Exam Review of International Laws PDF

Exam review Laws 1982 UNCLOS - UN Convention on the Law of the Sea (Montenegro Bay, Jamaica convention) 1969 Vienna convention on the Law of treaties An International agreement that regulates treaties among sovereign states....

Exam review Laws 1982 UNCLOS - UN Convention on the Law of the Sea (Montenegro Bay, Jamaica convention) 1969 Vienna convention on the Law of treaties An International agreement that regulates treaties among sovereign states. Issues: Where the signature is subject to ratification, acceptance or approval, the signature does not establish consent to be bound Not always respect or controlled as there are no systemic sanctions It depends on the commitment of each country 1976 Barcelona convention A regional agreement under the United Nations Environment Programme (UNEP) for protecting the Mediterranean Sea against pollution Focuses on marine and coastal areas in the Mediterranean. Includes specific protocols, such as those addressing marine biodiversity, coastal zone management, and pollution prevention. 1992 Convention on Biological Diversity (Rio) Objective: “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources” Not signed by US 1992 Rio Declaration not a binding legal instument but an important committment Exam review 1  1994 UNFCCC Kyoto protocol Common objective precise : 5% reduction GHG compare to 1990 Individual commitment precise for DP Approach: Top-Down 2008 Madrid Protocol on ICZM in the Mediterranean Adopted by Barcelona convention Definies coastal zones in the Med not a true legal definition but states how coastal zones should be approached 2016 Paris Agreement Common objective insufficiently precise : 2/1,5° compare to pre-industrial level Individual commitment precise Approach: Bottom-Up 2023 Antanarivo Protocol Regarding Coastal Zone Management in the Western Indian Ocean 4 types of international law so 4 ways states can create norms in international law: 1. Treaty: agreement between two states that conforms to international law. It is binding only for states that ratify it. Respects the rules of the Vienna convention 2. Custom: a general practice followed by states. Number of actions or abstentions by states, revealing the existence of a binding practice. A practice that has specificity, making it binding 3. General Principle of law: Principle in national legal system that have been transposed into the international legal system. From national state Exam review 2  translated to international law, the basics of the legal system 4. Unilateral Act: States can bind themselves with a unilateral act. Unilateral will of the state that meets the unilateral will of another (or more) states. NATIONAL Importance of regional programmes and conventions Pros: Enables countries to meet regularly and work on priority action plans Increase the capacity building of countries Can help countries to receive financial and political support Cons: Many reports are not always followed by decisions Concrete actions difficult to set up Sometimes far from local issues Exam review 3  EU EU commission is divided into two different directions: 1. DG ENV (environment) 2. FG MARE (maritime affairs and fisheries) The EU can implement: Regulations: binding legislative act. It must be applied entirely across the EU Directive: a legislative act that sets out a goal that all the EU countries must achieve Decisions: a decision is binding on those to whom it is addressed, i.e. an EU country or individual company, and is directly applicable Recommendations: allows institutions to make their views known and suggest a line of action without imposing legal obligation on those to whom it is addressed. 1991 Nitrate directive: aims to protect water quality across Europe by preventing nitrates from agricultural sources polluting ground and surface waters and by promoting the use of good farming practices. In 2014 France was condemned by The Court of Justice of the EU and fined, leading to a change of practice. 2008 Marine Strategy Framework Directive (MSFD) - by EU Achieve Good Environmental Status (GES) of the EU’s maritime waters by 2020 It is reviewed every 6 years Ecosystem approach in qualitative descriptors: 1. Biodiversity is maintained 2. Non-indigenous species do not adversely alter the ecosystem 3. The population of commercial fish species is healthy 4. Elements of food web ensure long-term abundance and reproduction 5. Eutrophication is minimised 6. The sea floor integrity ensures functioning of ecosystem Exam review 4  7. Permanent alteration of hydrographic conditions does not adversely affect the ecosystem 8. Concentration of contaminant give not effects 9. Contaminants is seafood are below safe levels 10. Marine litter does not cause harm 11. Introduction of energy (including noise) does not adversely affect the ecosystem Law in France National Laws in France Local and national laws to protect marine environments are the most efficient for control, monitoring, and raising awareness. i.e. list of national and local protected species, characterisation of MPAs, invasive alien species. Laws can be politically oriented. In EU countries, national and local laws need to be compliant with the directives, otherwise sanctions are possible. In France The maritime prefect (whoever represents the president locally) is the representative of the state at sea. The French state is represented at different layers: National - ministry of environment Regional - DIRM/ DREAL Local - DDTM Different agencies have been created: French biodiversity agency: sharing knowledge, expertise and research about species, habitats and their use; environmental and wildlife policing; support the implementation of public policies; assisting protected area managers; supporting stakeholders and mobilising society Water agencies: in charge of the quality of waters Ifremer: research, fisheries, exploration Regions have socio and economic power, so there is no possibility to create and control environmental regulations. Exam review 5  Cities: in charge of sanitary conditions of the beaches, implementing buoys etc. Urban agglomeration/ metropol: more and more power (harbours, beach control, urban waste) MPA managers: in charge of protecting and managing their own territory Fisherman: specificity in terms of territorial power Maritime Law in France In France, maritime Law is related to the maritime navigation, related to ships, defined in the code of transport Some rules: free access to the beach no private beach (can’t be sold) limits can change with time only removable structures allowed authorisation required for projects beach structures obey strict rules Regions / cities have no power Code of transports allow for freedom to navigate in territorial waters for all boats. Related to UNOC art. 87 – issue with anchoring Code of environment Code of fisheries Applied to professional fishermen Applies to leisure fishing activities MSFD in the French Med French law in May 2011 Binding objectives and priority action plans. Actions include: Exam review 6  Mooring strategy Diving strategy Reduce water inputs Ecological restoration Raising awareness Improve technical harbour areas Develop Real Time Plotting of Cetaceans (REPCET) Marine Spatial Planning Framework Directive 2014 Blue economy becomes the priority Objectives: Reducing conflicts and creating synergies between activities Encouraging investment through predictability, transparency and legal certainty Increasing cross-border cooperation between EU countries to develop renewable energy, allocate shipping lanes, lay pipelines