Characteristics of the marine environment

Transcription

1 Characteristics of the marine environment Main threats: overfishing, habitat loss, pollution, alien species, climate change The character of the marine environment as an open access resource The resulting tragedy of the commons The traditional freedom of the seas Conflicting interests: Coastal states vs. flag states The exclusive jurisdiction of the flag state UNCLOS art. 92 (Fur Seal case) Differences from terrestrial environment Land-use, hunting, pollution from land-based sources, alien species Ole Kr. Fauchald

2 Normative issues Can UNCLOS be seen as an umbrella convention? Relationship to CBD For issues of jurisdiction: yes For fisheries issues: yes For issues concerning exploitation of other resources: yes For pollution and alien species:? For marine protected areas: No For environmental principles? No Importance of regional regimes / unilateralism IMO as a standard-setting body The importance of port state authority Moving towards an ecosystem based approach? Ole Kr. Fauchald

3 UNCLOS and environment Territorial sea The issue of innocent passage (art. 21) Exclusive economic zone Coastal state: limited by IMO standards (art and 6) Obligations related to management of resources (art. 61-2) Continental shelf Coastal state: limited by the right to lay cables and pipelines (art. 79) The high seas Obligation to take conservation measures (art ) Flag state vs. coastal state The special issue of migratory species (art. 64-7) the 1995 Agreement Pollution and responsibilities of flag state (art ) Ole Kr. Fauchald

4 Pollution Distinctions Vessel based UNCLOS art. 211, IMO (MARPOL), regional Land based (including through water and air) UNCLOS art , UNEP (chemical), regional, overlap Result of exploration / exploitation UNCLOS, regional Dumping UNCLOS, regional Prevention Prevention, the issue of jurisdiction and international standards Marine protected areas / routing systems Legislation and enforcement The preference of flag state jurisdiction is it weakening? Reparation Emergency cooperation Issue of responsibility and liability establishment of funds, a dilemma! Responsibility for private parties Ole Kr. Fauchald

5 Fisheries The Fur Seals case and freedom of fisheries Modified by the 1974 Fisheries Case: Coastal states rights vs. traditional rights and cooperation Importance of FAO treaties and soft law UNCLOS In EEZ and on continental shelf: Coastal state «maximum sustainable yield» The special case of Svalbard Coastal state measures and prompt release (art. 73) On high seas: Arts , the 1995 Agreement, RFMOs and bilateral arrangements Flag states / port states the 1993 Compliance Agreement Ole Kr. Fauchald

6 Whaling Documentary from current Norwegian whaling (19:45) Ole Kr. Fauchald

7 Marine protected areas CBD and marine areas art. 22 The 10 % Aichi Biodiversity Target (see target no. 11) regarding marine protected areas very far from being achieved! Major challenges Where has a country the necessary jurisdiction to establish a MPA? Which are the threats to be addressed? Which rules of international law would constitute a problem to the establishment of MPAs? Which procedure must or should be followed? The problem of low level of restrictions Ole Kr. Fauchald

8 Current issues Moving from a reparative approach to prevention and precaution Failure of the current system The problem of generating sufficient knowledge Art. 6 of the 1995 Agreement, but leaving the issue to be implemented through regional agreements The challenge of a fragmented institutional structure Which are the institutions of UNCLOS? UNEP Regional Seas as a success story? The divide between fisheries institutions and environmental institutions The divide between IMO, UNCLOS and environmental institutions Continuing a facilitative approach? Do we need principles? Ole Kr. Fauchald

9 MOX plant case Example of land based pollution Multiple rules of relevance ITLOS: Issue of provisional measures Objections to jurisdiction rejected Not sufficiently urgent! Assurances by the UK Duty to cooperate The fate of the case before the ECJ Brought by the Commission against Ireland! The fate of the case before the Arbitration tribunal Withdrawn by Ireland! Ole Kr. Fauchald

10 Southern Bluefin Tuna Case Australia and New Zealand vs. Japan experimental fishing for SBT The UNCLOS arbitral tribunal concluded that it had no jurisdiction (4/8-00) Law vs. facts Relationship to the 1993 Convention on the Conservation of the Southern Bluefin Tuna Issued provisional measure! Specific limitation on allowable experimental fishing. Ole Kr. Fauchald