Research Handbook on Ocean Governance Law 1839107685, 9781839107689

Citation preview

RESEARCH HANDBOOK ON OCEAN GOVERNANCE 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. Titles in the series include: Research Handbook on Fundamental Concepts of Environmental Law Edited by Douglas Fisher Research Handbook on Freshwater Law and International Relations Edited by Mara Tignino and Christian Bréthaut Research Handbook on Environment and Investment Law Edited by Kate Miles Research Handbook on Law, Environment and the Global South Edited by Philippe Cullet and Sujith Koonan Research Handbook on Transnational Environmental Law Edited by Veerle Heyvaert and Leslie-Anne Duvic-Paoli Research Handbook on Polar Law Edited by Karen N. Scott and David L. VanderZwaag Research Handbook on Law, Governance and Planetary Boundaries Edited by Duncan French and Louis J. Kotzé Research Handbook on Ocean Acidification Law and Policy Edited by David L. VanderZwaag, Nilüfer Oral and Tim Stephens Research Handbook on Fundamental Concepts of Environmental Law, Second Edition Edited by Douglas Fisher Research Handbook on Energy, Law and Ethics Edited by Malik R. Dahlan, Rosa M. Lastra and Gustavo Rochette Research Handbook on Ocean Governance Law Edited by Simone Borg, Felicity G. Attard and Patricia Mallia Vella de Fremeaux

Research Handbook on Ocean Governance Law Edited by

Simone Borg Professor, Head of Department of Environmental Law and Resources Law, Faculty of Laws, University of Malta, Malta

Felicity G. Attard Lecturer, Department of International Law, Faculty of Laws, University of Malta, Malta

Patricia Mallia Vella de Fremeaux Associate Professor, Head of Department of International Law, Faculty of Laws, University of Malta, Malta

RESEARCH HANDBOOKS IN ENVIRONMENTAL LAW

Cheltenham, UK • Northampton, MA, USA

© Editors and Contributors severally 2023

All rights reserved. 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. 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: 2022946171 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781839107696

ISBN 978 1 83910 768 9 (cased) ISBN 978 1 83910 769 6 (eBook)

EEP BoX

This work is dedicated to our parents. We are infinitely grateful for their love and support throughout the years.

Contents

List of contributorsx Forewordxv David Joseph Attard Preface and acknowledgementsxvii List of abbreviationsxviii Table of casesxxvi Table of legislationxxix Table of treatiesxxxi Introduction to the Research Handbook on Ocean Governance Law1 Simone Borg, Patricia Mallia Vella de Fremeaux and Felicity G. Attard PART I

THE BLUE SPACE

1

A 50-year reflection on global ocean governance for protection of the marine environment Nilüfer Oral

2

Maritime zones in international law Danilo García Cáceres

24

3

Airspace, sovereignty and ocean governance Roberto Cassar

47

4

Marine scientific research as a tool for ocean governance Norman A. Martínez Gutiérrez

59

5

Dispute settlement and ocean governance Vladyslav Lanovoy

72

PART II

10

THE BLUE PLANET

6

The International Convention for the Prevention of Pollution from Ships (MARPOL) Malgosia Fitzmaurice

7

Land-based sources of marine pollution and dumping at sea Meagan Wong and Niccolò Lanzoni

109

8

Ocean pollution from plastics Jyothi Thomas

128

vii

91

viii 

Research handbook on ocean governance law

9 Noise pollution in the marine environment Georgia Veldeki

151

10

162

Conservation of living marine resources Elda Kazara-Belja

PART III THE INTEGRATED APPROACH FOR SUSTAINABLE OCEAN GOVERNANCE 11

Ocean governance in an era of climate change Simone Borg

179

12

Implementing the ecosystem approach through area-based management Daniela Diz

205

13

The interaction between an Agreement on Biodiversity Beyond National Jurisdiction and the law of the sea David M. Ong

220

PART IV THE BLUE ECONOMY 14

Towards a more inclusive, systemic and multi-regulatory Blue Economy: the case of offshore wind energy Sandra Cassotta

267

15

Advancing a sustainable Blue Economy – case study: fisheries governance in the Indian Ocean Erika Techera

283

16

The submarine cable systems and landing stations in international law Danilo García Cáceres

295

17

Carriage of goods by sea Richard L. Kilpatrick, Jr.

316

18

The cultural heritage at sea Ángeles Jiménez García-Carriazo

325

PART V

THE HUMAN SEA

19

Piracy and armed robbery Andrew Mallia

337

20

Maritime terrorism and trafficking in weapons of mass destruction John Hursh

348

21

Smuggling of migrants and trafficking in persons by sea Patricia Mallia Vella de Fremeaux and Felicity G. Attard

363

Contents  ix 22

Human rights at sea Irini Papanicolopulu

381

Bibliography396 Index434

Contributors

Felicity G. Attard is Lecturer in International Law at the University of Malta. She obtained her Bachelor and Doctor of Laws degrees at the University of Malta. Her doctorate thesis dealt with the contribution of the International Maritime Organization (IMO) to the international law regulating maritime security. She then specialised in international maritime law at IMO International Maritime Law Institute (IMLI), where she obtained an LLM with distinction. She continued her studies at Queen Mary University of London, where she undertook a master’s programme on research in law. She was awarded a first-class degree for her work on the smuggling of persons under the high seas regime. In 2017, she received a MJur in International Maritime Law from IMLI for her research on the duty to render assistance at sea under international law. She completed her PhD studies at the same institute in 2019. Dr Attard has been a teaching assistant at Queen Mary University of London and has lectured on international maritime law at Harvard Law School, the Centre for Commercial Law Studies at the University of London, the IMO International Maritime Law Institute and the International Ocean Institute. Dr Attard is the author of the monograph The Duty of the Shipmaster to Render Assistance at Sea under International Law published by Brill Nijhoff in its Queen Mary Studies in International Law series in 2020. Simone Borg is full Professor, resident academic and Head of the Department of Environmental Law and Resources Law at the Faculty of Laws, University of Malta. She read for her Doctor of Laws (LLD) and Magister Juris (MJur) degrees in International Law at the University of Malta and her PhD at the IMO’s International Maritime Law Institute (IMLI). She is a visiting lecturer at IMLI and has lectured at various universities abroad. Professor Borg started her career as a diplomat with the Ministry of Foreign Affairs, She was Malta’s chief negotiator in various multilateral environmental agreements and is still active in the United Nations Framework Convention on Climate Change (UNFCCC) negotiations as Malta’s ambassador on climate action. She has also drafted national environmental law and policy, worked as a consultant in international environmental law in EU, UN and various international organisations’ projects. In 2017, during Malta’s tenure of the Presidency of the Council of the European Union, she chaired the EU working party on climate negotiations. Professor Borg is a member of the International Union for the Conservation of Nature Commission (IUCN) on Environmental Law and authored various publications in environmental law, ocean governance and climate change, including the book published in Edward Elgar Publishing’s series New Horizons in International Laws, Conservation of Living Marine Resources on High Seas: Harmonizing International Regimes in 2012. In 2017 she received the French National Order of Merit for her work as a diplomat on climate action in Malta and within the international community. Roberto Cassar is Legal Counsel at elseco Limited (Dubai, the UAE). Roberto read law at the University of Malta before proceeding to Leiden University where he obtained a Master of Laws degree in Air and Space Law (cum laude). Roberto is a member of the Board of Editors of the peer-reviewed journal Air & Space Law, and regularly publishes articles and contributes x

Contributors  xi to books. He is invited to lecture on Air and Space Law at the University of Malta on an annual basis. Sandra Cassotta is Associate Professor in International, Environmental and Energy Law at the Department of Law, Aalborg University (Denmark). She was appointed Lead Author on Environmental Governance and Polar Regions at the Intergovernmental Panel on Climate Change (IPCC) United Nations. She specialises in environmental damage and liability problems in a multilevel context. Her expertise is on environmental regime effectiveness in a multi-level governance perspective. Her areas of interest include the environmental dimension of human rights and the law of the sea, law and environmental security and energy security. Daniela Diz is Associate Professor of International Ocean Governance at the Lyell Centre, Heriot-Watt University, and a member of the IUCN-Fisheries Expert Group. Daniela has over 20 years of experience in the field of environmental law and oceans governance. Her main research areas focus on the interface between the law of the sea and the international marine biodiversity law and policy, with a particular emphasis on the law-making and implementation of the ecosystem approach, area-based management tools and environmental assessments. She often conducts policy and legal studies related to marine biodiversity conservation and sustainable use for UN agencies, government institutions and civil society. Malgosia Fitzmaurice holds a chair of public international law at the Department of Law, Queen Mary University of London. Since 2019 she has been elected an Associate Member of the Institut de Droit International, and in 2021 she was awarded the Doctorate Honoris Causa of the University of Neuchâtel. She specialises in international environmental law; the law of treaties; and indigenous peoples. She publishes widely on these subjects. She has delivered a lecture on the ‘International Protection of the Environment’ at the Hague Academy of International Law. Professor Fitzmaurice was invited as a visiting professor to and lectured at various universities, such as Berkeley Law School; University of Kobe; Panthéon-Sorbonne (Paris I). She is Editor in Chief of the International Community Law Review journal and of the book series Queen Mary Studies in International Law, published by Brill/Nijhoff. Danilo García Cáceres is Professor of Public International Law at the Central University of Ecuador and visiting professor at universities in France and Spain. He has a PhD in International Law from the Sorbonne in Paris, and post PhD in Law from the University of Nantes, France. Danilo García has worked on law of the sea and international law in Japan, South Korea, Germany, Madagascar, Togo, Burkina Faso and other countries. Danilo García Cáceres has written a total of five books on international law and more than 20 scientific papers published in different countries around the world. He is a member of the editorial committee of the metropolitan review at the University of Gdansk in Poland and a Member of the International Law Association ASSIDEMER in France. Danilo García Cáceres is the first Ecuadorian lawyer admitted to the list of Assistants of Counsel at the International Criminal Court in the Hague (the Netherlands). John Hursh is Visiting Scholar at the Center for Human Rights and Humanitarian Studies at Brown University. Previously, he served as Director of Research at the Stockton Center for International Law and Editor-in-Chief of International Law Studies at the US Naval War College. He is a graduate of McGill University Faculty of Law, Indiana University Maurer

xii 

Research handbook on ocean governance law

School of Law, Indiana University O’Neill School of Public and Environmental Affairs and Carnegie Mellon University. He is a member of the International Institute of Humanitarian Law. Ángeles Jiménez García-Carriazo is The Nippon Foundation Lecturer on Global Ocean Governance at the IMO International Maritime Law Institute. She completed her law and international relations studies at Comillas Pontifical University (ICADE) and obtained her Master’s degree in European Law from Free University of Brussels. She holds a PhD in Law (University of Jaén, 2017). She is a lawyer admitted to the Madrid Bar Association and a member of the Spanish Association of Lecturers on International Law and International Relations. She joined the Food and Agriculture Organization’s Roster of Experts in 2022. She is the author of the monograph La ampliación de la plataforma continental más allá de las doscientas millas marinas. Especial referencia a España (Dykinson 2018). Elda Kazara-Belja is currently Senior Lecturer at the IMO International Maritime Law Institute. She has participated in international conferences and workshops where she has delivered presentations on issues of the law of the sea, shipping law, marine environmental law and migration at sea. Ms Kazara-Belja joined the IMO’s Roster of Experts in 2012 and the Food and Agriculture Organization’s Roster of Experts in 2018. She is a contributor and co-editor of the second volume of The IMLI Manual in International Maritime Law (OUP 2016). Richard L. Kilpatrick, Jr. is Assistant Professor of Business Law at the College of Charleston in Charleston, South Carolina (USA). He teaches Commercial Law, International Business Law and Maritime Law, and publishes on a range of maritime and international commercial law issues. He holds a Juris Doctor from Tulane University Law School and is a member of the Illinois bar and Maritime Law Association of the United States Vladyslav Lanovoy is Assistant Professor of Public International Law at Université Laval, in Quebec City, Canada. He was formerly an Associate Legal Officer at the International Court of Justice and an Assistant Legal Counsel at the Permanent Court of Arbitration. He holds a PhD from the Graduate Institute in Geneva and is the author of Complicity and its Limits in the Law of International Responsibility (Hart, 2016), which was awarded the 2017 Paul Guggenheim Prize in International Law. Niccolò Lanzoni holds a PhD in International Law from the University of Bologna and has been admitted to the Italian Bar. He is Adjunct Professor at the University of Bologna where he teaches International Labour Law and holds the position of Guest Lecturer at the Eastern Mediterranean University where he teaches International Economic Law. He was part of the Italian delegation before the International Tribunal for the Law of the Sea in the M/V Norstar case. Andrew Mallia is a Lieutenant Colonel (Retd) who served for 25 years in the Armed Forces of Malta (AFM) in various operational, staff and command posts both afloat and ashore. Following his retirement from the military, he now acts as an independent maritime security consultant, working on projects with the IMO, EU and private industry among others. He is a graduate of the IMO’s International Maritime Law Institute (IMLI) Advanced Diploma programme, US Naval War College and Coventry University’s Maritime Security Master’s Programme.

Contributors  xiii Patricia Mallia Vella de Fremeaux is Associate Professor and Head of the Department of International Law at the University of Malta. She graduated in Law from the University of Malta and has a Bachelor of Civil Law from Oxford University. She obtained her PhD from IMO International Law Institute, focusing on contemporary threats to maritime security and, notably, the smuggling of migrants. In 2012 she was awarded the Elisabeth Mann Borghese Fellowship through which she carried out post-doctoral research in the area of the Common Heritage of Mankind. Her research interests focus on issues related to the law of the sea, primarily, on the analysis of contemporary maritime threats, the human element of maritime security and maritime migration. She is the author of Migrant Smuggling by Sea: Combating a Current Threat to Maritime Security through the Creation of a Cooperative Framework, published by Martinus Nijhoff in 2009. She has contributed to a number of books on the subject, published both in Malta and abroad, written several articles and presented on this topic. Norman A. Martínez Gutiérrez is Professor of International Maritime Law at the IMO International Maritime Law Institute. He read Law at the National Autonomous University of Honduras and holds a Master’s (LLM) degree and a Doctor of Philosophy (PhD) degree from the IMO International Maritime Law Institute. Norman has been lecturing in international law and maritime law for more than 20 years. He has acted as an international consultant since the year 2000 and has drafted legislation for governments in several areas of maritime law. Norman has published extensively in the field of international maritime law and is a frequent speaker at international conferences and courses. David M. Ong is Professor of International and Environmental Law at Nottingham Trent University, UK where he fulfils both research and academic leadership roles. His main research interests are in the international law fields of the law of the sea, international environmental law, and international investment and development finance law. He has published articles in major academic law journals and essays in many edited volumes/books, four of which he has also co-edited. Nilüfer Oral is Director of the Centre for International Law at the National University of Singapore, a member of the UN International Law Commission and co-chair of the Study Group on sea-level rise in relation to international law. She was a climate change negotiator for the Turkish Foreign Ministry (2009–16). She is Distinguished Fellow of the Law of the Sea Institute at UC Berkeley Law. She is a member of the editorial board of several international law journals and has published widely. Irini Papanicolopulu is Associate Professor of International Law at the University of Milano-Bicocca (Italy) where she conducts research and teaches in international law, including among others law of the sea, delimitation of maritime boundaries, environmental law, international humanitarian law, human rights law and the protection of cultural heritage. She has previously worked at the University of Oxford and the University of Glasgow (UK) and is a visiting professor at Catolica Global School of Law (Portugal) and at the University of St Gallen (Switzerland). She is the author of International Law and the Protection of People at Sea (OUP, 2018) and ll confine marittimo: Unità o pluralità? [The maritime boundary: Unity or plurality?] (Giuffrè, 2005), the editor of Gender and the Law of the Sea (Brill, 2019) and other collective volumes, as well as the author of numerous articles and book chapters. Irini is Co-Convenor of the Interest Group on Law of the Sea of the European Society of International

xiv 

Research handbook on ocean governance law

Law. She occasionally acts as legal advisor for the Italian Ministry of Foreign Affairs, the Italian Ministry of the Environment, and other states, international organisations and private actors. Erika Techera is Professor of Law at the University of Western Australia. She is an international and comparative environmental law specialist with particular expertise in oceans governance across the Indo-Pacific. Her research interests include marine environmental and natural resources law, small island developing states, maritime heritage and history, and issues at the interface of science, technology and law. She has authored over 100 publications and presentations in books, journals and conference proceedings. Jyothi Thomas is a full-time PhD student at the Department of Environmental and Resources Law, Faculty of Law, University of Malta. She is from India. She holds an LLB degree from the Government Law College, University of Kerala, India, an LLM in Intellectual Property Rights, Constitutional Law and Cyber Law and an MPhil in Human Rights from the Department of Law, University of Kerala, India. Her research interests include the areas of environmental law, international law, environmental conservation and human rights. Georgia Veldeki holds a Bachelor’s degree in International, European and Area Studies (Panteion University of Social and Political Sciences) and a Master’s degree in Ocean Governance (University of Malta in collaboration with International Ocean Institute). She has participated in various summer academies, for example, Summer Academy on the Continental Shelf and Rhodes Academy on Oceans Law and Policy. She has worked on ocean policy issues, focusing on marine renewable energy, protection of the marine environment, and underwater noise in the Hellenic Centre for Marine Research. Meagan Wong is Lecturer in Law at the University of Essex, and the Director of the LLM in International Law. She has published on canonical aspects and specialist sub-fields of public international law in peer-reviewed journals including the International and Comparative Law Quarterly, Max Planck Yearbook of United Nations Law and Chinese Journal of International Law. She is the author of a forthcoming monograph entitled Responsibility of States and Individuals: Aggression at the International Criminal Court (CUP 2021).

Foreword David Joseph Attard1

The 1982 United Nations Law of the Sea Convention (UNCLOS), often referred to as a constitution for the oceans, provides a formidable and sound basis for ocean governance regulating human marine activities. The Convention created a new legal order for ocean space which facilitates international communication, promotes the peaceful use of the oceans, enhances the equitable and efficient utilisation of ocean resources (whether living or non-living) and provides for the protection and preservation of the marine environment. These goals contribute to a just and effective ocean governance by taking into account the interests of humankind with particular emphasis on the needs of developing States. It was difficult, if not impossible, for the drafters of UNCLOS to have envisaged the complex ocean governance challenges which have developed in the past four decades. The astounding technological and economic developments in the exploitation of ocean resources, together with the acute intensification of ocean uses, risk causing irreparable harm to the oceans’ ecological wellbeing and have generated multifaceted and convoluted maritime security issues. Complicating these problems is the threat of climate change which is resulting, inter alia, in sea-level rise, acidification, deoxygenation and ocean warming. Indeed, climate change not only threatens the environmental health of the oceans but also their productivity upon which humanity depends. Conspicuously, the 1982 UNCLOS contains no direct reference to the problems caused by anthropogenic climate change. It is noteworthy to record that the linkage between climate change and the oceans was not the focus of our deliberations in the drafting of the unanimously adopted 1988 United Nations General Assembly Resolution 43/53 entitled ‘Protection of Global Climate for Present and Future Generations of Mankind’. At the time science did not highlight the climate-ocean nexus in the same thorough manner it is doing so today.2 When UNCLOS was open for signature and even later when it came into force, the marine plastic pollution crisis and the exploitation of living resources of the deep seabed were not perceived as an urgent cause of concern requiring international regulation. Similarly, beyond the usual threats of piracy and belligerence, certain maritime security issues, like migration and human rights at sea, were not recognised to be as challenging and complex as they are in the twenty-first century. Whilst UNCLOS remains the cornerstone of the oceans’ governance, it is today complimented by a vast amount of legal instruments and prescriptions adopted by various international and regional bodies. Particularly noteworthy are the achievements of the International Maritime Organization (IMO) and the Food and Agriculture Organization (FAO). These organisations, together with others, pre-existed UNCLOS but work within its framework in Judge UN International Tribunal for the Law of the Sea and Director of the IMO International Maritime Law Institute. 2 IPCC, 2019: IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (H-O Pörtner and others (eds), CUP 2019), https://​doi​.org/​10​.1017/​9781009157964 is the third in a series of three Special Reports in the current Sixth Assessment Report (AR 6) cycle. 1

xv

xvi 

Research handbook on ocean governance law

regulating ocean affairs, which fall under their mandate. In the case of the IMO, it has adopted over 50 international maritime treaties and literally hundreds of prescriptions in order to secure cleaner oceans and safer shipping. Indeed, the IMO has today become the world’s leading institutional source of international maritime law. Reference can also be made to important legislative developments under the auspices of other organisations. This proliferation has caused serious issues of fragmentation in ocean governance. It will be recalled that the UNCLOS Preamble proclaims that the problems of ocean space are closely interrelated and need to be considered as a whole. Whilst policy and legislative responses to ocean problems continue to be developed at an increasing rate, there lacks an institutional structure to ensure their coordination and enforcement. In the light of the magnitude of the problems and the limited resources, authority is needed to support the creation of a cross-sectional and integrated policy on global ocean governance which may lead to decisive action by coordinating the intergovernmental and interagency efforts as well as those of all stakeholders. It is of growing concern that States lack the national expertise to incorporate international rules into their municipal law, as domestic courts are often the only method by which such rules can be enforced. This reality is evident in the experience of the IMO which, with one minor exception, has no strong enforcement powers to ensure the implementation of its prescriptions. The failure of States to incorporate rules vital to proper ocean governance demonstrates the need to promote research and training, particularly in developing countries. For this reason, this Research Handbook on Ocean Governance is a most welcome and an important addition to the literature on the subject. The editors have succeeded in providing a compendium of studies, written by eminent scholars, which cover the more important aspects of ocean governance and will be of valuable assistance in the efforts to enhance capacity building. This Research Handbook should be of great interest to the practitioner, diplomat and student. The risk of failure in providing adequate protection to the oceans is still alarmingly high. Although the remarks, hereunder, by Ambassador Pardo to the First Committee of the United Nations General Assembly were made on 1 November 1967, they are still relevant today: The dark oceans were the womb of life: from the protecting oceans life emerged. We still bear in our bodies – in our blood, in the salty bitterness of our tears – the marks of this remote past. Retracing the past, man, the present dominator of the emerged earth, is now returning to the ocean depths. His penetration of the deep could mark the beginning of the end for man, and indeed for life as we know it on this earth. It could also be a unique opportunity to lay solid foundations for a peaceful and increasingly prosperous future for all peoples.

Through this Research Handbook, the editors and authors have provided a valuable multi-disciplinary tool in humanity’s quest to protect the Blue Planet. Indeed, we should be grateful to them for their inspirational endeavours.

Preface and acknowledgements

We are very pleased to launch this publication on the fiftieth anniversary of the United Nations Conference on the Human Environment, held in Stockholm in 1972. This meeting is regarded by many as the pivotal moment when the international community came in touch with the stark reality that the good governance of natural resources is instrumental for international peace and security, that humankind’s well-being, or rather its very existence, is intrinsically linked to the good governance of the planet’s natural resources. Also noteworthy is the fact that this publication is being released in the year which marks the fortieth anniversary of the adoption of UNCLOS, the Constitution of the Oceans, as the Research Handbook provides a compendium of academic papers that address aspects of ocean governance which are both traditional as well as emerging, dealing with the regulation of ocean space. It is a great year to commemorate also the thirtieth anniversary of the United Nations Conference on Environment and Development (UNCED), the opening for signature of two of the most influential treaties namely the United Nations Framework Convention on Climate Change (UNFCCC) and the United Nations Convention on Biological Diversity (CBD). UNCED provided new methodologies to combat the degradation of natural resources as advocated by the concept of sustainable development which has now been further elaborated upon under the 17 Sustainable Development Goals. Similarly, the UNFCCC and the CBD have been instrumental in highlighting the integrated approach for sound ocean governance, as the health of the ocean is intrinsically linked to the fight against climate change and biodiversity loss. The link between this publication and all these anniversaries is not only coincidental but also reflects the most salient aspects of the contributions made by the authors to this Research Handbook. We would like to express our gratitude to our families for their patience and support throughout this long-drawn-out task and to our contributors who have worked miracles during these 24 months in the midst of the COVID-19 pandemic. It is a great privilege that Professor David J Attard, Judge of the United Nations International Tribunal for the Law of the Sea, has accepted our invitation to write the foreword. We wish to record our appreciation for his mentoring throughout our careers and especially for instilling in us a passion for the law on ocean governance. We wish to thank our academic and administrative colleagues at the Faculty of Laws, University of Malta for their continuous assistance and encouragement. Our thanks also go to Laura Mann from the publishing team at Edward Elgar Publishing for her encouragement and for being ever so efficient in answering our queries. We are very grateful to Edward Elgar Publishing for the opportunity to edit and contribute to this Research Handbook on Ocean Governance Law. Last but not least, to Paul Borg Cutajar for his technical support as we finalised the editing of this Research Handbook.

xvii

Abbreviations

AALCO Aarhus Convention ABMT ABNJ ACCOBAMS ADIZs AIS APPS Art ASAs ASCOBANS Barcelona Convention BATBEP BATs BBNJ BCE BE BEPs BIMCO Black Sea Convention Bucharest Convention CATOC CBD CBT CCAMLR CCMLR CEAP

Asian African Legal Consultative Organization Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Area-based management tool Areas Beyond National Jurisdiction Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic area Air defence identification zones Automatic Identification System Act to Prevent Pollution from Ships Article Air services agreements Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas Convention for the Protection of the Mediterranean Sea Against Pollution Best available technology and best environmental practice Best Available Techniques Biodiversity Beyond National Jurisdiction Before the Current Era Blue Economy Best Environmental Practices Baltic and International Maritime Council Convention for the Protection of the Black Sea Convention on the Protection of the Black Sea against Pollution United Nations Convention against Transnational Organized Crime Convention on Biological Diversity Clean Ballast Tanks Convention on the Conservation of Antarctic Marine Living Resources Commission of the Convention on the Conservation of Antarctic Marine Living Resources Circular Economy Action Plan xviii

Abbreviations  xix CEP CFP CHIPS CHM CLC Convention CLCS CMC CMS CNRS CO2 COLREGS COP COPUOS COW CPUCH CSC CSI CUP CZ dB DDT DEA DWF EAF EBM EBSA EC ECA ECHR ECtHR EEA EEB EEC EEZ

Caribbean Environment Programme Common Fisheries Policy Clearing House Interbank Payment System Common heritage of mankind International Convention on Civil Liability for Oil Pollution Damage Commission on the Limits of the Continental Shelf Computer-Mediated Communication Convention on the Conservation of Migratory Species of Wild Animals French Scientific Research National Centre Carbon dioxide Convention on the International Regulations for Preventing Collisions at Sea Conference of the Parties Committee on the Peaceful Uses of Outer Space Crude Oil Washings Convention on the Protection of the Underwater Cultural Heritage Geneva Convention on the Continental Shelf Container Security Initiative Cambridge University Press Contiguous Zone Decibel Dichloro-diphenyl-trichloroethane Danish Energy Agency Distant Water Fishing Vessels Ecosystem approach to fisheries Ecosystem based management Ecologically or biologically significant marine area European Commission Emission Control Area Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights European Environment Agency European Environmental Bureau European Economic Union Exclusive Economic Zones

xx  Research handbook on ocean governance law EIA EPA EPR ERA EU FAO FAO’s CCRF FIRs Fishing Convention FMCZ FSA

GAFAM GAM GES GESAMP GHG GoG GPA GPML HELCOM Helsinki Convention HGO HRW HVDC IBC Code ICAO ICCPR ICESCR ICJ ICJ Rep

Environmental Impact Assessment Environmental Protection Agency Extended Producer Responsibility Environment and Resources Authority, Malta European Union Food and Agriculture Organization of the United Nations Food and Agriculture Organization of the United Nations’ Code of Conduct for Responsive Fisheries Flight information regions Convention on Fishing and Conservation of the Living Resources of the High Seas Fisheries Management Conservation Zone 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 Google, Apple, Facebook, Amazon, and Microsoft Gerakan Aceh Merdeka – Free Aceh Movement Good Environmental Status Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection Greenhouse gas Gulf of Guinea Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities Global Partnership on Marine Litter Helsinki Commission Convention on the Protection of the Marine Environment of the Baltic Sea Area Heavy grade oil Human Rights Watch High-Voltage Direct Current International Bulk Chemical Code International Civil Aviation Organization International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Court of Justice Reports

Abbreviations  xxi ICLR ICPC ICRW IFREMER IGC IGRs IHO ILA ILC ILM ILO ILR IMCAM IMCO IMGD Code IMO IMP INTERTANKO IOC IOM IOPC IOPP IORA IOTC IPBES IPCC ISA ISPS Code ITLOS ITU IUCN IUU IWC JMT LBS LJIL

International Community Law Review International Cable Protection Committee International Convention for the Regulation of Whaling French Research Institute for the Exploitation of the Sea Intergovernmental Conference Intergovernmental Review Meetings International Hydrographic Organization International Law Association International Law Commission International Legal Materials International Labour Organization International Law Reports Integrated Marine and Coastal Area Management Inter-Governmental Maritime Consultative Organization International Maritime Dangerous Goods Code International Maritime Organization EU Integrated Maritime Policy International Association of Independent Tanker Owners Intergovernmental Oceanographic Commission International Organization for Migration International Oil Pollution Compensation International Oil Pollution Prevention Indian Ocean Rim Association Indian Ocean Tuna Commission Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services Intergovernmental Panel on Climate Change International Seabed Authority International Ship and Port Facility Security Code International Tribunal for the Law of the Sea International Telecommunication Union International Union for Conservation of Nature and Natural Resources Illegal, Unreported and Unregulated (Fishing) International Whaling Commission Joint Management Treaty Land-Based Sources Leiden Journal of International Law

xxii  Research handbook on ocean governance law LME LNTS LRIT MAP MARPOL MEPC MGC MJIL MLC 2006 MoP MPA MS MSC MSF MSFD MSP MSPD MSR NATO NDCs NGO NOAA NOx NSA NSAC NSWPH NYPE NYU ODS OECM Offshore Protocol OILPOL OJ

Large Marine Ecosystem League of Nations Treaty Series Long-Range Identification and Tracking Mediterranean Action Plan International Convention for the Prevention of Pollution from Ships Marine Environment Protection Committee Marine genetic resources Maryland Journal of International Law Maritime Labour Convention 2006 Meeting of the Parties Marine Protected Area Member States Maritime Safety Committee Médecins Sans Frontières Marine Strategy Framework Directive Marine spatial planning Marine Spatial Planning Directive Marine Scientific Research North Atlantic Treaty Organization Nationally Determined Contributions Non-governmental organization National Oceanic and Atmospheric Administration Nitrogen oxides National Security Agency of United States North Sea Advisory Council North Sea Wind Power Hub New York Produce Exchange New York University Ozone Depleting Substances Other effective area-based conservation measure Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil International Convention for the Prevention of Pollution of the Sea by Oil Official Journal of the European Union

Abbreviations  xxiii OSPAR Convention OUP PAG Para PCA PCASP PCB PCIJ PFR PIISL PM POPs PPE PSC PSI PSMA PSSA RAC/SPA Refugee Convention Rep RES RFMO RIAA Rio + 20 Conference RIPE NCC RSC RSCAPs SARCon SBSTA SBT SDG SEA

Convention for the Protection of the Marine Environment of the North-East Atlantic Oxford University Press Pirate Action Group Paragraph Permanent Court of Arbitration Privately Contracted Armed Security Personnel Polychlorinated biphenyl Permanent Court of Justice Piracy for ransom Proceedings of the International Institute of Space Law Particulate matter Persistent organic pollutants Personal Protective Equipment Port State Control Proliferation Security Initiative Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing Particularly Sensitive Sea Area Regional Activity Centre for Specially Protected Areas Convention Relating to the Status of Refugees Reports Renewable Energy Directive on the Promotion of the use of Energy from Renewable Sources (2018) Regional Fisheries Management Organization Reports of International Arbitral Awards United Nations Conference on Sustainable Development Réseaux IP Européens - Network Coordination Centre Regional Seas Conventions Regional Seas Conventions and Action Plans International Convention on Maritime Search and Rescue UNFCCC Subsidiary Body for Scientific and Technological Advice Segregated Ballast Tanks Sustainable Development Goal Strategic Environmental Assessment

xxiv  Research handbook on ocean governance law SECAs SHOM SIAs SIP SL Smuggling Protocol SOFAR SOLAS SOx SPAW SPED SPREP SRFC SROCC SUA Convention SUP SWA SWIFT TAT TFG TG NOISE TPC Trafficking Protocol UCH UDHR UK UMLR UN UNCED UNCHE UNCITRAL UNCLOS

Sulphur Emissions Control Areas Hydrographic and Oceanographic Service of the French Navy Social Impact Assessments Statement of Interdiction Principles Subsidiary Legislation Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime Sound Fixing and Ranging International Convention for the Safety of Life at Sea Sulphur oxide Specially Protected Areas and Wildlife Protocol Strategic Plan for Environment and Development Convention for the Protection of the Natural Resources and Environment of the South Pacific Region Sub-Regional Fisheries Commission Special Report on the Oceans and Cryosphere in a Changing Climate Convention for the Suppression of Unlawful Acts at Sea Single-use plastic Armoured cable Society for World Interbank Financial Telecommunications Transatlantic Telephone Cable System Transitional Federal Government (Somalia) Technical Group on Underwater Noise Trans-Pacific Submarine Cable System Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime Underwater Cultural Heritage Universal Declaration of Human Rights United Kingdom University of Miami Law Review United Nations United Nations Conference on Environment and Development United Nations Conference on the Human Environment United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea

Abbreviations  xxv UNCLOS I UNCLOS III UNCTAD UNE UNEA UNEP UNESCO UNFCCC UNFSA

UNGA UNGAOR UNHCR UNICPOLOS UNODC UNSC UNSCR UNTS UNWC US USD VCLT VOC WCPA WCR WMD WMO WWF YBIL

First United Nations Conference on the Law of the Sea Third United Nations Conference on the Law of the Sea United Nations Conference on Trade and Development United Nations Environment United Nations Environmental Assembly United Nations Environmental Programme United Nations Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change The United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks United Nations General Assembly United Nations General Assembly Official Records United Nations High Commissioner for Refugees United Nations’ Open Ended Informal Consultative Process on Oceans and the Law of the Sea United Nations Office on Drugs and Crime United Nations Security Council United States Security Council Resolution United Nations Treaty Series Convention on the Law of the Non-Navigational Uses of International Watercourses United States of America United States Dollars Vienna Convention on the Law of Treaties Volatile Organic Compounds World Commission on Protected Areas (IUCN) Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region Weapons of mass destruction World Meteorological Organization World Wildlife Fund Yearbook of International Law

Table of cases

INTERNATIONAL ‘Camouco’ (Panama v France) (Prompt Release) (Judgement) [2000] ITLOS Rep 10 85 ‘Enrica Lexie’ (Italy v India) (Provisional Measures) [2015] ITLOS Rep 182 84 Aegean Sea Continental Shelf (Greece v Turkey) (Provisional Measures) [1976] ICJ Rep 3 80 Arctic Sunrise Arbitration (Netherlands v Russian Federation) (Award on Jurisdiction) (2015) 171 ILR 1 76 Arctic Sunrise Arbitration (Netherlands v Russian Federation) (Award on the Merits) (2015) 171 ILR 1 81 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (Award) (2014) 167 ILR 1 79, 80, 86 Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) (Merits) [1999] ICJ Rep 1045 49 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ Rep 14 15 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award) (2015) 31 RIAA 359 76 Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait (Ukraine v Russian Federation) 191 ILR 1 76 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (Judgement) [1949] ICJ Rep 4 30 Corinna Horvath v. Australia, Communication No. 1885/2009 389 Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 100 80 Delimitation of the Exclusive Economic Zone and the Continental Shelf (Barbados v Trinidad and Tobago) (2006) 27 RIAA 147 79 Delimitation of the Maritime Boundary (Guyana v Suriname) (Award) (2007) 30 RIAA 1 80 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Judgment) [2017] ITLOS Rep 4 79– 81, 86 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Provisional Measures) [2015] ITLOS Rep 146 84, 85 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Judgment) [2012] ITLOS Rep 4 78, 79, 86 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment) [1984] ICJ Rep 246 79 Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation) (Provisional Measures) (Order of 25 May 2019) 84 Duzgit Integrity Arbitration (Malta v São Tomé  and Príncipe) (Award) (2016) 173 ILR 95, PCA Case No 2014-07 81 Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116 34 Fisheries Case (UK v Norway) (Dissenting Opinion of Judge J.E. Read) [1951] ICJ Rep 116 51 Fisheries Jurisdiction (Spain v Canada) (Jurisdiction), Judgment of 4 December 1998, [1998] ICJ Rep 432 387 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ Rep 3 88 Investigation of Certain Incidents Affecting the British Trawler Red Crusader (The United Kingdom, Denmark) (1962) 29 RIAA 523 387 Ireland v. United Kingdom (OSPAR Arbitration), PCA Case No 2001-03, Final Award (2 July 2003) 116

xxvi

Table of cases  xxvii Land Reclamation in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures) [2003] ITLOS 10 85 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 88 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (Judgment) [1969] ICJ Rep 3 26 M/V ‘Louisa’ (Saint Vincent and the Grenadines v Spain) (Judgment) [2013] ITLOS Rep 4 82 M/V ‘Virginia G’ (Panama/Guinea-Bissau) (Judgment) [2014] ITLOS Rep 4 78, 81 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 40 78 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) (Judgment) [1993] ICJ Rep 38 79 Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61 79 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (Judgment) [2018] ICJ Rep 139 80 Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Preliminary Objections) [2017] ICJ Rep 3 75 Maritime Delimitation in the Indian Ocean (Somalia v Kenya) Appendix to the Republic of Kenya’s Application to Submit New Evidence and Written Submissions of 22 February 2021 79 Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3 33, 79 Prosecutor v Anto Furundzija (Judgment of the Trial Chamber) IT-95-17/1 (10 December 1998) 389 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, [2012] ICJ Rep 422 389 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SFRC) (Advisory Opinion) [2015] ITLOS Rep 4 77, 83, 87, 88 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber), Advisory Opinion of 1 February 2011, ITLOS Rep 2011, 10 18, 111 South China Sea Arbitration (Philippines v China) (Merits) (Award) [2016] 33 RIAA 153 78 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures) [1999] ICJ Rep 280 85 Southern Bluefin Tuna Case (Australia v Japan; New Zealand v Japan) (Award on Jurisdiction and Admissibility) (2000) 23 RIAA 1 75 SS ‘Lotus’ (France v Turkey) [1927] PCIJ Series A, No 10 24 Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624 78 Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 79, 80 The North Atlantic Coast Fisheries Case (Great Britain, United States), 7 September 1910, XI RIAA 167 29 The M/T ‘San Padre Pio’ Case (Switzerland v Nigeria) (Provisional Measures) (Order of 6 July 2019) 84 The M/V ‘Saiga’ (No 2) Case (Saint Vincent and the Grenadines v Guinea), Judgment of 1 July 1999 387 The Mox Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Rep 2001, 89 109 Timor Sea Conciliation (Timor-Leste v Australia) (Decision on Australia’s Objections to Competence) (2016) PCA Case No 2016-10 72 Timor Sea Conciliation (Timor-Leste v Australia) (Report and Recommendations) (2018) PCA Case No 2016-10 72

REGIONAL Ali Samatar and Other v France Apps nos 17110/10 and 17301/10 (Judgment of 4 December 2014) 391 Al-Skeini and Others v The United Kingdom App no 55721/07 (Judgment (GC) of 7 July 2011) 387 Bakanova v Lithuania, App no 11167/12 (Judgment of 31 May 2016) 387

xxviii  Research handbook on ocean governance law Drieman and Others v Norway, App no 33678/96 (Decision of 4 May 2000) 393 Gafgen v. Germany, App no 22978/05 (Judgment (GC) of 1 June 2010) 389 Hassan and Others v France Apps nos 46695/10 and 54588/10 (Judgment of 4 December 2014) 391 Hirsi Jamaa and Others v Italy App no 27765/09 (Judgment (GC) of 23 February 2012) 377, 390 Kebe and Others v Ukraine, App no 12552/12 (Decision of 12 January 2017) 393 Kolyadenko and Others v Russia, Apps nos 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05 (Judgment of 28 February 2012) 386 Makaratzis v Greece App no 50385/99 (Judgment of 20 December 2004) 387 María Mejía v. Guatemala, Case 10.553, Report No. 32/96 389 McCann and Others v United Kingdom App no 18984/91 (Judgment (GC) of 27 September 1995) 385 Medvedyev and Others v France App no 3394/03 (Judgment (GC) of 29 March 2010) 390 MSS v Belgium App no 30696/09 (ECtHR, Judgment (GC) of 21 January 2011) 377 Osman v the United Kingdom App no 87/1997/871/1083 (Judgment (GC) of 28 October 1998) 385 Pueblo Bello Massacre v Colombia (Merits, Reparations and Costs) Inter-American Court of Human Rights Series C No 159 (31 January 2006) 385 Rigopoulos v Spain App no 37388/97 (Decision of 12 January 1999) 391 Streletz, Kessler and Krenz v Germany, Apps nos 34044/96, 35532/97 and 44801/98, Judgment [GC] of 22 March 2001 385 The “Panel Blanca” v. Guatemala (Paniagua-Morales et al.), Judgment of 8 March 1998 389 Vassis and Others v France App no 62736/09 (Judgment of 27 June 2013) 391 Velásquez-Rodríguez v. Honduras, Judgment of 29 July 29, 1988 389 Vilnes and Others v Norway, Apps nos 52806/09 and 22703/10 (Judgment of 5 December 2013) 386 Z. and Others v. the United Kingdom, App no 29392/95 (Judgment (GC) of 10 May 2001) 389

NATIONAL A and SIA North Star Ltd v. The public prosecution authority (of Norway), The Supreme Court (of Norway) HR-2019-282-S, (case no. 18-064307STR-HRET), criminal case, appeal against judgment, delivered on 14 February, 2019 230 Castle John v NV Mabeco (1986) 77 ILR 537 (Court of Cassation, Belgium) 351 Citgo Asphalt Refining Co et al v. Frescati Shipping Co Ltd (140 S.Ct 1081, 2020) 323 Chris Sale, Acting Commissioner, Immigration and Naturalization Service, et al. v. Haitian Centers Council, Inc. et al. (US SC, 21 June 21 1993) 509 US 155 377 Institute of Cetacean Research v Sea Shepherd Conservation Society (2013) 725 F.3d 940 (9th Cir) 351 SS ‘I’m Alone’ (Canada, United States) (1949) 3 RIAA 1609 387

ADVISORY OPINION Advisory Opinion of the Sea-bed Disputes Chamber, International Tribunal for the Law of the Sea (ITLOS) Case No.17, 1 February, 2011 111, 245, 247, 265

Table of legislation

EUROPEAN UNION Directives Directive 79/409 on the Conservation of Wild Birds, OJ 1979 L 103/I as amended by Directive 2006/105, OJ 2006 L 363/368 277 Directive 85/337/EEC of June 27, 1985 on the assessment of the effects of certain public and private projects on the environment. (OJ L 175, 5.7.1985) 40-48 299 Directive 92/43 on the Conservation of Natural Habitats and wild Fauna and Flora of 21 May 1992, OJ 1992 L 206/7 143, 277 Directive 97/11 / EC of 3 March 1997 amending Directive 85/337 / EEC on the assessment of the effects of certain public and private projects on the environment. (Official Journal of the European Union-OJEU L 73, 14.3.1997) 5-15 299 Directive 98/15/EC with respect to certain requirements established in Annex I thereof amending Council Directive 91/271/EEC concerning urban waste-water treatment [1998] OJ L67/29 143 Directive 2000/60/EC establishing a framework for Community action in the field of water policy [2000] OJ L327/1 143 Directive 2003/35/EC of the European Parliament and of the Council of May 26, 2003, providing for the participation of the public in the preparation of certain plans and programs relating to the environment, and amending, as regards the participation of the public and the access to justice, Council Directives 85/337/EEC and 96/61/ EC - Commission statement. (OJEU L 156, 25.6.2003) 17-25 299 Directive 2008/56/EC establishing a framework for community action in the field of marine environmental policy [2008] OJ L164/19 140 Directive 2009/123/EC amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52 141

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment. (codification) (Text of interest to the EEA. OJ L 6, 28.1.2012) 1-21 299 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning (OJEU L 257/135, 28.8.2014) 35-36, 269, 276 Directive (EU) 2015/720 amending Directive 94/62/EC as regards reducing the consumption of lightweight plastic carrier bags [2015] OJ L115/11 141 Directive (EU) 2018/850 amending Directive 1999/31/EC on the landfill of waste [2018] OJ L150/100 143 Directive (EU) 2018/851 amending Directive 2008/98/EC on waste [2018] OJ L150/109 142 Directive (EU) 2018/852 amending Directive 94/62/EC on packaging and packaging waste [2018] OJ L150/141 142 Directive 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources (2018) OJ L 328/82 276 Directive (EU) 2019/883 on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC [2019] OJ L151/116 141 Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment [2019] OJ L155/1 141, 146

NATIONAL  Bangladesh The Marine Fisheries Ordinance, 1983 (Ordinance No. XXXV Of 1983) (Bangladesh) 291 The Protection and Conservation of Fish Act, 1950 (East Bengal Act No. XVII OF 1950) (Bangladesh) 291

xxix

xxx  Research handbook on ocean governance law Kenya Fisheries Management and Development Act, 2016 (No. 35 of 2016) (Kenya) 291

Malta Constitution of Malta, Chapter 1 of the Laws of Malta 145 Development Planning Act (2016), Chapter 552 of the Laws of Malta 36 Environment Protection Act, Chapter 549 of the Laws of Malta 145 Marine Pollution (Prevention and Control) Act, Chapter 271 of the Laws of Malta 146 Maritime Spatial Planning Regulations, Chapter 552 of the Laws of Malta, S.L.552.27 36 Merchant Shipping (Prevention of Pollution by Garbage) Regulations, S.L. 234.33 146 Regulations on Port Reception Facilities for Ship-generated Wastes and Cargo Residues, S.L. 499.30 147 Restrictions on the Placement on the Market of Single-Use Plastic Products Regulations, S.L. 549.140 146 Territorial Waters and Contiguous Zone Act (1971), Chapter 226 of the Laws of Malta 35 Urban Waste Water Treatment Regulations, S.L. 549.22 147 Waste Management (Packaging and Packaging Waste) Regulations, S.L 549.43 147

Waste Regulations, S.L. 549.63 147 Water Policy Framework Regulations, S.L. 549.100 147

South Africa Marine Living Resources Act (1998) (South Africa) 286

Sri Lanka Fisheries and Aquatic Resources Act, 1996 (No. 2 of 1996) (Sri Lanka) 291 UK UK Carriage of Goods by Sea Act 1971 319 US Act to Prevent Pollution from Ships, 33 USC 1901 96, 106 Drug Trafficking Vessel Interdiction Act 2008, 18 § USC 2285 372 The Florida Keys National Marine Sanctuary and Protection Act (P.L. 101-605) 103 The Hawaiian Islands National Marine Sanctuary and Protection Act (P.L. 102-587) 103 The Oceans Act of 1992 (P.L. 102-587) 103 US Carriage of Goods by Sea Act 1936, 46 USC 30701 note (formerly 46 USC app ss 1300-1315) 323 US Harter Act 1893, 46 USC 30701 323

Table of treaties

MULTILATERAL TREATIES 1910 International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea (adopted 23 September 1910, entered into force 1 March 1913) UKTS 4 (1913) 385 1919 Convention relating to the Regulation of Aerial Navigation (adopted 13 October 1919, entered into force 1 June 1922) 297 LNTS 173 48-51, 55 1924 International Convention for the Unification of Certain Rules relating to Bills of Lading (27 August 1924, entered into force 2 June 1931) 120 LNTS 155 318 1926 Slavery Convention (adopted 25 September 1926, entered into force 9 March 1927) 60 LNTS 253 388 1935 Convention for Regulation of Whaling (adopted 24 September 1931, entered into force on 16 January 1935) 155 LNTS 349 15 1937 Agreement for the Regulation of Whaling (adopted 8 June 1937) 190 LNTS 79 15 1944 Convention on International Civil Aviation (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295 48 1945 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI 182 1946 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72 (ICRW) 15, 45, 172 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 381 1951 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 376 1954 International Convention for the Prevention of Pollution of the Sea by Oil (adopted 12 May 1954, entered into force 26 July 1958) 372 UNTS 3 (OILPOL) 92, 109 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted 29 April 1958, entered into force 20 March 1966) 559 UNTS 285 15, 34 1958 Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311 43, 60, 304 1958 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11 40, 110, 304, 385 1958 Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 UNTS 205 27, 30 1962 Convention on the International Regulations for Preventing Collisions at Sea (adopted 10 October 1962, entered into force 15 July 1977) 1050 UNTS 16 388 1966 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 May 1976) 999 UNTS 171 381 1966 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 381 1966 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 19 December 1966, entered into force 10 October 1967) 610 UNTS 205 45 1967 Protocol to the Convention Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 376 1968 Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (23 February 1968, entered into force 23 June 1977) 1412 UNTS 127 319

xxxi

xxxii  Research handbook on ocean governance law 1969 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 49 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 13 November 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Dumping Convention) 122-123, 131, 134, 190 1973 International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973, entered into force 12 October 1983) 1340 UNTS 184 (MARPOL) 45, 91-108 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources (adopted 4 June 1974, entered into force 6 May 1978) 1546 UNTS 103 114 1974 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 278 (SOLAS) 46, 385 1975 International Convention on Civil Liability for Oil Pollution Damage (adopted 29 November, entered into force 19 June 1975) replaced by 1992 Protocol (adopted 27 November 1992, entered into force 30 May 1996) 973 UNTS 3 93 1978 (1978 Protocol to MARPOL), Protocol relating to the International Convention for the Prevention of Pollution from Ships (adopted 17 February 1978, entered into force 2 October 1983) 1341 UNTS 3 131 1978 United Nations Convention on the Carriage of Goods by Sea (31 March 1978, entered into force 1 November 1992) 1695 UNTS 3 319 1979 Convention on the Conservation of Migratory Species of Wild Animals (concluded on 23 June 1979, entered into force on 1 November 1983) 1651 UNTS 333 (Bonn Convention) 171 1979 Convention on Long-Range Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217 114 1979 International Convention on Maritime Search and Rescue (adopted 27 April 1979, entered into force 22 June 1985) 1405 UNTS 97 56, 373, 386 1982 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) 11, 24, 52, 60, 94, 109, 128, 155, 162, 195, 269, 286, 297, 325, 337, 348, 367 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85 389 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (adopted 10 March 1988, entered into force 01 March 1992) No. 29004 as amended by the 2005 Protocol (adopted 14 October 2005, entered into force 28 July 2010) 1678 UNTS 222 387 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (adopted 20 December 1988, entered into force 11 November 1990) 1582 UNTS 164 374 1989 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 57 133 1992 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (adopted 27 November 1992, entered into force 30 May 1996) 1953 UNTS 330 93 1992 United Nations Convention on Biological Diversity (adopted on 5 June 1992, entered into force on 29 December 1993) 1760 UNTS 79 (CBD) 46, 163, 205 1992 United Nations Framework Convention on Climate Change, in force 21 March 1994, 1771 UNTS 107 (UNFCCC) 12, 21, 274 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (adopted 24 November 1993, entered into force 24 April 2003) 2221 UNTS 91 (FAO Compliance Agreement) 169 1995 Code of Conduct for Responsible Fisheries, Food and Agricultural Organization of the United Nations, Rome 1995 (Code of Conduct) 176 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (UNFSA) 75, 162, 195 1996 International Convention on Salvage (adopted 28 April 1989, entered into force 14 July 1996) 1953 UNTS 385

Table of treaties  xxxiii 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 08 November 1996, entered into force 24 March 2006) (1997) 36 ILM 1 131 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17 August 2014) 2999 UNTS 113 1998 Convention on access to information, public participation in the decision-making and access to justice in environmental matters ( adopted on the 25 June of 1998, entered into force 30 October 2001) 2161 UNTS 447) (AARHUS) 278 1998 Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations. (Adopted on 18 June 1998, entered in force on 8 January 2005) 2296 UNTS 5 314 1999 International Convention for the Suppression of Terrorist Bombing (adopted 23 March 1999, entered into force 23 May 2001) 2149 UNTS 256 353 1999 International Convention for the Suppression of the Financing of Terrorism (adopted 9 December 1999, entered into force 10 April 2002) 2178 UNTS 229 353 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 28 January 2004) 2241 UNTS 480 388 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered in force 29 September 2003) 40 ILM 335 364, 367 2000 United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2000) 2225 UNTS 209 364 2001 Convention on the Protection of the Underwater Cultural Heritage (adopted 2 November 2001, entered into force 2 January 2009) 2562 UNTS 325 2001 International Convention on the Control of Harmful Anti-Fouling Systems on Ships (adopted 5 October 2001, entered into force 17 September 2008) Can TS 2010 15 107 2001 Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) (2001) 40 ILM 531 132 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 February 2004, entered into force 8 September 2017) 30 ILM 1455 107 2005 International Convention on the Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July 2007) 2445 UNTS 89 353 2005 Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (adopted 14 October 2005, entered into force 28 July 2010) LEG/CONF.15/21 351 2006 Maritime Labour Convention (adopted 23 February 2006, entered into force 20 August 2013) 2952 UNTS 392 2007 Work in Fishing Convention (No 188) (adopted 14 June 2007, entered into force 16 November 2017) 392 2008 United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rules) (adopted 11 December 2008, not yet entered into force) UN Doc A/ RES/63/122 annex 320 2009 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, 288 2015 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) TIAS No. 16-1104 22

REGIONAL TREATIES 1974 Convention on the Protection of the Marine Environment of the Baltic Sea (adopted 22 March 1974, entered into force 3 May 1980) 1507 UNTS 166 115, 157 1976 Convention for the Protection of the Mediterranean Sea against Pollution (adopted 16 February 1976, entered into force 12 February 1978) as amended in 1995, 1102 UNTS 27 117, 157 1978 Convention on Future Multilateral co-operation in the North-West Atlantic Fisheries 1135 UNTS 369 (with amendments in 1980, 1987, 1996, 2007). In force 15 September 2017.(NAFO) 205

xxxiv  Research handbook on ocean governance law 1978 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution (adopted 24 April 1978, entered into force 30 June 1979) 1140 UNTS 133 139 1980 Convention on the Conservation of Antarctic Marine Living Resources (signed on 20 May 1980, entered into force on 7 April 1982) 1329 UNTS 47 (CCAMLR) 162 1980 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 105 and subsequent Amendments (adopted 7 March 1996, entered into force 11 May 2008) 2943 UNTS 114 1981 African Charter on Human and People’s Rights (adopted 22 June 1981, entered into force 21 October 1986) 1520 UNTS 217 381 1981 Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (adopted 23 March 1981, entered into force 5 August 1984) ECOLEX TRE-000547 138 1981 Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (adopted 12 November 1981, entered into force 19 May 1986) UNEP (092)/M352 139 1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden (adopted 14 February 1982, entered into force 20 August 1985) (1983) 22 ILM 219 139 1983 Convention for the Protection and Development of the Marine Environment in the Wider Caribbean Region (adopted 24 March 1983, entered into force 11 October 1986) 1506 UNTS 157 138 1983 Protocol for the Protection of the South-East Pacific against Pollution from Land-Based Sources (adopted 22 July 1983, entered into force 23 September 1986) 1648 UNTS 114 1985 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) 91 RGDIP 1122 (1993) UNEP Register 228 138 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (adopted 24 November 1986, entered into force 22 August 1990) (1987) 26 ILM 41 139 1986 Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (adopted 25 November 1986, entered into force 22 August 1990) (1987) 26 ILM 65 126 1992 Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (concluded on 17 March 1992, entered into force on 29 March 1994) 1772 UNTS 217 (ASCOBANS) 171-172 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) 2345 UNTS 67 19, 102, 114, 137, 278 1992 Convention on the Protection of the Black Sea against Pollution (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS 118 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 9 April 1992, entered into force 17 January 2000) 2099 UNTS 195 114 1992 Protocol on the Protection of the Marine Environment of the Black Sea by Dumping (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS 27 126 1994 Protocol on Protection of the Black Sea Marine Environment Against Pollution from Land Based Sources (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS 18 114 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) 1102 UNTS 27 137 1995 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 44, and subsequent Amendments (adopted 10 June 1995, not entered into force yet) 126 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (signed on 24 November 1996, entered into force on 1 June 2001) (ACCOBAMS) 158, 172, 298 1998 Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 3 126 1999 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 (adopted 6 October 1999, entered into force 13 August 2010) 114 2002 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the Northeast Pacific (adopted 18 February 2002) 139

Table of treaties  xxxv 2003 Framework Convention for the Protection of the Marine Environment of the Caspian Sea (adopted 4 November 2003, entered into force 12 August 2006) (2003) 44 ILM 1 138 2005 Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (adopted 25 September 2005, not entered into force yet) (Jeddah Protocol) 114, 116-118 2006 Agreement on the Conservation of African-Eurasian Migratory Waterbirds [2006] OJ L 345/26 132 2008 CARICOM Maritime and Airspace Security Cooperation Agreement, 4 July 2008 354 2010 Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (adopted 31 March 2010, not entered into force yet) 114 2012 Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-Based Sources and Activities in the Western Central and Southern African Region (adopted 22 June 2012, not entered into force yet) 114 2012 Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, (Offshore Protocol). (Official Journal of the European Community – OJEC L 004. On 09 January 2013) 0015 – 0033 190 2016 Ross Sea Agreement (adopted 28 October 2016, entered into force 1 December 2017) 19

BILATERAL TREATIES 2004 Agreement between the Government of the United States of America and the Government of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea, 11 February 2004 (entered into force 8 December 2004) 358

Introduction to the Research Handbook on Ocean Governance Law Simone Borg, Patricia Mallia Vella de Fremeaux and Felicity G. Attard

1.

THE CONSTITUENT ELEMENTS OF OCEAN GOVERNANCE

It is an arduous task to shortlist the topics which introduce the reader to the complexity of the law of ocean governance in a streamlined, yet comprehensive manner. This has been perhaps our major challenge as editors while working on this publication. We have been teaching and researching the various aspects of ocean governance for many years in Malta and abroad, so we did not wish to restrict the contents of this Research Handbook to a legal discussion on aspects of maritime jurisdiction in the various human-drawn zones of ocean space. Neither did we wish to address ocean governance law from a single sectoral perspective, such as the conservation of the marine environment or the various ramifications of maritime security. Opting for such a minimalist approach would have been easier and more straightforward, but our aim was to acquaint the researcher with key aspects of a pluralist legal framework the observance of which aims, inter alia, to: ● ● ● ● ●

Secure the rule of law across the ocean space, Enhance the conservation of the ocean as a natural planetary resource, Ensure the sustainable use of its living and non-living resources, Safeguard the protection of human rights at sea, Regulate the use of the ocean and its ecosystem services by various legal subjects and stakeholders in a just and equitable manner, ● Sustain the use of the ocean for peaceful purposes, ● Identify the interrelated rights and obligations of States, intergovernmental organisations and other actors over ocean space and its resources, ● Provide for the settlement of disputes among legal subjects and addressing of legal gaps. We felt that the best way to discuss what constitutes ocean governance from a legal perspective is to take a deep dive into its multifarious legal nature as it accrued and diversified over time. As the law continues to propagate at a faster pace than ever before, we opted for a layout which reflects a more contemporary approach towards this fascinating legal topic. This explains why we chose to delineate the chapters of the Research Handbook under five parts that portray the multifaceted aspects of the regulation of ocean governance.

1

2  Research handbook on ocean governance law

2.

THE GOVERNANCE OF THE BLUE SPACE

Part I of the Research Handbook assesses the current legal framework relating to the jurisdiction of States over the various jurisdictional zones of the ocean. This part explores the ‘traditional’ part of ocean governance law. It delves into the balance of such rights and obligations between coastal States and the enjoyment of the high seas freedoms by all States, as qualified by the ongoing development of international norms. The Research Handbook’s first chapter in Part I examines the state of play of the law, 50 years since the 1972 United Nations Conference on Environment and Development in Stockholm, serving as a flashback to the current state of play. This chapter by Nilüfer Oral who, apart from being a scholar of repute, is also a member of the International Law Commission, draws upon the pivotal role of the 1982 United Nations Convention on the Law of the Sea. Her chapter is not only a remarkable historical account but paves the way for the remaining topics examined in the other chapters by an eminent and rising team of contributors from across the globe, representing a variety of cultures and expertise. Danilo García Cáceres’ chapter on ‘Maritime Zones in International Law’ discusses in detail the legal framework applicable to areas both within and beyond national jurisdiction and the juridical relationship between coastal States, flag States and port States. This comprehensive chapter also examines the sui generis legal regimes of the high seas and the deep seabed, together with latest developments. The chapter on maritime jurisdictional zones serves as a general legal basis for various more specialised topics discussed in other parts of the Research Handbook. The other two chapters in Part I relate to widely regulated legal issues falling under the aegis of ocean space but which are in a constant state of ongoing development. As editors we felt that an innovative way of ensuring a comprehensive treatise of our subject was to include also a chapter on the applicable regime relating to ‘Air Space, Sovereignty and Ocean Governance’. Roberto Cassar examines how the airspace is used both as an asset of State sovereignty and as a zone outside national jurisdiction. The author demonstrates that the fine-tuning of the applicable legal regime is becoming increasingly relevant to maintain good ocean governance. Chapter 4 of Part I, by Norman A. Martínez Gutiérrez, takes a deep dive into marine scientific research as one of the high seas freedoms and as a tool for ocean governance. Marine scientific research is becoming increasingly regulated and influential in the management of ocean space and its governance, though its definition remains highly controversial and contentious. The regulation of marine scientific research will continue to dominate various legal and political debates due to the ubiquitous and powerful role of scientific research in the sustainable use of the ocean and its resources, as well as its potential to improve human development. Martínez Gutiérrez demonstrates the importance of knowledge exchange and the need for a legal framework that facilitates the proper transfer of knowledge, to ensure that marine scientific research can be used as a successful tool for ocean governance. Chapter 5 in Part I on ‘Dispute Settlement and Ocean Governance’ by Vladyslav Lanovoy provides a meticulous legal analysis as to how the international courts and tribunals providing the compulsory dispute settlement system, established under Part XV of the United Nations Convention on the Law of the Sea, have been instrumental in contributing to ocean governance at both the substantive and procedural level. Lanovoy’s chapter highlights these adjudicating bodies’ consistency in the interpretation and application of substantive obligations and their role as an efficient institutional system providing States Parties with a legal remedy in a relatively short period of time. Lanovoy argues how faced with ever-evolving challenges to the

Introduction  3 international regime of ocean governance, the dispute settlement process offers both stability and certainty.

3.

THE GOVERNANCE OF THE BLUE PLANET

Governance is inevitably associated with the duty of care and is often interpreted and perceived to focus on environmental aspects. Part II of the Research Handbook is devoted to environmental governance of the ocean. Chapter 6 by Malgosia Fitzmaurice discusses and analyses the International Convention for the Prevention of Pollution from Ships (MARPOL). With her inimitable eye for detail, Fitzmaurice examines MARPOL’s complex structure comprising a framework Convention and six Annexes dealing with different sources of pollution. Fitzmaurice explains how the flexible and ever-evolving nature of these Annexes, which were amended several times, serve to maintain MARPOL’s regulatory framework as an efficient and effective source of international law to combat and as far as possible curb marine pollution from ships. Fitzmaurice hails MARPOL’s strict enforcement and continuous stakeholder involvement via the International Maritime Organization and its Marine Environment Protection Committee in its operation. Together with its ‘tacit acceptance’ procedure, which unlike a classical amendment is a very efficient way to introduce changes, MARPOL provides a successful model of law-making in ocean governance. Part II focuses on various other sources of marine pollution. Meagan Wong and Niccolò Lanzoni assess two main sources of marine pollution in Chapter 7 that have long had an adverse effect on the oceans: land-based sources and dumping at sea. The co-authors provide a thorough and vigorous analysis of the point sources of land-based pollution, namely coastal sources and direct discharges into the sea as well as diffuse sources from inland sources of pollution in watercourses that end up flowing into the sea, as well as airborne sources carried via the atmosphere. The authors also examine dumping and incineration at sea as one of the most widely regulated sources. Their contribution provides an overview of the international legal frameworks in place, both global and regional, on these two sources of marine pollution. Two examples of ‘recently’ recognised sources of marine pollution are plastics and noise in the marine environment. As editors we felt that it would be a great opportunity to give two young ladies who are at the start of their academic law career to contribute to this Research Handbook. Jyothi Thomas’ chapter examines how international law can effectively combat marine plastic waste, as one of the most dangerous environmental challenges of our time, before the harm it is causing becomes irreparable. Thomas explains how the challenge of dealing with marine plastic waste lies in its vast array of sources as well as its visible and non-visible adverse impacts on the marine environment and quality of human life. She argues that, while a multitude of instruments at the international, regional and national level which regulate marine plastic waste do exist, many of the existing laws are limited in application, given the range of occurrence especially of single-use plastic. Thomas gives an overview of the existing international laws and regional instruments, including those of the European Union. She then uses Malta as a case study, as one of the very first States that banned single-use plastics in its efforts to manage marine plastic litter. Thomas identifies both the potential and the challenges that may question the suitability of these laws and puts forward some solutions to address the gap.

4  Research handbook on ocean governance law Georgia Veldeki’s chapter ‘Noise Pollution in the Marine Environment’ looks into an invisible threat which may not be that renowned but has attracted scientists’ attention since sound has always been prevalent in the oceans, being the main tool for communication, serving primary biological functions in marine life. Veldeki’s chapter explains how this form of pollution arises, when noise coming from anthropogenic activities is recognised as a serious threat to marine life, causing extra pressure in an already degraded environment and thereby creating an important global conservation issue. Veldeki argues that this ‘new’ source of pollution, in the form of energy, needs to be targeted by imposing specific regulatory measures due to the complexity of underwater acoustics and the difficulty of regulating noise sources. The last chapter in Part II examines another aspect of the environmental governance of the ocean: conservation of living marine resources. Elda Kazara-Belja’s Chapter 10 examines the current legal framework that aims to regulate the unsustainable, as well as illegal, unreported and unregulated fishing to improve fishing practices and fisheries management, as well as to avoid over-exploitation of harvestable resources and the loss of marine biodiversity. Kazara-Belja highlights that poor conservation and management measures require the international community’s need to focus upon cooperation between States, to establish compatible measures for the sustainable exploitation of the living marine resources. Kazara-Belja also stresses that fisheries regulations cannot exist in isolation but need to reflect environmental principles. She notices a marked shift in multilateral and regional as well as national fisheries regulations adopted in recent times, which place fisheries and fishing activities as a vital component of sound ocean governance.

4.

THE INTEGRATED APPROACH FOR SUSTAINABLE OCEAN GOVERNANCE

Part III of the Research Handbook adopts a contemporary approach by focusing on three aspects of governance where the authors adopt an integrated approach. In their respective chapters the authors all emphasise that such a methodology is the key to achieve ocean sustainability. In Chapter 11 Simone Borg addresses the climate change-ocean nexus. Borg first discusses the biological, chemical and physical effects which climate change is inflicting upon the ocean, advocating the need to streamline the complex list of impacts with severe socio-economic repercussions that are also a threat to global security. She then examines what would be the applicable legal framework as it has evolved in different diplomatic and international law fora. Borg also identifies the gaps which must be addressed to halt or mitigate these negative impacts that climate change has inflicted upon the ocean, its resources and its uses. Borg argues that the transfer of complex and voluminous scientific knowledge into streamlined legal and policy actions must adopt an integrated approach, given the complex and cross-cutting nature of the climate change-ocean nexus. She also stresses that an effective legal regime for ocean governance in an era of climate change must entail fair and equitable legal options for adaptation to those negative impacts, which cannot be prevented. In her chapter on area-based management tools, Daniela Diz looks into the ecosystem approach as an example of applying an integrated perspective to challenge the siloed approach that is characteristic of ocean governance and management in practice. She argues that area-based management tools, such as marine protected areas and other effective area-based conservation measures may be considered as effective examples in the implementation of

Introduction  5 the ecosystem approach, as these require cross-sectoral cooperation. Diz examines the 1992 Convention on Biological Diversity as the instrument that sets both the legally binding rules and guidelines for the implementation of ecologically representative, well-connected systems of area-based management. She asserts that area-based management tools in ocean space ensure effective and equitable management and are key to facilitate cross-sectoral implementation. The extensive chapter by David Ong provides an in-depth treatise of the upcoming Implementation Agreement to the 1982 United Nations Convention on the Law of the Sea on Biodiversity Beyond National Jurisdiction, still under negotiation. Ong’s discussion utilises an integrated perspective, as the author examines the interaction between the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement and the parent Convention on the Law of the Sea as well as other sources of international environmental law. This chapter is split into two parts. Part I conducts an initial legal assessment of the relationship between the continental shelf regime beyond 200 nautical miles and the BBNJ up to the outcome of the third Intergovernmental Negotiating Session. The second part analyses the interaction between the proposed inclusion and application of the principle of environmental impact assessment, alongside related principles such as strategic environmental assessment and other area-based management techniques and tools, within the provisions in the revised draft text for the proposed BBNJ Agreement.

5.