and submarine cables Protecting the environment CLIMATE LAW Difficulty in climate regulation comes from the economic nature of climate change: From an economic point of view, climate change is qualified as a global public good. A public good has two fundamental characteristics: 1. non rivalry - when consumption from one actor does not reduce the one of the other 2. non exclusivity - it is impossible or excessively costly to exclude consumption Global public goods qualify externalities of human activity. Two main consequences: Exam review 7  1. Prisoner’s dilemma - consequences of a lack of cooperation in the management of a global public good. Illustrated by example of two prisoners having to denounce each other 2. Free rider phenomenon - situation where a member of the group enjoys benefits without contributing Aspects of Multilateral Environmental Agreement (MEA) Called empty shells - create binding norms, but ability for a state to be bound by an obligation is subject to the formulation of the provision. Wording gives too much of a broad margin Framework umbrella treaties they encapsulate a vague norm but create a new institution with the function of specifying the norm. These new institutions, “quasi international-organisation”, are composed of 3 different kinds of bodies: 1. Decision making body - conference of the parties (COP) 2. Scientific body - to assist COP in adopting decisions on scientific aspects. They are composed of experts who are also state representatives, making them not truly independent and impartial in their decisions 3. Administrative body - insure implementation during the inter-sessional periods Subsequent norms can be placed in the annex, in protocol negotiated and adopted by the COP, or in a specific legal instrument in a decision adopted by the COP Interests Adapt to scientific knowledge Reaching consensus on political level step by step Facilitate implementation Structure Exam review 8  Climate regime is mainly composed of soft law, rule that are not really binding. Two kinds: 1. Instrumentum: the norm is in an act that has not been created through a source of law. A political declaration adopted by states, but the declaration does not conform with the Vienna convention’s requirements so cannot be considered a treaty as it is not a source of law. It does not allow states their formal consent to be bound by it. 2. Negotium: The norm is soft because of the contents of the instrument, or formulation 3. Soft instrumentum and negotium: the decision is not a treaty or a unilateral act therefore cannot be considered as international law. General formulated using “should” or “as appropriate”. Soft instrument and soft content.i.e. COP decisions An important aspect that convinced states to commit was the idea of differentiation of obligation. Argument based on historical responsibility of Exam review 9  developed countries and actual difference of capacity of implemented mitigation measures. 1994 United Nations Framework Convention on Climate Change (UNFCCC) To prevent dangerous human interference with the climate system. Three agreements under UNFCCC Bali Action Plan (2007) Copenhagen Accord (2009) Cancún agreements (2010) Kyoto Protocol → objective 5% less emissions. It was very specific, based on the principle of differentiated abilities and responsibilities of developed and developing countries. Set quotas for developed countries, but not developing. This caused conflicts as seen as “unfair”. Also based on an annex, so put in place common obligations not taking into account how a developing country may become developed country like China. USA did not ratify because found it unfair, specifically because of China. Issue as it's a binary system, there are also emerging countries. The protocol Top-down approach Exam review 10  💡 In 2005 the Kyoto Protocol enters into force - already know it pointless as it doesn’t include US so it will not achieve a sufficient goal Bali action plan → Result of dialogue between working group tasked to work on new commitment as failure of Kyoto Protocol is known already. Doha amendment → Result of dialogue of working group to create rules for the second commitment period lasting until 2020 Many countries dropped out, with only 15% of carbon emissions being accounted for. Paris Agreements → Bottom-up approach, the state defines and informs the COP about its abilities Just starting, many rules are still in negotiation Oceans in climate negotiation UNFCCC Mentions that climate change will impact sea level rise Article 1§3 mentions climate system is totality of atmosphere, hydrosphere, biosphere, geosphere and their interactions Article 4§1 says parties have to promote sustainable management, conservation and enhancement of sinks and reservoirs including oceans Paris Agreement Notes the importance of ensuring the integrity of all ecosystems, including the oceans Article 5§1 states parties should take action to conserve and enhance sinks and reservoirs of GHG (recalling article 4§1 of the convention) UNCLOS Exam review 11  Regulates different sources of pollution → climate change as a source of pollution Advisory opinion (consultative procedure) on the obligation of states under the convention in order to preserve the marine environment from climate change needs to define if climate change can be a source of pollution → yes GHG Article 194 general obligation to prevent pollution of marine environment → customary obligation of due diligence all state need to prevent CC in order to avoid the destruction of the marine environment Article 207-212 obligation to adopt norms to prevent marine pollution IMO Competence to regulate marine shipping and GHG from this sector Wooclap Questions Why is it hard to regulate GHG emissions and struggle against CC? Protocols are regulating the source of carbon but also the “sink” It is a connected choice, but countries are more likely to follow the path that is best for them as an individual and follow their economic interest, so we will never reach the Pareto optimal situation. Tragedy of the commons. This is battled through the COP as it increases collaboration and information. Global public goods are non-exclusive, so countries that are not doing anything to fight against climate change are still benefitting from the countries that do, although they are not supporting the economic cost. This way, they have an incentive not to act. How does international cooperation work on this subject? Creation of UNFCCC 1954, which is a good start, but it is an umbrella term so other treaties need to be created. Followed by: 1. COP (Conference of the Parties) → meets every year Exam review 12  2. CMP (Meeting of the Parties) 3. CMA (Meeting for Paris Agreements) → parties that are not part of it can assist but not vote Subsidiary bodies include experts and scientists, who are biased as they also act as representatives for the states. Also includes the secretariat. What are the strengths and limitations of the process? Strengths Limitations A step-by-step approach Takes a long time → we haven’t managed to have a real Helps fight prisoner's dilemma commitment in a few years (lack of information across states) First, not final step which allows first consensus on principles Informs about scientific knowledge What are the state’s obligations under the Climate regime Kyoto and Paris are binding treaties COP decisions are not binding because they cannot be categorised into any of the four ways to create a norm. Not a treaty, as they do not follow the Vienna convention. Could create customary law eventually in long