© Springer-Verlag Berlin Heidelberg 2015Jürgen Basedow, Ulrich Magnus and Rüdiger Wolfrum (eds.)The Hamburg Lectures on Maritime Affairs 2011-2013Hamburg Studies on Maritime AffairsInternational Max Planck Research School for Maritime Affairs at the University of Hamburg2810.1007/978-3-642-55104-8_1
Preservation of the Marine Environment
International Tribunal for the Law of the Sea, Hamburg, Germany
Max Planck Institute for Comparative Public Law and International Law, Im Neuenheimer Feld 535, 69120 Heidelberg, Germany
2. The United Nations Convention on the Law of the Sea as the Basic Legal Framework for Marine Protection
This text reflects the lecture of the author on “Preservation of the Marine Environment” held on 28 September 2011 on the premises of ITLOS and the Institute.
The seas are subject to a wide variety of uses. Direct use of ocean resources has a long history, especially in the areas of navigation, fisheries, military activities, and waste disposal. More recently the oceans and the seabed are used for the generation of energy, to explore and exploit minerals as well as hydrocarbons and to conduct marine scientific research. The objective of all attempts to preserve the marine environment is to ensure the compatibility of all such or future uses and to ensure that they are, in their totality, sustainable. Oceans are a decisive factor for the world’s climate and this adds an additional feature to the regime on the preservation of the marine environment. Finally, attempts are made to protect the intrinsic value of the marine environment.
1. The Development of Marine Environmental Law
International efforts at protecting the marine environment date back to the 1960s. The London Dumping Convention of 1973 was an early multilateral effort in this regard. In the wake of the Torrey Canyon accident of 1967, growing concern over ship-based and land-based marine pollution in the North Sea and Baltic Sea regions led to several multilateral conventions between the coastal States concerned – from the 1969 Bonn Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft to the 1974 Paris Convention on the Prevention of Marine Pollution from Land-Based Sources, the 1974 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area, and others. However, a truly universal and comprehensive approach required by the physical nature of the world’s hydrosphere only became possible with the successful completion of the Third United Nations Conference on the Law of the Sea (UNCLOS III) in 1982. While the driving forces behind UNCLOS III and the resulting United Nations Convention on the Law of the Sea (hereinafter the Convention) were primarily economic in nature, e.g. regarding the allocation of resource exploitation rights, the concern for environmental protection first expressed at the Stockholm Conference 1972 left its mark on the Convention, particularly on its Part XII. The growing awareness that the oceans constitute an exhaustible resource and that their protection is a common concern of the international community of States led to the formulation of the program of action set forth in chapter 17 of Agenda 21 adopted at the Rio Conference.
2. The United Nations Convention on the Law of the Sea as the Basic Legal Framework for Marine Protection
The Convention on the Law of the Sea is the legal basis for the protection of the marine environment. This instrument has proven capable of accommodating the surge in marine environmental law-making both prior and subsequent to the United Nations Conference on Environment and Development (Rio Conference). Articles 192 and 193 of the Convention are the key provisions obliging States to protect the marine environment and to cooperate with the view to meet this objective.
It would be a misconception to assume that the Convention is only concerned with the protection and preservation of the marine environment. In fact it attempts to strike a balance between protection and preservation of the marine environment and the economic use of the oceans. Therefore the Convention is one of the early examples of a regime striving for a sustainable use of the oceans although it does not focus on this principle which became more dominant in governing international environmental law after the adoption of the Convention. However, the Convention has to be read in conjunction with the results achieved at the Rio Conference, and therefore besides the principle of sustainable development, the principles of intergenerational equity, common but differentiated responsibilities, common concern, the precautionary principle, and the cost-internalization (the polluter/user-pays) principle are applicable.
Note must be taken of the fact that the Convention does not provide for a definite regime on the protection of the marine environment. It rather establishes some general standards and – most importantly – provides for a functional allocation of jurisdiction both to prescribe and to enforce marine environmental law. In that respect the Convention does not pursue a uniform approach but differentiates between the various uses of the sea.
II. Conservation, Management and Utilization of Living Resources
One of the primary mechanisms for the preservation of the marine environment is the protection of its living resources. The Convention predominantly allocates jurisdictional authority to the various States concerning the management and control of marine living resources and less to international organizations. This approach, however, was not totally successful in itself. Fish stocks are interrelated, which calls for a more comprehensive approach then the Convention originally envisaged.