THE GOVERNANCE OF THE BLUE ECONOMY

Part IV of the Research Handbook looks into legal aspects of the Blue Economy, namely: human activity making use of the ocean for the generation of renewable energy, sustainable fisheries, laying submarine cables for communication and energy generation, the carriage of goods and the cultural heritage at sea. Sandra Cassotta in Chapter 14, ‘Toward a More Inclusive, Systemic and Multi-regulatory Blue Economy: The Case of Offshore Wind Energy’, introduces the concept of the Blue Economy and explores how one can create linkages between ecosystem-based regulations and marine spatial planning to propose an effective and inclusive Blue Economy, using a systemic multi-regulatory framework at the global, regional and national level. Another case study, this time on ‘Fisheries Governance in the Indian Ocean’, by Erika Techera, explains how the rise of the Blue Economy is due to the concept providing for generating wealth from the oceans, while providing enhanced socio-cultural and environmental benefits. Techera warns that governance arrangements must be improved if the Blue Economy is to lead to the sustainable use of the ocean in different sectors. Techera’s chapter explores fisheries governance in the Indian Ocean region, as a case study, to critically analyse existing legal frameworks. She suggests opportunities to enhance governance that are conducive to support Blue Economy goals. Danilo García Cáceres’ second chapter in this Research Handbook discusses the regulation of laying of submarine cables. García Cáceres mentions that at present there are currently 436 submarine cables, which provide telecommunications including the internet, facilitate 99 per cent of international trade and are involved in spy services and energy transportation systems. García Cáceres argues that energy solidarity in the provision of electricity is developing fast to accelerate the global energy transition. Similarly, international maritime law also regulates

6  Research handbook on ocean governance law another submarine cable network that is proliferating just as fast, namely submarine cables for telecommunications. The exponential increase of submarine cable networks is very challenging but it is an essential component of the development of international law to sustain the Blue Economy and good ocean governance. This chapter first analyses the historic development of the network of submarine cables, resulting from demand and international geopolitics and then carries out a legal analysis of the impact which submarine cables have upon ocean governance. Richard L. Kilpatrick Jr.’s chapter, ‘Carriage of Goods by Sea’, discusses the regulatory legal framework that evolved across centuries and is still undergoing further developments, since world trade depends upon the shipping of cargo on seafaring vessels. Kilpatrick demonstrates how this aspect of the Blue Economy, which involves the maritime industry and its role in facilitating commerce, operates under a plurality of dynamic regulatory regimes. In this chapter he examines the legal frameworks regulating containerised cargo moved in the liner trade and bulk cargo reliant on the tramp trade. Kilpatrick assesses how the carriage of goods by sea impacts upon ocean governance and to what extent the legal framework, which is also influenced by various maritime stakeholders, is adequate in securing good ocean governance. Ángeles Jiménez García-Carriazo’s chapter concludes Part IV on the Blue Economy and provides an insight into the applicable legal framework that addresses the underwater cultural heritage. This aspect of the Blue Economy provides an invaluable economic and cultural patrimony which requires protection and preservation from various types of threats. The author argues that while technology has helped in identifying and locating examples of underwater cultural heritage, it has also made it more accessible and therefore increasingly more vulnerable to looters and commercial salvage companies operating illegally. Jiménez García-Carriazo discusses how this precipitated a situation where, despite many remaining challenges, there has been a major impetus in recent times to regulate the preservation and promotion of the underwater cultural heritage via multilateral and regional law instruments, as another aspect of sustainable ocean governance.

6.

THE HUMAN SEA

Part V of the Research Handbook is dedicated to the Human Sea and discusses maritime security under four different chapters. In this part the authors survey aspects of ocean governance which regulate human involvement in the ocean space so as to ensure that the rule of law is served and maintained on the ocean, to prevent crime and abuse of human rights. Chapter 19 by Andrew Mallia explores the crimes of piracy and armed robbery in a contemporary world. Mallia examines the applicable legal framework and the jurisdictional provisions that distinguish the crimes of piracy and armed robbery at sea. He carries out an examination of these two crimes as threats to maritime security by drawing examples from the Malacca Strait, the Horn of Africa and the Gulf of Guinea. Mallia identifies the difficulties coastal States face in confronting this challenge and also discusses the response by both State and non-State actors and what he perceives as the current and future threats that piracy and armed robbery may pose to ocean governance. The second chapter of Part V by John Hursh, entitled ‘Maritime Terrorism and Trafficking in Weapons of Mass Destruction’, discusses the serious risks to international peace and security and to the global economy posed by such crimes. Hursh explains how terrorist organisations may use maritime shipping not only in direct attacks but also to support their activities

Introduction 7 through smuggling of weapons, human trafficking and the financing of terrorist activities. This chapter assesses the legal and policy framework in the fight against maritime terrorism and maritime-related proliferation of weapons of mass destruction. Hursh focuses upon the delicate balance which the law on ocean governance must achieve between securing freedom of navigation on the one hand and maintaining maritime security on the other. The author first discusses applicable treaty law and then examines practical measures, including improved information sharing and enhanced port security as well as other key trends to eliminate risks, including boarding operations by qualifying exclusive flag State consent, the Proliferation Security Initiative and bilateral ship-boarding agreements. Chapter 21, by Patricia Mallia Vella de Fremeaux and Felicity G. Attard, examines another aspect of the contemporary international legal regime in maritime security, namely the prevention and suppression of smuggling of migrants and trafficking in persons by sea. The authors discuss how the applicable regime focuses primarily on the combatting of these crimes within the context of irregular mass migration by sea. They analyse the most prominent components of the legal regime relating to the smuggling of migrants and trafficking in persons by sea and provide a comparative analysis between the two threats. Mallia Vella de Fremeaux and Attard assess the applicable regime that can be applied to prevent and punish smuggling of migrants and trafficking in persons by sea, especially in maritime interception operations. They argue that the need to protect the human rights and refugee rights of victims of these crimes is a priority in such operations. The concluding chapter, ‘Human Rights at Sea’, by Irini Papanicolopulu supplements the previous chapters and discusses how maritime law and the law of the sea did not originally give any attention to respect for human rights of people at sea. However, the phenomena of mass irregular maritime migration as well as conditions of employment aboard vessels and the upsurge of piracy have highlighted the need to effectively protect human rights at sea. Papanicolopulu carries out an in-depth examination of applicable treaty and customary international law, which identify State obligations to protect human rights at sea. The chapter highlights those rights that deserve particular attention and discusses jurisdiction and various other common legal issues.

7.

CONCLUSION

This Research Handbook aims to portray the ocean as the protagonist and how humankind, to appease anthropogenic needs and interests, has regulated the ocean as: ● ● ● ● ●

A space falling within and outside national jurisdiction, A habitat with its living and non-living resources, Part of an intricate planetary ecosystem, A provider of services and goods, A medium which, when misused, poses security threats, breaches of human rights and other perilous risks to humanity.

The individual chapters demonstrate that the future of ocean governance depends upon the harmonisation of international norms to ensure that applicable regimes remain fit for purpose to address threats to ocean governance. Additionally, the transformation of international obligations into national law with the requisite institutional and compliance monitoring support

8  Research handbook on ocean governance law structures is just as crucial to ensure effective ocean governance. Some of the threats our ocean faces, such as abuse of the rule of law on the high seas and the implementation of human rights in maritime affairs, unsustainable fishing and the degradation of the marine environment, threats to safety of life at sea and the safety of navigation have persisted for decades, if not centuries. Other threats like climate change impacts, ocean acidification, plastic pollution, marine degradation of all types and from all sources, and unsustainable use of the ocean’s ecosystem services have surfaced more recently. They constitute emergencies, which need to be immediately addressed and regulated. Contemporary threats to maritime security such as maritime terrorism and the trafficking of weapons of mass destruction by sea have also intensified in recent years. The ramifications of other recent threats, such as irregular maritime migration on the international community, are also significant and becoming increasingly more complex. The problem has become more serious due to the proliferation of crimes such as the smuggling of migrants and trafficking in persons by sea. The various contributions in the Research Handbook emphasise the importance of international cooperation by different actors in combatting these threats and working towards the stability of ocean governance. The Research Handbook demonstrates that increased reliance upon ocean science these last decades has pushed the international community towards a more holistic approach when regulating ocean space and activities related thereto. This legal process is still in its genesis and has to overcome obstructive fragmentation due to sub-specialisation of ocean governance law across centuries. The various contributors of this Research Handbook, when assessing how applicable norms interrelate with each other, notwithstanding their diverse origin, repeatedly refer to the need for cooperation to ensure a holistic approach as an indispensable aspect of ocean governance. The integrated approach is an underlying essential methodology for a legal framework in an era when thanks to cumulative scientific information and technological innovation we can visualise, much better than our ancestors, the precarious qualitative situation our ocean is in and the multiple illegal and unregulated activities that threaten the rule of law at sea. It is not coincidental that present threats to maritime security are as grievous and perilous as the environmental damage which humanity has inflicted upon the ocean. The source of both forms of damage and danger is anthropogenic activity. It explains how relevant it is for the current legal framework to remain fit for purpose through a systematic process of evaluation, monitoring and review that ensures not only the generation of norms but also their compliance, enforcement and harmonisation.

PART I THE BLUE SPACE

1. A 50-year reflection on global ocean governance for protection of the marine environment Nilüfer Oral1

1. INTRODUCTION The ocean is the source of life. Recent studies traced the origins of life on earth to hydrothermal vents,2 deep fissures in the deep ocean floor that spew hot toxic fluids and gases. Beyond being the origin of life, since time immemorial, the ocean and seas have been vital to human development, providing nourishment, income, communications and pleasure. Today, over three billion people in the world depend on the ocean and seas for their primary source of protein.3 Marine fisheries directly or indirectly employ over 200 million people.4 Tourism is a multi-billion-dollar industry supporting the livelihoods of millions. Yet, the ocean and seas are in crisis. Decades of pollution, the adverse impacts of climate change, continued unsustainable exploitation of its living resources, tourism and shipping are threatening the health and well-being of the ocean and seas. At the heart of this blue crisis lies the failure of humans to properly govern and manage some 70 per cent of the blue planet. The last 50 years have proven a paradoxical outcome of a profusion of international events, instruments on environmental protection, including for the marine environment, and a worrisome increase in loss and harm to the marine environment. In 1972, the first world conference on the environment, the United Nations Conference on the Human Environment, took place in Stockholm and set in motion a new global plan of governance for the protection of the environment for future generations.5 Some 50 years later, the 1972 Stockholm Declaration and Action Plan provide an insightful mirror into the risks to the environment, including for the ocean and seas of that period, when environmental

The author expresses her thanks to the assistance of Zhifeng Jiang, Yale-NUS Law School 2023. S Jordan, ‘Origins of Life: New Evidence First Cells Could Have Formed at the Bottom of the Ocean’ (The Conversation, 7 November 2019), https://​phys​.org/​news/​2019​-11​-life​-evidence​ -cells​-bottom​-ocean​.html​#:​~:​text​=​0​,Origins​%20of​%20life​%3A​%20new​%20evidence​%20first​%20cells​ %20could​%20have​%20formed​,the​%20bottom​%20of​%20the​%20ocean​&​text​=​In​%20recent​%20years​ %2C​%20many​%20scientists​,source​%20of​%20life​%20on​%20Earth, accessed 28 December 2021; SF Jordan and others, ‘Promotion of Protocell Self-Assembly from Mixed Amphiphiles at the Origin of Life’ (2019) 3 Nat Ecol Evol 1705. 3 ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, UNGA Res 70/1 (25 September 2015). 4 ibid. 5 United Nations Conference on the Human Environment, held in Stockholm, Sweden, 5–16 June 1972. 1 2

10

A 50-year reflection on global ocean governance  11 concerns were just beginning to garner the attention of governments.6 It is clear that at the time the principal threat was pollution, including in relation to the marine environment.7 For example, Principle 7 provided that ‘States shall take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.’8 Recommendations 86–94 also highlighted marine pollution extensively.9 There were some recommendations related to fisheries, but nothing on the problems of depletion, over-exploitation or illegal, unregulated and unreported (IUU) fishing. The 1972 Stockholm Conference also took place just before the start of the nine-year-long negotiations for the 1982 United Nations Convention for the Law of the Sea (UNCLOS)10 from 1973–82. The 1972 Stockholm Conference11 was an environmental milestone for the protection of the environment in general, including that of the ocean and seas. It set in motion a process to institute the necessary governance framework for the future. Indeed, the following decades witnessed the unprecedented surge of new environmental conventions and the creation of new institutions and programmes such as the United Nations Environmental Programme (UNEP).12 The 1972 Stockholm Summit was followed with a series of global summits, notably the 1992 United Nations Conference on Environment and Development (UNCED), also known as the ‘Earth Summit’, was held in Rio de Janeiro, Brazil, from 3–14 June 1992.13 Agenda 21 provided a detailed plan of governance for all levels that included provisions for the protection of the marine environment.14 There can be no doubt that the most significant development for the marine environment was the adoption of the UNCLOS. Recognized as the ‘Constitution for the Oceans’, UNCLOS, with its landmark provisions on the protection of the marine environment in Part XII, seemed to usher in an era of enhanced actions and governance of the oceans and seas. While it also reflected the pollution focus of the 1972 Stockholm Conference, UNCLOS was, and to date

UN, ‘Report of the United Nations Conference on the Human Environment’ (1973) UN Doc A/ CONF.48/14/Rev.1, 23. 7 ibid 47, para 59 (‘The problem of marine pollution was stressed by many speakers. Contamination of the oceans had global consequences, affecting peoples many thousands of miles away from the source of pollution. Mention was made of natural disasters at sea, oil discharges, excessive use of pesticides, and atmospheric pollution, which eventually contaminated the sea. Several speakers welcomed recent international action to curtail ocean-dumping. Particular reference was also made to the problems of certain seas, which could be solved only by regional co-operation and action.’). 8 ibid 4. 9 ibid 23. 10 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 1 November 1994) 1833 UNTS 3. 11 United Nations Conference on the Human Environment (n 5). 12 See generally P Sands, Principles of International Environmental Law (2nd edn, CUP 2012). 13 The United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit, was held in Rio de Janeiro, Brazil, 3–14 June 1992; The World Summit on Sustainable Development 2002, 26 August to 4 September 2002; and United Nations Conference on Sustainable Development (Rio+20) Rio de Janeiro, Brazil, 20–22 June 2012. 14 United Nations Division for Sustainable Development, ‘Agenda 21: Chapter 17 Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources’ in United Nations Conference on Environment & Development, Rio de Janeiro, Brazil, 3 to 14 June 199, Agenda 21 (1992), 17.1–17.136, https://​su​stainabled​evelopment​.un​.org/​content/​documents/​Agenda21​.pdf, accessed 30 December 2021. 6

12 

Research handbook on ocean governance law

remains, the most comprehensive global Convention for protection of the marine environment, addressing all sources of pollution. However, it was adopted a decade before the 1992 Rio Conference, the 1992 Convention on Biological Diversity (CBD)15 and United Nations Framework on Climate Change (UNFCCC).16 Consequently, missing are key concepts such as biological diversity and principles adopted under the 1992 Rio Declaration, including the need for integrated eco system management. As will be outlined in this chapter, over the 50 years since the 1972 Stockholm Conference, new threats to the ocean and seas emerged while many of the old ones remain unaddressed or inadequately so, presenting new challenges and requiring new solutions for ocean governance.

2. POLLUTION The traditional sources of marine pollution, as identified some 50 years ago, were vessel-source and land-based sources of pollution.17 It was the historic 1967 Torrey Canyon oil tanker spill which would alter the course of the International Maritime Organization (IMO), the then Inter-Governmental Maritime Consultative Organization (IMCO), by placing protection of the environment as a core function through the establishment of the Marine Environmental Protection Committee (MEPC) and the Legal Committee,18 as well as the development of a myriad of instruments for preventing marine pollution from shipping activities over the years. The global governance to address shipping-related sources of marine pollution coalesced under the umbrella of the IMO, the specialized United Nations agency for global shipping. By contrast, land-based sources of pollution, such as untreated sewage, agricultural run-off, oils, heavy metals and litter, despite being responsible for around 80 per cent of marine pollution,19 lack the same centralized global coordination of governance by the IMO. Land-based sources of pollution continue to be addressed through domestic laws and in some limited instances at the regional basis through regional regimes provided by the UNEP on Regional Seas, which was established following the 1972 Stockholm Declaration.20 However, among the 18 regional seas programmes, many still lack a binding instrument that addresses land-based sources of pollution.21 UNCLOS, adopted within this time framework, is understandably characterized by a focus on pollution. Nonetheless, the Convention adopts a broad and comprehensive approach by

Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69. 16 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 17 See Part II, Chapter 7, ‘Land-Based Sources of Marine Pollution and Dumping at Sea’ by M Wong and N Lanzoni. 18 L De La Fayette, ‘Marine Environment Protection Committee: The Conjunction of the Law of the Sea and International Environmental Law’ (2001) 16 IJMCL 15. 19 DL Vanderzwaag and A Powers, ‘The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance’ (2008) 23 IJMCL 423. 20 N Oral, ‘Forty Years of the UNEP Regional Seas Programme’ in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar Publishing 2015) 339–62. 21 ibid. 15

A 50-year reflection on global ocean governance  13 addressing all sources of pollution from vessel-source,22 dumping,23 land-based,24 atmospheric,25 seabed activities26 and in the Area.27 Moreover, while it does not expressly use terms such as biodiversity or ecosystem-based approach, the language in Article 194(5) referring to ‘rare or fragile ecosystems’ and ‘habitat’ allows for the contemporary reading of these provisions. Importantly, Article 192 of UNCLOS is not limited to pollution, but imposes an obligation on States ‘to protect and preserve the marine environment’. Now, in the twenty-first century, the marine environment faces a new and formidable challenge of marine plastic litter pollution, which inundates the ocean and seas.28 At least 12 million tons of plastic end up in the ocean every year, and make up 80 per cent of all marine debris found from surface waters to deep-sea sediments.29 The stark images of marine animals ensnared in plastic bags or killed by ingesting plastics catapulted international attention to the problem of marine plastic and microplastic pollution. National, regional and global governance has failed to prevent the tsunami-like inundation of the ocean and sea with plastic and microplastic pollution. The newly established United Nations Environmental Assembly (UNEA) in 2014 was quick to add this new crisis to its first agenda.30 Since then, it has adopted four Resolutions on marine litter,31 and in 2017, established an Ad Hoc Open-Ended Expert Group to examine barriers and possible options for combating marine plastic litter and microplastics from all sources, especially land-based sources. At the fourth session, the mandate of the Expert Group was extended.32 The Fifth

UNCLOS, Art 211. ibid Art 210. 24 ibid Art 207. 25 ibid Art 212. 26 ibid Art 208. 27 ibid Art 209. The ‘Area’ is defined in Art 1(1) of UNCLOS as the ‘seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. 28 See Part II, Chapter 8, ‘Ocean Pollution from Plastics’ by J Thomas. 29 International Union for Conservation of Nature, ‘As UNEA5 Kicks Off, Ground-Breaking Plastic Pollution Hotspotting Results Published for Seven Countries in Asia, Africa, and the Mediterranean’ (2021), https://​www​.iucn​.org/​news/​eastern​-and​-southern​-africa/​202102/​unea5​-kicks​-ground​-breaking​ -plastic ​ - pollution ​ - hotspotting​ - results​ - published​ - seven ​ - countries ​ - asia​ - africa ​ - and ​ - mediterranean, accessed 30 December 2021. See also J Wang and others, ‘Marine Debris’ in L Inniss and A Simcock (coords), The First Global Integrated Oceans Assessment: World Ocean Assessment I (United Nations, 2016), https://​www​.un​.org/​depts/​los/​global​_reporting/​WOA​_RPROC/​Chapter​_25​.pdf, accessed 30 December 2021. 30 UNEA Res 1/6 (27 June 2014). 31 UNEA Res 1/6 (April 2015) Marine plastic debris and microplastics. UNEA requested the Executive Director, in consultation with other relevant institutions and stakeholders, to undertake a study on marine plastic debris and marine microplastics; UNEA Res 11 (3 August 2016) UN Doc UNEP/ EA.2/Res.11 (requesting that an assessment be undertaken of the effectiveness of relevant international, regional and sub-regional governance strategies and approaches to combat marine plastic litter and microplastics, taking into consideration the relevant international, regional and sub-regional regulatory frameworks); UN Doc UNEP/EA.3/L.20 (7 December 2017); and UNEA Res 7 (17 April 2018) UN Doc UNEP/EA.3/Res.7. 32 UNEA Res 6 (28 March 2019) UN Doc UNEP/EA.4/Res.6. See also UNEA, ‘Report on the Work of the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics at Its Fourth Meeting’ (2020) UN Doc UNEP/AHEG/4/7. 22 23

14 

Research handbook on ocean governance law

UNEA meeting was held online in February and there was discussion concerning the possibility of a global plastics treaty.33 There is no question that marine plastic litter constitutes a source of pollution under UNCLOS. Indeed, UNCLOS remains the only global instrument that provides a binding obligation on States to prevent land-based sources of pollution. However, to date, the initiative for a possible new agreement regulating marine plastic pollution has been under the direction of UNEP and the UNEA, but not under UNCLOS.34

3.

MARINE LIVING RESOURCES

In the twenty-first century, it is difficult to imagine a time when the oceans and seas teamed with a seemingly infinite supply of living resources, a cornucopia of great and small marine creatures, as envisioned by Hugo Grotius when he published, in 1608, his historic defence of the freedom of the seas in Mare Liberum (The Free Sea).35 The argument that the sea was common to all depended on the notion that the sea, like the air, was infinite and that it could not be possessed by a few for navigation or fishing. Looking back from the vantage point of over four centuries, contrary to what Grotius saw, the reality is that the resources of the sea are not infinite. As reported by the 2019 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) global assessment report on biodiversity, marine living resources are exhaustible and in rapid decline.36 Indeed, of the 600 fish stocks monitored by the Food and Agriculture Organization (FAO), 52 per cent are fully exploited, 17 per cent are overexploited, and 7 per cent are depleted, covering some 76 per cent of the world’s commercial fish stocks.37 Technological developments greatly facilitated the capacity to increase human exploitation of marine living resources. The open access regime of the freedom of the high seas resulted in the well-known scenario of Hardin’s ‘Tragedy of the Commons’.38 The earliest victims of this tragedy for the oceans were the whales. The development of factory ships in the 1920s allowed whaling ships to remain at sea for months with virtually unlimited capacity to process whales at

UNEA, ‘Proceedings of the United Nations Environment Assembly at Its Fifth Session’ (2021) UN Doc UNEP/EA.5/25, para 63. 34 K Raubenheimer and others, ‘Towards an Improved International Framework to Govern the Life Cycle of Plastics’ (2018) 27 RECIEL 210; N Oral, ‘From the Plastics Revolution to the Marine Plastics Crisis’ in R Barnes and R Long (eds), Frontiers in International Environmental Law: Oceans and Climate Challenges: Essays in Honour of David Freestone (Brill 2021) 281–315. 35 H Grotius, The Free Sea (1608) (tr R Hakluyt, Liberty Fund 2004), https://​scholar​.harvard​.edu/​ files/​armitage/​files/​free​_sea​_ebook​.pdf, accessed 30 December 2021. 36 According to the First Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) report marine species have shown a 35 per cent decline since 1970. See S Diaz and others, Summary for Policymakers of the IPBES Global Assessment Report on Biodiversity and Ecosystem Services (IPBES 2019) 24. 37 United Nations Food and Agriculture Organization, ‘General Situation of World Fish Stocks’ (2018), http://​www​.fao​.org/​Newsroom/​common/​ecg/​1000505/​en/​stocks​.pdf, accessed 30 December 2021. 38 G Hardin, ‘Tragedy of the Commons’ (1968) 162 Sci 1243; Surabhi Ranganathan, ‘Global Commons’ (2016) 27 EJIL 693. 33

A 50-year reflection on global ocean governance  15 sea, which eventually brought whale stocks to the brink of extinction.39 Recognizing that ocean resources were not limitless and access had to be regulated internationally, the over-hunting of the whaling population led to one of the first international conservation agreements. In 1931, under the auspices of the League of Nations, 22 States signed the Geneva Convention for the Regulation of Whaling,40 which was the predecessor to the 1946 International Convention for the Regulation of Whaling and the creation of the International Whaling Commission.41 It was an important step towards the development of an international governance framework for one marine species that was facing extinction as a result of indiscriminate and unsustainable harvesting. Additionally, the advancement of technology would spur greater competition between coastal States and foreign-flagged fishing vessels, known as distant water fishing vessels (DWF) over access to fish stocks. A historic step was taken with the 1945 Truman Fisheries Proclamation (sister to the Truman Proclamation on the Continental Shelf),42 which announced the United States’ policy of establishing fisheries conservation zones up to 200 nautical miles. This step would have far-reaching consequences on governance of marine resources, as it spurred other coastal States to extend their territorial sea limits up to 200 nautical miles to protect their marine resources from DWF.43 The somewhat forgotten 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (Fishing Convention) was a landmark international Convention for fisheries governance.44 This was some 24 years before the 200 nautical mile exclusive economic zone (EEZ) was adopted under the UNCLOS and 36 years before the 1994 Agreement on Straddling and Highly Migratory Fish Stocks.45 The Fishing Convention was the first global framework of cooperation for the management and conservation of fisheries between coastal States and DWF in the high seas. It included a special provision permitting coastal States to unilaterally take urgent conservation measures in the high seas, which are binding on third States so long as such measures are non-discriminatory and scientifically well-founded.46 However, in time, the 1958 Geneva Conventions would be eclipsed by the negotiations and adoption of UNCLOS that not only codified existing customary international law, but also introduced new rules, new concepts, and importantly, new maritime zones.

39 S McVay, ‘The Last of the Great Whales’ (1966) 215 Sci Am 13; JL McHugh, ‘Rise and Fall of World Whaling: The Tragedy of the Commons Illustrated’ (1977) 31 J Int’l Aff 23. 40 Convention for Regulation of Whaling (adopted 24 September 1931, entered into force on 16 January 1935) 155 LNTS 349 and Agreement for the Regulation of Whaling (adopted 8 June 1937) 190 LNTS 79 (which were succeeded by the International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72. See also Malgosia Fitzmaurice, ‘International Convention for the Regulation of Whaling’ (United Nations Audiovisual Library of International Law 2015) http://​legal​.un​.org/​avl/​ha/​icrw/​icrw​.html, accessed 30 December 2021. 41 ibid. 42 Truman Fisheries Proclamation 2668 of 28 September 1945, 10/FR/12304, 3 CFR (1943–48). 43 RR Churchill and A Vaughn Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 160. 44 Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted 29 April 1958, entered into force 20 March 1966) 559 UNTS 285. This Convention garnered only 39 Parties. 45 See Part II, Chapter 10, ‘Conservation of Living Marine Resources’ by E Kazara-Belja. 46 Fishing Convention, Art 7(1) and 7(2).

16 

Research handbook on ocean governance law

Fifty years ago, in 1972, a proposal by Kenya and the Asian African Legal Consultative Organization (AALCO) would lead to the creation of the EEZ, an entirely new maritime zone that would give the coastal State expanded regulatory competence over the conservation and management of its natural resources.47 The coastal State was given sovereign rights of up to 200 nautical miles from where the breadth of its territorial sea is measured to, inter alia, explore, exploit, conserve and manage the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and wind.48 The new zone allowed for the coastal State to exercise broad regulatory and enforcement competence for the protection and preservation of the marine environment and conservation of its living natural resources. The EEZ was a major expansion of the recognized governance competence of coastal States. In the twenty-first century, however, the problem of DWF has been replaced with a new threat: IUU fishing, which is also linked to criminal activities and human rights violations.49 According to the FAO, ‘IUU fishing represents up to 26 million tonnes of fish caught annually’,50 affecting one in every five fish caught, with an annual cost of up to $23 billion.51 IUU fishing takes place on the high seas and in waters under national jurisdiction. IUU fishing is a threat to ecosystems and habitats, not to mention the livelihoods of artisanal fishing communities. Its importance is reflected in Sustainable Development Goal (SDG) 14 of the 2030 Agenda for Sustainable Development, which provides that, by 2020, States are to ‘effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics’.52 IUU fishing within the national jurisdiction of States was also addressed in an advisory opinion by the International Tribunal for the Law of the Sea at the request of the Sub-regional Fisheries Commission.53 Despite there being no reference to IUU fishing in UNCLOS, the Tribunal was able to integrate it into the provisions of the Convention by determining that the ‘primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State’54 within its EEZ and that the flag State of third States also

In 1972, Kenya submitted the ‘Draft Articles on the EEZ’ at the 1972 Geneva Session of the UN Seabed Committee. See Asian-African Legal Consultative Organization, ‘The Law of the Sea’ (2018), https://​www​.aalco​.int/​userfiles/​file/​57thSession/​17​%20AUGUST​_REVISED​%20BRIEF​.pdf, accessed 30 December 2021. 48 UNCLOS, Art 56(1)(a). 49 I Urbina, The Outlaw Ocean: Journeys across the Last Untamed Frontier (Alfred A Knopf 2019). 50 See Food and Agriculture Organization of the United Nations, ‘Illegal, Unreported and Unregulated (IUU) fishing’ https://​www​.fao​.org/​iuu​-fishing/​en/​, accessed 27 December 2021. 51 See Food and Agriculture Organization of the United Nations, ‘Growing Momentum to Close the Net on Illegal Fishing’ (2018), https://​www​.fao​.org/​news/​story/​en/​item/​1137863/​icode/​, accessed 28 December 2021. 52 UNGA (n 3) Goal 14.4. 53 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (Advisory Opinion), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, 4. 54 ibid para 106. 47

A 50-year reflection on global ocean governance  17 had a due diligence obligation to ensure that vessels flying under its flag did not engage in IUU fishing activities in the EEZ of another State.55

4.

MARINE PROTECTED AREAS

Marine protected areas (MPAs) can be traced back to the nineteenth century.56 However, an important milestone for MPAs is the first World Parks Congress on National Parks held in 196257 and the first conference on MPAs held in 1975 by the International Union for the Conservation of Nature and Natural Resources (IUCN).58 Since, the importance of MPAs for the conservation and sustainable use of the oceans has developed significantly.59 There is no mention of MPAs in UNCLOS, and even the CBD failed to expressly include reference to coastal areas and MPAs. This omission was subsequently corrected during the second Conference of the Parties meeting in Jakarta when Decision II/10 on the Conservation and Sustainable Use of Marine and Coastal Biological Diversity was adopted.60 In 2011, State Parties to the CBD adopted the Aichi Targets to address biological diversity. Aichi Target 11 included protecting ‘10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, [which] are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes’.61 The 10 per cent goal was reiterated in SDG 14.1 for States to conserve at least 10 per cent of their coastal and marine areas by 2020.62 In 2021, the IUCN Members Assembly (including governments) adopted a more ambitious target for the effective and equitable protection and conservation of at least 30 per cent of terrestrial, inland and coastal and marine areas by 2030, in well-connected systems of protected areas, and other effective area-based conservation measures (OECMs).63 While this Resolution

ibid para 129. D Laffoley and others, ‘Marine Protected Areas’ in C Sheppard (ed), World Seas: An Environmental Evaluation (2nd edn, Academic Press 2019) 549–69, 549. See also Part III, Chapter 12, ‘Implementing the Eco System Approach through Area Based Management’ by D Diz and Part III, Chapter 13, ‘The Interaction between an Agreement on Biodiversity beyond National Jurisdiction and the Law of the Sea, Part II: Focus on Environmental Impact Assessment and Marine Protected Areas’ by DM Ong. 57 Laffoley and others (n 56) 549. 58 National Research Council, Marine Protected Areas: Tools for Sustaining Ocean Ecosystems (2001) 146. 59 Laffoley and others (n 56) 550. 60 See para 2. The Jakarta Mandate also ‘encouraged’ the establishment of strengthening of ‘where appropriate’ of ‘institutional, administrative, and legislative arrangements for the development of integrated management of marine and coastal ecosystems, plans and strategies for marine and coastal areas, and their integration within national development plans’. See also C Wold, ‘The Futility, Utility, and Future of the Biodiversity Convention’ (1998) 9 Colo J Int’l Envt’l L Pol 1, 26, 26–28. 61 Conference of the Parties to the CBD, ‘Strategic Plan for Biodiversity 2011–2020, including Aichi Biodiversity Targets’ in Report of the Tenth Meeting of the Conference of the Parties to the Convention on Biological Diversity (UNEP 2010) UN Doc UNEP/CBD/COP/10/27. 62 UNGA (n 3). 63 IUCN Res 101, ‘Setting Area-Based Conservation Targets Based on Evidence of What Nature and People Need to Thrive (22 September 2021). 55 56

18 

Research handbook on ocean governance law

is non-binding, it sets an important policy statement endorsed by government members of the IUCN. MPAs provide important conservation tools for the protection and sustainable use of marine areas. Despite the calls for increased protection of the marine environment, the current seascape is fragmented. Currently, some 7.72 per cent of the entire ocean is covered by MPAs of which the vast majority is found in areas under national jurisdiction.64 Importantly, significant regional variances reflect inadequate global harmonization and commonality of governance standards, measured in terms of marine areas under protection. For example, some 19.06 per cent of the ocean is protected in the Asia and Pacific Regions compared to 8.94 per cent in Europe and 1.19 per cent in West Asia.65

5.

BIOLOGICAL DIVERSITY IN AREAS BEYOND NATIONAL JURISDICTION

Despite the advent of the EEZ, some two-thirds of ocean space remain as high seas and subject to the open access regime of freedom of the high seas. As a res communes where no State can claim sovereignty, this vast space of ocean and marine life has lacked a systematic and united governance framework. While in principle the obligation of States to protect and preserve the marine environment of the high seas is an erga omnes obligation that applies to the high seas,66 there is no common legal framework detailing the rules and measures, including the means to implement and enforce them in the high seas. In this regard, an important decision was taken in 2015 by the United Nations General Assembly to address this major gap in international ocean governance.67 On 15 June 2015, after a decade of meetings and debates, the United Nations General Assembly decided ‘to develop an international legally binding instrument under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction’ under UNCLOS. This decision fulfilled a commitment made by governments at the Rio+20 Summit in June 2012 to ‘address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under UNCLOS’.68 A Preparatory Committee was established with the mandate to make substantive recommendations to the General Assembly on the elements of a draft text of an international legally binding instrument under the Convention. After four sessions in July of 2017, the Preparatory

64 Protected Planet, ‘Marine Protected Areas’ (2021), https://​www​.protectedplanet​.net/​en/​thematic​ -areas/​marine​-protected​-areas, accessed 27 December 2021. 65 ibid. 66 Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Advisory Opinion), Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10, para 180. 67 See Part III, Chapter 13, ‘The Interaction between an Agreement on Biodiversity beyond National Jurisdiction and the Law of the Sea’ by DM Ong. 68 UN, ‘The Future We Want Outcome Document’ (27 July 2012) UN Res A/66/288, para 162; UN, ‘Development of 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’ (19 June 2015) UN Res A/69/292.

A 50-year reflection on global ocean governance  19 Committee fulfilled its mandate by preparing a report of substantive recommendations to the General Assembly. On 24 December 2017, the General Assembly took a historic decision and decided to convene an Intergovernmental Conference (IGC), under the auspices of the United Nations.69 The IGC has met three times; however, the fourth (and last) meeting was postponed due to the COVID-19 pandemic. It met in August 2022, however without conclusion.70 If successful, it will mark an important contribution to global cooperation for the protection and preservation of the marine environment in the high seas. The topics covered are: conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including the environmental impact assessments and capacity-building and the transfer of marine technology; marine genetic resources and benefit-sharing; and measures such as area-based management tools, including MPAs, environmental impact assessments and capacity-building and the transfer of marine technology. Without question, the establishment of MPAs is a key tool for the protection of marine biological diversity in the high seas. There is a positive trend in the advancement of States cooperation to protect marine life in the high seas. In 2010, the first network of high seas MPAs covering an area of 286 200 km2 of the North-East Atlantic were established under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).71 After five years of negotiations, the Commission of the Convention on the Conservation of Antarctic Marine Living Resources (CCMLR) agreed to create the largest MPA which was established in the Ross Sea in Antarctica, covering some 1.55 million km2 that includes 1.15 million km2 declared as a no-fishing zone. The MPA went into effect in December 2017.72 An important and landmark initiative was also taken for the protection of the high seas zone of the Sargasso Sea, the only sea that does not have a land boundary, namely, the adoption of the non-legally binding Hamilton Declaration on 11 March 201473 and the creation of the Sargasso Sea Commission.

69 UN, 'International Legally Binding Instrument under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’ (24 December 2017) UN Res A/RES/72/249. 70 The first session of the IGC met from 4 to 17 September 2018, the second session from 25 March to 5 April 2019 and the third session from 19 to 30 August 2019. The fourth session, which was postponed by Decisions 74/543 and 75/570 owing to the COVID-19 pandemic, was scheduled to meet between 7 to 18 March 2022, see https://​www​.un​.org/​bbnj/​, accessed 27 December 2021. 71 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. See 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 M Pol 598; MC Ribeiro, ‘The “Rainbow”: The First National Marine Protected Area Proposed under the High Seas’ (2010) 25 IJMCL 183; MC Ribeiro, ‘South Atlantic Perspectives on the Future International Legally Binding Instrument under UNCLOS on Conservation and Sustainable Use of BBNJ’ (2017) 32 IJMCL 756; EJ Molenaar and AG Oude Elfrink, ‘Marine Protected Areas in Areas beyond National Jurisdiction: The Pioneering Efforts under the OSPAR Convention’ (2009) 5 Utrecht L Rev 5; K Gjerde and others, ‘Protecting Earth’s Last Conservation Frontier: Scientific, Management and Legal Priorities for MPAs beyond National Boundaries’ (2016) 26 Aquatic Conservation: Marine and Freshwater Ecosystems 45. 72 The Ross Sea Agreement (adopted 28 October 2016, entered into force 1 December 2017). 73 Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea (signed 11 March 2014), http://​www​.s​argassosea​commission​.org/​storage/​Hamilton​_Declaration​_with​_signatures​_April​ _2018​.pdf, accessed 27 December 2021.

20 

Research handbook on ocean governance law

The two examples of MPAs established in the high seas were possible only under the framework of existing regional regimes, one for the North-East Atlantic under OSPAR and the other for Antarctica under CCMLR. The legal effect is limited to the Parties of these Agreements. The Sargasso Sea provides an example of collaborative action, albeit lacking legal force, but with the promise of future advancement towards binding measures. It is clear that there is a need for a binding global instrument that will provide the necessary framework of governance for States and international organizations to cooperate in taking specific measures for the protection and preservation of the marine environment in the high seas.

6.

CLIMATE CHANGE

In 1988, climate change was recognized as a common concern of humankind by the United Nations General Assembly.74 In 1989, the Intergovernmental Panel on Climate Change (IPCC) was established as the scientific body responsible to assess the physical and socio-economic aspects of climate change. At the same time, in 1989, the Small States Conference on Sea Level Rise drew attention to the looming threat of sea level rise resulting from climate change.75 In 1990, the IPCC issued its first assessment report on climate change, where it flagged ocean warming and sea level rise as consequences of climate change.76 Decades later, the warning has proven true. Sea level rise is currently being debated even at the United Nations Security Council level as a threat to territorial integrity and international peace.77 The International Law Commission (ILC) placed the topic of sea level rise in relation to international law on its current agenda in 2018 and created a study group comprising five co-chairs who would examine issues related to law of the sea issues, loss of statehood and protection of persons.78 A formal request had been submitted to the ILC by the Federated States of Micronesia in 2018

74 UNGA Res 43/53 (6 December 1988). See further Part III, Chapter 11, ‘Ocean Governance in an Era of Climate Change’ by S Borg. 75 Malé’ Declaration on Global Warming and Sea Level Rise, MDV/SLR/15 (18 Nov 1989), http://​ www​.islandvulnerability​.org/​slr1989/​declaration​.pdf, accessed 30 December 2021. See also Conference Secretariat of the Small States Conference on Sea Level Rise, ‘Small States Conference on Sea Level Rise, 14–18 November 1989: Report’ (1989), http://​www​.islandvulnerability​.org/​slr1989/​report​.pdf, accessed 27 December 2021. 76 J Houghton, G Jenkins and J Ephraums (eds), Climate Change: The IPCC Scientific Assessment (CUP 1990). 77 On 18 October 2021, on the initiative of Vietnam, an Arria-formula meeting on ‘Sea-Level Rise and Implications for International Peace and Security’ was held for the United Nations Security Council. See United Nations Security Council Report, ‘Climate and Security: Arria-Formula Meeting on Sea-Level Rise’ (15 October 2021), https://​www​.s​ecuritycou​ncilreport​.org/​whatsinblue/​2021/​10/​climate​ -and​-security​-arria​-formula​-meeting​-on​-sea​-level​-rise​.php, accessed 27 December 2021. 78 At its 3467th meeting, on 21 May 2019, the Commission decided to include the topic in its programme of work. The Commission also decided to establish an open-ended Study Group on the topic, to be co-chaired, on a rotating basis, by Bogdan Aurescu, Yacouba Cissé, Patrícia Galvão Teles, Nilüfer Oral and Juan José Ruda Santolaria. See ILC, ‘Report of the International Law Commission, Seventy-first session’ (29 April-7 June and 8 July-9 August 2019) UN Doc A/74/10, ch X, paras 263–273. The section on the open-ended study group seems to be repetitive. See main text.

A 50-year reflection on global ocean governance  21 for inclusion of this topic on the long-term programme of work of the Commission (entitled ‘Legal Implications of Sea-level Rise’).79 In 1992, when the UNFCCC was adopted,80 the role of the ocean and marine ecosystems was limited to a functional one, namely, as a natural sink and reservoir for the mitigation of greenhouse gases under Article 4(1)(d) of the UNFCCC. Over time, there was an increase in scientific knowledge of the adverse impacts of climate change on the ocean and marine ecosystems. The role of the ocean gained greater attention in the successive IPCC reports, including the first Special Report on the Ocean and Cryosphere in a Changing Climate issued in 2019.81 We now know that the ocean and seas have shielded the earth from the harmful impacts of climate change by absorbing approximately 30 per cent of atmospheric carbon dioxide.82 The protective role played by the ocean and seas, however, has come at a cost, in that it has resulted in epochal changes in the physical and chemical composition of the oceans, such as ocean acidification, warming and deoxygenation. The IPCC Fifth Assessment Report concluded with high confidence that oceanic uptake of carbon dioxide since the industrial era has resulted in a 26 per cent increase in acidity of the ocean.83 The IPCC Special Report on the Cryosphere and Ocean has concluded with virtual certainty that the ocean has undergone increasing surface acidification.84 The pH balance of the oceans, which for millions of years remained stable, has entered a phase of decrease.85 Aragonite saturation necessary for calcifying organisms such as corals, certain plankton and shellfish to use to build calcium carbonate skeletons is being negatively impacted.86 Acidification will have direct impacts on a wide range of marine organisms that build shells from calcium carbonate.87 Key links in food webs are especially vulnerable in polar, sub-polar, deep-sea and upwelling regions. All these phenomena bode ominously for the food security of both ocean creatures and humans. The IPCC Special Report on the Cryosphere and Ocean has concluded with virtual certainty that the global ocean has warmed unabated since 1970 and with high confidence that it has taken up more than 90 per cent of the excess heat in the climate system.88 The Sixth IPCC Report of WG I underlined the severity of these adverse impacts: Global mean sea level has risen faster since 1900 than over any preceding century in at least the last 3000 years (high confidence). The global ocean has warmed faster over the past century than since the end of the last deglacial transition (around 11,000 years ago) (medium confidence). A long-term increase in surface open ocean pH occurred over the past 50 million years (high confidence), and

79 Proposal by the Federated States of Micronesia, UN Doc ILC(LXX)/LT/INFORMAL/1 (31 January 2018). 80 United Nations Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107. 81 IPCC, ‘2019: Summary for Policymakers’ in H-O Pörtner and others (eds), IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (CUP, 2019). 82 ibid s A.2. 83 IPCC, ‘Climate Change 2014: Synthesis Report’ [IPCC Fifth Report] (2014) 40–41. 84 ibid. 85 IPCC, ‘Change 2007: The Physical Basis’ (2007), 389 and 793. 86 SC Doney and others, ‘Ocean Acidification: The Other CO2 Problem?’ (2016) 6 Wash J Envt’l L Pol 213, 218–29. 87 IPCC Fifth Report (n 83) 30. 88 Special Report on the Ocean and Cryosphere in a Changing Climate (n 81) s A.2.

22 

Research handbook on ocean governance law

surface open ocean pH as low as recent decades is unusual in the last 2 million years (medium confidence).89

Despite the scientific warnings, the global governance frameworks for the oceans under UNCLOS and for climate change under the UNFCCC system have been slow to respond to the clear danger signals. The Paris Agreement90 adopted at Conference of Parties (COP) 21 in 2015 makes passing reference to the ocean in its Preamble and refers to Article 4(1)(d) of the UNFCCC. No provisions were included, raising concerns for the multiple adverse impacts on the ocean, whereas by contrast, forests continue to garner special attention.91 This inadequate attention given to the oceans, however, is changing. Under the Presidency of Fiji, the ‘Ocean Pathway’ was launched at COP 23 with the aim of strengthening the role of oceans in the UNFCCC process. COP 25, co-presided by Chile and Spain, was deemed the Blue COP because of the added attention to the nexus between the ocean and the climate. However, formal action has yet to be taken to address sea level rise, ocean warming and ocean acidification. As noted by the informal summary report of the UNFCCC Subsidiary Body for Scientific and Technological Advice (SBSTA), of the first ever ocean dialogues held online in 2020, ‘[f]or too long the ocean has been out of sight, out of mind, and largely absent from the global policy conversations on climate change. But the tide is turning …’.92 COP 26/CMA 3 was held in Glasgow between 3 and 11 November 2021. The Glasgow Climate Pact adopted under the UNFCCC (COP 26) invited ‘the relevant work programmes and constituted bodies under the UNFCCC to consider how to integrate and strengthen ocean-based action in their existing mandates and workplans and to report on these activities within the existing reporting processes, as appropriate’,93 and for the: Chair of the Subsidiary Body for Scientific and Technological Advice to hold an annual dialogue, starting at the fifty-sixth session of the Subsidiary Body for Scientific and Technological Advice (June 2022), to strengthen ocean-based action and to prepare an informal summary report thereon and make it available to the Conference of the Parties at its subsequent session.94

Undoubtedly, such dialogues are important to create and maintain awareness of ocean and climate issues, but they are informal events and do not produce concrete actions by the Parties.95

89 IPCC, ‘Climate Change 2021: The Physical Science Basis Summary for Policymakers’ (2021), s A.2.4, https://​www​.ipcc​.ch/​report/​ar6/​wg1/​, accessed 15 January 2022. 90 Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) TIAS No. 16-1104. 91 See Art 5(1) and 5(2). 92 UNFCCC Subsidiary Body for Scientific and Technological Advice, ‘Ocean and Climate Change Dialogue to Consider How to Strengthen Adaptation and Mitigation Action: Informal Summary Report by the Chair of the Subsidiary Body for Scientific and Technological Advice’ (29 April 2021), https://​ unfccc​.int/​sites/​default/​files/​resource/​SBSTA​_Ocean​_Dialogue​_SummaryReport​.pdf, accessed 28 December 2021, para 4. 93 UNFCCC COP, Decision -/CP.26, Glasgow Climate Pact (advance unedited version) (2021), paras 60 and 61. 94 UNFCCC COP, Decision -/CMA.3, Glasgow Climate Pact (advance unedited version) (2021). 95 See further Part III, Chapter 11, ‘Ocean Governance in an Era of Climate Change’ by S Borg.

A 50-year reflection on global ocean governance  23 The ocean is mentioned only in the Preamble of Glasgow Climate Pact text adopted under the Paris Agreement (CMA 3). It ‘notes’ the importance of ensuring the integrity of all ecosystems, including oceans and the cryosphere. There is no mention of the oceans in the operative text. This indicates lack of intention to mainstream the oceans into the formal processes taking place under the Paris Agreement, such as the global stocktake under Article 15. While there is some progress to strengthen climate action for oceans within the UNFCCC regime, it is a slow and limited process. By contrast, no comparable initiative exists under UNCLOS. There is overall agreement among scholars that carbon dioxide emission within the context of anthropogenic climate change would fall under the definition of pollution under UNCLOS.96 Moreover, the scope of application of UNCLOS applies to atmospheric and land-based sources of pollution, both of direct relevance to climate change and carbon dioxide-producing activities.97

7. CONCLUSION Since 1972, when world governments gathered in Stockholm for the first global meeting on the environment, the principal risks to the ocean and seas were land-based and vessel-source pollution. Some 50 years later, environmental risks for the marine environment have increased to include new sources of pollution, notably marine plastics and litter. Since 1972, the problems associated with fisheries continue as reflected in SDG 14 showing a decrease in the sustainability of global fishery resources, which have continued to decline from 90 per cent in 1974 to 65.8 per cent in 2017.98 The twenty-first century has also witnessed the DWF problem evolve into a multi-billion-dollar IUU fishing problem occurring within and beyond national jurisdiction. One of the major new threats to the oceans, a problem unforeseen in 1972 or 1982, is climate change. While there are two major conventions that are applicable (UNFCCC and UNCLOS), a large governance gap remains.99 Despite the proliferation of international environmental instruments and institutions to improve global governance of the oceans, scientific reports continue to sound alarm bells. The need to effectively implement the myriad of existing instruments and to fill gaps is a pressing responsibility for the international community. Despite this rather bleak picture of the oceans, positive developments are also taking place, including heightened attention and calls for expanding MPAs, the negotiations of a new treaty for the conservation of biological diversity in areas beyond national jurisdiction and the growing efforts to address the ocean-climate change problems. This brief overview of ocean governance is limited to a simple rear-view observation of the evolution of global ocean governance for protection of the marine environment over the past five decades. The next chapters will further elaborate upon these issues. What is clear is that the health of the oceans and seas remains precarious.

UNCLOS, Art 1(4). A Boyle, ‘Law of the Sea Perspectives on Climate Change’ in D Freestone (ed), The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas (Brill 2013) 157–64. 98 SDG 14, Indicator 14.4.1. See https://​www​.fao​.org/​sustainable​-development​-goals/​indicators/​14​ .4​.1/​en/​, accessed 28 December 2021. 99 See further Part III, Chapter 11, ‘Ocean Governance in an Era of Climate Change’ by S Borg. 96 97

2. Maritime zones in international law Danilo García Cáceres

1. INTRODUCTION The ocean is subject to the freedom of the seas doctrine, a principle put forth in the seventeenth century.1 Through the centuries, ocean governance faced the legal challenge of reflecting the multi-dimensional and interconnected role2 of various areas in ocean space. This has led to the fragmentation of applicable legal regimes that are delineated horizontally and vertically3 and to the ‘framework’ nature of United Nations Convention on the Law of the Sea (UNCLOS)4 norms, which are rather general in nature and therefore wide open to interpretation. This inability to put in place precise norms as a single regime to govern the ocean, beyond the resignation of a simple coexistence of sovereign States and a common theoretical objective (double function of classic international law, summarized in the Lotus Case5), fostered the development of principles of coexistence and international cooperation in the law of the sea. UNCLOS allows States to cooperate in their mutual interest and demonstrates that international society is interdependent,6 which is the basis of international relations between States. This principle de facto organizes international life.7 With regard to the governance of ocean space, this is regulated under UNCLOS via a myriad of rules that are based on the principle of ensuring a balance of rights between coastal, port and flag States, the freedoms of the high seas and the use of ocean space by coastal and landlocked States, and maintaining the rule of law in ocean space within and beyond national jurisdiction.

2.

MARINE AREAS UNDER THE JURISDICTION OF STATES

The provisions of UNCLOS, as well as other applicable norms in international law, organize maritime delimitation by considering that the sovereignty of the coastal State extends beyond United Nations website, https://​www​.un​.org/​en/​global​-issues/​oceans​-and​-the​-law​-of​-the​-sea​#:​ ~:​text​=​The​%20oceans​%20had​%20long​%20been​,all​%20and​%20belonged​%20to​%20non, accessed 14 January 2022. 2 T Brodie-Rudolph and others, ‘A Transition to Sustainable Ocean Governance’ (2020) 11 Nat Communications 3600, 2. 3 J-P Beurier, Droits Maritimes (4ème edn, Dalloz, Paris 2020) 74. 4 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 5 See SS ‘Lotus’ (France v Turkey) [1927] PCIJ Series A, No 10. The Lotus case concerns a criminal trial which was the result of a collision on the 2 August 1926 between the SS Lotus (a French steamer) and the SS Bozkourt (a Turkish steamer) in a region just north of Mytilene (Greece). 6 I Corbier, ‘Montego Bay et pratiques nationales déviantes’ (Revue du Droit Maritime Français, No 676, 2006) 958. 7 B Badie, Un monde sans souveraineté: Les États entre ruse et responsabilité (Fayard, Paris 1999) 108. 1

24

Maritime zones in international law  25 their territories and their internal waters and, in the case of archipelagic States, from these archipelagic waters to an adjacent sea area designated as the territorial sea.8 The maritime division throughout history has responded to important processes of legal developments beyond maritime custom and unilateral claims on the high seas. These have gone through presidential proclamations, as illustrated by President Harry Truman’s two proclamations in September 1945. The first of these, claimed for the United States ‘jurisdiction and control’ over the seabed and the subsoil of the continental shelf,9 and the second one authorized the government to enact conservation measures for fish resources in the high seas adjacent to the North American coasts.10 This had repercussions on other countries. In fact, a month later, the President of Mexico issued a proclamation, claiming the right to exercise ‘jurisdiction and control’ over the continental shelf. Furthermore, he claimed the right to ‘monitor, use and control’ the fishing areas necessary to protect the resources of the sea conservation, regardless of the distance which separated these areas from the coast.11 In addition, the claims of marine areas for the purpose of marine conservation have also been provided for in legislation and sometimes even in national Constitutions.12 After the Second World War, in parallel with a movement of appropriation of the continental shelf by self-declarations, another tendency towards a unilateral widening of the territorial sea had started. The Soviet model of the 12 nautical miles was followed by Eastern European States (Bulgaria, Romania, Poland) and by the People’s Republic of China, but also by several Latin American republics (Colombia, Panama, Venezuela, Guatemala), as well as by some African and Asian States (Saudi Arabia, Ethiopia, United Arab Republic, Indonesia).13 If one adds to this phenomenon the fact that other countries have arbitrarily chosen different widths for their territorial seas, it can be noted that when the First and Second United Nations Conferences on the Law of the Sea took place, the delimitations of the territorial sea varied between 3 and 200 nautical miles or 12 and 50 kilometers.14 In all cases, the value of these acts, as a source of international law, was and remains controversial. The maritime areas under the jurisdiction of States are the areas close to the land territory of the State, where the latter exercises its sovereignty, and over which a fiction of territo UNCLOS, Art 2. Presidential Proclamation no 2667, concerning the policy of the United States with respect to the natural resources of the subsoil and sea bed of the continental shelf: U.S. Statutes at Large (vol 59, 1945) 884; Federal Register (vol 10) 12303; Department of State Bulletin (vol 13, 1945) 485. 10 Presidential Proclamation no 2668, concerning the policy of the United States with respect to coastal fisheries in certain areas of the high seas: U.S. Statutes at Large (vol 59, 1945) 885; Federal Register, (vol 10) 12304; Department of State Bulletin (vol 13, 1945) 486. 11 Mexican Presidential Decree of 29 October 1945 in the newspaper El Universal (Mexico DF, vol 116, no 10541, 30 October 1945). 12 See for example: Panama: Constitution of 1 March 1946, Art 209; Costa Rica: Constitution of 7 November 1949, Art 6; El Salvador: Political Constitution of 7 September 1950, Art 7; Nicaragua: Political Constitution of 1 November 1950, Art 5; and Guatemala: Constitution of 1 March 1956, Arts 3 and 214. 13 L Focsaneanu, ‘Le droit international maritime de l’océan Pacifique et des mers adjacents’ (French Directory of International Law, vol 7, no 7, Paris 1961) 175. 14 Mr Hsueh, Speech, Delegate of the Republic of China (Eleventh meeting of 11 March 1958, of the First Committee, Reports, Vol. III) 32–3. In 1956, the United Nations held its first Conference on the Law of the Sea (UNCLOS I) at Geneva, Switzerland (A/CN.4/104); and, the Second United Nations Conference on the Law of the Sea accordingly met at the European Office of the United Nations at Geneva from 17 March to 26 April 1960 (A/CONF.19/L.15). 8 9

26  Research handbook on ocean governance law riality applies, according to the principle that ‘the land dominates the sea’ recalled by the International Court of Justice (ICJ) in the case of the North Sea Continental Shelf.15 Based on customary international law and the conventions in force until 1960, UNCLOS allowed the State Parties to extend their maritime areas even beyond 200 nautical miles16 and, in extraordinary circumstances, up to 350 nautical miles.17 The classification of maritime zones as spaces adjacent to the territory is ideal for the judicial organization as well as for the political organization in terms of maritime traffic, new ways of exploitation of resources and the necessity of involving humans in the management of marine resources as well as their possible exploitation.18 Within the scope of the new global vision of ocean management in general, UNCLOS plays the principal role for State Parties to either respect the jurisdictional limits or to claim their extension: ‘the whole of zones of exclusive jurisdiction of up to 200 nautical miles from the coast corresponds to 40% of the Earth’s land surface, with the exception of Antarctica’.19 Considering the rights recognized by the law of the sea for coastal States, the zoning of spaces adjacent to the territory includes: the internal waters, the territorial sea, the contiguous zone, bays, the channel straits and archipelagic waters, the exclusive economic zone (EEZ) and the continental shelf. 2.1

Internal Waters

Avé notes that: ‘[i]nternal waters are the rivers, the ports and the maritime space contained in the small notches of the coast’.20 The waters landward to the baseline of the territorial sea are part of the internal waters of the State, according to UNCLOS.21 They lie between the low-water mark22 and the baseline used to calculate the territorial sea, and they can also be inland seas, such as, for example, the Dead Sea. However, they should not be confused with continental freshwater. From a legal point of view, these are comparable to land areas of which they are a kind of natural extension. The sovereignty of the coastal State over them is therefore absolute. Foreign vessels enjoy freedom of access to ports and anchorage, except for warships and merchant ships, which require authorization from the port authorities of the coastal State to do so.23 The internal waters, like the territorial sea, are one of the busiest maritime zones falling under national jurisdiction. They are subject to various uses, consequently the coastal State’s sovereignty over them also brings with it legal responsibility over this maritime space. These versatile and crowded activities pose many challenges for good governance. Marine spatial planning is required to ensure good governance of this maritime space and the 15 See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (Judgment) [1969] ICJ Rep 3, para 96. 16 UNCLOS, Art 57. 17 ibid Art 76(4)–(7). 18 B Trouillet, ‘La mer-territoire ou la banalisation de l’espace marin: golfe de Gascogne’ (Articles Mappemonde, IGARUN, CNRS, Géolittomer, Université de Nantes, France 2006) 1. 19 G Labrecque, Les frontières maritimes internationales: Essai de classification pour un tour du monde géopolitique (Harmattan, coll Raoul Dandurand, Montréal 1998) 443. 20 AS Avé, La Convention de Montego Bay (Série des textes 50 leçons, no 2, Armateurs de France, Paris 2012) 9. 21 UNCLOS, Art 8. 22 By low-water mark is meant the points reached by the sea during low seas of white water. See Beurier (n 3) 77. 23 L Lucchini and M Voeckel, Droit de la Mer (Pedone, Paris 1990) 155.

Maritime zones in international law  27 adjacent territorial sea, for example the novel marine management concepts, such as various ecosystem-focused approaches (ecosystem services, ecosystem-based management, etc.).24 2.2

The Territorial Sea

The territorial sea and the contiguous zone are treated together in Part II of UNCLOS, particularly in Article 2 which states that: ‘This sovereignty extends to the air space over the territorial sea as well as to its seabed and subsoil’.25 UNCLOS provides that sovereignty over the territorial sea is to be exercised under the conditions provided for in its text and in other rules of international law.26 Although all States have the right to fix the breadth of their territorial sea, it may not exceed 12 nautical miles.27 It must be measured from the baselines28 established in accordance with the Convention and its outer limit is formed by a line of which each point is at a distance equal to the width of the territorial sea from the point closest to the baselines.29 Normally, it is the low-water mark for a straight coast, measured according to the ‘zero of the charts’ by the oceanographic service or the navy of each country.30 On the other hand, the drawing of the external line of the territorial sea is done by the technique of the tangent curve (more rarely by that of the parallel drawing).31 This delimitation is governed by four principles:32 1. The land dominates the sea. 2. The most favorable solution for residents is chosen.

24 W Flannery and B McAteer, ‘Assessing Marine Spatial Planning Governmentality’ (2020) 19 Maritime Studies 269. See Part III, Chapter 12, ‘Implementing the Eco System Approach through Area Based Management’ by D Diz and Part III, Chapter 13, ‘The Interaction between an Agreement on Biodiversity beyond National Jurisdiction and the Law of the Sea, Part II: Focus on Environmental Impact Assessment and Marine Protected Areas’ by DM Ong. 25 UNCLOS, Art 2(2). 26 ibid Art 2(3). 27 ‘The nautical mile or NM is an international unit of measurement for distances in maritime and air navigation corresponding to the distance from two points on Earth having the same longitude and whose latitudes differ from one minute. The mile is, by convention, 1,852 meters, except in Commonwealth countries, where it is 1,853.18 meters’. See: Dictionary of the French language (Edn Larousse, Paris 2008) 516. 28 UNCLOS, Art 5 provides that: ‘the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State’. 29 The principle of ‘constitution of the outer limit’ of the territorial sea was codified in Art 4 of UNCLOS, and, was taken from Art 6 of the Geneva Convention on the Territorial Sea and the Contiguous Zone, Done at Geneva on 29 April 1958. Entered into force on 10 September 1964. United Nations, Treaty Series, vol. 516. 30 ‘The hydrographic zero or zero of the charts is the common level reference for depth measurements at sea. The coasts of France are divided into 16 tide zones for each of which a reference level of the probes of the nautical charts – the Hydrographic Zero – was adopted by the Hydrographic and Oceanographic Service of the Navy. It corresponds approximately to the level of the lowest seas’. See: website of the Hydrographic and Oceanographic Service of the French Navy – SHOM. Downloaded from http://​www​.shom​.fr/​, accessed 14 January 2022. 31 Beurier (n 3) 85. See further Part I, Chapter 5, ‘Dispute Settlement and Ocean Governance’ by V Lanovoy. 32 ibid 84.

28  Research handbook on ocean governance law 3. The outer limit of the territorial sea is made up of the line each point of which is at a distance equal to the width of the territorial sea from the point closest to the baseline. 4. The international character of the delimitation.33 This delimitation of the territorial sea may not be satisfactory to all States, but allows for a stable regime that is universally respected. The coastal State’s sovereignty over the territorial sea gives it unhindered regulatory and enforcement jurisdiction over this entire maritime zone, with one important exception: it cannot refuse innocent passage to vessels flying a foreign flag.34 The coastal State has the sovereignty to establish rules and guidelines for the exercise of maritime navigation,35 nevertheless under UNCLOS, ships of all States, whether coastal or landlocked, enjoy the right of innocent passage through the territorial sea,36 and such passage must be continuous and expeditious.37 The outer border of the territorial sea is the limit to the exercise of State sovereignty over the ocean space adjacent to the coastal State. This limit is a human creation to assert economic, political or social control. The outer border of the territorial sea today represents one of the most significant sources of difficulties in maritime matters, particularly with regard to the conservation of the marine environment. For some authors, ‘the border can only be taken as a social construction, revealing a certain social reality. This social dimension of the border as a social construction makes it a living construction evolving over time’.38 In addition, ‘borders form (…) multi-scalar spatial objects, spaces subject to strategies and policies decided on different scales of power. They would then appear as the periphery of a coherent whole, built from a center, a power, an identity appropriation of a space’.39 The exploitation of very large onshore and offshore mineral reserves and the recent shift towards offshore renewable energy is of vital interest for all coastal States. Beyond energy generation and mineral exploitation, there are also remaining tensions concerning fishing, navigation and the competence for environmental protection and water management. These are all issues that influence the demarcation of maritime borders.40 2.3

Bays: Current Issues and Problems

The concept of a ‘bay’ has evolved over time but,

The State proceeds by unilateral act, but the delimitation must be recognized by the other States. UNCLOS, Art 19. 35 Beurier (n 3) 86. 36 UNCLOS, Art 18. 37 ibid Art 18(2). 38 J-L Piermay, ‘Des confins aux villes frontières: l’innovation à la marge’, Communication in the round table on Les confins du handicap à l’innovation (held in January 2002 within the framework of Franco-South African scientific meetings on territorial innovation, Research Institute for Development, Grenoble 2002). 39 J-P Renard, ‘La frontière, limite géopolitique majeure mais aussi aire de transition’ in Limits and discontinuities, col Economic images of the world (dir André Gamblin, ed, SEDES/PUF, France 2019), 59. 40 C Vigneaud, Relations Internationales Contemporaines: Géostratégie de la Caspienne (Institut d’Études Politiques, Aix-en-Provence 2008) 2. 33 34

Maritime zones in international law  29 according to conventions from the nineteenth century and state practice had retained a threshold of 10 miles of width between the closings of a notch: where the width was below 10 miles, it was a bay in the legal sense of the term and the coastal state could include it in its internal waters. Beyond 10 miles of width, the baseline had to go inside without eliminating this geographic factor.41

Current law distinguishes three types of bays: bays bordered by a single State, those bordered by several States and historic bays. The bay bordered by a single State is a well-marked notch which constitutes more than a simple inflection of the coast42 and meets two criteria: the area and the maximum distance of 24 nautical miles.43 Where there are several States adjacent to a bay, each State draws its territorial sea in the bay without taking into account the criteria retained for bays bordered by a single State. It is different if, by agreement, the residents allow each other free access, or if a court has recognized the common property of residents on this space,44 as decided by the Central American Court of Justice in 1917, in the case of Fonseca Bay.45 A historic bay, according to the international law of the sea, is a very large bay. It is too vast to be integrated in its entire surface into internal waters and even into the territorial sea of ​​the coastal State, if one considers the rules applicable to the legal delimitation of these maritime areas. However, they are recognized as internal waters because of an established use,46 motivated by economic or strategic reasons.47 When it qualifies as a historic bay – rarely moreover – a bay is considered to fall within the internal waters of the coastal State, an area where its sovereignty is total.48 It is a fact that the expression ‘historic bay’ is used more frequently than the expression ‘historic waters’. Nevertheless, this does not mean that only the bays, to the exclusion of other waters, can be claimed by States for historical reasons.49 To qualify as a historic bay, three conditions must be met: a) effective exercise of the sovereignty of the resident; b) existence of an established use; c) express or tacit acceptance of third States. The legal qualification of

Beurier (n 3) 88. UNCLOS, Art 10. 43 ‘France deposited its instruments of ratification on June 30, 1967 concerning the closing lines of the bays used to determine the baselines, and fixed the list of its bays by decree of October 19, 1967’. J Touscoz and P-F Voisin, ‘Les conventions internationales conclues par la France, publiées au journal officiel de la République française en 1967’ (French Annual of International Law, vol 13, Mese, Paris, 1967) 782. 44 Beurier (n 3) 89. 45 Central-American Court of Justice – CACJ (Judgment of 9 March 1917. Aff, Fonseca Bay, El Salvador v Nicaragua. AJIL 1917) 674. 46 The custom of ‘established usage’ is evidenced in various arbitral awards. See, for example, The North Atlantic Coast Fisheries Case (Great Britain, United States), 7 September 1910, XI RIAA 167. 47 Beurier (n 3) 89. 48 J-P Pancracio, ‘Droit de la mer et des littoraux’ (Blog, Baies historiques, Université de Poitiers 2012). 49 Extract from the Yearbook of the International Law Commission: ‘Legal Regime of Historic Waters, Including Historic Bays’ (File: A/CN.4/126. Note by Secretariat -, vol II. 1960) 7. See: International Law Commission website, http://​www​.un​.org/​law/​french/​ilc/​index​.htm, accessed 4 October 2021. 41 42

30  Research handbook on ocean governance law a historic bay is recognized in several bays, notably in France, Norway, Tunisia, and so on and is claimed by many other States.50 2.4

The Channel Straits

Under international law, straits designate tight sea passages between two parts of land,51 regulated by a set of rules taken up since 195852 and incorporated into UNCLOS.53 The special legal regime of straits only applies if they connect two parts of open seas.54 The legal implications regarding the use of these particular passages is that they allow ships to pass from one sea basin to another. The maritime passage determines the effective scope or not of the principle of freedom of the seas.55 One of the best examples of straits is the Pacific Ocean and its bordering seas where numerous straits connect parts of the high seas.56 Most of them have no special legal status and remain subject to the general rules of maritime law.57 The strait is commonly assimilated to a passage, opening or natural channel. However, it is necessary to clearly differentiate the latter from ‘canals’ defined as: ‘international maritime communication channels which connect two free seas’, but ‘which are artificial and located entirely on the territory of a State’,58 such as the Suez Canal59 or the Panama Canal.60

50 The legal qualification of historic bay is recognized in the following bays: Mont Saint-Michel bay (France); Bristol Channel (United Kingdom); Vestfjord (Norway) – 60 nautical miles of opening: status recognized by a judgment of the International Court of Justice of 18 December 1951); Varangefjord (Norway) – 30 nautical miles opening; Gulf of Riga (Estonia and Latvia); Gulf of Taranto (Italy); Gulf of Gabès (Tunisia); Hudson Bay (Canada) – 520 miles of opening; Gulf of St Lawrence (Canada) – 460 miles of opening. For more details on this list, see further Pancracio (n 48) 2012. 51 Beurier (n 3) 89. 52 See the Convention on the Territorial Sea and the Contiguous Zone (adopted 29 April 1958, entered into force 10 September 1964) 516 UNTS 205 (1958 Geneva Convention on the Territorial Sea and Contiguous Zone), Art 16(4). 53 UNCLOS, Arts 34–45. 54 This criterion was adopted by the ICJ in the Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania) (Judgment) [1949] ICJ Rep 4. The judgment of the Court is joined by the statement and the dissenting opinions of MM Alvarez, Winiarski, Zoricic, Badawi Pasha, Krylov and Azevedo, judges, as well as of Mr Ecer, ad hoc judge. 55 Beurier (n 3) 90. 56 Focsaneanu (n 13) 197. 57 Some of the straits constitute large sea routes used for international navigation, i.e. the Strait of Malacca, connecting the Indian Ocean to the South China Sea; the Strait of San Bernardino, which joins the high seas of the Pacific to the South China Sea; Cook Strait, which separates the North Island from the South Island of New Zealand by connecting the South Pacific to the Tasman Sea, etc. For more information about this subject, see: RH Kennedy in ‘United Nations Conference on the Law of the Sea’ (vol I, Preparatory documents. A/CONF.13/6 + Add.1) (Geneva, 24 February – 27 April 1958) 115–64. 58 The legal regime of artificial canals is specific and presupposes the payment of fees by users in return for the service provided. 59 The 162 km long Suez Canal was opened on 17 November 1869, in the presence of Empress Eugenie, wife of Napoleon III, and the Emperor of Austria, François-Joseph (curious at the British imperial presence). See F Damborenea, ‘Certains apostilles sur le canal de Panama à propos du centenaire de la république’ (Publication ‘La voz del Colegiado’, Spanish Civil Engineering Association, no 259 of April 2003) 13. 60 The 80 km Panama Interoceanic Canal was opened on 15 August 1914. See further Damborenea (n 59) 20.

