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Marine environment

29 important questions on Marine environment

What are the biggest current environmental problems that the oceans are facing?

Climate change, over-fishing, marine litter, oil pollution, pollution in general, sewage and industrial discharge and agricultural run-off.

What is maximum sustainable yield, and how does this play a role in international law aimed at protecting the oceans?

FAO and most fishery management bodies build their statistics on the notion of ‘maximum sustainable yield’ (MSY). Which is enshrined in most international instruments on fisheries management and considered to provide the standard of fishing within biologically sustainable levels. Simply said it means the maximum catch that can be extracted from a fish or other population in the long term

What is the main requirement in the UNCLOS with regard to pollution of the marine environment?

A general obligation to prevent reduce and with regard to pollution of the marine environment? control pollution from all sources (article 194).

Which states can take enforcement actions with regard to the illegal activities at sea?

When illegal activities are observed, following states can take enforcement actions: - States with national jurisdiction in case of illegal activities within its territorial waters or EEZ - States whose flag the ship carries (flag states) in case of illegal activities by ships carrying that flag - States whose port the ship is at (port states) - States whose coast the ship is passing (coastal states)

The ITLOS was set up to deal with legal disputes on the UNCLOS. What were the main environmental cases they had so far and what was their outcome?

Main cases are: - MOX Plant case  Ireland won the case against the UK, however Ireland punished because didn’t use EU law - Southern Blue Fin Tuna Case  Australia and New Zealand against fishing done by Japan. States were ordered to stick to original catch quota and to stop any experimental fishing and start negotiating. - Sea floor mining  advisory opinion, advises states to adopt due diligence

How does the London Dumping Convention regulate dumping of substances into thee ocean?

It has lists with substances on it, a black list with substances where dumping is completely forbidden and a grey list with substances where dumping is allowed after a permit has been granted and certain conditions have been fulfilled.

What are some of the innovations into international maritime environmental law presented by the OSPAR Convention?

It has an integrated/ holistic approach  it concerns the entire marine ecosystem not detailed. It also codified the precautionary principle the polluter pays principle and the principle of best available techniques.

What instruments does the EU have to implement the OSPAR Convention?

The EU adopts its own legislation to push OSPAR forward, namely the Marine Strategy Framework Directive 2008/56, also Bonn agreement.

UN Convention on the Law of the Sea

- UNCLOS 1982 (sometimes also abbreviated as LOSC, Law of the Sea Convention). Big convention (200 pages) that regulates everything with regard to sea, including the environment o It deals with everything about the ocean not just about the environment it also regulates for examples ships, harbors, etc. o This convention is quite clear and specific, they are strict and it is a legally binding convention. There is a duty on all the states which are a party.

What is living resourceS?

Living resources (Art. 116-120) o Duty to conserve all living resources (fish, mammals) o Duty to maintain or restore populations o Duty to apply principle of maximum sustainable yield (MSY)

What is the MSY duty?

Duty to apply principle of maximum sustainable yield (MSY)  This is the biological principle that a school of fish has a natural size: when specimens are taken from that school, it grows back into its natural size. MSY is the amount of fish that can be caught without disturbing this mechanism. When more is caught than the MSY, the school collapses and the population dies out.

Hat does the wto do against fishery and SDG?

Since 2001, the WTO has been discussing ending fisheries subsidies with the aim to comply with UN Sustainable Development Goal Target 14.6, to secure an agreement on eliminating subsidies for illegal, unreported and unregulated fishing and prohibiting certain forms of fisheries subsidies that contribute to overcapacity and overfishing. Negotiations have successfully been concluded in June 2022!

Marine environment artikelen?

Marine environment (Art. 192-237) o General obligation to protect (Art. 192) o Principle of sovereignty/no harm codified (Art. 193) o Prevent, reduce and control pollution from all sources (Art. 194). Specific obligations:  Pollution from land-based sources (Art. 207): states have to adopt laws and regulations aimed at prevention, especially with regard to persistent toxic, harmful or noxious substances

UNCLOS enforcement, what soiverienty do states have?

UNCLOS: enforcement - States only have sovereignty over territorial waters (12 nm) and the Exclusive Economic Zone (EEZ) (200 nm): there, they can set and enforce rules

Who has UNCLOS enforcement under the high sea?

