Other CO2 Problem’ (2009) 1 Annual Review of Marine Science 169. 19 Ruth Bibby and others, ‘Ocean Acidification Disrupts Induced Defences in the Intertidal Gastropod Littorina littorea’ (2007) 3 Biology Letters 699; Qiaoxiang Dong and others, ‘Standardization of Photometric Measurement of Sperm Concentration from Diploid and Tetraploid Pacific Oysters, Crassostrea gigas (Thunberg)’ (2005) 36 Aquaculture Research 86; Tyler G Evans and Gretchen E Hofmann, ‘Defining the Limits of Physiological Plasticity: How Gene Expression Can Assess and Predict the Consequences of Ocean Change’ (2012) 367 Philosophical Transactions of the Royal Society B 1733; John M Guinotte and Victoria J Fabry, ‘Ocean Acidification and its Potential Effects on Marine Ecosystems’ (2008) 1134(1) Annals of the New York Academy of Sciences 320; Jon N Havenhand and others, ‘Near-Future Levels of Ocean Acifidication Reduce Fertilization Success in Sea Urchin’ (2008) 18 Current Biology R652; Kristy J Kroeker and others, ‘Impacts of Ocean Acification on Marine Organisms: Quantifying Sensitivities and Interaction with Warming’ (2013) 19 Global Change Biology 1884; Haruko Kurihara and others, ‘Effects of Raised CO2 Concentrations on the Egg Production Rate and Early Development of Two Marine Copepods’ (2004) 49 Marine Pollution Bulletin 721; Hans-Otto Pörtner, ‘Ecosystem Effects of Ocean Acidification in Times of Ocean Warming: A Physiologist’s View’ (2008) 373 Marine Ecology Progress Series 203.

Ocean acidification  267 the population and ecosystem levels as well as disruptions to biogeochemical processes that contribute to Earth-system cycles.20 Ocean acidification can also have indirect impacts, including through changes to predator– prey relationships,21 the propagation of sound,22 and the availability of, and sensitivity to, nutrients and toxins.23 These changes to marine ecosystems will have flow-on effects for socio-ecological systems, including economic losses due to declines in fisheries and tourism, decreased coastal protection, and impacts to human health due to reduced access to protein, changes in the nutritional content of seaweeds and other marine species and increased rates of bioaccumulation of pollutants in seafood.24 The impacts of ocean acidification are further compounded by other changing conditions resulting from climate change, including deoxygenation and warming ocean temperatures. The open ocean (to a depth of 1000 m) has very likely lost oxygen by between 0.5 and 3.3 percent.25 These physical changes have had multiple ecosystem impacts. Since the 1950s, many marine species have shifted their geographical range and seasonal behaviours in response to warming oceans, declining sea ice, and biogeochemical changes.26 This has changed species composition, abundance and biomass production,27 and contributed to an overall decrease in maximum catch potential.28

Doney and others, ‘Ocean Acidification: The Other CO2 Problem’ (n 18); Marion Gehlen, ‘Biogeochemical Consequence of Ocean Acidification and Feedbacks to the Earth System’ in Jean-Pierre Gattuso and Lina Hansson (eds), Ocean Acidification (OUP 2009) 230-248; Will JF Le Quesne and John K Pinnegar, ‘The Potential Impact of Ocean Acidification: Scaling from Physiology to Fisheries’ (2011) 13 Fish and Fisheries 333. 21 Maud CO Ferrari and others, ‘Putting Prey and Predator into the CO2 Equation – Qualitative and Quantitative Effects of Ocean Acidification on Predator-Prey Interactions’ (2011) 14 Ecology Letters 1143. 22 Keith C Hester and others, ‘Unanticipated Consequences of Ocean Acidification: A Noiser Ocean at Lower pH’ (2008) 35 Geophysical Research Letters L19601. 23 Tasneem Abbasi and SA Abbasi, ‘Ocean Acidification: The Newest Threat to the Global Environment’ (2011) 41 Critical Reviews in Environmental Science and Technology 1601; Frank J. Millero and others, ‘Effect of Ocean Acidification on the Speciation of Metals in Seawater’ (2009) 22 Oceanography 72. 24 Sarah R Cooley and others, ‘Nutrition and Income from Today Imply Vulnerability to Ocean Acidification Tomorrow’ (2011) 13 Fish and Fisheries 182; Wenhao Su and others, ‘The Health Risk for Seafood Consumers Under Future Ocean Acidification Scenarios’ (2019) 650 Science of the Total Environment 2987; Carol Turley and Kelvin Boot, UNEP Emerging Issues: Environmental Consequences of Ocean Acidification: A Threat to Food Security (United Nations Environment Programme 2010); Dong Xu and others, ‘Ocean Acidification Increases Iodine Accumulation in Kelp-Based Coastal Food Webs’ (2019) 25 Global Change Biology 629; Trevor A Branch and others, ‘Impacts of Ocean Acidification on Marine Seafood’ (2013) 28 Trends in Ecology and Evolution 178; Luke M Brander and others, ‘The Economic Impact of Ocean Acidification on Coral Reefs’ (2012) 3 Climate Change Economics 1250002; Sarah R Cooley and Scott C Doney, ‘Anticipating Ocean Acidification’s Economic Consequences for Commercial Fisheries’ (2009) 4 Environmental Research Letters 024007; Jason M Hall-Spencer and Ben P Harvey, ‘Ocean Acidification Impacts on Coastal Ecosystem Services Due to Habitat Degradation’ (2019) 3 Emerging Topics in Life Sciences 197. 25 Hans-Otto Pörtner and others (n 10) 10. 26 Ibid, 12. 27 Ibid. 28 Ibid, 13. 20

268  Research handbook on international marine environmental law The SROCCC projects that the ocean will transition to ‘unprecedented conditions with increased temperatures (virtually certain), greater upper ocean stratification (very likely), further acidification (virtually certain), oxygen decline (medium confidence), and altered net primary production (low confidence)’.29 A decrease in global biomass of marine animals, fisheries catch potential, and shift in species composition are projected to occur across all ocean ecosystems, with the rate of change highest in the tropics. Ocean acidification, oxygen loss, reduced sea ice extent and non-climatic human activities have the potential to worsen these impacts.30

3.

RESPONDING TO OCEAN ACIDIFICATION

As noted at the outset, ocean acidification is currently not expressly addressed in international law. Policy responses to ocean acidification may involve three kinds of measures. First, there are those that aim to prevent further perturbation of the biophysical carbon cycle by reducing CO2 emissions (mitigation). Second, there are policies that assist both human and ecological systems adjust to or withstand change (adaptation). Third, there are measures that restore systems that have been damaged or compensate for their losses (redress). However, as the atmospheric concentration of CO2 increases, the availability of options for adapting to, and repairing the damage caused by, ocean acidification decreases and these options become less effective and more costly.31 This is compounded by the fact that several of the geoengineering techniques offered as solutions to climate change either do not address ocean acidification, or risk exacerbating it.32 Moreover, while anthropogenic ocean acidification is occurring more rapidly than at any period over the last 300 million years,33 it is a slow-onset process.34 This means that once impacts are evident, we are likely to have already passed the point of no return. It is for these reasons that ocean acidification is a clear instance where the preventive and precautionary principles should be applied, and where the only prudent policy response to prevent the most dangerous impacts of ocean acidification is to reduce and ultimately eliminate greenhouse gas emissions from human activities. A holistic policy response requires not only a reduction to net zero emissions, but also efforts to adapt to and redress those changes and damages which Ibid, 21. Ibid, 25. 31 Jean-Pierre Gattuso and others, ‘Contrasting Futures for Ocean and Society from Different Anthropogenic CO2 Emissions Scenarios’ (2015) 349 Science 45. 32 Kate Dooley and others, ‘Carbon-Dioxide Removal and Biodiversity: A Threat Identification Framework’ (2020) 12 (Supplement 1) Global Policy 34; Holly Jean Buck, ‘“Climate Engineering Doesn’t Stop Ocean Acidification”: Addressing Harms to Ocean Life in Geoengineering Imaginaries’ in Irus Braverman and Elizabeth R Johnson (eds), Blue Legalities: The Life and Laws of the Sea (Duke University Press 2020); Sabine Mathesius and others, ‘Long-Term Response of Oceans to CO2 Removal from the Atmosphere’ (2015) 5 Nature Climate Change 1107. See also, Karen N Scott, ‘From Ocean Dumping to Marine Geoengineering: The Evolution of the London Regime’, Chapter 11, s 3 in this volume. 33 Bärbel Hönisch and others, ‘The Geological Record of Ocean Acidification’ (2012) 335 Science 1058. 34 UNFCCC, Slow Onset Events (Technical Paper), UN Doc FCCC/TP/2012/7, 26 November 2012 . 29 30

Ocean acidification  269 are not avoided by mitigation. The faster mitigation is realised, the more likely adaptation is to be effective; however, less effective mitigation in turn means less effective adaptation and more permanent losses, which will need to be addressed through compensation or other redress mechanisms.35 In 2015, the international community agreed to 17 SDGs, one of which, SDG 14, is focused on ‘Life Below Water’.36 SDG 14 is accompanied by several targets, one of which, Target 14.3, is to ‘[m]inimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels’.37 The indicator selected for achieving this target is the ‘[a]verage marine acidity (pH) measured at agreed suite of representative sampling stations’;38 however, no ‘safe’ value is identified for what this average should be. As Harrould-Kolieb and Hoegh-Guldberg note, while ‘SDG 14.3 establishes an internationally accepted goal for OA [ocean acidification] … there is no identifiable guidance, such as objectives, areas for action or activities to be implemented, offered for how this commitment should be worked towards or achieved’.39 Mitigation can only be achieved by the stabilisation of atmospheric levels of CO2 – the only global driver of ocean acidification – as it is these concentrations that will determine the trajectory of the ocean’s acidity.40 Reducing emissions of CO2 is the least risky and most effective way of achieving mitigation outcomes.41 The removal of CO2 from the atmosphere (so called carbon dioxide removal (CDR) techniques) will likely be needed in addition to emission reductions in order to achieve the goal of limiting global temperatures to well below 2oC and aiming for 1.5oC (per the Paris Agreement42).43 However, CO2 removal has not been proven to be feasible at scale, is expensive, fraught with ethical problems and does not achieve equivalent outcomes as avoided emissions.44 Moreover, as noted above, a number of CO2 removal techniques have the potential to exacerbate ocean acidification.45 For these reasons,

35 For a summary of adaptation and redress measures available to address ocean acidification, see, Ellycia R Harrould-Kolieb and Ove Hoegh-Guldberg, ‘A Governing Framework for International Ocean Acidification Policy’ (2019) 102 Marine Policy 10, 11. For discussion on dispute settlement options, see, Natalie Klein and Millicent McCreath, ‘Resolving International Disputes concerning the Marine Environment’, Chapter 6 in this volume. 36 UN, Transforming Our World (n 4). 37 Ibid. 38 UNESCO, Methodology for measuring marine acidity recognized by United Nations, (15 November 2018) . 39 Harrould-Kolieb and Hoegh-Guldberg (n 35). 40 Ibid. 41 Ibid. 42 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) (2016) 55(4) International Legal Materials 740 (Paris Agreement). 43 Kevin Anderson and Glen Peters, ‘The Trouble with Negative Emissions’ (2016) 354 Science 182. 44 Ibid; Kate Dooley and Sivan Kartha, ‘Land-Based Negative Emissions: Risks for Climate Mitigation and Impacts on Sustainable Development’ [2017] International Environmental Agreements: Politics, Law and Economics 1; Alice Larkin and others, ‘What If Negative Emission Technologies Fail at Scale? Implications of the Paris Agreement for Big Emitting Nations’ (2018) 18 Climate Policy 690. 45 Jean-Pierre Gattuso and others, ‘Ocean Solutions to Address Climate Change and its Effects on Marine Ecosystems’ (2018) 5 Frontiers in Marine Science 337; Sabine Mathesius and others, ‘Long-Term Response of Oceans to CO2 Removal from the Atmosphere’ (2015) 5 Nature Climate Change 1107.

270  Research handbook on international marine environmental law CO2 removal should not be considered as being comparable to emission reductions as a mitigation policy. Impacts from ocean acidification are already occurring46 and will continue to worsen, therefore adaptation measures are needed to alleviate these effects.47 In relation to adaptation, there are two overarching types of measures that can be deployed in response to ocean acidification: (1) activities that strengthen resilience and build adaptive capacity, and (2) activities that reduce the drivers that exacerbate ocean acidification locally.48 Many of these fall within a broad collection of conservation and environmental protection measures, including pollution control, protected area designation and ecosystem-based management approaches. In this respect, conventional conservation and management approaches, including the establishment of Marine Protected Areas (MPAs), have a role to play. However, to ensure their effectiveness is maximised, such approaches need to be tailored to consider ocean acidification. For instance, local conditions and features will determine how the global ocean acidification signal manifests in particular areas. Local pressures, such as marine pollution or SOx and NOx emissions, may exacerbate ocean acidification, and therefore acting to lessen these local drivers can reduce the cumulative acidification in certain places.49 Despite best efforts to implement mitigation and adaptation plans, there will be residual harm, which will need to be addressed. In some cases, restoration of impacted ecosystems will be a viable option, such as reseeding or rebuilding populations with more resilient strains and species.50 In others, ecosystems and ecosystem services will be lost permanently and irreversible damage will be experienced, such as the collapse of a commercial fishery. In these cases, financial mechanisms, such as insurance, compensation, and liability schemes, are needed to manage costs that will be incurred. These instruments are currently under-developed in relation to slow-onset events, such as ocean acidification and sea level rise, and further consideration as to how damages in these cases can be addressed is needed.51 Actions across the spectrum of mitigation, adaptation and redress need to be incorporated into international law and policy instruments to address ocean acidification. Given the already highly congested and fragmented international governance landscape discussed below, this

For an example of ocean acidification impact to the shellfish industry and adaption measures being put in place, see, Alan Barton and others ‘Impacts of Coastal Acidification on the Pacific Northwest Shellfish Industry and Adaptation Strategies Implemented in Response’ (2015) 28 Oceanography 146. 47 For examples of adaptation measures, see, Rebecca Albright and Sarah Cooley, ‘A Review of Interventions Proposed to Abate Impacts of Ocean Acidification on Coral Reefs’ (2019) 29 Regional Studies in Marine Science 100612; Lucy Greenhill and others, ‘Adaptation to Climate Change–Related Ocean Acidification: An Adaptive Governance Approach’ (2020) 191 Ocean and Coastal Management 105176. 48 Harrould-Kolieb and Hoegh-Guldberg (n 35). 49 Scott C Doney and others, ‘Impact of Anthropogenic Atmospheric Nitrogen and Sulfur Deposition on Ocean Acidification and the Inorganic Carbon System’ (2007) 104 Proceedings of the National Academy of Sciences 14580; Wei-Jun Cai and others, ‘Acidification of Subsurface Coastal Waters Enhanced by Eutrophication’ (2011) 4 Nature Geoscience 766; Ryan P Kelly and others, ‘Mitigating Local Causes of Ocean Acidification with Existing Laws’ (2011) 332 Science 1036. 50 Raphaël Billé and others, ‘Taking Action Against Ocean Acidification: A Review of Management and Policy Options’ (2013) 52 Environmental Management 761, 771. 51 See, generally, Mary J Mace and Roda Verheyen, ‘Loss and Damage and Responsibility After COP21: All Options Open for the Paris Agreement’ (2016) 25 Review of European, Comparative and International Environmental Law 197. 46

Ocean acidification  271 goal is unlikely to be achieved holistically within one regime. However, it is possible to implement a response under a collection of regimes, several of which have already initiated activities in relation to ocean acidification.

4.

THE OCEAN ACIDIFICATION REGIME COMPLEX

Ocean acidification is an environmental problem that has relevance to multiple international legal regimes. It has been referenced in the resolutions, outcome documents or action plans of several global treaty regimes, including the ocean dumping regime (supplied by the 1972 London Convention52 and 1996 London Protocol),53 the 1972 World Heritage Convention,54 the 1979 the Convention on the Conservation of Migratory Species of Wild Animals (CMS),55 the 1992 Convention on Biological Diversity (CBD),56 and the 1992 United Nations Framework Convention on Climate Change (UNFCCC)57 (see Figure 12.1 below). Each of these have taken different approaches to the issue. Ocean acidification has also been considered in regional regimes, including regional fisheries management organisations.58 The following discussion considers the strengths and weaknesses of the regime complex with respect to mitigation, adaptation and redress. 4.1

Mitigation of Ocean Acidification

4.1.1 The climate regime The international treaty system with most relevance to mitigating ocean acidification is the climate change regime as it is the primary means through which the international community is seeking to control emissions of the major greenhouse gases, including CO2. However, historically the climate regime has been concerned primarily with regulating emissions to avoid global warming. It has therefore largely ignored ocean acidification and has even indirectly encouraged the use of the ocean as a carbon sink to address climate change, even though this could potentially worsen ocean acidification.59 This is not surprising given that at the time the

52 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention) 53 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1 (London Protocol). 54 Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151. 55 Convention on the Conservation of Migratory Species of Wild Animals (adopted 6 November 1979, entered into force 1 November 1983) 1651 UNTS 333. 56 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79. 57 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 58 See, Rosemary Rayfuse, ‘Regional Fisheries Bodies and Ocean Acidification’ in David L VanderZwaag, and others (eds), Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 123. 59 See, UNFCCC, Art. 4(2)(a). For discussion, see, Baird and others (n 6).

Figure 12.1

Chronology of treaty-regime responses to ocean acidification (2005–2020)

272  Research handbook on international marine environmental law

Ocean acidification  273 UNFCCC and Kyoto Protocol were negotiated in the 1990s, ocean acidification was not yet understood as a threat by the scientific community, which only occurred in the late 1990s to early 2000s. Nevertheless, the ultimate objective of the UNFCCC is to ‘prevent dangerous anthropogenic interference with the climate system’60 and although the treaty makes no express mention of the ocean or its impacts, the treaty does define ‘climate system’ as being inclusive of the hydrosphere, and therefore it is arguable that this also includes the impacts of ocean acidification.61 The UNFCCC has an obvious (and historically understandable) temperature focus. 62 This was reinforced in the Kyoto Protocol that set targets for reducing or limiting emissions on the basis of their capacity to increase global temperatures rather than other impacts, including chemical changes in the ocean. The Kyoto Protocol collected together the major greenhouse gases and groups of gases (CO2, methane (CH4), nitrous oxide (N2O), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6)) when determining global and national emissions budgets, with no distinction drawn between them. This approach was carried over to the Paris Agreement, which refers only to greenhouse gases collectively and contains no mentions of CO2 specifically. The implication of this is that the reduction of non-CO2 gases that have greater global warming potentials than CO2, such as methane, can in the short-term be prioritised over reducing CO2 emissions.63 Emission reduction pathways that delay reducing CO2 and prioritise other gases have the potential to be compatible with the aim of the Paris Agreement of holding the global temperature increase to well below 2oC and aiming for 1.5oC. However, such pathways would allow ocean acidification to increase, likely beyond dangerous levels, before CO2 emissions are reduced.64 The main decision resulting from COP 26, the ‘Glasgow Climate Pact’, suggests a more differentiated approach to greenhouse gases may be utilised in the future, as CO2 was singled out and a goal for its reduction included. This could signal a turn towards greater consideration of ocean acidification in the future; however, this is yet to be seen.65 Notwithstanding these limitations, the Paris Agreement holds significant potential in building on the UNFCCC and regulating global CO2 emissions both for their climate warming and ocean acidifying effects. The Paris Agreement expressly acknowledges, in its preamble, the ‘importance of ensuring the integrity of all ecosystems, including oceans’.66 While the operative provisions of the agreement do not address the ocean impacts of CO2, they do create several mechanisms under which ocean acidification may be considered. Importantly, the Agreement UNFCCC, Art. 2 (emphasis added). Ellycia R Harrould-Kolieb, ‘(Re)Framing Ocean Acidification in the Context of the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement’ (2019) 19 Climate Policy 1225. 62 See, eg, Baird and others (n 6); Harrould-Kolieb, ‘(Re)Framing Ocean Acidification’ (n 61); Kim (n 7). 63 United Nations Environment Programme and Climate and Clean Air Coalition, Global Methane Assessment: Benefits and Costs of Mitigating Methane Emissions (UNEP, Nairobi 2021) . 64 See Ellycia Harrould-Kolieb, ‘Implications of the Paris Agreement for Action on Ocean Acidification within the UNFCCC’ in David L VanderZwaag and others (eds), Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 24. 65 UNFCCC, Glasgow Climate Pact, UN Doc -/CP.26, 13 November 2021 , para. 17. 66 Paris Agreement, 13th recital. 60 61

274  Research handbook on international marine environmental law establishes the Nationally Determined Contribution (NDC) system, a pledge-and-review mechanism requiring parties to prepare successive emissions reduction commitments every five years.67 Each new NDC is to ‘represent a progression beyond’ the previous NDC and ‘reflect its highest possible ambition’.68 NDCs are to be guided by the climate change goals set out in Article 2 of the Paris Agreement: ‘[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels’.69 The content of NDCs are also to be informed by the ‘global stocktake’ on collective progress to occur in 2023 and every five years thereafter.70 All parties to the Paris Agreement have submitted their first NDCs.71 Ocean acidification is referred to in only 15 of these. As an example, Kiribati’s NDC includes information on ocean acidification impacts in the Pacific, noting that ‘[s]ince the 18th century [the] ocean has been slowly becoming more acidic. The aragonite saturation state has declined from about 4.5 in the late 18th century to an observed value of about 3.9 ± 0.1 by 2000’.72 This reflects Kiribati’s concern that reduced aragonite availability will lead to conditions that are ‘extremely marginal for supporting coral growth’;73 a key interest for this Pacific Island nation comprising 32 coral atolls and one coral island. A detailed analysis of NDCs by Gallo, Victor and Levin in 2017 found that they generally contain limited treatment of ocean issues from either a mitigation or adaptation perspective.74 They noted that there are significant opportunities for ocean acidification to attract greater attention in further rounds of NDCs from 2020 onwards. The next and subsequent rounds of NDCs could reference both temperature and ocean acidification goals in setting emission reduction commitments. Furthermore, Article 14 of the Paris Agreement requires parties to take stock periodically of the implementation of the agreement and to assess collective progress towards achieving the purpose of the Agreement and its long-term goals. Incorporating consideration of ocean acidification in the global stocktake would be a valuable addition to the process. In relation to both NDCs and the global stocktake, there is a need for improved understanding of how ocean acidification will progress under the suite of emission reduction pathways that are compatible with the Paris Agreement, and specifically whether some emissions scenarios lead to increasing acidification even with stabilised global temperatures. This could be clarified by drawing on the work that has sought to identify a ‘Planetary Boundary’ for ocean acidification, akin to the 2oC boundary for climate change. An acidification boundary has been proposed within the Planetary Boundary framework of maintaining the oceanic aragonite saturation state at 80 percent or higher of the average global pre-industrial surface

Ibid, Art. 4(2). Ibid, Art. 4(3). 69 Ibid, Art. 2(1)(a). 70 Ibid, Arts 4(9) and 14. 71 See, ‘Welcome to the interim NDC Registry’ (NDC Registry) . 72 See, Republic of Kiribati, ‘Intended Nationally Determined Contribution’ (2015) 73 Ibid. 74 Natalya D Gallo and others, ‘Ocean Commitments Under the Paris Agreement’ (2017) 7 Nature Climate Change 833, 833. 67 68

Ocean acidification  275 seawater state.75 The rationale provided for this boundary is to ensure that calcifiers, which are the weakest link in terms of ocean systems in the face of acidification, are able to maintain their calcium carbonate structures. The implication of this research is that emission reduction pathways can be tested by reference to their ability to stay within the acidification boundary. The Planetary Boundaries approach is an effort to bring to global environmental governance a rigorous ‘Earth System’ perspective that connects scientific understanding of Earth system change to governance mechanisms.76 Given the rate at which emission reductions are needed in order to meet the temperature target of the Paris Agreement and the inadequate commitments put forward by most nations, there is increasing attention being paid to geoengineering as a tool for limiting the impacts of climate change. However, as noted above, these techniques themselves are not benign and can have substantial negative effects on the marine environment, including exacerbating ocean acidification.77 The UNFCCC in Article 4(1)(d) specifically identifies the ocean as a sink and reservoir for greenhouse gases and commits parties to promote and cooperate in its ‘conservation and enhancement, as appropriate’. It could be argued that the use of marine engineering techniques that actively sequester CO2 in the marine environment, such as ocean fertilisation, fulfil this commitment. On the other hand, given that such techniques could impair the ‘conservation’ of the ocean by exacerbating ocean acidification or causing other damage, they may be considered inconsistent with the UNFCCC. Such an interpretation would align with the view expressed by parties under the London Protocol and the CBD (discussed below) that ocean fertilisation should not be pursued except for purposes of legitimate scientific research. 4.1.2 Other regimes Although the climate regime is the ‘main game’ in mitigating ocean acidification, there are other global and regional regimes that have some relevance to mitigation. Turning first to the LOSC, and the law of the sea more broadly. There is an extensive body of international law that applies to various sources and types of marine pollution. The LOSC and the suite of treaties under its umbrella have had significant success in curbing certain pollutants, particularly oil pollution from vessels. However, there has been much less engagement with ocean pollution from atmospheric sources, including ocean acidification. The LOSC has extensive provisions addressing marine environmental protection. The core obligation, set out in Article 192, is ‘to protect and preserve the marine environment’. Article 194(1) provides that States Parties must take ‘all measures…necessary to prevent, reduce and control pollution of the marine environment from any source’. Atmospheric pollution is specifically addressed in Article 212(1), which requires States to ‘prevent, reduce and control pollution of the marine environment from or through the atmosphere’. Ocean acidification is clearly a negative effect resulting from the pollution of the marine environment by the drawdown of an atmospheric pollutant, CO2. The combined operation of Articles 192, 194 and 212 means that there is a general obligation under the LOSC on States

75 Johan Rockström and others, ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’ (2009) 14 Ecology and Society 32; Will Steffen and others, ‘Planetary Boundaries: Guiding Human Development on a Changing Planet’ (2015) 347(6223) Science 1259855. 76 Frank Biermann, Earth System Governance: World Politics in the Anthropocene (MIT Press 2014). 77 Kate Dooley and others, ‘Carbon-Dioxide Removal and Biodiversity’ (n 32).

276  Research handbook on international marine environmental law Parties to prevent ocean acidification.78 However, there is no mechanism currently operating under the LOSC to support the achievement of this goal.79 In relation to marine pollution, the LOSC relies on other institutions to establish detailed rules and standards; for instance the extensive body of treaties adopted under the auspices of the International Maritime Organization (IMO) to address a wide array of pollution problems from vessel source oil pollution to pollution from ballast water. However, unlike these areas, for ocean acidification no comprehensive set of rules, standards or other norms or practices have yet been adopted under UNCLOS. There are several IMO treaties that have some application, at the margins, to the problem. The London Protocol generally prohibits the dumping of materials at sea, including CO2. Amendments to the London Protocol were agreed in 2006 which allow CO2 to be sequestered only in or under the seabed, and not in the water column.80 This was the earliest recognition of ocean acidification in any international regime, with the parties acknowledging the risks associated with CO2 sequestration, including the possibility that CO2 will leak into the water column and exacerbate ocean acidification. 81 To minimise the risks of this activity in 2012 the parties to the London Convention and Protocol adopted detailed Specific Guidelines for the Assessment of Carbon Dioxide Streams for Disposal into Sub-Seabed Geological Formations.82 A second amendment to the London Protocol, ‘the export amendment’, was adopted in 2009 to permit transboundary transport of CO2 for storage in sub-seabed geological formations.83 The amendment was required as Article 6 of the London Protocol prohibits the export of waste for dumping in the marine environment. In calling for enhanced acceptance of this amendment, the IMO Secretary-General at the time, Mr Koji Sekimizu, observed that ‘[t]he importance of securing [the 2009 amendment’s] entry into force cannot be over-emphasized, if the threat of acidification of the oceans from climate change is to be minimized’.84 While the amendment has not received sufficient ratifications to enter into force, in 2019 the parties adopted a resolution allowing the provisional application of the amendment by parties that wish to do so

See further, Alan Boyle, ‘Law of the Sea Perspectives on Climate Change’ in David Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Martinus Nijhoff 2013) 157 and Tim Stephens, ‘Warming Waters and Souring Seas: Climate Change and Ocean Acidification’ in Donald R Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 777. 79 Ellycia Harrould-Kolieb, ‘The UN Convention on the Law of the Sea: A Governing Framework for Ocean Acidification?’ (2020) 29 Review of European, Comparative and International Environmental Law 2. 80 IMO, Notification of Amendments to Annex 1 to the London Protocol, IMO Doc LC-PL.1/Circ.5, 27 November 2006. See further, Karen Scott, ‘Pollution from Dumping’, Chapter 2 in this volume. 81 IMO, 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol 1996): Notification of amendments to Annex 1 to the London Protocol 1996, IMO Doc LC-LP.1/Circ.5, 27 November 2006. 82 IMO, Report of the Thirty-Fourth Consultative Meeting and the Seventh Meeting of Contracting Parties, IMO Doc LC 34/15, Annex 8, 23 November 2012. 83 IMO, Res LP.3(4) on the Amendment to Article 6 of the London Protocol, IMO Doc LP.3(4), 30 October 2009. 84 IMO Secretary-General, 38th Consultative Meeting of Contracting Parties to the London Convention and the 11th Meeting of Contracting Parties to the London Protocol (opening address), 19-23 September 2016, . 78

Ocean acidification  277 in advance of the amendment becoming effective.85 The efforts under the London Protocol to regulate carbon sequestration in the marine environment are clearly insufficient to mitigate ocean acidification. Nonetheless, they do contribute to the patchwork of ocean acidification governance and provide an example of a proactive response within a regime that is limited by the scope of its mandate. The other related development under the London Protocol relates to marine geoengineering. In 2008, a resolution of the parties imposed a moratorium on ocean fertilisation, except for legitimate scientific research.86 Ocean fertilisation describes processes by which greenhouse gas sequestration by the oceans can be enhanced, such as through the introduction of iron, phosphorous or nitrogen compounds to promote the growth of phytoplankton that absorb CO2. In 2010, the parties adopted Resolution LC-LP.2 (2010) on the ‘Assessment Framework for Scientific Research Involving Ocean Fertilization’ which guides parties in assessing proposals for ocean fertilisation research, and includes detailed environmental assessment rules. In 2008, at the ninth meeting of the CBD Conference of the Parties (COP), the parties noted the decision on ocean fertilisation activities adopted under the auspices of the London Protocol and urged all CBD parties to comply with it.87 Subsequently, and as a response to pressure from the CBD, the parties to the London Protocol agreed on a new Article 6bis, which provides that parties shall not allow the placement of matter into the sea from vessels, aircraft, platforms or other human-made structures at sea for marine geoengineering purposes unless the activity is authorised under a permit issued by the Contracting Party/ies involved in the project.88 Marine geoengineering is defined as ‘a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, […] that has the potential to result in deleterious effects, especially where those effects may be widespread, long lasting or severe’.89 This definition is expansive and undoubtedly provides scope for the regulation of a broad range of marine geoengineering activities.90 Moreover, the definition effectively decouples the intent of the activity from its regulation as it designates any ‘deliberate intervention in the marine environment to manipulate natural processes’ as geoengineering regardless of the purpose of that manipulation.91 Thus, activities intended to enhance primary productivity to increase fish stocks or to combat ocean acidification through alkalisation are all captured under this definition. A new Annex 4 to the London Protocol on marine geoengineering lists and defines ocean fertilisation as ‘any activity undertaken by humans with the principal intention of stimulating 85 IMO, Res LP.5(14) on the Provisional Application of the 2009 Amendment to Article 6 of the London Protocol, IMO Doc LP.5(14), 11 October 2019. 86 IMO, Resolution LC-LP.1 on the Regulation of Ocean Fertilization, IMO Doc LC-LP.1, 31 October 2008. See further, Scott, Chapter 2 in this volume. 87 CBD, Decision Adopted by The Conference of The Parties to the Convention on Biological Diversity at its Ninth Meeting: Biodiversity and Climate Change, UNEP/CBD/COP/DEC/IX/16, 9 October 2008. 88 IMO, Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities, IMO Doc LP.4(8),18 October 2013. 89 Ibid. 90 Karen N Scott, ‘Geoengineering and the Marine Environment’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 457. 91 Ibid, 458.

278  Research handbook on international marine environmental law primary productivity in the oceans’. Karen Scott suggests, much like the reverse list approach adopted by the Protocol, this article ‘institutes a presumption that marine geoengineering is generally not permitted subject to limited exceptions agreed upon by the parties and listed in Annex 4’.92 However, others interpret Annex 4 as functioning in the same way as the original Convention by providing a list of activities to be prohibited with activities not listed considered allowed.93 To date, ocean fertilisation remains the only activity listed under Annex 4.94 Only legitimate scientific fertilisation research projects can be undertaken; however, even those projects are required to undergo an assessment process prior to being granted permission to go ahead.95 Given the differing interpretations of the intent of Annex 4, it would be useful to include additional marine geoengineering activities that are likely to be further developed and deployed in the future and that have a likelihood of impacting the marine environment through increased acidity and other impacts. Indeed, a report of the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), suggests that of the eight marine geoengineering techniques assessed, several could fall under Annex 4, including fish stock enhancement, macroalgal cultivation and artificial upwelling.96 This amended list should include activities likely to be deployed in response to both climate change and ocean acidification as they are likely to have wide-ranging impacts on the marine environment. As it stands, ocean ecognizedon activities can only be permitted if assessed to be legitimate scientific research. These changes in regulation are significant in acknowledging the potential of the oceans to contribute further to mitigating climate change. However, they also seek to control the negative side-effects of marine geoengineering, including ocean acidification, by limiting the use of some technologies (such as those seeking to enhance upwelling of cold seawater from the depths) that would exacerbate acidification. It must be ecognized that these will have limited overall impact in controlling acidification given that its primary driver is the absorption of CO2 from the atmosphere.97 The negotiations underway on a proposed ‘Internationally Legally Binding Instrument for the Conservation and Sustainable Use of Marine Biological Diversity in Areas Beyond National Jurisdiction’ (BBNJ Agreement)98 suggest that when it comes to the law of the sea, ocean acidification is predominantly regarded as a threat to be adapted to rather than one to be avoided through mitigation actions. A draft text for the BBNJ Agreement99 has been prepared Ibid, 460. Katja Fennel and David L VanderZwaag, ‘Ocean Acidification: Scientific Surges, Lagging Law and Policy Responses’ in Robin Warner and Stuart Kaye (eds), Routledge Handbook of Maritime Regulation and Enforcement (Routledge 2015). 94 IMO Doc LP.4(8) (n 88). 95 Ibid. See further, Scott, Chapter 2 in this volume. 96 Philip W Boyd and Cris MG Vivian (eds), High level review of a wide range of proposed marine geoengineering techniques: GESAMP Working Group 41 (IMO 2019) . 97 Phillip Williamson and Carol Turley, ‘Ocean Acidification in a Geoengineering Context’ (2012) 370 Philosophical Transactions of the Royal Society A 1974; Richard A Feely and others, ‘Evidence for Upwelling of Corrosive “Acidified” Water onto the Continental Shelf’ (2008) 320(5882) Science 1490. 98 See, ‘Intergovernmental Conference on Marine Biodiversity of Area Beyond National Jurisdiction’ (United Nations) . 99 See, UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/Conf.232/2020/3, 18 November 2019 (Draft BBNJ Agreement). 92 93

Ocean acidification  279 and continues to be the subject of discussion and negotiations. The term ‘ocean acidification’ appears several times: in the definition of ‘cumulative impacts’ in Article 1 alongside several other impacts; in Article 5, which sets out general principles including an obligation on States to ‘[a]pply an approach that builds ecosystem resilience to the adverse effects of climate change and ocean acidification’; in Article 14, which includes building resilience to ocean acidification as a relevant objective in area-based management including marine protected areas; and in Article 16, where climate change and ocean acidification are listed together as criteria for the identification of marine protected areas. The parties to the CBD have also acknowledged that ocean acidification is impacting marine biodiversity. Ocean acidification is referred to in the CBD’s Strategic Plan for Biodiversity 2011–2020 and in one of the accompanying Aichi Biodiversity Targets, which were adopted in 2010.100 Aichi Biodiversity Target 10 addresses ocean acidification, and provides that ‘[b]y 2015, the multiple anthropogenic pressures on coral reefs, and other vulnerable ecosystems impacted by climate change or ocean acidification are minimized, so as to maintain their integrity and functioning’. This represented the first global effort to adopt a target for addressing ocean acidification, although it was not met by 2015 as required. Work is now nearing completion on a post-2020 Biodiversity Framework and this provides an opportunity for fuller treatment of ocean acidification and the adoption of a new goal, target and indicator. Although it is beyond the competence of the CBD to adopt CO2 emissions targets, the CBD can, through this process, contribute to, and complement, mitigation efforts under the UNFCCC and the Paris Agreement by raising the global profile of the problem and setting goals and targets. The post-2020 Biodiversity Framework will establish the agenda out to 2050 with regards to the use and conservation of biodiversity under the CBD and will have relevance to other biodiversity treaties and the wider United Nations system.101 However, unlike the proposed BBNJ Agreement, ocean acidification is not referred to in the draft post-2020 Framework.102 Moreover, the draft targets have actually shifted away from bringing greater attention to ocean acidification specifically and marine biodiversity more generally.103 This is a missed opportunity to ensure ocean acidification continues to garner attention across the work of the CBD and to enhance coherence across the biodiversity cluster in governing this issue.

CBD, Decision adopted by the Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting X/2: The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets, UNEP/CBD/COP/DEC/X/2, 29 October 2010. 101 CBD, UNEP/CBD/COP/DEC/X/2 (n 100); CDB, Enhancing Synergies among the Biodiversity-Related Conventions at the National and International Levels, UNEP/CBD/COP/13/15, 5 October 2016. 102 CBD, Update of the Zero Draft of the Post-2020 Global Biodiversity Framework, CBD/ POST2020/PREP/2/1, 17 August 2020, 3. 103 Ellycia Harrould-Kolieb, ‘Enhancing Synergies Between Action on Ocean acidification and the Post-2020 Global Biodiversity Framework’ (2020) 35 Conservation Biology 13598; Romain Schumm and others, ‘Giving Greater Attention to the Ocean in the Development and Implementation of the Post-2020 Global Biodiversity Framework’ (IDDRI, Study No 04/21, Paris, 2021) 100

280  Research handbook on international marine environmental law 4.2

Adaptation and Resilience-Building

It is clear that the direct mitigation of ocean acidification, through the regulation of CO2 emissions, is beyond the mandates of most environmental regimes. However, several regimes, especially those that are biodiversity-focused, do have the capacity to enhance adaptive capacity and resilience of the socio-ecological systems vulnerable to ocean acidification.104 Moreover, there are several mechanisms under the UNFCCC and the Paris Agreement designed to facilitate adaptation to the impacts of climate change, including ocean acidification. Under the UNFCCC, the National Adaptation Plan (NAP) mechanism was established to enable developing country parties to formulate and implement NAPs to identify mediumand long-term adaptation needs and to develop and implement accompanying strategies and programmes.105 The NAP process assists developing country parties to identify priorities for adaptation that can be supported by finance from developed country parties. One hundred and twenty-five developing countries have now initiated or launched the process to formulate and implement NAPs.106 Several of these reference ocean acidification, such as Timor Leste’s NAP submitted in March 2021.107 Adaptation to ocean acidification has also been a focus of attention under the CBD. In its 2016 decision, the CBD COP acknowledged, in relation to biodiversity in cold-water areas, that ‘[r]educing CO2 emissions remains the key action for the management of ocean acidification and warming’ but that ‘[a]dditional management options, such as reducing stressors at the national and regional levels, can be used to help marine ecosystems adapt and buy time to address increases in atmospheric CO2 concentrations’.108 Most significantly, as noted above, the CBD included ocean acidification in Target 10 of the Aichi Biodiversity Targets.109 The rationale provided for this target is that the reduction of stressors affecting ecosystems will help to make them less vulnerable to the impacts of acidification over the short- to medium-term, thereby providing more time to address acidification over the longer-term. Pollution control, reducing over-exploitation and harvesting and eradication of invasive species are all activities offered as ways to reach this target. In addition to establishing guidance on addressing ocean acidification, its inclusion in the Aichi Targets is significant as they were widely recognised as establishing the global biodiversity agenda within the wider United Nations system.110 The CBD COP has also encouraged enhanced implementation of relevant work programmes to incorporate responses to the impacts of ocean acidification. These include the work programme on marine and coastal

Harrould-Kolieb, ‘Enhancing Synergies’ (n 103). See, UNFCCC, ‘National Adaptations Plans’ . 106 UNFCCC, ‘Progress in the process to formulate and implement national adaptation plans’, UN Doc FCCC/SBI/2020/INF.13, 20 November 2020. 107 Democratic Republic of Timor-Lest, ‘Timor-Leste’s National Adaptation Plan: Addressing climate risks and building climate resilience’ (March 2021) . 108 CBD, Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity XIII/11: Voluntary specific workplan on biodiversity in cold-water areas within the jurisdictional scope of the Convention, CBD/COP/DEC/XIII/11, 11 December 2016. 109 CBD, UNEP/CBD/COP/DEC/X/2 (n 100). 110 CBD, UNEP/CBD/COP/13/15 (n 101). 104 105

Ocean acidification  281 biodiversity and the work plan on biodiversity in cold-water areas.111 The COP has also begun to identify ocean areas that may be able to serve as refugia from the impacts of ocean acidification and that therefore require special conservation or management status. The existing list of Ecologically or Biologically Significant Marine Areas includes the Western South Pacific high aragonite saturation state zone. This area was identified as having the highest aragonite saturation state in the ocean and, therefore, the least likely to fall below critical thresholds.112 Being slowest to be impacted by ocean acidification and potentially the fastest to recover, the area may serve as a refuge from ocean acidification, by maintaining higher levels of intact biodiversity. A regional example of an emerging adaptation response is found in the 1980 Convention for the Conservation of Antarctic Marine Living Resources113 (CAMLR Convention) and the Commission (CCAMLR) it established to oversee its implementation. CCAMLR varies from other fisheries management organisations in being concerned primarily with the conservation of the marine ecosystem within the CAMLR Convention area,114 while also permitting the ‘rational use’ of Antarctic marine living resources.115 Accordingly, CCAMLR is well-placed to take a precautionary and conservation focussed approach in addressing ocean acidification impacts on the Southern Ocean. In Resolution 30/XXVIII, adopted in 2009, CCAMLR noted with concern that ‘the Southern Ocean will continue to warm over this century and [believing] that the Southern Ocean will experience increased acidification with possible impacts on the marine ecosystems’.116 Rayfuse has noted that since this time, ‘CCAMLR has identified a broad range of impacts that could carry significant risks to Antarctic marine ecosystems and has worked to improve the robustness of its scientific advice and stock assessments’.117 One practical way that CCAMLR has sought to respond both to climate change and ocean acidification is through the designation of marine protected areas (MPAs). There is good evidence that MPAs will be effective in protecting ecosystems and species in the CCAMLR area, including around the Antarctic Peninsula.118 In 2011, CCAMLR adopted a general framework for the establishment of CCAMLR MPAs, which expressly referred to the capacity of MPAs to maintain the ability of ecosystems to ‘adapt in the face of climate change’.119 In 2016, CCAMLR recognised a unique climate change-related category of special area, adopting a conservation measure to establish time-limited special areas for scientific study in newly exposed marine areas follow-

111 See, ‘Marine and Coastal: Program of Work’ (CBD, 22 February 2010) . 112 CBD, CBD/COP/DEC/XIII/11 (n 108). 113 Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47 (CAMLR Convention). 114 CAMLR Convention, Art. II. 115 Ibid, Art. I. 116 CCAMLR, ‘Resolution 30/XXVIII (2009) Climate Change’, 30/XXVIII, 2009. 117 Rosemary Rayfuse, ‘Climate Change and the Poles’ in Karen N Scott and David L VanderZwaag (eds), Research Handbook on Polar Law (Edward Elgar 2020) 412, 421. 118 Carolyn J Hogg and others, ‘Protect the Antarctic Peninsula – Before It’s Too Late’ (2020) 586 Nature 496. 119 CCAMLR, Conservation Measure 91-04 (2011) General framework for the establishment of CCAMLR Marine Protected Areas, 91-04, 2011.

282  Research handbook on international marine environmental law ing ice shelf retreat or collapse in the Antarctic Peninsula region.120 Climate change was also referred to when CCAMLR established the Ross Sea MPA, with the relevant Conservation Measure noting that the Ross Sea region ‘offer[s] rich opportunities for the study of climate change in the region’ and that the ‘establishment of CCAMLR MPAs can provide important opportunities to understand the ecosystem impacts of climate change separate from those of fishing’.121 However, subsequent proposals to establish MPAs in the CCAMLR Area have been unsuccessful, with a small number of parties blocking their adoption and questioning the competence of CCAMLR to utilise this tool for ocean management.122 4.3

Harm Management and Redress

The third and most under-developed pillar of global emissions policy relates to compensation or other forms of redress for loss and damage experienced as a result of climate change and other slow-onset impacts including ocean acidification.123 The ‘loss and damage’ concept has long been discussed within the climate regime. It acknowledges that a number of climate impacts cannot be avoided and that as a consequence there is a need for norms and mechanisms that can not only minimise but also compensate for both reparable and irreparable loss. A number of governments, particularly those of developing States, have invoked principles of distributive and corrective justice in calling for high emitting States to be liable for climate change related damage.124 However, this has been resisted by industrialised States that have objected to the use of compensatory language out of fear that this would give rise to a legally enforceable system of liability.125 Instead, these governments have sought to shift loss and damage ‘under the less contested and [non] binding disaster reduction framework or under the wider humanitarian arena’.126 Following extensive debate at successive UNFCCC COPs, the Warsaw Mechanism127 was adopted in 2013. The Warsaw Mechanism seeks ‘to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change’. Clarifying the reach of the Warsaw Mechanism and giving it effect remains a work in progress, and it is not clear that a system of liability and compensation will emerge at the end of this process

CCAMLR, Conservation Measure 24-04 (2016) Establishing time-limited Special Areas for Scientific Study in newly exposed marine areas following ice-shelf retreat or collapse in Statistical Subareas 48.1, 48.5 and 88.3, 24-04, 2016-2017. 121 CCAMLR, Conservation Measure 91-05 (2016) Ross Sea region marine protected area, 91-05, 2016. 122 Chelsea Harvery, ‘Once Again, New Antarctic Reserves Fail to Win Backing’ (Science, 2 November 2020) . 123 Mace and Verheyen (n 51). 124 Meinhard Doelle and Sara L Seck, ‘Loss and Damage from Climate Change: A Maturing Concept in Climate Law?’ (2020) 20 Climate Policy 669. 125 Elisa Calliari and others, ‘The Politics of (and Behind) the UNFCCC’s Loss and Damage Mechanism’ in Reinhard Mechler and others (eds), Loss and Damage from Climate Change: Climate Risk Management, Policy and Governance (Springer 2018). 126 Ibid. 127 UNFCCC, Report of the Conference of the Parties on its Nineteenth Session held in Warsaw from 11 to 23 November 2013, Decision 2/CP.19, UN Doc FCCC/CP/2013/10/Add.1, 31 January 2014. 120

Ocean acidification  283 given the careful compromise on loss and damage reached in the Paris Agreement. Reflecting this compromise, the Decision of the Parties that accompanied the adoption of the Paris Agreement provides that the parties agreed ‘Article 8 of the Agreement [relating to loss and damage] does not involve or provide a basis for any liability or compensation’.128 Mace and Verheyen argue that it is doubtful that this non-binding, interpretive, statement affects the legal obligations of the Paris Agreement. 129 Furthermore, several governments, such as Nauru, have declared that the decision ‘in no way limits the ability of Parties to the UNFCCC or the Agreement to raise, discuss, or address any present or future concerns regarding the issues of liability and compensation’.130 Other regimes may have some role to play in relation to redress as part of policy measures to promote the recovery of marine species, the restoration of marine habitats and ecosystems and the rehabilitation of coastal and marine areas heavily impacted by human activities. There is evidence that targeted interventions can lead to some level of restoration (although these would be overwhelmed by unconstrained levels of acidification so are no substitute for mitigation).131 Restoration is given a central place in the vision for the post-2020 Global Biodiversity Framework, with the overarching goal being living in harmony with nature such that ‘[b]y 2050 biodiversity is valued, conserved, restored and widely used’.132 The zero-draft of the Framework includes in its first 2030 action target, a goal to restore (an as yet unspecified) percentage of ‘degraded freshwater, marine and terrestrial natural ecosystems and connectivity among them’.133 Similarly, the draft BBNJ Agreement makes several references to restoration and rehabilitation of marine ecosystems.134 Draft Article 5, which sets out a number of general principles and approaches to guide implementation of the agreement, refers to the need for the parties to be guided by ‘[a]n approach that builds ecosystem resilience to the adverse effects of climate change and ocean acidification and restores ecosystem integrity’. In Draft Article 14, which opens the part of the agreement addressing area-based management tools, the objectives are stated to include the rehabilitation and restoration of biodiversity and ecosystems ‘including with a view to enhancing their productivity and health and building resilience to stressors, including those related to climate change, ocean acidification and marine pollution’. In relation to the financial costs of such measures, Draft Article 52 stipulates that the conference of the parties may/shall (text yet to be determined) establish a special fund to, among other things, ‘[f]inance the rehabilitation and ecological restoration of marine biological diversity of areas beyond national jurisdiction’. Furthermore, vulnerability to ocean acidification has 128 UNFCCC, Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015, Decision 1/CP.21, UN Doc FCCC/CP/2015/10/Add.1, 29 January 2016, 51. Article 8(1) of the Paris Agreement provides that ‘Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.’ 129 Mace and Verheyen (n 51). 130 See, Nauru’s Declaration on Ratification of the Paris Agreement in ‘7. d) Paris Agreement’ (UNTS) . 131 Rebecca Albright and Sarah Cooley, ‘A review of Interventions Proposed to Abate Impacts of Ocean Acidification on Coral Reefs’ (2019) 29 Regional Studies in Marine Science 100612. 132 CBD, CBD/POST2020/PREP/2/1 (n 102) 3. 133 Ibid, 5. 134 Draft BBNJ Agreement (n 99).

284  Research handbook on international marine environmental law been included as one of the criteria for the identification of areas requiring special protection135 and the adverse effects of ocean acidification have been recognised as a reason for capacity-building and the transfer of marine technology.136 Regardless of how redress is eventually addressed, it will always be less effective than preventing the loss and damage to begin with.

5.

FILLING THE GAPS IN OCEAN ACIDIFICATION GOVERNANCE

Comparing the activities initiated by the emergent ocean acidification regime complex against the governing framework articulated by Harrould-Kolieb and Hoegh-Guldberg, it is possible to assess where gaps in ocean acidification governance lie.137 Harrould-Kolieb and Hoegh-Guldberg’s framework was formulated to guide action on achieving SDG Target 14.3 and international action on ocean acidification more broadly.138 Their framework consists of three overarching objectives, six areas in which action is needed to achieve the three objectives, and a number of example activities that can be deployed within each area of action. An illustration of the framework can be found in Figure 12.2. Harrould-Kolieb and Hoegh-Guldberg find that to meet SDG Target 14.3, three objectives need to be met. First, future acidification should be limited via mitigation policies that reduce CO2 emissions and atmospheric CO2 concentrations. Second, the impacts of ocean acidification should be alleviated through adaptation, where adaptive options exist. Third, residual harm that cannot be prevented or adapted to must be redressed or compensated, to the extent that this is possible. While all three objectives will need to be pursued in concert, without mitigation there is no way of preventing future acidification. Moreover, the scale and speed at which mitigation is achieved will determine the need for, and the likely success of, adaptation and redress efforts.139 In Figure 12.2, the activities initiated to address ocean acidification are mapped onto a depiction of the ocean acidification governing framework. The activities are circled and linked to the corresponding regimes under which they have been initiated (rightmost in the figure). The connected lines depict the legal nature of the activities: solid for legally binding and dashed for non-binding recommendations or guidance. It is evident that, at present, there are minimal legally-binding efforts to mitigate ocean acidification. These are the quite narrow regulations under the London Protocol to curtail ocean acidification that may result from carbon sequestered in the water column. These regulations do allow for the placement of CO2 in sub-sea geological formations, which is understood as being part of the suite of measures that can be used to combat both ocean acidification and climate change. While these regulations are legally binding on the 48 State Parties to the London Protocol, the 2013 amendment to the London Protocol to regulate the placement of matter for ocean fertilisation and other geoengineering technologies is yet to enter into force.

137 138 139 135 136

Ibid, Annex I, (f). Ibid, Annex II (iv). Harrould-Kolieb and Hoegh-Guldberg (n 35). Ibid. Ibid.

Figure 12.2

Areas of Ocean Acidification Governing Framework that are filled by existing multilateral environmental agreement responses

Note: Resolutions of the London Protocol are considered to be legally binding. The advice provided to Parties under the CBD is non-binding and only acts to guide implementation of non-binding targets. The UNFCCC efforts to address loss and damage, primarily through harm management, have the potential to address ocean acidification impacts, especially under the work to address slow-onset events. Source:  Figure adapted from Harrould-Kolieb and Hoegh-Guldberg (n 35).

Ocean acidification  285

286  Research handbook on international marine environmental law The UNFCCC and Paris Agreement impose obligations on parties to prevent dangerous interference with the climate system (which encompasses the oceans) and sets out a mandatory process for pledging emissions targets. However, the regime lacks explicit, legally-binding obligations to address ocean acidification. Arguably, the most valuable measure for mitigating ocean acidification at a global level would be the inclusion of an ocean acidification limit both in NDCs and in the global stocktake under the Paris Agreement. There is a need for an understanding of how the pathways consistent with the long-term temperature target of remaining well below 2oC and aiming for 1.5oC play out for ocean acidification. Once this is understood, the COP could decide that only those consistent with the ocean acidification boundary should be pursued. A clear commitment to maintain the boundary, both through the achievement of emission reduction pathways consistent with maintaining the boundary and avoiding the use of emission reduction techniques that are likely to exacerbate ocean acidification, is of vital importance and could be achieved through a COP resolution. This commitment could be strengthened by complementary initiatives in other regimes, including under the BBNJ Agreement and the CBD to identify global (and regional) ocean acidification boundaries. In relation to adaptation, the recommendations under the CBD to protect the Western South Pacific high aragonite saturation state zone and advice on means for achieving Aichi Biodiversity Target 10 remain (although not implemented by the 2015 deadline) likely to help to strengthen resilience and adaptive capacity. However, they were only offered as guidance to achieve non-binding targets. The inclusion of adaptation strategies to address the impacts from ocean acidification in national adaptation communications and plans under the UNFCCC will help to bring greater attention to the impacts of ocean acidification and means for addressing them. Ocean acidification is already having negative consequences on coastal communities and these will only worsen in the near future as mitigation lags. Social vulnerability to ocean acidification needs to be acknowledged and addressed in national plans so as to protect those most vulnerable. Harm management and redress remains a major gap in the ocean acidification governance framework. Ocean acidification has relatively little visibility in the loss and damage mechanism under the UNFCCC and Paris Agreement in comparison with other slow-onset impacts, such as sea level rise. There is a major opportunity for this to change with improved research on the costs of ocean acidification, which in turn can inform the quantification of losses and the levels of financial support that will be required to compensate for this damage. The inclusion of ocean acidification as a slow-onset event under the Warsaw Mechanism offers the potential to address loss and damage resulting from ocean acidification; however, it is unclear how this will proceed. The development of techniques for responding to residual risk associated with ocean acidification is needed. While there are a number of proposed methods for averting risk associated with ocean acidification, via both mitigation and adaptation, there is a substantial knowledge gap around the availability of methods for addressing the impacts that cannot be avoided. Work to identify triggering events in relation to ocean acidification is needed, as is more research attributing the impacts of ocean acidification to those most responsible.

6. CONCLUSION This chapter has surveyed the range of international environmental regimes that have some application to the ocean acidification problem, highlighting opportunities for further amend-

Ocean acidification  287 ment and development to deal with the ‘other CO2 problem’. For all the weaknesses of the climate regime, and despite the dangers of adding a new and complex type of environmental change to the crowded agenda before climate negotiators, it remains the ‘main game’. This is because it is the central arena in which the global community is discussing CO2 emissions abatement on the scale necessary to have the required impact upon oceanic pH levels. However, there is also significant opportunity for developments within other environmental regimes to govern adaptive responses to ocean acidification and to add further momentum in the climate negotiations, by enabling further scientific research, and by being a conduit for clear statements of the need to reduce CO2 emissions as a matter of urgency (as has been seen in the context of the CBD). While some of the drivers and impacts of ocean acidification are being partially addressed by international law, there is an absence of purposive regulation that would result in a substantial change in the trajectory of the problem or alleviate its effects. Moreover, the existing initiatives most likely to result in needed changes have not been designed with ocean acidification in mind. These include the reduction of CO2 emissions under the UNFCCC and the Paris Agreement, the reduction of pollutants under MARPOL and the London Convention and Protocol and the conservation of biodiversity under the CBD and the LOSC. As a result, many of the drivers and impacts of ocean acidification are either not being addressed at all or are being addressed without any explicit recognition of the problem. The implementation of activities that have the capacity to address ocean acidification, but are not explicitly designed to do so, may miss opportunities to alleviate, or may even exacerbate, rising ocean acidity. This web of existing treaties should instead be harnessed to more explicitly address ocean acidification. The potential to mitigate ocean acidification and alleviate its impacts exists; however, a more purposive form of governance is needed to ensure this potential is met.

PART IV PROTECTING MARINE BIODIVERSITY

13. Protecting the marine environment of the deep seabed Michael Lodge1

1.

INTRODUCTION AND SCOPE

This chapter discusses legal aspects of the protection of the marine environment of the deep seabed beyond the outer limits of the continental shelf as defined in Article 76 of the 1982 United Nations Convention on the Law of the Sea (LOSC),2 specifically its protection from the potential adverse effects caused by the recovery of mineral deposits from the seabed. The deep seabed beyond the outer limits of the continental shelf is referred to as ‘the Area’.3 Both the Area and its mineral resources are designated by Article 136 of the LOSC as ‘the common heritage of mankind’,4 a sui generis legal status which entails that no State may exercise sovereignty or sovereign rights over the Area or its resources and that rights in the resources of the Area are ‘vested in mankind as a whole’, on whose behalf the International Seabed Authority (ISA) acts.5 The ISA is the organisation through which States Parties to the LOSC are to organise and control exploration for, and exploitation of, the mineral resources of the Area.6 The LOSC tasks the ISA with the development of the resources of the Area7 while at the same time protecting the marine environment. To achieve this delicate balance, States Parties equipped the ISA with unusually broad and far-reaching competences, including the power to allocate rights, legislative competence and enforcement powers.8 It has been well described as ‘the result of an uncharacteristic attempt by States to adopt a precautionary approach and ensure rational and sustainable utilization of the resources of the seabed through regulating the mining industry before the need for regulation had been generally recognized’.9 The legal framework under which the ISA operates is contained in Part XI of the LOSC and its related annexes, and the 1994 Agreement Relating to the Implementation of Part XI of The views expressed in this chapter do not represent the views of the International Seabed Authority or any of its members. 2 United Nations Convention on the Law of the Sea (adopted and opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 3 LOSC, Art. 1(1). 4 LOSC, Arts 1(1)(1), 133(a) and 136. 5 LOSC, Art. 137(2). 6 LOSC Art. 1(1)(3) (uses the term of art ‘activities in the Area’ to refer to ‘all activities of exploration for, and exploitation of, the resources of the Area’). 7 LOSC, Art. 150(a). 8 Aline L Jaeckel, The International Seabed Authority and the Precautionary Principle, (Brill Nijhoff 2017) 5. 9 Christopher W Pinto, ‘The United Nations Convention on the Law of the Sea: Sustainable Development and Institutional Implications’ in Peter B Payoyo (ed), Ocean Governance: Sustainable Development of the Seas (United Nations University Press 1994) 16. 1

289

290  Research handbook on international marine environmental law the United Nations Convention on the Law of the Sea (1994 Implementation Agreement).10 In addition, Part XII of the LOSC is dedicated to the protection of the marine environment and establishes obligations on States Parties that are, for the most part, mandatory, unqualified, and without exceptions. To implement and give effect to the provisions of the LOSC and the 1994 Implementation Agreement, the ISA is required to adopt rules, regulations and procedures on all aspects of activities in the Area. Whilst these rules, regulations and procedures are subsidiary to the LOSC and the 1994 Implementation Agreement, they are nevertheless binding on all members of the ISA without requiring individual consent and without the possibility of opting out.11 This is an exceptional law-making competence for an international organisation and is one of the salient features of the legal regime for deep seabed mining. By virtue of the contractual nature of the relationship between the ISA and entities carrying out activities in the Area, these rules, regulations and procedures also become binding on contractors, without further integration into domestic law. Any human activity will impact the environment in which it occurs. The level of impact depends on the type of activity and the environment where this activity occurs. The rules, regulations and procedures adopted by the ISA relating to the protection of the marine environment place different responsibilities on the ISA, States sponsoring activities in the Area, and entities carrying out such activities under contract to the ISA. Activities in the Area may be carried out only by qualified entities on the basis of a formal written plan of work approved by the ISA.12 A fundamental feature of the regime is that such a plan of work shall be in the form of a contract between the ISA and the relevant entity.13 Within this framework, the responsibility of the ISA is to regulate, taking into account the best scientific information, to approve contracts for activities in the Area in accordance with the regulations, to monitor all such activities, and to take enforcement action where necessary. The responsibility of contractors is to carry out their activities in compliance with their contract and the regulations. Sponsoring States are required to cooperate with the ISA in the implementation of the regime, to establish a satisfactory national legal regime, and to ensure that entities sponsored by them meet their contractual obligations. In 2011, the first Advisory Opinion to be issued by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS)14 provided important clarification 10 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force provisionally 16 November 1994, and definitively 28 July 1996) 1836 UNTS 3 (1994 Implementation Agreement). The 1994 Implementation Agreement was provisionally applied from 16 November 1994 (the date of entry into force of LOSC) and entered into force itself on 28 July 1996. The provisions of the Agreement and Part XI of LOSC are to be interpreted and applied together as a single instrument: in the event of any inconsistency between the Agreement and Part XI, the provisions of the Agreement prevail. 11 Jaeckel (n 8) 47. LOSC Arts 137(2) and 153(1). See also James Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press 2011). 12 LOSC, Art. 153(3). 13 LOSC, Art. 153(3) and 1994 Implementation Agreement, Annex, s. 2(4) (contracts may be issued to both public and private mining enterprises provided they are sponsored by a State party to the LOSC and meet certain standards of technological and financial capacity). 14 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), ITLOS Reports 2011, 10 (hereafter Seabed Advisory Opinion). See also David Freestone, ‘Advisory Opinion of the Seabed Disputes Chamber of the International

Protecting the marine environment of the deep seabed  291 on certain issues associated with the deep seabed regulatory framework. In particular, the Chamber held that the obligation to apply the precautionary approach is an integral part of the ‘due diligence’ obligations on sponsoring States. The Chamber also emphasised the importance of applying ‘best environmental practices’ in the context of activities in the Area and recognised that the obligation to conduct an environmental impact assessment is also ‘a general obligation under customary law’.

2.

ENVIRONMENTAL IMPACTS FROM SEABED MINING

Seabed mining has not yet commenced on a commercial scale, although in recent years there has been greatly accelerated interest in the potential for marine minerals both within and beyond national jurisdiction. This interest extends to different types of mineral deposits, including polymetallic nodules, polymetallic sulphides and cobalt-rich crusts,15 in all major ocean basins. Each mineral type is associated with different habitats, including hydrothermal vents, seamounts and mid-ocean ridges. Activities carried out during the early stages of prospecting and exploration for minerals are generally recognised to have little, if any, potential for adverse impact on the marine environment, being confined primarily to remote sensing and standardised sampling techniques of the sort commonly deployed during marine scientific research. Once commercial scale recovery of minerals begins, however, there is the potential for damage to the marine environment, not only from activities at the seafloor, but also pollution from discharges at the surface and disposal of waste from the separation of ore from water. For this reason, the ISA has a central role to play in regulating activities to ensure protection of the marine environment. The potential environmental impacts of deep seabed mining may be summarised as follows.16 The mining collector at the seafloor will cause localised damage to the seafloor, Tribunal for the Law of the Sea’ (2011) 15 ASIL Insights 7; and Rosemary Rayfuse, ‘Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area’ (2011) 54 German Yearbook of International Law 459. 15 Polymetallic (manganese) nodules contain a wide variety of metals, including manganese, iron, copper, nickel, cobalt, lead and zinc. By far the most studied area of commercial interest is the Clarion Clipperton Zone (CCZ) in the eastern Pacific which contains an inferred resource of 62 billion tonnes of nodules. Other areas of potential interest are the Central Indian Ocean basin and the exclusive economic zones (EEZs) of Cook Islands, Kiribati and French Polynesia. Polymetallic sulphides (also known as Seafloor Massive Sulphides or SMS) are rich in copper, iron, zinc, silver and gold. Deposits are found at tectonic plate boundaries along the mid-ocean ridges, back-arc ridges, and active volcanic arcs typically at water depths of around 2,000 metres for mid-ocean ridges. Cobalt crusts accumulate at water depths of between 400 and 7,000 metres on the flanks and tops of seamounts, ridges, and plateaus (underwater mountains). They are formed through precipitation of minerals from seawater and contain iron, manganese, nickel, cobalt, copper and various rare metals, including rare earth elements. The most prospective area for cobalt crusts is in the Pacific Ocean east of Japan and the Mariana islands, called the Magellan seamounts. 16 See generally in relation to this paragraph: Hjalmar Thiel, ‘Evaluation of the Environmental Consequences of Polymetallic Nodule Mining based on the Results of the TUSCH Research Association’ (2001) 48 Deep Sea Research II 3433; Craig R Smith and Paul Snelgrove, ‘Disturbance and Recolonization Processes’ in Prospects for International Collaboration in Marine Environmental Research to Enhance Understanding of the Deep Sea Environment: Proceedings (ISA 2006); Cindy L Van Dover and others, Environmental Management of Deep Sea Chemosynthetic Ecosystems:

292  Research handbook on international marine environmental law including crushing living organisms, disturbance of sediment and removal of substrate habitat. The consequences of this may be significant. For manganese nodules, sediment disturbance from the collector will create a sediment plume that could bury seafloor organisms or clog the siphons of filter feeding organisms. It is essential, therefore, to minimise the extent of the sediment plume to mitigate against the potential for such damage and much engineering work and testing of equipment is directed to this end. Once ore is brought to the surface in the form of a slurry, there is the potential problem of discharge of waste processing water. If discharged, deliberately or accidentally, in the near surface water column, this could impact plankton and fish stocks. On the other hand, discharging near the seabed may also create additional sediment plumes as well as geochemical changes due to the composition of tailings. There is also the possibility of ancillary and accidental damage through malfunctions in the riser and transportation system, hydraulic leaks, noise pollution and light. Accidental incidents of this nature are unlikely to cause lasting damage since operations can be rapidly suspended. Although it is now well known that the biodiversity of the deep seabed is greater than had hitherto been thought,17 there are still gaps in knowledge, particularly with regard to species composition and distributions. It is nevertheless reasonable to assume that recovery periods are likely to be decadal and that, at least in localised areas, ecological community structures may never recover from direct impacts. Impacts on endemic species may be more profound, especially on seamounts, and in the case of species with limited geographical range and small populations.

3.

THE BASIC LEGAL FRAMEWORK OF THE LOSC AND THE 1994 IMPLEMENTATION AGREEMENT

The provisions on the protection of the marine environment contained in Part XII of the LOSC constitute the basic framework for the legal regime that establishes the obligations, powers and responsibilities of States with respect to the marine environment. These apply to all marine environments, including the Area. Article 192 of the LOSC establishes the overarching obligation of all States to protect and preserve the marine environment. Part XII also describes the specific measures to be taken by States to prevent, reduce and control marine pollution18 as well as to ensure that activities under their jurisdiction or control do not cause pollution damage to other States and their environment, and that pollution does not spread beyond the areas where they exercise sovereign rights under the LOSC. In relation to the Area, Article 209

Justification of and Considerations for a Spatially-Based Approach (ISA Technical Study No. 9, ISA, Kingston, Jamaica, 2011) . See also the Note dated 26 August 2010 submitted by the International Seabed Authority to the Seabed Disputes Chamber in Case No. 17 entitled ‘A Summary of Available Information in the Public Domain on the Likely Impact of Exploration and Mining Activities for Nodules on the Marine Environment’ . 17 Alasdair D McIntyre (ed), Life in the World’s Oceans: Diversity, Distribution, and Abundance (Wiley-Blackwell 2010). 18 It is worth noting that the definition of ‘pollution of the marine environment’ in Art. 1 LOSC is all-encompassing and applies equally to the introduction of pollution from land-based and atmospheric activities, including anthropogenic CO2 emissions. Michael W Lodge and Philomène A Verlaan, ‘Deep-sea Mining: Regulatory Challenges and Responses’ (2018) 14 Elements 331.

Protecting the marine environment of the deep seabed  293 states that ‘[i]nternational rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area.’ The nature of these international rules, regulations and procedures is detailed in Article 145 of the LOSC under Part XI. Article 145 requires that ‘necessary measures shall be taken in accordance with [the LOSC] to ensure effective protection for the marine environment from harmful effects which may arise’ from activities in the Area. The article continues: [t]o this end, the ISA is required to adopt appropriate rules, regulations and procedures for, inter alia: (a) the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; (b) the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.

It may be seen that Article 145 is a very far-reaching provision requiring extensive regulation on the part of the ISA. The protection required extends well beyond the Area (‘including the coastline’), beyond pollution (‘and other hazards’), and most visionary of all, it includes a comprehensive, ocean-wide ecological prerequisite that is not found in any other intergovernmental marine environmental treaty (prevention, reduction and control of ‘interference with the ecological balance of the marine environment’). The only limitation is that the harmful effects must be attributable to ‘activities in the Area’.19 Law-making power in the ISA is vested in the Council,20 which shall adopt the ‘rules, regulations and procedures’ relating to activities in the Area,21 including ‘those relating to … protection of the marine environment’.22 The 1994 Implementation Agreement further emphasises that ‘the adoption of rules, regulations and procedures incorporating applicable standards for the protection and preservation of the marine environment’ is one of the matters to be given priority consideration by the ISA between the entry into force of the LOSC and the approval of the first plan of work for exploitation.23 Although law-making power is vested in the Council, the Council does not act alone in formulating environmental regulations for the Area. The other organ of the ISA with responsibility for the protection of the marine environment is the Legal and Technical Commission, which is established as an organ of the Council under Article 163 of the LOSC. The Commission is required to formulate and submit to the Council environmental rules, regulations, and procedures and keep them under review.24 It is required to make recommen-

See (n 6) on the definition of ‘activities in the Area.’ The Council is composed of 36 members, divided into five Groups (A, B, C, D and E) and for decision-making four Chambers (A, B, C and the developing countries in Groups D and E). For an overview of the structure and decision-making process within the Council see Michael C Wood, ‘International Seabed Authority: The First Four Years’ (1999) 3 Max Planck Yearbook of United Nations Law 173. 21 LOSC, Art. 162(2)(o)(ii). 22 LOSC, Annex III, Art. 17(1)(b)(xii). 23 1994 Implementation Agreement, Annex, s. 1(5)(g). 24 LOSC, Art. 165(2)(f)-(g). 19 20

294  Research handbook on international marine environmental law dations to the Council both on the implementation of such regulations and on ‘the protection of the marine environment, taking into account the views of recognized experts in that field.’25 Furthermore, the Commission also has to prepare environmental impact assessments of activities in the Area,26 make recommendations to the Council concerning a monitoring programme to observe, measure, evaluate, and analyse the risks and effects of pollution caused by such activities, ensure that existing regulations are adequate and complied with, and coordinate the implementation of the monitoring programme.27 Pursuant to the legal provisions described above, the ISA has adopted three sets of Regulations dealing with prospecting and exploration for mineral resources in the Area and is currently (at March 2022) in the process of drafting regulations governing exploitation of those resources.28 The first set of Regulations was adopted in 2000 and dealt with prospecting and exploration for polymetallic nodules.29 Regulations on prospecting and exploration for polymetallic sulphides were adopted in 201030 and for cobalt-rich crusts in 2012.31 In 2013, the Regulations on Prospecting and Exploration for Polymetallic Nodules (Nodules Exploration Regulations) were revised and updated to be consistent with the 2010 and 2012 regulations.32 The three sets of exploration regulations are broadly similar in format, scope and content, with differences primarily reflecting the different spatial and geological characteristics of the mineral resources they deal with. Ultimately, it is intended that the regulations, together with associated standards, guidelines, rules and procedures, will form a comprehensive Mining Code, regulating all aspects of activities in the Area from prospecting through to exploitation. For ease of reference, the 2010, 2012 and 2013 Regulations will be referred to and discussed collectively in this chapter as the ‘ISA Exploration Regulations’, with references to specific provisions highlighted where necessary.33

LOSC, Art. 165(2)(e). LOSC, Art. 165(2)(d). 27 LOSC, Art. 165(2)(h). 28 Referred to hereafter as the Draft Exploitation Regulations. The latest draft (as of March 2022) of the Exploitation Regulations is ISA, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/25/C/WP.1, 25 March 2019, and all further references will be to that document, unless otherwise indicated. 29 ISA, Decision of the Assembly relating to the regulations on prospecting and exploration for polymetallic nodules in the Area, ISBA/6/A/18, 4 October 2000, Annex (Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area). For a general account of the process of negotiating the Regulations and their content, see Michael W Lodge, ‘International Seabed Authority’s Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ (2002) 20(3) Journal of Energy and Natural Resources Law 270. 30 ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010 (Sulphides Exploration Regulations). 31 ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012 (Crusts Exploration Regulations). 32 ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013 (Nodules Exploration Regulations). 33 Although this chapter will deal only with the latest versions of the Regulations, it should be noted that earlier versions of the Regulations may still be applicable to contracts entered into force prior to the entry into force of the revised Regulations in 2013. Although contract terms may be revised to ‘facilitate the application of any rules, regulations and procedures adopted by the Authority subsequent to the entry 25 26

Protecting the marine environment of the deep seabed  295

4.