Maritime zones in international law  31 2.5

The Contiguous Zone

The origin of the contiguous zone regime emanates from customary international law and is enshrined in UNCLOS.61 Certain States wishing to combat maritime smuggling demanded regulatory and enforcement jurisdiction to control their fiscal and customs services beyond their territorial sea.62 Historically, the contiguous zone area from 1958 was part of the high seas.63 UNCLOS allows the contiguous zone to extend up to 24 nautical miles from the baselines from which the breadth of the territorial sea is measured,64 and therefore it extends seaward to 12 nautical miles beyond the territorial sea. Some authors identify the contiguous zone as a ‘transition zone’65 between the territorial sea and the high seas. In this zone, the coastal State can exercise sovereign rights to control, prevent and punish offenses of a fiscal, customs or sanitary nature as well as the protection of the underwater archaeological heritage.66 The right to regulate and enforce sanitary laws has been also used by coastal States to regulate marine pollution, although States that have declared an EEZ have a wider form of jurisdiction to regulate the maritime space for environmental purposes. Nonetheless, the contiguous zone enables coastal States that have not declared an EEZ to use their sovereign rights to regulate marine pollution under the sanitary aspect. As the contiguous zone is not under the entire territorial sovereignty of the coastal State,67 it is an area of extension of non-economic finalized skills.68 2.6

Archipelagic States

One of the most interesting points about the maritime zones which UNCLOS codified following their origin under customary international law is the notion of archipelagos under international law, and especially ‘archipelagic States’69 made up entirely of islands, one or more archipelagos and possibly other islands.70 UNCLOS defines the island as a natural expanse of land surrounded by water that remains uncovered at low tide.71 The legal zoning of an island 61 The contiguous zone is codified in UNCLOS, Art 33. The first attempt to codify the contiguous zone regime is found in the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, Art 24. 62 Hovering acts britanniques de 1718 (fight against smuggling born from the prohibition made on British subjects to consume French products such as wines, spirits and silks), (French customs radius 20 km from 1817, American liquor drafts from 1924). For more details see Beurier (n 3) 87. 63 VL Gutierrez Castillo, ‘La zone contiguë dans la Convention du Droit de la mer de 1982’ (Annuaire du Droit Maritime, t VII, 2002) 149. 64 UNCLOS, Art 33. 65 F Vallon, La mer et son droit, entre liberté et consensualisme, l’impossible gestion de la piraterie et du terrorisme (Publibook Université Edn, Droit & sciences politiques, Paris 2011) 41. 66 UNCLOS, Art 33. 67 Vallon (n 65) 41. 68 Beurier (n 3) 87. 69 ‘In international law, the notion of an archipelago state dates back to 1924, when the Chilean jurist Alejandro Alvarez proposed to the International Law Association to consider archipelagos as fully-fledged geographic entities with the right to delimit their own territorial waters. Question seized by the Institute of international law in 1928 and which distinguishes for the first time coastal and oceanic archipelagos’. See: E Decene, Géostratégie de la mer de Chine méridionale et des bassins maritimes adjacents (L’Harmattan Edn, Montréal, Canada 2000) 117. 70 UNCLOS, Arts 46–54. 71 ibid Art 121. (Definition taken from Art 10 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone).

32  Research handbook on ocean governance law is the same as that of the other territories. The contiguous zone, the EEZ and the continental shelf of an island are delimited in accordance with UNCLOS, except for rocks which are uninhabitable or which do not lend themselves to an economic life of their own, which have no EEZ or continental shelf. In this sense, an archipelagic State cannot oppose the right of innocent passage of foreign ships and aircraft. This is the case of Indonesia,72 which as early as 1957 claimed the principle of the archipelagic State73 to provide itself with a legal framework capable of enhancing the natural situation of its islands and building a coherent and unified nation through doctrine of ‘national sufficiency’ allowing the development of a geopolitical and geo-economic strategy throughout the region.74 UNCLOS establishes that an archipelagic State may draw straight archipelagic baselines connecting the extreme points of the most distant islands and discovering reefs of the archipelago provided that the course of these baselines encompasses the main islands and defines an area where the ratio of the area of ​​water to that of land, including atolls, is between 1 to 1 and 9 to 1. The length of these baselines must not exceed 100 nautical miles, and the breadth of the territorial sea, the contiguous zone, the EEZ and the continental shelf is measured from these archipelagic baselines in accordance with UNCLOS rules.75 2.7

The Exclusive Economic Zone

The EEZ is considered a recent maritime concept but its conceptual origin dates from the end of the sixteenth century.76 UNCLOS clarified its definition in 1982: The exclusive economic zone is an area located beyond the territorial sea and adjacent to it, subject to the special legal regime established by this part, under which the rights and the jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of the Convention.77

The zeal of many coastal States to declare an EEZ has not been matched by an equal determination to regulate it effectively and the legal framework for the EEZ has often been abused with certain coastal States lacking the political will or the appropriate logistical capacity to comply with the required legal obligations imposed under Part V of UNCLOS. This led to

Indonesia, proclaiming its independence on 17 August 1945, with its 13,000 islands, had proclaimed itself ‘Archipelago State’ by its law of 13 December 1957 and was recognized internationally only in December 1949. See: Educational tool ‘Perspective Monde’ (School of Applied Politics, University of Sherbrooke, Canada 15 May 2020). 73 ‘The archipelagic State, or wawasan nusantara in its local language, is the first foundation of the geographic and anthropological unity of Indonesia’. R Devi-Voisset, ‘From the Nusantaran Concept to the Archipelagic States: Some Aspects of the Archipelagic Legal Regime in the Western Pacific’ in The Imaginary of the Archipelago (Karthala edn 2003) 79. 74 Decene (n 69) 112. 75 ‘The length of these baselines must not exceed 100 nautical miles: (a maximum of 3% of the total number of baselines surrounding a given archipelago may be longer, not exceeding 125 nautical miles)’. See UNCLOS, Arts 47(2) and 48. 76 The end of the sixteenth century was marked, in law of the sea, by the influence of the famous controversy between Grotius and Selden: mare liberum versus mare clausum. 77 UNCLOS, Art 55. 72

Maritime zones in international law  33 several legal and political problems between these States and third States. In this regard, one should mention the problem of delimitation in the event of a very close neighbourhood, or that of maritime management and the conservation of natural resources, the prevention of pollution and nuisance of land-based or non-land-based origin, the prevention of illegal activities at sea, maritime piracy and ‘co-management’ of EEZs by two States whose EEZs are superimposed. The next part of this chapter delves into the legal status of the EEZ; its foundations and its legal nature, but also, the concept under construction of the legal qualification of the EEZ. The EEZ can extend up to 200 nautical miles. This delimitation is fairly recent,78 conventional79 and strongly jurisprudential.80 The recognition of the EEZ by positive international law is the result of the evolution of various challenges, of economic and political nature, seeking an enlargement of national territories and, above all, the exclusivity over fishing areas.81 Each year, States modify their national legislation in order to guarantee an improvement of their fishing zones and of protection of the environment of their coasts but above all they always aim to consolidate their sovereign rights.82 After the Second World War, States claimed marine areas not only as a means of territorial extension, but also as a new source of income through fishing and the commercial activities that can be practiced there. The claims of the States relating to their maritime space took a unilateral form: from 1947 on, and more specifically in 1952 with the declarations of Santiago de Chile (which resulted in the delimitation of the maritime border between Chile and Peru) and the declaration between Chile, Peru and Ecuador. However, the claim of marine areas is a matter of international concern, precisely because of the need for recognition of these extensions by the international community.83 In the two statements mentioned above, these South American States proclaimed their decision to extend the limits of their territorial seas to 200 nautical miles from the baselines. Strangely enough, it was precisely these declarations that divided the parties until the judgment of the ICJ delivered in 2014.84 These declarations are at the origin of one of the most

About the width of the EEZ, see UNCLOS, Art 57 which provides that: ‘The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’. 79 The origin of the conventional character of UNCLOS starts from the sovereign opinion of the adhesion of the member states of UNCLOS, where most of the delimitations are made by conventional way, normally within the framework of a multilateral agreement. 80 The last decision on the maritime delimitation in South America was pronounced on 27 January 2014 where the ICJ established the current maritime limit between Peru and Chile. See Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3. 81 Pancracio (n 48) 139, 310. 82 M Voelckel, Comment vit la Zone Economique Exclusive (Yearbook of the Law of the Sea, Tome VI, 2001) 110. See also J Bulot, Le Drame de l’Amoco Cadiz (J Bulot (edns) 1990), 150. 83 J-E Briceño Berrú, ‘Análisis de la Declaración de Santiago de 1952 y de la Convención de Lima de 1954 y demostración de su insubsistencia jurídica como tratados de delimitación marítima entre Perú y Chile’ (International Agenda, year XIX, no 30, 2012) 139–70. 84 ‘In view of the claims made by Costa Rica in the case concerning the Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) and the close link between those claims and certain aspects of the dispute in the case concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), by an Order of 2 February 2017, the Court joined the two proceedings’. International Court of Justice website, https://​www​.icj​-cij​.org/​en/​case/​157, accessed 11 January 2022. 78

34  Research handbook on ocean governance law controversial cases in matters of maritime delimitation,85 the maritime dispute case (Peru v Chile). These declarations established the guidelines for the common maritime policy of the State Parties, for essentially economic purposes. The legal classification of the EEZ given by Article 55 of UNCLOS is one of the most important subjects dealt with during all the discussions and summits on the law of the sea between 1945 and 1982. It was at the occasion of the second proclamation of 28 September 194586 that President H. Truman, evoking the need to protect living species for the benefit of all, claimed the right for the United States to establish an area off the American territorial sea for conservation of fisheries placed under the regime of American law.87 The Santiago declarations of 1942 and 1952 were intended to protect a right of access to resources and especially to the wealth of the Humboldt current.88 This case illustrates the fact that territorial extension was not the primary motivation, even less the protection of the environment.89 Instead, it was about ensuring the protection of resources and trade through fishing. However, the developed countries which were already maritime powers (the United States, Great Britain, France) ‘saw in this extension a danger to the freedom of the seas because who says territorial sea inevitably says state sovereignty’.90 Thus, one may note that the concept of the EEZ is deeply linked to the concept of maritime delimitation, a delimitation which allows the economic development of States through a ‘legitimate’ exploitation of the resources of the coastal sea. This concept, developed since 1951 with the Fisheries Case,91 was at the basis of the concept of ‘special interest of local residents’ in the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas.92 Already in 1958, this Convention mentioned that ‘the coastal State has a special interest in maintaining the productivity of biological resources throughout the high seas adjacent to its territorial sea’.93 This served as a legal basis for unilateral claims. However, although unilateral declarations are a means of protecting a State’s access to maritime resources, this practice became less and less tolerable when the exploitation of fishery resources intensified – despite

‘One of the most contested points in Chile’s position was the demand to unilaterally modify the point of the maritime border, shifting the starting point of the (measurements) of coordinates which is enshrined in the treaty of June 3, 1929’ in Briceño Berrú (n 83) 143. 86 US Presidential Proclamation No 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf. Adopted on 28 September 1945. Filed under ALL, International Law Documents. 87 ‘This type of claim falls under the category of measures intended to conserve the resource without restriction to the fishery’; see Beurier (n 3) 108. 88 ‘Near the west coast of South America, the surface waters carried offshore by the trade winds are replaced by deeper, cooler and more nutrient-rich waters (upwelling phenomenon). This results in the establishment of a cold current rich in marine life (the Humboldt Current) which runs along the coast of Chile – Peru – Ecuador, then moves westwards bathing the Galapagos’. See: CNRS website, http://​www​ .cnrs​.fr/​cw/​dossiers/​dosclim1/​motscles/​savoirPlus/​elnino​.html, accessed 11 January 2022. 89 Beurier (n 3) 108. 90 I Bondar, ‘Exclusive Economic Zone: Problems of Creation and Delimitation’ (Master’s dissertation, University of Aix-Marseille 2009) 10. 91 Fisheries Case (United Kingdom v Norway) (Judgment) [1951] ICJ Rep 116. 92 Convention on Fishing and Conservation of the Living Resources of the High Seas (adopted 29 April 1958, entered into force 20 March 1966) 559 UNTS 285 (1958 Convention on Fishing and Conservation of the Living Resources of the High Seas). 93 ibid Art 6 (1). 85

Maritime zones in international law  35 the legal support of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas. In this way, the concept of the EEZ developed against the backdrop of a legal doctrine supporting the fact of ‘having sovereign rights’, that is, exclusive rights of exploration, exploitation, conservation and management of biological and non-biological resources contained in the waters, the seabed and their subsoils as well as the right to exercise any other economic activity in accordance with Article 56 of UNCLOS. Finally, the definition of the EEZ was registered in 1982 in UNCLOS: ‘the EEZ is an area located beyond the territorial sea and adjacent to it (…) and which does not extend beyond 200 nautical miles from the territorial sea’.94 UNCLOS also allows the Contracting Parties to extend their maritime zones. They may go up to 350 nautical miles as permitted in the previous section of the Convention relating to the continental shelf as well as to certain measures like the calculation of the distance from the foot of the slope, ‘a distance of 60 miles beyond the famous foot of the slope, if it is indeed inside the EEZ; or by calculating from the thickness of the sediment, the so-called 1% rule’.95 These are means which make it possible to technically establish legal grounds for maritime extensions. Some authors believe that the 200 nautical miles limit of the EEZ is discontinuous and requires new prescriptions.96 The first possibility is the extension of certain sovereign rights over particular species intended for fishing, and the second is the extension for reasons of navigation safety, because of offenses in these maritime areas, or in the event of maritime pollution.97 Finally, the third possibility is the consequence of the withdrawal of the initial baselines due to the rise in sea level.98 In this context, the current international geopolitics and the presence of companies of creeping jurisdiction in the world economy draw a new scheme of protection of certain competences of the coastal States beyond the limit of 200 nautical miles, which so far was meant to be intangible.99 Consequently, the concept of the EEZ appears to us, even today, under construction, capable of constant evolution, both in fact and in law.100 Some coastal States101 have only declared an exclusive fishing zone which is a limited form of EEZ. UNCLOS, Arts 55 and 57. W Roest, ‘ZEE: mais où commence la haute mer?’ in Haute mer, Biodiversité, ressources et enjeux, Hebdomadaire de l’économie maritime (Le Marin Review, no 3205, 12 December 2008, French Marine Protected Areas Agency, Paris 2008) 11. 96 DM Johnston, The Theory and History of Ocean Boundary Making (McGill, Queen’s University Press 1988) 253. 97 Bondar (n 90) 13. i.e. France and its ecological protection zone in the Mediterranean Sea. 98 B Kwiatkowska, Creeping Jurisdiction beyond 200 Miles: Ocean Development and International Law (vol 22, Taylor & Francis 1991) 153–87. See further Part III, Chapter 11, ‘Ocean Governance in an Era of Climate Change’ by S Borg. 99 L Lucchini, ‘Stocks Chevauchants: Grands Migrateurs’ in N Al-Naumi and R Meese (eds), International Legal Issues Arising under the United Nations Decade of International Law (Martinus Nijhoff 1995) 513–48. 100 L Lucchini, ‘Une nouvelle vague de nationalisme maritime? Quelques réponses de la pratique étatique’ (Studies dedicated to Dean Claude-Albert Colliard, Edn Pédone, Paris 1992) 37. 101 See, for example, Malta which has an Exclusive Fishing Zone and legislation to regulate its Fisheries Management Conservation Zone (FMCZ) that extends to 25 nautical miles from the baselines from which the breadth of the territorial waters is measured under the Territorial Waters and Contiguous Zone Act (1971), Chapter 226 of the Laws of Malta. Malta’s Exclusive Fishing Zone is approximately 11 480 km². Malta has transposed Directive 2014/89/EU of the European Parliament and of the Council of 94 95

36  Research handbook on ocean governance law 2.8

The Continental Shelf

The continental shelf is still subject to many contemporary claims today.102 The continental shelf, as defined by UNCLOS, represents a considerable extent: ‘almost 7.5% of the maritime surface of the Earth, or almost one-fifth of the earth’s surface or the entire surface of Europe’;103 representing an 11 percent extension of the hold on marine areas.104 In order to clarify the concept of the continental shelf, UNCLOS expressly provides that the continental shelf of a coastal State includes the seabed and its subsoil beyond its territorial sea.105 More academically, ‘the continental shelf is the undersea extension of a State’s territory’.106 In addition, ‘the definition, itself, of the continental shelf is imprecise, approximate, and (…) therefore the delimitation of its extent and its borders will most often be complicated and may be impossible’.107 The continental shelf extends beyond the territorial sea to the edge of the continental margin, or up to 200 nautical miles, a great distance, and includes the seabed and the subsoil.108 Two situations can arise: on the one hand, in the same way as the EEZ, the limit of the continental shelf can be located at less than 200 nautical miles from the baseline in the case where the coasts of two States are adjacent or face each other. A maritime delimitation is then necessary to define the areas under the jurisdiction of each coastal State. When the continental margin extends beyond 200 nautical miles, States may claim to exercise their jurisdiction either up to 350 nautical miles from the baselines, or up to 100 miles from the 2500 meters isobath,109 according to certain geological criteria.110 In return, the coastal State with an extended continental shelf must contribute to a system of sharing of the revenues derived from

23 July 2014 establishing a framework for maritime spatial planning (OJEU L 257/135, 28 August 2014) into national law Subsidiary Legislation 552.27 under the Development Planning Act (2016), Chapter 552 of the Laws of Malta which states that the Strategic Plan for Environment and Development (SPED), and any replacement spatial strategy, shall constitute the Maritime Spatial Plan for Malta. See European MSP Platform, https://​www​.msp​-platform​.eu/​countries/​malta, accessed 29 May 2020. 102 This paragraph has been developed in large part, taking as its basis the book of VJM Tassin, The Challenges of the Extension of the Continental Shelf: The Consecration of a New Relationship of the State to Its Territory (Pedone 2013). 103 United Nations, ‘Brief Survey of the Development of the Mineral Resources of the Continental Shelf’ (Interregional study cycles on the mineral resources of the continental shelf, ST/TAO/SER.C/138, United Nations 1982) 115. 104 R Meese and JS Ponroy, ‘The Ultimate Frontier of France: The Continental Shelf beyond 200 Miles’ (2002) VII YB of the Law of the Sea 93. 105 UNCLOS, Art 76. 106 UN, Review of the United Nations on the Twentieth Anniversary of UNCLOS: The Oceans – Sea of Life (United Nations 2002) 2. 107 G Scelle, ‘Plateau continental et droit international’ (General review of public international law, Tome 26, 1955) 11. 108 See UNCLOS, Art 76(1). 109 These limits fixed by UNCLOS were motivated in order to avoid claims which could appear excessive, which for certain authors like Beurier is contradictory with the concept of edge of the margin, because one sees no logic – if not compromise – in the distances chosen. For more information, see Beurier (n 3) 103. 110 UNCLOS, Art 76(5).

Maritime zones in international law  37 the exploitation of mineral resources beyond this limit with the international community. The sharing is managed by the International Seabed Authority.111 States are often very creative when it comes to the enlargement of their maritime territories, so many of them came up with the extension of their continental shelves as an outer frontier,112 having basically two maritime borders: one within 200 nautical miles from the baseline, and another one beyond, which leads to management difficulties for the international community. This is due to the importance of the concept of the continental shelf and the number of States that having already filed claims to extend their continental shelves to the Commission on the Limits of the Continental Shelf. The analysis of the claim of the continental shelf therefore requires taking into account two important elements: on the one hand, the theories of delimitation of the continental shelf in international law and, on the other hand, the legal issue of the extension of a continental shelf beyond 200 nautical miles from the baselines. When it comes to the delimitation of the continental shelf under international law, in the legal strictum sensus there exist two methods to determine the extent of a continental margin under UNCLOS. The first method is by measuring geological features using what is called the Gardiner formula.113 The second method is to use fixed distances according to the so-called Hedberg formula.114 Nonetheless, the ocean governance approach identified that the delimitation of the continental shelf is motivated by three circumstances. The first consists of the diversification of the uses of the sea and in particular of the possibilities of exploitation of its resources as provided for in the ‘Treaty of Pariah of 1942’115 by which Great Britain and Venezuela shared the Gulf of Outcast by delimiting the seabed of the Gulf. Furthermore, in 1945, the Truman Proclamation laid down a doctrine concerning the sovereignty of the local residents over the natural resources of the plateau, which laid the foundations for a new regime for the soil and the subsoil of the contiguous high seas and the territorial sea.116 Truman considered the continental shelf to be ‘the extension of the landmass of the riparian nation’. The second circumstance results from a more conversationalist approach to maritime management, in response to the impacts produced by technological development. Finally, the third circumstance is linked to a military strategic approach, which envisages

See: website of the International Seabed Authority, an autonomous international organization, which was established in accordance with UNCLOS of 1982 and the 1994 Agreement relating to the application of Part XI of the Convention, http://​www​.isa​.org​.jm/​fr/​scientific, accessed 19 January 2021. 112 J-M Sorel, ‘Les défis de l’extension du plateau continental: La consécration d’un nouveau rapport de l’Etat à son territoire’ in Tassin (n 102) Preface. 113 ‘By measuring the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope’; see UNCLOS, Art 76(4)(a)(i). 114 ‘By reference to fixed points not more than 60 nautical miles from the foot of the continental slope’; see UNCLOS, Art 76(4)(a)(ii). 115 ‘In the Gulf of Paria, in 1942, an international agreement was drawn up for the first time on the delimitation of the seabed between Venezuela and the island of Trinidad / Tobago, which was still a British colony. The treaty was signed on 26 February 1942, ten days after the first attack by German submarines against the military bases and the shipment of oil in the northwest of Trinidad, oil reserves, located in the Southeast part of gulf, which quickly exploded as they were vital to Britain during the war’. See: BMW Ratter and G Sandner, ‘Conflictos territoriales en el espacio marítimo del Caribe: trasfondo de intereses, características y principios de solución’ (Impreandes Edn, Bogotá 1997). See: website Luis Angel Arango (Library Banc of the Republic, Colombia), http://​www​.banrepcultural​.org/​blaavirtual/​ geografia/​ctemc/​ctemc09d​.htm, accessed 11 January 2022. 116 Beurier (n 3) 100. 111

38  Research handbook on ocean governance law prevention and defense measures such as preventing overflight of areas or the navigation of war submarines.117 Coastal States have an exclusive right to explore and exploit both living and non-living resources on their continental shelf.118 An exclusive right to authorize and regulate drilling on the continental shelf,119 and a right to exploit the subsoil by means of tunneling.120 Finally, the coastal State has the right to regulate, authorize and conduct marine scientific research.121 Following the adoption of UNCLOS, coastal States have a duty to safeguard the environment on their continental shelf and an obligation to let other States use the shelf for certain purposes, such as the laying of pipelines and cables.122 However, coastal States have the right to take reasonable measures concerning the laying or maintenance of cables or pipelines by other States.123 They have an exclusive right concerning the establishment of artificial islands, installations and structures124 and the right to establish safety zones around them.125 In sum, coastal States have a sovereign right over the continental shelf for the purpose of exploring it and exploiting its natural resources,126 the duty not to infringe on navigation and other rights and freedoms of other States.127 The creation of the ‘extended continental shelf area’128 has brought about a significant change in the balance of the legal regime for the continental shelf. As a part of a legal issue motivated by economic and political considerations, it combines the articulation of the common interest and the special interest of States by seeking to correct the regime of the original continental shelf which appears to be deeply discriminatory, both geographically and financially.129 This problem of inserting the principle of natural extension of the land rests on a double axis: on the one hand, the economic value of this space given that the legal link existing between the State and its underwater area allows economic profit or strategic use of defense, but it also requires ecological protection. On the other hand, the continental shelf emerges as an accessory territory of the coastal State.130 The desire to extend coastal state jurisdiction out towards the sea, as a manifestation of greater appropriation of natural resources, today

‘La réglementation internationale des espaces’ (2010), https://​www​.doc​-du​-juriste​.com/​ droit ​ - public ​ - et ​ - international/​ d roit​ - international/​ c ours​ - de​ - professeur/​ d roit​ - international​ - public​ -reglementation​-espaces​-maritimes​-aeriens​-469821​.html, accessed 11 May 2021. 118 UNCLOS, Preamble and Part V. 119 ibid Art 81. 120 ibid Art 85. 121 ibid Art 246. 122 ibid Part XII. 123 ibid Art 79. 124 ibid Art 60(2). 125 ibid Art 60(4). 126 ibid Art 77 (the natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil). 127 UNCLOS, Art 78(2). 128 ibid Art 76(4)–(8). 129 Tassin (n 102) Abstract. 130 ibid 41. 117

Maritime zones in international law  39 translates as a return to the time of great conquests.131 The new international structure of States relating to maritime zoning seeks the appropriation of resources located on the extended continental shelf, however, little information is available on this subject. In addition to economic motivations which push States to promote the extended continental shelf, one also notes regional and international geopolitical motivations which are explained by the end of the period of colonization and the emergence of newly independent countries132 determined to invest in protectionist projects. Thus, in addition to their economic interest with regard to the seabed and the subsoil, States have sought to establish rights of exploration and exploitation of resources: ‘States do not only wish to secure access to natural resources of the extended continental shelf in order to meet development and economic well-being objectives. They also want to assert themselves on the international scene through the extension of the continental shelf’.133

3.

AREAS BEYOND NATIONAL JURISDICTION

3.1

The High Seas

International law sets out a negative or default definition of the high seas:134 ‘the high seas include all parts of the sea which are not defined as inland or archipelagic waters, territorial sea or EEZ’.135 Thus, the high seas represent the ocean surface and the water column beyond the EEZ. In the same way of thinking, the principle of freedom of the high seas is one of the oldest principles relating to the relationship between humans and the sea. The high seas are considered an ‘undefined space’ because even international law does not exactly delimit them.136 It is a space located beyond national maritime spaces, and therefore, ‘it is an area whose extent is likely to vary, because it exists not only outside the 200 nautical mile line, but also within this limit’.137 UNCLOS alludes to ‘the freedom of the high seas’.138 However, as noted by Beurier, ‘it is better to speak of freedoms because States do not have general and unlimited jurisdiction’.139 Each State exercises its freedoms, taking ‘due regard’ of the interests of other States concerned.140 Between 1958 and 1982, there was a reclassification of freedoms of the high seas, just as the international community witnessed an increase in these freedoms in a maritime delimitation

131 For more details, follow the words of G Scelle during the work of the International Law Commission in 1950 ‘That (…) reminded him of the discovery of America by Christophe Columbus. It had to be conceived in order to be transformed into reality’, G Scelle, ‘Comptes Rendus Analytiques’ (1950) I YB of the International Law Commission 214. 132 L Henkin, ‘Politics and the Changing Law of the Sea’ (1974) 89 Political Science Quarterly 46. 133 Tassin (n 102) 141. 134 Avé (n 20) 23. 135 UNCLOS, Art 86. 136 ibid. 137 HJ Kim, ‘Le principe de liberté de la haute mer’ (PhD in Law dissertation, Université Paris 1 Panthéon Sorbonne 2010) 33. 138 UNCLOS, Art 87. 139 Beurier (n 3) 114. 140 UNCLOS, Art 87(2).

40  Research handbook on ocean governance law process according to a classic approach based on the concept of ‘borderline’141 in order to delimit the space where States can exercise these freedoms. This has pushed the international community to redefine its competences in the face of new geopolitical problems and, in particular, because these types of freedoms applicable to the high seas forced the States to seek an ecological balance. The comparative analysis between the Geneva Convention, adopted in 1958, and UNCLOS, adopted in 1982, illustrates an evolution in the conception of freedoms of the high seas. Indeed, one may observe the transition from four freedoms in the 1958 Geneva Convention on the High Seas142 (navigation, fishing, laying cables and overflight) to six freedoms in UNCLOS:143 freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines, subject to Part VI, the freedom to construct artificial islands and other facilities authorized by international law, subject to Part VI, freedom of fishing, subject to the conditions set out in section 2, and freedom of scientific research, subject to Parts VI and XIII.144 3.1.1

The freedom of the high seas and challenges in international law: navigation, overflight, submarine cables and pipelines and marine scientific research Freedom of navigation is the very origin of the principle of freedom of the high seas. In the Conventions of 1958 and 1982, this freedom has always been given special prominence because the maritime powers have always considered it fundamental.145 But this freedom had a strong influence on negotiations between States, particularly for coastal States which could or could not have ships flying their flags, under their jurisdiction and administrative control,146 sail on the high seas in compliance with international law,147 given the many difficulties posed in practice by this freedom. As a corollary, there is the question of the environmental marine conservation. The freedom to lay cables and submarine conduits becomes a fundamental issue for the electrical or telecommunications sectors. This freedom, which is based on communications law, was hitherto governed separately by national and international laws, despite the legal and practical difficulties raised to the extent that ‘the development of new technologies now allows the use of communication cables. Underwater telecommunications have two main purposes: the collection of real-time data on the temperature, salinity and pressure of the ocean for scientific research purposes and the routing of voice, data and internet traffic’.148 These submarine cables, called ‘telecommunication and marine data transmission cables’ allow both a telecommunication link and the monitoring of the marine environment.149 141 C Blumann, ‘Frontières et limites’ in SFDI, Colloquium of Poitiers (La frontière, Pedone Edn, Paris 1980) 8–25. 142 Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11 (1958 Geneva Convention on the High Seas). 143 UNCLOS, Art 87 provides that: ‘The high seas are open to all States … It comprises, inter alia, both for coastal and land-locked States…’. 144 ibid Art 87. 145 Beurier (n 3) 114. 146 UNCLOS, Art 94. 147 ibid Art 90. 148 International Telecommunication Union – ITU, ‘Câbles sous-marins destinés à la surveillance climatique et à l’alerte en cas de catastrophe’ (Review ITU News No 7, 2012) 1. 149 K Bressie, ‘Considérations juridiques découlant de la mise en place, l’exploitation et l’entretien des câbles de télécommunication sous-marins dotés de capteurs scientifiques’ (Rapport of the ITU,

Maritime zones in international law  41 Underwater telecommunications cables have been the subject of a long-standing disagreement between countries in the context of marine scientific research (MSR). Malcolm Johnson, Director of the ITU Telecommunication Standardization Bureau, explains that: ‘The problem lies in the fact that the legal regime applicable to the laying and maintenance of cables is not fully compatible with the MSR regime’, which also constitutes a freedom guaranteed by the UNCLOS.150 So, although MSR is increasingly the subject of discussions and symposia which make it possible to develop its study potential by promoting enhanced protection of the marine environment, possibly by choosing better marine exploitation mechanisms,151 it is worth asking to what extent the legal regime applicable to the laying and maintenance of cables does not appear to be fully compatible with the MSR regime. The freedom of scientific research has a narrow scope. It is regulated in Part XIII of UNCLOS. The principle of the right to research is recalled in its Article 238 and the obligation for the States to support research in Article 239. Furthermore, in relation to natural disasters such as the tsunami in Japan in 2011, the scientific community and political decision-makers demand detailed data on the marine environment, in order to foster prevention.152 However, there are many precedents in litigation on the rights to collect marine data, as pointed out by the Argos network. The network brings together more than 30 countries including France153 and provides 100,000 temperature and salinity profiles each year, that is, 20 times more than the number of profiles collected from research vessels.154 The Executive Council of the Intergovernmental Oceanographic Commission (IOC) of the United Nations Educational, Scientific and Cultural Organization (UNESCO) indicated at its ninth session (IOC/ABE-LOS IX) that an IOC Member State should ‘be notified in advance, through appropriate channels, the deployment on the high seas of all the Argos Program floats, which would risk entering its EEZ’. In 2009, the Consultative Body of Experts on the Law of the Sea recommended to the Executive Secretary the establishment of an automatic mechanism to inform operators of the risk that one or more of their floats will drift into an EEZ,155 which produced opposite reactions: on the one hand, the United States, the United Kingdom the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization – UNESCO/IOC, and the World Meteorological Organization – WMO. Wiltshire & Grannis LLP, 2001). 150 Review ITU (News No 7) (n 148) 1. 151 ‘Coastal States are authorized to regulate three types of marine data collection activities on the continental shelf or in their exclusive economic zone: marine scientific research, hydrographic surveys and the exploration and exploitation of biological resources and non-biological’. Ibid 1. 152 The common marine data are collected by small floats that drift into the oceans for research on climate, weather, oceanography and fisheries. 153 The list of Argos float partners is available on its website: http://​www​.jcommops​.org/​board​?t​=​ Argo, accessed 10 January 2021. 154 ‘The Argo float is an autonomous subsurface instrument that measures temperature and salinity in the heart of the oceans. Launched in 2000, there are 3,000 floats spread over all the oceans and seas of the globe providing each year 100,000 ocean temperature and salinity profiles’, see IFREMER, ‘Argo: le Reseau d’Observation Global de l’Ocean a Franchi le Cap des 3000 Flotteurs’ (5 November 2007), http://​ wwz​.ifremer​.fr/​institut​_eng/​Documental​-resources/​Medias/​Press​-release/​Archives/​2007/​Argo​-le​-reseau​ -d​-observation​-global​-de​-l​-ocean​-a​-franchi​-le​-cap​-des​-3000​-flotteurs​.​-De​-nouveaux​-defis​-l​-attendent, accessed 8 January 2022. 155 UNESCO – Intergovernmental Oceanographic Commission, Reports of meetings of experts, Ninth Session of the Consultative Body of Experts on the Law of the Sea (COI/ABE-LOS) (Paris, July 2009) 16.

42  Research handbook on ocean governance law and many European States believe that the directive infringes the freedom of navigation on and overflight of the high seas. On the other hand, Peru, Argentina, Japan and other States insist that the operation of the Argos network is a matter of MSR and, as such, must be carried out with the consent of the coastal States.156 3.1.2

Freedom from fishing and the construction of artificial islands towards the establishment of maritime mega-cities The freedom to fish, placed second in the 1958 Geneva Convention on the High Seas and fifth in UNCLOS, today seems to be the most controversial ‘freedom’. First of all, UNCLOS establishes it as a universal freedom, meaning that all States, whether coastal or landlocked, have the right to fish on the high seas. However, UNCLOS also provides for reservations to this right which is, inter alia, intrinsically linked to the conservation of living marine resources as a concomitant duty. Additionally, the freedom of fishing is further qualified by other treaty obligations to which States are Parties, the rights, duties and interests of coastal States,157 such as for instance in Article 63(2) dealing with straddling stocks between the EEZ and the adjacent high seas. This right of preference (embodied in Article 63) constitutes a legal legacy of the 1958 Geneva Convention. At that time, it was regulated together with the States Parties’ right to adopt measures for the conservation of fisheries, and with the recognition of a special interest for States with an EEZ adjacent to the high seas’ areas ‘to maintain the productivity of biological resources throughout the high seas adjacent to its territorial sea’.158 This was the source of several contentious situations between neighboring coastal and non-coastal States, as illustrated by the conflict between Chile and Bolivia. The latter continues to call for peaceful negotiations with Chile to consider a concrete solution to its demand for a sovereign access to the Pacific Ocean. Thus, as the ICJ159 noted during the judgment of this case, it was ultimately the whole issue around fishing, the negotiations on stocks and the access to fisheries that was raised. Furthermore, with regard to the freedom of construction of artificial islands at sea and of other installations permitted by international law, there is a difference between: 1. construction on the high seas, with regard to UNCLOS, distinguishing artificial islands from other installations (such as offshore wind farms),160 and 2. constructions at sea, of artificial islands, installations and structures in an EEZ161 or on the continental shelf,162 or of installations designed either for reasons of overcrowding or for economical investments in shallow waters. In fact, there are more constructions by the sea causing specific problems.

The International Telecommunication Union, ‘Using Submarine Cables for Climate Monitoring and Disaster Warning; Opportunities and Legal Challenges’, ITU (IOC/2012/REPORT/H/1) (Geneve 2012) 19. 157 UNCLOS, Art 116. 158 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, Art 6. 159 International Court of Justice (ICJ, 24 July 1974, Recueil, 1974). 160 UNCLOS, Art 87. 161 ibid Art 60. 162 ibid Art 80. 156

Maritime zones in international law  43 In this regard, the freedoms of the high seas serve some countries, whether developing or developed, to establish themselves as maritime mega-cities at the detriment of the marine environment. Indeed, the offshore platforms (oil and gas) as well as other constructions (such as wind turbines, lighthouses and artificial islands) promote the economic development of States, but their impact on the marine environment is unpredictable and immeasurable: marine dynamics means that their consequences are different depending on the location and/or the time of analysis. International law provides requirements for prevention, reduction of pollution and nuisance in the marine environment.163 However, there are still legal weaknesses regarding the regulation of the development of artificial islands, installations and works under their jurisdiction under Articles 60 and 80 – weaknesses already noted in the American project High Seas Oil Port164 – and the 1958 Geneva Convention on the Continental Shelf.165 The purpose of the project was ‘to give a status to the artificial oil ports to be established on the high seas’,166 just as the 1958 Convention attributes to the coastal State a form of sovereignty over the artificial islands, provided that they are not used only for the exploration or exploitation of the seabed and subsoil.167 In the same way, the geopolitical analysis of various projects carried out (in a non-exhaustive way) in Belgium,168 the United States169 and in Malta170 illustrates the pre-eminence of the competence of these States concerning artificial islands and the protection of the marine environment. Indeed, the artificial island should always be attached to the legal system of a given State, in the sense that the concept of independent territoriality is not inclined to apply to an artificial island.171 The geopolitical impact is closely linked to the economic development of a country. For example, the city of Shanghai, nicknamed the ‘city of concessions’, which was originally a territorial concession under French law in 1847172 and which became successively British, American and French, today has become a ‘maritime metropolis’, transformed

ibid Art 208. United States of America, Bill of 10 June 1974 (93rd Congress of the United States, 2nd session of the American Senate, doc HR) 10701. 165 Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311. 166 J Levy-Morelle, ‘L’île artificielle de Zeebrugge et le droit international’ (Belgian review of international law, Bruylant Edn, Bruxelles 1974) 162. 167 Art 5.6 of the Geneva Convention (1958) contains, inter alia, a provision aimed at prohibiting installations near regular shipping routes essential for international navigation, but as Professor Levy-Morelle assures that reality shows the weakness of this prohibition. See Levy-Morelle (n 166) 164. 168 UN, The Belgian Project to Create Artificial Islands (11 July 1973) UN Doc A/AC, 138/81. 169 UN, The American Project ‘High Seas Oil Port’ (L 35, 16 July 1973) UN Doc A/AC, 138/SC 77 170 UNGAOR, ‘Project of the Republic of Malta’. See: Resolutions and Decisions adopted by the General Assembly during its 26th session: United Nations General Assembly Official Records (UNGAOR, 26th session, suppl. 21 A / 8421) 119. Revision established by UNGAOR (A/9021, Vol III) 69. Cited by AMJ Heijmans, ‘Artificial Islands and the Law of Nations’ (1974) 21 Netherlands International Law Review 139, DOI: https://​doi​.org/​10​.1017/​S0165070X00019793. 171 Consultative Assembly of the Council of Europe, ‘Report on the Legal Situation of Artificial Islands Created on the High Seas’ by M Margue (9 December 1971, Doc 3054). 172 ‘On May 20, 1847, Charles de Montigny and his family embark on the Duguay-Trouin to establish a Consulate in Shanghai and negotiate with the Chinese to establish a territorial concession under French law’. See: E Descleves, ‘Shanghai, de la Concession à la mégapole maritime’ (Review Marine & Océans, no 242 – January 2014, 68. 163 164

44  Research handbook on ocean governance law into an industrial, commercial and financial megalopolis (notably thanks to seaports), with double-digit growth rates for more than ten years in a row.173 The history of the law of the sea demonstrates that notwithstanding the freedom of the high seas, coastal States will continue to encroach upon these freedoms through projects where they exercise some form of maritime control benefiting from commercial interests.174 3.2

The Area

The seabed beyond a coastal State’s EEZs and continental shelf claims is defined by the UNCLOS as the Area, also popularly known as the deep seabed. UNCLOS states that ‘the Area and its resources’ are ‘the common heritage of mankind’.175 The ‘Area’ is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.176 Furthermore, for the purposes of Part XI, ‘“resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules’.177 Living resources in the Area are therefore excluded from the scope of the common heritage afforded to the mineral resources occurring in the Area, by virtue of what constitutes ‘resources’ under Article 133 of Part XI of UNCLOS. The International Seabed Authority, established under UNCLOS, administers the resources of the Area.178 Rights over these resources are vested in mankind as a whole, on whose behalf the Authority shall act when managing them.179 The legal status of the resources of the Area is common heritage of mankind, and therefore not subject to the sovereignty or the exercise of sovereign rights over them or appropriation by any State.180 Part XI has been by far the most controversial section of UNCLOS, in terms of acquiescence and implementation by States. It is interesting to note that Arvid Pardo, the Ambassador of Malta, submitted a proposal to the United Nations on 17 August 1967181 that would contribute to a major change in global thinking.182 The provisions of Part XI and the establishment of the mineral resources of the deep seabed as a common heritage of human kind are monumental in terms of providing a paradigm shift in international maritime law at the time, because it should be administered by an international agency for the benefit of all peoples in sustainable way.183 To this very day it remains, together with the Agreement Governing the Activities of States on the Moon

Descleves (n 172) 72–3. ibid 72. 175 UNCLOS, Art 136. 176 ibid Art 1(1). 177 ibid Art 133. 178 ibid Art 137(2). See also International Tribunal for the Law of the Sea – ITLOS website, https://​ www​.itlos​.org/​en/​main/​the​-tribunal/​unclos/​, accessed 26 January 2020. 179 UNCLOS, Art 137(2). 180 ibid Art 137(1). 181 UN Note Verbal note from the Permanent Mission of Malta to the United Nations addressed to the Secretary General UN (Doc A/6695), 17 August 1967. 182 M Allen, ‘An Intellectual History of the Common Heritage of Mankind as Applied to the Oceans’ (Master’s thesis, University of Rhode Island 1992) 9. 183 A Pardo, The Common Heritage: Selected Papers on Oceans and World Order 1967–1974 (Malta University Press 1975) 67. 173 174

Maritime zones in international law  45 and Other Celestial Bodies,184 the only example of global management under international law. The Agreement relating to the Implementation of Part XI of UNCLOS185 managed to unlock the stalemate that dominated the implementation of Part XI, but controversy remains regarding the legal status of sedentary living resources in the Area, subject to bioprospecting. Some developing States argue that the principle of common heritage is the most consistent one for regulating bioprospecting in the Area. Consequently, the common heritage regime has the potential to become the applicable principle of the Implementation Agreement to UNCLOS on the Conservation and Sustainable Use of Marine Biodiversity of Areas beyond National Jurisdiction (BBNJ), as the latest legislative process in the field of the law of the sea.186 The supporters of common heritage over living marine resources, occurring in situ in the Area, base their arguments on the premise that no State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources. If they are successful, no such claim or exercise of sovereignty or sovereign rights nor appropriation by any other entity other than the International Seabed Authority shall be recognized,187 as is the case with the mineral resources. Those States supporting the extension of the common heritage regime to the living marine resources consider to be essential the securing of the conservation of marine biodiversity as fundamental to maintaining peace and security and towards promoting international cooperation and mutual understanding.188 Equally real, however, is the rejection of this argument by a group of States that vehemently oppose including living marine resources of the deep seabed as falling within the scope of the common heritage regime. The current negotiations on the BBNJ Implementation Agreement are steering away from controversy and focusing instead upon addressing human impacts putting at risk biodiversity, ecosystem processes and its function in the Area.189

4. CONCLUSION UNCLOS provides an international legal regime that governs the ocean. It is supported by a myriad of other applicable treaties. Some of these instruments were adopted before UNCLOS was negotiated, such as the International Convention for the Regulation of Whaling,190 or before it came into force, such as the International Convention for the Prevention of Pollution from Ships (MARPOL),191 and the Convention on the Prevention of Marine Pollution by Dumping Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (adopted 19 December 1966, entered into force 10 October 1967) 610 UNTS 205, Art 4. 185 Adopted on 28 July 1994 and entered into force on 28 July 1996, UNGA Res 48/263 (17 August 1994). 186 C Wang, ‘On the Legal Status of Marine Genetic Resources in Areas beyond National Jurisdiction’ (2021) 13 Sustainability 2. 187 UNCLOS, Art 137(1). 188 ibid Art 138. 189 S Hart, Elements of a Possible Implementation Agreement to UNCLOS for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (IUCN 2008) 1. 190 International Convention for the Regulation of Whaling (adopted 2 December 1946, entered into force 10 November 1948) 161 UNTS 72. 191 International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973, entered into force 12 October 1983) 1340 UNTS 184. 184

46  Research handbook on ocean governance law of Wastes and Other Matter.192 Others were concluded independently of UNCLOS, such as the International Convention for the Safety of Life at Sea,193 or adopted after it came into force, such as the Convention on the Conservation of Antarctic Marine Living Resources.194 Conventions like the regional fisheries and regional seas treaties, as well as other multilateral treaties like MARPOL or the United Nations Convention on Biological Diversity195 may have also acquired a norm creating character. Furthermore, UNCLOS’ Implementation Agreements, namely the Implementation Agreement on Part XI and the Implementation Agreement on the Conservation of Highly Migratory Fish Stocks,196 further develop and elaborate upon the general legal obligations under UNCLOS, providing more stringent and specific international norms. Currently, another UNCLOS Implementation Agreement on the conservation of biodiversity beyond national jurisdiction is under negotiation. If successful, it will supplement the generally worded obligations in UNCLOS and bring about the much-required synergy between the interpretation of Parts VII, XI and XII of UNCLOS. It is intended to lay down specific mechanisms and processes for conserving marine biodiversity and the health of the ocean beyond national jurisdiction, as further developed under more recent legally binding multilateral instruments and international policy instruments such as Agenda 21 and the sustainable development goals. While sectoral or regional approaches help to support the pressures on ocean governance, the over-arching multilateral approach that the UNCLOS sought to establish remains crucial to secure synergy and a level playing field in regulating anthropogenic activities and their impacts upon the ocean as a single and unique ecosystem upon which life and livelihoods depend.

192 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. 193 International Convention for the Safety of Life at Sea (adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 278. 194 Convention on the Conservation of Antarctic Marine Living Resources (adopted on 1 August 1980, entered into force on 7 April 1982) 1329 UNTS 48. 195 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 69. 196 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 December 1995, entered into force 11 December 2001) 2167 UNTS 3.

3. Airspace, sovereignty and ocean governance Roberto Cassar1

1. INTRODUCTION The ocean and the different seas that compose it constitute nearly three-quarters of the surface of the Earth.2 As humans evolved, the ocean became subject to exploration, and as marine ventures unravelled, so the seas became subject to law. Maritime law thus materialized at a relatively early stage in the history of civilization.3 An example of such early maritime law is that of the Roman empire found under Title I of Book II of the Institutes of Justinian,4 which provided that, by natural law, the sea and the seashore were common to all.5 The seas, however, were not the only domain to be treated by ancient legislators since the skies were too, even though it was only in the last couple of centuries that, with the likes of the Montgolfier and Wright brothers, humans became able to master flight. A reason for such early legislation is the vertical movement of humans; as humans climbed upward, such as through masonry and architecture, legal regulation of their activities inevitably followed. The Roman empire provided for the early legislation of the skies namely under the Institutes of Justinian. This aerial law explicitly distinguished between ‘aer’ (air) and ‘coelum’ (airspace). On the one hand, ‘air’ was the atmosphere that humans inhaled and, like the sea and the seashore, was common to all.6 On the other, ‘airspace’ was the medium through which ‘air’ circulated7 and, unlike ‘air’, was subject to State control or private ownership as the case may have been.8 Roman law contained a further distinction. This was between horizontal and vertical ‘airspace’. Under Roman law, horizontal ‘airspace’ was not an infinite stretch of uniform legal domain, but a mosaic of governance and proprietorship. That is, if one were to move horizontally through Roman ‘airspace’, one would move through different types of ‘airspace’ as the legal nature thereof changed with the topography that lay beneath. The ‘airspace’ overlying a public or non-commercial area fell exclusively under the control of the State,9 whereas the

This chapter contains the views of the author in his personal and independent capacity. The author wishes to thank Professor Pablo Mendes de Leon for his review of this chapter. 2 M Visbeck, ‘Ocean Science Research is Key for a Sustainable Future’ (2018) 9 Nature Communication 690, https://​doi​.org/​10​.1038/​s41467​-018​-03158​-3, accessed 1 April 2021. 3 Note, for instance, that Rhodian maritime law is considered to be the first of its kind, and although the age of this law cannot be precisely ascertained, it is estimated to have been written in circa 900 BCE; see RD Benedict, ‘The Historical Position of the Rhodian Law’ (1909) 18 YLJ 223. 4 JB Moyle, The Institutes of Justinian: Translated into English with an Index (5th edn, The Lawbook Exchange 2002) 35. 5 ibid. 6 ibid. 7 J Cobb Cooper, ‘Roman Law and the Maxim “Cujus est solum” in International Air Law’ (1957) 1 McGill Law Journal 23, 38. 8 ibid 38–9. 9 ibid 39. 1

47

48  Research handbook on ocean governance law ‘airspace’ overlying any other area could have been either public or private property.10 On the vertical axis, Roman law visualized an assortment of columns. If one were to move linearly upward through Roman ‘airspace’, one would move through a singular legal unit. Under Roman law, therefore, the State or the individual could claim control or ownership of the ‘airspace’ overlying an area in question up to an indefinite height.11 The only limitation to such infinite, vertical control or ownership consisted of building or similar restrictions that may have been applicable from time to time.12 From these distinctions in Roman law (that is, between ‘air’ and ‘airspace’, and between horizontal and vertical ‘airspace’), yet another can be elicited. This other distinction in Roman law was between ‘airspace’ overlying land and ‘airspace’ overlying the sea. As indicated above, under Roman law the legal status of a particular area of ‘airspace’ corresponded to the legal status of what lay beneath it. Therefore, while ‘airspace’ overlying land was either subject to State control or private ownership, ‘airspace’ overlying the sea must have implicitly (though not stated in law) been, much like the sea beneath it, common to all. This res communis nature of both the sea and the airspace overlying it in fact exists to this day, and this shared characteristic between these two domains demonstrates that, although maritime and air law are two distinct legal ecosystems, they share a strong affinity, if not ancestry. Upon such foundation, this chapter shall analyse the cornerstone of international air law, that is, the doctrine of aerial sovereignty. The regulation of the airspace overlying the seas both within and beyond national jurisdiction is dependent on the presence or lack of aerial sovereignty. Consequently, the regulation of the airspace over the seas has an inevitable impact on ocean governance, particularly in terms of security, search and rescue, and the control of illegal activities such as dumping at sea by aircraft. The purpose of this chapter is therefore to analyse the implications of aerial sovereignty in terms of its practical effects and geographical reach. This chapter shall also focus on the legal characteristics of the different types of airspace that lie over the seas and the overlaps between them. Where possible, this chapter shall seek to shed light on potential conflicts that may arise in this respect, namely due to the applicability of various sources of international air law and maritime law.

2.

THE RULE OF AERIAL SOVEREIGNTY

The Convention on International Civil Aviation (Chicago Convention)13 can be viewed as the magna carta of international civil aviation14 and the direct descendant15 of the Convention relating to the Regulation of Aerial Navigation (Paris Convention).16 These two treaties were adopted in two significant years: the Paris Convention in 1919, one year after the end of the ibid. ibid. 12 ibid. 13 (adopted 7 December 1944, entered into force 4 April 1947) 15 UNTS 295. 14 S Hobe, ‘Sovereignty as a Basic Concept of International Law and a Core Principle of Air Law’ in P Mendes de Leon and N Buissing (eds), Behind and Beyond the Chicago Convention: The Evolution of Aerial Sovereignty (Wolters Kluwer 2019) 35, 38. 15 L Weber, ‘The Chicago Convention’ in PS Dempsey and RS Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge 2017) 9. 16 (adopted 13 October 1919, entered into force 1 June 1922) 297 LNTS 173. 10 11

Airspace, sovereignty and ocean governance  49 First World War, and the Chicago Convention in 1944, one year before the end of the Second World War. The adoption of these treaties towards the corresponding ends of the two world wars was not – and is not – meaningless; both the Paris and the Chicago Convention embody the cautiously reconciliatory spirits of their respective times. The Paris Convention was adopted to ensure that aviation relations could be developed peacefully, namely through better control over international civil aviation by means of an international framework based on the principle of aerial sovereignty.17 Similarly, the Chicago Convention was adopted with the aim of developing an ordering mechanism for global airspace and the then-nascent international air transport industry.18 To this end, the Chicago Convention is built upon five core principles: aerial sovereignty, nationality of aircraft, facilitation of navigation, regulatory standardization and pacific settlement of disputes.19 From this concise account of the respective rationales behind the Paris and Chicago Conventions, it is possible to see that the principle of aerial sovereignty is common to both. In aviation, sovereignty20 plays a central role,21 and in terms of the Chicago Convention, aerial sovereignty is its cornerstone. 2.1

The Chicago Convention and International Civil Aviation

The Chicago Convention applies exclusively to ‘international civil aviation’, as is evidenced by the official title of that Treaty: the ‘Convention on International Civil Aviation of 1944’. The principle of aerial sovereignty, in being the cornerstone of the Chicago Convention, is effectively the cornerstone of international civil aviation. The said Treaty does not provide an explicit definition of the term ‘international civil aviation’, though it does provide guidance on the respective meanings of each of the three constitutive words of that term. Similar to the term ‘international civil aviation’, the term ‘aviation’ is not defined in the Chicago Convention. In its ordinary sense,22 this term refers to ‘the flying or operating of aircraft’.23 It follows that, in order to better understand the meaning of the term ‘aviation’, it is essential to understand the meaning of the term ‘aircraft’. This latter term is likewise not defined in the Chicago Convention, though it is defined in several of the Annexes to it, such

Weber (n 15) 9. BF Havel and GS Sanchez, The Principles and Practice of International Aviation Law (CUP 2014)

17 18

28.

See, for a succinct overview of these five core principles, C-J Cheng (ed), Studies in International Air Law: Selected Works of Bin Cheng (Brill 2018) 38–9. 20 For the purpose of this work, it is not necessary to provide an in-depth examination of the concept of ‘sovereignty’. Suffice it to say that, within a State, it expresses the supremacy of the governmental institutions, and outside a State, it expresses the supremacy of the State as a legal person; MN Shaw, International Law (8th edn, CUP 2017) 361. 21 P Mendes de Leon, Introduction to Air Law (10th edn, Kluwer 2017) 9. 22 Note that the interpretation of a treaty in good faith and in accordance with the ordinary meaning to be given to its terms is enshrined in Art 31(1) of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT). Note further that the International Court of Justice has held that this Article of the VCLT reflects customary international law; see, inter alia, Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) (Merits) [1999] ICJ Rep 1045, 1059, para 18. 23 ‘Aviation’, Oxford English Dictionary (2021), https://​www​.lexico​.com/​definition/​aviation, accessed 1 April 2021. 19

50  Research handbook on ocean governance law as Annex 2,24 Annex 725 and Annex 8.26 In the said Annexes, the term ‘aircraft’ is defined as ‘any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface’.27 By combining the definition of ‘aircraft’ to that of ‘aviation’, it follows that, in the Chicago Convention, ‘aviation’ means the flying or operating of ‘aircraft’, that is, any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the surface of the Earth. The terms ‘civil’ and ‘international’ are also not defined in the Chicago Convention. With regard to the term ‘civil’, Article 3 of the Chicago Convention may shed light on its meaning. This is because Article 3 defines the notion of ‘State aircraft’ from which it is possible to elicit the meaning of the terms ‘civil aircraft’ and, in turn, ‘civil’. According to Article 3(b), ‘State aircraft’ is aircraft that is used in military, customs and police services. Notwithstanding this classification, there exist many other types of aircraft that may be involved in acta iure imperii,28 such as coast guard services, search and rescue, medical services, mapping or geological survey services.29 Consequently, the term ‘civil’ refers to that which is unrelated to Statal activity, including, though not exclusively, military, customs and police services. With regard to the term ‘international’, Article 96(b) of the Chicago Convention may provide guidance on its meaning as it defines the term ‘international air service’. According to this provision of the Chicago Convention, an ‘international air service’ is ‘an air service that passes through the airspace over the territory of more than one State’. What is relevant in the context of the definition of the term ‘international’ is the criterion of ‘passage of an air service through the airspace of more than one State’. Therefore, from this definition of ‘international air service’ it is possible to understand that ‘international’ means ‘passage through the airspace of more than one State’. By combining these definitions of the terms ‘aviation’, ‘civil’ and ‘international’, it is possible to conclude that the Chicago Convention applies to: (1) the flying or operating of ‘aircraft’, which is (2) unrelated to Statal activity such as (though not only) the military, customs and police, and which (3) passes through the airspace of more than one State. 2.2

The Chicago Convention and Aerial Sovereignty

The regulation of international civil aviation under the Chicago Convention is subject to the indomitable doctrine of sovereignty. Sovereignty, it is reiterated, plays a central role in aviation. So central is its role that Article 1 of the Paris Convention and Article 1 of the Chicago Convention each declare that the contracting States to those respective treaties recognize that every State has complete and exclusive sovereignty over the airspace above its respective territory.30 The International Court of Justice (ICJ) has also held that:

Rules of the Air (10th edn, 2005), Anx 2 to the Chicago Convention. Aircraft Nationality and Registration Marks (6th edn, 2012), Anx 7 to the Chicago Convention. 26 Airworthiness of Aircraft (11th edn, 2010), Anx 8 to the Chicago Convention. 27 See the definition sections of Anx 2, Anx 7 and Anx 8 to the Chicago Convention respectively. 28 M Milde, International Air Law and ICAO (Eleven International Publishing 2008) 70. 29 ibid. 30 Note that Art 1 of the Paris Convention declares that every ‘Power’ – rather than ‘State’ – has complete and exclusive sovereignty over the airspace above its territory. 24 25

Airspace, sovereignty and ocean governance  51 The basic legal concept of State sovereignty in customary international law, expressed in, inter alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and territorial sea of every State and to the air space above its territory. As to superjacent air space, the 1944 Chicago Convention on International Civil Aviation (Art. 1) reproduces the established principle of the complete and exclusive sovereignty of a State over the air space above its territory. […] The Court has no doubt that these prescriptions of treaty-law merely respond to firmly established and longstanding tenets of customary international law.31

This pronouncement of the ICJ means that, even if the Paris Convention and the Chicago Convention did not explicitly declare that States have complete and exclusive sovereignty over the airspace above their respective territories, the principle of aerial sovereignty would nonetheless exist as a basic legal concept in customary international law.32 The consequential result of this customary international law tenet of aerial sovereignty is that, in practice, the airspace of a State is de iure closed for each and every aircraft carrying the flag of another State.33 This tenet of aerial sovereignty and the de iure closure of the airspace of a State is the rule, not the exception. In the context of international civil aviation, the Chicago Convention stipulates that no ‘scheduled international air service’34 may be operated over or into the territory of a contracting State except with its special permission.35 This ‘special permission’ of a State is therefore an exception to the rule of aerial sovereignty and airspace closure, and this exception has effectively led to a proliferation of bilateral air services agreements (ASAs) along the years.36 ASAs are international trade agreements by virtue of which governmental authorities of two States (hence ‘bilateral’ ASAs) negotiate and regulate the performance of air services – such as traffic rights, rates and frequency – between their respective territories.37 ASAs are not merely the result of the ‘special permission’ that a State must give, but they are its embodiment.

31 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, 17, para 212. 32 Customary international law is ‘the generalization of the practice of States’; Fisheries Case (UK v Norway) (Dissenting Opinion of Judge JE Read) [1951] ICJ Rep 116, 191. Note that, customary international law can be defined more accurately as ‘those rules of international law that derive from and reflect a general practice accepted as law’; ILC, ‘Second Report on Identification of Customary International Law’ by Michael Wood, Special Rapporteur (22 May 2014) UN Doc A/CN.4/672, para 20. 33 Mendes de Leon (n 21) 9. 34 Note that, although ‘scheduled air service’ is defined in Art 96(b) of the Chicago Convention, the term ‘scheduled international air service’ is defined by the International Civil Aviation Organization (ICAO) as a series of flights that possess all the following characteristics: (1) it passes through the airspace over the territory of more than one State, (2) it is performed by aircraft for the transport of passengers, mail or cargo for remuneration, in such a manner that each flight is open to use by members of the public, and (3) it is operated, so as to serve traffic between the same two or more points, either (a) according to a published timetable, or (b) with flights so regular or frequent that they constitute a recognizable systematic series; ICAO, ‘Policy and Guidance Material on the Economic Regulation of International Air Transport’ (3rd ed, 2008) Doc 9587, 1–11. Note further that, similar to the International Maritime Organization, ICAO is a specialized UN agency, the aims and objectives of which are set out in Art 44 of the Chicago Convention. 35 Chicago Convention, Art 6. 36 PS Dempsey, ‘Introduction: Multilateral Conventions and Customary International Law’ in PS Dempsey and RS Jakhu (eds), Routledge Handbook of Public Aviation Law (Routledge 2017) 5. 37 PPC Haanappel, ‘Bilateral Air Transport Agreements: 1919–1980’ (1980) 5 MJIL 241, 241; see also Dempsey (n 36) 5.

52  Research handbook on ocean governance law The ‘special permission’ just mentioned is one exception to the principle of aerial sovereignty. Another exception thereto which the Chicago Convention provides is that of ‘non-scheduled international air services’. According to the Chicago Convention, all aircraft that are not engaged in ‘scheduled international air services’ have the right to make flights into, or in transit non-stop, across the territory of all contracting States, and the right to make stops for non-traffic purposes without the necessity of obtaining prior permission.38 These two exceptions are useful in demonstrating that the tenet of aerial sovereignty and the consequential closure of airspace both have limits. In order to understand how the limits of sovereignty and closure of airspace translate in geographical terms, an analysis of aerial sovereignty along the horizontal and vertical axes must be undertaken.

3.

THE REACH OF AERIAL SOVEREIGNTY

The Chicago Convention and customary international law equally provide that States have complete and exclusive sovereignty over the airspace above their respective territories, including the airspace overlying the marine area wherein they exercise sovereignty. This means that sovereignty has a physical boundary, namely the territorial confines of a State. Although the Chicago Convention provides that sovereignty has a physical boundary, it does not provide where that physical boundary lies, either horizontally, or vertically. In order to determine where the physical boundary of aerial sovereignty lies, reference must be made to air law as well as to maritime law and space law. 3.1

Horizontal Aerial Sovereignty

Article 2 of the Chicago Convention provides that, for the purposes of the said treaty, the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, inter alia,39 of such State. Although the Chicago Convention does not define the term ‘territorial waters’, reference may be made to the United Nations Convention on the Law of the Sea (UNCLOS)40 in order to seek the meaning thereof. UNCLOS provides that the sovereignty of a coastal State extends beyond its land territory and internal waters, and in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea described as the territorial sea.41 UNCLOS further stipulates that the sovereignty of a coastal State also extends to the airspace above its territorial sea.42 Still further, every State has the right to establish the breadth of its territorial sea up to

Chicago Convention, Art 5. Note that Art 5 of the Chicago Convention nonetheless provides, inter alia, that the State flown over has the right to require that aircraft to land and that each contracting State reserves the right, for reasons of safety of flight, to require aircraft desiring to proceed over regions which are inaccessible or without adequate air navigation facilities to follow prescribed routes, or to obtain special permission for such flights. 39 Note that Art 2 of the Chicago Convention provides that, for the purposes of the said Treaty, the territory of a State shall also be deemed to be the land areas and territorial waters adjacent thereto under the suzerainty, protection or mandate of such State. 40 (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 41 ibid Art 2(1). 42 ibid Art 2(2). 38

Airspace, sovereignty and ocean governance  53 a limit not exceeding 12 nautical miles measured from baselines determined in accordance with UNCLOS.43 Juxtaposing the respective provisions of the Chicago Convention and UNCLOS, it appears that the two treaties employ different terms to express the same notion, namely that the sovereignty of a State extends to its marine territory, if any. Whereas the Chicago Convention employs only the term ‘territorial waters’, UNCLOS employs the terms ‘internal waters’, ‘archipelagic waters’ and ‘territorial sea’.44 Seeing that the term ‘territorial waters’ does not feature in UNCLOS, it appears that UNCLOS cannot be used to elucidate its meaning. Although the term ‘territorial waters’, as employed in the Chicago Convention, does not feature in UNCLOS, this does not mean that the said term is devoid of legal meaning. An attempt at arguing this would certainly fall short of an interpretation of the Chicago Convention in good faith,45 not least when considering that it was conceived nearly 40 years before UNCLOS. Further, the ordinary meaning46 of the word ‘waters’ is ‘an area of sea regarded as under the jurisdiction of a particular country’.47 Therefore, the word ‘waters’ ordinarily has a broad and all-encompassing meaning such that the term ‘territorial waters’, employed in the Chicago Convention, can be said to be inclusive of each of the terms employed in UNCLOS. It can be concluded that the term ‘territorial waters’ is an overarching term which includes within its meaning the terms ‘internal waters’, ‘archipelagic waters’ and ‘territorial sea’. As a result, the relevant provisions of the Chicago Convention and UNCLOS together mean that the horizontal reach of the aerial sovereignty of a State extends over its land areas and ‘territorial waters’, which include the ‘internal waters’, ‘archipelagic waters’ and the ‘territorial sea’, which ends at 12 nautical miles from the shore. 3.2

Vertical Aerial Sovereignty

While the Chicago Convention provides – along with UNCLOS – for the horizontal reach of the aerial sovereignty of States, it does not provide for the vertical reach thereof. The Chicago Convention does not indicate where airspace ends vertically, and since it does not do so, reference must be made to the law of outer space. Consequently, reference must be made to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty),48 which can be viewed as the magna carta49 of space law. The Outer Space Treaty stipulates that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by, inter

ibid Art 3. Although the term ‘territorial sea’ is explained in Art 3 of UNCLOS, the terms ‘internal waters’ and ‘archipelagic waters’ are not explained in the said Treaty. 45 As stated above, that the interpretation of a treaty in good faith and in accordance with the ordinary meaning to be given to its terms is enshrined in Art 31(1) of the VCLT (n 22). 46 ibid. 47 ‘Water’, Oxford English Dictionary (2021) s 2.4, https://​www​.lexico​.com/​definition/​water, accessed 1 April 2021. 48 (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205. 49 S Hobe, ‘Outer Space as the Province of Mankind: An Assessment of 40 Years of Development’ (2007) 50 PIISL 442. 43 44

54  Research handbook on ocean governance law alia,50 a claim of sovereignty.51 This provision of the Outer Space Treaty means that airspace and aerial sovereignty end where outer space begins. This provision of the Outer Space Treaty, however, is not legally complete as it does not provide where outer space begins. The result is that neither the Chicago Convention nor the Outer Space Treaty provide where airspace ends and outer space begins. No matter the direction from which one looks, there is no legal boundary that demarcates airspace from outer space or vice versa. Although there is not a boundary between airspace and outer space defined in an international legal instrument, two schools of thought advocate two different stances on this distinction, these being the functionalist school and the spatialist school.52 According to the functionalist school of thought, a defined point of demarcation between airspace and outer space is not necessary since it is the nature of the aerospace activity which determines the relevant and applicable law. In other words, an aerial activity is subject to air law, while a spatial activity is subject to space law.53 According to the functionalist school of thought, it is the nature of the aerospace activity which matters, not its location; this school of thought focuses on the ‘what’, rather than the ‘where’. According to the spatialist school of thought, a defined boundary is necessary in order to separate airspace from outer space. The most prominent boundary proposed is 100 km above the surface of the Earth, known as the Von Karman line, which is the general area where aircraft cannot generate sufficient lift for flight because the atmosphere is too thin, while space objects cannot orbit because the atmospheric drag is excessive.54 According to the spatialist school of thought, anything below the defined boundary would be within airspace and thus subject to air law, while anything above it would be within outer space and thus subject to space law. According to this school of thought, it is the location of the aerospace activity that matters, not its nature; this school of thought focuses on the ‘where’, rather than the ‘what’. Throughout the years, both schools of thought have accumulated a rather proportionate amount of support,55 even though it does not appear that a consensus on an international level, such as within the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), is imminent.56 As a result, while neither air law nor space law charts the vertical limits of aerial sovereignty, it is clear that sovereignty does not extend into outer space.

Art II of the Outer Space Treaty provides that outer space, including the Moon and other celestial bodies, is not subject to national appropriation also by means of use or occupation, or by any other means. 51 Outer Space Treaty, Art II. 52 COPUOS Legal Subcommittee, ‘Suborbital Flights and the Delimitation of Air Space vis-à-vis Outer Space: Functionalism, Spatialism and State Sovereignty (A Submission by the Space Safety Law & Regulation Committee of the International Association for the Advancement of Space Safety prepared by Paul S. Dempsey and Maria Manoli)’ (29 March 2018) Doc A/AC.105/C.2/2018/CRP.9 3. 53 ibid 11–12. 54 ibid 21. 55 O Bittencourt Neto, Defining the Limits of Outer Space for Regulatory Purposes (Springer 2015) 71. 56 S Hobe and K-W Chen, ‘Legal Status of Outer Space and Celestial Bodies’ in RS Jakhu and PS Dempsey, Routledge Handbook of Space Law (Routledge 2017) 25, 28. 50

Airspace, sovereignty and ocean governance  55

4.

