Transcript MANAGEMENT OF THE UK MARINE AREA: THE …

MANAGEMENT OF THE UK
MARINE AREA: THE
INTERNATIONAL LAW CONTEXT
Robin Churchill,
University of Dundee
Introduction
• UK authorities do not have a complete discretion
as to how they manage UK marine area (e.g.
adoption of marine plans, licensing of marine
activities and establishment of marine
conservation zones)
• Aim of paper to look at constraints on such
discretion arising from international (and EU) law
• Will focus on:
rights of other States in UK marine area and
competence of UK to regulate their exercise
(primarily governed by UN Convention on the
Law of the Sea (UNCLOS))
certain international environmental obligations
UK Marine Area
Bill divides into four zones:
Internal waters. Waters landward of the
baseline
Territorial Sea (TS). Out to 12 nm from
baseline
Exclusive Economic Zone (EEZ):
created by Bill (cl. 39) – at last! Beyond
TS out to 200 nm
Continental shelf. Seabed beyond TS
out to 200 nm, and in some cases
further
Other States’ rights in UK’s
territorial sea
Innocent passage (navigation that is not
prejudicial to the peace, good order or security
of coastal State) (UNCLOS Art.17)
Transit passage (freedom of navigation through
international straits) (UNCLOS Art. 38) (Straits of
Dover, North Channel and Fair Isle Gap)
Fishing. Some EU Member States have right to
fish in 6-12 nm zone around parts of UK under
the Common Fisheries Policy
UK’s legislative jurisdiction over
vessels in innocent passage
• Unrestricted competence to regulate except for
construction, design, equipment and manning
(CDEM) standards, provided does not hamper
innocent passage and is non-discriminatory
(UNCLOS, Arts. 21 and 24). May include
discharge standards, use of sea lanes and traffic
separation schemes (Art 22)
• May lay down CDEM standards only if giving
effect to international rules (Art. 21(2))
UK’s legislative jurisdiction over
vessels in transit passage
Restricted to:
• designating sea lanes and traffic separation
schemes conforming to international regulations.
Must be referred to International Maritime
Organisation (IMO) “with a view to their
adoption” (Art. 41)
• giving effect to international regulations re
discharges of oil and other noxious substances.
Such laws must not hamper and must be nondiscriminatory (Art. 42)
UK’s jurisdiction over EU vessels
fishing in 6-12 nm zone
• May adopt non-discriminatory measures for
conservation of fishery resources or to minimise
effects of fishing on conservation of marine
ecosystems provided no equivalent EU
measures. Must consult Commission and other
Member States affected (Reg. 2371/2002, Art. 9)
• May adopt short-term emergency measures if
serious threat to conservation of fishery
resources or marine ecosystem. Must notify
Commission and other Member States affected
(Reg. 2371/2002, Art. 8)
Consequence for Establishment of
MCZs in Territorial Sea
• Difficult to establish MCZs in international
straits
• Elsewhere possible to regulate other
States’ rights sufficiently to allow for
establishment of effective MCZs
Other States’ rights in the EEZ
•
•
•
•
Freedom of navigation
Freedom to lay cables and pipelines
Freedom of overflight
Right to fish only for vessels from EU
Member States, Norway and Faeroe
Islands
[possibility of scientific research]
UK’s Jurisdiction in the EEZ
Re navigation by other States. Mainly concerning
pollution:
 Regulate dumping of waste
 Apply laws that conform to international
regulations (Art.211(5))
 Where latter power inadequate for areas with
special conditions, laws to implement
international rules that IMO has made applicable
to special areas, after notification to IMO and
giving notice (Art. 211(6)(a))
 Plus additional national discharge or
navigational standards, but not CDEM, provided
IMO agrees (Art. 211(6)(c)
UK’s jurisdiction in the EEZ (cont.)
• Fishing
short-term emergency measures, as in
territorial sea
otherwise EU has exclusive competence
to regulate fishing in EEZ
UK’s jurisdiction in the EEZ (cont)
• Laying of cables and pipelines (Art. 79)
Course of pipeline subject to UK consent
• Overflight
No jurisdiction (except possibly to restrict
overflight of installations)
Scientific research (UNCLOS, Art. 246)
Must normally permit pure research
Has complete discretion to permit/refuse
applied research and attach conditions to any
consent
Consequence for Establishment of
MCZs in EEZ
Possible to exclude pipelines and scientific
research from MCZ
UK has no competence to exclude foreign
fishing vessels from MCZ, but could be done by
EU (cf. existing legislation on cold-water coral
reefs)
UK has very little competence to regulate foreign
shipping in MCZ, but could be done by IMO
through e.g. areas to be avoided, deep-water
routes and traffic separation schemes
Some Treaties imposing
Environmental Obligations
• Ospar Convention on Protection of Marine
Environment of NE Atlantic, 1992
• Ramsar Convention on Wetlands of
International Importance, 1971
• Agreement on Conservation of Small
Cetaceans of Baltic and North Seas, 1992
• African-Eurasian Waterbird
Agreement,1995
[EU Wild Birds and Habitats Directives]
Ospar Convention
• Regulates pollution from dumping of
waste, offshore installations, and landbased sources
• Aims to establish an ecologically coherent
network of well-managed marine protected
areas in the north-east Atlantic by 2010.
106 sites so far proposed, over 40 from
UK (all but one SACs)
Ramsar Convention on Wetlands of
International Importance
Obligations on parties:
Designate wetlands in its territory
for inclusion in List of Wetlands of
International Importance. UK has
designated 166 sites
“formulate and implement their
planning so as to promote the
conservation” of wetlands on the
List and “as far as possible their
wise use” (Art. 3)
ASCOBANS
Parties are to “work towards” i.a.:
Reducing by-catches of small cetaceans
in fishing nets
Reducing disturbance to habitat from e.g.
noise, whale watching
African-Eurasian Waterbird
Agreement,1995
Parties “shall” i.a.:
• “encourage” protection, management,
rehabilitation and restoration of sites and
habitats for migratory waterbirds
• Investigate problems posed by human
activities and “endeavour to implement
remedial measures, including habitat
rehabilitation and restoration, and
compensatory measures for loss
of habitat”