Transcript Dr. Moira L. McConnell Professor of Law Director, Marine

The Barcelona Convention System: An
Analysis of its Law and Policy Aspects
Presentation
to
“The Legal Aspects of the Barcelona Convention and it
Protocols” – a Mediterranean seminar on the practical
elements of implementation
MEPIELAN & MIO-ECSDE Seminar
October 26-28, 2006
by
Moira L. McConnell
Professor of Law
Director, Marine & Environmental Law Institute
Dalhousie Law School
Canada
http://www.dal.ca/law/MELAW
The Barcelona Convention system: the
international legal context
Surveying the legal “landscape” of ocean and ecosystem
governance
• treaties and other arrangements establish international legal
obligations on States
• international legal obligations (and relations) exist at various, often
overlapping and highly interdependent “levels”
Global↔ Regional ↔ Domestic/National ( Multilateral)
Global↔ Domestic/National (Multilateral)
Regional ↔ Domestic/National ( Multilateral)
Domestic/National ↔ Domestic/National (Bilateral
Treaties)
• implementation of international obligations at the State or national
level remains the core concern of international law for most issues
2
The Barcelona Convention system: the
international legal context
Global Level
• 1982 United Nations Law of the Sea Convention (UNCLOS) - the
“constitution for the oceans”
• adopted in 1982 but not in force until 1994 – as of 20 Sept 2006 150 States are party ( bound) (*many, but not all, States in the
Mediterranean are party to UNCLOS)
• a comprehensive “umbrella” Convention ( 320 Articles plus
annexures and two subsequent implementing Agreements)
• aimed at addressing ocean space use and ensuring the fair
allocation of resources and prevention of conflict
• combines codification and clarification of the existing law of the sea
with obligations and concepts to deal with emerging equity and
ecosystem protection concerns
• based on the idea that “the problems of ocean space are closely
interrelated”
3
UNCLOS - PART XII PROTECTION AND
PRESERVATION OF THE MARINE ENVIRONMENT
A number of key provisions that now inform subsequent ocean &
ecosystem related agreements
• Article 192 - General obligation
States have the obligation to protect and preserve the marine
environment.
• Article 1 - Use of terms and scope
(4) "pollution of the marine environment" means 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 sea water and reduction of amenities;
4
• Article 194 Measures to prevent, reduce and control
pollution of the marine environment
1. States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and
control pollution of the marine environment from any source, using for this
purpose the best practicable means at their disposal and in accordance with
their capabilities, and they shall endeavour to harmonize their policies in this
connection.
2. 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.
3. The measures taken pursuant to this Part shall deal with all sources
of pollution of the marine environment. These measures shall include,
inter alia, those designed to minimize to the fullest possible…
5
•
“All Sources” identified in Art 194 include:
(a) the release of toxic, harmful or noxious substances, especially
those which are persistent, from land-based sources, from or
through the atmosphere or by dumping;
(b) pollution from vessels,
(c) pollution from installations and devices used in exploration or
exploitation of the natural resources of the seabed and subsoil, in
particular measures for preventing accidents and dealing with
emergencies,
(d) pollution from other installations and devices operating in the
marine environment, in particular measures for preventing accidents
and dealing with emergencies,
5. The measures taken in accordance with this Part shall include 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.
6
UNCLOS- Part XII - other sources of harm
Article 196 Use of technologies or introduction of
alien or new species
1. States shall take all measures necessary to prevent,
reduce and control pollution of the marine
environment resulting from the use of technologies
under their jurisdiction or control, or the intentional or
accidental introduction of species, alien or new, to a
particular part of the marine environment, which may
cause significant and harmful changes thereto.
7
UNCLOS - other key provisions
The obligation or duty “to cooperate”
Part XII - SECTION 2. GLOBAL AND REGIONAL
COOPERATION
Article 197 - Cooperation on a global or regional
basis
States shall cooperate on a global basis and, as
appropriate, on a regional basis, directly or through
competent international organizations, in formulating and
elaborating international rules, standards and
recommended practices and procedures consistent with
this Convention, for the protection and preservation of
the marine environment, taking into account
characteristic regional features.
8
Obligations regarding liability
PART XII SECTION 9. RESPONSIBILITY AND LIABILITY
• Article 235 - Responsibility and liability
1. States are responsible for the fulfilment of their international
obligations concerning the protection and preservation of the
marine environment. They shall be liable in accordance with
international law.