THE RELATIONSHIP BETWEEN AERIAL SOVEREIGNTY AND MARITIME SOVEREIGNTY

The reach of aerial sovereignty may be summed up in two respects. Vertically, the reach of aerial sovereignty extends to the edge of the airspace of a State, but not into outer space. As indicated above,57 where that airspace ends and outer space begins is, to this day, subject to debate. Horizontally, the reach of aerial sovereignty extends to the edge of the territorial sea of a State but not onto the high seas.58 Also as indicated above,59 where the territorial sea ends and where the high seas begin can vary on a case-by-case basis, though each State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles from its shores.60 The principle that the high seas and the overlying airspace are open to all and subject to the sovereignty of none is fundamental. In fact, it was discussed during the drafting of the predecessor of the Chicago Convention, namely the Paris Convention.61 The report of the drafting committee of the Paris Convention held that, when a column of air rests on the high seas, freedom becomes the rule of the air.62 The legal effect of the freedom of the high seas and of the superjacent airspace is that States have no sovereignty over the high seas and in the airspace above.63 This principle that the seas and the overlying airspace are not subject to sovereignty is enshrined in Article 12 of the Chicago Convention, which provides that the rules in force over the high seas are those established under the Chicago Convention. Article 12 of the Chicago Convention also provides that each State undertakes to adopt measures to ensure that every aircraft carrying its flag shall comply with the rules and regulations relating to flight and manoeuvre in force, wherever such aircraft may be. Article 12 further provides that each State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under the said Convention. States have thus delegated to ICAO the right to adopt rules of the air that shall be applicable to their respective aircraft in the non-sovereign area, that is, the airspace over the high seas.64 Annex 2 to the Chicago Convention was consequently conceived, which contains rules relating to the flight and manoeuvre of aircraft over the high seas.65 According to Annex 2, the rules in it apply over the high seas without exception.66 Therefore, according to Article 12 of the Chicago Convention and Annex 2 thereto, over the high seas the applicable rules are those established under the Chicago Convention and under Annex 2. Along with the said article of, and Annex to the Chicago Convention, UNCLOS provides that the airspace over the high seas is open to all States. Article 87(1) of UNCLOS in fact provides that the high seas are open to

See Section 3.2 above. P Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ in P Mendes de Leon and N Buissing (eds), Behind and beyond the Chicago Convention: The Evolution of Aerial Sovereignty (Wolters Kluwer 2019) 25, 27. 59 See Section 3.1 above. 60 UNCLOS, Art 3. 61 J Cobb Cooper, ‘The Chicago Convention: After Twenty Years’ (1965) 19 UMLR 333, 335. 62 ibid. 63 ibid. 64 Cobb Cooper (n 61) 335. 65 Rules of the Air (10th edn, 2005), Anx 2 to the Chicago Convention, v. 66 ibid 2-1; see the ‘note’ to provision 2.1.1. 57 58

56  Research handbook on ocean governance law all States, whether coastal or land-locked, where they enjoy the exercise of certain freedoms such as, inter alia, that of overflight.67 UNCLOS further provides for the freedom of flight over international straits, which freedom is specifically not recognized in the Chicago Convention.68 According to Article 39(3) of UNCLOS, aircraft in flight over international straits must follow the rules of the air established by ICAO as applicable to civil aircraft,69 namely Article 12 of the Chicago Convention and Annex 2 thereto.70 Setting aside the clarity with which aerial sovereignty does not extend onto the high seas, in practice, however, there exist ways and means by which States may nonetheless extend their reach into the airspace above the high seas. Two ways in which States may do so are via flight information regions (FIRs) and air defence identification zones (ADIZs). 4.1

Aerial Security and the High Seas

FIRs and ADIZs allow States to observe, assist and at times even command aircraft flying over the high seas. FIRs are established under Annex 1171 to the Chicago Convention. According to the said Annex, a FIR is ‘an airspace of defined dimensions within which flight information service and alerting service are provided’.72 In light of this nature of FIRs, Annex 11 further provides that FIRs are to cover the whole air route structure to be served by them.73 The purpose of FIRs is to ensure that flying on international air routes is carried out under uniform and safe conditions, much in line with the scope of Annex 11 itself.74 This scope of FIRs can be further confirmed by making reference to Annex 1275 to the Chicago Convention, which deals with search and rescue. Annex 12 further confirms this scope of FIRs, since it recommends that aerial search and rescue regions should, in so far as practicable, coincide with corresponding FIRs and (in terms of the relevant areas over the high seas) with maritime search and rescue regions.76 FIRs, therefore, are not an extension of aerial sovereignty,77 but part of an internationally agreed arrangement, the aim of which is to ensure that aviation is regulated homogenously.

Art 87(1) of UNCLOS provides that the freedom of the high seas also comprises freedom of navigation, freedom to lay submarine cables and pipelines, subject to Part VI of UNCLOS, freedom to construct artificial islands and other installations permitted under international law, subject to Part VI of UNCLOS, freedom of fishing, subject to the conditions laid down in section 2 of part VII of UNCLOS, and freedom of scientific research, subject to Parts VI and XIII of UNCLOS. 68 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 29. 69 UNCLOS, Art 39(3)(a). 70 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 29. 71 Air Traffic Services (13th edn, 2001), Anx 11 to the Chicago Convention. 72 ibid 1-7, 2-3, 2.5.2.1, 2-6, 2.9.1. 73 ibid 2-6, 2.10.2.1. 74 ibid vii. 75 Search and Rescue (8th edn, 2004), Anx 12 to the Chicago Convention. 76 ibid 2-1, 2.2.1.1. For more on maritime search and rescue regions, the International Convention on Maritime Search and Rescue (SAR) (adopted 27 April 1979; entered into force 22 June 1985) 1405 UNTS 97. See para 1.3.4 of the SAR and Chapter 1 of Anx 12 to the Chicago Convention both hold that a ‘search and rescue region’ is ‘[a]n area of defined dimensions associated with a rescue co-ordination centre within which search and rescue services are provided’. 77 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 25, 33. 67

Airspace, sovereignty and ocean governance  57 Notwithstanding FIRs, from as far back as the 1950s certain States have consistently found that the extension of sovereignty up to 12 nautical miles out into the seas does not give coastal States enough protection from approaching aircraft.78 Such States have thus gone a step further by enacting ADIZs, which are meant to address the said security concern by being areas of non-territorial airspace wherein States impose reporting obligations on civil and military aircraft,79 irrespective of existing FIRs.80 According to Annex 481 and Annex 1582 to the Chicago Convention, an ADIZ is a ‘special designated airspace of defined dimensions within which aircraft are required to comply with special identification and/or reporting procedures additional to those related to the provision of air traffic services’.83 Although these two Annexes to the Chicago Convention define ADIZs, such aerial zones are not recognized by either maritime or air law.84 In the absence of an international framework to regulate them, ADIZs, which often extend miles into the high seas and sometimes over land areas too,85 take the form of unilateral declarations by States.86 Accordingly, whereas FIRs are by no way an extension of aerial sovereignty,87 ADIZs appear to be more akin to such sovereign extensions. Consequently, ADIZs rest very much on the margin of unilateral illegality.88

5. CONCLUSION Air and sea meet not only in life, but also in law. Air law and maritime law intersect with and complement one another in various respects. This is most evident in their equal treatment of the doctrine of sovereignty. Such equal treatment is not surprising, considering that both areas of law are branches of international law. A further manner in which air law and maritime law complement one another is in their treatment of the high seas and the airspace overlying them. These domains, both marine and aerial, are free from all and free to all; simply put, sovereignty does not extend to the high seas and airspace above. One difference between air law and maritime law relates to the physical limits of the exercise of sovereignty in practice. Maritime law has one dimension, namely horizontal, within which sovereignty has clear limits as it cannot extend onto the high seas. Air law has two dimensions, namely horizontal and vertical. While it is clear where the exercise of sovereignty ends horizontally, that is, where the high seas begin, it is not clear where sovereignty ends vertically as there is no internationally agreed delimitation of airspace from outer space. Apart from this difference, the rule is that the high seas and overlying airspace are not subject to the sovereignty of any State. Notwithstanding their freedom, these two domains are

ibid 27–8. CK Lamont, ‘Conflict in the Skies: The Law of Air Defence Identification Zones’ (2014) 39 ASL 187, 192. 80 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 27–8. 81 Aeronautical Charts (11th edn, 2009), Anx 4 to the Chicago Convention. 82 Aeronautical Information Services (15th edn, 2016), Anx 15 to the Chicago Convention. 83 Anx 4 to the Chicago Convention, 1-1; ibid, 1-2. 84 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 28. 85 ibid 27. 86 Lamont (n 79) 192. 87 Haanappel, ‘Aerial Sovereignty: From Paris 1919, through Chicago 1944, to Today’ (n 58) 33. 88 ibid 28. For more on the effects of ADIZs, see Lamont (n 79). 78 79

58  Research handbook on ocean governance law not anarchistic. Quite to the contrary, the Chicago Convention provides that the airspace over the high seas is subject to the rules of the air established in it and in Annex 2 to it. Furthermore, there exist FIRs, which aim at ensuring the homogenous regulation of aviation, and ADIZs, which, although legally questionable, aim at providing deeper security to coastal States. The governance of the oceans thus coexists with that of the skies. While it does not seem that the regulation of the former depends on the regulation of the latter or vice versa, it is nonetheless evident that one may bear implications on the other. It is necessary, therefore, that, from time to time, these two domains recall and revisit their parallelisms so as to ensure, if possible, a corresponding evolution.

4. Marine scientific research as a tool for ocean governance Norman A. Martínez Gutiérrez

1.

INTRODUCTION Effective ocean governance requires a coherent cross-sectoral, interdisciplinary, and integrated approach to ocean management based on agreed international rules and procedures and principles, such as the precautionary approach and an ecosystem approach, best available science, participatory and inclusive decision-making, regional action based on common principles, and national legal frameworks and integrated policies.1

An attempt to accurately define ocean governance would be beyond the scope of this brief contribution. However, for the purposes of this chapter, ocean governance will be considered within the context of a combination of structures, policies, processes, and legal norms that provide the necessary framework for stakeholders to be able to take decisions and implement actions for the sustainable use of ocean resources, the conservation of biodiversity, the protection of life and property at sea, and the protection and preservation of the marine environment.2 It is against this background that the introductory quotation was chosen, as it highlights the importance of marine scientific research in providing the necessary tools to achieve a ‘cross-sectoral, interdisciplinary, and integrated approach’ to ocean management, which makes use of the ‘best available science’, allowing the international community to achieve ‘participatory and inclusive decision-making’, which, although it will start from international common principles, will translate eventually to ‘national legal frameworks and integrated policies’. In this respect, it may be asserted that marine scientific research plays a fundamental role as a tool for a successful ocean governance as it contributes, inter alia, to the sustainable use of ocean resources, the preservation of the marine environment, as well as the better general understanding of the earth.3 Whilst the instances of marine scientific research as a tool for ocean governance are too numerous to list here,4 mention may be made of its role in the location of oilfields for the exploitation of oil resources in the continental shelf, the sustainable exploitation of specific fish stocks (which can only be achieved after sufficient marine scien1 Emphasis added. G Goettsche-Wanli, ‘The Role of the United Nations, Including Its Secretariat in Global Ocean Governance’ in DJ Attard (ed), The IMLI Treatise on Global Ocean Governance: Volume I – UN and Global Ocean Governance (OUP 2018) 3. 2 JL Blythe and others, ‘The Politics of Ocean Governance Transformations’ (2021) Frontiers in Marine Science 8:634718, 1. 3 Tanaka, in fact, asserts that ‘[m]arine scientific research is a foundation of ocean governance in the sense that rules governing the use of the ocean must be based on sound scientific understanding of the marine environment’. Y Tanaka, The International Law of the Sea (3rd edn, CUP 2019) 432. 4 In this respect, see M Pavliha and NA Martínez Gutiérrez, ‘Marine Scientific Research and the 1982 United Nations Convention on the Law of the Sea’ (2010) 16 Ocean and Coastal Law Journal 115.

59

60  Research handbook on ocean governance law tific research has provided the necessary data to prevent overfishing), as well as the protection of local marine ecosystems (by assisting in a better understanding of the substances and factors which may affect or endanger them).5 From a regulatory standpoint, although the roots of the age of ocean discovery can be traced to the voyages of scientists aboard the HMS Challenger (1872–76),6 marine scientific research remained unregulated at an international level until 1958,7 when the international community adopted the Geneva Convention on the Continental Shelf (CSC).8 It was in this Convention that marine scientific research was first introduced as a legal regime, which called for coastal State consent for the conduct of research on the continental shelf. In fact, it is interesting to note that the CSC was the only one out of the four Conventions adopted by the First United Nations Conference on the Law of the Sea (UNCLOS I) which expressly regulated marine scientific research. It was therefore found necessary a few years later to extend the regulation of marine scientific research to other maritime zones. This was, in fact, one of the main topics for which the Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened.9 The end result was an innovative regime that was incorporated in the United Nations Convention on the Law of the Sea (UNCLOS), which was adopted on 10 December 1982 and entered into force on 16 November 1994.10 From an institutional standpoint it is worth mentioning that the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) established the Intergovernmental Oceanographic Commission (IOC) in 1960.11 The IOC’s purpose is: to promote international cooperation and to coordinate programmes in research, services and capacity building, in order to learn more about the nature and resources of the ocean and coastal areas and to apply that knowledge for the improvement of management, sustainable development, the protection of the marine environment, and the decision-making processes of its member State[s].12

Marine scientific research is also undertaken under the auspices of various other international organizations and bodies, such as the Food and Agriculture Organization of the United Nations (FAO), the World Meteorological Organization (WMO), the International Hydrographic Organization (IHO), and the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP).

Pavliha and Martínez Gutiérrez (n 4) 115–16. See also R Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 400. 6 SN Nandan, ‘Introduction’ in Office for Ocean Affairs and the Law of the Sea, Marine Scientific Research: A Revised Guide to the Implementation of the Relevant Provisions of the United Nations Convention on the Law of the Sea (United Nations 2010) (the Guide to Implementation) vii. 7 The Guide to Implementation 1. 8 Convention on the Continental Shelf (adopted 29 April 1958, entered into force 10 June 1964) 499 UNTS 311. 9 NA Martínez Gutiérrez, ‘Introduction’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – The Law of the Sea (OUP 2014) lxiii, lxviii. 10 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 11 IOC, ‘About the Intergovernmental Oceanographic Commission (IOC)’, http://​legacy​.ioc​-unesco​ .org/​, accessed 20 December 2021. 12 ibid. Emphasis added. 5

Marine scientific research as a tool for ocean governance   61 This last point is crucial because, as will be mentioned later on in this chapter, it is not only important to acquire the knowledge, but also to be able to apply that knowledge for proper ocean governance. However, before briefly discussing how to apply that knowledge through an improved knowledge exchange between scientists and decision-makers at State level, it is imperative to understand the legal framework that governs the conduct of marine scientific research.

2.

MARINE SCIENTIFIC RESEARCH UNDER UNCLOS

To date, the basic international legal framework governing marine scientific research is Part XIII of UNCLOS, which must be read together with Parts II–V, which relate to research undertaken in the different maritime zones.13 At the outset, it must be mentioned that the question of what constitutes marine scientific research is not merely in the mind of the layman. This question was subject to ample discussion throughout UNCLOS III without a successful outcome. In fact, UNCLOS does not include a definition of marine scientific research.14 On this point, Wegelein explains that the Convention does not include a definition because ‘participants apparently agreed that a definition was not necessary because the intended meaning would become clear from the content of the provisions’.15 So what is marine scientific research? Whilst not aiming to provide an authoritative definition of the concept, in this chapter, a reference to marine scientific research is a reference to ‘a variety of scientific disciplines, such as biology, biotechnology, geology, chemistry, physics, geophysics, hydrography, physical oceanography, and ocean drilling and coring’,16 which are dedicated to the study of oceans, marine flora, fauna, and physical boundaries with the solid earth and the atmosphere. The purpose of such research is ‘to observe, to explain, and eventually to understand sufficiently well how to predict and explain changes in the natural (marine) world’.17 This brief ‘definition’18 is merely offered to provide context to this chapter and is without prejudice to other definitions that may be offered by authorities on the subject.19 Although there is no definition of activities which qualify as marine scientific research, it is clear that

The provisions of Part XIII are also closely related to Part XIV, which regulates the development and transfer of marine technology. 14 See the Guide to Implementation 4–6; Tanaka (n 3) 433–5; P Gragl, ‘Marine Scientific Research’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – The Law of the Sea (OUP 2014) 396, 399–401; T Treves, ‘Marine Scientific Research’, The Max Planck Encyclopedia of International Law (OUP 2012) vol 6, 1063; and T Stephens and DR Rothwell, ‘Marine Scientific Research’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (2nd edn, OUP 2015) 559, 561–2. 15 See FHT Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (Martinus Nijhoff Publishers 2005) 11. See also AHA Soons, Marine Scientific Research and the Law of the Sea (Kluwer Law and Taxation Publishers 1982) 124. 16 See Wegelein (n 15) 12–17. 17 In this respect, see Pavliha and Martínez Gutiérrez (n 4) 115 and Wegelein (n 15) 9. 18 This seems to be more of an ‘explanation’ than a ‘definition’. 19 See, for example, Walker’s explanation of marine scientific research in GK Walker, Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention (Martinus Nijhoff Publishers 2012) 241–5. 13

62  Research handbook on ocean governance law this term must be distinguished from other activities, such as ‘survey activities’, ‘prospecting’, and ‘exploration’, which are regulated by other parts of UNCLOS.20 2.1

General Principles Relating to Marine Scientific Research

The first provision found in Part XIII of UNCLOS is Article 238, which establishes that ‘all States, irrespective of their geographical location,21 and competent international organizations have the right to conduct marine scientific research subject to the rights and duties of other States as provided for in this Convention’. This general right must be exercised in accordance with a number of general principles set out in the Convention. In this respect, Article 240 provides that marine scientific research shall be conducted exclusively for peaceful purposes, that it shall be conducted with scientific methods and means that are compatible with the Convention, that the research shall not unjustifiably interfere with other legitimate uses of the sea, and that the research must comply with all relevant regulations adopted in conformity with the Convention including those for the protection and preservation of the marine environment. Article 241 then provides that ‘[m]arine scientific research activities shall not constitute the legal basis for a claim to any part of the marine environment or its resources’.22 2.2

Marine Scientific Research in the Different Maritime Zones

2.2.1 Internal waters and territorial sea The baselines determine the boundary between the internal waters (which form part of the territory of the State) and the territorial sea (which is the first maritime zone that a State may enjoy).23 However, both zones are subject to the sovereignty of the coastal State and, in the exercise of such sovereignty, States have the exclusive right to regulate, control, and authorize marine scientific research activities therein.24 Such research must be conducted only if the coastal State has expressly given its consent and must abide by any conditions set forth by the coastal State.25 This means, inter alia, that ships cannot conduct marine scientific research whilst exercising the right of innocent passage, because such research activities would render the ship’s passage ‘non-innocent’.26

The Guide to Implementation 6. For examples, see Pavliha and Martínez Gutiérrez (n 4) 117–18; Gragl (n 14) 403–7. 21 The phrase ‘irrespective of their geographical location’ makes it clear that the rights of land-locked and geographically disadvantaged States have not been forgotten. Indeed, Art 254 specifically protects the rights of such States in relation to marine scientific research activities. For a further discussion on this topic, see Gragl (n 14) 412–13. 22 See Pavliha and Martínez Gutiérrez (n 4) 118–19; Churchill and Lowe (n 5) 411; Gragl (n 14) 414–15; Stephens and Rothwell (n 14) 564–6; and the Guide to Implementation 6–7. 23 The same principle would apply to the archipelagic waters of an archipelagic State. See the Guide to Implementation 9. 24 UNCLOS, Art 245. 25 ibid. 26 ibid Art 19(2)(j). An even more restrictive approach is adopted when the relevant territorial sea forms part of a strait used for international navigation or an archipelagic sea lane. In such cases, ships may not carry out any research or survey activities without the prior authorization of the States bordering straits or the relevant archipelagic State. In this respect, see UNCLOS, Arts 40 and 54. See also Treves (n 14) 1064–5. 20

Marine scientific research as a tool for ocean governance   63 2.2.2 Exclusive economic zone and continental shelf UNCLOS grants coastal States jurisdiction over marine scientific research undertaken in their exclusive economic zone (EEZ) and on their continental shelf.27 Therefore, marine scientific research in the EEZ and on the continental shelf can only be conducted with the consent of the coastal State.28 In normal circumstances,29 coastal States must grant their consent in respect of research projects to be undertaken by other States or competent international organizations ‘exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind’.30 On the other hand, Article 246(5) provides that coastal States may exercise their discretion to withhold their consent in respect of what many authors refer to as ‘applied research’,31 that is, if the proposed marine scientific research project: 1. is of direct significance for the exploration and exploitation of natural resources, whether living or non-living;32 2. involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; 3. involves the construction, operation or use of artificial islands, installations and structures referred to in Articles 60 and 80;33 4. contains information communicated pursuant to Article 248 regarding the nature and objectives of the project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project.34 The Convention deals with consent for marine scientific research activities on the outer continental shelf, in a different manner from consent in the inner continental shelf. In respect of marine scientific research on the outer continental shelf, the State’s discretion to withhold consent is limited to certain areas that the State ‘may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time’.35

UNCLOS, Art 246(1). ibid Art 246(2). 29 UNCLOS does not define ‘normal circumstances’, but Art 246(4) clarifies that ‘normal circumstances may exist in spite of the absence of diplomatic relations between the coastal State and the researching State’. Accordingly, it would seem that circumstances would be ‘normal’ unless there is an imminent danger of armed conflict. In this respect, see Pavliha and Martínez Gutiérrez (n 4) 121–2; Churchill and Lowe (n 5) 407; Gragl (n 14) 417; Treves (n 14) 1065; and the Guide to Implementation 10. 30 UNCLOS, Art 246(3). 31 See Pavliha and Martínez Gutiérrez (n 4) 122 and Churchill and Lowe (n 5) 405. 32 Since UNCLOS does not clarify what constitutes ‘direct significance for resource exploration and exploitation’, the Guide to Implementation explains that ‘such research projects may generally be considered those which can reasonably be expected to produce results enabling resources to be located, assessed and monitored with respect to their status and availability for commercial exploitation’; see the Guide to Implementation 10. 33 Treves (n 14) 1065. 34 The Guide to Implementation 10–12; Stephens and Rothwell (n 14) 568. 35 UNCLOS, Art 246(6). See the Guide to Implementation 10–11. 27 28

64  Research handbook on ocean governance law 2.2.3 High seas and the Area It may be recalled that the high seas are open to all States and one of the freedoms States enjoy therein is the freedom of marine scientific research.36 This freedom is confirmed by Article 257 which provides that ‘[a]ll States, irrespective of their geographical location, and competent international organizations have the right […] to conduct marine scientific research in the water column beyond the limits of the exclusive economic zone’.37 Insofar as the seabed and ocean floor and subsoil thereof beyond the limits of national jurisdiction is concerned, that is, ‘the Area’,38 Article 256 provides that all States, regardless of their location, and competent international organizations have the right to conduct marine scientific research in the Area, so long as this is done in accordance with the provisions of Part XI.39 In this respect, Article 143 expressly requires that such research must be conducted ‘exclusively for peaceful purposes and for the benefit of mankind as a whole’.40 Furthermore, State Parties41 have the obligation to ‘promote international cooperation in marine scientific research in the Area’.42 Additionally, to ensure that such research benefits mankind as a whole, the International Seabed Authority (the Authority) may enter into contracts to conduct marine scientific research in the Area.43 2.3

Procedural Issues

The preceding discussion highlighted the fact that the coastal State’s consent must be obtained to carry out marine scientific research. It is therefore pertinent to outline now some of the procedural aspects laid down in UNCLOS to obtain such consent and for the conduct of the research activities. The first point to consider in relation to procedural issues is that, unless otherwise agreed, communications relating to marine scientific research must be submitted through the appropriate official channels (e.g. diplomatic channels).44 Another factor that States (both researching and coastal States) must bear in mind is that the Convention clearly prescribes time limits for the different stages of the process. In this respect, any State or competent international organization that intends to carry out research activities in the EEZ or the continental shelf of a coastal State must submit a request for consent not less than six months before the expected

ibid Art 87(1)(f). See Treves (n 14) 1066. Gragl (n 14) 419–20; Stephens and Rothwell (n 14) 572; and the Guide to Implementation 16–17. 38 UNCLOS, Art 1(1)(1). 39 In this respect, ‘research’ must be distinguished from ‘prospecting’ and ‘exploration’. Though a distinction between these activities may not be easy in practice, prospecting and exploration are subject to Anx III of UNCLOS; see Churchill and Lowe (n 5) 404. 40 UNCLOS, Art 143(1). See also Stephens and Rothwell (n 14) 573. 41 It is interesting that, in allowing marine scientific research in the Area, Art 256 gives this right to ‘[a]ll States, irrespective of their geographical location’, whilst Art 143(3) seems to limit this right to ‘States Parties’. 42 UNCLOS, Art 143(3). This Article sets out several means by which State Parties may promote research in the Area. See Tanaka (n 3) 439. 43 UNCLOS, Art 143(2). This Article lists a number of obligations that will enable the Authority to achieve this purpose. See Pavliha and Martínez Gutiérrez (n 4) 120 and the Guide to Implementation 17–18. 44 UNCLOS, Art 250. 36 37

Marine scientific research as a tool for ocean governance   65 starting date of the project.45 In this application, the researching State or competent international organization must provide the coastal State with the full description of: 1. the nature and objectives of the project; 2. the method and means to be used, including name, tonnage, type and class of vessels, and a description of scientific equipment; 3. the precise geographical areas in which the project is to be conducted; 4. the expected date of first appearance and final departure of the research vessels, or deployment of the equipment and its removal, as appropriate; 5. the name of the sponsoring institution, its director, and the person in charge of the project; and 6. the extent to which it is considered that the coastal State should be able to participate or to be represented in the project.46 After it has received the application, the coastal State must assess the completeness of the information provided. If the information submitted is not exactly in accordance with Article 248, the coastal State has four months within which it can request supplementary information,47 thus giving the researching State the opportunity to review its proposal. This four-month time limit is in practice short and coastal States should ensure that they act in an expeditious manner. For this reason, Article 246(3) requires coastal States to ‘establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably’.48 This is of utmost importance because, if a coastal State does not reply to a request within the four-month time limit, it will be deemed to have granted its consent (i.e. consent will be implied). It is, however, noteworthy that in respect of marine scientific research projects undertaken by or under the auspices of international organizations, the rules are somewhat different to imply the coastal State’s consent. In this respect, Article 247 provides that: A coastal State which is a member of or has a bilateral agreement with an international organization, and in whose exclusive economic zone or on whose continental shelf that organization wants to carry out a marine scientific research project, directly or under its auspices, shall be deemed to have authorized the project to be carried out in conformity with the agreed specifications if that State approved the detailed project when the decision was made by the organization for the undertaking of the project, or is willing to participate in it, and has not expressed any objection within four months of notification of the project by the organization to the coastal State.49

Once consent has been obtained, the research project may begin. In this respect, UNCLOS sets out a number of obligations that must be followed when conducting marine scientific research in the EEZ or on the continental shelf of a coastal State.50 For instance, if the coastal State wishes to participate or be represented in the research project either on board the research vessel or other craft or scientific research installations, it has a right to do so as long as its

ibid Art 248. ibid. See also the Guide to Implementation 12. 47 UNCLOS, Art 252(c); the Guide to Implementation 13. 48 UNCLOS, Art 246(3). See Treves (n 14) 1065. 49 See also Pavliha and Martínez Gutiérrez (n 4) 124; Stephens and Rothwell (n 14) 569; and the Guide to Implementation 13. 50 Pavliha and Martínez Gutiérrez (n 4) 124–5 and Treves (n 14) 1065–6. 45 46

66  Research handbook on ocean governance law participation is practicable.51 Furthermore, the researching State or organization must provide the coastal State, at its request, with a preliminary report and with a final report detailing results and conclusions once the project is completed.52 Similarly, if the coastal State requests it, the researching State or organization must provide access to the coastal State to all data and samples derived from the research project in addition to an assessment of the data.53 Once the project is completed, the researching State or organization must ensure that the research results are made ‘internationally available through appropriate national or international channels, as soon as practicable’.54 Finally, if there is any significant change in the research programme, the coastal State must be notified immediately, and, unless the Parties have agreed otherwise, the researching State or organization must remove any research equipment or installations at the conclusion of the research.55 All these obligations are applied in the case of pure research and are without prejudice to any conditions a coastal State may impose for the exercise of its discretion to grant or withhold consent in the case of applied research.56 Having commenced a marine scientific research project, the researching State or organization is assured that the coastal State may not interfere with the research, unless the researcher’s conduct allows the coastal State to exercise its right to request the suspension or cessation of the project.57 The powers of the coastal State in this respect are very limited and it is only entitled to request the suspension of the research activities if they are not being performed in conformance with the conditions agreed to when the coastal State consented to the research project, or if the researching State or organization does not comply with the Convention’s requirements regarding the coastal State’s rights with respect to the project in question.58 Additionally, the coastal State has the right to require the cessation of the research project if there is non-compliance with the conditions agreed upon, which amounts to a ‘major change in the research project’,59 or where any situation that allows the coastal State to request the suspension of the project is ‘not rectified within a reasonable period of time’.60

This right must be ensured ‘without payment of any remuneration to the scientists of the coastal State and without obligation to contribute towards the costs of the project’. UNCLOS, Art 249(1)(a). 52 UNCLOS, Art 249(1)(b). 53 ibid Art 249(1)(c) and (d). 54 ibid Art 249(1)(e). 55 ibid Art 249(1)(f) and (g). See also the Guide to Implementation 15. 56 UNCLOS, Art 249(2). In this respect, see Pavliha and Martínez Gutiérrez (n 4) 124–5; Guide to Implementation 13. 57 The exercise of a coastal State’s right to request the suspension or cessation of a marine scientific research project may be sometimes called into question when jurisdiction over the research installation or equipment is contested. On this point, UNCLOS includes limited guidance in Art 258 which provides that ‘[t]he deployment and use of any type of scientific research installations or equipment in any area of the marine environment shall be subject to the same conditions as are prescribed in this Convention for the conduct of marine scientific research in any such area’. This succinct Article has wide ramifications which, although beyond the scope of this chapter, may be interesting to the reader. For a more thorough discussion of this subject, see Pavliha and Martínez Gutiérrez (n 4) 126–8; Churchill and Lowe (n 5) 412–14; Tanaka (n 3) 440–2; Treves (n 14) 1066–7; Stephens and Rothwell (n 14) 574–6; and the Guide to Implementation 18–19. 58 UNCLOS, Art 253(1)(a) and (b). 59 ibid Art 253(2). 60 ibid Art 253(3). 51

Marine scientific research as a tool for ocean governance   67

3.

THE IMPORTANCE OF KNOWLEDGE EXCHANGE

Whilst obtaining data through marine scientific research activities may be a complex and lengthy process, such data would be meaningless unless it can be utilized as a tool for proper ocean governance. For example, although marine scientific research may shed light on the maximum sustainable yield of a particular fish stock (i.e. the maximum catch that may be obtained of the stock over a long period of time to ensure its sustainable exploitation),61 that fish stock may still be subject to overfishing if the coastal State does not use the data obtained through marine scientific research to implement adequate fisheries management measures and adopt legislation establishing, inter alia, a total allowable catch. Therefore, to ensure that marine scientific research is successfully used as a tool for proper ocean governance, there needs to be an effective transfer of knowledge between scientists and decision-makers. This has proved to be a challenge in many countries,62 to the extent that scholars have now identified a new field of research generally referred to as ‘knowledge exchange’ or ‘knowledge transfer’.63 Knowledge exchange must be addressed in a manner that keeps up with time. Accordingly, scholars are studying this topic with a more flexible and holistic approach leading towards an ‘adaptive governance’.64 Cvitanovic and others explain that ‘adaptive governance refers to society’s capacity to understand and respond to environmental and social feedback in the context of change and uncertainty, to sustain and enhance the resistance and resilience of desirable ecosystems’.65 In many cases, however, decision-makers are not aware of all the existing scientific information available that would enable them to adopt sound and informed decisions, and this highlights the importance of the need to improve knowledge exchange between scientists and decision-makers to support adaptive governance of the oceans.66 Knowledge exchange thus emphasizes the fact that producers and users of scientific knowledge are two separate and distinct groups,67 but recognizes that all those involved are interdependent and interconnected.68 Moreover, persons involved in the process have their own Walker defines maximum sustainable yield as the ‘level of abundance of population of a living resource that will assure maintaining or restoring that living resource’. In this respect, see Walker (n 19) 245. 62 M Andrachuk and others, ‘Fisheries Knowledge Exchange and Mobilization through a Network of Policy and Practice Actors’ (2021) 125 Environmental Science and Policy 157, 157–66. 63 Knowledge exchange generally focuses on how to identify and overcome the barriers to the communication of information between scientists and decision-makers. For a thorough discussion on this topic see C Cvitanovic and others, ‘Improving Knowledge Exchange among Scientists and Decisionmakers to Facilitate the Adaptive Governance of Marine Resources: A Review of Knowledge and Research Needs’ (2015) 112 Ocean and Coastal Management 25, 25–35. 64 See Cvitanovic and others (n 63) 26; H Österblom and C Folke, ‘Emergence of Global Adaptive Governance for Stewardship of Regional Marine Resources’ (2013) 18 Ecology and Society 4; BC Chaffin and others, ‘A Decade of Adaptive Governance Scholarship: Synthesis and Future Directions’ (2014) 19 Ecology and Society 56. 65 Cvitanovic and others (n 63) 26. 66 ibid, citing V de Jonge and D Giebels, ‘Handling the “Environmental Knowledge Paradox” in Estuarine and Coastal Policy Making’ (2015) 108 Ocean and Coastal Management 3. 67 ibid 27, citing L van Kerkhoff and L Lebel, ‘Linking Knowledge and Action for Sustainable Development’ (2006) 31 Annual Review of Environment and Resources 445. 68 ibid, citing D Contandriopoulos and others, ‘Knowledge Exchange Processes in Organizations and Policy Arenas: A Narrative Systematic Review of the Literature’(2010) 88 The Milbank Quarterly 444. 61

68  Research handbook on ocean governance law practical experience and knowledge and, therefore, knowledge exchange must be a two-way street to be successful.69 Nevertheless, there are many barriers to an effective knowledge exchange between scientists and decision-makers. For ease of reference, brief mention will be made of those identified by Cvitanovic and others, as well as of some possible ways to overcome such barriers.70 If ocean governance is to improve it is essential to understand and address them. 3.1

Barriers to Knowledge Exchange

3.1.1 Cultural differences Despite the recognition of the necessary interdependence between actors, cultural differences play an important role in preventing an effective knowledge exchange. This is mainly due to the way in which each group of individuals approaches their part of the process. It has been said that scientists ‘construct theories, test hypotheses and refine conceptual models over time based on rigorous methodological approaches to withstand the highest degrees of public scrutiny and criticism’.71 On the other hand, decision-makers often face the spectre of public opinion, which usually compels them to take short-term decisions based on political, economic, and social factors (sometimes even through ‘negotiation and compromise among the competing interests of diverse stakeholders’).72 This would mean that scientists need not concern themselves with the socio-political pressures faced by decision-makers, but decision-makers may have these considerations as the foundation of their actions and may adopt science as just one (sometimes a secondary) factor in the decision-making and policy development process. 3.1.2 Institutional barriers Within governmental structures, there is sometimes a lack of institutional coordination that would allow a smooth access to scientific data by decision-makers. From the scientists’ point of view, institutional barriers are numerous and include a lack of organizational support for engagement activities, insufficient time to carry out these activities, and lack of funding that prevents these activities from taking place.73 On the other hand, from a decision-maker’s standpoint these barriers relate to government structures that do not give sufficient consideration to science, do not give it the priority it deserves, or prevent the availability of the necessary funding to commission research activities to support decision-making.74 3.1.3 Lack of accessibility to science As stated earlier, an adequate ocean governance regime requires a comprehensive exchange of knowledge between scientists and decision-makers.75 However, decision-makers may not ibid, citing DJ Roux and others, ‘Bridging the Science–Management Divide: Moving from Unidirectional Knowledge Transfer to Knowledge Interfacing and Sharing’ (2010) 11 Ecology and Society 4. 70 ibid 27–8. 71 ibid 27. 72 ibid. 73 ibid 28. 74 ibid. 75 See Sections 1 and 3 above. 69

Marine scientific research as a tool for ocean governance   69 always have ready access to all the studies that are relevant to the topics being considered for a number of reasons. For example, in some countries, the publication of research takes an inordinate amount of time, with the result that when the research is published, it may already be outdated and therefore of no use to decision-makers.76 Even if published, decision-makers may not have ready access to the studies as usually scientific journals require subscriptions.77 Furthermore, in certain countries, lack of awareness of their existence may be the issue, whilst in others, lack of funding may be the prohibitive factor that hampers knowledge exchange. 3.1.4 Personal perceptions and experiences Closely related to the cultural differences, one may find the personal perceptions of those involved in the process of knowledge exchange. On this point, it is important to recall that the data produced through marine scientific research is presented by the scientists in an explicit (written or oral) manner, but no matter how clearly the information may be transmitted, this information will be interpreted by the relevant user, and this is usually done based on personal knowledge and experience.78 George Bernard Shaw is generally attributed with the quotation ‘the single biggest problem in communication is the illusion that it has taken place’ and this statement is particularly true in knowledge exchange. Whilst scientists may be confident in the way they have relayed the information, decision-makers may interpret it in accordance with their personal biases, and this is often seen in matters which put decision-makers in the ‘hot seat’ such as climate change, food security, and environmental degradation. 3.2

Overcoming the Barriers to Knowledge Exchange for Better Ocean Governance

There is no documented hard-and-fast solution to overcoming the barriers for knowledge exchange. At most, all actors involved in the process should approach this with an open mind and willingness to make use of all available resources to achieve the expected outcome. On the one hand, scientists must endeavour to ensure that their findings are sufficiently considered by decision-makers, and, for this purpose, they must ensure that the information provided is credible (it must be accurate, clear, and free from bias).79 One way to achieve this can be through increased cooperation or ‘co-production’80 of science. This may be attained by allowing decision-makers to actively participate throughout the whole research activity thus increasing their understanding of the problem, methods used, data obtained, and solutions found. Alternatively, scientists could be ‘embedded’ in decision-making authorities, thus ena-

76 ibid, citing W Linklater, ‘Science and Management in a Conservation Crisis: A Case Study with Rhinoceros’ (2003) 17 Conservation Biology 968. 77 ibid. 78 Andrachuk and others (n 62) 157–8. See also Cvitanovic and others (n 63) 28, citing HE Longino, Science as Social Knowledge: Values and Objectivity in Scientific Inquiry (PUP 1990); I Fazey and others ‘The Nature and Role of Experimental Knowledge for Environmental Conservation’ (2006) 33 Environmental Conservation 1; and Z Leviston and I Walker, ‘Beliefs and Denials about Climate Change: An Australian Perspective’(2012) 4 Ecopsychology 277. 79 Cvitanovic and others (n 63) 28. 80 ibid 29. See also Andrachuk and others (n 62) 159.

70  Research handbook on ocean governance law bling them to transfer the necessary knowledge throughout all the steps of the decision-making process.81 Furthermore, efforts should be made to ensure that decision-makers have ready access to all the relevant scientific data. Governments should also aim at improving their institutional structure to allow a closer interaction between scientists and decision-makers.82 These measures would assist decision-makers in taking informed decisions that are conducive to an adequate ocean governance.83 Additionally, knowledge transfer would greatly benefit from a structured and vibrant stakeholder dialogue where scientific information is presented in a centralized manner and translated into a narrative that is understood by stakeholders. Stakeholder dialogue facilitates good governance as it, inter alia, provides information to the users of the ocean’s ecosystem services. Accordingly, decision-makers (i.e. governments) would have an easier time taking tough decisions if the public/stakeholders are well informed and literate on what needs to be done.

4. CONCLUSION As explained earlier in this chapter, UNCLOS provides a comprehensive regime for the regulation of marine scientific research.84 The detailed regime of UNCLOS has methodically dealt with the different aspects of marine scientific research in Part XIII, which is complemented with detailed provisions contained in the different parts of the Convention that deal with the different maritime zones. UNCLOS strikes a balance between the conflicting interests of the international scientific community and those of coastal States. Whilst it protects the coastal State by requiring that its consent is obtained before any marine scientific research activity may take place in its maritime zones, it also protects the international scientific community by prescribing rules which aim to prevent the arbitrary denial of such consent. The detailed provisions of the Convention extend to procedural matters in a manner that provide the basic international legal framework to use marine scientific research as a tool for ocean governance. However, in order for this international framework to be effective, it must be implemented by State Parties at national level. In this respect, it is at first glance reassuring that State practice is largely in accordance with the provisions of the Convention. However, from a legislative standpoint, it transpires that many States have incorporated UNCLOS into their national legal systems but have failed to implement it effectively. Insofar as marine scientific research is concerned, many States claim jurisdiction over marine scientific research (as allowed by the Convention) without any further elaboration.85 Other States have claimed jurisdiction over marine scientific research and have made provision for the requirement of consent before any research activity may be undertaken but have not elaborated further in implementing the Cvitanovic and others (n 63) 29. ibid 30. 83 In this respect, Andrachuk and others explain that this would be possible because co-production ‘helps shorten the distance between knowledge production and practical application of knowledge and often increases the knowledge impacts, though it may be difficult and costly’; see Andrachuk and others (n 62) 159. 84 See Section 2 above. 85 Churchill and Lowe (n 5) 407. 81 82

Marine scientific research as a tool for ocean governance   71 ‘procedural’ issues laid down in the Convention.86 In fact, there are very few States that have comprehensive national legislation on marine scientific research.87 Why is there such a limited implementation of the Convention’s provisions into national law?88 Although there may be many reasons for this, one of the main ones is the existence of a very weak knowledge exchange system. As mentioned above, there are several barriers that prevent it.89 However, there are also possible solutions for this, and some means have been outlined above to assist in overcoming the barriers to knowledge exchange.90 In light of the above discussion, it is therefore reasonable to conclude that it is of utmost importance to understand the international legal framework governing marine scientific research and to do all that is necessary to improve knowledge exchange at national level between scientists and decision-makers.91 This will enable States to effectively implement at national level the international legal framework governing marine scientific research in a manner that successfully allows it to be used as a tool for an adequate ocean governance.

ibid 407–8. ibid 408–9. For an analysis of State practice, see also Gragl (n 14) 423–8. 88 The Guide to Implementation provides States with a detailed description of the experience of States in implementing the provisions of UNCLOS related to marine scientific research and practical guidance on the implementation of the provisions of the Convention on marine scientific research. It is therefore an essential tool for States to implement effectively the provisions of the Convention. 89 See Section 3.1 above. 90 Since the discussion in this chapter is rather limited on this point, the reader is invited to study the article by Cvitanovic and others (n 63) which will offer a broader discussion of this topic. 91 For further guidance on this point, Andrachuk and others have identified four ‘knowledge mediation spaces’, which help understand the whole process of knowledge exchange. These mediation spaces include ‘sharing expertise and best practices, consultation on policy direction, program delivery, and research partnerships’; see Andrachuk and others (n 62) 157, 160–63. 86 87

5. Dispute settlement and ocean governance Vladyslav Lanovoy1

1. INTRODUCTION The ocean governance regime faces numerous challenges, including the over-exploitation of living and non-living marine resources, ocean acidification, climate change, sea level rise, and biodiversity degradation.2 International law is yet to provide a comprehensive response to all of these and many other threats to the global commons of the oceans.3 This chapter examines the contribution that international courts and tribunals, as provided for in the United Nations Convention on the Law of the Sea (UNCLOS or Convention),4 have made to ocean governance. It will not examine the other mechanisms of dispute settlement provided for in UNCLOS, including compulsory conciliation under Annex V5 and other means of dispute settlement, such as negotiation, good offices, or voluntary conciliation. While there is no set definition of the term ‘ocean governance’,6 for present purposes, it may be understood as comprising the legal and policy framework that concerns the oceans, including the tools that are available to ensure the protection of the oceans and sustainable uses of their resources. This framework applies to a variety of stakeholders, including States, private actors, international and regional organizations, as well as international courts and tribunals. In the alternative, one could also envisage a much narrower definition of the term that would only include those aspects that concern the genuinely universal uses of the oceans. According to such a definition, the numerous decisions of international courts and tribunals concerning disputes that are essentially bilateral in nature, such as maritime delimitation, requests for provisional measures, and requests for the prompt release of vessels, would be excluded. One might then assume that the contribution of international courts and tribunals to

1 The author would like to thank Heather Clark for her comments. This chapter was finalized in October 2021. 2 For an up-to-date analysis of various challenges posed by climate change to the law of the sea, see, for example, E Johansen and others (eds), The Law of the Sea and Climate Change: Solutions and Constraints (CUP 2021). See, for example, IPCC, ‘Special Report on the Ocean and Cryosphere in a Changing Climate’ (2019), https://​www​.ipcc​.ch/​srocc/​home/​, accessed 1 October 2021; UN General Assembly, Res 70/1 ‘Transforming our World: The 2030 Agenda for Sustainable Development’ (25 September 2015) UN Doc A/RES/70/1. 3 See various contributions in S Trevisanut and others (eds), Regime Interaction in Ocean Governance: Problems, Theories and Methods (Brill 2020). 4 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397. 5 The Timor Sea Conciliation is the only compulsory conciliation under UNCLOS that has been conducted to date. For more information, see Timor Sea Conciliation (Timor-Leste v Australia) (Decision on Australia’s Objections to Competence) (2016) PCA Case No 2016-10; Timor Sea Conciliation (Timor-Leste v Australia) (Report and Recommendations) (2018) PCA Case No 2016-10. 6 Commission on Global Governance, Our Global Neighbourhood (OUP 1995) 2–4; P Birnie and others, International Law and the Environment (3rd edn, OUP 2009) 43.

72

Dispute settlement and ocean governance   73 ocean governance, more narrowly defined in this way, has been minimal. However, the jurisprudence resulting from these bilateral disputes, despite the absence of any formal doctrine of precedent in international law, has served to crystallize a number of rules and has promoted certainty and predictability in the relations between States as far as the allocation and uses of maritime spaces are concerned. It follows that this jurisprudence has also informed and shaped the conduct of other States not directly involved in those disputes, as well as their normative expectations in relation to their own uses of the oceans. The findings of international courts and tribunals, even in relation to disputes that are essentially bilateral in character, are thus ‘bound to have repercussions and to influence the conduct and the perception not only of the parties but also of other [S]tates, and in a variety of ways’.7 Ocean governance today is a multi-faceted regime, composed of hundreds of bilateral and multilateral treaties and numerous international and regional organizations, which have been entrusted with law-making and law-enforcement functions in several domains of ocean governance.8 That said, the Convention remains the foundation of the global regime of ocean governance; it establishes ‘a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment’.9 An important part of this legal order is the enforcement mechanism found in the system of dispute settlement in Part XV of UNCLOS, which provides the opportunity for pronouncements on the content of the law of the sea to be made. As noted by the former president of the International Tribunal for the Law of the Sea (ITLOS), although international courts and tribunals ‘do not play a forefront role in global governance, they constitute an integral element of this process by providing authoritative guidance on what the law is and by fostering the progressive development of international law’.10 This chapter argues that international courts and tribunals have made an important contribution to the regime of ocean governance.11 They have done so by providing authoritative interpretations and giving content to the often broadly worded provisions in UNCLOS. They have also instrumentalized the procedural mechanisms under UNCLOS intended to avoid irreparable harm to the marine environment and to protect the rights of States pending the resolution of their disputes. Finally, they have maintained institutional balance with and have provided support to other ocean governance mechanisms, both under UNCLOS and those operating outside of the Convention. 7 V Lowe and A Tzanakopoulos, ‘The Development of the Law of the Sea by the International Court of Justice’ in CJ Tams and J Sloan (eds), The Development of International Law by the International Court of Justice (OUP 2013) 178. 8 See various contributions in DJ Attard and others (eds), The IMLI Treatise on Global Ocean Governance: Volume I – UN and Global Ocean Governance (OUP 2018). 9 UNCLOS, Preamble. 10 V Golitsyn, ‘The Role of International Tribunal for the Law of the Sea (ITLOS) in Global Ocean Governance’ in DJ Attard and others (eds), The IMLI Treatise on Global Ocean Governance: Volume I – UN and Global Ocean Governance (2018) 104. 11 On the specific contributions of each of the dispute settlement mechanisms to the law of the sea see, for example, ITLOS, The Contribution of the International Tribunal for the Law of the Sea to the Rule of Law: 1996–2016 (Brill 2016); Lowe and Tzanakopoulos (n 7); P Tomka, ‘The Contribution of the International Court of Justice to the Law of the Sea’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – Law of the Sea (OUP 2014).

74  Research handbook on ocean governance law The chapter proceeds as follows. Section 2 briefly describes the dispute settlement system under UNCLOS. Section 3 examines the contribution of dispute settlement mechanisms to substantive, procedural, and institutional aspects of ocean governance. Section 4 concludes by considering whether these dispute settlement mechanisms are properly equipped to resolve the types of disputes that may arise in future, considering the new and evolving challenges alluded to above.

2.

DISPUTE SETTLEMENT SYSTEM UNDER UNCLOS

The purpose of this section is to highlight the key characteristics of the dispute settlement system under UNCLOS that have contributed to its success and which may also explain the relative paucity of decisions on certain matters of ocean governance.12 The dispute settlement framework of Part XV of UNCLOS can be described as compulsory, residual, and specialized. Each of these aspects will be briefly analysed below. First, Part XV of UNCLOS sets out a compulsory system in respect of disputes concerning the interpretation or application of the Convention and does so on a quasi-universal scale, with 168 Contracting Parties.13 This is important given that the default position in the international legal order is that dispute settlement mechanisms may only be accessed on an ‘opt-in’ basis, that is, subject to the specific consent of the State. While dispute settlement under UNCLOS is compulsory, it also provides Contracting Parties with a significant degree of flexibility in providing for a choice of fora and the possibility of making a declaration concerning that choice under Article 287. At the same time, its compulsory character is guaranteed, even if the disputing Parties fail to make a choice concerning the forum or where their declarations are not aligned. In such cases, the Convention provides for Annex VII arbitration as a default mechanism for the settlement of disputes. Incidentally, the great majority of disputes in respect of which jurisdiction is based on Part XV of UNCLOS have been dealt with by ad hoc arbitral tribunals and not ITLOS or the International Court of Justice (ICJ) as a result of this default mechanism.14 Another related peculiarity of Part XV is that different mechanisms may be called upon to resolve different aspects of the same case. For example, while ITLOS is the default mechanism for resolving requests for provisional measures, an arbitral tribunal may in parallel be in the process of being constituted to resolve the merits of the dispute. ITLOS also has exclusive

For a detailed analysis of Part XV UNCLOS, see, for example, N Klein, Dispute Settlement in the UN Convention on the Law of the Sea (CUP 2005); P Gautier, ‘The Settlement of Disputes’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – Law of the Sea (OUP 2014); BH Oxman, ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015). 13 See UNCLOS (n 4), with the list of States Parties available at https://​treaties​.un​.org/​pages/​ ViewDetailsIII​.aspx​?src​=​TREATY​&​mtdsg​_no​=​XXI​-6​&​chapter​=​21​&​Temp​=​mtdsg3​&​clang​=​_en, accessed 1 October 2021. 14 Since the entry into force of the Convention in 1994, there have been 15 cases submitted before Annex VII arbitrations (all but one administered by the PCA) and 29 cases before ITLOS, albeit the great majority of the latter concerned requests for prompt release of vessels and crews. Although the ICJ has rendered numerous judgments on questions of the law of the sea, none of the cases have been submitted to it on the basis of Part XV UNCLOS, but rather on other jurisdictional bases. 12

Dispute settlement and ocean governance   75 jurisdiction over requests for the prompt release of vessels and crews, and such requests have made up the bulk of ITLOS’s caseload throughout its 25 years of existence.15 Second, Part XV is residual in character as the compulsory dispute settlement procedures in its Section 2 only come into play if the Parties have not agreed to resolve their dispute in a different way, and in any event only after they have ‘exchanged views’ concerning the settlement of their dispute within the meaning of Article 283 of UNCLOS. Thus, for instance, by virtue of Articles 281 and 282, if the two disputing Parties have chosen to negotiate or if they have agreed to an alternative procedure, be that in a treaty or otherwise, that agreement generally trumps the application of the compulsory procedures set out in Section 2 of Part XV. Indeed, all of the maritime delimitation cases decided by the ICJ to date have been based on compromissory clauses in treaties or matching optional declarations recognizing the compulsory jurisdiction of the ICJ under Article 36(2) of its Statute, rather than on the election of the ICJ under Section 2 of Part XV of UNCLOS. However, the Court has had occasion to clarify the scope of Part XV of UNCLOS and its relationship to other international instruments. For instance, in its recent judgment on the preliminary objections in Maritime Delimitation (Somalia v Kenya), the ICJ held that matching declarations under Article 36(2) of its Statute fall within the purview of Article 282 UNCLOS, and thus apply in lieu of the compulsory procedures in Section 2 of Part XV.16 Third, the UNCLOS dispute settlement framework is a specialized one, since the jurisdiction of the courts and tribunals provided for under Part XV is strictly limited to disputes concerning the interpretation or application of the Convention. That said, over the years, a number of other international agreements have been concluded that are said to be ‘related to the purposes’ of UNCLOS and which may give rise to disputes over which international courts and tribunals envisaged under Part XV may also exercise jurisdiction. For example, Article 30 of the United Nations Fish Stocks Agreement17 incorporates mutatis mutandis the compulsory procedures of Part XV, including in respect of disputes pertaining to questions of allocation of allowable quotas, though States have yet to have recourse to this provision. Nevertheless, the proliferation of such agreements is an indication that the role of international courts and tribunals in ocean governance may expand over time.18 In parallel, there has been a proliferation of regional fisheries management organizations (RFMOs) with their own dispute settlement mechanisms. As demonstrated by the Southern Bluefin Tuna award, the existence of these mechanisms may deprive international courts and tribunals of opportunities to render binding decisions that would be of potential interest to all State Parties to UNCLOS.19 As Boyle notes, the aforementioned award constitutes an ‘extraordinary reversal of the intentions underlying Part XV’ (i.e. to set up a universal, compulsory, and binding system of dispute settlement for the law of the sea disputes) since it leaves high See UNCLOS, Art 292. Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Preliminary Objections) [2017] ICJ Rep 3, 47–50, paras 125–33. 17 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. 18 A Serdy, The New Entrants Problem in International Fisheries Law (CUP 2016) 399. 19 Southern Bluefin Tuna Case (Australia v Japan; New Zealand v Japan) (Award on Jurisdiction and Admissibility) (2000) 23 RIAA 1, 46–7, paras 65–7. 15 16

76  Research handbook on ocean governance law seas fishing States vulnerable to creeping coastal State jurisdiction if they enter a regional fishery agreement where no analogous system is provided for.20 Further, on account of their specialized and limited jurisdiction, dispute settlement mechanisms operating under Part XV are not empowered to resolve all aspects of a dispute, such as territorial sovereignty or claims relating to alleged violations of other rules and principles under customary or treaty law.21 Conversely, fora such as the ICJ, when seized for example on the basis of matching Optional Clause declarations under Article 36(2) of its Statute and when endowed with general jurisdiction, have greater flexibility in this regard and may be able to resolve a broader dispute in a single proceeding. This difference in jurisdictional scope has also contributed to the ICJ being seized of a significant number of disputes concerning the law of the sea, despite ITLOS having specialized competence in this area.22 The relative impact of dispute settlement mechanisms under Part XV on matters of ocean governance must thus be assessed against the background of the limitations to their jurisdiction, as well as the ability left to Contracting Parties to exclude certain types of disputes from compulsory dispute settlement altogether. Specifically, Contracting Parties may exclude, through optional declarations, certain types of disputes, including those concerning maritime delimitation or military and law-enforcement activities regarding the exercise of sovereign rights and jurisdiction.23 International dispute settlement mechanisms have used the opportunity to clarify the scope of application of such optional declarations, and it can safely be said that they have consistently interpreted such declarations in a restrictive manner, having regard to the overall object and purpose of UNCLOS and its Part XV.24 In addition, under Article 297 of the Convention, disputes relating to fisheries or to marine scientific research are automatically carved out from the scope of compulsory dispute settlement, and only in limited circumstances could these be brought before a conciliation commission under Part XV. In sum, despite the compulsory character of the dispute settlement system under UNCLOS, it also has important limitations as it respects the fundamental principles of consent and free choice of means, and because it provides for exceptions of both an automatic and optional nature. The relatively limited output of international courts and tribunals on the law of the sea in general and on key ocean governance matters in particular may largely be attributed to these limitations. That said, in their decisions on contentious cases and in their advisory opinions, international courts and tribunals have still made important contributions to enhancing the legal regime of ocean governance, at least in some subject-areas. For instance, international courts and tribunals have rendered numerous orders on provisional measures directed to preventing serious risks to the marine environment from materializing. Similarly, the decisions of

20 A Boyle, ‘Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks’ in O Schram Stokke (ed), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (OUP 2001) 104–5. 21 Cf Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) (Award) (2015) 31 RIAA 359, 460, paras 220–21 (opening a potential leeway for issues of territorial sovereignty to be considered as an incidental matter to the exercise of the limited jurisdiction under UNCLOS). 22 See similarly Tomka (n 11) 620. 23 UNCLOS, Art 298. 24 See, for example, Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait (Ukraine v Russian Federation) 191 ILR 1, 121–9, paras 330–41 and 356–8; Arctic Sunrise Arbitration (Netherlands v Russian Federation) (Award on Jurisdiction) (2015) 171 ILR 1, 25–8, paras 69–78; Timor Sea Conciliation (Timor-Leste v Australia) (n 5) paras 69–82.

Dispute settlement and ocean governance   77 international courts and tribunals have given rise to a more reliable and predictable method of maritime delimitation, with important knock-on effects in terms of the peaceful coexistence of neighbouring States and the orderly exploration and exploitation of natural resources. Finally, the two relatively recent advisory opinions have been instrumental to our understanding of the balance of rights and obligations between various stakeholders interested in the activities in the Area,25 as well as the need to eradicate practices of illegal, unreported, and unregulated (IUU) fishing.26

3.

CONTRIBUTION OF DISPUTE SETTLEMENT MECHANISMS TO RESOLVING DISPUTES RELATING TO OCEAN GOVERNANCE

The adoption and entry into force of UNCLOS put an end to a long period of uncertainty in several matters relating to ocean governance. It did so by establishing ‘a clear jurisdictional framework for the adoption and enforcement of national measures to protect the marine environment’ and by raising awareness to the need of the international community to protect the global commons that the oceans hold.27 It is difficult, however, to assess how much influence UNCLOS has had on States’ willingness to adopt such measures and whether their increased awareness of the need to protect the global commons of the oceans has always led to concrete actions. As far as the role of international courts and tribunals is concerned, their contribution to ocean governance is also quite difficult to assess. As noted earlier, they have only had the opportunity on a few occasions to expound in detail on particular aspects of ocean governance. This is aggravated by the fact that, in the exercise of their contentious jurisdiction, international courts and tribunals will typically seek out the shortest or most direct way of reaching their decision, rather than gratuitously seeking to fill gaps that may exist in the relevant legal framework. That said, and keeping in mind the significant jurisdictional limitations described above, this section will identify the most important contributions that international courts and tribunals have made to substantive, procedural, and institutional aspects of ocean governance. This section will also provide a brief critical analysis of these contributions with a view to identifying those areas that are likely to see further development considering the challenges noted above.

25 UNCLOS, Art 1 (which defines the Area as the ‘seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’). 26 See Responsibilities and Obligations of States with Respect to Activities in the Area (Advisory Opinion) [2011] ITLOS Rep 10; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion) [2015] ITLOS Rep 4; for various contributions to a recent special issue on the IUU fishing, see HR Fabri and others, ‘Regime Convergence and Lex Ferenda in IUU Fishing Disputes: Introductory Remarks’ (2020) 22 ICLR 363. 27 R Churchill, ‘The LOSC Regime for Protection of the Marine Environment: Fit for the Twenty-First Century?’ in R Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar Publishing 2017) 30.

78  Research handbook on ocean governance law 3.1

Substantive Aspects of Ocean Governance

There are two substantive areas of ocean governance where the contribution of international courts and tribunals has been most significant. First, international courts and tribunals have shaped the law applicable to the delimitation of maritime spaces, by developing and applying predictable, consistent, and reliable methodology.28 This has led to a peaceful allocation of sovereign rights between States and effective management of maritime zones and their resources. Second, international courts and tribunals have given greater content to broadly worded provisions in UNCLOS directed to the exploitation of marine resources in maritime spaces within and beyond national jurisdiction, including the deep seabed or the Area. In so doing, international courts and tribunals have sought to identify an appropriate balance between the rights and obligations of coastal States and other States interested in the access to these sea resources. In addition, they have provided authoritative interpretations of certain fundamental concepts of the law of the sea such as, for instance, that of the continental shelf under Article 76 of UNCLOS,29 the distinction between various maritime features under Articles 13 and 121 of UNCLOS,30 the use of different types of baselines under Articles 5 and 7 of UNCLOS,31 or the requirement of a ‘genuine link’ under Article 91 of the Convention,32 among many others. In doing so, they have tempered attempts to manipulate the ordinary meaning of some of these concepts through technological developments in furtherance of strategic interests, thereby reinforcing the fundamental principle of the peaceful use of the oceans. 3.1.1 Delimitation UNCLOS contains three provisions that address the delimitation of maritime spaces. Article 15 provides for median line (i.e. equidistance) delimitation, subject to special circumstances, as the applicable method in the territorial sea, whereas Articles 74 and 83 specify that delimitation in the exclusive economic zones (EEZ) and of the continental shelf should be effected by agreement or, where there is no agreement, by one of the means of dispute settlement under Part XV. While the Convention expressly states that the objective of delimitation pursuant to each of these Articles is to achieve an equitable solution, it is the decisions of international courts and tribunals that have progressively attributed meaning and content to that objective by developing the methodology that is to be followed. Hesitant early jurisprudence on delimitation preceded the adoption of UNCLOS, as did long intellectual debates, but since the adoption of UNCLOS, international courts and tribunals have settled on a clear and, by now, one could

For a recent and detailed assessment of maritime delimitation as a judge-shaped law see M Lando, Maritime Delimitation as a Judicial Process (CUP 2019). See also AG Oude Elferink and others (eds), Maritime Boundary Delimitation: The Case Law (CUP 2018). 29 See, for example, Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep 624, 666, para 118; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar) (Judgment) [2012] ITLOS Rep 4, 112–14, paras 428–38. 30 See, for example, South China Sea Arbitration (Philippines v China) (Merits) (Award) [2016] 33 RIAA 153, 301, paras 304–6. 31 See, for example, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 40, 103–4, paras 212–15. 32 See, for example, M/V ‘Virginia G’ (Panama/Guinea-Bissau) (Judgment) [2014] ITLOS Rep 4, 43–5, paras 107–13; M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (Judgment) [1999] ITLOS Rep 10, 42, para 83. 28

Dispute settlement and ocean governance   79 say, default three-stage methodology.33 This methodology was first set out in the 2009 Black Sea judgment rendered by the ICJ.34 Incidentally, this was the only judgment in the Court’s history where no individual opinion was appended, demonstrating the will of the ICJ’s judges to set the record straight for the future delimitations effected by it and its peers.35 Thus, the methodology for delimitation by equidistance/special circumstances (in the territorial sea) and equidistance/relevant circumstances (in the EEZ and of the continental shelf) are well-established and it is only in exceptional circumstances that international courts and tribunals have departed therefrom. These departures have been justified by very particular configurations of the coast or other considerations such as the existence of an earlier agreement on delimitation in respect of segments of the maritime spaces to be delimited.36 From the perspective of ocean governance, four aspects of the jurisprudence of international courts and tribunals on delimitation are worth highlighting because they are still evolving. First, there remain certain open questions concerning what may constitute a ‘special circumstance’ in the delimitation of the territorial sea and a ‘relevant circumstance’ in the delimitation of an EEZ and continental shelf. For example, while traditional fishing rights have long been accepted as a special circumstance in the delimitation of the territorial sea, economic activities relating to the uses of the sea resources are generally not considered to be relevant circumstances that would warrant the adjustment of a provisional equidistance line in the delimitation of an EEZ or continental shelf.37 However, these non-geographic circumstances continue to be invoked by the Parties before international courts and tribunals.38 Similarly, the existing jurisprudence of international courts and tribunals does not always do justice to the legal rights and interests of third parties in the context of maritime delimitation.39 For a thorough analysis of the evolution of jurisprudence in respect of maritime delimitation see, for example, Y Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (2nd edn, Hart 2019); Lando (n 28). 34 Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, 101–3, paras 116–22. 35 See, for example, Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar) (n 29) 64–8, paras 225–40; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (Award) (2014) 167 ILR 1, 111–14, paras 336–46. 36 Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v Honduras) (Judgment) [2007] ICJ Rep 659, paras 272, 277 and 280–81; Maritime Dispute (Peru v Chile) (Judgment) [2014] ICJ Rep 3, 72, para 198(3). 37 Delimitation of the Exclusive Economic Zone and the Continental Shelf (Barbados v Trinidad and Tobago) (2006) 27 RIAA 147, 214, para 241; Maritime Delimitation in the Black Sea (Romania v Ukraine) (n 34) 125–6, para 198; but see Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment) [1984] ICJ Rep 246, 342, para 237 (accepting in principle that such factors may be taken into account but only where the delimitation line would be ‘likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned’); for the only case where economic factors (fisheries) were taken into account as a relevant circumstance warranting an adjustment of the provisional equidistance line see Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) (Judgment) [1993] ICJ Rep 38, 72, para 76. 38 See, for example, Maritime Delimitation in the Indian Ocean (Somalia v Kenya) Appendix to the Republic of Kenya’s Application to Submit New Evidence and Written Submissions of 22 February 2021 190 ff; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Judgment) [2017] ITLOS Rep 4, 124 ff, para 437 ff. 39 For a detailed account and criticism of the jurisprudence in this respect see L Palestini, La protection des intérêts juridiques de l’État tiers dans le procès de délimitation maritime (Bruylant 2020). 33

80  Research handbook on ocean governance law Second, several thorny questions remain to be resolved concerning the delimitation of the extended continental shelf. These questions include the existence of so-called ‘grey zones’ where there is an adjusted equidistance line, one State exercises sovereign rights over the EEZ, and the other State exercises sovereign rights over its extended continental shelf. To perform these delimitations, international courts and tribunals may have to examine complex questions of science and geology. Moreover, many of these issues will arise in cases involving non-parties to UNCLOS, which are thus not subject to the recommendations of the Commission on the Limits of the Continental Shelf (CLCS).40 Third, courts and tribunals are increasingly confronted with requests to delimit areas where the coasts are morphologically unstable and have been or will be affected by climate change. In such cases, they have consistently taken the position that their task is necessarily limited to delimitation on the basis of the geographic configuration at the time of their decision, thus ignoring possible changes to that configuration due to processes such as accretion or avulsion, which may for example result in the disappearance of the relevant basepoints.41 Courts and tribunals have, however, come up with innovative solutions such as, for instance, fixing the coordinates of the point of departure seaward from the coast, and linking that point to the existing terminus of the territorial boundary by a mobile line.42 Fourth, courts and tribunals have provided greater definition to the obligations applicable in undelimited maritime spaces, such as those found in Articles 74(3) and 83(3) of UNCLOS. For example, in Guyana v Suriname, the Tribunal found that both Parties to the dispute, by their respective conduct, had jeopardized the reaching of a final agreement on the delimitation of their maritime boundary, thus breaching their obligations ‘not to jeopardize or hamper the reaching of the final agreement [on delimitation]’.43 In so doing, the Tribunal confirmed that the relevant test for a breach of Articles 74(3) and 83(3) is whether the conduct in question is likely to result in permanent physical changes to the undelimited area.44 However, courts and tribunals have not addressed whether international responsibility for conduct in undelimited areas can be engaged in circumstances other than those addressed by Articles 74(3) and 83(3). Of note, the effect of these provisions may also have recently been attenuated by the Special Chamber of ITLOS in Ghana/Côte d’Ivoire, which held that the existence of a good faith claim

40 This issue will necessarily arise in the pending case before the ICJ between Nicaragua and Colombia. See Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep 100. 41 See, for example, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (Judgment) [2018] ICJ Rep 139, 173, para 86; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (n 38) 95, para 318; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (n 35) 73–4, paras 214, 346 and 399. See also Part III, Chapter 11, ‘Ocean Governance in an Era of Climate Change’ by S Borg. 42 See, for example, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) (n 41) 173, para 86; see also Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v Honduras) (n 36) 755, para 307. 43 Delimitation of the Maritime Boundary (Guyana v Suriname) (Award) (2007) 30 RIAA 1, 139, para 488. 44 Aegean Sea Continental Shelf (Greece v Turkey) (Provisional Measures) [1976] ICJ Rep 3, 10–11, paras 30–31; Delimitation of the Maritime Boundary (Guyana v Suriname) (n 43) 132–3, paras 466–70.

