International Law of the Sea and the Environment: Challenges and Protection

Introduction to International Law of the Sea and the Environment

International law of the sea and the environment

Challenges in Marine Environment Protection

• Challenges:
  • Use of the sea
  • Protection of the environment of marine areas and commons
    • Sea = common good
      • Erika, 1999:
        • Tanker > sank in EEZ of France
        • Caused oil pollution
        • Inspected > should have been repaired
        • Who pays? Reparation

" Impact under international law > conventions: combat and compensate for damage originating for such incident

• Marine challenge
  • Fine stock > overexploitation
    • FAO rules
    • By-catchers > if you fish for a long time and with large nets, you can surely fish other fishes than the ones you're supposed to, you'll kill them without a purpose
  • Climate change
  • Acidification of the ocean
  • Rising level of the sea
  • Effect on the coral reef
  • Plastic planet

Part 1. International Legal Regime Applicable to Maritime Areas: Maritime Law

Chapter 1 - Introduction and Key Notes

Section 1 - Protection of the Marine Environment of Areas Under Sovereignty or Jurisdiction or Beyond National Jurisdiction

§1. Issue of Jurisdiction and Sovereign Rights

• Issue of jurisdiction and sovereign rights
  • 12 nautical miles
• High sea > vessels flying flag > jurisdiction of the state
  • Also, for the vessels that create damage to other countries or the environment > state will be responsible

§2. Issue of Creeping Pollution

• Creeping pollution > plastic debris issue
  • Plastic continent created from one plastic bag, one plastic bottle and so on
• Who is responsible? SHARED RESPONSIBILITY
  • Stockholm declaration of 1972

Principle 21: states have the sovereign right to exploit their own resources pursuant to their own environmental 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

• State: jurisdiction over activities under an obligation to act with due diligence to ensure that no harm is caused to the environment, or damage 1to the environment of other states or of areas beyond the limits of national jurisdiction
  • If the activities conducted on the high sea are under control or jurisdiction of the state, it will be liable of their responsibility
  • COP, climate change, etc.
• State
  • Prevent damage
  • Regards to areas beyond the limits of national jurisdiction

Section 2 - Protection of Global Commons

§1. Notion of Global Commons

. Oceans > global commons

• Specific rules

A. History (common pasture or woodlands)

. Global commons = property of the community

B. Not Subject to Sovereignty

. They're not subject to private ownership of states

• Global commons = res nullius

C. What is Hidden Behind the Notion of Global Commons?

. High seas, deep seabed areas, antarctica, space and outer space, atmosphere, climate

D. Common Pool/Reservoir

• Regime of freedom

. Common goods = common resources and used as a sink

§2. Use of Global Commons and Access to Resources

A. The Legal Status

. It may vary depending on where it is located

• Example: tuna
  • Territorial sea: jurisdiction of the state
  • High sea: freedom of fisheries
  • High seas managed by fishery organizations: rules of that organization

B. The Use of Resources: Economic Analysis

• Different approaches
  • 1st: exclusive/non-exclusive approach > will this use prevent other to use the good?
  • 2nd: excludable/non-excludable approach > is there a possibility to exclude other potential users/public goods?

C. The Management of the Resources: The Tragedy of Commons

• Notion used in '60s by Hardin
• Economic approach > if there's a piece of land which might be used freely by all members of a community as a shared resource and there's no rule agreed > people will be free to put cattle and let cattle graze there

. Lesson: the only way to protect an area is to transform it into a private property

• Pay attention
• Protect the land and its sustainability
• Echo in the law of the sea 2o Ex. EEZ: area of 200 NM
• Ideological theory to explain that private property is the best solution

Chapter 2. Historical Overview

Section 1. Hugo Grotius and Mare Liberum

• Grotius > Mare Liberum
  • Theories about international law treaties

Context: battle between Santa Catarina and three private Dutch vessels > they had no authorization to act in such aggressive manner

• Freedom to navigate and to trade > Grotius has based his reasoning > one and only state should not have the monopole

Section 2. Notion of Freedom of the Sea

§1. Elements of Freedom of the Sea

. Grotius > no possibility to be the master of the sea

• Not entirely true
• Freedom of the sea
  • Impossibility of the sea to be the subject of the effective occupation
  • The (apparently) inexhaustible character of the resources of the sea

§2. Consequences of Freedom of the Sea

. Maritime areas = RES COMMUNIS > no possibility for a state to acquire ownership or sovereignty over the sea

• UNCLOS: no possibility to claim sovereignty over the high seas
  • Art.89: no state may validly support to subject any part of the high seas to its sovereignty

§3. Freedom of the Sea in UNCLOS: art.87

A. Principle of Freedom of the High Sea

• Freedom of the high sea
  • Navigation
  • Overflight oceans
  • Lay submarine cables and pipelines
  • Freedom to construct artificial islands and other installations permitted under international law
  • Fishing
  • Scientific research

They're limited: pay regards to the State

B. Limitations on Freedom of the Sea

. Rationed loci: limited to the high seas, without the Area (= soil and subsoil of the seabed beyond the limit of national jurisdiction)

• Also, beyond the EEZ
• Ratione materiae: art.87
  • Interests and rights of other states
  • Peaceful purpose > normally, there shouldn't be military activities
  • Prohibition of certain activities

    Transport of slaves

    " Duty of cooperation in repression of piracy

  • Illicit traffic in narcotic drugs or psychotropic substance 3▪ Unauthorized broadcasting from the high sea
  • Other rules

. Duty to render assistance

Duty to for all the States to protect the marine environment

§4. The Exclusive Jurisdiction of the Flag State

• Corollary of the freedom of the high sea
• Ships are subject to the jurisdiction of the state in which they are registered
  • Flag state has to control its ship

And if it fails?