Across the world, fisheries, once imagined to be inexhaustible, are showing signs of being overfished or even depleted beyond the means of recovery. Three key causes have been identified as being responsible for the dramatic situation of marine living resources (1) by-catch and destructive fishing practices; (2) illegal, unreported and unregulated (IUU) fishing; and (3) subsidies.
2. The Convention’s Fisheries Regime
The fisheries regime of the Convention functionally contains two separate sets of rules. The first set is concerned with the distribution of resources for exploitation, the second with the management of these resources.
a) Territorial Sea
The sovereignty that coastal States enjoy over their territorial waters includes the power to enact and to enforce regulations concerning fisheries and the conservation of living resources in this area. In the La Bretagne arbitration, however, the majority of the Arbitral Tribunal stated, obiter dictum, that even in the territorial sea, the costal State enjoyed only functional jurisdictional powers as enumerated in the Convention.
b) Exclusive Economic Zones
In the Exclusive Economic Zone, the coastal State enjoys sovereign rights for the purpose of exploring and exploiting, conserving and managing the living resources. According to Articles 61 to 68 of the Convention, the coastal State shall promote their optimum utilization”. Yet it shall do so “without prejudice to Article 61”, which sets out management and conservation measures. According to Article 61(1), a coastal State “shall” determine the total allowable catch. Management measures have to protect marine living resources against overexploitation (paragraph 2), and to maintain and “restore populations of harvested species at levels which can produce the maximum sustainable yield (paragraph 3). Maximum sustainable yield is to be understood as “qualified by relevant environmental and economic factors” and to be determined “after taking into account the interdependence of stocks”. “Any generally recommended international minimum standards, whether sub-regional, regional or global” are also to be taken into account. This provides the legal basis for standards for sustainable fisheries, which have been developed and adopted in the relevant international fora, particularly the Food and Agriculture Organization (FAO), to influence decision-making even when not expressed in a legally binding document. Such standards are the conduit for new and emerging principles of natural resource management such as the ecosystem and the precautionary approaches. However, setting precise standards and threshold levels for such critical variables as “allowable catch”, “over-exploitation”, “effects of management measures”, “optimum utilization”, “capacity to harvest”, and “surplus” remains scientifically imprecise and therefore problematic.
c) High Seas
Conservation and management of the living resources of the high seas is the subject of Articles 116 to 120 of the Convention. Article 116 recognizes that all States have the right for their nationals to engage in fishing on the high seas, subject to existing treaty obligations as well as the rights, duties, and interests of coastal States. Article 117 obligates all States, individually and jointly, to take for their respective nationals the measures necessary for the conservation of the living resources of the high seas. Article 118 imposes a correlative duty on States to cooperate in the conservation as well as in the management of high seas living resources. Article 119 provides technical guidance for States in determining the allowable catch and establishing other conservation measures for the living resources in the high seas. The interpretation of the central term “maximum sustainable yield, as qualified by relevant environmental and economic factors” has been subject to debate. The term is to be interpreted in the same way as it is under Article 61 given that the provisions encompass the same ecological topoi. Remarkably, regional fisheries organizations are not assigned specific functions or competencies in this respect.
Enforcement of fishing regulations applicable on the high seas lies primarily with the flag State, which, however, is obligated to cooperate with other States in the interest of enforcing international standards. In spite of the efforts undertaken by FAO, the state of affairs remains unsatisfactory. Many flag States have proven either incapable or unwilling to actively promote and enforce sustainable fisheries. As a result thereof, standard-setting is moving to international organizations and enforcement to port States. A further stage of internationalization was reached through the elaboration of regimes on certain fish stocks.
3. Common Management of Natural Resources
a) The Straddling Stocks Agreement
The so-called Straddling Stocks Agreement focuses on fish populations that ‘straddle’ the boundaries of countries’ EEZs and the high seas, such as cod off Canada’s Atlantic coast and pollock in the Bearing Sea. It also deals with highly migratory species such as tuna and swordfish.
Consistent with the tendency to nationalize resources, which forms the basis for the fisheries regime of the Convention on the Law of the Sea in the exclusive economic zone, the more recent development on the Law of the Sea is the recognition that the several uses of the sea have to be seen holistically and internationally. This has for consequence – at least theoretically – in that the competing individualized preference maximization should be replaced to a longer-term, social preference maximization. The paradigmatic shift has come about in stages. The main impetus can be seen in chapter 17 of Agenda 21, and as to fisheries in particular, in the FAO Kyoto Declaration.
The United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks states as its primary objective “to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks”. The Agreement promotes effective management and conservation of high seas resources by establishing, inter alia