Dispute settlement and ocean governance   81 by a State concerning an undelimited maritime area prior to the delivery of a judgment on its delimitation precludes the finding of responsibility on the part of that State.45 3.1.2 Sustainable use of ocean resources Another area where international courts and tribunals have made a significant contribution to ocean governance concerns the uses of marine resources in maritime spaces within and beyond national jurisdiction. The existing jurisprudence of international courts and tribunals has preserved and reinforced the delicate balance that the Convention provides for in terms of the rights and obligations of coastal States on the one hand, and States that may have interest in exploiting the resources located in the EEZ of coastal States on the other hand. In so doing, international courts and tribunals have consolidated the legal regime for EEZs in Part V of the Convention. This legal regime, which is founded upon the notion of sovereign rights, represents a successful and pragmatic compromise to ‘some of the fundamental interests of industrialized States, as well as coastal States and maritime powers’.46 For instance, international courts and tribunals have given content to Articles 61 and 62 of UNCLOS, which address the conservation and utilization of living resources. In particular, ITLOS has clarified that bunkering (re-fuelling) of foreign vessels in the EEZ, as long as it is directly connected with fishing, is an activity that can be regulated by the coastal State. The competence of the coastal State in regulating such activity ‘derives from [its] sovereign rights … to explore, exploit, conserve and manage natural resources’.47 By contrast, the coastal State ‘does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the Convention’.48 The regulation of bunkering not only by the flag State but also by the coastal State, when conducted in the latter’s EEZ, has important knock-on effects on ensuring a greater level of protection to the marine environment and its resources. In addition, in their jurisprudence, international courts and tribunals have addressed certain key principles of international environmental law as applicable to the oceans, including the precautionary principle and the notion of due diligence. They have done so through the so-called rules of reference in UNCLOS. For example, principles of international environmental law have been addressed via Part XII of the Convention, which concerns marine environmental protection and which refers to ‘generally accepted international rules and standards’.49 International courts and tribunals have also relied upon the Convention’s broad applicable law clause, which allows recourse to ‘foundational or secondary rules of general international law’, as well as other primary rules of international law when interpreting and applying ‘broadly worded or general provisions’ of the Convention.50 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (n 38) 159, para 592. 46 U Leanza and MC Caracciolo, ‘The Exclusive Economic Zone’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – The Law of the Sea (OUP 2014) 185. 47 M/V ‘Virginia G’ (Panama/Guinea-Bissau) (n 32) para 222. 48 ibid para 223. 49 See, for example, J Harrison, Making the Law of the Sea: A Study in the Development of International Law (CUP 2011) 165–79; BH Oxman, ‘The Duty to Respect Generally Accepted International Rules and Standards’ (1991) 24 NYU Journal of International Law and Politics 109, 121–39. 50 Arctic Sunrise Arbitration (Netherlands v Russian Federation) (Award on the Merits) (2015) 171 ILR 1, paras 190–91; Duzgit Integrity Arbitration (Malta v São Tomé  and Príncipe) (Award) (2016) 173 ILR 95, PCA Case No 2014-07, para 208. 45

82  Research handbook on ocean governance law For instance, in its award on the merits in South China Sea, the Tribunal relied on a much wider set of treaty obligations relating to the environment to give full effect to certain UNCLOS provisions. Similarly, ITLOS has consistently ruled that ‘States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances’.51 For example, in M/V ‘Saiga’, ITLOS stressed that even if the Convention contains no specific provision on the use of force that may be resorted to in the arrest of ships by the coastal State: international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.52

This is just one of many examples where international courts and tribunals exercising jurisdiction under Part XV have opted for an evolutionary interpretation of UNCLOS obligations, which frequently refer to externally sourced rules and standards, contain generic and open-ended terms, or rely on concepts à géométrie variable, such as reasonableness, equity, or due diligence. As far as sustainable uses of ocean resources are concerned, the two advisory opinions rendered by ITLOS Seabed Disputes Chamber and the Tribunal in its full composition have made by far the most significant contributions.53 In the 2011 Advisory Opinion on the Area, the ITLOS Seabed Disputes Chamber provided a set of helpful guidelines for States sponsoring activities in the Area. To begin with, the Chamber clarified the scope of the phrase ‘activities in the Area’ as including the recovery of minerals from the seabed, their lifting to the surface of the water, and other associated activities. However, it excluded ‘processing’, that is, extracting metals from the minerals, a process which is usually conducted on land.54 In addition, the Chamber made an important finding concerning the scope of responsibility of sponsoring States, namely that they must ensure that their activities (or the activities of contractors that they have sponsored) do not cause damage to the marine environment in the Area. This is an obligation of conduct or best efforts which requires them to exert due diligence to a degree that may change over time depending on the state of the scientific and technological knowledge and the risks involved in the specific activity in question.55 The Chamber also stressed that States have several ‘direct obligations’ in respect of the activities in the Area, among them the obligations to apply the precautionary approach and to conduct an environmental impact assessment.56 Further, the Seabed Chamber stressed that States are required to establish laws and regulations and take administrative measures within their legal systems to ensure

51 M/V ‘Louisa’ (Saint Vincent and the Grenadines v Spain) (Judgment) [2013] ITLOS Rep 4, 46, para 155. 52 M/V ‘Saiga’ (No 2) (Saint Vincent and the Grenadines v Guinea) (n 32) 61–2, para 155. 53 Golitsyn (n 10) 108. 54 Responsibilities and Obligations of States with Respect to Activities in the Area (n 26) 37, paras 94–5. 55 ibid 43, para 117. 56 ibid 75, para 242.

Dispute settlement and ocean governance   83 that sponsored contractors act in compliance with the obligations incumbent upon the State, including by providing for the necessary enforcement mechanisms.57 The second Advisory Opinion that is particularly notable for its contribution to governance of the sustainable use of ocean resources is ITLOS’s 2015 Advisory Opinion on Fisheries. In this case, ITLOS examined the rights and obligations of the flag States and coastal States in respect of IUU fishing activities and built upon some of the considerations that had been addressed in the Seabed Disputes Chamber Advisory Opinion on the Area. While recognizing that ‘the primary responsibility for taking necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State’,58 ITLOS elaborated on the corresponding obligations of flag States.59 It emphasized that the flag State has the responsibility to ensure, pursuant to Articles 58(3) and 62(4) of UNCLOS, compliance by vessels flying its flag with the laws and regulations concerning conservation measures adopted by the coastal State in respect of its EEZ and that the flag State shall take the necessary measures, including effective exercise of its jurisdiction over the vessels flying its flag.60 Importantly, while the obligation of flag States is that of due diligence, that is, an obligation of conduct and not of result, the flag State shall nonetheless include adequate enforcement mechanisms in the applicable laws and regulations to the vessels flying its flag, and such mechanisms shall be sufficiently robust to deter violations and deprive the vessels conducting IUU fishing from any benefits they would otherwise extract from such activities.61 Finally, the Tribunal also recalled a number of specific obligations of coastal States in the management of shared stocks and stocks of common interest.62 In so doing, it stressed that the ultimate goals of such management was to ‘conserve and develop [such fish stocks] as a viable and sustainable resource’.63 In addition to clarifying the character and scope of obligations of States involved in the exploitation of resources within and beyond national jurisdiction, these two advisory opinions have had a significant influence on the progressive development of the law of the sea and ocean governance. First, in both cases, the Seabed Disputes Chamber and ITLOS held that States must abide by the precautionary approach in their activities and the measures they are expected to take whenever the scientific knowledge and certainty may be lacking about potential environmental risks.64 Second, these advisory opinions assigned a significant amount of content to the open-textured provisions in the Convention. Third, they seized the opportunity to emphasize that the protection of the oceans is a common responsibility. Thus, for instance, the Advisory Opinion on the Area dispelled the myth of ‘common but differentiated responsibilities’ in respect of resources which constitute a heritage of mankind, emphasizing that no preferential treatment shall be accorded to developing States that may sponsor the activities in the Area. As noted by the Seabed Disputes Chamber, ‘the general provisions concerning

ibid 68, para 218. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (n 26) 33, paras 105–6. 59 ibid 34, para 110. 60 ibid 38–9, paras 125–7. 61 ibid 39–42, paras 127–38. 62 ibid 58–9, para 207. 63 ibid 55, paras 190–91. 64 Responsibilities and Obligations of States with Respect to Activities in the Area (n 26) 45–7, paras 125–35; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (n 26) 59, para 208. 57 58

84  Research handbook on ocean governance law the responsibilities and liability of the sponsoring State apply equally to all sponsoring States, whether developing or developed’.65 This equality of treatment is an essential antidote to the proliferation of the so-called sponsoring States of convenience.66 3.2

Procedural and Institutional Aspects of Ocean Governance

Two areas may be highlighted where international courts and tribunals have contributed to procedural and institutional aspects of ocean governance. First, Contracting States have had recourse to the procedures set out in Articles 290 and 292 of the Convention to prevent irreparable harm to the marine environment and to their rights while the resolution of their dispute was pending. Second, international courts and tribunals have maintained an appropriate institutional balance between different governance bodies established under UNCLOS and in application of the Convention’s purposes and principles. 3.2.1 Provisional measures and prompt release of vessels and crews One area where international courts and tribunals have left an important footprint on the development of ocean governance has been in ensuring the availability of emergency relief, available through two mechanisms set forth in the Convention, namely applications for provisional measures and prompt release of vessels and crews under Articles 290 and 292 of the Convention, respectively. In doing so, they have contributed to ocean governance by providing the means to avoid irreparable harm to the marine environment and by preventing the aggravation of disputes. Incidentally, applications for provisional measures and prompt release have constituted the bulk of the ITLOS’s docket to date because it is the default mechanism for the resolution of such disputes. At least three general observations can be made in relation to these two procedures. The first observation to make on this topic is that the jurisprudence of different international courts and tribunals on provisional measures has been very consistent insofar as the requirements that must be satisfied are concerned. These requirements are the existence of prima facie jurisdiction, namely whether there is a dispute concerning the interpretation or application of the Convention and whether the exchange of views has taken place, the existence of real and imminent risk of irreparable prejudice, and the plausibility of rights as asserted by the applicant. It is noteworthy that, after the introduction of the latter requirement in the jurisprudence of the ICJ on provisional measures, ITLOS followed suit.67 This is just one of many examples of cross-fertilization between various dispute settlement mechanisms concerning procedural requirements. As noted by the former president of the ICJ, Judge Peter Tomka, ‘[t]here is every indication that the jurisprudence emanating both from ITLOS and the World Court,

65 Responsibilities and Obligations of States with Respect to Activities in the Area (n 26) 53–4, para 158. 66 ibid 54, para 159. 67 Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Provisional Measures) [2015] ITLOS Rep 146, 158, paras 57–8; ‘Enrica Lexie’ (Italy v India) (Provisional Measures) [2015] ITLOS Rep 182, 197, para 84; Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation) (Provisional Measures) (Order of 25 May 2019) para 95; The M/T ‘San Padre Pio’ Case (Switzerland v Nigeria) (Provisional Measures) (Order of 6 July 2019) para 105.

Dispute settlement and ocean governance   85 along with that originating in the context of arbitral proceedings, will continue to develop and coexist harmoniously’.68 As a second observation, decisions on provisional measures made by international courts and tribunals operating under Part XV have generally been effective in avoiding the aggravation of disputes and even contributing to their settlement. For instance, in Ghana/Côte d’Ivoire, the Special Chamber of ITLOS limited its order on provisional measures to new prospecting and drilling, thereby preserving those in respect of which licences had already been accorded and where drilling activities were already underway.69 Had its order applied to existing licences and activities, there is a significant likelihood that the dispute would have been aggravated. Similarly, in Land Reclamation (Malaysia/Singapore), ITLOS’s order on provisional measures is widely considered to have been instrumental to the settlement of the dispute and to preventing more serious environmental harm due to the land reclamation activities at issue.70 Importantly, these and other decisions on provisional measures have reaffirmed various duties in the Convention, the ultimate purpose of which is to prevent serious harm to the marine environment. For instance, in the MOX Plant and Land Reclamation cases, ITLOS emphasized that ‘the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law and that rights arise therefrom which the Tribunal may consider appropriate to preserve under article 290 of the Convention’.71 Moreover, since the very first order on provisional measures, ITLOS has consistently recalled that parties should ‘act with prudence and caution’ to prevent serious harm to the marine environment.72 Third and finally, ITLOS’s residual competence in respect of the prompt release of vessels and crews under Article 292 of UNCLOS has been one of the most successful aspects of international dispute settlement on the law of the sea. It has allowed for a speedy and reliable way for flag States to ensure the release of vessels and crews and de-escalate tensions, without undermining the coastal State’s ability to pursue proceedings before its domestic courts in relation to alleged violations of its environmental legislation committed by such vessels in its EEZ. In its practice, ITLOS has developed a consistent line of jurisprudence, clarifying the conditions that must be met for release upon the posting of a reasonable bond or financial security. For instance, ITLOS highlighted a number of non-exhaustive criteria that may help it determine whether a bond or financial security is reasonable, including ‘the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form’.73 Interestingly, a more recent jurisprudence shows a significant

Tomka (n 11) 620. Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (n 67) 164–5, paras 99–102. 70 See Land Reclamation in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures) [2003] ITLOS 10. See also Land Reclamation in and around the Straits of Johor (Malaysia v Singapore) (Award on Agreed Terms) [2005] PCA Case No 2004-05. 71 MOX Plant (Ireland v United Kingdom) (Provisional Measures) [2001] ITLOS Rep 95, 110, para 82; Land Reclamation in and around the Straits of Johor (Malaysia v Singapore) (n 70) 25, para 92. 72 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures) [1999] ITLOS Rep 280, 296, para 77; MOX Plant (Ireland v United Kingdom) (n 71) 110, para 84; Land Reclamation in and around the Straits of Johor (Malaysia v Singapore) (n 70) 26, para 99. 73 ‘Camouco’ (Panama v France) (Prompt Release) (Judgment) [2000] ITLOS Rep 10, 31, para 67. 68 69

86  Research handbook on ocean governance law degree of overlap between the two emergency relief procedures.74 In sum, the mechanism of prompt release has proven to be very successful to date and has effectively struck the right balance between the needs of flag States to ensure the safety of its vessels and crews and the prerogatives of coastal States in the exercise of their sovereign rights over the management of natural resources. 3.2.2 Institutional coexistence and cooperation International courts and tribunals have also contributed to the maintenance of a functional coexistence and cooperation with other ocean governance bodies, whether or not they operate under the auspices of UNCLOS. For instance, when called to delimit the continental shelf beyond 200 nautical miles, international courts and tribunals have thus far been mindful of the role of the CLCS, which is tasked with delineation of the outer limits of the continental shelf.75 These two procedures are separate but intrinsically linked as the delineation of the outer limits of the continental shelf may have an impact on the delimitation of the continental shelf beyond 200 nautical miles as between two coastal States. Thus, the delimitation of the extended continental shelf without prior delineation by the CLCS should generally be avoided. The exceptions of the Bay of Bengal cases and Ghana/Côte d’Ivoire, where dispute settlement mechanisms proceeded with such prior delimitation, were arguably justified in light of the particular circumstances of those cases, as there was no doubt as to the existence of an extended continental shelf.76 For example, the Bay of Bengal is well known for the sedimentary character of the continental margin as was acknowledged during the negotiations of UNCLOS.77 In contrast, where the existence of the continental shelf beyond 200 nautical miles is uncertain and its outer limits are yet to be determined by the CLCS, an international court or tribunal seized of a request for delimitation would be proceeding with delimitation on the basis of an assumption that both States to a given dispute have an entitlement over the extended continental shelf which overlap. In this author’s view, this assumption would be dangerous as it could introduce fictitious elements into the delimitation process and thus not necessarily lead to an equitable solution, which as noted above is the ultimate objective of delimitation under UNCLOS. International courts and tribunals have also assisted the other ocean governance bodies set up under UNCLOS, such as the International Seabed Authority in the 2011 Advisory Opinion on the Area, as well as regional organizations, as was the case of the Sub-Regional Fisheries Commission (SRFC) in the 2015 Advisory Opinion on Fisheries, by providing an answer to certain legal questions that had arisen in the exercise of their functions. As discussed earlier, these two advisory opinions provided substantial guidance concerning certain open-textured provisions in UNCLOS and interpreted the obligations incumbent on sponsoring States in respect of activities in the Area and flag States in respect of IUU fishing.

The M/T ‘San Padre Pio’ Case (Switzerland v Nigeria) (n 67) paras 139–41. Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (n 29) 98–103, paras 369–94. 76 ibid 115, paras 443–6; Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (n 35) 38–9, paras 76–82; Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (n 38) 136, para 491. 77 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (n 29) 115, para 444. 74 75

Dispute settlement and ocean governance   87 Finally, international courts and tribunals have interpreted and applied provisions of UNCLOS by taking into account best practices and standards developed by other institutions involved in ocean governance, such as the Food and Agriculture Organization (FAO), the International Maritime Organization (IMO) or various RFMOs.78 In so doing, international courts and tribunals have incorporated soft standards developed by these institutions in their decision-making processes and have thus reinforced the multi-dimensional character of the global regime of ocean governance.79

4. CONCLUSION As noted by Judge Tullio Treves, ‘a major achievement of [UNCLOS] is that it has brought the law of the sea under the jurisdiction of international courts and tribunals’.80 This chapter has examined some of the most significant contributions that international courts and tribunals have made to the regime of ocean governance. A few years ago, it was en vogue to speak of fears of fragmentation among international courts and tribunals exercising jurisdiction under Part XV of UNCLOS, but this has largely been discredited.81 To the contrary, the practice of international courts and tribunals shows a strong trend towards consistent and systemic integration in relation to substantive, procedural, and institutional aspects of ocean governance, including the methodology for delimitation of maritime boundaries, the progressive development of the framework for the protection of the marine environment, or the conditions required for the indication of provisional measures. At the same time, the well-being of the oceans and a sustainable use of its resources is constantly being challenged by the practices of States and other stakeholders, including overfishing, IUU fishing, over-exploitation of mineral resources on the continental shelf, environmental pollution, ocean acidification, sea level rise, increasing number of claims by coastal States to extended continental shelf, and so on. International courts and tribunals may not necessarily be well equipped to provide comprehensive answers to these problems as they remain the creatures of States’ consent. Indeed, the numbers and nature of disputes brought before international courts and tribunals to date demonstrate that the use of courts and tribunals remains somewhat sporadic and addresses only certain questions of the law of the sea. Nevertheless, their contributions to date have been particularly valuable. In this regard, it is hoped that, following its significant finding in 2015 that it has general

78 See, for example, South China Sea Arbitration (Philippines v China) (n 30) 570, para 1083; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (n 26) 30, para 92. 79 See similarly L Ngoc Nguyen, ‘The Contribution of UNCLOS Dispute Settlement Bodies to the Development of the Law of the Sea’ (Thesis, University of Cambridge 2018) 175. 80 T Treves, ‘The Development of the Law of the Sea since the Adoption of the UN Convention on the Law of the Sea: Achievements and Challenges for the Future’ in D Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Nijhoff 2010) 47. 81 See J Paine, ‘The Judicial Dimension of Regime Interaction beyond Systemic Integration’ in S Trevisanut and others (eds), Regime Interaction in Ocean Governance: Problems, Theories and Methods (Brill 2020) 184; C Greenwood, ‘Unity and Diversity in International Law’ in M Andenas and E Bjorge (eds), A Farewell to Fragmentation: Reassertion and Convergence in International Law (CUP 2015) 51–2; H Tuerk, Reflections on the Contemporary Law of the Sea (Nijhoff 2012) 155–6.

88  Research handbook on ocean governance law advisory jurisdiction over matters relating to the purposes of UNCLOS,82 ITLOS may well be solicited more frequently to provide advisory opinions on more issues of interest to the regime of ocean governance. This would be a very positive development because regional organizations involved in ocean governance should be able to request advisory opinions on any legal question relating to UNCLOS or another instrument that is linked to its object and purpose.83 More fundamentally, solutions to many of the pressing issues to the sustainable uses of ocean resources lie outside the system of dispute settlement. These depend on the political will of States, including their willingness to conclude new legal instruments, pass required domestic legislation, ensure the availability of mechanisms for the effective enforcement of law of the sea obligations in practice, and strengthen cooperation between them and with international organizations involved in matters of ocean governance. International courts and tribunals cannot ‘anticipate the law before the legislator has laid it down’.84 Rather, their task is to ascertain and apply the rules or principles to a specific contentious or advisory proceeding brought before them, thus preserving the stability and predictability of the legal framework. This is an important point that should temper any criticism of the output of international courts and tribunals in the context of the law of the sea. At the same time, judges make certain interpretative choices, which at times may be regarded as developing the law rather than strictly applying it.85 It would not be an exaggeration to say that ‘consolidation and further development of the law are frequent by-products of dispute settlement’.86 This is particularly true of multilateral treaties, such as UNCLOS, which often contain generic terms and concepts that negotiators prefer to leave undefined or deliberately vague, not only because they are the result of a compromise but also because the interpretation of its provisions was not intended to be frozen in time upon its adoption. Indeed, UNCLOS was negotiated as a single package and drafted in six official languages of the United Nations in an attempt to codify the relevant customary law in a comprehensive and systematic manner while ensuring the participation of as many States as possible in the treaty itself and the various governance structures envisaged therein. That meant agreeing at the time to wording which leaves much to be desired on the technical level, and that is precisely where courts and 82 Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (n 26) 21–5, paras 53–69; for valid criticism of the reasoning adopted by ITLOS see, for example, T Ruys and A Soete, ‘“Creeping” Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea’ (2016) 29 LJIL 155; M Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (2016) 29 LJIL 441. 83 For various considerations relating to the exercise of ITLOS’s advisory competence see, for example, SW De Herdt and TM Ndiaye, ‘The International Tribunal for the Law of the Sea and the Protection and Preservation of the Marine Environment: Taking Stock and Prospects’ (2019) 57 Canadian YBIL 353, 367 ff. 84 Fisheries Jurisdiction (United Kingdom v Iceland) (Merits) (Judgment) [1974] ICJ Rep 3, 23–4, para 53; see also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 237, para 18 (the Court ‘states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend’). 85 J Pauwelyn and M Elsig, ‘The Politics of Treaty Interpretation’ in JL Dunoff and MA Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations (CUP 2012) 449–68; O Jensen, ‘General Introduction’ in O Jensen (ed), The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals (Edward Elgar Publishing 2020) 9. 86 Jensen (n 85) 7.

Dispute settlement and ocean governance   89 tribunals, seized with concrete disputes and fact patterns, can play a role in clarifying the law and ensuring that UNCLOS as a key component of the regime of ocean governance continues to develop to meet new challenges.

PART II THE BLUE PLANET

6. The International Convention for the Prevention of Pollution from Ships (MARPOL) Malgosia Fitzmaurice

1. INTRODUCTION About 11 billion tons of goods are transported by ship each year. This represents 1.5 tons per person based on the current global population,1 which accounts for over 95 per cent of world trade,2 which is considered to be the most environmentally friendly form of transport.3 The popular view is that ‘the shipping industry is responsible for a significant proportion of the global climate change problem. More than three percent of global carbon dioxide emissions can be attributed to ocean-going ships’.4 However, this contentious area of shipping is constantly undergoing major changes. Since 1 January 2015, Annex VI (prevention of air pollution from ships) has established a sulphur limit of 0.10 per cent for ships operating in so-called Emission Control Areas (ECA), in the North Sea, the Baltic Sea, designated areas off the United States (US) and Canada, and the US Caribbean Sea. In 2016, a new deadline, of 1 January 2020 was set for the regulations to come into effect for ships sailing in areas outside the designated ECAs. The limit for the sulphur content of ship’s fuel oil, which was 3.5 per cent mass by mass until 31 December 2019, was to be reduced to 0.50 per cent mass by mass. Meanwhile, a new low sulphur fuel has been tried, using cooking oil.5 We also know that due to the International Convention for the Prevention of Pollution from Ships (MARPOL),6 oil spills account for just 12 per cent of the oil in our oceans. Three times as much oil is carried out to sea via runoff from our roads, rivers and drainpipes.7 1 See International Chamber of Shipping, ‘Shipping and World Trade: Driving Prosperity’, https://​ www​.ics​-shipping​.org/​shipping​-fact/​shipping​-and​-world​-trade​-driving​-prosperity/​, accessed 5 February 2021; World Economic Forum, ‘Here’s How We can Reduce Emissions from the Shipping Industry’, https:// ​ w ww ​ . weforum ​ . org/ ​ a genda/ ​ 2 020/ ​ 1 0/ ​ s hipping ​ - industry ​ - carbon ​ - emissions ​ - climate ​ - change​ -environment​-ocean/​, accessed 5 February 2021; and A Michaelowa and K Krause, ‘International Maritime Transport and Climate Policy’ (2000) 35 Intereconomics 127, 128. 2 Michaelowa and Krause (n 1) 128. 3 See Oceana, ‘Shipping Pollution’, https://​europe​.oceana​.org/​en/​shipping​-pollution​-1, accessed 5 February 2021. 4 ibid. 5 RM van Pallandt, ‘Pollution from Ships and Protection of the Environment: The IMO, MARPOL and Cooking Oil’ (Prospect Law, 19 February 2020), https://​prospectlaw​.co​.uk/​pollution​-from​-ships​-and​ -protection​-of​-the​-environment​-the​-imo​-marpol​-and​-cooking​-oil/​, accessed 5 February 2021. 6 (adopted 2 November 1973, entered into force 12 October 1983) 1340 UNTS 184. See further MS Karim, Prevention of Pollution of the Marine Environment from Vessels: The Potential and Limits of the Maritime International Organization (Springer International Publishing 2015), in particular ch 3. 7 Conservation International, ‘Ocean Pollution: 11 Facts You Need to Know’, https://​ www​ .conservation​.org/​stories/​ocean​-pollution​-11​-facts​-you​-need​-to​-know, accessed 5 February 2021.

91

92  Research handbook on ocean governance law Shipping contributes to a limited extent to marine pollution from human activities, in particular when compared to pollution from land-based sources.8 Protection of the environment was not the International Maritime Organization’s (IMO) original mandate. Its main interest was maritime safety. The IMO’s activities in the area of marine environmental protection started in 1954 when the Organization became the depository of the first International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL),9 which only related to pollution caused by tankers during their routine operations such as the washing of cargo tanks of resultant oily water in the ocean.10 OILPOL was amended several times but was very limited as it only covered one source of pollution. At present, the protection of the marine environment constitutes a significant part of the IMO’s functions. The body whose function is protection of the marine environment is the Marine Environment Protection Committee (MEPC).11 One of the factors which contributed to the adoption of MARPOL was the Torrey Canyon incident. The conference which adopted MARPOL was convened in October–November 1973, but preparatory meetings began in 1970. It incorporated much of OILPOL and its amendments into Annex I, which has broadened and improved OILPOL covering oil, while other Annexes covered chemicals (Annex II), harmful substances carried in packaged form (Annex III), sewage (Annex IV), and garbage (Annex V). A Protocol was later adopted in 1997 to amend MARPOL and a new Annex VI on Air Pollution was added which entered into force on 19 May 2005. MARPOL has established a number of ‘Special Areas’ in which more stringent discharge standards were applicable. Standards relating to Special Areas would be implemented when the coastal States concerned had provided adequate reception facilities for dirty ballast and other oily residues. However, the slow progress at ratifying the Convention has become a major concern.12 The International Conference on Tanker Safety and Pollution Prevention, convened in February 1978, adopted a Protocol to the 1973 MARPOL. It absorbed the 1973 Convention and expanded on the requirements for tankers to help make them less likely to pollute the marine environment.13 It may be said that MARPOL is a very robust and dynamic Convention responding quickly to changes in the world’s environment. An example of this is the response of MARPOL to climate change and greenhouse gases. At the same time, additional measures for tanker safety were incorporated into the 1978 Protocol to the 1974 International Convention for the Safety

8 See IMO, ‘Marine Environment’, https://​www​.imo​.org/​en/​OurWork/​Environment/​Pages/​Default​ .aspx, accessed 16 January 2021. See generally on MARPOL and Annex 1; M Szepes, ‘MARPOL 73/78: The Challenges of Regulating Vessel-Source Oil Pollution’ (2013) 2 Manchester Student Law Review 74, 74–109. See generally on vessel source pollution; A Khee-Jin Tan, Vessel-Source Marine Pollution: The Law and Politics of International Regulation (CUP 2005); Karim (n 6). 9 (adopted 12 May 1954, entered into force 26 July 1958) 327 UNTS 3; see further JV Crayford, ‘Forthcoming Changes to the International Convention for the Prevention of Pollution from Ships’ in MH Nordquist and JN Moore (eds), Current Maritime Issues and the International Maritime Organization (Kluwer Law International/Martinus Njihoff Publishers 1999) 133. 10 OILPOL was the first international Treaty that attempted to protect the sea from pollution from oil tankers. 11 A Chircop, ‘The IMO’s Work on Environmental Protection and Global Ocean Governance’ in DJ Attard (ed), The IMLI Treatise on Ocean Global Governance Volume III: IMO and Global Ocean Governance (OUP 2018) 176. 12 Crayford (n 9) 135. 13 See on MARPOL in general: Karim (n 6).

The International Convention for the Prevention of Pollution from Ships (MARPOL)  93 of Life at Sea (SOLAS).14 Further amendments to MARPOL, particularly to Annex I, were developed in response to major oil spills which indicated the necessity for stricter regulations, such as the 1989 Exxon Valdez, the 1999 Erika, and the 2002 Prestige incidents. Due to these incidents the IMO introduced mandatory double hulls for tankers and the subsequent phasing out of single-hull tankers. The MEPC agreed to make mandatory double hulls or alternative designs (Regulation 19) for prevention of oil pollution in the event of collision or stranding. The sinking of the Erika accelerated the phase out schedule for single-hull tankers, that is, it resulted in the revision of the old Regulation 13G of MARPOL. It is recognized that MARPOL has eliminated most operational discharges and has led to safer vessels, with a notable decrease of oil spills from 50 years ago. There is a response in place to address occasional spills.15 As a result of the Erika incident, the IMO also adopted the following measures in response: 1. the 2000 amendments raising by 50 per cent the limits of compensation payable to victims of pollution by oil from oil tankers under the International Convention on Civil Liability for Oil Pollution Damage16 (CLC Convention) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage17 (IOPC Fund) were adopted; 2. in 2000, the Maritime Safety Committee (MSC) adopted amendments to the Guidelines on the Enhanced Programme of Inspections During Surveys of Bulk Carriers and Oil Tankers (Resolution A.744(18) in relation to the evaluation of the longitudinal strength of the hull girders of oil tankers); 3. other measures aimed at enhancing safety and minimizing the risk of oil pollution. The Prestige incident led to further amendments to the phase out schedule for single-hull tankers.18 It may be added that the standard setting by the IMO is based on the principle of non-discrimination, but with the application of the principle of common but differentiated responsibilities to developing States through means of technical and financial assistance.19 The process of standard setting by the IMO is based on an ongoing evaluation of standards to combat pollution from ships. Amendments to Annexes are done through the tacit acceptance procedure, in order to speed up the procedure to respond to changing conditions.20

(adopted 1 November 1974, entered into force 25 May 1980) 1184 UNTS 3; see Crayford (n 9) 136. 15 RC Prince, ‘Oil Pollution from Operations and Shipwrecks’ in S de Mora and others (eds), Environmental Impact of Ships (CUP 2020) 68. 16 (adopted 29 November, entered into force 19 June 1975) replaced by 1992 Protocol (adopted 27 November 1992, entered into force 30 May 1996) 973 UNTS 3. 17 (adopted 27 November 1992, entered into force 30 May 1996) 1953 UNTS 330. 18 See IMO, ‘Tanker Safety: Preventing Accidental Pollution’, https://​www​.imo​.org/​en/​OurWork/​ Safety/​Pages/​OilTankers​.aspx, accessed 16 January 2021 and IMO, ‘MARPOL Annex I: Prevention of Pollution by Oil’, https://​www​.imo​.org/​en/​OurWork/​Environment/​Pages/​OilPollution​-Default​.aspx, accessed 16 January 2021. To date, MARPOL (Anxs I and II) has been ratified by 150 countries representing over 99 per cent of world merchant-shipping tonnage. 19 J Harrison, Saving Ocean through Law: The International Legal Framework or the Protection of the Marine Environment (OUP 2017) 219. 20 ibid 119. 14

94  Research handbook on ocean governance law

2.

MARPOL: GENERAL STRUCTURE AND UNDERLYING PRINCIPLES

2.1

General Structure

As the main international instrument which deals with pollution from operational and accidental spillages from ships (Annexes I and II regulate only operational spillages), MARPOL is a multilateral Convention whose Parties constitute 98 per cent of the world’s merchant tonnage. As of 16 January 2021, there are 159 States Parties (the combined merchant fleets of which constitute approximately 98 per cent of the gross tonnage of the world’s merchant fleet).21 MARPOL covers a multitude of instruments. It consists of an ‘umbrella Convention’ (which sets out the main rights and obligations of States) and six Annexes, which cover the areas under MARPOL’s jurisdiction. All Annexes have been amended several times, therefore their content has undergone radical changes. However, not all States Parties have accepted all amendments, which has resulted in an extremely complex nexus of differentiated obligations of States under these Annexes. The Convention as a global instrument comprises ‘generally accepted international rules and standards’ as formulated in Article 211 of the United Nations Convention on the Law of the Sea22 (UNCLOS). These rules and standards constitute the minimum standards prescribed by flag States for merchant ships and also adopted by third States not Parties to MARPOL.23 It may be presumed that the criterion of the minimum standard is applicable to the umbrella Treaty itself and the two first Annexes (acceptance of which was mandatory for States ratifying MARPOL). The acceptance of other Annexes is not so extensive.24 Apart from Annexes, MARPOL has also two Protocols: Protocol I, Provisions concerning Reports on Incidents Involving Harmful Substances (in accordance with Article 8 of the Convention); and Protocol II, on Arbitration. The amendments to MARPOL itself, the Protocols, and the Annexes are governed by Article 16 of the 1973 original Convention, which is very complex and combines the system of tacit approval (opting out) with express approval (opting in). The above-mentioned tacit acceptance system is based on the principle that a State Party to the Convention may ‘opt out’ from accepting a new amendment within a prescribed period of time, and as a result is not bound by it. The procedure has resulted in a patchy application of the Convention (including Annexes) and it complicates the issue of whether some particular regulations are ‘generally accepted’ for the flag State to apply in the sense of Article 211 of UNCLOS. Under MARPOL, the Parties undertake to give effect to the provisions of the Convention and those Annexes which bind them, in order to prevent pollution of the marine environment by the discharge of harmful substances or effluents containing such substances in contravention of the Convention.25

IMO, ‘Status of Treaties’, (2021), https://​wwwcdn​.imo​.org/​localresources/​en/​About/​Conventions/​ StatusOfConventions/​StatusOfTreaties​.pdf, accessed 16 January 20121. 22 (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 23 A Boyle and C Redgwell, International Law and the Environment (4th edn, OUP 2021), 514. 24 Anx III entered into force on 1 July 1992; Anx IV entered into force on 27 September 2003; Anx V entered into force on 31 December 1988; Anx VI entered into force on 19 May 2005. 25 MARPOL, Art 1(1). 21

The International Convention for the Prevention of Pollution from Ships (MARPOL)  95 Article 4 of MARPOL provides a double system of national prohibitions and sanctions. First, violations are to be prohibited and sanctions to be established under the law of the Administration of the ship concerned, wherever the violation occurs.26 Secondly, violations are to be prohibited and sanctions established under the law of the Party within whose jurisdiction they occur.27 According to MARPOL, the flag State has to ensure that its ships comply with all the required technical standards. In order to achieve this end, the State has to conduct inspections and issues an ‘international oil pollution prevention certificate’. Article 5 of the Convention introduced the far-reaching jurisdiction of the port State. It provides that an inspection must be carried out to confirm that the ship is in possession of a valid certificate to assess the condition of the ship when there are ‘clear grounds’ for believing that its condition does not conform substantially to the certificate.28 In cases of stated non-compliance with the MARPOL certificate, Article 7 imposes a duty upon the port State not to allow the ship to leave port, unless it can do so without presenting an unreasonable threat or harm to the marine environment. However, the port State has an obligation not to delay ships unduly. In the event of such violation, within the jurisdiction of a Party, according to Article 4(2), a Party can either start proceedings in accordance with its own law, or furnish such information and evidence as it may have in its possession that violation has occurred to the Administration of the ship concerned.29 Article 4(1) further provides that, if the Administration of the ship involved in a violation is informed of it and is satisfied that sufficient evidence is available to enable proceedings to be brought, that Administration shall initiate such proceedings as soon as possible, in accordance with its law. It may also be noted that ‘any violation’ in Article 4(2) means that it applies to operational and discharge standards, as well as to design and equipment standards of the Convention. MARPOL provides that the Parties to the Convention ‘shall cooperate in the detection of violations and the enforcement of the provisions of the Convention, using all appropriate and practicable measures of detection and environmental monitoring, adequate procedures for reporting and accumulation of evidence’.30 Further, it states: any Party shall furnish to the Administration evidence, if any, that the ship has discharged harmful substances or effluents containing such substances in violation of the provisions or the Regulations. If it is practicable to do so, the competent authority of the former party shall notify the master of the ship of the alleged violation.31

Parties have the duty to furnish the Administration with information on the discharge of harmful substances or effluents. Upon the receipt of such evidence, the Administration so informed is to investigate the matter and may request the other Party to furnish further better evidence of the alleged contravention. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be taken in accordance with its law, it shall do so as soon as possible. The Administration shall promptly inform the Party which has reported the alleged

ibid Art 4(1). ibid Art 4(2). 28 R Becker, ‘MARPOL 73/78: An Overview in International Environmental Enforcement’ (1998) 19 The Georgetown Int’l Envt’l Law Review 625. 29 MARPOL, Art 4(2a–b). 30 ibid Art 6(1). 31 ibid Art 6(3). 26 27

96  Research handbook on ocean governance law violation, as well as the IMO, of such actions.32 Article 4(4) stipulates that the Parties shall adopt laws giving effect to agreed regulations by prohibiting prescribed acts and omissions and by specifying penalties under their domestic laws which are ‘adequate in severity to discourage violations’. The Convention imposes a general prohibition of all discharges of oil and noxious substances and provides that sanctions shall be established according to the law of the State under whose authority the ship is operating.33 These penalties ‘shall be adequate in order to discourage violation and shall be equally severe irrespective of where the violations occurred’.34 Although the nature of these sanctions is not unquestionably and clearly affirmed, it has to be assumed that these also include criminal sanctions applied in the context of criminal proceedings. For instance, in the US, MARPOL is implemented through the Act to Prevent Pollution from Ships,35 which establishes that the knowing violation of the Convention, of the Act itself, or of other regulations relating to wastes from ships, including garbage, oil, and hazardous substances, shall be sanctioned with imprisonment up to ten years and/or fines.36 MARPOL excludes from its obligations any warship, naval auxiliary, or other ship owned or operated by a State and used on government non-commercial service.37 However, the Convention imposes an obligation on these ships to act in a manner consistent with the Convention, as long as it is practicable. As it is evident that national governments and their agencies are quite prodigious polluters, provision excluding such entities undermines the purpose of MARPOL, and the insertion of the ‘best effort clause’ constitutes a weak attempt to ensure State compliance. The ‘best effort clause’ was the result of a compromise among the Parties to MARPOL.38 Negotiating States had argued that such vessels should not be subject to other States’ inspection, as it would compromise national security. However, it is suggested that States can comply with the requirements of the Convention avoiding compromising national security, by assuming more responsibility for monitoring compliance (e.g. flag States could conduct an annual MARPOL inspection of their ships, or introduce a random inspection to which their ships would be subjected at any time). The existing provision appears to send a wrong message and should be changed to make it clear that these ships are immune from MARPOL Regulations.39 With respect to the ships of non-parties to MARPOL Article 5 provides that Parties are to apply such requirements as may be necessary to ensure that no more favourable treatment is given to such ships. The measures under Article 5 are the source of some doctrinal controversy in so far as they purport to apply to ships flying the flag of non-parties. As an exercise of jurisdiction of the coastal State over foreign ships, these provisions cannot, according to one

ibid Art 6(4). ibid Art 4. 34 ibid. 35 Act to Prevent Pollution from Ships, 33 USC 1901 et seq. 36 See 18 USC 3571. 37 MARPOL, Art 3(3). 38 DW Abecassis and others (eds), Oil Pollution from Ships: International, United Kingdom and United States Law and Practice (Stevens 1985) 38. 39 ibid. 32 33

The International Convention for the Prevention of Pollution from Ships (MARPOL)  97 author, restrict the rights enjoyed by non-parties under the general international law principle of pacta tertiis nec nocent nec prosunt.40 MARPOL, although very far-reaching in protecting the environment and innovative in enforcing environmental regulations, does not include an express provision on the precautionary principle. However, the MEPC adopted, on 15 September 1995, a Resolution on Guidelines on the Incorporation of the Precautionary Approach in the Context of Specific IMO Activities.41 The inherent vagueness of ‘scientific uncertainty’ and the risk of long-term irreversible adverse effects on the environment are counterbalanced by the presence of the environmental impact assessment, the duty to inform, and the use of the best available technology and best environmental practice (BATBEP), which are the most tangible constitutive elements of this approach.

3.

MARPOL ANNEXES

3.1

Annex I: Prevention of Pollution by Oil

Oil tankers transport some 2400 million tons of crude oil and oil products around the world safely,42 due to measures introduced by the IMO ensuring that the majority of oil tankers are safely built and operated and that they are constructed in a manner to reduce the amount of oil spilled in the event of an accident. The technical designs of vessels are very strict. The rule in equipping new vessels with Segregated Ballast Tanks (SBT) is designed to eliminate the problem of discharging oily ballast as there are separate holds for water and oil. The cheaper variation of SBT is the Dedicated Clean Ballast Tanks (CBT) system, which operates on the basis of setting aside cargo tanks only for carrying ballast water. This system can be as effective as SBTs but only if the tanks are kept clean of oil.43 There is also the Crude Oil Washings (COW) system, which is based on a use of oil in place of water to clean off the walls of cargo tanks. These two systems were permitted by Annex I for older vessels (Annex I is based on a sliding scale). Apart from the requirement of SBTs, Annex I requires all vessels to have the equipment necessary to operate load on top (LOT), the purpose of which is the collection and settling on board of the water and oil mixtures that emanate from ballasting and tank operations and to retain oily residues on board vessel until they can be discharged into port reception facilities. There is a requirement for State Parties to MARPOL to provide adequate reception facilities for oil residues and oily mixtures at loading terminals, repair ports, and other ports frequented by ships with oily residues to discharge.44 Annex I also requires ships to be equipped with systems that can monitor and control oily discharges. All oil record books must be kept for at least three years. According to the IMO there are three categories of cargo monitoring systems: control units, computing units, and cal-

J Willisch, State Responsibility for Technological Damage in International Law (Decker and Humbolt 1987) 115. 41 Anx 10, MEPC 37/22, Add 1. 42 See IMO, ‘MARPOL Annex I: Prevention of Pollution by Oil’ (n 18). 43 A Griffin, ‘MARPOL 73/78 and Vessel Source Pollution: A Glass Half Full or Half Empty? (1994) 1 Indiana Journal of Global Studies 489, 493. 44 Anx I, Reg 12, 1350–56; Griffin (n 43) 499. 40

98  Research handbook on ocean governance law culating units.45 As in the case of SBTs, the monitoring equipment is based on a sliding scale: new tankers are obliged to have it installed.46 Annex I also includes operational requirements, which must be monitored by equipment for this purpose. All ships must carry on board an oil record book in which all operations involving oil are recorded. This book may be inspected by authorities of any State Party to MARPOL.47 Following the Prestige incident, a new, stricter timetable introduced an accelerated phase out schedule for single-hull tankers, adopted by the Resolution MEPC 111(50) and entered into force for all Parties to MARPOL in 2005. Furthermore, another Regulation related to the prevention of oil pollution from oil tankers regarding carrying of heavy grade oil (HGO) was introduced.48 A Party to MARPOL can deny entry of single-hull tankers, which have been allowed to continue operation under the above exemptions, into the ports or offshore terminals under its jurisdiction. 3.2

Annex II: Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk

International norms governing the carriage of chemicals by ships are also contained in SOLAS. The marine pollution hazards of thousands of chemicals have been assessed by the Evaluation of Hazardous Substances Working Group, giving a resultant Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) Hazard Profile, which indexes the substances taking into account their bio-accumulation, bio-degradation, acute toxicity, chronic toxicity, long-term health effects, and effects on marine wildlife and on benthic habitats. According to standards prescribed by both Conventions, chemical tankers built after 1 July 1986 have to comply with the International Bulk Chemical Code (IBC Code). It prescribes international standards for the safe transport by sea in bulk of liquid dangerous chemicals, through the design and construction standards of ships involved in such transport and the equipment they should carry. These measures are designed to minimize the risks to the ship, its crew, and to the environment, having regard to the nature of the products carried. Amendments to the IBC Code have been adopted, which resulted in the amendments to MARPOL Annex II. Ships constructed after 1986 carrying substances identified in Chapter 17 of the IBC Code must follow the requirements for design, construction, equipment, and operation of ships contained in the Code.49 The Annex II Regulations for the control of pollution by noxious liquid substances in bulk define a four-category classification system for noxious and liquid substances.50 Griffin (n 43) 497. ibid 498. 47 Anx I, Reg 20, 1359–61; Griffin (n 43) 499. 48 The new Regulation banned the carriage of HGO in single-hull tankers of 5000 tons dwt and above after the date of entry into force of the Regulation (5 April 2005), and in single-hull oil tankers of 600 tons dwt and above but less than 5000 tons dwt, not later than the anniversary of their delivery date in 2008. 49 All information available at: IMO, ‘Carriage of Chemicals by Ship’, https://​www​.imo​.org/​en/​ OurWork/​Environment/​Pages/​ChemicalPollution​-Default​.aspx, accessed 16 January 2021. 50 An MEPC Resolution on Guidelines for the transport of vegetable oils in deep tanks or in independent tanks specially designed for the carriage of such vegetable oils onboard dry cargo ships was adopted in October 2004. It allows general dry cargo ships that are currently certified to carry vegetable oil in bulk to continue to carry these vegetable oils on specific trades. The Guidelines took effect on 1 January 2007. See IMO, ‘Carriage of Chemicals by Ship’ (n 49). 45 46

The International Convention for the Prevention of Pollution from Ships (MARPOL)  99 3.3

Annex III: Regulations for the Prevention of Pollution by Harmful Substances in Packaged Form

MARPOL Annex III includes the Regulations for the prevention of pollution by harmful substances in packaged form and includes general requirements for the issuance of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions, and notifications for preventing pollution by harmful substances. Chemicals which are carried in packaged form, in solid form, or in bulk are also regulated by Part A of SOLAS Chapter VII – Carriage of dangerous goods, which includes provisions for the classification, packing, marking, labelling and placarding, documentation, and stowage of dangerous goods. The Parties to the Convention are required to issue instructions at the national level. The Chapter refers to the International Maritime Dangerous Goods Code (the IMDG Code) developed by the IMO, which is constantly updated to accommodate new dangerous goods and to supplement or revise existing provisions. The IMDG Code was developed as a uniform international code for the transport of dangerous goods by sea (it deals with such matters as packing, container traffic, and stowage, with particular reference to the segregation of incompatible substances). The IMDG Code includes products considered to be marine pollutants. The IMO’s MSC decided in principle, at its seventy-third session in 2000, to make some parts of the IMDG Code mandatory.51 For the purpose of Annex III, ‘harmful substances’ are those identified as ‘marine pollutants’ in the IMDG Code.52 3.4

Annex IV: Sewage

This Annex contains the Regulations regarding the discharge of sewage into the sea, ships’ equipment and systems for the control of sewage discharge, the provision of facilities at ports and terminals for the reception of sewage, and requirements for survey and certification. It also includes a model International Sewage Pollution Prevention Certificate to be issued by national shipping administrations to ships under their jurisdiction.53 The general principle is that on the high seas, the oceans are capable of assimilating and dealing with raw sewage through natural bacterial action, and therefore the Regulations in Annex IV of MARPOL address discharging sewage within a specific distance of the nearest land, unless they have in operation an approved treatment plan. Governments are required to ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage. The discharge of sewage into the sea is prohibited, except when the ship in operation has an approved sewage treatment plant or is discharging comminuted and disinfected sewage using an approved system at a distance of more than three nautical miles from the nearest land, or is discharging sewage which is not comminuted or disinfected at a distance of more than 12 nautical miles from the nearest land. The MEPC, by Resolution 159 at its fifty-fifth session in 2006 adopted

ibid. ibid. 53 All information from IMO, ‘Prevention of Pollution by Sewage from Ships’, https://​www​.imo​.org/​ en/​OurWork/​Environment/​Pages/​Sewage​-Default​.aspx, accessed 16 January 2021. This Anx entered into force in 2003. A revised Anx was adopted on 1 April 2004, with an entry into force date of 1 August 2005. 51 52

100  Research handbook on ocean governance law revised Guidelines on Implementation of Effluent Standards and Performance Tests of Sewage Treatment Plants. 3.5

Annex V: Garbage

Garbage poses a danger to marine life as much as oil or chemicals.54 In particular, plastic is dangerous as it can last for years. Fish, birds, and marine mammals can in some cases mistake plastics for food and they can also become trapped in plastic ropes, nets, bags, and other items, even such innocuous items as the plastic rings used to hold cans of beer and drinks together. Rubbish may come from land, from people littering and dumping on the shore as well as from cities that dump rubbish into rivers or the sea. However, in some areas most of the rubbish found comes from ships. The process of degradation can take months or years.55 MARPOL sought to eliminate and reduce the amount of garbage being dumped into the sea from ships in its Annex V. Garbage includes: 1. all kinds of food; 2. domestic and operational waste, excluding fresh fish, generated during the normal operation of the vessel and liable to be disposed of continuously or periodically. Annex V totally prohibits the disposal of plastics anywhere into the sea, and severely restricts discharges of other garbage from ships into coastal waters and the above-mentioned Special Areas. The Parties to the Annex have the duty to ensure the provision of reception facilities at ports and terminals for the reception of garbage. The Regulations concerning garbage management are very strict. The revised Annex V now generally prohibits the discharge of all garbage into the sea, except as provided otherwise in Regulations 4, 5, and 6 of the Annex, which are related to food waste, cargo residue, cleaning agents and additives, and animal carcasses. Excluded from garbage are: fresh fish and parts thereof, generated as a result of fishing activities undertaken during the voyage, or as a result of aquaculture activities. It appears, however, that there is still insufficient understanding of the importance of not using oceans for disposing of garbage. Despite the entry into force of Annex V in 1998, even recent surveys carried out in the US each year have produced up to 10 tons of garbage per mile of coastline.56

54 See IMO, ‘Prevention of Garbage from Ships’, https://​www​.imo​.org/​en/​OurWork/​Environment/​ Pages/​Garbage​-Default​.aspx, accessed 16 January 2021. 55 For e.g. paper bus ticket 2–4 weeks; cotton cloth 1–5 months; rope 3–14 months; woollen cloth 1 year; painted wood 13 years; tin can 100 years; aluminium can 200–500 years; plastic bottle 450 years. See ibid. 56 United States Environmental Protection Agency, ‘Overview: Facts and Figures on Materials, Wastes and Recycling’, https://​www​.epa​.gov/​facts​-and​-figures​-about​-materials​-waste​-and​-recycling/​ national​-overview​-facts​-and​-figures​-materials, accessed 5 February 2021.

The International Convention for the Prevention of Pollution from Ships (MARPOL)  101 3.6

Annex VI: Regulations for the Prevention of Air Pollution from Ships

This Annex was added in 1997 in order to deal with local and global air pollution and environmental problems, and to minimize emissions from ships (Sox – sulphur oxides, NOx – nitrogen oxides, ODS – ozone depleting substances, VOC – volatile organic compounds).57 In 2007, international shipping was estimated to have contributed about 2.7 per cent to the global emissions of carbon dioxide (CO2).58 MARPOL Annex VI prohibits deliberate emissions of ozone-depleting substances. It also regulates shipboard incineration, and the emissions of volatile organic compounds from tankers.59 Annex VI comprises five chapters within which there are 26 regulations arranged. Chapter 1 refers to the definitions and the final application of the rules. Chapter 2 provides guidance for the necessary surveys, certification, and means of control. Chapter 3 is devoted to requirements on limits and control mechanisms for all emissions from ships except CO2, which is covered by Chapter 4 and its operational and technical energy efficiency measures. Chapter 5 outlines verification of compliance with the provisions of Annex VI during audits. There are ten appendices to Annex VI and 30 various continually developing guidelines providing for the smooth and uniform implementation of the regulations by flag State Administrations and other relevant shipping industry stakeholders.60 The current Annex VI Regulations control and limit the following main areas: (a) emissions of ODS from refrigeration plants and fire-fighting equipment (Regulation 12); (b) NOx emissions from marine diesel engines (Regulation 13); (c) SOx emissions from ships (Regulation 14); (d) VOC emissions from oil tankers’ cargo tanks (Regulation 15) − Shipboard incinerators emissions (Regulation 16); (e) marine fuels quality (Regulation 18); and (f) energy efficiency of ships (Chapter 4).61 The stricter amendments of Annex VI consist of a progressive reduction globally in emission of SOx, NOx, and particulate matter (PM) and the introduction of ECAs to reduce emissions of those air pollutants further in designated sea areas.62 There are currently four 57 Anx VI was adopted in 1997 and entered into force on 19 May 2005. A revised Anx VI with stricter emissions limits was adopted in October 2008 which entered into force on 1 July 2010. See L Čampara and others, ‘Overview of MARPOL ANNEX VI Regulations for Prevention of Air Pollution from Marine Diesel Engines’ (2018) 58 SHS Web of Conferences 01004, https://​www​.shs​-conferences​ .org/​articles/​shsconf/​abs/​2018/​19/​shsconf​_globmar2018​_01004/​shsconf​_globmar2018​_01004​.html, accessed 18 December 2019. 58 IMO, ‘Air Pollution, Energy Efficiency and Greenhouse Gas Emissions’, https://​www​.imo​.org/​en/​ OurWork/​Environment/​Pages/​AirPollution​-Default​.aspx, accessed 4 February 2020. 59 All information from ibid. 60 Čampara and others (n 57) 3. 61 ibid 3. 62 Under the revised MARPOL Anx VI, the global sulphur cap is reduced initially to 3.50 per cent (from the current 4.50 per cent), effective 1 January 2012; then progressively to 0.50 per cent, effective from 1 January 2020, subject to a feasibility review to be completed no later than 2018. The limits applicable in ECAs for SOx and PM were reduced to 1.00 per cent, beginning on 1 July 2012 (from the original 1.50 per cent); being further reduced to 0.10 per cent, effective 1 January 2015. Progressive reductions in NOx emissions from marine diesel engines installed on ships are also included, with a ‘Tier II’ emission limit for engines installed on or after 1 January 2011; then with a more stringent ‘Tier III’ emission limit for engines installed on or after 1 January 2016 operating in ECAs. Marine diesel engines installed on or after 1 January 1990 but prior to 1 January 2000 are required to comply with ‘Tier I’ emission limits, if an approved method for that engine has been certified by an Administration. Effective from 1 January 2015, MARPOL will set a further reduction on the marine fuel sulphur cap of 0.10 per cent in

102  Research handbook on ocean governance law designated ECAs: the Baltic Sea ECA is defined in MARPOL Annex I, while the North Sea ECA is defined in Annex V. The North American and US Caribbean Sea ECAs are detailed in Appendix VII to Annex VI (16, 20, and 27). The North American and US Caribbean Sea ECAs cover SOx and PM while European ECAs relate only to SOx emissions.63 The revised NOx Technical Code 2008 includes a new chapter based on the agreed approach for regulation of existing (pre-2000) engines established in MARPOL Annex VI, provisions for a direct measurement and monitoring method, a certification procedure for existing engines, and test cycles to be applied to Tier II and Tier III engines. Revisions to the Regulations for ozone-depleting substances, volatile organic compounds, shipboard incineration, reception facilities and fuel oil quality have been made, with the addition of regulation on fuel oil availability. Shipowners indeed have to accept that stricter and stringent rules on emissions of atmosphere pollutants from ships are a necessity. They represent important preconditions and obligations to the international maritime industry to be adhered to.64

4.

MARPOL SPECIAL AREAS AND PARTICULARLY SENSITIVE AREAS

At the outset, Marine Protected Areas (MPAs)65 are also recognized under the regime of UNCLOS, specifically under Article 211. However, it has been observed that the right of States to establish such areas on the high seas is far from clear.66 The IMO has the competence regarding international shipping in such areas; but on the other hand, the debate is pending on the status of such areas in the forum of the United Nations’ Open Ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS).67 The issue of MPAs was discussed at this forum, however, there is still no clear set of conditions or modalities on how to establish such areas.68 There are certain regional treaties like the Convention for the Protection of the Marine Environment of the North-East Atlantic69 (OSPAR) that have established MPAs on the high seas.70 The new Implementation Agreement to UNCLOS on Biological Diversity

the Northern European Sulphur Emissions Control Areas (SECAs) comprising the English Channel, the Baltic Sea and the North Sea. 63 Čampara and others (n 57) 7. 64 ibid 9. 65 See Part II, Chapter 10, ‘Conservation of Living Marine Resources’ by E Kazara-Belja and Part III, Chapter 13, ‘The Interaction between an Agreement on Biodiversity Beyond National Jurisdiction and the Law of the Sea’, Part II: ‘Focus on Environmental Impact Assessment and Marine Protected Areas’ by DM Ong. 66 A Gillespie, Protected Areas and International Environmental Law (Martinus Nijhoff 2007) 17; A Gillespie, Conservation, Biodiversity and International Law (Edward Elgar Publishing 2012) 189–91. Sage-Fuller argues that the establishment of Special Areas and Particular Sensitive Areas is an expression of the application of the precautionary principle by the IMO. See B Sage-Fuller, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law (Martinus Nijhoff 2013) 223–41. 67 Gillespie, Conservation, Biodiversity and International Law (n 66) 192. 68 Gillespie, Protected Areas (n 66) 1. 69 (adopted 22 September 1992, entered into force 25 March 1998) 2345 UNTS 67. 70 EJ Molenaar and AG Oude Elferink, ‘Marine Protected Areas in Areas beyond National Jurisdiction: The Pioneering Efforts under the OSPAR Convention’ (2009) 5 Utrecht Law Review 5.

The International Convention for the Prevention of Pollution from Ships (MARPOL)  103 Beyond National Jurisdiction (BBNJ), currently under negotiation, is expected to address the right of States to do so. The second criterion, that is, ecological conditions, is species-related, as it covers: 1. 2. 3. 4.

depleted, threatened, or endangered marine species; areas of high productivity; spawning; breeding or nursery grounds for important marine species; and areas representing migratory routes for marine mammals and sea birds.71

Rare or fragile ecosystems (e.g. coral reef, mangroves, and wetlands) and/or critical habitats for marine resources are also being considered.72 For instance, the US established a national programme to designate certain areas of marine environments as areas of special national significance that warrant heightened care in its National Marine Sanctuaries Act (NMSA). The primary purpose of the law is to protect marine resources and ecosystems, such as coral reefs, sunken historical vessels, or unique habitats, from degradation while facilitating public or private uses compatible with resource protection. In some sanctuaries the discharge of sewage is prohibited in special zones to protect fragile habitats, such as coral. The US authorities also provide for civil penalties for violations of its requirements or the permits issued under it.73 4.1

Special Areas

As noted above, the IMO has jurisdiction to establish Special Areas.74 Special Areas are areas designated in Annexes I (Prevention of pollution by oil), II (Control of pollution by noxious liquid substances), IV (Prevention of pollution by sewage from ships), and V (prevention of pollution by garbage from ships) of MARPOL as marine areas in which, for the reasons relating to their oceanographical and ecological condition and to their sea traffic, the adoption of specially strict mandatory methods for the prevention of sea pollution is required. The oceanographic conditions focus on how vulnerable the ecosystem of a particular area is to

See e.g. in the Arctic International Union for Conservation of Nature (IUCN) Criteria for identifying ecologically important and vulnerable marine areas in the Arctic, https://​www​.iucn​.org/​sites/​dev/​ files/​import/​downloads/​criteria​_​_arctic​_final​.pdf, accessed 7 February 2021. 72 They have also assessed the impact of Anx VI with air quality modelling and used census data to find the populations exposed to emissions from locomotive hubs and from ports; in particular they found that minority populations were two to three times as likely to be exposed to the pollution from ocean-going vessels, and 67 000 people are exposed to ocean-going vessel pollution. The concluded that the combination of Anx VI measures with the ECA will substantially reduce that exposure. See National Environmental Justice Advisory Council Meeting Summary, 27–9 January 2010, https://​www​.epa​.gov/​e​ nvironment​aljustice/​nejac​-public​-meeting​-summary​-january​-27​-29​-2010, accessed 31 August 2022. 73 National Marine Sanctuaries, https://​sanctuaries​.noaa​.gov/​about/​legislation/​, accessed 4 February 2021. Although the NMSA is the primary legislation used to add marine areas to the National Marine Sanctuary System, other laws have been used as well. E.g.: The Florida Keys National Marine Sanctuary and Protection Act (P.L. 101-605) designated Florida Keys National Marine Sanctuary subsuming Key Largo and Looe Key national marine sanctuaries that were designated under the NMSA in 1977 and 1981, respectively. The Hawaiian Islands National Marine Sanctuary and Protection Act (P.L. 102-587) designated Hawaiian Islands Humpback Whale National Marine Sanctuary. The Oceans Act of 1992 (P.L. 102-587) designated Stellwagen Bank National Marine Sanctuary off the coast of Massachusetts. 74 See Section 1. 71

104  Research handbook on ocean governance law possible damage.75 The possible conditions for vulnerability include circulation patterns (such as convergence zones or gyres), temperate and salinity stratification, flushing rates, extreme weather conditions, and the rate of exchange of water, such as the Baltic Sea.76 Annex VI Regulations for the Prevention of Air Pollution from Ships establish certain SOx ECAs with more stringent controls on sulphur emissions. 4.2

Particularly Sensitive Sea Areas (PSSAs)

A Particularly Sensitive Sea Area (PSSA) is an area that needs special protection through action by the IMO because of its significance for recognized ecological or socio-economic or scientific reasons and which may be vulnerable to damage by international maritime activities. An area can be designated as PSSA and at the same time as a Special Area, which is frequent in practice. Guidelines on designating a PSSA are contained in Resolution A.982(24), called ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (PSSAs)’, adopted by the IMO Assembly November–December 2005 at its twenty-fourth session. An area must fulfil a number of criteria to qualify as a PSSA: ecological criteria; social, cultural, and economic criteria, such as significance of the area for recreation or tourism; and scientific and educational criteria, such as biological research or historical value. While dealing with ecological conditions relating to PSSAs, the IMO has endeavoured to distinguish this section from Special Areas77 by including eight possible sub-sets. The additional categories are: 1. 2. 3. 4.

uniqueness; representativity; dependency; productivity; diversity; integrity; vulnerability; and its naturalness; or the degree to which it is submitted to human influence.

These conditions were added in 2001 with the possibility of adding further criteria of critical habitat and bio-geographical importance. A classic example of such a PSSA, fulfilling all criteria, can be the Great Barrier Reef.78 When an area is approved as a PSSA, specific measures can be used to control the maritime activities in that area, such as routing measures, strict application of MARPOL discharge and equipment requirements for ships, such as oil tankers, and the installation of Vessel Traffic Services.79 A PSSA can be protected by ship routing measures, in such an area, within defined

Gillespie, Conservation, Biodiversity and International Law (n 66) 191. ibid 192. 77 See Section 4.1. 78 ibid. 79 The following PSSAs have been designated: the Great Barrier Reef, Australia (designated a PSSA in 1990); the Sabana-Camagüey Archipelago in Cuba (1997); Malpelo Island, Colombia (2002); the sea around the Florida Keys, United States (2002); the Wadden Sea, Denmark, Germany, Netherlands (2002); Paracas National Reserve, Peru (2003); Western European Waters (2004); extension of the existing Great Barrier Reef PSSA to include the Torres Strait (proposed by Australia and Papua New Guinea) (2005); Canary Islands, Spain (2005); the Galapagos Archipelago, Ecuador (2005); the Baltic Sea area, Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005); the Papahānaumokuākea Marine National Monument, United States (2007); the Strait of Bonifacio, France 75 76

The International Convention for the Prevention of Pollution from Ships (MARPOL)  105 limits, in which navigation should be avoided by all ships or by certain classes of ships if it is either particularly hazardous or it is exceptionally important to avoid casualties.

5.

ENFORCEMENT OF MARPOL

In general, flag, coastal, and port States enjoy different types of enforcement jurisdiction over vessels which breach discharge and construction, design, equipment, and manning standards.80 Port States which inspect ships in ports for compliance with certifications obligations may detain ships, prosecute violations, and impose fines or deny ships entry into port. Coastal States are much more limited. In cases of neither port nor coastal States having jurisdiction, it is the flag State which must take action against the vessel in breach. In such cases, coastal and port States will refer the case to the flag State (with information) for further investigation and prosecution. As Tan opines, the major obstacle to successful enforcement of MARPOL was the reluctance of the flag States to institute proceedings against their own flag vessels.81 As Griffin observes, the enforcement of MARPOL can be done in three ways: (a) through ship inspections to ensure that vessels fulfil minimum technical standards; (b) by monitoring ship compliance with discharge standards; and (c) by punishing ships violating the standards.82 The main responsibility of inspections of ships is bestowed on the flag State. MARPOL requires States to conduct inspections or surveys prior to putting the ship into service and when issuing the five-year International Oil Pollution Prevention (IOPP) certificate. At a minimum, a survey must be conducted once every five years. A ship which fails such a survey cannot sail unless it has fulfilled MARPOL standards. One particular feature of MARPOL is the wide scope of the port State’s jurisdiction. The Port State Control (PSC) officers can board the vessel and inspect the ship’s IOPP certificate and the other MARPOL certificates. In case of a lack thereof or if there are ‘clear grounds’ to believe that the condition of the ship, its equipment, or crew does not substantially meet the requirements of the international Convention, the PSC has jurisdiction to conduct the full detailed survey. If the ship, on the other hand, has the IOPP certificate, the PSC has to treat it as its own and issue a ‘clean’ inspection report to the master of the ship.83 Moreover, in the event of ‘clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate’ the PSC has the authority to conduct a complete survey.84 A port State has jurisdiction to take administrative measures to prevent a vessel from leaving, if it has breached international regulations applying to its navigation and if it threatens the marine environment. Inspection can result in detention or temporary arrest of the ship and the inspection report can be forwarded to any State requiring it.85 However, ‘all possible efforts shall be made to avoid a ship being unduly

and Italy (2011). See IMO, ‘Particularly Sensitive Sea Areas’, https://​ www​ .imo​ .org/​ en/​ OurWork/​ Environment/​Pages/​PSSAs​.aspx, accessed 16 January 2021. 80 Khee-Jin Tan (n 8) 239. 81 ibid 239, 240. 82 Griffin (n 43) 489. 83 MARPOL, Art 5 (1). 84 ibid Art 5 (2). 85 MARPOL, Arts 5 and 6; and UNCLOS, Art 219.

106  Research handbook on ocean governance law detained or delayed under Article 4, 5, or 6 of the present Convention, it shall be entitled to compensation for any loss or damage suffered’.86 Monitoring vessels’ discharges constitutes the second element of enforcement under MARPOL.87 All State Parties are required to cooperate in detecting ship violations, through environmental monitoring, reporting, and accumulation of evidence.88 If the State has evidence of MARPOL breaches, it has to submit evidence to the flag State of the responsible ship.89 The breaches of MARPOL on the high seas are very difficult to prove. The best way to detect such a violation is when the ship is docked or in an offshore terminal, as MARPOL gives jurisdiction to the PSC to conduct discharges inspections, through a survey of its oil record book and oil discharge monitoring equipment. The PSC also has the power under MARPOL to check amounts of dirty ballast or oily residues in the slop tank, as evidence of incorrect operational discharge.90 Upon notification of violations of MARPOL by its ship, the flag State must investigate and if the evidence is sufficient, it must start judicial proceedings. It has an obligation to notify the State Party which reported the violation of the action it had taken.91 Penalties must be adequate in severity, in order to discourage breaches of MARPOL notwithstanding where they occur.92 The primacy of the jurisdiction of the flag State in environmental matters is confirmed by Article 228 (1) of UNCLOS, which provides that the proceedings against a foreign ship must be suspended in the event of the flag State instituting proceedings within six months after the original charges were commenced. A flag State has to enforce international rules and standards, irrespective of the place of violation.93 Therefore, in effect a flag State can supersede the port State jurisdiction and dismiss any proceedings brought by that port State.94 Although it is frequently argued that MARPOL’s drawback is its lack of proper enforcement by the flag State, the US is a good example of how the flag State can be quite strict with respect to enforcement, including through the application of criminal penalties. The US became a Party to MARPOL in 2008 and implements the Convention domestically, through the Act to Prevent Pollution from Ships (APPS)95 and to a lesser extent by the Clean Water Act.96 The US implementation of MARPOL is based on the port State jurisdiction, and its jurisdiction covers all vessels in its jurisdictional waters, including the exclusive economic zone. The US has ratified those MARPOL Annexes that meet US standards and has aligned its practice with those Annexes that they have not ratified, because they do not meet US standards. APPS applies to all US flagged ships anywhere in the world, and to all foreign flagged MARPOL, Art 7 (1) and (2). Griffin (n 43) 488–9. 88 MARPOL, Art 6 (1). 89 ibid Art 6 (3). 90 Griffin (n 43) 488–9. 91 MARPOL, Art 6 (4). 92 ibid Art 4 (4). 93 UNCLOS, Art 217. 94 A Rakestraw, ‘Open Oceans and Marine Debris: Solutions for the Ineffective Enforcement of MARPOL Annex V’ (2012) 35 Hastings Int’l & Comp L Rev 392. 95 33 USC 1901 et seq. 96 United States Environmental Protection Agency, ‘Summary of Clean Waters Act’ (2020), https://www.epa.gov/laws-regulations/summary-clean-water-act#:~:text=The%20Clean%20Water%20 Act%20(CWA,quality%20standards%20for%20surface%20waters.&text=%22Clean%20Water%20 Act%22%20became%20the,name%20with%20amendments%20in%201972, accessed 4 February 2021. 86 87

The International Convention for the Prevention of Pollution from Ships (MARPOL)  107 vessels while operating in the navigable waters of the US or while at a port or terminal under its jurisdiction. Furthermore, APPS provides for the violation of MARPOL, the Act itself, or regulations relating to wastes from ships, including garbage, oil, and hazardous substances, and establishes a penalty of imprisonment of not more than ten years and/or fines as set out in 18 USC 3571.97 The US Department of Justice, in conjunction with the Coast Guard and Environmental Protection Agency’s Criminal Investigation Division, has worked on a vessel pollution enforcement initiative, designed to detect, investigate, and prosecute illegal vessel discharges of oily wastes, plastics, and other wastes that are in violation of US environmental laws, including those implementing international treaties such as MARPOL, as well as other related criminal violations.