3. With the objective of assuring prompt and adequate
compensation in respect of all damage caused by pollution of
the marine environment, States shall cooperate in the
implementation of existing international law and the further
development of international law relating to responsibility and
liability for the assessment of and compensation for damage
and the settlement of related disputes, as well as, where
appropriate, development of criteria and procedures for payment
of adequate compensation, such as compulsory insurance or
compensation funds.
9
Other relevant international
instruments – arising from 1992
UNCED
• The 1992 Convention on Biological Diversity (CBD)
under the auspices of the United Nations
Environment Programme (UNEP) was adopted in
1992 - in force as of 1993, with 189 States party
• biological diversity is (Art. 2): "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."
10
• objectives of the CBD are:
– conservation of biological diversity;
– sustainable use of its components, and
– fair and equitable sharing of the benefits arising out of
the utilization of genetic resources
• covers all the world's “ecosystems” - "the dynamic
complex of plant, animal and micro-organism communities
and their non-living environment interacting as a functional
unit."
• 1995 the parties to the CBD adopted the “The Jakarta
Mandate on Marine and Coastal Biodiversity” - a
programme of action for implementing the CBD with
respect to marine and coastal biodiversity
11
CBD, Article 8 – “In-situ Conservation” provides inter alia that
Each Contracting Party shall, as far as possible and as appropriate:
(c) Regulate or manage biological resources important for the conservation
of biological diversity whether within or outside protected areas, with a
view to ensuring their conservation and sustainable use;
(d) Promote the protection of ecosystems, natural habitats and the
maintenance of viable populations of species in natural surroundings;
(f) Rehabilitate and restore degraded ecosystems and promote the
recovery of threatened species, inter alia, through the development and
implementation of plans or other management strategies;
(h) Prevent the introduction of, control or eradicate those alien species
which threaten ecosystems, habitats or species;
(k) Develop or maintain necessary legislation and/or other regulatory
provisions for the protection of threatened species and populations;
(edited text)
12
The Barcelona Convention system: the
international legal context
• UNCED 1992 also adopted:
– a framework Convention on Climate Change
– Agenda 21, a comprehensive plan of action to be
taken globally, nationally and locally
– the Rio Declaration on Environment and
Development which sets out key principles now
found in most international environmental agreements
(MEAs) and in national legislation
• Established a Commission on Sustainable
Development (CSD) to ensure effective follow-up of
UNCED, to monitor and report on implementation of the
agreements at the local, national, regional and
international levels
13
1992 Rio Declaration - 27 principles - considered to be “soft law”
Some key principles among the 27 are:
• Principle 4 - environmental protection shall constitute an integral
part of the development process and cannot be considered in
isolation from it
• Principle 10 - participation of all concerned citizens, at the
relevant level
• Principle 11 - enact effective environmental legislation.
• Principle 15 - the precautionary approach shall be widely applied
by States according to their capabilities
• Principle 16 - the polluter should, in principle, bear the cost of
pollution, with due regard to the public interest and without
distorting international trade and investment
• Principle 17 - environmental impact assessment, as a national
instrument, shall be undertaken for proposed activities that are likely
to have a significant adverse impact on the environment and are
subject to a decision of a competent national authority
14
The Barcelona Convention system: the
international legal context
• 1995 the Global Programme of Action for the
Protection of the Environment from Land–based
Activities (GPA) was established (also under the
auspices of UNEP)
• adopted an Action Plan
• the UNEP Regional Seas programmes, first established
in 1976, are seen as providing an important mechanism
for implementing the GPA ( as well as MEAs and
sustainable development objectives)
15
The Barcelona Convention system: the
international legal context
In addition there are numerous sector or issue specific “regulatory”
conventions
• Ship source pollution - IMO Conventions and activities including:
– International Convention for the Prevention of Pollution from
Ships, MARPOL 73/78
– Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, 1972, as amended 1996 (London
Convention)
– International Convention on Oil Pollution Preparedness,
Response and Co-operation, 1990 (OPRC 1990)
– International Convention on the Control of Harmful Anti-Fouling
Systems (ANTI-FOULING) (not in force)
– International Convention for the Control and Management of
Ships' Ballast Water and Sediments, 2004 (not in force)
– related regional cooperation arrangements (MOUs) for port State
control, e.g., Paris MOU; Mediterranean MOU, Black Sea MOU
…
16
The Barcelona Convention system: the
international legal context
• Fisheries conservation (numerous Codes etc) – FAO
• Other conventions addressing specific issues such as:
– Stockholm Convention on Persistent Organic Pollutants (POPs)
• as well as interaction with numerous subregional and bilateral
agreements
• The problem of fragmentation in the international system and
associated problems of potential conflict and overlapping
obligations and mandates as well as associated costs of
maintaining this system are well known.