ISA EXPLORATION REGULATIONS FOR POLYMETALLIC NODULES, POLYMETALLIC SULPHIDES AND COBALT-RICH CRUSTS

The ISA Exploration Regulations cover all aspects of the prospecting and exploration phases of mineral development, including the process of applying for approval of a plan of work, the procedure for consideration of applications by the Legal and Technical Commission and the Council, and the form and content of the contract for exploration. Prospecting is defined in the ISA Exploration Regulations as the ‘search for deposits [of minerals] including estimation of the sizes and distributions of [mineral] deposits and their economic values, without any exclusive rights.’34 This broad definition of prospecting refers to general searches for seabed mineral deposits rather than detailed pre-production surveys and is difficult to distinguish from marine scientific research.35 It may, and often does, consist merely of desktop studies. Nevertheless, the ISA Exploration Regulations require a precautionary approach to be taken to prospecting and require that prospecting not be undertaken if ‘substantial evidence indicates the risk of serious harm’ to the marine environment.36 Exploration, for the purposes of the ISA Exploration Regulations, is defined broadly as: Searching for deposits of [minerals] in the Area with exclusive rights, the analysis of such deposits, the use and testing of recovery systems, and the carrying out of studies of the environmental, technical, economic, commercial and other appropriate factors that must be taken into account in exploitation.37

Annex 4 to each set of Regulations contains standard clauses for exploration contracts which are automatically incorporated into each contract issued by the ISA. The ISA Exploration Regulations define the marine environment in the broadest possible terms as: The physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans, and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof.38

This comprehensive definition appears to include all constituent elements of the marine environment including, for example, living and non-living resources, the water column above the seafloor, and the airspace above. When read with Article 145, this definition significantly extends the environmental mandate of the ISA.

into force of the contract’ (ISA Exploration Regulations, Annex 4, s. 24.2), such modifications require the written consent of the contractor and ISA as evidenced by an appropriate instrument in writing. 34 ISA Exploration Regulations, Reg. 1(3)(e). 35 See Lodge, ‘International Seabed Authority’s Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ (n 29). 36 ISA Exploration Regulations, Reg. 2(2). Implementation of this provision would require a definition of what constitutes ‘substantial evidence’ indicating a ‘risk’ of serious harm. Gwenaëlle Le Gurun, ‘EIA and the International Seabed Authority’ in Kees Bastmeijer and Timo Koivurova (eds), Theory and Practice of Transboundary Environmental Impact Assessment (Martinus Nijhoff 2008) 243. 37 ISA Exploration Regulations, Reg. 1(3)(b). 38 ISA Exploration Regulations, Reg. 1(3).

296  Research handbook on international marine environmental law The ISA Exploration Regulations place a strong emphasis on the need for a precautionary approach to activities in the Area, with a focus on gathering data to establish an environmental baseline from which to determine the range of potential environmental impacts that may arise during the exploitation phase and identifying options to mitigate those impacts in the most effective way possible.39 This is a logical approach to take because the various activities encompassed in the broad definition of exploration do not have the same detrimental effect on the marine environment, with most such activities having little to no deleterious impact.40 The importance of baselines for future environmental management of exploitation cannot be underestimated. In 2021, the Legal and Technical Commission noted that, while exploration contractors had improved the quality of their survey designs, questions remained about whether enough baseline studies had been done to assess natural temporal and spatial variability. The Commission suggested that those contractors approaching the end of exploration should conduct gap analyses and provide in their annual reports a review of how the baseline data are building up to a level sufficient to support a robust environmental impact assessment as part of a future application for exploitation rights.41 The scheme set out in the ISA Exploration Regulations places obligations and responsibilities on three main actors or groups of actors – the ISA itself, sponsoring States and exploration contractors – and is broadly as follows. First, the ISA Exploration Regulations restate the requirement under Article 145 of the LOSC for the ISA to ‘establish and keep under review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area.’42 To this end, it is provided that the Regulations may be supplemented by further rules, regulations and procedures, in particular on the protection and preservation of the marine environment.43 Second, both the ISA and sponsoring States are required to apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration on Environment and Development, to activities in the Area.44 The Legal and Technical Commission is to make recommendations to the Council on the implementation of this requirement.45 The Commission is also required to ‘develop and implement procedures for determining, on the basis of the best available sci-

39 The system may be compared to a process of ‘scoping’ and ‘tiering’ as used by the United States Council on Environmental Policy, where tiering allows for phasing of the resolution of environmental issues to be compatible with the schedule of activities contemplated in the proposed action. See Michael W Lodge, ‘Environmental Regulation of Deep Seabed Mining’ in Andree Kirchner (ed) International Marine Environmental Law: Institutions, Implementation and Innovations (Kluwer Law International 2003) 49. 40 Le Gurun (n 36). 41 ISA, Report of the Chair of the Legal and Technical Commission on the work of the Commission during the resumed meetings of its twenty-sixth session, ISBA/26/C/12/Add.2, 22 October 2021. 42 Nodules Exploration Regulations, Reg. 31(1); Sulphides and Crusts Exploration Regulations, Reg. 33(1). See also LOSC, Art. 165(2)(e), (f) and (h), Annex III, Art. 17(1)(b)(xii) and 17(2)(f); 1994 Implementing Agreement, Annex, s. 1(5)(g). 43 ISA Exploration Regulations, Reg. 1(5). 44 Rio Declaration on Environment and Development, in UN, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol. I), Annex I, 12 August 1992, principle 15. 45 Nodules Exploration Regulations, Reg. 31(3); Sulphides and Crusts Exploration Regulations, Reg. 33(3).

Protecting the marine environment of the deep seabed  297 entific evidence, whether proposed exploration activities would have serious harmful effects on vulnerable marine ecosystems [VMEs] and to ensure that, if it is determined that certain proposed activities would have such effects, those activities are managed to prevent such effects or not authorized to proceed’.46 It would appear that this language was inserted during the negotiation of the regulations to reflect the language of General Assembly Resolution 61/105, adopted in 2006. No such recommendations have been made to date, perhaps because it is quite difficult to reconcile the concept of VMEs as developed for the purpose of managing deep sea fisheries with the sort of activities conducted during mineral exploration. Third, the ISA Exploration Regulations impose a duty on each contractor to ‘take necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from its activities in the Area as far as reasonably possible, applying a precautionary approach and best environmental practices.’47 To give effect to this general duty, the exploration contract requires the contractor, prior to commencing its activities, to submit a preliminary impact assessment of the potential effects on the marine environment of the proposed activities.48 Thereafter, the contractor is required to gather environmental baseline data as exploration activities progress and to establish environmental baselines against which to assess the likely effects of its programme of activities under the plan of work for exploration on the marine environment.49 Contractors are also required to establish and carry out a programme to monitor and report on such effects on the marine environment and to cooperate with the ISA and the sponsoring State or States in the establishment and implementation of such monitoring programmes.50 In practice this means that contractors are required to submit an annual report on the implementation and results of their environmental monitoring programmes, including all relevant data and information. These reports are then forwarded to the Legal and Technical Commission for its consideration pursuant to Article 165.51 The reference to Article 165 is interesting because it implies that the Legal and Technical Commission may use the information obtained from contractors’ reports not only for the purpose of monitoring compliance with the terms and conditions of the contract, but also for the broader purposes set out in Article 165 of making broad recommendations on the protection of the marine environment and keeping under review relevant rules, regulations and procedures. In any event, the Commission reviews and considers these reports each year and makes such comments and recommendations as may be necessary to the Council and to the Secretary-General, who then draws any relevant issues to the attention of contractors.

46 Nodules Exploration Regulations, Reg. 31(4); Sulphides and Crusts Exploration Regulations, Reg. 33(4). 47 Nodules Exploration Regulations, Reg. 31(5); Sulphides and Crusts Exploration Regulations, Reg. 33(5). 48 ISA Exploration Regulations, Annex 4, s. 5.2. 49 Nodules Exploration Regulations, Reg. 32 and Annex 4, s. 5.2; Sulphides and Crusts Exploration Regulations, Reg. 34 and Annex 4, s. 5.2. 50 Ibid. 51 Nodules Exploration Regulations, Reg. 32(2) and Annex 4, s. 5.5; Sulphides and Crusts Exploration Regulations, Reg. 34(2) and Annex 4, s. 5(5).

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5.

COMPLIANCE AND ENFORCEMENT

A system of environmental regulation is only as effective as its enforcement mechanism. The LOSC equips the ISA with broad powers to ensure compliance and enforcement. Article 153(4) states that the ISA ‘shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance’ with the LOSC, the ISA Regulations, and approved plans of work. Moreover, the ISA has ‘the right to take at any time any measures provided for under [Part XI] to ensure compliance with its provisions and the exercise of the functions of control and regulation assigned to it thereunder or under any contract.’52 In addition to these general powers, the Council has the mandate to ‘exercise control over activities in the Area’ in accordance with the general powers listed in Article 153(4), including inspecting activities in the Area through a staff of inspectors.53 No inspectorate has been established to date, because there is no need to physically inspect exploration activities, although the current Secretary-General has already taken steps to establish a Compliance and Regulatory Management Unit within the secretariat. The Draft Exploitation Regulations, discussed in Section 9, contain extensive provisions relating to inspection which will be important once full-scale commercial recovery begins.54 The Legal and Technical Commission has a corresponding mandate to make recommendations to the Council regarding the direction and supervision of such inspections.55 The exploration contract contains provisions requiring contractors to allow access to inspectors, assist them in the performance of their duty and cooperate with them in carrying out their duties.56 The ISA also has ‘the right to inspect all installations in the Area used in connection with activities in the Area.’57 The limitation to ‘installations’ is interesting, since, based on current technology, it appears highly unlikely that deep sea miners would ever construct ‘installations’ within the ambit of the term used in the LOSC.58 Although the Council has the power to institute proceedings against a contractor in cases of non-compliance, no such cases have been initiated to date. Neither has the Council found it necessary to use its powers to issue emergency orders as discussed below. Nevertheless, based on the reports submitted to it by the Legal and Technical Commission, the Council has from time to time issued decisions and resolutions relevant to the activities of contractors, for example, urging contractors to make better efforts to comply with contractual requirements regarding the submission of environmental data.59

LOSC, Art. 153(5). LOSC, Art. 162(2)(z). 54 ISBA/25/C/WP.1 (n 28) pt. XI. 55 LOSC, Art. 165(2)(m). 56 ISA Exploration Regulations, Annex 4, s. 14. 57 LOSC, Art. 153(5). 58 For the possible distinction between ‘ships’, ‘structures’, ‘installations’ and ‘artificial islands’, see Alex Oude Elferink, ‘Artificial Islands, Installations and Structures’, Max Planck Encyclopedia of Public International Law, (September 2013) . 59 For example, ISA, Decision of the Council of the International Seabed Authority relating to the reports of the Chair of the Legal and Technical Commission, ISBA/25/C/37, 22 July 2019, OP16, in which the Council stressed ‘the need for all contractors to comply with their reporting requirements and to make their environmental data readily and publicly available, and notes that the Authority needs 52 53

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6.

ENVIRONMENTAL EMERGENCIES AND CONTINGENCY PLANS

The LOSC confers a general power upon the Council to issue, on the recommendation of the Legal and Technical Commission, emergency orders to prevent serious harm to the marine environment.60 As noted above, it has not been necessary to invoke this provision so far. Such orders may include orders to suspend or adjust operations.61 Again, these broad provisions are broken down in the ISA Exploration Regulations. Contractors are required to notify the Secretary-General of the ISA of any incidents that ‘have caused, are causing, or pose a threat of, serious harm to the marine environment.’62 Pending any action by the Council in relation to such incident, the Secretary-General is required to take ‘such immediate measures of a temporary nature as are reasonable and practical in the circumstances to prevent, contain and minimize serious harm or the threat of serious harm’.63 Such temporary measures may remain in effect for up to 90 days or until such time as the Council, acting on the recommendation of the Legal and Technical Commission, has determined whether to issue an emergency order to prevent, contain and minimise serious harm or the threat of serious harm to the marine environment.64 Under the terms of the exploration contract, contractors are bound to comply with emergency orders issued by the Council and with temporary measures determined by the Secretary-General. In the event of non-compliance, the Council may take ‘such reasonable measures as are necessary’, at the contractor’s expense, to prevent, contain and minimise serious harm or the threat of serious harm to the marine environment, and may also impose monetary penalties in accordance with the terms of the contract and the ISA Exploration Regulations.65 No guidance has been developed on the level of such penalties. It should be noted that contractors are required in any event to submit a contingency plan to respond to environmental emergencies prior to commencing any activities at sea.66 Depending on the circumstances, it may be that implementation of the approved contingency plan would, in most cases, be an appropriate response to an emergency and would not require further inter-

all contractors to collect samples consistently and to fully report environmental and geological data in a digital format to support, inter alia, the development of regional environmental management plans.’ 60 Serious harm is defined in the Regulations (Reg. 1(3)(f)) as ‘any effect from activities in the Area which represents a significant adverse change in the marine environment determined according to the rules, regulations and procedures adopted by the Authority on the basis of internationally recognized standards and practices’. This definition raises issues common to other environmental treaties, including what constitutes a ‘significant adverse change’, what ‘internationally recognized standards and practices’ may be relevant and the question of the threshold at which environmental damage triggers liability. Space does not permit a complete analysis here, but for a general discussion of these issues and a useful comparison of definitions used in other treaties see Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd ed, Cambridge University Press 2012) 706-709. 61 LOSC, Art. 162(2)(w) and Art. 165(2)(k). 62 Nodules Exploration Regulations, Reg. 33(1); Sulphides and Crusts Exploration Regulations, Reg. 35(1). 63 Nodules Exploration Regulations, Reg. 33(3); Sulphides and Crusts Exploration Regulations, Reg. 35(3). 64 Ibid. 65 ISA Exploration Regulations, Annex 4, s. 6. 66 Ibid.

300  Research handbook on international marine environmental law vention by the Secretary-General or the Council. This view would seem to be supported by the Seabed Disputes Chamber in its Advisory Opinion on Responsibilities and Obligations in the Area (Seabed Advisory Opinion).67

7. RESPONSIBILITY AND LIABILITY The ISA Exploration Regulations generally reflect the provisions of Annex III of the LOSC in providing that the contractor shall be liable for the actual amount of any damage, including damage to the marine environment, arising out of its wrongful acts or omissions.68 The Regulations provide no guidance as to how these principles might be applied in practice, although useful guidance as to the nature and extent of liability on sponsoring States and contractors was provided by the Seabed Disputes Chamber in its Seabed Advisory Opinion.69 In the context of the development of the Exploitation Regulations, it is likely that there will be a need to develop further guidance on such matters as acceptable heads of claim regarding damage to the marine environment for which liability may potentially arise, as well as on levels of monetary penalties that may be imposed by the Council on contractors for damage to the marine environment.70 Another matter referred to by the Seabed Disputes Chamber was the possibility that, in the absence of a regime of residual liability for environmental damage, there may be cases of uncompensated damage, for example where the contractor has exhausted its capacity to pay, including through insurance, and the sponsoring State is unable to pay, or is not liable. Invoking Article 304 of the LOSC, the Chamber suggested that, to deal with such an eventuality, the ISA may wish to consider the establishment of a ‘trust fund to compensate for the damage not covered.’71 Many of these matters are under active consideration in the context of the Draft Exploitation Regulations. The current draft would require contractors to carry insurance and also envisages the possibility that contractors would be required to provide a financial guarantee covering the estimated costs of a closure plan as well as compliance with any emergency order issued by the Council in the event of an incident causing serious harm to the marine environment. The Council has also indicated its intention to establish a compensation fund, covering the ‘liability gap’ identified by the Chamber, and in 2020 requested the Secretariat to commission a study as to how such a fund might operate. The fund would potentially be financed by a levy on the

In particular, the Chamber rejected a strict liability approach in favour of a due diligence approach defined by ‘obligations of conduct’. Seabed Advisory Opinion (n 14) para. 189. See also decision of the International Court of Justice in Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) (2010) ICJ Rep 14 (Pulp Mills, Merits), para. 187. 68 LOSC, Annex III, Art. 22; Nodules Exploration Regulations, Reg. 30 and Annex 4, s. 16.1; Sulphides and Crusts Exploration Regulations, Reg. 32 and Annex 4, s. 16.1. 69 Seabed Advisory Opinion (n 14) paras 193-195. Unfortunately, space does not allow for a discussion of this topic. Interested readers should see Duncan French, ‘From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor‒the Seabed Disputes Chamber’s 2011 Advisory Opinion’ (2011) 26(4) International Journal of Marine and Coastal Law 525. 70 LOSC, Annex III, Art. 18, para. 2; ISA Exploration Regulations, Annex 4, s. 21.5. 71 Seabed Advisory Opinion (n 14) para. 205. 67

Protecting the marine environment of the deep seabed  301 royalties paid by contractors. In 2021, the Secretariat issued ISA Technical Study 27, comprising a review of possible options for the establishment of an environmental compensation fund.72 This important study outlines the legal and practical issues relating to the establishment of a compensation fund and discusses the critical issues that will need to be considered including, compensable damage, type of liability and exclusions, the standard of proof required, contributing entities, the necessary size of the fund, compensation caps and dispute settlement.

8.

RECOMMENDATIONS FOR THE GUIDANCE OF CONTRACTORS

The ISA Exploration Regulations contain an important provision that enables the Legal and Technical Commission to issue recommendations of a technical or administrative nature to assist contractors in the implementation of the rules, regulations and procedures.73 Contractors are required to observe such recommendations as far as reasonably practicable.74 Although, strictly speaking, these recommendations are non-binding, they do carry significant weight and, in light of the Seabed Advisory Opinion, it is suggested that the contractual commitment to observe the recommendations has become an important element of the due diligence obligations of contractors. Furthermore, the recommendations relating to environmental matters are intended to reflect ‘best environmental practice’, which contractors are bound to apply.75 The first set of recommendations was issued in 2001, one year after the adoption of the first set of Regulations, and dealt with the assessment of possible environmental impacts arising from exploration for polymetallic nodules.76 The recommendations described the procedures to be followed in the acquisition of baseline data, and the monitoring to be performed during and after any activities in the exploration area with potential to cause serious harm to the environment. They were largely based on the recommendations of an international workshop convened by the ISA in 1998, which had recognised the need for clear and common methods of environmental characterisation based on scientific principles.

72 ISA, Study on an Environmental Compensation Fund for Activities in the Area, (ISA Technical Study No. 27, ISA, Kingston, Jamaica, 2021) . 73 Nodules Exploration Regulations, Reg. 39; Sulphides and Crusts Exploration Regulations, Reg. 41. Unlike the “rules, regulations and procedures” referred to in Art. 162(2)(o), recommendations for guidance may be issued by the Legal and Technical Commission without further approval by the Council. Recommendations should be ‘technical or administrative’ in nature. The text of such recommendations must be reported to the Council which, if it finds that a recommendation is ‘inconsistent with the intent and purpose of these Regulations’, may request the Commission to modify or withdraw the recommendation. 74 ISA Exploration Regulations, Annex 4, s. 13.2(e). According to the first Secretary-General of the ISA, the recommendations ‘form the basis of an acceptable code of conduct for contractors.’ See Satya N Nandan, ‘Administering the Mineral Resources of the Deep Seabed’ in David Freestone and others (eds), The Law of the Sea: Progress and Prospects (Oxford University Press 2006) 88. 75 Nodules Exploration Regulations, Reg. 31(2). 76 ISA, Recommendations for the guidance of the contractors for the assessment of possible environmental impacts arising from exploration for polymetallic nodules in the Area, ISBA/7/LTC/1/Rev.1**, 13 February 2002.

302  Research handbook on international marine environmental law The 2001 recommendations were revised in 2010,77 consolidated into a single edition applicable to all resource types in 2013,78 and subsequently revised and updated again in 2016 and 2020 (referred to hereafter as the ‘Environmental Recommendations’).79 The latest Environmental Recommendations take into account new knowledge, including the outcomes of workshops convened by the ISA, and set out the detailed observations and measurements that need to be made while performing specific activities and recommended data collection, reporting and archiving protocols. Importantly, the Environmental Recommendations also elaborate on and clarify the obligation on contractors to undertake environmental impact assessments (EIA) by listing the activities that do and do not require prior EIA and, in the case of the former, providing a template and a process for EIA.80 The majority of activities carried out in the early stages of exploration are considered to have no potential for causing serious harm to the marine environment and thus do not require EIA. Activities for which EIA and subsequent monitoring are required include the use of sediment disturbance systems that create artificial disturbances and plumes on the seafloor, testing of mining components,81 test-mining,82 drilling and large-scale sampling. No contractor has yet announced an intention to carry out test-mining as it has been defined in the Environmental Recommendations and indeed the deployment of a full-scale fully integrated and functional mining system for purposes of testing would be commercially and operationally unfeasible (equivalent to building a new mine to demonstrate that mining can be done). Several contractors have already tested mining components, including collector vehicles at various scales and several others plan to carry out tests in the coming years. A prior EIA and a monitoring programme are to be submitted to the ISA at least one year before the proposed activity takes place. The EIA and the proposed monitoring programme are to be reviewed by the Commission ‘for completeness, accuracy and statistical reliability’,83 following which feedback is provided to the contractor. It is not the function of the Commission to approve or disapprove the activity in question, since any activities proposed by a contractor would already be contemplated within the approved plan of work for exploration. The Commission may, of course, determine that the EIA is incomplete or lacks reliability. In

ISA, Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the Area, ISBA/16/LTC/7, 2 November 2010. 78 ISA, Recommendations for the guidance of the contractors for the assessment of possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/19/LTC/8, 1 March 2013. 79 The latest edition of the Recommendations is: ISA, Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/25/LTC/6/Rev.1, 30 March 2020 and Corr.1, 11 June 2020. 80 It is often overlooked by participants in the so-called biodiversity in areas beyond national jurisdiction (BBNJ) discussions that the ISA template and process for EIA is the most advanced and complete for any activity currently being undertaken in areas beyond national jurisdiction (ABNJ). 81 Testing of mining components is defined as: ‘The use and testing of recovery systems and equipment and the component parts of a mining system, including sea-floor collectors, riser systems and equipment and discharge systems and equipment.’ ISA, Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/25/LTC/6/Rev.1, 30 March 2020, Glossary. 82 Test-mining is defined as ‘[t]he use and testing of a fully integrated and functional mining system including collection systems and water discharge systems.’ ISBA/25/LTC/6/Rev.1 (n 79) Glossary. 83 ISBA/25/LTC/6/Rev.1 (n 79) para. 41(c). 77

Protecting the marine environment of the deep seabed  303 such case, it may well be that a contractor who fails to make necessary adjustments to the EIA in light of the Commission’s determination could be considered to be acting contrary to the best environmental practices. The 2020 edition of the Environmental Recommendations includes important new provisions relating to stakeholder consultation.84 Reflecting the different responsibilities and jurisdictional boundaries between the ISA and sponsoring States, the Environmental Recommendations encourage sponsoring States to undertake stakeholder consultations with respect to the EIA, with a default public consultation process by the Secretariat of the ISA if the sponsoring State notes its intention not to carry out a stakeholder consultation. Since the current edition of the Recommendations was adopted, three sponsoring States – Belgium, India and Nauru – have undertaken stakeholder consultations in relation to proposed tests of mining components. The default (Secretariat) procedure has not been used. In addition to the Environmental Recommendations, the Commission has also issued recommendations relating to the content, format and structure of annual reports,85 reporting of exploration expenditure86 and training.87 The system of ‘recommendations for guidance’, which appeared in the original Nodules Exploration Regulations in 2000 as a compromise between flexibility and adaptive management, and excessively detailed and rigid regulations (which are hard to change), has not been without controversies. These include lingering doubts as to the legally binding nature of recommendations, whether recommendations have retrospective effect (for example where contractors have carried out extensive studies on the basis of one set of recommendations, but these recommendations are later changed in the light of new knowledge), the frequency with which recommendations are amended, and the unfortunate temptation on the part of the Legal and Technical Commission to issue recommendations that go beyond the scope of the regulations and are therefore ultra vires. Given this lack of clarity, the approach taken so far in the context of the Draft Exploitation Regulations, discussed below, is towards the division of subsidiary legislation into Standards (legally binding) and Guidelines (not legally binding). Under the current (2022) Draft Exploitation Regulations,88 Standards, drafted by the Commission and approved by the Council, shall be legally binding on the ISA and contractors. Guidelines, which may be issued by the Commission or by the Secretary-General, shall be limited to administrative or technical matters and are recommendatory in nature.

9.

DRAFT EXPLOITATION REGULATIONS

The process of drafting Exploitation Regulations began with preliminary work in 2011. Following the issue of a workplan, various technical and scoping studies and extensive

Ibid, s. E. ISA, Recommendations for the guidance of contractors on the content, format and structure of annual reports, ISBA/21/LTC/15, 4 August 2015. 86 ISA, Recommendations for the guidance of contractors for the reporting of actual and direct exploration expenditure, ISBA/21/LTC/11, 14 April 2015. 87 ISA, Recommendations for the guidance of contractors and sponsoring States relating to training programmes under plans of work for exploration, ISBA/19/LTC/14, 12 July 2013. 88 ISBA/25/C/WP.1 (n 28); draft Regs 94 and 95. 84 85

304  Research handbook on international marine environmental law stakeholder consultations, which are very well described elsewhere,89 the Legal and Technical Commission submitted a comprehensive set of Draft Exploitation Regulations to the Council in 2019.90 As of 2022, the draft is still under review by the Council (consideration actually began in February 2020, but the Council was unable to meet for the remainder of 2020 and most of 2021). In 2020, the environmental aspects of the Draft Exploitation Regulations were allocated to an informal working group.91 That group was unable to meet in 2021, but started its work in early 2022, based on a road map for work on the draft regulations adopted by the Council in December 2021.92 In February 2022, the facilitator of the informal working group released a revised text of Parts IV and VI and Annexes IV, VII and VIII of the Draft Exploitation Regulations for consideration by the working group.93 Although the Council was unable to meet in 2021, the Legal and Technical Commission continued to operate and was able to advance its work on the development of the necessary standards and guidelines to support the implementation of the Draft Exploitation Regulations. Two rounds of stakeholder consultation were held between August 2020 and July 2021 and the Commission drafted and reviewed 10 separate standards and guidelines which it considered to be priority phase one standards and guidelines to be adopted with the Draft Exploitation Regulations.94 Six of these standards and guidelines related specifically to environmental aspects.95 Although the Council has only just begun substantive negotiations on the environmental provisions in the Draft Exploitation Regulations, the most controversial issues seem to relate to processes and the content of relevant standards and guidelines rather than the substantive legal obligations to protect and preserve the marine environment. This is perhaps not surprising, since the provisions relating to the marine environment contained in the LOSC (Part XI and Annex III) are already quite comprehensive. The regulations do not, and cannot, change the basic legal provisions on liability and responsibility for environmental damage. Of particular concern are the perceived need to consider plans of work for exploitation in the context of a Regional Environmental Management Plan (see Section 10 below), the content of EIAs and the need for and processes for stakeholder consultation at a global level. The latter seems particularly contentious, with some delegations advocating for a fully internationalised

For an excellent summary and references, see Jaeckel (n 8) 152-154. ISBA/25/C/WP.1 (n 28). 91 ISA, Decision of the Council concerning working methods to advance discussions on the draft regulations for exploitation of mineral resources in the Area, ISBA/26/C/11, 21 February 2020. 92 ISA, Statement by the President of the Council on the work of the Council during its resumed twenty-sixth session ISBA/26/C/13/Add.1,10 December 2021, Annex. 93 ISA, Draft regulations on exploitation of mineral resources in the Area: Parts IV and VI and related Annexes (Facilitator’s Draft), ISBA/27/C/IWG/ENV/CRP.1, 8 February 2022. 94 ISA, Report of the Chair of the Legal and Technical Commission summarising stakeholder feedback on the phase one draft standards and guidelines, ISBA/27/C/2, 31 January 2022. 95 ISA, Standard and guidelines for the environmental impact assessment process, ISBA/27/C/4, 31 January 2022; ISA, Guidelines for the preparation of an environmental impact statement, ISBA/27/C/5, 31 January 2022; ISA, Guidelines for the preparation of an environmental management and monitoring plan, ISBA/27/C/6, 31 January 2022; ISA, Standard and guidelines on the development and application of environmental management systems, ISBA/27/C/7, 31 January 2022; ISA, Standard and guidelines on the form and calculation of an environmental performance guarantee, ISBA/27/C/10, 31 January 2022; ISA, Guidelines for the establishment of baseline environmental data, ISBA/27/C/11, 31 January 2022. 89 90

Protecting the marine environment of the deep seabed  305 process, managed by the ISA Secretariat. Others point to the costs and inefficiencies of such a process, considering that stakeholder consultation should be a sponsoring State responsibility, as part of the obligation of due diligence. An added complication is that the negotiations are taking place in a highly polarised atmosphere, which means that discussions on highly technical matters such as the detailed content of EIAs and guidelines on baseline data, which could best be conducted by scientific experts, have become heavily politicised.

10.

ENVIRONMENTAL MANAGEMENT

So far, the discussion has focused on the environmental regulation of activities in the Area (as defined in the LOSC) and on the responsibilities and obligations of contractors, sponsoring States and the ISA in relation to those activities. The LOSC, however, allows great flexibility to the ISA in adopting measures aimed at the protection of the marine environment from the harmful effects of such activities. Under Article 165, para. 2(d) for example, the Legal and Technical Commission is required to ‘prepare assessments of the environmental implications of activities in the Area’, while under para. 2(e) it shall ‘make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in the field’. This is perhaps logical as the Legal and Technical Commission is the only competent expert body within the ISA regulatory system that receives, through the annual reports submitted by contractors, a complete overview of activities in the Area, including ongoing environmental work. Although the Commission has not so far published a global environmental assessment, it regularly comments on the environmental implications of activities in the Area in the context of its reports to the Council as well as in its work on the development of environmental management plans. One example of progressive environmental management is the Clarion Clipperton Zone Environmental Management Plan (CCZ-EMP), which not only implements ecosystem-based management at a regional scale, but also reflects the dynamic and flexible nature of the environmental regime for seabed mining. The plan, which was the first regional-scale environmental management plan for the deep seabed, was proposed by the Legal and Technical Commission in 201196 for the Clarion-Clipperton Zone in the Eastern Central Pacific Ocean. This area of the seabed, which is some 13.5 million km2 in size, at depths of 4,000–6,000 metres, is a prime location for commercially viable deposits of polymetallic nodules and has been the subject of scientific investigation, mineral prospecting and exploration since the 1960s. It is the location of most of the exploration contracts issued by the ISA for polymetallic nodules.

96 The genesis of the plan was a 2007 proposal by a group of scientists to establish a representative network of protected areas to protect biodiversity structure and ecosystem functioning of the CCZ from the potential impact of human activities. For background and a description of the process leading to the recommendation by the Commission see Michael W Lodge, ‘Some Legal and Policy Considerations Relating to the Establishment of a Representative Network of Protected Areas in the Clarion-Clipperton Zone’ (2011) 26(3) International Journal of Marine and Coastal Law 463.

306  Research handbook on international marine environmental law The CCZ-EMP was approved by the Council in July 2012 in a decision97 that not only recalled the provisions of Articles 145, 162 and 165 of the LOSC, but also placed the environmental responsibilities of the ISA in the context of ongoing discussions at the United Nations General Assembly (UNGA) in relation to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. In particular, the decision recalled General Assembly resolution 63/111 of 12 February 2009, in which the Assembly reaffirmed: the need for States, individually or through competent international organizations, to urgently consider ways to integrate and improve, based on the best available scientific information and the precautionary approach and in accordance with the Convention and related agreements and instruments, the management of risks to the marine biodiversity of seamounts, cold water corals, hydrothermal vents and certain other underwater features;98

The Council also considered that a comprehensive environmental management plan at the regional level was one of the measures appropriate and necessary to ensure the effective protection of the marine environment of the Area from harmful effects that might arise from activities in the Area, in accordance with Article 145 of the LOSC. The guiding principles on which the CCZ-EMP is based are stated as: (a) the common heritage of mankind, (b) the precautionary approach, (c) protection and preservation of the marine environment, (d) prior environmental impact assessment, (e) conservation and sustainable use of biodiversity, and (e) transparency.99 It notes that, whilst the Clarion-Clipperton Zone is the focus of intense exploration activity, best-practice management of damaging human activities in the marine environment generally involves the use of spatial management tools, including the protection of areas thought to be representative of the full range of habitats, biodiversity and ecosystem structures and functions within the management area.100 Perhaps the most significant feature of the plan is that it identifies a network of nine (expanded in 2021 to 13) areas that are designated as ‘areas of particular environmental interest’ and in which no mining is allowed. These nine areas, each of which is approximately 160,000km2 in size, include a wide range of the different habitat types present in the Clarion-Clipperton Zone.101

97 ISA, Decision of the Council relating to an environmental management plan for the Clarion-Clipperton Zone, ISBA/18/C/22, 26 July 2012. 98 UNGA Res 63/111, Oceans and the law of the sea, UN Doc A/RES/63/111, 12 February 2009, para. 132. 99 ISBA/18/C/22 (n 97) pt. I, s. C. 100 Ibid, paras 21 and 22. In this regard also, the recommendations for guidance of contractors provide for the use of environmental baseline data for ‘regional environmental management’, including the need to address molecular taxonomic standardisation, whilst the management plan calls for cooperative scientific efforts. A first step towards these aims was taken by convening a taxonomy exchange workshop in Wilhelmshaven, Germany from 10-16 June 2013. 101 The plan makes an explicit link between the establishment of the areas of particular environmental interest and the achievement of the goals and targets set forth in the Plan of Implementation of the 2002 Johannesburg World Summit on Sustainable Development including halting biodiversity; establishing ecosystem approaches to management and developing marine protected areas, in accordance with international law and based on the best scientific information available, including representative networks by 2012. See also UN Doc A/RES/63/111 (n 98), para. 134. For a complete description of the process leading to the establishment of the environmental management plan and the designation of the nine areas of particular environmental interest, see Michael W Lodge and others, ‘Seabed Mining: International

Protecting the marine environment of the deep seabed  307 The CCZ-EMP has been subjected to regular review by the Legal and Technical Commission. The most recent review took place between 2019 and 2021 and resulted in the approval by the Council of the designation of four additional areas of particular environmental interest on the basis of a comprehensive report by the Commission,102 based in turn on a series of international scientific workshops and initiatives undertaken under the auspices of ISA. The decision of the Council is noteworthy for several reasons.103 First, it places the plan firmly within the context of Article 145 of the LOSC by recalling that a comprehensive environmental management plan at the regional level is one of the measures appropriate and necessary to ensure effective protection of the marine environment of the Area from harmful effects that may arise from activities in the Area. Second, it places the plan within the context of Article 143 by encouraging the conduct of marine scientific research, including in the areas of particular environmental interest, and requesting the Secretary-General of the ISA to facilitate capacity development for marine scientific research in the Clarion-Clipperton Zone, for the benefit of developing States and technologically less-developed States. Thirdly, it associates the plan with the key strategic documents of the ISA, including its Strategic Plan104 and high-level action plan,105 and the Action Plan in support of the United Nations Decade of Ocean Science for Sustainable Development.106 In adopting the CCZ-EMP, and in its most recent review, both the Legal and Technical Commission and the Council have shown themselves to be willing to go beyond a strict and limited interpretation of their powers and functions and to take a broad, purposive approach to the application of the precautionary approach and the principles of integrated, ecosystem-based management of marine space. This approach is consistent with the general approach taken by the Seabed Disputes Chamber in its Seabed Advisory Opinion. Furthermore, by making explicit linkages with commitments expressed in soft law instruments, such as the Johannesburg Plan of Implementation107 and resolutions of the General Assembly, the CCZ-EMP demonstrates

Seabed Authority Environmental Management Plan for the Clarion-Clipperton Zone: A Partnership Approach’ (2014) 49 Marine Policy 66. 102 ISA, Review of the implementation of the Environmental Management Plan for the Clarion-Clipperton Zone, ISBA/26/C/43, 1 June 2021. 103 ISA, Decision of the Council of the International Seabed Authority relating to the review of the environmental management plan for the Clarion-Clipperton Zone, ISBA/26/C/58, 10 December 2021. 104 ISA, Decision of the Assembly relating to the Strategic Plan of the Authority for the period 2019-2023, ISBA/24/A/10, 27 July 2018. 105 ISA, Decision of the Assembly of the International Seabed Authority relating to the implementation of the strategic plan for the Authority for the period 2019–2023, ISBA/25/A/15, 24 July 2019; and Corr.1, 30 September 2019. 106 ISA, Action plan of the International Seabed Authority in support of the United Nations Decade of Ocean Science for Sustainable Development, ISBA/26/A/4, 26 May 2020. 107 Although agreed after the environmental management plan was adopted, the plan is also consistent with Target 11 of the Aichi biodiversity targets adopted by the Parties to the Convention on Biological Diversity at its COP10 in Nagoya, Japan in 2010. This calls for 10 percent of coastal and marine areas, ‘especially areas of particular importance for biodiversity and ecosystem services, to be 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.’ The areas protected from mining under the environmental management plan for the Clarion-Clipperton Zone cover approximately 30 percent of the Zone and thus meet or exceed this target at the regional scale.

308  Research handbook on international marine environmental law that the regime for the Area is not divorced from the broader environmental governance regime for the ocean as a whole. Following the adoption of the CCZ-EMP, increased attention was given to the need to design a coordinated approach to the development of similar management plans in other deep seabed regions subject to exploration activity. By 2018, the Council recognised that the development and implementation of regional environmental management plans (which were now called REMPs) in the Area are part of the ISA’s policy framework for environmental management. The Council also recognised that the objective of REMPs is to provide the ISA, as well as contractors and their sponsoring States, with a proactive area-based management tool to support informed decision-making that balances resource development with conservation. REMPs can also provide the ISA with a clear and consistent mechanism to identify particular areas thought to be representative of the full range of habitats, biodiversity and ecosystem structures and functions within the relevant management area, and provide those areas with appropriate levels of protection, thus helping the ISA to meet internationally agreed targets, such as Aichi Biodiversity Target 11.108 Based on these considerations, the ISA in 2019 adopted a strategy for the progressive development of REMPs for three priority regions, namely the northern part of the Mid-Atlantic Ridge, the Indian Ocean triple junction and nodule-bearing province, and the Western Pacific Ocean.109 The strategy involves a standardised and transparent process of collecting, compiling, and analysing available scientific data for each region through a series of international scientific workshops, prior to review and evaluation by the Legal and Technical Commission. The development, implementation and review of REMPs is also a key element of Strategic Direction 3 (Protect the Marine Environment) in the Strategic Plan of the ISA for the period 2019-2023.110

11.

UNANSWERED QUESTIONS AND FUTURE DEVELOPMENTS

The ISA has made commendable progress in developing a comprehensive and precautionary legal regime for managing the environmental impacts of deep seabed mining. The ISA Regulations for prospecting and exploration and the detailed Environmental Recommendations for guidance issued by the Legal and Technical Commission further contribute to the effective implementation of the broad environmental principles embodied in the modern law of the sea, including by specifying in the most comprehensive terms the details of the obligation to conduct prior environmental impact assessments for activities that may have the potential to have adverse impacts on the marine environment. In addition, the ISA has significantly advanced its work on regional environmental management and in so doing demonstrated its 108 See ISA, Preliminary strategy for the development of regional environmental management plans for the Area, ISBA/24/C/3, 16 January 2018. 109 ISA, Implementation of the Authority’s strategy for the development of regional environmental management plans for the Area, ISBA/25/C/13, 29 January 2019. 110 ISBA/24/A/10 (n 104) Annex I, Strategic direction 3.2.: ‘Develop, implement and keep under review regional environmental assessments and management plans for all mineral provinces in the Area where exploration or exploitation is taking place to ensure sufficient protection of the marine environment as required by, inter alia, article 145 and Part XII of the Convention.’

Protecting the marine environment of the deep seabed  309 ability to apply a precautionary approach to resource development, using its mandate in a flexible and creative manner. In fact, it is quite remarkable that only ten years after the adoption of the first ad hoc regional environmental management plan, REMPs have become part of the established lexicon for ocean governance and are seen by many as an essential pre-requisite before activities in the Area can be authorised. What is more worrying is the refusal of many environmental groups to recognise the level of protection afforded by the designation of areas of particular environmental interest by an institution with a specific legal mandate to manage an area beyond national jurisdiction.111 The focus now is on the development of the Exploitation Regulations.112 The Draft Exploitation Regulations take established and well-developed concepts of environmental regulation and apply them to activities in the Area. These concepts include, for example, the requirement for prior EIA and best practice obligations, as well as a requirement for contractors to have an environmental management and monitoring plan, a closure plan, and provisions relating to financial guarantees, insurance and an environmental compensation fund. None of these measures are particularly new or controversial and are in fact reflective of the proper application of the precautionary approach to the traditional environmental hierarchy of prevention, minimisation, mitigation and compensation. What is new, and potentially ground-breaking, is the application of this system on a global scale to an activity beyond national jurisdiction. This certainly raises many procedural and practical complications that will need to be addressed. What, for example, is the proper relationship between the obligation of the sponsoring State to undertake an EIA and the responsibilities of the ISA in that regard? How will the ISA need to evolve to meet its regulatory responsibilities under the Exploitation Regulations and how will this be financed? How can political decision-making in the Council take due account of expert recommendations from the Legal and Technical Commission and the Secretariat of the ISA? Which organ is best equipped to carry out the day-to-day regulatory functions of the ISA? The real test, not only for the ISA, but perhaps even more so for other activities in areas beyond national jurisdiction that lack the institutional underpinning of Part XI of the LOSC,113 is whether an effective regime can be agreed between the many different competing interests reflected in the States Parties to the LOSC. The goal should be a regime that is crafted in a way that fully respects the proper application of the precautionary approach114 yet is consistent with the social, economic and environmental aspirations of the Sustainable Development Goals (SDG).115 111 For example, there is no reference to the CCZ-EMP in the IUCN World Database on Protected Areas managed by the UNEP World Conservation Monitoring Centre (UNEP-WCMC). 112 ISA, ISBA/25/C/WP.1 (n 28) 113 The BBNJ process is a prime example. 114 The precautionary principle was originally intended as a framework for action in the face of scientific uncertainty – not for using an absence of evidence as a reason not to act. More and more, and particularly in the marine context, it is being wrongly applied as a reason for abstention and inaction. The default position for many environmental activists is to invoke the precautionary approach as a reason for allowing nothing to proceed in the face of uncertainty, which by definition always exists. 115 Particularly SDG14, relating to oceans, but also other SDGs are relevant when considering the trade-offs of deep-sea mineral resource development at a global scale. An independent report, published in 2021, indicated that the ISA already contributes meaningfully to 12 of the 17 SDGs. See ISA, The Contribution of the International Seabed Authority to the Achievement of the 2030 Agenda for Sustainable Development (ISA 2021) .

310  Research handbook on international marine environmental law More than 40 years of continuous deep-sea exploration – the last 25 years under the administration of the ISA – has made an immeasurable contribution to scientific knowledge of the deep seabed and provides a solid platform for effective environmental management of activities in the Area. The inherently evolutionary design of Part XI of the LOSC has already allowed the ISA to develop innovative and progressive environmental solutions in the form of REMPs. The same approach should further allow the ISA to further develop its environmental regulations in line with new scientific knowledge and in the light of new evidence relating to the actual impact of mining activities as they progress, as well as to be proactive in environmental regulation rather than reactive.

14. Protecting marine biodiversity and vulnerable marine ecosystems Rosemary Rayfuse

1. INTRODUCTION In 2010, the Census of Marine Life described the ocean as containing ‘an unanticipated riot of species’.1 After a decade long survey, at least 250,000 marine species were confirmed with at least one million ‘kinds of marine life that earn the rank of species’ estimated still to be found.2 Indeed, one detailed survey suggested that the ocean could contain up to 2.2 million species, at least 91 percent of which still awaited description.3 Of the species that have been identified, which include everything from the largest whales to the smallest microbes, bacteria and archea found in all ocean areas, many are rare and rates of endemism are high.4 While significant advances in our knowledge of the oceans and marine life continue to be made, there is still much we do not know, particularly regarding the deep ocean.5 Indeed, it is estimated that more than 80 percent of the ocean and the life contained therein remains unmapped, unobserved and unexplored.6 The term ‘marine biodiversity’ refers to the variability of marine living organisms and the ecological complexes of which they are part.7 In other words, marine biodiversity includes both individual species and ecosystems, as well as their variability.8 Marine biodiversity provides long-term benefits for humans, both in terms of food security and potential economic value,9 and of the critical ecosystem services provided.10 Maintaining marine biodiversity Jesse H Ausubel, Darlene Trew Crist and Paul E Waggoner (eds), First Census of Marine Life 2010: Highlights of a Decade of Discovery (Census of Marine Life 2010) . 2 Ibid. 3 Camilo Mora and others, ‘How Many Species Are There on Earth and in the Ocean?’ (2011) 9(8) PLoS Biology e1001127. 4 Census of Marine Life 2010 (n 1). 5 Eva Paulus, ‘Shedding Light on Deep-Sea Biodiversity—A Highly Vulnerable Habitat in the Face of Anthropogenic Change’ (2021) 8 Frontiers in Marine Science 1, . 6 Maja Vinde Folkersen, Christopher M Fleming and Syezlin Hasan, ‘The Economic Value of the Deep Sea: A Systematic Review and Meta-Analysis’ (2018) 94 Marine Policy 71. 7 Convention on Biological Diversity (signed 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD), Art. 2. 8 Rosemary Rayfuse, ‘Biological Resources’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law (OUP 2007) 362, 366. 9 Manfred Walser and Christian Neumann, The Value of our Oceans: The Economic Benefits of Marine Biodiversity and Healthy Ecosystems (World Wildlife Fund 2008) 15. 10 Boris Worm and others, ‘Impacts of Biodiversity Loss on Ocean Ecosystem Services’ (2006) 314 Science 787; Andrew R Thurber and others, ‘Ecosystem Function and Services Provided by the Deep Sea’ (2014) 11(14) Biogeosciences 3941. 1

311

312  Research handbook on international marine environmental law and the health of bio-diverse marine ecosystems is thus crucially important both to human endeavour and to human existence.11 However, even while the full extent of the ocean’s biodiversity and the role of marine ecosystems is not fully known or understood, report after report confirms that human activities are having serious detrimental impacts on both marine biodiversity and marine ecosystems.12 Resource over-exploitation, habitat destruction, and marine pollution, all continue to pose individual, cumulative and synergistic threats to marine life. These ‘classical’ threats are now compounded by climate change and associated ocean acidification and deoxygenation.13 This chapter examines the international legal framework for the protection of marine biodiversity and vulnerable marine ecosystems with a view to assessing its adequacy to deal with these threats. In particular, it examines the challenges associated with implementing an ecosystem approach to the protection of marine biodiversity, particularly in areas beyond national jurisdiction, in the context of the prevailing single sector approach to management. The chapter begins with a brief description of the legal framework for the protection of marine biodiversity including the requirement of an ecosystem approach. It then examines the implementation of the ecosystem approach in the context of responses to resource exploitation, habitat destruction, marine pollution and climate change focusing, in particular, on the high seas fisheries and deep seabed mining contexts. It concludes with an examination of emerging approaches aimed at overcoming the sectoral divide including through cross-sectoral coordination and cooperation and the possible adoption of a new international agreement on the protection of marine biodiversity in areas beyond national jurisdiction.

2.

THE LEGAL FRAMEWORK FOR THE PROTECTION OF MARINE BIODIVERSITY

While the United Nations Convention on the Law of the Sea14 (LOSC) provides the overarching global legal framework for the oceans, it does not specifically include the term ‘marine

Edward Goodwin, ‘Threatened Species and Vulnerable Marine Ecosystems’ in Donald R Rothwell and others (eds), The Oxford Handbook on the Law of the Sea (OUP 2015) 799, 800. 12 H-O Pörter and others (eds), Intergovernmental Panel on Climate Change, Special Report on the Ocean and Cryosphere in a Changing Climate, Summary for Policy Makers (IPCC 2019) (SROCC); UN, The Second World Ocean Assessment (WOA II) 2021, (WOAII); ES Brondizio and others (eds), Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), Global assessment report on biodiversity and ecosystem services (IPBES Secretariat 2019) (IPBES Report); Food and Agriculture Organisation, State of World Fisheries and Aquaculture 2020 (FAO 2020) (SOFIA 2020) 7; D Laffoley and JM Baxter (eds), Explaining Ocean Warming: Causes, Scale, Effects and Consequences (IUCN 2016) ; UN, The First Global Integrated Marine Assessment: World Ocean Assessment I, (UN 2015) ; Census of Marine Life 2010 (n 1). 13 Casey C O’Hara, Melanie Frazier and Benjamin S Halpern, ‘At-Risk Marine Biodiversity Faces Extensive, Expanding, and Intensifying Human Impacts’ (2021) 372(6537) Science 84. 14 1982 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 11

Protecting marine biodiversity and vulnerable marine ecosystems  313 biodiversity’. Rather it establishes obligations with respect to the conservation of ‘marine living resources’ and the protection and preservation of the marine environment. With respect to the former, while much of the focus is on regulation of exploitation of targeted fish stocks, States are also required to manage the effects of any fishery on associated or dependent species.15 With respect to the latter, the broad obligation to protect and preserve the marine environment16 includes not only protection from pollution17 but also the obligation 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.18 States are also to ensure that technologies under their jurisdiction or control do not result in the introduction of harmful alien species.19 These general obligations are further buttressed by the more specific obligations relating to the protection of natural resources, avoidance of interference with the ecological balance of the marine environment, and the prevention of damage to the flora and fauna of the deep seabed found in Part XI of the LOSC20 and the 1994 Implementing Agreement.21 Taken together, these provisions can be read as requiring the conservation and preservation of all parts of the marine environment, including marine biodiversity. It was not until a decade after the conclusion of the LOSC that the precise terminology of biodiversity was enshrined in the Convention on Biological Diversity (CBD).22 The CBD addresses the protection and sustainable use of the components of biological diversity, including marine biodiversity.23 In terms of its jurisdictional scope, the CBD covers marine biodiversity within the limits of national jurisdiction as well as processes and activities carried out under the jurisdiction or control of the member States.24 In areas beyond national jurisdiction (ABNJ), however, the CBD applies only to processes and activities carried out under the jurisdiction or control of the member States.25 It does not, per se, protect the processes and components of biodiversity that reside in ABNJ. Protection of marine biodiversity in ABNJ is thus left to be governed by the overarching LOSC framework together with the existing range of global and regional sectoral and conservation-oriented instruments. Sectoral agreements relevant to the protection of marine biodiversity include those relating to high seas fisheries and the establishment of regional fisheries management organisations (RFMOs),26 and agreements relating to shipping and marine pollution such as the MARPOL

LOSC, Arts 61(4) and 119(1)(b). LOSC, Art. 192. 17 LOSC, Art. 194. 18 LOSC, Art. 194(5). 19 LOSC, Art. 196. 20 LOSC, Art. 143. 21 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994 by UN Doc A/Res/48/263, annex, entered into force 28 July 1996) 1836 UNTS 3 (1994 Implementing Agreement). 22 CBD (n 7). 23 CBD, Art. 2. 24 CBD, Arts 1 and 4. 25 CBD, Arts 1 and 4. 26 For discussion see, Rosemary Rayfuse, ‘Regional Fisheries Management Organisations’ in Donald R Rothwell and others (eds), The Oxford Handbook on the Law of the Sea (OUP 2015) 439. 15 16

314  Research handbook on international marine environmental law Convention,27 the Ballast Water Convention,28 and the London Convention29 and its London Protocol.30 Also included here is the regime for deep seabed mining established pursuant to Part XI of the LOSC and the 1994 Implementing Agreement. Conservation-oriented agreements relevant to the protection of marine biodiversity include those relating to particular species such as whales,31 or groups of species such as migratory species,32 or to particular habitats in areas under national jurisdiction (AUNJ) such as wetlands33 and other areas of important natural heritage like the Great Barrier Reef.34 Also relevant to the protection of marine biodiversity are regional agreements such as the Barcelona Convention and its subsidiary agreements,35 the OSPAR Convention,36 the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention),37 and the regional agreements adopted under the United Nations Environment Programme (UNEP) Regional Seas Programme,38 as well as the Polar Bears Agreement.39 There is no doubt that this plethora of instruments has the potential to contribute both individually and, in some cases, through collective collaborative arrangements, to the protection of

1973 International Convention for the Prevention of Pollution from Ships 1340 UNTS 184 as amended by the Protocol of 1978 relating to the International Convention for the prevention of pollution from ships (adopted 17 February 1978, entered into force 2 October 1983) 1340 UNTS 61. 28 International Convention for the Control and Management of Ships’ Ballast Water and sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36, 16 February 2004. 29 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120. 30 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 8 November 1996, entered into force 24 March 2006) (1997) 36 International Legal Materials 1. 31 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72. 32 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1973, entered into force 1 November 1983) 1651 UNTS 333 and its various relevant subsidiary agreements. For discussion of this regime see Richard Caddell, ‘Marine Mammals and Migratory Species’, Chapter 15 in this volume. 33 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 241. 34 Convention for the Protection of the World Cultural and Natural Heritage (adopted 16 November 1972, entered into force 17 December 1975) 1037 UNTS 151. 35 Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, into force 1978, amended and renamed 10 June 1995, entered into force 9 July 2004) 1102 UNTS 27. For discussion of the Barcelona Convention regime see, Nilufer Oral, ‘Mapping Progress and Challenges for the UNEP Regional Sea Programme for the Mediterranean’, Chapter 7 in this volume. 36 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67. 37 Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47. 38 For a comprehensive discussion see, Nilufer Oral, ‘Forty Years of the UNEP Regional Seas Programme: From Past to Future’ in Rosemary Rayfuse (ed) Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 339. See further, . 39 Agreement on the Conservation of Polar Bears (adopted 15 November 1973, entered into force 26 May 1976) UNTS Registration I-50540-0800000280363c19.pdf, (1974) 13 International Legal Materials 13. 27

Protecting marine biodiversity and vulnerable marine ecosystems  315 marine biodiversity both within and beyond national jurisdiction.40 However, the management approaches taken by these instruments primarily revolve around single species or single sector management. It is now generally recognised that a more holistic approach to the protection of marine biodiversity is required through the application of an ecosystem approach to management. A seemingly intuitive approach, the ecosystem approach recognises that the management and regulation of human activities that affect species, ecosystems and natural processes must be based on scientific knowledge of the wider systems in which such species, ecosystems or processes are situated, and that management measures must be designed and continuously adapted with consideration to the scales and dynamics (including the lack of full understanding) of ecosystem characteristics.41 The scientific ideas on which the ecosystem approach is premised can be traced to the first half of the 20th century and elements of it can be discerned in the LOSC provisions requiring protection of species dependent on and related to targeted fish stocks,42 protection and preservation of rare or fragile ecosystems and the habitat of depleted, threatened or endangered species.43 Similarly, the ideas underlying the approach are reflected in the requirements to prevent interference with the ecological balance of the marine environment and to prevent damage to its flora and fauna in the deep seabed mining context.44 The ecosystem approach famously forms the core objective of the CAMLR Convention which was adopted in 1980. However, it only gained general recognition in 1995 when the parties to the CBD decided that the ecosystem approach ‘should be the primary framework of action to be taken under the Convention’.45 They subsequently adopted a ‘common understanding’ of the approach and called on all governments and international organisations to apply it.46 Since then the ecosystem approach has come to feature particularly strongly in the context of international marine environmental law, having been endorsed, at the global level, in the UN Fish Stocks Agreement (FSA)47 and in the emerging requirements of the

40 Jeff Ardron and others, ‘The Sustainable Use and Conservation of Biodiversity in ABNJ: What Can be Achieved using Existing International Agreements?’ (2014) 49 Marine Policy 98. 41 R Edward Grumbine, ‘What Is Ecosystem Management?’ (1994) 8 Conservation Biology 27; Katie K Arkenna, Sarah C Abramson and Bryan M Dewsbury, ‘Marine Ecosystem-based Management: From Characterisation to Implementation’ (2006) 4(10) Frontiers in Ecological Environment 525. 42 LOSC, Arts 61(4) and 119(1)(b). 43 LOSC, Art. 194(5). 44 LOSC, Art. 145. 45 CBD, Decision II/8, Preliminary Considerations of Components of Biological Diversity Particularly under Threat and Action which could be taken under the Convention (Jakarta, 17 November 1995) para. 1. On earlier expressions of the ecosystem approach or ‘ecosystems thinking’ in international law and policy see, Arie Trouwborst, ‘The Precautionary Principle and the Ecosystem Approach in International Law: Differences, Similarities and Linkages’ (2009) 18 Review of European Community and international Environmental Law 26. 46 CBD, ‘Ecosystem Approach’, Decision V/6, 26 May 2000 and CBD, ‘Ecosystem Approach’ Decision VII/11, 13 April 2004. See also, Secretariat of the Convention on Biological Diversity, The Ecosystem Approach: CBD Guidelines (Secretariat of the Convention on Biological Diversity 2004) . 47 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 88, Preamble and Art. 5.

316  Research handbook on international marine environmental law International Seabed Authority’s (ISA) Mining Code.48 At the regional level, too, the ecosystem approach has increasingly been endorsed by regional fisheries management organisations and regional seas agreements.49 Indeed, the ecosystem approach is now considered essential to increasing the adaptability and resilience of individual species and broader ecosystems to climate change and other stressors.50 The application of the ecosystem approach is, however, anything but straightforward.51 The various, and varying, features and complexities of both natural ecosystems and human-created institutional, legal and administrative systems governing them make the effective implementation of the ecosystem approach both complex and highly challenging.52 Complex data requirements, potentially prohibitive monitoring costs, and a general lack of scientific knowledge of ecosystem dynamics and/or their responses to human interventions make ecosystem-based management notoriously difficult. Particularly in the marine biodiversity context, it is made even more difficult by the division of jurisdictional competences in respect of areas under and areas beyond national jurisdiction.53 The ocean, we know, is a physical and biological system incapable of recognising the zonal divisions imposed upon it by the LOSC, making an ecosystem approach all the more important. Despite these challenges, the ecosystem approach is now well established as a guiding principle in the protection of marine biodiversity. Implementing it requires ecosystem-based management that recognises the needs of an ecosystem as a whole, as opposed to needs pertaining only to the particular target of management, through incorporation of consideration of non-target dependent and related species as well as habitats and ecological communities. As Warner puts it, ecosystem-based management has added ‘a new dimension to marine environmental protection which has previously focused on prevention and control of marine pollution and the protection of single species.’54 In theory, at least, by maximising ecosystem resources and services, the ecosystem approach makes for their more efficient and sustainable use. In practice, the challenge lies in operationalising the concept, particularly, as discussed below, in the context of existing single-sector approaches to ocean management. For discussion see, Michael Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume. See also, Maila Guilhon, Francesca Montserrat and Alexander Turra, ‘Recognition of Ecosystem-Based Management Principles in Key Documents of the Seabed Mining Regime: Implications and Further Recommendations’ (2021) 78(3) ICES Journal of Marine Science 884. 49 See, eg, ‘Towards an Ecosystem Approach to the Management of Human Activities’ Record of the First Joint Ministerial Meeting of the Helsinki and OSPAR Commissions (Bremen 26 June 2003) (OSPAR/HELCOM statement), Annex 5). See also, Rayfuse, ‘Regional Fisheries Management Organisations’ (n 26). 50 Luciana Yokoyama Xavier and others, ‘Waves of Change: Towards Ecosystem-Based Management to Climate Change Adaptation’ (2022) 14 Sustainability 1317. . 51 David Langlet and Rosemary Rayfuse, ‘Challenges in Implementing the Ecosystem Approach: Lessons Learned’ in David Langlet and Rosemary Rayfuse (eds) The Ecosystem Approach in Ocean Planning and Governance: Perspectives from Europe and Beyond (Brill 2019). 52 For analyses of these challenges and complexities see, David Langlet and Rosemary Rayfuse (eds) The Ecosystem Approach in Ocean Planning and Governance: Perspectives from Europe and Beyond (Brill 2019). 53 Rosemary Rayfuse, ‘Crossing the Sectoral Divide: Modern Environmental Tools for Addressing Conflicting Uses on the Seabed’ in Catherine Banet (ed) The Law of the Seabed: Access, Uses, and Protection of Seabed Resources (Brill Nijhoff 2020) 527. 54 Robin Warner, ‘Conserving Marine Biodiversity in the Global Commons: Co-evolution and Interaction with the Law of the Sea’ (2014) Frontiers in Marine Science 1, 5. 48

Protecting marine biodiversity and vulnerable marine ecosystems  317

3.

RESOURCE EXPLOITATION AND MARINE BIODIVERSITY

Turning to the challenges faced by marine biodiversity, there is no question that exploitation of marine resources accounts for the greatest impacts on marine biodiversity.55 Fishing, in particular, has been identified as the activity that has had the largest impact on marine biodiversity in the past 50 years, through impacts on target as well as on non-target species, habitats and ecosystems.56 Combined with the effects of climate change, fishing is expected to remain a leading driver in the worsening state of marine biodiversity.57 Future commercial mining activities, particularly in the deep seabed beyond national jurisdiction, are projected to contribute further to species loss in the marine environment.58 Indeed, scientists are predicting that seabed mining will inevitably result in biodiversity loss, not least because of the high degree of endemism amongst seabed species.59 With respect to fish, according to the FAO, more than 34 percent of global fish stocks are overfished while a further 60 percent are being fished at their maximum sustainable limit.60 Over-exploitation and unsustainable levels of fishing have contributed not only to global declines in fish stocks, but also to negative impacts on other marine species and biodiversity, as well as a reduction in fish productivity and ecosystem functions.61 By-catch, caused by non-selective fishing methods, has had significant impacts on both non-target fish and on non-fish species, including the indiscriminate catch of marine mammals and other non-target species in large-scale pelagic driftnets that led to the adoption by the UN General Assembly (UNGA) in 1991 of a global moratorium on the use of such driftnets.62 In the high seas fisheries context, RFMOs and other arrangements generally manage stocks on a species-specific (ie tuna) or geographic (ie Northwest Atlantic) basis. However, even in managing targeted fish stocks, RFMOs must be alive to the problem of by-catch of non-targeted species. Traditionally, the most basic measures adopted relate to by-catch of other fish species. In some RFMOs, fisheries for targeted fish stocks are to stop where pre-set levels of by-catch are reached. Measures also regulate gear type and use, and whether by-catch is to be retained or discarded, with a general preference being for retention to enable more holistic management of stocks. Since the adoption of the FSA, however, a number of RFMOs have specifically updated their management mandates to require an ecosystem approach that takes into account the effects of fishing activities on non-targeted dependent and associated species

IPBES Report (n 12). Ibid. 57 Ibid. 58 Ibid. See also Kathryn A Miller and others, ‘An Overview of Seabed Mining including the Current State of Development, Environmental Impacts, and Knowledge Gaps’ (2018) 4 Frontiers in Marine Science 418 ; Kirsten F Thompson and others, ‘Seabed Mining and Approaches to Governance of the Deep Seabed’ (2018) Frontiers in Marine Science . 59 Cindy L Van Dover and others, ‘Biodiversity Loss from Deep-Sea Mining’ (2017) 10(7) Nature Geoscience 464; Holly J Niner and others, ‘Deep-Sea Mining with No Net Loss of Biodiversity—An Impossible Aim’ (2018) 5 Frontiers in Marine Science 53. 60 SOFIA 2020 (n 12). 61 Ibid. 62 UNGA, Large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas, UN Doc A/Res/46/215, 20 December 1991. 55 56

318  Research handbook on international marine environmental law and the broader marine environment.63 Spurred on by developments at the global level, including the adoption of various soft law instruments by the FAO such as the International Plans of Action on Seabirds64 and Sharks,65 and the adoption of the Agreement on the Conservation of Albatrosses and Petrels,66 RFMOs have increasingly adopted measures aimed at preventing or reducing by-catch of species like sharks, dolphins, turtles and sea birds.67 By way of example, the Agreement on the International Dolphin Conservation Programme, adopted under the auspices of the Inter-American Tropical Tuna Commission, establishes a system of dolphin mortality limits for vessels which, when reached, require the vessel to stop fishing.68 The veritable poster child for the ecosystem approach is the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR), established pursuant to the CAMLR Convention, which is charged with a broad conservation mandate the core objective of which is the application of the ecosystem approach in the context of the conservation of all Antarctic living marine resources.69 Nevertheless, the experience of CCAMLR demonstrates just how difficult the implementation of the ecosystem approach is. Despite its mandate, and general positive assessments of its fisheries management as precautionary, given the scientific and political complexities at play, as well as CCAMLR’s consensus-based decision-making procedure, its fisheries management is essentially based on single species (ie toothfish and krill) rather than ecosystem considerations.70 Broader ecosystem considerations do underpin the work of the CCAMLR Ecosystem Monitoring Program (CEMP), which monitors the impacts of commercial krill fishing on dependent and associated species, in particular penguins, and the broader marine ecosystem. However, the utility of CEMP has been rather limited to date.71 Nevertheless, CEMP does provide monitoring information that can be used to predict ecosystem impacts of various harvesting strategies thereby providing the opportunity to avoid serious deterioration of Antarctic marine biodiversity and ecosystem health. In this respect, it provides an example of a concrete mechanism through which the ecosystem approach might be implemented.

Rayfuse, ‘Regional Fisheries Management Organisations’ (n 26). FAO, International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries . 65 FAO, International Plan of Action for Conservation and Management of Sharks . 66 Agreement on the Conservation of Albatrosses and Petrels (adopted 19 June 2001, into force 1 February 2004) . 67 Rayfuse, ‘Regional Fisheries Management Organisations’ (n 26). See also, Richard Caddell, ‘Marine Mammals and Migratory Species’, Chapter 15 in this volume. 68 Agreement on the International Dolphin Conservation Programme (adopted 21 May 1998, entered into force February 1999), . For information generally see . 69 CAMLR Convention, Art II. 70 Rosemary Rayfuse, ‘Climate Change and Antarctic Fisheries: Ecosystem Management in CCAMLR’ (2018) 45(1) Ecology Law Quarterly 53. 71 Ibid, 67. 63 64

Protecting marine biodiversity and vulnerable marine ecosystems  319

4.

HABITAT DESTRUCTION AND MARINE BIODIVERSITY

Linked to the issue of resource exploitation in areas beyond national jurisdiction is the issue of the adverse impacts of extractive activities on marine habitats and vulnerable marine ecosystems (VMEs). VMEs are ‘hotspots of biodiversity and ecosystem functioning in the deep sea, with elevated faunal abundance, biomass, richness and diversity’ compared to surrounding habitats that are ‘also characterised by a high vulnerability to disturbance and a low recovery potential’. 72 VMEs include, for example, cold water corals as well as the unique chemosynthetic ecosystems around hydrothermal vents. The concept of VMEs and the use of spatial closures to protect areas, such as coral reefs and the species therein, has been an aspect of fisheries management since at least the 1990s.73 The precise terminology of VMEs, however, emerged in the mid-2000s in the context of international efforts to control deep-sea bottom trawling, which is notorious for disturbing benthic habitats and communities. In a series of resolutions starting in 2004, the UNGA called on States and RFMOs to formally recognise the importance of these deep-sea ecosystems and the biodiversity contained therein through adherence to precautionary ecosystem-based management aimed at reducing ‘significant adverse impacts’ on VMEs.74 States and RFMOs were called upon to identify VMEs, to assess whether individual bottom fishing activities have significant adverse impacts on VMEs, and to ensure that, where identified, impacts are either managed in such a way as to be prevented or the activity is not authorised to proceed.75 Of course, the extent of human impacts on marine ecosystems is now so wide that it is difficult to distinguish ‘vulnerable’ from ‘secure’, or a significant adverse impact from a merely adverse impact. To that end, the FAO International Guidelines on Deep-sea Fisheries76 provide detailed guidance on the practical implementation of the bottom trawling resolutions which a number of RFMOs have moved to implement. While specifics differ for each RFMO, rules adopted generally provide mechanisms for the identification of VMEs, encounter protocols and mitigation strategies, including ‘move-on rules’ in the event such sites are located. These rules require vessels to stop fishing and move off a certain pre-determined distance if they bring up more than prescribed quantities of listed indicator species, such as deep-water corals, that indicate they are fishing on a VME. RFMOs have also adopted measures requiring prior impact assessments of bottom fisheries in ‘new’ fishing areas to complement the move-on rules in existing fishing areas and have permanently closed known VME areas to bottom trawling.77 Oliver S Ashford and others, ‘On the Influence of Vulnerable Marine Ecosystem Habitats on Peracarid Crustacean Assemblages in the Northwest Atlantic Fisheries Organisation Regulatory Area’ (2019) Frontiers in Marine Science . 73 See, eg, JA Koslow and others, ‘Seamount Benthic Macrofauna off Southern Tasmania: Community Structure and Impacts of Trawling’ (2001) 213 Marine Ecology Progress Series 111. 74 UNGA, UN Doc A/Res/59/25, 17 November 2004; UN Doc A/Res/61/105, 6 March 2007; UN Doc A/Res/ 64/72, 19 March 2010; UN Doc A/Res/66/68, 28 March 2012; and UN Doc A/Res/71/123, 13 February 2017. 75 UNGA, UN Doc A/Res/59/25, 17 November 2004, para. 66. 76 FAO, International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (FAO 2008) . 77 For comprehensive discussion see, Richard Caddell, ‘Deep-Sea Bottom Fisheries and the Protection of Seabed Ecosystems: Problems, Progress and Prospect’ in Catherine Banet (ed) The Law of the Seabed: Access, Uses and Protection of Seabed Resources (Brill Nijhoff 2020) 255. 72

320  Research handbook on international marine environmental law Habitat destruction and consequent species loss are also particular concerns in the deep seabed mining context where sufficient knowledge on which to design adequate protection frameworks is still lacking.78 Mining of polymetallic nodules will disturb and destroy critical habitat for a range of unique and understudied species.79 Mining of cobalt-rich ferromanganese crusts80 and polymetallic sulphides, in particular, will take place in and around the sensitive and biodiversity rich environments of seamounts and hydrothermal vents, many of which have yet to be studied,81 prompting calls for prohibiting mining around active vents.82 Of serious concern is the potential for damage to the benthic and benthic-related communities, including the rare and endemic marine genetic resources found at these sites, which may be degraded or lost before they have even been identified and evaluated.83 This is particularly problematic given that damage caused to these benthic communities and the pelagic communities associated with them is projected to last for many centuries.84 The ISA is mandated to ensure effective protection of the marine environment from the impacts of seabed mining through the adoption of appropriate rules, regulations and procedures for, among other things, the prevention of marine pollution and interference with the ecological balance of the marine environment caused by mining activities and the prevention of damage to the flora and fauna of the marine environment.85 Measures aimed at protection of VMEs are explicitly included in the ISA’s Exploration Regulations and relate to both spatial and non-spatial management. With respect to the former, the Regulations provide for the establishment of both preservation reference zones and impact reference zones; the former consisting of pristine areas in which mining is not allowed, the latter consisting of areas in 78 Diva J Amon and others, ‘Assessment of Scientific Gaps Related to the Effective Environmental Management of Deep-Seabed Mining’ (2022) 138 Marine Policy 105006; IPBES 2019 (n 12); Miller and others (n 58). 79 Andrew Chin and Katelyn Hari, ‘Predicting the impacts of mining of deep sea polymetallic nodules in the Pacific Ocean: A review of Scientific literature’ (Deep Sea Mining Campaign and MiningWatch Canada 2020) ; Ellen Pape and others, ‘Potential Impacts of Polymetallic Nodule Removal on Deep-Sea Meiofauna’ (2021) 11(1) Scientific Reports 1; Matthias Haeckel and others, ‘Environmental Impacts of Deep Seabed Mining’ in Tomas Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill 2020) 327; Tanja Stratmann and others, ‘Polymetallic Nodules Are Essential for Food-Web Integrity of a Prospective Deep-Seabed Mining Area in Pacific Abyssal Plains’ (2021) 11(1) Scientific Reports 12238. 80 Les Watling and Peter J Auster, ‘Vulnerable Marine Ecosystems, Communities, and Indicator Species: Confusing Concepts for Conservation of Seamounts’ (2021) 8 Frontiers in Marine Science 1. 81 Daniel Wagner and others, ‘Coral Reefs of the High Seas: Hidden Biodiversity Hotspots in Need of Protection’ (2020) 7(September) Frontiers in Marine Science 1. . 82 Cindy L Van Dover and others, ‘Scientific Rationale and International Obligations for Protection of Active Hydrothermal Vent Ecosystems from Deep-Sea Mining’ (2018) 90 Marine Policy 20. 83 Diva J Amon and others, ‘Heading to the Deep End without Knowing How to Swim: Do We Need Deep-Seabed Mining?’ (2022) 5(3) One Earth 220; Claire W Armstrong and others, ‘Services from the Deep: Steps Towards Valuation of Deep Sea Goods and Services’ (2012) 2 Ecosystem Services 2. 84 Cindy L Van Dover, ‘Mining Seafloor Massive Sulphides and Biodiversity: What is at Risk?’ (2010) 68 ICES Journal of Marine Science 341; Cindy L Van Dover, ‘Impacts of Anthropogenic Disturbances at Deep-sea Hydrothermal Vent Ecosystems: A Review’ (2014) 102 Marine Environmental Research 59; Cindy L Van Dover and others, ‘Biodiversity Loss from Deep-sea Mining’ (2017) 10 Nature Geoscience 464. 85 LOSC, Art. 145.

