Transcript International Environmental Protection and the Law of the Sea

Judicial Training and research on EU crimes against
environment and maritime pollution
Saverio Di Benedetto – University of Salento
International Environmental Protection
and the Law of the Sea
26/29 June - Dipartimento di Scienze Giuridiche
UniSalento
Room R 27
International Environmental Protection and the Law of
the Sea
I. Introduction – Legal, social and epistemic assumptions
II. International Legal Framework
III. Environmental principles
I - Introduction – Legal, social and epistemic assumptions
 Legal Assumptions
Environmental protection is typically regulated by international law when global commons are involved, such as
high seas or outer space, or global concerns are at
stake, e.g. biodiversity or climate change.
Basic differences between national and international law

Absence of an established and unitary law-making process

Importance of customs and principles of law

Limited mechanisms of law enforcement
I - Introduction – Legal, social and epistemic assumptions
 Social assumptions
Two main kinds of environmental interests
 Human environment  human health economic resources
 Nature
 biodiversity
habitats
ecosystems
Two main forms of threats to the environment
 Pollution
 Natural resources exploitation / degradation
I - Introduction – Legal, social and epistemic assumptions
Marine environmental damage (pollution and degradation)
 Pollution forms
Ships navigation Toxic substances
transportation Dumping Land-based activities (factories; urban
agglomerates; agriculture) Mineral extraction from seabed
Submarine cables and pipelines Atmospherics activities
 Degradation causes
Fisheries exploitation Whaling
Modification of coastal territory
 Threatened goods
mammals stocks
Marine biodiversity Fish and
Coastal ecosystems and human habitats
Legal instruments are both general and focused on
specific goods or threats
I - Introduction – Legal, social and epistemic assumptions
 Epistemic assumptions
Industrialist paradigm vs. environmental discourses
3 models of environmental protection
 Assimilative (polluter pays principle)
 Preventive (prevention principle)
 Precautionary (principle of precaution)
The role of the science and inherent limits to knowledge and
prediction
II – International Legal Framework
 Customary law
 International treaties and conventions
 Legal principles
 Soft law
II – International Legal Framework
Parallelism: Development of International Environmental
Law and Instruments protecting marine environment
Stockholm Conference of 1972 on Human Environment.
London Dumping Convention 1972 Maritime
Pollution (MarPol) Convention 1973/78
UNCLOS 1982 : basic rules concerning marine
environmental protection
Regional Seas Agreements
II - International Legal Framework
 UNCLOS - PART XII
PROTECTION AND
PRESERVATION OF THE MARINE ENVIRONMENT
 Art. 192 – General obligation
“States have the obligation to
protect and preserve the marine environment.”
 Art. 193 – Sovereign right of States to exploit their natural
resources “States have the sovereign right to exploit their
natural resources pursuant to their environmental policies and in
accordance with their duty to protect and preserve the marine
environment”
II - International Legal Framework
 Art. 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 […]”
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”
II - International Legal Framework
3) Far-reaching list of relevant sources of marine pollution
4) “In taking measures to prevent, reduce or control pollution of the
marine environment, States shall refrain from unjustifiable
interference with activities carried out by other States in the
exercise of their rights and in pursuance of their duties in
conformity with this Convention.”
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.”
Artt. 207 – 212 Specific obligations for states to prevent reduce and
control pollution of marine environment
II - International Legal Framework
UNCLOS rules on conservation of living resources
Exclusive Economic Zone Rights of exploitation and duties to protect
for the coastal State: Art. 56 and Art. 61
Object of protection: Stock occurring within the EEZ (art. 63)
Highly Migratory Species (art. 64) Marine mammals (art. 65)
Anadromous and catadromous species (art. 66)
High Seas Art. 117 “All States have the duty to take, or to
cooperate with other States in taking, such measures for their
respective nationals as may be necessary for the conservation of
the living resources of the high seas.”
Art. 118 Cooperation of States in the conservation and
management of living resources
Art. 119 “Article 65 also applies to the conservation and
management of marine mammals in the high seas.”
III – Environmental Legal Principles
Key role of the UN Conference on Environment and
Development (Rio de Janeiro, 3-14 June 1992)
Final Declaration: set of non-binding principles
 Principle 16 (polluter pays principle)
“National authorities should endeavour to promote the
internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter
should, in principle, bear the cost of pollution, with due regard to
the public interest and without distorting international trade and
investment.”
III – Environmental Legal Principles
 Principle 2 “States have, in accordance with the Charter of the
United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and 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.”
Quasi-identical text of Principle 21 of Stockolm Declaration (nature of
customary rule)
Internal antagonism between first and second part
Parallel between Principle 2 and art. 192-194 UNCLOS
III – Environmental Legal Principles
 Principle 15 (the precautionary principle)
“In order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation.”
This principle is affirmed since mid ‘80s. It was not set out by
the UNCLOS and other conventions protecting the marine
environment, but has been subsequently integrated in all
relevant conventions, by amendments and protocols.