• It has, in some cases, resulted in a loss of confidence in law and
rule of law to effectively address issues.
• Coordination and integration of these treaties, agencies and
activities to ensure effective implementation of existing
obligations is now a priority for the UN system.
17
Some key dates from a regional seas perspective
1972 - The United Nations General Assembly, meeting at the Conference on
the Human Environment (5-16 June in Stockholm, Sweden), creates UNEP
1975 - The Mediterranean Action Plan (MAP) adopted in Barcelona, Spain.
1976 - The Convention for the Protection of the Mediterranean Sea against
Pollution (Barcelona Convention), was adopted in 1976 and entered into
force in 1978. It was the Programme's first regional legal agreement,
1982 – UNCLOS adopted
1992 - UNCED – RIO Dec, CBD, CSSD
1994 - UNCLOS – in force
1995 – GPA adopted
1998 - First UNEP Inter-Regional Seas Programme Consultation bringing
together for the first time all the secretariats and coordinating units of
Regional Seas programmes .
2002 - The World Summit on Sustainable Development (WSSD- Rio +10)
points to pressures on marine and coastal ecosystems from fisheries,
biodiversity loss, and pollution. Identifies the need to strengthen regional
cooperation and coordination among regional organizations and
programmes.
2004 - The Convention for the Protection of the Marine Environment and
Coastal Region of the Mediterranean (Barcelona Convention - as renamed
and amended in 1995 - enters into force).
18
The Barcelona Convention system and the
Regional Seas programme
•
•
1975 the Mediterranean Action Plan (MAP) a Policy instrument was
adopted at an intergovernmental meeting
.
12 more plans have been adopted under the auspices of UNEP.
– Black Sea
– East Africa
– East Asian Seas
– North-East Pacific
– North-West Pacific
– Red Seas & Gulf of Aden
– ROPME Sea Area
– South Asian Seas
– South East Pacific
– South Pacific
– West & Central Africa
– Wider Caribbean
19
The Barcelona Convention system
• 1976 the Convention for the Protection of the Mediterranean Sea
Against Pollution, a legal framework, was adopted for the MAP
• Although it pre-dated the adoption of UNCLOS in 1982, from a legal
standpoint the Mediterranean Sea is often considered an “Enclosed or
Semi-enclosed Sea” as defined in Art 122 of UNCLOS
For the purposes of this Convention, "enclosed or semi-enclosed
sea“means a gulf, basin or sea surrounded by two or more States
and connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive
economic zones of two or more coastal States.
• issues of proximity, difficulties relating to the delimitation of maritime
boundaries in a relatively narrow sea and the resulting juridical nature of
much of the Mediterranean Sea requires a high degree of cooperation
to avoid overexploitation of the resources and destruction of the marine
environment
20
• UNCLOS - Article 123 -Cooperation of States bordering
enclosed or semi-enclosed seas
States bordering an enclosed or semi-enclosed sea should
cooperate with each other in the exercise of their rights and in
the performance of their duties under this Convention. To this
end they shall endeavour, directly or through an appropriate
regional organization:
(a) to coordinate the management, conservation, exploration and
exploitation of the living resources of the sea;
(b) to coordinate the implementation of their rights and duties with
respect to the protection and preservation of the marine
environment;
(c) to coordinate their scientific research policies and undertake
where appropriate joint programmes of scientific research in the
area;
(d) to invite, as appropriate, other interested States or international
organizations to cooperate with them in furtherance of the
provisions of this article.
21
The Barcelona Convention system
•
•
•
Barcelona Convention ( 1976 & as amended in 1995) and the six Protocols (in
force so far) constitute the” Barcelona Convention System”
analytically it can be seen as a “framework Convention” setting out general
principles and obligations with Protocols and technical annexes addressing
specific issues of concern
an approach that is increasingly adopted in various international fora to
– address the difficulty of achieving widespread agreement on issues in the
context of increasing diversity of socio- economic situations and interests of
States
– build consensus and agreement and commitments on general objectives
and principles with a view to moving towards agreement on obligations on
more specific or technical matters, particularly if the issue requires capacity
building to achieve implementation
• 22 Contracting Parties to the Barcelona Convention (1976) with 17 of
these now party to the 1995 amendments (which renamed the
Convention) that came into force in 2004: Albania, Algeria, Bosnia and
Herzegovina, Croatia, Cyprus, Egypt, the European Community,
France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Morocco,
Serbia and Montenegro, Slovenia, Spain, Syria, Tunisia, Turkey
22
The “Barcelona Convention" (as amended in 1995)
• States party to the Convention for the Protection of the
Marine Environment and the Coastal Region of the
Mediterranean agreed to, inter alia, the following:
.