Protecting marine biodiversity and vulnerable marine ecosystems  321 which mining takes place.86 The purpose of these zones is to facilitate assessment and monitoring of the effects of mining on the marine environment. With respect to the latter, the ISA’s Legal and Technical Commission is to assess whether exploration activities can be carried out in such a manner as to avoid serious harmful effects on VMEs. If serious harmful effects cannot be avoided, then the activities should not be authorised to proceed.87 Pursuant to its mandate the ISA is developing regional environmental management plans, the first of which, the Environmental Management Plan for the Clarion Clipperton Zone (EMP-CCZ), is discussed in detail by Lodge in his chapter in this volume.88 A central feature of the plan is the designation of Areas of Particular Environmental Interest (APEIs) in which mining activities for polymetallic nodules are prohibited. The purpose of these areas is both to protect representative habitat and to facilitate marine scientific research. Discussions are currently underway on the development of a regional environmental management plan for the northern section of the Mid-Atlantic Ridge which, like the EMP-CCZ, will detail the spatial and non-spatial management measures to be adopted to ensure, inter alia, the protection and preservation of the marine environment, the maintenance of regional biodiversity and ecosystem structure, function and processes across the region, and the conservation of representative habitats and VMEs.89 Here, however, the focus is on polymetallic sulphide deposits which occur on and in close proximity to hydrothermal vents where, given the high heterogeneity of habitats, spatial management is considered less appropriate for ‘capturing the full range of biodiversity and environmental gradients across the region’.90 Nevertheless, some areas have been identified for varying level of protection with and others expected to be identified as exploration continues. Other management measures relate, inter alia, to data gathering for the establishment of environmental thresholds, ongoing monitoring, and avoidance and mitigation of adverse impacts. In the fisheries context, both the implementation and the efficacy of the VME rules have been repeatedly questioned.91 In the seabed mining context, the LTC has been criticised for 86 For a comprehensive discussion of the environmental regulatory and managerial competences of the ISA see, Michael Lodge, ‘Protecting the Marine Environment of the Deep Sabed’, Chapter 13 in this volume. 87 ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010, Reg. 33(4); ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 22 October 2012, Reg. 33(4). See also, ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013, Reg. 31(4).  88 Lodge (n 86). See also, Michael Lodge, ‘Protecting the Environment of the Deep Seabed’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 151, 167; Michael Lodge and others, ‘Seabed Mining: International Seabed Authority Environmental Management Plan for the Clarion-Clipperton Zone. A Partnership Approach’ (2014) 49 Marne Policy 66, 72. 89 ISA, ‘Draft regional environmental management plan for the Area of the northern Mid-Atlantic Ridge (MAR) with a focus on polymetallic sulphide deposits’ (Draft MAR REMP) . See also, the scientific proposal for a MAR REMP: Daniel C Dunn and others, ‘A Strategy for the Conservation of Biodiversity on Mid-Ocean Ridges from Deep-Sea Mining’ (2018) 4(7) Science Advances eaar4313 . 90 Draft MAR REMP, ibid, para. 23. 91 Matthew Gianni and others, ‘Unfinished Business: a Review of the Implementation of the Provisions of UNGA Resolutions 61/105 and 64/72 Related to the Management of Bottom Fisheries

322  Research handbook on international marine environmental law failing to assess whether exploration activities are, in fact, having have serious harmful effects on VMEs.92 This has fuelled increasing concerns as to the likely efficacy of the ISA’s rules to protect VMEs and benthic and pelagic biodiversity from the adverse impacts of impending commercial mining activities and has led to increasing calls for a complete moratorium on deep seabed mining, at least until such time as the deep oceans have been fully mapped and explored.93 Leaving aside these criticisms, the notable aspect of all these measures is that they are sectorally based, which undermines their comprehensiveness and creates the potential for cross-sectoral conflict.

5. POLLUTION AND MARINE BIODIVERSITY Similar problems of sectoral fragmentation and potential cross-sectoral conflict arise in the case of pollution which, like fishing, also poses a significant threat to marine life and to marine biodiversity. Marine pollution is defined as the direct or indirect introduction by humans of substances or energy into the marine environment which results or is likely to result in deleterious effects on the environment.94 This includes both noxious and non-toxic substances and invasive species as well as light and noise. Sources of pollution include operational and accidental discharges from commercial shipping and fishing vessels, offshore oil and gas operations, and seabed mining activities, the sediment plumes and waste discharges from which are anticipated to have harmful effects on fish stocks and other marine species and to permanently destroy deep-sea habitats. In particular, pollution created by plumes from seabed mining is thought to pose a risk to commercial-scale fisheries,95 which is only just beginning to be assessed.96 Noise, vibrations and light pollution caused by mining equipment and surface

in Areas Beyond National Jurisdiction’ (2011) < http://​ www​ .savethehighseas. org/wp-content/ uploads/2011/09/DSCC_review11.pdf>; Matthew Gianni and others, ‘How Much Longer Will it Take? A Ten-Year Review of the Implementation of United Nations General Assembly resolutions 61/105, 64/72 and 66/68 on the Management of Bottom Fisheries in Areas Beyond National Jurisdiction’ (Deep Sea Conservation Coalition 2016) . See also, Caddell (n 77). 92 LM Wedding and others, ‘Managing Mining of the Deep Seabed’ (2105) 349 Science 144. 93 See, eg, European Parliament resolution of 9 June 2021 on the EU Biodiversity Strategy for 2030: Bringing nature back into our lives (2020/2273(INI)), paras 184-185; IUCN, ‘Protection of Deep-Ocean Ecosystems and Biodiversity through a Moratorium on Seabed Mining’, (Motion 069) (World Conservation Congress, Marseille, 22 September 2021) ; Long Distance Advisory Council (LDAC), ‘LDAC Opinion on Deep-Sea Mining’ (Discussed at LDAC WG5 meetings in October 2018 and March 2019, adopted by consensus by the LDAC Executive Committee on 22 May 2019) ref R-04-19/WG5 .; Diva J Amon and others, ‘Heading to the Deep End without Knowing How to Swim: Do We Need Deep-Seabed Mining?’ (2022) 5(3) One Earth 220 . 94 LOSC, Art 1(4). 95 Jessen van der Grient and Jeff C Drazen, ‘Potential Spatial Intersection between High-Seas Fisheries and Deep-Sea Mining in International Waters’ (2021) 129 Marine Policy 104564. 96 Jeffrey C Drazen and others, ‘Midwater Ecosystems Must Be Considered When Evaluating Environmental Risks of Deep-Sea Mining’ (2020) 117(30) Proceedings of the National Academy of Sciences of the United States of America 17455; Bernd Christiansen, Anneke Denda and Sabine Christiansen, ‘Potential Effects of Deep Seabed Mining on Pelagic and Benthopelagic Biota’ (2020) 114

Protecting marine biodiversity and vulnerable marine ecosystems  323 vessels will also affect species such as whales, tuna and sharks.97 Marine and coastal areas are also highly vulnerable to pollution from land-based sources such as emissions of persistent organic pollutants and greenhouse gases, sewage, agricultural and industrial runoff, light, and the now ubiquitous plastic.98 Prevention of vessel-source pollution from commercial shipping is largely the bailiwick of the International Maritime Organization (IMO), which predominantly deals with pollution matters through the adoption of technical and operational measures aimed at promoting safer and cleaner shipping. These measures are under constant revision and amendment as new technologies are developed. Of key importance is the MARPOL Convention, which aims to ‘achieve the complete elimination of international pollution of the marine environment by oil and other harmful substances and minimization of accidental discharge of such substances’.99 MARPOL applies to the discharge of all harmful substances, except those from dumping, seabed exploration and exploitation and from legitimate scientific research into pollution abatement. In short, MARPOL and its Annexes prohibit any discharge of oil, noxious liquid substances, sewage and garbage into the sea unless specific conditions are met with respect to the substance concerned, as regards discharge rate, speed, distance from shore, and so on. More stringent standards have been agreed for designated ‘Special Areas’, which include areas both under and beyond national jurisdiction. These MARPOL Special Areas are not to be confused with ‘Particularly Sensitive Sea Areas’ (PSSAs), the legal basis for the establishment of which is considered to emanate directly from the IMO’s constitutive instrument.100 PSSAs are defined as areas in need of ‘special protection through the IMO because of [their] significance for recognised ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities’.101 While designation as a PSSA does not alter the existing rights and duties of States as defined in the LOSC, it does allow the relevant coastal States to apply ‘associated protective measures’ such as ships’ routing measures to avoid animal strikes or disturbance of sensitive marine ecosystems, provided those measures have been approved or adopted by the IMO. To date, 17 PSSAs have been established, however, notably all lie within AUNJ.102 The applicability of the PSSA concept to ABNJ has not yet been established. Moreover, as a single sector mechanism, PSSAs are said to fall short of what constitutes an ecologically representative marine protected area.103 Other measures adopted by the IMO that contribute more specifically to the protection of marine biodiversity include the Anti-Fouling Convention, which controls the use of harmful Marine Policy 103442; Aline Jaeckel and others, ‘Equity Dilemmas from Seabed Mining in the Pacific’, 360info (31 January 2022) . 97 Miller and others (n 58). 98 WOA II (n 12). 99 MARPOL Convention, Preamble. 100 Aldo Chircop, ‘Particularly Sensitive Sea Areas and International Navigation Rights: Trends, Controversies and Emerging Issues’ in Iwan Davies (ed) Issues in International Commercial Law (Ashgate Publishing 2005) 217. 101 IMO, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas Resolution A.982(24) 1 December 2005. 102 See the List of Adopted PSSAs at . 103 Julian Roberts, Aldo Chircop and Sian Prior, ‘Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area Concept’ (2010) 25 The International Journal of Marine and Coastal Law 482.

324  Research handbook on international marine environmental law organotins and other harmful substances in anti-fouling (underwater hull) paints used on ships104 and the Ballast Water Convention, which aims to control the introduction of invasive aquatic species that present a major threat to marine ecosystems. One particularly serious marine pollutant that poses a significant threat to marine biodiversity – and a major challenge for cross-sectoral cooperation – is plastic. Between 8 and 12 million tonnes of plastic end up in the ocean each year where in its macro form it is ingested by or entangles marine species and, in its micro form, its dangerous chemical components enter the marine, and ultimately human, food chain.105 Both the London Convention and the London Protocol prohibit the intentional dumping of plastics and Annex V of the MARPOL Convention expressly prohibits the discharge by all ships of plastics into marine waters. However, up to 60 percent of ship-source plastic consists of abandoned, lost or discarded fishing gear,106 the primary responsible agency for which is the FAO. The design of possible next regulatory steps thus requires cooperation between the IMO and the FAO.107 Moreover, up to 80 percent of marine plastic originates from land-based sources,108 for which no binding global legal framework currently exists, although a number of regional seas agreements do have protocols on the prevention of pollution from land-based activities.109 Rather, Article 207 of the LOSC merely requires States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources that need only ‘take into account’ internationally agreed rules, standards and recommended practices and procedures and simply to ‘endeavour’ to establish such rules and standards. In short, under the LOSC, States retain their freedom of regulatory action in balancing environmental measures against their economic needs and desires, subject only to their other treaty obligations.110 Clearly threats to marine biodiversity from land-based sources of pollution require concerted and coordinated action that goes beyond international marine environmental law.

104 2001 International Convention on the Control of Harmful Anti-Fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008) IMO Doc AFS​.CONF/​26. 105 Julien Boucher and Damien Friot, Primary Microplastics in the Oceans: A Global Evaluation of Sources (IUCN 2017). 106 GESAMP, Sea-Based Sources of Marine Litter – A Review of Current Knowledge and Assessment of Data Gaps: Second Interim Report of GESAMP Working Group 43 (2020) . 107 For discussion see, Rosemary Rayfuse, ‘Informal Lawmaking as a Panacea in the Absence of Regime Focus? Marine Debris, Plastics and Microplastics’ in Natalie Klein (ed) Unconventional Lawmaking in the Law of the Sea (OUP 2022) 290. 108 Boucher and Friot (n 105); Carmen Morales-Caselles and others, ‘An Inshore–Offshore Sorting System Revealed from Global Classification of Ocean Litter’ (2021) 4 Nature Sustainability 484. 109 See, eg, Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities to the Convention for the Protection of the Mediterranean Sea Against Pollution (signed 17 May 1976, amended 7 March 1996, entered into force 11 May 2008) . For discussion of Barcelona Convention regime see, Nilufer Oral, ‘Mapping Progress and Challenges for the UNEP Regional Sea Programme for the Mediterranean’, Chapter 7 in this volume. 110 Frank Wacht, ‘Article 207’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1378, 1380-1381.

Protecting marine biodiversity and vulnerable marine ecosystems  325

6.

CLIMATE CHANGE AND MARINE BIODIVERSITY

A similar need for action beyond international marine environmental law arises in the climate change context. There is no question that emissions of carbon dioxide (CO2) and other greenhouse gases can be considered to constitute pollution from or through the atmosphere under Article 212 of the LOSC. However, regulation of these emissions is the responsibility of the climate regime.111 As with other land-based sources of pollution in general, international marine environmental law can only seek to address the impacts of climate change on the marine environment.112 The main impacts of climate change on the marine environment are warming, acidification and deoxygenation. Importantly, these impacts are expected to persist throughout this century regardless of reductions in greenhouse gas emissions.113 As extensively documented elsewhere, the consequences of these impacts include changes in the distribution and abundance of fish stocks and other species, proliferation of invasive species, species extinction, habitat destruction, alteration of marine food webs, disruption of ecosystem functioning and services and ecosystem collapse.114 In other words, these impacts pose significant threats to all marine species and ecosystems and thus to marine biodiversity and to human well-being. These threats are merely exacerbated by existing area-based and sectoral approaches to protection of marine biodiversity. The challenges posed by climate change impacts can be illustrated by reference to the high seas fisheries context. Fish represent a major portion of marine biodiversity. Moreover they make a vital contribution to global food security, providing about 20 percent of global protein intake. The IPCC has warned, however, that by 2055, global redistribution of fish yields, coupled with decreases in open ocean net primary production and fish habitat caused by ocean warming, acidification and anoxia, will have profound implications for fish stocks and thus for global food security.115 At the international level, the task of ensuring the sustainability of global fish stocks in a climate-changed world falls to the regimes that have been established for the conservation and management of international fisheries, in particular RFMOs, the challenges for which are both jurisdictional and managerial in nature.116

111 For discussion see, Ellycia Harrould-Kolieb and Tim Stephens, ‘Ocean Acidification’, Chapter 12 in this volume. 112 Rosemary Rayfuse, ‘Climate Change, Marine Biodiversity and International Law’ in Michael Bowman, Peter Davies and Edward Goodwin (eds) Research Handbook on Biodiversity and Law (Edward Elgar 2016) 123. 113 IPCC, SROCC (n 12). 114 See, eg, FAO, Impacts of Climate Change on Fisheries and Aquaculture: Synthesis of current knowledge, adaptation and mitigation options, FAO Fisheries and Aquaculture Technical Paper 627 (FAO 2018); WWL Cheung and others, ‘Projecting Global Marine Biodiversity Impacts under Climate Change Scenarios’ (2009) 10 Fish and Fisheries 235; G Beaugrand and others, ‘Future Vulnerability of Marine Biodiversity Compared with Contemporary and Past Changes’ (2015) 5 Nature Climate Change 695; JG Molinos and others, ‘Climate Velocity and the Future Global Redistribution of Marine Biodiversity’ (2016) 6 Nature Climate Change 83. 115 IPCC, SROCC (n 12). See also, Q Ding and others, ‘Vulnerability to Impacts of Climate Change on Marine Fisheries and Food Security’ (2017) 83 Marine Policy 55. 116 Rosemary Rayfuse, ‘Addressing Climate Change Impacts in Regional Fisheries Management Organisation’ in Richard Caddell and Erik J Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 247.

326  Research handbook on international marine environmental law Jurisdictional challenges arise as a result of their geographic and managerial competences. As noted above, RFMOs generally manage stocks on either a species-specific or geographic basis. Climate change-induced species or stock migration and biological regime shifts across arbitrary geopolitical and legal jurisdictional lines will increasingly require cooperation and coordination between adjacent RFMOs and between RFMOs and adjacent coastal States.117 Where these shifts take stocks or species into unregulated areas the worst-case scenario will see continued take by a coastal State losing the stocks coupled with increased unregulated take in ABNJ leading to the stock or species being overfished to commercial, if not biological, extinction. Indeed, it was precisely this concern that led to the adoption of the Central Arctic Ocean Fisheries Agreement,118 which establishes a precautionary mechanism for the conservation and sustainable use of the living resources and the safeguarding of the marine ecosystems of the Central Arctic Ocean.119 Managerial challenges relate to the ability of RFMOs to manage under conditions of uncertainty relating both to the fish under their management and to the associated broader marine ecosystem. In a climate-changed world, successful ecosystem outcomes will require RFMOs to ensure that their conservation and management measures are aimed at enhancing the climate resilience of the fisheries they are managing and the ecosystems in which they exist. In other words, management practices will need to be both more conservative and flexible enough to account for changes in stock distribution and abundance. However, while the need for precautionary and ecosystem approaches to management is generally accepted, there is little explicit evidence to date of management responses specifically aimed at addressing the impacts of climate change and associated ocean acidification on fish stocks under RFMO management.120 One notable exception is the first specifically climate change-related conservation measure adopted by CCAMLR which establishes time-limited Special Areas for Scientific Study (SASS) in newly exposed marine areas following ice-shelf retreat or collapse.121 The point of the measure is to protect the marine biodiversity in the newly exposed area from fishing activities until such time as scientists have been able to assess the area and its biodiversity. The measure establishes a two-phase stage of protection during the first of which the area will be granted a provisional designation as a SASS for a period of up to two years to allow detailed review of available data, including any relevant fishery related proposals. The second stage involves designation as a SASS for up to ten years to enable research into ecosystem processes

117 Guillermo Ortuño Crespo and others, ‘Beyond Static Spatial Management: Scientific and Legal Considerations for Dynamic Management in the High Seas’ (2020) 122 Marine Policy 104102. 118 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted on 2017, signed 3 October 2018, entered into force 25 June 2021) OJ L 73/3, 15 March 2019. 119 See, Rosemary Rayfuse, ‘Taming the Wild North? High Seas Fisheries in the Warming Arctic’ in Richard Barens and Ronán Long (eds) Frontiers in International Environmental Law: Oceans and Climate Change: Essays in Honour of David Freestone (Brill Nijhoff 2021) 263. 120 Rayfuse, ‘Addressing Climate Change Impacts’ (n 116), 257; Rayfuse ‘Climate Change and Antarctic Fisheries’ (n 70) and Rosemary Rayfuse, ‘Regional Fisheries Bodies and Ocean Acidification’ in David L VanderZwaag, Nilufer Oral and Tim Stephens (eds) Research Handbook on Ocean Acidification Law and Policy (Edward Elgar 2021) 123. 121 CCAMLR, Conservation Measure 24-04: Establishing Time-Limited Special Areas for Scientific Study in Newly Exposed Marine Areas Following Ice-Shelf Retreat or Collapse in Statistical Areas 48.1, 48.5 and 88.3 (2016) .

Protecting marine biodiversity and vulnerable marine ecosystems  327 in relation to climate change. It is worth noting, however, that at the first opportunity to designate a SASS, the CCAMLR members could not agree to do so.122

7.

NEW APPROACHES TO PROTECTING MARINE BIODIVERSITY

7.1

Improving Cross-Sectoral Cooperation

From the foregoing, it should be apparent that the effective implementation of an ecosystem approach to the protection and conservation of marine biodiversity requires multi- or cross-sectoral cooperation. One approach to improving ecosystem management involves addressing cross-sectoral conflict through institutional cooperation. This can be illustrated by reference to the North-East Atlantic, where the OSPAR Commission and the North East Atlantic Fisheries Commission (NEAFC) are both charged with protection of aspects of the marine environment but their mandates, while complementary, are completely distinct. NEAFC has competence over fisheries in ABNJ while OSPAR has competence in relation to the management of human activities that impact the marine environment, including the protection and conservation of ecosystems and biodiversity in ABNJ but excluding fisheries, shipping and deep seabed mining. In 2003, the OSPAR Commission formally adopted the ecosystem approach as the basis for its management activities and adopted a strategy to establish a network of marine protected areas (MPAs), including in those parts of the convention area that constitute ABNJ.123 However, the only way in which OPSAR could ensure the coherence and protection of its MPAs was to enlist the support and cooperation of NEAFC. In 2006, the NEAFC Convention was amended to remove any doubts as to NEAFC’s ability to apply an ecosystem approach in order to protect VMEs on the seafloor from the adverse impacts of bottom-trawling,124 thereby allowing NEAFC to adopt the first of its precautionary bottom-trawling closures. These were expanded in 2008 and 2009 to closures on the Mid-Atlantic Ridge and the Charlie Gibbs Fracture Zone. In 2010, OSPAR established six high seas MPAs, the world’s first ‘network’ of high seas MPAs, to which a seventh was added in 2012.125 Taken together, the OSPAR and NEAFC closures have been said to represent an effective network of high seas MPAs in the North-East Atlantic protecting both the water column and VMEs on the seafloor. In truth, neither the ecological coherence nor the efficacy of these

122 CCAMLR, Report of the Fortieth Meeting of the Commission, Virtual Meeting, 18-29 October 2021, para. 8.5 . 123 OSPAR, Bremen Joint Ministerial Statement on the Ecosystem Approach to the Management of Human Activities ‘Towards an Ecosystem Approach to the Management of Human Activities’, 26 June 2003 124 See, ‘Status of the 1980 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries’ explaining the amendments . 125 BC O’Leary and others, ‘The First Network of Marine Protected Areas (MPAs) in the High Seas: The Process, the Challenges and Where Next’ (2012) 36 Marine Policy 598-605.

328  Research handbook on international marine environmental law MPAs has been assessed,126 and upon closer examination a less sanguine picture emerges. Analysis of the geographical coordinates establishing the NEAFC closures and the OSPAR MPAs shows that the areas only partially overlap, potentially leading to a situation where activities undertaken under the regulation of one organisation may violate the protective measures adopted by the other. Moreover, only two of the OSPAR MPAs cover both the water column and the seabed (the Milne and Charlie Gibbs South MPAs). The others pertain to areas in which either Portugal or Iceland have claims to extended continental shelves. In addition, the possibility exists that contracts may be issued by the ISA for mineral exploration and exploitation in areas currently within the OSPAR MPAs, in particular in the Charlie Gibbs Fracture Zone on the Mid-Atlantic Ridge, thereby completely undermining (both figuratively and literally) the OSPAR MPAs. With the ISA considering adoption of an environmental management plan for the Mid-Atlantic Ridge, the further possibility exists for inconsistent environmental protections along the physical continuum of the Mid-Atlantic Ridge ecosystem and for conflict between the OSPAR and ISA regimes. In an effort to resolve these challenges, cooperation between OSPAR and NEAFC has been formalised in the Collective Arrangement Between Competent International Organisations on Cooperation and Coordination Regarding Selected Area in Areas Beyond National Jurisdiction in the North East Atlantic,127 which provides a framework for dialogue and the sharing of information of mutual interest within the overall context of respecting each other’s mandates and legal competencies.128 The essential aim of the Collective Arrangement is to become a collective and multilateral forum composed of all competent entities addressing the management of human activities in the region. However, the two main targets of the Collective Arrangement efforts, the ISA and the IMO, have, as yet, declined to join. Admittedly, the ISA/OPSAR relationship is the subject of a bi-lateral Memorandum of Understanding which provides for consultation and cooperation between the two entities aimed at ensuring that MPAs are established with due regard to the rights and duties of States and the ISA under the LOSC and the 1994 Implementing Agreement.129 Nevertheless, a comprehensive, cooperative mechanism for coherent, coordinated and holistic ecosystem-based management of multiple and possibly conflicting human uses of the seabed in the OSPAR MPAs is still missing. 7.2

Operationalising Management of Ecologically and Biologically Sensitive Areas

A related, but different approach, is that taken by the CBD, which has described a number of ‘ecologically or biologically significant marine areas’ (EBSAs) as meeting the scientific

126 See, OSPAR, Summary Record of the Meeting of the Biodiversity Committee, 29 February to 4 March 2016, BDC 16/9/1-E. 127 Established in 2014. See, ‘Collective Arrangement’ . 128 For a history of the development of the Collective Arrangement, see, S Ásmundsson and E Corcoran, ‘The Process of Forming a Cooperative Mechanism Between NEAFC and OSPAR, NEAFC and OSPAR’ (2015) . See also, the discussion on this Collective Arrangement in Vasco Becker-Weinberg, ‘Enhancing Marine Protected Areas and Marine Spatial Planning Through an Ecosystem Approach’, Chapter 20 in this volume. 129 Memorandum of Understanding between the OSPAR Commission and the International Seabed Authority, (2010) .

Protecting marine biodiversity and vulnerable marine ecosystems  329 requirements to benefit from enhanced conservation and management measures, protected status and impact assessments. Areas described as EBSAs range from relatively small sites to very extensive oceanographic features representative of a full range of ecosystem habitats, biotic diversity and ecological processes.130 Some EBSAs are located wholly within AUNJ while many traverse vast areas of ABNJ.131 While useful in identifying important ecosystems worthy of protection, EBSAs are, however, a purely scientific and thus non-legally binding concept, the management implications of which can only be addressed through existing legal mechanisms. One particular EBSA that has achieved its own legal status is the Sargasso Sea, an area of open ocean situated within the North Atlantic subtropical gyre that is the world’s only holopelagic seaweed ecosystem, home to a wide diversity of species including several identified for protection by a range of regional and international instruments. Established pursuant to the Hamilton Declaration in 2014,132 the Sargasso Sea Commission exercises a stewardship role over the portion of the Sargasso Sea that lies in ABNJ for the purposes of maintaining its health, productivity and resilience.133 While the Commission has no management authority itself, it serves as a focal point for the generation, proposal and promotion of measures to be adopted through the IMO, the FAO, relevant RFMOs, other fisheries arrangements, and other national and international bodies to control, minimise and eliminate the adverse effects of shipping, fishing and other anthropogenic activities on the Sargasso Sea and its components, including the habitats of threatened and endangered species and other vulnerable marine ecosystems.134 Nevertheless, despite its overarching stewardship role, the Sargasso Sea Commission remains hostage to the demands of sectoral management. 7.3

A New Implementing Agreement on Biodiversity in ABNJ

Since the mid-2000s, the desire for a more integrated regime for the protection of marine biodiversity in ABNJ has led to the convening of negotiations towards a new global agreement for the conservation and sustainable use of marine biological diversity in ABNJ. Initial discussion revolved around the desirability of an international mechanism for the establishment of MPAs in ABNJ. However, with growing interest in the potential exploitation

David Johnson and others, ‘The Global Ocean Biodiversity Initiative: Promoting Scientific Support for Global Ocean Governance’ (2019) 29 Aquatic Conservation 162. 131 For a description and map of EBSAs that have been identified see . 132 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, 11 March 2014 . 133 The description of the ‘Area of Collaboration’ in the Hamilton Declaration in Annex I is a description of the Sargasso Sea ecosystem, excluding the Exclusive Economic Zone (EEZ) and Territorial Sea around Bermuda. The management of activities and resources in the EEZ and Territorial Sea around Bermuda are not affected in any way by the Declaration. 134 Hamilton Declaration, sec. 8 and Annex II. See, Kristina M Gjerde and Ole Varmer, ‘The Sargasso Sea; An Innovative Approach to Governance in Areas beyond Nations Jurisdiction’ in Richard Barnes and Ronán Long (eds) Frontiers in International Environmental Law: Oceans and Climate Change: Essays in Honour of David Freestone (Brill Nijhoff 2021) 446 and David A Balton, ‘Strengthening the Stewardship of the Sargasso Sea’ in Richard Barnes and Ronán Long (eds) Frontiers in International Environmental Law: Oceans and Climate Change: Essays in Honour of David Freestone (Brill Nijhoff 2021) 490. 130

330  Research handbook on international marine environmental law of marine genetic resources, concerns soon shifted to questions relating to access and benefit sharing in respect of these resources. The ‘contested terrain’ relating to the legal status of marine genetic resources and the adequacy of existing law as opposed to the need for new law, is well canvassed in the chapter by Dire Tladi in the first edition of this Handbook and will not be repeated here.135 Suffice it to say that while there have been developments in terms of process since then, at time of writing, substantive resolution of this issue remains an open question. In terms of process, after more than a decade of discussions on the topic, in 2017, the UN General Assembly agreed to convene an intergovernmental conference to negotiate an international legally-binding instrument under the LOSC on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement).136 Four negotiating sessions were mandated by the General Assembly, three of which took place during 2018 and 2019, however the fourth negotiating session, originally scheduled for 2020, was delayed due to the global pandemic. Even at the time it was widely considered unlikely that agreement would be reached at the fourth session due to the vast number and complexity of outstanding issues. In the event, the postponed fourth session finally took place in March 2022 by way merely of ‘informal informals’ with no substantive decisions being taken.137 With its negotiating mandate having expired at time of writing, a renewed mandate will be needed from the General Assembly before negotiations can continue. In terms of substance, the negotiations have been premised on achievement of a ‘package deal’, to be adopted as a third implementing agreement to the LOSC, covering four core elements: marine genetic resources, including issues relating to the sharing of benefits linked to their exploitation; measures such as area-based management tools (ABMTs), including MPAs; environmental impacts assessments (EIA); and capacity building and the transfer of marine technology.138 Cross-cutting issues also under negotiation include dispute settlement and institutional mechanisms. The 2019 heavily bracketed President’s draft text provides an indication of just how little has actually been agreed.139 The contested terrain of the legal status Dire Tladi, ‘Conservaton and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction: Towards an Implementing Agreement’ in Rosemary Rayfuse (ed) Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 259. 136 Intergovernmental Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, convened pursuant to UNGA Resolution UN Doc A/ Res/74/249, 24 December 2017. For information on the progress of the negotiations see, . 137 See, ‘Draft report of the intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’, UN Doc A/CONF.232/2022/L.3, 16 March 2022. 138 This ‘package deal’ was agreed as long ago as 2011 by the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction (BBNJ Working Group) which recommended the initiation of the process that led to the convening of the negotiations. See, Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biodiversity beyond areas of national jurisdiction and Co-Chair’s summary of discussions, UN Doc A/66/119, 30 June 2011. 139 President’s Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national 135

Protecting marine biodiversity and vulnerable marine ecosystems  331 of marine genetic resources as either common property or common heritage remains, as do disagreements on the rules for access to marine genetic resources, the nature of benefits to be shared, and the form or manner in which any benefit sharing is to occur. Framing distinctions between marine genetic resources and marine organisms more generally, and between marine genetic resources in ABNJ and those in AUNJ is also proving intractable. At the most basic level, these disagreements are all about money and perceived lucrative markets for products derived from marine genetic resources. However, evidence is still scarce as to whether marine genetic resources will ever fuel the resource bonanza the proponents of an access and benefit sharing regime hope for. Particularly germane to the conservation and protection of marine biodiversity, however, as opposed to its possible exploitation, are the negotiations relating to EIA and ABMT. With respect to EIA, proposals under consideration include specific requirements relating to the conduct of EIA that go beyond the general requirements in Articles 204 to 206 of the LOSC, and include proposals requiring the assessment of cumulative impacts of new activities140 as well as the possibility of strategic environmental assessments.141 With respect to ABMTs, the focus is predominantly on establishing a global process for the designation of MPAs in ABNJ and the coordination of the use of ABMTs currently available to existing organisations.142 In other words, the proposed agreement is envisaged as possibly filling the gap that currently exists in international law with respect to a mechanism for the establishment of cross-sectoral MPAs in ABNJ that are binding on all states and in respect of all uses either by providing a centralised mechanism for their establishment or by providing an endorsement function with respect to MPAs adopted by existing regional and sectoral organisations. In either case, as a matter of treaty law, such MPAs would be binding on all parties to the new agreement regardless of whether they are parties to the other agreement(s).

8. CONCLUSION As will be abundantly clear from the forgoing, the international legal framework for the protection of marine biodiversity is notoriously complex and fragmented both sectorally (ie fishing, shipping and seabed activities) and geographically. In areas under national jurisdiction, where coastal States enjoy jurisdictional competence in respect of marine biodiversity, marine governance regimes have largely been characterised by high levels of sector-specific and uncoordinated institutional, administrative and governmental fragmentation. Proposals for more integrated forms of marine governance at the national level have not been dealt with in this chapter but include such things as integrated coastal zone management and marine spatial planning. In areas beyond national jurisdiction, the situation has been even more fraught, with sectoral fragmentation compounded by substantive inadequacy (ie gaps in legal coverage) and regulatory ineffectiveness (ie vague, ineffective, unenforced and/or unenforceable regulations). Indeed, assessments of this fragmented and non-comprehensive international

jurisdiction, 18 November 2019, A/CONF.232/2020/3, . 140 Ibid, Art. 25. 141 Ibid, Art. 28. 142 Ibid, Arts 14-21.

332  Research handbook on international marine environmental law framework have suggested that it is, itself, an indirect driver of marine biodiversity loss, due to its inability to provide synergistic solutions to address simultaneously the multiple direct drivers (ie resource extraction, pollution and climate change) of such loss.143 Increasingly, however, new approaches are being devised to cross the sectoral divide and improve cooperation and coordination in the protection of marine biodiversity and vulnerable marine ecosystems. The proposed BBNJ Agreement, in particular, may provide a significant coordinating mechanism capable of providing some measure of synergistic cross-sectoral coordination, at least with respect to the establishment of MPAs and EIA requirements in ABNJ. It remains to be seen whether the global pandemic will have provided a valuable breathing space in which States could iron out their differences or will have been the death knell for the proposed BBNJ Agreement. It also remains to be seen whether threats to marine biodiversity from land-based and atmospheric sources of pollution will attract concerted and coordinated action that goes beyond international marine environmental law.

See, eg, C Kelly, G Ellis and W Flannery, ‘Unravelling Persistent Problems to Transformative Marine Governance’ (2019) 6 Frontiers in Maine Science 213; W Watson-Wright and JL Valdés, ‘Fragmented Governance of Our One Global Ocean’ in P Boudreau and others (eds) The Future of Ocean Governance and Capacity Development – Essays in Honour of Elizabeth Mann Borgese (1918 – 2002), (Brill Nijhoff 2018) 16; Rosemary Rayfuse, ‘Climate Change, Marine Biodiversity and International Law’ (n 112); A Proelss and M Krivickaite, ‘Marine Biodiversity and Climate Change’ (2009) 4 Carbon and Climate Law Review 437. 143

15. Marine mammals and migratory species Richard Caddell

1. INTRODUCTION The conservation of highly mobile aquatic species presents numerous challenges for international marine environmental governance. Under the current framework of the UN Convention on the Law of the Sea 1982 (LOSC),1 the global oceans have been partitioned into a series of fixed spatial entitlements that provide much-needed jurisdictional clarity but pay little heed to overarching natural ecosystems or species distributions. Species with extensive natural ranges will inevitably move between and beyond areas of national jurisdiction on a regular basis, necessitating sustained international cooperation to manage these stocks in an ecologically coherent and sensitive manner. It is therefore unsurprising that the international regulation of migratory species in general, and that of marine mammals in particular, has consistently posed testing questions for multilateral instruments and institutions. Marine mammals encompass a broad assortment of air-breathing animals that are found in all marine regions, as well as many freshwater habitats, and are delineated into five broad species groups, namely cetaceans (whales, dolphins and porpoises), pinnipeds (seals, sea lions and walruses), sirenians (dugongs and manatees), sea otters and polar bears. Under the LOSC, marine mammals are accorded a special status, allowing States and the international organisations that they are encouraged to ‘work through’ to preclude catches in a manner that is not applied towards other key marine living resources such as fish.2 Nevertheless, reconciling competing interests in the preservation and sustainable use of marine mammals has proved to be a contentious and difficult issue, as some States have sought to grant a totemic status to many such species,3 while others view marine mammals in rather more industrial terms. Accordingly, political and interpretive difficulties have long afflicted the regulation of marine mammals, especially cetaceans, throughout the long history of the international management of these species. Meanwhile, a vast array of marine species – including many marine mammals as well as fish and turtles – are migratory in nature. While specified populations of ‘highly migratory species’ are directly addressed under the LOSC, individual marine species are regulated more holistically under the unique and sprawling purview of the Convention on the Conservation of Migratory Species of Wild Animals 1979 (CMS).4 Furthermore, many migratory marine species are regulated to at least some extent by a broader constellation of regimes, either due

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 2 LOSC, Arts 65 and 120. 3 Anthony D’Amato and Sudhir K Chopra, ‘Whales: Their Emerging Right to Life’ (1991) 85 American Journal of International Law 21. 4 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333 (CMS). 1

333

334  Research handbook on international marine environmental law to aspects of their range or distribution coinciding with the spatial jurisdiction of particular bodies, or because they are taxonomically listed as requiring protection under alternative instruments.5 Migratory species are therefore subject to the supervisory attention of a significant number of global and regional actors, requiring careful coordination and interaction to avoid the regulatory inefficiencies and conflicts associated with treaty congestion. This chapter examines the key management regimes applicable to marine mammals and to other migratory species, including sharks and turtles, as distinct subjects of international marine environmental law. To this end, this chapter first explores the treatment of these two distinct cohorts of species under the LOSC. Thereafter, this chapter considers the regulation of whales and whaling, which has long proved to be among the more contested elements of the international governance of marine living resources. This chapter then reflects upon the comparatively little-studied CMS regime and its important role in the conservation and management of migratory marine species, before considering how this expansive regulatory framework has fared in addressing the conservation status of these iconic species.

2.

MARINE MAMMALS, (HIGHLY) MIGRATORY SPECIES AND THE UN CONVENTION ON THE LAW OF THE SEA

Species-specific regulation of marine mammals and migratory species is advanced under an array of regional and global regimes, although overarching obligations are derived in the first instance from the LOSC. Under this framework, a series of management principles have been advanced in respect of ‘marine mammals’ and ‘highly migratory species’, respectively. Both designations fall within a limited number of categories of species whose exploitation is subject to more individualised rules under the LOSC than is applied to other marine living resources.6 The various provisions applied to these species endured a protracted gestation during the negotiations of the LOSC,7 ultimately metamorphosing from a previously unified draft clause, which has resulted in a marked lack of clarity in their application and scope and continuing interpretive difficulties in respect of the regulation of these species. 2.1

Marine Mammals

Marine mammals are regulated under Article 65 of the LOSC, one of a suite of provisions outlining the principles and entitlements pertaining to the Exclusive Economic Zone (EEZ), which promote the ‘optimum utilisation’8 of stocks and their continued exploitation at maximum sustainable yield.9 However, Article 65 is more ostensibly conservationist as it 5 See, eg, Agreement on the Conservation of Polar Bears (adopted 15 November 1973, entered into force 26 May 1976) 2898 UNTS 243. See also, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1975, entered into force 1 July 1975) 993 UNTS 243 (CITES). 6 Notably straddling stocks (LOSC, Art. 63), anadromous stocks (LOSC, Art. 66) and catadromous stocks (LOSC, Art. 67). 7 Cameron SG Jefferies, Marine Mammal Conservation and the Law of the Sea (OUP 2016) 176-193. 8 LOSC, Art. 62(1). 9 LOSC, Art. 61(3).

Marine mammals and migratory species  335 allows States and/or international organisations ‘to prohibit, limit or regulate the exploitation of marine mammals more strictly’ than is envisaged for other categories of marine living resources. The same applies mutatis mutandis to the high seas.10 Article 65 has consistently yielded interpretive difficulties and has been described by one pre-eminent commentator as one of the LOSC’s most opaque provisions.11 This uncertainty stems from the second sentence of Article 65, which requires States to ‘cooperate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study.’ Article 65 thus specifies additional obligations concerning cetaceans, while other species of marine mammals are not considered further in the Convention. This distinction has generated yet more ambiguity, and the regulatory intent of the LOSC towards cetaceans remains vague and contested. In particular, Article 65 provides no guidance as to how a State should ‘work through’ such an organisation. The original drafting intention seemingly envisaged that States would cooperate towards protecting marine mammals generally and prospectively establish an international organisation for cetaceans on a global basis.12 To date, Canada has articulated the sole official national position on Article 65, following its withdrawal from the International Whaling Commission (IWC) in 1981, contending that the obligation may, instead, be discharged by providing scientific and technical advice to pertinent international bodies.13 There has been little dissent to this position, although the practice of Japan – which repudiated the International Convention for the Regulation of Whaling (ICRW)14 in 2019 – will be additionally instructive once the IWC resumes its administrative schedule following the COVID-19 pandemic. Further uncertainty surrounds the ‘appropriate organisations’ through which States are intended to work. Again, no criteria to determine the appropriateness or otherwise of an organisation were elaborated in the LOSC. The plural formulation suggests an intention for institutions to work collaboratively, primarily to address bycatches,15 although it remains unclear which bodies are required to do so and under what conditions. During the negotiations of the LOSC – and without any obvious contemporary alternatives – the IWC evidently represented an ‘appropriate organisation’ for these purposes. Subsequent statements on Article 65 are, however, sporadic and often raise more questions than answers. In 1992, the non-binding Agenda 21 Action Plan16 recognised the IWC, its Scientific Committee, the Inter-American Tropical Tuna Commission and the Agreement on the Conservation of Small Cetaceans of the LOSC, Art. 120. Patricia W Birnie, ‘Marine Mammals: Exploiting the Ambiguities of Article 65 of the Convention on the Law of the Sea and Related Provisions: Practice under the International Convention for the Regulation of Whaling’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (OUP 2006) 261. 12 Jefferies (n 7) 178-180. 13 Ted L McDorman, ‘Canada and Whaling: An Analysis of Article 65 of the Law of the Sea Convention’ (1998) 29 Ocean Development and International Law 179, 182. 14 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (ICRW). 15 Jefferies (n 7) 180. 16 UNCED, Report of the United Nations Conference on Environment and Development, UN Doc A/ CONF.151/26/Rev.1, 12 August 1992 , paras 17.62 and 17.89. 10 11

336  Research handbook on international marine environmental law Baltic, North-East Atlantic, Irish and North Seas17 (ASCOBANS) as ‘appropriate’, albeit with scant reasoning to underpin this designation. A later declaration by the UN Office of Legal Affairs regarding its interpretation of Article 6518 has proved equally vague, recognising the Food and Agriculture Organization (FAO) and the United Nations Environmental Programme (UNEP) as appropriate organisations, while reserving judgement over recognising the claims of other bodies. Subsequent consideration of ‘appropriate’ bodies has focused predominantly upon the North Atlantic Marine Mammal Commission (NAMMCO), inaugurated in 1992 between Norway, Iceland, Greenland and the Faroe Islands in response to the febrile nature of whaling negotiations at the time. Committed to ensuring the sustainable use of stocks, NAMMCO provides management advice for marine mammals (aside from polar bears) in the North Atlantic, advanced primarily through two separate Management Committees, addressing Cetaceans, and Seals and Walrus respectively. Despite this broad remit, NAMMCO’s prospective application to whale stocks raised concerns that it could rival the ICRW and encourage further regional splinter arrangements.19 Criticisms of its restricted membership and the lack of sovereign status of half of its participants saw NAMMCO initially dismissed as a ‘fledgling’ incapable of fulfilling Article 65’s requirements.20 NAMMCO has confounded this prognosis, providing a valuable contribution to the science-based management of marine mammals.21 While the conservation status of stocks remains troubling, NAMMCO is nevertheless widely considered ‘appropriate’ to regulate them. 2.2

Highly Migratory Species

Highly migratory species are regulated under Article 64, which is similarly cryptic. The limited number of species subject to this provision are listed in Annex I to the LOSC, which mainly encompasses fish (primarily tuna and tuna-like species as well as oceanic sharks) but also seven families of cetaceans. No other marine mammals are identified as ‘highly migratory’, irrespective of whether they exhibit migratory behaviour across an extended range. For those species that are covered by Article 64, States shall cooperate ‘with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone’. This has compounded the ambiguity associated with these provisions, since Article 65 declares marine mammals to be exempt from the requirement of optimum utilisation, whereas Article 64 suggests that the

Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas (adopted 17 March 1992, entered into force 29 March 1994) 1772 UNTS 217 (ASCOBANS). 18 UN, ‘“Competent or Relevant International Organizations” under the United Nations Convention on the Law of the Sea’ (1996) 31 Law of the Sea Bulletin 79, . 19 David D Caron, ‘The International Whaling Commission and the North Atlantic Marine Mammal Commission: The Institutional Risks of Coercion in Consensual Structures’ (1995) 89 American Journal of International Law 154, 173-174. 20 Greg Rose and Saundra Crane, ‘The Evolution of International Whaling Law’ in Philippe Sands (ed), Greening International Law (Earthscan 1993) 159, 179. 21 Brettny Hardy, ‘A Regional Approach to Whaling: How the North Atlantic Marine Mammal Commission is Shifting the Tides for Whale Management’ (2006) 17 Duke Journal of Comparative and International Law 169. 17

Marine mammals and migratory species  337 species listed on Annex I have a more ambiguous status. Although Article 64 is ultimately motivated towards fisheries regulation, contrary to contemporary advice, the final wording of this provision has retained an application to certain species of cetaceans that are not treated specifically through Articles 65 and 120.22 In 1995, the UN Fish Stocks Agreement (FSA)23 was concluded to further clarify the obligations concerning straddling and highly migratory species skeletally addressed in Articles 63 and 64 of the LOSC. Interestingly, no further definition was forthcoming, aside from the trite observation that such stocks were not sedentary in nature.24 In principle, the small number of species currently designated as ‘highly migratory’ could be extended, although given the cumbersome amendment process of the LOSC25 the list is expected to remain closed to other species. Rather, in the fisheries context, a pragmatic alternative solution has been pursued by particular Regional Fisheries Management Organisations (RFMOs), whose constituent treaties have elaborated more nuanced definitions of the highly migratory species covered by their mandates in order to address a fuller range of species.26

3.

THE INTERNATIONAL REGULATION OF WHALING

In the popular imagination, whales are the quintessential marine mammal. The first multilateral arrangements for the regulation of whaling were facilitated through the League of Nations.27 However, the Convention for the Regulation of Whaling 1931 and the 1937 International Agreement for the Regulation of Whaling28 were time-limited arrangements replaced in 1946 by a novel and more permanent instrument in the form of the ICRW. The ICRW is a concise document, supplemented by a detailed Schedule, and is primarily focused on establishing the IWC. The IWC meets on a regular basis and by simple majority adopts Resolutions to guide its work.29 The IWC may establish ‘such committees as it considers desirable to perform such functions as it may authorize’,30 of which its globally renowned Scientific Committee is the most prominent. In 2003, a Conservation Committee was established31 to bolster the

James AR Nafzinger, ‘Global Conservation and Management of Marine Mammals’ (1980) 17 San Diego Law Review 591, 610. 23 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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (FSA). 24 FSA, Art. 1(1)(c). 25 LOSC, Art. 312. 26 Daniel Owen, ‘Annex I’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 2049, 2064. 27 Omer Aloni, The League of Nations and the Protection of the Environment (CUP 2021) 87-189. 28 International Agreement for the Regulation of Whaling (adopted 8 June 1937, entered into force 7 May 1938) 190 LNTS 80 (IARW). 29 ICRW, Art. III(2). 30 ICRW, Art. III(4). 31 IWC, Resolution 2003-1: The Berlin Initiative on Strengthening the Conservation Agenda of the International Whaling Commission, Annual Report of the International Whaling Commission 2003, 55th Annual Meeting, 2003 . 22

338  Research handbook on international marine environmental law work of the Scientific Committee and explore further synergies with allied institutions. The ICRW applies to ‘whales’, a term that was left undefined, although a ‘Chart of Nomenclature of Whales’ was annexed to the Final Act of the negotiating conference. This has created interpretive difficulties concerning the ability of the IWC to address species beyond this list,32 particularly ‘small cetaceans’, which have been largely regulated elsewhere, primarily under the CMS regime. The IWC is responsible for amending the ICRW Schedule,33 which constitutes ‘an integral part’ of the Convention.34 The Schedule addresses multiple issues, including catch and size limits, protected species, open and closed seasons, sanctuary designations and authorised whaling equipment35 and methods of inspection.36 However, Schedule amendments have become highly contentious in recent years. Amendments require a three-quarters majority of all parties present and voting,37 a requirement that has become increasingly difficult to meet as the membership has expanded significantly since the 1970s to include increasing numbers of parties that are ideologically opposed to continued whaling.38 The most contentious amendment was adopted in 1982, when paragraph 10(e) of the Schedule was amended to set commercial catch limits at zero. While the moratorium on commercial whaling was intended as a temporary measure to allow stocks to recover and for more nuanced management controls to be developed, it is likely to remain in place indefinitely. Despite the moratorium, however, whaling has endured to some extent. Firstly, the ICRW provides an opt-out process to Schedule amendments,39 including the commercial moratorium, exercised most prominently by Norway and Iceland. In the case of the latter, a complicating factor was Iceland’s withdrawal from the ICRW in 1991 and subsequent application for readmission subject to a reservation to the moratorium.40 This was reluctantly approved, although Iceland has announced that its whaling operations are to cease in 2024, given the financial importance of its whale-watching industry.41 In addition, having discontinued commercial whaling in 1988 due to US pressure,42 Japan had controversially been conducting whaling under Article VIII of the ICRW, which permits parties to unilaterally pursue whaling for scientific purposes, subject only to an obligation to report such catches to the IWC. Scientific whaling was first recognised under the 1937 Agreement43 and subsequently retained within the ICRW. Although scientific quotas had

Sean Stephenson, Arne Mooers and Amir Attaran, ‘Does Size Matter? The ICRW and the Inclusion of Small Cetaceans’ (2014) 3(2) Transnational Environmental Law 241. 33 ICRW, Art. V. 34 ICRW, Art. I(1). 35 ICRW, Art. VI(1)(a)-(h). 36 Added by Protocol in 1956. 37 ICRW, Art. III(2). 38 Malgosia Fitzmaurice, Whaling and International Law (CUP 2015) 66-71. 39 ICRW, Art. V(3). 40 Alexander Gillespie, ‘Iceland’s Reservation at the International Whaling Commission’ (2003) 14 European Journal of International Law 977. 41 ‘Iceland to End Whaling in 2024 as Demand Dwindles’ The Guardian (London, 4 February 2022) . 42 Masaru Nishikawa, ‘The Origin of the US-Japan Dispute over the Whaling Moratorium’ (2020) 44 Diplomatic History 315. 43 IARW, Art. 10. 32

Marine mammals and migratory species  339 been historically modest, lethal sampling expanded on an immense scale post-198244 and constituted a de facto substitute for commercial whaling. Tensions over scientific whaling in Antarctica prompted litigation between Australia and Japan,45 with the International Court of Justice declaring in 2014 that the Japanese programme failed to meet the requirements of Article VIII.46 In response, Japan withdrew from the IWC in 2019 and has subsequently resumed commercial whaling, albeit, within its own EEZ. Finally, Section 13 of the ICRW Schedule permits limited catches ‘to satisfy aboriginal subsistence need’. Aboriginal subsistence whaling (ASW) is primarily conducted by Arctic indigenous communities and is regulated nationally, in conjunction with hunting standards and quotas prescribed by the IWC, with the ‘parent’ government applying for a share of the aboriginal allocation on particular stocks by submitting a ‘need statement’.47 ASW has generated sporadic controversies, particularly regarding the revitalisation of whaling traditions among constituents with little nutritional need for such quotas – as occurred in the United States regarding the Makah community48 – and the creeping commercialisation of aboriginal quotas, experienced primarily in Greenland.49

4.

THE INTERNATIONAL REGULATION OF MIGRATORY SPECIES: THE CMS REGIME

Although the travails of the whaling regime and the enduring ambiguities of key provisions of the LOSC have monopolised the legal literature on marine mammals, the CMS has provided an unheralded,50 yet innovative, regulatory framework for highly mobile species. Vast numbers of animals are ‘migratory’ in nature,51 but while certain species enjoyed some regu-

44 Alexander Gillespie, Whaling Diplomacy: Defining Issues in International Environmental Law (Edward Elgar 2005) 120. 45 Anastasia Telesetsky, Donald K Anton and Timo Koivurova, ‘ICJ’s Decision in Australia v. Japan: Giving Up the Spear or Refining the Scientific Design?’ (2014) 45 Ocean Development and International Law 328; Richard Caddell, ‘Science Friction: Antarctic Research Whaling and the International Court of Justice’ (2014) 26 Journal of Environmental Law 331. 46 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) [2014] ICJ Reports 226. See also, Natalie Klein and Millicent McCreath, ‘Resolving International Disputes concerning the Marine Environment’, Chapter 6 in this volume. 47 Fitzmaurice (n 38) 254-260. 48 Jeremy Firestone and Jonathan Lilley, ‘Aboriginal Subsistence Whaling and the Right to Practice and Revitalize Cultural Traditions and Customs’ (2005) 8 Journal of International Wildlife Law and Policy 177. 49 Martin Hennig and Richard Caddell, ‘On Thin Ice? Arctic Indigenous Communities, the European Union and the Sustainable Use of Marine Mammals’ in Nengye Liu, Elizabeth A Kirk and Tore Henriksen (eds), The European Union and the Arctic (Brill 2017) 296, 328-334. 50 Richard Caddell, Migratory Species and International Law: Challenges of Transboundary Conservation (Edward Elgar forthcoming); Catherine Redgwell, Michael Bowman and Peter Davies, Lyster’s International Wildlife Law (2nd ed, CUP 2010) 535-582. 51 Hugh Dingle and V Alistair Drake, ‘What is Migration?’ (2007) 57 Bioscience 113, 117.

340  Research handbook on international marine environmental law lation under early natural resources treaties,52 the CMS is the first regime to address migratory animals holistically.53 The value of the CMS is two-fold. Firstly, it prescribes overarching obligations concerning the eclectic and extensive assortment of species under its regulatory purview, including numerous marine species, notably cetaceans, seals, turtles, sharks and seabirds. Secondly, and perhaps more practically significant, the CMS has generated a further tier of regulation for particular species by sponsoring additional subsidiary instruments under its auspices. Aquatic species54 have been notable beneficiaries of this approach, with several CMS subsidiary instruments representing the most significant multilateral obligations concerning these animals. Despite its ambitious scope, the CMS was initially disparaged as a ‘sleeping treaty’ that lacked the necessary impetus to effectively regulate a wide range of different species.55 The CMS has also been justifiably criticised for lacking resources,56 effective compliance mechanisms57 and, at times, participants.58 These issues notwithstanding, the CMS has expanded markedly in coverage and participation since the early 1990s – when the first of what is now an extensive suite of subsidiary instruments was adopted under its auspices – and currently features a global membership of 133 parties. Moreover, ratification of the CMS is not a pre-requisite to participation in its subsidiary instruments, which remain free-standing initiatives, even if their core obligations and regulatory philosophies often reflect those of the parent convention. Engagement with the broader work of the CMS thus extends beyond its formal parties, with conservation initiatives having been developed under these subsidiary instruments in most regions of the planet. 4.1

The CMS Framework

The CMS seeks ‘concerted action’ from all States in which migratory species ‘spend any part of their life cycle’.59 Migratory species are defined expansively as ‘the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, Cyril De Klemm, ‘Migratory Species in International Law’ (1989) 29 Natural Resources Journal 935, 938-976; Mark Cioc, The Game of Conservation: International Treaties to Protect the World’s Migratory Animals (Ohio University Press 2009) 14-147. 53 Declaration of the United Nations Conference on the Human Environment, UN Doc A/ CONF.48/144 (1972), reprinted in 11 International Legal Materials 1416 (1972), Recommendation 32. 54 Administratively and scientifically, the CMS addresses seabirds through its ‘Avian Species’ teams. This section mirrors this approach and only considers species included within the CMS remits of ‘Aquatic Species’ (Secretariat) or ‘Aquatic Mammals’ (Scientific Council), notwithstanding the significance of seabirds to international marine environmental governance. 55 Simon Lyster, International Wildlife Law: An Analysis of International Treaties Concerned with the Conservation of Wildlife (CUP 1985) 301. 56 Richard Caddell, ‘International Law and the Protection of Migratory Wildlife: An Appraisal of Twenty-Five Years of the Bonn Convention’ (2005) 16 Colorado Journal of International Environmental Law and Policy 113, 140-141. 57 Catherine Redgwell, ‘The Challenge of Effective Compliance and Enforcement with International Environmental Law’ in Jacques Hartmann and Urfan Khaliq (eds), The Achievements of International Law: Essays in Honour of Robin Churchill (Hart 2021) 259, 274-275. 58 Nele Matz, ‘Chaos or Coherence? Implementing and Enforcing the Conservation of Migratory Species through Various Legal Instruments’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 197, 208-210. 59 CMS, Preamble. 52

Marine mammals and migratory species  341 a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries’.60 Migratory status is thus less dependent upon express biological criteria than the need for natural movements to coincidentally traverse national borders. This has allowed the CMS to regulate certain charismatic species – notably primates – that might otherwise be subject to few multilateral obligations concerning habitat quality. Article I also indicates that a considerable volume of baseline knowledge is required for a protective designation under the CMS. This raised initial concerns that the listing of highly mobile marine species could be stymied by difficulties in attaining the necessary data concerning their migratory pathways.61 Over time, however, these fears have receded, and aquatic species now account for a significant proportion of its activity. As with many biodiversity instruments, the CMS provides tiered levels of protection by listing species upon its Appendices according to their degree of endangerment. ‘Endangered’ species are assigned to Appendix I, mandating ‘immediate protection’,62 while those with an ‘unfavourable conservation status’ are assigned to Appendix II, for which parties may conclude subsidiary instruments to address their conservation and management needs.63 To date, over 100 species have been listed in Appendix I as being endangered and thus in danger of extinction throughout all or a significant portion of their range,64 including many marine species. Aside from conservation measures to address the causes of extinction risk, such as habitat loss and impediments to migration,65 the Conference of the Parties (COP) has a broad remit to recommend protective measures to be taken by the relevant Range States.66 The COPs have regularly generated overarching commitments in respect of both individual marine species and distinct conservation threats to be implemented by the parties and pursued further within pertinent subsidiary instruments. Limited exceptions apply to these commitments, allowing for the ‘taking’ of individuals in circumstances broadly reminiscent of the terms of the ICRW.67 Taking is permitted for ‘scientific purposes’, albeit that this provision has not been actively raised in the context of marine mammals – primarily because those States that have conducted scientific whaling are not parties to the CMS – and has thus proved far less contentious than in other bodies. Similarly, echoing the ASW exemption under the ICRW, Appendix I species may be taken to accommodate the needs of ‘traditional subsistence users’.68 Again, this has not been actively invoked in the context of endangered marine species and the CMS has thus avoided the sustained difficulties associated with non-commercial catches experienced within the IWC. The substantive focus of the CMS has largely concerned Appendix II species, whereby a complex but innovative framework facilitates the elaboration of further subsidiary instruments to promote their conservation, which range from binding agreements to informal approaches. Species are listed on Appendix II if they fail to meet criteria for a ‘favourable

62 63 64 65 66 67 68 60 61

CMS, Art. I(1)(a). William T Burke, The New International Law of Fisheries (OUP 1994) 283. CMS, Art. II(3)(b). CMS, Art. II(3)(c). CMS, Art. I(1)(e). CMS, Art. III(4). CMS, Art. III(6). CMS, Art. III(5). Ibid.

342  Research handbook on international marine environmental law conservation status’69 which is triggered by diminishing natural ranges, habitat quality and distribution and abundance.70 To date a wide array of marine species have been so listed. Two distinct types of formal CMS subsidiary instruments are envisaged, which are inelegantly and confusingly delineated as an ‘AGREEMENT’ elaborated under Article IV(3) of the Convention and an ‘agreement’ concluded pursuant to Article IV(4), the former term capitalised to distinguish such instruments from the latter. Under Article IV(3), the CMS mandates the development of AGREEMENTs for species listed in Appendix II, while Article IV(4) applies more loosely to ‘any population or any geographically separate part of the population of any species or lower taxon of wild animals, members of which periodically cross one or more national jurisdiction boundaries’. Accordingly, while Article IV(3) AGREEMENTs are reserved for listed species, Article IV(4) agreements could technically apply to a far broader array of animals, some of which may not meet the threshold for listing, but are migratory in nature and would benefit from multilateral action. The precise inter-relationship between the two concepts is blurry71 and any previously intended hierarchy has long been disregarded for the sake of practical expediency. Ultimately, Article IV(4) has proved to be a far more attractive legal avenue for the conclusion of subsidiary instruments. Given their qualifying restrictions, AGREEMENTs remain a comparatively rare initiative: of the 26 subsidiary instruments concluded to date, only four were conceived under Article IV(3). Aside from migratory birds with a marine presence, all the CMS subsidiaries with a focus on aquatic species have been established under Article IV(4). For Appendix II species, Article V(1) envisages that AGREEMENTs should ‘restore the migratory species concerned to a favourable conservation status or to maintain it in such a status’. They should ‘cover the whole of the range of the migratory species concerned and should be open to accession by all Range States of that species’, irrespective of accession to the parent convention and ‘wherever possible’ address more than one migratory species. Article V(4) specifies five fundamental features that should be common to each AGREEMENT, namely that they should: identify the migratory species concerned; describe their range and migration route; make provision for each party to designate a national authority concerned with the implementation of the AGREEMENT; establish appropriate machinery to implement the AGREEMENT, monitor its effectiveness and prepare reports for the COP; and provide for procedures for the resolution of disputes. A sixth requirement is also established for AGREEMENTs specifically addressing cetaceans, whereby ‘at a minimum’ they must prohibit takings and allow for accession by non-Range States.72 This provision thus frames co-existence between the CMS with the IWC. Unlike the whaling regime, however, Article V(4)(f) refers simply to ‘migratory species of the Order Cetacea’ thereby applying to any species of cetacean that meets the Convention’s definition of ‘migratory’. The CMS accordingly represents a rare international framework

CMS, Appendix II, Art. I(1)(d). CMS, Appendix II, Art. I(1)(c). 71 See further, CMS, A History of “AGREEMENTS” under Article IV.3 and “agreements” under Article IV.4 in the Convention on Migratory Species (Prepared by Professor Chris Wold), Doc UNEP/CMS/COP11/Inf.31, 25 September 2014 . 72 CMS, Art. V(4)(f). 69 70

Marine mammals and migratory species  343 that applies unequivocally to both ‘large’ and ‘small’ species of cetaceans, carving a valuable regulatory niche as a forum with undisputed competence over smaller species. Given this emphasis, the CMS clearly envisaged that Article IV(3) AGREEMENTs would be prioritised for cetaceans, an approach further advocated in early Resolutions of its COP.73 However, this has not transpired in practice, primarily because the requirements of Article V(4) set an extremely high threshold of data concerning migratory routes in order to legitimately establish an AGREEMENT, impeding efforts to proceed on this basis.74 In contrast, the CMS does not specify any guidelines for the elaboration of Article IV(4) agreements, allowing the parties greater freedom to determine their structure and species coverage, as reflected in the practice and design of these instruments to date. In addition to the various agreements/AGREEMENTS provided for, the CMS also facilitates the adoption of non-binding Memoranda of Understanding (MOUs),75 a number of which have been adopted for marine species. Further non-binding approaches include single- or multi-species Action Plans, adopted both by the CMS and its subsidiaries,76 and Concerted Actions77 that build partnerships between Range States and other pertinent actors for the conservation of particular species. Both approaches have been utilised frequently in the context of aquatic species and provide scope to test the regulatory mood for the prospective development of more formalised initiatives.78 4.2 Cetaceans Cetaceans have consistently occupied a prominent position on the CMS agenda, with four subsidiary instruments having been concluded to regulate these species. These comprise two binding regional agreements within European waters, which are among the most significant and long-standing CMS subsidiaries adopted to date, as well as two less formal MOUs addressing the Pacific Islands region and West Africa respectively. 4.2.1 ASCOBANS The Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS), as this instrument was originally named,79 is the first – and to date only – multilateral instrument expressly regulating small cetaceans, thus occupying a unique position 73 CMS, Resolution 2.3 Incidental Take of Small Cetaceans (Bonn 1997), S/UnacceptableInteractions/ Part-I/2015 Inf.02, 01 July 2015 . 74 Hugo Nijkamp and André Nollkaemper, ‘The Protection of Small Cetaceans in the Face of Uncertainty: An Analysis of the ASCOBANS Agreement’ (1997) 9 Georgetown International Environmental Law Review 281, 288-289. 75 Clare Shine, ‘Selected Agreements Concluded Pursuant to the Convention on the Conservation of Migratory Species of Wild Animals’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (OUP 2003) 196-222. 76 See, CMS, ‘Action Plans’ . 77 See, CMS, ‘Concerted Actions’ . 78 For example, the European eel (previously subject to Concerted Action 12.1). See, Chris Wold, ‘Bringing the European Eel Back from the Brink: The Need for a New Agreement under the Convention on Migratory Species’ (2018) 35 Pace Environmental Law Review 168. 79 Following its enlargement in 2008, ASCOBANS was formally re-named the Agreement on the Conservation of Small Cetaceans of the Baltic, North-East Atlantic, Irish and North Seas. Amendment

344  Research handbook on international marine environmental law in the framework of marine mammal treaties. The conclusion of a subsidiary instrument to address small cetaceans, focusing on dolphins and porpoises in the Baltic and North Seas, was an early priority for the CMS, as mandated at its first COP.80 While initial discussions foundered, further impetus was provided at the second COP, where numerous cetaceans were listed on Appendix II. Strong concerns were raised about harbour porpoises, which successfully revived negotiations towards a subsidiary instrument ahead of the third COP. ASCOBANS concerns ‘all small cetaceans found within the area of the Agreement’,81 encompassing ‘any species, subspecies or population of toothed whales Odontoceti, except the sperm whale Physter macrocephalus’.82 This definition also excludes minke whales, a prominent small cetacean in these waters, primarily as they are baleen whales, but also because this species was not sufficiently threatened to justify inclusion on the CMS Appendices, was arguably more appropriately regulated by the IWC, and their inclusion was not conducive to potential Norwegian engagement.83 ASCOBANS is open to participation by Range States and Regional Economic Integration Organisations that exercise jurisdiction within the range of these species or whose vessels fish on the high seas in a manner that adversely affects small cetaceans.84 Ten parties have acceded to ASCOBANS to date. Initially, ASCOBANS applied to the ‘marine environment of the Baltic and North Seas’85 but was later expanded westwards to better incorporate the migratory ranges of the relevant species, including in waters of Ireland, Portugal and Spain.86 However, none of these newly eligible states have yet joined, largely because these States wish ASCOBANS to include all species of cetaceans, thus providing parity of species coverage with both EU law and ASCOBANS’s companion agreement for the Black Sea, Mediterranean Sea and Contiguous Atlantic Area. Concurrently, the further extension of ASCOBANS to incorporate additional species has been staunchly resisted internally, especially by the Baltic States parties, for which the specific protection of the Baltic harbour porpoise was the key motivation for sponsoring the negotiation of the Agreement.87 Despite regular outreach efforts, no further parties have joined ASCOBANS since 2005, due either to a lack of cetaceans in national waters (Latvia and Estonia) or general ambivalence towards the CMS (Russia), while Norway has declined

to the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (adopted on 22 August 2003, entered into force 3 February 2008) 2504 UNTS 233, Art. 3. 80 CMS, Resolution 1.6 Agreements (COP 1, Oct 1985), CMS Resolutions And Recommendations 1985-2008, UNEP/CMS/Inf.10.19, 14 June 2011 . 81 ASCOBANS, para. 1.1. 82 ASCOBANS, para. 1.2(a). Sperm whales are classed as ‘large’ cetaceans and therefore beyond the Agreement’s scope. 83 CMS, Report of the First Meeting of the Scientific Council, CMS/Conf.2.12.2/Add.1, 11 October 1988, para. 5. 84 ASCOBANS, para. 1.2(f). 85 Ibid, para. 1.2(b). 86 ASCOBANS, Resolution No. 4.4 Extension of the ASCOBANS Agreement Area, UNEP/ ASCOBANS/Resolution 4.4, 22 August 2003 . 87 Thematic and geographical enlargement remain under consideration to at least some degree, with an Extension Area Working Group and an Informal Working Group on Large Cetaceans having operated for numerous years, with the former having now been subsumed into the work of the latter.