time, but not on its own and not currently. Not a general principle of law, as it does not come from a national state. Not a unilateral act, although it could be one if it is specified when it is created. Nationally determined contribution (NDC) - Every state will do what it can, based on its national circumstance and capacity - based on individual commitment according to ability, International Court of Justice (ICG) - is a jurisdiction created by UN charter. It has universal competence, meaning it can judge every state in every field. However, the court is consensual, the states have to accept the jurisdiction of the court before they can be judged. Exam review 13  ICZM - INTEGRATED COASTAL ZONE MANAGMENT Coastal Zone contains land and marine territory Although coastal zones are an issue of the territorial state, there is still room for international law. Since international law has developed for the protection of the environment and definition of sustainable development. States have entered collective regulation to 1. reduce pollution from coastal zones, 2. collectively share how to Demographic pressure + density of economic activities → overexploitation of resources + degradation of habitats Coastal zone is a coveted territory for fishing, sea farming, navigation and access to the sea, growing urbanisation, coastal tourism etc. They are particularly exposed to risks induced by climate change Therefore, coastal ecosystems are the most threatened ecosystems, overall highly vulnerable Multiple uses of natural resources - fisheries, aquaculture, wind farms Multiple use of landscape - tourism Demographic and urban pressure - 60% of humans live less than 60km from the sea + seasonal traffic Of special importance since complex, highly productive ecosystem are found in coastal regions Multiple Management Frameworks Multiple governance structures Coexistence of different legislations and regulations applicable to the coast (wastewater, land-use planning, tourism etc.) Coastal zone management also depends on the management of adjacent environments 💡 Around 80% of marine pollution load comes from land-based activities Exam review 14  Coastal zone = archetypal complex socio-economic system → a system that can only be effectively apprehended through an approach that transcends sectors and disciplines, by integrating them. The solution is Integrated Management ICZM was conceived some thirty years ago, but is still very relevant A coastal zone has no precise natural boundaries to clearly delimit them, as a consequence there is no universal official definition at the international level setting boundaries allows for the identification of stakeholders which activities are involved who will collaborate to governance For management purposes, various boundaries have been used around the world to define them, these can be fairly narrow and precise, or wider and more nebulous Management boundaries are pragmatic as they are influences by biophysical, economic, social, institutions and organisational aspect Boundaries may change overtime for management needs, as the problems to be tackled become larger and more complex requiring long-term solutions Model law on sustainable coastal zone management developed by the Council of Europe Article 1 proposes that States define the notion of coastal zone in their legislation as: a geographical area covering both maritime and terrestrial parts of the shoreline include at least all or part of the territorial waters, maritime domain and territory of municipalities bordering seas and ocean Madrid Protocol on ICZM in the Mediterranean Adopted in January 2008 as part of the Barcelona Convention Official definition of coastal zones, but limited to the Med “Coastal zone means the geomorphologic area either side of the seashore in which the interaction between marine and land part occurs in the form of Exam review 15  complex ecological and resource systems made up of biotic and abiotic components coexisting and interacting with human communities and relevant socio-economic activities” not a legal definition but states how coastal zone should be approached Article 3 has a legal value as it defines the geographical field of application: The area to which the protocol applies shall be the Med Sea area as defined in Article 1 of the convention. The area is also defined by: a. the seaward limit of the coastal zones, which shall be the external limit of the territorial sea of Parties and b. the landward limit of the coastal zone, which shall be the limit of the competent coastal units as defined by the Parties States may, provided they make a declaration, choose other limits: seawards, within the limits of the territorial sea landward within or beyond the boundaries of coastal administrative entities based on an ecosystem approach or on economic and social criteria France will also be part of the Protocol on Integrated Coastal Zone Management of the Wester Indian Ocean (Madagascar) which has differing definitions for coastal zones Coastal territory is exclusively under state sovereignty (not EEZ, except for Antananarivo protocol) Notion of integrated management Answers the question, “what are the best ways to exploit and protect resources on the coast?” Exam review 16  Integrated management is the opposite of sector based management It implies the simultaneous consideration of several conflicting uses or interests in the same area It is based on a multidimensional, holistic approach Rio declaration 1992 Principle 4: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it 80s was a key decade Brutland report definition of sustainable development “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” Integrated management is about: improving decision-making a modern way of managing, as opposed to a previous, problematic way to overcome the fragmentation inherent in both the sectoral approach and the gaps between the levels of government at the land-sea interface Design institutional processes to achieve this harmonisation in a politically acceptable way → a question of governance 5 stage cycle As a part of the ICZM process, management covers an entire cycle comprising 5 stages: 1. Data collection a. not only ecological issues, but also population and heritage, in the broadest sense everything to do with culture 2. Planning a. strategic action Exam review 17  3. Decision-making 4. Implementation 5. Implementation monitoring This means the ICZM has no end, there is no level of management that can stop the process. As such, development has no end Rio Earth Summit In the 1980s, the regional planning and protection of the environment in European coastal regions was being considered Paragraph 8 emphasises the need to consider the cost as an entity composed of two elements, the land and the sea, which should be the subject of an integrated planning policy combining land and maritime activities RIO Earth Summit, 1992 Report of UN conference on Environment and development Chapter 17 is all about the ocean (only soft laws) including coastal zone areas There is a strong commitment by states to react ICZM is a management approach, not a goal in itself Integration appears in three perspectives: 1. Spatial integration a. land-sea interface - the traditional understanding of the two elements separately is superseded by a combined approach (management unit) 2. Temporal Integration a. sustainable development - taking into account the needs of future generations 3. Thematic/ horizontal integration a. governance approach that integrates all sectors of activities affecting the coastal zone and its