Transcript Marine
Characteristics of the marine environment The character of the marine environment as an ”open access resource” Conflicting interests: Coastal states vs. flag states The resulting ”tragedy of the commons” The traditional ”freedom of the seas” The exclusive jurisdiction of the flag state – UNCLOS art. 92 Differences from terrestrial environment ”Land-use” ”Hunting” Pollution from land-based sources Alien species Ole Kr. Fauchald 28.03.2016 1 Normative issues Can UNCLOS be seen as an ”umbrella convention”? The importance of regional regimes IMO as a ”standard-setting body” 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: ? The importance of port state authority Are we moving towards an ecosystem based approach? Ole Kr. Fauchald 28.03.2016 2 UNCLOS and environment Territorial sea Exclusive economic zone Coastal state: limited by IMO standards (art. 211.5 and 6) Obligations related to management of resources (art. 61-2) Continental shelf The issue of ”innocent passage” (art. 21) Coastal state: limited by the right to lay cables and pipelines (art. 79) The high seas Obligation to take conservation measures (art. 117-9) Flag state vs. coastal state The special issue of migratory species (art. 64-7) – the 1995 Agreement Pollution and responsibilities of flag state (art. 210-1) Ole Kr. Fauchald 28.03.2016 3 Pollution Distinctions Prevention Vessel based – UNCLOS, IMO, regional Land based (including through water and air) – regional, chemical Result of exploration / exploitation – UNCLOS, regional Dumping – UNCLOS, regional 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 Ole Kr. Fauchald 28.03.2016 4 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 Ole Kr. Fauchald 28.03.2016 5 Marine protected areas 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? Ole Kr. Fauchald 28.03.2016 6 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 28.03.2016 7 MOX plant case Example of land based pollution Multiple rules of relevance ITLOS: Issue of provisional measures The fate of the case before the ECJ Objections to jurisdiction rejected Not sufficiently urgent! Assurances by the UK Duty to cooperate Brought by the Commission against Ireland! The fate of the case before the Arbitration tribunal Withdrawn by Ireland! Ole Kr. Fauchald 28.03.2016 8