Marine mammals and migratory species  345 to accede unless the Agreement text is amended to endorse the sustainable harvesting of cetaceans and lethal scientific research.88 In terms of institutional structure, ASCOBANS comprises a Meeting of the Parties (MOP) as its primary decision-making organ, convened triennially, alongside an Advisory Committee, which meets annually. Unlike the CMS, ASCOBANS does not have a formal scientific body, although this function is performed partly by the Advisory Committee, which is charged with providing ‘expert advice’,89 alongside the scientific organs of the CMS. In 2007, following an acrimonious fifth MOP at which strong concerns were expressed about spiralling operational costs, casting existential doubt over the long-term future of the Agreement, the executive and Secretariat branches of ASCOBANS were merged with those of the CMS and incorporated within its Aquatic Species Unit.90 This hybrid model of a stand-alone agreement anchored within the CMS has since been replicated by other subsidiary instruments to secure their financial viability. ASCOBANS seeks to achieve and maintain a ‘favourable conservation status’ for small cetaceans,91 with bycatches, habitat deterioration and disturbance identified as the most pressing conservation threats facing these species.92 To this end, the Agreement’s Conservation and Management Plan identifies a number of priority areas of activity, including habitat conservation and management, whereby participants are to work towards preventing the release of harmful substances, bycatch mitigation, reducing threats to food resources and reducing disturbance, especially acoustic in nature; improving scientific knowledge; prohibiting directed catches and releasing any live caught cetaceans; as well as education and outreach requirements. ASCOBANS cohabits regulatory space – both thematically and geographically – with a host of other institutions, raising the spectre of potential treaty congestion. In this respect, helpful informal linkages have been established with a number of organisations. The IWC has ‘recognis[ed] the relevance’ of ASCOBANS for the protection of the harbour porpoise and has called upon Range States to provide full information on population distribution and abundance, stock identities, pollutant levels, and bycatch mortality and to give ‘high priority’ to reducing bycatches of such species.93 Interactions between ASCOBANS and the IWC have been limited but harmonious,94 with the latter recognising the former as a key institution in the regulation of small cetaceans that has proven so contentious under the ICRW. ASCOBANS has also navigated a delicate relationship with the European Union (EU), which has adopted an array of legislation and policies concerning cetaceans. Aside from the post-Brexit United Kingdom, all ASCOBANS parties are subject to the EU’s Common Fisheries Policy, which remains the primary source of fisheries management and marine envi-

ASCOBANS, Report of the Fifth Meeting of the Advisory Committee to ASCOBANS (Hel, Poland, 22-24 April 1998) 12. 89 ASCOBANS, para. 5.1. 90 ASCOBANS, Resolution 5.2d Joining the Forces of ASCOBANS and CMS for Improved Management and Operation of the ASCOBANS Secretariat, UNEP/ASCOBANS/Resolution5.2d, 12 December 2006. 91 Ibid, para. 2.1. 92 ASCOBANS, Preamble. 93 IWC, Resolution 1993-11: Resolution on Harbour Porpoise in the North Atlantic and the Baltic Sea, Annual Report of the International Whaling Commission 1994 (45th Annual Meeting, 1993) 11. 94 Fitzmaurice (n 38) 195-197. 88

346  Research handbook on international marine environmental law ronmental obligations in these waters. Given that much of the work of ASCOBANS concerns bycatch mitigation, a close working relationship with the EU is fundamental to the effective pursuit of these ambitions. The EU has signed but not ratified ASCOBANS and has proved a somewhat ambiguous partner to the Agreement, in marked contrast to its engagement with those CMS subsidiaries to which it has become a formal party.95 Beyond the EU, given their opposing views on directed hunting, ASCOBANS and NAMMCO had traditionally been reticent regulatory neighbours for much of their respective tenures. However, this has become markedly more cordial in recent years as these organisations have steadily developed a valuable scientific partnership given their mutual interests in small cetacean management and ecosystem health.96 Unsurprisingly, however, by far the closest regulatory alignment has occurred between ASCOBANS and another CMS subsidiary instrument, the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS),97 which shares multiple common parties and with which an array of joint work programmes and policies have been pursued addressing issues and species of mutual concern. 4.2.2 ACCOBAMS ACCOBAMS grew from a working group on small cetaceans convened in 1989 by the Council of Europe in response to an epizootic afflicting striped dolphins in the Mediterranean.98 In February 1991, the IUCN and the secretariats of the Bern Convention,99 Barcelona Convention100 and CMS met to consider a draft agreement prepared by Greenpeace International to protect small cetaceans in the region. The CMS was identified as the most appropriate forum to develop any future regional instrument, and negotiations were held between 1991 and 1996. By September 1995, despite initial misgivings over potential conflict with the IWC,101 given the shared threats facing marine mammals in these waters, the negotiating text was expanded to incorporate all species of cetaceans.102 ACCOBAMS connects two marine regions, the Richard Caddell, ‘Biodiversity Loss and the Prospects for International Cooperation: EU Law and the Conservation of Migratory Species of Wild Animals’ (2008) 8 Yearbook of European Environmental Law 218. 96 ASCOBANS, Resolution 8.2: Work Plan for the ASCOBANS Advisory Committee and Secretariat 2017-2020 and Strategic Plan for Migratory Species 2015-2023, NRWG1/Inf.5, 06 February 2019. 97 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic area (adopted 24 November 1996, entered into force 1 June 2001) 2183 UNTS 303 (ACCOBAMS). 98 William CG Burns, ‘The Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS): A Regional Response to the Threats Facing Cetaceans’ (1998) 1 Journal of International Wildlife Law and Policy 113, 114. 99 Convention on the Conservation of European Wildlife and Natural Habitats (adopted 19 September 1979, entered into force 1 June 1982) 1284 UNTS 209 (Bern Convention). 100 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (adopted 10 June 1995, entered into force 9 July 2004), amending Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention). 101 CMS, Report of the Sixth Meeting of the CMS Scientific Council (Bonn, 1-3 November 1995), UNEP/CMS/ScC6/Report, 5 August 2016, para. 11. 102 Alexander Gillespie ‘Small Cetaceans, International Law and the International Whaling Commission’ in William CG Burns and Alexander Gillespie (eds), The Future of Cetaceans in a Changing World (Transnational Publishers 2003) 279. 95

Marine mammals and migratory species  347 Mediterranean and the Black Sea, for which no previous species-specific instrument had been advanced on a similar scale. To secure regional regulatory parity, ACCOBAMS required the ratification of seven eligible participants, with at least two drawn from the Black Sea area.103 However, political complications in the Black Sea region, including boundary disputes and an unsuccessful initiative to establish a common fisheries policy, delayed this outcome for several years.104 Having been opened for signature in 1996, ACCOBAMS finally became operational on 1 June 2001. ACCOBAMS is considerably broader in scope than ASCOBANS, applying to ‘all cetaceans that have a range which lies entirely or partly within the Agreement area or that accidentally or occasionally frequent the Agreement area’.105 As originally formulated, the Agreement Area encompassed all the maritime waters of the Black Sea and Mediterranean Sea, their gulfs and seas and any connected or interconnecting internal waters, as well as the Atlantic area lying contiguous to the Mediterranean Sea west of the Straits of Gibraltar.106 In 2010, following the ASCOBANS expansion, the ACCOBAMS parties also extended its parameters to equate with those of the extended ASCOBANS, although this has yet to attract sufficient ratifications to enter into effect.107 ACCOBAMS is open to ‘any Range State, whether or not areas under its jurisdiction lie within the Agreement area’,108 and currently has 24 parties. The MOP is the primary decision-making forum of ACCOBAMS, charged with inter alia, reviewing scientific assessments of the conservation status of cetaceans, monitoring implementation of the Agreement and making recommendations to the parties.109 Alongside State parties, ACCOBAMS recognises the vital role played by NGOs and scientific bodies in its work by conferring ‘ACCOBAMS Partner’ status upon organisations that ‘have the potential to contribute to the mission of the Agreement’,110 which may officially contribute to policies and guidelines. Beyond this, the institutional structure of ACCOBAMS differs markedly from ASCOBANS. Instead of an Advisory Committee, ACCOBAMS divides these functions between a Bureau and a Scientific Committee. The former operates as a policy coordinator between the MOP and the Scientific Committee, while the latter focuses on research and development of conservation priorities and policies.111 A further innovation is the establishment of sub-regional coordination units, which are charged with implementing con-

ACCOBAMS, Art. XIV(1). Robin Churchill, ‘Sustaining Small Cetaceans: A Preliminary Evaluation of the Ascobans and Accobams Agreements’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (OUP 2001) 225, 246-247. 105 ACCOBAMS, Art. I(2). The ‘range’ of a species extends to ‘all areas of water that a cetacean inhabits, stays in temporarily, or crosses at any time on its normal migration route within the Agreement area’: Art. I(3)(f). 106 ACCOBAMS, Art. I(1)(a). 107 ACCOBAMS, Resolution A/4.1: Extension of the ACCOBAMS Geographical Scope, ACCOBAMSMOP4/2010/Res.A/4.1 (ACCOBAMS will eventually be renamed as the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and neighbouring Atlantic Area). 108 ACCOBAMS, Art. XIII(1). 109 ACCOBAMS, Art. III. 110 ACCOBAMS, Resolution 7.9: ACCOBAMS Partners. ACCOBAMS-MOP7/2019/Doc38/ Annex15/Res7.9, . 111 ACCOBAMS, Art. VII(3). 103 104

348  Research handbook on international marine environmental law servation priorities and collecting relevant data within the Black Sea and Mediterranean region respectively.112 ACCOBAMS draws upon the pre-existing capacity of the respective Regional Seas Agreements, formalising engagement with key regional actors at a preliminary stage. A Secretariat113 is underwritten by Monaco, thus insulating ACCOBAMS from the financial instability experienced by other CMS subsidiaries. Like ASCOBANS, ACCOBAMS seeks to achieve and maintain a favourable conservation status for the species under its purview, prohibiting deliberate takings and seeking to facilitate a network of specially protected areas for cetaceans.114 Similarly, the Agreement features a Conservation Plan that coalesces around six core priorities, namely the adoption and enforcement of national legislation, assessment and management of human-cetacean interactions, habitat protection, research and monitoring, capacity building and responding to emergency situations.115 Parties to ACCOBAMS are expressly required to apply the precautionary principle in implementing these approaches,116 a requirement absent from ASCOBANS that is broadly considered to be to the detriment of the latter Agreement.117 The suite of activities mandated in the Conservation Plan are augmented by policies developed through the MOP, of which seven have been concluded to date, as well as a periodically updated ACCOBAMS Strategy, revised most recently in 2019.118 Key policy areas have included familiar problems related to bycatches119 and ocean noise,120 alongside conservation threats that have often been neglected in other forums, such as ship-strikes,121 cetacean captivity122 and ecotourism.123 ACCOBAMS has also produced a significant number of conservation Guidelines124 as well as mapping critical habitats and cetacean-human interaction hotspots to facilitate more targeted spatial policies within the Agreement Area.

ACCOBAMS, Art. V(1). ACCOBAMS, Art. IV. 114 ACCOBAMS, Art. II(1). 115 ACCOBAMS, Art. II(3). 116 ACCOBAMS, Art. II(4). 117 Nijkamp and Nollkaemper (n 74) 290. 118 ACCOBAMS, Resolution 7.4: ACCOBAMS Strategy, ACCOBAMS-MOP7/2019/Res7.4 . 119 ACCOBAMS, Resolution 7.11: Interactions between Fisheries and Cetaceans, ACCOBAMSMOP7/2019/Res7.11 . 120 ACCOBAMS, Resolution 7.13: Anthropogenic Noise, ACCOBAMS-MOP7/2019/Res7.13 . 121 ACCOBAMS, Resolution 7.12: Ship Strikes, ACCOBAMS-MOP7/2019/Res7.12 ; Richard Caddell, ‘Shipping and the Conservation of Marine Biodiversity: Legal Responses to Vessel-Strikes of Marine Mammals’ in Richard Caddell and D Rhidian Thomas (eds), Shipping, Law and the Marine Environment in the Twenty-First Century (Lawtext 2013) 89. 122 Arie Trouwborst, Richard Caddell and Ed Couzens, ‘To Free or Not to Free? State Obligations and the Rescue and Release of Marine Mammals. A Case Study of Morgan the Orca’ (2013) 2 Transnational Environmental Law 117. 123 ACCOBAMS, Resolution 7.16: Commercial Cetacean Watching Activities, ACCOBAMSMOP7/2019/Res7.16 . 124 ACCOBAMS, ‘Guidelines’ . 112 113

Marine mammals and migratory species  349 Regulatory coexistence is similarly important to the work of ACCOBAMS. Relations with the IWC have been congenial, notwithstanding some inherent scope for conflict if the moratorium on commercial whaling is lifted,125 and productive partnerships have been developed on issues such as ship-strikes and anthropogenic noise, facilitated by the involvement of key IWC staff within the ACCOBAMS Scientific Committee. As with ASCOBANS, the EU remains a significant regulatory cohabitee, and has signed but not ratified the Agreement. Again, a broadly harmonious relationship has endured, notwithstanding divergent approaches to aspects of bycatch mitigation,126 and ACCOBAMS has actively sought to contribute to the EU’s ongoing marine strategy for these waters.127 Valuable interactions have also been forthcoming with the General Fisheries Commission for the Mediterranean,128 facilitating a joint approach to bycatch mitigation129 and promoting closer regulatory ties between these key actors. 4.2.3 Non-binding instruments The first non-binding instrument concerning cetaceans adopted under the CMS was the MOU for the Conservation of Cetaceans and their Habitats in the Pacific Islands Region,130 which was developed in partnership with the Secretariat of the Pacific Regional Environmental Programme (SPREP) in 2006. It has 22 signatories, comprising 15 States and territories and seven cooperating organisations. The Pacific Islands MOU identifies a number of conservation challenges facing cetaceans including directed hunting, incidental capture, habitat degradation and disturbance, chemical and noise pollution, prey depletion, ship strikes and climate change.131 Uniquely, given the anthropological importance of cetaceans in the region, these species are protected both for ecological and cultural reasons. Conservation priorities are articulated through the SPREP Whale and Dolphin Action Plan, appended to the MOU.132 The initial Action Plan comprised 31 action points of varying significance, albeit in a disjointed and chaotic order that rendered it a challenging instrument to seek to implement. Indeed, at a preliminary stage the Action Plan was criticised for lacking ‘clear priorities/timelines, [being] too focussed on IWC issues and […] not [being] “implementation-friendly”’.133 The Action Plan has subsequently been updated twice by successive Meetings of the Signatories

Fitzmaurice (n 38) 198-199. Caddell (n 95). 127 ACCOBAMS, Resolution 4.8: Contribution from ACCOBAMS to the implementation of the Marine Strategy Framework Directive, ACCOBAMS-MOP4/2010/Res4.8 . 128 ACCOBAMS, Resolution 3.8: Strengthening Collaboration with the General Fisheries Commission for the Mediterranean, ACCOBAMS-MOP3/2007/Res3.8 ; GFCM, Resolution GFCM/43/2019/2 on enhancing the conservation of cetaceans in the GFCM area of application, GFCM/43/2019/2 . 129 FAO, ‘General Fisheries Commission for the Mediterranean - GFCM’ . 130 CMS, the Memorandum of Understanding for the Conservation of Cetaceans and their Habitats in the Pacific Islands Region, UNEP/CMS/PIC-1/Inf/3, 15 September 2006. 131 Ibid, preamble. 132 Ibid, para. 4. 133 CMS, Report of the Technical Meeting on Cetaceans in the Pacific Islands Region, Doc. UNEP/ CMS/PIC-1/5/Add.1, 20 March 2007, 8. 125 126

350  Research handbook on international marine environmental law (MOS), with clearer prioritisation imposed at the Third MOS in 2012. Despite initial progress, however, financial constraints precipitated a period of institutional abeyance, and a Fourth MOP was only convened in 2021, with cetacean initiatives during the intervening period having been pursued through SPREP. There are nevertheless welcome indications of further momentum, with a new Whale and Dolphin Conservation Plan developed for the 2022-2025 period. In October 2008, the MOU Concerning the Conservation of the Manatee and Small Cetaceans of Western Africa and Macaronesia was concluded.134 A proposal to extend this initiative to all cetaceans was rejected on the basis that the original CMS mandate to develop a subsidiary instrument was confined to specific species and, while subsequent expansion was not discounted,135 there was a clear consensus that the exclusion of large cetaceans would also ‘avoid complicated relations with the IWC’.136 The MOU’s conservation priorities are identified within its constituent Action Plans, addressing manatees and small cetaceans respectively. Primary concerns include mitigating fisheries impacts, identifying critical habitats and instituting protected areas and addressing chemical pollution and acoustic disturbances, alongside data collection, capacity building, outreach and the need to promote sustainable and responsible tourism. Unlike the Pacific Islands MOU, however, little subsequent activity has occurred under these auspices. Despite immediately securing the commitment of 17 States and six Collaborating Organisations, no MOS has yet been convened. The MOU has struggled financially since its inception,137 which has regrettably stymied an initiative that presented valuable scope to link effectively with ACCOBAMS and similar instruments addressing dugongs and turtles. 4.3 Dugongs The development of a CMS subsidiary instrument to address dugongs grew from regional discussions on the protection of a host of marine mammals in South-East Asia. By 2005, dugong protection had been formally decoupled from a stalled small cetacean initiative for these waters,138 and, in 2007, the MOU on the Conservation and Management of Dugongs (Dugong dugon) and their Habitats throughout their Range was adopted.139 The MOU recognises that dugongs are particularly threatened by habitat loss, vessels strikes, fisheries, poaching, poorly regulated tourism activities and insensitive coastal Memorandum of Understanding Concerning the Conservation of the Manatee and Small Cetaceans of Western Africa and Macaronesia, 3 October 2008 . 135 CMS, Options for International Cooperation on Cetaceans and Sirenians Conservation in the African Eastern Atlantic Basins under CMS, UNEP/CMS-WATCH-Doc.4, 13 October 2007, 1-2. 136 CMS, WATCH Meeting in Progress in Tenerife, CMS Press Release, 19 October 2007. 137 CMS, Report of the Thirty-Second Meeting of the Standing Committee (Bonn, 8-9 November 2007), UNEP/CMS/StC32/Report, 8 November 2007, 9. 138 CMS, Resolution 8.5: Implementation of Existing Agreements and Development of Future Agreements, UNEP/CMS/Resolution 8.5, 25 November 2005. 139 CMS, Memorandum of Understanding on the Conservation and Management of Dugongs and their Habitats throughout their Range, 31 October 2007 (Dugong dugon). The UAE has provided extensive logistical and financial support to certain subsidiary instruments and operates a unique regional hub for the implementation of the CMS outside its home base of Bonn. 134

Marine mammals and migratory species  351 development,140 and seeks to restore or maintain a favourable conservation status for these animals.141 Signatories undertake to protect dugongs within their territories, promote national legislation and policies and to cooperate with other Range States to facilitate the conservation of these species.142 An extensive Action Plan is appended to the MOU, comprising a series of conservation strategies centred around nine core objectives. These include reducing direct and incidental mortality of dugongs, primarily by regulating subsistence catches and implementing bycatch mitigation measures; improving baseline data on dugongs; protecting and conserving critical habitats, primarily seagrass areas; undertaking educational and awareness raising activities; enhancing national, regional and international cooperation; promoting the coherent implementation of the MOU; improving legal protection for dugongs and their habitats; and enhancing conservation capacity.143 The MOU has attracted 27 signatories, including eight non-parties to the CMS, although a number of important Range States have remained outside this framework. Implementation of the MOU is reviewed through periodic MOS, of which three have been officially144 convened to date. At the most recent MOS in 2017, the signatories identified seagrass conservation projects as a flagship success for the MOU, which can be objectively viewed as having catalysed national initiatives to address these threatened habitats.145 Less positively, however, dugongs remain imperilled by illegal trade,146 strongly suggesting a gap in collaborative action between the CMS and the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (CITES),147 while the Conservation and Management Plan itself has not been updated since its adoption in 2007.148 4.4 Seals Unlike other marine mammals, pinnipeds are not subject to global conservation treaties and have been historically managed ‘out of necessity’,149 where poorly controlled hunting activities have either imperilled the stocks themselves or regional relations between States. Similarly, seals have received comparatively limited attention within the CMS. As Sellheim observes, none of the species that are harvested either commercially or for subsistence purposes have been listed under the CMS,150 with specific protection accorded to only five species of seal, plus the South American sealion. To date, the Mediterranean monk seal (1979) and the Caspian seal (2018) have been listed on both Appendices, while Baltic and Wadden Ibid, preamble. Ibid, para. 1. 142 Ibid, para. 5. 143 CMS, Conservation and Management Plan for the Memorandum of Understanding on the Conservation and Management of Dugongs (Dugong dugon) and their Habitats throughout their Range, 31 October 2007 . 144 An informal MOS was also convened in 2008; hence four meetings have technically occurred. 145 CMS, Report of the Third Meeting of the Signatories to the Dugong MoU, CMS/Dugong/MOS3/ Report*, 14 June 2017, 10. 146 Ibid. 147 CITES (n 5). 148 CMS, Report of the Third Meeting of the Signatories to the Dugong MoU (n 145) 15. 149 Jefferies (n 7) 39. 150 Nikolas Sellheim, The Seal Hunt: Cultures, Economies and Legal Regimes (Brill 2018) 137. 140 141

352  Research handbook on international marine environmental law Sea populations of common/harbour seals, Baltic grey seals and South American fur seals are listed on Appendix II. Of these, the latter species has been primarily addressed under the Antarctic Treaty System – although in 2006 populations were considered sufficiently robust to justify delisting under the Madrid Protocol to the Antarctic Treaty151 and the Convention on the Conservation of Antarctic Seals152 which was developed to regulate a prospective (but ultimately ephemeral) sealing industry in these waters.153 Two subsidiary instruments have been adopted concerning seal populations in European waters. On 16 October 1990, prompted by a devastating outbreak of phoecene distemper virus, the Agreement on the Conservation of Seals in the Wadden Sea was concluded between Denmark, the Netherlands and Germany as the inaugural CMS Agreement, building on pre-existing trilateral conservation activities. Parties to the Agreement undertake to develop a conservation and management plan for these species,154 prohibit takings,155 protect habitats,156 reduce pollution157 and coordinate research.158 The current iteration of the Conservation and Management Plan prescribes multiple action points to further these objectives,159 which is overseen by a Trilateral Seal Expert Group. Despite a second distemper pandemic in 2002, regional seal populations have rebounded, with considerable credit accorded to the Agreement and the Trilateral Wadden Sea Cooperation in this respect.160 In 2007, the MOU concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal (Monachus monachus)161 was signed between Spain, Portugal, Morocco and Mauritania, building on previous conservation efforts primarily directed through the architecture of the Barcelona Convention.162 The MOU is a concise document in which the participants undertake to conserve the monk seal and to implement a previously adopted Action Plan. Despite these developments, however, the broader prognosis for

151 Julia Jabour, ‘Successful Conservation – Then What? The De-Listing of the Arctocephalus Fur Seal Species in Antarctica’ (2008) 11 Journal of International Wildlife Law and Policy 1. 152 Convention for the Conservation of Antarctic Seals (adopted 1 June 1972, entered into force 11 March 1978) 1080 UNTS 175. 153 Joanna Mossop, ‘Marine Mammals in the Antarctic Treaty System’ in Erik J Molenaar, Alex G Oude Elferink and Donald R Rothwell, The Law of the Sea and the Polar Regions: Interactions between Global and Regional Regimes (Brill 2013) 267, 270-273. 154 Agreement on the Conservation of Seals in the Wadden Sea (adopted 16 October 1990, entered into force 1 October 1991) 2719 UNTS 263, Art. IV. 155 Ibid, Art. VI. 156 Ibid, Art. VII. 157 Ibid, Art. VIII. 158 Ibid, Art. V. 159 Agreement on the Conservation of Seals in the Wadden Sea, Conservation and Management Plan for the Wadden Sea Seal Population 2018-2022 . 160 Adriaan FL Slob and others, ‘Governance of the Wadden Sea’ (2016) 71 Marine Policy 325, 328. 161 CMS, Memorandum of Understanding concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal (Monachus monachus), 18 October 2007 . 162 For a comprehensive discussion of the Barcelona Convention regime, see, Nilufer Oral, ‘Mapping Progress and Challenges for the UNEP Regional Sea Programme for the Mediterranean’, Chapter 7 in this volume.

Marine mammals and migratory species  353 Mediterranean monk seals across their full range is somewhat pessimistic, due to the limited national implementation of the extensive initiatives and legislation adopted to date.163 4.5 Sharks Sharks and other elasmobranchs (sharks, skates and rays) have long defied clear and sustained collective regulation. Encompassing hundreds of diverse species of fish, not all of which may be considered migratory, multilateral efforts to conserve sharks have been impeded by limited political will,164 limited baseline data, and lack of an obvious regulatory platform.165 Beyond the central tenets of the law of the sea, the international framework directly addressing these species is primarily non-binding in nature. This has been considered tactically helpful in facilitating an accretion of conservation policies for species that are less politically attractive, providing scope for such approaches to potentially harden into more binding standards.166 A crystallisation of stronger obligations has, however, proved elusive. Equally, shark conservation initiatives have been fragmentary and ad hoc, while historically little direct global leadership has been exercised by a consistent lead actor among the multitude of regulatory bodies concerned with the management of marine biodiversity. The emergence of targeted international management principles for sharks has a lengthy and meandering provenance. In 1994, concerns were first raised within CITES over the growing trade in shark products, drawing further attention to the lamentable quality of global data on catches and highlighting that sharks were perilously under-regulated.167 Given that global shark management represents a task for which the highly specific trade-related mandate of CITES has clear limitations, the parties called upon the FAO to aggregate further biological and trade data on these species. Accordingly, global conservation responsibility for sharks duly passed to the FAO. In 1999, the FAO International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks)168 was adopted as the first prominent conservation objectives for these species.

163 Giuseppe Notarbartolo Di Sciara and Spyros Kotomatas, ‘Are Mediterranean Monk Seals, Monachus monachus, Being Left to Save Themselves from Extinction?’ (2016) 75 Advances in Marine Biology 359. 164 See, Christopher Neff, ‘Human Perceptions and Attitudes Towards Sharks: Examining the Predator Policy Paradox’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014) 107-131 and Laura A Friedrich, Rebecca Jefferson, and Gillian Glegg, ‘Public Perceptions of Sharks: Gathering Support for Shark Conservation’ (2014) 47 Marine Policy 1. 165 Erika J Techera, ‘Approaches to Conservation and Governance of Marine Species’ in Erika J Techera and Natalie Klein (eds), Sharks: Conservation, Governance and Management (Routledge 2014) 9, 22-23. 166 Laura Muir and Natalie Klein, ‘From IPOA Sharks to Sharks MoU Under the Convention on Migratory Species: Progress or Clutter in International Environmental Law?’ (2018) 21 Journal of International Wildlife Law and Policy 190, 215-217. 167 CITES, Resolution Conf. 9.17: Status of International Trade in Shark Species 6 November 1995 . 168 FAO, ‘International Plan of Action for Conservation and Management of Sharks’ (IPOA-Sharks).

354  Research handbook on international marine environmental law The IPOA-Sharks observes that sharks are taken on an unsustainable basis169 and that while some States have adopted targeted regulatory measures, a number of shark species are highly migratory in nature and thus require concerted multilateral action to address their conservation needs.170 To this end, States are encouraged to adopt national action plans for the conservation and management of sharks, if their nationally-registered vessels either conduct directed fishing on sharks or if they are regularly taken as bycatches.171 Such plans should ideally include policies to ensure that catches are sustainable, assessments of threats to shark population, identification of core habitats and guidance towards sustainable harvesting plans.172 To date, 31 national and six regional plans have been elaborated.173 Nevertheless, they remain non-binding instruments and often represent the first steps towards developing national policies, rather than clear-sighted mechanisms establishing catch controls.174 Concerns have also been raised that there is little consistency between individual plans175 while even the most comprehensive documents merely reflect conservation measures that have already been established,176 which suggests that they have not of themselves inspired meaningful changes in national approaches. Since the adoption of the IPOA-Sharks, the regulatory focus on these species has largely shifted from the FAO to the CMS.177 In 2005, the COP called upon the Range States of those species of sharks listed on the CMS Appendices to develop a global instrument for their conservation, with IUU fishing, bycatches and unsustainable catches identified as distinct causes for concern.178 The result was the 2010 MOU on the Conservation of Migratory Sharks, which currently has 48 State signatories, with the EU and 14 NGOs as Cooperating Partners. The core objective of the MOU is to ‘achieve and maintain a favourable conservation status for migratory sharks based on the best available scientific information, taking into account the socio-economic and other values of these species for the people of the Signatories’.179 While geographically global in scope, unlike the IPOA-Sharks the MOU only applies to sharks that have been listed in its Annex 1,180 the composition of which is determined by the Meeting of the Signatories (MOS). Currently, 37 species have been incorporated, catalysed by the listing of multiple sharks and rays on the CMS Appendices at the Eleventh COP in 2014. Protective

IPOA-Sharks, para. 2. IPOA-Sharks, para. 5. 171 IPOA-Sharks, para. 18. 172 IPOA-Sharks, para. 22. 173 IUCN Shark Specialist Group, International Plans of Action for Conservation and Management of Sharks (IPOA-Sharks) . 174 Lindsay NK Davidson, Meg A Krawchuk and Nicholas K Dulvy, ‘Why Have Global Shark and Ray Landings Declined: Improved Management or Overfishing?’ (2014) 17 Fish and Fisheries 438, 453. 175 Muir and Klein (n 166) 196. 176 Nicholas K Dulvy and others ‘Extinction Risk and Conservation of the World’s Sharks and Rays’ (2014) 3 eLife e00590. 177 Paula Walker, ‘Oceans in the Balance: As the Sharks Go, So Go We’ (2010) 17 Animal Law 97, 118. 178 CMS, Recommendation 8.16: Migratory Sharks, UNEP/CMS/MS3/Inf.5, November 2005 . 179 CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, (Sharks MOU) para. 5. 180 Ibid, para. 3(p). 169 170

Marine mammals and migratory species  355 designation by the CMS does not, however, compel concurrent listing upon Annex 1,181 although it does trigger automatic ‘consideration’ of this possibility.182 Thus, Annex 1 includes species that are not listed by the CMS.183 Conversely, notwithstanding the MOU’s mandate and expertise, it has no special advisory privileges in influencing designations of sharks upon the CMS Appendices, and elements of the relationship between the two instruments remain a work in progress.184 The Signatories recognise that successful shark conservation requires ‘the fullest possible cooperation’ between States, inter-governmental bodies, NGOs and stakeholders of the fishing industry and local communities,185 and seek to implement the MOU’s objectives through an extensive Conservation Plan, mandated for development at the first MOS and since appended as Annex 3 to the MOU. The Conservation Plan, which is reviewed at each MOS, prescribes numerous action points centred around five core approaches, namely improving the knowledge base on sharks, ensuring directed and incidental catches are sustainable, ensuring ‘to the extent practicable’ the protection of critical habitats and migratory corridors, improving public awareness and enhancing national, regional and international cooperation. Equally important is the need, enshrined in the MOU,186 to work closely with other organisations – notably RFMOs, the FAO and other biodiversity regimes – to address unsustainable fishing as a key threat to these species. This has proved to be a challenging issue for RFMOs, with sharks occupying a schizophrenic status as both a target fishery and a source of bycatch, depending on regional fishing trends. Certain RFMOs have prohibited shark finning, while others have adopted measures of variable strength to address bycatches, transhipment and trade.187 Engagement with RFMOs remains an operative priority for the MOU, although this is a deceptively complex task in practice, not least given divisions of responsibility between the respective agencies charged with addressing environmental protection and fisheries management, which has hampered efforts to promote the work of the MOU in particular forums.188 Meanwhile, sharks have found an increasingly prominent position within the annual ‘Sustainable Fisheries’ Resolution adopted by the UN General Assembly in recent years. While this too is a non-binding development, such resolutions do exert a growing influ-

181 A considerable number of prospective participants in the Sharks MOU were not CMS parties and concerns were raised that an automatic listing process would inhibit interest in the burgeoning MOU. 182 CMS, CMS/Sharks/Outcome1.4: Modifying the Species List (Annex I) of the MOU, CMS/Sharks/ MOS37Inf.20, 7 December 2018, para. 9. 183 These are primarily ‘look-alike’ species, with the Signatories following the approach of CITES, although this has raised concerns that the MOS has technically exceeded its listing powers. CMS, Draft Report (Third Meeting of the Signatories (Sharks MOS3), CMS/Sharks/MOS3/Report, December 2018 13. 184 Ibid, 6. 185 Sharks MOU, para. 6. 186 Ibid, para. 6. 187 See further Erika J Techera and Natalie Klein, International Law of Sharks: Obstacles, Options and Opportunities (Brill 2017) 165-169 and Karen N Scott, ‘Bycatch Mitigation and the Protection of Associated Species’ in Richard Caddell and Erik J Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 165, 178-181. 188 CMS/Sharks/MOS3/Report (n 183) 15-16.

356  Research handbook on international marine environmental law ence over the agendas of RFMOs,189 which may also account for the concurrent increase in shark-related policies within these forums. Ultimately, international efforts to promote shark conservation have proved to be a rather qualified accomplishment. On one hand, sharks have secured a higher regulatory profile than ever before, while the elaboration of the Sharks MOU has provided a clear focal point for multilateral activities, which has been traditionally lacking. The MOU provides a further tier of oversight and advocacy and cautious hope has been expressed that this could prospectively entrench commitments from the IPOA-Sharks on a more meaningful and widespread basis.190 On the other hand, however, in the absence of economic incentives and stronger political will this has been slow to transpire.191 Concerns have also been expressed over the limited mandate of the MOU and its lack of traction in promoting unified and coherent policies towards directed and incidental catches.192 Moreover, conservation efforts remain focused on a relatively narrow cluster of species, leaving a vast number of elasmobranchs effectively unregulated.193 In this regard, the framework for shark conservation exhibits familiar shortcomings of international marine environmental governance, including fragmented and piecemeal oversight and a lack of coordination between the host of actors exercising competence over these vulnerable and misunderstood species. 4.6 Turtles Marine turtles constitute a long-standing regulatory focus of the CMS and, aside from the Flatback turtle (listed on Appendix II), all such species have been listed on both Appendices. The CMS thus represents a significant forum for turtle conservation and, beyond the development of two distinct subsidiary instruments, it has addressed conservation threats to turtles through numerous Resolutions, including on noise and bycatch and, as a recent innovation, light pollution in coastal habitats.194 The MOU on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia (IOSEA)195 is the primary CMS subsidiary addressing these species. IOSEA entered into force on 1 September 2001 and is an ambitious instrument regulating six species of turtles located in ‘the waters and coastal States of the Indian Ocean and South-East Asia and adjacent seas, extending eastwards to the Torres Strait’. The MOU has been well-supported in the region, successfully attracting 35 signatories from its 44 eligible Range States. IOSEA focuses on reducing direct and incidental mortality, protecting,

Richard Caddell, ‘International Fisheries Law and Interactions with Global Regimes and Processes’ in Richard Caddell and Erik J Molenaar (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Hart 2019) 133, 135-145. 190 Techera and Klein, International Law of Sharks (n 187) 48. 191 Muir and Klein (n 166) 215-217. 192 A Herndon and others, ‘The Case for an International Commission for the Conservation and Management of Sharks (ICCMS)’ (2010) 48 Marine Policy 1239. 193 Techera and Klein, International Law of Sharks (n 187) 109. 194 CMS, Resolution 13.5: Light Pollution Guidelines for Wildlife, UNEP/CMS/Resolution 13.5, 8 April 2020. 195 CMS, Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia, 23 June 2001 . 189

Marine mammals and migratory species  357 conserving and rehabilitating core habitats, improving baseline data, raising public awareness and enhancing cooperation. Progress towards meeting these objectives is assessed at periodic MOS, facilitated further by the conclusion of Work Programmes, while technical and scientific advice is provided through an Advisory Committee. To expedite cooperation, focal points have been established both nationally and in the four sub-regions that have been demarcated across the extensive span of the MOU, alongside the development of two regional marine task forces. In 2007, as directed by the Seventh COP to the Nairobi Convention196 which oversees a suite of thematic Task Forces, the Western Indian Ocean Marine Turtle Task Force (WIO-MTTF) was created as a joint initiative of these two organisations. Migratory species form an unheralded part of the mandate of the Nairobi Convention, with a key Protocol prescribing conservation obligations for a small number of listed migratory species, which includes most species of turtles addressed by IOSEA.197 The WIO-MTTF has convened nine meetings to date and has provided a forum for establishing common goals and objectives and assisting in the further identification of critical habitats. Inspired by this approach, in 2015 a Northern Indian Ocean Marine Turtle Task Force (NIO-MTTF) was established between five IOSEA signatories to promote further coordination in this region, operating on a similar basis albeit without the formalised backing of a regional seas agreement. IOSEA has primarily focused on bycatch and habitat-related initiatives for much of its tenure. To date, bycatch mitigation has proved challenging under IOSEA, again due to the bifurcation of fisheries and environmental responsibilities within its Signatories.198 Partnerships with RFMOs have proved elusive and in turn conservation measures adopted in these forums concerning sea turtles ‘tend to be voluntary in nature’.199 More encouraging progress has occurred on habitat conservation, where IOSEA has benefitted from far-sighted Guidelines developed by the CMS and has helped to position these issues as an operative priority for the parent convention. In 2014, IOSEA launched a Network of Sites of Importance to Marine Turtles, although this has proved cumbersome to administer and regulatory momentum has ebbed in recent years, with a revitalisation of the system considered an operative priority.200 Ultimately, the sheer scale of the MOU’s mandate presents significant practical challenges, necessitating a ruthless prioritisation of resources and focus that has not always been forthcoming. Moreover, many national reports are consistently late or unsubmitted, undermining efforts to both evaluate progress and accurately identify conservation needs across a vast and disparate marine region.201 196 Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern Africa Region (adopted 21 June 1985, entered into force 30 May 1996) 91 RGDIP 1122 (Nairobi Convention). The Convention was amended in 2010, although this has yet to enter into force. 197 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region (adopted 21 June 1985, entered into force 30 May 1996) , Art. 6. Nine migratory species warranting protection are listed in Annex IV, encompassing (aside from Flatback turtles) the five other IOSEA species plus humpback whales, blue whales and dugongs. 198 CMS, ‘Report of the Eighth Meeting of the Signatory States (Da Nang, Viet Nam, 21-25 October 2019)’ 18-19. 199 Scott (n 187) 181. 200 CMS, Report of the Eighth MOS (n 198) 15. 201 Ibid, 6.

358  Research handbook on international marine environmental law Alongside IOSEA, in 1999, the MOU concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa was concluded.202 The MOU, which has 23 signatories, addresses loggerhead, green, leatherback, hawksbill, Kemp’s ridley and olive ridley turtles. The MOU considers pollution, habitat destruction, fishing and trade as the key threats facing these species and, in line with similar instruments, seeks to facilitate individual and collective action through the implementation of a Conservation Plan, which was adopted at the first MOS in 2002. The MOU’s Conservation Plan mirrors that of IOSEA, alongside the additional objective of promoting the implementation of the Abidjan Convention and its Action Plan,203 which is envisaged as securing residual benefits for the habitats of these species. At the Second MOS, the MOU was amended to establish an Advisory Committee and to open the instrument to interested States beyond the region. This was motivated primarily to include certain European Range States that had indicated a willingness to engage,204 although none have subsequently participated. Despite preceding IOSEA, the African Turtle MOU has failed to generate the same impetus towards the conservation of turtle populations. Almost all the action points elaborated within the Conservation Plan are designated as having ‘high priority’, which has adverse implications for strategic activity. Capacity issues have also bedevilled the MOU, impacting both the ability of signatories to undertake efficient national reporting205 – which inhibits the meaningful review of the implementation of the Conservation Plan – as well as the long-term institutional activity of this instrument. Indeed, only two MOS have been convened thus far, the most recent of which occurred in 2008 having previously been postponed on multiple occasions,206 and the MOU has evidently struggled to maintain financial and regulatory momentum. Pre-dating both CMS subsidiaries, in 1996 the Inter-American Convention for the Protection and Conservation of Sea Turtles (IAC)207 was the first binding instrument concluded to regulate these species. The IAC was initially conceived under the Latin American Organization for Fisheries Development but was subsequently adopted as a free-standing treaty open to participation by all States in the Americas, entering into force in May 2001. The IAC is thus independent of the CMS umbrella, a position necessitated by the lack of participation in the Convention by States across the wider American continent. Like IOSEA, the IAC applies to a vast area encompassing the land territory of its signatories, as well as the maritime areas of the Atlantic Ocean, Caribbean Sea and Pacific Ocean.208 The IAC aspires towards the protection, conservation and recovery of sea turtle populations and the parties undertake inter alia CMS, Memorandum of Understanding concerning Conservation Measures for Marine Turtles of the Atlantic Coast of Africa, 7 March 2008 . 203 The Convention for Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West and Central Africa Region (Abidjan Convention) (adopted 23 March 1981, entered into force 5 August 1984) 20 International Legal Materials 746. 204 CMS, Report of the Second Meeting of the Signatory States, UNEP/CMS/MT-AFR2/Report, March 2008 8. 205 Ibid, 6-7. 206 Ibid, 1. 207 Inter-American Convention for the Protection and Conservation of Sea Turtles (adopted 1 December 1996, entered into force 2 May 2001) 2164 UNTS 29 (IAC). 208 IAC, Art. III. 202

Marine mammals and migratory species  359 to prohibit the capture, killing and domestic trade in turtles, comply with pertinent CITES measures, ‘restrict human activities that could seriously affect sea turtles’ at vital life stages, protect critical habitats, improve data and outreach activities and reduce bycatches with particular emphasis on promoting the use of Turtle Excluder Devices on nets.209 In this regard, the IAC has proved markedly more successful than IOSEA in engaging with RFMOs, developing a series of MOUs to frame mutual cooperation. Collaboration with the CMS, however, has been more circumspect, and the IAC has existed in comparative isolation from this regime.

5. CONCLUSION Marine mammals and migratory species present multifaceted challenges to international marine environmental governance. Chief among these is their extensive natural ranges, crossing numerous international boundaries in which conservation may be undermined by limited political will and national capacity. Similarly, the sheer array of multilateral actors engaged by this expansive cast of species presents significant challenges of treaty congestion and an inability to fully coordinate regulatory priorities, strategies and approaches. While their enduring anthropomorphic appeal has meant that marine mammals have often monopolised the regulatory limelight, many marine species remain chronically under-regulated. Commitments under the LOSC in relation to marine biodiversity have proved opaque and ambiguous, while shifts in public opinion towards certain species and ageing governance structures have long raised existential concerns that key aspects of the regulatory framework are becoming increasingly unfit for purpose.210 Highly mobile marine species have been subject to significant regulatory consideration. The CMS regime has pioneered innovative approaches to international biodiversity conservation and has facilitated the emergence of a series of vital subsidiary instruments to address species that often receive lesser regulatory attention. In addition to providing a vital platform to regulate small cetaceans – which remain deceptively under-protected in the pantheon of marine mammal instruments – the CMS has provided conservation leadership in respect of sharks, dugongs, seals, turtles and seabirds, and continues to sponsor a plethora of action plans and facilitate interactions between an array of regulatory bodies under its sprawling umbrella. Nevertheless, this laudable ambition has not always been matched by consistent and adequate funding: many subsidiary arrangements have struggled to sustain regulatory and administrative momentum, some have seen responsibilities shared with the parent convention to cut costs and the sustainability of others derives from the economic generosity of particular States. Meanwhile, many initiatives remain firmly within the realm of soft law, which may inspire multilateral activity but has not always led to meaningful national implementation. Ultimately, however, regulatory attention on a global scale has tended to focus on flagship and charismatic species, raising uncomfortable questions as to whether under international marine environmental law, some animals are destined to remain far more equal than others.

IAC, Art. IV. Patricia Birnie, ‘Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles?’ (1997) 12 International Journal of Marine and Coastal Law 307. See also, Robin Churchill, ‘The UN Convention on the Law of the Sea – Still Relevant to Protection of the Marine Environment?’, Chapter 2 in this volume. 209 210

PART V MECHANISMS AND TOOLS FOR PROTECTING THE MARINE ENVIRONMENT

16. Public participation in the governance of deep-seabed mining in the Area Jeff Ardron, Hannah Lily and Aline Jaeckel1

1. INTRODUCTION Deep-seabed mining (DSM) of the international seabed beyond national jurisdiction (the Area) is governed by the International Seabed Authority (ISA). The ISA was created by Part XI of the UN Convention on the Law of the Sea (LOSC)2 and is mandated to administer the Area and its mineral resources on behalf of humankind as a whole.3 The ISA is thus the sole custodian of the seabed and the natural resources of the Area, which are deemed to be the ‘common heritage of [hu]mankind’,4 a principle so fundamental to the Area that no amendment or derogation from it is permitted.5 However, humankind’s ownership of the Area’s mineral resources is not immutable. The very act of mining ‘…will involve a process through which resources currently owned by [hu]mankind are transferred through mining, transportation and processing to private ownership.’6 Who should have input into the decision-making and management of this transfer-of-ownership of potentially vast resources, and how, are the underlying questions addressed in this chapter. Writing in 1983, the year after the LOSC was adopted, Rüdiger Wolfrum, who later became a judge and president at the International Tribunal for the Law of the Sea (ITLOS), was struck by the fact that: …instead of ‘all States’, ‘mankind’ has been named the beneficiary. This term provokes several questions: […] Would it be possible to argue that the interests of mankind have to be distinguished from the interests of all States? Or does at least the term ‘mankind’ indicate that the interests of those parts of mankind have to be taken into account which are not represented by the very States?7 1 The authors gratefully acknowledge the excellent research assistance by Ayla Do Vale Alves and Bruno Pegorari. The authors also express their gratitude to Emeritus Professor Rosemary Rayfuse for her many insightful comments when editing the chapter. Aline Jaeckel received funding from the Australian Research Council’s DECRA scheme (grant number: DE190101081) and the German Environment Agency (UBA) through project FKZ 3718252200. 2 United Nations Convention on the Law of the Sea (adopted and opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC), Arts 156 and 157. 3 LOSC, Arts 137, 153(1) and 157. 4 LOSC, Art. 136. 5 LOSC, Art. 311(6). 6 Statement by Algeria on behalf of the African Group, ‘Request for consideration by the Council of the African Group’s proposal on the Economic Model/Payment Regime and Other Financial Matters in the Draft Exploitation Regulations under review’, 9 July 2018, . 7 Rüdiger Wolfrum, ‘The Principle of the Common Heritage of Mankind’ (1983) 43 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 312, 318.

361

362  Research handbook on international marine environmental law If the answer to these questions is in the affirmative, then it begs three questions concerning the governance of DSM: (i) Who shall represent the interests of humankind at the ISA? (ii) How should the ISA engage with the interests of these representatives? (iii) Has the ISA sufficiently engaged with them to date? These questions require an examination of ‘public participation’ (PP) at the ISA. Part XI of the LOSC predates the rise of the concept of PP in international law and does not therefore expressly require the ISA to ensure PP. However, with the increasing recognition of the rights of public access to information and public participation in achieving environmental protection at both the national and the international levels, the ISA has increasingly come under scrutiny for its limited openness to PP.8 To date, the ISA’s implementation of its common heritage mandate has been tentative,9 and any linkage between the common heritage principle and an enhanced expectation towards transparency in governance does not yet appear to have been fully embraced.10 Indeed, the ISA has been found to be lagging behind 21st-century expectations concerning public access to information and decision-making in natural resource governance,11 and has been urged to better incorporate recognised best practice around PP into its work regarding environmental impact assessments.12 Apart from the attention by scholars, ISA operations have generally been out of the public eye. In 2021, however, protest actions were, for the first time, taken by Greenpeace against a DSM-chartered research vessel on the high seas.13 In other international fora there have also been increasing calls for a moratorium on DSM,14 most recently in the form of an IUCN

In 2017, an independent review of the ISA criticised the lack of transparency in the work of the ISA. ISA, Final Report on the Periodic Review of the International Seabed Authority Pursuant to Article 154 of the United Nations Convention on the Law of the Sea, ISBA/23/A/3, 8 February 2017. Other criticisms include a lack of engagement with indigenous peoples (UNPFII, Study on the Relationship Between Indigenous Peoples and the Pacific Ocean, UN Doc E/C.19/2016/3, 19 February 2016; see also Julian Aguon and Julie Hunter, ‘Second Wave Due Diligence: The Case for Incorporating Free, Prior, and Informed Consent into the Deep Sea Mining Regulatory Regime’ (2018) 38 Stanford Environmental Law Journal 3), and a lack of consultations with coastal states (Pradeep A Singh and Angelique Pouponneau, ‘Comments to the Draft Regulations on Exploitation of Mineral Resources in the Area: Transboundary harm and the rights of Coastal States adjacent to the Area’ (ISA stakeholder submission, 2018) . 9 Aline Jaeckel, Jeff A Ardron and Kristina M Gjerde, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (2016) 70 Marine Policy 198. 10 Jeff A Ardron, ‘Transparency in the Operations of the International Seabed Authority: An Initial Assessment’ (2018) 95 Marine Policy 324. 11 Ibid; Jeff A Ardron, Henry A Ruhl and Daniel OB Jones, ‘Incorporating Transparency into the Governance of Deep-Seabed Mining in the Area beyond National Jurisdiction’ (2018) 89 Marine Policy 58. 12 Laura E Lallier and Frank Maes, ‘Environmental Impact Assessment Procedure for Deep Seabed Mining in the Area: Independent Expert Review and Public Participation’ (2016) 70 Marine Policy 212. 13 Klaas Willaert, ‘Protest at Sea against Deep Sea Mining: Lawfulness, Limits and Remedies’ (2021) 36 International Journal of Marine and Coastal Law 672. 14 European Parliament resolution of 9 June 2021 on the EU Biodiversity Strategy for 2030: Bringing nature back into our lives (2020/2273(INI)) paras 184-185; Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force on 14 January 1998) 2941 UNTS 3, Art. 7; Long Distance Advisory Council (LDAC), ‘LDAC Opinion on Deep-Sea Mining’ (Discussed at LDAC WG5 meetings in October 2018 and March 2019, adopted by consensus by the LDAC Executive Committee on 22 May 2019) ref R-04-19/WG5 . 8

Public participation in the governance of deep-seabed mining in the Area  363 motion,15 which was passed in September 2021 by State agencies (and NGOs). The lack of PP at the ISA appears to have been part of the rationale for the motion, which called for a DSM moratorium until, inter alia: …public consultation mechanisms have been incorporated into all decision-making processes related to deep-sea mining ensuring effective engagement allowing for independent review, and, where relevant, that the free, prior and informed consent of indigenous peoples is respected and consent from potentially affected communities is achieved;

The motion further called upon IUCN members to: …promote the reform of the ISA to ensure transparent, accountable, inclusive, effective and environmentally responsible decision making and regulation.16

Amidst these growing international calls for a moratorium, in July 2021, the Republic of Nauru invoked the ‘hurry up’ clause contained in the 1994 Implementing Agreement,17 which gives the ISA just two years to finalise its Draft Regulations on Exploitation of Mineral Resources in the Area (Draft Exploitation Regulations) in order to be ready to consider an application for exploitation of nodules. The Draft Regulations still require significant further input and negotiation before being ready for adoption,18 and it will be instructive to see how decision-making processes at the ISA may be shaped by this time pressure. Will PP and consensus-building, both of which require time and resources, be early casualties? This chapter explores the extent to which the ISA has to date facilitated participatory governance and engaged with its broad constituency of humankind as a whole. The evolution of PP as an international norm is briefly examined in Section 2, which provides an overview of the current international legal and policy expectations concerning PP, offering a framework of ten criteria. Section 3 applies this analytical framework to the work of the ISA, while Section 4 offers some initial conclusions on how PP in governance of the Area may be improved. The scope of the chapter is mainly limited to discussions around access to information and public participation in decision-making at the ISA. It only briefly touches upon remedies (access to justice) and does not consider governance of seabed minerals in areas within national jurisdiction, though the discussion here may provide useful insights for the latter context.

IUCN, ‘Protection of Deep-Ocean Ecosystems and Biodiversity through a Moratorium on Seabed Mining’, (Motion 069) (World Conservation Congress, Marseille, 22 September 2021) accessed 16 November 2021. 16 Ibid, paras (a)(iv) and (b) (emphasis added). 17 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force provisionally 16 November 1994, and definitively 28 July 1996) 1836 UNTS 3 (1994 Implementing Agreement), Annex, s. 1(15). A copy of Nauru’s request is accessible here: . For more on the implications of the 2-year trigger, see Pradeep Singh, ‘What are the Next Steps for the ISA after the Invocation of the “Two-year Rule”?’ (2021) 37 International Journal of Marine and Coastal Law 152. 18 Pradeep A Singh, ‘The Two-year Deadline to Complete the International Seabed Authority’s Mining Code: Key Outstanding Matters that Still Need to be Resolved’ (2021) 134 Marine Policy 104804. Hannah Lily and Stephen E Roady, ‘Regulating the Common Heritage of Mankind: Challenges in Developing a Mining Code for the Area’ in Marta Chantal Ribeiro, Fernando Louriero Bastos and Tore Henriksen (eds), Global Challenges and the Law of the Sea (Springer 2020). 15

364  Research handbook on international marine environmental law

2.

PUBLIC PARTICIPATION IN INTERNATIONAL LAW AND POLICY

2.1 The Concept of Public Participation The concept of public participation originally arose in human rights law, where it was articulated as the rights to information,19 participation20 and remedy.21 Today, however, it is applied in a variety of contexts, including environmental law, economic law, and the operation of international organisations and courts.22 As discussed below, PP provides for input into decision-making by those outside of the responsible institution. The term ‘public’ typically encompasses a broad range of ‘stakeholders’, including indigenous peoples and local communities (IPLC), industry, academia, and civil society organisations, as well as concerned citizenry more generally. In the environmental context, since its articulation in Principle 10 of the 1992 Rio Declaration,23 PP has played an increasingly prominent role in international environmental commitments, to the extent that it is now recognised as ‘essential’ for sustainable development and good governance.24 Public participation is part of a constellation of rights in two influential regional environmental treaties: the 1998 Aarhus Convention25 and its accompanying Almaty Guidelines,26 signed mainly by European States, and the more recent 2018 Escazú

19 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Art. 19. 20 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR), Art. 21; ICCPR, Art. 25; OAS, American Convention on Human Rights ‘Pact of San Jose’ Costa Rica (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series, No. 36 (1969), Art. 23; Avidan Kent, Tarcisio Gazzini and Eric De Brabandere ‘Public Participation in International Investment Law: Setting the Scene’ in Eric De Brabandere, Tarcisio Gazzini and Avidan Kent (eds), Public Participation and Foreign Investment Law: From the Creation of Rights and Obligations to the Settlement of Disputes (Brill 2020) 3. 21 ICCPR, Art. 2(3). 22 Kent, Gazzini and Brabandere (n 20); Klaus Dingwerth and Patrizia Nanz, ‘Participation’ in Jacob Katz Cogan, Ian Hurd and Ian Johnstone (eds), The Oxford Handbook of International Organizations (OUP 2016). 23 Rio Declaration on Environment and Development, in UN, Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol. I), Annex I, 12 August 1992 (Rio Declaration). 24 See New Delhi Declaration of Principles of International Law Relating to Sustainable Development (70th Conference of the International Law Association, New Delhi 2002) A/Conf.199/8, principle 5. See also generally Rio Declaration (n 23) Principle 10; OAS ‘Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development’ Inter-American Council for Integral Development Resolution 98 (V-O/00) CIDI/doc. 25/00, OEA/Ser.W/II.5, 20 April 2000; UNECE ‘Almaty Guidelines: Promoting the Application of the Principles of the Aarhus Convention in International Forums’ Decision II/4, ECE/MPPP/2005/2/Add5, 20 June 2005 (Almaty Guidelines) para. 11. 25 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447 (Aarhus Convention). 26 Almaty Guidelines (n 24) para. 11.

Public participation in the governance of deep-seabed mining in the Area  365 Agreement,27 negotiated by Latin American and Caribbean States; both of which are concerned specifically with access to information, public participation and access to justice in environmental matters. These regional agreements confirm the broad public interest nature of environmental decision-making, which binds their parties to engage in PP with including, but not limited to, those directly affected. In the Aarhus Convention, PP is associated with the need to ensure a healthy environment for the well-being of individuals which is itself associated with ‘the right to life itself.’28 In the Escazú Agreement, it is ‘…the right to a safe, clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.’29 In both agreements, PP in environmental decision-making naturally flows from these instated human rights. The right to a clean, healthy and sustainable environment was formally recognised in 2021 as a human right by the UN Human Rights Council,30 and the UN Framework Principles on Human Rights and the Environment further elaborates that ‘[e]nvironmental harm interferes with the enjoyment of human rights, and the exercise of human rights helps to protect the environment and to promote sustainable development.’31 Thus, PP can be seen as a critical process linking human rights to sustainable development and protection of the environment. In addition to the Rio Declaration, the requirement of PP has more recently been articulated in several other internationally agreed statements, including the outcome document from the ‘Rio+20’ conference, entitled ‘The Future we Want’,32 and the United Nations 2030 Agenda for Sustainable Development, adopted in 2015 together with its associated Sustainable Development Goals (SDGs).33 Indeed, SDG 16 (promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels) specifically calls upon States to ensure ‘public access to information’34 and ‘responsive, inclusive, participatory and representative decision-making at all levels,’35 including in international organisations.36 In the context of international organisations, PP can address the democratic deficit, a term that describes the criticism that international organisations are rarely representative of their constituencies and power imbalances between States can be exacerbated by veto powers or

27 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018, entered into force 22 April 2021) UNTC XXVII-18 (Escazú Agreement). 28 Aarhus Convention, preamble. 29 Escazú Agreement, Art. 1. 30 UNHRC, The Human Right to a Safe, Clean, Healthy and Sustainable Environment, Resolution 48, UN Doc A/HRC/48/L.23/Rev.1, 5 October 2021. 31 UNHRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/37/59, 24 January 2018. 32 UNGA, The Future We Want, UN Doc A/RES/66/288, 27 July 2012, paras 43 and 76(h). 33 UNGA, Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1, 21 October 2015 (SDG). 34 SDG (n 33) Target 16.10. 35 SDG (n 33) Target 16.7 36 See also SDG (n 33) Goal 16, Targets 16.6 and 16.8 which call on states to ‘develop effective, accountable and transparent institutions at all levels’ and strengthen the ‘participation of developing countries in the institutions of global governance’.

366  Research handbook on international marine environmental law similar measures, with the UN Security Council being a prime example.37 While PP cannot fully overcome the democratic deficit, it can mitigate, to a degree, decision-making procedures that are inherently undemocratic, and thereby enhance the legitimacy of decisions of international organisations.38 Over time, international organisations have acquired increased competencies and have developed into global public administrators, which are increasingly subject to normative and procedural ‘good governance’ standards for decision-making.39 PP has been accepted as one such good governance standard, alongside reason-giving, review, transparency, and accountability.40 PP is also becoming associated with the rights of indigenous peoples, who are increasingly recognised as having a right to participate in decision-making that affects them,41 taking into consideration their traditional knowledge and intangible cultural heritage.42 As early as 1989, the International Labour Organization (ILO) Indigenous and Tribal Peoples Convention 169 (Convention 169) required States to include indigenous peoples in decision-making over mineral resources that may affect their interests,43 and these rights may extend to a duty by the proponent to obtain the ‘free, prior and informed consent’ (FPIC) of affected peoples.44 Indeed, FPIC is included in the current draft of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable use of Marine Biological Diversity of Areas Beyond National Jurisdiction, although it remains to be seen whether this will form part of the final agreement.45 While an in-depth discussion is beyond the scope of this chapter,

Jens Steffek and Patrizia Nanz, ‘Emergent Patterns of Civil Society Participation in Global and European Governance’ in Jens Steffek, Claudia Kissling and Patrizia Nanz (eds), Civil Society Participation in European Global Governance: A Cure for the Democratic Deficit? (Palgrave 2008) 1-29. 38 Dingwerth and Nanz (n 22). 39 Sabino Cassese, ‘Administrative Law without the State: The Challenge of Global Regulation’ (2005) 37 New York University Journal of International Law and Politics 663. 40 Benedict Kingsbury, Megan Donaldson and Rodrigo Vallejo, ‘Global Administrative Law and Deliberative Democracy’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016); Benedict Kingsbury and Lorenzo Casini, ‘Global Administrative Law Dimensions of International Organizations Law’ (2009) 6 International Organizations Law Review 319. 41 United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007) UNGA Res 61/295 (UNDRIP) Art. 18; UNHRC, Free, Prior and Informed Consent: A Human Rights-Based Approach: Study of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc A/HRC/39/62, 10 August 2018, para. 5. 42 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (adopted 17 October 2003, entered into force 20 Apr 2006) 2368 UNTS 3 (CSICH) Art. 15; see also CBD, ‘Tkarihwaié:ri Code of Ethical Conduct to Ensure Respect for the Cultural and Intellectual Heritage of Indigenous and Local Communities Relevant to the Conservation and Sustainable Use of Biological Diversity’ (2011) (Tkarihwaié:ri) paras 8 and 12. 43 ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) (adopted 27 June 1989, entered into force 05 September 1991) 1650 UNTS 383 (ILO Convention 169) Art. 15. 44 UNDRIP (n 41) Arts 19 and 32. See also ILO Convention 169, Art. 6; Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD) Art. 15(5); Human Rights Committee, Ángela Poma Poma v. Peru, 28 December 2004, Communication No. 1457/2006, views on 24 April 2009, CCPR/C/95/D/1457/2006, para. 7.6, at 11. 45 See eg UN, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/Conf.232/2020/3, 18 November 2019, draft Art. 10bis. 37

Public participation in the governance of deep-seabed mining in the Area  367 it is worth noting that some scholars46 have argued for the application of FPIC to DSM decision-making as well. Notwithstanding FPIC, how indigenous rights might be reconciled with the interests of industry or other stakeholders can be seen as part of a larger question concerning the balancing of all DSM interests consistent with the common heritage of humankind principle. Providing opportunity to all such interested parties to participate in environmental decision-making is now well established in international practice and law, and procedurally PP offers a way forward for the ISA. 2.2

Evolving Best Practices Concerning Public Participation

In their review of the literature on methodologies for public participation (presented below), Rowe and Frewer suggest that perhaps the most persuasive argument for public involvement in environmental decision making is that value judgements are made at all stages of the risk management process, including decisions concerning which risks to evaluate. The intricacies of risk management are particularly relevant to the management of DSM, which is characterised by significant uncertainties. It has been suggested that effective PP should lead to five broad social outcomes: educating the public, incorporating public values and knowledge into decision-making, building trust, reducing conflict, and assuring cost-effective decision-making.47 In the case of PP in environmental decision-making, we would add improved environmental outcomes. Whether a PP process ultimately meets its (social and environmental) goals hinges on both stakeholder expectations and how the process is conducted to meet those expectations.48 PP in a poorly run process can become bogged down and resource-intensive, with several possible pitfalls whereby success is by no means assured.49 Therefore, paying attention to the execution of successful and evolving practices in related contexts is advisable. From the 1990s onward, PP best practices of most international treaty organisations have significantly evolved, in concert with improved transparency,50 resulting in a ‘participation explosion’51 in all process stages – scoping, decision-making, and subsequent implementa-

Aguon and Hunter (n 8) 52-53. Thomas C Beierle ‘Using Social Goals to Evaluate Public Participation in Environmental Decisions’ (1999) 16 Review of Policy Research 75. 48 Julia Abelson and others, Effective Strategies for Interactive Public Engagement in the Development of Healthcare Policies and Programs (CHSRF 2010). Caroline G Druschke and Kristen C Hychka ‘Manager Perspectives on Communication and Public Engagement in Ecological Restoration Project Success’ (2015) 20 Ecology and Society 58. 49 Judith E Innes, David E Booher ‘Reframing Public Participation: Strategies for the 21st Century’ (2004) 5 Planning Theory and Practice 419; Benjamin J Richardson and Jona Razzaque, ‘Public Participation in Environmental Decision-Making’ (2006) 6 Environmental Law for Sustainability 165. 50 Jeff Ardron and others, ‘Tracking Twenty-Four Years of Discussions About Transparency in International Marine Governance: Where Do We Stand?’ (2014) 33 Stanford Environmental Law Journal 167. [In this study, it was noted that the ISA was an exception to the trend in international maritime governance bodies increasingly discussing transparency through the late 1990s and early 2000s.] 51 Jonas Tallberg and others, The Opening Up of International Organizations (CUP 2013); Dingwerth and Nanz (n 22) 1131. 46 47

368  Research handbook on international marine environmental law tion.52 Nationally, such practices can include observer status, citizen committees, fora and dialogues (in-person and online), calls for comments, public hearings, community consultations and advisory panels.53 Some international organisations allow for participation of non-State actors in project implementation.54 Additionally, practical measures for facilitating PP have been identified, including appointing contact persons within an international organisation who are tasked to facilitate the flow of information, identifying diplomatic officials to promote participation at a national level, funding the participation of marginalised groups or those discriminated against, undertaking broad outreach to civil society groups, allowing civil society ‘to contribute to shaping the agendas of discussions’, and ensuring ‘a safe and conducive environment for civil society by respecting, promoting and facilitating the rights to freedom of opinion and expression.’55 PP is also a core element of modern environmental impact assessments (EIA).56 To be effective, an EIA process must not only provide the opportunity for public comments (ideally at different stages of the EIA) but also involve expert review to ensure accuracy and adequacy of the EIA.57 For members of the European Union58 and parties to the Escazú Agreement,59 decisions resulting from EIAs must also include procedures to allow the public to challenge the decision through administrative and judicial avenues. Under the LOSC and current ISA exploration regulations, EIAs are required for some activities, yet public participation is not.60 The Draft Exploitation Regulations, however, provide for some PP, as discussed further below. 2.3 Ten Criteria for Evaluating Public Participation This section discusses ten criteria for evaluating PP, which are used in the following section to assess the ISA’s performance. These criteria reflect international treaties as well as literature. Specifically, in 2000, Rowe and Frewer suggested nine criteria for evaluation of PP best practices in environmental decision-making, based on the literature at the time.61 Around the 52 George (Rock) Pring and Susan Y Noé, ‘The Emerging International Law of Public Participation Affecting Global Mining, Energy, and Resources Development’ in Donald N Zillman, Alastair R Lucas and George (Rock) Pring (eds) Human Rights in Natural Resource Development (OUP 2002). 53 ‘Almaty Guidelines’ (n 24) para. 33; Dingwerth and Nanz (n 22). 54 Dingwerth and Nanz (n 22) 1134. 55 UNHRC, ‘Promotion of a Democratic and Equitable International Order’, para. 78. 56 Neil Craik and Kristine Gu, ‘Implementing Environmental Impact Assessment for Deep Sea Mining: Lessons to Be Drawn from International and Domestic EIA Processes’ (29 June 2021) Report prepared for The Pew Charitable Trusts ; Jennifer M Durden and others, ‘Environmental Impact Assessment Process for Deep-Sea Mining in “the Area”’ (2018) 87 Marine Policy 194. 57 Craik and Gu (n 56). 58 Directive of the European Parliament and of the Council 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment [2012] OJ L 26/1, Arts 4 and 11. 59 Escazú Agreement, Art. 7(9). 60 LOSC, Arts 165(2)(d) and 206; 1994 Implementing Agreement, Annex, s. 1(7); ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013 (Nodules Exploration Regulations) Reg. 18(c) and Annex IV, s. 5.2. 61 Gene Rowe and Lynn J Frewer, ‘Public Participation Methods: A Framework for Evaluation’ (2000) 25 Science, Technology, and Human Values 3.

Public participation in the governance of deep-seabed mining in the Area  369 same time, the Aarhus Convention (in force 2001) set out a number of similar criteria of PP, which were further specified in the 2005 Almaty Guidelines and are binding on the parties to the Convention. The continuing relevance of the nine criteria identified by Rowe and Frewer is demonstrated by the fact that two decades later, the Escazú Agreement (in force 2021) also reflects them – further discussed below. Moreover, the Aarhus Convention and Escazú Agreement offer suitable evidence of best practice, not least because they are highly subscribed despite being regional treaties (with more than 70 parties and/or signatories between them). Indeed, the ISA Council in its 2012 decision regarding a regional environmental management plan, committed itself to ‘enable public participation in environmental decision-making procedures’ with specific reference to the Aarhus Convention.62 Additionally, these treaties are binding on many of the ISA’s member States, though not on the ISA itself. Building on the nine criteria suggested by Rowe and Frewer, we have added a tenth criterion, provision of environmental information, which is a long-recognised companion to public engagement concerning environmental decision-making, as articulated in Principle 10 of the Rio Declaration. Additionally, one of the Rowe and Frewer criteria has been modified to better reflect the realities of DSM. Specifically, early and full engagement is expanded to include the element of proactivity, which we suggest is particularly relevant in the context of agencies that have relatively low public profiles – as is the case for the ISA. The ten assessment criteria are summarised in Table 16.1 and cross-referenced with articles from the Aarhus Convention (and Almaty Guidelines) and the Escazú Agreement. As can be seen, these two treaties exhibit a very high degree of adherence to the ten proposed assessment criteria, suggesting that the criteria have stood the test of time, and offer a realistic framework for benchmarking the ISA’s practices with regard to PP.

3.

PUBLIC PARTICIPATION IN ISA DECISION-MAKING

As noted in the introduction, the ISA must administer the Area and its mineral resources on behalf of humankind as a whole. This requires an inquiry into who shall represent humankind, how they shall be engaged in decision-making, and whether the ISA has done enough to engage them to date. To answer these questions, this section analyses the ISA’s rules, procedures, processes and practices against the ten PP criteria presented above. Some of the criteria are grouped to avoid repetition. It may be recalled that the ISA is tasked by the LOSC, inter alia, to regulate and control activities in the Area; to issue mineral exploration and exploitation contracts; and to ensure the effective protection of the marine environment.63 These measures must ensure that mining leads to benefits for humankind as a whole,64 including through equitable sharing of economic

62 ISA, Recommendation of the Legal and Technical Commission: Environmental Management Plan for the Clarion Clipperton Zone, ISBA/17/LTC/7, 13 July 2011, para. 13(f). This recommendation was adopted by the Decision of the Council relating to an environmental management plan for the Clarion-Clipperton Zone, ISBA/18/C/22, 26 July 2012. 63 LOSC, Arts 145, 157 and 162. 64 LOSC, Art. 140.

Resource accessibility

Defined public role

Structured process

Transparent process

Independence

Proactive, early and full engagement

Almaty paras 23 and 30.

a broadly representative sample,

Almaty para. 37.

that the public can see what is going

equal conditions.

to successfully participate under

appropriate resources to enable them

assisted in gaining) access to the

Almaty para. 18.

Almaty para. 29.

Participants should have (or be

Aarhus Art 3(1)-(4);

be well defined.

Almaty para. 19.

be clearly structured and explained.

The nature and scope of PP should

Aarhus Art. 3(1);

The process for participation should

on and how decisions are being made

Aarhus preamble;

The process should be transparent so

Arts 5(3), 5(4) and 5(17).

Arts 4(4), 4(5) and 7(4).

Art. 7(6).

Arts 3(b) and 7(6).

to justice.

See also Aarhus Art. 9(5) on access

 

 

 

established by law”.

an “independent and impartial body

See also Art. 9 of the Aarhus

authors, as discussed in the text.

Proactive emphasis added by the

Convention on access to justice by

Arts 8(3)(b) and 5(18).

7(14) and 7(16).

Arts 7(3), 7(4), 7(10), 7(12), 7(13),

 

Comments

unbiased way.

Almaty para. 15.

Almaty paras 28 and 32.

Arts 5(2), 7(1), 7(14) and 7(16).

Escazú Agreement

be conducted in an independent,

The participation process should

solicit comments and participation.

during the process, should actively

salient. Public outreach, before and

as soon as value judgements become

possible and throughout the process

Public should be involved as early as Aarhus Arts 3(2), 6(4) and 7;

affected, without prejudice

especially those who could be

Aarhus Art. 8(c);

Participants should comprise

Representativity

Guidelines

Aarhus Convention & Almaty

Short description

Evaluation criteria for best practices in public participation, adapted, expanded and re-ordered from Rowe and Frewer (2000), and cross-referenced with the Aarhus Convention, Almaty Guidelines, and Escazú Agreement

Criteria

Table 16.1

370  Research handbook on international marine environmental law

the decision-making process should

information

format.

be provided – in a readily accessible

Environmental information used in Almaty paras 20-22.

Aarhus Arts 5(2) and 5(3);

Arts 5(1), 5(11), 6, 7(17) and 10(2).

performance reviews on the efficacy,

of environmental decision-making.

Added by the authors in the context

Art. 5(9) concerning proportionality.

stakeholder participation. See also

and these reviews shall include

national environmental policies,

effectiveness and progress of

requires independent environmental

of national policies – see comment

the scale of the possible impacts.

The procedure should in some sense

Escazú Agreement Art. 6(8)

 

Comments

requires assessment of effectiveness

Arts 7(7) and 7(8).

Escazú Agreement

Silent on individual processes but

Almaty para. 39.

Aarhus Art. 8; Almaty para. 37.