resources Legal instruments relating to ICZM Exam review 18  A lot of soft law instruments Agenda 21, FAO, UNESCO, EU… International treaties projected into ICZM UNCLOS, CBD, UNFCCC ICZM content and General Principles About governance processes, article 6 is very relevant (a) coastal zone must be considered as a single entity, so it must be addressed through a holistic approach (b) again, holistic approach (c) important mindset (d) States commit themselves to transparency (e) Not only involve all stakeholders but also organise coordination of public institutions (g) A question of priority, multiple uses of the same resources, then a hierarchy can be created on what the priority of use it - a way to manage the conflict of uses of the same resources, then give a priority where necessary firstly to the public services and activities requiring immediate proximity of the sea (h) once again a broad principle that needs more precise rules (i) prevention, EIAs and potentially precautionary approach Key elements of sustanable develpoment approach: no build strip (100m from shoreline) urban development break free access to the sea and along the shoreline supervision of economic activities land policy Overall, it is a participatory and transparent decision-making process. An article is dedicated to decision-making, article 14 Addresses appropriate involvement in phases of formulation and implementation Exam review 19  Territorial communities and public entities economic operators non-governmental organisations social actors the public concerned Article 8 dedicated to the protection and sustainable use of the coastal zone (a) based on legislation in France. States must refuse new construction within 100m of the shoreline (b) a question of balance between protection and interest, have to follow a case by case approach (c) states must inform on their legislation on limitation of construction Precise obligations as we talk about rules that must be followed Exam review 20  💡 There is a mix in the treaty of flexible rules → indications, guidance for states as well as strong rules Exam review 21 Exam review 22  ICZM Strategies and action plans Way to turn rules into a vision, a strategy so that it can become precise regulations Different layers of government that must be made coherent → A common, collective Mediterranean strategy. Additional document to the ICZM protocol Article 18 To this end, the Parties shall define, with the assistance of the Centre, a common regional framework for integrated coastal zone management in the Mediterranean to be implemented by means of appropriate regional action plans and other operational instruments, as well as through their national strategies. National Med strategy that must become national strategies, national comittment Example: France Adopted national strategy for the sea and coastal areas Adopted in 2017, version 2 in 2024 Established a national body: Conseil national de la mer et des littorraux (CNML) involved in drwaing up national stategy for sea and costal areaa must be consulted Conseil national de la mer et des littorraux (CNML) Composition: The CNML is chiered by the PRime Minister, or, by delegation, by the Minister for the Sea. It comprises 52 members divided into six colleges: Facade strategies: seafront strategies Sets out the guidelines of the national strategy for the sea and coastline, taking into account the economic, social and ecological challenges of the facades Exam review 23  concerned. → seafront = a new scale of governance 💡 Includes a chapter about coastal zones → Conseil maritime de facade = concentration body Comprised by 80 members and chiared by Prefet maritime de la Mediterranee and the Prefet de region Provence-Alpes-Cote d’Azur Not to be confused with Conservatoire du Littoral (1975) whose rolse is to aquire and manage sites (routine management, surveillance, reception) In line with Article 20 of the Madrid Protocol 13% of the french coastline is managed / owned by Conservatoire du Littoral France is a pioneer in the consideration of coastal areas and ICZM. Is it now integrated in a cohercive strategy, Conclusion The concept of IZM has attracted a great deal of interest and led tothe development of international legal frameworks, in various forms The most successful of these is the Madird Protocol (2008) for the Med, the first international treaty on the subject, which established an ambitious multi- level, cross-cutting coast governance regime → unprecedented international obbligations The difficulties of implementing ICZM remain obvious The development of a braoder approach to the integrated maritime governance of a maritime and coastal affairs places ICZM, which insipred it, within a broader vision of marine speatial governance → Is this to the advantage or detriment of the unique challenges of coastal governance and ICZM defined to meet them? INTERNATIONAL LAW Exam review 24  ⚠️ Treaties, conventions and agreements are the same A protocol is a legally binding agreement for states that have ratified an international treaty that completes another treaty 7 different zones 1. The internal waters Waters between the coast and the baseline of the territorial sea The rivers, ports and maritime space contained in the indentations of the coast Legally assimilated to the land territory Sovereignty of the coastal state is thus total, exclusive, as for the terrestrial part of the territory The baseline: used as the reference to delimit the maritime zones under the jurisdiction of the coastal state UNCLOS art 5 and 7 2. The territorial sea Any state has the right to determine the extent of its territorial sea up to 12 nautical miles from baselines established in accordance with UNCLOS (Art. 2 – 32) Art 2: sovereignty extends to territorial sea Air space over and its bed and subsoil Right of innocent passage Art 17. Ships of all states, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea allows foreign ships to navigate through another country's territorial sea in a manner that is innocent and not prejudicial Art 21 ffi (a) the safety of navigation and the regulation of maritime tra c. (b) the protection of navigational aids and facilities and other facilities or installations. Exam review 25  (c) the protection of cables and pipelines (d) the conservation of the living resources of the sea (e) the prevention of infringement of the fisheries laws and regulations of the coastal State (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof (g) marine scientific research and hydrographic surveys (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.” Principle of the sovereignty of the coastal state: its jurisdiction is complete and exclusive over economic activities, police activities and public services activities Maritime part of the territory of the coastal state 3. Contiguous zone Directly connected to the territorial sea This concept recognizes the rights of the coastal State to ensure that laws and regulations are respected by foreign ships, up to 24 nautical miles from the baseline. Art 33 States may exercise the control necessary to Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea Limited to these laws (not environmental law of fishing activities punish infringement of the above laws and regulations committed within its territory or territorial sea. For the rest = legal regime of the high seas unless an EEZ has been established in that area 4. EEZ Located beyond the territorial sea and extends up to a maximum of 200 nautical miles from the baseline 90% of the fisheries are conducted less than 200 miles from the coast Exam review 26  Through the EEZ, which is a sort of “restricted area” for the exploitation of marine resources, UNCLOS recognizes the interest of coastal States in the resources of the seas bordering their territory beyond the 12-mile limit. UNCLOS has enshrined the economic rights of coastal States over all resources in the EEZ, while confirming the traditional freedoms of the high seas in this area. 5. Continental shelf The submarine extension of the land territory, the land mass of the coastal state (in legal terms to 200 nm) If the natural shelf goes further, a coastal State may extend its “continental shelf” beyond the 200, but not more than 350 nautical miles, depending on the thickness of the sedimentary rocks. * limited to seabed not the water column** Art 77: sovereign rights for the purpose of exploring it and exploiting its natural resources Need consent from coastal state to be able to exploit resources 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. 