Article 4- General Obligations
1. The Contracting Parties shall individually or jointly
take all appropriate measures in accordance with the
provisions of this Convention and those Protocols in
force to which they are party to prevent, abate,
combat and to the fullest possible extent eliminate
pollution of the Mediterranean Sea Area and to
protect and enhance the marine environment in that
Area so as to contribute towards its sustainable
development.
23
The “Barcelona Convention” ( as amended in 1995)
2. The Contracting Parties pledge themselves to take appropriate
measures to implement the Mediterranean Action Plan and, further,
to pursue the protection of the marine environment and the natural
resources of the Mediterranean Sea Area as an integral part of the
development process, meeting the needs of present and future
generations in an equitable manner. For the purpose of
implementing the objectives of sustainable development the
Contracting Parties shall take fully into account the
recommendations of the Mediterranean Commission on Sustainable
Development established within the framework of the Mediterranean
Action Plan.
...
5. The Contracting Parties shall cooperate in the formulation and
adoption of Protocols, prescribing agreed measures, procedures
and standards for the implementation of this Convention.
24
The Barcelona Convention: the Protocols
Article 29- RELATIONSHIP BETWEEN THE
CONVENTION AND PROTOCOLS
1. No one may become a Contracting Party to this
Convention unless it becomes at the same time a
Contracting Party to at least one of the protocols. No
one may become a Contracting Party to a protocol
unless it is, or becomes at the same time, a Contracting
Party to this Convention.
2. Any protocol to this Convention shall be binding only on
the Contracting Parties to the protocol in question.
25
The Barcelona Convention: the Protocols
Convention for the Protection of the Mediterranean Sea against Pollution
Adoption (Barcelona): 16 February 1976
Entry into force:
12 February 1978
Status:
Signatories: 15, Parties: 22
1995 Amendments (Convention for the Protection of the Marine Environment and
the Coastal Region of the Mediterranean)
Adoption (Barcelona) 10 June 1995
Entry into force
9 July 2004
Status:
Parties to the Amendments: 17
Protocols (6 in force)
1. The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping
from Ships and Aircraft (Dumping Protocol)
Adoption (Barcelona):
16 February 1976
Entry into force:
12 February 1978
Status:
Signatories: 15, Parties: 22
1995 Amendments (The Protocol for the Prevention of Pollution of the Mediterranean
Sea by Dumping from Ships and Aircraft or Incineration at Sea)
Adoption (Barcelona)
10 June 1995
Not Yet in Force
Status:
Parties to the Amendments: 14
26
2. The Protocol concerning Co-operation in Combating Pollution of the Mediterranean
Sea by Oil and other Harmful Substances in Cases of Emergency (Emergency
Protocol)
Adoption (Barcelona):
16 February 1976
Entry into force:
12 February 1978
Status:
Signatories: 15, Parties: 22
3. The Protocol concerning Co-operation in Preventing Pollution from Ships and, in
Cases of Emergency, Combating Pollution of the Mediterranean Sea (Prevention and
Emergency Protocol)
Adoption (Malta):
25 January 2002
Entry into force:
17 March 2004, replacing the 1976
Emergency Protocol in accordance with Article 25 (2)
Status:
Signatories: 16, Parties: 7
4.The Protocol for the Protection of the Mediterranean Sea Against Pollution from Landbased Sources (LBS Protocol)
Adoption (Athens):
17 May 1980
Entry into force:
17 June 1983
Status:
Signatories: 22, Parties: 22
The 1996 Amendments (The Protocol for the Protection of the Mediterranean Sea
Against Pollution from Land-based Sources and Activities (LBS Protocol))
Adoption (Syracuse):
7 March 1996
Not Yet in Force
Status:
Parties to the Amendments: 13
27
The Barcelona Convention and its Protocols
5. The Protocol Concerning Mediterranean Specially Protected Areas
(SPA Protocol)
Adoption (Geneva):
3 April 1982
Entry into force:
23 March 1986
Status:
Signatories: 11, Parties: 22
6. The Protocol concerning Specially Protected Areas and Biological Diversity in
the Mediterranean (SPA & Biodiversity Protocol)
Adoption (Barcelona):
10 June 1995
Entry into force:
12 December 1999, replacing
the 1980 SPA Protocol in accordance with Article 32
Status:
Signatories: 17, Parties: 14
7. 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)
Adoption (Madrid):
14 October 1994
Not Yet in Force
Status:
Signatories: 11, Parties: 4
28
The Barcelona Convention and its Protocols
8. Protocol on the Prevention of Pollution of the Mediterranean Sea by
Transboundary Movements of Hazardous Wastes and their Disposal
(Hazardous Wastes Protocol)
Adoption (Izmir):
1 October 1996
Not Yet in Force
Status:
Signatories: 11, Parties: 5
Protocols and other instruments under development