Guidelines

Aarhus Convention & Almaty

be cost-effective and proportional to

their views influenced decisions.

public should be informed of how

Provision of environmental

Proportionality / cost-effectiveness

The output of the procedure should

Influence

be given due consideration and the

Short description

Criteria

Public participation in the governance of deep-seabed mining in the Area  371

372  Research handbook on international marine environmental law benefits.65 ‘Activities in the Area’, a term of art encompassing both exploration and exploitation of seabed minerals,66 may range from research providing new environmental data, to full-scale mining, likely over areas up to 75,000km2 for a renewable 30-year term, in the case of polymetallic nodules.67 Currently, only mineral exploration is taking place in the Area, with commercial exploitation remaining a future activity, albeit potentially imminent given the ISA’s current target to complete the Exploitation Regulations in 2023.68 As part of its ongoing drafting of the Exploitation Regulations,69 the ISA has improved aspects of its governance of public participation. Indeed, the latest draft specifically encourages ‘effective public participation’ and transparent communication.70 However, implementation of these two related aims remains under scrutiny, with scholars continuing to note shortcomings.71 3.1

Representativity (Criterion 1)

Given that the Area and its resources are the common heritage of humankind, environmental and resource allocation decisions taken by the ISA affect not only the interests of specific stakeholders, such as deep-sea scientists and companies involved in deep-sea mining activities, but also the interests of all humans, both current and future. The ISA, therefore, faces the challenge of how to facilitate participatory governance for this most wide-ranging of constituencies. At first glance it might be argued that the ISA’s State membership itself adequately represents the global population; after all, most States (ie, those that have ratified LOSC) are represented there. However, not all States (including the United States) are ISA members72 and only 36 states have voting power in the ISA’s main decision-making organ, the Council.73 Moreover, beyond the Council, there has to date been a low level of engagement by ISA member and observer States. Indeed, the ISA has rarely achieved the required 50 percent quorum for its plenary organ, the Assembly.74 Of those States that do attend, a significant proportion would be prevented from participating in a vote due to persistent failure to pay

LOSC, Arts 140(2) and 160(2)(g). LOSC, Art. 1(3). 67 See ISA, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/25/C/WP.1, 22 March 2019 (Draft Exploitation Regulations) Draft Regs 15(3) and 20. 68 ISA, Status of the draft regulations on exploitation of mineral resources in the Area and proposed road map for 2022 and 2023; ISA, Report of the Secretary-General, ISBA/26/C/44, 23 August 2021. 69 Draft Exploitation Regulations (n 67). 70 Draft Exploitation Regulations (n 67) Draft Reg. 2(e)(vii), see also Draft Regs 3(c) and 44(d). 71 Kanae Komaki and David Fluharty, ‘Options to Improve Transparency of Environmental Monitoring Governance for Polymetallic Nodule Mining in the Area’ (2020) 7 Frontiers in Marine Science 247; Klaas Willaert, ‘Transparency in the Field of Deep Sea Mining: Filtering the Murky Waters’ (2022) 135 Marine Policy 104840. 72 States parties to LOSC (167 States plus the European Union at time of writing) are members of the ISA. 73 1994 Implementing Agreement, Annex, s. 3(15). 74 David Johnson and others, ‘Periodic Review of the International Seabed Authority pursuant to UNCLOS Article 154’, Interim Report (15 May 2016), ss 5.1, 5.2 and 6.5 . 65 66

Public participation in the governance of deep-seabed mining in the Area  373 membership fees.75 Out of 13 developing States identified as having the potential to suffer adverse economic impacts as a direct result of polymetallic nodule mining undercutting their national metal exports,76 12 are currently ineligible to vote at the ISA77 and only three of those have attended any ISA sessions from 2017 to 2021.78 In addition, State engagement, itself, is no guarantee of effective representation of the interests of humankind in general. Indeed, Part XI of the LOSC acknowledges as much when it identifies the potential interests of ‘peoples who have not attained full independence or other self-governing status recognized by the United Nations’79 and who, because of their status, cannot be ISA members. Moreover, it is a matter of historical fact that many groups have been routinely underrepresented by their governments, a fact which has made necessary the affording of special recognition and procedural rights under international law.80 These groups include indigenous peoples and local communities or other persons who may, in certain circumstances, suffer discrimination in accessing State-based decision-making procedures due to gender, age, ethnicity, language, religion, or political opinion.81 Additionally, not all governments fairly represent the interests of all their civil society constituents. Therefore, to enable broad PP, the ISA needs to look beyond State representation.82 To date, however, the ISA has not committed itself to engage specifically with any of these groups or constituencies. Admittedly, the ISA’s Rules of Procedure83 allow, inter alia, intergovernmental organisations and non-governmental organisations (NGOs) to be awarded observer status, provided they can ‘demonstrate their interest in matters under consideration’ at the ISA.84 As of 2020,

For example, in 2020, 57 member States of the ISA had been in arrears for two years or more, rendering them ineligible to vote. ISA, Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea, ISBA/26/A/2, 6 July 2020. 76 Chile, the Democratic Republic of the Congo, Eritrea, Gabon, the Lao People’s Democratic Republic, Madagascar, Mauritania, Mongolia, Namibia, Papua New Guinea, Peru, Zambia and Zimbabwe. Anna Lapteva and others, Study of the Potential Impact of Polymetallic Nodules Production from the Area on the Economies of Developing Land-based Producers of those Metals which are Likely to be Most Seriously Affected (Report to the International Seabed Authority, 12 May 2020) . 77 However, it must be noted that neither the ISA Council nor Assembly have to date (February 2022) called on votes, instead relying on consensus decision-making. Ten of the 13 States are more than two years in arrears with their membership fees, and two others are not members of the ISA, so also have no vote. That leaves only one out of the 13 States represented at the ISA (Chile), if the time comes to vote on the first nodule mining contract, or on the rules for compensating land-based mining countries whose national income is negatively affected by mining in the Area. ISBA/26/A/2 (n 75). 78 Author’s (HL) own research from the Annual Session pages of suggests that of the 13 States only Gabon, Madagascar and Papua New Guinea have attended ISA sessions in the past five years, plus Chile (who is the only paid-up member of the 13 States). 79 LOSC, Art. 140. 80 A/HRC/39/62 (n 41) 5. 81 Ibid. 82 Dingwerth and Nanz (n 22). 83 ISA, Rules of Procedure of the Assembly of the International Seabed Authority (adopted at its 15th meeting, on 17 March 1995), ISBA/A/6, 7 July 1994; ISA, Rules of Procedure of the Council of the International Seabed Authority (adopted at its 10th meeting, on 16 August 1996), ISBA/C/12, 3 December 1996. 84 ISBA/A/6 (n 83) Rule 82(1)(e). In 2019 the ISA Assembly did not accept draft Guidelines proposed by the ISA Secretariat that would have restricted or withdrawn observer status from observers who were 75

374  Research handbook on international marine environmental law 30 NGOs had observer status at the ISA,85 though fewer than half of those attended the Council session that year.86 Of those attending, five represented private sector interests, four were academic institutions, and four were environmentally focussed groups.87 Currently, there are no observer organisations representing indigenous communities (or other groupings such as youth or women) and few representing interests of the Global South. The reasons for such lack of engagement have not been documented, but may reflect a lack of awareness, resources, and/or interest. Regardless of the reason, the absence of a wide diversity of voices in the ISA increases the chances that its decisions may not optimally balance the broader interests of humankind. Therefore, greater efforts to embrace the diversity of humankind would be consistent with the ISA’s mission as provided by the LOSC. One avenue for participation is ISA technical workshops, which offer an opportunity for experts to provide valuable external input. However, as Komaki and Fluharty note, these workshops are not open to all interested researchers; rather, they are ‘subject to the Secretariat’s unstated invitation system, which is neither open to the public nor provided [advertised] on their website.’88 They further note that the criteria for participation appear to favour mining contractors and their consultants.89 A draft Stakeholder Engagement and Communications Strategy published by the ISA Secretariat in late 2020 similarly lacked ambition, again identifying its target audience as those already ‘interacting with the ISA’.90 According to its current Strategic Plan, the ISA aspires to be ‘…a publicly accountable supervisory body that facilitates access to information and values contributions by stakeholders’.91 However, in discussing ‘access to information’, the Strategic Plan tends to focus on publishing (some) environmental data to the scientific community92 rather than to the public at large in a format that is generally accessible. Moreover, in practice there is significant room for improvement regarding access to information, not least because the ISA database (discussed below) is difficult to use. Notwithstanding that the ‘marine environment’ is defined in the Exploration Regulations as including geological components,93 not deemed to be sufficiently in ‘support’ of ISA activities. See ISA, Guidelines for observer status of non-governmental organizations with the International Seabed Authority: Note by the Secretary-General, ISBA/25/A/7, 4 June 2019; ISA, Decision of the Assembly on the guidelines for observer status of non-governmental organizations with the International Seabed Authority, ISBA/25/A/16, 26 July 2019. 85 A list of the names of the observer organisations can also be found here: . 86 ISA, List of Delegations Council, Part.1 26th Session, ISBA/26/C/INF.1, 20 February 2020. 87 Ibid. 88 Komaki and Fluharty (n 71) 19. 89 Ibid, ‘[The] criterion Experts with access to unpublished biodiversity data in CCZ, is in practical terms restricted to mining contractors and their consultants.’ 90 ISA, Communications and Stakeholder Engagement Strategy (Zero Draft), 7 December 2020. See more at . 91 ISA, Decision of the Assembly of the International Seabed Authority relating to the strategic plan of the Authority for the period 2019−2023, ISBA/24/A/10, 27 July 2018. 92 Ibid. 93 The wording is the same in the exploration regulations for all three mineral types: ‘“marine environment” includes the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof’ (Nodules Exploration Regulations (n 60) and ISA, Regulations on Prospecting and

Public participation in the governance of deep-seabed mining in the Area  375 geological data are treated as confidential, accessible only to members of the ISA’s Legal and Technical Commission and mining contractors. 3.2

Proactive, Early and Full Engagement (Criterion 2)

If it is accepted, as suggested above, that access to the ISA’s environmental data and participation in its technical workshops is biased towards governments and contractors, and that this is an inadequate representation of ‘humankind’, it follows that further outreach offering the opportunity of engagement is required. There have been some notable recent efforts, led by the ISA’s Secretariat, to better publicise the ISA’s work and to seek feedback from the public, including the use of social media,94 an enhanced internet presence,95 the live streaming of annual sessions, an increased number of webinars and workshops (in-person or online) open to the public,96 and through online consultations on policy97 and regulatory instruments.98 For example, the ISA’s work towards the future Exploitation Regulations commenced with an open stakeholder survey in 2014, followed by publication of various iterations of the Draft Regulations, with regular opportunities for stakeholders to comment via online submission99 or by way of verbal interventions at ISA sessions. A similar online consultation, supported by a series of meetings with States’ New York diplomatic missions, was held in 2018 during the preparation of the ISA’s first Strategic Plan.100 To date, however, such efforts have largely engaged the small group of stakeholders who are already active and knowledgeable about the ISA.101 For example, the ISA’s 2018 consultation process for the Strategic Plan resulted in only 23 submissions, all of which were written by actors who regularly attend ISA meetings, and are therefore likely to receive ISA notifications.102 While it would be unrealistic to expect proactive outreach by the ISA to every individual or organisation possibly interested, international organisations are, nonetheless, increasingly expected to facilitate broad participation.103 Interesting modalities seen in other fora include, for example, the EU’s efforts to reach out, not only to NGOs, but also to citizens as individuals, through a variety of ‘consultative experiments’ including internet-based consultations as well as in-person meetings.104 Indeed, the EU has specifically attempted to seek

Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010, Reg. 1(3)(c); ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012, Reg. 1(3)(d)). 94 See ISA’s Twitter account: . 95 See ISA’s website: . 96 For a list of recent workshops, see . 97 For example: ISA, ‘Consultation Process’ . 98 For example: ISA, ‘Draft Exploitation Regulations’ . 99 Draft Exploitation Regulations (n 67). 100 ISA, ‘Consultation Process’ (n 97). 101 See Comments on the Strategic Plan: . 102 See the submissions at ISA, ‘Consultation Process’ (n 97). 103 Matthias Ecker-Ehrhardt, ‘International Organizations “Going Public”? An Event History Analysis of Public Communication Reforms 1950-2015’ (2018) 62 International Studies Quarterly 723–736. 104 Dingwerth and Nanz (n 22).

376  Research handbook on international marine environmental law citizens’ views on broader policy questions around DSM,105 thereby informing its position at the ISA as well as in the European Parliament. While such detailed outreach cannot be expected of every organisation, it does demonstrate the range of outreach activities that are possible for intergovernmental organisations. During the COVID-19 pandemic (the 2020-2021 meeting cycle), public engagement opportunities were further diminished. Certain ISA decisions – including those on substantive matters such as awarding a new exploration contract – followed the ‘silence procedure’. This involved the circulation to Council members of a draft decision, which is then deemed adopted unless a member State breaks the silence to veto it.106 Observers were not on the distribution list used to circulate these documents and were not apprised of the matters until after the decisions had been adopted and posted to the ISA’s website. The Draft Exploitation Regulations offer insights into how PP is envisaged as contributing to future decision-making processes in the ISA. They contain positive developments not seen in the existing legal framework, including requirements relating to: publication of exploitation contracts; a public consultation period for environmental plans; reversing the presumption of confidentiality of contractor data; and a broader definition of ‘stakeholder’.107 However, when considering proactive, early and full engagement, the Draft Exploitation Regulations contain no obligation for contractors, States or the ISA to proactively identify and communicate with marine users, or indeed any group beyond States. 3.3

Independence (Criterion 3)

The criterion of independence requires participatory processes to be conducted in an independent and unbiased manner. The ISA faces a challenge here, as both the regulator and environmental protection agency as well as a promoter and financial beneficiary of DSM. There thus exists an inherent potential for conflicts of interest.108 Indeed, it is not uncommon for the same States Parties to be represented simultaneously in the ISA’s advisory bodies, decision-making organ, and plenary organ, while also being a mining contractor or a sponsoring State.109 This blurring of internal roles at the ISA makes PP all the more important as a tool for the provision of external and independent oversight. By way of example, in the stakeholder consultation process for a contractor’s exploration EIA, other States in their role as ‘stakeholders’ are invited to submit comments on the EIA to the sponsoring State.110 The general reluctance of States to criticise or restrict the activities of European Commission, ‘EU stakeholder survey on seabed mining: summary of responses’ (Commission staff working document) SWD (2015) 119 final < https://​ec​.europa​.eu/​info/​sites/​default/​ files/​consultation​-seabed​-mining​-results​-swd​-2015​-119​_en​_1​.pdf>. 106 See Letter from the Acting-President Dr Kathy-Ann Brown to Members of the Council of the International Seabed Authority (9 September 2020) . 107 Draft Exploitation Regulations (n 67). 108 Richard Collins and Duncan French, ‘A Guardian of Universal Interest or Increasingly Out of Its Depth?’ (2019) International Organizations Law Review 1. 109 Peter M Haugan and others, ‘What Role for Ocean-Based Renewable Energy and Deep Seabed Minerals in a Sustainable Future?’ Blue Paper (World Resources Institute 2020) . 110 ISA, Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/25/LTC/6/Rev.1, 30 March 2020, para. 41(d)-(g). 105

Public participation in the governance of deep-seabed mining in the Area  377 fellow States, may inhibit States’ frank criticism of another State’s EIA, thereby potentially allowing sub-standard EIAs to proceed. Such diplomatic niceties underline the necessity of engaging the views of non-State actors and external experts and of providing mechanisms for oversight. However, no formal procedures or independent review processes exist through which third parties, be they State or non-State actors, can file a complaint to or about the ISA, and none are currently envisaged.111 The Draft Exploitation Regulations, for example, make no provision for an Ombudsperson or other impartial entity able to conduct independent inquiry into allegations about the ISA and its activities. Moreover, while the ISA regime includes a compulsory dispute settlement mechanism, there is no judicial review option of the ISA’s Mining Code.112 In March 2021, the United Nations Appeals Tribunal expressed concern about the ISA Secretary-General being the de facto final arbiter for complaints made against his own decisions.113 Whether and in what manner this situation may be resolved remains to be seen. 3.4

Transparent Process, Structured Process and Defined Public Role (Criteria 4, 5, and 6)

Concerning transparency, or the lack thereof, the ISA’s main advisory body, the Legal and Technical Commission (LTC), is often singled out.114 LTC discussions on applications for exploration contracts are always held in private,115 and the resulting recommendations tend to be brief, containing little detail of discussion, dissension or uncertainties.116 The LTC’s recommendation is the only documentation seen by the decision-making organ, the Council (and the public). Neither the application documents nor the proposed plan of work and draft contract that the Council is asked to approve, are disclosed.117 Furthermore, it is procedurally difficult for the Council to reject an LTC recommendation.118 Indeed, no LTC recommendations for exploration contract approval have ever been successfully opposed by the Council. There is no possibility for third parties to challenge the approval of a plan of work or an existing contract.119 Nor is this position likely to change when it comes to applications for mineral exploitation. The Draft Exploitation Regulations do not require the LTC to provide any specific detail

111 Klaas Willaert, ‘Public Participation in the Context of Deep Sea Mining: Luxury or Legal Obligation?’ (2020) 198 Ocean and Coastal Management 105368. 112 LOSC, Arts 187-189. 113 United Nations Appeals Tribunal, Van Khanh Nguyen (Appellant) v. Secretary-General of the International Seabed Authority (Respondent), Judgment No. 2021-UNAT-1089 (19 March 2021). 114 Willaert (n 111). ‘[L]ack of transparency in the functioning of the Legal and Technical Commission, […] increased politicization of this expert committee […and] lack of record of diverging views, technical detail and nuance in the reports to the Council has been criticized’. 115 Johnson and others (n 74). 116 See eg ISA, Report and recommendations of the Legal and Technical Commission to the Council of the International Seabed Authority relating to an application for approval of a plan of work for exploration for polymetallic nodules by Blue Minerals Jamaica Ltd, ISBA/26/C/22, 6 August 2020. Several ISA observers expressed concerns about a lack of information and public participation in the decision-making over this exploration contract. See their statements at . 117 Lily and Roady (n 18). 118 1994 Implementing Agreement, Annex, s. 3(11)(a). 119 Willaert, Public Participation in the Context of Deep Sea Mining’ (n 111).

378  Research handbook on international marine environmental law when making recommendations to Council,120 and they do not require the Council to publish any rationale for their decisions.121 In terms of a structured participatory process which includes a defined role for the public, the ISA has no policies or set procedures, resulting in a variety of ad hoc approaches. For example, in 2019, formalised consultation procedures were proposed in relation to the development of Standards and Guidelines subsidiary to the Draft Exploitation Regulations as well as the Regional Environmental Management Plans.122 However these proposals were not followed by the ISA Council,123 leaving procedures for developing these key regulatory instruments at the discretion of the ISA Secretariat. Subsequently, the Secretariat provided an opportunity for stakeholders, including ISA member States, to submit comments online concerning the first drafts of the Standards and Guidelines, which were published on the website and also summarised in a report to Council.124 Thus, although the structure of the process was unclear, there was transparency. In contrast to the rather ad hoc process so far in developing Standards and Guidelines, discussion on Regional Environmental Management Plans, which inter alia consider the critical question of no-mining zones, have thus far been structured, but conducted in closed, invitation-only workshops, with little or no transparency or consultation opportunities having yet been provided to the wider public. In the context of the ongoing drafting of exploitation regulations, the process is mostly structured. Under the pressures of the ‘hurry-up clause’, three new informal working groups were established in late 2021 (in addition to an earlier one on the payment regime), which allow for the participation of observers and other stakeholders. They are tasked with discussing: (a) protection and preservation of the marine environment; (b) inspection, compliance and enforcement; and (c) institutional matters, including ‘recourse to independent expertise and stakeholder participation,’ which suggests that the topic will be further considered. Regarding a generally defined role for the public, the Draft Exploitation Regulations do not stipulate any. For example, as currently drafted, they could allow infinite contract extensions without stakeholder consultation, because the process for granting extensions does not

Draft Exploitation Regulations (n 67) Draft Regs 12-15. Ibid, Draft Reg. 16. 122 ISA, ‘Environmental Management Plan’ . 123 The proposals for Standard and Guidelines processes can be found at ISA, Development of Standards and Guidelines for Activities in the Area (13-15 May 2019) Workshop Report . This was followed by a 2019 decision of the Council that only ‘took note’ of the recommendation (ISA, Decision of the Council of the International Seabed Authority relating to the reports of the Chair of the Legal and Technical Commission, ISBA/25/C/37, 22 July 2019). For Regional Environmental Management Plans, the proposal was made in a formal submission to Council by Germany, the Netherlands and Costa Rica (ISA, Procedure for the development, approval and review of regional environmental management plans Submitted by the delegations of Germany and the Netherlands, with co-sponsorship by Costa Rica, ISBA/26/C/6, 6 January 2020), which resulted in the 2020 deferral of any decision by the Council (ISA, Decision of the Council concerning a standardized approach for the development, approval and review of regional environmental management plans in the Area, ISBA/26/C/10, 21 February 2020). 124 ISA, Report of the Chair of the Legal and Technical Commission summarising stakeholder feedback on the phase one draft standards and guidelines, ISBA/27/C/2, 31 January 2022. 120 121

Public participation in the governance of deep-seabed mining in the Area  379 stipulate public engagement.125 Moreover, once a contract is awarded, the Draft Exploitation Regulations make no provision for public consultation during reviews of a contractor’s performance, or during reviews conducted to assess the adequacy of a contractor’s Plan of Work.126 Public scrutiny is only specified when a contractor proposes to make what are considered to be material changes to its Plan of Work, including inter alia, submitting a revised environmental plan, which would then be published and subject to external review.127 In parallel with the development of the exploitation regulations, the ISA Secretariat’s Stakeholder Engagement and Communications Strategy is also under development and could help define a role for the public in ISA Secretariat activities. However, the first draft of the Strategy, released in 2020,128 was not well received by stakeholder groups. It was criticised, inter alia, for appearing to restrict stakeholder involvement in the work of the ISA as well as constructing or reiterating existing boundaries. Moreover, it was not seen to add anything further to the ISA’s current practices.129 3.5

Resource Accessibility as well as Proportionality and Cost-Effectiveness (Criteria 7 and 8)

Regarding resource accessibility, it is well known that the costs involved in sending delegates to Jamaica can be an obstacle for less well-resourced delegations.130 (Online participation was trialled in late 2021 and again in early 2022 during the COVID pandemic, but it is too soon to say whether this will become an established or viable low-cost option for participation.) The ISA manages modest trust funds aimed at defraying travel costs for developing countries members of ISA subsidiary organs and Council delegates, though funding shortages are common.131 The quantum involved is small compared to the size of the ISA’s membership, or to similar funds set up, for example, to assist countries’ engagement in climate negotiations.132 As an inter-governmental organisation, and consistent with its membership mandate as pro Draft Exploitation Regulations (n 67) Draft Reg. 20. Ibid, Draft Regs 52 and 58. 127 Ibid, Draft Reg. 25(2). 128 ISA, Communications and Stakeholder Engagement Strategy (n 90). 129 See eg the following submissions by ISA observers: Deep Ocean Stewardship Initiative, ‘Commentary on “Communications and Stakeholder Engagement Strategy” issued 7 December 2020 by the ISA’ (28 January 2021) ; Deep Sea Conservation Coalition ‘Submission on Zero Draft Communications and Stakeholder Engagement Strategy’ (29 January 2021) . 130 Johnson and others (n 74) 32, 43 and 77. 131 See eg ISA ‘Urgent call for contributions to the Voluntary Trust Fund to meet the costs of participation of members of the Legal and Technical Commission from developing countries’ . 132 The Voluntary Trust Fund had received a total of US $87,500 to fund ISA Council member costs over three years (ISA, Status of the trust funds of the International Seabed Authority and related matters Report of the Secretary-General, ISBA/26/FC/2, 6 May 2020), as opposed to €4.8m available for UNFCCC delegates over two years (UNFCCC, ‘Funding Estimates for the Trust Fund for Participation in the UNFCCC Process in 2021’ (June 2020) ). 125 126

380  Research handbook on international marine environmental law vided by Article 156 of the LOSC, ISA sessions are only open to accredited members of State delegations or approved observers. However, to date these funds have only supported State delegations, not ISA observers or other civil society actors. Regarding proportionality, it will be recalled that this criterion requires the PP processes to be proportional to the scale of possible impacts. The plausible magnitude and extent of DSM activities must therefore be considered. While the possible environmental impacts of DSM are not yet fully understood, they are very likely to be significant and to negatively impact marine biodiversity in the mined area133 as well as the water column and adjacent non-mined areas.134 Transboundary effects, and impacts upon other marine users, may also occur.135 In-situ small-scale simulations of nodule mining have demonstrated that many impacts will be at a minimum on decadal time scales, if not much longer.136 Experts now believe that DSM will cause an unavoidable net loss of deep-sea biodiversity, which cannot be ‘offset’ by rebuilding similar ecosystems elsewhere (as is sometimes possible on land).137 Decisions concerning DSM should therefore be considered to have potentially irreversible environmental consequences, which in the case of nodule mining, will be on a scale of several hundred square kilometres of seafloor each year per operation.138 The expected magnitude and spatial scale of environmental impacts of DSM suggest the need for proportionately broad and extensive public engagement. This is consistent with the decision of the Seabed Disputes Chamber in its Seabed Advisory Opinion in which it opined that application of the precautionary approach is a key obligation of States sponsoring mining activities in the Area139 and also a direct obligation which has been adopted expressly by the ISA.140 For decisions with long-lasting or irreversible (environmental) consequences, full Craig R Smith and others, ‘Deep-Sea Misconceptions Cause Underestimation of Seabed-Mining Impacts’ (2020) 35 Trends in Ecology and Evolution 853; Ellen Pape and others, ‘Potential Impacts of Polymetallic Nodule Removal on Deep-Sea Meiofauna’ (2021) 11 Scientific Reports 19996; Erik Simon-Lledó and others, ‘Biological Effects 26 Years after Simulated Deep-Sea Mining’ (2019) 9 Scientific Reports 8040. 134 Charles L Morgan, Nii Allotey Odunton and Anthony T Jones, ‘Synthesis of Environmental Impacts of Deep Seabed Mining’ (1999) 17 Marine Georesources and Geotechnology 307; Lisa A Levin and others, ‘Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining’ (2016) 74 Marine Policy 245; Bernd Christiansen, Anneke Denda and Sabine Christiansen, ‘Potential Effects of Deep Seabed Mining on Pelagic and Benthopelagic Biota’ (2020) 114 Marine Policy 103442; Jesse MA van der Grient and Jeffrey C Drazen, ‘Potential Spatial Intersection between High-Seas Fisheries and Deep-Sea Mining in International Waters’ (2021) 129 Marine Policy 104564. 135 Kirsten F Thompson and others, ‘Seabed Mining and Approaches to Governance of the Deep Seabed’ (2018) 5 Frontiers in Marine Science 480. 136 Simon-Lledó and others (n 133). 137 Holly J Niner and others, ‘Deep-Sea Mining With No Net Loss of Biodiversity – An Impossible Aim’ (2018) 5 Frontiers in Marine Science 53. 138 There are various estimates of seafloor impacts associated with nodule mining, including: Horst U Oebius and others, ‘Parametrization and Evaluation of Marine Environmental Impacts Produced by Deep-sea Manganese Nodule Mining’ (2001) 48 Deep Sea Research Part II: Topical Studies in Oceanography 3453; Craig R Smith and others, ‘The Near Future of the Deep Seafloor Ecosystems’ in Nicholas VC Polunin (ed), Aquatic Ecosystems: Trends and Global Prospects (CUP 2008); Carsten Rühlemann and Steffen Knodt, ’Manganese Nodule Exploration and Exploitation from the Deep Ocean’ (2015) 10 Journal of Ocean Technology 1. 139 Responsibilities and Obligations of States sponsoring persons and entities with respect to activities in the Area (Advisory Opinion) ITLOS Reports 2011, 10 (Seabed Advisory Opinion), paras 125-135. 140 Nodules Exploration Regulations (n 60), Reg. 31. 133

Public participation in the governance of deep-seabed mining in the Area  381 application of the precautionary approach suggests the need for both enhanced research to reduce scientific uncertainties, and enhanced engagement with the public to determine what level of risk and harm is deemed acceptable.141 This requirement of enhanced public engagement necessarily implies the possible need for provision of appropriate financial allocation,142 as seen, for example, in other international and regional fora, where less-resourced civil society actors have been offered financial support for travel and capacity-building.143 In terms of the cost-effectiveness of the existing ISA trust funds, there is no information available. For example, there are no publicly available monitoring and evaluation assessments – assuming any have been undertaken. 3.6

Influence (Criterion 9)

The criterion of influence requires that the output of the participatory process should be given due consideration and the public should be informed of how their views have influenced decisions. In general, in the (ad hoc) ISA consultation processes described above, stakeholder responses have sometimes been published,144 but not always,145 and there has usually been no indication of how public comments may have been taken into account.146 For some stakeholder reviews of the Draft Exploitation Regulations, summaries of the stakeholder comments were provided alongside the new revised text.147 However, comments submitted verbally by ISA delegations during annual sessions, including line-by-line textual analyses, do not appear to have been recorded and it is unclear whether they have been considered in subsequent revisions. To date, only written comments from Council members (and no other States or commentators) have been explicitly incorporated.148 While the revisions undoubtedly captured some of the concerns of the other member States and stakeholders, many concerns remain outstanding. Written proposals formally submitted by States Parties

Rob Fowler, ‘Environmental Principles in Australia’ in Michael Faure (ed), Elgar Encyclopedia of Environmental Law (Edward Elgar 2018). 142 Craik and Gu (n 56). 143 UNGA, Procedures and Practices in Respect of Civil Society Engagement with International and Regional Organizations, Report of the United Nations High Commissioner for Human Rights, UN Doc A/HRC/38/18, 18 April 2018, para. 55. 144 See, for example, ISA, ‘Submissions received with respect to the stakeholder consultations on Standards and Guidelines’ (2020-2021) . 145 Ironically, stakeholders’ comments on the draft Stakeholder Engagement and Communications Strategy, which closed in January 2021, have not yet been published by the ISA Secretariat at the time of writing this chapter, more than one year later (February 2022). See ISA, ‘Stakeholder Engagement’ . 146 But see the LTC’s report from January 2022, where it responds briefly and in very broad terms to stakeholder comments on the ISA’s draft Standards and Guidelines. ISBA/27/C/2 (n 124). 147 Eg, ISA, Briefing note on the submissions to the draft regulations on the exploitation of mineral resources in the Area, Note by the Secretariat, ISBA/25/C/CRP.1, 26 November 2018; ISA, Comments on the draft regulations on the exploitation of mineral resources in the Area, Note by the Secretariat, ISBA/25/C/2, 4 December 2018. 148 ISA, Draft regulations on exploitation of mineral resources in the Area Collation of specific drafting suggestions by members of the Council, ISBA/26/C/CRP.1, 17 December 2019. 141

382  Research handbook on international marine environmental law (and in one example, a regional group of 47 member States149) in 2018, remain largely unaddressed in the Draft Exploitation Regulations as of February 2022.150 As noted above, there is no general ISA policy on the role of the public (or other stakeholders) and how they might influence decision-making. Likewise, in the Draft Exploitation Regulations, the overarching role and influence of public consultations is not defined. Where specific consultation procedures are envisaged,151 these currently contain no requirements for contractors or ISA organs to respond or to explain how comments have or have not influenced their subsequent decisions. The Draft Exploitation Regulations also do not expand options for administrative or judicial review beyond the limited rights provided by the LOSC dispute resolution provisions, in which observers and civil society have no standing. 3.7

Provision of Environmental Information (Criterion 10)

Given the environmental risks presented by DSM, access to environmental information should be seen as an essential prerequisite for meaningful public engagement with the ISA. Deep-sea scientific data are reported annually to the ISA, and, in 2015, data reporting templates were published by the LTC, which has led to greater consistency in reporting, though data collection methods are not standardised.152 Nevertheless, there remains a scarcity of deep-sea scientific data. Moreover, what data are available have largely been gathered by ISA contractors and sub-contractors. While these data are now extracted into a database (see below), other aspects of the submitted reports remain confidential.153 In 2017, the ISA’s Assembly called for ‘continued investment in better data management and data-sharing mechanisms,’ and observed that, ‘the sharing and accessing of environmental data collected by contractors seems to require improvement’.154 In 2020, the ISA launched ‘DeepData,’ an online data repository,155 although historical information that does not fit into the DeepData reporting format has not been published. A significant and long-awaited advancement, DeepData has to date been a deep disappointment. It is difficult to use, has many duplicate and mis-named species records, has limited accessibility (data are bifurcated into ‘confidential’ and ‘public’ at the discretion of the contractor), and lacks supporting metadata that explain how the data were collected, among other technical considerations essential for proper scientific interpretation and analysis.156 As of February 2022, several functions still do not work (eg the annual report download function) and others have no listed records (eg ‘con-

African Group’s submission to the International Seabed Authority, ‘Comments on the revised draft regulations on exploitation of mineral resources in the Area’ (September 2018) . 150 ISBA/25/C/37 (n 123) para. 10. 151 Eg Draft Exploitation Regulations (n 67) Draft Reg. 11. 152 ISA, Recommendations for the guidance of contractors on the content, format and structure of annual reports, ISBA/21/LTC/15, 4 August 2015. 153 Willaert (n 71). 154 ISA, Decision of the Assembly of the International Seabed Authority relating to the final report on the first periodic review of the international regime of the Area pursuant to article 154 of the United Nations Convention on the Law of the Sea, ISBA/23/A/13, 18 August 2017, recommendations 3 and 6. 155 ISA, ‘DeepData’ . 156 Komaki and Fluharty (n 71). 149

Public participation in the governance of deep-seabed mining in the Area  383 tracts’). Although it is acknowledged that DeepData remains a work in progress, it is currently unclear whether and when these issues will be addressed. Under the current exploration regime, neither environmental performance reporting by contractors nor by the ISA are required to be made public.157 This may change in the exploitation phase as the Draft Exploitation Regulations require States, the ISA, and contractors to cooperate with a view to ‘sharing, exchanging and assessing environmental data and information for the Area’158 and to ‘promote accountability and transparency […] including through the timely release of and access to relevant environmental data and information and opportunities for stakeholder participation’.159 Specific methodologies to achieve information- and data-sharing, such as the use of established repositories for publications and recognised open-access scientific databases, are, however, not foreseen. As in the Exploration Regulations, the Draft Exploitation Regulations specify that ‘confidential’ status shall not be assigned to material that ‘relate[s] to the protection and preservation of the Marine Environment’ save where the Secretary-General agrees there are ‘bona fide academic reasons’ for delaying their release.160 This default disclosure approach will hopefully enhance public access to environmental information. However, further rules will be needed to define clearly what comprises environmental data as opposed to confidential data. Where exceptions to the rules are being considered, clear guidance criteria articulated in advance would be preferable to decisions being made on an ad hoc basis.161 For example, if commercial sensitivity is put forward as a reason to withhold geological data, as is currently the case, it should be demonstrated by the contractor how its exclusive commercial access to minerals in its mining areas would be impacted if others also had the geological information. Simply labelling information as ‘confidential’ and then treating it as such, as is current ISA practice, does not demonstrate legitimate cause.

4. CONCLUSION As discussed above, the ISA’s incorporation of public participation into its regular processes has yet to meet good and best practices as reflected in international legal instruments and as compiled in the academic literature. While the ISA has increased outreach activities and developed a number of policy documents in recent years, including a Strategic Plan for the organisation, a Draft Stakeholder Engagement and Communications Strategy, and a Data Management Policy, none of these has yet catalysed proactive and full engagement with external stakeholders or the public. The current draft Exploitation Regulations foresee an improvement in PP, though considerable gaps remain. While the ISA has increased stakeholder and public consultation in recent years, there remains significant scope for improvement. To better meet contemporary expectations under international law and policy, decisive actions to promote and implement PP are necessary – by

Willaert (n 71). Draft Exploitation Regulations (n 67) Draft Reg. 3(f)(i). 159 Ibid, Draft Reg. 44(d). 160 Ibid, Draft Reg. 89(3)(f). 161 Pew, ‘Environmental Compliance Strategies for Deep-Sea Mining’ (11 June 2020) ; Komaki and Fluharty (n 71); Ardron (n 10). 157 158

384  Research handbook on international marine environmental law both ISA member States and the Secretariat. To that end, our assessment has shown that ISA decision-making would benefit from a number of improvements, which can be summarised into three broad categories. First, the ISA should adopt mechanisms to engage in increased and proactive consultation with wider reach, taking into account the diverse views of stakeholders, including indigenous peoples and local communities, on their preferences for how to manage the Area and how their cultural practices may be affected, prior to decisions being made. Second, mechanisms are also needed to ensure stakeholder consultations and submissions are given due consideration by ISA organs and ensure the reporting of the rationale for decisions that detail the criteria used and any areas of contention or uncertainty. Finally, the ISA should adopt improved participatory mechanisms to ensure enhanced engagement in the implementation of decisions, especially those that consider impacts to the marine environment, such as EIAs.162 Broadening the ISA’s PP efforts in these ways, as detailed under the ten criteria in the previous section, could significantly improve the robustness of ISA decision-making, as well as public trust and confidence in those decisions. Mining the common heritage of humankind is likely to have significant consequences for the marine environment. The necessity of public debate might appear self-evident in gauging what value the public attaches to the deep ocean and what environmental risks are acceptable in return for the extraction of deep-sea minerals for use by humanity. Although the ISA has incrementally begun to better engage observers and civil society in the development of its policies and regulations, it has done little to facilitate global discussion on this bigger question. Indeed, the ISA Secretary-General has dismissed such a debate on DSM as ‘useless and counterproductive’.163 Given the objections to DSM raised in other fora, and increasing concern by civil society, however, it is submitted that the ISA Council should more seriously engage in public outreach and consultation on the very merits of, and the need for, DSM in the Area. More than 50 years ago, the Area and its minerals were first declared the common heritage of humankind.164 States subsequently established, through the LOSC, the International Seabed Authority and provided it with a specific mandate to act on behalf of humankind as a whole. International treaties are not static instruments and must be interpreted in light of legal developments.165 Burgeoning scientific knowledge, increasing public concern for the marine environment, and growing international expectations around public engagement, now compellingly argue in favour of enlightened evolution of the governance of deep-seabed mining. Opportunities for broad, ongoing and meaningful participation in decisions about our common heritage should be open to all humankind, including those who have historically been unheard.

Lallier and Maes (n 12). Michael W Lodge and Philomène A Verlaan, ‘Deep-Sea Mining: International Regulatory Challenges and Responses’ (2018) 14 Elements 331, 336. 164 UNGA, Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, UN Doc A/RES/2749(XXV), 17 December 1970. 165 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 31; Whaling in the Antarctic (Australia v Japan, New Zealand intervening) (Merits) (Separate Opinion of Judge Cançado Trindade) [2014] ICJ Reports 2014, para. 34; Seabed Advisory Opinion (n 139) para. 135. 162 163

17. Marine scientific research and the protection of the seas and oceans Anna-Maria Hubert

1. INTRODUCTION In 2017, the United Nations General Assembly proclaimed 2021 to be the start of a new international Decade of Ocean Science for Sustainable Development (2021-2030: the ‘Ocean Science Decade’).1 The adoption of this new global agenda, to be coordinated by the Intergovernmental Oceanographic Commission of the UN Educational, Scientific and Cultural Organization (IOC-UNESCO), signals the international community’s reaffirmation of the ‘importance of marine scientific research, international cooperation and coordination, as well as of a stronger science-policy interface in understanding and effectively addressing the unprecedented pressures on the ocean’.2 The Ocean Science Decade fortifies other recent commitments by the international community to enhance ocean science, notably, Sustainable Development Target 14.A which aims to ‘[i]ncrease scientific knowledge, develop research capacity and transfer marine technology … in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries’.3 It also responds to demands from other international processes concerning the protection of the global environment for improved access to scientific information on the state of the oceans, as well as enhanced efforts and capacity related to research and observations.4 This endeavour further includes recent deliberations of the parties to the United Nations Framework Convention on Climate Change (UNFCCC)5, the 2015 Paris Agreement6 and the Convention on Biological Diversity (CBD)7 as well as negotiations regarding the adoption of an international legally binding instrument under the United Nations Convention

UNGA, Oceans and the law of the sea, UN Doc A/RES/72/73, 4 January 2018, para. 292. UNGA, Oceans and the law of the sea, UN Doc A/RES/75/239, 5 January 2021, para. 303. 3 UNGA, Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc A/RES/70/1, 21 October 2015, Target 14.a. 4 UN Educational, Scientific and Cultural Organization (UNESCO), Global Ocean Science Report 2020: Charting Capacity for Ocean Sustainability (UNESCO Publishing 2020) 24. 5 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC). 6 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016), UN Doc FCCC/CP/2015/10/Ad.1,55(4) International Legal Materials 740. 7 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 1 2

385

386  Research handbook on international marine environmental law on the Law of the Sea (LOSC)8 on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.9 Marine scientific research (MSR) supports a wide range of global policy objectives. Societies are increasingly reliant on vital services provided by the ocean.10 According to the OECD, the global ocean economy is expected to generate over US$3 trillion by 2030.11 Traditional marine industries, such as shipping, exploitation of oil and gas, and fisheries are joined by new economic activities such as marine renewable energy, seabed mining, offshore aquaculture and marine biotechnology. Scientific and technological advances are expected to continue to drive ocean-based economic growth and development in the coming decade to secure prosperity for present and future generations, and to play a role in addressing many of the environmental challenges that arise from existing and emerging maritime industries.12 At the same time, the health of the global ocean is in steep decline due to pressures from marine pollution, climate change, ocean acidification, the loss of marine biodiversity, and degradation of marine and coastal environments, to name a few. MSR is crucial to understanding these environmental changes, and to developing the knowledge base necessary to inform policy and decision-making, management and regulatory frameworks, and technological innovation to support environmentally sustainable practices. The Ocean Science Decade is intended to respond to current demands and challenges by seeking ‘to generate the scientific knowledge and underpinning infrastructure and partnerships needed for sustainable development of the ocean’ and ‘to provide ocean science, data and information to inform policies for a well-functioning ocean in support of all Sustainable Development Goals of the 2030 Agenda.’13 It seeks to move beyond business-as-usual to advance a global agenda of ‘transformational ocean science’,14 promoting progress in several knowledge areas such as ocean observation and prediction and improved ecosystem monitoring, as well as capacity building, development, training and improved access to ocean technology.15 Implementation of this ambitious global agenda will require significant coop8 UN Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 9 UNGA, International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/RES/72/249, 19 January 2018. 10 Thomas F Stocker, ‘The Silent Services of the World Ocean’ (2015) 350 Science 764; Martin Visbeck, ‘Ocean Science Research is Key for a Sustainable Future’ (2018) 9(1) Nature Communications 690. 11 Organisation for Economic Co-operation and Development (OECD), The Ocean Economy in 2030 (OECD Publishing 2016) 13. 12 Ibid, 13-14. 13 Intergovernmental Oceanographic Commission (IOC)-UNESCO, Revised Roadmap for the UN Decade of Ocean Science for Sustainable Development, UN Doc IOC/EC-LI/2, 18 June 2018, Annex 3, para. 46. 14 IOC-UNESCO, The United Nations Decade of Ocean Science for Sustainable Development (2021-2030) Implementation Plan: Summary (IOC Ocean Decade Series 19, UNESCO 2021) 13. 15 IOC-UNESCO, The United Nations Decade of Ocean Science for Sustainable Development (2021-2030): Implementation Plan (IOC Ocean Decade Series 20, UNESCO 2021) (IOC-UNESCO, Implementation Plan).

Marine scientific research and the protection of the seas and oceans  387 eration and coordination amongst States, specialised agencies and bodies of the UN, other intergovernmental organisations, and relevant stakeholders including industry, researchers, civic groups and communities.16 The Ocean Science Decade is to be implemented on a voluntary basis within the legal framework laid down in the LOSC. The LOSC is somewhat unique in that Part XIII explicitly, and in a more comprehensive manner than other international agreements, addresses issues related to science and its applications. In the past, much of the legal commentary has focused more narrowly on those articles of Part XIII that set out the rights and duties of coastal States and researching States in the Exclusive Economic Zone (EEZ) and on the continental shelf, since this was a new and somewhat controversial addition to the law of the sea with the adoption of the LOSC in 1982. Increasingly, however, the international community is having to grapple with the transformative power of science and technology in a globalised world, and the normative and institutional implications of these phenomena at the international level. As such, a wider swathe of the provisions of Part XIII on MSR are coming under closer scrutiny including, for the purposes of this chapter, how these articles ought to be interpreted and applied in the context of marine protection and environmental sustainability. Current questions include: what is the meaning and scope of the concept of ‘MSR’ in the face of rapid scientific and technological change? What legal norms and mechanisms address the risks, benefits and opportunities posed by MSR in relation to the protection of the marine environment, and to what extent are these sufficient in addressing the full range of societal concerns associated with marine science and technology? Who should participate in, and benefit from, MSR conducted in the marine environment, and how should the international law of the sea evolve in response to inequities and inequalities in current practice? How is international cooperation in the generation and sharing of scientific knowledge changing in response to needs for better scientific knowledge, infrastructure and coordination? How do considerations of other areas of international law, such as international human rights, affect the way in which the provisions in the LOSC concerning MSR are interpreted and applied? The offering of the second edition of this Handbook thus presents a timely opportunity to re-examine the international legal regime for MSR in light of recent developments concerning its relationship to the protection and preservation of the marine environment and sustainable development. This chapter examines some of the questions posed above regarding the international legal and institutional framework for MSR, primarily set out in Part XIII of the LOSC, in the context of the protection and preservation of the marine environment, which is regulated under Part XII of the LOSC and other related international agreements. Specifically, it discusses general aims and definitional concepts of MSR, general principles and norms, maritime zone specific provisions on the conduct of MSR, responsibility and liability for environmental damage from the conduct of MSR, and dispute settlement. Though the focus is on the conventional regime for MSR laid down in Part XIII of the LOSC, the analysis also draws upon developments in other areas of international law and policy. The chapter concludes by pointing to some future directions for scholarship in this area.

Ibid.

16

388  Research handbook on international marine environmental law

2.

GENERAL AIMS AND SOURCES

The preamble to the LOSC reflects the close connection between the aims to advance ocean knowledge and to promote the health of the global ocean, declaring the desire of States Parties to establish a legal order for the seas and oceans to promote ‘the study, protection and preservation of the marine environment’.17 The legal regimes for MSR and the protection and preservation of the marine environment are laid down in Part XIII and Part XII of the LOSC respectively. However, given the crosscutting nature of the topic, international rules relevant to MSR and environmental protection are also found in other parts of the LOSC.18 The relationship is also elaborated in other specialised international agreements, as envisaged in Articles 311 and 237 of the LOSC. For example, several international and regional agreements addressing marine environmental protection, including the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention)19 and its 1996 Protocol (London Protocol),20 as well as the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),21 discussed below, add to the normative understanding of what constitutes environmentally sustainable practices for MSR. The interpretation of Part XIII may also be informed by other areas of international law beyond the law of the sea.22 For example, commitments in the UNFCCC, which call upon States Parties to promote and cooperate in scientific research related to the climate system,23 also contribute to our understanding of the protection of the marine environment, given the important role of oceans in the climate system. Implementation of these international climate law provisions is linked to initiatives such as the agreement of the Conference of the Parties of the UNFCCC at its 25th session to establish an Ocean and Climate Dialogue under the auspices of the Convention’s Subsidiary Body for Scientific and Technological Advice,24 as well as the Intergovernmental Panel on Climate Change (IPCC) Special Report on the Ocean and Cryosphere in a Changing Climate.25

LOSC, preamble. LOSC, Arts 19, 21 and 52 (innocent passage), Art. 40 (transit passage), Art. 54 (archipelagic sea lanes passage), Arts 56 and 62 (EEZ), Art. 87 (high seas), Art. 123 (enclosed or semi-enclosed seas), Arts 143 and 155 (the Area), Part XII (Protection and Preservation of the Marine Environment), Part XIV (Development and Transfer of Marine Technology), Part XV (Settlement of Disputes) and Annex VIII (Special Arbitration). 19 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120. 20 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 International Legal Materials 1. 21 Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67. 22 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 31(3)(c). 23 Eg, UNFCCC, Art. 4(1)(g). 24 UNFCCC Conference of the Parties (COP), Decision 1/CP.25: ‘Chile Madrid Time for Action’, UN Doc FCCC/CP/2019/13/Add.1, 15 December 2019. 25 Intergovernmental Panel on Climate Change (IPCC), IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (CUP 2019) . 17 18

Marine scientific research and the protection of the seas and oceans  389 International human rights law is also relevant to the interpretation of Part XIII, especially the so-called ‘human right to science’ laid down in Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).26 The human rights dimensions of MSR have received limited attention to date, in part, because the human right to science itself has been overlooked. However, its increased prominence raises timely and important questions about the human rights dimensions of ocean science, and opens up a potentially important source for critique of the nature and practices of MSR.27 A human rights framing prompts a different set of questions, such as who is most active in producing new scientific knowledge related to the marine environment, and what are the implications of this for knowledge production and its integration into law and policy processes? For example, Morgera has looked at how the different dimensions of the human right to science can help address power dynamics and issues of equity in ocean knowledge production with a view to clarifying legal and policy questions around the multilateral governance of biological diversity beyond national jurisdiction (BBNJ).28 Further study of the implications of the right to science for Part XIII is warranted, especially in light of the emphasis of the Implementation Plan of the Ocean Science Decade on overcoming barriers to diversity and equity in MSR. The growing number of legal norms and institutional processes related to the conduct of MSR raises the concern of institutional and legal fragmentation within this area. The Ocean Science Decade provides an opportunity to assess and better integrate ocean science, law and policy at all levels. At the same time, it is likely to stimulate new developments in the legal and institutional framework for MSR. The challenge will be to maintain some semblance of coherence within the legal regime for MSR through this continual process of co-production of knowledge and law.

3.

DEFINITIONAL CONSIDERATIONS

Questions surrounding the meaning and scope of the provisions of Part XIII are longstanding, and often intersect with matters related to the protection and preservation of the marine environment. Debates and controversies surrounding the meaning of the term ‘MSR’ have persisted since the very conception of Part XIII. The term is not expressly defined in the LOSC, reflecting a deliberate choice on the part of negotiators at the third UN Conference on the Law of the Sea (UNCLOS III). A key issue was whether the concept of MSR ought to extend to all forms of research, both fundamental and applied. There was general agreement amongst States that research with direct significance for the exploitation of marine resources or military uses

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 27 See, eg, UN Economic and Social Council, Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 25 (2020) on science and economic, social and cultural rights (Art. 15(1)(b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights), UN Doc E/C.12/GC/25, 30 April 2020. 28 Elisa Morgera, ‘The Relevance of the Human Right to Science for the Conservation and Sustainable Use of Marine Biodiversity of Areas Beyond National Jurisdiction: A New Legally Binding Instrument to Support Co-Production of Ocean Knowledge Across Scales’ in Vito De Lucia, Lan Nguyen and Alex G Oude Elferink (eds), International Law and Marine Areas beyond National Jurisdiction: Current Status and Future Trends (Brill 2021). 26

390  Research handbook on international marine environmental law should be treated differently, however, the difficulty lay in how to represent this distinction with any degree of precision in a definitional provision. Several definitions were proposed and debated; however, ultimately, a consensus emerged that the treaty text should not contain a definition of MSR. While the distinction between fundamental and applied research continued to have legal salience, States agreed that the meaning and scope of the term should be left to be determined based on the substantive provisions of the LOSC.29 The choice not to expressly define MSR in the LOSC has been criticised by some commentators, in part because this creates vagueness and uncertainty concerning the scope of application of Part XIII.30 However, a general working understanding of the term exists in the literature,31 and the advantage of leaving the term open-ended in the treaty text is that it allows for the meaning and scope of the MSR provisions to evolve over time through interpretation and application of the law to specific circumstances in the face of continuous and often rapid scientific and technological change.32 This open-ended approach has subsequently been adopted by the International Court of Justice (ICJ) in the Whaling in the Antarctic case33 in which it declined to define the term ‘scientific research’ in determining whether Japan’s scientific whaling programme, JARPA II, was conducted ‘for the purposes of scientific research’ in accordance with the exception to the prohibition against commercial whaling laid down in Article XIII(1) of the International Convention for the Regulation of Whaling (ICRW).34 In addressing the issue of whether the

29 For a summary, see, Myron Nordquist and others (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Martinus Nijhoff 1991) (Virginia Commentary); Alfred HA Soons, MSR and the Law of the Sea (Kluwer Law 1982) 118-125. 30 See, eg, Tullio Treves, ‘MSR’ in Rüdiger Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (OUP 2008) stating that the lack of a definition ‘in terms of legal clarity, ... is considerably deplorable.’ There are also activities (eg, hydrographic surveying) which, though they may appear to fall within the definition of MSR, fall outside the ambit of Part XIII of the LOSC, including ‘survey activities’, ‘prospecting’ and ‘exploration and exploitation’. See further, Christopher Whomersley, ‘What Is and What Is Not Covered by Part XIII of UNCLOS?’ in Keyuan Zou and Anastasia Telesetsky (eds), Marine Scientific Research, New Marine Technologies and the Law of the Sea (Brill 2021). 31 Treves (n 30) has suggested that the term should be broadly understood to mean ‘any study or related experimental work designed to increase knowledge of the marine environment’ – a definition that was proposed in the Informal Single Negotiating Text, but later removed in the agreed 1977 Informal Composite Negotiating Text. See further, Virginia Commentary (n 29) 440-450. However, though this definition captures the overall purpose and ambit of the concept of MSR, it is much too open-textured to provide any clear guidance in specific cases. 32 This approach is also in keeping with the nature of the LOSC as a framework treaty intended to provide ‘broad principles and norms and for an institutional architecture for the subsequent development of the regime’. See, Jorge E Viñuales, ‘Legal Techniques for Dealing with Scientific Uncertainty in Environmental Law’ (2010) 43(2) Vanderbilt Journal of Transnational Law 437, 452-453. See generally, Irena Buga, ‘Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction’ in Donald Rothwell and others (eds), The Oxford Handbook on the Law of the Sea (OUP 2015); James Harrison, Making the Law of the Sea: A Study in the Development of International Law (CUP 2015); Alan Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54(3) The International and Comparative Law Quarterly 563. 33 Whaling in the Antarctic (Australia v. Japan; New Zealand Intervening) (Judgment) [2014] ICJ Rep 226, paras 72-86 (Whaling in the Antarctic). 34 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (ICRW).

Marine scientific research and the protection of the seas and oceans  391 killing, taking, and treating of whales was conducted for the purposes of scientific research, the ICJ declined to enquire into the merits of whether the programme constituted scientific research.35 It also rejected Australia’s argument based on expert opinion that ‘scientific research’ must exhibit certain essential characteristics in order to satisfy the exception and declined to provide its own general definition or to offer any alternative criteria of its own.36 Instead, in deciding that the special whaling permits were not granted ‘for the purposes of scientific research’, the Court found that the design and implementation of JARPA II was not reasonably related to its objectives and that it was unreasonable for Japan not to consider non-lethal alternatives, taking into account its obligations to cooperate with the International Whaling Commission (IWC), its own scientific policy, the existence of new technologies to avoid lethal sampling, the principle of proportionality and underlying commercial motivations.37 Other definitional issues require consideration, particularly in relation to the question of how the legal regime for MSR interacts with that for the protection and preservation of the marine environment. MSR is commonly thought to cover research having the ‘marine environment’ as its object38 – a term that is also not defined in the LOSC.39 Research activities conducted in the water column, the seabed and subsoil, and the airspace immediately above the ocean clearly fall within the scope.40 However, the environmental components, conditions and phenomena that interact with, and determine the productivity, state, condition and quality of the marine environment are obviously connected with larger earth system processes, such as atmosphere and climate, raising the question of how directly related to the purpose of ‘increasing knowledge of the marine environment’ (emphasis added) the research activity must be in order to constitute MSR. For example, to what extent does research involving satellite observations of low-level marine clouds and their response to climate change constitute ‘a study or related experimental work designed to increase knowledge of the marine environment’,41 given the close coupling between the ocean and climate systems?42 Alternately, do model simulations of pathways of the accumulation patterns of plastic pollution constitute MSR?43 Whaling in the Antarctic (n 33) para. 88. Ibid, para. 86. 37 For discussion, see, Natalie Klein and Millicent McCreath, ‘Resolving International Disputes Concerning the Marine Environment’, Chapter 6 in this volume. 38 Soons (n 29) 124. 39 The term ‘marine environment’ is defined in the International Seabed Authority’s (ISA) Nodules Regulations as ‘the physical, chemical, geological, and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof.’ See, ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013, Art. 1(3)(c). See also, ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area’, ISBA/16/A/12/Rev.1, 7 May 2010, Art. 1(3)(c); ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012, Annex, Art. 1(3)(d). 40 Ibid. 41 See n 30. 42 Helene Brogniez and others (eds), ‘Special Issue: Elucidating the Role of Clouds–circulation Coupling in Climate: Datasets from the 2020 (EUREC4A) Field Campaign’ (2022) Earth System Science Data. 43 Atsuhiko Isobe and Shinsuke Iwasaki, ‘The Fate of Missing Ocean Plastics: Are They Just a Marine Environmental Problem?’ (2022) 825 Science of The Total Environment 153935. 35 36

392  Research handbook on international marine environmental law The central point here is that the key terms and concepts that underpin the interpretation and application of Part XIII are flexible, complex and uncertain, due in part to their open-textured nature. This chapter points to several examples of the changing nature and practices of MSR, and the ways in which science and technological innovation have prompted further developments in the law of the sea. At the same time, international law and institutional processes shape ocean science and its practices in profound ways. In short, the process of co-production of scientific knowledge, technology and the law is iterative, and, through constant interactions, these relations will give practical effect to legal meanings and objects concerning the interpretation and application of Part XIII of the LOSC.44

4. THE RIGHT TO CONDUCT AND THE DUTY TO PROMOTE AND FACILITATE MSR Several provisions in Part XIII of the LOSC recognise the importance of MSR, including in providing the knowledge base necessary for effective marine protection and management. Part XIII of the LOSC begins by establishing the right of all States and competent international organisations to engage in MSR.45 The right to conduct MSR is not unlimited, however, being ‘subject to the rights and duties of other States as provided for in [the] Convention’.46 The reference in Article 238 to ‘other States’ acknowledges the balancing to be carried out between the right to conduct MSR and the rights of other States in carrying out other legitimate activities in the marine environment. For example, the right of researching States to conduct MSR in the EEZ and on the continental shelf of coastal States is subject to the qualified consent regime laid down in Article 246 of the LOSC.47 The right to conduct MSR is also subject to States’ duties in the LOSC, including, importantly for the purposes of this chapter, the obligation to protect and preserve the marine environment, which is discussed at further length in Section 5 below.48 States and competent international organisations also have a duty under Article 239 to promote and facilitate the development and conduct of MSR in accordance with the LOSC.49 This provision underscores the importance of MSR to advancing the overarching objectives of the LOSC including the protection and preservation of the marine environment. Article 239 is programmatic in character, and although it may not create any precise obligations on its own,50 it grounds other, more specific duties elsewhere in the LOSC. This includes duties in Part XII to promote studies, research programmes, and the exchange of information and data in relation

Shelia Jasanoff, States of Knowledge: The Co-production of Science and the Social Order (Routledge 2004). 45 LOSC, Art. 238. See further, Paul Gragl, ‘MSR’ in David J Attard, Malgosia Fitzmaurice and Norman AM Gutiérrez, The IMLI Manual on International Maritime Law vol 1, Law of the Sea (OUP 2014). 46 LOSC, Art. 238. 47 See below, Section 6. 48 LOSC, Art. 192ff. 49 LOSC, Art. 239; see also, LOSC, Art. 251. 50 Nele Matz-Lück, ‘Article 239’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017). 44

Marine scientific research and the protection of the seas and oceans  393 to marine pollution,51 as well as to provide scientific and technical assistance to developing States.52 Further, Article 255 stipulates that States shall ‘adopt reasonable rules, regulations and procedures to promote and facilitate MSR’ in all areas where they do not have absolute sovereignty. This Article also calls upon coastal States to support the conduct of MSR by providing access to their harbours to research vessels, and to provide assistance where required.53 The Ocean Science Decade is a recent example of the implementation of the duty to promote and facilitate MSR, and underscores the importance of the role of international organisations such as IOC-UNESCO in implementing Article 239 of the LOSC and in promoting more sustainable human-ocean interactions as a result of improved ocean knowledge.

5.

GENERAL PRINCIPLES FOR THE CONDUCT OF MSR

As noted in the preceding Section, the right of States to conduct MSR in Article 238 of the LOSC is not absolute. A key question is whether and to what extent MSR may be restricted, including for the purposes of environmental protection.54 Although the environmental threat posed by MSR is generally estimated to be low relative to other industrial-scale ocean uses,55 some marine research activities may directly cause or materially contribute to environmental damage.56 The environmental impacts of MSR may be physical, acoustic, and chemical, and may be deliberate or unintended.57 Another arguably larger concern relates to the role of science and innovation in advancing commercial and industrial applications that when scaled up are ultimately damaging to the marine environment. Such concerns have been raised in the context of technological innovations in areas such as deep seabed mining, marine geoengineering and marine biotechnologies. Against this backdrop, to what extent does Part XIII of the LOSC provide for limitations on the right of States to conduct MSR and related duties to promote and facilitate it? The starting point for addressing this question, at least with respect to direct damage arising from the conduct of MSR, is the general principles laid down in Article 240 of the LOSC. These general principles apply regardless of where the research activity is taking place, including on the high seas, where the freedom of scientific research is expressly recognised.58 Article 240(d) requires that MSR be conducted in compliance with all relevant regulations, making special mention of those regulations concerning the protection and preservation of the marine environment. The scope of the principle is broad, incorporating ‘relevant regulations’

LOSC, Art. 200. LOSC, Art. 202. 53 LOSC, Art. 255. 54 Anna-Maria Hubert, ‘The New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science’ (2011) 42(4) Ocean Development & International Law 329. 55 See, eg, Angela R Benn and others, ‘Human Activities on the Deep Seafloor in the North East Atlantic: An Assessment of Spatial Extent’ (2010) 5(9) PLoS ONE e12730D V . 56 See further, Hubert (n 54). 57 International Ship Operators Meeting (ISOM), ‘Code of Conduct for MSR Vessels’ (17-20 October 2007) . 58 LOSC, Art. 87(1)(f). 51 52

394  Research handbook on international marine environmental law adopted at all levels, be it at the domestic or the international level. A key question regarding the interpretation of the principle in Article 240(d) is the extent to which the conduct of MSR is made subordinate to other regulatory objectives. A companion principle in Article 240(b) of the LOSC requires MSR to be conducted ‘using appropriate scientific methods and means compatible with this Convention.’ According to its ordinary meaning, ‘appropriate’ refers to those methods and means that are ‘suitable or proper in the circumstances’.59 Soons maintains that this provision was likely included to restrict those methods and means that are ‘unnecessarily and unreasonably damaging to the marine environment or to other uses of the sea’.60 Support for this interpretation can be found within the wider context of the LOSC, such as the principle that MSR be carried out in compliance with all relevant environmental regulations,61 and requirements that States prevent marine pollution from the release of toxic, harmful or noxious substances,62 installations and devices operating in the marine environment,63 and the use of technologies under their jurisdiction or control.64 However, this interpretation arguably makes the principle in Article 240(b) redundant in light of Article 240(d), which expressly addresses this concern. A broader reading of the phrase ‘appropriate methods and means’ may allow for the incorporation of other normative understandings about the need for ocean science to be ultimately responsible to the society in which it exists through the assertion of principles of good governance of MSR, such as transparency and openness in communicating with the public, public participation in law and policy formation, accountability, effectiveness in achieving goals and outcomes, and coherence amongst laws, institutions, and policies.65 A more recent example of issues surrounding the ‘appropriateness’ of methods and means for the conduct of MSR concerns various attempts by private entrepreneurs to undertake ocean fertilisation activities for financial benefit, which culminated in the 2012 ocean fertilisation project conducted just outside the 200 nautical mile limit of the western coast of Canada.66 In that instance, the declared aim of the Haida Salmon Restoration Corporation (HSRC) was to induce a large plankton bloom to enhance local salmon stocks and to investigate the possibility of carbon sequestration for the purpose of selling carbon credits.67 With a cost Angus Stevenson (ed), Oxford Dictionary of English (3rd ed, OUP 2014). Soons (n 29) 136. 61 LOSC, Art. 240(d). 62 LOSC, Art. 194(3)(a). 63 LOSC, Art. 194(3)(d). 64 LOSC, Art. 196(1). 65 On the ethical governance of science in a global context, see, Directorate-General for Research and Innovation (European Commission), Global Governance of Science: Report of the Expert Group on Global Governance of Science to the Science, Economy and Society Directorate, Directorate-General for Research, European Commission (EUR 23616 EN, European Commission 2009) . 66 For a legal analysis of this incident, see, Neil Craik, Jason Blackstock and Anna-Maria Hubert, ‘Regulating Geoengineering Research through Domestic Environmental Protection Frameworks: Reflections on the Recent Canadian Ocean Fertilization Case’ (2013) 7(2) Carbon & Climate Law Review 117. 67 Martin Lukacs, ‘World’s Biggest Geoengineering Experiment “Violates” UN Rules’ (The Guardian, 15 October 2012) . However, the Haida Salmon Restoration Corporation (HSRC) also made public statements indicating that they planned to generate revenue by attempting to sell carbon credits on international markets for the carbon dioxide they assumed would be sequestered by the project. Jeff 59 60

Marine scientific research and the protection of the seas and oceans  395 estimated to be US $2.5 million, the HSRC project deposited 120 tonnes of iron sulphate into the ocean68 – exceeding the amount used in any of the previous 13 in situ field experiments conducted by scientists by approximately five-fold.69 The project sparked global controversy, and widespread doubts were expressed from within the scientific community about the quality of the information and data that was gained from this project, not least because of issues with the experimental design and execution of the research, as well as questions of whether the information and data gained would be subjected to regular peer review and results made publicly available in a timely manner.70 Already since 2007, States Parties to the 1972 London Convention and its 1996 London Protocol71 and the CBD72 had deliberated over the regulatory framework for MSR related to ocean fertilisation and other marine geoengineering techniques. In 2013, after several years of studying the legal and scientific issues related to public controversies surrounding ocean fertilisation, the contracting parties to the London Protocol adopted by consensus a new amendment on the regulation of marine geoengineering.73 Though the purpose of the amendment is clearly related to the parties’ concern about the potential impacts of ocean fertilisation and other marine geoengineering activities on the marine environment,74 it is clear that they were also concerned with other aspects of what constitutes ‘appropriate’ MSR related to marine geoengineering. Building on previous non-binding resolutions,75 the 2013 amendment sets out criteria regarding the ‘legitimacy’ of the scientific research and its ‘proper scientific attributes’ that go beyond concerns of harm to the marine environment and more broadly relate to criteria for the good governance of science. The ICJ’s decision in the Whaling in the Antarctic case provides another example where the ‘appropriateness’ of methods and means for conducting MSR was at issue. Here, the Court considered the issue of whether the use of lethal methods was ‘for the purposes of scientific Tollefson, ‘Ocean-fertilisation project off Canada sparks furore’ (Nature News, Vol. 490, 23 October 2012) . 68 Zoe McKnight, ‘B.C. Company at Centre of Iron Dumping Scandal Stands by its Convictions’ (Vancouver Sun, 4 September 2013) . 69 For a summary of the amounts and scales of previous ocean fertilisation experiments, see, Secretariat of the CBD, Scientific Synthesis of the Impacts of Ocean Fertilization on Marine Biodiversity (CBD Technical Series No. 45, 2009) . 70 Tollefson (n 67). 71 International Maritime Organization (IMO), Report of the Twenty-Ninth Consultative Meeting and the Second Meeting of Contracting Parties, LC 29/17, 14 December 2007, Statement on Ocean Fertilization, para. 4.23 (IMO, Statement on Ocean Fertilization); IMO, Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting Parties, LC 30/16, 9 December 2008, Annex 6: Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, adopted 31 October 2008; IMO, Report of the Thirty-Second Consultative Meeting and the Fifth Meeting of Contracting Parties, LC 32/15, 9 November 2010, Annex 5: Resolution LC-LP.2 (2010) on the Assessment Framework for Scientific Research Involving Ocean Fertilization, adopted 14 October 2010. 72 CBD COP, Decision IX/16: Biodiversity and climate change, UN Doc UNEP/CBD/COP/DEC/ IX/16, 9 October 2008; CBD COP, Decision X/33: Biodiversity and climate change, UN Doc UNEP/ CBD/COP/DEC/X/33, 29 October 2010. 73 IMO, Report of the Thirty-Fifth Consultative Meeting and the Eighth Meeting of Contracting Parties, LC 35/15, 21 October 2013, Annex 4: Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and other Marine Geoengineering Activities, adopted 18 October 2013 (IMO, Resolution LP.4(8)). 74 Ibid, Preamble. 75 IMO, Statement on Ocean Fertilization (n 71).

396  Research handbook on international marine environmental law research’ in the context of the stated objectives of Japan’s scientific whaling programme JARPA II, under Article XIII(1) of the ICRW.76 The Court engaged in a full enquiry into the necessity and reasonableness of the use of lethal methods, including the scale of the programme’s use of lethal sampling, the methodology used to select sample sizes, a comparison of the target sample sizes and the actual take, the time frame associated with a programme, the programme’s scientific output, and the degree to which a programme coordinates its activities with related research projects. Again, although this case was ultimately motivated by concerns about marine species conservation, the criteria adopted by the Court in evaluating the design and implementation of the scientific whaling related to other considerations pertaining to the good governance of science, such as transparency and the extent of scientific outputs from the programme in relation to Japan’s stated scientific objectives and chosen scientific methodologies. Apart from the general principles laid down in Article 240, however, the LOSC is silent on norms and standards pertaining to environmentally and socially responsible conduct of MSR. Though standards for ethical research on humans and animals have long been established, the development of standards for the conduct of scientific research in the ambient environment is a relatively recent concern.77 An array of legally binding and non-binding instruments have been introduced over the past decade that seek to promote the responsible conduct of MSR and give shape to the general principles in Article 240.78 The most comprehensive and detailed to date is the legally non-binding OSPAR ‘Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime Area’, which sets out best practices and standards for the conduct of MSR.79 The legal framework for MSR on marine geoengineering as laid down in the 2013 amendment to the London Protocol described above provides another example. Returning to the question posed at the beginning of this Section regarding whether MSR may be lawfully restricted under the LOSC, it is clear that the right to conduct MSR is not absolute, and that restrictions are permitted, including pursuant to the general principles laid Whaling in the Antarctic (n 33) para. 127. For the Court’s full assessment of this point, see, ibid, paras 128-212. 77 Helene Marsh and Richard Kenchington, ‘The Role of Ethics in Experimental Marine Biology and Ecology’ (2004) 300(1-2) Journal of Experimental Marine Biology and Ecology 5; Elizabeth J Farnsworth and Judy Rosovsky, ‘The Ethics of Ecological Field Experimentation’ (1993) 7(3) Conservation Biology 463. 78 OSPAR Commission, OSPAR Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime Area, OSPAR 08.24/1, Annex 6, Reference number 2008-1, 2008 ; Deutsche Senatskommission für Ozeanographie der DFG and Konsortium Deutsche Meeresforschung (KDM), ‘Erklärung zu einer verantwortungsvollen Meeresforschung’ (Commitment to Responsible German Marine Research), reproduced in English in the International Council for the Exploration of the Sea (ICES), Report of the ICES NAFO Joint Working Group on Deep Water Ecology (WGDEC) (10-14 March 2008), ICES CM 2008/ACOM:45, Annex 13.4, 97, ; Ireland, Department of the Environment, Heritage and Local Government, Code of Practice of MSR at Irish Coral Reef Special Areas of Conservation (September 2006) ; InterRidge, InterRidge Statement of Commitment to Responsible Research Practices at Deep-Sea Hydrothermal Vents (2006) ; ISOM, ‘Code of Conduct for MSR Vessels’ (n 57). 79 OSPAR Code of Conduct (n 78). 76

Marine scientific research and the protection of the seas and oceans  397 down in Article 240(b) and (d), the latter of which explicitly allows for the regulation of MSR for the purposes of protecting the marine environment. At the same time, however, the LOSC also sets out duties regarding the promotion and facilitation of MSR, including to inform marine environmental law and management, and arguably these adjoining rules should be considered as part of the wider interpretative context in relation to restrictions on MSR. For example, one concern that is often raised in the literature is that restrictions on MSR may also produce ‘secondary’ or substitute risks,80 such that in ‘cutting off specific branches of scientific inquiry, society may not only foreclose potentially harmful or unethical advances, but could also be preventing discovery of very beneficial yet unanticipated knowledge.’81 Ultimately, the question of whether MSR ought to be limited in the circumstances comes down to a policy choice between potentially conflicting norms and objectives laid down in the LOSC. However, it should be noted that international law contains principles for navigating such conflict through well-trodden processes of reasoned justification. As such, it is argued here that legal norms and measures aimed at restricting or prohibiting the conduct of MSR ought to be justified in particular cases on the basis that they are necessary, reasonable and proportional to potential harms, and should arguably also take into account the potential benefits of such research in defining the scope of research limitations or prohibitions including those enacted for environmental protection purposes.82

6.

INTERNATIONAL COOPERATION IN MSR

Arguably, the greatest ambition of the Global Ocean Decade lies in its goal to catalyse new levels of international cooperation in MSR by contributing data, information, knowledge and increased capacity relevant to achieving more sustainable ocean governance. Even those States with the greatest MSR capacities are not able to provide a full and accurate picture of the functioning of, and threats to, the global ocean on their own. The importance of science cooperation is reflected in the legal framework for MSR in Part XIII of the LOSC, which establishes the general obligation on States and competent international organisations to promote international cooperation in MSR for peaceful purposes, and in accordance with the principles of respect for sovereignty and jurisdiction, and mutual benefit.83 Other provisions in the LOSC elaborate on the different dimensions of cooperation in MSR. The qualification in Article 242(1) that international cooperation on MSR ought to be carried out on the basis of ‘mutual benefit’ is frequently overlooked, but signals the importance of increased scientific knowledge relating to the marine environment to the shared

See, Hans-Heinrich Trute, ‘Democratising Science: Expertise and Participation in Administrative Decision-making’ in Helga Nowtny and others (eds), The Public Nature of Science Under Assault: Politics, Markets, Science and the Law (Springer 2005) 87. 81 Gary E Marchant and Lynda L Pope, ‘The Problems with Forbidding Science’ (2009) 15(3) Science and Engineering Ethics 375. 82 See further, Elmar Döhler and Carsten Nemitz, ‘Wissenschaft und Wissenschaftsfreiheit in internationalen Vereinbarungen’ in Helmut Wagner (ed), Rechtliche Rahmenbedingungen für Wissenschaft und Forschung: Forschungsfreiheit und Staatliche Regulierung, vol 1 (4th ed, Nomos 2000). 83 LOSC, Art. 242(1). 80

398  Research handbook on international marine environmental law interests of the international community as a whole.84 Here, the principle of mutual benefit is commonly associated with the idea of the ‘universality’85 and global public goods dimensions of science, underscoring the interests of all people in sharing in scientific advancement and its benefits.86 The full and efficient production, sharing and equitable use of scientific knowledge related to the marine environment and its various applications are integral to advancing international community interests as a whole, including the protection of the marine environment.87 Considerations of international equity also lie at the heart of the mutual benefit principle,88 and are linked to provisions in the LOSC on the transfer of scientific knowledge, the strengthening of research capabilities, education, and training of technical and scientific personnel, and the development and transfer of marine technology from developed to developing States.89 There are, of course, important concerns about the extent to which the vision in Part XIII for a truly global ocean science that involves and benefits all is being realised in practice. It is only recently that comprehensive efforts have been taken to assess and monitor the capacities of different States to conduct ocean research and development, such as through IOC-UNESCO’s global ocean science reports.90 This information is integral to tracking outcomes and to developing new models and strategies for responding to the needs of developing countries to expand their MSR capacities going forward. However, stronger and more specific commitments to overcoming barriers to achieving full participation in generating ‘the science we want’ are also necessary.91 The Ocean Decade Implementation Plan maps out some strategies and models by which to enhance cooperation with a view to specifically promoting diversity and equity, including gender, generational and geographic diversity in ocean science.92 The principle of mutual benefit has also shifted in emphasis ‘from an essentially “negative” conception of the obligation whereby, for instance, certain acts deemed harmful to [humankind] are prohibited, to one which is prescriptive, i.e., one which would oblige states to act in a certain way for the benefit of all’.93 Section 2 of Part XIII elaborates on the type of positive actions States Parties must take in order to fulfil the general obligation to cooperate on MSR under Article 242(1). First, States Parties must cooperate through the conclusion of new agreements ‘to integrate the efforts of scientists in studying the essence of phenomena and the processes occurring in

84 See also, Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, Preamble; Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies (opened for signature 27 January1967, entered into force 10 October 1967) 6 International Legal Materials 386, Preamble, Art. 1; UNGA, Universal Declaration of Human Rights, UNGA Res. 217 A(III), 10 December 1948, Art. 27(1); ICESCR, Art. 15(1) and (3). 85 Gerald Francis Graham, ‘The Freedom of Scientific Research in International Law: Outer Space, the Antarctic and the Oceans’ (DPhil thesis, Université de Genève 1980) 42. 86 Joseph E Stiglitz, ‘Knowledge as a Global Public Good’ in Inge Kaul, Isabelle Grunberg and Marc Stern (eds), Global Public Goods: International Cooperation in the 21st Century (OUP 1999). 87 Regarding the argument that the efficient production and equitable use of global knowledge require cooperative action, see ibid. 88 Virginia Commentary (n 29) 468, para. 242.2. 89 LOSC, Art. 244(2) and Part XIV. 90 IOC-UNESCO, Implementation Plan (n 15). 91 Ibid. 92 Ibid. 93 Graham (n 85) 44.