6. High seas: where no state dominates all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State Exam review 27  art 89: no state may validly purport to subject any part of the High Seas to its sovereignty art 90: every state, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas Freedom of the high seas (Art. 87) The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises […]: freedom of navigation; freedom of overflight; freedom to lay submarine cables and pipelines, subject to Part VI; freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; freedom of fishing, subject to the conditions laid down in section 2; freedom of scientific research, subject to Parts VI and XIII. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. “ The freedom of the high seas, however, is not absolute each state only controls its own ship (principle of the flag law) certain legal obligations, which regulation their activities under freedom take measures to conserve the living resources right to fish has certain limits some activities are prohibited nuclear tests, illicit trafficking in narcotic drugs, transport of slaves by sea, piracy, unauthorized broadcasting 7. The “area” of international seabed and floor The seabed and the ocean floor and subsoil thereof, beyond the limits of national jurisdiction Exam review 28  Common heritage of mankind Main principles Assignment of the Area for exclusively peaceful purposes. Exploration and exploitation for the benefit of all humankind Principle of non-appropriation: no State can claim sovereign rights over any part of the Area and its resources. Equitable distribution of benefits derived from exploitation, taking into account the needs of developing countries. Resources are dedicated to the common interest of humanity regardless the geographical location of States. Protection and conservation of natural resources. Principles of International Enivronmental Law 1972 Stockholm UN conference on the human environment: kick off momentum 1992 Rio UN conference on environment and development: major step Both declarations are ‘soft law’ instruments: not legally binding on states, but strong political authority Principle of prevention: obligation of states to prevent known or foreseeable harm outside their territory Uses principle of good neighborliness: not damage other states Principle 2 of the rio declaration: the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction Soft law that states must take measures on activities within their jurisdiction and control to respect the environment of other states or of areas beyond national control UNCLOS: must notify other states if likely to be affected by such damage (as well as competent internation organizations) Precautionary approach: take environmental action in the face of scientific uncertainty Exam review 29  Designed to provide the basis for early international environmental action to address serious environmental threats in cases where there us ongoing scientific uncertainty with regard to the causes of these threats Example: the southern bluefin tuna cases Have no full scientific proof that fishing is harming the stock of southern bluefin tuna however measures should be taken as a matter of urgency Environmental impact assessment: identifies and analyses the environmental impact of a certain project Proposes possible measures to mitigate adverse environmental effects and/pr describe alternatives that are less harmful to the environment Aim: integration of environmental considerations in the decision-making process concerning the authorization of a project or programs and policies London Dumping Convention (1972) Contracting parties shall prohibit the dumping of any wastes Some wastes are prohibited, some require a special permit, some require a general permit However any permit shall be issued only after prior studies of the characteristics of the dumping site Protocol for the protection of the mediterranean sea against pollution from Land-based sources and activities (1980) Convention on EIM in a transboundary context Polluter pays principle: an economic analysis stating that much environmental harm is caused by producers who “externalize” the costs of their activities Rio declaration: internalization of enviro costs Encourage producers of pollution to make cleaner products or to use cleaner technologies 1996 protocol to the Convention on the prevention of marine pollution by dumping of wastes and other matter Hold polluter financially liable Principle of common but differentiated responsibilities: all states have shared obligation to address environmental destruction but denies equal responsibility of all states with regard to environmental protection Exam review 30  1972 London convention: according to their scientific, technical and economy capabilities Barcelona convention: priority given to the special needs of developing countries Principle 7 Rio declaration: developed countries acknowledge the responsibility they bear Climate change convention + Kyoto protocol: highly asymmetric environment obligations on the parties regarding the reduction of greenhouse emissions Principle of participation: Formal integration of the views of the public in decisions about environmental protection The environmental democracy Government decisions (with environmental impact) should be made only after it has formally and publicly announced and the public has been given the opportunity to influence the decision through written comments or hearings Rio declaration: access to information, public participation in decision- making and access to justice in environmental matters Other principles: The application of best available techniques (BAT) and best environmental practice (BEP) The duty not to transfer damage or hazards or transform one type of pollution into another UNCLOS The integration principle Shall constitute an integral part of the development process and cannot be considered in isolation from it Sustainable development is development that meets the needs of the present without compromising that ability of future generations to meet their own needs Exam review 31  Protection of the Marine Environment (Univeral Level) History: First international treaty against oil pollution at sea was in 1954 International convention for the prevention of pollution of the sea by oil Superseded in 1973 by International convention for the prevention of pollution from ships Geneva conventions (1958) Address pollution and other treats to the marine environment only briefly and in general terms Most important conventions (international treaties): preventing pollution