6. CONCLUSION At the time of its adoption MARPOL, with its five Annexes, was originally designed to be a Convention that would tackle all problems of ship-source pollution. However, in 1997, taking into consideration a different source of pollution from ships, a Protocol was adopted adding Annex VI to the Convention. Two more Conventions (the International Convention for the Control and Management of Ships’ Ballast Water and Sediments98 and the International Convention on the Control of Harmful Anti-fouling Systems on Ships99) were adopted subsequently to form a whole gamut of prevention of all forms of ship-source pollution. MARPOL is generally lauded as a successful Treaty. However, there are still some areas which appear in need of improvement. One such area is the lack of reception facilities for wastes that cannot be discharged while at sea. Regulation 12 of Annex I to the Convention placed the requirement for reception facilities to be available and operational one year from the entry into force of MARPOL Annex I.100 The difficulty in implementing MARPOL is also connected to technological difficulties of monitoring discharges and collecting reliable evidence.101 The most significant obstacle for States is the availability of financial resource to implement MARPOL’s provisions at the domestic level.102 It is suggested that equipment standards are the best tool for compliance, as ‘detention and barring from ports carries a very significant and immediate impact on ship owners. Total avoidance of compliance would result in a vessel being unable to trade in the majority of ports and thus significantly reduce its economic worth’.103 The view has been expressed that penalties for breach of environmental regulation should be realistic to be effective as a deterrent and in order to allow smaller companies to comply. It has been proved that when pushed technology develops and delivers.104

See 33 USC 1908(a). (adopted 13 February 2004, entered into force 8 September 2017) 30 ILM 1455. 99 (adopted 5 October 2001, entered into force 17 September 2008) Can TS 2010 15. 100 Szepes (n 8) 101. 101 ibid 99. 102 ibid 104. 103 Szepes (n 8) 100. 104 S de Mora and others, ‘Shipping, Ships and the Environment’ in S de Mora and others (eds), Environmental Impact of Ships (CUP 2020) 9. 97 98

108  Research handbook on ocean governance law Credit of course should be given to the IMO for its dynamism in responding to the many challenges of the maritime industry, especially for forging consensus on many difficult issues confronting Member States due to the divergent interests of the maritime industry’s stakeholders. The apparent success of MARPOL is very crucial in achieving IMO’s goal for safe, secure, and efficient shipping on clean oceans. As Szepes observes: MARPOL … represents a legitimate international regime’ and though it has faced compliance challenges, it appears that the Parties are intent in complying with MARPOL and ready to do their part to protect the marine environment from vessel-source oil pollution. MARPOL has not yet fully achieved this objective, yet it should be viewed as a successful international regime … which has made a significant difference by empowering states to protect the marine environment and by putting in place a framework by which both global shipping and the marine environment can prosper without one suffering for the benefit of the other.105

As it was said: ‘[w]ith concerted effort and awareness, we have potential to develop the most effective source of mass transport on the globe, allowing for the sustainable development of our planet’.106 Regrettably, while the international mechanism for ship-source pollution is fully in place and has proved to be effective, there is no equivalent international mechanism that can address the land-source pollution which is still today’s main source of coastal marine pollution.

Szepes (n 8) 105–6. De Mora and others (n 104) 9.

105 106

7. Land-based sources of marine pollution and dumping at sea Meagan Wong and Niccolò Lanzoni1

1. INTRODUCTION The oceans are essential for human survival. They are a vital part of the climate system and regulate air, water and temperature. Moreover, oceans are rich in marine resources, living and non-living, and home to an astonishing variety of unique and particularly sensitive ecosystems and biodiversity.2 Indeed, it is generally acknowledged that one of the greatest threats to the health of the oceans comes from marine pollution, that is broadly understood as: the introduction by man, directly or indirectly, of substances or energy into the marine environment (…) which results or is likely to result in (…) harm to living resources and marine life, hazards to human health, hindrance to marine activities (…) impairment of quality for use of sea water and reduction of amenities.3

The interest of the international community in relation to the protection and preservation of oceans arose in the 1950s.4 It is now generally accepted that a rule of customary international law, as also reflected in Article 194(1) of the United Nations Convention on the Law of the Sea (UNCLOS), provides an obligation for States to take, in accordance with their capabilities, ‘all measures (…) that are necessary to prevent, reduce and control pollution of the marine environment from any source’.5 Indeed, the causes and anthropogenic factors giving rise to marine pollution are varied.6 However, its main sources can be broadly classified in two catego­ries:

Dr Meagan Wong is responsible for section 2, Dr Niccolò Lanzoni is responsible for section 3. The Introduction and Conclusion have been written jointly. 2 See further UNGA, ‘Oceans and the Law of the Sea, Report of the Secretary General’ (9 September 2020) UN Doc A/75/340, para 1ff. 3 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS), Art 1(4). 4 The first international legally binding instrument on the protection of the marine environment is the International Convention for the Prevention of Pollution of the Sea by Oil (adopted 12 May 1954, entered into force 26 July 1958) 372 UNTS 3. See also EA Kirk, ‘Science and the International Regulation of Marine Pollution’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 518ff. 5 UNCLOS, Art 194(1), along with the whole Part XII General Section, is widely believed to reflect customary law, see The MOX Plant Case (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Rep 2001 89, [82] and The South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China), PCA Case No 2013-19, Award (12 July 2016), [940]. 6 On this point see R Boelens and PJ Kershaw (eds), Pollution in the Open Oceans 2009–2013 (GESAMP Reports & Studies Series 2015). 1

109

110  Research handbook on ocean governance law land-based sources, which account for approximately 80 per cent of marine pollution,7 and dump­ing at sea, which accounts for a further 10 per cent.8 The present contribution aims to provide an overview of the international regulation, both global and regional, on these two sources of marine pollution.

2.

LAND-BASED SOURCES OF MARINE POLLUTION

2.1 Background Land-based sources of marine pollution include both point sources when pollution is direct (coastal sources, discharging into the sea) and diffuse sources when pollution reaches the sea in an indirect manner (inland sources, discharging into rivers, canals, or other watercourses, including underground watercourses, that end up flowing into the sea, as well as airborne sources, carried via the atmosphere).9 The devastating effects of this type of pollution on marine ecosystems and human health are well known.10 Several notorious incidents, such as the spread of Minamata’s disease in Japan,11 underline the urgent need for the concerted adoption of a comprehensive regulation aimed at reducing the accumulation of pollution at sea.12 Unlike other sources of marine pollution,13 however, the international community has appeared particularly reluctant to address pollution from land-based sources.14 Perhaps one of the underlying reasons is the close connection between land-based activities and economic, industrial and social development.15 Furthermore, land-based pollution originates in areas subject to the territorial jurisdiction of States, where regulation via multilateral legal instruments is perceived as an encroachment by States. This may be especially apparent in devel-

7 D König, ‘Marine Environment, International Protection’, Max Planck Encyclopaedia of Public International Law (online edition) para 26. See also D Osborn, ‘Land-Based Pollution and the Marine Environment’ in R Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar Publishing 2015) 82. 8 DL VanderZwaag and A Daniel, ‘International Law and Ocean Dumping: Steering a Precautionary Course aboard the 1996 London Protocol, but Still an Unfinished Voyage’ in A Chircop and others (eds), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (Brill 2009) 516. 9 Y Tanaka, ‘Land-Based Marine Pollution’ in A Nollkaemper and I Plakokefalos (eds), The Practice of Shared Responsibility in International Law (CUP 2017) 294. Marine pollution includes sewage, industrial discharges and agricultural run-off, plastic litter, nutrients, heavy metals, sediments, oil, and radioactive wastes, see Osborn (n 7) 82. 10 For a brief description, see J Harrison, Saving the Oceans through Law: The International Legal Framework for the Protection of the Marine Environment (OUP 2017) 64–5 and Osborn (n 7) 83. 11 First discovered in 1956, this serious disease, which may turn congenital, was caused by the consumption of fish and shellfish contaminated by methylmercury compound discharged into Minamata Bay from a chemical factory, see Y Tanaka, ‘Regulation of Land-Based Marine Pollution’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume III – Marine Environmental Law and International Maritime Security Law (OUP 2016) 140. 12 On this point, see Harrison (n 10) 65. 13 For instance, see below on dumping at sea. 14 See Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962) 450 UNTS 11 (High Seas Convention), Art 24 on the obligation for States to ‘draw up regulations to prevent pollution of the seas by the discharge of oil from (…) pipelines’. 15 Tanaka (n 11) 141.

Land-based sources of marine pollution and dumping at sea   111 oping States whereby the issue is of major concern but, paradoxi­cally, the cost of improving land-based pollution regulation is seen as unacceptably high.16 Therefore, it is perhaps not so surprising that States favour national prescriptive and enforcement jurisdiction instead.17 In the light of the foregoing, the current lack of a global legally binding instrument addressing land-based sources of marine pollution is hardly surprising. It would appear that greater progress on this front has been achieved at the regional level. The use of soft law instruments is also significant. The international regulation on land-based sources of marine pollution is outlined below. 2.2

Customary International Law

It is a general principle of international law that the territory of a State should not become a source of damage for neighbouring States (sic utere tuo ut alienum non laedas).18 This principle, also called the ‘no-harm rule’, embodies a due diligence obligation,19 and has been mainly elaborated in the field of international environmental law.20 However, it also applies to land-based sources of marine pollution.21 Accordingly, States must take all necessary measures to ensure that these sources of pollution within their territories do not cause significant harm to the coasts and marine areas under the jurisdiction of other States.22 The level of protection afforded to the marine environment by this general principle is unsatisfactory. As mentioned, the no-harm rule constitutes a due diligence obligation, an intrinsically elusive concept23 not entirely adequate to relate to the adoption of highly technical, rapidly evolving rules and standards.24 Moreover, the no-harm rule appears ill-suited to hold States accountable for land-based pollution, especially when the latter – as it is often the case – arises from a number of activities and sources located under multiple jurisdictions.25

ibid. König (n 7) para 26. On this point, see also Tanaka (n 11) 149–50. 18 J Brunnée, ‘Sic utere tuo ut alienum non laedas’, Max Planck Encyclopaedia of Public International Law (2010) para 1. 19 ILC, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries’ (2001) II YBILC 146, 154, Art 3, para 7. 20 See, for instance, Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), Principle 21, UN, ‘Report of the United Nations Conference on the Human Environment’ (1973) UN Doc A/CONF.48/14/Rev.1, 5 and Rio Declaration on Environment and Development, Principle 2, UN, ‘Report of the United Nations Conference on Environment and Development’ (1993) UN Doc A/CONF.151/26/Rev.1 (vol I), Anx I, 1. 21 Tanaka (n 9) 296. 22 UNCLOS, Art 194(2) provides that: ‘States shall 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, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.’ See also South China Sea Arbitration (n 5) [940], [944]. 23 See R Moynihan and B-O Magsig, ‘The Role of International Regimes and Courts in Clarifying Prevention of Harm in Freshwater and Marine Environmental Protection’ (2020) 20 IEA 649, 653ff. 24 See Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Dispute Chamber), Advisory Opinion of 1 February 2011, ITLOS Rep 2011 10, [117]. 25 Tanaka (n 9) 297. 16 17

112  Research handbook on ocean governance law 2.3

Global Treaty Law

The only globally binding instrument that addresses land-based sources of marine pollution is the UNCLOS.26 Article 207(1),27 which integrates Article 194(3)(a),28 establishes a general obligation for State Parties to adopt laws, regulations, and ‘other measures as may be necessary’,29 to prevent, reduce and control pollution of the marine environment from land-based sources.30 Of note is Article 207(4), which stipulates: States, acting especially through competent international organizations or diplomatic conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control pollution of the marine environment from land-based sources, taking into account characteristic regional features, the economic capacity of developing States and their need for economic development. Such rules, standards and recommended practices and procedures shall be re-examined from time to time as necessary.

This is indicative of how the UNCLOS serves as a framework convention. Article 212 reasserts this obligation with respect to the pollution of the marine environment from or through the atmosphere.31 The wording of these provisions highlights the weakness of the regulatory regime. In fact, as opposed to dumping at sea,32 States are only required to ‘take into account’ international rules, standards or practices when drafting their own legislation on land-based pollution.33 This suggests that State Parties could well adopt a less demanding domestic legislation than that required by international standards.34 Furthermore, Articles 207(3) and 207(4) require States ‘to endeavour’ to cooperate at the international level in order to harmonize their policies and set new rules and standards on land-based pollution. The use of the term ‘endeav­our’ appears to indicate the lack of a real obligation.35 Thus, the framework nature of the UNCLOS as a legally binding instrument establishing ‘mere’ cooperation obligations on a global and regional basis is here prominent.36 That said, it is possible to extrapolate some slightly more concrete obligations from the UNCLOS in terms of land-based pollution. First, Articles 123 and 197 provide general obligations of cooperation for the protection and preservation of the marine environment which also apply to land-based pollution.37 Article 204(2) strengthens this obligation, specifying that ‘States shall keep under surveillance the effects of any activities which they permit or in which UNCLOS, Art 207. See also Tanaka (n 9) 298. See also Art 213. 28 UNCLOS, Art 194(3)(a) provides that: ‘The measures taken [to prevent, reduce and control pollution of the marine environment] shall include, inter alia, those designed to minimize to the fullest possible extent the release of toxic, harmful or noxious substances, especially those which are persistent from land-based sources (…).’ See, mutatis mutandis, below on dumping. 29 Art 207(2). 30 The UNCLOS does not provide the definition of ‘land-based sources’, but specifies that they include ‘rivers, estuaries, pipelines and outfall structures’, see Art 207(1). 31 See also Art 222. 32 See below on Art 210(6). 33 See Art 207(1). 34 Kirk (n 4) 526 and Tanaka (n 11) 146. See, mutatis mutandis, Art 212(1) on airborne pollution. 35 Tanaka (n 9) 299. See, mutatis mutandis, Art 212(3) on airborne pollution. 36 See Art 197. 37 See Harrison (n 10) 66–7. See, more generally, Osborn (n 7) 85–7. 26 27

Land-based sources of marine pollution and dumping at sea   113 they engage in order to determine whether these activities are likely to pollute the marine environment.’ Moreover, under Article 206, State Parties shall carry out an environmental impact assessment and share the result when there are ‘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’, although this obligation may be difficult to apply to land-based sources of pollution since, taken individually, it is unlikely that they could cause ‘substantial’ pollution of or ‘significant’ and harmful changes to the marine environment.38 Another globally binding instrument that is worth mentioning is the Convention on the Law of the Non-Navigational Uses of International Watercourses.39 The UNWC provides for general obligations on prevention, reduction and control of pollution of international watercours­es,40 which, in turn, constitutes one of the main indirect sources of land-based marine pollution.41 In particular, Article 23 states that ‘watercourse States shall, individually [or] in cooperation with other States, take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards’.42 This provision is remarkable, as it stresses the linkage between watercourses and marine pollution. This linkage, however, is not further elaborated upon.43 The fact is that, as pointed out by the International Law Commission (ILC) in the Commentary on the Draft Articles on the Law of Non-navigational Uses of International Watercourses, the obligation set forth in Article 23 ‘is not (…) to protect the marine environment per se, but to take measures with respect to an international watercourse that are necessary to protect that environment’.44 In this regard, there remains a gap between the two bodies of regulation. Finally, the Stockholm Convention on Persistent Organic Pollutants45 has proved particularly effective in reducing emissions of persistent organic pollutants, which represent a significant airborne source of land-based marine pollution.46 2.4

Regional Treaty Law

In contrast to the piecemeal global legal framework, and consistently with States’ cooperation obligations in this area, as also set out under the UNCLOS, regional regulation on land-based sources of marine pollution is fairly developed.47 It can be inferred that regional instruments are more effective in protecting common interests in a given geographical area and, conse ibid 66. (adopted 21 May 1997, entered into force 17 August 2014) 2999 UNTS (UNWC). 40 See, extensively, UNWC, Parts II, III and IV. 41 As it has been noted: ‘Given that the input of harmful substances into an international watercourse may cause marine pollution, the regulation of pollution of an international watercourse can contribute to protect the marine environment of the downstream/coastal state in practice’, see Tanaka (n 9) 301. 42 See also Arts 21 and 22. 43 On this problem, see extensively Moynihan and Magsig (n 23) 649ff. 44 ILC, ‘Draft Articles on the Law of Non-Navigational Uses of International Watercourses, with Commentaries’ (1994) II YBILC 88, 124, Art 23, para 2. 45 (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119 (POPs Convention). 46 See also Kirk (n 4) 527 and Harrison (n 10) 73–4. 47 On the regional regulation on land-based sources of marine pollution, see extensively Osborn (n 7) 88, Tanaka (n 9) 302ff, and Harrison (n 10) 75ff. 38 39

114  Research handbook on ocean governance law quently, tend to draw up a more thorough and comprehensive regulation. Indeed, they usually address both land-based pollution and dumping at sea, as well as other sources of pollution.48 Among these numerous regional agreements,49 the Convention for the Protection of the Marine Environment of the North-East Atlantic50 and the Convention on the Protection of the Marine Environment of the Baltic Sea Area51 stand out. The OSPAR Convention unifies and upgrades the Oslo Convention and the Paris Convention.52 It applies to the North-East Atlantic ‘maritime area’, namely the internal waters, the territorial sea and the exclusive economic zones (EEZ) or exclusive fisheries zone of the State Parties, as well as the high seas, including the seabed of all those waters and the subsoil.53 It is no coincidence that the North-East Atlantic riparian States, since the adoption of the Paris Convention, have been among the first to regulate land-based sources of marine pollution.54 In fact, the linkage between marine and inland sources of pollution is particularly evident in this For instance, the 1992 Helsinki Convention binds State Parties to ‘prevent and eliminate pollution of the marine environment (…) caused by harmful substances from all sources’, see Art 5, emphasis added. 49 See 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 105 (Athens Protocol), and subsequent Amendments (adopted 7 March 1996, entered into force 11 May 2008) 2943 UNTS (Syracuse Protocol); Protocol for the Protection of the South-East Pacific against Pollution from Land-Based Sources (adopted 22 July 1983, entered into force 23 September 1986) 1648 UNTS (Quito Protocol); Protocol for the Protection of the Marine Environment against Pollution from Land-Based Resources (adopted 21 February 1990, entered into force 1 February 1993) 2399 UNTS (Kuwait Protocol); Protocol on Protection of the Black Sea Marine Environment against Pollution from Land Based Sources (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS 18 (Bucharest Protocol); 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 (adopted 6 October 1999, entered into force 13 August 2010) 3308 IEADB (Aruba Protocol); Protocol Concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (adopted 25 September 2005, not entered into force yet) 8954 IEADB (Jeddah Protocol); Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (adopted 31 March 2010, not entered into force yet) 4612 IEADB (Nairobi Protocol); Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-Based Sources and Activities in the Western, Central, and Southern African Region (adopted 22 June 2012, not entered into force yet) 5056 IEADB (Grand-Bassam Protocol). See also the Convention on Long-Range Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1983) 1302 UNTS 217. 50 (adopted 22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention). 51 (adopted 9 April 1992, entered into force 17 January 2000) 2099 UNTS 195 (Helsinki Convention). 52 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircrafts (adopted 15 February 1972, entered into force 7 April 1974) 932 UNTS 3 (Oslo Convention); Convention for the Prevention of Marine Pollution from Land-Based Sources (adopted 4 June 1974, entered into force 6 May 1978) 1546 UNTS 103 (Paris Convention). See also MS Wong, ‘OSPAR Convention 1992: Convention for the Protection of the Marine Environment of the North-East Atlantic (and Annexes I, II, III, IV)’ in M Fitzmaurice and A Tanzi (eds), Multilateral Environmental Treaties (Edward Elgar Publishing 2017) 189–98. 53 See Art 1(a). See also König (n 7) para 39. 54 In the 1940s, the Netherlands were the first State to raise the issue of Rhine pollution. This is hardly surprising, considering that the Netherlands are located downstream from the Rhine and, therefore, are the major recipient of the pollution accumulated by the river on its long journey from the Alps to the North Sea, see Tanaka (n 9) 295. 48

Land-based sources of marine pollution and dumping at sea   115 area, due to the existence of two international watercourses that flow into the North Sea across Europe, that is, the Rhine and the Elbe.55 The OSPAR Convention is an example of a ‘second generation’ regional treaty on the protection of the environment, pivoted, as Tanaka puts it, on a paradigm shift, ‘from the principle of freedom of pollution to an obligation to prevent pollution’.56 This explains the rejection of the listing system provided by the Paris Convention which, in essence, merely prohibited, ‘if necessary by stages’, the direct or indirect discharging of certain substances into the sea.57 First of all, the OSPAR Convention establishes that State Parties ‘shall take, individually and jointly, all possible steps to prevent and eliminate pollution from land-based sources’.58 To this end, the measures adopted by State Parties must comply with the best available techniques (BATs) and the best environmental practices (BEPs), including clean technology.59 The BATs and the BEPs are defined in accordance with the criteria set out in Appendix I.60 Furthermore, the OSPAR Convention helps State Parties in setting priorities and assessing the nature and extent of the programmes and measures by listing additional specific criteria.61 Finally, any direct or indirect sources of marine pollution ‘shall be strictly subject to authorisation or regulation by the competent national authorities’.62 Pursuant to the conjunction of Articles 2(1) and 3 of Annex I, the issuing of these deeds will tend to be subject to the ‘relevant decisions’ of the OSPAR Commission.63 Similarly, the Helsinki Convention replaces the 1974 Helsinki Convention64 and applies to the Baltic Sea,65 a very vulnerable marine area due to its exceptional hydrographic and ecological characteristics.66 The Helsinki Convention belongs to the second generation of regional seas treaties and, therefore, displays some of the features of the OSPAR Convention,

55 ibid 302. Thus, also land-locked States crossed by these two rivers, such as Switzerland and Luxembourg, are Parties to the OSPAR Convention. These two States are the only Parties to the OSPAR Convention that were not also Parties to the Oslo and the Paris Convention. 56 Tanaka (n 11) 155. 57 See Art 4(1)(a) and Part I, Anx I. The discharging of other hazardous substances was not prohibited, but ‘strictly limited’, see Art 4(1)(b) and Part II, Anx I. 58 Art 3. 59 See Anx I, Art 1(1). 60 Para 2 specifies that: ‘The term “best available techniques” means the latest stage of development (state of the art) of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste.’ Para 6 specifies that: ‘The term “best environmental practice” means the application of the most appropriate combination of environmental control measures and strategies.’ 61 See Anx I, Art 1(2) and Appx II. This list is a combination of the black and grey lists under the 1974 Paris Convention, see Tanaka (n 11) 154–5. 62 Anx I, Art (2)(1). 63 Tanaka (n 11) 155. On the OSPAR Commission, see below. 64 Convention on the Protection of the Marine Environment of the Baltic Sea (adopted 22 March 1974, entered into force 3 May 1980) 1507 UNTS 166. 65 As defined under Art 1. 66 König (n 7) para 42. See also M Fitzmaurice, ‘Compliance with the 1992 Convention on the Protection of the Environment of the Baltic Sea Area (the “Helsinki Convention”)’ in U Beyerlin and others (eds), Ensuring Compliance with Multilateral Investment Agreements (Martinus Nijhoff Publishers 2006) 115.

116  Research handbook on ocean governance law including the application of BATs and BEPs in preventing and eliminating marine pollution from land-based sources.67 Article 6 states that State Parties ‘undertake to prevent and eliminate pollution of the Baltic Sea Area from land-based sources’68 and that harmful substances, as defined in Annex I, ‘shall not, except in negligible quantities, be introduced directly or indirectly into the marine environment (…) without a prior special permit’.69 Annex III articulates these obligations in greater detail, distinguishing between prevention of pollution from industry and municipalities and from agriculture.70 Moreover, if the source of pollution is a watercourse, State Parties ‘shall jointly and, if possible, in co-operation with a third state interested or concerned, take appropriate measures in order to prevent and eliminate such pollution’.71 The Baltic Commission has the power to require State Parties to provide any information on discharge permits, emission data or data on environmental quality, as far as available.72 2.5

Salient Features of the OSPAR Convention

The OSPAR Convention deserves further consideration as a ‘reference model’ in addressing land-based sources of marine pollution. Its innovative capacity in this field can be better appreciated by comparing some of its salient features to other regional regimes. These features include inter alia: result-oriented standards, stricter rules on transparency, and a comprehensive review and compliance mechanism. As for the first, the BATs and the BEPs appear to be a ‘step beyond’73 the standard obligation to take ‘all appropriate measures’ provided for by previous regional treaties.74 This is because complying with the BATs and the BEPs entails an obligation of result,75 whose scope tends to develop over time and according to the specific case: on the one hand, technological progress will automatically update the obligations of State Parties;76 on the other, the content of these obligations will be tailored depending on the source of land-based pollution and in the light of all the relevant circumstances.77 The application of the BATs and the BEPs may also be subject to economic, social, technological and other conditions.78 This clearly weakens the See Arts 3(3), 6(1) and Anx III. BATs and BEPs are described under Anx II. Art 6(1). 69 Art 6(3). 70 See, for instance, Reg 3 on the principles for issuing permits for industrial plants. 71 Art 6(4). 72 Art 16(2). State Parties ‘shall ensure that authorised emissions to water and air are monitored and controlled’ (Art 6(3) last sentence). On the Baltic Commission, see below. 73 Harrison (n 10) 78. 74 See, for instance, Paris Convention, Arts 1(1) and 1(2), Athens Protocol, Arts 1 and 5(2), Quito Protocol, Art III, and Kuwait Protocol, Art IV(1). The great majority of legally binding instruments on land-based pollution adopted after the OSPAR Convention provides for the application of the BATs and BEPs. See, however, Aruba Protocol, Arts I(e) and III(1) which only refer, respectively, to the ‘most appropriate technology’ and the ‘best practicable means’. 75 Ireland v United Kingdom (OSPAR Arbitration), PCA Case No 2001-03, Final Award (2 July 2003), [131]. 76 Harrison (n 10) 79. 77 See the International Court of Justice approach in determining the content of the BATs in the Pulp Mills case in Harrison (n 10) 79. 78 See, for instance, Bucharest Protocol, Art 5(1)(c) and Anx V, Jeddah Protocol, Art 5(1) and Anx II, Nairobi Protocol, Art 5(2) and Anx I, and Abidjan Protocol, Art 11(3) and Anx I(2). 67 68

Land-based sources of marine pollution and dumping at sea   117 applicable regime, but allows the introduction of these standards within developing countries’ legal systems. As for the second feature, the OSPAR Convention stands out for enhancing transparency ‘on the state of the maritime area, on activities or measures adversely affecting or likely to affect it and on activities or measures introduced in accordance with the Convention’.79 Thus, State Parties are required to make available any relevant information ‘in written, visual, aural or data-base form’, ‘to any natural or legal person, in response to any reasonable request, without that person having to prove an interest, without unreasonable charges, as soon as possible and at least within two months’.80 This is an obligation of result81 with few comparisons in other re­gional treaties on marine pollution.82 Indeed, the latter, when not entirely silent on the matter,83 may require State Parties only to ‘give to the public appropriate access to information’,84 or ‘facilitate or promote to the widest possible extent public access to relevant information’.85 These provisions employ a less restrictive language and are usually believed to reflect mere obligations of conduct.86 As for the third feature, the OSPAR Convention establishes a Commission, composed of representatives of each of the 15 State Parties and the European Union.87 Its main tasks are to supervise the imple­mentation of the Convention and to assist State Parties in planning programmes and measures for the prevention and elimination of pollution.88 To this end, the Commission has the power to establish ‘subsidiary bodies’89 and to adopt both binding decisions (secondary regulation) and recommendations.90 State Parties must report to the Commission at regular intervals on ‘the legal, regulatory, or other measures taken by them for the implementation of the Convention’ and of these decisions and recommendations,91 as well as on the effectiveness thereof.92 The reporting allows the Commission to assess State Parties’ activity and, when appropriate, ‘decide upon and call for steps to bring about full compliance’ with the OSPAR regime.93 Most regional treaties on land-based sources of marine pollution do provide for some kind of reporting system, often involving the Meeting of the Parties (MoP) and the regional

Art 9(2). See also Harrison (n 10) 84. Arts 9(2) and 9(1). 81 Ireland v United Kingdom (OSPAR Arbitration), [137]. In this case, however, the arbitral tribunal eventually found that, by withholding some information on the operation of the MOX plant to Ireland, the UK did not violate the OSPAR Convention, ibid, [171]. See also Harrison (n 10) 84–5. 82 See Helsinki Convention, Art 17. 83 See Quito Protocol, Kuwait Protocol and Jeddah Protocol. 84 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 15(1), applying to the Athens Protocol as amended by the Syracuse Protocol. 85 Nairobi Protocol, Art 15(1). See also Bucharest Protocol, Art 14(2), Aruba Protocol, Art X, and Abidjan Protocol, Art 6(1). 86 Harrison (n 10) 85. 87 See Arts 10–13. 88 Arts 10(2)(a) and 10(2)(c) 89 See Art 10(2)(e). 90 See Arts 10(3) and 13. 91 Art 22(a). 92 Art 22(b). 93 Arts 23(a) and 23(b). 79 80

118  Research handbook on ocean governance law organization under whose aegis the treaty has been concluded.94 However, it is not often that regional treaties establish an independent body specifically tasked with extensive supervisory functions. Even when this is the case,95 the OS­PAR Commission appears to have broader powers, although it may be argued that similar compliance systems will be crucial in the future to help/push State Parties to meet the agreed targets.96 2.6

Soft Law Instruments

As mentioned, the use of soft law instruments as a source of political influence upon the regulation of land-based pollution is significant. The term soft law, which is a misnomer because non-binding instruments are not legally binding, has nonetheless a very important influential role. Such instruments influence policy and possibly national law, even if they are not legally binding in themselves. There is no ‘official’ list of what constitutes ‘soft law’. Examples of such instruments include guidelines, codes of practice and political declarations. After the adoption of the UNCLOS, the United Nations Environmental Programme (UNEP) affirmed its commitment to prepare guidelines or principles ‘at the global level’ on land-based sources of marine pollution.97 This endeavour resulted in the 1985 Montreal Guidelines.98 The Montreal Guidelines emphatically reiterate the duty of States to ‘ensure that discharges from land-based sources within their territories do not cause pollution to the marine environ­ ment of other States or of areas beyond the limits of national jurisdiction’.99 States are required to ‘adopt, individually or jointly, and in accordance with their capabilities, all measures necessary’ to this end, also taking into account ‘internationally agreed rules, criteria, standards and recommended practices and procedures’.100 Annex I substantiates these obligations, describing in detail a number of strategies to protect the marine environment and restore areas that have been affected. These strategies are combined with the introduction of a black and grey listing system. In particular, States are called upon to eliminate land-based pollution caused by black-listed substances, and to strictly limit that caused by grey-listed ones.101 Interestingly, Guideline No 5(c) highlights the link between the regulation of watercourses and marine pol94 See, for instance, Quito Protocol, Art VIII, Kuwait Protocol, Art VII, Aruba Protocol, Art XII, Jeddah Protocol, Art 18, Nairobi Protocol, Art 16, and Abidjan Protocol, Art 17. The MoP of the Bucharest Convention shares the task of reviewing the implementation of the Convention and its protocols with the Black Sea Commission, see Convention on the Protection of the Black Sea against Pollution (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS, Art XIX. 95 Helsinki Convention, Arts 19–23. At the fifteenth MoP, the State Parties to the Barcelona Convention have also established a Compliance Committee to oversee and promote the implementation of the Convention, its protocols and related recommendations, see ‘Decision IG 17/2: Procedures and mechanisms on compliance under the Barcelona Convention and its Protocols,’ UNEP(DEPI)/MED IG.7/10 (11 February 2008), Anx V, 21. 96 Harrison (n 10) 87. 97 UNEP Governing Council, ‘Montevideo Programme for the Development and Periodic Review of Environmental Law’ (31 May 1982) Decision 10/24, 7 (II(B)(2)(a)(iii)). 98 UNEP Governing Council, ‘Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Resources’ (24 May 1985) Decision 13/18, reprinted in BH Weston and JC Carlson (eds), International Law & World Order: Weston’s & Carlson’s Basic Documents (Brill 2012), para V.I.24. 99 Guideline No 3. 100 Guideline No 4(a). 101 Guideline No 1. The two lists are contained in Anx II.

Land-based sources of marine pollution and dumping at sea   119 lution, specifying that when discharges from an international watercourse are likely to pollute the marine environment, the States concerned should cooperate ‘in taking necessary measures to prevent, reduce and control such pollution’. The Montreal Guidelines stress the importance, inter alia, of technical and scientific cooperation,102 international assistance,103 information exchange and consultation,104 and the development of a comprehensive environmental management approach in curbing land-based pollution.105 Subsequently, Agenda 21 encouraged States to update, strengthen and extend the Montreal Guidelines, and required the UNEP to convene an ad hoc intergovernmental meeting to tackle growing concerns on land-based sources of marine pollution.106 In 1995, following this meet­ing, the Washington Declaration and the GPA were adopted.107 The Washington Declaration is a political statement on the need to effectively deal with land-based impacts upon the marine environment. The GPA is a more complex document, ‘designed to be a source of conceptual and practical guidance to be drawn upon by national and/or regional authorities in devising and implementing sustained action to prevent, reduce, control and/or eliminate marine degradation from land-based activities’.108 It also called for the setting up of an institutional framework, under the aegis of the UNEP, for regularly reviewing, promoting and facilitating the implementation of the GPA.109 This institutional framework has materialized in the Intergovernmental Review Meetings (IGRs) where international actors and stakeholders can voluntarily meet to further discuss new policies and regulation on land-based pollution.110 The IGRs have adopted four declarations so far,111 more recently focusing on marine litter, nutrient management and wastewater.112

Guideline No 8. Guideline No 9. 104 Guideline No 15. 105 Guideline No 10. 106 Paras 17.25 and 17.26. 107 Officially: Washington Declaration on Protection of the Marine Environment from Land-Based Activities and Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (Washington DC, 1 November 1995). On the GPA see extensively DL VanderZwaag and A Powers, ‘The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance’ (2008) 23 IJMCL 423, 427ff. See also Osborn (n 7) 96ff and Harrison (n 10) 69ff. 108 Para 14. 109 Para 72ff. 110 ibid. 111 Montreal Declaration on the Protection of the Marine Environment from Land-based Activities (22 December 2001) UNEP/GPA/IGR.1/9, Anx I; Beijing Declaration on Furthering the Implementation of the GPA (23 October 2006) UNEP/GPA/IGR.2/7, Anx V; Manila Declaration on Furthering the Implementation of the GPA (26 January 2012) UNEP/GPA/IGR.3/CRP.1/Rev.1 (Manila Declaration); Bali Declaration on the Protection of the Marine Environment from Land-Based Activities (6 March 2019) UNEP/GPA/IGR.4/6 (Bali Declaration). 112 See Manila Declaration, paras 4–5 and Bali Declaration, second sentence, points 1 and 2. 102 103

120  Research handbook on ocean governance law

3.

DUMPING AT SEA

3.1 Background For many years dumping at sea was considered a lawful and useful practice. In fact, it allowed for a quick and extremely low-cost disposal of unwanted products dangerous for human health, turning into a lucrative business between the end of the Second World War and the beginning of the 1970s.113 However, it soon became clear that this practice was not sustainable in the long run.114 The international community began to worry about dumping at sea in relation to ultrahazardous types of waste, such as radioactive waste.115 Some controversial episodes, such as the Stella Maris affair in 1971116 or the building and operation of the MOX plant at Sellafield starting from 1995,117 have drawn harsh criticism from public opinion and prompted States and international organizations to swiftly take firmer action. The issue was first addressed during the United Nations Conference on the Human Environment in Stockholm in 1972.118 Subsequently, States devised wider and more detailed legally binding instruments, both globally and regionally, on dumping at sea. These instruments are outlined below. 3.2

Dumping under the UNCLOS

The UNCLOS defines dumping at sea as ‘any deliberate disposal of waste or other matter from vessels, aircrafts, platforms or other man-made structures (…)’, or the deliberate disposal of ‘vessels, aircraft, platforms or other man-made structures at sea’.119 This definition does not VanderZwaag and Daniel (n 8) 516. See also GM Farnelli and A Tanzi, ‘Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 and 1996 Protocol’ in M Fitzmaurice and A Tanzi (eds), Multilateral Environmental Treaties (Edward Elgar Publishing 2017) 176. 114 See, for instance, Joint IMCO/FAO/UNESCO/WMO GESAMP, ‘Report of the First Session (London 17–21 March 1969)’, GESAMP I/11 (17 July 1969), especially 14ff, para 38ff. 115 See High Seas Convention, Art 25(1). Worryingly, since the 1940s, the disposal of radioactive waste at sea was the standard practice of several nuclear States, see H Esmaeili and B Grigg, ‘Pollution from Dumping’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume III – Marine Environmental Law and International Maritime Security Law (OUP 2016) 91. 116 The Stella Maris was a Dutch vessel which left the port of Amsterdam to dispose of 650 tons of chlorinated waste into the North-East Atlantic. The news resulted in a public outcry, and the vessel eventually returned to the port with its load still on board, see Harrison (n 10) 92. For other examples, see Kirk (n 4) 519–20. 117 The MOX plant reprocessed nuclear fuel into a new mixed oxide fuel (MOX). Over the years, Ireland grew concerned that the plant was releasing radioactive wastes into the Irish Sea. It then tried to enter into negotiations with the UK, asking for the disclosure of information on the operation of the plant, but to no avail. As it is well known, the dispute resulted in three different proceedings, before an OSPAR ad hoc tribunal, before the International Tribunal for the Law of the Sea and before the European Court of Justice, see RR Churchill, ‘MOX Plant Arbitration and Cases’, Max Planck Encyclopaedia of Public International Law (2018). In 2011, the MOX plant was eventually closed, ibid, para 22. 118 See Stockholm Declaration, Principle 7 and Action Plan for the Human Environment, Recommendation 86(c), UN ‘Report of the United Nations Conference on the Human Environment’ (1973) UN Doc A/CONF.48/14/Rev.1, 22. 119 See Arts 1(5)(a)(i) and (1(5)(a)(ii). This definition has been used in some subsequent international legal instruments, such as the Helsinki Convention (Art 2(4)). In turn, it was borrowed verbatim from that provided by the London Convention. See below. 113

Land-based sources of marine pollution and dumping at sea   121 encompass the disposal of ‘wastes or other matter incidental to, or derived from the normal operations’ of these sources, as well as the ‘placement [at sea] of matter for a purpose other than the mere disposal thereof’.120 The UNCLOS does not prohibit, but regulates dumping at sea.121 In particular, it addresses this practice mainly under Article 210,122 which integrates Article 194(3)(a),123 establishing a general obligation for State Parties to adopt laws, regulations, and ‘other measures as may be necessary’,124 to prevent, reduce and control pollution of the marine environment by dumping. Article 210(6) then ‘fills’ this obligation specifying that these measures ‘shall be no less effective in preventing, reducing, and controlling such pollution than the global rules and standards’. In this way, the UNCLOS binds the normative activity of State Parties in this area to compliance with an international minimum standard.125 The operational scope of this renvoi is controversial. The problem revolves around the possibility of qualifying a specific piece of international regulation on dumping as a ‘global rule’ or ‘standard’ for the purpose of the UNCLOS. Thus, the conjunction of Articles 210(1) and 210(6) is generally believed to extend the obligations contained in the London Convention126 to States which are not Parties to it, but which are Parties to the UNCLOS.127 It would seem more difficult, in turn, to support the application of this renvoi to the London Protocol,128 given the smaller number of State Parties.129 The same can be said with respect to regional agreements, such as the OSPAR or the Helsinki Convention.130

120 See Arts 1(5)(b)(i) and 1(5)(b)(ii). The first exception, regardless of inevitable overlaps or ‘grey areas’, is consistent with the existence of an ad hoc regulation on the matter. The second exception is, in a way, implicit in the definition of dumping as an activity aimed specifically at disposing of waste at sea. On the contrary, if the ‘placement of matter’ has a different purpose and is not in contrast with ‘the aims’ of the UNCLOS, it should not be considered unlawful. See Harrison (n 10) 95. 121 Esmaeili and Grigg (n 115) 79 and Harrison (n 10) 95. 122 See also Art 216. 123 ‘The measures taken [to prevent, reduce and control pollution of the marine environment] shall include, inter alia, those designed to minimize to the fullest possible extent the release of toxic, harmful or noxious substances, especially those which are persistent (…) by dumping.’ 124 Art 210(2). 125 Harrison (n 10) 96. The UNCLOS requires State Parties to take action, ‘especially through competent international organizations or diplomatic conference, (…) to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution’, see Art 210(4). 126 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 (London Convention). On the London Convention, see below. 127 See Farnelli and Tanzi (n 113) 178. However, as regards the application by extension of subsequent amendments to the London Convention, see below. 128 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (adopted 7 November 1996, entered into force 24 March 2006) (1997) 36 ILM 1 (London Protocol). On the London Protocol, see below. 129 In the positive, see DM Ong, ‘UN Convention on the Law of the Sea and Marine Environmental Protection’ in M Fitzmaurice and others (eds), Research Handbook of International Environmental Law (Edward Elgar Publishing 2010) 572, Kirk (n 4) 528 and Esmaeili and Grigg (n 115) 69; with greater caution, see VanderZwaag and Daniel (n 8) 519 and Harrison (n 10) 113. 130 See below.

122  Research handbook on ocean governance law Furthermore, the UNCLOS provides that ‘such laws, regulations and measures shall ensure that dumping is not carried out without the permission of the competent authorities of States’131 and that, to these ends, the coastal State exercises jurisdiction not only within the territorial sea, but also within the EEZ and onto the continental shelf.132 The prior identification of the State endowed with jurisdiction for all zones outside the high seas is functional to facilitate the prevention and control of dumping at sea.133 It is also worth noting that, before issuing any permission, the coastal State has the duty to consider the matter ‘with other States which by reason of their geographical situation may be adversely affected thereby’.134 This obligation does not translate into a formal consultation but nonetheless must be carried out in good faith.135 In any case, no permission of the potentially affected State(s) is required. On the high seas, dumping is subject to the jurisdiction of the flag State.136 3.3

The London Dumping Convention

The London Convention constitutes the first and major global legal framework to prevent marine pollution caused by dumping at sea.137 As of October 2022, there are 87 State Parties thereto. As mentioned above, the London Convention also applies to all State Parties to the UNCLOS by virtue of the renvoi pursuant to Article 210(6).138 Like the UNCLOS, the London Convention does not prohibit dumping at sea outright,139 but regulates it, following ‘a typical two-tier listing system, whereby the dumping of substances listed (…) is prohibited or permitted according to their qualification’.140 In fact, without prejudice to the generic due diligence obligation for State Parties to ‘take effective measures (…) to prevent marine pollution caused by dumping and (…) harmonize their policies in this regard’,141 the Convention divides waste into three categories: ultrahazardous or ‘black-list’ waste; hazardous, or ‘grey-list’ waste; and all other waste. The first, which is listed in Annex I and includes, among others, chemical compounds, persistent plastics, crude oil and radioactive matter, shall not be dumped at sea, save for force majeure cases, as outlined under Article V(1). Such dumping ‘shall be so con Art 210(3). Art 210(5). See also Art 56(1)(b)(iii) of UNCLOS: ‘In the exclusive economic zone, the coastal State has jurisdiction (…) with regard to the protection and preservation of the marine environment.’ 133 At the time of the drafting of Art 210, the extension of the jurisdiction of the coastal State beyond the territorial sea, in particular within the EEZ, has consolidated as a principle of customary international law. Previously, however, this was not undisputed. This is evident in the London Convention, whose scope of application ratione loci was intentionally left open pending ‘the codification of the law of the sea by the United Nations Conference on the Law of the Sea’ (Art XIII). See MH Nordquist and others (eds), United Nations Convention on the Law of the Sea: A Commentary – Volume IV (Martinus Nijhoff Publishers 1995) 166, para 210.11(e) and see below. 134 Art 210(5). 135 Nordquist and others (n 133) 167, para 210(11)(f). 136 See Harrison (n 10) 96. 137 Esmaeili and Grigg (n 115) 80. 138 See above. 139 As mentioned, the definition of dumping at sea provided by the London Convention is the same of that provided by the UNCLOS, see above. See also London Convention, Art III(1). 140 Farnelli and Tanzi (n 113) 178. This approach has been labelled as ‘permissive’ or ‘assimilative’, that is, dumping is permitted unless forbidden, see VanderZwaag and Daniel (n 8) 518 and König (n 7) para 33. 141 Art II. This provision is discussed by Harrison (n 10) 97–8. 131 132

Land-based sources of marine pollution and dumping at sea   123 ducted as to minimize the likelihood of damage to human or marine life’ and shall be reported to the IMO.142 A State Party may also issue a special permit as an exception to this general prohibition in the face of an emergency ‘posing unacceptable risk relating to human health and admitting no other feasible solution’.143 In this case, however, before issuing the permit, the State Party – usually the flag State, considering that such a situation appears more likely to materialize on the high seas144 – will have to consult with the other State(s) likely to be affected and the IMO in order to figure out ‘the most appropriate procedures to adopt’.145 Moreover, the prohibition does not apply to those substances which, although listed in Annex I, ‘are rapidly rendered harmless by physical, chemical or biological processes in the sea, provided they do not make edible marine organisms unpalatable, or endanger human health or that of domestic animals’.146 State Parties remain free to prohibit the dumping of other ​​ waste not included in Annex I.147 The dumping of hazardous, or ‘grey-listed’, waste listed in Annex II, such as arsenic, chromium, copper, lead and nickel, is not prohibited, but requires ‘a prior special permit’.148 Similarly, the dumping of ‘all other wastes or matter requires a prior general permit’.149 In both cases, the permit shall be issued in accordance with the criteria set forth in Annex III,150 taking into ac­count, among other factors, the possible effects on amenities, marine life, other uses of the sea and the practical availability of alternative, less harmful, land-based methods of dispos­ al.151 It is worth mentioning that the permit is issued by the appropriate national authorities,152 that is, those of the coastal State, if the waste is dumped into the territorial waters, the EEZ or onto the continental shelf, and those of the flag State, if the dumping occurs on the high seas.153 The London Convention provides for further obligations in terms of international cooperation,154 establishment of dispute settlement mechanisms,155 and amendments and reviewing procedures.156

Art V(1), last sentence. Art V(2). 144 Farnelli and Tanzi (n 113) 179, fn 28. 145 Art V(2), second sentence. However, not all State Parties comply with this requirement when permitting the dumping of special waste at sea, see Esmaeili and Grigg (n 115) 81. 146 Anx I, para 8. And see Anx I, para 9. 147 Art IV(3). 148 Art IV(1)(b). 149 Art IV(1)(c). 150 Art IV(2). 151 See, especially, Anx III, s C. 152 Arts VI(1)(a) and VI(1)(b). 153 As mentioned above (n 103), the nature and extent of the right and the responsibility of a coastal State to apply the Convention in a zone adjacent to its coast are intended as defined by the UNCLOS. See also Art XIII of the London Convention. 154 Arts VII, IX and XII. 155 Arts X and XI. 156 Arts XIV and XV. 142 143

124  Research handbook on ocean governance law 3.4

The London Protocol to the Dumping Convention

The London Convention soon proved to be a dynamic instrument, capable of adapting to the growing concerns on sea protection.157 In fact, thanks to a particularly effective tacit agree­ ment/opting out system,158 the Annexes have been repeatedly amended in order to extend the regulated substances, especially with a focus on the alarming practice of incineration at sea.159 Nonetheless, encouraged both by Agenda 21 and the recent adoption of the OSPAR and the Helsinki Conventions,160 in 1993 the State Parties agreed upon embarking on an ‘overall and thorough review of the existing provisions of the London Convention’.161 Eventually, this process resulted in the adoption of the London Protocol. The London Protocol is an autonomous legal instrument which supersedes the London Convention as between State Parties to both of them.162 As said, in view of the lower number of State Parties compared to the London Convention, it is doubtful whether the London Protocol forms part of ‘the global rules and standards’ under Article 210(6) of the UNCLOS.163 Although the London Protocol and the London Convention share the same scope of application,164 the former is explicitly inspired by a precautionary and preventive approach,165 and draws up a much stricter regulation than the latter. In fact, in addition to employing a more prescriptive language,166 the London Protocol ‘reverses’ the listing system, introducing a general ban on the dumping of waste at sea, with the sole exception of the substances listed in Annex I, such as dredged material, sewage sludge, fish waste and organic material of natural origin.167 This waste can be dumped at sea only upon permit issued by the competent national authorities in accordance with the conditions and procedures set out in Article 9 and Annex II,168 and State Parties should in any case pay particular attention to any opportunity to

On this point, see extensively Harrison (n 10) 101ff. See, especially, Art XV(2). 159 It is doubtful whether these amendments can be qualified as part of ‘the global rules and standards’ under UNCLOS, Art 210(6). Indeed, the State Parties that have opted out of these amendments and that are Parties to the UNCLOS, such as the Russian Federation and Australia, have never considered themselves to be bound accordingly. See Harrison (n 10) 106–7. 160 Resolution LC.48(16) (1993) 2. NGOs and public campaigns during the 1980s and 1990s also played a significant role in pushing State Parties to reconsider their approach to dumping at sea, see Kirk (n 4) 530ff. 161 Resolution LC.48(16) (1993) 3, point 1. 162 London Protocol, Art 23. As of October 2022, there are 53 Parties to the London Protocol. Both the London Convention and Protocol are currently in force and States may enter the former without joining the latter and vice-versa. 163 See above. See also Harrison (n 10) 110. 164 On this point see also Farnelli and Tanzi (n 113) 180. 165 See Art 3(1). 166 Compare London Convention, Art II to London Protocol, Art 2. 167 Art 4(1)(1). It has been pointed out that ‘this Protocol brought a fundamental shift in respect of the regulatory technique. It substitutes the permissive approach with a prohibitive approach, that is, dumping is forbidden unless permitted’, König (n 7) para 34. Since 2006, Anx I allows for the sequestration of carbon dioxide under the seabed to facilitate climate change mitigation measures. See Esmaeili and Grigg (n 115) 83. 168 Art 4(1)(2). 157 158

Land-based sources of marine pollution and dumping at sea   125 avoid dumping in favour of environmentally preferable alternatives.169 Incineration at sea is generally prohibited.170 The prohibition on dumping and incineration at sea does not apply in cases of force majeure, as outlined under Article 8(1). A State Party may also exceptionally permit the dumping of substances different from those listed in Annex I or the incineration of waste at sea when facing emergencies ‘posing unacceptable risk relating to human health and admitting no other feasible solution’.171 The procedure for issuing the permit follows, mutatis mutandis, that provided for by the London Convention.172 Other noteworthy provisions concern technical and scientific cooperation between State Parties,173 a compromise clause referring to the procedures listed in Article 287(1) of the UNCLOS or to an ad hoc arbitration as defined in Annex III,174 and the establishment of a compliance review mechanism.175 This mechanism, pivoted on the so-called Compliance Group,176 was set up at the twenty-ninth Consultative Meeting of the Parties, in 2007.177 The Compliance Group supervises the application of the London Protocol on the basis of submissions presented by State Parties or the Consultative Meeting. The latter can refer a State Party to the Compliance Group also on the basis of information provided by ‘observers’, that is, non-State actors.178 The compliance review may result in the provision of advice or recommendations, the facilitation of cooperation and assistance, the elaboration of compliance action plans, or the issuing of a formal statement of concern regarding a State Party’s compliance situation.179 No sanctions or coercive measures are considered, but the Consultative Meeting enjoys the ambiguous faculty of taking into account ‘additional measures within its mandate, as appropriate, to facilitate compliance by the Party concerned’.180 3.5

Regional Regulation

Dumping at sea is also regulated at the regional level. This approach is supported by the UNCLOS, the London Convention and the London Protocol.181 The reason is the same as

Art 4(1)(2), last sentence. Art 5. 171 Art 8(2). 172 See above. 173 See Arts 13 and 14. 174 See Art 16(2). 175 See Art 11(1). It has been rightly noted that the London Protocol does not specify how the activity of the compliance review mechanism should relate to the possible activation of an arbitration procedure on the same issue, see Farnelli and Tanzi (n 113) 182. Anx 7 to Resolution LC.29(17) (2007) merely states that the mechanism ‘shall be without prejudice to the provisions (…) of the Protocol on settlement of disputes’ (para 7). 176 See Resolution LC.29(17) (2007), Anx 7, para 3ff. 177 ibid. On the London Protocol compliance review mechanism see extensively S Trevisanut, ‘The Compliance Procedure Mechanism of the 1996 Protocol to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters’ in T Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (TMC Asser 2009) 49ff. 178 Res LC.29(17) (2007), Anx 7, para 4(1). 179 ibid para 5(1). 180 ibid para 5(4). 181 See UNCLOS, Art 210(4), London Convention, Art 8 and London Protocol, Art 12. 169 170

126  Research handbook on ocean governance law discussed in relation to regional regulation on land-based sources of marine pollution.182 Although most of the regional seas framework touches upon the issue of dumping at sea,183 Harrison identifies five marine regions that have introduced a specific regime: the North-East Atlantic, the Baltic, the Mediterranean, the Black Sea and the South-Pacific.184 The analysis will focus on the regime applicable within the first two.185 In the North-East Atlantic area, the OSPAR Convention applies.186 Similarly to the UNCLOS and the London Convention, it defines dumping as ‘any deliberate disposal of​​ wastes or other matter from vessels, aircraft or offshore installations’, as well as the direct ‘disposal of vessels, aircraft or offshore installations’ in the maritime area.187 As mentioned, the OSPAR Conven­tion is inspired by a preventive and precautionary approach.188 Consistently, it provides for a general ban on incineration at sea,189 as well as on dumping of all waste or other substances, with the exception of those few listed in Article 3 of Annex II, among which dredged material, inert materials of natural origin and fish waste from industrial fish processing operations stand out.190 In the Baltic area, the Helsinki Convention applies.191 The dumping regime is particularly strict here. Incineration as well as dumping of waste or other substances at sea are prohibited,192 with the sole exception of dredged material.193 The latter, upon special permit issued by the appropriate national authority, should be dumped within the internal waters or the territorial sea.194 ‘Whenever necessary’, the dumping may also occur outside these zones, but only

See above. See, for instance, the Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71, Art V. See also Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 3, Anxs III and IV. 184 Harrison (n 10) 111. 185 For the Mediterranean region, see 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 44, and subsequent Amendments (adopted 10 June 1995, not entered into force yet); for the Black Sea, see Protocol on the Protection of the Marine Environment of the Black Sea by Dumping (adopted 12 April 1992, entered into force 15 January 1994) 1764 UNTS 27; for the South-Pacific region, see Protocol for the Prevention of Pollution of the South Pacific Region by Dumping (adopted 25 November 1986, entered into force 22 August 1990) (1987) 26 ILM 65. And see Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (adopted 14 February 1982, entered into force 20 August 1985) 2936 IEADB, Art V. 186 See above, especially on the ratione loci scope of application. 187 See Arts 1(f)(i) and 1(f)(ii). In the same vein, this definition does not encompass ‘the disposal (…) of wastes or other matter incidental to, or derived from, the normal operations of vessels or aircraft or offshore installations’ and the ‘placement of matter for a purpose other than the mere disposal thereof’ provided that in accordance with the Convention, see Arts 1(g)(i) and 1(g)(ii). 188 See Arts 2(1)(a), 2(2)(a), 2(4) and 4. See also above. 189 See Art 4 and Anx II, Art 2. 190 The OSPAR Convention ‘reverses’ the approach adopted by the Oslo Convention which, along the lines of the London Convention, provided a prohibition/permission listing system; see Arts 5, 6, 7 and Anxs I, II and III. 191 See above, especially on the ratione loci scope of application. 192 See Arts 10 and 11(1). The definition of dumping is the same as provided by the UNCLOS, the London Convention, the London Protocol and the OSPAR Convention. See Helsinki Convention, Art 2(4). 193 Art 11(2) and Anx V. 194 Anx V, Reg 1(b)(1). 182 183

Land-based sources of marine pollution and dumping at sea   127 after prior consultations with the Baltic Commission,195 a treaty body similar to the OSPAR Commission and endowed with wide supervising competences, although lacking the authority to take binding decisions.196

4. CONCLUSION Ocean pollution represents one of the major concerns of our time. The assessment of the effectiveness of international law in this area is in chiaroscuro. Global regulation of land-based sources of marine pollution may not be entirely effective.197 Moreover, some crucial matters, such as the linkage between watercourses and marine pollution, require further elaboration. Conversely, and consistently with States’ cooperation obligations established by the UNCLOS in this area, regional and soft law instruments are widely resorted to. In particular, the regional dimension appears to be more effective in relation to addressing this category of marine pollution. In fact, regionalism enables a flexible ap­proach and the adjustment of the regulation in relation to the actual economic and environmental needs, as well as to the technical and scientific capabilities of the States involved. Furthermore, a relatively small number of States, often supported by international organizations, treaty bodies and ad hoc mechanisms, facilitates cooperation and control among the Parties, a key factor in tackling land-based sources of marine pollution.198 International regulation on dumping at sea, on the other hand, has rapidly evolved in a comprehensive, effective legal framework. The main global instruments on this category of marine pollution are the London Convention and the London Protocol. Despite unavoidable compliance issues, both have proved to be remarkably successful in curbing the dumping and incinera­tion at sea phenomena.199 The UNCLOS also extends the application of the former through the renvoi under Article 210(6), turning it into the international minimum standard.200 In this context, the numerous regional agreements, such as the OSPAR and the Helsinki Conventions, provide an additional layer of protection against dumping at sea. Still, there is certainly room for improvement. Indeed, as pointed out by Harrison, ‘the reduction of dumping at sea also requires alternative methods of waste disposal to be developed’.201 In this sense, future regulation should not consider dumping at sea in isolation, but as a part of a global strategy on the general prevention, reduction and control of waste.202

Anx V, Reg 1(b)(2). See Art 20. On the OSPAR Commission, see above. 197 See also Osborn (n 7) 94–6. 198 This is true even if controls are difficult to implement and noncompliance is high. In fact, as it has been convincingly pointed out, the lack of compliance will usually result in a reason for action to strive for improving the legal regime, see EA Kirk, ‘Noncompliance and the Development of Regimes Addressing Marine Pollution from Land-Based Activities’ (2008) 39 ODIL 235, 248. 199 Esmaeili and Grigg (n 115) 93. 200 On the controversial scope of the renvoi, see above. 201 Harrison (n 10) 114. 202 ibid. 195 196

8. Ocean pollution from plastics Jyothi Thomas

1. INTRODUCTION The 1982 United Nations Convention on the Law of the Sea (UNCLOS)1 defines marine pollution: as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities.2

Plastics make up the majority of marine litter, which is the most destructive, and are by far the most enduring type,3 and hence, it is quite evident that ocean pollution from plastics comes within the purview of this definition. The versatile feature of plastic has made it more favourable to people since the 1940s, particularly after World War I.4 In the 1960s, researchers became more aware of the disastrous environmental impacts of plastic when they found plastic debris in the marine environment for the first time.5 The global yearly production of plastics increased from 15 million tons to 359 million tons during the years 1960 to 2018. It is predicted to double by the year 2050.6 Plastic is mainly manufactured for packaging that is meant to be easily disposed of.7 Almost all these plastic products, directly or indirectly, end up in the ocean. Plastic accounts for more than 80 per cent of the waste found in the marine ecosystem8 and the International Union

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 2 ibid Art 1(4). 3 Secretariat of the Convention on Biological Diversity, ‘Marine Debris: Understanding, Preventing and Mitigating the Significant Adverse Impacts on Marine and Coastal Biodiversity’ (CBD, 2016), https://​www​.cbd​.int/​doc/​publications/​cbd​-ts​-83​-en​.pdf, accessed 2 July 2021. 4 JL Nicholson and GR Leighton, ‘Plastics Come of Age’ (Harper’s Magazine, 1942), https://​ harpers​.org/​archive/​1942/​08/​plastics​-come​-of​-age/​, accessed 26 June 2021. 5 Science History Institute, ‘History and Future of Plastics’ (Science History, 2022), https://​www​ .sciencehistory​.org/​the​-history​-and​-future​-of​-plastics, accessed 26 June 2021. 6 JP da Costa and others, ‘The Role of Legislation, Regulatory Initiatives and Guidelines on the Control of Plastic Pollution’ (2020) 8(104) Frontiers in Environmental Science, https://​www​.frontiersin​ .org/​articles/​10​.3389/​fenvs​.2020​.00104/​full, 2 July 2021. 7 Plastics Europe, ‘Plastics 2030: Plastics Europe’s Voluntary Commitment to Increase Circularity and Resource Efficiency’ (Politico Europe, 11 January 2018), https://​www​.politico​.eu/​wp​-content/​ uploads/​2018/​01/​PlasticsEurope​-Voluntary​-Commitment​-final​.pdf , accessed 15 July 2021. 8 News European Parliament, ‘Parliament Seals Ban on Throwaway Plastics by 2021’ (27 March 2019), https://​www​.europarl​.europa​.eu/​news/​en/​press​-room/​20190321IPR32111/​parliament​-seals​-ban​ -on​-throwaway​-plastics​-by​-2021, accessed 24 June 2021. 1

128

Ocean pollution from plastics  129 for Conservation of Nature (IUCN) estimates that at least 14 million tons of plastic enter the oceans annually.9 Fifty per cent of these materials are single-use plastics, which are hard to recycle.10 Plastic pollution is the direct result of human action on the environment.11 There are mainly two sources by which plastic enters the marine ecosystem. Ocean-based sources result from the dumping of wastes from ships or vessels, but the major share of plastic enters the marine ecosystem from land-based sources, by way of dumping, littering, and rainwater runoffs on land and from rivers.12 Dumping in landfills and incineration of waste may also lead to plastic waste ending up in the marine environment and the amount can be substantial, given that only a tiny proportion of around 10 per cent of plastic waste is being recycled.13 The consequences of plastic debris are immense. Marine plastic waste has already resulted in a total annual loss of 500 to 2500 billion USD in the services offered by the marine ecosystem.14 Plastic bags and fishing nets entangle marine organisms and suffocate them to death. Micro-plastic marine pollution has been recognized as a growing source of concern.15 Moreover, the ingestion of microplastics including micro-beads used in personal care products and clothing products, along with the chemicals transported by them, puts the life of marine species in danger.16 In this way, plastics in the marine environment pollute the food chain too, affecting seafood and therefore the overall health and well-being of humans and other living organisms. Marine biodiversity loss affects people who depend on fisheries and tourism as a form of livelihood.17 One can conclude that the consequences that marine plastic litter has upon marine biodiversity impinges on the human right to live in a healthy environment that is not harmful to human health or livelihood.

International Union for Conservation of Nature and Natural Resources, ‘Marine Plastic Pollution’ (IUCN, November 2021), https://​www​.iucn​.org/​sites/​default/​files/​2022​-04/​marine​_plastic​_pollution​ _issues​_brief​_nov21​.pdf, accessed 13 August 2022. 10 BC Almroth and H Eggert, ‘Marine Plastic Pollution: Sources, Impact, and Policy Issues’ (2019) 13(2) Review of Environmental Economics and Policy, https://​www​.journals​.uchicago​.edu/​doi/​10​.1093/​ reep/​rez012​#, accessed 1 July 2021. 11 Plastic Soup Foundation, ‘What Is Plastic Soup? Gyres and Hotspots’ (Plastic Soup Foundation, 1 March 2019), https://​perma​.cc/​T2RX​-WM84, accessed 24 June 2021. 12 JR Jambeck and others, ‘Plastic Waste Inputs from Land into the Ocean’ (2015) 347(6223) Science, https://​science​.sciencemag​.org/​content/​347/​6223/​768/​tab​-figures​-data, accessed 1 July 2021. 13 AL Patrício Silva and others, ‘Rethinking and Optimising Plastic Waste Management under COVID-19 Pandemic: Policy Solutions Based on Redesign and Reduction of Single-Use Plastics and Personal Protective Equipment’ (2020) 742(140565) Science of The Total Environment, https://​www​ .sciencedirect​.com/​science/​article/​pii/​S0048969720340870, accessed 24 June 2021. 14 I Andersen, ‘Tackling Marine Plastic Pollution and Protecting Our Oceans’ (UNEP, 3 March 2021), https://​www​.unep​.org/​news​-and​-stories/​speech/​tackling​-marine​-plastic​-pollution​-and​-protecting​ -our​-oceans, accessed 26 June 2021. 15 J Vince and BD Hardesty, ‘Governance Solutions to the Tragedy of the Commons that Marine Plastics Have Become’ (2018) 5(214) Frontiers in Marine Science, https://​www​.frontiersin​.org/​article/​ 10​.3389/​fmars​.2018​.00214, accessed 24 June 2021. 16 S Chatterjee and S Sharma, ‘Microplastics in Our Oceans and Marine Health’ (2019) (19) Field Actions Science Reports, http://​journals​.openedition​.org/​factsreports/​5257, accessed 28 June 2021. 17 L Henderson and C Green, ‘Making Sense of Microplastics? Public Understandings of Plastic Pollution’ (2020) 152(110908) Marine Pollution Bulletin, https://​www​.sciencedirect​.com/​science/​ article/​pii/​S0025326X20300266, accessed 28 June 2021. 9

130  Research handbook on ocean governance law The ocean is home to water, oxygen, seafood, nutrients, medicines, oil, and so on, and aids various sectors such as fisheries, tourism, and shipping which are crucial for the economy of a nation. Over 60 per cent of the economic worth of all life on the planet is derived from ocean ecosystem services.18 Unsustainable consumption and production trends19 and the failure by States to reduce, recycle, and manage waste sustainably have led to the ocean becoming a dumpsite for plastics. The only solution is to deal with plastic at source, given the toxic, longevity, and bioaccumulation characteristics of its materials. Ocean governance entails the need of a legal regime that frees and restores the marine environment from plastics, firstly by preventing the generation of plastic waste and secondly by ensuring plastic does not reach the marine environment, but is disposed of in an environmentally sustainable manner on land.

2.

CURRENT STATE OF PLAY UNDER INTERNATIONAL LAW

Ocean plastic pollution has become a serious transnational problem having local origins that has received heightened academic and political attention in recent years.20 To tackle the problem, various legal approaches were adopted at the international level. UNCLOS addresses the conservation of the marine environment in a general manner.21 Article 194 requires each Party to make every effort needed to prevent, mitigate, and control ocean pollution out of any source, by using the best possible methods according to their capabilities. Although UNCLOS addresses six categories of ocean pollution, covering both ocean-based and land-based pollution, it does not go into detail about the kind of pollutants and the technical standards.22 Through Articles 207 to 213, the Convention encourages State Parties to enact laws and to develop rules, guidelines, and procedures at the international and regional level to combat pollution via proficient international institutions and conferences. UNCLOS has also made State Parties accountable for compliance with their commitments regarding the conservation of the ocean under international law.23 The establishment of the International Tribunal for the Law of the Sea (ITLOS) provides different methods for conflict resolution24 and sets reparations. The major significance of UNCLOS is that it requires its provisions to be interpreted in light of other treaties, conventions, and guidelines established by capable international institutions for specific issues. Otherwise, it does not offer a specific framework for addressing ocean plastic pollution.25

Andersen (n 14) 1. ibid. 20 F Alpizar and others, ‘A Framework for Selecting and Designing Policies to Reduce Marine Plastic Pollution in Developing Countries’ (2020) 109 Environmental Science & Policy, https://​www​ .sciencedirect​.com/​science/​article/​pii/​S1462901120301489, accessed 28 June 2021. 21 UNCLOS, Arts 192–237. 22 Vince (n 15) 2. 23 See UNCLOS, Art 235(1). 24 ibid Arts 186–8. 25 LCS Goncalves and MG Faure, ‘International Law Instruments to Address the Plastic Soup’ (2019) 43(3) William & Mary Environmental Law and Policy Review, https://​scholarship​.law​.wm​.edu/​ cgi/​viewcontent​.cgi​?article​=​1741​&​context​=​wmelpr, accessed 28 June 2021. 18 19

Ocean pollution from plastics  131 The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention)26 and the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol)27 prevent waste materials from being discharged into the sea, but only addresses pollution in a general manner. The Convention expressly forbids the discharge of persistent plastics materials, such as netting and ropes, which float in the waters and impede fishing, transportation, or other lawful uses of the ocean.28 Plastic is not included in Article XII which specifies certain contaminating materials that States must prohibit. Article 11(1) of the London Protocol mandates the establishment of a compliance review mechanism, which became one of the essential tools of the Convention. A major shortcoming is the absence of provisions for overcoming economic, scientific, and technical constraints to change the sea disposal culture. The London Convention is rather limited when it comes to addressing plastic waste in the oceans as it encompasses only the discharge from ships, aircraft, platforms, and constructions built by humans at sea, but not limiting emissions from the land. Although the London Convention and its Protocol are beneficial, they address only one particular aspect of the plastic issue.29 The ocean pollution caused by vessels due to accidental or operational reasons is mainly regulated by the 1973 Convention for the Prevention of Pollution from Ships (MARPOL)30 along with the 1978 Protocol relating to the International Convention for the Prevention of Pollution from Ships.31 MARPOL’s Annex V explicitly forbids the disposal of plastics anywhere in the ocean. It is the sole component of the instrument that refers to plastic. It requires States to enable waste reception facilities at ports and ships to dump their garbage at the said facilities.32 MARPOL can be used to regulate shipbuilding and ship design to address plastic pollution by preventing accidental and deliberate escape of plastic from ships.33 By considering a compulsory technical scheme, as it has done in the case of energy efficiency design to prevent greenhouse gas emissions,34 MARPOL could become efficacious in regulating plastic pollution from vessels.35 The two main biodiversity treaties relevant to the marine plastic issue are the 1992 Convention on Biological Diversity (CBD)36 and the 1979 Convention on the Conservation

26 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 13 November 1972, entered into force 30 August 1975) 1046 UNTS 120. 27 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 ILM 1. 28 London Convention, Art IV(1)(a) and Anx I. 29 Goncalves (n 25) 899. 30 International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973, entered into force 2 October 1983) 1340 UNTS 62. 31 Protocol relating to the International Convention for the Prevention of Pollution from Ships (adopted 17 February 1978, entered into force 2 October 1983) 1341 UNTS 3. 32 Vince (n 15) 2. 33 LCS Goncalves, ‘Legal Remedies against the Plastic Pollution of the Oceans: An Analysis of the Attempts from Public International Law and Private Initiatives to Face the Plastic Soup’ (PhD thesis, Maastricht University 2020). 34 See Chapter 11 in Part III, ‘Ocean Governance in an Era of Climate Change’ by S Borg. 35 Goncalves (n 33) 68. 36 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79.