Marine scientific research and the protection of the seas and oceans  399 the marine environment and the interrelations between them.’94 This provision is somewhat unique in that it emphasises the role of law and legal mechanisms, rather than less formalised modes, in cementing science cooperation relating to the marine environment. A common means for the implementation of this provision is through the establishment of scientific and technical bodies in specialised environmental agreements, which provide regular and timely expert advice to the States Parties (typically via their main governing body or COP) about the implementation of the agreement including scientific and technical assessments and the effects of measures taken under the Convention, new and emerging environmental issues, and the provision of scientific advice.95 Second, States Parties have a positive duty to make information on proposed major programmes and their objectives available by publication and dissemination as well as knowledge resulting from MSR.96 This opens opportunities for other State and non-State actors to participate in the generation of new scientific knowledge, and thus has the potential to create efficiencies and synergies in the research process and thereby enhance knowledge production. The products and outcomes of MSR programmes should also be subsequently shared ‘through appropriate channels’.97 There is a significant need to overcome current obstacles to the full and effective collection, management and use of ocean data. As noted in a recent IOC-UNESCO report, the list of implementation challenges is far-reaching, and also raises equity concerns. These include the siloing of data, inability or unwillingness to share data, issues with data format, quality and fragmentation, a lack of capacity or access to technology to analyse and use data, and a lack of mechanisms to facilitate exchanges with data generators and managers.98 Again, the Implementation Plan for the Ocean Science Decade maps out some strategies to address these concerns, for example through the establishment of new data, information and knowledge platforms.99 Third, States Parties have a duty to promote international equity between developed and developing States through the transfer of knowledge from MSR and capacity building, such as through ‘programmes to provide education and training of their technical and scientific personnel’.100 Many of the LOSC provisions related to promoting greater equity between developed and developing States can be criticised for conceiving of the transfer of knowledge and expertise as a ‘unidirectional’ one-way flow.101 This simplistic understanding fails to produce an ocean knowledge that is complete and representative of different values and knowledge systems. More recent conceptions emphasise the importance of co-production – understood as an ‘iterative and collaborative processes involving diverse types of expertise, knowledge, and LOSC, Art. 243. See, eg, CBD COP, Decision VIII/10: Operations of the Convention, UN Doc UNEP/CBD/ COP/DEC/VIII/10, 15 June 2006, Annex III: Consolidated Modus Operandi of the Subsidiary Body on Scientific, Technical and Technological Advice. 96 LOSC, Art. 244(1). 97 Ibid. 98 IOC-UNESCO, Ocean Knowledge for a Sustainable Ocean Economy: Synergies between the Ocean Decade and the Outcomes of the Ocean Panel (UNESCO, The Ocean Decade Series 17, 2021) 20. 99 IOC-UNESCO, Implementation Plan (n 15) Outcome 6. 100 LOSC, Art. 244(2). 101 See, generally, Dirk J Roux and others, ‘Bridging the Science–Management Divide: Moving from Unidirectional Knowledge Transfer to Knowledge Interfacing and Sharing’ (2006) 11(1) Ecology and Society 4. 94 95

400  Research handbook on international marine environmental law actors to produce context-specific knowledge and pathways’102 – as a more effective means of bringing about ocean sustainability transitions. This more elaborated, inclusive, and diverse model of knowledge generation has gained some traction, most recently in the Ocean Decade Implementation Plan.103 The duty to cooperate in MSR in the LOSC is specifically tied to the objective of marine protection.104 Coastal and ocean ecosystems are highly interconnected and interdependent, and threats to the marine environment do not respect artificial geographical borders or the demarcation of different maritime zones. Consequently, international cooperation is necessary to identify, assess, monitor, and address many environmental threats and management issues, especially those with global, transboundary, or global commons implications, such as climate change, ocean acidification, marine pollution from all sources, alien species, overfishing, and loss of biodiversity.105 Numerous articles in the LOSC recognise the importance of knowledge generation and sharing for the purposes of marine environmental protection. For example, Article 200 of Part XII requires that States cooperate ‘for the purpose of promoting studies, undertaking programmes of scientific research, and encouraging the exchange of information and data acquired about pollution of the marine environment.’ It also stipulates that States Parties must ‘endeavour to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies’.106 Other specialised international agreements for the protection of the marine environment augment the general framework for MSR cooperation in the LOSC.107

7.

MARITIME ZONE-SPECIFIC PROVISIONS ON MSR

Following the general structure of the LOSC, Part XIII adopts a zonal approach to the regulation of MSR, where the rights of the coastal State tend to diminish moving seaward from the territorial sea to the high seas. In the territorial sea, coastal States by virtue of their sovereignty enjoy the exclusive right to regulate, authorise and conduct MSR,108 which may only be conducted with the express consent and subject to the conditions established by the coastal State, including any restrictive laws or measures imposed for protection of the marine environment. The carrying out of unauthorised research activities is considered prejudicial to the right of innocent passage in the territorial sea.109

Albert V Norström and others, ‘Principles for Knowledge Co-production in Sustainability Research’ (2020) 3 Nature Sustainability 182. 103 IOC-UNESCO, Implementation Plan (n 15). 104 LOSC, Art. 242(2). 105 See, Group of Experts of the Regular Process under the auspices of the United Nations General Assembly, ‘A Regular Process for Global Reporting and Assessment of the State of the Marine Environment, including Socioeconomic Aspects: The First Global Integrated Marine Assessment, World Ocean Assessment I’ (United Nations, Division of Ocean Affairs and the Law of the Sea (DOALOS) 2016) Summary. 106 See below, Section 10. 107 See, eg, OSPAR Convention, Art. 8. 108 LOSC, Art. 245. 109 LOSC, Art. 19. 102

Marine scientific research and the protection of the seas and oceans  401 In the EEZ, coastal States110 have the right to regulate, authorise and conduct MSR in their EEZ and on their continental shelf.111 Other States or competent international organisations must obtain the coastal State’s consent to conduct research in these areas.112 The coastal State’s right to grant its consent to MSR is not, however, absolute. In normal circumstances, the coastal State must agree to research projects to be carried out exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all humankind.113 However, it may, in its discretion, withhold consent in four specified situations enumerated in Art. 246(5) of the LOSC relating to circumstances in which coastal State rights and interests in the EEZ are affected. Arguably, ‘the most explicit legal basis’ for a coastal State to refuse its consent on environmental grounds is where the project involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment.114 Although this exception captures several potentially dangerous activities, the wording does not capture all environmental risks that may be associated with the conduct of MSR, such as pollution from sound and light emissions.115 Beyond the four listed exceptions, it is unclear whether a coastal State may object to a research project primarily on the basis of its rights and duties with respect to the protection and preservation of the marine environment under Part XII and its jurisdiction in the EEZ and on the continental shelf. Some commentators point out that the wording of Art. 246(5) offers some flexibility to allow coastal States to adopt a more liberal interpretation of their powers to deny consent.116 However, this runs the risk of jurisdictional creep of coastal State powers over MSR, and that valuable research does not take place with possible implications for marine environmental protection and management. On the high seas, the LOSC expressly recognises the freedom of scientific research as a high seas freedom,117 as well as the right of all States to conduct MSR in the water column beyond the limits of the EEZ.118 MSR carried out on the high seas must be conducted in conformity with the LOSC,119 including the provisions of Part XII relating to the protection and preser-

LOSC, Arts 246-255. LOSC, Art. 246(1). 112 LOSC, Art. 246(2). 113 LOSC, Art. 246(3). 114 Marta Chantal Ribeiro, ‘The “Rainbow”: The First National Marine Protected Area Proposed Under the High Seas’ (2010) 25(2) International Journal of Marine and Coastal Law 183, 204. 115 Hubert (n 54) 335. 116 Virginia Commentary (n 29) 518. 117 LOSC, Art. 87(1)(f). 118 LOSC, Art. 257. Regarding discrepancies in terminology, some scholars argue that freedom to conduct ‘scientific research’ in Art. 87(1)(f) is broader than the right to conduct ‘MSR’ in Art. 257. DOALOS Office of Legal Affairs, Law of the Sea: MSR: A Revised Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (United Nations Publication, Sales No. E.10V.12, 2010) (DOALOS Revised Guide) para. 56 suggests that the more extensive freedom regime on the high seas ‘also extends to activities such as hydrographic surveys’. However, this interpretation is cast into doubt by the several provisions in the LOSC referring to ‘research or survey activities’ as distinct objects. See also, Ashley Roach, ‘Defining Scientific Research: Marine Data Collection’ in Myron H Norquist and others (eds), Law, Science and Ocean Management (Martinus Nijhoff 2007). 119 According to LOSC, Art. 87(1)(f) the freedom of scientific research on the high seas is subject to Parts VI and XIII. Art. 257 states that the right to conduct MSR must be carried out ‘in conformity with this Convention’. 110 111

402  Research handbook on international marine environmental law vation of the marine environment.120 The ability of States Parties to exercise their freedom of scientific research on the high seas may be further constrained by other applicable rules of international law,121 such as those relating to the conduct of nuclear tests on the high seas,122 scientific whaling,123 research on other protected species,124 and, as noted in Section 5 above, marine geoengineering.125 In the Area, all States and competent international organisations also enjoy the right to conduct MSR126 exclusively for peaceful purposes, for the benefit of humankind as a whole, and in accordance with Parts XI and XIII of the LOSC.127 States Parties also have a duty to cooperate in MSR, by encouraging broad participation in international research programmes, in particular, for the benefit of developing States and technologically less developed States.128 They are also called upon to cooperate by effectively disseminating the results of research and analysis when available, through the International Seabed Authority (ISA) or other international channels when appropriate. The LOSC also recognises the specific rights and duties of the ISA regarding MSR concerning the Area and its resources. Article 143(2) of the LOSC tasks the ISA with promoting and encouraging the conduct of MSR in the Area, and coordinating and disseminating the results of such research and analysis when available. It may also carry out MSR concerning the Area and its resources itself, and enter into contracts for that purpose.129 The ISA’s 2019-2023 Strategic Plan includes the promotion of MSR,130 including the acquisition of the scientific knowledge necessary to ensure the effective protection of the marine environment in accordance with its environmental duties under Articles 145 and 194(5) of the LOSC.131 This is primarily to be achieved through the design and adoption of regional environmental management plans, which provide for the creation of Areas of Particular Environmental Interest, which are essentially no-mining areas, to be established on the basis of the best available scientific information.132 While the ISA has committed to ensuring the collaborative and transparent collection and sharing of environmental data with the goal of ensuring the availability of information to the general public,133 this has not yet been achieved.134

Virginia Commentary (n 29) 611, para. 257.6(a). LOSC, Art. 87(1). 122 See Gragl (n 45). 123 ICRW, Art. VIII. See also, Whaling in the Antarctic (n 33). 124 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures, Order of 27 August 1999) (1999) ITLOS Reports 280 (Southern Bluefin Tuna, Provisional Measures). 125 IMO, Resolution LP.4(8) (n 73). 126 LOSC, Art. 256. The ‘Area’ is defined in Art. 1(1)(1) of the LOSC as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. 127 LOSC, Art. 143(1). 128 LOSC, Art. 143(3)(a)-(b). 129 LOSC, Art. 143(2). 130 ISA, Decision of the Assembly of the International Seabed Authority relating to the implementation of the strategic plan for the Authority for the period 2019–2023, UN Doc ISBA/25/A/15, 24 July 2019, Strategic direction 4: Promote and encourage MSR in the Area, paras 18-21. 131 Ibid, Strategic direction 3, Protect the marine environment, paras 12-17. 132 Ibid. 133 Ibid, para 15. 134 For discussion, see, Jeff Ardron, Hannah Lily and Aline Jaeckel, ‘Public Participation in the Governance of Deep-Seabed Mining in the Area’, Chapter 16 in this volume. 120 121

Marine scientific research and the protection of the seas and oceans  403 The zonal approach to the regulation of MSR in the LOSC is not without problems. Extensive access to ocean areas is critical to developing a more complete picture of the marine environment and the impact of human activities on it. Increasingly, there is a need for predicting future changes to the functioning of the entire ocean system as a result of global phenomena such as ocean warming, sea level rise and ocean acidification. The Argo Floats Programme, an international ocean-observing programme carried out jointly between IOC-UNESCO and the World Meteorological Organisation (WMO) aims to address this need, through deployment of a global array of more than 3,000 free-drifting profiling floats to collect information about temperature and salinity in the upper water column, which is vital to understanding the role of the oceans in the global climate system and assessing the impacts of climate change on the marine environment.135 However, considerable controversy has surrounded the programme, with States sharply disagreeing over whether these activities fall within the ambit of Part XIII of the LOSC as a form of ‘MSR’ or form a separate category of information-gathering activities under the umbrella of ‘operational oceanography’.136 Although deployed on the high seas, the profiling floats can passively enter into marine areas under national jurisdiction. Some coastal States have argued that the information collected through the Argo programme could be directly relevant to understanding natural resources within their EEZs, and as a consequence that their prior consent is required in accordance with Article 246 of the LOSC.137 Others have argued that the profiling floats are not ‘MSR’ but instead ‘operational oceanography’, and thus constitute an exercise of the freedom of the high seas by the deploying State or organisation.138 In any event, the practicalities of obtaining prior consent for free floating floats has posed a major threat to the implementation of the programme. In 2008, the Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) adopted non-binding guidelines and a compromise agreement requiring prior notification, with a provision that coastal States have a right to restrict the release of data if it is directly relevant to exploration or exploitation of the living or non-living natural resources in their EEZ.139 This compromise solution has ‘serve[d] as a pragmatic basis for international cooperation within the Argo programme’, however it was never intended to be applied beyond that programme to the collection of oceanographic data in general.140 Uncertainties thus remain regarding the application of the zonal approach to MSR in the context of freely floating scientific infrastructure and equipment. The problem can also be examined in light of other duties in the LOSC and other environmental agreements, such as UNFCCC, which require that States promote and

Argo Programme, ‘What is Argo?’ . On this distinction, see, Florian H Th Wegelein, MSR: The Operation and Status of Research Vessels and Other Platforms in International Law (Martinus Nijhoff 2005) 20; Gragl (n 45) 403-405. See further, Roach (n 118). 137 LOSC, Arts 246, 248 and 249. 138 See further, Roach (n 118). 139 See IOC Reports of Governing and Major Subsidiary Bodies, Forty-first Session of the Executive Council, UN Doc IOC/EC-XLI/3, 29 July 2008, Annex II, Resolution EC-XLI.4: Guidelines for the implementation of Resolution XX-6 of the IOC Assembly regarding the deployment of Profiling floats in the High Seas within the framework of the Argo Programme. 140 Peter Ehlers, ‘The Governance of the Global Ocean Observing System (GOOS)’ in Holger P Hestermeyer and others (eds), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum vol. II (Brill 2012) 1429. 135 136

404  Research handbook on international marine environmental law facilitate scientific research and cooperate on scientific and technical matters to achieve the environmental objectives of those legal instruments.141 Moreover, as the example of the Argo floats demonstrates, MSR is increasingly conducted using the deployment of new forms of research infrastructure and equipment other than research vessels and ships.142 These include platforms or other structures such as oceanographic moorings and buoys,143 as well as remotely operated or autonomous underwater vehicles, underwater and wave gliders144 and flying drones.145 In some cases, devices may even be attached to migratory marine species to support marine conservation programmes and supplement oceanographic data.146 Scientific and technological developments such as these will likely lead to further developments in the legal framework for MSR, as discussed above.

8.

RESPONSIBILITY AND LIABILITY

Though the risk that MSR may cause damage to the marine environment is generally low, the possibility still exists. Article 263 of the LOSC addresses issues of responsibility and liability in relation to the conduct of MSR. Article 263(1) provides that States and competent international organisations are responsible for ensuring that MSR, whether undertaken by them or on their behalf, is conducted in accordance with the provisions of the LOSC. In line with the Seabed Dispute Chamber’s Advisory Opinion, this may be interpreted as a due diligence obligation, which also applies to MSR carried out by private entities within the jurisdiction and control of the relevant State.147 In this way, Article 263(1) establishes a mechanism by which the rules of Part XIII become effective against private (non-State) actors as well.148 Article 263(2) addresses responsibility and liability arising from unlawful interferences with the right of other States (or their nationals) and international organisations to conduct MSR. Such interferences are most likely to occur in situations where a coastal State attempts to ‘over-regulate’ research activities in its territorial sea, EEZ or on its continental shelf – an issue which, as noted above, can arise in respect of coastal State laws and measures enacted

Aurora Mateos and Montserrat Gorina-Ysern, ‘Climate Change and Guidelines for Argo Profiling Float Deployment on the High Seas’ (2010) 14(8) ASIL Insights . 142 Section 4 of Part XIII also lays out rules regarding the legal status and registration of scientific research installations or equipment, as well as conditions to safeguard safety and navigation. See further, Irini Papanicolopulu, ‘Articles 258 to 262’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017). 143 See Wegelein (n 136). 144 On the legal framework for gliders, see, Tobias Hofmann and Alexander Proelss, ‘The Operation of Gliders under the International Law of the Sea’ (2015) 46(3) Ocean Development & International Law 167. 145 IOC-UNESCO, ‘Revised Roadmap’ (n 13) 110-113. 146 See James Kraska, Guillermo Ortuno Crespo and David W Johnston, ‘Bio-Logging of Marine Migratory Species in the Law of the Sea’ (2015) 51 Marine Policy 394. 147 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (2011) ITLOS Reports 10, paras 107-116. 148 Ibid, para. 108. 141

Marine scientific research and the protection of the seas and oceans  405 to protect the marine environment.149 Article 263(2) affirms that States and competent international organisations shall be ‘responsible and liable’ in cases where the measures they take restrict MSR in a way that breaches another party’s right to conduct MSR under the LOSC, and that compensation shall be provided in such cases.150 Of particular salience to this chapter, Article 263(3) specifically addresses legal accountability for marine pollution caused by MSR activities, stipulating that States and competent international organisations shall be responsible and liable pursuant to Article 235 of the LOSC for damage caused by pollution to the marine environment as a result of MSR undertaken by them or on their behalf.151 While Article 235 refers to responsibility and liability in the context of the fulfilment of all international obligations concerning the protection and preservation of the marine environment in general, the responsibility and liability provided for under Article 263(3) is more narrowly confined to the context of damage caused by pollution from MSR. This focus is consistent with the particular emphasis of Part XII of the LOSC on marine pollution, however, it begs the question as to whether States might be liable and responsible for other forms of damage to the marine environment, such as to marine biodiversity, arising from their MSR activities.

9.

SETTLEMENT OF DISPUTES

MSR is increasingly central to States’ maritime interests, raising the potential for disagreements to arise concerning the interpretation or application of the provisions of Part XIII. Part XV of the LOSC on compulsory dispute settlement is generally applicable to MSR.152 The exception is for disputes relating to allegations by a researching State that the coastal State has not lawfully exercised its rights or discretion under Articles 246 and 253 concerning a proposed research project in its EEZ or on its continental shelf. These disputes are excluded from the compulsory settlement mechanisms, although they may be submitted to conciliation at the request of any party, subject to certain conditions.153 Though the MSR provisions in the LOSC have not yet been the central focus of an international dispute, issues concerning ocean science more generally have given rise to international disputes, as for example between Australia and New Zealand on the one hand, and Japan on the other, regarding the adequacy and conduct of scientific research in the marine living resource context, exemplified in the Southern Bluefin Tuna and Whaling in the Antarctic cases.154

149 Christian J Tams and James Devaney, ‘Article 263’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Beck Hart Nomos 2017) 632. 150 Art. 31(1) of the International Law Commission, Articles on State Responsibility, UN Doc A/ RES/56/83, 28 January 2002, Art. 31(1) states that ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’, and in Art. 34 that ‘[f]ull reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination …’. 151 LOSC, Art. 263(3). 152 See further, Klein and McCreath, Chapter 6 in this volume. 153 LOSC, Art. 297(2). 154 See, eg, Whaling in the Antarctic (n 33); Southern Bluefin Tuna, Provisional Measures (n 124). For details on the Whaling in the Antarctic case, see, Klein and McCreath, Chapter 6 in this volume.

406  Research handbook on international marine environmental law In addition, MSR aimed at the protection and preservation of the marine environment can become a casualty of other inter-State conflicts, such as contested maritime boundary claims or disputes over the status of certain maritime features.155 For example, in disputed areas of the South China Sea it was reported that States within the region were hesitant to initiate collaborative marine research programmes, despite the fact that such programmes are generally regarded as ‘non-sensitive cooperative activities to be promoted’156 and as necessary to conserve marine ecosystems and biodiversity.157 In legal terms, the LOSC is clear that scientific cooperation in disputed areas would not constitute a legal basis for any claim to any part of the marine environment or its resources.158 On the contrary, the promotion of international cooperation in MSR could in fact contribute to the peaceful settlement of disputes, serving as a ‘confidence-building measure that would bring players from different countries together to address common concerns and thus learn to communicate and work with one another’.159

10.

CONCLUSIONS AND QUESTIONS FOR FURTHER STUDY

The IOC’s Implementation Plan for the Ocean Science Decade reveals the massive multi-scale cooperative effort that will be required to support a ‘transformational, large-scale, adequately resourced, innovative campaign to mainstream ocean science’.160 This enterprise is to be focused on generating the data, information, knowledge and increased capacity relevant to achieving the United Nation’s 2030 Agenda for Sustainable Development and other parts of the global environmental agenda.161 The Ocean Science Decade is to be implemented within the legal framework of the LOSC, including Parts XIII and XII on MSR and protection and preservation of the marine environment respectively. Simply put, the LOSC sets out the basic terms for renewed cooperation on MSR over the coming years by defining the freedoms, rights, and obligations of States Parties in these areas. At the same time, this chapter has shown through several examples that the regimes for MSR and the protection of the marine environment laid down in the LOSC and other related agreements are not static in the face of new policy demands and challenges. The implementation of the Ocean Science Decade will almost certainly influence and further extend how these provisions are interpreted and applied, and thus presents a significant opportunity for the international community to modernise and augment the regime for MSR towards

155 Robin R Churchill and AV Lowe, The Law of the Sea (3rd ed, Manchester University Press 1999) 447-448 point out that MSR can also give rise to litigation in municipal courts. In the context of marine environmental protection, see, eg, Qikiqtani Inuit Association v. Canada (Minister of Natural Resources), 2010 NUCJ 12, a case in which a Canadian court granted a temporary injunction to prevent seismic testing by the German RV Polarstern on the grounds that it could potentially impact marine wildlife in the area. 156 Vu Hai Dang, Marine Protected Areas Network in the South China Sea: Charting a Course for Future Cooperation (Brill 2014) 248. 157 Edgardo D Gomez, ‘MSR in the South China Sea and Environmental Security’ (2001) 32(2) Ocean Development & International Law 205; Dang (n 156) 248. 158 LOSC, Art. 241. 159 Gomez (n 157). 160 IOC-UNESCO, Implementation Plan (n 15) 12. 161 Ibid.

Marine scientific research and the protection of the seas and oceans  407 a more environmentally sound and sustainable future. A few themes and areas of potential development are worth highlighting in this regard. First, the nature and practices of MSR are constantly changing. The Implementation Plan for the Ocean Science Decade seeks to accelerate these changes, for example, by promoting new technology development and enhancing access to technology to generate ocean data, information and knowledge.162 If successful, the implementation of this Plan will likely give rise to new issues concerning the interpretation of Part XIII of the LOSC, including with regard to the ongoing question of how MSR ought to be defined, and the content and extent of the rights, duties and limits on the conduct of MSR. Owing to its constitution-like status, the provisions of Part XIII of the LOSC are only likely to address these questions at a high level, and further elaboration of the regime should be anticipated, as occurred in the Argo Floats Programme, regulation of marine geoengineering under the London Convention/London Protocol, and elaboration of environmentally responsible standards for the conduct of MSR under the OSPAR Convention. Second, questions of equity in its various dimensions are increasingly at the forefront of the global agenda for ocean science and innovation.163 Notably, the Implementation Plan for the Ocean Science Decade places significant focus on the questions of who ought to be involved in the production of new ocean knowledge and innovation processes, and who ought to bear the risks and enjoy the benefits of such knowledge and processes. The LOSC, an international treaty primarily directed at those entities with international legal personality (ie States and international organisations) largely only deals with inter-State considerations of equity, for example, by imposing duties on developed States regarding knowledge and technology transfer and enhancing the research capacity of developing States. The Ocean Science Decade Implementation Plan indicates an institutional commitment to address barriers to the implementation of these LOSC provisions, which include fragmentation, a lack of coordination efforts, and insufficient investments by developed States.164 The strategic framework for capacity development as part of the Ocean Science Decade will also tackle issues of equity amongst specific groups. For example, it seeks to ‘identify and overcome barriers to gender, geographical and generational balance and mainstream accessibility to foster a full and effective participation by persons with disabilities’ and ‘to recognize, respect and engage local and indigenous knowledge holders as both beneficiaries and providers of capacity development’.165 These dimensions of equity are not explicitly addressed in the LOSC, and are structured more in line with international human rights law. This raises questions regarding the implications of human rights, especially the so-called ‘human right to science’ enshrined in key instruments such as Article 15 of the ICESCR, for the development of the legal regime for MSR in Part XIII of the LOSC going forward.166 Ibid, 24. For example, equitable considerations are a key driver for the creation of a new legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. See, eg, Morgera (n 28). 164 IOC-UNESCO, Implementation Plan (n 15) 29. 165 Ibid, 31. 166 On the interpretation of the human right to science, see CESCR, General Comment No. 25 (n 27). Regarding how this human right maps onto issues of the protection and preservation of the environment, see, Anna-Maria Hubert, ‘The Human Right to Science and Its Relationship to International Environmental Law’ (2020) 31(2) European Journal of International Law 625. 162 163

408  Research handbook on international marine environmental law Finally, the institutional aspects of the MSR regime are often at the margins of international law scholarship on Part XIII of the LOSC despite the central role that UN entities, programmes and conventions play in implementing the regime, especially regarding obligations concerning international cooperation. Nonetheless, issues of fragmentation and a lack of coherence within the UN system have been an ongoing problem in addressing ocean and coastal issues, as evident in the establishment of UN-Oceans.167 The Ocean Science Decade Implementation Plan represents an attempt to mainstream and better integrate intergovernmental processes on MSR, ‘based on the understanding that ocean science represents a cross-cutting theme that underpins the mandates of several UN entities’.168 However, the list of international organisations with an interest in or mandate for promoting the implementation of the legal regime for MSR in the LOSC is extensive, and, as a result, the success of the Ocean Science Decade will largely depend on the effectiveness of the rather complex governance and coordination structures for the Decade.169 The Implementation Plan also recognises that cooperation and coordination on MSR operates at multiple scales, not just at the intergovernmental level, and seeks to enhance cooperation on ocean science between national, subnational and local governments, and a wide range of non-State stakeholders including research institutes, UN entities, intergovernmental organisations, business and industry, philanthropic and corporate foundations, NGOs, educators, community groups and individuals. Implicit here is the recognition that in the contemporary world, a growing portion of MSR is carried out by non-State actors, and specifically private commercial entities. A key issue in this regard is how to reconcile private commercial research interests with conceptions of MSR as a (global) public good embodied in certain provisions of the LOSC regime for MSR. Private scientific research in the oceans context has raised concerns, for example, about transparency and access to information, conflicts of interest, and how the international and national intellectual property regimes impact the ability to participate and enjoy the benefits of such research. The Ocean Science Decade Implementation Plan glosses over these issues, despite the fact that they have cropped up in relation to BBNJ, bioprospecting, marine geoengineering and the regulation of deep seabed mining, to name a few. Further systematic examination of this topic is therefore warranted.

167 UNGA, Resolution Oceans and the law of the sea, UN Doc A/RES/68/70, 27 February 2014, Annex. 168 IOC-UNESCO, Implementation Plan (n 15) 41. 169 Ibid, 39-44.

18. New technology and the protection of the marine environment Hilde J Woker, Rozemarijn J Roland Holst and Harriet Harden-Davies

1. INTRODUCTION Historically, ‘science and technology have been among the major drivers of the law of the sea’.1 It was the development of an accurate chronometer that made it possible to make accurate ocean charts, enabling States to claim newly explored areas and exploit ocean resources.2 In the second half of the 20th century, developments in science and technology opened up the oceans to a ‘mode and rate of exploitation hitherto undreamed of’.3 Thus, some of the main issues facing the third UN Conference on the Law of the Sea (UNCLOS III) were ‘the impact of the revolutionary developments in science and technology, and the influence of these forces in international law’.4 International law is not only faced with the challenge of regulating the past and present development and deployment of technologies, ‘but also the uncertain futures these technologies pose’.5 This is certainly true today. Advances in technology impact the international legal framework in many ways and in many fields of international law. In this chapter, we focus on the relationship between new technology and the protection of the marine environment. What do we mean by new technology? The contemporary literature on the topic either refers to technology as one abstract concept, or alternatively uses single case studies through which to analyse the relationship.6 In contrast, the purpose of the current contribution is to demonstrate

Jin-Hyun Paik, ‘Disputes Involving Scientific and Technical Matters and the International Tribunal for the Law of the Sea’ in Tomas Heidar (ed), New Knowledge and Changing Circumstances in the Law of the Sea (Brill Nijhoff 2020) 15. 2 Peter J Cook and Chris Carleton, ‘Introduction’, in Peter J Cook and Chris Carleton (eds), Continental Shelf Limits: The Scientific and Legal Interface (OUP 2000) 3. 3 Jens Evensen, ‘The Effect of the Law of the Sea Conference upon the Process of the Formation of International Law: Rapprochement between Competing Points of View’ in Robert B Krueger and Stefan A Riesenfeld (eds), The Developing Order of the Oceans (Proceedings of the 18th Annual Conference of the Law of the Sea Institute) (Law of the Sea Institute, University of Hawaii 1985) 24. 4 Ibid, 25–26. 5 Rosemary Rayfuse, ‘Public International Law and the Regulation of Emerging Technologies’ in Roger Brownsword, Eloise Scotford and Karen Yeung (eds), The Oxford Handbook of Law, Regulation and Technology (OUP 2017) 501. 6 See, eg, Steinar Andresen and Jon B Skjærseth, ‘Science and Technology: From Agenda Setting to Implementation’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (2008); Rayfuse (n 5); Harry N Scheiber, James Kraska and Moon-Sang Kwon (eds), Science, Technology, and New Challenges to Ocean Law (Brill Nijhoff 2015); Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill Nijhoff 2010). 1

409

410  Research handbook on international marine environmental law how the relationship between new technology and international law is multifaceted and gives rise to a multitude of complex issues depending on how the technology is used, by whom, where, and for what purpose. Rather than only focusing on one particular type or application of new technology, or technology as an abstract concept, this chapter seeks to map various kinds of new technologies and their relationship to (the protection of) the marine environment. It will do so by means of four different (partly overlapping) categories that can be distinguished to classify the relationship between new technology, the protection of the marine environment, and the law: (1) new technologies for marine resource exploitation; (2) new technologies intended to mitigate environmental harm; (3) new technologies that enhance scientific knowledge; (4) new technologies for monitoring and enforcement. The following sections introduce and discuss these four categories in turn. In Section 6, we identify three cross-cutting themes that characterise the multifaceted triangular relationship between technology, the protection of the marine environment and law. Section 7 offers some concluding remarks.

2.

NEW TECHNOLOGIES FOR MARINE RESOURCE EXPLOITATION

Technological developments play a key role in advances in marine resource exploitation. They can enhance the capacity of extractive industries, potentially to the detriment of more sustainable harvesting practices as is the case with supertrawler factory fishing for example, or provide advanced harvesting methods like electric pulse trawling, which – while the environmental risks and benefits are scientifically still debated7 – has been banned by the European Union as of 2021.8 New technologies may also open up new uses and applications of particular marine resources, of which the harvesting of marine genetic resources (MGR) by the bioprospecting industry is a notable example (see further on MGR, Section 4 below),9 or possibilities to exploit altogether new marine resources, such as the marine renewables discussed below. The relationship between technological developments in the realm of marine resource exploitation and the marine environment is a complex one, however, and requires a balance of interests to be struck. An illustrative example can be found in technological advances in offshore renewable energy production, which encompasses a range of different technologies at various stages of development: from offshore wind farms, to ocean energy technologies such as wave, tidal,

This method startles bottom dwelling fish with electric pulses to make them leap into the net. International Council for the Exploration of the Sea, ICES Special Request Advice Greater North Sea Ecoregion: Request from the Netherlands Regarding the Impacts of Pulse Trawling on the Ecosystem and Environment from the Sole Fishery in the North Sea, ICES Advice 2020–sr.2020.03, 20 May 2020 . 8 Regulation (EU) 2019/1241 of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures [2019] OJ L198. 9 Joanna Mossop, ‘Marine Bioprospecting’ in Donald Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015). 7

New technology and the protection of the marine environment  411 current, salinity gradient or ocean thermal energy conversion.10 Depending on the exact technology, scale and location, these structures may either be floating or anchored to the seabed, and require the construction of, or connection to existing offshore grids.11 Offshore renewables are an ‘environmentally friendly’ resource in the sense that they play an increasingly vital role in the energy transition and thereby in reaching global greenhouse gas (GHG) emission reduction targets. At the same time, operating these technologies in the marine environment has certain environmental impacts, including noise pollution, electromagnetic fields, habitat disturbance and potential effects on populations of marine mammals and birds (in case of windfarms).12 Positive (local) impacts on biodiversity have also been recorded, however, for example when the underwater infrastructure of a wind farm functions as an artificial reef, or due to fishing activities being excluded from the area.13 In terms of applicable law, there is no single international instrument that regulates the environmental impacts of offshore renewable energy production. The United Nations Convention on the Law of the Sea (LOSC)14 sets out the jurisdictional framework, granting coastal States rights to exploit ocean energy sources within their territorial sea, exclusive economic zone (EEZ) and continental shelf,15 subject to a general obligation of due diligence to prevent, reduce and control pollution of the marine environment resulting from such activities.16 Yet, to give normative content to this general obligation, including its procedural aspects such as environmental impact assessment (EIA) and continuous monitoring, the LOSC is supplemented by a normative ‘jigsaw puzzle’ of international and regional instruments, non-binding (industry) standards, recommendations, and best practices of corporate social responsibility.17 While often criticised for its vagueness, lack of uniformity, and reliance on non-binding standards, this ‘jigsaw’ is not devoid of normative relevance.18 The majority of regional environmental agreements, for example, prescribe the use of ‘best available techniques’ (BAT) or ‘best environmental practices’ (BEP),19 thereby enabling the general standard of due diligence to adapt 10 See for an overview IRENA, ‘Innovation Outlook: Ocean Energy Technologies’ (December 2020) . 11 Ibid. 12 Jens Lüdeke, ‘Exploitation of Offshore Wind Energy’ in Markus Salomon and Till Markus (eds), Handbook on Marine Environment Protection : Science, Impacts and Sustainable Management (Springer 2018); Dan Wilhelmsson and others, ‘Greening Blue Energy: Identifying and Managing the Biodiversity Risks and Opportunities of Offshore Renewable Energy’ (IUCN 2010) . 13 Lüdeke (n 12). 14 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 15 Ibid, Arts 2, 56, 60 and 77. 16 Ibid, Arts 192 and 194. 17 For an overview and discussion see, eg, Nikolaos Giannopoulos, ‘Global Environmental Regulation of Offshore Energy Production: Searching for Legal Standards in Ocean Governance’ (2019) 28 Review of European, Comparative and International Environmental Law 289; Angelica Bonfanti and Francesca R Jacur, ‘Energy from the Sea and the Protection of the Marine Environment: Treaty-Based Regimes and Ocean Corporate Social Responsibility’ (2014) 29 International Journal of Marine and Coastal Law 622. 18 See extensively, Giannopoulos (n 17). 19 See, eg, 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention) Appendix I, paras 2 and 6.

412  Research handbook on international marine environmental law as technology evolves over time.20 At the same time, private and other non-State actors, such as the International Electrotechnical Commission, contribute to the development of technical standards for different marine renewable energy technologies which, although not binding on States, may nevertheless lay a basis for adapting or developing (future) regulations in light of new developments.21 A very different, yet rapidly growing offshore sector that is driven by technological advances is mariculture: the cultivation of marine species for human consumption and use. This sector makes an important contribution to global seafood supply and promises possibilities for seafood production to meet growing demands while ‘wild’ stocks diminish under the pressures of overfishing.22 Yet, open-net fish farming at a large scale, in particular, has serious environmental impacts that include the spread of disease and parasites to wild stocks, spreading of chemotherapeutants such as antibiotics to non-target organisms, negative interactions with wild predators, genetic modification and mixing with wild species, and organic enrichment and habitat modification in the area of operation.23 Escaped farmed salmon and the spread of sea lice and other parasites are the two main causes of Norwegian wild salmon populations to be halved in recent years.24 Fish farming systems are primarily deployed in coastal waters and thus licensed and regulated at the discretion of the coastal State, which is also responsible for setting environmental and technical standards. In 2021, Argentina became the first country to ban salmon farming in the coastal waters of its southernmost province altogether due to the environmental impacts,25 whereas in Scotland, for example, the industry is still expanding despite serious concerns.26 In addition to the general obligation to protect the marine environment and the obligation to manage interactions with other uses of the (territorial) sea, the LOSC contains no obligations on the coastal State that are directly applicable to mariculture. The general obligation of due diligence is supported by general obligations under other environmental agreements, notably the Convention on Biological Diversity (CBD),27 which requires States to protect (marine) biodiversity, including through the prevention and control of alien species that threaten ecosystems, habitats or other species.28 There is currently no dedicated international regulation of technical or environmental standards for mariculture, Giannopoulos (n 17) 301. Seline Trevisanut, ‘Is There Something Wrong with the Increasing Role of Private Actors? The Case of the Offshore Energy Sector’ in Cedric Ryngaert and others (eds), What's Wrong with International Law? (Brill Nijhoff 2015). 22 Michael J Phillips, ‘Mariculture Overview’ in John H Steele (ed), Encyclopedia of Ocean Sciences (2nd ed, Academic Press 2009). 23 Thomas A Wilding and others, ‘Mariculture’ in Markus Salomon and Till Markus (eds), Handbook on Marine Environment Protection: Science, Impacts and Sustainable Management (Springer 2018). 24 Norwegian Scientific Advisory Committee for Atlantic Salmon, ‘Status of Wild Atlantic Salmon in Norway 2020’ (Vitenskapelig Rad for Lakseforvaltning 2020) . 25 Harry Cockburn, ‘Argentina Becomes First Country to Ban Open-Net Salmon Farming Due to Impact on Environment’ The Independent (8 July 2021) . 26 Martin Williams, ‘Scotland’s Fish Farms Expansion Alarm: Concern over Premature Deaths and Sea Lice Risk’ The Herald (17 January 2021) . 27 Convention on Biological Diversity (adopted 5 June 1992, entry into force 29 December 1993) 1760 UNTS 79 (CBD). 28 CBD, Art. 8(h). 20 21

New technology and the protection of the marine environment  413 only industry practices and certification standards for farms,29 and some non-binding international and regional standards and guidelines applicable to the development of mariculture.30 The authorisation and use of new technologies in the context of offshore renewable energy production and mariculture have in common that – for now – they mainly take place in areas within national jurisdiction, particularly in coastal waters. As a result of the nature of these activities and their close connection to the traditional exploitation rights that coastal States enjoy, a considerable measure of discretion remains in how to weigh and regulate the environmental impacts of these activities. The general obligation of due diligence is an obligation of conduct and not of result, which relies on external norms and standards to provide it with normative content, and the example of mariculture illustrates that these may be sparse. Given the specialist nature of the technologies, the industries that possess the relevant expertise furthermore have a key role to play in (co-) developing their own standards and practices, which may be(come) widely accepted by States when they incorporate them into their contracts and licensing practice.31

3.

NEW TECHNOLOGIES INTENDED TO MITIGATE ENVIRONMENTAL HARM

While technological developments are often seen as part of the problem in many persistent pressures on the marine environment, technology also has a role to play as a potential part of the ‘solution’. In the most conventional sense, the use of certain technologies may be directly or indirectly prescribed by law to mitigate the environmental impacts of ongoing activities. Examples can be found in the evolving international technical standards for commercial shipping adopted by the International Maritime Organization (IMO): from double hulls to reduce the risk of oil spills from tanker accidents;32 to the fitting of scrubbers as a means to comply with the IMO’s 2020 global fuel sulphur oxide emission cap;33 or requirements for ballast water management systems to reduce the risk of pathogens and invasive species.34 29 Eg, by Aquaculture Stewardship Council, see . 30 Eg, FAO, ‘Code of Conduct for Responsible Fisheries’ (31 October 1995) , Art. 9; Council Communication COM (2021)236 of 12 May 2021, Strategic Guidelines for a more sustainable and competitive EU aquaculture for the period 2021 to 2030 [2021]. 31 This process of standard-setting may be contrasted with, for example, the context of deep seabed mining, where the ISA is the international organisation with a dedicated regulatory mandate to adopt regulations before activities take place, see Michael W Lodge, ‘Protecting the Marine Environment of the Deep Seabed’, Chapter 13 in this volume and Jeff Ardron, Hannah Lily and Aline Jaeckel, ‘Public Participation in the Governance of Deep-Seabed Mining in the Area’, Chapter 16 in this volume. 32 International Convention for the Prevention of Pollution from Ships (as Modified by the Protocol of 1978 Relating Thereto) (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 184 (MARPOL) Annex I as amended. 33 Ibid. 34 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) IMO Doc BWM/CONF/36. Similarly, IMO, Guidelines for the Control and Management of Ships’ Biofouling to minimize the transfer of invasive Aquatic Species, IMO Doc Res MEPC.207(62), 15 July 2011. For an extensive discussion, see, eg Alexander Proelss and Valentin J Schatz, Regulating Vessel Discharges on the International and EU Level: The Examples of Scrubber Washwater, Sewage and Ballast Water (Brill 2021); Nishatabbas

414  Research handbook on international marine environmental law In addition to the use of technology to mitigate impacts from ongoing activities at the source, technological interventions are also being explored as a means to ‘fix’ marine environmental damage that has already occurred.35 The remainder of this section will focus on this novel and potentially more controversial application of new technology, namely: technological interventions for environmental restoration purposes. The term ‘restoration’ is generally used to describe positive measures that aim to improve the degraded condition of the environment affected by past activities, and can thus be distinguished from ‘remediation’ or ‘re-instalment’ action to repair damage for which there is legal liability.36 While restoration is a relatively novel concept in the marine environment,37 a variety of restoration activities are already taking place, primarily on a local scale within territorial seas, such as revegetating seagrass meadows or coral farming to re-plant and restore natural reefs. The success of such restoration projects relies on continuous advances in a range of different technologies: from genetic sequencing to camera and image processing technology that enables the creation of photomosaics.38 These digital photomosaics can be used to monitor growth, health and changes in several thousand square metres of reef, reducing the number of human-hours needed on site and offering the potential to collect previously unattainable underwater data.39 The application of these technologies thereby simultaneously serves to enhance scientific knowledge, a function to which we will return in more detail in Section 4 below. Legally speaking, the application of technology for restoration purposes becomes more complicated when the technology itself may have impacts on the marine environment in addition to or other than the ‘target risk’ it is designed to tackle. A further layer of legal complexity is added when the deployment of the technology or its impacts span across multiple jurisdictions. For example, in the Baltic Sea, engineering measures are being investigated to combat the serious threat posed by eutrophication and oxygen depletion, due to which large parts of the seabed have become dead zones.40 Proposed technological ‘solutions’ include dredging phosphorus-rich sediments, or chemically treating these sediments, but these interventions are controversial. There are concerns not only about the environmental risks involved in the new Rehmatulla and others ‘The Implementation of Technical Energy Efficiency and CO2 Emission Reduction Measures in Shipping’ (2017) 139 Ocean Engineering 187. 35 Another context in which technological interventions are explored as a potential ‘quick fix’ or ‘bridging technology’ is geo-engineering, see Karen N Scott, ‘From Ocean Dumping to Marine Geoengineering: The Evolution of the London Regime’, Chapter 11 in this volume. 36 This distinction is, for example, made under Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143. See also Ronan Long, ‘Restoring Marine Environmental Damage: Can the “Costa Rica v Nicaragua” Compensation Case Influence the BBNJ Negotiations?’ (2019) 28 Review of European, Comparative and International Environmental Law 244, 252. 37 See more extensively Rozemarijn Roland Holst, ‘Restoration Activities in the Marine Environment: Balancing Diverging Perceptions of “Risk”’ in Alla Pozdnakova and Froukje M Platjouw (eds), The Environmental Rule of Law for Oceans: Designing Legal Solutions (CUP 2022). 38 A high-resolution image that is digitally created out of multiple individual and overlapping images, see eg Coral Restoration Foundation . 39 Alexander M Neufeld and Garrett Fundakowski, ‘White Paper: Coral Restoration FoundationTM Photomosaic Manual’ (9 November 2020) . 40 This is caused by excessive nutrient runoff from land into this semi-enclosed sea. See, extensively, Henrik Ringbom,and others, Combatting Eutrophication in the Baltic Sea: Legal Aspects of Sea-Based Engineering Measures (Brill 2019).

New technology and the protection of the marine environment  415 technologies themselves, including sediment turbidity or harmful chemical reactions, but also about the implications of technological interventions for the overall governance approach to eutrophication in the region.41 The Baltic Sea is one of the most densely regulated seas on the planet, yet the absence of a dedicated legal framework to govern the proposed technological interventions and the resultant questions of legal qualification under the different layers of law, make it a very complex activity from a regulatory point of view.42 An altogether different set of questions in terms of applicable law comes to the fore when technological interventions for restoration purposes take place entirely in areas beyond national jurisdiction. Interestingly, private actors appear to be leading the way here, an example of which is The Ocean Cleanup (TOC). This Dutch private entity has taken to the high seas on a mission to develop a technology that can systematically clean up plastic pollution. System 001 consisted of a 600-metre-long U-shaped passively floating boom with a 3-metre underwater curtain to retain plastics within the system.43 The latest iteration of the system, 002, uses a similar contraption, but with a closed retention net and the system is actively towed by two vessels.44 Similar to the sea-based engineering measures in the Baltic, operating TOC’s envisaged fleet of cleanup systems may pose potential risks to the marine environment that are different from the target risk (plastic pollution) it seeks to address. Experts and indeed TOC’s latest EIA have flagged potentially high risks of bycatch and impacts of the cleanup on a fragile and understudied floating sea-surface ecosystem called ‘neuston’ that coexists with the plastics in the area of operation and that plays an important role in the wider ecosystem.45 Given the pioneering nature of this activity, there is no dedicated international regulation in place on the operation of plastic catching devices on the high seas. The legal classification of the cleanup system is not entirely clear, it is not currently listed as a ‘vessel’ on any flag registry, but this is not directly problematic because as an ‘installation’ it falls under the (non-exhaustive) freedoms of the high seas.46 Because TOC is a legal entity incorporated under Dutch law, the Dutch Government has an obligation of due diligence under the LOSC and general international law to ensure that activities under its jurisdiction and control do Ibid, 3-4. Most Baltic countries strongly emphasise the potential of (enhanced) land-based measures. Only Sweden and Finland are openly positive towards exploring sea-based measures further. 42 Applicable laws include national laws, regional rules under the Convention on the Protection of the Marine Environment of the Baltic Sea Area (opened for signature 9 April 1992, entered into force 17 January 2000) 2099 UNTS 195 (Helsinki Convention) and EU law, as well as international law under the LOSC, the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter (opened for signature 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Convention), the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (opened for signature 7 November 1996, entered into force 24 March 2006) 36 ILM 1 (London Protocol), and the CBD. For an extensive and comprehensive legal analysis of all these aspects, see Ringbom and others (n 40). 43 See The Ocean Cleanup . 44 Ibid. 45 Rebecca R Helm, ‘How Plastic Cleanup Threatens the Ocean’s Living Islands’ The Atlantic (22 January 2019) . CSA Ocean Sciences, ‘The Ocean Cleanup: Final Environmental Impact Assessment’ (12 July 2021) . 46 LOSC, Art. 87(1)(d). For a detailed discussion, see Rozemarijn Roland Holst, ‘The 2018 Agreement between The Ocean Cleanup and the Netherlands’ (2019) 34 International Journal of Marine and Coastal Law 351. 41

416  Research handbook on international marine environmental law not cause harm to other States or to the marine environment.47 In order to ensure that TOC’s activities are at least conducted in accordance with general international law on maritime safety, the protection of the marine environment, and other legitimate uses of the high seas, the Dutch government entered into an agreement with TOC on 8 June 2018 (hereafter ‘the Agreement’) that translates these general obligations of the Netherlands under the LOSC into equally generally phrased obligations on TOC that reiterate the precautionary approach.48 Yet, general obligations of due diligence and precaution do not inform precisely what standard of care is required from the Netherlands, nor how potential benefits and risks of the cleanup are to be weighed. This is where extra-legal knowledge about a technology, its risks and possible alternatives is required to give content to legal standards and obligations. If neuston, for example, can be considered a ‘rare and fragile ecosystem’, or even the habitat of ‘depleted, threatened or endangered species’ this classification would raise the standard of care and precautionary measures required in accordance with the LOSC,49 but also, for example, the CBD,50 and potentially a future Agreement on Biodiversity Beyond National Jurisdiction (BBNJ Agreement).51 Tools of environmental law, such as BAT, BEP, and ‘best available science’ that are commonly used to give content to general obligations of due diligence and precaution are of little help when there is no practice or science to compare a completely novel technological intervention with in the first place. What the technology-driven ‘solutions’ to environmental problems discussed in this section have in common is that the technological intervention aimed at reducing the target environmental risk (potentially) poses other risks. The regulator is thus confronted with a ‘risk/risk trade-off’,52 and striking this balance is particularly difficult in the face of uncertainty as to both the environmental risks and benefits of the technology.

4.

NEW TECHNOLOGIES THAT ENHANCE SCIENTIFIC KNOWLEDGE

Protection and preservation of the marine environment is inextricably linked to and dependent upon scientific knowledge. Only if we have knowledge of the state of the marine environment, and of the impacts of human activities on the marine environment as well as the factors influencing how humans use the marine environment, can we adequately protect and preserve LOSC, Art. 194(2). In the Matter of the South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19, para. 944 (South China Sea Award). 48 Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas (The Hague, 8 June 2018) Staatscourant 2018 nr. 31907, 6 July 2018, reproduced in Roland Holst (n 46). 49 See LOSC, Art. 194(5). 50 See also South China Sea Award, paras 945 and 956. 51 The future BBNJ Agreement is likely to contain more specific obligations on environmental impact assessment vis-à-vis biodiversity beyond national jurisdiction, see, eg, UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/ CONF.232/2020/3, 18 November 2019, Part IV. 52 Floor M Fleurke, ‘Catastrophic Climate Change, Precaution, and the Risk/Risk Dilemma’ in Monika Ambrus, Rosemary Rayfuse and Wouter Werner (eds), Risk and the Regulation of Uncertainty in International Law (OUP 2017). 47

New technology and the protection of the marine environment  417 the marine environment.53 In addition to advances in marine resource exploitation and the mitigation of environmental harm, technological developments have considerably advanced the ways in which humans obtain and use scientific knowledge.54 Some technological advances within this third category help or improve manual labour – these technologies simply do better what we as human beings can already do ourselves. An example in this regard is artificial intelligence helping to process research results. In addition to the example of photomosaics in coral reef monitoring and restoration described above, another example is a recent research project led by the Danish meteorological office that has used artificial intelligence to help meteorologists in their task to process satellite imagery and draw up ice charts.55 Artificial intelligence has not only shortened the time it takes to create an ice chart to 15 minutes, but the charts also have a higher resolution than charts produced by human hands alone.56 Other technological advances, however, change the type of data we obtain, the ways in which we obtain scientific data, or how we use scientific data. For these technologies, more complicated legal questions arise that are further elaborated below, namely in relation to equity issues, the balancing of environmental risk against scientific gain as well as the adequacy of the current legal regime to regulate these new technologies. Advances in technology within the field of marine scientific research (MSR) have witnessed the use of new technologies changing the ways in which we obtain scientific data. Two examples are discussed here: the deployment of (semi-)autonomous research equipment and citizen science projects. What these examples have in common is that they illustrate the growing number of ways of collecting scientific data, and the increasing number and variety of actors who could play a role in acquiring scientific knowledge. Part XIII of the LOSC sets out the legal framework for MSR. Negotiated in the 1970s, the question remains whether Part XIII is sufficient to regulate the use of these new research technologies or whether additional regulations or guidelines are needed. The use of floats and gliders and other (semi-)autonomous devices represents a novel way to collect data throughout a large geographical area without the need for ships or a research crew on location. The use of (semi-)autonomous research equipment makes it possible to conduct research in the oceans and on the seabed with fewer costs involved, fewer safety hazards, and they are often more environmentally friendly than ships (although they may need to be deployed from ships). This equipment can take the form of floats and gliders that either trav-

The Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (IOC-UNESCO) adopts a broad definition of ocean science: ‘it encompasses natural and social science disciplines, local and indigenous knowledge; it includes the science-policy and science-innovation interfaces, as well as technology and infrastructure.’ IOC-UNESCO, ‘The United Nations Decade of Ocean Science for Sustainable Development (2021-2030) Implementation Plan’, IOC/2021/ODS/20, IOC Ocean Decade Series 20 (2021). 54 Anna-Maria Hubert, ‘Marine Scientific Research and the Protection of the Seas and Oceans’, Chapter 17 in this volume. Of course, new technology does not automatically lead to improvements for people or the planet unless social, economic and other conditions are conducive thereto. 55 Kevin McGwin, ‘How Artificial Intelligence Could Help Get Better Ice Charts to Mariners Faster’ Arctic Today (27 July 2021) . 56 Ibid. 53

418  Research handbook on international marine environmental law erse across the surface of the oceans57 or may change their depth throughout deployment;58 of autonomous vehicles that span across the entire water column; of underwater robots that move along the seabed; or of ‘soft’ robots that can travel down to the deepest point in the ocean.59 For legal purposes, the ‘problem’ of this type of technology is that it is often hard to predict the precise course the device will travel. Many of these devices cross jurisdictional boundaries and/or follow weather or ice patterns, making it hard to provide accurate information when applying for consent pursuant to Part XIII of the LOSC. Other legal questions that arise from this technology are the legal status these devices enjoy, how they can be protected, the corresponding legal obligations and how to balance obligations of due diligence and due regard in the deployment of these devices.60 The Advisory Body of Experts on the Law of the Sea of the Intergovernmental Oceanographic Commission (IOC/ABE-LOS) issued Draft Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the Deployment of Floats in the High Seas within the Framework of the ARGO Program in 2008 in an attempt to crystallise the legal framework.61 However, these Guidelines have faced a lot of opposition due to the provision of new notification and information duties they impose, and thus the debate about the legal regime applicable to such (semi-) autonomous research devices has yet to be resolved.62 A second example in this regard is citizen science, through which members of the general public collect and/or analyse data in collaboration with professional scientists.63 Ocean-focused initiatives range from collecting marine mammal sightings by members of the public, to cooperation with diving associations to report on ghost fishing gear, and to getting the general public involved in the identification of certain flora and fauna species in photographs.64 One specific example of citizen science is crowd-sourced bathymetry (CSB). CSB refers to the sharing of depth measurements from navigation instruments by private entities while out at sea or obtained during surveys.65 The International Hydrographic Organization

See eg ‘Saildrone: Any Sensor. Anytime. Anywhere’ ; Jørgen Berge and others, ‘Ice-Tethered Observational Platforms in the Arctic Ocean Pack Ice’ (2016) 49 IFAC-PapersOnLine 494; Hilde Woker and others, ‘The Law of the Sea and Current Practices of Marine Scientific Research in the Arctic’ (2020) 115 Marine Policy 103850. 58 Katharina Bork and others, ‘The Legal Regulation of Floats and Gliders—In Quest of a New Regime?’ (2008) 39 Ocean Development & International Law 298, 299; ‘Argo’ (Argo) . 59 Guorui Li and others, ‘Self-Powered Soft Robot in the Mariana Trench’ (2021) 591 Nature 66. 60 For further discussion on these questions, see Bork and others (n 58); Tobias Hofmann and Alexander Proelss, ‘The Operation of Gliders Under the International Law of the Sea’ (2015) 46 Ocean Development & International Law 167; Woker and others (n 57). 61 IOC/ABE-LOS, Draft Guidelines for the Implementation of Resolution XX-6 of the IOC Assembly regarding the Deployment of Floats in the High Seas within the Framework of the ARGO Program (2008), Res EC-XLI.4, 5 June 2018. 62 Tara Davenport, ‘Submarine Communications Cables and Science: A New Frontier in Ocean Governance?’ in Harry N Scheiber, James Kraska and Moon-Sang Kwon (eds), Science, Technology, and New Challenges to Ocean Law (Brill Nijhoff 2015) 236. 63 Carlos Garcia-Soto and others, ‘Advancing Citizen Science for Coastal and Ocean Research’ (2017) Position Paper 23 of the European Marine Board, 9 . 64 For an overview of citizen science initiatives in Europe, see ibid, 105–109, Annex III. 65 International Hydrographic Organization, ‘Crowdsourced Bathymetry’ (14 January 2021) . 57

New technology and the protection of the marine environment  419 (IHO) has published the Guidelines for Crowdsourced Bathymetry,66 which are continuously reviewed and maintained by the IHO’s Crowdsourced Bathymetry Working Group. The increased gathering and sharing of bathymetric data could help meet the objectives of the United Nations Decade of Ocean Science for Sustainable Development (2021-2030)67 as well as the Nippon Foundation-GEBCO Seabed 2030 project, which aims to map all of the ocean floor by 2030 using largely crowd-sourced data from research vessels, corporations and privately owned ships around the world.68 At the same time, some legal uncertainties still exist. What is the legal framework applicable to CSB? Should it be classified as MSR or (rather) as hydrographic surveying? Can private yachts take depth measurements anywhere or could that be considered illegal surveying?69 Is it even citizen science if privately funded vessels are being used? Furthermore, CSB depends on the willingness of coastal States to participate and commit to data-sharing, but according to an IHO questionnaire, coastal States have worries about the detection of apparent deficiencies in their official charts (and liability issues related thereto), concerns because of national security issues, and concerns about the legal status of CSB in the context of the LOSC.70 It is the ambition of the IHO to initiate a discourse about the status of CSB in terms of the LOSC, arguing that CSB is not illegal surveying but rather provides a great contribution to advancing knowledge of the seabed topography for the benefit of all who use the seas and oceans.71 Advances in technology to enhance scientific knowledge may cause environmental impacts, such as physical, acoustical, chemical or accidental environmental impacts;72 and numerous ocean sensor-carrying platforms are deployed without any plans for recovery.73 Some research technologies may come with a high environmental cost in terms of emissions and waste, and some research activities deliberately manipulate the marine environment to understand the effects of those manipulations.74 Many ocean sensors and platforms are made from minerals mined from the Earth, as with other sensors and indeed all computers and mobile phones. The LOSC provides that MSR shall be conducted in compliance with all relevant regulations for the protection and preservation of the marine environment.75 At the same time, the LOSC also International Hydrographic Organization, B-12 - IHO Guidelines for Crowdsourced Bathymetry, B-12 Edition 2.0.3, 20 January 2020 . 67 IOC Ocean Decade Series 20 4 (n 53). 68 ‘Crowd Sourced Bathymetry’ (The Nippon Foundation-GEBCO Seabed 2030 Project, 2020) . 69 Andrew Schofield, ‘Crowd Sourced Bathymetry’, 9th ABLOS Conference: Pushing the Limits of UNCLOS (Monaco, October 2017). 70 Mathias Jonas, ‘Crowd Sourced Bathymetry - How Can a Grass Root Movement Be Legally Framed?’, 10th ABLOS Conference: Opportunities and Challenges in the Governance of the Planet Ocean (Monaco, October 2019). 71 Ibid. 72 Anna-Maria Hubert, ‘The New Paradox in Marine Scientific Research: Regulating the Potential Environmental Impacts of Conducting Ocean Science’ (2011) 42 Ocean Development & International Law 329, 330. 73 Linwood Pendleton and Asgeir J Sørensen, ‘The Hidden Downside to Ocean Data and How to Make It More Sustainable’ (World Economic Forum, 14 April 2021) . 74 Philomène A Verlaan, ‘Experimental Activities That Intentionally Perturb the Marine Environment: Implications for the Marine Environmental Protection and Marine Scientific Research Provisions of the 1982 United Nations Convention on the Law of the Sea’ (2007) 31 Marine Policy 210, 211. 75 LOSC, Art. 240(d). 66

420  Research handbook on international marine environmental law provides the general obligation to promote and facilitate the conduct of MSR,76 calling for a balance to be struck between environmental risk and scientific gain, which has been referred to as the ‘paradox of marine scientific research’.77 New technologies not only change the way in which we obtain scientific data, but they also change the type of scientific data we are able to collect and how we use that data. The development of genetic research technologies, combined with marine biological sampling tools, open up new opportunities to gather scientific information from the oceans that can be used for the protection of the marine environment. One example is environmental DNA (eDNA), whereby genetic residue left behind by organisms (such as cells shed from skin, or body waste) in the ocean, can be detected and analysed using molecular biology tools.78 By providing information on the presence/absence of marine species, eDNA can be used in monitoring marine biodiversity, identifying endangered species, assessing environmental impacts of human activities and in fisheries management.79 Genomic technologies are a growing area of research and innovation and are used to complement traditional marine biological research techniques. For example, eDNA has been used in combination with visual observations to understand the distribution of lionfish, an invasive species in parts of the Caribbean.80 A further example is real-time gene sequencing, which can support law enforcement efforts to tackle illegal wildlife trade and fisheries, for example by enabling the identification of endangered shark and ray species from dried fins and gill plates.81 The negotiations for the new BBNJ Agreement highlight the many legal questions raised by the development of new technologies to collect and use ocean data.82 On the one hand, States are seeking to promote scientific research, recognising that scientific knowledge and technological tools associated with genetic information are useful for the conservation and sustainable use of marine biodiversity. On the other hand, States are also seeking to ensure that there are measures in place to share benefits from the use of MGR (which include the development of new biotechnologies, biomaterials and products for industry sectors spanning cosmetics and pharmaceuticals to industrial processes83), recognising that few are capable of accessing and using MGR from the deep and remote areas beyond national jurisdiction. Attempting to LOSC, Art. 239. Hubert (n 72). 78 National Oceanic and Atmospheric Administration, ‘Omics Strategy: Strategic Application of Transformational Tools’ (NOAA, February 2020) . 79 Bradley R Moore and others ‘Defining the Stock Structures of Key Commercial Tunas in the Pacific Ocean I: Current Knowledge and Main Uncertainties’ (2020) 230 Fisheries Research 105525. 80 Haley Erickson and others, ‘Using Environmental DNA (eDNA) to Improve the Accuracy and Efficiency of Managing the Invasive Pacific Red Lionfish in the Caribbean’ (Dutch Caribbean Biodiversity Database, 2019) . 81 Dirk Steinke and others, ‘DNA Analysis of Traded Shark Fins and Mobulid Gill Plates Reveals a High Proportion of Species of Conservation Concern’ (2017) 7 Scientific Reports 9505. 82 Harriet Harden-Davies and Kristina Gjerde, ‘Building Scientific and Technological Capacity: A Role for Benefit-sharing in the Conservation and Sustainable use of Marine Biodiversity Beyond National Jurisdiction’ (2019) 33(1) Ocean Yearbook 377. 83 A central issue is thus the ‘blurring between non-commercial and commercial research’, as the academic community partners with industry. See Robert Blasiak and others, ‘The Ocean Genome: Conservation and the Fair, Equitable and Sustainable Use of Marine Genetic Resources’ (Blue Paper Commissioned by High Level Panel for a Sustainable Ocean Economy, 2020) 27 . 84 The LOSC establishes the framework for marine scientific research in Part XIII, and for the development and transfer of marine technology in Part XIV. 85 Deep Ocean Stewardship Initiative, ‘Digital Sequence Information – Clarifying Concepts’, DOSI Policy Brief (March 2020) 2 . 86 See for example Muriel Rabone and others, ‘Access to Marine Genetic Resources (MGR), Raising Awareness of Best-Practice Through a New Agreement for Biodiversity Beyond National Jurisdiction (BBNJ)’ (2019) 6 Frontiers in Marine Science 520; Arianna Broggiato and others, ‘Mare Geneticum: Balancing Governance of Marine Genetic Resources in International Waters’ (2018) 33 International Journal of Marine and Coastal Law 3; ‘International legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ UNGA Res 72/249, A/RES/72/249, 24 December 2017. 87 For a discussion on the potential of remote sensing in the fight against IUU fishing, see Denzil GM Miller, ‘Occupying the High Ground: Technology and the War on IUU Fishing’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill Nijhoff 2010); Michele Kuruc, ‘Monitoring, Control and Surveillance Tools to Detect IUU Fishing and Related Activities’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill Nijhoff 2010). See also Group on Earth Observations, ‘Global Earth Observation System of Systems (GEOSS)’ . 88 Atsuyo Ito, Legal Aspects of Satellite Remote Sensing (Martinus Nijhoff Publishers 2011) 3, 100.

422  Research handbook on international marine environmental law nology and machine learning, Global Fishing Watch has been able to build an open-access picture of global fishing activity.89 Its mission is to ‘advance ocean governance through increased transparency of human activity at sea’.90 The Global Fishing Watch map is the ‘first open-access online platform for the visualization and analysis of vessel-based human activity at sea’.91 Global Fishing Watch combines publicly available tracking data from automatic identification systems (AIS) with information acquired through vessel monitoring systems (VMS) operated by governments, whilst also incorporating satellite imagery for a more complete picture of global fishing activity. These satellite imaging systems can use infrared technology – such as the ‘Visible Infrared Imaging Radiometer Suite’ (VIIRS); optical imagery – such as the satellite images on Google Earth; or radar technology – such as synthetic aperture radar (SAR) technology. This data is then processed and made publicly available. The map thus provides a view of human activity at sea, including apparent fishing activity, vessel encounters, night light vessel detection and vessel presence. Anyone using the map – including governments – can monitor apparent fishing activity by searching for vessels or downloading reports of activity from custom areas. Governments can thus use this data to identify and take action against vessels that are not authorised to fish in certain areas whereas fishers can show they are operating transparently and responsibly, increasing their market value. While there are limitations92 on the use of satellite remote sensing for the protection of the marine environment, it is fast gaining traction in international ocean governance. Another illustrative example of technology used for monitoring and enforcement is satellite remote sensing technology to detect oil spills. Aerial observation of marine oil spills is an important element of an effective response to oil spills, by determining the location and extent of oil contamination as well as verifying predictions of the movement and fate of oil slicks at sea.93 Kongsberg Satellite Services (KSAT), for example, uses optical sensors and SAR technology to extract oil thickness.94 Classifying oil thickness within an oil spill allows responders to directly target the oil that can be cleaned up. Oil spill detection by satellite remote sensing can be complemented by other technologies mounted on aircraft (such as Side-Looking Airborne Radar, Infrared and Ultraviolet Scanner, Microwave Radiometer or Laser Fluorescence Sensor), as well as human visual inspections.95

Global Fishing Watch, ‘About Us’ . Ibid. 91 Global Fishing Watch, ‘Our Map’ . 92 For example, AIS may be switched off or locations falsified, and there are variable legal requirements for the use of AIS, see Solene Guggisberg, ‘The Roles of Nongovernmental Actors in Improving Compliance with Fisheries Regulations’ (2019) 28 Review of European, Comparative and International Environmental Law 314. 93 International Tanker Owners Pollution Federation Limited (ITOPF), ‘Aerial Observation of Marine Oil Spills’, Technical Information Paper No. 1 (2011) 2 . 94 ‘KSAT Extracts Oil Thickness from Satellite Images’ (Kongsberg Satellite Services, 15 May 2020) . 95 Olaf Trieschmann, ‘Illegal Oil Spills from Ships: Monitoring by Remote Sensing’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill Nijhoff 2010) 216–220. 89 90

New technology and the protection of the marine environment  423 These initiatives use data collected by satellites orbiting the Earth. The legal framework applicable to this type of activity includes the 1967 Outer Space Treaty96 (and its principle of the freedom of outer space), the 1986 Principles Relating to Remote Sensing of the Earth from Space,97 and possibly also the LOSC (its provisions on development and transfer of marine technology, and if the activity for enforcement purposes is deemed to be MSR and if one accepts that Part XIII also applies to research activities that do not take place in, on, or below the water column),98 in addition to a multitude of other instruments such as those established by the IMO and the UN Food and Agriculture Organization. Whenever the data collected by satellite remote sensing is used for enforcement purposes, however, issues relating to liability, reliability and verifiability of the data,99 and privacy arise.100 Indeed, there is a difference between using data from satellite remote sensing for monitoring, control and surveillance purposes, and using that data to check compliance with (and violations of) international law. Satellite remote sensing can offer data for the purpose of verifying facts and evidence, but most environmental agreements do not contain specific references to the use of satellite imagery for verification purposes.101 However, satellite data has on a number of occasions been used to identify vessels responsible for oil spills and other forms of pollution,102 and has also been used as evidence in a few cases, mostly concerning maritime and territorial delimitation.103 As soon as data collected by satellite remote sensing may be used to prove liability or violations

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (opened for signature 27 January 1967, entered into force 10 October 1967) 610 UNTS 205. 97 UNGA, Principles Relating to Remote Sensing of the Earth from Outer Space, UN Doc A/ RES/41/65, 3 December 1986. 98 For example, Rothwell and Stephens submit that Part XIII does not include scientific research undertaken from ‘outside the surface, water column, subsoil or seabed in the marine environment’. Donald R Rothwell and Tim Stephens, The International Law of the Sea (2nd ed, Hart Publishing 2016) 348. However, an alternative interpretation exists, submitting that there is no requirement in the LOSC that the research activity take place in, on, or below the water column. For further discussion, see Woker and others (n 57). 99 London Institute of Space Policy and Law, ‘ISPL ESA Study: The Use of Satellite-Derived Information as Evidence’ (Doc ESA-ISPL/EO 47), ESA Workshop: Evidence from Space (London, October 2010) . 100 Maria Maniadaki and others, ‘Reconciling Remote Sensing Technologies with Personal Data and Privacy Protection in the European Union: Recent Developments in Greek Legislation and Application Perspectives in Environmental Law’ (2021) 10 Laws 33. 101 Matxalen S Aranzamendi and others (eds), Current Legal Issues for Satellite Earth Observation: Treaty Verification and Law Enforcement through Satellite Earth Observation and Privacy Conflicts from High Resolution Imaging (Report 25) (European Space Policy Institute 2010) 28. 102 Ito (n 88) 132. See, eg, Frontier Dispute (Mali v Burkina Faso) (Judgment) [1986] ICJ Rep 554; Kasikili/Sedudu Island (Botswana/Namibia) (Judgment) [1999] ICJ Rep 1045; Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 40; Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria; Equatorial Guinea intervening) (Judgment) [2002] ICJ Rep 303 (in most of these cases, the satellite images were introduced to determine the locations of points relevant for the delimitation process). 103 Ito (n 88) 135-143. 96

424  Research handbook on international marine environmental law of public international law, legal issues relating to reliability, verifiability and translatability104 of the data may be even more pertinent, especially if the data is collected by non-State actors.

6. THE MULTIFACETED RELATIONSHIP BETWEEN NEW TECHNOLOGY, LAW, AND THE PROTECTION OF THE MARINE ENVIRONMENT The preceding discussion of the four categories has revealed that the relationship between new technology and the protection of the marine environment is not a one-way street. It is a multifaceted relationship. Three cross-cutting themes can be identified that characterise this relationship. First of all, it involves a balancing act that depends on a multitude of variables. Secondly, new technology may challenge the applicable legal framework and its adequacy to regulate advancements in technology. A third cross-cutting theme relates to the range of actors and interests involved and raises questions of who uses (new) technology, who benefits, and who carries the burdens and risks. These three cross-cutting themes are not exhaustive, nor are they mutually exclusive. They do, however, demonstrate the different ways in which new technology facilitates, improves, and/or challenges the protection of the marine environment and how this relationship is mediated by law. 6.1

Balancing Act

The relationship between new technology and the protection of the marine environment involves a balancing act that depends on a wide range of variables, including the nature and scale of the technology and its associated environmental risks, the particular application or purpose of the technology, the area of operation (within or beyond national jurisdiction), and the range of actors and interests involved. These variables, rather than the type of technology per se, determine the relation with the marine environment, as well as questions of applicable law and the adequacy of the legal regime. We have seen that a single type of technology, for example autonomous devices, can be applied in MSR, but also in a law enforcement context. Similarly, advances in genetic technologies may enhance scientific knowledge, but may also open up new commercial uses of MGR and thereby their exploitation as a resource. For new technologies that open up new or advanced ways of exploiting resources that fall squarely within traditional sovereign rights of coastal States under the territorial sea, EEZ and continental shelf regimes, it is clear that the balance of interests reflected in these regimes leaves coastal States a considerable measure of discretion in authorising and regulating such activities. Their general obligation of due diligence to prevent, reduce and control pollution of the marine environment resulting from such activities depends on further relevant rules and standards to provide it with detailed normative content. The ‘open’ nature of this obligation means that the balancing act is to be conducted on a case-by-case basis, which allows technological and normative developments to be incorporated progressively over time. However, such dedicated international standards do not always exist, as the examples of renewable energy production and mariculture illustrate. Challenges furthermore arise where large measures of 104 See, eg, Trieschmann (n 95) 228: ‘For successful prosecution, lawyers need to be able to rely on comprehensive, plausible and complete data sets that are also understandable to non-experts.’