and regulating compensation for oil pollution damages 1969 International Convention relating to the Intervention on the High Seas in Cases of Oil Pollution Casualties + 1973 protocol International Convention on Civil Liability for Oil Pollution Damage + 1992 Protocol 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage + 1992 Protocol 1972 Convention on the Prevention of Marine Pollution by Dumping Wastes and other matters + 1996 Protocol UNEP: united nations environment program UNCLOS puts as end to the fragmentation in UNEP and provides a unifying legal framework Agenda 21 = major role (however not binding) General approaches by UNCLOS Pollution: provides a broad definition “introduction by man, directly or indirectly, of substances or energy into the marine environment” Exam review 32  States’ rights and obligations: sovereign right to exploit their natural resources BUT pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment States’ obligations Take measures to prevent, reduce and control pollution Ensure activities do not cause damage by pollution to other states To monitor the risks and effects of pollution of the marine environment in general To assess potential effects of planned activities (reasonable grounds for believing activity may cause pollution) To publish the results Duty to cooperate Notification of imminent risk of damage to other states Contingency plans Scientific research, exchange of information (with neighbouring states too) Sources of Pollution Land-based From seabed activities Activities in the Area Dumping From Vessels From or through the atmposhere Rules specific to different sources of pollution Pollution from ships Flag States Duty to prescribe and enforce laws and regulations for the prevention, reduction, and control of pollution of the marine environment from vessels flying their flag Exam review 33  Doesn’t matter where the infraction occurs, flag state have the obligation to take immediate action Coastal States Prevention, reduction and control of marine pollution from foreign vessels in TERRITORIAL SEA and in EEZ (ecologically sensitive marine areas !!) For both innocent and non innocent passage. Passage is considered not innocent if the vessel has taken part in pollution. Depending on severity of pollution, the coastal state is allowed to ban passage or only inspect the ship Port States Free to establish ‘particular requirements’ as a condition for the entry of foreign vessels into their ports and internal waters. The 1973 international convention for the prevention of pollution from ships + protocol of 1978 (MARPOL 73/78) Fairly successful legal regime to prevent vessel-source pollution (specifically oil) International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), 1990 Framework to promote international cooperation and mutual assistance for the preparation and control of serious oil pollution events The owener os a ship at time of incident is liable for any pollution damage caused by oil Through this convention the victim of the damage will not have to prove a fault, only prove a causal link between the ship and the damage 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND 1992) 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND 1992). It is a second level compensation provided by an international fund if the owner of the ship cannot pay or is released from culpability. The fund is financed by contributions from entities that get certain types of oil by the sea. Exam review 34  International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS) 1996 +2010 Protocol Not yet in force System of liability and compensation for pollution-related damage by a wide range of substances, including gases and chemicals transported by sea Dumping Any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea as well as any deliberate disposal of vessels, aircraft, platforms or other man-made structures at sea States obliged to prescribe anti-dumping regulations Flag states States in whose territory the waste is loaded Coastal states Treaties with articles about dumping UNCLOS London Convention 1972 Three level system 1996 protocol (since 2006 supersedes the London convention and it’s three level system depending on the nature of substances) Dumping is forbidden unless permitted New environmental law principles and methods such as Precautionary approach Polluter pays principle Reporting (art 9) and compliance procedures (art 11) Land-based and atmospheric pollution Difficulties: The sources of land-based and atmospheric pollution are highly diffused Exam review 35  Result of activities performed within the sovereign territories of states Treaties with articles about land-based and atmospheric pollution UNCLOS Obliges states to adopt laws and regulations to combat pollution from land-based sources 1995 “Intergovernmental conference on the protection of the marine environment from land-based activities” Set of recommendations (not mandatory) Only soft law Seabed activities Treaties with articles about seabed activities UNCLOS Subject to national jurisdiction Coastal states shall adopt laws and regulations The area (high seas) ISA has duty to establish international rules, regulations and procedures National and common jurisdiction Precautionary approach Obligation to apply “best environmental practices” Direct obligation of environmental impact assessment Protection of the marine environment (regional level) Typical features of modern environmental protection treaties: Inclusion of precautionary and polluter pays principles Abandonment of the previous structure operating with black/grey lists for prohibited substances Shift from preventing marine pollution to the protection of the area (conservation of ecosystems and biodiversity). Exam review 36  Adoption of reporting and compliance procedures. OSPAR convention: convention for the protection of the marine environment of the North-East Atlantic Implementation of the ecosystem approach, strategy for managing natural resources that takes into account the complex interdependencies within an ecosystem, to address five main threats: (1) eutrophication (2) Hazard substances (3) Biodiversity degradation (4) Offshore industry (5) Radioactive substances Hard and soft law Example of modern environmental protection treaty Fairly successful 1992 convention on the protection of marine environment of the Baltic sea area First to address all sources of pollution in a particular area Helsinki convention Ecosystem approach Application of BAT and BEP Precautionary and polluter pays principles Recommendations therefore not legally binding (strong political role) Missing compliance procedure (but regular reports) The Barcelona Convention system Based on a central treaty articulated with 7 protocols, most of them related to pollution. A Regional framework for tackling major issues. Convention for the protection of the Marine environment and the coastal region of the mediterranean Exam review 37  Framework agreement so all rules in the convention also apply to the protocols, but the protocols develop contents specific to a topic. However, if a state is part of the Barcelona convention, it does not mean it is part of the protocol, it must accept each one separately. States can ratify a protocol and not the whole treaty 4 forms of pollution require special attention 1. From dumping by ships and aircrafts 2. By ships 3. From exploitation + exploration of seabed and subsoil 4. Land-based ources Obligations: 1. To prevent, combat and to the fullest extent eliminate pollution of the Med Sea Area 2. To protect