132  Research handbook on ocean governance law of Migratory Species of Wild Animals (CMS, or Bonn Convention).37 The CBD does not directly address plastic pollution even though plastics have a massive effect on ecosystems and marine species. It obliges Parties to foresee, avert, and combat the reasons for the drastic destruction of biological species at its root.38 The CBD’s second Conference of the Parties (COP 2), held in Jakarta in 1995, identified the ocean and its role as a habitat as a focal point.39 The Jakarta Mandate on Marine and Coastal Biodiversity40 urges the importance of preserving and using the marine ecosystem in a sustainable manner and launches Integrated Marine and Coastal Area Management (IMCAM) to resolve the most pressing challenges to the marine biodiversity including pollution from land-based sources. The Aichi Biodiversity Targets under the CBD’s Biodiversity Strategic Plan for the years 2011–20 emphasized the need for the conservation of the marine ecosystem and the reduction of pollution to a phase which does not pose a threat to the biodiversity.41 The eleventh COP also tackles the consequences of human activities on marine species such as pollution.42 On the other hand, the CMS43 deals with migratory species of wild animals and their habitats. Marine plastic waste is a danger to migratory species. The African Eurasian Waterbird Agreement44 falling under the CMS aims to stop plastic from finding its way to the world’s oceans.45 At the Twelfth Conference of the Parties to the CMS in 2017, Parties further pledged to confront the problem of abandoned fishing gear by pursuing the plans outlined in the Food and Agriculture Organization of the United Nations’ Code of Conduct for Responsive Fisheries (FAO’s CCRF).46 To safeguard the health of people and the environment against persistent organic pollutants (POPs), the 2001 Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention)47 was adopted. The Parties to this treaty are obligated to act to prevent or limit the emission of POPs further into the ecology.48 Since 2018, the Convention regulates almost 37 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333. 38 CBD, Arts 3, 7(c) and 8(l). 39 CBD, ‘Conservation and Sustainable Use of Marine and Coastal Biological Diversity’ (1995) Doc CBD/COP/DEC/II/10. 40 S Wells and others, ‘Conservation of Coastal and Marine Biodiversity in the Eastern African Region: Progress in Implementation of the Jakarta mandate’ (IUCN, April 2001), https://​portals​.iucn​ .org/​library/​sites/​library/​files/​documents/​2001​-027​.pdf. accessed 14 August 2022. 41 CBD, ‘Aichi Biodiversity Targets’ (cbd.int, 18 September 2020), https://​www​.cbd​.int/​sp/​targets/​, accessed 4 September 2021. 42 Decision adopted by the Conference of the Parties to the Convention on Biological Diversity at its eleventh meeting (5 December 2012) UNEP/CBD/COP/DEC/XI/18. 43 Convention on the Conservation of Migratory Species of Wild Animals (adopted 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333. 44 The Agreement on the Conservation of African-Eurasian Migratory Waterbirds [2006] OJ L 345/26. 45 CMS Secretariat, ‘World Migratory Bird Day: Birds Globally Threatened by Plastic Waste’ (CMS, 9 May 2019), https://​www​.cms​.int/​en/​news/​world​-migratory​-bird​-day​-birds​-globally​-threatened​ -plastic​-waste​-0, accessed 26 June 2021. 46 Code of Conduct for Responsible Fisheries (31 October 1995) FAO Doc 95/20/Rev/1. 47 Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) (2001) 40 ILM 531. 48 UNEP, ‘Governments Agree Landmark Decisions to Protect People and Planet from Hazardous Chemicals and Waste, Including Plastic Waste’ (UNEP, 11 May 2019), https://​www​.unep​.org/​news​-and​ -stories/​press​-release/​governments​-agree​-landmark​-decisions​-protect​-people​-and​-planet, accessed 18 June 2021.

Ocean pollution from plastics  133 28 POPs, namely those utilized as plasticizers, additives, and fire retardants. POPs including dioxins, dichloro-diphenyl-trichloroethane (DDT), and polychlorinated biphenyl (PCB) can accumulate in plastic materials which are regularly found in ocean plastic debris.49 This instrument’s application to plastics is confined to plastic items that are polluted by the recognized POPs.50 Another applicable legal source to address plastic pollution in the ocean is the 1989 Basel Convention on the Transboundary Movements and Disposal of Hazardous Wastes (Basel Convention)51 which aims to preserve the health of the public and environment52 from the harmful impacts of hazardous waste as well as other wastes emerging from their production, treatment, and transboundary transportation. It ensures that these sources of waste are handled and discarded sustainably by State Parties.53 The transboundary transportation of waste is not specifically prohibited by the Convention. Instead, it mandates that some types of waste can be transported to another State only with the prior informed approval of the receiving country. In 2019, plastic waste was recognized as a source of waste requiring prior informed consent from the receiving Party, through an amendment that obliged States to secure consent from the Party who receives polluted or non-recyclable plastic waste.54 This is believed to have improved waste management and clarity in the process. But, in this author’s view, the Convention has intrinsic problems. For example, multinational corporations are turning to illicit sales to avoid the prior consent criteria.55 The Treaty requires exporting Parties to export to States with the scientific expertise and facilities to handle waste, in practice reasonable care may not necessarily be carried out.56 Developed Parties appear to be misreporting the quantity of waste transported thereby compromising the current reporting mechanism.57 In addition, the Convention imposes no enforcement and punitive measures for non-compliance despite having a compliance committee.58 The Convention needs to be reviewed to further limit the

Basel Convention, ‘Related Initiatives and Guidance within BRS-Conventions’ (Basel 2011), http:// ​ w ww ​ . basel ​ . int/​ I mplementation/​ P lasticwastes/​ O therini​ t iativesan​ d guidance/​ R elat​ e dinitiati​ vesandguid​ancewithin​BRSConven/​tabid/​7994/​Default​.aspx, accessed 28 June 2021. 50 K Raubenheimer and A McIlgorm, ‘Can the Basel and Stockholm Conventions Provide a Global Framework to Reduce the Impact of Marine Plastic Litter?’ (University of Wollongong Research Online, 2018), https://​ro​.uow​.edu​.au/​cgi/​viewcontent​.cgi​?article​=​4453​&​context​=​lhapapers, accessed 28 June 2021. 51 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. 52 Basel Convention, ‘Overview’ (Basel, 2011), http://​www​.basel​.int/​TheConvention/​Overview/​ tabid/​1271/​Default​.aspx, accessed 28 June 2021. 53 UNEP, ‘Report Basel Convention on the Control of Transboundary Movements of Hazardous Wastes’ (UNEP, January 2011), https://​www​.unep​.org/​resources/​report/​basel​-convention​-control​ -transboundary​-movements​-hazardous​-wastes, accessed 28 June 2021. 54 P Kumar and L Sridhar, ‘Basel Convention’s Plastic Ban Amendment: A New Step against Waste Colonialism’ (The Wire, 21 May 2019), https://​thewire​.in/​environment/​basel​-conventions​-plastic​-ban​ -amendment​-is​-a​-new​-step​-against​-waste​-colonialism, accessed 28 June 2021. 55 A Andrews, ‘Beyond the Ban: Can the Basel Convention adequately Safeguard the Interests of the World’s Poor in the International Trade of Hazardous Waste?’ (2009) 5(2) Law, Environment and Development Journal, http://​www​.lead​-journal​.org/​content/​09167​.pdf, accessed 4 September 2021. 56 ibid 173. 57 Kumar (n 54) 6. 58 Andrews (n 55) 174. 49

134  Research handbook on ocean governance law amount of waste transported by developed States and more stringent measures to ensure compliance need to be included. It can be said that MARPOL, the London Dumping Convention, and the Basel Convention have been effective in limiting the disposal of plastic waste into the ocean because of their remit of regulating pollution and waste from vessels and in transboundary movement of wastes and other matter. The CMS, CBD, and Stockholm Convention may also prevent marine plastic pollution. The major lacuna lies in preventing marine plastic pollution from land-based sources. Especially since there is no multilateral treaty on marine pollution from land-based sources other than the UNCLOS provisions in its Part XII59 and Regional Seas Conventions such as the 1995 Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention), the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) and the 1992 Convention on the Protection of the Black Sea against Pollution (Bucharest Convention). UNCLOS through its Articles 194, 207 and 213 states that Parties shall take relevant measures and adopt laws and regulations by considering the international rules and standards and to implement the same to prevent, control, and reduce marine pollution from land-based sources. Even though these obligations are of such a general nature, it is understandable that land-based sources include plastic waste. However, the non-compulsory nature of these provisions allows States to take actions as per their discretion and sometimes to be less stringent than the international rules.60 Consequently, one can argue that international law needs to be supplemented by a legal instrument specifically preventing marine plastic pollution from land-based sources. The lacuna in the multilateral regulation of pollution from land-based sources is also hampered by the lack of an institutional set-up although the Regional Seas Conventions can provide such an institutional capacity and the potential to include provisions targeting the prevention of marine plastic pollution. International policy documents such as political declarations and strategies are non-binding, but nonetheless influential as they may generate enough interest to lead the international community to develop new legal obligations under existing or new treaties. Non-binding international documents may also be instrumental in the formation of customary international law. These international and regional policy measures have had noticeable impact in regulating ocean plastic pollution to date. Certain examples are the Stockholm Declaration,61 the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA),62 the FAO’s CCRF,63 and the 2030 Agenda for Sustainable Development.64 The 1972 Stockholm Declaration, through Principle 7, urges States to adopt necessary precautions to avoid contamination of the oceans from materials that pose a threat to the health and well-being of humans, affect marine species, or impede any legal uses or services offered by

UNCLOS, Arts 194, 207 and 213. NOAA, ‘Land-Based Sources of Marine Pollution’ (NOAA General Counsel, 9 February 2018), https://​www​.gc​.noaa​.gov/​gcil​_land​_based​_pollution​.html, accessed 24 September 2021. 61 Stockholm Declaration on the Human Environment, Report of the United Nations Conference on the Human Environment (Stockholm 5–16 June 1972) UN Doc.A/CONF.48/14/Rev.1. 62 Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (3 November 1995) UNEP Doc (OCA)/LBA/IG.2/7. 63 FAO’s CCRF (n 46). 64 The 2030 Agenda for Sustainable Development (2015) UN Doc A/RES/70/1. 59 60

Ocean pollution from plastics  135 the oceans.65 The United Nations Conference on Environment and Development (UNCED) adopted Agenda 2166 in 1992, which recognizes marine pollution caused by shipping as well as land-based activities. Plastic is mentioned in Chapter 17 as one of the most harmful pollutants to the marine environment. According to Agenda 21, governments need to take precautionary, preventative, and anticipatory strategies to curb the deterioration of the marine ecosystem and to eliminate the chance of prolonged or irreparable consequences.67 The sole international intergovernmental framework that explicitly addresses how pollution of land-based origin is related to ocean ecology is the GPA.68 Its principal role is to offer regional and national governments a theoretical and practical reference on how and where to prevent ocean pollution from land-based operations.69 The first Intergovernmental Review (IGR) of GPA recognized the Montreal Declaration on the Protection of the Marine Environment from Land-based Activities,70 where initiatives were taken to improve GPA’s functioning. In furtherance to a request made in the Manila Declaration on Furthering the Implementation of the GPA,71 the Global Partnership on Marine Litter (GPML) was introduced in 2012 at the United Nations Conference on Sustainable Development (Rio+20).72 It is a multi-stakeholder collaboration that puts all the Parties involved in the fight against marine litter and plastic pollution in one place. The GPML’s main goal is to accomplish the Honolulu Strategy, which aims to limit the volume and effect of waste discharged into the world’s oceans from both land and sea.73 GPA’s non-binding character, absence of compliance mechanisms, wants of concern on the part of nations, and unavailability of funding for developing nations, are the main obstacles to its successful implementation. Furthermore, it resulted in the United Nations Environment Assembly adopting several Resolutions on marine plastic debris and microplastics and, finally, Resolution UNEP/EA.4/R.9 addressing single-use plastic products.74 Similarly, it facilitates dialogues on plastic pollution at strong political platforms, like the G7 Summit. Several regional Conventions like the Barcelona Convention were developed

SC Valson, ‘Everything You Need to Know about the Stockholm Declaration’ (ipleaders, 24 November 2020), https://​blog​.ipleaders​.in/​everything​-need​-know​-stockholm​-declaration/​, accessed 16 June 2021. 66 UNCED Agenda 21, Report of the United Nations Conference on Environment and Development (Rio de Janeiro 3–14 June 1992) UN Doc A/CONF.151/26/Rev.l 1(VOL.I). 67 ibid. 68 UNEP, ‘Governing the Global Programme of Action’ (UNEP, 2018), https://​www​.unep​.org/​ explore​-topics/​oceans​-seas/​what​-we​-do/​addressing​-land​-based​-pollution/​governing​-global​-programme, accessed 30 July 2021. 69 EPA, ‘Protecting the Marine Environment’ (EPA, 12 July 2021), https://​www​.epa​.gov/​international​ -cooperation/​protecting​-marine​-environment, accessed 24 November 2021. 70 Montreal Declaration on the Protection of the Marine Environment from Land-based Activities (Montreal, 26–30 November 2001) UNEP/GPA/IGR.1. 71 Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (Manila, 25–7 January 2012) UNEP/ GPA/IGR.3/5. 72 UN Conference on Sustainable Development (Rio de Janeiro, 20–22 June 2012) UN Doc A/ CONF.216/L.1. 73 M Jansen, ‘Global Partnership on Marine Litter (GPML)’ (Sustainable Development, 19 August 2013), https://​su​stainabled​evelopment​.un​.org/​partnership/​?p​=​7471, accessed 24 November 2021. 74 UNEP, ‘Addressing Single-Use Plastic Products Pollution using a Life Cycle Approach’ (UNEP, 30 June 2021), https://​www​.unep​.org/​resources/​publication/​addressing​-single​-use​-plastic​-products​ -pollution​-using​-life​-cycle​-approach, accessed 1 July 2021. 65

136  Research handbook on ocean governance law by the United Nations Environmental Programme (UNEP) which was one of the significant measures to achieve GPA’s objectives.75 Another important international policy document is the 1995 FAO’s CCRF FAO Code of Conduct for Responsible Fisheries (CCRF).76 It urges countries to address issues related to the effects of fishing on the world’s oceans and to encourage sustainable fishing activities.77 Plastic pollution has impacts on marine species, but one of the generators of plastic contamination is the fishing industry. Even though conservation and pollution are frequent topics, the Code makes no direct reference to plastic.78 It outlines the standards for reducing abandoned and missing fishing gear, as well as the obligation for recovering such gear and bringing that to a seaport for recycling or disposal.79 The 2030 Agenda for Sustainable Development, through Goal 11, Goal 12, and Goal 14, is also significant to address ocean plastic pollution. One of these goals includes prevention and considerable reduction of all types of marine debris, notably from land-based operations by 2025. In this regard, the SDGs are indeed an improvement, containing measures that are closely concerned with the issue especially as governments are required to incorporate these goals into their national policies and strategies and report regularly about them.80 These international policy instruments exhibit evidence of effectiveness, particularly in terms of educating the public, urging a shift in multinational conduct, and funding national and regional schemes. Sometimes policy instruments may even be more influential and faster in getting results than legally binding instruments, especially as they do not take as long to negotiate, given their non-binding nature. There is no specific international policy document on marine plastic waste and it may be useful for the international community to consider this option to provide a comprehensive policy tool whose constituent elements may then be mainstreamed in applicable multilateral or regional treaties to address the marine plastic waste issue under the present legal system.

3.

THE REGIONAL APPROACH: REGIONAL SEAS CONVENTIONS ADDRESSING MARINE PLASTIC POLLUTION

The Regional Seas Conventions (RSCs) are cooperation frameworks intended to safeguard a particular marine area’s marine ecology.81 These Conventions have also played a significant role in combating plastic pollution at sea. Indeed, for many States, regional cooperation is

Goncalves (n 25) 915. FAO’s CCRF (n 46). 77 G Macfadyen and others, ‘Abandoned, Lost or Otherwise Discarded Fishing Gear’ (FAO, 2009), http://​www​.fao​.org/​3/​i0620e/​i0620e00​.htm​#Contents, accessed 5 July 2021. 78 Goncalves (n 25) 916. 79 WWF, ‘Call to Action: Ghost Gear Is the Most Deadly Form of Marine Plastic Debris’ (WWF, 2020), https://​wwflv​.awsassets​.panda​.org/​downloads/​wwf​_ghost​_gear​_report​_spread​.pdf, accessed 5 July 2021. 80 United Nations, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ (United Nations, 21 October 2015), https://​sdgs​.un​.org/​2030agenda, accessed 14 July 2021. 81 DG Environment, ‘Our Oceans, Seas and Coasts’ (European Commission, 2018), https://​ec​.europa​ .eu/​environment/​marine/​international​-cooperation/​index​_en​.htm, accessed 5 September 2021. 75 76

Ocean pollution from plastics  137 recognized as a strategic foundation in terms of ocean conservation.82 In total, three types of Regional Seas Conventions and Action Plans (RSCAPs) exist across 18 different regions globally, including seven UNEP administered, seven non-UNEP administered and four independent programmes.83 Fourteen of them are legally binding through a Convention and its Protocols.84 The Barcelona Convention85 deals with pollution whether from land or ocean sources. The Mediterranean States agreed on the Regional Plan for Marine Litter Management in the Mediterranean ocean in 2013, which focuses on marine litter from land-based sources, and is part of the Regional Seas Programme.86 The Barcelona Convention and its Protocols on dumping from ships, land-based pollution, specially protected areas, and transboundary movement of hazardous wastes, within the framework of the Mediterranean Action Plan (MAP) became the first lawfully enforceable regional strategy for marine debris control in Europe.87 Pollution from land, air, and ocean-based sources was highlighted in the 1992 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area (HELCOM Convention).88 Nine coastal countries who are members of HELCOM agreed on a Regional Action Plan for Marine Litter in the Baltic Sea in 2015.89 OSPAR90 also has a Regional Action Plan set up in 2014 that concentrates on aspects such as port reception facilities, land-based waste management, and marine litter. Over several years, OSPAR has devised uniform data gathering systems for auditing and reporting marine litter.91 Pollution by dumping and land-based sources of pollution were addressed by the Bucharest Convention,92 via four of its Protocols.93 The Black Sea Marine Litter Regional Action Plan covers wastes described in

A Schnell and others, ‘National Marine Plastic Litter Policies in EU Member States: An Overview’ (IUCN, November 2017), https://​www​.europarc​.org/​wp​-content/​uploads/​2017/​11/​IUCN​ _National​-marine​-plastic​-litter​-policies​-in​-EU​-Member​-States​.pdf, accessed 8 July 2021. 83 UNEP, ‘Regional Seas Programme’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​ -seas/​what​-we​-do/​regional​-seas​-programme, accessed 5 September 2021. 84 ibid. 85 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) 1102 UNTS 27. 86 Regional Plan for the Marine Litter Management in the Mediterranean (Barcelona, 18–21 June 2013) UNEP (DEPI)/MED WG. 379/5. 87 C Andres, ‘Barcelona Convention and Protocols’ (UNEP, 2021), https://​www​.unep​.org/​unepmap/​ who​-we​-are/​barcelona​-convention​-and​-protocols, accessed 5 September 2021. 88 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 9 April 1992, entered into force 17 January 2000) 1507 UNTS 167. 89 Vince (n 15) 4. 90 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. 91 OSPAR Commission, ‘Guideline for Monitoring Marine Litter on the Beaches in the OSPAR Maritime Area’ (OSPAR, 2010), https://​www​.ospar​.org/​ospar​-data/​10​-02e​_beachlitter​%20guideline​ _english​%20only​.pdf, accessed 24 November 2021. 92 Convention on the Protection of the Black Sea against Pollution (adopted 21 April 1992, entered into force 15 January 1994) 32 ILM 1110. 93 Black Sea Commission, ‘The Convention on the Protection of the Black Sea against Pollution’ (Black Sea Commission, 2019), http://​www​.blacksea​-commission​.org/​_convention​.asp, accessed 14 July 2021. 82

138  Research handbook on ocean governance law Article 1 of the Land-Based Sources (LBS) Protocol, as well as any disposal during normal operations of ships, platforms, and other installations in the Black Sea.94 Prevention of marine, coastal, and inland water pollution in south, west, and central Africa is regulated by the 1984 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).95 Pollution through dumping, from vessels and land-based sources, sustainable use of resources, and conservation of biodiversity are the subject-matter of this framework Convention.96 In 1985, a regional action plan was adopted for the Eastern Africa region. The Parties to the 1996 Convention on the Protection, Management and Development of the Marine and Coastal Environment of the Eastern Africa Region (Nairobi Convention)97 have adopted two Protocols that address marine pollution in cases of emergency, and conservation of protected areas and wild plants and organisms in the Eastern Africa region, and another Protocol on protection of the Western Indian Ocean against pollution from sources and activities on land to implement the plan.98 The 2003 Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Tehran Convention)99 along with its Protocols on regional preparedness, land-based pollution, and biodiversity conservation has the potential to address marine litter issues and is grounded on certain fundamental principles such as the polluter pays principle, the precautionary principle, and access to and exchange of environmental information principle.100 The fragile marine and coastal ecosystem in the Wider Caribbean region is protected by the 1986 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention)101 supplemented by its Protocols on Oil Spills, Specially Protected Areas and Wildlife (SPAW Protocol), and Pollution from Land-Based Sources (LBS

94 Black Sea Commission, ‘Black Sea Marine Litter Regional Action Plan’ (Black Sea Commission, 2018), http://​blacksea​-commission​.org/​Downloads/​BS​_Marine​_Litter​_RAP​_adopted​.pdf, accessed 14 July 2021. 95 Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (adopted 23 March 1981, entered into force 5 August 1984) ECOLEX TRE-000547. 96 UNEP, ‘The Abidjan Convention’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​ -seas/​what​-we​-do/​working​-regional​-seas/​regional​-seas​-programmes/​west​-and​?​_ga​=​2​.144724788​ .1055725277​.1619684984​-2041677393​.1612174695​,​%20http://​www​.abidjanconvention​.org/​, accessed 5 September 2021. 97 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) 91 RGDIP 1122 (1993) UNEP Register 228. 98 L Mead, ‘The “Crown Jewels” of Environmental Diplomacy: Assessing the UNEP Regional Seas Programme’ (International Institute for Sustainable Development, 27 April 2021), https://​www​.iisd​.org/​ articles/​crown​-jewels​-environmental​-diplomacy​-assessing​-unep​-regional​-seas​-programme, accessed 5 September 2021. 99 Framework Convention for the Protection of the Marine Environment of the Caspian Sea (adopted 4 November 2003, entered into force 12 August 2006) (2003) 44 ILM 1. 100 UNEP, ‘The Tehran Convention’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​ -seas/​what​-we​-do/​working​-regional​-seas/​regional​-seas​-programmes/​caspian​-sea​?​_ga​=​2​.112377604​ .1055725277​.1619684984​-2041677393​.1612174695, accessed 6 September 2021. 101 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (adopted 24 March 1983, entered into force 11 October 1986) 1506 UNTS 157.

Ocean pollution from plastics  139 Protocol).102 Certain achievements of the Caribbean Environment Programme (CEP) were the growth of a Regional Node for Marine Litter Management, and the execution of the Caribbean Clean Seas Campaign on Marine Litter and Plastics.103 Several other important RSCs include the 1978 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution,104 the 1981 Convention for the Protection of the Marine Environment and Coastal Areas in the South-East Pacific (Lima Convention),105 the 1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (Jeddah Convention),106 the 1986 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP or Noumea Convention),107 and the 2002 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of the North-East Pacific (Antigua Convention).108 Among these Conventions, the Kuwait, Lima, and Jeddah Conventions are supplemented by Protocols to address both sea-based and land-based sources. The provisions of these Conventions, with the objective to protect marine and coastal ecosystems against marine pollution, reflect progress in the regional instruments. The Kuwait Convention has developed broader monitoring initiatives to enable the implementation of the Kuwait Action Plan.109 Article 123 of the Jeddah Convention aims to promote cooperation between coastal States of an enclosed sea and a semi-enclosed sea. It also called for the coordination of activities among these nations concerning the rights and duties in protecting the marine environment, thereby keeping harmony with the relevant provisions of UNCLOS.110 The Noumea Convention through its Protocols prevents dumping activities and facilitates cooperation in addressing pollution.111 Though the Action Plan for the North-East Pacific region regulates sewage and other pollutants, the Antigua Convention has not come into force yet.112 102 UNEP, ‘Caribbean Environment Programme’ (UNEP, 2020), https://​ www​ .unep​ .org/​ explore​ -topics/​ o ceans ​ - seas/​ w hat ​ - we​ - do/​ w orking ​ - regional ​ - seas/​ r egional​ - seas ​ - programmes/​ w ider ​ ? ​ _ ga​ = ​ 2​ .206181395​.1055725277​.1619684984​-2041677393​.1612174695, accessed 6 September 2021. 103 Mead (n 98) 6–7. 104 Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution (adopted 24 April 1978, entered into force 30 June 1979) 1140 UNTS 133. 105 Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (adopted 12 November 1981, entered into force 19 May 1986) UNEP (092)/M352. 106 Regional Convention for the Conservation of the Red Sea and Gulf of Aden (adopted 14 February 1982, entered into force 20 August 1985) (1983) 22 ILM 219. 107 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (adopted 24 November 1986, entered into force 22 August 1990) (1987) 26 ILM 41. 108 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of The Northeast Pacific (adopted 18 February 2002). 109 UNEP, ‘Regional Organisation for Protection of the Marine Environment’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​-seas/​what​-we​-do/​working​-regional​-seas/​regional​-seas​ -programmes/​ropme​-sea​-area, accessed 5 September 2021. 110 UNEP, ‘The Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​-seas/​what​-we​-do/​working​ -regional​-seas/​regional​-seas​-programmes/​red​-sea​-and, accessed 5 September 2021. 111 UNEP, ‘Secretariat of the Pacific Environment Programme: The SPREP Convention’ (UNEP, 2020), https://​www​.unep​.org/​explore​-topics/​oceans​-seas/​what​-we​-do/​working​-regional​-seas/​regional​ -seas​-programmes/​pacific, accessed 6 September 2021. 112 UNEP, ‘North East Pacific Regional Seas Programme’ (UNEP, 2020), https://​www​.unep​.org/​ explore​-topics/​oceans​-seas/​what​-we​-do/​working​-regional​-seas/​regional​-seas​-programmes/​north​-east​-0, accessed 6 September 2021.

140  Research handbook on ocean governance law Regional seas programmes provide a foundation for Parties to take action to address marine plastic litter and microplastics even though it is not directly stated in certain regional legal instruments. However, there are certain challenges faced by the regional instruments in regulating marine plastic pollution. The level of implementation varies from region to region due to differences in jurisdictions, scope, and resource capacity. Also, there is inadequacy in financial support and lack of human resources for the successful implementation of programmes and for monitoring purposes.113 Some regions still do not have a regional instrument to govern them. A very few regions have working long-term assessment and monitoring schemes based on marine plastic litter data submitted by the Contracting Parties.114 A multi-stakeholder engagement should be encouraged more to prevent marine plastic litter at its source. One such example is the Regional Marine Litter Nodes under the GPML.115

4.

THE EUROPEAN UNION LEGAL AND POLICY FRAMEWORK ADDRESSING MARINE PLASTIC POLLUTION

Damage caused by marine debris costs the European Union (EU) economic system between 259 million and 695 million euros annually, particularly harming the tourism-related industry, about 630 million euros, and the fisheries sector, about 62 million euros.116 The EU’s action towards a plastic-free environment is generally viewed as a model that can be adopted on a global standard.117 There are various EU laws that if well implemented would prevent and reduce marine plastic pollution. The 2008 Marine Strategy Framework Directive (MSFD)118 is the first EU law to specifically target marine debris. The primary objective was to achieve Good Environmental Status (GES) for the European marine waters by the year 2020.119 The Directive lists marine litter as being one of the ‘GES’ descriptors. According to the MSFD, Member States must assure that ‘properties and proportions of marine litter do not pose

N Wienrich and others, ‘Stronger Together: The Role of Regional Instruments in Strengthening Global Governance of Marine Plastic Pollution’ (Institute for Advanced Sustainability Studies, February 2021), https://​publications​.iass​-potsdam​.de/​rest/​items/​item​_6000714​_5/​component/​file​_6000717/​ content, accessed 24 September 2021. 114 ibid. 115 GPML, ‘Purpose of Regional Nodes’ (Marine Litter Network, 2018), https://​marinelitternetwork​ .engr​.uga​.edu/​regional​-nodes/​, accessed 24 September 2021. 116 D Bourguignon, ‘Single-Use Plastics and Fishing Gear: Reducing Marine Litter’ (European Parliament, 17 June 2019), https://​www​.europarl​.europa​.eu/​RegData/​etudes/​BRIE/​2018/​625115/​EPRS​ _BRI​%282018​%29625115​_EN​.pdf, accessed 14 July 2021. 117 M Nyka, ‘Legal Approaches to the Problem of Pollution of Marine Environment with Plastic’ (2019) 59(131) Scientific Journals of the Maritime University of Szczecin, http://​yadda​.icm​.edu​.pl/​yadda/​ element/​bwmeta1​.element​.baztech​-88f4e8d8​-ca29​-4840​-8f5f​-7dffeaeae09d, accessed 8 July 2021. 118 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 [2008] OJ L164/19. 119 JP da Costa and others, ‘The Environmental Impacts of Plastics and Micro-Plastics Use, Waste and Pollution: EU and National Measures’ (European Parliament, October 2020), https://​www​.europarl​ .europa​.eu/​RegData/​etudes/​STUD/​2020/​658279/​IPOL​_STU(2020)658279​_EN​.pdf, accessed 19 March 2021. 113

Ocean pollution from plastics  141 a danger to the marine and coastal ecology’, by 2020.120 The 2018 European Strategy for Plastics in a Circular Economy which comes under the EU’s circular economy action plan, outlines the major strategies to achieve this goal.121 Initiatives to combat disposable plastics and fishing gear; measures on restricting the access of microplastics into the ocean; and methods to minimize the discharge of marine debris from vessels, amongst others, are all part of the strategy.122 The 2015 Plastic Bags Directive123 addresses the excessive usage of lightweight plastic carrier bags having a thickness of fewer than 50 microns, which seem to be among Europe’s ten most popular discarded waste items. It mandates the EU Members to implement initiatives like nationwide minimization targets, bans, as well as economic policies such as fees and taxes.124 These goals may be exempted for very lightweight plastic carrier bags of thickness less than 15 microns that are essential for hygienic or food packaging purposes. Regarding plastic carrier bags having a thickness of more than 50 microns, States are not permitted to impose bans; however, they are allowed to choose other methods such as national reduction targets and imposition of taxes or fees to minimize the usage of such plastic bags.125 Another important law to regulate plastic waste is the 2019 Single-Use Plastic (SUP) Directive126 that imposed a ban upon the ten most contaminating disposable plastics including oxo-degradable products for which substitutes are available, from the year 2021.127 It promotes Extended Producer Responsibility (EPR) systems for items such as lightweight plastic carrier bags, fishing gear, and so on which fund the expenses of picking up, transportation, and processing, as well as litter clean-up and educative events. It introduces steps to limit usage by enabling specific marking and labelling of certain plastic products.128 There are two EU Directives to control the ocean-based sources of marine pollution which may have an impact on plastic waste as well, namely, the 2019 Port Reception Facilities Directive129 and the 2009 Ship-source pollution Directive.130 The Port Reception Facilities

DG Environment, ‘Descriptor 10: Marine Litter’ (European Commission, 2020), https://​ec​.europa​ .eu/​environment/​marine/​good​-environmental​-status/​descriptor​-10/​index​_en​.htm, accessed 5 July 2021. 121 DG Environment, ‘Plastics Strategy’ (European Commission, 2020), https://​ ec​ .europa​ .eu/​ environment/​strategy/​plastics​-strategy​_en, accessed 5 July 2021. 122 Vince (n 15) 4. 123 Directive (EU) 2015/720 of the European Parliament and of the Council of 29 April 2015 amending Directive 94/62/EC as regards reducing the consumption of lightweight plastic carrier bags [2015] OJ L115/11. 124 DG Environment, ‘The Plastic Bags Directive’ (European Union, 2021), https://​ec​.europa​.eu/​ environment/​topics/​plastics/​plastic​-bags​_en, accessed 24 June 2021. 125 ibid 1. 126 Directive (EU) 2019/904 of the European Parliament and of the Council of 5 June 2019 on the reduction of the impact of certain plastic products on the environment [2019] OJ L155/1. 127 LC de Souza, ‘Unfolding the Single-Use Plastics Directive: Policy Briefing’ (Rethinkplasticalliance, May 2019), https://​re​thinkplast​icalliance​.eu/​wp​-content/​uploads/​2019/​05/​ZWE​_Unfolding​-the​-SUP​ -directive​.pdf, accessed 24 June 2021. 128 ibid 5. 129 Directive (EU) 2019/883 of the European Parliament and of the Council of 17 April 2019 on port reception facilities for the delivery of waste from ships, amending Directive 2010/65/EU and repealing Directive 2000/59/EC [2019] OJ L151/116. 130 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52. 120

142  Research handbook on ocean governance law Directive intends to restrict the amount of garbage and cargo leftovers released into the ocean by vessels.131 The objective of this Directive is to systematically tackle marine debris disposal from shipping, by offering financial assistance for handing over trash to port facilities, to monitor and ensure compliance with its compulsory delivery obligation, and quality waste management at appropriate collection and treatment facilities at EU ports.132 According to the Ship-source pollution Directive, toxic releases from ships, such as oil or other hazardous materials into the ocean, are a criminal offence. Those who commit such discharges may be subjected to criminal penalties if they did it with intent or in a reckless or negligent manner.133 A major challenge is an exemption allowed by the Directive to the prohibition on releasing contaminating materials, if the security of humans or the vessel is at risk.134 In this author’s view, there is possibility for this ground to be misused, as an excuse to escape from penalties, by the ship owners or ship authorities who are responsible for the release of hazardous wastes including plastic into the sea. From an environmental perspective, the aim of the 2018 Directive on Packaging and Packaging Waste135 is to reduce the quantity of packaging waste that requires final disposal by emphasizing preventative measures. Packaging including plastic accounts for a significant amount of marine litter. However, there is no mention of litter or the marine environment in the Directive. Targets for increased reuse, recovery, and recycling of packaging waste including plastic are examples of relevant measures.136 The 2018 Waste Framework Directive137 enables EU Member States to track items that are mostly disposed of and to adopt policies to stop the release of waste,138 as well as to improve the relationship between waste management and marine litter prevention measures. It contains goals for all levels on the waste hierarchy (i.e., prevent, reuse, recycle, recover, dispose of.139 The Directive recognizes that waste prevention and management strategies should be adopted, and they must be synchronized with the MSFD and the EU Water Framework Directive standards as per paragraph 3(iii)(f) and paragraph 5 of Article 28.140

Bourguignon (n 116) 4. G Arguello, ‘Environmentally Sound Management of Ship Wastes: Challenges and Opportunities for European Ports’ (2020) 5(12) JST, https://​jshippingandtrade​.springeropen​.com/​articles/​10​.1186/​ s41072​-020​-00068​-w, accessed 24 September 2021. 133 N Giovannini and others, ‘Addressing Environmental Crimes and Marine Pollution in the EU: Compendium of International and EU Law Instruments’ (Droit au Droit International, 2013), https://​ www​.files​.ethz​.ch/​isn/​169103/​-2​.pdf, accessed 24 September 2021. 134 European Union, ‘Ship-Source Pollution and Criminal Penalties’ (EUR-Lex, 25 April 2016), https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​LEGISSUM​%3Al24123, accessed 30 June 2021. 135 Directive (EU) 2018/852 of the European Parliament and of the Council of 30 May 2018 amending Directive 94/62/EC on packaging and packaging waste [2018] OJ L150/141. 136 ERA, ‘Information Brief on Directive (EU) 2018/852 of the European Parliament’ (SEM, 2021), https://​sem​.gov​.mt/​wp​-content/​uploads/​2018/​09/​Information​-Brief​-1​.pdf, accessed 24 June 2021. 137 Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/EC on waste [2018] OJ L150/109. 138 Bourguignon (n 116) 3. 139 Eurocities, Interview with Hakon Sandven Jentoft, Senior Executive Officer, Agency for Waste Management (City of Oslo, 7 April 2020). 140 European Commission (n 120). 131 132

Ocean pollution from plastics  143 Inland waters, comprising coastal waters, are regulated by the 2000 Water Framework Directive.141 Some of its goals are pollution prevention, environmental conservation, habitats improvement, and so on. Its primary goal was for all inland waters to reach a ‘good ecological and chemical condition’ in 2015. The Directive is silent on marine litter, particularly plastic litter. Instead, it focuses on chemical contaminants. It has the potential to decrease marine pollution by controlling pollution in the riverine pathway. This Directive could, however, cover solid litter, especially microlitter.142 The main objective of the 1998 Urban Waste Water Treatment Directive143 is to limit the contamination of water resources including coastal waters by industrial effluents, domestic wastewater, and rainwater runoff. It governs the collection and treatment of urban wastewater which contains chemical concentrations. Urban wastewater carries the plastic packaging, microplastics from personal care products, and fibres from clothes when they flow.144 Large waste particles except micro- and nano-plastics are removed from wastewater after the water purification process.145 According to the recent review of the Directive, even though compliance rates are improving, certain areas such as plastics have not been adequately handled.146 This could be addressed by upgrading the capacity of the current treatment plants and avoiding rainwater runoff.147 The Landfill Directive148 provides technical criteria for the functioning of landfills to lower their environmental impact, especially upon the surface water. It stipulates that those dumpsites are not to be set in close vicinity to water resources including coastal waters and that wastes that can be carried by wind be kept to a minimum. These efforts might help to limit the discharge of plastic packaging trash and other hazardous wastes to end up in the ocean.149 The basic goal of the Habitats Directive150 is to keep habitats and species in a good state of conservation.151 It developed the Natura 2000 protected area network with the Birds

141 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L327/1. 142 M Van Acoleyen and others, ‘Marine Litter Study to Support the Establishment of an Initial Quantitative Headline Reduction Target’ (European Commission, 7 August 2014), https://​ec​.europa​ .eu/​environment/​marine/​good​-environmental​-status/​descriptor​-10/​pdf/​final​_report​.pdf, accessed 29 June 2021. 143 Commission Directive 98/15/EC of 27 February 1998 with respect to certain requirements established in Annex I thereof amending Council Directive 91/271/EEC concerning urban waste-water treatment [1998] OJ L67/29. 144 S Newman and others, ‘How to Improve EU Legislation to Tackle Marine Litter’ (Institute for European Environmental Policy, 2013), http://​minisites​.ieep​.eu/​assets/​1258/​IEEP​_2013​_How​_to​ _improve​_EU​_legislation​_to​_tackle​_marine​_litter​.pdf, accessed 29 June 2021. 145 Acoleyen (n 142) 220. 146 RAI Amsterdam, ‘Microplastics Remain Area of Emerging Concern’ (Aquatechtrade, 26 November 2020), https://​www​.aquatechtrade​.com/​news/​wastewater/​tackling​-microplastics​-with​ -technology/​, accessed 13 July 2021. 147 Acoleyen (n 142) 220. 148 Directive (EU) 2018/850 of the European Parliament and of the Council of 30 May 2018 amending Directive 1999/31/EC on the landfill of waste [2018] OJ L150/100. 149 E Bildberg and others, ‘EU Legislation and Policies to Prevent Marine Litter’ (Blastic), https://​ www​.blastic​.eu/​knowledge​-bank/​management/​eu​-legislation​-and​-policies/​, accessed 30 June 2021. 150 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 151 Newman (n 144) 14.

144  Research handbook on ocean governance law Directive.152 Articles 6(1) and 6(2) oblige EU Member States to initiate actions within its framework to restrict matters that might potentially harm these species and degrade their habitats.153 Although marine debris may fall under its scope, no specific measures relating to plastic pollution are mentioned. The 2020 New Circular Economy Action Plan (CEAP)154 is a foundation to the EU Green Deal.155 The Action Plan lays down suitable techniques for transitioning into a circular economy upon an array of substances, including plastics, and includes waste management goals as well as initiatives to improve reusing, repairing, and recycling.156 The Commission will be updating regulations on labelling, standardization, certification, and regulatory approaches to mitigate unplanned emissions of microplastics. If cutbacks at the root are not feasible, interventions at succeeding phases of the process will be considered.157 Furthermore, under the proposed micro- and nano-plastics ban in the EU, all microplastics deliberately mixed with skincare, paint, detergents, and practically all other consumer goods were proposed to be banned, according to the European Chemicals Agency.158 However, there are longer transition phases of up to eight years for certain commodities to act, thereby undermining the effectiveness of the ban.159 Even though nano-plastics are dangerous, the prohibition does not apply to smaller plastic particles.160 Furthermore, it excludes biodegradable plastic.161 A new law is supposed to take effect in 2022.162 From the discussion above, one can deduce that plastics are regulated directly and indirectly by various Directives, yet none of them address the issue holistically and exclusively. EU law attempts to regulate plastics under various sectors, for example, manufacturing, packaging, use

Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7. 153 European Environment Agency, ‘The Natura 2000 Protected Areas Network’ (EEA, 9 August 2021), https://​www​.eea​.europa​.eu/​themes/​biodiversity/​natura​-2000/​the​-natura​-2000​-protected​-areas​ -network, accessed 30 June 2021. 154 European Union, ‘A New Circular Economy Action Plan for a Cleaner and More Competitive Europe COM/2020/98 Final’ (Eur-lex, 11 March 2020), https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​ TXT/​?uri​=​CELEX​%3A52020DC009, accessed 5 July 2021. 155 The European Green Deal is a significant strategy to transform the EU into a more resource-efficient, climate-neutral, and competitive economy, and to have a pollution-free biodiversity. The CEAP 2020’s established goals for sustainable growth, to become a circular economy, are in conjunction with the EU Green Deal. 156 Municipal Waste Europe, ‘Summary of the Current EU Waste Legislation’ (Municipal Waste Europe, November 2020), https://​www​.​municipalw​asteeurope​.eu/​summary​-current​-eu​-waste​-legislation, accessed 5 July 2021. 157 European Union, ‘Circular Economy Action Plan: For a Cleaner and More Competitive Europe’ (European Union, 2020), https://​ec​.europa​.eu/​environment/​pdf/​circular​-economy/​new​_circular​ _economy​_action​_plan​.pdf, accessed 24 June 2021. 158 Rethink Plastic, ‘It’s Time for EU Decision-Makers to Severely Restrict the Intentional Use of Microplastics’ (Rethink Plastic, 30 March 2021), https://​re​thinkplast​icalliance​.eu/​news/​microplastics​ -restriction/​, accessed 24 September 2021. 159 ibid. 160 J Hunter, ‘EU Set to Make Microplastic Problem Worse’ (META-EEB, 1 September 2020), https://​ meta​.eeb​.org/​2020/​09/​01/​an​-eu​-ban​-on​-microplastic​-is​-set​-to​-make​-the​-problem​-worse/​, accessed 8 July 2021. 161 ibid. 162 Hunter (n 160) 2. 152

Ocean pollution from plastics  145 phase, littering, end-of-life, and pollution.163 Presently, there are no provisions under EU law that specifically target plastic littering164 apart from a few EU laws such as the Plastic Bags and SUP Directives which directly mention the term plastic. The SUP Directive banned the ten single-use plastics that constitute the most common type of plastic litter. However, given the dangerous impacts of disposable plastics, there should be an extension in the scope of the ban to the remaining disposable plastic items. According to an assessment conducted by select European organizations, only a few EU Member States have completely embraced the opportunity presented by the SUP Directive to eliminate single-use plastics and successfully control plastic pollution.165 The Directive’s basic standards have been recognized by the majority of EU Member States and the transposition is still work in progress in several of these countries.166 According to the Commission, market fragmentation is a concern, and the main reason for such inconsistent efforts, and the root cause of discrepancy which varies in extent, focus, and purpose among the Member States. Moreover, no EU laws oblige Member States to formulate policies aiming at the elimination of primary and secondary microplastics.

5.

MALTA AS A CASE STUDY FOR A NATIONAL LEGAL FRAMEWORK TO REGULATE PLASTIC WASTE

Malta is a small island nation State, an EU Member State,167 and a Mediterranean State which is a Party to the Barcelona Convention and its Protocols. Malta’s laws reflect legal obligations found in applicable international and regional laws as well as EU law. Furthermore, Malta is a country having constitutional provisions for a healthy environment.168 The Constitution of Malta169 through its Article 9(2) obliges the State to protect the environment from environmental degradation and pollution. Malta has several other national laws that regulate the management of waste and pollution of the environment. The 2016 Environment Protection Act (EPA)170 is Malta’s framework Act for preserving the environment; it is an enabling Act meaning that various regulations or legal notices, also known as subsidiary legislation (SL), are published thereunder. It establishes the Environment Protection Directorate of the Environment and Resources Authority (ERA) which is the official entity for enforcement of

163 J Olovsson and F Hein, ‘Plastic Waste Prevention in Gothenburg’ (Master’s Thesis, Chalmers University of Technology 2018) 15. 164 Bourguignon (n 116) 4. 165 ibid. 166 L Copello and others, ‘Moving on from Single-Use Plastics: How is Europe Doing?’ (Rethinkplasticalliance, July 2021), https://​re​thinkplast​icalliance​.eu/​wp​-content/​uploads/​2021/​06/​SUP​ -Assessment​-Design​-final​.pdf, accessed 15 July 2021. 167 Malta became an EU Member State on 1 May 2004. P Tabone and V Nardelli, ‘Malta’s EU Story; How Ten Years of EU Membership have Changed the Country’ (The Today Public Policy Institute, June 2014), https://​www​.europarl​.europa​.eu/​malta/​resource/​static/​files/​malta​-eu​-​-2​-​.pdf, accessed 24 November 2021. 168 UNEP, ‘Environmental Rule of Law: First Global Report’ (WedocsUnep, 24 January 2019), https://​wedocs​.unep​.org/​bitstream/​handle/​20​.500​.11822/​27381/​ERL​_ch4​.pdf​?sequence​=​1​&​isAllowed​=​ y, accessed 15 July 2021. 169 Constitution of Malta, Chapter 1 of the Laws of Malta. 170 Environment Protection Act, Chapter 549 of the Laws of Malta.

146  Research handbook on ocean governance law the EPA.171 According to the Act, every individual is obliged to safeguard the environment and ensure sustainability in handling natural resources. Subsidiary laws of this Act highlight numerous responsibilities of the Act, such as safeguarding the marine environment by way of its sustainable usage as well as pollution management.172 An important law to regulate disposable plastic items in Malta is the 2020 Restrictions on the Placement on the Market of Single-Use Plastic Products Regulations.173 This Regulation implements in part the 2020 Budget proposal and transposes Articles 5, 6(1), and 6(2) of SUP Directive (EU) 2019/904. This law has banned, since 2021, the single-use plastic goods named in Part A of the Schedule, as well as items made of oxo-degradable plastic. It also bans from 2024 onwards the SUP goods included in Part B of the Schedule from being placed on the market if certain product design prerequisites are not met.174 The Regulation imposes a criminal penalty fee on individuals who break the rule’s prohibition. There have been no steps taken to implement the rest of the SUP Directive’s requirements, such as EPR and consumption reduction measures.175 Biodegradable plastic bags are not included within its scope. The 1994 Marine Pollution (Prevention and Control) Act176 seeks to prevent and control pollution of the sea as well as compliance with the international and regional Conventions and Protocols connected to ocean conservation. Part II of the Act addresses the criminal liability imposed in case of release of oil or other pollutants from vessels and land areas into the territorial sea or area beyond those limits. In addition, the Act stipulates civil liability for the offenders. It specifies pollution prevention and control procedures concerning ships,177 but no detailed account is given on measures for land-based sources. There are two main regulations in Malta to address the marine pollution caused by ships. The first is the 2004 Merchant Shipping (Prevention of Pollution by Garbage) Regulations178 which regulates garbage disposal from ships to stop ocean pollution. These Regulations apply to Maltese ships, anywhere they are, as well as other ships when they are within Malta.179 As per Regulation 4, it is unlawful to dump any plastic materials from a ship further into water areas outside the special areas.180 Whereas, the 2004 Regulations on Port Reception Facilities

171 ERA, ‘State of the Environment Report 2018: Chapter 9 – Policy Responses: Reporting Status from 2009 to 2015’ (ERA, 30 November 2018), https://​era​.org​.mt/​wp​-content/​uploads/​2019/​05/​ Chapter9​_PolicyResponses​-30Nov2018​.pdf, accessed 24 November 2021. 172 ERA, ‘National Action Plan for the Protection of the Marine Environment from Land Based Activities: Malta’ (ERA, November 2005), https://​era​.org​.mt/​wp​-content/​uploads/​2019/​10/​National​ _Action​_Plan​_of​_Malta​.pdf, accessed 15 July 2021. 173 The Restrictions on the Placement on the Market of Single-Use Plastic Products Regulations, SL 549.140. 174 ERA, ‘Plastic Waste’ (ERA, June 2021), https://​era​.org​.mt/​topic/​plastic​-waste/​, accessed 15 July 2021. 175 Copello (n 166) 43. 176 Marine Pollution (Prevention and Control) Act, Chapter 271 of the Laws of Malta. 177 ECOLEX, Marine Pollution (Prevention and Control) Act 1994 (ECOLEX), https://​www​.ecolex​ .org/​details/​legislation/​marine​-pollution​-prevention​-and​-control​-act​-lex​-faoc041794/​, accessed 15 June 2021. 178 The Merchant Shipping (Prevention of Pollution by Garbage) Regulations, SL 234.33. 179 ibid Reg 3. 180 ECOLEX, Merchant Shipping (Prevention of Pollution by Garbage) Regulations 2004 (ECOLEX), https://​www​.ecolex​.org/​details/​legislation/​merchant​-shipping​-prevention​-of​-pollution​-by​-garbage​ -regulations​-lex​-faoc041818/​, accessed 15 June 2021.

Ocean pollution from plastics  147 for Ship-generated Wastes and Cargo Residues181 establish requirements for port reception facilities to limit the release of wastes from ships and cargo leftovers into the ocean. These Regulations cover all ships, especially fishing and recreational boats, entering any port of Malta, regardless of the flag they are carrying.182 The 2011 Waste Regulations183 are designed to preserve public health and the environment by preventing the deleterious effects of waste generation and handling measures. Regulation 10(1) includes plastic within its area of application. The Regulation through its Schedule 1 classifies certain disposal operations such as landfilling or the release of waste into the sea. Disposal is the least preferred action in the waste management process, and it should only be used when the trash cannot be handled anymore or is no longer useful.184 This points out the major flaw of the Regulation as it is allowing disposal of waste into the ocean as an option. The 2006 Waste Management (Packaging and Packaging Waste) Regulations185 add to the 2001 Waste Management (Permit and Control) Regulations, by setting up new measures focused at preventing the generation of packaging waste and reusing, recycling, as well as other types of waste recovery. It also aims at limiting the final discharge of those wastes.186 Plastic is included among the categories of packaging under the Regulation.187 The 2001 Urban Waste Water Treatment Regulations188 regulate the collection, processing, and disposal of urban wastewater and industrial effluents into freshwater or coastal waters. The goal of this law is to safeguard the environment from the detrimental effects of wastewater releases.189 The 2015 Water Policy Framework Regulations190 provide an implementation strategy for the conservation of inland and coastal waters. They seek to encourage sustainable water utilization based on long-term preservation of existing water resources, as well as to deliver greater protection and betterment of the aquatic ecosystem via particular policies to gradually reduce and phase out emissions of hazardous substances.191 A notable policy initiative taken by Malta in the fight against plastic pollution is the single-use plastic products strategy adopted for the years 2021–30. The goals of this strategy are to minimize the use of single-use plastic items and to improve the quality and quantity of disposable plastic taken for recycling, thereby lowering the harmful effects of plastic litter on public health and the environment.192 The strategy prohibits certain single-use plastic items and merchandise made of oxo-degradable plastics, introduces EPR and tax on lightweight plastic carrier bags, and boosts separate collection and recycling percentages of dispos181 Regulations on Port Reception Facilities for Ship-generated Wastes and Cargo Residues, SL 499.30. 182 Schnell (n 82) 44. 183 The Waste Regulations, SL 549.63. 184 RG Cavallazzi and R Gatt, ‘Environment and Climate Change in Malta’ (Lexology, 15 November 2018), https://​www​.lexology​.com/​library/​detail​.aspx​?g​=​24a7be19​-1e87​-4fcc​-ae16​-bf24f4565494, accessed 15 August 2021. 185 Waste Management (Packaging and Packaging Waste) Regulations, SL 549.43. 186 Schnell (n 82) 44. 187 Waste Management (Packaging and Packaging Waste) Regulations, Reg 3(1). 188 Urban Waste Water Treatment Regulations, SL 549.22. 189 ibid. 190 Water Policy Framework Regulations, SL 549.100. 191 ibid. 192 ERA, ‘Single-Use Plastic Products Strategy for Malta 2021–2030’ (ERA, September 2021), https://​era​.org​.mt/​single​-use​-plastic​-products​-strategy​-for​-malta​-2021​-2030/​, accessed 26 June 2021.

148  Research handbook on ocean governance law able plastic beverage bottles via a refund scheme, and so on. There is an exemption for very lightweight plastic bags used for hygiene and food packaging from these measures.193 A new proposal in the 2020 national budget bars the importation and manufacture of some single-use plastic products as of 2021, plus forbidding their sale and distribution since around 2022.194 Malta has a variety of laws which are being used to limit the release of plastic materials into the environment. Only a few of these laws such as the Waste Regulations, Packaging Waste Management Regulations, and SUP Regulations explicitly mention plastic, and others regulate the environment and pollution in general. Considering the single-use plastics regulation, products included in Schedule B will only be banned from 2024.195 Such a long transition period will still allow disposable plastics to reach the environment in a massive amount. Furthermore, the ban does not extend to all SUPs, reducing the effectiveness of this compendium of national legislation in reducing marine plastic pollution. Reliance on landfilling and poor recycling ratios are one of Malta’s primary challenges, which makes it difficult to accelerate the proper execution of EU waste treatment rules.196 This is in part due to lack of territory due to Malta’s small size, namely 316 km2 of territory which makes it the tenth smallest nation in the world and the fourth most populated sovereign State with a population density of 1633/km2 excluding around 2 million tourists which visit each year. Economies of scale make recycling in situ very challenging. Even if Malta’s SUP strategy gives more importance to recycling, the fact is that the recycled products will eventually reach a phase where they can no longer be treated or have no more use, so disposal into the environment is the final option.197 The Waste Regulations have included disposal as a final option in the hierarchy of waste management and Schedule 1 mentions the disposal of waste into the ocean as one of the disposal operations. Given the dangerous effects of microplastics, there is no such measure implemented so far to ban micro-beads and other microplastics in products.

6. CONCLUSION Plastic is a threat that has dire repercussions for marine and human life if it is not appropriately regulated at the global, regional, and national level. The need to have a three-tier approach to regulate plastic stems from the way communities manufacture, consume, handle, and discard plastic.198 Due to the hurdles and financial constraints created by COVID-19, various policies

193 A Muscat and L Spiteri, ‘The Single-Use Plastics Products Strategy for Malta 2020–2030’ (MAMO TCV, 28 October 2019), https://​www​.mamotcv​.com/​resources/​news/​the​-single​-use​-plastics​ -products​-strategy​-for​-malta​-2020​-2030, accessed 2 March 2021. 194 The Malta Independent, ‘Budget 2020: Environment – Banning of Variety of Single-Use Plastic Products to Begin in 2021’ (Independent, 14 October 2019), https://​www​.independent​.com​.mt/​articles/​ 2019​-10​-14/​local​-news/​Budget​-2020​-Environment​-Banning​-of​-variety​-of​-single​-use​-plastic​-products​ -to​-begin​-in​-2021​-6736214771, accessed 24 September 2021. 195 ERA (n 174) 2. 196 European Union, ‘The Environmental Implementation Review 2019: Country Report Malta’ (European Commission, 4 April 2019), https://​ec​.europa​.eu/​environment/​eir/​pdf/​report​_mt​_en​.pdf, accessed 14 July 2021. 197 Cavallazzi (n 184) 11–12. 198 TG Hugo, ‘The Case for a Treaty on Marine Plastic Pollution’ (intlaw.no, 2018), http://​intlaw​.no/​ wp​-content/​uploads/​2018/​11/​The​-case​-for​-a​-TMPP​-Nov​-2018​-WEB​.pdf, accessed 30 June 2021.

Ocean pollution from plastics  149 designed to minimize disposable plastics are being delayed or overturned.199 This may hinder the challenging advances made so far in preventing the plastic-made catastrophe. Hence, States must immediately execute measures to counteract the pandemic’s ecological impacts, even though handling the COVID-19 health emergency is their prime concern.200 At the international level, a global convention to regulate ocean plastic pollution from land sources has become necessary. An institutionalized effort to coordinate activities in this respect is also crucial. Moreover, States must cooperate in enhancing consistency among national policies on the marine plastic issue.201 Initiatives like the Clean Seas campaign introduced by UNEP that aligns governments, public, and private sectors at the same row and makes them fight against marine plastic pollution are policy measures that support legal frameworks and attract public support while raising awareness.202 In this author’s view, such initiatives should be promoted more. At the regional level, efforts by the Regional Seas programmes and the leadership provided by the EU in regulating marine plastic waste is commendable. Regional Seas programmes can be used as a platform to encourage the Parties to conduct analysis of the impacts of mishandled plastic waste and the advantages of plastics reduction measures and the expenses for both. The results of this analysis may help governments to enact impactful laws and manage resources sustainably.203 The EU initiatives, discussed in this chapter, act as a foundation for creating new international strategies to handle plastic wastes on land.204 However, after considering the threat posed by single-use plastics, a revision of the SUP Directives to extend the ban to all one-time-use plastic products including lightweight plastic bags appears necessary. Furthermore, stringent laws must be enacted to prevent the further influx of the most dangerous primary and secondary microplastics into the ocean. At the national level, each State must enable a constitutionally protected right to a healthy environment that includes oceans devoid of plastic.205 In national policies that address plastic waste, a more precautionary and preventative approach should be adopted.206 More funds should be allocated to scientific research and development departments to find more efficient alternatives to plastic. Larger States have less challenges with recycling than small States, so partnerships in this sense may arise between larger and smaller countries to assist one another in reducing waste at source in the design and production phase, minimizing landfill-

EJ Zhang and others, ‘Protecting the Environment from Plastic PPE’ (2021) 372 BMJ, https://​ www​-bmj​-com​.ejournals​.um​.edu​.mt/​content/​372/​bmj​.n109, accessed 30 June 2021. 200 ibid 3. 201 G Ferraroa and P Faillera, ‘Governing Plastic Pollution in the Oceans: Institutional Challenges and Areas for Action’ (2020) 112 Environmental Science and Policy, https://​doi​.org/​10​.1016/​j​.envsci​.2020​ .06​.015, accessed 30 June 2021. 202 A Kariuki and H Savelli-Soderberg, ‘Clean Seas Campaign Promotes the Right to a Healthy Environment, Including Plastic-Free Oceans’ (UNEP, 9 June 2021), https://​www​.unep​.org/​news​-and​ -stories/​story/​clean​-seas​-campaign​-promotes​-right​-healthy​-environment​-including​-plastic, accessed 2 August 2021. 203 European Investment Bank, ‘The Ocean Plastics Reduction Guide’ (European Investment Bank, May 2021), https://​www​.eib​.org/​attachments/​strategies/​the​_ocean​_plastics​_reduction​_guide​_en​.pdf, accessed 6 September 2021. 204 Nyka (n 117) 166. 205 Kariuki (n 202) 1. 206 S Luber and others, ‘Plastic, Plastic Everywhere’ (Ocean Care, 2017), https://​www​.oceancare​.org/​ wp​-content/​uploads/​2017/​09/​Plastic​-plastic​-everywhere​.pdf, 26 June 2020. 199

150  Research handbook on ocean governance law ing and facilitating recycling for reusable plastics. Taking Malta as a case study example, to prevent further influx of more waste into the oceans, an amendment shall be made to the SUP Regulation to extend the ban to all single-use plastic items, and also a watertight legal instrument shall be formulated to ban microplastics. Change requires stringent laws and integrated mechanisms and altering the mindset of producers and consumers alike to emulate nature and make the circular economy a reality.

9. Noise pollution in the marine environment Georgia Veldeki

1. INTRODUCTION Oceans are far from being a silent world.1 On the contrary, they are more like a symphonic acoustic environment, where different sounds complement the uniqueness of the underwater world. Sound in water in relation to air can propagate over long distances, while light penetrates the water column for a maximum depth of about 1000 meters, with no significant light though beyond 200 meters.2 Depending on depth, temperature, salinity and geological characteristics of the seabed, sound can travel four times faster in water than in air. Additionally, transmission loss is less in water, so sound can be heard over long distances. Therefore, the marine environment is mainly a sonic environment, where sound is ubiquitous and used by marine animals for multiple purposes, such as the primary tool for communication.3 It has a central role in animals’ lives, being the most developed sense, which they depend on for feeding, echolocation,4 communication, avoiding predators and locating habitats. Underwater sounds have various sources which include natural sources, such as breaking waves, rain, wind, swell patterns, earthquakes, precipitation and cracking ice, and the anthropogenic-human-induced sources, such as shipping, oil exploration and exploitation, seismic surveys and air guns, sonar, dredging and construction. The impact of noise upon marine life can vary, from interruption of communication, changing areas of feeding or habitat, changing diving and breathing patterns, masking marine mammals’ signals with adverse results like stranding or ship strikes, chronic stress as well as a plethora of behavioral effects. Additionally, defining a ‘safe’ exposure level for marine mammals is particularly difficult.5 All these effects have been documented, especially in recent years, and in various species. Consequently, ocean noise has become a significant focus for the international research community, underlining the emersion of a new threat to J Cousteau and L Malle, The Silent World (Le Monde Du Silence) (Rank Organisation 1956). RJ Urick, Principles of Underwater Sound (3rd edn, McGraw-Hill 1983). 3 For more information about hearing capabilities see: AD Hawkins and AN Popper, ‘A Sound Approach to Assessing the Impact of Underwater Noise on Marine Fishes and Invertebrates’ (2017) 74 ICES Journal of Marine Science 635; BL Southall and others, ‘Marine Mammal Noise-Exposure Criteria: Initial Scientific Recommendations’ (2008) 17 Bioacoustics 273, http://​dx​.doi​.org/​10​.1080/​ 09524622​.2008​.9753846. 4 Echolocation, a term introduced by the zoologist Griffin in 1944, is a process used by species to identify the environment, when vision is not as effective as a sense. It refers to the production of sound and echoes recording, similar to sonar systems. Depending on the location of the object, pulses that are emitted from a species in comparison with the echoes that are returning from the object describe the exact location of the object in the environment. As a result, echolocation is of significant importance for feeding, navigating and so on. 5 L Weilgart, ‘A Review of the Impacts of Seismic Airgun Surveys on Marine Life’ (submitted to the CBD Expert Workshop on Underwater Noise and its Impacts on Marine and Coastal Biodiversity, London, UK, 25–7 February 2014). 1 2

151

152  Research handbook on ocean governance law the marine environment: ocean noise pollution.6 Ocean noise pollution needs to be studied and addressed using a multidisciplinary approach which engages various specialists, such as marine biologists, experts from oil companies, the shipping industry, bioacoustics experts, policy makers and conservationists. As in the case of other sources of marine pollution, the inclusion of ocean noise as a pollutant in various legally binding frameworks and policy instruments emerging from international fora, such as recommendations, guidelines and strategies, would display awareness and recognition of the adverse impacts upon marine life and the importance of preventing ocean noise pollution. Unfortunately, there is presently no international legally binding instrument on ocean noise pollution, but the inclusion of noise pollution in various policies in the European Union (EU) and the United States of America is an important first step in this direction and is by itself a calling for further research and studies to cover the existent knowledge gaps.

2.

SOURCES AND IMPACTS OF UNDERWATER NOISE ON MARINE LIFE

Ocean noise pollution has been reported to affect marine fauna especially marine mammals,7 but also fish and invertebrates.8 At an individual level but also in terms of species’ population, resulting in deleterious effects on hearing capabilities, behavior and health.9 This disruption in the marine habitat takes place when the frequencies of sound sources overlap with the life-critical sounds of marine life. Sounds can be categorized as low, mid and high frequency. UN, ‘Report of the Secretary-General on Oceans and the Law of the Sea for 2004’ (18 August 2004) UN Doc A/59/62/Add.1, para 220. 7 Some examples of such documentation can be found in: A Fernandez and others, ‘“Gas and Fat Embolic Syndrome” Involving a Mass Stranding of Beaked Whales (Family Ziphiidae) Exposed to Anthropogenic Sonar Signals’ (2005) 42 Veterinary Pathology 446; NA Soto and others, ‘Does Intense Ship Noise Disrupt Foraging in Deep-Diving Cuvier’s Beaked Whales (Ziphius Cavirostris)?’ (2006) 22 Marine Mammal Science 690; C Parente and others, ‘Diversity of Cetaceans as Tool in Monitoring Environmental Impacts of Seismic Surveys’ (2007) 7 Biota Neotropica 50; R Oestman and CJ Earle, ‘Effects of Pile-Driving Noise on Oncorhynchus Mykiss (Steelhead Trout)’ (2012) 730(263-5) Advances in Experimental Medicine and Biology, https://​link​.springer​.com/​chapter/​10​.1007/​978​-1​-4419​-7311​ -5​_58, accessed 28 December 2021. 8 L Weilgart, ‘The Impact of Ocean Noise Pollution on Fish and Invertebrates’ Report for OceanCare (2018); E Di Franco and others, ‘Effects of Marine Noise Pollution on Mediterranean Fishes and Invertebrates: A Review’ (2020) 159 Marine Pollution Bulletin 111450. 9 LA Rabin and CM Greene, ‘Changes to Acoustic Communication Systems in Human-Altered Environments’ (2002) 116(2) Journal of Comparative Psychology, https://​pubmed​.ncbi​.nlm​.nih​.gov/​ 12083606/​, accessed 26 July 2021; J Tougaard and others, ‘Behavioral Reactions of Harbor Porpoise to Pile-Driving Noise’ in AN Popper and A Hawkins (eds), The Effects of Noise on Aquatic Life (Advances in Experimental Medicine and Biology, vol 730, Springer 2012), https://​doi​.org/​10​.1007/​978​-1​-4419​ -7311​-5​_61; N Rako and others, ‘Long-Term Monitoring of Anthropogenic Noise and Its Relationship to Bottlenose Dolphin (Tursiops Truncatus) Distribution in the Cres–Lošinj Archipelago, Northern Adriatic, Croatia’ in AN Popper and A Hawkins (eds), The Effects of Noise on Aquatic Life (Advances in Experimental Medicine and Biology, vol 730, Springer 2012) https://​doi​.org/​10​.1007/​978​-1​-4419​-7311​ -5​_61; C Erbe, ‘Effects of Underwater Noise on Marine Mammals’ in AN Popper and A Hawkins (eds), The Effects of Noise on Aquatic Life (Advances in Experimental Medicine and Biology, vol 730, Springer 2012), https://​doi​.org/​10​.1007/​978​-1​-4419​-7311​-5​_61; P Brakes and SRX Dall, ‘Marine Mammal Behavior: A Review of Conservation Implications’ (2016) 3 Frontiers in Marine Science 87. 6

Noise pollution in the marine environment  153 High frequency sounds are considered the ones produced by air guns or sonars, whereas low frequency is generated by vessels with the potential for long distance travel. A significant characteristic of the sound in the ocean is the existence of the Sound Fixing and Ranging (SOFAR) channel, which is a deep sound channel where low frequency sounds can travel many kilometers without any loss.10 Additionally, anthropogenic noise sources can be categorized as either impulsive or continuous. Impulsive noise is produced by pile driving and seismic exploration, where sudden but brief sounds are generated, whereas continuous noise source is mainly due to commercial shipping.11 Shipping carries about 80 percent by volume of international trade, which makes it fundamental to the global economy.12 A rise of about 3 decibels (dB) per decade in ambient noise has been recorded due to shipping in different ocean regions.13 Further, seismic surveys with the use of air guns are an important component in oil exploration. The noise generated therefrom is described by many scientists as one of the most intense manmade noises in the oceans.14 To estimate the dynamic of an area in oil deposits, seismic surveys can last many months, firing shots every ten seconds, each one of them estimated to reach up to 260 dB.15 The complexity of ocean noise pollution and the various sources of noise can be underlined through a noteworthy incident in Baffin Bay in Canada in 2008, where seismic surveys, according to studies, were likely the cause of a delay in the southward migration of narwhals, resulting in approximately 1000 animals becoming trapped in sea ice, which proved to be fatal.16 One might say that the most controversial source is sonar used for naval exercises. Fatal stranding events, taking place all over the world, apart from the tragedy of the incidents’ nature, presented the opportunity to examine in depth biological and physiological functions of marine life, linking these events to sources of noise pollution and realizing the extent of the impacts on marine environment. In 1991, scientists started to fill in the puzzle of marine mammal strandings, after examining beaked whale strandings between 1982 and 1989 in the Canary Islands and connecting them to military maneuvers.17 Other stranding events followed,

10 NOAA, ‘What Is SOFAR?’ (28 December 2021), https://​oceanservice​.noaa​.gov/​facts/​sofar​.html, accessed 28 December 2021. 11 MF McKenna and others, ‘Underwater Radiated Noise from Modern Commercial Ships’ (2012) 131(1) The Journal of the Acoustical Society of America, https://​asa​.scitation​.org/​doi/​abs/​10​.1121/​ 1​.3664100, accessed 29 December 2021; BL Southall and others, ‘Underwater Noise from Large Commercial Ships: International Collaboration for Noise Reduction’, Encyclopedia of Maritime and Offshore Engineering (2017) 1, https://​onlinelibrary​.wiley​.com/​doi/​full/​10​.1002/​9781118476406​ .emoe056, accessed 28 December 2021. 12 UNCTAD, ‘Review of Maritime Transport 2018’ (2018), https://​unctad​.org/​system/​files/​official​ -document/​rmt2018​_en​.pdf, accessed 29 December 2021. 13 JL Miksis-Olds and SM Nichols, ‘Is Low Frequency Ocean Sound Increasing Globally?’ (2016) 139 The Journal of the Acoustical Society of America 501. For more information about shipping-generated noise see K Abrahamsen, ‘The Ship as an Underwater Noise Source’ (11th European Conference on Underwater Acoustics, Edinburgh, Scotland, 2–6 July 2012). 14 J Gordon and others, ‘A Review of the Effects of Seismic Surveys on Marine Mammals’ (2003) 37 Marine Technology Society Journal 16. 15 Ibid. 16 MP Heide-Jørgensen and others, ‘Narwhals and Seismic Exploration: Is Seismic Noise Increasing the Risk of Ice Entrapments?’ (2013) 158 Biological Conservation 51. 17 MP Simmonds and LF Lopez-Jurado, ‘Whales and the Military’ (1991) 351 Nature 448.