New technology and the protection of the marine environment  425 uncertainty remain. General obligations of due diligence or precaution do not inform how the potential environmental risks versus environmental benefits of a particular technology are to be weighed, as they are dependent on the availability of extra-legal knowledge and data to inform this balancing act. In addition to the variables identified above, the ‘environmental interest’ itself is also not a uniform concept within the balancing act. In case of technological interventions for restoration purposes, one environmental interest (in addressing the target risk) is to be balanced against another environmental interest (the risk posed by operating the technology itself). These applications of technology thereby entail a different kind of balancing act than exploitation activities, where an established sovereign right to exploit a particular resource is to be balanced against the obligation to protect the marine environment from the impacts of this activity. MSR straddles these examples as it involves, on the one hand, a right (to conduct MSR) that has to be balanced against the obligation to protect the marine environment. Yet, this balancing act may involve two environmental interests pulling in opposite directions: scientific gain that may benefit environmental protection versus potential environmental harm caused by MSR technologies. This tension underlines the point that within any balancing act, the weight accorded to the ‘environmental interest’ and the definition thereof are open to different interpretations that in turn rely on extra-legal knowledge. 6.2

The Adequacy of the Legal Framework

A second cross-cutting theme characterising the relationship between new technology and the protection of the marine environment is the question of applicable law and the adequacy of the legal framework. In many of the cases discussed above, the law predates (the application of) the technology that was clearly not foreseen during the drafting of the legal instruments. When the applicable legal regime dates from the previous century, questions arise as to how new technology may be classified and how it may ‘fit’ within the legal regime applicable. It is widely recognised that the LOSC is to a large extent open enough to be interpreted in an evolutionary manner,105 thus allowing for changing circumstances and advancements in technology to be taken into account when interpreting certain provisions of the Convention. Indeed, the fact that the list of high seas freedoms is non-exhaustive, facilitates the introduction of new uses of the oceans and technologies. The same is true for new research technologies: due to the absence of a definition of MSR, the right to conduct MSR may be interpreted to include new research technologies.106 For these examples, the existing legal framework – with an evolutionary interpretation – is thus able to cover such advancements in technology. At the same time, duties of due regard and due diligence remain key to balance such evolving rights with the (existing) rights and obligations of other actors, and thus the balancing act discussed above becomes ever more important. The examples of TOC, floats and gliders, and citizen science indeed demonstrate how advances in technology may still be included in the existing jurisdictional framework.

Rozemarijn J Roland Holst, Change in the Law of the Sea: Context, Mechanisms and Practice (Brill 2022); Jill Barrett and Richard Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (BIICL 2016). 106 See Nele Matz-Lück, ‘Article 238’ in Alexander Proelss (ed), United Nations Convention on the Law of the Sea – A Commentary (Beck Hart Nomos 2017) 1605; Woker and others (n 57). 105

426  Research handbook on international marine environmental law However, the same examples also demonstrate the need for dedicated rules for the specifics of such advances in technology. For example, although TOC’s technology falls within the non-exhaustive freedoms of the high seas, it is still unclear how the technology may be classified. The Agreement between TOC and the Kingdom of the Netherlands reflects the hybrid and/or unclear nature of the technology and its legal status. Furthermore, technologies such as floats and gliders have certainly challenged the traditional image of conducting MSR. Are these devices to be considered ships (with corresponding flag State responsibilities), or installations and structures?107 What about the requirements for obtaining consent? In these cases, it is often impossible to determine the ‘precise geographical areas in which the project is to be conducted’.108 The LOSC requires MSR to be conducted with ‘appropriate scientific method and means’.109 What does this threshold mean today?110 Does it include citizen science projects, or the use of floats and gliders? Thus, despite the fact that these activities are governed by the existing legal framework in general terms, the lack of specific norms and standards illustrates how the existing legal framework may not always be fully adequate to regulate new technology. In other contexts, it is much harder to include new technologies within the existing jurisdictional framework. Here, new legislation altogether may be required to sufficiently regulate the use of and access to new technologies and to prevent any harm to the marine environment. The BBNJ Agreement is a case in point. There have been too many legal uncertainties surrounding the harvesting of MGR, the related equity issues, and the rights and obligations in relation to the protection of the marine environment in areas beyond national jurisdiction as such. Hence, the UN initiated the BBNJ process to draft a new implementing agreement to the LOSC, which hopefully will be able to regulate the relationship between new technology and the protection of the marine environment within the BBNJ context. 6.3

Actors and Interests

Thirdly, underpinning the themes explored above are questions about who uses and has access to technology, who benefits, and who carries the burden – regardless of whether technologies are used to exploit marine resources, mitigate environmental harm, or advance knowledge to inform and enable environmental protection. In addition to the example of equity issues surrounding access to and benefit sharing of MGR, remote sensing technology for monitoring and enforcement purposes is expensive and has the potential to be a powerful tool for those who have the means to use it. This requires critical reflection on the actors involved, their interests, and the power relations between them. To a limited extent, these questions were anticipated by the LOSC by providing for the transfer of marine technology. However, today, progress in implementing Part XIV of the LOSC on transfer of marine technology has fallen short of expectations, and questions surrounding technology and equity continue.111 Meanwhile, the

See Hofmann and Proelss (n 60). LOSC, Art. 248(c). 109 LOSC, Art. 240(b). 110 See Woker and others (n 57). 111 See, eg, IOC-UNESCO, Global Ocean Science Report 2020: Charting Capacity for Ocean Sustainability (UNESCO Publishing 2020) highlighting the continuing disparity between States in terms of access to marine science and technology. 107 108

New technology and the protection of the marine environment  427 importance of technology for the protection and preservation of the marine environment has been reinforced – including in the UN Sustainable Development Goal 14 Target A,112 and by the inclusion of ‘capacity building and technology transfer’ as one of the four key elements of the BBNJ Agreement.113 As the UN Decade of Ocean Science for Sustainable Development begins in 2021, including the goal to ‘leave no-one behind’, growing scrutiny on the equity aspects of technology transfer might be expected. Technology alone is not the solution; for example, access to equipment or data will only be useful if there is corresponding, human, institutional and financial capacity to utilise a technology in a socially responsible and sustainable way. This challenge highlights that technology is merely a tool – people will determine how it is used and whether it contributes to (or poses a problem for) protection of the marine environment.

7. CONCLUSION While the focus of this chapter has been on the triangular relationship between new technology, the protection of the marine environment, and the legal framework governing this relationship, we recognise that there are also critical social, political and cultural factors that will determine the efficacy and equitability of technology development and deployment in the marine environment. It is important to note that the current mapping exercise is not exhaustive. Certainly, some of the more familiar examples (such as geoengineering) have been excluded from this discussion as they are discussed elsewhere.114 However, we hope this overview may help readers understand the different legal issues that arise at the interface between technology and international law, and that it may guide and inspire further research.

UNGA, Transforming Our World: the 2030 Agenda for Sustainable Development, UN Doc A/ RES/70/1, 25 September 2015, Goal 14. See also UNESCO-IOC, IOC Criteria and Guidelines on the Transfer of Marine Technology (UNESCO Publishing 2005). 113 See, eg, Harriet Harden-Davies and others, ‘Science in Small Island Developing States: Capacity Challenges and Options relating to Marine Genetic Resources of Areas Beyond National Jurisdiction’, Report for the Alliance of Small Island States (University of Wollongong, Australia, 30 October 2020). 114 Scott, Chapter 11 in this volume. 112

19. Implementing environmental impact assessment in areas beyond national jurisdiction: Epistemic, institutional and normative challenges Neil Craik and Kristine Gu

1. INTRODUCTION There is little question concerning the existence of an international legal obligation to conduct environmental impact assessments (EIAs) in areas beyond national jurisdiction (ABNJ).1 The obligation is reflected in Article 206 of the United Nations Convention on the Law of the Sea (LOSC),2 and EIA has long been recognised as being central to carrying out a State’s due diligence obligation to prevent environmental harm.3 The challenge, however, has been to move from the articulation of EIA as a principle to its use as a tool to inform decisions regularly made by States and international organisations in ABNJ. Implementation challenges for EIA in ABNJ are a product of the complex decision-making environment that arises in ABNJ. At its heart, EIA regulates public decision-making, and, as such, the implementation of EIA will reflect the scientific, institutional and normative conditions in which decisions are undertaken. The animating premise of this chapter is that these conditions are sufficiently unique in ABNJ to give rise to questions about whether EIA processes in ABNJ can be expected to operate in the same manner as those implemented in domestic and transboundary contexts. Critically, the absence of territorial sovereignty in ABNJ results in a decision-making environment where the rights and responsibilities of States are more complex. States very clearly have responsibilities to prevent harm to the environment in ABNJ, but it is less clear to whom those duties are owed. The shared nature of ABNJ resources creates a more diffuse legal and political dynamic, in light of the communal nature of many of the environmental interests

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion), Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS), Case No 17, 1 February 2011 (Seabed Advisory Opinion); Robin Warner, ‘Environmental Assessment in Marine Areas Beyond National Jurisdiction’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015); Neil Craik, ‘Principle 17: Environmental Impact Assessment’ in Jorge Viñuales (ed), The Rio Declaration on Environment and Development (OUP 2015). 2 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC) Art. 206. 3 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Merits) [2010] ICJ Reports 14 (Pulp Mills, Merits); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Merits) [2015] ICJ Reports 665 (Construction of a Road). 1

428

Implementing environmental impact assessment in areas beyond national jurisdiction  429 engaged.4 The International Tribunal on the Law of the Sea (ITLOS) suggests that the duty to protect common resources in the context of the Area5 is of erga omnes character, and therefore owed to all States.6 The practicalities of notifying every State of activities in ABNJ suggest an important role for international institutions in coordinating EIAs. International institutions may also be significant actors themselves, with oversight and decision-making powers for which EIA processes will need to account. Looking beyond States, EIAs are also mechanisms for directly engaging individuals and groups whose rights and interests may be affected by a proposed activity. The identification of stakeholders and the extent of their rights in EIA processes in ABNJ raises practical questions around process, but also more fundamental questions with respect to the presence and nature of individual and group rights. EIA processes are also affected by the knowledge environment in many ABNJ contexts, which is often characterised by deep scientific uncertainty.7 EIA processes are premised on the assumption that environmental impacts can be accurately and efficiently determined through prior investigation.8 Certainly, EIA processes in any context must grapple with uncertainties, but the knowledge environment in ABNJ presents particular challenges, due to a lack of baseline data, highly complex system interactions, and the introduction of novel activities that have no clear analogues from which assessment professionals can draw.9 For instance, in the case of seabed mining, its relative novelty results in a chasm of information on the lasting effects of mining activities, including the ability of, and time required for, the seabed environment to recover from significant changes.10 The predictive capacity of EIA is further strained by large-scale environmental changes in ocean ecosystems, owing to climate impact (eg, ocean acidification, ocean temperature and circulation pattern changes, sea-level rise and deoxygenation),11 as well as from cumulative and indirect impacts (eg, submarine volcanic eruptions). Moreover, the knowledge any one State has about the environment in ABNJ will also vary

Leslie-Anne Duvic-Paoli, The Prevention Principle in International Environmental Law (CUP 2018) 239. See also Jutta Brunnée, Procedure and Substance in International Environmental Law (Brill 2020) 133. 5 LOSC, Art. 1(1). 6 Seabed Advisory Opinion (n 1) para. 180. 7 UN Educational, Scientific, and Cultural Organization (UNESCO) Intergovernmental Oceanographic Commission (IOC) Executive Planning Group, ‘Accelerating Ocean Science for a Better World: The UN Decade of Ocean Science for Sustainable Development 2021-2030’, (2019) UNESCO Oceans Decade Paper 1, 5; UNESCO IOC, ‘Ocean Knowledge for a Sustainable Ocean Economy: Synergies between the Ocean Decade and the Outcomes of the Ocean Panel’, (2021) UNESCO Oceans Decade Series 17, 17; UNGA, Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment, UN Doc A/73/419, 30 November 2018, para. 86. 8 Bradley Karkkainen, ‘Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance’ (2002) 102(4) Columbia Law Review 903. 9 Thomas L Frölicher and others, ‘Sources of Uncertainties in 21st Century Projections of Potential Ocean Ecosystem Stressors’ (2016) 30(8) Global Biogeochemical Cycles 1224. 10 P P E Weaver and others, Regional Environmental Assessment of the Northern Mid-Atlantic Ridge (ISA Technical Study No 29, ISA, Kingston, Jamaica, 2019) 81, 150. See also Sabine Gollner and others, ‘Resilience of Benthic Deep-sea Fauna to Mining Activities’ (2017) 129 Marine Environmental Research 76, 96-97. 11 See Intergovernmental Panel on Climate Change (IPCC), Special Report on the Ocean and Cryosphere in a Changing Climate (CUP 2019) 45. 4

430  Research handbook on international marine environmental law depending on its ability to engage in marine scientific research, individually and collectively.12 These conditions greatly challenge the ability of EIA processes to accurately identify and assess impacts, let alone to generate consensus respecting their significance. Finally, the normative environment of ABNJ decision-making is becoming increasingly fragmented.13 Sources of environmental goals come from multiple bodies (such as the International Maritime Organization (IMO), the International Seabed Authority (ISA), regional fisheries management organisations (RFMOs) or the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD))14 that are often made up of different parties and informed by distinct foundational concepts, such as the common heritage of humankind (ISA) or equitable benefit sharing (CBD). EIA processes are simultaneously rooted within these distinct regimes and increasingly required to transcend the institutional setting in which the EIA is conducted to account for external values. These conditions do not merely suggest that implementing EIA in ABNJ will be difficult but also raise questions about the expected role of EIAs. EIA processes involve a complex interplay of scientific, political and normative factors. EIAs require comprehensive scientific evaluations of proposed activities, but their ability to influence outcomes is dependent on how accurately the assessment predicts outcomes and on a degree of consensus respecting what constitutes acceptable outcomes. EIA processes, of course, recognise that technical assessment processes are insufficient, which is why they also often require consultation and the justification of decisions. In domestic contexts, public decision-makers are positioned to determine outcomes based on their institutional role in pursuit of an overarching public interest. Viewed in this light, the role of EIA is less about determining the ‘right’ environmental outcome and more about legitimising decisions by accounting for the views of affected States and stakeholders.15 In ABNJ, the justificatory role of EIA may be particularly important due to the presence of greater predictive uncertainty. If States cannot rely on agreed upon determinations of when an activity presents a clear risk to the environment, the legitimacy of the decisions must depend to a higher degree on affording concerned States or stakeholders the opportunity to present their views. Where the decision-maker is the State proposing the activity, it must demonstrate to the affected community that its decision is indeed responsive to public interests and not parochial. Participatory aspects of EIA provide a mechanism for affected or interested parties to influence those outcomes. However, the diffuse interests in commons settings may pose challenges in bringing community pressure to bear on decision-making processes. This difficulty may be

UN, World Ocean Assessment II, Vol I (UN 2021) 56 (‘Global disparities in understanding and knowledge gaps at the continental regional level remain. The bulk of the research and the information readily available (based on the number of publications) relates to the North Atlantic Ocean, the North Pacific Ocean and the Arctic Ocean. For other areas, in particular Africa, Oceania and South America (UNESCO-IOC, 2017b), there is less information available’). 13 International Law Commission (ILC), Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682, 13 April 2006; UN Doc A/73/419 (n 7) paras 2-3 and 6. See also Seline Trevisanut, Nikolaos Giannopoulos and Rozemarijn Roland Holst, Regime Interaction in Ocean Governance: Problems, Theories and Methods (Brill 2020). 14 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 15 Neil Craik, ‘Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments’ (2007) 38(2) Victoria University of Wellington Law Review 381. 12

Implementing environmental impact assessment in areas beyond national jurisdiction  431 further affected by the absence of political and legal avenues for holding decision-makers to account.16 Some observers of EIA processes have argued that EIAs do more than simply reflect prevailing interests and values, and can contribute to the inculcation of environmental values by requiring decision-makers to confront the disjuncture between proposed actions and community values, and to reassess their interests in light of new scientific and normative determinations.17 In this regard, EIAs may be understood as having a broader role in shaping the values of decision-making institutions.18 In examining approaches to implementing EIA in ABNJ, this chapter considers how specific settings in which EIA processes are implemented have shaped their structure. To frame this analysis, we begin with a discussion of the common legal context for EIA obligations in ABNJ. EIAs are central to a State’s due diligence obligation to prevent environmental harm; however, as suggested above, EIAs also respond to other governance demands that shape their implementation. In addition to due diligence, we identify two other inter-related roles of EIA in the environmental governance of ABNJ that correspond to the duty to cooperate and the principle of participation. The chapter then examines specific examples of EIA implementation in ABNJ, with a focus on exploring the extent to which current and proposed EIA processes are likely able to fulfill these roles, especially considering particular epistemic, institutional and normative conditions that will influence assessment processes. The focus of this analysis is on a number of newly established and emerging EIA processes in ABNJ, specifically those developed for deep seabed mining (DSM), fisheries and marine geoengineering research. The emerging EIA regime within the negotiations for a new agreement on biodiversity beyond national jurisdictions (BBNJ) is also considered, but in more prospective terms.19 The concluding section draws on the discussion of specific EIA implementation challenges to identify common legal implementation challenges that EIA faces in ABNJ and the roles we can expect EIA to reasonably play in managing the environment of ABNJ going forward.

2.

BACKGROUND PRINCIPLES AND THE MULTIPLE ROLES OF EIA

The foundational source for EIA obligations in marine ABNJ is Article 206 of the LOSC: 16 Serge Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Stanford UP 1984). 17 Jane Holder, Environmental Assessment: The Regulation of Decision-Making (OUP 2004) 27-29. 18 James Boggs, ‘Procedural v Substantive in NEPA Law: Cutting the Gordian Knot’ (1993) 15(1) The Environmental Professional 25 (discussing the potential for US federal EIA law (National Environmental Policy Act (NEPA) to align agency objectives with environmental value); but see Holder (n 17) 29 (noting scepticism surrounding claims of EIA’s role in promoting learning and cultural change in institutions). 19 At the time of writing, the intergovernmental conference on marine biodiversity of areas beyond national jurisdiction (BBNJ) had completed three sessions, with a fourth session to be convened in 2022. There is a draft text, which contains multiple alternative wordings where there are diverging views; see UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, UN Doc A/Conf.232/2020/3, 18 November 2019 (Draft BBNJ Agreement).

432  Research handbook on international marine environmental law When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205.20

This Article provides an unelaborated obligation to conduct EIAs, as the scope of the obligation and the particulars of the required conduct are not specified. Given this, the presence of a co-existing obligation to conduct EIAs in customary international law, discussed below, serves to inform the content of Article 206. This ‘evolutionary’ approach to interpreting Part XII of the LOSC is evident in the South China Sea arbitration, where the arbitral tribunal drew upon a broader due diligence obligation to prevent harm to inform the content of the LOSC’s environmental provisions.21 This approach to interpretation, consistent with Article 31(3)(c) of the Vienna Convention on the Law of Treaties,22 suggests that States, in implementing EIA in ABNJ, must consider not only the wording of Article 206 but the full range of obligations found in the LOSC and customary international law. 2.1 The Harm Prevention Principle The connection between the harm prevention principle and EIA is well established in customary international law, and provides the basis of the EIA obligation, as harm prevention requires that States inform themselves, through the conduct of an EIA, of the potential harmful consequences of a proposed activity.23 The relevance of the customary rule to ABNJ was confirmed by ITLOS in the Seabed Advisory Opinion: The Court’s [referring to the ICJ’s decision in Pulp Mills] reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction; and the Court’s references to ‘shared resources’ may also apply to resources that are the common heritage of mankind.24

The extension of the harm prevention principle to ABNJ is reflected in Part XII of the LOSC, including Article 206, which references harm to the ‘marine environment’ without differentiation between areas within or beyond national jurisdiction. As a mechanism for harm prevention, EIA is viewed principally as a scientific and technical exercise, with the underlying presumption that there is sufficient information required to make objective predictions and to generate agreement about the likely presence of significant harm

LOSC, Art. 206. South China Sea Arbitration (Philippines v China) (Award of 12 July 2016) PCA Case No 2013-19, para. 948 (South China Sea, Award); discussed in Chie Kojima, ‘South China Sea Arbitration and the Protection of the Marine Environment: Evolution of UNCLOS Part XII through Interpretation and the Duty to Cooperate’ (2015) 21 Asian Yearbook of International Law 166. See also Alan Boyle, ‘Further Development of the Law of the Sea Convention: Mechanisms for Change’ (2005) 54(3) International and Comparative Law Quarterly 563. 22 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 31(3)(c). See also Seabed Advisory Opinion (n 1) para. 135. 23 Pulp Mills, Merits (n 3); Construction of a Road (n 3). 24 Seabed Advisory Opinion (n 1) para. 148. 20 21

Implementing environmental impact assessment in areas beyond national jurisdiction  433 and how to address that harm. As previously noted, pervasive scientific uncertainty thus has important implications for EIA processes. First, it further complicates the determination of significant harm, as it opens up greater possibilities that States and other actors may disagree not only on what constitutes significant harm but also on the interpretation of the factual basis of those conditions. This has specific implications for the application of EIA under Article 206, which is dependent upon a preliminary finding of ‘reasonable grounds’ for believing harm may arise from a particular activity. Uncertainty will also affect the conduct of EIAs, which requires agreement on the conceptual models that describe relationships among key system drivers and on the probability distributions used to represent key variables.25 The issue may be further compounded by the lack of accepted parameters and conditions that would indicate the significance of these effects.26 In the absence of agreed standards, EIA processes often rely upon the assessment of alternatives to provide a relativistic measure of approaches to the planned activity. The precautionary principle may partially address the effects of uncertainty. The LOSC does not include the precautionary principle, but it has been adopted in subsequent instruments related to ABNJ, including the Fish Stocks Agreement (FSA) and the ISA’s Exploration Regulations.27 While precaution may lower the threshold requirements for triggering an EIA, the precautionary principle does not fully resolve the ambiguities in applying Article 206, as the principle itself, as reflected in the Rio Declaration, still requires evidence of ‘threats of serious or irreversible damage’.28 Applying precaution does require attention to knowledge gaps and consideration of the risks associated with the uncertainties identified.29 The limited ability to accurately predict future environmental outcomes places greater emphasis on post-project monitoring and adaptive management approaches.30 Adaptive management, an environmental management approach that encourages the re-evaluation of decisions in light of their outcomes and new information, is partially reflected in the monitoring requirements found in Article 204 of the LOSC, and has been emphasised as a constituent element of due diligence by various international tribunals.31 Adaptive management recognises that, notwithstanding precaution, decisions respecting the environment will be made with incomplete knowledge. Adaptive management treats decisions with greater contingency and

25 See discussion in Roger Kasperson, ‘Coping with Deep Uncertainty: Challenges for Environmental Assessment and Decision-Making’ in Gabriele Bammer and Michael Smithson (eds), Uncertainty and Risk: Multidisciplinary Perspectives (Routledge 2008). 26 Lisa A Levin and others, ‘Defining “Serious Harm” to the Marine Environment in the Context of Deep-Seabed Mining’ (2016) 74 Marine Policy 245. 27 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (Fish Stocks Agreement or FSA) Art. 5; ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/19/C/17, 22 July 2013 (Nodules Exploration Regulations) Reg. 31. 28 LOSC, Art. 206. 29 Warwick Gullett, ‘Environmental Impact Assessment and the Precautionary Principle: Legislating Caution in Environmental Protection’ (1998) 5(3) Australian Journal of Environmental Management 146. 30 Meinhard Doelle and Gunnar Sander, ‘Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations’ (2020) 35(3) International Journal of Marine and Coastal Law 498. 31 Pulp Mills, Merits (n 3) para. 197; Construction of a Road (n 3) para. 104.

434  Research handbook on international marine environmental law provides a process for permitting changes to approvals, often within defined parameters, in response to new information about the actual impacts of the decision.32 2.2

The Duty to Consult

In light of the foregoing, the implementation of EIA in ABNJ cannot be understood simply, or even primarily, as a scientific and technical exercise. To the extent that the operation of EIA was ever premised on a rational comprehensive model of decision-making, the absence of unambiguous standards governing environmental outcomes and an epistemic environment that would enable predictive certainty makes such a model poorly suited to ABNJ. Because States may often fail to agree upon when an activity presents a significant risk of harm, the State proposing the activity is required to account for the perspectives and interests of other States. Here, EIA processes perform a different role. Instead of seeking to identify ‘right’ outcomes through scientific assessment, the procedural obligations structure the political interactions between parties with divergent interests. Under the duty to cooperate, States proposing activities are not required to successfully come to an acceptable arrangement with objecting States but are required to take any concerns voiced into account.33 The maintenance of State discretion to carry out activities notwithstanding the objections of other States, which is the hallmark of the duty to cooperate (and the freedom of the seas), matches the procedural nature of EIA. The duty to cooperate is reflected in Article 206, which requires that the results of an assessment be communicated in the manner provided for in Article 205. The structure of Article 205 clearly anticipates the conduct of EIAs in ABNJ, which requires that notice be mediated by an international organisation on behalf of all States. The link between Article 205 and the duty to cooperate was acknowledged in the South China Sea arbitration, where the arbitral tribunal noted that China’s failure to communicate any information about any assessment of construction activities in the South China Sea undermined its obligation to cooperate under Articles 123 and 197.34 The rights of States to be notified and consulted are more attenuated in ABNJ, making the scope of the duty to cooperate even less certain. The duty is found in numerous provisions in the LOSC, with each identifying circumstances requiring cooperation on regional and global scales. In the ABNJ context, the ‘due regard’ obligations in Article 87 would also trigger a duty to cooperate, as would Article 118 concerning cooperation in the conservation and management of living resources. The precise legal requirements of cooperation are not specified.35 Extending the right to be notified and consulted on the basis of a State’s common interest in the resources of ABNJ or common interest in the protection of the marine environment is sup-

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126, para. 184. 33 Lac Lanoux Arbitration (France v Spain) (1957) 12 RIAA 281; Neil Craik, ‘The Duty to Cooperate in the Customary Law of Environmental Impact Assessment’ (2020) 69(1) International and Comparative Law Quarterly 239. 34 South China Sea, Award (n 21) paras 984-986. 35 But see Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award of 18 March 2015) PCA Case No 2011-03, para. 521, where the tribunal described the obligation as existing on a spectrum with the degree of regard being dependent upon the nature of the interests of the affected State, including ‘their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated’. 32

Implementing environmental impact assessment in areas beyond national jurisdiction  435 ported by an understanding that environmental rights in ABNJ have an erga omnes character.36 This point of law, however, remains contested,37 and in relation to notification and consultation, may be unworkably broad. The approach in Article 205 to effect notification through international organisations suggests a State’s right to be notified and consulted may depend upon its participation in cooperative fora. Here, the competent international organisation is viewed as a mere conduit, playing no independent role in evaluating proposals or engaging proponents on behalf of their membership, but some institutions, such as the ISA and RFMOs, are intended to play a more substantive role in decision-making processes. 2.3

Public Participation

There is no obligation in Article 206, or elsewhere in the LOSC, for the State proposing an activity to engage the public. Given the State-centric nature of the LOSC, this is not surprising. However, legal developments have shifted the context such that public participation is recognised as a defining element of EIA in both domestic and international contexts at all levels of decision-making.38 These developments include Principle 10 of the Rio Declaration,39 the Aarhus Convention40 and regional agreements like the Escazú Agreement,41 as well as decisions of European and Inter-American human rights bodies.42 The Inter-American Court of Human Rights addresses the rationale behind public participation in the Columbia Advisory Opinion: Public participation is one of the fundamental pillars of instrumental or procedural rights, because it is through participation that the individual exercises democratic control of the State’s activities and is able to question, investigate and assess compliance with public functions. In this regard, public participation allows the individual to become part of the decision-making process and have his or

Brunnée, Procedure and Substance in International Environmental Law (n 4) 134-135. Jutta Brunnée, ‘International Environmental Law and Community Interests: Procedural Aspects’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests Across International Law (OUP 2018) 161-163. 38 See, eg, Convention on Environmental Impact Assessment in a Transboundary Context (opened for signature 25 February 1992, entered into force 10 September 1997) 1989 UNTS 309 (Espoo Convention) Art. 3(8); CBD, Art. 14(1)(a). See also Jeff Ardron, Hannah Lily and Aline Jaeckel, ‘Public Participation in the Governance of Deep-Seabed Mining in the Area’, Chapter 16 in this volume. 39 Rio Declaration on Environment and Development, ‘Report of the United Nations Conference on Environment and Development’, UN Doc A/CONF.151/26 (Vol. I), 3-14 June 1992, Annex I, Principle 10. 40 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (opened for signature 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447. 41 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted 4 March 2018, entered into force 22 April 2021) UNTC XXVII-18. 42 Taşkin and Others v Turkey App no 46117/99 (ECtHR, 10 November 2004); Saramaka People v Suriname, Judgment, Inter-American Court of Human Rights Series C No 172 (28 November 2007) para. 129; The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17, Inter-American Court of Human Rights Series A No 23 (15 November 2017) (Columbia Advisory Opinion). 36 37

436  Research handbook on international marine environmental law her opinion heard. In particular, public participation enables communities to require accountability from public authorities when taking decisions and, also, improves the efficiency and credibility of government processes.43

EIA is one of the primary means by which States implement their obligations to ensure public participation, and therefore contributes to the legitimacy of the decision-making process. Participation rights may also empower non-State actors to influence outcomes. The Columbia Advisory Opinion provides a possibility for a State to owe human rights obligations flowing from environmental harm to persons outside its territory and links the right of participation, as an expression of human rights, to EIA.44 The implication for ABNJ is that EIA processes ought to recognise the potential impacts of activities in ABNJ on the human rights of individuals. The extension of human rights to oceans governance is an emerging topic,45 but activities in ABNJ have the potential to impact a variety of rights, including rights to free, prior and informed consent and rights relating to traditional knowledge under the United Nations Declaration of the Rights of Indigenous Peoples.46 Complications to the implementation of participatory rights in ABNJ arise in relation to stakeholder identification. The right to participate is not dependent upon the party showing that they are directly affected, but instead may reflect a broader understanding of common interest in environmental resources. This more individualistic understanding of interests in the ocean commons is reflected in the notion of ‘common heritage of [hu]mankind’47 and in debates respecting rights of access and benefit sharing in marine genetic resources.48

3.

CURRENT AND EMERGING EIA PROCESSES IN ABNJ

Due to the unelaborated nature of Article 206, recent EIA initiatives have focused on expanding upon the required elements of EIA. These initiatives are organised on a sectoral basis and advanced by the relevant legal authorities within those sectors. The focus in this section is less on describing the particulars of each EIA process and more on examining how the specific epistemic, institutional and normative conditions of the regime have shaped the EIA requirements and the role EIA plays within the broader structure of the regime.

Columbia Advisory Opinion (n 42) para. 226. Ibid, paras 104(h) and 168. 45 Bianca Haas and others, ‘The Future of Ocean Governance’ (2021) 32 Reviews in Fish Biology and Fisheries 253-270. 46 UN Economic and Social Council Permanent Forum on Indigenous Issues, Study on the Relationship Between Indigenous Peoples and the Pacific Ocean, UN Doc E/C.19/2016/3, 19 February 2016. See also International Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (adopted 3 October 2018, entered into force 25 June 2021) (Central Arctic Ocean Agreement) Arts 4(4) and 5(1)(b). 47 LOSC, Art. 136. 48 The principle of common heritage of mankind has been introduced into the BBNJ negotiations, see Draft BBNJ Agreement (n 19) Art. 5. 43 44

Implementing environmental impact assessment in areas beyond national jurisdiction  437 3.1

Deep Seabed Mining

Deep seabed mining (DSM) activities are governed by Part XI of the LOSC, the 1994 Implementation Agreement,49 and through regulations enacted by the ISA, which collectively set the institutional and normative framework for environmental decision-making concerning mining activities in the Area. The authority of the ISA to directly regulate mining activities in the Area places it in a unique position as a frontline regulator with the responsibility to act on behalf of the ‘interests of [hu]mankind as a whole’,50 which reflects the unique status of seabed minerals as the ‘common heritage of [hu]mankind’.51 Mining activities may be undertaken by States directly or by private mining entities sponsored by a State party.52 The regulatory relationship between resource developers (Contractors) and the ISA is structured through a long-term contractual relationship protected by security of tenure. Both the ISA and the sponsoring State are under an obligation to ensure that activities by Contractors under their control are carried out in accordance with the regulatory requirements of Part XI,53 including requirements ‘to ensure the effective protection for the marine environment from harmful effects’ that may arise from mining activities.54 The mining process is divided into two principal phases, exploration and exploitation, governed by separate regulations for each phase.55 The ISA has adopted three sets of exploration regulations that set out the approval processes for exploration activities,56 as well as non-binding guidelines on conducting EIAs during the exploration phase.57 The regulations for the exploitation phase, and associated standards and guidelines, remain in draft form.58 There are requirements for Contractors to undertake EIAs at each phase that are triggered by the Contractor seeking approval of plans of work for exploration and exploitation, respectively.59 There are no screening processes for the exploration phase, as the non-binding guidelines for exploration activities describes which activities require an EIA and which do not,60 and all applications require a preliminary EIA.61 As for the current draft regulations on exploitation, all applications will require an EIA.62 Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 1836 UNTS 3 (1994 Implementation Agreement). 50 LOSC, Art. 137. 51 LOSC, Art. 136. 52 LOSC, Art. 153. 53 LOSC, Art. 139. 54 LOSC, Art. 145. 55 LOSC, Art. 153. 56 Nodules Exploration Regulations (n 27); ISA, Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, 27 July 2012; ISA, Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev.1, 7 May 2010. 57 ISA, Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area, ISBA/25/LTC/6/ Rev.1, 30 March 2020 (Recommendations for the Guidance of Contractors). 58 ISA, Draft Regulations on Exploitation of Mineral Resources in the Area, ISBA/25/C/WP.1, 22 March 2019 (Draft Exploitation Regulations). 59 1994 Implementation Agreement, Annex, s. 1(7). See also the various regulations (n 56). 60 Recommendations for the Guidance of Contractors (n 57) paras 32-33. 61 Nodules Exploration Regulations (n 27) Reg. 18. 62 Draft Exploitation Regulations (n 58) Reg. 47. 49

438  Research handbook on international marine environmental law The central regulatory tool is the plan of work, which includes contract-specific regulatory requirements through an environmental management and monitoring plan. These requirements may be regularised through the adoption of further guidelines and standards, but EIAs will play a critical regulatory role in determining effective harm prevention measures and standards for identifying unacceptable levels of impact.63 The knowledge environment, like that of ABNJ generally, is characterised by deep uncertainty,64 due to limited baseline scientific data and knowledge on system interactions, the novelty of DSM, and the ambiguity of characterising harm as significant or serious harm.65 A significant element of the exploratory work is conducting further scientific studies on the Contract Area to provide a better scientific foundation for EIAs required for exploratory activities and at the exploitation stage. One contemplated response to predictive uncertainty is requiring a robust system of post-approval monitoring and adaptive measures where actual impacts exceed expected levels.66 Monitoring is a central part of the DSM regulatory structure,67 but the degree to which the ISA can impose new operating conditions will require careful forethought. The security of tenure provisions in Part XI limit the ability of the ISA to unilaterally impose new operational conditions once a plan of work is approved.68 In the event that the predicted impacts during the exploration phase differ from those anticipated under the EIA, the ISA may seek changes to the plan of work, but this must be done on a consensual basis, giving rise to the need for a plan of work to be drafted in a way that anticipates the conditions under which adaptive responses would be required and what those responses would be. Exploitation activities require a new EIA for ‘material changes’ to a plan of work.69 Due to this uncertainty, the ISA may be expected to play an important role in overseeing the EIA process. Challenges arise in relation to the functional limitations of the decision-making apparatus of the ISA. The ISA Council is the decision-maker for plans of work, but it relies on the recommendations of the Legal and Technical Commission (LTC).70 The LTC is an expert body that meets at fixed intervals, but it does not have permanent staff to support its activities as one would generally find in domestic agencies that oversee EIA processes. Moreover, the LTC’s discretion is circumscribed by Article 165(2)(b), which requires that its recommendation is made ‘solely on the grounds stated in Annex III’. The evaluative basis, reflecting Article 145, is whether the environmental plans provide for effective protection of the marine environment. This may limit the ability of the LTC to seek the most environmentally effective

63 The ISA may, however, develop Regional Environmental Management Plans (REMPs), which provide a further framework for development, and may provide greater substantive regulatory direction for the conduct of EIAs. See, ISA, Decision of the Council Relating to an Environmental Management Plan for the Clarion-Clipperton Zone, ISBA/18/C/22, 26 July 2012. 64 Lisa Levin, Diva Amon and Hannah Lily, ‘Challenges to the Sustainability of Deep-Seabed Mining’ (2020) 3 Nature Sustainability 784; Cindy L Van Dover and others, ‘Biodiversity Loss from Deep-sea Mining’ (2017) 10 Nature Geoscience 464. 65 Levin and others (n 26). 66 Neil Craik, ‘Implementing Adaptive Management in Deep Seabed Mining: Legal and Institutional Challenges’ (2020) 114 Marine Policy 103256. 67 Draft Exploitation Regulations (n 58) Reg. 48. 68 LOSC, Art. 153(6); Draft Exploitation Regulations (n 58) Reg. 18(4). 69 Draft Exploitation Regulations (n 58) Reg. 57. 70 1994 Implementation Agreement, Annex, s. 3, para. 11.

Implementing environmental impact assessment in areas beyond national jurisdiction  439 or most precautionary alternative, since the LTC is bound to approve a plan so long as the base requirement of effective protection is achieved. The contents of an EIA are described in general terms under the exploration regulations and guidelines, but the process of determining the specific scope and contents of the report is left to the discretion of the Contractor.71 For the exploration phase, there are no formal provisions for scoping oversight, but the EIA, once complete, is subject to review by the LTC for ‘completeness, accuracy and statistical reliability’.72 The Draft Exploitation Regulations similarly do not include scoping procedures, but it is expected that the contents will have prescribed requirements.73 The LTC is required to review the completed environmental assessment report alongside the environmental management and monitoring plans.74 The process is anticipated to be somewhat iterative insofar as the LTC can seek revisions to the plans where they do not meet the ISA’s requirements.75 Under the current Draft Exploitation Regulations, there is a contemplated process for notifying and receiving comments from ‘stakeholders’. The definition of stakeholder does not require a specific right of interest, but instead is broadly inclusive.76 Consultation occurs late in the process, with no formal opportunities for consultation at the study design (scoping) stage. Instead, consultation occurs once the EIA is complete and the environmental plans are set for approval.77 Comments are provided to the Contractor, who may revise their plans in response to the comments, and form part of the package of information considered by the LTC. Neither the Contractor nor the LTC are required to respond directly to the comments made, but the LTC is required to provide a summary of the comments in its report to the Council on the adequacy of the environmental plans.78 There is no scope for stakeholders to appear before the LTC, whose meetings are not public, and no recourse to dispute settlement is available for stakeholders who believe that the LTC’s recommendations are flawed (unlike the rights available to a Contractor in, for example, Article 187 of the LOSC).79 The final decision respecting plans of work is made by the Council. There is no distinct process for notifying States or other international organisations. States that sit on the Council can participate directly in the decision, although at this stage the Council’s role is to either accept or deny the recommendation of the LTC. Individual States will have limited ability to influence outcomes, as a recommendation to approve a plan of work can only be overturned by a two-thirds majority of the Council.80 There are no clear avenues for involvement of States that are not members of the Council.81 Other international organisations participate in Recommendations for the Guidance of Contractors (n 57) Part II. Ibid, para. 41(c). 73 Draft Exploitation Regulations (n 58) Annex IV. 74 Ibid, Reg. 11. 75 Ibid. 76 Ibid, schedule (stakeholder ‘means a natural or juristic person or an association of persons with an interest of any kind in, or who may be affected by, the proposed or existing Exploitation activities under a Plan of Work in the Area, or who has relevant information or expertise’). 77 Ibid, Reg. 12. 78 Ibid, Reg. 11; LOSC, Art. 165(2)(d). 79 See Ardron, Lily and Jaeckel, Chapter 16 in this volume. 80 1994 Implementation Agreement, Annex, s. 3, para. 11(a). 81 Although coastal States, whose resource interests are potentially affected by activities in the Area, have special rights to notice and consultation. See LOSC, Art. 142. See Draft Exploitation Regulations (n 58) Reg. 4. 71 72

440  Research handbook on international marine environmental law ISA activities as observers, but there is no avenue for cross-institutional engagement in EIA processes. The expert nature of the LTC, its insulation from stakeholders, and the narrow discretion it is afforded in its recommendation suggest a technical approach to DSM EIA. The underlying assumption is that the determination of harm thresholds and effective protection are largely scientific questions. However, this may be at odds with the limited degree of scientific certainty and normative precision respecting the acceptability of impacts for DSM. The Council’s role as final decision-maker provides a measure of accountability, but this role is circumscribed by the super-majority voting requirement to overturn the LTC’s decision. This arrangement reflects a desire to depoliticise the granting of mining permissions, but if the decision to approve plans of work is understood as requiring the exercise of political discretion, a legitimacy deficit may arise. 3.2

Fisheries

Whereas DSM is a novel activity subject to international decision-making authority, high seas fisheries EIAs must respond to the opposite condition. The right to engage in high seas fisheries is a component of the freedom of the high seas that can be exercised by all States with due regard to other States and the provisions in LOSC, and due diligence obligations.82 EIA, which operates in an ex ante manner, is not structured to regulate continuing activities, such as fisheries. The right to engage in high seas fisheries is subject to requirements to take conservation measures,83 cooperate with other States in the conservation and management of living resources,84 use scientific information to determine conservation methods, and to exchange relevant data through competent international organisations.85 Part VII of the LOSC does not make any reference to EIAs, reflecting a view that fisheries were primarily a resource management issue concerning maintaining maximum or optimum sustainable yields. The FSA introduces EIA requirements,86 but the obligation is narrow insofar as it focuses on impacts to stocks and not on the broader effects of fishing on the high seas environment. The obligation to assess should be understood in light of other obligations under the agreement, including the protection of marine biodiversity,87 the precautionary principle,88 the duty to cooperate,89 and obligations to provide for transparency and inclusivity in decision-making.90 The agreement does not detail any specific procedural or substantive EIA requirements, thus requiring further action to implement effective environmental assessments for high seas fishing activities.

LOSC, Arts 87(2) and 192-193 (due diligence). The application of these provisions was confirmed in Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) (2015) ITLOS Reports 4, para. 136. 83 LOSC, Art. 117. 84 LOSC, Arts 117-118. 85 LOSC, Art. 119. 86 FSA, Art. 5(d). 87 FSA, Art. 5(g). 88 FSA, Art. 6. 89 FSA, Art. 8. 90 FSA, Art. 12. 82

Implementing environmental impact assessment in areas beyond national jurisdiction  441 A 2010 review of the FSA indicated strong support for operationalising its assessment provisions, identifying EIA as a tool for integrated ocean management and the precautionary approach.91 The review called for RFMOs and other competent organisations to conduct EIAs prior to commencing any high seas fishing activities.92 Assessments were also identified by the UN General Assembly (UNGA) as an appropriate mechanism to address bottom fishing activities: To assess, on the basis of the best available scientific information, whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, and to ensure that if it is assessed that these activities would have significant adverse impacts, they are managed to prevent such impacts, or not authorized to proceed.93

This resolution moves away from the framing of assessments as stock conservation measures in favour of an approach that aims to prevent significant adverse impacts (SAI), bringing fisheries assessment processes more in line with Article 206.94 In response, the UN Food and Agriculture Organization (FAO) and RFMOs have played increasingly prominent roles in advancing the use of EIA in the high seas. The FAO’s 1995 Code of Conduct for Responsible Fisheries identifies ‘assessment’ as an important tool in relation to ‘new or exploratory fisheries’, indicating the appropriateness of using some form of assessment for new activities.95 The FAO’s 2009 International Guidelines for the Management of Deep-sea Fisheries in the High Seas (Deep-sea Fisheries Guidelines) recommend a State or RFMO to conduct an EIA for any deep sea fishing activity likely to produce SAI in a given area.96 This assessment should contain a description of the activity and marine area, available scientific and baseline data, knowledge gaps, scale of impacts, and mitigation and monitoring measures. The Deep-sea Fisheries Guidelines also address the review of assessments by RFMOs and the need to publish impact assessment reports, proposed conservation and management measures, and recommendations of an RFMO’s scientific committee.

91 UNGA, Report of the Resumed Review Conference on the Agreement for Implementation of the Provisions of UNCLOS Relating to the Conservation and Management of Straddling Fish Stocks and High Migratory Fish Stocks, UN Doc A/Conf.210/2010/7, 24-28 May 2010, para. 31. 92 Ibid, para. 58. 93 UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/Res/61/105, 8 December 2006, para. 83(a). 94 See also UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/Res/71/123, 7 December 2016, para. 172; UNGA, Sustainable fisheries, including through the 1995 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, and related instruments, UN Doc A/Res/72/72, 5 December 2017, para. 176. 95 FAO, Code of Conduct for Responsible Fisheries (Rome 1995), para. 7.5.4 . 96 FAO, International Guidelines for the Management of Deep-sea Fisheries in the High Seas (Rome 2009) para. 47 (FAO, Deep-sea Fisheries Guidelines) .

442  Research handbook on international marine environmental law The FAO’s Step-wise Guide for the Implementation of International Legal and Policy Instruments Related to Deep-sea Fisheries and Biodiversity Conservation in the Areas Beyond National Jurisdiction (Step-wise Guide) provides further specifics for EIA implementation.97 Referencing the Deep-sea Fisheries Guidelines, the Step-wise Guide notes that EIAs should be prepared for existing fisheries in addition to new fisheries, but that the form of the assessment may change in light of the established nature of existing fisheries.98 There is an important legal difference between the more generic term ‘assessment’ and EIA, as a defined instrument in international law, with the latter being applied to planned activities prior to their authorisation.99 Existing fisheries do not trigger new approvals in the same manner that new and exploratory fisheries might, and as such, the decision-making context to which any assessment applies is significantly different. The Step-wise Guide does not provide further direction regarding notice and consultation, assuming that inter-State discussions will occur through RFMO institutions. Impact assessment processes are identified as instruments by which relevant stakeholders and their concerns may be identified, with specific mention to the interests and knowledge systems of Indigenous peoples.100 The focus of assessments is on proposals by member States of RFMOs for new bottom fisheries or other new and exploratory fisheries. These assessments are distinct from stock assessments, which are used to determine the abundance and trends of a particular fish stock in order to inform decisions on catch-levels and management. The approaches taken by RFMOs that have adopted conservation measures in response to both UN Resolution 65/105 and the Deep-sea Fisheries Guidelines are thematically similar.101 Generally, measures prohibit activities in conservation areas unless they go through an approval process that includes an assessment of SAI on vulnerable marine ecosystems (VMEs) of all new or exploratory bottom fisheries. The approach of the South Pacific RFMO (SPRFMO), for example, regulates bottom fishing and exploratory fishing under separate conservation and management measures adopted by SPRFMO, each of which sets out the requirements for newly proposed

97 FAO, Step-wise Guide for the Implementation of International Legal and Policy Instruments Related to Deep-sea Fisheries and Biodiversity Conservation in ABNJ (Rome 2019) (FAO, ‘Step-wise Guide’) . 98 Ibid, 28. 99 Simon Marsden, ‘Environmental Assessment and International Fisheries Law’ in Erik J Molenaar and Richard Caddell (eds), Strengthening International Fisheries Law in an Era of Changing Oceans (Bloomsbury 2019). 100 FAO, ‘Step-wise Guide’ (n 97) 27 and 29, referencing CBD COP, Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment, UNEP/CBD/COP/DEC/VII/16, 13 April 2004, Annex. See also Central Arctic Ocean Agreement, Arts 4(4) and 5(1)(b). 101 Convention on Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 UNTS 47 (CCAMLR), Conservation Measure 22-06 (2019); North-East Atlantic Fisheries Commission (NEAFC), Recommendation 19:2014 on area management measures for the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area, 1 January 2015, as amended by Recommendation 10:2021, 1 January 2021; North Pacific Fisheries Commission (NPFC), Conservation and Management Measure (CMM) 2021-05 (NW Pacific) / CMM 2021-06 (NE Pacific); Northwest Atlantic Fisheries Organization (NAFO), Conservation and Enforcement Measures (NCEM) 2021, Chapter II.

Implementing environmental impact assessment in areas beyond national jurisdiction  443 fisheries,102 directed towards the avoidance of SAI on VMEs.103 A Fisheries Operations Plan must be approved by the SPRFMO Commission on the advice of its Scientific Committee.104 The process is subject to a further standard that sets out, in considerable detail, the requirements for the assessment.105 The process incorporates a quantitative risk assessment approach and explicitly requires cumulative impact assessment. The process explicitly adopts an ‘iterative and adaptive review’ component, whereby the proponent is required to submit a new assessment document for substantial changes to the fishery.106 In any event, the assessment is required to be updated and reviewed every five years.107 The process does not discuss stakeholders or consultation but does require a 30-day period for public comment. The Scientific Committee’s review of the assessments is also made public.108 The evolution of fisheries EIAs reflects the path-dependent nature of regimes. The historic framing of fisheries as an ongoing exploitation of open commons resources made EIA, with its focus on prior assessment of new activities, poorly suited to addressing the impacts of fisheries, notwithstanding the increasing recognition of the potential for broader ecosystem impacts. The gradual acceptance of EIA tracks the increasing salience of the harm prevention principle to high seas fisheries, but EIA practice nevertheless remains primarily focused on proposals for new and bottom fisheries. The implementation of EIA processes is enabled by the higher degree of institutionalisation in international fisheries, which allocates decision-making to international settings through RFMOs. Like DSM, the emphasis is on EIA’s technical role, but acknowledges the political dimensions of the decisions. 3.3

Marine Geoengineering

Regulation of marine geoengineering – large-scale interventions in the marine environment intended to counteract climate change either by increasing uptake of carbon dioxide or by reflecting sunlight – has taken a more significant position on the international agenda since the mid-2000s.109 The issue was first taken up by the CBD COP, in a series of non-binding reso Similar approaches include CCAMLR in the adoption of Conservation Measure 21-01 (2019) on new fisheries and Conservation Measure 21-02 (2019) on exploratory fisheries. 103 FAO, Deep-sea Fisheries Guidelines (n 96) para. 17 (‘Significant adverse impacts are those that compromise ecosystem integrity (ie ecosystem structure or function) in a manner that: (i) impairs the ability of affected populations to replace themselves; (ii) degrades the long-term natural productivity of habitats; or (iii) causes, on more than a temporary basis, significant loss of species richness, habitat or community types. Impacts should be evaluated individually, in combination and cumulatively’). 104 SPRFMO, Conservation and Management Measure for the Management of Bottom Fishing in the SPRFMO Convention Area, CMM 03-2021, 2021; SPRFMO, Conservation and Management Measure for the Management of New and Exploratory Fishers in the SPRFMO Convention Area, CMM 13-2021, 2021. 105 SPRFMO, Bottom Fisheries Impact Assessment Standard, 2019 . 106 SPRFMO, CMM 03-2021 (n 104) para. 22. 107 SPRFMO, Bottom Fisheries (n 105) 13. 108 SPRFMO, CMM 03-2021 (n 104) para. 23. 109 For an overview, see Jeffrey McGee, Kerryn Brent and Wil Burns, ‘Geoengineering the Oceans: An Emerging Frontier in International Climate Change Governance’ (2018) 10(1) Australian Journal of Maritime and Ocean Affairs 67. 102

444  Research handbook on international marine environmental law lutions restricting climate geoengineering activities.110 The issue was subsequently addressed by the Contracting Parties to the London Convention and London Protocol (LC/LP), through several resolutions,111 and ultimately resulting in an amendment to the London Protocol (not yet in force).112 The regulatory process implemented through the amendment prohibits listed marine geoengineering activities, unless the activity constitutes ‘legitimate scientific research’ and is granted a permit in accordance with the requirements of the LP, which include a prior environment assessment.113 Notwithstanding that the assessment process occurs at a State level, the LC/LP amendment provides a high level of prescriptive detail. The report must look at the activity, its location, economic factors, and predicted environmental impacts, including transboundary impacts, which are then summarised in an ‘Impact Hypothesis’ statement. The report must conclude with a recommendation for a decision on the proposed project. The final decision must consider whether the report is satisfactorily completed, including whether consultation requirements were fulfilled, and be accompanied by a comprehensive description of risk management mechanisms, monitoring programmes and conditions for approval to minimise harm and maximise benefits.114 The requirement for risk management reflects the experimental nature of the scientific research, which requires the application of the precautionary approach. Where the knowledge gaps are such that effects cannot be determined, the activity cannot be considered further – a highly precautionary approach.115 The amendment further requires consultation where the proposed activity may affect the environment of another State or ABNJ.116 In this regard, Annex 5 notes that ‘relevant regional intergovernmental agreements and arrangements should be identified and notified and a plan should be developed for ongoing consultation on the potential impacts’.117 The suggestion here is that international organisations can represent the collective interests of their members in reviewing and commenting on individual assessments. This is a novel role for international organisations, raising questions respecting the capacities and mandates of international organisations to act as commenting agencies. The envisaged consultation processes are also contemplated to include ‘all relevant stakeholders nationally or internationally’.118 It is left to the discretion of the proponent and authorising State to identify stakeholders and to determine the timing and mode of stakeholder participation. However, consultation should occur ‘during the assessment process’, indicating that notification of the results of an EIA once completed is not sufficient. Parties are encour CBD COP, Decision X/33. Biodiversity and Climate Change, UNEP/CBD/COP/DEC/X/33, 29 October 2010; CBD COP, Decision XI/20. Climate-Related Geoengineering, UNEP/CBD/COP/DEC/ XI/20, 5 December 2012. 111 International Maritime Organization (IMO), Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, LC 30/16, 31 October 2008, Annex 6; IMO, Resolution LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering Activities, 18 October 2013, preamble, which reaffirms that LC-LP.1(2008) applies to Contracting Parties, pending the entry into force of the amendments in Resolution LP.4(8). 112 IMO, Resolution LP.4(8) (n 111). 113 Ibid, Annex 5. 114 Ibid, Annex 5, s. 26. 115 Ibid, Annex 5, s. 27. 116 Ibid, Annex 5, ss 10-11. 117 Ibid, Annex 5, s. 10. 118 Ibid, Annex 5, s. 11. 110

Implementing environmental impact assessment in areas beyond national jurisdiction  445 aged to seek independent expert advice, such as peer reviews, particularly in instances involving the interests of other States.119 The bodies of the LC/LP itself are not anticipated to be directly involved, although the outcomes of the assessment and documentation of any permit are to be reported to the LC/LP Secretariat, who shall make the documents publicly available and should notify the other Contracting Parties.120 The assessment process, unlike many international EIA requirements, goes beyond procedural requirements, by indicating the conditions under which a permit can be issued, including consultation requirements, and the requirement for proponents to demonstrate that ‘pollution of the marine environment from the proposed activity is, as far as practicable, prevented or reduced to a minimum, therefore not contrary to the aims of the Protocol’.121 This requirement directly implements the harm prevention principle by requiring that proponents and authorising States act with due diligence in preventing marine pollution.122 The amended LP only allows the permitting of an ocean fertilisation activity that constitutes ‘legitimate scientific research’.123 The legitimacy of the research is addressed by further substantive requirements for the research itself, including that the activity is designed to add to scientific knowledge and cannot be achieved through other methods (not involving outdoor marine field experiments); the methodology is appropriate and applies best available scientific knowledge; the activity is subject to scientific peer review at appropriate stages of the assessment process; there should be no financial gain from the experiment; and the experiment is properly financed.124 By including these other requirements, the amendments go well beyond the scope of traditional EIA by ensuring that the research is conducted in a manner that engenders trust in the scientific process and outcomes – key considerations in an area that is as fraught with controversy as marine geoengineering. 3.4

Conservation and Sustainable Use of Marine Biodiversity

The unfolding process for the negotiation of an international legally binding instrument on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ Agreement) presents a different set of challenges for EIA implementation. First, the negotiations are situated in a context that includes not only the presence of an existing obligation to conduct EIAs in Article 206 of the LOSC but also a similar obligation in Article 14 of the CBD, which applies to processes and activities in ABNJ.125 While the baseline obligations from each treaty address harm prevention, there is a broader tension between the more communitarian approach reflected in the CBD, preferred by many developing States, and the

Ibid, Annex 5, s. 12. Ibid, Annex 5, s. 30. 121 Ibid, Annex 5, s. 26.7. 122 Ibid, Annex 5, s. 20. 123 Ibid, Annex 4, s. 1.3. 124 Ibid, Annex 5, s. 8. 125 The EIA commitments under Article 14 are supported by detailed voluntary guideline documents endorsed by the CBD COP, which are intended to help States develop biodiversity-inclusive EIA processes. See CBD COP, Decision VIII/28. Impact Assessment: Voluntary Guidelines on Biodiversity-Inclusive Impact Assessment, UNEP/CBD/COP/DEC/VIII/28, 15 June 2006, Annex. 119 120

446  Research handbook on international marine environmental law LOSC’s more State-centric approach.126 Second, unlike sectoral approaches, EIA provisions in the BBNJ Agreement are intended to be of general application, giving rise to questions respecting the scope of application and how these EIA processes will relate to existing sectoral requirements. Parties to the negotiations have yet to agree whether EIA procedures ought to only cover activities in ABNJ or to include a wider obligation to assess all activities with impacts in ABNJ regardless of where the activity is undertaken. The issue is not whether there is an obligation to conduct an EIA for activities conducted outside ABNJ, since Article 206 is inclusive of all activities with potential significant impacts on the marine environment.127 Instead, the issue is which activities will be subject to international oversight through the BBNJ Agreement’s EIA process. While a more inclusive approach better reflects the harm prevention principle due to the connectivity and far-reaching linkages of marine and other global ecological systems, the scope of the wider obligation would include numerous activities that are not currently subject to international EIA processes. Because the EIA commitment in the BBNJ Agreement is of general application, there is a need for a screening mechanism that allows States to determine whether an activity ought to be subject to an EIA. The parties may continue to use the threshold contained in Article 206; however, some States seek a lower threshold to trigger an EIA for proposed activities that have ‘more than a minor or transitory effect’.128 The latter borrows from the approach under the Madrid Protocol to the Antarctic Treaty,129 and is thought to be clearer and more precautionary, thereby subjecting a greater number of activities to international EIA. Other screening mechanisms being considered include the use of a list of activities and/or conditions, such as proximity to areas of environmental significance or vulnerability,130 that would automatically trigger an EIA. This approach would remove State discretion in determining whether to conduct an EIA. The degree and form of international oversight is also an issue for EIAs at the BBNJ negotiations. The process is understood to be State-driven,131 and scoping processes are contemplated to be largely at the discretion of the responsible State, with public or third-party consultation being optional. The draft notification provision provides that State Parties ought to ensure ‘early notification’, but it does not require any consultation on the scope of the EIA conducted.132 This approach is out of step with domestic EIA processes, where consultation at the scoping stage is the norm, and may be particularly important in ABNJ contexts where study boundaries and appropriate methodologies are subject to greater amounts of uncertainty. Unlike sectoral approaches, which include highly prescribed requirements for the contents of the EIA, the contents suggested for the BBNJ Agreement are more generic, again providing

126 Ellen Hey, ‘Regime Interaction and Common Interests in Regulating Human Activities in Areas Beyond National Jurisdiction’ in Seline Trevisanut, Nikolaos Giannopoulos and Rozemarijn Roland Holst (eds), Regime Interaction in Ocean Governance: Problems, Theories and Methods (Brill 2020) 85. 127 Draft BBNJ Agreement (n 19) Art. 22. 128 Ibid, Art. 24. 129 Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 3 (Madrid Protocol) Art. 8. 130 Draft BBNJ Agreement (n 19) Art. 29. 131 Ibid, Art. 22. 132 Ibid, Art. 34.

Implementing environmental impact assessment in areas beyond national jurisdiction  447 significant discretion to the originating State.133 One possibility to remedy this would be the development of further guidance that draws from growing technical expertise on conducting EIAs in the ABNJ context. The assessment of alternatives, including a ‘no-action’ alternative, is identified as a potential, but not necessarily required, approach.134 The ‘no-action’ alternative provides a basis for assessing the need for an activity. Given the difficulties, discussed above, in establishing the significance of harm, assessing alternatives allows the identification of potentially less harmful ways of carrying out an undertaking. For public participation, key issues once again include stakeholder identification and the degree to which an EIA is required to address public comments. Parties recognise that there may be a need to develop procedures for consultation at the international level that could involve global, regional, subregional or sectoral bodies, although this remains contested.135 Modalities of international consultation are complicated by the nature of many of the bodies in question, such as the ISA or RFMOs, which are set up as treaty organisations with limited capacities or mandates to act as commenting agencies on State EIAs. As environmental governance of ABNJ becomes more internationalised, the need for consultation between international bodies takes on greater importance. An existing example of structured cooperation on EIA between international bodies is found in a Memorandum of Understanding (MOU) between the North East Atlantic Fisheries Commission and the OSPAR Commission.136 The role of international bodies carries over to the role of the treaty bodies created under the BBNJ Agreement. One proposal would be for the Science and Technical Body created under the BBNJ Agreement to have an oversight role in reviewing EIAs.137 The nature of the role is unclear and potentially involves conferring the final decision onto another body, such as a COP. This would be an extraordinary role akin to the powers exercised by the ISA, although the current context is quite different given that many high seas activities are considered as part of high seas freedoms, in contrast to the common heritage principle. The other precedent for a limited form of international oversight is under the Madrid Protocol, where the originating State retains discretion to approve an activity but not until the Consultative Meeting has had an opportunity to consider the draft EIA with advice from the Committee for Environmental Protection.138 Another question is whether the obligation to assess ought to include the assessment of plans and programmes through strategic environmental assessment (SEA).139 SEA is not anticipated in the LOSC, since Article 206 is restricted to ‘planned activities’, but is recognised in Article 14 of the CBD on the assessment of ‘programmes and policies’.140 States that support the inclusion of SEA in the BBNJ Agreement note that SEAs can inform high-level decisions and integrate environmental considerations at earlier stages of decision-making

Ibid, Art. 35. Ibid, Art. (2)(e). 135 Ibid, Art. 34. 136 OSPAR Commission/NEAFC, Collective Arrangement between Competent International Organisations on Cooperation and Coordination Regarding Selected Areas in Areas beyond National Jurisdiction in the North‐East Atlantic, OSPAR Agreement 2014-09, 2014 updated 2018, para. 6 (providing for cooperation on EIAs, where appropriate). 137 Draft BBNJ Agreement (n 19) Art. 37. 138 Madrid Protocol, Art. 12(1)(d) and Annex 1, Art. 3. 139 Draft BBNJ Agreement (n 19) Art. 28. 140 CBD, Art. 14(1)(b). 133 134

448  Research handbook on international marine environmental law processes. SEA may be better suited to address indirect and cumulative impacts, and when tiered with EIAs, may provide additional data and direction for project-level EIAs.141 Here, SEA can contribute to both the epistemic and normative challenges faced by EIA, and thus has a direct role in meeting due diligence obligations and enhancing cooperation at earlier stages of decision-making.

4.

CONCLUSION: TAKING STOCK OF EIA IN ABNJ

This chapter has been framed as an examination of the epistemic, institutional and normative conditions that are sources of implementation challenges for EIA. These conditions do not operate independently of one another, and EIA processes are designed to account for this interplay. EIA procedures acknowledge that decisions respecting planned activities can rarely be resolved by reference to scientific and normative criteria alone, and therefore provide for a measure of accountability through transparency and consultation. In light of the uncertain epistemic conditions in ABNJ, a key point of interest is how institutional arrangements can influence the quality of interactions with respect to EIAs and decisions regarding planned activities. The role of international institutions is undeniably important to the way in which EIAs are conducted in ABNJ. In the case of DSM, the internationalisation of EIA is a function of the role of the ISA, which has a direct obligation to protect the marine environment. Similarly, in the case of fisheries, EIA processes were significantly enabled by the presence of RFMOs, and the collective oversight of bottom and new and exploratory fisheries. In both these cases, it is not simply the presence of the institution itself, but the location of decision-making authority at the international level. The role of international institutions in the marine geoengineering and BBNJ contexts, where key decisions subject to EIAs are made by domestic governments, is likely to be quite different. The LP sets the framework for assessments, but the Meeting of the Contracting Parties and its subsidiary bodies play almost no role in their implementation. The debate in the BBNJ negotiations is complicated by the reluctance to imbue an institution with plenary authority to authorise activities in ABNJ. The different approaches are not a binary choice; there is some potential for bodies under the BBNJ Agreement to review EIAs, or to act as a conduit for notification, along the lines of the role of the treaty bodies under the Madrid Protocol.142 International institutions also impact how EIA processes implement the duty to cooperate in the context of EIA. Where cooperation is mediated by institutions, the duty to consult at a State-to-State level will be discharged through the institutional structures of the regime. International institutions will also have path-dependent impacts that reflect the particular history and normative commitments of the regime. For example, the selective treatment of fisheries EIA, which does not require assessment of established fisheries, reflects the vested interests of States in limiting scrutiny over an ongoing activity. A second example is the requirement for assessments for marine geoengineering activities to include information that See Doelle and Sander (n 30). Madrid Protocol; see also Alan Hemmings and Lorne Kriwoken, ‘High Level Antarctic EIA under the Madrid Protocol: State Practice and the Effectiveness of the Comprehensive Environmental Evaluation Process’ (2010) 10(3) International Environmental Agreements 187. 141 142

Implementing environmental impact assessment in areas beyond national jurisdiction  449 relates to the legitimacy of the scientific research subject to assessment. These requirements reflect the non-binding prohibitions of marine geoengineering issued by the CBD COP, and the broader anxiety surrounding the motivations of some private actors. The competing framings of the BBNJ process as one rooted in the sovereignty of States to engage in high seas activities or the common obligations to protect marine biodiversity appear likely to influence the form of EIA in that setting. Existing structural arrangements will significantly influence the way in which EIAs are conducted. In the case of the ISA, the oversight and approval of EIAs reflect the technocratic nature of the LTC and the deference to LTC decisions by the political bodies of the ISA. Thus, the institutional structure may limit ability for political oversight, with implications for legitimacy. The importance of cross-institutional consultation at the international level has been acknowledged, but it has, to date, gone unaddressed. EIA has been identified as an important element of integrated ocean management, which would require greater cross-sectoral cooperation,143 but at present there are no existing processes for this type of cooperation among ABNJ institutions. As ocean governance internationalises, with greater decision-making power held by institutions, and as ocean activities increase their footprint, there will be increased demand for coordination. The current sectoral approach to governance has resulted in EIA processes that will require further cooperative steps to transcend their own boundaries.144 The BBNJ process is not likely to solve the coordination problem, although there are indications of an intent that the Scientific and Technical Body could contribute to inter-institutional coordination.145 One area where the approaches to EIA follow a quite similar path is in connection with public participation. Adopting an inclusive approach to stakeholder involvement provides opportunities for comment on environmental assessment studies. In the fisheries and BBNJ context, this inclusiveness extends to greater recognition of Indigenous rights. Despite this openness, however, the ability of participants to influence outcomes may still be limited. For example, the rights of participation focus on notice and comment type procedures but not on a discursive approach, where proponents and decision-makers are required to respond to concerns raised and justify their approaches. Existing approaches to public participation indicate an understanding of EIA as playing a predominantly technical role, where stakeholders may contribute to the technical and scientific understanding of the project, but downplay the more overtly political role of EIA as a site for deliberation and debate. While we have emphasised the challenges for EIA in ABNJ associated with scientific uncertainty, the knowledge environment in ABNJ is not static, and the assessment of proposed activities is likely to result in improved understandings of the environment. Such is the case for exploratory projects in the DSM context, where steps are also being taken to ensure that scientific knowledge developed through EIA processes is made publicly available.146 The

143 Karen Scott, ‘Integrated Oceans Management: A New Frontier in Marine Environmental Protection’ in Donald Rothwell, Alex Oude Elferink, Karen Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 463; Jan-Gunnar Winther and others, ‘Integrated Ocean Management for a Sustainable Ocean Economy’ (2020) 4(11) Nature Ecology and Evolution 1451. 144 See James Harrison, Saving Oceans Through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017) chapter 10. 145 Draft BBNJ Agreement (n 19) Art. 23. 146 This remains a work in progress, see Ardron, Lily and Jaeckel, Chapter 16 in this volume.

450  Research handbook on international marine environmental law BBNJ negotiations also focus on developing a clearinghouse mechanism that may also be used to disseminate scientific information.147 In the same vein, the normative environment in which EIAs are conducted will also develop in response to changes in the broader legal frameworks. The more interesting, albeit speculative, question is the extent to which EIA processes can contribute to this normative development. Can EIA in ABNJ be a transformational influence contributing to shifts in State interests that better reflect the ecological demands of the environment? By requiring States to consider their activities in light of scientific information on their impacts, States must reflect upon and justify their decisions in light of shared normative commitments. The degree to which States are allowed to pay lip service to these commitments or genuinely engage other States will be a function of the political characteristics of the EIA processes. On this point, our examination of EIA processes in ABNJ is more equivocal. There is a tendency in EIA processes in ABNJ to emphasise their technical nature, with limited opportunities to require decision-makers to overtly respond to concerns or to be held accountable for decisions that appear to run counter to shared norms. Nevertheless, the increased attention on open and broadly inclusive decision-making provides democratic openings for scientifically informed and normatively responsive debates over planned activities.

Draft BBNJ Agreement (n 19) Art. 51.

147

20. Enhancing marine protected areas and marine spatial planning through an ecosystem approach Vasco Becker-Weinberg

1. INTRODUCTION The legal framework applicable to the protection and preservation of the marine environment brings together the law of the sea and international environmental law. However, in contrast to the law of the sea and the overarching normative framework articulated in the United Nations Convention on the Law of the Sea (LOSC),1 no such framework exists in international environmental law, despite calls for the adoption of ‘a comprehensive and unifying international instrument that gathers all the principles of environmental law’.2 Rather, existing international environmental law is a combination of fragmented international legal instruments and general principles and rules, included in both binding and non-binding instruments. There is also sparse customary international environmental law, although certain rules and principles have, with time, become widely accepted and recognised by international courts and tribunals as part of the legal corpus that forms customary international environmental law. Although not specifically mentioned in the LOSC, or in a single international legal regime for that matter, marine protected areas (MPAs) and marine spatial planning (MSP) are two distinctive albeit complementary area-based management tools (ABMTs), which are essential for the protection and preservation of the marine environment. While there is currently no generally accepted legal definition of MPA or MSP, one can briefly describe the designation of an MPA as creating a legal regime of protection of a specific maritime area, and MSP as consisting of a framework applicable to the spatial and temporal organisation of uses and activities through the mechanism of planning instruments. MPAs and MSP should be implemented through legally binding regimes that ensure coordinated measures based on an ecosystem approach, according to which an ecosystem is managed as a whole and in an integrated manner.3 However, the use of a sectoral approach 1 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC). 2 UN, Report of the Secretary-General, Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment, UN Doc A/73/419, 30 November 2018, 2. 3 Secretariat of the Convention on Biological Diversity, The Ecosystem Approach (CBD Guidelines) (CBD 2004) para. 1 (‘The ecosystem approach is a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way. [...] An ecosystem approach is based on the application of appropriate scientific methodologies focused on levels of biological organization, which encompass the essential structure, processes, functions and interactions among organisms and their environment. It recognizes that humans, with their cultural diversity, are an integral component of many ecosystems.’).

451

452  Research handbook on international marine environmental law in planning and management of the maritime space still prevails, despite increasing efforts to move management approaches away from a focus on sectoral use towards inclusion of diverse links between ecological, social, economic and cultural aspects.4 The still predominant sectoral approach is partly the outcome of limited and inconsistent State practice in ensuring the adoption and effectiveness of MPAs and MSP. However, it also results from the fragmentation of international law and institutional fragmentation with respect to the protection and preservation of the marine environment, which contrasts with the need for integrated management of ecosystems and the adoption of a holistic approach with respect to ocean governance. This lack of consistency is also true in the context of regional and multilateral efforts, particularly with respect to the interaction between areas within national jurisdiction and areas beyond national jurisdiction (ABNJ). This is notwithstanding international efforts currently underway to adopt a new legally binding implementing agreement to the LOSC on the conservation and sustainable use of marine biodiversity in ABNJ.5 There are, however, important efforts that provide valuable examples of the application of ecosystem-based governance, such as the Convention for the Protection of Natural Resources and Environment of the South Pacific Region6 and the non-legally binding and political Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea.7 This absence of regime focus, and the shortcomings in national, regional and multilateral models, do not, however, reduce the importance of MPAs and MSP with respect to the protection and preservation of the marine environment. The question is simply whether the legal perspective embedded in the rules underlying the two concepts, namely those concerning spatial and functional jurisdiction and the protection and preservation of the marine environment, is fit for purpose or whether it has, instead, restricted the possibilities of these tools, namely by lack of effective adoption of the ecosystem approach. This chapter examines the mechanisms of MSP and MPAs and provides an assessment of the use of these two ABMTs against the background of existing legal rules. From the outset, it is clear that State practice at national, regional and multilateral levels has not been guided by the effective adoption of an ecosystem approach, thus preventing a more efficient use of MPAs and MSP.

UN, The Second World Ocean Assessment, volume II (UN 2021), 11. UNGA, Development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. UN Doc A/RES/69/292, 19 June 2015. 6 Convention for the Protection of Natural Resources and Environment of the South Pacific Region (adopted 24 November 1986, entered into force 22 August 1990) (Noumea Convention) , Arts 2(a) and 14. States Parties can establish protected areas in the Convention Area, ie the EEZs of States Parties and the high seas enclosed from all sides by the latter, without prejudice of the rights of other Parties or third States under international law. 7 Sargasso Sea Commission, Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea, 11 March 2014 , Annex I identifies the geographical area of collaboration that seeks to conserve the Sargasso Sea high seas ecosystem, excluding the EEZs of coastal States. 4 5

Enhancing marine protected areas through an ecosystem approach  453

2.