• Rules and Procedures for the Determination of Liability and
Compensation for Damage Resulting from Pollution of the Marine
Environment in the Mediterranean Sea Area
• Draft Protocol on Integrated Coastal Zone Management in the
Mediterranean (ICZM)
29
The Barcelona Convention system: Analysis and
points of interest
• The 1995 amendments to the Convention were clearly intended to
integrate in the legal text developments since 1976 in connection
with UNCLOS, the CBD, sustainable development and the principles
in the Rio Declaration
• The 1995 amendments “modernize” the 1976 text of the Convention
in a number of ways including:
– extends the geographical scope of the Convention to the
“Mediterranean Sea Area” without referencing particular maritime
zones
– provide flexibility to tailor the geographical application to the
particular concern of a Protocol
– specifically foresees (in the new title and provisions) possible
extension to coastal areas to reflect GPA and concerns about LB
sources of pollution and the need for ICZM
30
The Barcelona Convention system: Analysis
and points of interest
– specifically incorporates sustainable development and promotes
institutional integration for e.g, Art. 4 para 1 and 2,
– harmonizes the definition of pollution with UNCLOS and specifically
refers to UNCLOS and to the CBD
– commits States to:
• apply the precautionary principle,
• apply the polluter pays principle,
• undertake EIA,
• promote integrated management of the coastal zones
– has an express obligation to adopt legislation to implement the
Convention and Protocols (Art 14)
– provides for public participation ( Art. 15)
– enhanced reporting obligations to ensure effective implementation and
compliance ( Arts 26 and 27
31
The Barcelona Convention system: Analysis
and points of interest in the Protocols
•
The updated or modernized protocols reflect similar changes to bring them
in line with later developments
For example:
• the Dumping Protocol ( dumping of wastes from ships or aircrafts other than
operational discharges
– Prohibits incineration of wastes at sea
– revised to adopt the “reverse logic” of the 1996 London Convention dumping prohibited unless on a list of permitted matters.
•
the LBS Protocol more closely aligned with GPA ( 80% of marine pollution)
– application now extends to the hydrological basin watershed
– phasing out of inputs from land of substances that are toxic, persistent
and liable to bioaccumulation” ( POPs”)
32
• 1995 SPA and Biodiversity Protocol
– changes so extensive it replaces rather than amends the
earlier text
– implements ideas in Agenda 21 (UNCED 1992) and
UNLOSW re “fragile ecosystems”
– extends to all marine waters including “high seas” of the
Mediterranean ( to protect highly migratory species – marine
mammals), subsoil and wetlands and coastal areas,
– foresees MPAs ( as per CBD) and provides for a list of
SPAMIs ( Specially Protected Areas of Mediterranean
Interest)
– 3 annexures
• criteria for designating SPAMIs
• list of endangered or threatened species
• list of species whose exploitation is regulated
33
The Barcelona Convention system: Analysis and
points of interest in the Protocols
• Offshore Protocol
– addresses offshore exploration and exploitation activities on the seabed
and national continental shelves
– includes some provision for liability and compensation
• Hazardous Wastes Protocol
– “adds value”[ to matters already largely covered by international MEA the Basel Convention ( 1989) on the Control of Transboundary
Movements of Hazardous Wastes and Their Disposal.
– covers radioactive products and tries to address coastal/Transit State
rights through prior notification, if not authorization
– includes some provision for liability and compensation
• 2002 Emergency Protocol
– new protocol rather than amending the prior text
– seeks to “add value” to existing system under IMO (OPRC and
MARPOL) on a regional level and with EU standards to respond to
marine environmental protection emergencies
– provides additional obligations on Masters to report etc.
34
The Barcelona Convention system: Future
Challenges & Opportunities
• an external evaluation of the MAP has suggested that it might be
seen as ineffective however. recent studies suggest that States are
committed to the legal framework of the Barcelona System and see it
as dynamic
• what is the role of the Convention relative to the Action Plan in terms
of achieving the overall objective(s)?
• need for consistency in ratifications and try to reduce the complexity
of the system
• shifting the focus to effective implementation and compliance rather
than developments of treaties and strategic plans
• challenges and opportunities in light of conflicts in the region, north
south issues etc.
• the complexity of regional socio-economic arrangements ( EU) that
may affect the national autonomy of some States
35