154  Research handbook on ocean governance law many of them fatal: in Greece in 1996,18 the Bahamas in 200019 and the Canary Islands in 2002.20 Frantzis raised concerns about a potential link between beaked whales stranding and the use of military sonar after the strandings in Greece.21 The event in the Canary Islands in 2002, attracted the public’s attention with a mass stranding of different species of cetaceans, after a naval exercise in the area.22 Marine animals strand for numerous reasons, depending on the seabed’s geomorphology, coastal topography, biological conditions, injuries caused by vessels, unusual weather or a combination of the above.23 The effects of anthropogenic ocean noise upon marine animals can be summarized into hearing loss, permanent or temporary,24 psychological stress,25 masking,26 changing foraging habits,27 altering behavior in presence of vessels28 or adjusting vocalizations.29 Coping strategies, such as modifying their calls, may lead to other still uncharted impacts.30

3.

OCEAN GOVERNANCE AND NOISE POLLUTION

3.1

International Level

Today, a plethora of studies have generated sufficient scientific data to better understand the effects and sources of noise pollution. At the international level, regulation of ocean noise

A Frantzis, ‘Does Acoustic Testing Strand Whales?’ (1998) 392 Nature 29. KC Balcomb and D Claridge, ‘A Mass Stranding of Cetaceans Caused by Naval Sonar in the Bahamas’ (2001) 8 Bahamas Journal of Science 2. 20 PD Jepso and others, ‘Gas-Bubble Lesions in Stranded Cetaceans’ (2003) 425 Nature, https://​ www​.nature​.com/​articles/​425575a​.pdf, accessed 30 December 2021. 21 Frantzis (n 18). For more information about the event in Greece see A Frantzis, ‘The First Mass Stranding that was Associated with the Use of Active Sonar (Kyparissiakos Gulf, Greece, 1996)’ ECS Newsletter. 42, (Proceedings of the Workshop on Active Sonar and Cetaceans Held at the European Cetacean Society’s 17th Annual Conference, Las Palmas, Gran Canaria, 8 March 2003), https://​www​.eur​ opeancetac​eansociety​.eu/​42, accessed 14 August 2022. 22 PD Jepso and others (n 20). 23 KH Vanselow and others, ‘Solar Storms May Trigger Sperm Whale Strandings: Explanation Approaches for Multiple Strandings in the North Sea in 2016’ (2018) 17 International Journal of Astrobiology 336, https://​doi​.org/​10​.1017/​S147355041700026X. 24 BL Southall and others, ‘Marine Mammal Noise Exposure Criteria: Updated Scientific Recommendations for Residual Hearing Effects’ (2019) 45 Aquatic Mammals 125. 25 LS Weilgart, ‘A Brief Review of Known Effects of Noise on Marine Mammals’ (2007) 20(2/3) International Journal of Comparative Psychology, https://​escholarship​.org/​uc/​item/​11m5g19h, accessed 30 December 2021. 26 CW Clark and others, ‘Acoustic Masking in Marine Ecosystems: Intuitions, Analysis, and Implication’ (2009) 395 Marine Ecology Progress Series 201. 27 HB Blair and others, ‘Evidence for Ship Noise Impacts on Humpback Whale Foraging Behaviour’ (2016) 12 Biology Letters 1. 28 Soto and others (n 7). 29 MA McDonald and others, ‘Increases in Deep Ocean Ambient Noise in the Northeast Pacific West of San Nicolas Island, California’ (2006) 120 The Journal of the Acoustical Society of America 711. 30 L Fouda and others, ‘Dolphins Simplify Their Vocal Calls in Response to Increased Ambient Noise’ (2018) 14 Biology Letters 1. 18 19

Noise pollution in the marine environment  155 pollution is scarce31 but recommendations and guidelines are on the increase. The latter are paving the way for a brighter policy future. Although United Nations resolutions are generally not considered to be legally binding, they do influence the need to give attention to the threats of anthropogenic-induced ocean noise pollution among States and non-State actors. Ocean noise first appeared on the United Nations General Assembly’s (UNGA) agenda in 2004.32 For subsequent years, it has been a topic for discussion which was included in various UNGA resolutions.33 In recent years, these resolutions are also underscoring initiatives related to noise and measures taken by States.34 Additionally, the United Nations Convention on the Law of the Sea (UNCLOS),35 in its Article 1(4), includes energy as a source of ‘pollution of the marine environment’ underlining that pollution of the marine environment36 means ‘the introduction by man, directly or indirectly, of substances or energy into the marine environment …’. The reference to ‘energy’ in this definition serves to include within its scope noise pollution, notwithstanding the fact that underwater noise pollution was not a concern at the time when this definition was included in the treaty. Originally the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP), which drafted the above-mentioned definition of marine pollution enshrined in UNCLOS, did not include energy at all. Energy was added at a later stage, probably to make a reference to thermal pollution, since noise came under the spotlight decades later.37 Nevertheless, UNCLOS does not specify the type of energy, giving the flexibility of multiple interpretations of this term. The indeterminate inclusion of energy can be interpreted to cover all forms of energy such as electricity, heat, radiation or noise. Part XII of the Convention, relating to protection and preservation of the marine environment, states that there is the broad obligation to ‘reduce and control pollution of the marine environment from any source.’38 Furthermore, in Article 211 there is a special reference to pollution of the marine environment from vessels, and in Article 65, to the conservation of marine mammals in the Exclusive Economic Zone. The same Article applies to the high seas, according to Article 120, underlining the importance of cooperation between coastal States and flag States. Conservation of highly migratory species in Article 64 and the adoption of regulations for ice-covered areas in Article 234 for the protection of the environment underline the duties shaped within the Convention and therefore can also be considered as applicable legal sources to control ocean-based noise pollution.

KN Scott, ‘International Regulation of Undersea Noise’ (2004) 53 ICLQ 287, DOI: https://​doi​.org/​ 10​.1093/​iclq/​53​.2​.287. 32 Report of the Secretary-General on Oceans and the Law of the Sea for 2004 (n 6). 33 UNGA Res 64/71 (12 March 2010) UN Doc A/RES/64/71; UNGA Res 65/37 (17 March 2011) UN Doc A/RES/65/37; UNGA Res 67/78 (18 April 2013) UN Doc A/RES/67/78 and so on. 34 UNGA Res 73/124 (31 December 2018) UN Doc A/RES/73/124; UNGA Res 74/19 (20 December 2019) UN Doc A/RES/74/19; UNGA Res 75/239 (5 January 2021) UN Doc A/RES/75/239. 35 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 36 Scott (n 31). 37 HM Dotinga and AG Oude Elfer, ‘Acoustic Pollution in the Oceans: The Search for Legal Standards’ (2000) 31 Ocean Development & International Law 151. 38 UNCLOS, Art 194(1). 31

156  Research handbook on ocean governance law The International Convention for the Prevention of Pollution from Ships (MARPOL 73/78)39 is the main legal instrument covering prevention of pollution of the marine environment from vessels. The definition of pollution in MARPOL 73/78 in Article 2(2) includes only substances.40 A detailed list of substances is within its six Annexes, while energy is not included. This lacuna is addressed partially in the Particularly Sensitive Sea Areas (PSSA) regime of the International Maritime Organization (IMO) adopted in 2005, combined with guidelines adopted by the Organization. A PSSA is an area in need of protection based on environmental, socioeconomic and scientific reasons and due to its vulnerability to shipping.41 Noise is recognized as a source of adverse effects to marine life and should be taken into consideration in the designation of a PSSA. The Marine Environment Protection Committee (MEPC) of IMO recognized the threat of ocean noise back in 2008, highlighting shipping-generated noise as a source.42 Additionally, in 2014, the MEPC developed guidelines to reduce the effects on marine life, focusing on the propellers, hull and machinery of vessels.43 3.2

The Regional and National Level

Regional policy instruments can fill the gap, providing the principle for further initiatives. Regional frameworks can be especially effective by targeting environmental concerns in a specific area. The EU has been particularly active in environmental law and policies with the adoption of numerous directives introducing protection and conservation measures. One of the most advanced tools is the Marine Strategy Framework Directive (MSFD)44 which was adopted in 2008. As MSFD reflects the principles of the EU, the Member States (MS) are flexible to identify the differences of each region of Europe. The MSFD follows the regional and subregional division of European marine waters for the purpose of facilitating the implementation of the Directive. Regional biodiversity characteristics are of key importance as well as identifying pressures that are more successfully commonly addressed. At the same time, the transboundary nature of many threats to the marine environment suggested the need of a common regional approach for achieving Good Environmental Status (GES). Based on this, cooperation with non-EU States in areas such as the Mediterranean is significant for the health of marine ecosystems. As underlined in Article 6, MS should follow the existing structures under Regional Sea Conventions, such as the Convention on the Protection of the Marine 39 International Convention for the Prevention of Pollution from Ships (adopted 2 November 1973 (Convention), 1978 (1978 Protocol), entered into force 2 October 1983) 1340 UNTS 61. 40 MARPOL 73/78 Article 2(2) ‘Any substance which, if introduced into the sea, is 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.’ 41 List of adopted PSSAs can be found in: ‘Particularly Sensitive Sea Areas’ (Imo.org, 2021), https://​ www​.imo​.org/​en/​OurWork/​Environment/​Pages/​PSSAs​.aspx, accessed 20 October 2021. 42 It started with a US petition to establish a correspondence group to review potential quieting technologies for large commercial vessels (MEPC 58/19). 43 ‘Guidelines for the Reduction of Underwater Noise from Commercial Shipping to Address Adverse Impacts on Marine Life’, MEPC.1/Circ.833/2014, https://​wwwcdn​.imo​.org/​localresources/​en/​ MediaCentre/​HotTopics/​Documents/​833​%20Guidance​%20on​%20reducing​%20underwater​%20noise​ %20from​%20commercial​%20shipping​,​.pdf, accessed 20 October 2021. 44 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, 19–40.

Noise pollution in the marine environment  157 Environment of the Baltic Sea Area (Helsinki Convention),45 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),46 Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention)47 and Convention on the Protection of the Black Sea against Pollution (Bucharest Convention)48 for their convenience. Some frameworks approach the topic from an impact-focused direction such as the EU’s MSFD, based on the effect of noise on animals, whereas others are source-focused.49 The MFSD has a six-year implementation cycle divided into three stages: (1) reporting status of marine waters and GES, (2) setting up monitoring programmes to assess progress on GES, and (3) setting up programmes of measures to deliver their objectives.50 The MSFD’s goal is to achieve GES as defined in Article 3(5),51 whereas one of the important definitions is the pollution in Article 3(8): ‘“Pollution” means the direct or indirect introduction into the marine environment, as a result of human activity, of substances or energy, including human-induced marine underwater noise, which results or is likely to result in deleterious effects such as harm to living resources and marine ecosystems.’ In order to achieve GES, there are 11 descriptors, which include all the areas that work should be focused upon by MS. The assessment that was reported by MS in 2012–15 showed lack of coherence in methodological approaches and inconsistency. In 2017, the criteria and methodological standards for GES replaced the ones described in 2010, facilitating the MS with improved recommendations.52 Descriptor 11 (D11) is presented as the ‘introduction of energy, including underwater noise, at levels that do not adversely affect the marine environment.’ A Working Technical Group on GES was established in 2011, due to the complexity of underwater noise. D11 comprises two criteria: 11.1 ‘Distribution in time and place of loud, low 45 Convention on the Protection of the Marine Environment of the Baltic Sea Area (adopted 22 March 1974, entered into force 3 May 1980) UNTS 1507. 46 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) UNTS 2354. 47 Convention for the Protection of the Mediterranean Sea against Pollution (with annex and Protocol for the prevention of pollution of the Mediterranean Sea by dumping from ships and aircraft and Protocol concerning co-operation 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) UNTS 1102. 48 Convention on the Protection of the Black Sea against Pollution (adopted 21 April 1992, entered into force 15 January 1994) UNTS 1764. 49 BR Colbert, ‘Trends and Developments in International Regulation of Anthropogenic Sound in Aquatic Habitats’ (2020) 147 The Journal of the Acoustical Society of America 3100. 50 ‘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, https://​ eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​CELEX:​52020DC0259​&​from​=​EN, accessed 30 December 2021. 51 Article 3(5): ‘Environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive within their intrinsic conditions, and the use of the marine environment is at a level that is sustainable, thus safeguarding the potential for uses and activities by current and future generations.’ 52 Commission Decision (EU) 2017/848 of 17 May 2017 laying down criteria and methodological standards on good environmental status of marine waters and specifications and standardised methods for monitoring and assessment, and repealing Decision 2010/477/EU C/2017/2901 OJ L 125, 18 May 2017, 43–74, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​?uri​=​CELEX​%3A32017D0848, accessed 30 December 2021.

158  Research handbook on ocean governance law and mid frequency impulsive sounds’ and 11.2 ‘Continuous low frequency sound.’53 The first refers to the creation of a noise registry for the impulsive sounds, whereas the second refers mainly to commercial shipping. The Technical Group for Noise (TG Noise) has a crucial role in the implementation of GES for D11. Its focus has been in developing methodology, guidance for monitoring, recommendations and so on. It follows closely the research carried out by various EU projects for the implementation of the Descriptor as well as the work done by the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and contiguous Atlantic Area (ACCOBAMS).54 ACCOBAMS has a remarkably active strategy in relation to noise pollution,55 where a plethora of resolutions promote the implementation of various measures for the conservation of cetaceans.56 It also goes one step beyond, indicating the need to find quieter and safer acoustic techniques, exhorting cooperation with IMO and the Regional Activity Centre for Specially Protected Areas (RAC/SPA)57 of the Barcelona Convention. Lately, the focus of TG Noise has been on delivering options to set threshold values.58 Thresholds are of great importance since they give the opportunity to define sound levels where impacts are expected, such as hearing loss – permanent or temporary. Certain research projects are trying to ensure progress in monitoring and assessment; however, the goal of an EU-level underwater noise assessment has not yet been reached. Although some progress has been made in relation to the register for impulsive noise in the Baltic Sea and North-East Atlantic area during the first cycle.59 By 2018, MS had to review and update their initial assessments,

11.1 ‘Proportion of days and their distribution within a calendar year over areas of a determined surface, as well as their spatial distribution, in which anthropogenic sound sources exceed levels that are likely to entail significant impact on marine animals measured as Sound Exposure Level (in dB re 1 µPa 2 .s) or as peak sound pressure level (in dB re 1 µPa peak) at one metre, measured over the frequency band 10 Hz to 10 kHz’ and 11.2 ‘Trends in the ambient noise level within the 1/3 octave bands 63 and 125 Hz (centre frequency) (re 1µΡa RMS; average noise level in these octave bands over a year) measured by observation stations and/or with the use of models if appropriate.’ 54 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) UNTS 2183. 55 Convention on the Conservation of Migratory Species of Wild Animals (CMS) or Bonn Convention is a framework convention, including several binding documents and some non-binding-Memoranda of Understanding. ACCOBAMS is one of the Agreements, focusing on the protection of cetaceans in the Mediterranean, Black Sea and Atlantic area. The contiguous area of the Atlantic, close to Gibraltar, was also included due to the nature of cetaceans, which are migratory species. 56 Resolutions 2.16 (2004); 3.10 (2007); 4.17 (2010); 5.15 (2013); 6.17 and 6.18 (2016); 7.13 (2019). 57 The Regional Activity Centre for Specially Protected Areas was established in Tunis in 1985 under the Barcelona Convention, with the responsibility to assist the Mediterranean countries to implement the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (SPA/BD Protocol), which came into force in 1999. 58 As it is underlined in ‘Commission Staff Working Document Background document for the Marine Strategy Framework Directive on the determination of good environmental status and its links to assessments and the setting of environmental targets Accompanying the Report from the Commission to the European Parliament and the Council on the implementation of the Marine Strategy Framework Directive’ (Directive 2008/56/EC) SWD/2020/62 final: ‘Threshold values are set in relation to a reference condition, and may include an “acceptable deviation” from this reference condition. This allows for sustainable uses of the marine environment whereby some level of pressures and their impacts can be accommodated, provided the overall quality of the environment is maintained.’ 59 It was established by OSPAR and the Helsinki Commission (HELCOM), and run by the International Council for the Exploration of the Sea (ICES). 53

Noise pollution in the marine environment  159 taking into consideration the revised MSFD, and to report to the European Commission one year later.60 The second cycle of the implementation of GES and programmes of measures is currently under way. For noise assessment the large spatial distribution is one of the obstacles but nonetheless the work and data provided by various projects and studies are noteworthy.61 The MSFD has become one of the key pillars of the EU for the protection and preservation of the marine environment. Many of the descriptors, such as marine litter and underwater noise, were regulated for the first time under an obligatory framework. This Directive is admittedly a complex regulatory tool, but at the same time it is an innovative and useful instrument for ocean governance and the Union’s commitments relating to the conservation of the marine environment. For D11 there is a lot of work to be done. The complexity of the pollutant, the vast marine waters and their habitants, and the acknowledgment of data gaps relating to the impacts noise causes to marine animals underline the necessity of the Technical Group, but also the obstacles it has to face. Furthermore, the United States of America and Canada are among some of the States which have introduced measures and monitoring programmes on their agendas. The National Oceanic and Atmospheric Administration of United States of America (NOAA) has produced an Ocean Noise Strategy Roadmap, a unique tool addressing noise with an integrated approach for the next ten years.62 Other initiatives, such as the Enhancing Cetacean Habitat and Observation Program in Port of Vancouver, Canada, are aimed at the shipping industry, by introducing mitigation measures in port activities, such as seasonal voluntary vessel slowdown in key areas and encouraging shipping companies to use quieting technologies to their fleets.63 Moratoriums can also be put in place, as seen in the Canary Islands. Since 2004, the Spanish government has imposed a moratorium on naval exercises in waters around the islands of Lanzarote and Fuerteventura out to 50 km, resulting in no reported mass strandings in the area.64 Similarly, because of a series of unusual strandings near Abrolhos Bank, Brazil has excluded surveys between July and November, during the breeding season of humpback whales.65 Other measures can be a soft start to address seismic surveys and pile driving, in order to introduce noise into the marine environment slowly, or reducing the noise source when species that can be affected are spotted in the surrounding area. In relation to shipping, rerouting lanes could additionally decrease the noise footprint of an area, especially if it is a critical habitat.66 As shipping is considered to be a great contributor to ocean noise pollution,

‘Commission Staff Working Document Background document for the Marine Strategy Framework Directive’ (n 58). 61 See EU Projects: CeNoBS Project; QUIETMED II Project; SATURN Project. 62 NOAA, ‘ONS’ (Cetsound.noaa.gov, 2021), https://​cetsound​.noaa​.gov/​ons, accessed 7 May 2021. 63 Port Vancouver, Underwater Noise Management Plan (2020), https://​www​.portvancouver​.com/​wp​ -content/​uploads/​2021/​01/​2020​-12​-20​-Plan​-Underwater​-Noise​-Management​-2020​-VFPA​.pdf, accessed 2 April 2021. 64 A Fernández and others, ‘No Mass Strandings since Sonar Ban’ (2013) 497 Nature 317. 65 MH Engel and others, ‘Are Seismic Surveys Responsible for Cetacean Strandings? An Unusual Mortality of Adult Humpback Whales in Abrolhos Bank, Northeastern Coast of Brazil’ (paper presented to the International Whaling Commission Scientific Committee, SC/56/E28, 2004). 66 J Roman and others, ‘Whales as Marine Ecosystem Engineers’ (2014) 12 Frontiers in Ecology and the Environment 377; A Frantzis and others, ‘Shipping Routes through Core Habitat of Endangered Sperm Whales along the Hellenic Trench, Greece: Can We Reduce Collision Risks?’ (2019) 14(2) PLOS ONE, https://​doi​.org/​10​.1371/​journal​.pone​.0212016, accessed 14 August 2022. 60

160  Research handbook on ocean governance law quieter technologies that significantly reduce noise in vessels should be a priority for the industry, while serving energy efficiency purposes at the same time.

4. CONCLUSION Underwater noise pollution used to be a threat that was severely neglected as an issue of international, regional and national concern. Diverse events around the globe, concerning atypical mass animal strandings and use of military sonars, led scientists to reinforce the link between noise pollution and marine animals’ deaths. Noise sources are now identified, opening the way for adequate regulations and measures. Initiatives, either in the form of guidelines or to a certain extent even regulations, are proliferating. The United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea, in its nineteenth meeting in 2018,67 included a discussion panel dedicated to anthropogenic underwater noise. The panel addressed, among other things, the socioeconomic impact of noise and the cooperation schemes that are or can be in place to tackle this threat. An additional difficulty in ocean noise management is the nature of sound itself that indicates it cannot be restricted in a designed specific area. Spatio-temporal restrictions of noise sources could be effective means to protect cetaceans and their habitat,68 while providing the necessary time, until designation of an adequate tool – a Marine Protected Area, for example – or mitigation measures are introduced.69 Zoning can be used as well, as a proactive approach, setting a partial ban, within a geographical limit.70 In the absence of an international treaty, guidelines and other non-binding instruments can offer many advantages since they are easier to agree upon and more flexible compared to a treaty. Perhaps the best possible framework for cooperation to control noise pollution would be regional. This does not exclude the development of multilateral standards which may also be a necessity in the future.71 The usefulness of regional instruments is enhanced when these are formulated to supplement multilateral frameworks. The multilateral instruments set a level playing field and the regional instruments procure the necessary detail supplementing the former to address the sources of ocean-based noise pollution particular to the region. This may vary depending upon geophysical realities, the type of maritime activities generating noise and the type of marine habitat and species, which occur in the region itself. Finally, it is important to stress that underwater noise is a transboundary pollutant. This fact should influence the design of policies and legal frameworks by focusing on combatting ocean-based noise pollution as an essential aspect of ocean governance. Cooperation between States is a sine qua non to apply effective measures, assess their outcomes and, if necessary, redefine regulations addressing ocean noise pollution. Whereas moratoriums and guidelines UNSG Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its nineteenth meeting (9 July 2018) UN Doc A/73/124. 68 LS Weilgart, ‘Managing Noise through Marine Protected Areas around Global Hot Spots’ (International Whaling Commission Scientific Committee document SC/58/E25, 2006), http://​whitelab​ .biology​.dal​.ca/​lw/​publications/​8. Weilgart 2006. Managing noise PAs.pdf, accessed 31 December 2021. 69 S Dolman, ‘Spatio-Temporal Restrictions as Best Practice Precautionary Response to Ocean Noise’ (2007) 10 Journal of International Wildlife Law & Policy 219. 70 E McCarthy, International Regulation of Underwater Sound (Springer 2004). 71 International standards developed from International Organization for Standardization (ISO). 67

Noise pollution in the marine environment  161 are useful tools for ocean noise policy, legislation such as MSFD can provide legally binding measures with a more holistic ecosystem-based approach to ocean governance. Both policy and regulation must be regularly reviewed in the light of emerging scientific advice utilizing the precautionary principle as a governance tool despite gaps in scientific data and knowledge.72

72 Principle 15 of Rio Declaration on Environment and Development in 1992 states that: ‘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,’ https://​www​.un​.org/​en/​development/​desa/​population/​migration/​generalassembly/​docs/​ globalcompact/​A​_CONF​.151​_26​_Vol​.I​_Declaration​.pdf, accessed 20 October 2021.

10. Conservation of living marine resources Elda Kazara-Belja

1. INTRODUCTION Living marine resources1 are vital to food security and sustainable development.2 The fishing sector contributes significantly to food security and supports the livelihood of hundreds of millions of global citizens, especially in developing countries.3 Living resources of the sea, however, although renewable, are not infinite. Therefore, proper conservation and management measures are key to ensure their sustainability.4 This is more so today, considering the alarming state of global fisheries. Fish stocks are being overexploited and some of them are at the verge of collapse and depletion. Whereas overfishing has been a concern of the international community since the 1890s,5 the beginning of the twenty-first century brought to the fore the alarmingly poor conservation status of living marine resources (and the entire

1 There is no uniform definition on what constitutes ‘living marine resources’. The United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) does not define the term and, in relation to exploitation and conservation, employs the expression ‘living resources’, substituting it, however, with ‘fisheries’ in other provisions. Subsequent treaty practice (the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3 (UNFSA)) and the Convention on the Conservation of Antarctic Marine Living Resources (signed 20 May 1980, entered into force 7 April 1982, 1329 UNTS 47 (CCAMLR)) have broadened this definition to stipulate, especially the latter, that the definition of living marine resources includes ‘all other species of living organisms, including birds’. See J Fuchs, ‘Marine Living Resources: International Protection’ in Max Planck Encyclopedia of International Law (OUP 2015), https://​opil​-ouplaw​-com​.ejournals​.um​.edu​.mt/​view/​10​.1093/​law:​epil/​9780199231690/​law​ -9780199231690​-e1766​?print​=​pdf, accessed 13 February 2021. This broad definition is a reflection of the ecosystem-based management approach adopted by the Commission which promotes sustainable fishing which takes into account its effect on other components of the ecosystem. 2 To ensure sustainable development for all, the 17 Sustainable Development Goals (SDGs) set out a road map for just, inclusive and equitable development. Attaining sustainable benefits from the world’s oceans as stated in SDG 14 (life below water) requires reducing pollution, restoring ecosystems, minimizing ocean acidification, ending overfishing, conserving coastal and marine areas, reforming fisheries subsidies, and increasing benefits to Small Island Developing States. 3 The Food and Agriculture Organization (FAO) reports that in 2018 the global production of fish, crustaceans, molluscs and other aquatic animals reached 96.4 million tonnes, representing an all-time high. Nearly 40 million people were engaged in fisheries and the world fishing fleet consisted of 4.56 million vessels. The same is valid for the aquaculture sector which recorded a peak of 82.1 million tonnes of production in 2018. See FAO, FAO Yearbook. Fishery and Aquaculture Statistics 2018 (2020). 4 FAO, ‘Report of the Expert Consultation on Technical Guidelines on Responsible Fish Trade’ in FAO Fisheries Report No 835 (2007) 10. 5 Y Tanaka, A Dual Approach to Ocean Governance: The Cases of Zonal and Integrated Management in International Law of the Sea (Ashgate 2008) 35.

162

Conservation of living marine resources  163 biodiversity of our oceans).6 Scientific reports reveal that ‘75 percent of major fisheries are fully exploited, overexploited, or depleted. It is estimated that the global ocean has lost more than 90% of large predatory fishes’.7 The underlying reasons for this problem vary among coastal States from allowing unsustainable exploitation of resources found in areas falling within their national jurisdiction to massive overcapacity of fishing fleets, inadequate or ineffectively implemented conservation and management measures and environmental degradation.8 In addition, illegal, unreported and unregulated (IUU) fishing represents a global threat to the international, regional and national efforts to conserve and manage the living resources of the sea.9 Conservation measures for living marine resources are closely linked to the protection of the marine environment10 and ocean governance.11 Numerous marine environmental treaties address issues of conservation of living marine resources.12 On the other hand, fisheries instruments, especially those developed post-UNCLOS by various organizations, make mandatory the application of principles of environmental law for sustainable fisheries. The ultimate goal is to ensure a comprehensive regulatory regime which provides for a sound governance of the oceans. This chapter will examine the international framework relating to the conservation of living marine resources and how some key instruments have promoted such an integrated approach.

2.

THE INTERNATIONAL FRAMEWORK RELATING TO THE CONSERVATION OF LIVING MARINE RESOURCES

Appreciating the economic value of living marine resources and the need to conserve and protect the same, States advanced early on claims to distinctive fisheries zones. Although initially on bodies of water adjacent to their territory, these claims were extended to sea areas up to 200 nautical miles from the coast for the purpose of granting coastal States sovereign See S Diaz 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), https://​www​.ipbes​.net/​sites/​default/​files/​2020​-02/​ ipbes​_global​_assessment​_report​_summary​_for​_policymakers​_en​.pdf, accessed 10 December 2020. 7 B Clark and R Clausen, ‘The Oceanic Crisis: Capitalism and the Degradation of Marine Ecosystems’ (2008) 60 Monthly Review 91, 91–111. 8 Fuchs (n 1). 9 JG da Silva, ‘Foreword to the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing’ (2009), http://​www​.fao​.org/​3/​i5469t/​I5469T​.pdf, accessed 13 February 2021. 10 The 1992 United Nations Conference on Environment and Development stressed the need for States to adopt a holistic approach towards conservation. Together with UNCLOS, these instruments have influenced the development of the law relating to conservation of living resources. However, the prevailing fragmented approach in addressing conservation of living marine resources has weakened their success. 11 T Henrikesen, ‘FAO and Ocean Governance’ in DJ Attard (ed), The IMLI Treatise on Global Ocean Governance: Volume II – UN Specialized Agencies and Global Ocean Governance (OUP 2018) 14, 3–27. 12 The United Nations Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (Convention on Biological Diversity) is one of the most relevant non-fisheries instruments in terms of conservation. 6

164  Research handbook on ocean governance law rights of economic character.13 These claims over the ocean space and the resources therein were codified in international treaties, culminating with the adoption of UNCLOS. 2.1 UNCLOS UNCLOS ‘represents both the integration of the main principles of existing fisheries agreements into a broad constitutional framework and, at the same time, includes elements of new legal principles’.14 It recognizes the sovereignty15 and sovereign rights and jurisdiction of the coastal State over living marine resources within areas under its national jurisdiction,16 and the freedom of fishing on the high seas according to which, subject to the safeguards provided by the Convention,17 nationals of all States have the right to engage in fishing on the high seas.18 In adopting a zonal approach, certain activities of States – such as fishing – which can be conducted in different zones, are dealt with in provisions regulating that particular zone. The main problem with the zonal approach is fragmentation, with the consequence that it may not be capable of providing an effective framework for the long-term sustainable management of some fish stocks, especially straddling and highly migratory stocks. To overcome gaps identified in its implementation, several bilateral, regional and international instruments have been adopted. These instruments, while clarifying and strengthening some of the UNCLOS provisions, have led on occasions to a fragmentation of the regime and the failure to integrate the same in the context of ocean governance where the ocean is considered as a single ecological unit. 2.1.1 UNCLOS: zonal approach Although the coastal State enjoys sovereignty over the living resources in its internal waters, archipelagic waters and territorial sea,19 UNCLOS does not impose any obligation on the coastal State to take conservation measures in such zones.20 States have a wide discretion in regulating the use of living marine resources in these areas and enjoy the benefits reaped from DR Rothwell, ‘Fishery Zones and Limits’, Max Planck Encyclopedia of International Law (OUP 2012) vol IV, 89. See also U Leanza and MC Caracciolo, ‘The Exclusive Economic Zone’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – Law of the Sea (OUP 2014) 177. 14 K Bangert, ‘Fisheries Agreements’, Max Planck Encyclopaedia of International Law (OUP 2012) vol IV, 42. It should be noted that the exclusive economic zone (EEZ) regime constitutes one of the main innovations of the Convention. 15 UNCLOS, arts 2(1) and 49(1). 16 ibid arts 56(1)(a), 56(3) and 77. 17 These safeguards take into consideration the interests of the international community, such as ‘the conservation and optimum utilization of marine living resources and the protection and preservation of the marine environment, including rare or fragile ecosystems and habitats of depleted, threatened or endangered species and other forms of life’. See EJ Molenaar, ‘Current Legal and Institutional Issues Relating to the Conservation and Management of High-Seas Deep-Sea Fisheries’ (2007), http://​www​.fao​ .org/​tempref/​docrep/​fao/​010/​a1341e/​a1341e02c​.pdf, accessed 13 February 2021. 18 UNCLOS, arts 87(1)(e), 87(2) and 116. 19 ibid arts 2(1) and 49(1). 20 In its art 21(1)(e), UNCLOS provides that the coastal State, when regulating innocent passage, may adopt laws and regulations for the conservation of the living resources of the sea. On the other hand, in accordance with art 51(1), the coastal State shall recognize traditional fishing rights in the areas which, based on the new regime of archipelagic States, States may enclose as archipelagic waters. 13

Conservation of living marine resources  165 their exploitation. Despite the seeming discretion, it should be recalled that the Convention on Biological Diversity applies to those components of biodiversity21 located in areas under national jurisdiction, territorial sea included. Bearing in mind that the objectives of the Convention focus on both conservation of biological diversity and the sustainable use of its components,22 the parties’ obligations are indeed guided by these two principles which are closely connected. This point is very important, because, as Matz-Lück observes: [t]he underlying considerations for an explicit incorporation of both conservation and sustainable use is not only the potential for incentives to better protect biodiversity but refers back to the common concern of humankind calling for preservation on the one hand and national sovereign rights over biological resources allowing for utilization on the other.23

Molenaar, in relation to deep-sea stocks that may occur in these areas under sovereignty and high seas, also draws attention to the obligation of cooperation under customary international law relating to transboundary resources and damage.24 The EEZ is the birthchild of UNCLOS. The origin of this sui generis zone25 is the assertion by many States of extended areas of the sea beyond the territorial sea for the purpose of expanding the coastal State sovereign rights and jurisdiction over the offshore resources26 and assuming jurisdiction, including for the purpose of marine environmental protection. The establishment of the EEZ regime under UNCLOS confirmed the coastal States’ sovereign rights over the living resources of the sea for the purpose of their exploration, exploitation, conservation and management.27 Pursuant to the Convention, taking into account the best scientific information available, the coastal State shall ensure that the living marine resources in the EEZ are not overexploited.28 For this purpose, the coastal State has to adopt proper conservation and management measures with the aim of maintaining or restoring populations within its EEZ at the maximum sustainable yield.29 On the basis of such information, the coastal State has the right to determine the

In accordance with art 2 of the Convention, ‘biological diversity’ means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. 22 Convention on Biological Diversity, art 1. 23 N Matz-Lück, ‘Biological Diversity, International Protection’, Max Planck Encyclopedia of Public International Law (OUP 2012) vol I, 932. 24 Molenaar (n 17). 25 The EEZ is neither the territorial sea nor the high seas but partakes of the characteristics of both regimes. See Leanza and Caracciolo (n 13) 185. 26 Rothwell (n 13) 91. As this author notes, several bilateral and regional fisheries agreements in the 1960s recognized such claims. 27 UNCLOS, art 56(1)(a). In the M/V ‘Virginia G’ case, the International Tribunal for the Law of the Sea (ITLOS) observed that ‘[t]he use of the terms “conserving” and “managing” in article 56 of the Convention indicates that the rights of coastal States go beyond conservation in its strict sense. The fact that conservation and management cover different aspects is supported by article 61 of the Convention, which addresses the issue of conservation as its title indicates, whereas article 62 of the Convention deals with both conservation and management’. See M/V ‘Virginia G’ (Panama/Guinea-Bissau) Judgment, ITLOS Reports 2014, 67, para 212. 28 UNCLOS, art 61(2). 29 ibid. 21

166  Research handbook on ocean governance law total allowable catch30 and its harvesting capacity.31 Should the coastal State not be able to harvest its entire total allowable catch, it shall share, through agreements or other arrangements, the surplus to the respective fisheries with other States.32 Nationals of other States who are allowed to fish in the EEZ of the coastal State shall abide by the conservation measures and other rules and regulations adopted by the coastal State which may relate to, inter alia, the conditions on licensing of fishermen, fishing vessels and equipment, species which may be caught, the fishing gear to be used, transmission of information and statistics, placing of observers on board fishing vessels, and enforcement procedures.33 In the M/V ‘Virginia G’ judgment,34 ITLOS had the opportunity to clarify the scope of the rights of the coastal States to regulate foreign fishing vessels within their EEZ. ITLOS held that Articles 56 and 62 empower the coastal State to regulate foreign vessels involved in fishing and fishing related activities in the EEZ, including vessels provisioning fishing vessels.35 In reaching this conclusion, ITLOS noted that whereas Article 62(4) does not provide an exhaustive list of the permissible coastal State conservation and management measures, any other measures not included in said Article must have a direct connection to fishing.36 Against this interpretation, ITLOS upheld the laws of Guinea-Bissau relating to obtaining authorization for bunkering in the EEZ.37 In the exercise of its sovereign rights over the living resources in the EEZ, the coastal State is also empowered to take a wide range of enforcement measures which include ‘boarding, inspection, arrest and judicial proceedings’. However, ‘upon the posting of reasonable bond or other security’ the coastal State is obliged to release promptly any detained vessel and its crew.38 Moreover, penalties for violations of its fisheries laws and regulations may not include, in the absence of agreement to the contrary by the States concerned, imprisonment or any other form of corporal punishment.39 The coastal State is also under a duty to notify the flag State of any action taken or penalties subsequently imposed.40

ibid art 61(1). ibid art 62(2). 32 UNCLOS, art 62(3) lists the factors the coastal State has to take into account when giving access to fisheries to other States. Arts 69 and 70 regulate the rights of access to such surplus of land-locked and geographically disadvantaged States. 33 ibid art 62(4). 34 M/V ‘Virginia G’ (Panama/Guinea-Bissau) Judgment, ITLOS Reports 2014, 67. 35 ibid, paras 207–22. 36 ibid paras 213 and 215. 37 ibid paras 234–5. ITLOS did not, however, deliberate on regulating bunkering activities in general and thus did not confirm that bunkering shall also be subject to regulations of the coastal State for the purpose of the protection of the marine environment. In this respect, the Joint Declaration of Judges Attard and Kelly deserves particular mention. Both Judges, while agreeing with the judgment, emphasized the need to regulate bunkering in general so as to avoid environmental harm. 38 UNCLOS, art 73(2). 39 ibid art 73(3). 40 ibid art 73(4). It is important to note that ITLOS has developed a substantial body of jurisprudence in relation to the prompt release of vessels and crews. See, inter alia, The M/V ‘SAIGA’ Case (Saint Vincent and the Grenadines v Guinea) (Prompt Release, Judgment) ITLOS Reports 1997, 16; ‘Camouco’ (Panama v France) (Prompt Release, Judgment) ITLOS Reports 2000, 10; The ‘Grand Prince’ Case (Belize v France) (Prompt Release Judgment) ITLOS Reports 2001, 17; The ‘Volga’ Case (Russian Federation v Australia) (Prompt Release Judgment) ITLOS Reports 2002, 10; and The 30 31

Conservation of living marine resources  167 Fuchs argues that ‘[t]he articles on marine living resources management in the EEZ clearly focus on the economic exploitation; preservation measures appear to be constructed as a reflex, relying on the coastal States own utilization interests’.41 The Convention does indeed give a great margin of discretion to the coastal State in relation to the conservation measures and the methodology on how to attain the conservation goals. Borg also notes that despite the parameters for conservation of living marine resources included in Articles 61 and 62, UNCLOS fails to establish concrete monitoring measures which would assess the degree of conservation and success of the measures adopted by States.42 Another weakness of the conservation measures stipulated in Article 61 relates to the provisions on interdependence of stocks which ‘focus on a single population rather than the effect on dependent species in the marine ecosystem, for example, effects on food chains’.43 Bangert argues that, indeed, the implementation of Article 61 requires detailed knowledge of the interrelationship between species and the function of the ecosystems in the high seas. Whereas the rules stipulated in the Convention promote integrated ocean management, ‘by linking legal effects to such broad and unclear biological concepts, the basic conceptual framework is somewhat loose’.44 On account of such uncertainties, the application of the precautionary approach becomes crucial. UNCLOS does not make explicit reference to this principle which forms now part of the obligations of States under the UNFSA,45 and many other fisheries agreements developed either post-UNCLOS or in relation to particular species.46 Borg argues that the ‘[i]nterpretation of the term conservation is influenced by the concept of sustainable development which requires the integration of socio-economic and environmental concerns in all anthropogenic activities’.47 Freestone also posits that the UNCLOS regime ‘has been transformed by the new ecosystem maintenance and conservation of biological diversity concerns introduced by the 1992 UNCED, notably through the 1995 UN Fish Stocks Agreement and the large number of non-binding instruments which have followed it’.48 It is important to note that, in the Southern Bluefin Tuna case,49 ITLOS held that the parties to the Convention should ‘act with prudence and caution to ensure that effective conservation

‘Hoshinmaru’ Case (Japan v Russian Federation) (Prompt Release Judgment) ITLOS Reports 2005–07, 18. 41 Fuchs (n 1). 42 S Borg, ‘The Conservation of Marine Living Resources under International Law’ in DJ Attard and others (eds), The IMLI Manual on International Maritime Law: Volume I – Law of the Sea (OUP 2014) 349. 43 Fuchs (n 1). 44 K Bangert, ‘Fish Stocks’, Max Planck Encyclopedia of Public International Law (OUP 2012) vol IV, 31. 45 UNFSA, arts 5(c) and 6. 46 For a more in-depth discussion on these instruments see S Borg, Conservation on the High Seas: Harmonizing International Regimes for the Sustainable Use of Living Resources (Edward Elgar Publishing 2012) 104–20. 47 ibid 106. 48 D Freestone, ‘High Seas Fisheries’, Max Planck Encyclopedia of International Law (OUP 2012) vol IV, 38. 49 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 9.280.

168  Research handbook on ocean governance law measures are taken to prevent serious harm to the stock of southern bluefin tuna’.50 In its 2011 Advisory Opinion,51 the Deep Seabed Disputes Chamber went a step further by noting that the inclusion of the precautionary approach into a growing number of treaties and other instruments ‘has initiated a trend towards making this approach part of customary international law’.52 UNCLOS prescribes the freedom of fishing on the high seas subject to three important conditions, namely: (1) existing treaty obligations; (2) the rights and duties, as well as interests, of coastal States; and (3) the conditions for conservation and management of the living resources stipulated in Section 2 of Part VII of UNCLOS.53 According to the Convention, flag States have the primary duty to take, or to cooperate with other States in taking, measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.54 Where appropriate, this cooperation shall take place through subregional or regional fisheries organizations.55 While some regional fisheries organizations have an advisory function only, the need to comply with this obligation of UNCLOS has led to the establishment of regional fisheries management organizations (RFMOs). These RFMOs will either address the management of particular species (mainly tuna) in their area of coverage or will have managerial functions in relation to various species in a particular geographical area. RFMOs, however, have faced numerous challenges, such as non-compliance with their conservation measures by vessels flying the flag of non-member States, the ‘opt out’ provisions which allow members to circumvent the application of binding measures adopted by an RFMO, the phenomenon of reflagging of vessels to non-member States for the purpose of avoiding compliance, discrepancies between actual catches and scientific estimates, which in turn stultify the effectiveness of the measures adopted.56 Moreover, the growing interest of the international community to include effects of fishing on vulnerable marine ecosystems has brought to the fore the need to establish marine protected areas (MPAs),57 which, however, need to be multifunctional, rather than focus on a narrow range of issues if they are to effectively implement integrated ocean management.58 Lastly, climate change has generated a new set of challenges to the sustainable management of resources by RFMOs.59 Article 119 of UNCLOS, which should be read as providing the means and modalities for States to comply with the primary duty of conservation,60 applies the regime of allowable ibid para 77. Responsibilities and Obligations of States with Respect to Activities in the Area (Advisory Opinion of 1 February 2011) ITLOS Reports 2011, 10. 52 ibid para 135. 53 UNCLOS, art 116. 54 ibid art 117. 55 ibid art 118. 56 R Rayfuse, ‘Regional Fisheries Management Organizations’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 443–8 57 ibid 449–61. The world’s first MPA, established by the Commission for the Conservation of Antarctic Marine Living Resources, was in respect of the South Orkney Islands Southern Shelf (see CM 91-03 (2009)). In 2016, the Commission established the Ross Sea Region MPA (see CM 91-05 (2016)). 58 KN Scott, ‘Integrated Ocean Governance’ in DR Rothwell and others (eds), The Oxford Handbook of the Law of the Sea (OUP 2015) 484–5. 59 Rayfuse (n 56) 459–61. 60 Freestone (n 48) 67. 50 51

Conservation of living marine resources  169 catch and maximum sustainable yield to the high seas. To this end, it imposes the obligation to take into consideration the effects of fishing on the high seas on species associated with or dependent upon61 harvested species. The enabling rather than the obligatory wording of Article 119 means that States whose nationals fish on the high seas ‘are not, it seems, actively obliged to pursue the objective of optimum utilization for themselves, but they are obliged not to hamper the pursuance of this objective by other States’.62 Such States, however, must ensure, in line with their obligation under Article 118, that stocks are maintained or restored to levels which can produce the maximum sustainable yield. It should be noted that by requiring considerations of both the qualified maximum sustainable yield and dependent and associated species, the Convention addresses conservation not merely as a means for exploitation and food security but as including both social and environmental consideration.63 One of the major issues of fishing activities on the high seas is the implementation of enforcement measures. UNCLOS recognizes the exclusive jurisdiction of flag States64 without spelling out an actual obligation on these States to exercise control over vessels flying their flag which are engaged on high seas fishing.65 In this respect, regional approaches have fostered cooperation between States to ensure the implementation of enforcement measures.66 Despite considerable advancements, not all regional organizations have been in a position to adopt and implement adequate monitoring, compliance, and enforcement mechanisms to ensure that the rules they set are complied with by their own member States.67 Moreover, where these organizations do not provide comprehensive coverage of all harvested high seas fisheries, the unregulated stocks have been exposed to an even greater risk of IUU fishing activities. 2.1.2 UNCLOS: particular stocks approach In addition to its zonal approach to the conservation of living resources, UNCLOS (like other fisheries regimes) establishes rules that target the conservation of particular stocks which are harvested not only on the high seas but also within areas under the coastal State’s jurisdiction.68 Borg argues that ‘this reflects the recent trend for international regimes to adopt measures based on an ecosystem approach which UNCLOS supports under its articles 61 and 119’.69 61 UNCLOS does not, however, specify whether these associated or dependent species are to be harvested or are even harvestable. 62 Freestone (n 48) 67. 63 Rayfuse (n 56) 449. 64 UNCLOS, art 92(1). 65 Failure of flag States to comply with their responsibilities under UNCLOS provided the impetus for the development of supplementary rules which aim to strengthen the provisions of the Convention on the obligations of flag States relating to conservation and management of living marine resources. See, for example, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (adopted 24 November 1993, entered into force 24 April 2003) 2221 UNTS 91 and UNFSA. 66 See, for example, Chapter IV of the Scheme of Control and Enforcement of the North East Atlantic Fisheries Commission, https://​www​.neafc​.org/​system/​files/​NEAFC​_Scheme​-2021​-a4Dbl​_sided​.pdf, accessed 13 February 2021. 67 D Freestone, ‘Fisheries, Commissions and Organizations’, Max Planck Encyclopedia of International Law (OUP 2012) vol IV, 60. 68 These stocks include straddling stocks (art 63), highly migratory species (art 64), marine mammals (arts 65 and 120), anadromous stocks (art 66), catadromous species (art 67) and sedentary species (arts 68 and 77(4)). 69 Borg (n 46) 129.

170  Research handbook on ocean governance law In relation to straddling stocks,70 Article 63(2) requires coastal States and States fishing for such stocks on the high seas area adjacent to the coastal State’s EEZ to seek, either directly or through regional organizations, to agree upon ‘the measures necessary for the conservation of these stocks in the adjacent area’. On the other hand, for transboundary stocks,71 States concerned are to seek to agree upon ‘the measures necessary to coordinate and ensure the conservation and development of such stocks’. They can do so either directly or through regional organizations.72 Whereas the conservation measures for transboundary stocks seem not to be particularly problematic (all States concerned have an interest in coordinating conservation efforts for such stocks), the same cannot be said for straddling stocks. Coastal States, even when they do not fish for such stocks in the area adjacent to their EEZ, still have a say in the conservation measures to be adopted for these stocks. Hence, the freedom of fishing for these stocks on the high seas is subject to the rights and interests of coastal States so that the management measures in the EEZ are not undermined by mismanagement of these stocks in the high seas.73 UNCLOS is, however, silent on what happens if an agreement is not reached. Article 64 resonates the conviction that the conservation of highly migratory species74 requires a high degree of international cooperation. For this reason, coastal States and other States whose nationals fish for such species both within the EEZ and beyond have the obligation to cooperate to ensure conservation and also promote the objective of optimum utilization of such species. Such cooperation is to take place either directly or through appropriate international organizations.75 Where such organizations do not exist, the concerned States shall cooperate in establishing the same. Yet, just like in the preceding Article,76 UNCLOS uses hortatory language which requires States merely to cooperate. UNCLOS is complemented by UNFSA which was adopted with the purpose of ensuring the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks, and to improve the cooperation between States.

UNCLOS does not use this term in its art 63. The term was employed for the first time in Agenda 21 which in its para 17.45 called for action which ‘[i]s essential particularly for highly migratory species and straddling stocks’. See United Nations Conference on Environment and Development Rio de Janeiro, Brazil, 3 to 14 June 1992, Agenda 21. The term, although not included in the definitions article of UNFSA, was defined in the preparative works for UNFSA as ‘stocks that straddle the high seas and the outer limit of the exclusive economic zone of coastal States’. See UN Division for Ocean Affairs and the Law of the Sea, ‘The Law of the Sea: The Regime for High-Seas Fisheries: Status and Prospects’ [United Nations New York 1992] para 52 as cited in Bangert (n 44) 30–31. 71 Bangert sheds light on the doctrinal difference between straddling stocks and transboundary stocks which, according to her, ‘denotes stocks that only migrate between EEZs, but not into the high seas’. See Bangert (n 44) 30–31. 72 UNCLOS, art 63(1). 73 ibid art 116(b). 74 Annex 1 provides the list of such species which include tuna, mackerel, swordfish, dolphins and sharks. 75 Relevant organizations include: Inter-American Tropical Tuna Commission, Western and Central Pacific Fisheries Commission, International Commission for the Conservation of Atlantic Tunas, Indian Ocean Tuna Commission and the Commission for the Conservation of the Southern Bluefin Tuna. 76 States are under an obligation to negotiate in good faith rather than to reach an agreement. 70

Conservation of living marine resources  171 Article 66 deals with fishing for anadromous stocks, in other words, stocks, such as salmon,77 that live in the sea and spawn in fresh water. While recognizing that the primary interest and responsibility for such stocks is vested in the State of origin, it prohibits such fishing in the high seas78 ‘except in cases where this provision would result in economic dislocation for a State other than the State origin’.79 In the exceptional cases where fishing for such stocks is permitted to take place in the high seas, the States concerned shall maintain ‘consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks’.80 Borg appreciates that the State practice in relation to conservation of such stocks, especially in the light of agreements concluded to address conservation issues, is in line with the obligations of Article 66. She draws attention, however, to environmental concerns that UNCLOS seems to have ignored.81 UNCLOS regulates in the same fashion catadromous species, such as eels, which live in fresh water but breed in salt water. As in the case of anadromous stocks, fishing of such species is not allowed to take place in the high seas. Agreement shall also be reached for the purpose of implementation of measures in relation to shared catadromous stocks. The State of origin is again placed in the unique position of determining the measures for their conservation.82 The Convention addresses the conservation of marine mammals both in Part V83 and Part VII.84 The provision in Part VII merely cross-refers to the provision of Part V in relation to the conservation of marine mammals. In accordance with this sui generis regime,85 conservation and management are the only obligations imposed on States.86 Whereas the Convention does not prohibit the exploitation of marine mammals per se, it leaves their management to the discretion of coastal States and competent organizations. The Convention, once again, imposes a duty of cooperation for the conservation of these resources, and mandates States to work with appropriate international organizations for the conservation, management and study of cetaceans.87 77 The salmon management regimes are the oldest of the regional regimes dating back before the Second World War. In the Atlantic and the Pacific, three regional management regimes regulate salmon, namely, the North Pacific Anadromous Fish Commission, the Pacific Salmon Commission and the North Atlantic Salmon Conservation Organization. For a detailed analysis on the conservation of anadromous stocks, see Borg (n 46) 140–45. 78 Borg argues that the freedom of fishing such species cannot be allowed because the duty to take the ‘necessary conservation measures’ cannot be ascertained if these species are harvested on the high seas. See Borg (n 46) 140. 79 UNCLOS, art 66(3)(a). 80 ibid. 81 Borg (n 46) 144–45. 82 UNCLOS, art 67. 83 ibid art 65. 84 ibid art 120. 85 Borg lists a number of factors which contribute to distinguishing marine mammals from other marine living resources and thus imposing stricter measures for their conservation. See Borg (n 46) 145–50. 86 UNCLOS, art 65 does not include utilization in its wording. 87 Several conservation instruments have been developed under the Bonn Convention on the Conservation of Migratory Species of Wilde Animals (concluded 23 June 1979, entered into force 1 November 1983) 1651 UNTS 333, such as the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (concluded 17 March 1992, entered into force 29 March 1994) 1772 UNTS 217

172  Research handbook on ocean governance law Regarding the management of whales, the International Convention for the Regulation of Whaling (ICRW)88 was adopted in 1946 to restore and maintain a sustainable whale population or ‘whale stocks’. The Convention establishes the International Whaling Commission (IWC) to regulate the exploitation of large whale species.89 The Commission, through the Schedule which forms an integral part of the Convention, determines periodically the catch limits (which may be zero as in the case of commercial whaling) by species and area, catch seasons and whale sanctuaries.90 The Commission introduced a moratorium on commercial whaling in 1985 which, to date, has not been lifted.91 In accordance with the amended Schedule, save for minke whales, the killing for commercial purpose of whales is forbidden.92 Despite the existing measures, the disagreement between States which consider whaling as an expression of their freedom of the high seas and others which strictly oppose this fishing activity, poses a serious challenge to a widely accepted and integrated management of whaling. Moreover, scientific uncertainties in regard of number of whales of different species in different areas exacerbate the situation and lead to a further fragmentation of the entire whaling regime. The notion of sedentary species93 was developed in international law under the regime of the continental shelf. In this respect, Article 68 of UNCLOS expressly excludes the application of Part V to such species. Therefore, sedentary species are not subject to the objective of

(ASCOBANS) and the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (signed 24 November 1996, entered into force 1 June 2001, http://​ www2​.ecolex​.org/​server2neu​.php/​libcat/​docs/​TRE/​Full/​En/​TRE​-001242​.pdf, accessed 15 February 2021) (ACCOBAMS). In other instances, a regulatory regime is only based on a non-binding instrument, such as the 2007 Memorandum of Understanding concerning Conservation Measures for the Eastern Atlantic Populations of the Mediterranean Monk Seal. For an overview on the various regional and bilateral agreements concluded for the conservation of mammals see A Proelß, ‘Marine Mammals’, Max Planck Encyclopedia of International Law (OUP 2012) vol VI, 1036–44. 88 Adopted 2 December 1946, entered into force 10 November 1948, 161 UNTS 72. 89 The Convention covers the 13 species of large whales, but does not cover small cetaceans, such as beluga whales. The Convention never did regulate the hunting of small cetaceans as well. However, it is now using its expertise to understand and address conservation concerns related to them. 90 Two whale sanctuaries were established by the IWC in 1979 and 1994. 91 The stricter conservation measures for whales have not met with acceptance by all States, some of which consider them to be subject to the freedom of the high seas. See the initial position of Iceland in relation to the moratorium imposed by the Commission. 92 Two exceptions apply to the moratorium: aboriginal whaling (art 13 of the Schedule) which is allowed only for local consumption and use and the taking of whales pursuant to a permit for scientific research (art VIII of the Convention). Whaling for scientific purposes is not subject to international control since it is regulated by national governments, which are to grant licences according to national standards and procedures. The later type of whaling continues to be an ‘Achilles heel’ in reaching consensus on uniform conservation measures. Regrettably in the Whaling in the Antarctic Case (Australia and New Zealand (intervening) v Japan) Merits, ICJ GL No 148, [2014] ICJ Rep 226, the International Court of Justice saw no need to determine the exact meaning of scientific research. 93 UNCLOS defines sedentary species as ‘organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’.

Conservation of living marine resources  173 optimum utilization as well as the obligation of conservation and preservation.94 In addition, the coastal State is also not obliged to share any surplus in such resources with other States.95 On the other hand, UNCLOS makes no reference to sedentary species on the deep seabed area.96 Sedentary species lying in areas of continental shelves beyond 200 nautical miles would seem to be subject to the conservation regime of the high seas, if their bioprospecting is to be considered as harvesting.97 In addition, UNCLOS does not indicate at what stage these species become harvestable and which regime shall apply to their conservation until such stage has been reached. Perhaps some of the ambiguities can be overcome by applying other general principles set in the Convention.98 The Convention on Biological Diversity is also important as it provides in Article 6 for the States’ general duty to conserve marine biodiversity. In accordance with the provisions of this Convention, States parties must endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses by other parties and access, where granted, must be on mutually agreed terms and subject to the prior informed consent of the party providing such resources.99 Hence, as Borg suggests, it may be beneficial to the coastal State, which cannot monitor activities beyond its continental shelf, ‘to enter into agreements with foreign and local companies involved in research to participate, promote capacity building and be in a position to assert its rights when it has better scientific knowledge’.100

On how the Convention on Biological Diversity can remedy such lacuna by imposing an obligation on Contracting parties to manage biological resources located within national jurisdictions see S Borg, ‘Conservation of the Marine Environment and the Exploitation of the Seabed: The Ocean, Climate Change and Marine Biodiversity of the Benthic Zone – Joining the Dots’ in P Chaumette (ed), Transforming the Ocean Law by Requirement of the Marine Environment Conservation (Université de Nantes, Marcial Pons 2019) 89–90. 95 On the right of other States to sedentary species, see C Kojima, ‘Sedentary Fisheries’, Max Planck Encyclopedia of International Law (OUP 2012) vol IV, 87–8. 96 This issue has become relevant in the light of bioprospecting which involves collecting samples of marine species from the ocean bed to screen them for genetic materials and other properties that may be of commercial value. Mossop supports this proposition noting that States’ interest in sedentary species in areas of continental shelves beyond 200 nautical miles will focus on the use of deep-sea benthic ecosystems for biotechnology purposes rather than commercial fishing. She notes, however, that applying the UNCLOS definition of sedentary species in the context of marine genetic resources is not helpful. See J Mossop, ‘The Relationship between the Continental Shelf Regime and a New Instrument for Protecting Marine Biodiversity in Areas beyond National Jurisdiction’ (8 VUWLRP 8/2018) 5, 13. 97 However, if such bioprospecting is to be considered extraction, the conservation of such species is not subject to a regulatory regime since the International Seabed Authority has no responsibility for benthic marine life of the area. If this bioprospecting is to be considered marine scientific research, Part XIII of UNCLOS will regulate such activity. See Borg (n 94) 86. 98 Art 56 of UNCLOS confers on the coastal State sovereign rights for the purpose of ‘exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil’. Moreover, art 193 provides that coastal 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’. Importantly, art 194 mandates States to include in the measures taken to protect the marine environment ‘those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. 99 Kojima (n 95) 88. 100 Borg (n 46) 154. Borg also raises the important point of lack of enforcement against vessels which may act illegally in areas beyond national jurisdiction and emphasizes the role of cooperation with 94

174  Research handbook on ocean governance law Lastly, it is hoped that any lacunae existing in the current regime under UNCLOS in relation to sedentary species, especially in areas beyond national jurisdiction, can be adequately addressed by the new international legally binding instrument on these areas.101 It is important that such instrument goes beyond the provisions of UNCLOS and establishes a regime that balances the rights of all States concerned, while stipulating clear environmental obligations which pursue the goal of protecting marine biodiversity.102 2.2 UNFSA The UNFSA developed further the Part VII high seas regime of UNCLOS which, as seen, sets up a rather abstract framework for joint and cooperative management of straddling and fishing stocks. UNFSA clarifies and enhances UNCLOS provisions in relation to these species. Article 5 incorporates important principles of modern international environmental law such as (1) the long-term sustainability, (2) the precautionary approach, (3) the obligation to take account of a wide range of ecosystem considerations, (4) the obligation to strive for compatibility, and (5) protection of biodiversity, which emphasize the importance of an integrated approach to ocean governance matters. Indeed, States are under an obligation to apply the precautionary approach so as to protect marine living resources and preserve the environment.103 Coastal States and high seas fishing States shall cooperate to achieve compatible conservation and management both within and beyond areas under national jurisdiction.104 Pursuant to Article 3, both these requirements apply as well to straddling and migratory stocks under national jurisdiction. UNFSA strengthens cooperation for conservation and management of these living resources through subregional and regional fisheries management organization and arrangements105 which play an important role in the conservation of these living resources. Article 8 emphasizes the key role that regional organizations will play as the ‘preferred governance vehicles regional organizations or, in the absence of such organizations, the conclusion of bilateral agreements with the fishing State. 101 On 24 December 2017, the United Nations General Assembly, through Resolution 72/249, decided to convene an Intergovernmental Conference on an internationally legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 102 Mossop (n 96) 20. 103 UNFSA, art 6(1). Birnie, Boyle and Redgwell note: ‘The precautionary approach and other provisions of the Agreement have for the first time given international fisheries law an environmental and inter-generational aspect consistent with the pursuit of sustainable development.’ See P Birnie and others, International Law and the Environment (3rd edn, OUP 2009) 203. 104 ibid art 7. In striking a balance between the rights of coastal States and States fishing on the high seas, art 7 is a central provision of the Agreement. Art 7(2) provides that conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible inter se, thus curtailing the unfettered discretion of coastal States or States fishing on the high seas to determine the ‘necessary conservation’ measures. The article defines the objective to be met by the establishment of compatible measures and it indicates factors to be taken into account in determining such measures. For more detailed analysis on the impact of art 7(2), see AG Oude Elferink, ‘The Impact of Article 7(2) of the Fish Stocks Agreement on the Formulation of Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks’ (FAO Legal Papers Online #4, 1999) 4, http://​www​.fao​.org/​3/​bb037e/​bb037e​.pdf, accessed 15 February 2021. 105 ibid arts 8 and 10.

Conservation of living marine resources  175 at the regional level’.106 Its application is, thus, intended to lead to a situation where fishing is only reserved for member States of these organizations. The concrete functions of RFMOs are set out in detail in Articles 9–14, including the formulation of applicable standards and quotas as well as possible participation of new members. The reference to standards for cooperative means of ‘effective monitoring, control, surveillance and enforcement’ in Article 10(h) represents an important example of a development towards cooperation in matters of enforcement instead of a focus on exclusive flag State jurisdiction on the high seas.107 Part IV addresses the problem of high seas fishing vessels which fly the flag of States which are not parties to regional treaties or arrangements and fail to comply with appropriate conservation and management measures. The Agreement affirms the principle that the flag States of such vessels are still required to observe the obligations to cooperate set out in Articles 63 and 64 of UNCLOS as well as the provisions of UNFSA.108 To many, this Part (especially when read together with Article 8) seems to curtail the freedom of fishing on the high seas and may be seen as a departure from the letter of UNCLOS. As Freestone reminds ‘[i]t should be noted however that … freedom of fishing as envisaged by the convention is not an unconditional right, as it does involve the fulfilment of reciprocal obligations’.109 Flag States shall in fact ensure that vessels flying their flag comply with regional and subregional conservation measures.110 In this respect, flag States shall adopt a wide range of measures regarding licensing, boarding, inspections and reporting obligations, including duties to implement regional and subregional surveillance schemes. Article 19 reiterates the flag State’s jurisdiction in relation to compliance and enforcement measures – flag States are also to immediately investigate violations. Improved compliance with and enforcement of conservation and management measures on the high seas, including innovative means of international and regional cooperation, are stipulated in Articles 20–22.111 It is important to remember, however, that the UNFSA only binds its parties and only applies to certain species.112 Nevertheless, the principles which it endorses ‘have been recognized as important general principles for all fisheries management, supporting the predictions of some commentators that over time it will come to be regarded as customary law’.113

Molenaar (n 17). Yet, the challenges of RFMOs in enforcing compliance with their mandatory management measures persist. See Fuchs (n 1). 108 UNFSA, art 17. 109 Freestone (n 48) 70. 110 UNFSA, art 18. 111 Measures in line of these provisions which provide for non-flag State boarding and inspection are included in several RFMOs. However, the limitation in their success is owed to the costs involved. Moreover, as the flag State is mandated with investigation duties and prosecution, any such enforcement measures by non-flag States need the support of the flag State. 112 According to art 33(1) of the UNFSA, third States shall be encouraged to become parties to the agreement and promulgate legislation in accordance with its provisions. Art 33(2) calls for ‘measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of this Agreement’. Hence, measures such as the detention of vessels, crews, and gear would be covered by the provision, although they are rarely employed and are usually subject to the consent of the master. 113 Freestone (n 48) 70. 106 107

176  Research handbook on ocean governance law 2.3

Code of Conduct for Responsible Fisheries

The Code of Conduct for Responsible Fisheries,114 adopted in 1995 by FAO, is a comprehensive instrument that addresses all those involved in fisheries115 and applies to all types of fisheries, both within the EEZ and on the high seas. Recognizing that new approaches to fisheries management embracing conservation and environmental considerations were needed, the Code sets international standards of behaviour for responsible fishing while ensuring the effective conservation and management of marine living resources, their ecosystem, and biodiversity.116 By doing so, it develops the duties of all States, particularly flag States and port States, in order to ensure responsible fisheries. It provides a necessary framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment.117

3. CONCLUSIONS This chapter has highlighted that the conservation of living marine resources is subject to numerous instruments, both binding and non-binding in nature. Adopted in various fora, these instruments have long introduced concepts such as the precautionary approach, sustainability, and ecosystem-based management. The existing international framework, however, is complex where new overlapping regulatory frameworks and various legislative techniques, like the institutional, zonal and stocks-related approaches, merge. Moreover, the integration and interaction of fisheries regulations with other regimes, such as environmental and ecological, has proved challenging and has not led to the desired results. This piecemeal approach to governance also makes deploying management and conservation tools such as environmental impact assessments and MPAs, including marine reserves, challenging both legally and logistically.118 Therefore, it is important to revise these regimes so that clear and realistic obligations, which reflect modern ocean governance principles such as environment protection and sustainable ocean ecosystems, are imposed on all States concerned.119 Climate change and its impacts on living marine resources pose new challenges which need to be tackled by States and RFMOs

Code of Conduct for Responsible Fisheries, Food and Agricultural Organization of the United Nations, Rome 1995 (Code of Conduct). 115 In accordance with para 1.2, the Code of Conduct is ‘directed toward members and non-members of FAO, fishing entities, sub regional, regional and global organizations, whether governmental or non-governmental, and all persons concerned with the conservation of fishery resources and management and development of fisheries, such as fishers, those engaged in processing and marketing of fish and fishery products and other users of the aquatic environment in relation to fisheries’. 116 See inter alia paras 6.2–6 and 7.2 of the Code of Conduct. 117 The Code of Conduct has been instrumental in the development of further instruments on fisheries, for example, the International Plan of Action for the Conservation and Management of Sharks, Food and Agricultural Organization of the United Nations, Rome 1999; International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Food and Agricultural Organization of the United Nations, Rome 2001. 118 Pew Charitable Trusts, ‘How MPAs Safeguard the High Seas’ (2019) 5, https://​www​.pewtrusts​ .org/​en/​research​-and​-analysis/​issue​-briefs/​2019/​08/​how​-mpas​-safeguard​-the​-high​-seas, accessed 14 February 2021. 119 Bangert (n 44) 38. 114

Conservation of living marine resources  177 alike. A network of high seas MPAs will not only protect species in areas beyond national jurisdiction but would also help conserve the broader high seas ecosystem and build resilience against climate change.120 To this end, science and law need to complement each other so that any conservation measures are promulgated pursuant to reliable data on fish stocks and their behaviours within the wider ecosystems. Regional fisheries organizations, in particular, need to introduce reforms within these organizations and beyond for the purpose of promoting and implementing the conservation principles. The success of any measures, however, relies on their effective implementation. Hence, flag, port and coastal States all have an important role to play in halting the degradation of fish stocks and ensuring their sustainability.

Pew Charitable Trusts (n 118) 6.

120

PART III THE INTEGRATED APPROACH FOR SUSTAINABLE OCEAN GOVERNANCE

11. Ocean governance in an era of climate change Simone Borg

1. INTRODUCTION The impact of climate change upon the ocean and the biological, chemical and physical effects1 resulting therefrom are a matter of increasing concern.2 Scientific fora have repeatedly demonstrated the ocean’s role as a ‘regulator’ of the Earth’s climate and a major sink of carbon dioxide (CO2).3 Beyond scientific circles, awareness regarding the effects of climate change upon the ocean, intensified pari passu with the highly contentious climate change negotiations, spans these last three decades. Copious scientific information highlights the multifaceted and complex relationship between the ocean and climate change. International negotiations on climate change and ocean governance, however, continue to evolve in separate political fora that negotiate various multilateral legal and policy instruments, addressing the threats to these two global resources. International law and policy need to circumvent this silo approach and adopt a more integrated modus operandi, in order to effectively deal with ocean governance in an era of climate change. One of the most influential scientific studies addressing global resources governance, which promoted the integrated approach, was the one on ‘the Planetary Boundaries’,4 carried out by a research team, headed by Johan Rockström, in 2009. This group of 28 earth scientists

M Toman ‘A Wicked Problem: Controlling Global Climate Change’ (The World Bank, 30 September 2014), www​.worldbank​.org/​en/​news/​feature/​2014/​09/​30/​a​-wicked​-problem​-controlling​ -global​-climate​-change, accessed 27 May 2021. 2 TM Letcher (ed), Climate Change: Observed Impacts on Planet Earth (2nd edn, Elsevier 2015). 3 HO Pörtner and others (eds), ‘IPCC Special Report on the Ocean and Cryosphere in a Changing Climate’ (IPCC, 2019), https://​www​.ipcc​.ch/​site/​assets/​uploads/​sites/​3/​2019/​12/​SROCC​_FullReport​ _FINAL​.pdf, accessed 27 May 2021, 3 and 6. The Summary for Policy Makers of the IPCC’s SROCC report was approved on the second Joint Session of the IPCC Working Groups I and II and accepted by the fifty-first session of the IPCC on 24 September 2019 in Monaco. It further confirmed the inextricable nexus between climate and the ocean. 4 The nine planetary boundaries are climate change (CO2 concentration in the atmosphere