MARINE SPATIAL PLANNING

Marine spatial planning (MSP) refers to ‘an area-based management framework that addresses multiple management objectives. It is not a single tool, but rather an approach or framework to provide a means for improving decision-making as it relates to the use of marine resources and space’.8 The origins of the concept of MSP are well documented.9 Early academic studies underlined the importance of ‘coastal zone management’ and ‘sea use planning’ as ‘administrative efforts to organize, integrate, and co-ordinate the planning and management activities of various agencies with ocean-related responsibilities’.10 In particular, these studies emphasised how the two concepts ‘envisage a highly sophisticated cross-sectoral approach to zoning: a system of interlocking zones, each designed to serve a specific unisectoral purpose but also designed within a larger framework of cross-sectoral planning and management’.11 The question was also rightfully raised whether ‘coastal zone management’ and ‘sea use planning’ could be used at the international level between two or more neighbouring States, or whether they were limited to application at the national level.12 In 2009, the United Nations Educational, Scientific and Cultural Organization (UNESCO) recognised that the governance of marine space should be integrated and not merely sectoral.13 To that end, UNESCO underlined the importance of rational organisation of the use of marine space and of the interactions between its uses. In order to achieve a balance regarding the development of such uses, UNESCO considered it necessary to protect marine ecosystems and to achieve social and economic objectives in a transparent manner.14 UNESCO identified MSP as a public process of analysing and allocating the spatial and temporal distribution of human activities, in order to simultaneously pursue ecological, economic and social objectives. UNESCO expressly referred to the need for the adoption of governance models that included, on the one hand, planning measures that allowed for sustainable development in time and space of different uses and activities, and, on the other hand, implementation measures, control, monitoring, evaluation, research, stakeholder participation and identification of financial resources.15

8 Secretariat of the Convention on Biological Diversity and the Scientific and Technical Advisory Panel, Marine Spatial Planning in the Context of the Convention on Biological Diversity: A Study carried out in Response to CBD COP 10 Decision X/29 (Technical Series No. 68) (CBD 2012) 11. 9 Charles Ehler, Jacek Zaucha and Kira Gee, ‘Maritime/Marine Spatial Planning at the Interface of Research and Practice’ in Jacek Zaucha and Kira Gee (eds), Maritime Spatial Planning: Past, Present and Future (Palgrave Macmillan 2019) 5-7. 10 Douglas M Johnston, Theory and History of Ocean Boundary-Making (McGill-Queen’s University Press 1988) 57-58. 11 Ibid. 12 Ibid. 13 See, UNESCO, ‘Marine Spatial Planning’ . See also, Charles Ehler and Fanny Douvere, Marine Spatial Planning: A Step-by-Step Approach towards Ecosystem-based Management (IOC Manuals and Guides n° 53, ICAM Dossier n° 6), (UNESCO 2009) 19–24. 14 Ibid. 15 Ibid.

454  Research handbook on international marine environmental law Within the framework of the Convention on Biological Diversity (CBD),16 the CBD Secretariat emphasised the importance of implementing area-based management capable of addressing multiple management objectives. In particular, building on existing tools and approaches, such as Integrated Coastal Zone Management, and the policies that support them, including efforts to establish MPAs,17 the CBD Secretariat stressed the relevance of MSP to improve decision-making based on principles of the ecosystem approach and ecosystem-based management.18 Despite the absence of any reference to MSP, the LOSC provides rules that are relevant to its implementation.19 This is foremost the case in the balance achieved in the LOSC between, on the one hand, the exercise of rights of sovereignty and jurisdiction by coastal States in their respective adjacent maritime areas and concerning the natural resources found therein, such as fish stocks, and, on the other hand, the rights and freedoms (and obligations) of all States in those areas, including the freedom of navigation in the exclusive economic zone (EEZ). MSP policies must be consistent with these rules. The LOSC also underlines the importance of both global and regional cooperation regarding the protection and preservation of the marine environment,20 which is supported by specific provisions in the Convention, such as those addressing pollution from specific sources and the adoption of internationally agreed rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment. This duty to cooperate applies to all maritime spaces whether within or beyond national jurisdiction and constitutes a common goal in ocean governance, including with respect to MSP policies. In addition, other legal instruments relating to the law of the sea also provide substantive principles relevant to the implementation of MSP policies and to their effectiveness, such as the precautionary principle and sustainable development.21 While the resource-based and sectoral perspectives were predominant during the Third United Nations Conference on the

16 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79. 17 See n 8. 18 Ibid, (‘MSP is seen as a new form of public process that collects, analyses, and identifies where human activities occur, and sets into motion planning of future activities in order to achieve agreed upon ecological, economic and social goals. Key features of successful MSP programmes include consideration of multiple scales; a long-term perspective; recognition that humans are an integral part of ecosystems; an adaptive management perspective; and concern for sustaining ecosystem goods and services […]. The ecosystem approach (EA) and ecosystem-based management (EBM) are principles that underlie most MSP in coastal and marine realms. MSP is forward-looking and informed by predefined goals, objectives and policies. In many countries, it has been notably driven by the intensifying and increasing uses and competition in the ocean space, in particular offshore energy (both extractive and renewable.’). 19 These include the general obligation for all States to protect and preserve the marine environment (LOSC, Art. 192), including in the high seas (LOSC, Arts 116-119), to cooperate regionally and globally (LOSC, Art. 197), and to prevent environmental harm (LOSC, Arts 194(2) and 206). States are also bound to protect and preserve rare or fragile ecosystems and habitat of depleted, threatened or endangered species and other forms of marine life (LOSC, Art. 194(5)). 20 LOSC, Art. 197. 21 For discussions see, Daud Hassan and Niko Soininen, ‘United Nations Convention on the Law of the Sea as a Framework for Marine Spatial Planning’ in Daud Hassan, Tuomas Kuokkanen, Niko Soininen (eds), Transboundary Marine Spatial Planning and International Law (Routledge 2015) 69.

Enhancing marine protected areas through an ecosystem approach  455 Law of the Sea (UNCLOS III),22 activities at sea are no longer limited to considerations of resource development or merely dealing with the consequences of offshore activities. This paradigm has changed since UNCLOS III. Furthermore, the law of the sea has also evolved since then, including, for example, the incorporation of the basic requirements of an ecosystem approach and, as previously mentioned, the precautionary principle, respectively, in Articles 5 and 6 of the United Nations Fish Stocks Agreement (FSA),23 and the notion of sustainability.24 Competing and conflicting uses in maritime space have also increased in the past four decades, adding considerable burden to the marine environment and giving rise to increasing demands for better and more efficient ocean governance models. Indeed, MSP is currently being discussed within the negotiations to adopt a new legally binding implementing agreement of the LOSC on the conservation and sustainable use of marine biodiversity in ABNJ.25 Consistent with the ecosystem approach,26 MSP must be implemented taking into consideration the overall interests of sustainable ocean governance.27 The very concept of State jurisdiction based solely on sovereignty or functional jurisdiction,28 whereby States generally operate as either flag, coastal or port States, is one that must be reconsidered in light of new challenges facing the law of the sea and ultimately the marine environment. These challenges can only be efficiently addressed by the effective adoption of an ecosystem-approach. MSP is a useful framework to safeguard a healthy ocean and resilient marine ecosystems. It is a broad framework consisting of different tools (such as MPAs) that can play different roles in managing maritime space, from solving conflicts between different uses and activities, to ensuring transboundary cooperation and complementarity with and between different ABMTs. MSP is, therefore, much more than a mere administrative decision-making process of allocating maritime space.

Yoshifumi Tanaka, A Dual Approach to Ocean Governance (Ashgate 2008) 6-7; Yoshifumi Tanaka, ‘Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a Dual Approach in International Law of the Sea’ (2004) 19(4) International Journal of Marine and Coastal Law 483. See also, Jean-Pierre Lévy, ‘Ocean Management and a New Law of the Sea’ (1973) 1 Ocean Management 129; Edward Wenk, ‘International institutions for rational management of ocean space’ (1973) 1 Ocean Management 171; Philip C Jessup, ‘L’exploitation des Richesses de la Mer’ (1929) 29 RCADI 508, 508. 23 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 (FSA) (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3. See also, United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107, Art. 3. 24 See, Yoshifumi Tanaka, ‘Basic Principles of International Marine Environmental Law’, Chapter 4 in this volume. On the precautionary principle and the concept and limits of sustainable development see also, Simon Marr, The Precautionary Principle in the Law of the Sea (Martinus Nijhoff 2003) 5-7. 25 See Vasco Becker-Weinberg, ‘Preliminary Thoughts on Marine Spatial Planning in Areas Beyond National Jurisdiction’ (2017) 32 The International Journal of Marine and Coastal Law 570. 26 Lawrence Juda, International Law and Ocean Use Management: The Evolution of Ocean Governance (Routledge 1996) 285; Tavis Potts, ‘Marine Spatial Planning and Various Uses and Interests Relating to the Marine Environment’ in Daud Hassan, Tuomas Kuokkanen and Niko Soininen (eds), Transboundary Marine Spatial Planning and International Law (Routledge 2015) 57. 27 Niko Soininen and Daud Hassan, ‘Marine Spatial Planning as an Instrument of Sustainable Ocean Governance’ in Daud Hassan, Tuomas Kuokkanen and Niko Soininen (eds), Transboundary Marine Spatial Planning and International Law (Routledge 2015). 28 Maria Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff 2007) 33. 22

456  Research handbook on international marine environmental law With respect to State practice, there is no one size fits all when it comes to MSP. The foremost example of implementing MSP is that of the European Union (EU). The EU does not, itself, have competence to adopt and enforce ABMTs. However, through its Marine Spatial Planning Directive (MSP Directive),29 the EU has sought to ensure that its Member States adopt legislation on MSP and maritime spatial plans capable of safeguarding a significant level of coherence and transboundary cooperation.30 Indeed, at the time of approval of the MSP Directive, only a handful of Member States had legislation on MSP and even fewer had approved and implemented maritime spatial plans. The MSP Directive defines MSP as ‘a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives’.31 It seeks to provide regional coordination on maritime planning and management and to tackle cross-border effects caused by increasing development of offshore and competing economic activities. The transposition of the MSP Directive and the implementation of robust maritime spatial plans is also designed to provide Member States with a valuable tool to carry out other EU policies, such as the Integrated Maritime Policy32 and the 2008 Marine Strategy Framework Directive (MSFD).33 Regarding the latter, this directive established the regional framework within which Member States are to take the necessary measures to achieve or maintain ‘good environmental status’ in the marine environment by the year 2020 at the latest.34 Furthermore, with the MSFD, the ecosystem-based approach became a legally-binding and operational principle for managing the EU’s entire marine environment.35 The ambitious goals put forward by these policies and directives have contributed significantly to enhancing maritime cooperation and coordination on maritime affairs and related policies, while at the same time reinforcing the capacity of the EU and its Member

29 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning [2014] OJ L 257/135 (MSP Directive). 30 The protection and preservation of the marine environment falls within the shared competence between the EU and the Member States (Treaty on the Functioning of the European Union [2012] OJ C 326/47, Art. 4). A directive is legally binding as to the result to be achieved, but each Member State will have the choice of form and methods. Also, while a regulation has general application and is binding in its entirety and directly applicable in all Member States, a directive must be transposed into national law (cf ibid Art. 288). 31 MSP Directive (n 29) Art. 3(2). 32 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – An Integrated Maritime Policy for the European Union COM (2007) 574 final. 33 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) [2008] OJ L 164/19 (MSFD). 34 Ibid, Arts 1(1) and 3(5). The report on the first implementation cycle of the MSFD noted that although the EU has a holistic and comprehensive marine policy in place that puts into practice the ecosystem-based approach to manage human activities in Europe’s seas, progress in reaching good environmental status has not been fast enough to cover all MSFD descriptors in all EU waters by 2020. See, Report from the Commission to the European Parliament and the Council on the implementation of the Marine Strategy Framework Directive (Directive 2008/56/EC), COM(2020) 259 final, 25 June 2020, 29. 35 CEU, Press Release, 2973rd Council Meeting, General Affairs and International Relations, General Affairs, 15913/09 (Presse 328), 16 November 2009.

Enhancing marine protected areas through an ecosystem approach  457 States to address the challenges facing ocean governance. This regional effort notwithstanding, and although legislation on MSP is not in itself a prerequisite for efficiency, the number of Member States of the EU that have implemented MSP legislation and developed maritime spatial plans thus far is still low, despite the fact that Member States were required to develop their plans by 2021.36 Moreover, the matter of transboundary cooperation and coordination remains the Achilles’ heel of MSP,37 as with other EU maritime policies, including the MSFD.38 Most importantly, the existing generation of marine spatial plans adopted by Member States of the EU still adopts a predominantly spatial and sectoral approach. There is no tangible evidence that MSP is being used as a tool to ensure interconnectivity and legal coherence between different national MSP frameworks, despite the objective set out in the MSP Directive that Member States, when establishing and implementing maritime spatial planning, shall apply an ecosystem-based approach.39 Therefore, the argument can be made that the lack of legal recognition or normative dimension and centrality of the ecosystem-based approach for the design and implementation of MSP legislation has hindered the potential and effectiveness of this tool. The mere enunciation of the ecosystem approach as a guiding principle or objective of MSP does not ensure that the respective planning instruments will adequately and effectively incorporate the ecosystem approach. This is also true regarding transboundary cooperation, seeing that there is no express connection in the MSP Directive between transboundary cooperation and the ecosystem approach. In short, based on the EU experience, the proclamation of the ecosystem approach does not ensure its effective implementation, or that the protection and preservation of the marine environment will prevail above all other interests.

36 Only eight EU Member States have completed and implemented national marine spatial plans. See, European MSP Platform, ‘MSP Processes Country Overview–November 2021’. In terms of comparison, only 20 States in the world have implemented MSP and it is expected that by 2030, one third of the surface area of the world’s EEZ will have government-approved marine spatial plans. See, Charles Ehler, ‘The World-wide Status and Trends of MSP’ . 37 See MSP Directive (n 29) Arts 11 and 12. 38 A report from the EU Commission found that there is overall lack of cooperation between Member States regarding the adoption of measures necessary to reach or maintain a good environmental status by 2020: ‘Member States have made considerable efforts to develop their programmes of measures. They have integrated different national, EU and international policies and processes for the sole purpose of protecting the marine environment. Most Member States have also established new measures to specifically target pressures on the marine environment that would otherwise not be covered, thus showing the added value of the Marine Strategy Framework Directive. However, for certain pressures of transboundary nature, the lack of regional or EU coordination potentially leads to a fragmented and ineffective approach to tackling the pressure’. See, Report from the Commission to the European Parliament and to the Council assessing Member States’ programmes of measures under the Marine Strategy Framework Directive, COM(2018) 562 final, 21. 39 See MSP Directive (n 29) Art. 5(1).

458  Research handbook on international marine environmental law

3.

MARINE PROTECTED AREAS

There is no single universally recognised definition of MPAs under international law although a number of related concepts are variously defined.40 For example, Article 2 of the CBD defines ‘protected area’ as a ‘geographically defined area, which is designated or regulated to achieve specific conservation objectives’.41 Under the umbrella of the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), an MPA corresponds to: 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.42

The United Nations Food and Agriculture Organization, however, defines an MPA under the Responsible Fisheries Guidelines as ‘any marine geographical area that is afforded greater protection than the surrounding waters for biodiversity conservation or fisheries management purposes’.43 According to this definition, a fisheries management area may be considered an

40 For example, the International Union for Conservation of Nature (IUCN) defines MPAs as ‘a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values’ (IUCN, ‘Protected Areas’ ). The United States National and Oceanic Atmospheric Administration recognises IUCN’s definition of protected area. Notwithstanding, according to the Presidential Executive Order 13158 of 26 May 2000, MPAs are defined as ‘[a]ny area of the marine environment that has been reserved by Federal, State, territorial, tribal or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein.’ The World Wide Fund for Nature (WWF) defines MPA as ‘areas designated and effectively managed to protect marine ecosystems, processes, habitats and species, which can contribute to the restoration and replenishment of resources for social, economic and cultural enrichment’ (Emilie Reuchlin-Hugenholtz and Emily McKenzie, Marine protected areas: Smart investments in ocean health (WWF 2015) ). See also, the designation of ‘special areas’ under International Convention for the Prevention of Pollution from Ships (London, 2 November 1973), modified by Protocol of 1978 (in force 2 October 1978) 1340 UNTS 184, Annexes I, II, IV, V and VI. The UNGA Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/CONF.232/2019/6, 27 November 2019 defines an MPA as ‘a geographically defined marine area that is designated and managed to achieve specific [long-term biodiversity] conservation and sustainable use objectives [and that affords higher protection than the surrounding areas]’. 41 CBD, Decision VII/5, Marine and Coastal Biodiversity, UNEP/CBD/BS/COP-MOP/DEC/VII/5, 4 October 2014 considered a ‘marine and coastal protected area’ as ‘an area within or adjacent to the marine environment, together with overlying water and associated flora, fauna, and 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 biodiversity enjoys a higher level of protection that its surrounding’. See also CBD, Marine and Coastal Biodiversity: Review, Further Elaboration and Refinement of the Programme of Work, Report of the Ad Hoc Technical Expert Group on Marine and Coastal Protected Areas, UNEP/CBD/SBSTTA/8/INF/7, 13 February 2003. 42 OSPAR, ‘Marine Protected Areas’ . 43 United Nations Food and Agriculture Organization Fisheries Management 4, Marine Protected Areas and Fisheries, (FAO Technical Guidelines for Responsible Fisheries) (FAO 2011) . EU law also includes important tools that address fisheries

Enhancing marine protected areas through an ecosystem approach  459 MPA, even if it is not created for conservation of that area, but only for conservation and management of particular fish stocks in that area.44 While not necessarily referred to as MPAs, the designation of marine and coastal areas for the purpose of protection and preservation of the marine environment has long been a common practice.45 Initially, protected areas that today would be described as MPAs were established in the territorial sea. With the extension of coastal State jurisdiction over the EEZ, MPAs have been created at greater distances from shore, although still within national jurisdiction. This is also true concerning the extended continental shelf.46 Over the years there have been important regional and multilateral efforts to establish MPAs and other similar concepts. These include, amongst many others, the efforts undertaken by

and their impact on the marine environment, namely the Common Fisheries Policy (Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L 354/22), the Habitats Directive (Council Directive No 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L 206/7) and the Birds Directive (Council Directive No 79/409/EEC of 2 April 1979 on the conservation of wild birds [1979] OJ L 103/1) or the MSFD (n 33). 44 FSA, Art. 5. See also, FAO, International Guidelines for the Management of Deep-sea Fisheries in the High Seas (FAO 2009) which were developed for fisheries exploiting deep-sea fish stocks, in a targeted or incidental manner, in areas beyond national jurisdiction, including fisheries with the potential to have significant adverse impacts on vulnerable marine ecosystems. See also, UNGA, Res 61/105, UN Doc A/RES/61/105, 6 March 2007, which ‘[called] upon States to take action immediately, individually and through regional fisheries management organizations and arrangements, and consistent with the precautionary approach and ecosystem approaches, to sustainably manage fish stocks and protect vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals, from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain’. 45 This is the case, for example, with the identification of wetlands, and world heritage sites. See, Convention on Wetlands of International Importance especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 996 UNTS 245 (Ramsar Convention) and Convention Concerning the Protection of the World Cultural and Natural Heritage (adopted 23 November 1972, entered into force 15 December 1975) 1037 UNTS 151 (UNESCO World Heritage Convention), respectively. On the historical background and different MPA-related concepts, see Yoshifumi Tanaka, The International Law of the Sea (CUP 2019) 418-419. 46 The first MPA on the continental shelf beyond 200 nautical miles was the Rainbow Hydrothermal Vent Field created by Portugal within the OSPAR MPAs network, pursuant to its continental shelf rights as provided by the LOSC, Art. 77 and in accordance with LOSC, Art. 192, namely the adoption of the appropriate measures to protect the sensitive areas under its jurisdiction or sovereignty, which in the case of the Rainbow MPA only included the protection of the seabed and subsoil, without hindering the legal status of the overlying water column. See OSPAR, Sintra Statement, OSPAR 98/14/1-E, 23 July 1998, Annex 45.

460  Research handbook on international marine environmental law the OSPAR47 and by the International Maritime Organization (IMO).48 However, these and other similar efforts have been sectoral instead of providing a comprehensive approach to the protection and preservation of the marine environment. In addition, different MPAs pursue diverse objectives and seek various levels of protection, from imposing little to imposing complete protection of maritime areas in which no uses and activities are allowed. With respect to ABNJ, the possibility of establishing MPAs has been the subject of discussion for several years49 and is also an integral part of the negotiations for a new implementing agreement to the LOSC on the conservation and sustainable use of marine biodiversity in ABNJ.50 In these areas, no State can assert spatial jurisdiction and any international agreement

47 Convention for the Protection of the Marine Environment of the North-East Atlantic (opened for signature 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention). See OSPAR, ‘Recommendation 2003/3 on a Network of Marine Protected Areas, as amended by OSPAR www​ .ospar​ .org/​ documents​ ?d​ =​ Recommendation 2010/2’, OSPAR 10/23/1, Annex 7, 2010 (this document sets out the aim of establishing the OSPAR Network of Marine Protected Areas and for the network to be ecologically coherent and well managed). 48 IMO, Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Area, Res A.720(17) 6 November 1991, consolidated and revised by IMO, ‘IMO Res A.982(24), adopted on 1 December 2005, Revised Guidelines for the identification and designation of Particularly Sensitive Sea Area’, Res. A.982(24) 1 December 2005; and IMO, Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, Res. A.927(22) 15 January 2002. See also IMO, Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures and Amendments to the Guidelines contained in Resolution A.720 (17), Res. A.885(21), 25. 49 See, Glen Wright, Julien Rochette and Elisabeth Druel, ‘Marine Protected Areas in Areas Beyond National Jurisdiction’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 272-290. 50 See, IMO, Report of the Legal Committee on the Work of its Eighty-Seventh Session, LEG 87/ WP.3, 23 October 2003, paras 194-203; UNGA, Report of the Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction, UN Doc. A/61/65, 20 March 2006, paras 22-31; OSPAR, Strategy of the OSPAR Commission for the Protection of the Marine Environment of the North-East Atlantic 2010–2020 ; CBD, Report of the Expert Workshop on Scientific and Technical Guidance on the use of Biogeographic Classification Systems and Identification of Marine Areas Beyond National Jurisdiction in Need of Protection, UNEP/CBD/SBSTTA/14/INF/4, 11 January 2010, Decisions X/29, VII/5, and IX/20; CBD, Report of the Expert Workshop on Scientific and Technical Aspects Relevant to Environmental Impact Assessment in Marine Areas Beyond National Jurisdiction, UNEP/CBD/SBSTTA/14/INF/5*, 8 March 2010; UNEP, High Seas MPAs: Regional Approaches and Experiences [Side Event], UNEP (DEPI)/RS.12/INF.6.RS (12th Global Meeting of the Regional Seas Conventions and Action Plans, Bergen, Norway, 20-22 September 2012) . The 2019 revised draft text of the new implementing agreement to the LOSC defines ABMTs as ‘a tool, including a marine protected area, for a geographically defined area through which one or several sectors or activities are managed with the aim of achieving particular conservation and sustainable use objectives [and affording higher protection than that provided in the surrounding areas].’ It also includes a definition of MPAs: ‘a geographically defined marine area that is designated and managed to achieve specific [longterm biodiversity] conservation and sustainable use objectives [and that affords higher protection than the surrounding areas].’ UNGA, Revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the Conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/CONF.232/2020/3, 18 November 2019. For an analysis of the revised draft, see IUCN, International legally binding instrument under the

Enhancing marine protected areas through an ecosystem approach  461 is subject to the principle of res inter alios acta.51 The issue is even more complex when considering the possibility of MPAs being located both within and beyond national jurisdiction, thus requiring coordinated management and clarification of the roles that the relevant coastal States and regional and multilateral organisations should play in that respect. Nevertheless, it should always be taken into consideration that the legality of an MPA, both within and beyond national jurisdiction, can always be challenged.52 State practice regarding MPAs in ABNJ is still limited and does not depart from the existing international legally binding rules on spatial and sectoral jurisdiction.53 In this regard, one important milestone was the creation of the first MPA entirely located on the high seas, managed by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). This MPA is 94,000km2 and is located south of the South Orkney Islands, in the Southern Ocean. According to the adopted conservation measures, all types of commercial fishing activities within the MPA are prohibited. Another important landmark due to its large scale was the creation, also by CCAMLR, of the Ross Sea Region MPA on the high seas, which covers approximately 150,000km2.54 Despite being an important achievement, the creation of this MPA is also an example of how difficult it is to reconcile economic, namely fishing, and other interests, with those of the marine environment. Although perceived as a ‘diplomatic success’, the conservation value of this MPA remains to be seen.55 Indeed, establishing an MPA can be the starting point to protect a certain maritime area from pollution or prevent the adverse effects caused by other threats, such as climate change, but it is not an end in itself, and it is not an answer to all threats to the marine environment. United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (IUCN Comments, 20 February 2020) . 51 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Art. 34. This is also the case regarding the creation of MPAs and the use of MSP in disputed maritime areas or in maritime areas that have not yet been declared as under national jurisdiction, such as the Pelagos Sanctuary for Mediterranean Mammals created by France, Monaco and Italy within the framework of the Convention for the Protection of the Mediterranean Sea Against Pollution (adopted 16 February 1976, entered into force 12 February 1978) 1102 UNTS 27 (Barcelona Convention), which is located in areas both within and beyond national jurisdiction. See, Agreement Concerning the Creation of a Marine Mammal Sanctuary in the Mediterranean (adopted 25 November 1999, entered into force 21 February 2002) 2176 UNTS 247, Arts 3 and 14. 52 In the case of MPAs within national jurisdiction, see eg Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award of 18 March 2015) PCA Case No 2011-03 (Chagos Marine Protected Area), paras 538, 540. The arbitral tribunal found that by establishing the MPA surrounding the Chagos Archipelago, the United Kingdom had breached its obligations under LOSC, Arts 2(3), 56(2) and 194(4). The arbitral tribunal also found that in the context of Art. 194(5), an MPA is a measure focused primarily on conservation and the preservation of marine ecosystems. 53 Alex G Oude Elferink, ‘Coastal States and MPAs in ABNJ: Ensuring Consistency with the LOSC’ in David Freestone (ed), Conserving Biodiversity in Areas beyond National Jurisdiction (Brill Nijhoff 2019) 79, 81. 54 CCAMLR, ‘Marine Protected Areas (MPAs)’ . 55 Cassandra M Brooks and others, ‘Reaching Consensus for Conserving the Global Commons: The Case of the Ross Sea, Antarctica’ (2019) 13 Conservation Letters 6074; Cassandra M Brooks and others, ‘The Ross Sea, Antarctica: A Highly Protected MPA in International Waters’ (2021) 134 Marine Policy 104795. See also, Rosemary Rayfuse, ‘Climate Change and Antarctic Fisheries: Ecosystem Management in CCAMLR’ (2018) 45(1) Ecology Law Quarterly 53.

462  Research handbook on international marine environmental law Certain threats require different kinds of responses or combinations of responses. Therefore, when establishing an MPA, regulations addressing different factors and threats must be implemented and include the effective implementation of management and monitoring programmes. MPAs also require a comprehensive approach and proper coordination and cooperation arrangements at regional and multilateral levels. This is decisive in order to avoid conflicts between States and mandates of organisations. Ocean governance currently entails complex multi-layered and jurisdictional challenges that can lead to overlaps and gaps.56 This is even more challenging when considering the existing institutional fragmentation and lack of a holistic approach with respect to ocean governance that prevents integrated management of ecosystems. One valuable example of coordination is provided by the collective arrangement entered into by OSPAR and the North-East Atlantic Fisheries Commission (NEAFC) regarding selected areas beyond national jurisdiction in the North East Atlantic, whereby the two regional organisations agreed to cooperate and seek coordination to ensure that suitable measures for the conservation and management of these areas are implemented, informed, where appropriate, by conservation objectives established for these areas.57 This is achieved by providing a forum for the two organisations to discuss various topics and share information and establish a basis for joint work. Through such a collaborative platform, other organisations can also contribute and share information, even if not parties to the collective arrangement.58 Still, outside the mandates of OSPAR and NEAFC, and the commitments undertaken by the respective States parties, there are a plethora of activities that can hinder the overall goals of the collective arrangement. Without substantial political will and an international legally binding framework establishing the principles of the ecosystem approach and ecosystem-based management to be applied transversally, MPAs and other tools and protection measures can only go so far. In this regard, it should be recalled that pursuant to the CBD, there should be global and regional networks of MPAs.59 This is also consistent with the CBD’s Aichi Biodiversity Target 11 adopted in 2010,60 which called for at least: 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, [to be] 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.61 See n 3. See, OSPAR and NEAFC, Collective Arrangement between competent international organisations on cooperation and coordination regarding selected areas in areas beyond national jurisdiction in the North-East Atlantic, September 2015 . 58 For more information, see, Stefán Ásmundsson and Emily Corcoran, Information Paper on the Process of Forming a Cooperative Mechanism Between NEAFC and OSPAR From the First Contact to a Formal Collective Arrangement (UNEP 2015) . 59 CBD, Art. 8. See also, criteria for the identification of ecologically or biologically significant areas (EBSAs) adopted by CBD COP9, Decision IX/20 Marine and coastal biodiversity, UNEP/CBD/COP/ DEC/IX/20, 9 October 2008, para. 14 and Annex I. 60 CBD, COP10 Decision X/2 (2010) The Strategic Plan for Biodiversity 2011-2020 and the Aichi Biodiversity Targets, UNEP/CBD/COP/DEC/X/2, 29 October 2010, Target 11. 61 Ibid, ‘Currently, some 13 per cent of terrestrial areas and 5 per cent of coastal areas are protected, while very little of the open oceans are protected. The current target of 10 per cent protection for each ecological region has been achieved in approximately 55 per cent of all terrestrial eco-regions.’ See 56 57

Enhancing marine protected areas through an ecosystem approach  463 The UN’s Sustainable Development Goal 14 – to conserve and sustainably use the oceans, seas and marine resources for sustainable development – also set as one of its targets the conservation of at least 10 percent of coastal and marine areas by 2020, consistent with national and international law and based on the best available scientific information.62 Despite these efforts, in 2020, MPAs covered 18 percent of maritime areas within national jurisdiction, representing approximately 8 percent of the entire ocean, while only about 1 percent of ABNJ were covered by MPAs.63 Without the adoption and effective implementation of an ecosystem approach at national, regional and multilateral levels, the efficiency of global and regional networks of MPAs will always be compromised as a result of fragmentation of international law and institutional fragmentation. In order to improve the use of MPAs (and for that matter of MSP), it is necessary to reinforce international rules applicable at regional and multilateral levels. This would include the recognition at the global level of the ecosystem approach as a legally binding principle.

4.

REINFORCING INTERNATIONAL RULES

The negotiation and drafting of the LOSC was a pivotal moment for the codification and progressive development of the law of the sea, setting out the basic tenets of the law of the sea. The LOSC altered the perception of the relation between States and the ocean, giving way to the awareness of the interconnectivity of different marine ecosystems and the understanding of the duty to cooperate as a fundamental principle in the protection and preservation of the marine environment. Consistent with the notion in the LOSC’s preamble that the ocean’s problems are interrelated and must be considered as a whole, the marine environment is perceived as one common or universal value to be protected in its entirety.64 Part XII of the LOSC sets out the overarching legal framework for the protection and preservation of the marine environment and implicitly recognises the marine environment as one single entity. It opened with the recognition in Article 192 of a new principle: that all States – not just those that are parties to the Convention – have the obligation to protect and preserve the marine environment. This

. See also, UNGA, Oceans and the Law of the Sea, UN Doc A/RES/57/141, 21 February 2003, para. 53, which calls upon States to establish MPAs consistent with international law and based on scientific information, including representative networks by 2012 and time/area closures for the protection of nursery grounds and periods; UNGA, Oceans and the Law of the Sea, UN Doc A/RES/58/240, 5 March 2004, para. 54; UNGA, Oceans and the Law of the Sea, UN Doc A/RES/59/24, 4 February 2005, paras 70–73; UNGA, Our Oceans, Our Future: Call for Action, UN Doc A/Res/71/312, 14 July 2017, calls for area-based measures, including MPAs and the need that they be effectively managed, ecologically representative and well-connected, have been reiterated annually in the UNGA Resolution on Oceans and Law of the Sea. 62 UNGA, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc A/ Res/70/1, 25 September 2015, Goal 14. See also, UNGA, The Future We Want, UN Doc A/RES/66/288, 11 September 2012, adopted following the Conference on Sustainable Development in Rio de Janeiro in 2012 (Rio+ 20) and the subsequent adoption of the 17 SDGs in UNGA Res 70/1, ‘Transforming Our World’. 63 UN, The Second World Ocean Assessment (n 4) 10. 64 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), (Judgment) [1970] ICJ Reports, para. 33.

464  Research handbook on international marine environmental law major obligation binds coastal and landlocked States and is applicable to all parts of the ocean, including in ABNJ and disputed maritime areas. In essence, it is a call for collective action, particularly when considering the existential link between the marine environment and humanity. Part XII further expands its protections by cross-referring to several other provisions in the LOSC, making the protection and preservation of the marine environment a transversal subject, applicable to all parts of the ocean and to all activities and uses therein. Nevertheless, the LOSC also embodied the notion that the obligation to protect and preserve the marine environment is connected with States’ exercise of sovereignty and jurisdiction, even in ABNJ, where all States also have both a clearly recognisable interest in the protection and preservation of the marine environment and an obligation to ensure its protection and preservation.65 This compromise is evidenced in the LOSC in the binary relationship that posits the utilisation of resources, focusing on their economic development and conservation in the case of marine living resources, against the preservation and protection of the marine environment. Indeed, while Article 192 recognises that all States have the obligation to protect and preserve the marine environment, Article 193 provides that ‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment’. Article 194 also requires States to adopt the measures necessary to prevent, reduce and control pollution of the marine environment, but without unjustifiably interfering ‘with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention’. Beyond Part XII of the LOSC, this compromise can also be seen, for example, in Article 61, which simultaneously establishes that ‘[t]he coastal State shall determine the allowable catch of the living resources in its [EEZ]’, and that the coastal State ‘shall ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not endangered by over-exploitation’, adding that ‘the coastal State and competent international organizations, whether subregional, regional or global, shall cooperate to this end’.66 There is, however, no provision speaking to the protection of habitats from fisheries and their impact on the marine environment. Only Article 194(5) refers to ‘rare and fragile ecosystems’ and ‘habitat of depleted, threatened or endangered species’ in the context of protection of ecosystems and habitats from pollution.67 Some of these principles and obligations enshrined in the LOSC can, however, be ambiguous. Additionally, important principles that developed after the LOSC, such as the ecosystem approach, are not included in a similar universal legal instrument. This has resulted in fragmentation of international law applicable to the protection and preservation of the marine environment. It has also led to institutional fragmentation, in the sense that regional and multilateral organisations are limited by their functional mandates, for example, as either regional fisheries management organisations or for the protection and preservation of the marine environment. Fragmentation has also resulted in many regional and multilateral efforts evidencing 65 Request for an Examination of the Situation in Accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, [1995] ICJ Reports 1995, para. 64. See also, Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar) (Judgment) [2012] ITLOS Reports 4, para. 475. 66 LOSC, Arts 61(2) and (3), 117, 118 and 119(1)(a). 67 Robin Churchill, ‘The LOSC Regime for the Protection of the Marine Environment – Fit for the Twenty-first Century?’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar 2015) 20-21.

Enhancing marine protected areas through an ecosystem approach  465 the prevalence of compromise between different interests, rather than effectively adopting an ecosystem approach that could ultimately lead to certain activities being restricted or banned altogether in certain maritime areas, if reconciliation with the protection and preservation of the marine environment is not possible. This has inevitably prevented a more robust and effective integrated management of ecosystems and the adoption of a holistic approach with respect to ocean governance. Therefore, it is unsurprising that there have been calls for the reinforcement of international rules in order to strengthen ocean governance. This includes, for example, the proposal for the consolidation in one instrument of principles that have developed since the LOSC.68 Notwithstanding these calls, the likelihood of a dedicated international legal instrument to reinforce existing international rules, or even one that specifically addresses MSP and MPAs, is low. Consequently, it is essential that States and regional and multilateral organisations support the adoption and effective implementation of an ecosystem approach, rather than a sectoral approach. In the existing fragmentation of international law, the adoption of an ecosystem approach must guide the resolution of potential conflicts between measures adopted by different regional and multilateral organisations within their respective sectoral mandates. In this regard, international efforts currently underway to adopt a new legally binding implementing agreement to the LOSC on the conservation and sustainable use of marine biodiversity in ABNJ offer some hope of improvement and perhaps of filling some of the existing gaps. Nevertheless, given that the new implementing agreement should not undermine existing legal instruments and frameworks and relevant global, regional and sectoral bodies,69 the challenge lies in this agreement being able to reconcile these objectives while still managing to improve the use of MPAs at regional and global levels.

5. CONCLUSION The ecosystem approach is more than a guiding principle or objective to be merely enunciated. It is also often perceived as policy matter, rather than one within international law. The lack of recognition of the normative nature of the ecosystem approach and of an overarching legal framework that acknowledges a legally binding principle also applicable to MSP and MPAs, has inevitably hindered the use of these and other ABMTs for the protection and preservation of the marine environment. The prevailing sectoral and regional approach has resulted in a piecemeal approach to ocean governance, with all of its negative repercussions. Although the reinforcement of international rules is an unlikely prospect, proper implementation and management of MPAs and MSP regimes, together with the exercise of effective control, monitoring and evaluation can contribute to a better use of these tools. This improved use must be measured in tangible actions, including building networks comprising different ABMTs and the development of coordination measures at regional and multilateral levels, covering large parts of the ocean, in order to ensure consistency. Without a holistic approach to ocean governance based on an ecosystem approach, the use of MSP and MPAs, or of any other tools for that matter, can only go so far. Perhaps the new legally binding implementing David Freestone, ‘Principles Applicable to Modern Ocean Governance’ in David Freestone (ed), Conserving Biodiversity in Areas beyond National Jurisdiction (Brill Nijhoff 2019) 55. See also n 2. 69 See n 5. 68

466  Research handbook on international marine environmental law agreement to the LOSC, assuming it is ever adopted, can contribute in some measure to a more effective and efficient implementation of existing legal rules.

Index

abandoned, lost or discarded fishing gear  22 Abidjan Convention concerning Cooperation in the Protection and Development of the Marine and Coastal Environment from Land Based Sources and Activities in the Western Central and Southern African Region, Additional Protocol  94 acoustic disturbances  350 Action Plan for the Human Environment, (Stockholm) 5 adaptive management  255 Advisory Body of Experts on the Law of the Sea  403, 418 Advisory Opinion concerning the Legality of the Threat or Use of Nuclear Weapons  7, 86 Advisory Opinion on Responsibilities and Obligations in the Area  10, 300, 301 African Convention on the Conservation of Nature and Natural Resources  185 Anti-fouling Convention  45, 178, 191, 225, 323 Antigua Convention see Convention for Strengthening of the Inter-American Tropical Tuna Commission Agenda 21  153, 335 Agenda for Sustainable Development  3, 89, 151, 157 Agreement for the Implementation 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 see Fish Stocks Agreement Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing  176, 188 Agreement on the Conservation of Albatrosses and Petrels  318 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area  346, 347, 349 Agreement on the Conservation of Seals in the Wadden Sea  352 Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas 343 Agreement on the International Dolphin Conservation Programme  318

Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean  95, 326 Aichi Biodiversity Targets  19, 183, 279, 280, 286 alien species, introduction of  6 see invasive species Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean 114 Amoco Cadiz disaster 140 Antarctic Antarctic marine living resources  281 Antarctic Treaty System  352 Madrid Protocol to the Antarctic Treaty  352, 446 Special Areas for Scientific Study (SASS) 326 anti-fouling paint  259, 324 aquaculture 221 Arctic Arctic coastal States  236 Arctic Council  26, 230, 237 Arctic Climate Impact Assessment  230 Arctic Marine Shipping Assessment  230, 233 Arctic Offshore Oil and Gas Guidelines 93 Arctic shipping, regulation of  25, 230 Central Arctic Ocean Fisheries Agreement see Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean Protection of the Arctic Marine Environment 233 area-based management  279 area-based management tools  19, 330, 451 transboundary cooperation and complementarity 455 area-based protection  182 areas beyond national jurisdiction  19, 31, 42, 59, 313, 326, 428, 452 decision-making environment  428 environmental impact assessments challenges for  428 obligations 431 processes  431, 450 knowledge environment  429

467

468  Research handbook on international marine environmental law marine biodiversity  452, 455, 460, 465 new implementing agreement on biodiversity see BBNJ Agreement resource exploitation in  319 rights of States  434 areas under national jurisdiction  314, 323 ARGO Program  27, 418 artificial reefs, creation of  255 Automatic Identification Systems (AIS)  175, 422 Ballast Water Convention  45, 46, 178, 191, 225, 314, 324 Baltic Sea Commission  111 Baltic Sea Convention see Helsinki Convention Barcelona Convention  23, 123, 151, 152, 153, 156, 157, 314, 346, 352 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal  53, 155 BBNJ Agreement  20, 42, 182, 278, 286, 332, 416, 445 commitment 446 marine genetic resources, issue of  421 national jurisdiction  445 negotiations 420 provisions 446 strategic environmental assessment  447 benthic communities 320 ecosystems 17 Bering Sea Fur Seals arbitration  4, 7 Bern Convention on the Conservation of European Wildlife and Natural Habitats 346 best available techniques  411 best environmental practices  87, 411 biodiversity, marine beyond national jurisdiction  205 see BBNJ Agreement climate change and  325 components of  313 conservation and sustainable use of  83, 172, 223, 264, 312, 314, 316 disputes under the LOSC  137 habitat destruction and  319 hotspots 173 human well-being and  325 impact of pollution on  322 in ABNJ  313 legal framework for  312 loss  11, 16, 17, 18, 19, 33, 317 meaning of  311 South China Sea arbitration in relation to 136

species extinction  325 Biotech Products case  96 Blue Economy  3, 176 CAMLR Convention see Convention on the Conservation of Antarctic Marine Living Resources carbon capture and storage  247, 252 carbon dioxide see greenhouse gas carbon sink  271 CCAMLR Ecosystem Monitoring Program  318 see Commission on the Conservation of Antarctic Marine Living Resources Census of Marine Life  311 Chagos Marine Protected Area arbitration  10, 61, 66 Charlie Gibbs Fracture Zone  328 chemical spill contingency plans  180 civil liability regimes  149 limitations of  141 Clarion-Clipperton fracture zone  44 climate change  2, 16, 29, 207, 212, 230, 264 see Kyoto Protocol; Paris Agreement; UN Framework Convention on Climate Change Glasgow Climate Pact  273 global warming  23, 25, 269, 271, 273 human-induced 26 impact on marine biodiversity  34, 325 Intergovernmental Panel on Climate Change (IPCC)  247, 265 London Protocol and  247 ocean deoxygenation  312 ocean warming  23, 325 ozone layer, protection of  68 seabed carbon storage  26 sea level rise  34 coastal States jurisdiction in case of maritime casualties 202 Code of Conduct for Responsible Fisheries  47, 52, 441 Colombia Advisory Opinion 435 Commission for the Conservation of Southern Bluefin Tuna  188 Compliance and Monitoring Scheme  119 Compliance Committee  111, 113, 156 Compliance Group  109 Commission on the Conservation of Antarctic Marine Living Resources  24, 119, 318, 416, 461 common but differentiated responsibility  91, 207, 211 Common Fisheries Policy (EU)  345

Index  469 competent international organisations  66, 69 compliance mechanisms  105 definition of  105 global dumping regime  107 global shipping treaties  114 institutional framework of  106 key features and functions of  105 overview of  105 regional fisheries treaties  117 regional seas treaties  110 Scientific Group  109 under marine environmental treaties  107 Construction of a Road case  142, 148 Convention for Strengthening of the Inter-American Tropical Tuna Commission  118, 119 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean see Barcelona Convention Convention for the Protection of the Marine Environment of the North-East Atlantic see OSPAR Convention Convention for the Protection of the World Cultural and Natural Heritage  59, 271 Convention on Biological Diversity  9, 71, 160, 183, 255, 271, 385, 412, 430, 454 see Aichi Biodiversity Targets Article 2 of  47 Article 23(4)(h) of  59 Conference of the Parties of  41, 277, 341, 430 conservation of biodiversity under  279, 287 MPAs, global and regional networks of  462 protected area  458 Regional Biodiversity Strategies and Action Plans 183 Resolutions of  343 Strategic Plan for Biodiversity 2011–2020  279, 183 Convention on Environmental Impact Assessment in a Transboundary Context see Espoo Convention Convention on International Trade in Endangered Species of Wild Flora and Fauna  47, 59, 77, 184, 185, 351 Convention on the Conservation of Antarctic Marine Living Resources  9, 281, 314 Convention on the Conservation of Cetaceans and their Habitats in the Pacific Islands Region 349 Convention on the Conservation of Migratory Species of Wild Animals  17, 59, 184, 271, 333, 346

adoption of non-binding Memoranda of Understanding 343 AGREEMENTs for species  342 non-binding instruments  349 regulatory framework for highly mobile species  339, 340 subsidiary instruments  342 Convention on the Conservation of Southern Bluefin Tuna  120 Convention on the Continental Shelf  5 Convention on the High Seas  5 Convention on the International Maritime Organization 67 Convention on the International Regulations for Preventing Collisions at Sea  45 Convention on the Law of the Sea see UN Convention on the Law of the Sea Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter see London Convention Convention on the Protection of the Marine Environment of the Baltic Sea see Helsinki Convention cooperation see Principles, cooperation, principle of Coordinating Body on the Seas of East Asia  182 coral and giant clams, harvesting of  136 bleaching of  34 reefs  173, 181 corporate social responsibility  411 Council of Europe  346 COVID-19 pandemic  261, 335 DDT, in the marine food chain  5 dead zones  414 Decade of Ocean Science for Sustainable Development  3, 385 deep sea biodiversity of  292 ecosystems  26, 190, 289, 319 exploitation of  124 flora and fauna of  313 protection of  289 Deep-sea Fisheries Guidelines  441 Deepwater Horizon disaster  142 diplomatic protection, right of  140 disaster risk management  176 dispute settlement framework for settling disputes, concerning the marine environment  126 jurisdiction under Section 2 of Part XV  76 non-state actor involvement in dispute resolution 130

470  Research handbook on international marine environmental law Part XV of the LOSC  61, 64, 78, 124, 125, 127, 128 procedures  46, 55, 64, 76, 104, 132, 144 role of courts and tribunals   76 driftnet fishing on the high seas, ban on  38 due diligence breach of  88 obligation of  86, 88, 103, 137, 145, 147, 221, 223 dumping of waste at sea  6, 241, 244, 249 see London Convention; London Protocol East African Regional Seas Programme  181 Eastern Africa Action Plan  181 ecological balance, of the marine environment  315, 320 Ecologically and Biologically Sensitive Marine Areas  173, 281, 328 Ecological Objectives for Good Environmental Status of the Mediterranean Sea and Coast 159 ecosystem-based management  28, 186, 416 emission trading schemes  212 endangered species  341 harvesting of  136 energy Energy Efficiency Design Index   209, 211 ocean energy sectors  176 renewable energy  221, 410, 413 enforcement jurisdiction, on the high seas see high seas Enrica Lexie case  65, 66, 203, 204, 205 environmental impact assessment  10, 42, 88, 98, 102, 113, 182, 193, 221, 228, 234, 302, 411, 415, 428 and fundamental freedom of navigation  222 and deep seabed mining  437 and fisheries  440 and marine biodiversity  445 and marine geoengineering  443 in areas beyond national jurisdiction  428, 436 assessment process  444 background principles/multiple roles  431 duty to consult  434 harm prevention  432 international institutions, role of  448 justificatory role  430 obligation to conduct  88, 222 public participation  428, 435 predictive capacity  429 environmental NGOs  233, 234 see Non-governmental Organisations Environmental Protection and Biodiversity Conservation Act, Australia  131

erga omnes obligations  12, 84, 85, 141, 147 Escazú Agreement   365 Espoo Convention  88, 193 European Union  201, 345, 346 Common Fisheries Policy  345 European emissions trading scheme  213 marine resource exploitation  410 marine spatial planning  456 exclusive economic zone  39, 187, 334, 387, 411, 454 coastal State jurisdiction in  459 conservation and management measures  464 Exxon Valdez disaster   140 FAO see Food and Agriculture Organization Fish Stocks Agreement  9, 40, 41, 94, 117, 223, 315, 337, 440, 441, 455 fish stocks conservation and sustainable use of  95 global declines in  317 migratory fish stocks  40 fishing artisanal fishing  173 abandoned, lost or discarded fishing gear  22 discarded fishing nets  174 fish farming systems  412 illegal, unreported and unregulated (IUU) fishing  117, 175, 421 see International Plan of Action on IUU Fishing krill fishing  318 open-net fish farming  412 overfishing, of target species  33 targeted catch, regulation of  188 targeted fish stocks, exploitation of  313 flag State jurisdiction  198, 203, 204 Food and Agriculture Organization  12, 38, 67, 336, 423, 458 see Code of Conduct for Responsible Fisheries; International Guidelines for the Management of Deep-Sea Fisheries in the High Seas; Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks); International Plan of Action on IUU Fishing food security  160, 189, 192, 325 ‘free, prior and informed consent’  366 fuel efficiency, of ships  208 Fukushima Daiichi nuclear power plant  109, 242, 259 Gabčíkovo-Nagymaros Project case  89, 95 General Agreement on Tariffs and Trade

Index  471 Article XX of  92 General Fisheries Commission for the Mediterranean 349 geoengineering  221, 243, 254, 258, 268, 275, 277, 278 Intersessional Correspondence Group on Marine Geoengineering  258 marine cloud brightening  258 ocean fertilisation see ocean fertilization regulation of  256, 443 GESAMP see Group of Experts on the Scientific Aspects of Marine Environmental Protection Global Biodiversity Framework  160, 161, 283 Global Environment Facility  159, 186 Global Fishing Watch  29, 421 Global Partnership on Marine Litter  192 Global Programme of Action for the Protection of the Marine Environment from Land-based Activities  22, 192 global sulphur cap  232, 235, 237 Global warming see climate change; global warming Good Environmental Status  158 Great Barrier Reef  314 greenhouse gases  143, 197, 266, 273 carbon dioxide absorption of  24, 264, 278 atmospheric concentration of  23, 268 capture and storage  241, 247, 252, 269 emissions of  213, 325 natural transfer into the oceans  254 pollution 241 risks associated with sequestration of 276 sequestration of see sequestration of carbon dioxide sink 241 stabilization of  atmospheric levels of  248, 269 sub-seabed sequestration of  245 transboundary export of  252 transboundary movement of  250 emission reduction targets  411 emissions  10, 23, 24, 53, 55, 325 emissions, from ships assessment 214 energy efficiency requirements  209 heavy grade fuel oil  26, 210 ban on transport and use in Arctic waters  218, 219, 229, 231, 232, 233, 236, 238, 239

pollution response activities and civil liability rules  206 reduction of  209 technical and operational measures  209, 211 from anthropogenic sources  33 global peaking of  207 IMO strategy on the reduction of  228 market-based measures  211, 217 sinks of  207 Group of Experts on the Scientific Aspects of Marine Environmental Protection  68, 224, 278 Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks  95 Haida Salmon Restoration Corporation  394 Hamilton Declaration  329 hazardous chemicals, use and generation of  157 Helsinki Convention  94 highly migratory species  336 high seas enforcement jurisdiction  203 fisheries  313, 317 non-flag State jurisdiction  197 Hong Kong Convention  178 Hormones case  96 Immunities and Criminal Proceedings case  65 incineration of wastes at sea  243 Indian Ocean  4, 172, 174, 190 climate change  189 fish and other marine living resources  173, 187 fishery regulations  187 Indian Ocean Rim Association  176, 182, 189–192 Indian Ocean Commission  188 Indian Ocean States  183, 187, 189, 191, 193 Indian Ocean Tuna Commission (IOTC)  187 IOTC Strategic Science Plan 2020–2024 189 Indian Ocean Whale Sanctuary  172, 177, 183 Southern Indian Ocean Fisheries Agreement 188 South West Indian Ocean Fisheries Commission 188 Western Indian Ocean Marine Turtle Task Force 357 Indigenous and Tribal Peoples Convention  169, 366 indigenous peoples and local communities  364

472  Research handbook on international marine environmental law Integrated Coastal Zone Management (ICZM)  180, 190, 454 ICZM Governance Platform  156 ICZM Protocol  155, 160, 168, 170, 171 Integrated Monitoring and Assessment Programme for the Mediterranean  166 Inter-American Convention for the Protection and Conservation of Sea Turtles  358 Inter-American Court of Human Rights  435 Inter-American Tropical Tuna Commission  118, 318 intergenerational equity  90 Intergovernmental Oceanographic Commission of UNESCO  186, 385 see Advisory Body of Experts on the Law of the Sea Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services  16 International Atomic Energy Agency (IAEA)  67 International Civil Aviation Organization  212 International Code for Ships Operating in Polar Waters see Polar Code International Commission for the Conservation of Atlantic Tunas  120 International Convention for the Control and Management of Ships’ Ballast Water and Sediments see Ballast Water Convention International Convention for the Prevention of Pollution from Ships (MARPOL) see MARPOL Convention International Convention for the Prevention of Pollution of the Sea by Oil  4 International Convention for the Regulation of Whaling  74, 99, 129, 131, 335, 337, 338, 341 see International Whaling Commission International Convention for the Safety of Life at Sea  225, 226, 229, 230 International Convention on Civil Liability for Bunker Oil Pollution Damage  141 International Convention on Civil Liability for Oil Pollution Damage  139, 141 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea  141 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers  225, 229 International Convention on the Control of Harmful Anti-fouling Systems on Ships see Anti-fouling Convention

International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage  139, 140, 141 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties  139, 202 International Court of Justice  7, 85, 86, 95, 127, 130, 339, 390, 395 Statute of the International Court of Justice 49 International Covenant on Economic, Social and Cultural Rights  389 International Guidelines for the Management of Deep-Sea Fisheries in the High Seas  319 International Hydrographic Organization  419 International Labour Organization  366 Internationally Legally Binding Instrument see BBNJ Agreement International Maritime Organization (IMO)  12, 46, 67, 110, 139, 148, 154, 178, 196, 218, 222, 242, 276, 323, 413 competence of  216 data collection system  210 decision-making processes of  219, 224 environmental impact assessments  222 implementation powers of  70 mandate of  224 Marine Environmental Protection Committee (MEPC) of  45, 46, 225 Maritime Safety Committee of  225 MEPC Guidelines on Incorporation of the Precautionary Approach in the Context of Specific IMO Activities 228 Polar Code  25 strategy on the reduction of Green House Gases emissions  54, 211, 228 International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks)  353, 354 International Plan of Action on IUU Fishing  117 International Seabed Authority  11, 18, 36, 68, 73, 143, 252, 289, 361, 402 Advisory Opinion on Responsibilities and Obligations in the Area 10, 300, 301 Areas of Particular Environmental Interest 321 best environmental practice  301 compliance and enforcement  298 contractual obligations  290 Draft Exploitation Regulations  298, 300, 303, 363, 376, 383, 439 environmental compensation fund  301 environmental emergencies and contingency plans 299

Index  473 environmental impacts from seabed mining 291 environmental management  305 Environmental Management Plan for the Clarion Clipperton Zone  305, 321 Exploration Regulations  19, 30, 87, 294, 295, 299, 300, 301, 303, 433 Legal and Technical Commission  295, 308, 321, 377, 438 protection of vulnerable marine ecosystems 322 responsibilities of  290, 300 rule-making by  42 trust fund  300 International Tribunal for the Law of the Sea  51, 61, 83, 95, 127, 203, 361, 429 Seabed Disputes Chamber of  10, 30 84, 87, 96, 223, 290, 300 International Whaling Commission  72, 74, 128, 129, 148, 183, 335, 350, 391 Japan’s research programs in  130 invasive species  180, 325 see alien species IUCN Red List  150 Japanese Whale Research Program  130, 131 Jeddah Convention  181, 186 Johannesburg World Summit on Sustainable Development 48 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution  181 Kyoto Protocol   251, 273 Land Reclamation case  96, 101 large marine ecosystems  173, 186 Latin American Organization for Fisheries Development 358 Law of the Sea Convention see UN Convention on the Law of the Sea (LOSC) Ligurian Sea sanctuary  154 London Convention  5, 34, 58, 63, 107, 240, 242, 247, 254, 271, 314, 324, 388, 444 Annex I of  248 application of  249 Article X of  262 evolution of  244 London Protocol  63, 94, 108, 110, 153, 241, 248, 271, 276, 314, 324, 444 and climate change  241, 245, 247, 253, 255, 256 compliance and liability  260 dumping

see dumping of waste at sea geoengineering see geoengineering mandate to address marine pollution  258 ocean fertilization rules for exporting waste to non-parties  246 sequestration of carbon dioxide in the oceans 247 mariculture  255, 413 marine-based tourism  173, 176 marine biodiversity see biodiversity, marine marine debris  174 Marine Environment Protection of South East Asian Seas Programme  191 Marine Environmental Protection Committee see International Maritime Organization marine genetic resources  182 bioprospecting  11, 410, 421 exploitation of  330 marine geoengineering  243, 254, 256, 277, 278, 443 see geoengineeering marine litter  182, 242, 258 in Mediterranean Sea  164 and plastic, legally binding instrument to address 157 marine living resources  175 conservation and management of  6, 12, 61, 94, 133, 313 exploitation of  4 governance of  334 marine mammals  333, 334 treaties, framework of  344 marine pollution see pollution marine protected areas  19, 151, 183, 270, 279, 281, 451, 452, 458 adoption and effectiveness of  452 areas beyond national jurisdiction  461 ecosystem approach  451 fisheries management  458 global and regional networks of  462 in Mediterranean Sea  161 regional and multilateral efforts  459 Ross Sea Region  461 marine scientific research (MSR)  386 and protection of marine environment  402 decision-making impact of science on  219 knowledge-based 224 processes of the IMO  219, 237 relevance and weight of science in  222 science as a premise for  227

474  Research handbook on international marine environmental law definition of  387, 425 disputes, settlement of  405 duty to cooperate  400 duty to provide scientific information  220 environmentally and socially responsible 396 general principles  396 international cooperation  397 obligations to promote  220 responsibility/liability 404 right to conduct/duty to promote  392 technology advancement  417 marine spatial planning  157, 190, 451, 456 area-based management framework  453 cross-border effects  456 ecosystem approach  451, 457 importance of  452 reinforcing international rules  463 Marine Spatial Planning Directive  456 Marine Strategy Framework Directive  161, 169, 456 marine technology  409, 410, 414 actors/interests 426 and science  18, 27, 416 capacity building and technology transfer  42, 182, 189, 190, 427 environmental harm, mitigation  417 legal framework, adequacy of  425 new technologies, authorisation/use of  413 ocean acoustic monitoring, technologies for 27 radar technology  422 remote sensing technology  422, 426 resource exploitation technologies  417 satellite remote sensing  203, 422, 423 synthetic aperture radar technology  422 technology-driven ‘solutions’  416 Visible Infrared Imaging Radiometer Suite 422 maritime transport, global data collection system for 210 market-based measures see greenhouse gases MARPOL Convention  5, 34, 45, 53, 114, 177, 178, 196, 225, 226, 229, 314, 323 Annex II of  225 Annex V of  324 Annex VI of  53, 209 MARPOL Special Areas  323 maximum sustainable yield  48 Mediterranean Commission on Sustainable Development 157 Mediterranean Marine Protected Areas Network 162 Mediterranean Sea  4, 150, 347

and European Union  169 biodiversity hotspot  150 climate change and its effects on  166 ecological balance and environmental resilience of  151 global maritime traffic passing through  150 marine litter and plastic pollution in  164 marine pollution  23 marine protected areas  161, 162 protection under the UNEP Regional Seas Programme  151, 152 Mediterranean Specially Protected Areas  154 Mediterranean Strategy for Sustainable Development 2016–2025  151, 157, 160 Mediterranean Trust Fund  154 Memoranda of Understanding  343 Concerning the Conservation of the Manatee and Small Cetaceans of Western Africa and Macronesia  350 Conservation and Management of Marine Turtles and their Habitats of the Indian Ocean and South-East Asia 356 Conservation Measures for Marine Turtles of the Atlantic Coast of Africa  357 Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal  352 Mid-Atlantic Ridge  321 migratory species defined 340 MOX Plant case  95, 101 Nairobi Convention  181, 186, 357 Protocol to   94 Namibia (South West Africa) Advisory Opinion 102 Nationally Determined Contributions  189, 274 navigation freedom of  222 in Arctic waters  218 New Delhi Declaration of Principles of International Law relating to Sustainable Development 90 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region  192 Norstar case  203, 204, 205 North Atlantic Marine Mammal Commission  336, 346 North-East Atlantic Fisheries Commission 327, 462 Northern Indian Ocean Marine Turtle Task Force 357 Nuclear Tests II case  95

Index  475 ocean acidification  23, 25, 29, 90, 264, 312 adaptation and resilience-building  279, 280 Aichi Biodiversity Targets  280 causes and consequences of  265 effects on marine ecosystems and fisheries 264 emission of carbon dioxide leading to  145 future disputes  143 governance of  284 harm management and redress  282 impacts of  126, 280, 281 jurisdiction and applicable law in disputes related to  144 management of  280 prevention of  146 regime complex  271, 284 remedies in disputes related to  147 responding to  268 standing in disputes related to  146 threat of  264 ocean alkalinity, rise in  254 ocean fertilisation  25, 29, 70, 254, 257, 260, 277, 278 Assessment Framework for Scientific Research Involving Ocean Fertilization 277 definition of  255 governance of  263 regulation of  255 scientific fertilisation research projects  278 oil pollution  275 dispute prevention through lawmaking  138 environmental harm caused by  138 dispute settlement process  138 limitations of civil liability regimes  141 International Oil Pollution Compensation Fund 141 oil spill detection  422 oil spills  181 see Amoco Cadiz disaster; Deepwater Horizon disaster; Exxon Valdez disaster OSPAR Commission  24, 327 OSPAR Convention  67, 87, 94, 100, 101, 388 Outer Space Treaty   423 Paris Agreement  11, 24, 25, 54, 64, 144, 189, 207, 208, 210, 211, 214, 215, 217, 269, 273, 280, 283, 286 Particularly Sensitive Sea Areas  178, 323 Part XI Implementing Agreement  190, 252, 289, 290, 292, 293, 309, 313, 314, 437 Pelagos Sanctuary for Mediterranean Marine Mammals  154, 161 plastic 16, 34, 53, 164, 415

debris  174, 187 debris, ship-source  22 plastic catching devices  415 plastic waste management of  177 microplastics  2, 33, 242, 258, 259 nanoplastics 2 origin of  324 Polar Bears Agreement  314 Polar Code  12, 25, 218–238 adoption of  219, 229, 238 amendments of  228 development of  218, 219 drafting of  231 for promoting maritime safety  229 legal framework of  230 oil fuel tank protection requirements of  236 overview of  229 role of science in  224, 229 scientific information and  230 polluter pays principle see Principles, polluter pays pollution  4, 83, 176, 182, 276 anthropogenic land-based sources of  22 atmospheric pollution  2, 10 ballast waters, convention on  180 chemical pollution  350 control of  5 defined  8, 20, 53, 83, 322 from exploration and exploitation of the continental shelf  181 from sewerage and industrial waste  174 from ships see pollution from ships impact on marine biodiversity  322 in ice covered areas  220 in Indian Ocean  177 in marine environment  20 in Mediterranean Sea  23 land-based  9, 22 181, 259, 260 noise  292, 348 noxious and non-toxic substances  322 nutrient pollution  182 oil see oil pollution organic pollutants  323 plastic see plastic pollution damage, definition of  140 pollution from ships obligation to prevent  220 prevention and control of  225 prevention of  94, 107, 320 radioactive   16, 241, 244, 245 regulations for the prevention of  220 sources of  45, 47, 94

476  Research handbook on international marine environmental law Port States jurisdiction  198, 199, 205 see Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing precautionary principle see Principles Principles cooperation, principle of  82, 98, 100 good governance, principle of  91 lex posterior principle  71, 72 lex specialis principle  71 no harm principle  6, 82, 85, 86, 89 pacta tertiis nec nocent nec prosunt principle 62 permanent sovereignty over natural resources 6 polluter pays  242 precautionary principle  93, 95, 97 sensu lato, principle of  82 sensu stricto, principle of  82 Principles Relating to Remote Sensing of the Earth from Space  423 Protocol Concerning Co-operation in Combating Marine Pollution in Cases of Emergency in the Eastern African Region  181 Protocol Concerning Technical Cooperation to Borrow and Transfer Experts, Technicians, Equipment and Materials in Cases of Emergency 182 Protocol Concerning the Conservation of Biological Diversity and the Establishment of Network of Protected Areas in the Red Sea and Gulf of Aden  186 Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden  181 Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities  181 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 see London Protocol public participation concept of  364 consultation mechanisms  363 criteria for  368 environmental decision-making  367 environmental impact assessments  368 independence 376 influence 381 proactive/early/full engagement  375

representativity 372 practices 367 evaluation criteria  370 Pulp Mills case  88, 98, 132 Ramsar Convention on Wetlands of International Importance  59, 142 Regional Economic Integration Organisations 344 regional fisheries management arrangements  40 regional fisheries management organisations  14, 17, 31, 37, 40, 100, 117, 119, 188, 313, 318, 319, 326, 337, 355, 357, 430 Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea  153 Regional Oil Combating Centre for the Mediterranean Sea  153 Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden 181 Regional Organization for the Protection of the Marine Environment Sea Area  180, 181 Regional Seas Agreements  110, 152, 160, 180, 348, 357 Regional Seas Programmes  67, 151, 152, 180, 314 rehabilitation of coastal and marine areas  283 renvoi provisions in LOSC  58, 60, 62, 63, 64, 65, 66 Report of the World Commission on Environment and Development (1987)  7, 89 Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission 51 Rio Declaration  153, 157, 170 formulation of  86 Principle 2 of  7, 85 Principle 15 of  93, 96, 223, 296 risk assessment  250, 256 risk management  255 Ross Sea  282 Sargasso Sea Commission  329 Seabed Advisory Opinion see International Seabed Authority; Advisory Opinion on Responsibilities and Obligations in the Area seabed carbon storage  26 Seabed Disputes Chamber of the International Tribunal for the Law of the Sea see International Tribunal for the Law of the Sea seabed mineral deposits  295 seabed mining  11, 17, 18, 29, 42, 176, 242, 290, 361, 431, 437 cobalt-rich crusts  295, 320

Index  477 environmental impacts from  291 governance of  18 flora and fauna in  315 hydrothermal vents  3 in Indian Ocean  190 ISA see International Seabed Authority offshore minerals, exploitation of  244 polymetallic nodules  291, 295, 320 polymetallic sulphides  295, 320 protection of marine biodiversity  174, 182, 264 test mining  43 seabed restoration, of seagrasses and mangroves 26 sea ice  218, 230, 267 sea level rise  34 see climate change; sea level rise Secretariat of the Pacific Regional Environmental Programme (SPREP)  191, 349 Whale and Dolphin Action Plan  349 sequestration of carbon dioxide  241, 243 definition of  247 liability for environmental damage caused by 253 sub-seabed  247, 249, 250 sharks 336 conservation initiatives  353 see International Plan of Action for the Conservation and Management of Sharks (IPOA-Sharks)  353, 354 Ship Energy Efficiency Management Plan  210, 211 shipping Arctic waters see Polar Code ban on use and transport of HFO as fuel  218, 229, 232, 233, 236 ice-bound shipping routes  25 international shipping rules and standards, adoption of  66 standards, implementation of  114 ship-strikes 348 significant adverse impacts  441 South Asian Seas Programme and Action Plan 180 South China Sea arbitration  10, 45, 46, 47, 50, 51, 52, 61, 77, 83, 100, 125, 134, 135, 432 Southeast Asian Fisheries Development Center 184 Southern Bluefin Tuna cases  61, 98, 101, 405 southern bluefin tuna, management of  188 Southern Indian Ocean Fisheries Agreement  188 South Pacific Regional Fisheries Management Organisation 442

South West Indian Ocean Fisheries Commission 188 Specially Protected Areas of Mediterranean Importance Protocol  154, 160, 161, 166 Specific Guidelines for Assessment of Carbon Dioxide Streams for Disposal into Sub-seabed Geological Formations  250, 276 States Parties to the Law of the Sea Convention (SPLOS)  11, 68, 73, 74 Stockholm Declaration  5, 6, 85, 89, 152 strategic environmental assessment  447 submarine cables, laying of  221 sub-seabed geological formation  241, 251, 252 Supplementary Fund Protocol  141 sustainable development  6, 7, 82 concept of  89, 90 interstitial function of  90 justiciability of  91 in marine environmental protection  89 of fisheries  188 of the oceans  176 Sustainable Development Goals  7, 19, 36, 90, 157, 159, 177, 182, 264, 269, 365, 463 sustainable tourism  177 technology see marine technology The Ocean Cleanup  415 Torrey Canyon disaster  5, 138, 139, 140 Trail Smelter arbitration  6, 85, 86 transboundary movements of waste  181 treaty interpretation see Vienna Convention on the Law of Treaties treaty language, indeterminacy of  106 UN Charter  86 Article 24 of  8 UN Committee on the Peaceful Uses of Space 259 UN Conference on Environment and Development   242 UN Conference on Sustainable Development ‘The Future We Want’ declaration  35, 48 UN Conference on the Human Environment  5, 152 UN Conference on the Law of the Sea (UNCLOS III)  389, 409, 454 UN Convention on the Law of the Sea (LOSC)  3, 34, 104, 177, 180, 187, 196, 198, 219, 240, 264, 276, 289, 312, 313, 333, 361, 411, 428, 451, 454, 465 adoption of  5, 38, 198 aim of  5

478  Research handbook on international marine environmental law and current marine environmental issues  52 Annex III of  300 Annex VII of  78, 137 Article 145 of  293, 296 Article 163 of  293 Article 192 of  83, 292 Article 194(2) of  86 Article 194(5) of  9 Article 197 of  126 Article 200 of  228 Article 210(6) of  58, 247 Article 210 of  243 Article 211(1) of  222 Article 211(2) of  46 Article 212 of  24, 325 Article 216 of  247 Article 218 of  203 Article 221 of  139 Article 290 of  98 basic legal framework of  292 constitutional nature of  10, 35, 38, 196, 204, 216 definition of dumping under  243 environmental shortcomings of  39 global and regional cooperation  454 implementing agreements of  13 in relation to marine biodiversity  359 negotiation and drafting  463 Part XI of  30, 40, 190, 252, 289, 293, 309, 314 Part XII of   6, 9, 10, 13, 30, 31, 58, 60, 78, 83, 135, 137, 198, 220, 238, 246, 290, 292 as constitutional framework  60 codification of  61 conflict clauses  70 for management of marine living resources 61 nature and scope of powers under  68 obligations of conduct  69 obligations to promote scientific research 220 reference clauses codified in  66 references to external rules  61 role of international organisations in  73 rules and principles contained in  60 Section 7 of  202 treaty implementation through international institutions  66 violation of  133 Part XV of  49 see dispute resolution principles and obligations  464 protection of marine environment under 83

role of  35 rules of reference in  13 see renvoi provisions in LOSC UN Development Programme (UNDP)  68, 186 UN Division for Ocean Affairs and the Law of the Sea (DOALOS)  67 UN Environment Assembly (UNEA)  23 UN Environment Programme (UNEP)  22, 53, 110, 180, 336 UN Fish Stocks Agreement see Fish Stocks Agreement UN Framework Convention on Climate Change  11, 24, 54, 144, 151, 189, 207, 208, 214, 216, 271, 273, 275, 286, 385 UN General Assembly (UNGA)  37, 41, 42, 47, 49, 55, 70, 73, 297, 317, 441 UN Human Rights Council  365 UN Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS)  49 United Nations Compensation Commission  142 United Nations Decade of Ocean Science for Sustainable Development  3, 18, 385, 386, 387, 389, 393, 399, 406, 407, 408, 397, 419 see Decade of Ocean Science for Sustainable Development United Nations Declaration of the Rights of Indigenous Peoples  436 United Nations Educational, Scientific and Cultural Organization  (UNESCO) 453 US-Shrimp case  92, 93 vessel monitoring systems  422 vessel-source pollution  196, 197 see pollution from ships  203 Vienna Convention on the Law of Treaties  62, 72, 102, 127, 253 Article 31(3)(b) of  73, 74 Article 31(3)(c) of  76 vulnerable marine ecosystems  37, 297, 319, 321 fragile marine ecosystems, preservation of  6 impact of bottom trawling on  319 ISA’s rules to protect  322 protection of  320 Warsaw Loss and Damage Mechanism  282 waste prevention and management  245 whales aboriginal subsistence whaling  339 conservation and management of  128, 129 scientific whaling  129, 338 whaling industry, development of  129 zero-catch quota  129

Index  479 see International Convention for the Regulation of Whaling; International Whaling Commission Whaling in the Antarctic case  131, 132, 405 background to the dispute  129 whaling

under special permit, in Antarctic waters  128 World Charter for Nature  130 World Commission on Environment and Development  89, 90, 91 World Meteorological Organisation  403 World Summit on Sustainable Development  19