• Major issue in international law

. LIMITATIONS: which apply to the principle of exclusive jurisdiction >

• Piracy > universal competence, every state can act
• Narcotic-drugs traffic > no universal jurisdiction, we need to get the authorization of the flag state
• slave transportation > flag state must act
• right to visit > possibility to go on board and inspect the document, check the flag
• right of hot pursuit > if the ship committed an offence in the EEZ against the legal set of rules > we need the consent of the flag state
• ship without flag
  • you can also not show your flag

" that's why right to visit exists

3 situations

• Doesn't have a flag: if it's expired, there's still a link
• Deregistration by a state: it might be seized by other navy vessels
• Fake flag: It's a problem

It can be arrested

§5. Conclusions on the Freedom of the Sea

• Protection of global commons requires:
  • Stricter regulation
  • More efficient implementation
• Freedom of navigation

Section 3. Maritime Areas

§1. Notion of a Nautical Mile and Delimitations

• 1 nautical mile = 1,852 km

A. The 200 Nautical Miles Limit

. Limit of 200 NM = EEZ

B. Beyond 200 NM

• We have high sea > its space is decreasing

C. Artic

. It's split between 7 countries + unclaimed parts

§2. Maritime Areas: The Baselines

. The more you're close to the shore, to the baseline, the more the coastal state will exercise its sovereignty and its jurisdiction

4. Every maritime area has a different status > can be a problem

A. Baselines: Notions

1. The normal baseline

. Definition = low-water line along the coast

• Complex
  • High tide
  • Low tide
  • Zero level

2. Straight baseline

. Coast is deeply indented with a number of rocks or islands along the coast

. Land side = internal waters

. Beyond > territorial sea

B. The Issue of the Low Tide Elevations (Art. 13 UNCLOS)

• = rocks or some elevations

. When there's high tide they disappear

C. Bays (art.10 UNCLOS)

. Straight line to close th1e bay, but it cannot exceed 24NM

• Can we close a bay? We normally use the normal baseline
  • Exception: historic bays

D. Islands (art.121 UNCLOS)

. Island is entitled to territorial sea, contiguous zone, EEZ and continental shelf

• Exception: tocks who cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf

. Case law of ICJ: seems that the provision is recognized in customary law

• Nicaragua v. Columbia > even if it's a small feature and barely above water, it can still be considered as an island

Interpretation = restrictive > 2016: arbitral tribunal Philippines and China where the status of islands was also looked at

• Distinction between an island and a rock: only an island can be suitable for human habitation or economic life

$3. Different Maritime Areas: Introduction

A. Distinction Between National and International Airspace

• Maritime areas

National airspace > archipelagic waters and territorial sea

• International airspace > EEZ, high seas and, eventually, contiguous zone

B. Specificities of Some Maritime Zones

. Territorial sea > 12 NM from baseline

• EEZ -> 200 NM

. Contiguous zone > first 24 NM of EEZ

Control some activities for custom purposes and avoid disease

• Continental shelf >after EEZ, we have high seas > underneath there's continental shelf = 200 NM and extended 350 NM

. Abyssal seafloor > after 200 NM

C. Difference Between the EEZ and the Continental Shelf

• EEZ -> has to be enacted
• Continental shelf -> exists ab initio

D. Mediterranean Sea

. States are not necessarily enacting their EEZ > difficulties drawing their continental shelf

E. The Area

. If we want to trash something in the internal waters, problem will occur

. Obligation to not use your territory in such a way which will create harm to another country of for an area beyond the national jurisdiction

Chapter 3: United Nations Convention on the Law of the Sea (UNCLOS)

Section 1. A Constitution for the Ocean

. Convention is called: Constitution for the ocean

• Rules governing the different uses of the oceans
  • 17 parts
• Different maritime areas described

The area: what concerns exploitation and exploration of the mineral resources beyond areas of national jurisdiction

▪ PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT

• Constitution > it's organized, exercised and have some prerogatives in the sea + measures that might be taken
  • Regulates major human activities in the sea

Section 2. A Framework Convention

. It indicated that we have a number of provisions which may be written in general terms and which will have supplemented by other rules or be more detailed in other rules

• We have a number of rules which are applicable and mandatory

. Lots of conventions during the years

• FAO > ensure that flag states comply with a number of obligations and mainly to exercise control vis-à-vis vessels flying their flag
• Implementation of UNCLOS
• Straddling fish stocks agreement > basic rules to apply when there are fish-stocks which are not limited to an EEZ
  • Notion of fishery zone >in an EEZ, the coastal state has an exclusive prerogative about the fishing right

• When it's outside > high sea

Need of having a coherence approach between measures taken in the EEZ and measures taken in the high sea

Why high sea mainly? Because of the system of UNCLOS

• Living marine resources
• Highly migratory fish stocks
• Fishery resources
• Underwater cultural heritage > if we find something at the bottom of the sea?
• IMO
• FAO agreement on port state measures to prevent, deter and eliminate illegal, unreported, unregulated fishing
• BBNJ negotiations 6