The high seas can only be regulated under international law: UNCLOS o There is no sovereignty at the high seas. So the UNCLOS sets up rules for the enforcement of law in the high seas.

What are the difficulties with monitoring on the high seas?

Enforcement in the EEZ or at high seas is problematic for practical reasons: how to monitor behavior there? Satellites and drones are increasingly used to track illegal dumping or illegal fishing (see article!) o Its difficult to monitor what is going on in the high seas because no one is there. So practically it is also complicated

When states have jusridiction what principle is at force and what cant they do?

Principle: free navigation for all ships (“international lawful use”)  However: inspect ships and take into detention when unlawful activities are found & enforcement (sanctioning)

How does jurisdiction work with a flag?

States whose flag the ship carries (flag states) in case of illegal activities by ships carrying that flag (Art. 217) (every ship is registered with a country and that country sails under that flag, that ship falls under the jurisdiction of that country no matter where it is)

How does the jurisdiction work when the ship is at a port?

o States whose port the ship is in (port states) (Art. 218)  Same (also when illegal acts took place at high seas), unless State with national jurisdiction or flag state wants to do the investigation  If a ship does something illegal on the high seas and then ports at a certain port then that state can also claim jurisdiction, however the state should know what they did wrong.

Wht kind of jusridction is there when a ship passes a state?

States whose coast the ship is passing (coastal states) (Art. 220)  May inspect ship and detain when unlawful activities are found

Southern blue fin tuna

Southern Blue Fin Tuna cases (1999): cases of Australia and New Zealand against experimental fishing by Japan of endangered tuna species. States were ordered to stick to original catch quota, to stop any experimental fishing, and to start negotiating conservation measures for this species.  [note that the comparable whaling case Australia v Japan (2014) was by the ICJ, and not on UNCLOS but on the Whaling convention, see session 3]

Sea floor mining?

Sea floor mining (2011): this is an advisory opinion on possible environmental damage caused by sea floor mining. The tribunal advises states to adopt due diligence, which is interpreted as:  apply the precautionary principle  Compensate when environmental damage takes place  Carry out an environmental impact assessment (EIA) – ITLOS refers to ICJ Pulp Mills case

Convention for the protection of the marine environment of the north-east atlantic OSPAR?

Convention for the protection of the marine environment of the North-East Atlantic (OSPAR) - Modern and progressive environmental treaty - Integrated/holistic approach: entire marine ecosystem - Precautionary principle, polluter pays principle, and principle of best available techniques all codified in a legally binding way (Art. 2)

What does OSPAR prevent and eliminate?

Prevent and eliminate pollution from: o Land based sources (Art. 3, Annex I) o Best available techniques o National programmes and measures have to be adopted  Criteria and substances listed in appendix 2 o Prior authorization is required for point sources (i.e., pipes and other installations on land that discharge pollutants into the ocean)

What is the OSPAR committe?

OSPAR Commission (= COP, fifteen parties, meets once a year)

2003 protocol inter.oil pollution compensation supplementary fund?

2003 Protocol: International Oil Pollution Compensation Supplementary Fund  Additional funds cover damage not covered by CLC and FIPOL/IOPC (only states that ratified Fund Convention and Protocol)

The oil industry also has voluntary funds ?2)

The oil industry also has voluntary funds
o Domestic law may apply. Example: US Oil Pollution Act
 no limitations as to amount of damages, clean-up costs & penalties
 Famous cases: Exxon Valdez (1989), Deepwater Horizon (2010) o Europe: Erika (France, 1999), Prestige (Spain, 2002)

What is the marine stragety framework directive 2008/56?

Marine Strategy Framework Directive 2008/56. Member states have to o adopt National marine strategy for their EEZ  preparation phase (assessment and monitoring 2012-2014)  adoption of programme of measures (2015-2016) o achieve ‘good environmental status’, which includes standards on  biodiversity, fish stocks, marine litter, underwater noise etc.  adopt spatial protection measures so as to protect a network of marine protected areas under Birds and Habitats Directives (see session 6)

Martime spatial planning directive 2014/89?

Maritime Spatial Planning Directive 2014/89. Member states have to • adopt maritime spatial plans, aimed at sustainable developmen

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