and enhance the marine environment in that area so as to contribute towards a sustainable development Objective is to assess and control, and ensure sustanaible managament of resources. Amended on June 10th, 1995 (after Rio Declaration) and entered into force on 9th July 2004. Main changes: Extension of the geographical scope to the coast Promotion of impact studies Application of the precautionary and polluter pays principles Protection and preservation of biological diversity Fight against the pollution derived from transboundary hazardous-wastes movements Access to information and public participation Cooperation is a key concept Seven protocols Exam review 38  Compliance Compliance mechanism set by article 27 states implementation of the protocol is assessed during meetings of the contracting parties. States have to send periodical reports about how they implement protocols; the reports are evaluated by an assembly of contracting parties along with the effectiveness of measures taken. The assembly can then give recommendations. This relies on cooperation and not naming and shaming, to ensure states have the will to implement protocols in the best way. Assessment of convention during meetings (every two years) Based on periodical reports Bureau and national focal point: when there is no meetings Secretariat monitors implementation and is the link with NGOs and the public 6 regional activity centers Monitoring of pollution Integrated monitoring and assessment program (IMAP) Builds on the monitoring and assessment relation provisions of the Barcelona convention and its protocol (ecosystem-based approach) Ecological objectives and common indicators Other EU directives Exam review 39  The marine strategy framework directive Assessment of the state of their seas (GES) and establish a series of targets to bridge the gap The water framework directive Establishing a framework for community action in the field of water policy The mechanism relies on a river basin planning Ensuring conservation while exploiting marine (living) resources Marine living resources do not respect geographical boundaries imposed by humans. There is a close link between their exploitation and their conservation. UNCLOS addresses this issue through overfishing, creating obligations. 5 main international comprehensive framework for fisheries policy and management: 1. UNCLOS 1982 2. FAO compliance agreement 1993 3. UN fish stock agreement 1995 4. FAO code of conduct for responsible fisheries 1995 5. Agreement on port state measures 2009 30 treaties deal with the management of different species (tunas, salmons, seals, whales...) or species in certain oceanic regions. They establish international commissions in which states decide measures for protection of species and are in charge of monitoring international regulations, Integrated Coastal Management Frameworks (IFCs) Some IFCs: general competence, resources in a given area Some IFCs: manage given species in a given area (an entire ocean area) General Provisions in UNCLOS General duty to conserve marine living resources in: Territorial sea EEZ Exam review 40  High seas No references to continental shelf or the Area. Territorial state Fisheries jurisdiction is based on sovereignty of coastal state so state can establish fisheries zones and no take zones. Fishing activities without approval of the coastal State are “considered to be prejudicial to the peace, good order or security of the coastal State” - foreign vessel loses right to innocent passage, also lost through pollution or research (Art 19). Art 21 states innocent passage can also be regulated for conservation of living resources and preservation of the environment. EEZ Coastal States have “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 sea-bed and of the sea-bed and its subsoil.” (Art. 56 of UNCLOS) Sovereign rights = coastal State’s rights are exclusive All rights for the exploration and exploitation of the natural resources, including jurisdiction in prevention and punishment of violations of the law Freedoms of other States are subject to restrictions to accommodate Coastal State’s economic interest so foreign vessels must not engage in any fishing without authorisation. Conservation of living resources (Art 61) CS determines allowable catch in EEZ Must take into account best available science Design measures to maintain or restore population Information must be exchanged Exam review 41  Nationals and third States fishing in the EEZ of the CS have to comply with the laws and regulations of the CS (Art. 62). However, enforcement is difficult. Continental Shelf Resources in the zone (Art. 77): Mineral and non-living resources of the seabed and subsoil as well as living organisms belongin to sdefentary species The CS has rights for exploring and exploiting natural resources. If it decides not to, nobody else can. However, in UNCLOS there is no provision related to conservation of biodiversity of immobile species. The Area Marine living resources are not taken into account in the regime of the Area. Resources are limited to mineral. Principle that the Area and its resources are the common heritage of mankind does not include marine living resources. However, International Seabed Authority is in charge of adopting rules about protection and conservation of natural resources of the Area. (Art 145 UNCLOS) including flora and fauna. High Seas Same duty to conserve marine living resources applies on the High Seas. Obligation on States to take measures for their nationals to conserve living resources of the high seas Encompasses obligation of cooperation between states to ensure good level of conservation. 1952 General Fisheries Commission for the Mediterranean (GFCM): conservation and the sustainable use, at the biological, social, economic and environmental level, Article 119 UNCLOS addresses conservation of the living resources on the High Seas: States must determine catch and establish conservation measures for ships which fly their flags, must take measures on scientific information available. Exam review 42  FAO Compliance Agreement (1993) Adopted to promote compliance with international conservation and management measures by fishing vessels on the high seas. Aims to enhance the role of flag State and ensure that a State strengthens its control over its vessels so as to ensure compliance with international laws. Each party shall maintain a record of their fishing vessels on the high seas. FAO code of conduct for responsible fisheries (1995) Non binding code that applies to all fisheries within and beyond national jurisdiction. Recommends States to: Minimise waste, discards, catch by lost or abandoned gear Control the catch of non-target species (fish and other) Minimise negative impacts on associated species (specially endangered) FAO will monitor application and implementation of the code. Fish Stock Agreement (1995) Agreement for Implementation of the Provisions of the UNCLOS relating to the Conservation and Management of Straddling Fish Stocks (stocks of fish which migrate between, or occur in both, the economic exclusive zone (EEZ) of one or more States and the high seas) and Highly Migratory Fish Stock. Entered into force in 2001 with 82 states party Decisive step in establishing a comprehensive legal regime for the sustainable conservation and exploitation of fish stocks The Agreement promotes a modern approach to conservation and management as it is the 1st treaty to transform the principle of cooperation into a genuine obligation Main principles manage sustinable long-term storage of stocks ecosystem approach for stocks conservation precautionary approach The Agreement on Port State Measures (2009) Exam review 43  First binding international agreement to specifically target IUU (illegal, unreported and unregulated) fishing. Entered into force in 2016 with 66 states party It applies to fishing vessels seeking entry into a port of a State different to their flag State. Aims to harmonise port controls in order to prevent illegally caught fish from entering international markets through ports. It requires port states to strengthen inspections at ports and on vessels. Conservation of marine resources Conservation through specific means that differ from regulating fisheries. Mainly it refers to protection, rehabilitation and restoration of degraded ecosystems and habitats. Two kinds of measures: 1. MPAs 2. Others No official legal definition of what living marine resources are. However there are definitions relating to Biological Resources, Biological Biodiversity, Ecosystem and Habitat (Convention on biological diversity (1992)). There are also definitions on Biological Diversity and Conservation Status of a Species (Barcelona Convention-Mediterranean). Designation of specially protected areas Tools to ensure conservation and reversing global degradation of ocean life. A Protected area is a clearly defined geographical space that is recognised and dedicated to achieving the long term conservation of nature; managed though legal and other effective means. Designated to protect marine ecosystem, processes, habitats and spaces which can contribute to restoration and Exam review 44  replenishment of resources for social, economic and cultural enrichment (WWF) MPA is an umbrella term, covering different kinds of protected zones. UN target - 10% of ocean protected by MPAs by 2020 Wide range of maritime areas established for different protective purposes, varying from few nautical miles to whole oceans. Standards of protection in MPAs may be inadequate No-take zones Most effective protected areas, strongest level of protection and is very rare. All extractive activities or activities that could impact conservation of species are banned. Very efficient for restoring complexity of ecosystems “through a chain of ecological effects (trophic cascades) once the abundance of large animals recovers sufficiently”. Levels of protection Different limitations on: Development Fishing practices Seasons Catch limits Moorings Bans on removing or disrupting marine life. Scales of protection: Permanence of protection (permanent, conditional, temporary). Constancy of protection (year-round, seasonal, rotating). Ecological scale of protection (ecosystem, focal resource) Specially protected areas: International law (global level) Exam review 45  Convention on Biological Diversity Aims to conserve biological diversity, sustainable use of its components and fair and equitable sharing of benefits of utilisation of genetic resources. Provides the biological diversity definition and relies on ecosystem approach In-situ conservation approach, an approach to preserving species and ecosystems directly within their natural habitats. Scope is extended to areas under national jurisdiction but also beyond. Again, obligation of cooperation. Marine and coastal biological diversity is considered as a priority, establishing a programme on protected areas. Ramsar Convention (1971) Regards wetlands of international importance, encompassing coastal zones. Wetlands are precisely delimited UNESCO Includes both natural heritage, areas which constitute the habitat of threatened species and natural sites. Created biosphere reserves, learning sites for sustainable development. nominataed by governments must meet minimal set of criteria: conserve and foster sustainable development Exam review 46  Areas can also be protected according to threats, i.e. MARPOL convention protecting against pollution, or species i.e. Whaling convention. Specially protected areas: Regional level 1995 Protocol on specially protected areas and biological diversity (Barcelona Convention) - objective is to safeguard ecosystems, habitats, spaces in order to ensure long term viability and to maintain biological diversity. 35 sites are now specially protected areas i.e. Pelagos Sanctuary OSPAR commission Network of MPAs established with different aim, 7 MPAs are in areas BBNJ Antarctic Treaty Convention on the conservation of Antarctic marine living resources designates specially protected areas for research purposes. Bern Convention 1979 Focuses on protection of habitats, not only the species EU law Habitats directive Adopted in 1992 Ensures the conservation of rare, threatened or endemic animal and plant species Includes the creation of the Natura 2000 network, European ecological network of special areas of conservation Marine aspect of Natura 2000 is incomplete in many countries and mostly includes inshore waters France has created additional categories of MPAs through domestic processes through an office of biodiversity. Other conservative measures Ex-situ conservation Ex-situ: The conservation of components of biological diversity outside their natural habitats (Art. 2) The 1992 Convention on Biological Diversity gives priority to in-situ conservation, and proposes ex-situ measures to complement it. Exam review 47  Each contracting party shall (Art 9) Adopt measures of ex-situ conservation, preferably in the country of origin of such components Establish and maintain facilities for ex-situ conservation Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats Regulate and manage the collection of biological resources from natural habitats to avoid the possible degradation of natural populations Sustainable use of biodiversity The 1992 Convention on Biological Diversity gives some considerations about the sustainable use and conservation of components of biological diversity. CBD: Programme on Marine and Coastal Biodiversity A programme on marine and coastal biodiversity has bee implemented with own goals and operational objectives. 1. Marine and coastal protected areas 2. Mariculture 3. Invasive Alien Species The 1975 Convention on International Trade in Endangered Species (CITES) Aims at protecting species that are clearly threatened by international trade. Calls for international cooperation to ensure that international trade in specimens of wild animals and plants does not threaten their survival. They regulate trade in wild animals and plants to safeguard certain species from over-exploitation. Creates mechanism for the control of trade with 183 contracting parties. Relies on three levels of protection: 1. Appendix I - species threatened with extinction. Need import and export permit. i.e. whales 2. Appendix II - species not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilisation incompatible with their survival. Export permit is needed i.e. corals Exam review 48  3. Appendix III - species protected in at least one country, which has asked other CITES Parties for assistance in controlling the trade. Export requires grant and presentation of an export permit, import requires certificate of origin and an export permit. The IUCN Red List of Endangered Species Assessment (1948) Comprehensive, scientific, and rigorous examination of conservation status of species. Provides information on the species’ distribution, ecology and habitat, threats, and conservation actions. Provides a scientific knowledge and tools to guide conservation action. Aim is to provide deciding authorities with data in order to enlighten decision making. Exam review 49